LEASE
THIS LEASE, entered into between XXXXXXXX, LLC. hereinafter referred to as
"LANDLORD" and ACCURIDE CORPORATION hereinafter referred to as "TENANT".
WITNESSETH THAT LANDLORD and TENANT, in consideration of their mutual
undertakings, agree as follows:
LANDLORD hereby leases to TENANT and TENANT hereby leases from LANDLORD Lots 10,
11 and 12 situated on the real estate described in the attached Exhibit "A"
which is made a part hereof, including the two-story building and other
improvements described hereinbelow, commonly referred to as a 34,000 square foot
Class A office building located on 4.6 acres of land on Office Circle of
Xxxxxxxxx Crossing fronting I-164 and depicted in the attached Exhibit "B"
drawing of building and site plan which are made a part hereof (collectively
hereinafter the "Leased Premises")
TENANT without demand or notice shall pay during the term of this Lease, a
monthly rental as described in a Lease entered between the parties of even
date herewith, all upon the following covenants, terms and conditions:
1.01: MONTHLY RENTAL AMOUNTS AND CONDITIONS PRECEDENT:
Months 1 thru 60: The monthly rental amount shall be Thirty Seven Thousand
Five Hundred Forty-One and 60/100ths Dollars ($37,541.60)
per month, representing an annual rate of Thirteen and
25/100ths Dollars ($13.25) per square foot.
Months 61 thru 120: The monthly rental amount shall be Forty-One Thousand Three
Hundred Ten and 00/100ths Dollars ($41,310.00) per month,
representing an annual rate of Fourteen and 58/100ths
Dollars ($14.58) per square foot.
1.02: The parties agree that the actual square footage of the Leased
Premises shall be determined by mutual written agreement of LANDLORD and
TENANT as the plans for the initial construction, and any expansion option
exercised hereunder, are finalized between LANDLORD and TENANT and their
respective architectural and construction consultants, pursuant to the Work
Letter Agreement attached hereto and made a part hereof. The rent set forth
above shall be adjusted according to the square foot rental rates described
above applied to said actual square footage of the Leased Premises as so
determined, using center-of-wall to center-of-wall measurements, excluding
mechanical shafts and stair xxxxx.
1.03: The LANDLORD represents and warrants it has an option to purchase the
land underlying the Leased Premises from Xxxx Development, LLC, and LANDLORD
shall promptly exercise and close on said option following the exercise of
this Lease on or before December 1, 1998.
1.04: The LANDLORD agrees that LANDLORD shall cause restrictive covenants
running with the title of such adjoining tracts of land as set forth under
paragraph 29.01 ET.SEQ., to the acceptance of TENANT'S legal counsel and
TENANT'S title insurance underwriter on or before December 1, 1998.
2.01: TERM: The term of this Lease shall commence on the later of November
1, 1999, or the date that the Leased Premises are completely build-out by
LANDLORD and ready for the TENANT's possession. The term of this Lease shall
expire on the later of October 31, 2009 at 11:59 p.m., or the date ten (10)
years from the commencement of this Lease, subject to renewal as provided
hereinbelow.
Page 1 of 16
3.01: USE, COMPLIANCE WITH LAWS, SIGNS: TENANT shall keep the Leased
Premises in a clean and orderly condition and shall conduct business there
therefrom in a careful and safe manner. TENANT shall not use the Leased
Premises or maintain them in any manner constituting a violation of any
ordinance, statute, regulation, or order of any governmental authority,
including without limitation zoning ordinances, nor shall TENANT maintain,
permit or suffer any nuisance to occur or exist on the Leased Premises.
Notwithstanding anything herein to the contrary, LANDLORD covenants and
warrants upon the commencement of the term of this Lease that the zoning of
the Leased Premises is proper and in full compliance with city, county and
state ordinances, statutes, regulations or other laws or orders of any
governmental authority for use as an office building as set forth herein,
including but not limited to compliance with all set-backs, parking and
signage requirements or standards set forth under any such land use and
zoning laws.
3.02: TENANT shall not affix to or upon the exterior of the Leased Premises,
or any place on the Leased Premises any sign, insignia, or decoration without
the prior written consent of LANDLORD, which consent shall not be
unreasonably withheld. TENANT acknowledges receipt of a copy of the
Conditions, Covenants, and Restrictions on record for the sub division in
which this property is located.
4.01: SURRENDER AND HOLDOVER: Upon the expiration or sooner termination of
this Lease, TENANT shall surrender to LANDLORD the Leased Premises, together
with all other property affixed to the Leased Premises, (except trade
fixtures) broom clean and in the same order and condition in which TENANT
received them, the effects of ordinary wear and acts of God, excepted.
4.02: Unless an event of default as hereinafter defined has occurred and
remains uncured, TENANT shall prior to the expiration of the term remove all
of TENANT's furniture, belongings and personal property from the Leased
Premises. Any damage to the Leased Premises caused by such removal shall be
repaired by TENANT prior to the expiration of the term.
4.03: At LANDLORD's option, If TENANT fails to remove such furniture,
belongings, trade fixtures, and personal property, then upon thirty (30) days
advance written notice, the same shall be deemed the property of LANDLORD.
4.04: If TENANT shall remain in possession of all or any part of the Leased
Premises after the expiration of the term of this Lease, with the consent of
the LANDLORD, then the TENANT shall be a lessee from month to month at a
Lease rate one and one half times the rate immediately prior to the Lease
expiration, and subject to all of the other applicable covenants, terms and
conditions hereof.
5.01: ASSIGNMENT AND SUBLETTING: TENANT shall not assign, mortgage,
encumber, or transfer this Lease in whole or in part, or sublet the Leased
Premises or any part thereof, nor grant a license or concession in connection
therewith, without the prior written consent of LANDLORD, which consent shall
not be unreasonably withheld. Should LANDLORD allow TENANT to sublet, TENANT
shall continue to be held responsible for the terms and conditions of this
Lease. This prohibition shall include any act which has the effect of an
assignment or transfer and occurs by operation of law.
5.02: Notwithstanding anything herein to the contrary, provided the TENANT
is not in default under this Lease, TENANT may assign or sublease part or all
of the Leased Premises without LANDLORD's consent to any entity which at the
time of such assignment or sublease has a net worth of equal or greater than
the TENANT's net worth as of the date of December 31, 1997. "Net worth" as
used herein
Page 2 of 16
shall mean the value of such entity's total assets less its liabilities from
its last quarterly financial statement as prepared by its accountants.
In the event of such permitted assignment or sublease without LANDLORD's
consent, LANDLORD agrees to provide a written estoppel certification in form
and substance reasonably satisfactory to the assignee or subtenants that (i)
this Lease is in full force and effect; (ii) the amount of rent such an
assignee or subtenant shall be obligated to pay hereunder; and (iii) LANDLORD
shall not disturb such assignee or subtenant's right to lease and occupy the
Leased Premises, subsequent to such assignment or subletting. Whereupon such
assignee or subtenant agrees to perform all such obligations under this
Lease, the TENANT shall thereupon be automatically fully released from the
terms of this Lease.
6.01: ALTERATION OF LEASED PREMISES: Except as provided in the Work Letter
Agreement which is attached and made a part hereof, TENANT shall not cause or
permit any alterations, additions or changes of or upon any part of the
Leased Premises without first obtaining the written consent of LANDLORD,
which shall not be unreasonably withheld.
6.02: All alterations, additions or changes to the Leased Premises shall be
made in accordance with all applicable laws and shall immediately upon
completion become the property of LANDLORD.
7.01: HAZARDOUS MATERIAL: TENANT shall not cause or permit any Hazardous
Material to be brought upon, kept or used in or about the Leased Premises by
TENANT, TENANT's agents, employees, contractors or invitees, except for such
Hazardous Material as is necessary or useful to TENANT's business. Any
Hazardous Material permitted on the Leased Premises as provided in this
Section 7, and all containers thereof, shall be used, kept, stored and
disposed of in a manner that complies with all federal, state and local laws
or regulations applicable to this Hazardous Material.
7.02: TENANT shall not discharge, leak or emit or permit to be discharged,
leaked or emitted, any material into the atmosphere, ground, sewer system or
any body of water, if that material (as is reasonably determined by the
LANDLORD, or any governmental authority does or may pollute or contaminate
the same, or may adversely affect: (a) the health, welfare or safety of
persons, whether located on the Real Estate or in the Building or elsewhere,
or (b) the condition, use or enjoyment of the Real Estate, Building or any
other real or personal property. As used in the Lease, "Hazardous Material"
means:
(i) any "hazardous waste" as defined by the Resource Conservation and
Recovery Act of 1976, as amended from time to time, and regulations
promulgated thereunder;
(ii) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended from time to time, and regulations promulgated thereunder;
(iii) and oil, petroleum products, and their by-products;
(iv) any substance that is toxic, ignitable, reactive, radioactive,
contagious and life threatening, or corrosive and that is regulated
by any local government, the State of Indiana, or the United States
Government; and
(v) all material or substance that is defined as "hazardous waste",
"extremely hazardous waste", or a "hazardous substance" pursuant to
state, federal or local governmental law,
Page 3 of 16
including, but not limited to, asbestos, polychlorobiphenyls
("PCB's") and petroleum products.
7.03: TENANT hereby agrees that it shall be fully liable for all costs and
expenses related to the use, storage and disposal of Hazardous Material kept
or brought upon the Leased Premises, and the TENANT shall give immediate
notice to the LANDLORD of any violation or potential violation of the
provisions of this Section 7.
7.04: TENANT shall defend, indemnify and hold harmless LANDLORD, LANDLORD's
officers, agents and employees from and against any all claims, demands,
actions, causes of action, loss and liability resulting from or arising
from (a) the presence, disposal, release or threatened release of any
Hazardous Material, or dangerous medical waste product that is on, from or
affecting the soil, water, vegetation, buildings, personal property, persons,
animals or otherwise; (b) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to that
Hazardous Material; (c) any lawsuit brought or threatened, settlement
reached, or governmental order relating to that Hazardous Material; or (d)
any violation of the laws applicable thereto caused by the TENANT. TENANT
further warrants and represents that should TENANT or TENANT's guest,
customers or any other person leak, discharge, spill or dispose of any
hazardous substance on said property that it will assume total financial
responsibility for clean-up of said substance and further it will reimburse
LANDLORD for any damage LANDLORD might incur arising from said leak,
discharge, spill or disposal.
7.05. LANDLORD shall defend, indemnify and hold harmless TENANT, TENANT's
officers, agents and employees from and against any all claims, demands,
actions, causes of action, loss and liability resulting from or arising
from (a) the presence, disposal, release or threatened release of any
Hazardous Material, or dangerous medical waste product that is on, from or
affecting the soil, water, vegetation, buildings, personal property, persons,
animals or otherwise; (b) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to that
Hazardous Material; (c) any lawsuit brought or threatened, settlement
reached, or governmental order relating to that Hazardous Material; or (d)
any violation of the laws applicable thereto caused by the LANDLORD. LANDLORD
further warrants and represents that should LANDLORD or LANDLORD's guests,
customers or any other person leak, discharge, spill or dispose of any
hazardous substance on said property that it will assume total financial
responsibility for clean-up of said substance and further it will reimburse
TENANT for any damage TENANT might incur arising from said leak, discharge,
spill or disposal.
7.06: The provisions of this Section 7 shall be in addition to any other
obligations and liabilities TENANT or LANDLORD may have to TENANT or LANDLORD
at law or equity and shall survive the transactions contemplated herein and
shall survive the termination of the Lease.
8.01: MAINTENANCE OF LEASED PREMISES: Except as provided herein otherwise,
the interior of the rental area shall be maintained by the TENANT, including
but not limited to wall and floor coverings, painting, and regular normal
maintenance of heating, air conditioning, plumbing and doors.
8.02: Except as provided herein otherwise, the exterior of the structure
shall be maintained as follows:
Page 4 of 16
(a) LANDLORD shall be responsible for the walls, door and window frames
and seals, roof, guttering and utility connections.
(b) TENANT shall be responsible for the door glass, window glass, and
all exterior lighting.
8.03: Except as provided herein otherwise, mechanical, electrical, plumbing,
heating and air conditioning units including repair and replacement within
the Leased area shall be the responsibility of the TENANT.
8.04: Except as provided herein otherwise, maintenance and repair of grounds
shall be the responsibility of the TENANT, including but not limited to,
drive ways, parking areas, landscaping, sidewalks, lawn care and snow
removal.
8.05: Except as provided herein otherwise, TENANT shall be responsible for
any maintenance or repair not mentioned in this Lease. This is a net Lease,
the intent being the rent received by the LANDLORD shall be free of any
expense in connection with the care, maintenance and operation of the Leased
Premises.
8.06: Except as provided herein otherwise, TENANT shall be responsible for
the deductible portion of expense not covered by the casualty insurance
policy should a casualty occur. The deductible portion of said policy shall
be no more than One Thousand Dollars ($1000.00).
8.07: Except as provided herein otherwise, LANDLORD shall not be liable to
TENANT or any other person, including the guests, customers, invitees, and
employees of TENANT for any damage to their person or property caused by the
failure of the TENANT to properly maintain the Leased Premises, except if the
result of the LANDLORD's negligence or intentional acts or omission.
9.01: DESTRUCTION: If the Leased Premises should be damaged or destroyed by
fire or other cause to such an extent that the cost of repair and restoration
would be more than fifty percent (50%) of the amount it would cost to replace
the Leased Premises in their entirety at the time such damage or destructing
took place, then LANDLORD shall have the right to cancel this Lease by giving
TENANT notice of such election within thirty (30) days after the occurrence
of such damage or destruction and this Lease shall terminate as of fifteen
(15) days after the date such notice is given.
9.02: If LANDLORD fails to exercise this option to terminate then LANDLORD
shall at LANDLORD's expense promptly repair and restore the Leased Premises
to substantially the same condition they were in prior to the damage or
destruction. The LANDLORD shall at LANDLORD's expense promptly repair and
restore the Leased Premises to substantially the same condition it was in
prior to the damage or destruction, commencing such within thirty (30) days
after the occurrence of such damage or destruction, and diligently finishing
the same in not greater than one hundred twenty (120) days after the deadline
for said option expires.
9.03: If the Leased Premises should be damaged by fire or other causes to
such an extent that the costs of repair and restoration would be less than
fifty percent (50%) of the amount it would cost to replace the Leased
Premises in their entirety at the time such damage or destruction took place,
then this Lease shall not terminate and the LANDLORD shall at LANDLORD's
expense promptly repair and restore the Leased Premises to substantially the
same condition it was in prior to the damage or
Page 5 of 16
destruction, commencing such within thirty (30) days after the occurrence of
such damage or destruction, and diligently finishing the same in not greater
than one hundred twenty (120) days.
9.04: In the event the Leased Premises are damaged or destroyed, the rents
herein provided, or a fair and equitable portion thereof shall be abated
until such time as the Leased Premises are repaired and restored. The term of
this Lease shall be extended for a period equal to the period during which
there has been a complete abatement of rent.
9.05: The opinion of an architect or registered engineer appointed by
LANDLORD and TENANT as to the costs or repair, restoration or replacement
shall be controlling upon the parties. LANDLORD's obligation to restore or
repair does not include fixtures or improvements installed or owned by
TENANT. The provisions of this Section are not intended to limit, modify or
release TENANT from any liability it may have for damage or destruction.
10.01: CONDEMNATION: If the whole of the Leased Premises shall be condemned
or taken either permanently or temporarily for any public or quasi-public use
or purpose, under any statute or by right of eminent domain, or by right of
private purchase in lieu thereof, then and in that event, the term of this
Lease shall cease and terminate from the date of possession of the Leased
Premises by such condemning authority. In the event a portion only of the
Leased Premises or a portion of the Building shall be so taken (even though
the Leased Premises may not have been affected by the taking of some other
portion of the Building), either party may elect to terminate this Lease from
the date of title vesting and such proceeding or purchase, or LANDLORD may
elect to repair and restore, at LANDLORD's own expense, the portion not taken
and thereafter the rent shall be reduced proportionately (ie. based on the
ratio that the square feet of the Leased Premises immediately prior to such
condemnation bears to the square feet of the Leased Premises remaining
thereafter). If twenty five percent (25%) or more of the floor area of the
Leased Premises shall be so taken, TENANT may cancel and terminate this Lease
effective as of the date possession of such portion condemned shall be taken
by such condemning authority, provided that such option to cancel is
exercised within sixty (60) days of the receipt of notice by TENANT to the
effect that such condemnation exceeds twenty five percent (25%) of the floor
area of the Leased Premises. Both TENANT and LANDLORD shall cooperate with
one another in such condemnation and shall execute all documents required to
that end.
11.01: LIENS: TENANT agrees to pay promptly for any work contracted for by
TENANT or done for TENANT's account (or material furnished therefor) in, on
or about the Leased Premises. TENANT shall not permit or suffer any lien to
attach to the Leased Premises and shall promptly cause any such lien or
Statement of Intention to Hold a Mechanic's Lien or any other claim therefor,
to be released. If a Statement of Intention to hold a Mechanic's Lien or
other claim of a mechanic's lien is filed, LANDLORD, at LANDLORD's option,
may compel the prosecution of an action for pursuit or foreclosure of such
mechanic's lien filing by the lienor.
11.02: In the event TENANT contests any such claim, TENANT agrees to
indemnify LANDLORD and, if requested by LANDLORD, to deposit or escrow with
LANDLORD cash or surety bond in form and with a company satisfactory to
LANDLORD in an amount equal the amount of such contested claim. Any escrow
of cash pursuant to this provision shall be deposited in a separate
interest-bearing escrow account with the LANDLORD's attorney and not
commingled. Interest earned shall be at the highest rate reasonably
achievable and any such interest earned shall be paid to the TENANT when the
escrow funds are returned to TENANT upon TENANT's successful discharge of
such lien. Otherwise, said interest shall be paid to the LANDLORD. If
TENANT shall fail to cause such lien forthwith to be so discharged or bonded
after being notified of the filing thereof, then this Lease shall be deemed in
Page 6 of 16
default and in addition to any other right or remedy of LANDLORD, LANDLORD
may discharge the same by paying the amount claimed to be due, and the amount
so paid by LANDLORD together with LANDLORD's attorneys' fees and interest
therein at eighteen percent (18%) per annum or the highest annual interest
rate permitted under applicable law.
11.03: Nothing in this Lease shall be deemed or construed to constitute consent
to or request to any party for the performance of any labor or services, or the
furnishing of any materials for the improvement, alteration or repairing of the
Leased Premises; nor as giving TENANT the right of authority to contract for,
authorize or permit the performance of any labor or services or the furnishings
of any material that would permit the attaching of a valid Mechanic's Lien or
other lien right.
11.04: TENANT's obligation to observe and perform any of the provisions of this
Article 10 shall survive the expiration of the term hereof or the earlier
termination of this Lease. TENANT and LANDLORD shall immediately give the other
party written notice of the recording of any lien or other claim of and against
the Leased Premises in connection with any work done by or at the direction of
either party.
12.01: EVENTS OF DEFAULT BY TENANT: Any of the following shall be deemed an
Event of Default:
(a) The failure to pay any installment of rent when the same becomes due
and the failure continues for five (5) days after written notice
thereof is given to TENANT.
(b) TENANT's failure to perform or observe any other covenant, term or
condition of this Lease to be performed or observed by TENANT, and if
curable, the failure continues for fifteen (15) days after written
notice thereof is given to TENANT.
(c) Abandonment of the Leased Premises.
(d) Any petition is filed by or against TENANT in bankruptcy and not
dismissed within thirty days after said filing thereof, or TENANT
takes advantage of any debtor relief after the filing thereof under
any present or future law, whereby the Lease payment hereunder or any
part thereof is or is imposed to be reduced or deferred, or TENANT
becomes insolvent, or a receiver is appointed for a substantial part
of TENANTS assets.
13.01: LANDLORD'S REMEDIES: Upon the occurrence of any Event of Default,
LANDLORD may, at LANDLORD's option, in addition to any other remedy or right
LANDLORD has hereunder or by law: (1) Re-enter the Leased Premises, without
demand or notice, and resume possession by an action in law or equity or by
force or otherwise, and without being liable in trespass for any damages and
without terminating this Lease. LANDLORD may remove all persons and property
from the Leased Premises and such property may be removed and stored at the cost
of TENANT. (2) Terminate this Lease at any time upon the date specified in a
notice to TENANT. TENANT's liability for damages shall survive such termination.
Upon termination, such damages recoverable by LANDLORD from TENANT shall, at
LANDLORD's option, be either an amount equal to "Liquidated Damages" or an
amount equal to "Indemnity Payments".
13.02: "Liquidated Damages" means an amount equal to the excess of the
rentals provided for in this Lease which would have been payable hereunder by
TENANT, had this Lease not so terminated, for the period commencing with such
termination and ending with the date set for the expiration of the original term
granted, (hereinafter referred to as "Unexpired Term"). Said total Liquidated
Damages are
Page 7 of 16
due and pay immediately; provided however, the LANDLORD shall retain a duty
to mitigate LANDLORD's damages and accordingly, to the extent the LANDLORD
later recovers rentals from another within said original term of this Lease,
such rental as recovered shall be refunded and promptly reimbursed to TENANT.
13.03: "Indemnity Payments" means an amount equal to the rent and other
payments provided for in this Lease which would have become due and owing
thereunder from time to time during the Unexpired Term plus the cost and
expenses paid or incurred by LANDLORD from time to time in connection with:
(a) Obtaining possession of the Leased Premises;
(b) Removal and storage of TENANT's or other occupant's property;
(c) Care, maintenance and repair of the Leased Premises while vacant;
(d) Reletting the whole or any part of the Leased Premises;
(e) Repairing, altering, renovating, partitioning, enlarging,
remodeling or otherwise putting the Leased Premises, either
separately or as part of larger Leased Premises, into condition
acceptable to, and necessary to obtain new tenants; and
(f) Making all repairs, alterations and improvements required to be
made by TENANT hereunder and performing all covenants of the
TENANT relating to the condition of the Leased Premises, less the
rent and other payments, if any, actually collected and allocable
to the Leased Premises or to the portions thereof relet by
LANDLORD. TENANT shall on demand make Indemnity Payments monthly
and LANDLORD can xxx for all Indemnity Payments as they accrue;
provided however, the LANDLORD shall retain a duty to mitigate LANDLORD's
damages and accordingly, to the extent the LANDLORD later recovers rentals from
another within said original term of this Lease, such rental as recovered shall
be refunded and promptly reimbursed to TENANT.
14.01: EVENTS OF DEFAULT BY LANDLORD: Any of the following shall be deemed a
LANDLORD Event of Default:
(a) LANDLORD's failure to perform or preserve any covenant, term or
condition of this Lease to be performed or observed by the TENANT,
where such failure continues forth fifteen (15) days after written
notice thereof is give to the LANDLORD.
(b) Any petition that is filed by or against LANDLORD in bankruptcy
and is not dismissed within thirty (30) days after said filing
thereof, or LANDLORD takes advantage of any relief after the
filing thereof under any present or future law, whereby the lease
obligations, covenants, terms or condition imposed thereunder are
reduced or deferred, or LANDLORD becomes insolvent or a receiver
is appointed for a substantial part of LANDLORD's assets.
15.01: TENANT'S REMEDIES: Upon the occurrence of any LANDLORD Event of
Default, TENANT may, at TENANT's option, in addition to any other remedy or
right it has hereunder or by
Page 8 of 16
law, without being obligated and without waiving such rights, cure such
default and apply the cost of curing said default against the rent due under
this Lease or the purchase price as set forth under the option to purchase
granted herein.
16.01: ATTORNEY'S FEES: In the event of any arbitration or litigation
between the parties hereto involving this Lease or the respective rights of
the parties hereunder, the party who is unsuccessful in such arbitration or
litigation shall pay to the successful party reasonable attorney fees, court
costs and expenses of such arbitration or litigation incurred by such
successful party.
17.01: ACCESS BY LANDLORD TO LEASED PREMISES: LANDLORD, LANDLORD's Agents,
and LANDLORD's prospective tenants, purchasers or mortgages shall be
permitted to inspect and examine the Leased Premised at all reasonable times,
upon twenty-four (24) hours advance written notice, unless entry and
inspection is made necessary for the LANDLORD by an emergency, whereupon no
advance notice will be required of the LANDLORD. LANDLORD shall have the
right to make any repairs to the Leased Premises which LANDLORD may deem
necessary, but this provision shall not be construed to require LANDLORD to
make repairs except as is otherwise required hereby. For a period commencing
three (3) months prior to the expiration of the term of this Lease, LANDLORD
may maintain "For Rent/Sale" signs on the front or on any part of the Leased
Premises.
18.01: QUIET ENJOYMENT: If TENANT shall perform all of the covenants and
agreements herein provided to be performed on TENANT's part, TENANT shall, at
all times during the term, have the peaceable and quiet enjoyment of
possession of the Leased Premises without any manner of hindrance from
LANDLORD or any parties lawfully claiming under LANDLORD.
19.01: EXCULPATION: TENANT agrees that it shall look solely to the estate and
property of the LANDLORD in the Leased Premises and any tracts of land owned
by the LANDLORD in said Xxxxxxxxx Crossing Subdivision, for the collection of
any judgement requiring the payment of money by LANDLORD with respect to any
of the terms, covenants and conditions of this Lease to be observed and or
preformed by LANDLORD and no other property or assets of LANDLORD shall
become subject to levy, execution, attachment or other enforcement procedure
for the satisfaction of the remedies.
20.01: GENERAL AGREEMENT OF PARTIES: This Lease shall extend to and be
binding upon the heirs, personal representatives, successors and assigns of
the parties. This provision, however, shall not be construed to permit the
assignment of this Lease, except as may be permitted herein.
21.02: When applicable, use of the singular form of any work shall mean or
apply to the plural and the neuter form shall mean or apply to the feminine
or masculine. The captions and article numbers appearing in this Lease are
inserted only as a matter of convenience and are not intended to define,
limit, construe or describe the scope or intent of such provisions. No waiver
by TENANT or LANDLORD of any Event of Default shall be effective unless in
writing, nor operate as a waiver of any default or of the same default on a
future occasion.
22.01: NOTICES: All notices to be given under this Lease shall be in writing,
and shall be deemed to have been given and served when delivered in person,
by UPS, Federal Express (or similar overnight carrier), via facsimile
transmission, or by United States mail, postage pre-paid to the addressee at
the following addresses:
Page 9 of 16
TO LANDLORD: Attention: Xxxxxx Xxxxxxxx, Jr.
Xxxxxxxx, LLC.
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile Number: 000-000-0000
TO TENANT: Attention: Chief Financial Officer
Accuride Corporation
0000 Xxxxx Xxxx
X. X. Xxx 00
Xxxxxxxxx, Xxxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
COPY TO: Attention: G. Xxxxxxx Xxxxxxxxxx, Esq.
Kahn, Dees, Xxxxxxx & Xxxx, LLP
305 Fifth and Main Building
Page 10 of 16
P. O. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Facsimile Number (000) 000-0000
Any party may change its mailing address by serving written notice of such
change and of such new address upon the other party.
23.01: UTILITIES: The payment of the utilities shall be the responsibility of
the party indicated below:
Gas and oil to Leased area shall be paid by: TENANT
Electricity to Leased area shall be paid by: TENANT
Water to Leased area shall be paid by: TENANT
24.01: TAXES AND INSURANCE: The payment of real property taxes and fire,
casualty and extended coverage property insurance, including earthquake and
"all risk" liability coverage, which LANDLORD shall secure, in the coverage
amount of Four Million Five Hundred Thousand and 00/100th Dollars
($4,500,000.00) on the property, shall be the responsibility of the TENANT.
Said coverage shall be purchased through an underwriter agree upon by the
parties and both TENANT and LANDLORD shall be listed as named or additional
insured. This insurance shall not be subject to cancellation except after at
least thirty (30) days advance written notice to both parties. LANDLORD
shall pay the tax and insurance bills and shall immediately send proof of
payment to TENANT. TENANT shall within ten days of receipt of said proof
repay LANDLORD for said expense. Payment of tax bills shall be made in a
timely fashion that gives the TENANT the benefit of any available discounts.
TENANT shall be responsible for all tax and insurance bills received during
the term of the Lease, beginning with the first xxxx received after TENANT's
initial occupancy of the Leased Premises. TENANT shall be responsible for
maintaining TENANT's own insurance on TENANT's property, furniture and
fixtures, and TENANT improvements made to Leased Premises. Both the TENANT
and LANDLORD shall have the right to appeal or challenge any property tax
assessment with respect to the Leased Premises. The parties hereby covenant
and agree to cooperate with the other party in the event any such appeal or
challenge of the property tax assessment is raised in an effort to reduce the
property tax assessed for the Leased Premises.
25.01: RENEWAL OF LEASE: Upon the expiration of the initial term of this
Lease or the first renewal hereof, in the event that there is not a pending a
breach of this Lease, TENANT shall have the right to renew this Lease for two
(2) additional periods of five years each. For each renewal, thereafter the
rent shall be adjusted to reflect a 15% increase in the monthly lease amount.
TENANT shall give LANDLORD written notice 180 days in advance of any Lease
expiration of TENANT's intent to renew said Lease.
25.02: TENANT's failure to provide LANDLORD written notice of intent to renew
180 days prior to Lease expiration shall relieve LANDLORD of any and all
responsibility to renew TENANT's Lease.
26.01: INDEMNITY OF LANDLORD: TENANT shall indemnify and save harmless
LANDLORD against and from (i) any and all claims against LANDLORD of whatever
nature arising from any act, omission or negligence of TENANT, TENANT's
contractors, licensees, agents, servants, employees, invitees and/or visitors,
(ii) all claims against LANDLORD arising from any accident, injury or damage
whatsoever caused to any person or to property of any person and occurring
during this Lease in, around or about the Leased Premises, arising from any act,
omission or negligence of TENANT,
Page 11 of 16
TENANT's contractors, licensees, agents, servants, employees, invitees and/or
visitors, (iii) all claims against LANDLORD arising from any accident, injury
or damage occurring outside of the Leased Premised, but within or about the
Leased Premises and Building where such accident, injury or damage results or
is caused by an act of omission of TENANT, TENANT's contractors, licensees,
agents, servants, employees, invitees and/or visitors, and (iv) any breach,
violation or non-performance of any of the terms, covenants and conditions
contained in this Lease on the part of TENANT to be fulfilled, kept, observed
and performed. This indemnity and hold harmless covenant shall include
indemnity from and against any and all liability, fines, suits, demands,
costs and expenses (including attorneys' fees and disbursements) of any kind
or nature incurred in connection with any such claim or proceeding brought
thereon, and the defense thereof by the LANDLORD including attorneys fees.
This indemnity and hold harmless covenant shall survive the termination of
this Lease for acts or omissions alleged to have occurred during the Lease
term and for any period of time prior to the commencement of the Lease term
during which TENANT was given access to the Leased Premises.
27.01: INDEMNITY OF TENANT: LANDLORD shall indemnify and save harmless TENANT
against and from (i) any and all claims against TENANT of whatever nature
arising from any act, omission or negligence of LANDLORD, LANDLORD's
contractors, licensees, agents, servants, employees, invitees and/or
visitors, (ii) all claims against TENANT arising from any accident, injury or
damage whatsoever caused to any person or to property of any person and
occurring during this Lease in, around or about the Leased Premises, arising
from any act, omission or negligence of LANDLORD, LANDLORD's contractors,
licensees, agents, servants, employees, invitees and/or visitors, (iii) all
claims against TENANT arising from any accident, injury or damage occurring
outside of the Leased Premised, but within or about the Leased Premises and
Building where such accident, injury or damage results or is caused by an act
of omission of LANDLORD, LANDLORD's contractors, licensees, agents, servants,
employees, invitees and/or visitors, and (iv) any breach, violation or
non-performance of any of the terms, covenants and conditions contained in
this Lease on the part of LANDLORD to be fulfilled, kept, observed and
performed. This indemnity and hold harmless covenant shall include indemnity
from and against any and all liability, fines, suits, demands, costs and
expenses (including attorneys' fees and disbursements) of any kind or nature
incurred in connection with any such claim or proceeding brought thereon, and
the defense thereof by the TENANT including attorneys fees. This indemnity
and hold harmless covenant shall survive the termination of this Lease for
acts or omissions alleged to have occurred during the Lease term and for any
period of time prior to the commencement of the Lease term during which
LANDLORD was given access to the Leased Premises.
28.01: LIABILITY INSURANCE: The TENANT agrees to carry public liability
insurance with a company or companies qualified to engage in the insurance
business within the State of Indiana, wherein LANDLORD and TENANT shall be
named as parties insured and shall provide that the insurer may not cancel or
materially alter the coverage without ten (10) days prior written notice to
LANDLORD.
28.02: Said public liability insurance shall cover any and all liability
occurring on the Leased Premises or upon the public ways adjoining the Leased
Premises, and the combined single limit (bodily injury and property damage)
of said insurance shall not be less than One Million Dollars ($1,000,000.00)
and such minimal amounts of insurance shall not be changed without the prior
written consent of LANDLORD. The premiums for all of the aforesaid public
liability insurance shall be paid by TENANT and TENANT shall furnish LANDLORD
with certificates of such insurance and evidence that such policies are in
full force and effect and that the premiums are fully paid throughout the
term of this Lease.
Page 12 of 16
29.01: BILLBOARD REMOVAL AND RESTRICTIVE COVENANTS: The LANDLORD agrees to
cause, before the commencement of this Lease, the removal of the two (2)
billboards located along I-164 south of Lot 4 in the Xxxxxxxxx Crossing
Subdivision, and cause restrictive covenants running with the land to be
recorded barring all current and future titleholders from the erection of any
new billboards on Lots 4 through 14. "Billboards" as used in this provision
shall have the same meaning as defined under the Vanderburgh Zoning Code.
29.02: The LANDLORD agrees to cause, to the acceptance of TENANT'S legal
counsel, before December 1, 1998, restrictive covenants or obtain a first
right of refusal running with the land to be recorded restricting the use of
Lots 7, 8, 9, 13 and 14 of said Subdivision to uses limited to the following
category of uses:
- Office buildings;
- Exercise or sports clubs; or
- Mobil three-star or three diamond or greater rated hotels.
In the event any such acceptable use of said Subdivision lots is deemed at the
TENANT'S discretion to be unappealing to the Leased Premises, LANDLORD agrees it
will cause to be planted and maintained a staggered double row of not less than
three-inch caliber white pine trees along the boundary line bordering such
offensive use.
30.01: CONSTRUCTION OF LEASED PREMISES: The LANDLORD shall, on or before
November 1, 1999, construct the Leased Premises according to the Work Letter
Agreement which is attached hereto as Exhibit "C" and made a part hereof.
Notwithstanding anything herein to the contrary, all of the improvements
constructed pursuant to said Work Agreement shall be fully warranted against
any defects for a period of two (2) years from the completion of said
construction. Notwithstanding any provision herein to the contrary, the
LANDLORD warrants that the Leased Premises meet the requirements of the
Americans With Disabilities Act for all portion of the Lease Premises,
LANDLORD has constructed throughout the term of this Lease. The LANDLORD
shall purchase and maintain throughout the term of any construction of the
Leased Premises, Builder's Risk insurance coverage with an insurance carrier
and liability limitations and deductibles acceptable to both parties.
31.01: EXPANSION OF PREMISES: The LANDLORD agrees that at the TENANT's
option, at any time during the first seven (7) years of the term of this
Lease, elect to have the Leased Premises expanded by not less than ten
thousand (10,000) square feet and not more than fifteen thousand (15,000)
square feet. Upon such election by the TENANT, the LANDLORD shall diligently
complete such expansion within eight (8) months. Such expansion shall be
performed by the LANDLORD consistent with the Work Letter Agreement and other
terms and conditions contained herein, including but not limited to the
Construction of Leased Premises clause set forth in this Lease. The other
terms and conditions of this Lease, including the per square foot rental rate
and per square foot option purchase price, shall remain the same for such
expanded premises as for the Leased Premises described in this Lease;
provided however, the term of this Lease and all renewal rights set forth
hereunder shall be extended out for a period of five (5) years from the date
of completion of such expansion.
32.01: APPLICABLE LAW: This Lease shall be interpreted and enforced
according to laws of the State of Indiana.
Page 13 of 16
33.01: OPTION TO PURCHASE: LANDLORD grants to TENANT the option to purchase
the Lease Premises upon the terms and conditions set forth in the attached
Exhibit "D" which is attached hereto and made a part hereof. The TENANT's
election to exercise this option shall be evidenced by written notice
delivered to the LANDLORD, not sooner than the ninth (9th) anniversary, but
before the tenth (10th) anniversary, of the commencement of this Lease and
prior to the expiration of this Lease Term. The TENANT's right to exercise
the Option to Purchase herein granted is conditioned upon the TENANT having
paid all rent due hereunder current through the date of exercising this
Option.
34.01: ARBITRATION: Any and all disputes arising relating to the Agreement
shall be settled by binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and any judgment
or award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Notwithstanding said Rules, any arbitration hearing to
take place hereunder shall be conducted in Evansville, Indiana, before one
(1) arbitrator who shall be an attorney from Indianapolis, Indiana, and who
has substantial experience in real estate law issues. However, neither party
shall institute an arbitration, or any other proceeding to resolve such
disputes between the parties before that party has sought to resolve disputes
through direct negotiation with the other party. If disputes are not
resolved within three (3) weeks after a demand for direct negotiation, the
parties shall attempt to resolve disputes through mediation conducted in
Evansville, Indiana. If the parties do not agree on mediator within ten (10)
days, either party may request the American Arbitration Association to
appoint a mediator who shall be an attorney from Indianapolis, Indiana, and
who has substantial experience in real estate law issues. If the mediator is
unable to facilitate a settlement of disputes within forty-five (45) days,
the mediator shall issue a written statement to the parties to that effect
and the aggrieved party may then seek relief through arbitration as provided
above. The fees and expenses of the mediator shall be split and paid equally
by each of the parties. In the event of any arbitration between the parties
hereto involving this Agreement or the respective rights of the parties
hereunder, the party who does not prevail in such arbitration shall pay to
the prevailing party reasonable attorneys' fees, costs and expenses of such
arbitration incurred by the prevailing party. Each party hereby consents to
a single, consolidated arbitration proceeding of multiple claims, or claims
involving more than two (2) parties. Either party may apply to any court of
competent jurisdiction for injunctive relief or other interim measures in aid
of the arbitration proceedings or to enforce the arbitration award, but not
otherwise, and the non-prevailing party shall be responsible for all costs
thereof, including but not limited to attorney fees. Any such application to
a court shall not be deemed incompatible or a waiver of this section. The
arbitrator shall be required to make written findings of fact and conclusions
of law to support their award. Notwithstanding anything to the contrary in
the Commercial Arbitration Rules and supplementary procedures, the arbitrator
shall not be authorized or empowered to award punitive damages or damages in
excess of the amounts set forth within this Agreement, and the parties
expressly waive any claim to such damages.
35.01: RECORDING: The LANDLORD and TENANT hereby agree that prior to, at the
commencement of, or during the term of this Lease, at the request of the
other party, they will execute, acknowledge and deliver a Short Form Lease
and the Option to Purchase contained herein for recording in the Office of
the Recorder of Vanderburgh County, Indiana. Recording fees and any other
costs associated therein shall be paid by the party requesting such Short
Form Lease.
36.01: TITLE INSURANCE: The LANDLORD shall furnish to TENANT a Commitment
for Title Insurance from Evansville Titles Corp., Lawyers Title Insurance
Company, or Ticor Title Insurance Company, insuring the TENANT's leasehold
interest to the satisfaction of TENANT's legal counsel. To the extent there
are subrogation of mortgages or other non-disturbance agreements that must be
Page 14 of 16
procured in order to affect clean title for purposes of this Lease and the
Option to Purchase contained herein, the LANDLORD shall be responsible for
such expenses and fees attributable to assure priority and marketability of
the title thereto. The LANDLORD shall pay the portion of the title insurance
cost of the service which is equivalent to the abstract extension with TENANT
to pay the balance of the title insurance costs. Such Commitment for Title
Insurance shall be secured promptly upon execution of this Lease. Should
LANDLORD be unable to convey marketable title as required by this Lease, and
the defect or defects are not waived by TENANT, LANDLORD's sole obligation
shall be to return promptly return any sums expended by TENANT relating to
this Lease, providing however, that TENANT shall have the right to pay and
satisfy any existing liens not otherwise assumed by LANDLORD and deduct the
same from the purchase price. If the LANDLORD refuses to perform as
required, TENANT may pursue all available legal and equitable remedies to
cure such title defects, if the TENANT chooses not to terminate this Lease.
37.01: FORCE MAJEURE: This Lease and terms and conditions hereunder shall in
no way be affected, impaired or excused because either party is unable to
fulfill any of its obligations under this Lease, or to supply, or is delayed
in supplying, any service, expressly or impliedly to be supplied hereunder,
if either party is prevented or delayed from doing so by reason of strikes or
labor troubles or any outside cause or force majeure of any kind whatsoever,
including, but not limited to, governmental preemption in connection with a
national emergency, or by reason of any rule, order or regulation of any
department or subdivision of any governmental agency, or by reason of supply
and demand which have been affected or are affected war or other emergency;
provided however, rent as provided for under this Lease shall appropriately
xxxxx during such period of delay.
37.01: MISCELLANEOUS: All time limits stated in this Lease are of the
essence of this Contract and essential to the performance hereof. In the
event that any of the provisions of this Lease shall be held by a court or
other tribunal of competent jurisdiction to be unenforceable, such provision
shall be enforced to the fullest extent permissible and the remaining portion
of this Lease shall remain in full force and effect. This Lease may be
executed simultaneously in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument. The recitals set forth in the above preamble are
incorporated herein by this reference and made a part of this Agreement. All
headings set forth herein are included for the convenience of reference only
and shall not affect the interpretation hereof, nor shall any weight or value
be given to the relative position of any part or provision hereof in relation
to any other provision in determining such construction. This instrument is
the final agreement, contains the entire, complete and exclusive agreement
between the parties concerning the lease of the Real Estate, and supersedes
all prior oral or written understandings, agreements or contracts, formal or
informal, between the parties. THIS PROVISION, AND EACH AND EVERY OTHER
PROVISION OF THIS LEASE MAY NOT UNDER ANY CIRCUMSTANCES BE MODIFIED, CHANGED,
AMENDED OR PROVISIONS HEREUNDER WAIVED VERBALLY, BUT MAY ONLY BE MODIFIED,
CHANGED, AMENDED OR WAIVED BY A LEASE IN WRITING EXECUTED BY ALL PARTIES
HERETO.
Page 15 of 16
IN WITNESS WHEREOF, LANDLORD and TENANT have executed this Lease on this
26th day of October, 1998, and if this Lease is executed in counterparts,
each shall be deemed an original.
ACCURIDE CORPORATION XXXXXXXX, LLC
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
-------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx, President Xxxxxx X. Xxxxxxxx, Xx.
and Chief Executive Officer
Page 16 of 16
TABLE OF CONTENTS
1.01: MONTHLY RENTAL AMOUNTS AND CONDITIONS PRECEDENT: . . . . . . . . . . . . .1
2.01: TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
3.01: USE, COMPLIANCE WITH LAWS, SIGNS . . . . . . . . . . . . . . . . . . . . .2
4.01: SURRENDER AND HOLDOVER . . . . . . . . . . . . . . . . . . . . . . . . . .2
5.01: ASSIGNMENT AND SUBLETTING. . . . . . . . . . . . . . . . . . . . . . . . .2
6.01: ALTERATION OF LEASED PREMISES. . . . . . . . . . . . . . . . . . . . . . .3
7.01: HAZARDOUS MATERIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
8.01: MAINTENANCE OF LEASED PREMISES . . . . . . . . . . . . . . . . . . . . . .5
9.01: DESTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
10.01: CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
11.01: LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
12.01: EVENTS OF DEFAULT BY TENANT. . . . . . . . . . . . . . . . . . . . . . . .7
13.01: LANDLORD'S REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
14.01: EVENTS OF DEFAULT BY LANDLORD. . . . . . . . . . . . . . . . . . . . . . .9
15.01: TENANT'S REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
16.01: ATTORNEY'S FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
17.01: ACCESS BY LANDLORD TO LEASED PREMISES. . . . . . . . . . . . . . . . . . .9
18.01: QUIET ENJOYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
19.01: EXCULPATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
20.01: GENERAL AGREEMENT OF PARTIES . . . . . . . . . . . . . . . . . . . . . . 10
22.01: NOTICES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
23.01: UTILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
TABLE OF CONTENTS
(CONTINUED)
24.01: TAXES AND INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
25.01: RENEWAL OF LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
26.01: INDEMNITY OF LANDLORD. . . . . . . . . . . . . . . . . . . . . . . . . . 11
27.01: INDEMNITY OF TENANT. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
28.01: LIABILITY INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 12
29.01: BILLBOARD REMOVAL AND RESTRICTIVE COVENANTS. . . . . . . . . . . . . . . 12
30.01: CONSTRUCTION OF LEASED PREMISES. . . . . . . . . . . . . . . . . . . . . 13
31.01: EXPANSION OF PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . 13
32.01: APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
33.01: OPTION TO PURCHASE . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
34.01: ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
35.01: RECORDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
36.01: TITLE INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
37.01: FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
37.01: MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
EXHIBIT "A" LEGAL DESCRIPTION . . . . . . . . . . . . . . . . . . . . . . ATTACHED
EXHIBIT "B" DRAWING OF BUILDING AND SITE PLAN . . . . . . . . . . . . . . ATTACHED
EXHIBIT "C" WORK LETTER AGREEMENT . . . . . . . . . . . . . . . . . . . . ATTACHED
EXHIBIT "D" PURCHASE OPTION TERMS . . . . . . . . . . . . . . . . . . . . ATTACHED
LEASE
BETWEEN XXXXXXXX, LLC.
AND
ACCURIDE CORPORATION
XXXXXX XXXXXX XX
XXXXXXXXX XXXXXXXX
XXXXXXXXXX, XXXXXXX
