Exhibit 10.15
LEASE
By and Between
XXXXX L.L.C.,
as Landlord,
and
DELCO REMY AMERICA, INC.,
as Tenant
Dated: February 9, 1995
TABLE OF CONTENTS
Page
ARTICLE I. DEMISED PREMISES AND XXXXXXXX ESTATES ........................ 1
Section 1.01. Demised Premises. ............................................ 1
ARTICLE II. COMPLIANCE WITH PLANS AND SPECIFICATIONS ..................... 1
Section 2.01. Landlord to Construct Building per Plans and Specifications.... 1
Section 2.02. Commencement of Construction. ................................ 2
Section 2.03. Tenant's Right to Make Changes. .............................. 2
Section 2.04. Commencement on Specified Dates. ............................. 3
Section 2.05. Time of Access. .............................................. 3
Section 2.06. Tenant Entry. ................................................ 3
Section 2.07. Construction of the Demised Premises. ........................ 3
ARTICLE III. TERM OF LEASE ................................................ 4
Section 3.01. Demised Term. ................................................ 4
Section 3.02. Lease Year. .................................................. 5
Section 3.03. Holding Over. ................................................ 5
Section 3.04. Option to Extend the Term. ................................... 5
ARTICLE IV. RENTAL ....................................................... 5
Section 4.01. Minimum Base Rent. ........................................... 5
Section 4.02. Additional Rent. ............................................. 6
Section 4.03. Payments. .................................................... 6
Section 4.04. Past Due Payments. ........................................... 6
ARTICLE V. OCCUPANCY AND USE OF DEMISED PREMISES ........................ 6
Section 5.01. Occupancy and Type of Use. ................................... 6
Section 5.02. Lawful Use and No Waste, Annoyance or Nuisance. .............. 7
ARTICLE VI. ASSIGNMENT AND SUBLETTING .................................... 8
Section 6.01. Assignment and Subletting. ................................... 8
Section 6.02. Expense. ..................................................... 8
Section 6.03. Non-Release. ................................................. 9
ARTICLE VII. UTILITY SERVICES ............................................. 9
Section 7.01. Payment. ..................................................... 9
Section 7.02. Suspension of Services. ................................... 9
ARTICLE VII. REPAIRS AND MAINTENANCE ..................................... 10
Section 8.01. Landlord's Obligation. .................................... 10
Section 8.02. Tenant's Obligation. ...................................... 10
Section 8.03. Remodeling. ............................................... 10
Section 8.04. No Lien Clause. ........................................... 11
ARTICLE IX. INSURANCE AND INDEMNIFICATION AND WAIVER OF CLAIMS ........... 11
Section 9.01. Tenant's Insurance. ....................................... 11
Section 9.02. Insurance to be Furnished by Landlord. .................... 12
Section 9.03. Mutual Indemnifications. .................................. 12
Section 9.04. Waiver of Subrogation. .................................... 12
ARTICLE X. DAMAGE TO DEMISED PREMISES .................................... 13
Section 10.01. Damage to Demised Premises. ............................... 13
ARTICLE XI. EMINENT DOMAIN ............................................... 13
Section 11.01. Condemnation of Demised Premises. ......................... 13
Section 11.02. Condemnation Award. ....................................... 14
ARTICLE XII. SIGNS ....................................................... 14
Section 12.01. Consent to Signs. ......................................... 14
ARTICLE XIII. TAXES ...................................................... 14
Section 13.01. Real Estate Taxes and Assessments and Payment by Tenant. .. 14
ARTICLE XIV. INSOLVENCY .................................................. 15
Section 14.01. Insolvency. ............................................... 15
ARTICLE XV. DEFAULT ...................................................... 15
Section 15.01. Rights on Tenant's Default. ............................... 15
Section 15.02. Default of Landlord. ...................................... 16
Section 15.03. Status of Landlord - Tenant. .............................. 16
Section 15.04. Advances. ................................................. 17
Section 15.05. Emergency Repairs. ........................................ 17
ARTICLE XVI. MISCELLANEOUS ............................................... 17
Section 16.01. Waivers. .................................................. 17
Section 16.02. Remedies Cumulative. ...................................... 17
Section 16.03. Subordination. ............................................ 17
Section 16.04. Notices and Certificates. ................................. 18
Section 16.05. Relationship of Parties. .................................. 18
Section 16.06. Construction. ............................................. 18
Section 16.07. Law of Indiana. ........................................... 18
Section 16.08. Costs. .................................................... 18
Section 16.09. Lease Memorandum. ......................................... 18
Section 16.10. Force Majeure. ............................................ 19
Section 16.11. Hazardous Materials and Environmental Requirements. ....... 19
Section 16.12. Complete Agreement. ....................................... 19
Section 16.13. Successors in Interest. ................................... 19
Section 16.14. Exclusions. ............................................... 20
Section 16.15. Americans with Disabilities Act. .......................... 20
Section 16.16. Termination Requirements. ................................. 21
Section 16.17. Address of Notices. ....................................... 21
Section 16.18. Warranties and Representations. ........................... 21
ARTICLE XVII. GENERAL PROVISIONS ......................................... 23
Section 17.1. Remedies Cumulative - Non-Waiver. .......................... 23
Section 17.2. Invalidity. ................................................ 23
Section 17.3. Consents and Approvals. .................................... 23
Section 17.4. Agreement Binding on Successors. ........................... 23
Section 17.5. Estoppel Certificate. ...................................... 23
LEASE
-----
THIS LEASE, executed this _____________ day of _________________, 1995, by
and between XXXXX L.L.C. with its principal office at 0000 Xxxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx 00000 ("Landlord"), and DELCO REMY AMERICA, INC. ("Tenant"),
whose mailing address is 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000,
WITNESSETH THAT, in consideration of the mutual covenants hereinafter contained,
and each act performed hereunder by either of the parties, Landlord and Tenant
agree as follows:
ARTICLE I.
DEMISED PREMISES AND XXXXXXXX ESTATES
-------------------------------------
Section 1.01. Demised Premises. Landlord hereby lets and demises to Tenant,
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and Tenant hereby leases from Landlord certain real estate in Madison County,
Indiana, more particularly described as Lot 3 of the real property described on
the attached Exhibit A, which exhibit is attached hereto and by reference is
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made a part hereof (which real estate is referred to herein as the "Land"),
together with a certain building (the "Building") and other improvements to be
constructed thereon as hereinafter provided. The Land, Building and other
improvements are referred to herein collectively as the "Demised Premises", and
are located at ________________________, Xxxxxxxx, Xxxxxxx 00000. The Building
will consist of approximately fourteen thousand seven hundred square feet
(14,700). The Land consists of approximately two (2) acres located in the
development known as "Xxxxxxxx Estates", which development is shown on
Exhibit B.
---------
ARTICLE II.
COMPLIANCE WITH PLANS AND SPECIFICATIONS
-----------------------------------------
Section 2.01. Landlord to Construct Building per Plans and Specifications.
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Landlord agrees to construct on the Demised Premises, at its sole cost and
expense, a first-class building in a good and workmanlike manner and in
compliance with all applicable building, zoning, and environmental regulations
and restrictive covenants of record. Landlord shall use its best efforts to
provide that any and all warranties that Landlord is entitled to under its
construction contract will also run in favor of Tenant. The Building shall be
constructed in accordance with final plans and specifications to be prepared by
X.X. Xxxxxxxxxx and Associates, Inc., a copy of such plans and specifications to
be approved by the parties hereto as identified by the initials of an officer of
Landlord and an officer of Tenant (the "Plans and Specifications"). The
respective parties have agreed that Landlord shall substantially complete and
have ready for occupancy the Building and other improvements on or before
September 1, 1995.
Attached hereto as Exhibit C are preliminary drawings of the Building.
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Landlord shall deliver to Tenant for review and approval, final plans and
specifications on or before fifteen (15) days after the execution hereof by the
latter of Landlord or Tenant, prepared by X.X.
Xxxxxxxxxx and Associates, Inc., which plans and specifications shall include
all of the improvements to be constructed by Landlord (including, but not
limited to, the Building, parking lots and driveways, bringing utilities to the
Demised Premises). Tenant shall have fifteen (15) days after receipt of delivery
of the same to approve or request revisions to said plans and specifications.
Landlord shall have any revisions requested by Tenant made within five (5) days
after notice thereof from Tenant, and provide Tenant proposed final Plans and
Specifications for review and approval. The foregoing procedure shall then be
applicable with such revised Plans and Specifications. If final Plans and
Specifications are not agreed to by both parties within sixty (60) days from
execution of this Lease by the latter of Landlord or Tenant, either party may
terminate this Lease by written notice to the other within ten (10) days of the
expiration of such sixty (60) day period, and neither party shall then have any
further liability hereunder. After approving the same, said plans and
specifications shall be identified by the initials of each party and the
approved plans and specifications shall be attached hereto and made a part
hereof as Exhibit C, and shall replace the drawings currently attached as
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Exhibit C.
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No modification shall be made in the Plans and Specifications without
the prior written consent of Tenant. Landlord, in constructing the Building,
will use quality materials and comply with all federal, state, and municipal
laws, rules, and regulations of any governmental agencies having jurisdiction of
the Demised Premises. Any necessary substitution of materials because of lack or
shortage of specified materials will be immediately submitted to Tenant, and
Tenant shall thereupon approve these substitutions, provided they do not alter
the quality of the Building or cause delay in completing the Building.
Section 2.02. Commencement of Construction. Landlord shall begin
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construction of the Building within thirty (30) days after the latter to occur
of (i) execution of this Lease by the latter of Landlord and Tenant, and (ii)
receipt by Landlord of all permits required for the construction of the Building
and related improvements. If Landlord has not received all required permits
within sixty (60) days from the date of execution hereof by Landlord, Tenant may
terminate this Lease and any time thereafter, provided at the time of such
termination all of such permits have not been received.
Section 2.03. Tenant's Right to Make Changes. Tenant may at any time,
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by written order, make changes within the general scope of this Lease and the
plans and specifications in any one or more of the following:
(a) Specifications
(b) Work or services
(c) Amount of space
(d) Facilities or space layout
If any such change causes an increase or decrease in Landlord's cost of, or the
time required for, performance under this Lease, the parties shall modify the
Lease by making an equitable adjustment in the rental rate, making a lump sum
price adjustment, or revising the delivery schedule.
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No services or work for which an additional cost or fee will be
charged by Landlord will be furnished without the prior written authorization of
Tenant or a designated representative of Tenant.
Section 2.04. Commencement on Specified Dates. Anything to the
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contrary notwithstanding, if Landlord shall fail to commence construction within
thirty (30) days after the date of execution of this Lease by the latter of
Landlord and Tenant, Tenant may terminate this Lease without any liability.
Section 2.05. Time of Access. Anything herein to the contrary
------------ --------------
notwithstanding, Tenant shall have a period of not less than sixty (60) days
before the date that the Demised Premises shall be deemed actually ready for
occupancy and before the commencement of the payment of Rent during which period
Tenant shall have the privilege of proceeding with any work it wants to perform
in the Demised Premises. The period of sixty (60) days is to be measured from
the date that the Demised Premises are suitable for the performance of said work
by Tenant, and Landlord has so notified Tenant thereof. If Tenant does not
regard the Demised Premises to be suitable for the performance of its work on
the receipt of such notice from Landlord, then it shall, within seven (7)
business days after receipt thereof, notify Landlord specifying the particulars
with respect to which the Demised Premises are not suitable for such work.
Such work performed by Tenant may be performed concurrently with the
work to be performed by Landlord, and each party agrees not to interrupt, delay,
or prevent the work to be performed by the other. Landlord shall provide
temporary light, heat, and power during regular working hours from Monday
through Friday for Tenant's use as required during the construction of the
Building and finishing of the Demised Premises in such amounts and at such times
as Landlord in its discretion may reasonably determine and shall also provide
protection of the Demised Premises from the elements during the period such work
is in process.
Section 2.06. Tenant Entry. Tenant shall have the right to enter upon
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the Demised Premises during the course of Landlord's construction for the
purpose of inspection, making measurements, and doing whatever may be
appropriate to prepare the Demised Premises for Tenant's occupation, provided
such entry shall not substantially interfere with Landlord's work. No such entry
shall be deemed an acceptance of possession or waiver of any rights of Tenant in
the event of a failure on the part of Landlord to deliver possession at the time
and in the condition herein required.
Section 2.07. Construction of the Demised Premises. Landlord shall
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apply for and obtain, at its sole cost and expense, all permits, licenses,
approvals and certificates necessary for the construction of the Building and
for the occupancy thereof by Tenant. Landlord represents that the Demised
Premises shall be constructed, and when completed shall be in compliance with
all local, state and federal laws, rules, orders, regulations and ordinances,
the Plans and Specifications and the Declaration of Development Standards set
forth as Exhibit E attached hereto.
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The Demised Premises shall be deemed to be substantially completed at
such time as (i) Landlord shall certify in writing to Tenant that said Demised
Premises have been completed in substantial accordance with the Plans and
Specifications (subject only to minor punch list items to be mutually agreed to
and identified by Tenant and Landlord during a joint inspection of the Demised
Premises prior to substantial completion, the completion of which will not
materially affect Tenant's use and occupancy of the Demised Premises), (ii)
Landlord shall have obtained all necessary governmental approvals and
inspections, that all systems are fully operational, and that sufficient
utilities are available to service the Demised Premises and are connected to
mains and all meters are set and activated, and (iii) a licensed architect or
engineer in good standing in the locality where the Demised Premises are located
shall certify in writing to Tenant pursuant to and in accordance with form
AIA-G704 as to those same matters in (i) and (ii) immediately preceding. At such
time as the last of the foregoing requirements shall have been satisfied,
Landlord shall deliver possession of the Demised Premises to Tenant. The date
upon which the Demised Premises are substantially complete is herein called the
"Completion Date". All punch list items shall be completed by Landlord within
thirty (30) days of the Completion Date, provided, however, if such punchlist
items cannot be completed within such thirty (30) day period, Landlord shall not
be in default hereunder if Landlord commences to complete such punchlist items
within such thirty (30) day period and diligently pursues it to completion.
In the event the Demised Premises shall not be substantially completed
and ready for Tenant's occupancy on or before September 15, 1995, Tenant shall
receive a per diem abatement of Rent equal to four (4) days for each one (1) day
of delay that the Demised Premises are not substantially completed.
Landlord hereby warrants for a period of one (1) year from the
Completion Date, the Demised Premises against defects in materials and
workmanship, routine maintenance and ordinary wear and tear excepted. Upon final
completion of the Demised Premises, Landlord shall deliver to Tenant copies of
all warranties and guarantees relating to the Demised Premises and any and all
systems contained therein. Such warranties and guarantees shall include those
relating to the roof, dock levelers and the heating, ventilating and air
conditioning compressor(s). To the extent permitted by such warranties and
guarantees, Landlord shall assign the same to Tenant. To the extent not so
permitted, Landlord shall afford to Tenant the benefit of and right to enforce
the same in Landlord's name.
ARTICLE III.
TERM OF LEASE
-------------
Section 3.01. Demised Term. The "Initial Term" of this Lease and
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Tenant's obligation to pay Rent (as hereinafter defined) shall commence on the
Completion Date and shall end fifteen (15) years following the first day of the
first Lease Year (as hereinafter defined).
Landlord and Tenant may enforce and Landlord and Tenant agree to be
bound by the terms and conditions of this Lease from the date of execution
hereof. Within thirty (30) days
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of the Completion Date the parties shall sign Exhibit D attached hereto setting
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forth the exact agreed Completion Date.
Section 3.02. Lease Year. Each "Lease Year" shall consist of twelve
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(12) months. The first "Lease Year" shall commence on the first day of the first
calendar month following the Completion Date, unless the Completion Date is on
the first day of a month in which case the first Lease Year shall commence on
such Completion Date. Each subsequent Lease Year shall commence on the
anniversary date of the first day of the first Lease Year.
Section 3.03. Holding Over. In the event Tenant remains in possession
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of the Demised Premises after the expiration of the Initial Term (unless an
option to extend has been exercised in accordance with Section 3.04) and without
the execution of a new lease, it shall be deemed to be occupying the Demised
Premises as a tenant from month to month, subject to all conditions, provisions
and obligations of this Lease insofar as the same are applicable to a month to
month tenancy, with the exception of the Minimum Base Rent (as hereinafter
defined) which shall be one and one-quarter (1 1/4) times the Minimum Base Rent
(on a monthly basis) of the last preceding year for the first month and one and
one-half (1 1/2) times the Minimum Base Rent (on a monthly basis) for each month
thereafter. However, this provision only establishes Landlord's liquidated
damages for any such holdover and this provision does not give the Tenant the
right to so continue and Landlord may file an action for possession (but not
damages) of the Demised Premises.
Section 3.04. Option to Extend the Term. Landlord grants to Tenant
------- ---- -------------------------
options to renew this Lease for six (6) separate but consecutive five (5) year
terms. In order to exercise any such option the Tenant must be in full
compliance with the terms of the Lease and must notify Landlord in writing at
least one hundred eighty (180) days prior to the expiration of the then current
term. The rates for the option periods are set forth on Schedule I attached
----------
hereto and made a part hereof. Tenant shall pay full Additional Rent (as
described in Section 4.02) during any extension period. The Initial Term and any
extended term may be referred to herein as the "Demised Term".
ARTICLE IV.
RENTAL
------
Section 4.01. Minimum Base Rent. Commencing on the Completion Date,
------------ -----------------
Tenant shall pay to Landlord throughout the Initial Term an annual rental (the
"Minimum Base Rent") at the rate set forth in Schedule I attached hereto and
----------
made a part hereof.
Minimum Base Rent shall be paid monthly in advance in an amount equal
to one-twelfth (1/12) of the annual Minimum Base Rent. In the event the Initial
Term shall commence on a date other than the first day of a calendar month,
Tenant shall within five (5) days of the Completion Date pay Minimum Base Rent
from the Completion Date to the end of the calendar
- 5 -
month in which the Completion Date occurs on a prorated basis. Thereafter,
Minimum Base Rent shall be paid in advance on or before the first day of each
calendar month.
Section 4.02. Additional Rent. During the Lease, the Tenant shall pay
------------ ---------------
Landlord, as "Additional Rent", the cost paid by Landlord pursuant to a service
contract which provides upkeep and maintenance of the Building, parking area,
driveways, lawns and landscaping on the Demised Premises. Tenant shall have the
right and opportunity to review and approve such service contract and the party
providing such service, which approvals may be granted or withheld in Tenant's
sole and absolute discretion. To the extent such service contract covers
property and facilities in addition to the Building and Demised Premises, such
costs thereunder shall be equitably pro-rated. No markup or fee shall be charged
by Landlord in connection with such service contract. Landlord shall obtain at
least three (3) bids for such service contract. In the event the lowest bidder
is an entity or individual related or affiliated with Landlord, Tenant shall
have the right to consent to such service contract, which consent may be granted
or withheld in Tenant's sole and absolute discretion. In the event any such
service contract is terminated or expires, Landlord shall immediately replace
such service contract with a company and agreement approved by Tenant, and
during any lapse of the service contract, Landlord shall provide the required
services at a cost not to exceed that of the terminated, or expired contract.
Such amounts shall be paid on a monthly basis within fifteen (15) days of
receipt of an invoice therefor from Landlord. Minimum Base Rent and Additional
Rent under this Section 4.02 are sometimes referred to herein together as
"Rent". The service contract described in this Section 4.02 may be referred to
hereinafter as the "Service Contract".
Section 4.03. Payments. Minimum Base Rent and Additional Rent payments
------------ --------
are to be made payable to Landlord and mailed to Landlord, c/o Xxxxxxx Xxxxxxxx,
0000 Xxxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000, unless or otherwise as designated by
Landlord from time to time in a written instrument signed by Landlord delivered
to Tenant.
Section 4.04. Past Due Payments. If (i) any monthly installment of
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Minimum Base Rent remains unpaid five (5) business days after the date due, or
(ii) if any other payment required under this Lease is overdue and thereafter
not paid within ten (10) days of written notice from Landlord, and in the event
of either (i) or (ii), a service charge equal to Fifty Dollars ($50.00) plus One
Percent (1%) of the amount overdue may be charged by Landlord for each calendar
month during which it is late for the purpose of defraying the additional
expenses incident to the handling of such overdue amount. Remedies of Landlord
herein are in addition to and not to limit other rights of Landlord for default
by Tenant set forth in Article XV below.
ARTICLE V.
OCCUPANCY AND USE OF DEMISED PREMISES
-------------------------------------
Section 5.01. Occupancy and Type of Use. The Demised Premises may be
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used and occupied by Tenant for offices, laboratories, manufacturing, testing,
warehousing and storage, related operations or services, and for no other use
except upon written consent of Landlord.
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Section 5.02. Lawful Use and No Waste. Annoyance or Nuisance. Tenant
------------ ----------------------------------------------
(i) shall not use the Demised Premises for an unlawful purpose or act; (ii)
shall not commit waste or damage to the Demised Premises except normal wear and
tear; (iii) shall comply with and obey all laws, regulations, or orders of any
governmental authority or agency having jurisdiction over the Demised Premises;
(iv) shall comply with the Declaration of Development Standards attached as
Exhibit E hereto (Landlord shall not consent to the modification or amendment of
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the Declaration of Development Standards without Tenant's prior written
consent), and (v) subject to the actions taken pursuant to the Service Contract,
shall comply with the following:
(a) No aerial, loudspeaker, antennae, sign, or other
projection, or sound amplifier shall be erected on the roof or
exterior walls of the Demised Premises, or on other areas of the
Building without the prior written consent of Landlord. Tenant shall
be permitted to place a satellite receiving dish in a location
designated by Landlord on the ground, and if the same is not
available, on the roof of the Building.
(b) No loudspeakers, television, phonographs, jukeboxes,
radios or other devices shall be used in a manner so as to be heard
other than by persons who are within the Demised Premises, without the
prior written consent of Landlord.
(c) Tenant shall keep the Demised Premises at a temperature
sufficiently high to prevent freezing of water in pipes and fixtures.
(d) Tenant shall not place or permit its employees to place
any obstructions or merchandise outside of the Demised Premises.
(e) The plumbing facilities in the Demised Premises shall not
be used for any purpose other than that for which they are
constructed, and no foreign substance of any kind shall be thrown
therein, and the expense of any breakage, stoppage, or damage
resulting from a violation of this provisions by Tenant or Tenant's
employees shall be borne by Tenant.
(f) Tenant shall comply with the terms of any state or
federal statute or local ordinance or regulation applicable to Tenant
or its use of the Demised Premises, promptly pay all taxes assessed
against it or its property, and save the Landlord harmless from
penalties, fines, costs, expenses or damage resulting from its failure
to do so.
(g) Tenant shall give to Landlord prompt written notice of
any accident, fire or any damage occurring on or to the Demised
Premises.
(h) Tenant shall not do anything within the Demised Premises
which would cause the fire insurance or any other insurance now in
force or hereafter placed on the Demised Premises or any part thereof,
or on the Building, to become void or suspended.
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ARTICLE VI.
ASSIGNMENT AND SUBLETTING
-------------------------
Section 6.01. Assignment and Subletting. Tenant shall not assign or
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mortgage or transfer this Lease without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed,
provided, however, the following actions may be taken without the consent of
Landlord:
(a) Tenant may assign this Lease as part of the sale or other
conveyance of all or substantially all of Tenant's assets, provided
such assignee or successor at that time is no less credit worthy than
Tenant is as of the date of this Lease;
(b) Tenant may assign or sublet this Lease to an Affiliate or
corporate successor by merger or otherwise (as defined below);
(c) Tenant may assign this Lease to a lender as security for
financing provided by such lender;
(d) Tenant may mortgage its leasehold estate created by this
Lease.
As set forth above in (a) through (d), Tenant shall have the right to assign,
sublease or mortgage all or any portion of the Demised Premises without
Landlord's prior written consent, provided that Tenant is not in default under
this Lease (beyond any applicable cure period) and provided further that, in
cases of (a) and (b) above, the assignee or sublessee executes and delivers to
Landlord prior to the commencement of such assignment or sublease a document
under which the assignee or sublessee assumes all of the obligations of Tenant
under this Lease with respect to the portion of the Lease assigned or the
portion of the Demised Premises subleased and agrees to be bound by the terms
and conditions of this Lease with respect to the portion of this Lease assigned
or the portion of the Demised Premises subleased. Upon such assumption, Tenant
shall be released of all liability hereunder. For the purposes of this
subparagraph, "Affiliate" shall mean any person or entity controlling,
controlled by or under common control with, Tenant. "Control," as used herein,
shall mean the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of such controlled person or
entity; the ownership, directly or indirectly, of at least fifty-one percent
(51%) of the voting securities of, or possession of the right to vote in, the
ordinary direction of its affairs, at least fifty-one percent (51%) of the
voting interest in, any person or entity shall be presumed to constitute such
control.
Section 6.02. Expense. Tenant shall reimburse Landlord for the
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reasonable time and expense incurred by Landlord, not to exceed the sum of Two
Hundred Fifty and No/100 Dollars ($250.00), in processing any request of Tenant
for approval by Landlord of an assignment or subletting pursuant to this Lease.
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Section 6.03. Non-Release. Except as provided in Section 6.01, no
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assignment or transfer or mortgage or subletting by Tenant shall relieve Tenant
of the obligations of Tenant under this Lease.
ARTICLE VII.
UTILITY SERVICES
----------------
Section 7.01. Payment. Landlord will provide and maintain (unless
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maintained by the applicable utility company) the necessary mains, conduits and
meters to furnish water, gas, telephone, electricity and sewer service to the
Demised Premises, with each utility service separately metered. Landlord shall
be responsible for maintenance of all utility service lines from the Demised
Premises to the connection to mains, lines or conduits maintained by a public
utility company. Tenant shall pay all charges for utility products and services
used on the Demised Premises from the Completion Date until the expiration or
termination of the Demised Term. Landlord shall pay for any tap-in, connection
and/or related fees connected with providing the foregoing utility services.
Section 7.02. Suspension of Services. In the event of an interruption
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of heating, elevator service, plumbing, electrical, air-conditioning or other
mechanical systems serving the Demised Premises, or in the event unusually heavy
snows prevent access to the Demised Premises, or in the event access to or use
of the Demised Premises is prevented by governmental regulations, civil
commotion or riot or other civil emergency, or if Tenant is otherwise prevented
from using the Demised Premises for its intended purpose, Landlord shall use all
reasonable diligence to restore any such failure or defect as promptly as
possible, but Landlord shall not otherwise be liable to Tenant for any such
failure or defect unless caused by Landlord; and, except as set forth in this
Lease to the contrary, such event shall not be construed as an eviction of
Tenant. In addition, Landlord shall not in any way be liable or responsible to
Tenant for any loss or damage or expense which Tenant may sustain or incur if,
during such period of time, the furnishing of utilities is interrupted or
required to be terminated so that necessary repairs or improvements may be
completed. Notwithstanding the foregoing, in the event of any such interruption
which prevents Tenant from using substantially all of the Demised Premises for
more than three (3) days, Tenant shall have the right to xxxxx all payments of
Rent due under this Lease until such time as the defect is cured and Tenant
again has the full use of the Demised Premises for its intended purpose. In
addition, if Landlord does not use reasonable diligence to restore such failure
or defect, and such failure or defect continues for more than ninety (90) days,
or if such failure or defect cannot be cured within ninety (90) days of its
inception, then Tenant shall have the further option to terminate this Lease by
written notice to Landlord.
January 26, 1995 (Live Engine/Cold Room)
- 9 -
ARTICLE VIII.
REPAIRS AND MAINTENANCE
-----------------------
Section 8.01. Landlord's Obligation. Pursuant to Section 4.02,
------------ ---------------------
Landlord shall provide normal and customary maintenance and upkeep of the
Demised Premises and Building pursuant to a Service Contract. In addition to
those items covered under the Service Contract (a listing of which is set forth
on Exhibit F attached hereto), Landlord shall (i) keep the foundation, exterior
---------
walls, roof, gutters and downspouts, heating and air conditioning and all other
equipment relating to the Demised Premises in good condition and repair and make
such modifications or replacements thereof as may be necessary or required by
law or ordinance, and (ii) keep the parking area surface in good condition and
repair. Landlord shall obtain at least (3) bids for such work. In the event the
lowest bidder is an entity or individual related or affiliated with Landlord,
Tenant shall have the right to consent to such party, which consent may be
granted or withheld in Tenant's sole and absolute discretion. Tenant shall
reimburse Landlord as "Additional Rent" any cost of the above work, except as
provided in Section 16.14. Any such costs shall be the cost charged to Landlord,
and shall not include any xxxx-up or fee by Landlord. Said amounts shall not be
due by Tenant until Tenant has received acceptable documentation from Landlord
supporting the costs (both amount and necessity) incurred by Landlord. Landlord
reserves and at all times shall have the right to re-enter the Demised Premises
in any emergency, and also during regular business hours to inspect the same,
and to repair the Demised Premises. If the situation is not an emergency,
Landlord will make a good faith effort to notify the Tenant before entering the
Demised Premises. During any repairs or entering of the Demised Premises by
Landlord, efforts will be made to not interfere with Tenant's business or to
keep such interference to a minimum. If such work will interfere with Tenant's
business, Landlord will make a good faith effort to have the work done after
regular business hours. If repairs are going to take more than three (3) days,
and if they will have a material adverse effect upon Tenant's use of the Demised
Premises for its intended purpose, and if the need for the repairs was not
caused by Tenant, then Minimum Base Rent shall xxxxx pro rata consistent with
the portion of the Demised Premises which cannot be used by Tenant.
Section 8.02. Tenant's Obligation. Tenant shall have no obligation
------------ -------------------
with regard to maintenance and repair, except for the payment of the costs
thereof, as provided in Section 8.01.
Section 8.03. Remodeling. Tenant shall have the right at its expense
------------ ----------
to remodel, make additions and make alterations in the Demised Premises without
the prior written consent of Landlord, provided Tenant shall not alter the roof,
outside walls or structural matters without the prior written consent of
Landlord. Tenant shall have the right, at Tenant's cost, to install any trade
fixtures, partitions, equipment or other changes that it may find necessary to
the conduct of Tenant's business. All such work as described in this Section
8.03 shall be performed by or on behalf of Landlord, at Tenant's sole cost.
Landlord shall not charge any xxxx-up or fee for its services. Tenant shall have
the right to approve all costs to be charged by Landlord in connection with such
work. Tenant shall supply plans and specifications for such work to Landlord,
who shall have the right to approve such plans and specifications, which
January 26, 1995 (Live Engine/Cold Room)
- 10 -
approval shall not be unreasonably withheld. In the event Landlord fails to
timely commence such work or timely approve the plans and specifications, or if
the costs proposed by Landlord are unacceptable to Tenant, Tenant may perform,
or have performed, such work. All such alterations, changes, partitions and
installations of trade fixtures and equipment shall be at the cost of Tenant,
and Tenant hereby agrees to indemnify and save harmless Landlord from any and
all costs or expenses, including reasonable attorneys' fees, that Landlord may
incur by reason of any claim for labor performed or material furnished that may
arise by reason of the installation of any fixtures or equipment or the
installation of partitions by Tenant as herein provided or alterations or
remodeling or any work of any kind. Any and all trade fixtures and equipment
installed by or on behalf of Tenant may be removed by it at the termination of
this Lease, provided that Tenant shall not be in default in the performance of
any of Tenant's obligations hereunder, and provided that Tenant shall repair any
and all damage caused to the Demised Premises by the removal of any such trade
fixtures and equipment, other than normal wear and tear. Trade fixtures or other
property of Tenant not removed within fifteen (15) days after termination of the
Lease shall become the property of the Landlord.
Section 8.04. No Lien Clause. No person shall ever be entitled to any
------------ --------------
lien, directly or indirectly, derived through or under Tenant, or through or
under any act or omission of Tenant, upon the Demised Premises, or any
improvements now or hereafter situated thereon, for or on account of any labor
or materials furnished to the Demised Premises, or for or on account of any
matter or thing whatsoever; and nothing in this Lease contained shall be
construed to constitute a consent by Landlord to creation of any lien. In the
event that any such lien shall be filed against the Demised Premises, Tenant
shall cause such lien to be released within ten (10) days after actual notice of
the filing thereof, or shall within such time certify to Landlord that Tenant
has a valid defense to such claim and such lien and furnish to Landlord a bond,
satisfactory to Landlord, indemnifying Landlord against the foreclosure of such
lien or take such other action as will stop the ability of the claimant to
foreclose such lien during the pending of such action. In addition to any other
remedy herein granted, upon failure of Tenant to discharge such lien or to post
a bond indemnifying Landlord against foreclosure of any such lien as above
provided or take such other action as described above, Landlord, after notice to
Tenant, may discharge such lien, and all expenditures and costs incurred
thereby, with interest thereon, shall be payable as further rental hereunder at
the next rental payment date. Notwithstanding the foregoing, Tenant may mortgage
its leasehold estate.
ARTICLE IX.
INSURANCE AND INDEMNIFICATION AND WAIVER OF CLAIMS
--------------------------------------------------
Section 9.01. Tenant's Insurance. Tenant shall purchase and maintain
------------ ------------------
in force at all times during the term of this Lease (i) all risk property damage
insurance in full replacement value, including fire, extended coverage,
vandalism and malicious mischief upon the Building, and (ii) comprehensive
general liability insurance, including personal injury and property damage, with
contractual liability endorsement, in the amount of One Million Dollars
($1,000,000.00) for each occurrence and One Million Dollars ($1,000,000.00)
aggregate per
January 26, 1995 (Live Engine/Cold Room)
- 11 -
occurrence for personal injuries or death of persons occurring in or about the
Demised Premises. Additionally, Tenant shall carry either under its master
policy or under an umbrella policy, additional liability coverage of at least
Five Million Dollars ($5,000,000.00). Said policies shall: (i) name Landlord as
an additional insured, (ii) be issued by an insurance company which is
authorized to do business in the State of Indiana, and (iii) provide that said
insurance shall not be canceled unless thirty (30) days' prior written notice
shall have been given to Landlord. Certificates of insurance shall be delivered
to Landlord by Tenant upon the commencement of the Initial Term and upon each
renewal of said insurance prior to the expiration of the previous policies.
Section 9.02. Insurance to be Furnished by Landlord. Landlord shall carry
------------ -------------------------------------
comprehensive public liability and property damage insurance with base limits of
liability of not less than One Million Dollars ($1,000,000.00) with additional
umbrella coverage of at least Five Million Dollars ($5,000,000.00), naming
Tenant as an additional insured. All required policies shall be underwritten by
insurers who have a general policyholders rating of not less than A- and a
financial rating of Class X as stated in most current available Best Insurance
Reports, who are authorized to do business in the State of Indiana under the
surplus lines law and who are authorized to issue policies. Landlord shall
deliver to Tenant certificates of insurance prior to the Completion Date and
renewal certificates prior to the expiration of the previous policies. All
policies carried by Landlord shall contain an undertaking by the insurers to
notify Tenant in writing not less than thirty (30) days prior to any
cancellation or termination. Landlord's liability policy shall contain a
provision stating that the policy shall apply to each insured in the same manner
and to the same extent as if separate policies had been issued to each, except
with respect to the limits of liability. Landlord shall not be required to
insure any property owned by Tenant and located within the Demised Premises.
Section 9.03. Mutual Indemnifications. Except as otherwise expressly
------------ -----------------------
provided in this Lease to the contrary, Landlord shall not be liable to Tenant,
its agents or employees, for any damage to persons or property caused by an act,
omission or neglect of Tenant, and Tenant agrees to indemnify and hold Landlord
harmless from all liability and claims for any such damage. Except as otherwise
expressly provided in this Lease to the contrary, Tenant shall not be liable to
Landlord, its agents and employees, for any damage to persons or property caused
by any act, omission or neglect of Landlord, and Landlord agrees to indemnify
and hold Tenant harmless from all claims for such damage.
Section 9.04. Waiver of Subrogation. Each of Landlord and Tenant hereby
------------ ---------------------
release the other from any and all liability or responsibility to the other or
to anyone claiming through or under them by way of subrogation or otherwise for
any loss or damage to property caused by fire or any other perils insured in
policies of insurance covering such property or required to be carried pursuant
to this Lease, even if such loss or damage shall have been caused by fault or
negligence of the other party, or anyone for whom such party may be responsible,
except to the extent of the deductible amount under such policy.
January 26, 1995 (Live Engine/Cold Room)
- 12 -
ARTICLE X.
DAMAGE TO DEMISED PREMISES
--------------------------
Section 10.01. Damage to Demised Premises. If the Building or the Demised
------------- --------------------------
Premises are rendered partially or wholly untenantable by fire or other
casualty, Landlord shall promptly, using the insurance proceeds as provided
below, cause such damage to be repaired and all Minimum Base Rent payable
hereunder shall xxxxx proportionately as to the portion of the Demised Premises
rendered untenantable until the completion of such repairs. If the Building or
the Demised Premises are damaged such that they cannot be repaired or rebuilt
within one hundred eighty (180) days from the date of such damage, then either
Landlord or Tenant may terminate this Lease. In the event either Landlord or
Tenant exercises this election to terminate, they must do so within thirty (30)
days of the date of such damage. In the event this Lease is not terminated, then
Landlord shall commence such repairs within thirty (30) days of the expiration
of the above thirty (30) days and complete the same as soon as possible,
considering extent of repairs and weather. In the event any such repairs have
not been completed within one hundred eighty (180) days of such damage, Tenant
may terminate this Lease. Any insurance which may be carried by Landlord or
Tenant against loss or damage to the Building or the Demised Premises shall be
pro-rated based upon the respective values of (i) the Building and any other
improvements, alterations or additions paid for by Landlord, and (ii) any
improvements, alterations or additions paid for by Tenant; provided, however, if
Landlord rebuilds or repairs the Demised Premises, Landlord shall be entitled to
use all, or the amounts needed, of the insurance proceeds for the costs of such
rebuilding or repairing. If the insurance proceeds are not sufficient, any
additional amounts required shall be paid by Landlord. If the Lease is
terminated, all casualty insurance proceeds pertaining to the Building shall be
payable to Landlord.
ARTICLE XI.
EMINENT DOMAIN
--------------
Section 11.01. Condemnation of Demised Premises. If any substantial
------------- --------------------------------
part of the Building or Demised Premises should be taken or acquired by any
public or quasi-public authority under the power or threat of eminent domain, or
by private purchase in lieu thereof, this Lease shall terminate upon election of
either party on the earlier to occur of (i) the date title vests in the taking
authority, or (ii) the date Tenant vacates the Demised Premises as a result of
such taking, as if the date of such taking were the date originally fixed in
this Lease for the expiration of the term of this Lease. Such election to
terminate shall be made within thirty (30) days of the date of the taking.
In the event of a partial condemnation not resulting in a termination of
this Lease as above provided, than all Rent payable under this Lease for the
unexpired portion of the term of this Lease shall be reduced to the extent, if
any, as may be fair and reasonable under all the circumstances and Landlord
shall undertake, at its sole cost and expense, to restore the Building
January 26, 1995 (Live Engine/Cold Room)
- 13 -
and the Demised Premises to a condition suitable for Tenant's use, as near to
the condition thereof immediately prior to such taking as is reasonably feasible
under the circumstances.
Section 11.02. Condemnation Award. All compensation awarded or paid for any
------------- ------------------
taking of the building or land or improvements thereon or damage to the same
shall be the sole property of Landlord, and any compensation for Tenant's loss
of its trade fixtures, furniture, leasehold improvements, relocation costs, loss
of business and/or business interruption or the value of the leasehold estate
shall be the sole property of Tenant.
ARTICLE XII.
SIGNS
-----
Section 12.01. Consent as to Signs. All signs, lettering, advertising,
------------- -------------------
decoration, lighting or any other thing of any kind located on the exterior of
the Demised Premises and installed by Tenant shall be first approved in writing
by Landlord and the location and method of installation of same shall be as
designated or approved by Landlord in its sole discretion and shall comply with
the Declaration of Development Standards referred to in Exhibit E hereof. Plans
---------
showing the dimensions and type of sign, lettering, colors, mounting brackets,
advertising, decoration, lighting or any other thing of any kind together with
the proposed location thereof shall be submitted to Landlord within thirty (30)
days following the execution of this Lease, and after installation shall be
maintained in good condition and repair at all times by Tenant. Landlord shall
provide at its expense exterior directional signs to the Building. Tenant may
place signage within the Demised Premises without Landlord's approval.
ARTICLE XIII.
TAXES
-----
Section 13.01. Real Estate Taxes and Assessments and Payment by Tenant.
------------- -------------------------------------------------------
Tenant shall pay directly, prior to delinquency, all real estate taxes promptly
upon receipt of the original tax bills for same from Landlord and shall furnish
Landlord with evidence of such payment at least ten (10) days prior to the date
such payment become delinquent. Landlord shall provide such tax bills to Tenant
immediately upon receipt thereof and Tenant shall not be liable for late
payments or penalties resulting from Landlord's failure to provide such receipts
on a timely basis. Tenant shall have the right to contest in good faith the real
estate taxes to be paid hereunder; provided, however, such contest shall not
relieve the Tenant of the responsibility to pay such real estate taxes during
such contest action and Tenant shall be prohibited from allowing a tax lien or
tax foreclosure action to be imposed on the Demised Premises.
January 26, 1995 (Live Engine/Cold Room)
- 14 -
ARTICLE XIV.
INSOLVENCY
----------
Section 14.01. Insolvency. The appointment of a receiver to take
------------- ----------
possession of all or substantially all of the assets of Tenant, or an assignment
by Tenant or any of the persons constituting Tenant for the benefit of creditors
or any action taken or suffered by Tenant or any of the persons constituting
Tenant under any insolvency, or reorganization act, shall constitute a breach of
this Lease by Tenant. In no event shall this Lease be assigned or assignable by
operation of law or otherwise (except as provided in Article VI hereof) and in
no event shall this Lease or any rights or privileges hereunder be an asset of
Tenant or any of the persons constituting Tenant under any insolvency or
reorganization proceedings. This shall not apply in the event of bankruptcy of
Tenant.
ARTICLE XV.
DEFAULT
-------
Section 15.01. Rights on Tenant's Default. In the event of any default
------------- --------------------------
by Tenant:
(i) in the payment when due of any Rent provided in Article IV
of this Lease, following five (5) business days written notice to
Tenant specifying the amount that is past due and in default, or
(ii) any other default by Tenant in its obligations under this
Lease which shall continue after thirty (30) business days written
notice by Landlord to Tenant, unless Tenant has commenced within such
thirty (30) business day period and is proceeding with corrective
actions,
then, in addition to any other rights or remedies Landlord may have by law or
otherwise, Landlord shall have the immediate right of re-entry and may remove
all persons and property from the Demised Premises. Tenant's property may be
removed and stored at the cost of and for the account of Tenant. Should Landlord
elect to re-enter as herein provided, or should Landlord take possession
pursuant to legal proceedings or pursuant to any notice provided for by law,
Landlord may terminate Tenant's rights under this Lease, relet the Demised
Premises or any part thereof for such term or terms (which may be for a term
extending beyond the Demised Term) and at such rental or rentals and upon such
other terms and conditions as Landlord in the exercise of Landlord's discretion
may deem advisable, with the right to make alterations and repairs to the
Demised Premises. Upon each such reletting (a) Tenant immediately shall be
liable for payment to Landlord of any indebtedness of Tenant past due and owing
hereunder, the cost and expense of such reletting (including but not limited to
leasing commissions payable by Landlord, or its affiliates, or to independent
brokers for the unexpired portion of the term so this Lease) and the repairs
incurred by Landlord which were the responsibility of Tenant under the Lease and
occurred prior to Landlord re-entering the Demised
January 26, 1995 (Live Engine/Cold Room)
- 15 -
Premises, and the amount, if any, by which the Minimum Base Rent reserved in
this Lease for the period of such reletting (up through the Initial Term)
exceeds the amount actually received by Landlord as rental, including any costs
actually paid by the new tenant for the Demised Premises for such period of such
reletting; or (b) at the option of Landlord, rentals received by Landlord from
such reletting shall be applied first, to the payment of any indebtedness of
Tenant other than Rent due hereunder; second, to the payment of any cost and
expense of such reletting and of such repairs, third, to the payment of Rent due
and unpaid hereunder; and the residue, if any, shall be held by Landlord and
applied in payment of future Rent as the same may, become due and payable
hereunder. Should Landlord at any time terminate Tenant's right under this Lease
for any default, in addition to any other remedy Landlord may have, Landlord may
recover from Tenant all damages Landlord may incur by reason of such default,
including the cost of recovering the Demised Premises, any and all reasonable
attorneys' fees and court costs relating thereto, all of which amounts shall be
immediately due and payable from Tenant to Landlord and without relief from
valuation or appraisement laws. Landlord shall make a reasonable effort to relet
the Demised Premises to suitable tenant or tenants at prevailing market rates
and terms and the net amount realized by Landlord therefrom shall mitigate and
reduce the Tenant's damages hereunder. In addition to the above, Landlord shall
have all other rights and remedies available at law or equity for a default by
Tenant. Upon any default hereunder by Tenant, Landlord shall be entitled to
recover reasonable attorneys' fees incurred by Landlord in pursuing such default
against Tenant.
Section 15.02. Default of Landlord. Landlord shall in no event be charged
------------- -------------------
with default in the performance of its obligations under this Lease unless and
until Landlord shall have received written notice from Tenant specifying wherein
Landlord has failed to perform any obligation hereunder, and Landlord shall have
failed to perform such obligation, or remedy such default, within ten (10) days
(or such additional time as is reasonably required to correct any such default,
provided Landlord has commenced such cure within such ten (10) day period and
diligently pursues the same until completion) after written notice from Tenant.
Section 15.03. Status of Landlord - Tenant.
------------- ---------------------------
(a) Notwithstanding any other provision of this Lease, Tenant agrees
that no officer, director, agent, partner or employee of Landlord or of any
subsequent owners of Xxxxxxxx Estates shall be responsible or liable for
the performance or non-performance of any agreement, covenant, or
obligation of Landlord in this Lease in his or her individual or personal
capacity, and Tenant agrees to look solely to Landlord and its interest in
the Demised Premises and Xxxxxxxx Estates as the sole asset for the payment
and satisfaction of all obligations and liabilities of Landlord or any
subsequent owners of the Demised Premises.
(b) Notwithstanding any other provision of this Lease, Landlord agrees
that no officer, director, agent, partner or employee of Tenant or of any
subsequent assignee or subtenant shall be responsible or liable for the
performance or non-performance of any agreement, covenant, or obligation of
Tenant in this Lease in his or her individual or
January 26, 1995 (Live Engine/Cold Room)
- 16 -
personal capacity, and Landlord agrees to look solely to Tenant and its
interest in the Demised Premises as the sole asset for the payment and
satisfaction of all obligations and liabilities of Tenant.
Section 15.04. Advances. In the event of any default hereunder by either
------------- --------
party, the other party, after thirty (30) days' written notice to the defaulting
party, may cure such default for the account and at the expense of the
defaulting party. Any reasonable expense incurred by either party in curing such
a default for the account of the other party shall be reimbursed by the
defaulting party on the first day of the month following the payment of such
expense, with interest at the rate of fifteen percent (15%) per annum, or at a
rate that is five hundred (500) basis points over the Prime Interest Rate quoted
from time to time in the Money Rates column in The Wall Street Journal,
-----------------------
whichever is higher, commencing thirty (30) days after the date of such advance
until paid in full. In the event that Landlord fails to reimburse Tenant for any
such expenditure on the first day of the month as provided herein, Tenant may
deduct such amounts from the next Rent payment or payments thereafter due.
Section 15.05. Emergency Repairs. In the event of the necessity of repairs
------------- -----------------
to the Demised Premises which are the obligation of Landlord which must be made
immediately in order to preserve the tenantable condition of the Demised
Premises or to avoid a threat of imminent injury to persons or damage to
property and Tenant is unable to immediately contact Landlord, or Landlord,
having been contacted, fails to make immediate repairs, Tenant may cause such
repairs as may be necessary to preserve or restore tenantable condition or avoid
the potential injury or damage to be made for the account and at the expense of
Landlord. In such event, Tenant shall be entitled to reimbursement or Rent
credit in the same manner as provided in the preceding Section.
ARTICLE XVI.
MISCELLANEOUS
Section 16.01. Waivers. No waiver of any condition or covenant in this
------------- -------
Lease by either party shall be deemed to imply or constitute a further waiver of
the same or any other condition or covenant of this Lease.
Section 16.02. Remedies Cumulative. The remedies of Landlord and Tenant
------------- -------------------
shall be cumulative as to each, and no one of them shall be construed as
exclusive of any other or of any remedy provided by law.
Section 16.03. Subordination. At the option of Landlord, this Lease shall
------------- -------------
be subject, subordinate and inferior to any mortgage that may be placed on the
Demised Premises. Tenant shall, upon demand, execute any instrument reasonably
necessary to effect the foregoing provision. As a condition precedent to the
effectiveness of the foregoing provisions, however, Landlord shall procure from
the mortgagee under any such mortgage and deliver to Tenant an agreement
providing, in substance, that so long as Tenant shall discharge the obligations
on its
January 26, 1995 (Live Engine/Cold Room)
- 17 -
part to be kept and performed under the terms of this Lease, its tenancy will
not be disturbed, or its rights hereunder affected by any default under any such
mortgage, and in the event of the foreclosure or any other enforcement of any
such mortgage, the rights of Tenant hereunder shall expressly survive and this
Lease shall continue in full force and effect; provided, however, Tenant shall
agree to attorn to any mortgagee or purchaser at a foreclosure sale or deed in
lieu thereof.
Section 16.04. Notices and Certificates. All notices required under this
------------- ------------------------
Lease shall be deemed to be properly served if sent by registered or certified
mail with return receipt requested, to Landlord and Tenant at the address as
specified on the first page of this Lease, or to such other addresses which
Landlord or Tenant may designate in writing delivered to the other party for
such purpose. Date of service of a notice served by mail shall be the date on
which such notice is deposited in a post office of the United States Postal
Service. If Tenant is provided with the name and address of any mortgagee of the
Demised Premises, Tenant shall send to such mortgagee a copy of the notice of
default or demand for performance served on Landlord and shall permit such
mortgagee to cure such default or otherwise perform Landlord's obligations
within thirty (30) days after receipt of such written notice by such mortgagee.
Tenant and Landlord agree that, upon request of the other, it will execute a
certificate with respect to the status of this Lease setting forth that it is in
full force and effect and has not been altered, modified or amended (or
specifying the nature of same); that there are no defaults of the other party
known to the party so certifying (or specifying the nature of any known
details); and stating the date to which rental has been paid.
Section 16.05. Relationship of Parties. Nothing contained herein shall be
------------- -----------------------
deemed or construed by the parties hereto, nor by any third party, as creating
the relationship of principal and agent, or of partnership, or of joint venture,
between the parties hereto.
Section 16.06. Construction. Whenever a word appears herein in its singular
------------- ------------
form, such word shall include the plural; and the neuter gender shall include
the masculine and feminine genders. This Lease shall be construed without
reference of titles or Articles or Sections, which are inserted for reference
only.
Section 16.07. Law of Indiana. This Lease has been executed under and shall
------------- --------------
be governed by the laws of the State of Indiana.
Section 16.08. Costs. Each party agrees that in the event of litigation
------------- -----
between the parties concerning any aspect of this Lease, that the prevailing
party shall be entitled to recover judgment for its costs of litigation,
including, but not limited to, a reasonable fee for its attorneys.
Section 16.09. Lease Memorandum. This Lease shall not be recorded; however,
------------- ----------------
upon request of either party, Landlord and Tenant shall execute and acknowledge
a memorandum or short form lease setting forth the parties, description of the
Demised Premises, the Initial Term, options for extension of the Initial Term,
and any other provisions hereof, the inclusions of
January 26, 1995 (Live Engine/Cold Room)
- 18 -
which may be mutually agreed upon by Landlord and Tenant, which memorandum or
short form lease may be recorded by either party or its lenders at any time
after the execution of this Lease.
Section 16.10. Force Majeure. In the event that Landlord or Tenant shall be
------------- -------------
delayed or hindered in or prevented from doing or performing any act or thing
required in this Lease by reason of strikes, lock-outs, casualties, acts of God,
labor troubles, inability to procure materials, failure of power, governmental
laws or regulations, riots, insurrection, war or other causes beyond the
reasonable control of Landlord or Tenant as appropriate, then such party shall
not be liable or responsible for any such delays and the doing of performing of
such act or thing shall be excused for the period of the delay and the period
for the performance of any such act shall be extended for a period equivalent to
the period of such delay. This Section shall not apply to the payment of Rent,
and with respect to the dates of substantial completion of September 1, 1995 and
September 15, 1995 as set forth in Article II, said dates shall not be extended
by more than sixty (60) days.
Section 16.11. Hazardous Materials and Environmental Requirements. Tenant
------------- --------------------------------------------------
shall fully and continuously comply with all material governmental regulations
regarding environmental matters and hazardous, toxic, or otherwise dangerous
materials or chemicals. Tenant agrees that any oil, gasoline, cleaning material,
chemicals, or other material used on or about the Demised Premises will be
properly stored and disposed of in compliance with all material rules and
regulations; and not permitted to enter any drain, storm or sanitary sewer, or
otherwise flow from or escape the Demised Premises, or contaminate the Demised
Premises. Tenant shall be fully responsible for any injury, damage, or other
problem caused by it or by any of the above material used by Tenant and shall
indemnify and save harmless Landlord from the same. The agreement to be fully
responsible and indemnify shall not only continue during the full Demised Term,
but shall survive the termination of the Lease as to those matters which took
place during the Demised Term.
If at any time Landlord or its mortgagee shall request, Tenant shall
furnish evidence satisfactory to them that the Demised Premises and business
conducted thereon are in full compliance with the material requirements of all
governmental units and agencies regarding hazardous materials and environmental
matters.
Section 16.12. Complete Agreement. This Lease contains a complete
------------- ------------------
expression of the agreement between the parties and there are no promises,
representations or inducements except such as are herein provided.
Section 16.13. Successors in Interest. The covenants, agreements, terms,
------------- ----------------------
conditions and warranties of this Lease shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective heirs, executors,
administrators, successors and assigns, and shall create no rights in any other
person except as may be specifically provided for herein.
January 26, 1995 (Live Engine/Cold Room)
- 19 -
Section 16.14. Exclusions. Additional Rent is only payable with regard to
------------- ----------
Sections 4.02 and 8.01 hereof. Notwithstanding anything contained in this Lease
to the contrary, the following shall not be included in any calculation of
Additional Rent:
(a) The cost of any improvements, repairs, alterations, additions,
changes, replacements, equipment, tools and other items which under
generally accepted accounting principles are required to be classified as
capital expenditures (whether incurred directly or through a lease or
Service Contract or otherwise).
(b) The depreciation of the Building or the parking areas or any of
the equipment, fixtures, improvements and facilities used in connection
therewith.
(c) The cost of repairs or other work occasioned by any casualty which
is covered by insurance, or should have been covered by insurance pursuant
to the provisions of this Lease.
(d) Costs (limited to penalties, fines and associated legal expenses)
incurred due to violation by Landlord of the terms and conditions of any
lease or rental arrangement.
(e) Any compensation paid to clerks, attendants or other persons and
commercial concessions operated by Landlord.
(f) The cost incurred in connection with correcting defects in
construction of the Building or the adjacent parking facility (except as
conditions resulting from ordinary wear and tear and use shall not be
deemed defects for purposes of this category).
(g) The cost of any repairs occasioned by eminent domain
(h) Costs (limited to penalties, fines and associated general
expenses) incurred to the violation by Landlord of any applicable Federal,
state and/or local governmental laws, codes and similar regulations that
would not have been incurred but for such violation by Landlord.
Section 16.15. Americans with Disabilities Act. Notwithstanding any other
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provision in this Lease to the contrary, both Landlord and Tenant will fully
comply with the current provisions of the Americans with Disabilities Act
("ADA") as follows: Landlord covenants to be solely responsible for (and Tenant
shall have no responsibility for) removal or modification of any portion of the
Building or Demised Premises, the removal of non-structural barriers in the
Building, providing of auxiliary aids and services in the Building and the
modification of policies, practices and procedures applicable to the Building
and Demised Premises in order to avoid discriminating against individuals with
disabilities as required under the ADA, any other requirement of ADA pertaining
to the Building and Demised Premises in general and its use as an office,
laboratory, manufacturing and testing facility (excluding any ADA requirement
due
January 26, 1995 (Live Engine/Cold Room)
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to Tenant's particular use of the Demised Premises) and the Demised Premises
when delivered to Tenant as of the Completion Date shall be in all things in
compliance with ADA. Tenant shall, at its sole expense, be responsible for
compliance with ADA to the extent an ADA requirement arises due to Tenant's
particular use of the Demised Premises which is different than for an office,
laboratory, manufacturing and testing facility. In the event compliance with ADA
by Tenant will result in costs to Tenant in excess of $10,000, Tenant may
terminate this Lease. Landlord further covenants that in the event a
non-appealable order or judgment by a governmental body or a court with
jurisdiction with respect to ADA regulations is entered that Landlord will
comply with such order or final judgment. Each party agrees to indemnify and
hold harmless the other from any claims and/or causes of action, including
reasonable attorneys fees, resulting from its failure to comply with its above
described obligations with regard to ADA.
Section 16.16. Termination Requirements. At the end of the term of this
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Lease or any renewal thereof or other similar termination of this Lease, the
Tenant will peaceably deliver up to Landlord possession of the Demised Premises,
together with all improvements or additions belonging unto Landlord, in the same
condition as received or first installed, ordinary wear and tear, damage by
fire, earthquake, casualty, acts of God, the elements, third parties, or beyond
Tenant's control excepted and repairs and other work which are the
responsibility of Landlord also excepted. Tenant may, upon the termination of
this Lease, remove all movable furniture and equipment belonging to Tenant
including without limitation any raised flooring installed in Tenant's computer
room, any Xxxxxx systems, CPU's, halon systems, battery backup systems and
similar equipment installed in connection with Tenant's computer facility,
together with all other items installed by and paid for by Tenant. Tenant shall
repair any damage caused by such removal to the extent such repair is required
to permit the replacement tenant to occupy the Demised Premises. Any property
not so removed by Tenant shall be deemed abandoned by Tenant and title to the
same shall thereupon pass to the Landlord.
Section 16.17. Address of Notices. A copy of any notice delivered to Tenant
------------- ------------------
under this Lease shall be delivered to 0000 Xxxxxxxx Xxxxxx, Xxx 0000, Xxxxxxxx,
Xxxxxxx 00000, Attention: Chief Financial Officer.
Section 16.18. Warranties and Representations. Landlord covenants that it
------------- ------------------------------
holds good fee simple title to the Demised Premises and that the same are free
from all liens and encumbrances having any priority over the rights of Tenant
under this Lease other than building and zoning laws and ordinances and current
taxes and assessments that are not delinquent. Landlord represents and warrants
that there are no rules and regulations governing the Demised Premises, and the
Declaration of Development Standards set forth on Exhibit E are the only
---------
restrictions, covenants, encumbrances, or other matters recorded against the
Demised Premises. Landlord further covenants that the applicable building and
zoning laws and ordinances, and the Declaration of Development Standards set
forth on Exhibit E attached hereto, as of the date hereof and the Completion
---------
Date shall permit the Demised Premises to be used for the purposes set forth
herein. Landlord shall furnish Tenant with evidence of Landlord's title prior to
the time possession of the Demised Premises is tendered to Tenant. In the event
that Landlord's
January 26, 1995 (Live Engine/Cold Room)
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title is subject to any mortgage which would have priority over this Lease, the
obligations of Tenant hereunder shall be conditioned upon such mortgagee
entering into a nondisturbance agreement with Tenant in form and substance
satisfactory to Tenant. Landlord represents and warrants that it has full right
and authority to enter into this Lease and the Tenant, while paying the Rent and
performing its other covenants and agreements herein set forth, shall peacefully
and quietly have, hold and enjoy the Demised Premises for the term set forth in
this Lease. Landlord further represents and warrants to Tenant that the Demised
Premises are free of any Hazardous Materials (as hereinafter defined) and that
there are no underground storage tanks on any part of the Land and Landlord will
indemnify, defend and hold Tenant harmless from and against any and all claims,
demands, liabilities, damages, suits, actions, judgments, fines, penalties,
losses, costs and expenses (including, without limitation, reasonable attorneys'
fees) arising or resulting from, or suffered, sustained or incurred by Tenant as
a direct or indirect result of, the untruth or inaccuracy of any of the
foregoing representations and warranties. The Landlord further agrees to defend,
indemnify and hold Tenant harmless from and against any and all claims, damages,
liabilities, costs, penalties and fines which Tenant may suffer as a result of
environmental pollution caused prior, during or subsequent to Tenant's occupancy
of the Demised Premises or as a result of damage or injury from Hazardous
Materials placed in or about the Demised Premises by any party other than
Tenant. Tenant agrees to defend and hold Landlord harmless from and against any
and all claims, damages, liabilities, costs, penalties, and fines Landlord may
suffer which are as a result from Hazardous Materials placed in or about the
Demised Premises by Tenant. Neither Landlord nor Tenant shall cause any
Hazardous Materials to be used, generated, treated, installed, stored or
disposed of in, on, under or about the Demised Premises except to the extent
consistent with the customary and reasonable business practices of Tenant
provided (a) such Hazardous Materials do not endanger the health of any person
on or about the Demised Premises or Xxxxxxxx Estates and (b) Tenant and
Landlord, as the case may be, complies with all legal requirements applicable to
such Hazardous Materials in all quantities which do not violate applicable laws
relating to such Hazardous Materials. It is hereby agreed that the following
shall be considered "customary and reasonable business practices" within the
meaning of the previous sentence; (i) possession and use of copy machines and
machines used to electronically accept written data as well as cleaning fluids
and other materials which utilize small amounts of chemicals which may be
included in the definition of Hazardous Materials; (ii) use of reproduction,
blueprint and photographic facilities in the Demised Premises that utilize
chemicals that may be included within the definition of Hazardous Materials all
in quantities which do not violate applicable laws relating to such Hazardous
Materials, and (iii) the following uses: office, laboratory, manufacturing,
testing, warehousing and storage, and related operations and services.
"Hazardous Materials" means any flammable, explosive, radioactive materials,
asbestos containing materials, the group of organic compounds known as
polychlorinated biphenyls and any other hazardous, toxic or dangerous waste,
substance or materials defined as such (or for purposes of) the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, the
Hazardous Materials Transportation Act, the Resources Conservation and Recovery
Act of 1976, the Toxic Substance Control Act or any other so-called "Superfund"
or Superlien" law or any other legal requirement from time to time in effect
regulating, relating to, or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material.
January 26, 1995 (Live Engine/Cold Room)
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ARTICLE XVII.
GENERAL PROVISIONS
------------------
Section 17.1. Remedies Cumulative - Non-Waiver. The various rights and
------------ --------------------------------
remedies herein contained and reserved to each of the parties shall not be
considered as exclusive of any other right or remedy of such party, but shall be
construed as cumulative and shall be in addition to every other remedy now or
hereafter existing at law, in equity, by statute, or by any other portion of
this Lease. Said rights and remedies may be exercised and enforced concurrently
and whenever and as often as occasion therefor arises. No delay or omission to
exercise any right or power by either party shall impair any such right or
power, or be construed as a waiver of any default or as acquiescence therein.
One or more waivers of any covenant, term or condition of this Lease by either
party shall not be construed by the other party as a waiver of a subsequent or
continuing breach of the same covenant, term or condition.
Section 17.2. Invalidity. The invalidity or unenforceability of any
------------ ----------
provision of this Lease shall not affect or impair any other provision.
Section 17.3. Consents and Approvals. Whenever provision is made in
------------ ----------------------
this Lease for either party to secure the consent or approval of the other
party, such consent or approval shall not be unreasonably withheld, conditioned
or delayed. The consent or approval by either party to or of any act by the
other party of a nature requiring consent or approval shall not be deemed to
waive or render unnecessary consent to or approval of any subsequent similar
act.
Section 17.4. Agreement Binding on Successors. The covenants,
------------ -------------------------------
agreements and obligations herein contained shall extend to, bind and inure to
the benefit not only of the parties hereto but their respective personal
representatives, heirs, successors and assigns.
Section 17.5. Estoppel Certificate. Each party, without charge, within
------------ --------------------
ten (10) days following receipt of a written request from the other party, at
reasonable intervals, shall execute, acknowledge and deliver to the other party
or to any other person or entity designated by the requesting party, a written
statement certifying (i) that this Lease is in full force and effect and
unmodified (or, if modified, stating the nature of such modification), (ii) the
Rent payable and the date to which Minimum Base Rent has been paid, (iii) that
there are no uncured defaults on the part of either Landlord or Tenant (or
specifying such defaults if any are claimed), (iv) the nature and extent of any
offsets, counterclaims or defenses claimed by either party, and (v) the exact
dates of the Initial Term of this Lease.
January 26, 1995 (Live Engine/Cold Room)
- 23 -
EXECUTED at 0000 Xxxxxxxx Xxx., Xxxxxxxx XX, on the date first appearing
-------------------------------
herein.
ATTEST: "LANDLORD"
[ILLEGIBLE SIGNATURE APPEARS HERE] XXXXX L.L.C.
----------------------------------
By: [ILLEGIBLE SIGNATURE APPEARS HERE]
------------------------------------------
(signature)
[ILLEGIBLE SIGNATURE APPEARS HERE]
------------------------------------------
(printed name and title)
ATTEST: "TENANT"
[ILLEGIBLE SIGNATURE APPEARS HERE] DELCO REMY AMERICA, INC.
----------------------------------
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
(signature)
Xxxxxx X. Xxxxxx, President
------------------------------------------
(printed name and title)
This Lease prepared by Xxxxxxx X. Xxxxxxxx, Xxxxxxxx & Xxxxxxxx, P.C., 0000
Xxxxxxxx Xxxxx, X.X. Xxx 000, Xxxxxxxx, Xxxxxxx, 00000. 317/643-6657
January 26, 1995 (Live Engine/Cold Room)
- 24 -
EXHIBIT LIST
------------
EXHIBIT A - Legal Description Demised Premises
EXHIBIT B - Xxxxxxxx Estates Drawing
EXHIBIT C - Plans and Specifications
EXHIBIT D - Completion Date Certificate
EXHIBIT B - Declaration of Development Standards
EXHIBIT F - List of Items to be Covered under Service Contract
SCHEDULE I - Rates for Primary and Option Periods
January 26, 1995 (Live Engine/Cold Room)
- 25 -
