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EXHIBIT 10.7
LEASE
This Lease is made and entered into this 9th day of June, 1995, by and between
Caterpillar Inc., a Delaware corporation, (hereinafter referred to as "Lessor"),
and Xxxxxx Metalcraft Co., an Illinois corporation, (hereinafter referred to as
"Lessee").
Witnesseth:
1. PREMISES - Lessor, for and in consideration of the rent and covenants,
conditions and agreements hereinafter described to be kept and performed by
Lessee, does hereby rent, demise and lease to Lessee, and Lessee does
hereby rent and lease from Lessor, one hundred thirty-seven thousand three
hundred fifty-one (137,351) square feet in a building located at 0000 X.
Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, being more particularly shown on
Exhibit "A" attached hereto and incorporated herein by reference (the
"Premises"). Lessee shall have access rights to the Premises as shown on
Exhibit A and exclusive use of the fenced-in area shown on Exhibit A.
Lessee may use existing hard-surfaced areas within the fenced-in area for
employee parking and truck access. Any additional employee parking on or
off site shall be provided by Lessee.
2. TERM - The term of this Lease shall be for eight years, commencing on June
1, 1995 and terminating on May 31, 2003.
3. RENT - Rent shall be payable in monthly installments, commencing January 1,
1996, in accordance with the following schedule:
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Years 1996 - 1997 $20,030.35/MO ($1.75/SF/YR)
Years 1998 - 1999 $25,753.30/MO ($2.25/SF/YR)
Years 2000 - 2001 $27,470.20/MO ($2.40/SF/YR)
Year 2002 $28,294.30/MO (3% escalation)
Year 2003 $29,143.13/MO (3% escalation)
Monthly installments of rent as provided above shall be paid in
advance on the first day of each month at the offices of the Lessor
shown in Section 23. If commencement and termination dates are other
than the first of a month, rent shall be prorated based on the number
of days used in the month.
4. USE OF PREMISES - Premises are to be used by Lessee for manufacturing
and assembly purposes, or for any other purposes permitted by
applicable law, zoning and covenants and by this Lease.
Lessee shall comply, at the cost and expense of Lessee, with any and
all ordinances, statutes or other laws relating to the use of the
Premises, and will observe and comply with requests of fire insurance
companies respecting the use of the Premises.
Lessee's employees, agents and invitees shall remain within the
Premises and not enter adjoining building space.
5. REGULATORY COMPLIANCE
A. Lessee shall not, and shall not permit others to, introduce, use,
dispose of, dump or store any materials on the Premises in a
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manner in which, or whose presence would, violate any laws,
ordinances or regulations relating to environment, health or
safety conditions; and Lessee's operations at the Premises shall
remain in compliance with all such applicable laws.
B. Lessee agrees to defend and hold Lessor harmless from and to
indemnify Lessor against any and all claims, liabilities and
damages, penalties, costs or expenses (including, but not limited
to, attorney's fees) arising from or caused in whole or in part,
directly or indirectly, from any failure to comply with Lessee's
obligations in this Section. This indemnification shall survive
the termination of this Agreement.
X. Xxxxxx agrees to defend and hold Lessee harmless from and to
indemnify Lessee against any and all claims, liabilities and
damages, penalties, costs or expense (including, but not limited
to attorney's fees) arising from any violation of any
environmental, health or safety regulation or law or condition
existing prior to Lessee's occupancy of the Premises or solely
caused by Lessor. In the event any environmental condition
existing prior to Lessee's occupancy of the Premises adversely
impacts Lessee's occupancy of or the conduct of Lessee's business
upon the Premises, Lessee may, as its sole remedy, either
terminate this Lease or ask Lessor to xxxxx the rent to the
extent the Premises becomes untenantable. This indemnification
shall survive the termination of this Agreement.
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6. ALTERATIONS, IMPROVEMENTS AND SIGNS
A. Improvements by Lessee
During the term of the Lease, Lessee at its sole expense may, with the
prior consent of Lessor, make alterations and improvements to the
Premises for use by Lessee as provided herein, including but not
limited to, installation of signs, equipment, fixtures, partitions and
shelving. Lessor hereby preliminarily consents to Lessee's planned
improvements detailed on Exhibit B hereto, pending Lessor's approval
of the final designs.
Upon termination of this Lease, alterations and improvements to the
Premises made by Lessee and other property of Lessee left in place
with the consent of Lessor shall become the property of Lessor, unless
the consent given by Lessor to Lessee was conditioned upon Lessee's
removal of such improvements and restoration of the Premises to the
same condition as existed prior to the alterations and improvements.
If Lessee has not removed its alterations and improvements (except as
Lessor has otherwise agreed) at the termination of this Lease, Lessor
may remove them and all charges therefor will be due immediately from
Lessee.
B. Improvements by Lessor - Lessor agrees to make the alterations and
improvements to the Premises specified in Exhibit C hereto. Such
alterations and improvements shall be at Lessor's cost. Lessor
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agrees to contribute fifty thousand dollars ($50,000) towards Lessee's
construction of a new dock as specified in Exhibit B hereto, with such
contribution due upon receipt by Lessor of invoices identified by
Lessee as pertaining to completion of construction of the new dock.
7. UTILITIES AND REIMBURSEMENT COSTS - Lessee shall pay for all utilities
(e.g. gas, electricity, water and sanitary sewer) serving the Premises. In
addition, Lessee shall pay for its prorata share (which prorata share
equals 33.3% based upon property containing 412,404 sq. ft. of building
space) of all building insurance costs and real estate taxes. Such prorata
share shall be paid by Lessee within thirty (30) days after receiving an
invoice from Lessor.
8. TAXES AND INSURANCE
a. Taxes - Subject to Lessee's reimbursement of Lessee's prorata share of
real estate taxes as specified in Section 7 above, Lessor shall pay
when due all real estate taxes levied against the property which
includes the Premises. Lessee will be responsible to Lessor for any
increase in taxes resulting solely from improvements made by Lessee.
Lessee shall pay when due all personal property taxes assessed against
property owned by or placed in, upon or about the Premises by Lessee.
b. Insurance - Lessee at its expense shall procure and maintain during
the Lease term:
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i) casualty insurance on improvements and personal property of Lessee on the
Premises including, without limitation, fire, extended coverage and
all-risk hazard insurance;
ii) Commercial General Liability Insurance for Bodily Injury and Property
Damage covering Premises, completed operations and personal injury in a
combined amount of not less than $2,000,000; and
iii) Xxxxxxx'x Compensation and employer's liability insurance coverage for all
employees of Lessee employed on or about the Premises, or shall be a
qualified self-insurer, as required by the laws of the State of Illinois.
Lessee shall provide to Lessor not less than five (5) days prior to Lessee's
occupancy of the Premises certificates evidencing the existence of said
coverages, designating Lessor as an additional insured under the coverages set
forth in item ii above, and providing that the Lessor shall receive not less
than ten (10) days prior notice of any change in or cancellation of the
policies or coverage thereunder.
Each party hereby releases and relieves the other and waives, respectively,
their entire claim against the other for property loss or property damage
arising out of or incident to fire explosion, sprinkler or water damage, or
other perils included in the extended coverage endorsement of the insurance
policies of either party, on or about the Premises, whether due to the
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negligence of any of said parties, their agents or employees or otherwise.
The foregoing language shall not be construed as waiving or releasing any
claim or claims which the parties or either of them have against any
insurance company or companies.
9. REPAIRS AND MAINTENANCE - Lessor shall maintain the roof, foundations,
exterior walls (excluding windows) and fire protection system of the
Premises. The term "roof" as used herein shall include skylights, smoke
hatches and roof vents.
Lessee, at its expense, shall maintain and repair all building equipment
located on the Premises including, but not limited to, fire sprinkler
systems, sanitary and storm sewer lines, utility services, exterior
lighting, floor covering, heating, ventilation and air conditioning system,
truck doors, dock levelers, dock bumpers, dock plates, plumbing work and
fixtures. Lessee shall also maintain (including snow removal) and repair
all outside areas of the Premises, including, but not limited to, the lawn,
driveways, storage areas, dock ramps and parking areas. Lessee shall
maintain and repair all improvements installed by Lessee. Lessee, at its
expense, shall clean the Premises and arrange for regular removal from the
Premises Lessee's trash and debris. Notwithstanding the foregoing, in no
event shall Lessee have any responsibility to maintain or repair any
building equipment located outside of the Premises, even if such equipment
is a part of or connected to equipment located on the Premises. If any
building equipment located on the Premises services both areas on the
Premises and areas outside of the Premises, Lessee shall only be
responsible for a percentage of the cost to maintain and
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repair the same, this percentage being equivalent to the percentage of the
equipment's capacity designed to service only the Premises. At the
termination of this Lease term or extension thereof, the Lessee shall
return the Premises to a condition similar to that existing at the
commencement of the Lease, excepting ordinary wear and tear.
10. ACCESS BY LESSOR - Upon reasonable notice, except in emergencies where no
such notice shall be required, Lessor's representatives shall have the
right to enter the Premises to inspect the same, and to perform such work
as may be permitted or required hereunder (including testing and
maintenance of the exterior underground fire protection sprinkler lines),
to make repairs or alterations, to deal with emergencies, to post such
notices as may be permitted or required by law to prevent the perfection of
liens against Lessor's interest in the Premises or to exhibit the Premises
to prospective tenants, purchasers, or others, or for any other purposes
Lessor may deem necessary or desirable; provided, however, that Lessor
shall not unreasonably interfere with Lessee's operations. Lessee shall not
be entitled to any abatement of rent by reason of the exercise of any such
right of entry. Lessee shall give notice to Lessor at least thirty (30)
days prior to vacating the Premises and shall meet with Lessor for a joint
inspection of the Premises at the time of vacating.
11. INDEMNIFICATION - Lessee hereby agrees to defend, indemnify and hold
harmless Lessor, its officers, employees and agents, from and against all
claims and demands of any nature whatsoever arising out of the injury to or
death of any person or damage to property, to the extent caused by the acts
or omissions of Lessee, its employees, agents, guests, licensees or
invitees during the term of this Lease, or resulting from possession or use
of the Premises by Lessee.
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Xxxxxx xxxxx agrees to defend, indemnify and hold harmless Lessee, its
officers, employees and agents, from and against all claims and demands of
any nature whatsoever arising out of the injury to or death of any person
or damage to property, to the extent caused by the acts or omissions of
Lessor, its employees, agents, guests, licensees or invitees during the
term of this Lease.
12. LOSS OR DESTRUCTION OF PREMISES - In the event that the Premises are
damaged by fire or other casualty or taken by condemnation of public
authority in such a way that the Premises are rendered partially or
substantially unsuitable to Lessee for the carrying out of its business,
and if Lessor does not restore the Premises within ninety (90) days
following any such casualty or taking, then either party shall have the
option of terminating this Lease. To the extent that the Premises become
untenantable, rent shall be abated.
13. LESSEE SHALL DISCHARGE ALL LIENS - Lessee shall promptly pay all its
contractors and materialmen. Should any lien be filed against the Premises
or Lessor as a result of Lessee's act or forbearance, Lessee shall promptly
furnish Lessor security in an amount sufficient to protect Lessor from loss
or make provisions for discharge of the lien within five (5) days after
written request by Lessor.
14. DEFAULT BY LESSEE, RIGHTS AND REMEDIES - If default is made in the payment
of rent at the times herein stated, or if Lessee shall fail to perform any
of the covenants, conditions and agreements contained in this Lease and
such default continues for fifteen (15) days after written notice thereof
by Lessor to Lessee, then Lessor, or its legal
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representative, shall have all rights and remedies at law or in equity to
evict Lessee and retake possession with or without court order and without
in any way prejudicing Lessor from exercising any and all rights, remedies
or causes of action which it may have, including the right to receive and
collect the balance of rent or any other sums which may be due under this
Lease. All remedies of Lessor are cumulative and the selection of one
remedy shall not be deemed a waiver of any other.
If Lessee shall make an assignment for the benefit of creditors, file a
petition in any court for insolvency proceedings of any kind, or have a
petition filed against it for insolvency proceedings in any court, this
Lease shall automatically terminate and Lessor shall have the rights
provided for herein in the event of default.
15. WAIVER - The waiver by Lessor of breach of any term, covenant, condition or
agreement herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant, condition or
agreement.
16. ASSIGNMENT OR SUBLETTING - Lessee shall not assign this Lease or sublease
all or any portion of the Premises without the written consent of Lessor,
which consent shall not be unreasonably withheld.
17. SUBORDINATION - This Lease and all the rights of Lessee hereunder are and
shall be subject and subordinate at all times to the lien or liens of any
mortgages placed on the Premises, either prior or subsequent to the date
hereof. Lessee shall execute and deliver upon demand such
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further instrument or instruments evidencing such subordination
of this Lease as may be requested by any mortgagee or proposed
mortgagee.
18. WASTE OR NUISANCE - Lessee shall not commit or suffer to be
committed any waste upon the Premises or any nuisance or other
act or thing which may disturb the quiet enjoyment of another
tenant in the building in which the Premises is located.
19. QUIET ENJOYMENT - As long as Lessee is not in default under the
terms of this Lease, Lessee shall at all times during the term
hereof have the peaceable and quiet enjoyment, possession,
occupancy and use of the Premises.
20. BROKERS - Lessor and Lessee each represent that it has not dealt
with any broker in connection with the negotiation, execution, or
delivery of this Lease, except for Maloof Real Estate Company
("Broker"), for whose commission Lessor is solely responsible.
Each party shall defend, indemnify and hold harmless the other
party from and against any claims or demands for brokerage
commissions or finder's fees alleged to arise from the acts of
the first mentioned party.
21. OPTION TO RENEW - If Lessee is not then in default under this
Lease, Lessee shall have an option to renew this Lease for three
(3) further terms of five (5) years each ("Renewal Period" or
"Renewal Periods") by giving Lessor written notice of its
election to do so not less than one hundred eighty (180) days
prior to the end of the then current term. Such renewals shall be
on the same terms and conditions other than as to rent. Rent for
each Renewal Period shall equal the greater
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of: a) the final rental rate under the then-current term, with an annual
escalation factor thereafter equaling the increase in the Consumer Price
Index; or b) the fair market rate (based upon a five year lease of similar
property) at the beginning of the Renewal Period, with an annual escalation
factor thereafter equaling the increase in the Consumer Price Index. (If
the U.S. Department of Labor discontinues publishing the Consumer Price
Index at regular intervals, then any similar reports issued at regular
intervals by another agency of the U.S. Government for substantially
similar purposes shall be used.) If the parties cannot agree upon the fair
market rate, such dispute shall be submitted to arbitration. Lessor shall
select one arbitrator, Lessee shall select one arbitrator, and if the two
arbitrators are unable to agree upon the fair market rent within thirty
(30) days of their appointment, the two arbitrators shall select a third
arbitrator, whose determination thereof shall be binding on Lessor and
Lessee. All three arbitrators shall be licensed Real Estate Brokers with at
least five (5) years' experience in the Peoria, IL area.
22. NOTICES - Any notice or other communication provided for in this Lease
shall be given by certified mail or telefax to the other party at the
address specified below unless a party has changed its address by notice
given pursuant to this section:
Lessor:
Caterpillar Inc.
000 X.X. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn.: Real Estate Manager
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Lessee:
Xxxxxx Metalcraft Co.
0000 X. Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attn: Vice President of Finance
23. SUCCESSORS - All rights, liabilities, and covenants herein contained, given
to or imposed upon the parties hereto shall extend to and bind their heirs,
executors, administrators, successors and assigns.
24. PARTIAL INVALIDITY - The provisions of this Lease shall be severable and
the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the remaining provisions.
25. GOVERNING LAW - This Lease or any term hereof shall be construed according
to the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed on the
day and year first above written.
CATERPILLAR INC., Xxxxxx XXXXXX METALCRAFT CO., Lessee
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
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Title: Group President Title: President
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