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Exhibit 10.25
INDUSTRIAL LEASE AGREEMENT
The parties to this Agreement, entered into on this 21 day of
September, 1995 between BLACKTHORN AREA PARTNERS ("Landlord") and XXXXX
ELECTRONICS, INC. ("Tenant"), agree as follows:
1. PREMISES; PREPARATION; SUBSTITUTION.
A. THE PREMISES. The Landlord leases to the Tenant and the
Tenant leases from Landlord that parcel of land and that Building and related
parking lots and driveways to be constructed by Landlord on that parcel of land
commonly known as ______________ pursuant to those approved plans and
specifications as further described herein and that floor plan attached to this
Agreement as Exhibit A containing 48,858 square feet of leasable space (the
"Premises").
B. PREPARATION OF PREMISES. Subject to the provisions of
Section 27, on or before the date the term of this lease of the Premises
commences, the Landlord shall cause the Premises to be completed in accordance
with the terms and conditions of the "Tenant Improvement Work Letter" including
those plans and specifications as approved by Tenant attached to this Agreement
as Exhibit B. Except as otherwise provided herein, the Landlord will not be
liable to the Tenant for damages nor will the Tenant be relieved from any
obligations under this Agreement if the Landlord is prevented from completing
the Premises for the Tenant's occupancy on the date the term commences because
of strikes, lockouts, labor controversies, accidents, inability to obtain fuel
or supplies, or any other cause beyond the reasonable control of the Landlord
(each a "Force Majeure" event). In such event, however, the rent under this
Agreement shall xxxxx on a per diem basis until the Premises are completed,
unless the cause for the delay is the result of the Tenants request for
materials, finishes, or installations other than those set forth in Exhibit B,
the Tenant's changes in the work to be performed by the Landlord and not
approved by the Landlord, the performance by the Tenant or any person employed
by the Tenant of any work in the Premises, or any other cause within the
reasonable control of the Tenant.
Landlord will commence construction of the Premises and will
substantially complete the Premises and the building of which the same form a
part no more than 270 days after the date of the execution of the Lease (the
"Delivery Date"). If Landlord's Work in the Premises and Tenant's building has
not been substantially completed in accordance with EXHIBIT "B" attached hereto
by the Delivery Date, except as caused by a Force Majeure event, Tenant shall
receive two (2) days free Rent for each 24-hour period beyond the Delivery Date
until the Premises are substantially complete. This free Rent (the "Free Rent"
for late delivery) is to be in addition to any other free Rent for which Tenant
is eligible. In the event Landlord does not substantially complete Landlord's
Work within sixty days after the Delivery Date for any reason other than a Force
Majeure event, Tenant shall be entitled to terminate this Lease and receive a
refund of any and all amounts previously paid by Tenant to Landlord, or Tenant
may continue to accrue Free Rent at the rate of two (2) days Free Rent for each
day after the Delivery Date until Landlord substantially completes Landlord's
Work (the "Free Rent Period"). As used in this Lease, the terms "substantial
completion" and "substantially complete" shall mean Tenants possession of the
Demised Premises, and that (a) Landlord's Work has been completed with the
exception
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of minor items which can be completed without material interference with Tenant
and (b) a Certificate of Occupancy has been unconditionally issued for
Landlord's work.
Landlord agrees (unless otherwise provided in EXHIBIT "B"), at
Landlord's expense, to perform "Landlord's Work" in a good and workmanlike
manner in the construction of the Premises substantially in accordance with
those specifications attached hereto and made a part hereof as EXHIBIT "B".
Landlord will utilize first-quality new materials in compliance with all
applicable laws, ordinances, rules and statutes. Tenant shall also have the
right during this period to come onto the Premises to install its fixtures and
prepare the Premises for the operation of Tenant's business.
Landlord agrees, at Landlord's expense, to obtain and maintain public liability
insurance and workers' compensation insurance adequate to fully protect Tenant
as well as Landlord from and against any and all liability for death or injury
to person or damage to property by reason of construction of Landlord's Work.
Notwithstanding anything contained in this Lease to the
contrary, if Landlord fails to complete any of Landlord's Work described on
EXHIBIT "B", including the parking lot, and after thirty (30) days notice to
Tenant's Primary Mortgagee (as further defined herein), Tenant's Primary
Mortgagee has failed to commence the completion of any of Landlord's Work and to
have diligently pursued the completion thereof and as a result thereof Tenant is
unable to obtain a certificate of occupancy, Tenant shall have the right, but
not the obligation, to perform such work and deduct the amounts incurred against
the next ensuing Rent payments, and there shall be an abatement of all Rent and
other charges payable as Rent or a deferral of the Free Rent Period, if
applicable, until such time as such necessary work is completed.
Tenant shall have a period of thirty (30) days from the
substantial completion of Landlord's Work to provide Landlord with a list of any
defects incomplete or unsatisfactory items with respect to Landlord's Work which
are or would be apparent by a visual inspection. Landlord shall be obligated
within a reasonable amount of time, not to exceed thirty (30) days, to cure any
such defects, incomplete or unsatisfactory items. This time provision shall not
apply to those defects which are not or would not be apparent by a visual
inspection and which are otherwise not caused by the Tenant (hereafter referred
to as "Latent Defects") and which solely by way of example and by no means
limiting, include defects to any structural, mechanical, electrical or plumbing
system or component of the Building which is visible or manifested only
underground, within the walls or above the ceiling or below the floor, and
Tenant shall, during the Term of this Lease, have the right to report to
Landlord any Latent Defects which are in need of repair based upon the
obligation of Landlord to do work to the Premises. In connection therewith, the
provisions set forth above shall otherwise apply with respect to Landlord's
obligation to cure said Latent Defects. Tenant shall promptly notify Landlord of
its acceptance or nonacceptance of Landlord's Work setting forth the grounds,
if applicable, for the nonacceptance.
Landlord warrants that upon completion of Landlord's Work the
utilities, including without limitation the HVAC (as hereinafter defined),
interior and exterior of the Premises will meet with all present laws, codes,
regulations and ordinances at the time the Demised Premises is delivered by
Landlord to Tenant. If at any time the Premises or such utilities does not meet
with such laws, codes, regulations and ordinances as required by
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regulations of governing authorities, then, except for work that is specifically
required as a result of the particular type of operation being conducted by
Tenant, the Premises will be brought up to the proper standards at Landlord's
expense. In the event Tenant is delayed in opening its business as a result of
the repairs performed by Landlord in order to comply with this paragraph, then
the Free Rent Period shall be extended for that period of time Tenant is delayed
in opening its business as a result of such repairs. If Landlord fails to
prosecute such repairs diligently and continuously until completion then Tenant
may prosecute such repairs itself and apply the cost of same against the next
Rent obligations due hereunder. Landlord shall also be responsible for paying
any and all fines or penalties assessed by any governmental authority if the
Premises fails to meet codes and regulations of governmental authorities during
the Term of this Lease with respects to items Landlord is responsible for as set
forth in EXHIBIT "B" under Landlord's Work.
Moreover, Landlord warrants and guarantees Landlord's Work to
have been accomplished in a first-class manner with good workmanship and
materials for the longer period of twelve (12) months from the Delivery Date or
the length of any warranty or guarantee provided to Landlord from its general
contractor. After expiration of said twelve (12) month or longer warranty
period, Landlord shall assign to Tenant any and all warranties and guaranties of
third parties held by Landlord, except in the event same are unassignable,
Landlord shall enforce same for the benefit of Tenant.
2. TERM. The term of the lease of the Premises (the "Term") shall
be one hundred forty-four (144) months commencing on the date which is thirty
(30) days after the Delivery Date (the "Commencement Date"), and ending at 5:00
p.m. (local time) on the day immediately preceding the twelfth (12th)
anniversary of the Commencement Date, unless extended or sooner terminated as
provided in this Agreement.
3. USE. The premises shall be occupied and used by the Tenant for
manufacturing distribution, and office space and for all other legal uses and
for no other purpose.
4. RENT. The Tenant shall pay to the Landlord as rent, and except
as otherwise set forth herein, without any setoff or deduction whatsoever, the
sum of $3,408,000.00, in equal monthly installments of $23,666.67 in advance, on
the first day of each calendar month during the Term (the "Rent") at the address
set forth in Section 18. If the Term commences on any day other than the first
day of a calendar month, a pro rata fraction shall be paid for the partial month
at the beginning of the Term, if any, as provided below. Unpaid rent and other
monies owing to the Landlord under this Agreement shall bear interest at the
rate of 12% per annum from the date due until paid. Rent shall begin to accrue
on the date (the "Rent Commencement Date") which is the earlier of (i) the date
of written acceptance by Tenant of delivery of the completed Premises or (ii)
the date Tenant commences its business operations in the Premises, however no
sooner than the Commencement Date. However, in no event shall Rent accrue prior
to the issuance of Certificate of Occupancy by the local municipal authority.
5. UTILITIES. All utilities shall be maintained in the Tenant's
name. Payment for all utilities used upon or in connection with the Premises
shall be made by the Tenant, continuously during the Term and any extensions
hereto.
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6. TAXES AND ASSESSMENTS. Tenant covenants and agrees to pay all
real estate taxes and special assessments of State, City and County government
which may be levied and assessed against the Premises or become due during the
term of this Lease, on or before the due date thereof, together with all
interest and penalty charges assessed for late payment. Landlord shall cause all
tax bills delivered to it to be delivered to Tenant in a timely manner, and
Tenant shall in turn deliver to Landlord in a timely manner receipts giving
evidence that such taxes or assessments are current and paid in full. Tenant
shall pay all taxes levied against its personal property located within the
Premises. Tenant hereby agrees to pay license fees, sales or such other tax in
the form of sales or use tax, not only in respect to the payment of rent, but in
connection with any other service or services provided for by Landlord under
this Lease and as is now or may be required in the future under the laws of the
State of Indiana or any other governing jurisdiction which have been imposed by
a governmental authority in substitution or in lieu of real estate taxes.
7. LANDLORD'S TITLE. The Landlord's title is and always shall be
paramount to the title of the Tenant, and nothing contained in this Agreement
authorizes the Tenant to do any act which may encumber the title of the
Landlord. This lease shall be subject and subordinate to any mortgage created by
or in favor of Landlord and existing on the Commencement Date, and to all
renewals, modifications, consolidations, replacements, and extensions thereof,
and to all advances made or hereafter to be made on the security of any such
mortgage. Notwithstanding the foregoing, the mortgagee under any such mortgage
shall recognize this Agreement and, in the event of a foreclosure sale under
such mortgage or conveyance by deed in lieu of foreclosure, this Agreement shall
continue in full force and effect. The Tenant covenants and agrees that it will,
upon the written request of the mortgagee or purchaser, attorn thereto and
execute, acknowledge, and deliver any instrument that has for its purposes and
effect subordination of the mortgage to this lease. As a material inducement to
the Tenant to enter into this Lease, Landlord represents, warrants, covenants
and agrees as follows:
Landlord will be the owner of the Premises and the Real Estate
in fee simple absolute as of the Delivery Date.
The only mortgage encumbrances outstanding against the Premises
and the Real Estate as of the Commencement Date will be those
mortgages held in the order of priority listed hereafter by (1)
________________, (the "Primary Mortgagee"), (2)
__________________. For purpose of Section 1.8 of this Lease,
the address of Tenant's Primary Mortgagee for notices is:
______________________________.
Upon execution and delivery of this Lease, Landlord shall
deliver to Tenant a so called "non-disturbance" agreement in
recordable form from any mortgagee whose mortgage (or ground
lessor whose lease) shall be prior in lien to the lien of this
Lease. Such agreement shall provide that in the event of any
foreclosure of the mortgage now held by the mortgagee or
transfer in lieu of the foregoing, the mortgagee and its
successors in interest agree that
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(i) the Tenant's use, possession and enjoyment of the Premises
shall not be disturbed and this Lease shall continue in full
force and effect so long as Tenant is not in default beyond the
applicable cure periods hereunder, and (ii) that such successor
to the Landlord's interest will assume the obligations of
Landlord under this Lease accruing subsequent to any such
foreclosure or transfer.
Landlord's title to the Premises and the Real Estate will be
good and marketable as of the Delivery Date, free of liens and
encumbrances (excluding that mortgage and ground lease described
above), and there are no restrictive covenants, easements, or
other agreements, zoning laws or other ordinances or regulations
which will prevent the Tenant from occupying the Premises for
the purpose herein provided, or prevent the full use of the
parking areas or otherwise prevent the Real Estate from being
developed in accordance with the general layout shown on Exhibit
A or otherwise conflict with any of the provisions of this
Lease.
Landlord represents and warrants to Tenant that on the date of
delivery of possession of the Premises to Tenant, the Premises
shall be free of all violations, orders, or notices of
violations of all public or quasi-public authorities, and that
Tenant shall be permitted by authorities having jurisdiction
thereover to occupy the Premises for the uses and purposes
herein provided. Landlord further represents and warrants that
the Premises shall be free from any and all materials,
substances, devices or equipment defined as hazardous or
otherwise controlled under any governmental law, rule or
regulation, including any asbestos or asbestos-containing
material.
Notwithstanding anything in this Lease to the contrary, Landlord
shall be responsible for configuring the Building such that the
Building complies with all current, applicable provisions of the
Americans with Disabilities Act (the "ADA") and agrees to
indemnify and hold Tenant harmless from and against any and all
costs, losses, liabilities, fines, damages and actions sought or
incurred respecting any portion of the Building which is not in
compliance with Title III of the ADA as of the Commencement
Date. Tenant shall be responsible for complying with all
current, applicable provisions of Title I of the ADA concerning
Tenant's employment and hiring practices as an employer and
agrees to indemnify and hold Landlord harmless from and against
any and all costs, losses, liabilities, fines, damages and
actions sought or incurred respecting Tenant's failure to comply
with those provisions of Title I of the ADA concerning Tenant's
employment and hiring practices as an employer.
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8. ASSIGNMENT AND SUBLETTING.
A. TENANT. Except as further set forth herein, Tenant may not
assign or transfer all or any part of its right and interest under this
Agreement, and may not sublet or permit the use and occupancy of all or any part
of the Premises, to or by a third party without the prior written consent of the
Landlord which consent will not be unreasonably withheld. The Landlord's consent
under this Section 8 shall be in its reasonable discretion and subject to such
conditions as the Landlord may reasonably impose.
B. LANDLORD. The Landlord named in this Agreement may transfer and
assign, in whole or in part, all of its rights and obligations under this
Agreement and in the Real Estate. After such transfer or assignment the Landlord
named in this Agreement will have no further liability to the Tenant under this
Agreement for the obligations assumed by the assignee or transferee providing
the new landlord or successor recognizes Tenant's rights under this Lease and
assumes all obligations of the Landlord then accrued and thereafter accruing.
9. UNTENANTABILITY. If the Premises or the Building are made
untenantable by fire or other cause, the Landlord may elect (a) to terminate
this Agreement as of the date of such casualty by notice to the Tenant within
thirty days after that date, or (b) to repair all damage to the Premises or the
Building so that the same shall be restored to such condition as existed
immediately prior to such damage. If the Landlord elects to terminate this
Agreement, the rent shall be abated on a per-diem basis and be paid to the date
of the fire or casualty. If the Landlord elects to restore the Premises and
Building, such restoration shall be completed with reasonable promptness in
substantially the same condition as existed immediately prior to the casualty.
If the Premises are unusable during such restoration, or if the Tenant is
reasonably required to close its operations while such repairs are made, the
rent shall xxxxx during such period of repair while such operations have ceased.
If the Tenant continues to operate on the Premises during such repairs, but is
unable to use a substantial portion of the Premises, then the rent shall be
prorated in the proportion which the area of unusable leased space bears to the
total Premises for the period that said space is unusable. The Landlord will not
be liable for business losses to the Tenant by reason of damage to the Premises
except for that damage caused by the negligent or willful actions of the
Landlord. Notwithstanding anything contained in this Section 9 to the contrary,
if the Premises are not or cannot be made tenantable within one hundred twenty
(120) days after the date of the casualty for any reason whatsoever, the Tenant
may terminate this Agreement and the Lease.
10. SIGNS. Tenant shall pay for all signs related to the Tenant's
use of the Premises. No sign, advertisement, or notice may be inscribed,
painted, or affixed on any part of the outside or inside of the Premises or
Building by the Tenant except as first consented to by Landlord, which consent
will not be unreasonably withheld, and then at the Tenant's expense and only of
such color, size, style and material as is approved by the Landlord in writing.
The Landlord reserves the right to remove all other signs at the expense of the
Tenant. At the expiration of the Term the Tenant shall remove its signs from the
Premises and the Building.
11. ALTERATIONS. No structural alterations or those affecting the
mechanical, electric or plumbing systems of the Building or additions may be
made and no fixtures may
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be affixed to the Premises or the Building by the Tenant without prior written
consent of the Landlord. All such alterations, additions, and fixtures, except
the Tenant's trade fixtures, equipment and business machines, shall be and
remain the property of the Landlord unless otherwise agreed in writing by the
Landlord.
12. USE OF THE PREMISES. The Tenant (a) shall occupy and use the
Premises during the Term for the purposes specified in Section 3, above and none
other; (b) may not make or permit any use of the Premises which, directly or
indirectly, is forbidden by public law, ordinance, or government regulations
which may be dangerous to life, limb, or property, or which may invalidate or
increase the premium cost of any policy of insurance carried by Landlord on or
covering the Building and its operations; (c) may not obstruct or use for
storage or for any purpose other than ingress and egress the driveways, parking
areas, sidewalks, entrances, courts, corridors, vestibules, halls, elevators,
and stairways of the Building; (d) may not create or maintain a nuisance in the
Premises, (e) may not place, or permit to be placed, any article of any kind on
the exterior walls except for any signs approved by Landlord; (f) may not attach
additional locks or similar devices to any window and, upon termination of this
Agreement or of the Tenant's possession, shall surrender all keys to the
Premises and shall explain to the Landlord all combination locks on safes,
cabinets, and vaults; (g) shall be responsible for locking the doors and closing
the transoms and windows in and to the Premises; (h) may not install any awnings
or other form of outside window covering or window ventilators or similar
devices without the prior written consent of the Landlord; (i) except as
provided in Exhibit B, may not overload any floor, shall route and locate safes
and other heavy articles as the Landlord may direct; (j) may not xxxx, drill
into, or in any way deface any part of the Premises or the Building without
repairing any damage caused as a result
The Landlord or Tenant may exclude or repel any peddler, solicitor or
beggar. In addition to all other liabilities for breach of any covenant of this
Section 12, the Tenant shall pay to the Landlord, as additional rent under this
Agreement, an amount equal to any increase in insurance premiums paid by
Landlord caused by such breach. The violation of any covenant of this Section 12
may be restrained by injunction.
13. REPAIRS.
A. BY TENANT. Tenant shall take good care of the Premises and the
fixtures in the Premises and other than as set forth in Subsection B of this
Section 13, shall keep the Premises in good order, condition, and repair at the
Tenant's expense during the Term, including the replacement of all interior
broken glass and exterior glass broken by the Tenant with glass of the same size
and quality. If the Tenant does not make necessary repairs within a reasonable
time and adequately, the Landlord may, but need not, make such repairs, and the
Tenant shall promptly pay the Landlord for the cost thereof as additional rent.
On the expiration of the Term or on earlier termination or cancellation of this
Agreement, the Tenant shall surrender the Premises and the Landlord's fixtures
in as good condition as of the time of delivery to the Tenant, subject to
reasonable wear and tear. All injury to the Building or fixtures caused by
moving of the Tenant in and out of the Building caused by the Tenant and any
damage done by water, steam, electricity, fire or other substances to the
Building or fixtures, caused by the Tenant may be repaired by the
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Landlord at the expense of the Tenant, and the cost thereof shall become
immediately due and payable by the Tenant as additional rent upon the delivery
of an itemized statement of such costs by the Landlord to the Tenant, or mailing
the same, postage prepaid, to the Tenant at its last known address.
B. BY LANDLORD. Except for defects occurring solely as a result of
Tenants actions for which Tenant shall bear sole responsibility and cost,
Landlord covenants and agrees, at its expense without reimbursement or
contribution by Tenant, to keep, maintain and replace, if necessary, the
plumbing system, the electrical system, the utility lines and connections to the
Premises, the sprinkler mains, if any, and structural systems including, without
limitation, the roof, roof membrane roof covering (including interior ceiling if
damaged by leakage) and load-bearing walls and floor slabs and foundations
necessary to preserve or maintain the useful life of any such component or
system. In the event the Premises become or are out of repair and not in normal
operating condition due to either the failure of Landlord to comply with the
terms of this Section 14 or which constitute a Latent Defect, then Landlord
shall perform or cause to be performed any and all repairs necessary to restore
the Premises to a state of normal operating condition and repair. If such
repairs are not completed within ten (10) days after Landlord has received
written notice from Tenant of such state of disrepair or if such repairs cannot
reasonably be completed within such ten (10) day period and Landlord shall fail
to commence such repairs within ten (10) days after notice and proceed
diligently thereafter, then Tenant may either (i ) terminate this Lease
immediately upon delivery of written notice to Landlord if such failure to
repair materially and adversely affects Tenant's operation of its business in
the Premises or poses a threat to the safety of Tenant's employees or the
integrity of the Building, or (ii) prosecute such repairs itself and apply the
cost of such repairs against the next maturing monthly installment or
installments of Rent due hereunder. Notwithstanding the foregoing in the case of
an emergency (such as, without limitation, leaky roof), Tenant shall have the
right to prosecute immediately any and all necessary repairs and shall deliver
contemporaneous notification to Landlord of the emergency and related repairs
and offset the cost of such repairs against the next maturing monthly
installment or installments of Rent due hereunder; provided further that if
contemporaneous notice is not practicable, as determined by Tenant in its sole
judgment, then Tenant shall provide such notice as soon thereafter as reasonably
practicable.
14. EMINENT DOMAIN. If the Building or Real Estate, or any portion
thereof, which in Tenant's reasonable judgment prevents the operation of the
Tenant's business shall be taken or condemned by a competent authority for any
public use or purpose, the Term shall end upon, and not before, the date when
the possession of the part so taken shall be required for such use or purpose.
Otherwise, Rent shall xxxxx proportionately with respect to that portion of the
Building or Real Estate so taken. The Tenant may not share in the condemnation
award, except for its personal property and relocation awards, if any, out of
pocket costs and loss of its leasehold improvements.
15. ENVIRONMENTAL CONDITIONS.
A. COMPLIANCE WITH LAWS. As a principal element of the
consideration for the lease of the Premises to the Tenant by the Landlord, the
Tenant acknowledges and agrees
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that it is familiar and shall strictly comply with all applicable federal,
state, and local statutes, laws, rules, regulations, and ordinances
(collectively, the "Laws") relating to the use, handling and disposal of
hazardous and toxic substances and wastes ("Hazardous Substances"), including
all air, water, soil, solid waste and other environmental requirements, as an
operator of a business on the Premises under this Agreement, including any
community right-to-know rules and regulations. The Tenant agrees to comply with
all of the Laws, to obtain all applicable permits, and to file all required
notices and reports during the Term and the Tenant's possession of the Premises.
B. INTENT TO HANDLE HAZARDOUS SUBSTANCES. The Tenant shall check
this box if the Tenant intends or expects to handle or dispose of any Hazardous
Substances on the Premises or the Real Estate. The Tenant shall immediately
notify the Landlord in writing if the Tenant does not now intend or expect to
handle or dispose of any Hazardous Substances on the Premises or the Real
Estate, but does handle or dispose of any Hazardous Substances during the Term.
C. CONTAINERS: SPILL CATCHMENT. The Tenant may install or use
above-ground or underground storage tanks or containers only in strict
accordance with the Laws and only with the prior written consent of the Landlord
and according to standards and restrictions reasonably imposed by the Landlord.
To the extent required by law, the Tenant shall provide secondary container or
spill catchment devices to effectively prevent any spill or overflow related to
the filling of any above-ground or underground tanks from contaminating the soil
or ground water. With respect to each tank and container located in or on the
Premises or the Real Estate, the Tenant shall label each container as to the
contents in each such container. If the container holds any Hazardous
Substances, the label shall specify the Hazardous Substance or Substances
contained.
D. SITE ASSESSMENT BY TENANT. At such time as the Landlord has
reason to believe a Hazardous Substance may be present in or on the Real Estate
by reason of a spill or other discharge of a Hazardous Substance, or otherwise,
the Tenant, shall within thirty (30) days after written request from the
Landlord, provide the Landlord with an environmental site assessment or
environmental audit report prepared by an environmental engineering firm
acceptable to the Landlord, to assess with a reasonable degree of certainty the
presence or absence of any Hazardous Substance and the potential costs in
connection with abatement, cleanup or removal of any hazardous substance found
on, under, at or within the Real Estate. If the assessment or report shows the
presence of any Hazardous Substance, the Tenant shall pay all costs related to
the preparation of the report and assessment and to the required remediation. If
the assessment fails to show the presence of any Hazardous Substance, Landlord
shall pay all costs related to the preparation of the report and assessment and
failing to do so within (30) days notice by Tenant, Tenant shall be entitled to
pay these costs and deduct same from the next rental payments.
E. SITE ASSESSMENT BY LANDLORD. In the event Tenant vacates the
Premises or defaults with respect to its obligations under Subsection D above,
the Landlord (or its representatives) may visit the Real Estate and perform or
cause to be performed environmental site investigations and assessments ("Site
Assessments") on the Real Estate for the purpose of determining whether there
exists in or on the Real Estate any environmental condition which could result
in any liability, cost or expense to any owner or
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occupier of the Real Estate. Such Site Assessment may include both above and
below the ground testing as may be necessary to properly conduct the Site
Assessments in the opinion of the persons conducting the Site Assessments (the
"Site Reviewers"). The Tenant shall supply to the Site Reviewers such historical
and operational information regarding the Premises and the Real Estate as may be
requested by the Site Reviewers to facilitate the Site Assessments and will make
available for meetings with the Site Reviewers appropriate personnel having
knowledge of such matters. In the event the Site Assessment reveals the presence
of Hazardous Substances introduced by the Tenant, the cost of performing all
Site Assessments shall be paid by the Tenant within five (5) days after written
demand by the Landlord, and thereafter shall bear interest at the rate of 12%
per annum. Otherwise, the Landlord shall bear this cost.
F. ENVIRONMENTAL INDEMNIFICATION. The Tenant shall indemnify,
release, discharge, defend and hold the Landlord harmless from and against, and
shall assume, any and all liability including, without limitation, all liability
for reporting, assessment, investigation, removal and remediation, and all costs
and expenses, arising out of, as a result of, or in connection with any failure
of the Tenant or its employees, agents or assigns, to comply with any of the
Laws and any and all contamination or the results thereof in the air, soil, and
ground water at the Premises and the Real Estate, or at a disposal site to which
waste materials generated by the Tenant at the Premises or the Real Estate, or
elsewhere, were disposed, as well as any and all releases of contamination from
the Premises or the Real Estate caused by or contributed to by the Tenant during
the Term and the Tenant's possession of the Premises however except as to any
Hazardous Substances introduced by Landlord. The Tenant's obligations under this
paragraph shall arise on the discovery of any violation of or non-compliance
with any Law by the Tenant, or the contamination of the Premises or the Real
Estate, whether or not any federal, state or local agency has taken or
threatened any action. Landlord shall indemnify and hold Tenant harmless from
and against any and all claims, demands, losses, costs, liabilities and
judgments arising from or relating to (i) the violation of any environmental
laws, or (ii) the presence of any contamination in, on, or below the Real
Estate, including any ground water, existing as of the Commencement Date.
G. SURVIVAL OF SECTION. The provisions in this Section 15 shall be
in effect from the date of this Agreement, shall apply whether or not the Tenant
subsequently subleases the Premises, or any part of the Premises, to any third
party, and shall remain in effect and shall survive the termination or
expiration of this Agreement.
16. RIGHTS RESERVED TO LANDLORD. The Landlord reserves all rights
incident to its ownership of the Building, including, but not limited to, the
right (d) if, during or prior to the termination of this Agreement, the Tenant
vacates the Premises, to decorate, remodel, repair, alter, or otherwise prepare
the Premises for reoccupancy; (f) to exhibit the Premises during the last 180
days of the Term during normal business hours and upon no less than twenty-four
(24) hours notice to Tenant; (g) to take any and all measures, including
inspections, repairs, alterations, additions, and improvements to the Premises
or to the Building as may be necessary or desirable for the safety, protection,
or preservation of the Premises or to the Building or the Landlord's interest
therein, or as may be necessary or desirable in the operation of the Building
during normal business hours and upon no less
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than twenty-four (24) hours notice to Tenant. The Landlord may enter upon the
Premises and may exercise any or all of the foregoing rights hereby reserved
without being deemed liable for an eviction or disturbance of the Tenant's use
of possession and without being liable in any manner to the Tenant providing
same causes no unreasonable interference with Tenant's business operations.
17. HOLDING OVER. If the Tenant retains possession of the Premises,
or any part thereof, after the termination of this Agreement by lapse of time or
otherwise, the Tenant shall pay to the Landlord rent at two times the rate of
the then current rental specified in this Agreement for the time that the Tenant
thus remains in possession. The provisions of this Section 17 do not waive the
Landlord's right of re-entry or any other right under this Agreement.
Notwithstanding anything in this Section to the contrary, in the event that
Tenant is conducting negotiations in good faith with Landlord for a renewal of
the Lease, Tenant may remain in the Premises at the same annual Rent as during
the lease year of the Term (or extended term as the case may be) provided,
however, upon reaching agreement with Landlord on new lease terms for the
renewal, Tenant will pay, retroactively, the agreed to new annual minimum Rent
for the entire holdover period; and further, provided, in the event that
Landlord deems that Tenant is not, in Landlord's reasonable judgment bargaining
in good faith, or Landlord and Tenant cannot reach a mutually acceptable
agreement in Landlord's reasonable judgment then upon thirty (30) days' notice
to Tenant, Tenant's rent shall be two times the amount of the Rent then
applicable pro rated on per diem basis for each day Tenant shall retain
possession of the Premises or any part thereof after expiration of said thirty
(30) days' notice.
18. NOTICE AND PAYMENTS. Any notice which the Landlord may desire or
be required to give the Tenant shall be deemed sufficiently given or rendered if
delivered in writing to the Tenant personally or sent by certified or registered
mail, addressed to the Tenant at the Premises, return receipt requested. All
payments to the Landlord and any notice which the Tenant may desire or be
required to give the Landlord shall be deemed sufficiently given or rendered if
delivered in writing to the Landlord personally or sent by certified or
registered mail, return receipt requested, addressed to the Landlord, Blackthorn
Area Partners, c/o Holladay Property Services, Inc., 000 Xxxx Xxxxxx Xxxxxx,
X.X. Xxx 0000, Xxxxx Xxxx, XX 00000, or at such other place as the Landlord may
from time to time designate in writing.
19. DEFAULT BY TENANT. In the event of a default by the Tenant under
this Agreement, the Landlord will have the following remedies:
A. TENANT'S INSOLVENCY. If the Tenant makes an assignment for the
benefit of creditors or if a receiver is appointed for the Tenant or for the
Tenant's assets or interest in this Agreement, or if any voluntary or
involuntary petition or similar pleading under any section of any bankruptcy law
is filed by or against the Tenant or any voluntary or involuntary proceedings in
any court or tribunal is instituted to declare the Tenant insolvent or unable to
pay its debts and, in the case of any involuntary petition or proceeding which
Tenant is not diligently seeking to have dismissed, if it is not dismissed
within thirty days from the date it is filed, then the Landlord, at its election
and without further notice or demand and either with or without entry upon the
Premises, may immediately terminate and cancel this Agreement and this lease and
shall thereafter, for the remainder of the Term,
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be entitled to recover damages in an amount equal to the present value of the
rental obligation herein stated, including increases in rent as provided in this
Agreement, less rent for the Premises which the Landlord obtains.
B. LANDLORD'S REMEDIES. If the Tenant fails to pay any rent or
other monies owed to the Landlord on the date it is due, and thereafter fails to
cure such default within ten days after receipt of written notice from the
Landlord, or is otherwise in default of any of its obligations or duties under
this Agreement and is not in the process of diligently curing same, then the
Landlord may, without being liable for prosecution or claim for damages, enter
into and upon the Premises, or any part thereof, and repossess the same, with or
without terminating this lease and without prejudice to any of its remedies for
rent, entry, possession, damages, or breach of covenant and may, at its option,
terminate this Agreement by giving written notice of its election to do so or
may, at its option, lease the Premises, or any part thereof, as the agent of the
Tenant, or otherwise. The Tenant shall, without demand or further process of
law, pay to the Landlord at the end of each month during the Term the difference
between the rent due to the Landlord from the Tenant under this Agreement,
including any increases in rent due under this Agreement, and the net receipts,
if any, being received by the Landlord from the Premises (such net receipts to
be calculated by deducting from the gross receipts the expenses incurred by the
Landlord in connection with the re-letting of the Premises and performing the
Tenant's obligations under this Agreement). If the rent for re-letting the
Premises is higher than the monthly rent under this Agreement, then such excess
rent shall belong to the Landlord and the Tenant will have no claim or right
thereto. The failure or delay of the Landlord in taking any action or pursuing
any remedy in the event of a default by the Tenant may not be considered a
waiver or consent by the Landlord.
C. TENANT'S AND LANDLORD'S ENFORCEMENT COSTS. The other party shall
pay upon demand all the prevailing party's costs, charges, and expenses,
including reasonable fees of attorneys, agents, and others retained by the
prevailing party incurred in enforcing the other party's obligations under this
Agreement or incurred by the prevailing party in any litigation, negotiation, or
transaction in which the other party causes the prevailing party to become
involved or concerned.
20. DEFAULT BY LANDLORD. If the Premises, or any part thereof, are
at any time subject to a mortgage, a deed of trust, or a similar lien instrument
and this Agreement or the rentals are assigned to such mortgagee, trustee, or
beneficiary, and the Tenant is given written notice thereof, including the post
office address of such assignee, then the Tenant may not terminate this
Agreement for any default on the part of the Landlord without first giving
written notice by certified or registered mail, return receipt requested, to
such assignee, to the attention of the mortgage loan department, specifying the
default in reasonable detail, and affording such assignee a reasonable
opportunity to make performance at its election for and on behalf of the
Landlord. In the event Landlord shall neglect or fail to perform or observe any
of the provisions, covenants or conditions contained in this Lease on its part
to be performed or observed (i) within ten (10) days after written notice in the
case of default in the payment of money, and (ii) in all other cases within
thirty (30) days after written notice of default, unless more than thirty (30)
days shall be required because of the nature of the default, in which case if
Landlord shall fail to
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proceed diligently to cure such default after notice, Landlord shall be
responsible to Tenant for any and all actual damages sustained by Tenant as a
result of Landlord's breach. After the expiration of any such period, Tenant, in
addition to any other right or remedy it may have at law or in equity, shall
have the right to cure any such default at Landlord's expense, and Landlord
shall be obligated to reimburse Tenant on demand (in default of which Tenant may
reimburse itself out of succeeding rent payments) for all of Tenant's costs and
expenses in connection therewith, including, but not limited to, all costs and
reasonable attorneys' fees incurred to cure such default or breach of Lease.
21. LIABILITY INSURANCE AND INDEMNIFICATION.
A. REQUIRED COVERAGE. The Tenant shall maintain, and provide to the
Landlord acceptable evidence of liability insurance of not less than $1,000,000
per occurrence for bodily injury and not less than $100,000 per occurrence for
property damage. The Landlord and its mortgagee shall be designated as a named
insured with the right to notice of cancellation or amendment thirty (30) days
prior to the effective date thereof. Said insurance shall be maintained during
the Term. During the construction of the Building, Landlord shall maintain a
policy of builder's risk insurance in an amount no less than the full
replacement value of the improvements.
B. INDEMNIFICATION. The Tenant shall indemnify, defend, and save
the Landlord harmless against and from all losses, liabilities, costs, damages,
and expenses, including reasonable engineers', architects' and attorneys' fees,
which may be incurred by or asserted against the Landlord by reason of or in
respect to any of the following occurring during the Term:
(i) Any work or thing done by the Tenant in, or, or about the
Premises, or any part thereof;
(ii) Any use, nonuse, possession, occupation, condition, operation,
maintenance, or management by the Tenant of the Premises, or any part thereof;
(iii) Any negligence on the part of the Tenant occurring in the
Premises and the Building, and on the Building Site.
C. DEFENSE. If any action or proceeding is brought against the
Landlord, or the Real Estate by reason of any losses, liabilities, costs,
damages, or expenses incurred by or asserted against the Landlord, by reason of
or in respect to any of the matters or things set forth in subsection B of this
Section 21, the Tenant shall, upon written notice from the Landlord and at the
Tenant's expense, resist or defend such action or proceeding. The Tenant agrees
to give the Landlord prompt written notice of any claim, action, or proceeding
brought or threatened against the Landlord, the Tenant, or the Real Estate.
Landlord hereby indemnifies and agrees to save Tenant, its officers,
directors, employees and agents harmless from and against any and all claims,
suits, proceedings, actions, causes of action, responsibility, liability,
demands, judgments and executions (hereinafter referred to as "Claims") which
either (i) result from any default, breach, violation or non-performance of this
Lease or any provision of this Lease by Landlord; (ii) result from occurrences
of injury to or death of any person, or damage to property, arising out of any
work, construction, reconstruction, restoration, maintenance or other work to be
done hereunder by Landlord, unless such Claims are caused by the act or omission
of Tenant, or its employees, agents or contractors.
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22. TENANT ESTOPPEL CERTIFICATE. The Tenant agrees that at any time
and from time to time, upon not less than ten (10) days prior written request by
the Landlord, then the Tenant shall execute, acknowledge, and deliver to the
Landlord a statement in writing certifying, to the extent it is true, that this
Agreement is unmodified and in full force and effect (or, if there have been
modifications, stating the modifications, and that this Agreement, as so
modified, is in full force and effect), the commencement and termination dates
of this Agreement, that the Tenant has accepted the Premises, the date to which
the rental and other charges have been paid in advance, if any, and that the
Tenant has no claims against the Landlord or offsets against rent. It is
intended that such statement may be relied upon by prospective purchasers of the
Landlord's interest in the Real Estate, or by the mortgagee or assignee of any
mortgage on the Landlord's interest in the Real Estate.
23. LIENS. The Tenant may not do any act which in any way encumbers
the interest or title of the Landlord in the Premises or the Real Estate, nor
may the interest or title of the Landlord in the Premises or the Real Estate be
in any way subject to any claim by way of lien or encumbrance, whether by
operation of law or by virtue of any express or implied contract by the Tenant.
The Tenant may not permit the Premises or the Real Estate to become subject to
any mechanics', laborers' or material men's liens on account of labor or
material furnished, or claimed to have been furnished, to the Tenant for or on
the Premises or the Real Estate. In the event, but only in the event, Tenant
fails to remove or bond over such lien or diligently pursue same, the Landlord
may (but is not required to) remove or discharge such lien, or claim for lien
(with the right, in its discretion, to settle or compromise the same), and any
amounts advanced by the Landlord for such purposes shall be additional rent
immediately due from the Tenant to the Landlord.
24. MISCELLANEOUS.
A. The invalidity of any provision, clause, or phrase will not
serve to render the balance of this Agreement ineffective or void. This
Agreement shall be governed by the laws of the State of Indiana.
B. If the Landlord or the Tenant institutes legal proceedings
against the other for breach of any of the covenants or conditions in this
Agreement, then the prevailing party shall recover reasonable attorneys' fees
and expenses from the other.
C. This Agreement shall be binding upon and inure to the benefit of
the respective parties hereto, their heirs, executors, administrators,
successors, and assigns. Any reference to the Tenant or the Landlord shall, for
the purpose of determining liability for property damage, personal injury, and
the like, be deemed to include the Tenant, the Landlord, his or its receptive
agents, employees, servants, partners, independent contractors, licensees,
invitees, guests or visitors.
D. This Agreement supersedes and cancels all prior negotiations and
agreements between the Landlord and the Tenant. This Agreement may be amended or
altered only by written agreement signed by both the Landlord and the Tenant.
E. All amounts owed by either the Tenant or Landlord to the other
under this Agreement shall be deemed due and payable on the fifth working day
after the date the party renders a statement of account therefore to the other
and shall bear interest at the rate of 12% per annum from the date due and
payable until paid.
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F. So long as the Tenant has paid the rent and all other charges
under this Agreement and has performed all obligations under this Agreement,
then the Tenant shall have quiet possession of the Premises during the Term.
G. No consent or approval required of the Landlord in this
Agreement may be unreasonably withheld.
H. Canvassing, soliciting and peddling on the Real Estate are
prohibited, and the Tenant shall cooperate to prevent the same.
25. RULES AND REGULATIONS. The Landlord reserves the right to make
reasonable rules and regulations for the Premises and the Real Estate. The
Tenant shall abide by all reasonable rules and regulations adopted by the
Landlord pertaining to the operation and management of the Premises and the Real
Estate. If any rules and regulations adopted by the Landlord are contrary to the
provisions of this Agreement, the terms of this Agreement shall govern.
26. OPTION TO EXTEND. Tenant shall have the right and option (the
"Extension Option"), which said option and right shall not be severed from this
Lease or separately assigned, mortgaged or transferred, to extend the initial
Term for two (2) additional consecutive periods of five (5) years each
(hereinafter referred to as the "Extension Periods"), provided that (a) Tenant
shall give Landlord notice of Tenant's exercise of such option at least six (6)
full calendar months prior to the expiration of the initial Term for the first
(5) year extension and at least six (6) full calendar months prior to the
expiration of the first Extension Period for second five (5) year extension and
(b) Tenant shall not be in default (beyond expiration of applicable notice and
cure periods, if any) in the performance or observance of any of the terms and
provisions of the Lease on the part of Tenant to be performed or observed at the
time of giving the applicable notice and the commencement of the applicable
Extension Period. Except for the amount of Rent, all the terms, covenants,
conditions, provisions and agreements in the Lease contained shall be applicable
to the Extension Period, except that (i) there shall be no further option to
extend the Term and (ii) Landlord shall not be obligated to make or pay for any
improvements to the Premises. If Tenant shall give notice of its exercise of the
option to extend in the manner and within the time period provided aforesaid for
either Extension Period, the Term shall be extended upon the giving of such
notice without the requirement of any further attention on the part of either
Landlord or Tenant. Landlord hereby reserves the right, exercisable by Landlord
in its sole discretion, to waive (in writing) any condition precedent set forth
in clauses (a) or (b) above.
If Tenant shall fail to give timely notice of the exercise of such
option as aforesaid, Tenant shall xxxx no right to extend the Term of this
Lease, time being of the essence of the foregoing provisions. Any assignment of
this Lease by Tenant, any subletting of all or any part of the Premises and any
termination of this Lease shall terminate this Extension Option and all rights
granted to Tenant under this Section 26, unless such assignment or subletting is
permitted under Section 9 of this Lease.
The Rent payable for either Extension Period shall be the Fair Market
Rent (as said term is hereinafter defined) for the Premises as of commencement
of the subject Extension Period. In determining Fair Market Rent, the following
factors, among others, shall be
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taken into account and given effect: size of the Premises, location of the
Premises, lease term and rents being quoted in St. Xxxxxx County, Indiana for
comparable space.
Landlord shall have the right to initially designate the Fair Market
Rent by giving written notice (the "Rent Notice") to Tenant. Such notice shall
be given to Tenant no later than sixty (60) days prior to the deadline set forth
above by which Tenant must give Landlord notice of Tenant's exercise of this
option to extend for either Extension Period. If Tenant disagrees with
Landlord's designation of the Fair Market Rent, Tenant shall have the right, by
written notice (the "Arbitration Notice") given to Landlord within fifteen (15)
days after Tenant has notified Landlord of its exercise of its option to extend,
to submit such Fair Market Rent to arbitration as follows: Fair Market Rent
shall be determined by impartial arbitrators, one to be chosen by Landlord, one
to be chosen by Tenant, and a third to be selected, if necessary, as below
provided. Landlord and Tenant shall each pay all actual costs and expenses of
their respective arbitrators and they shall split the actual costs and expenses
of the third arbitrator. The unanimous written decision of the two first chosen,
without selection and participation of a third arbitrator, or otherwise, the
written decision of a majority of three arbitrators chosen and selected as
provided below, shall be conclusive and binding upon Landlord and Tenant.
Landlord and Tenant shall each notify the other of its chosen arbitrator within
ten (10) business days following the call for arbitration and, if such two
arbitrators shall not have reached a unanimous decision within thirty (30) days
after their designation and are unable to agree upon the designation of a third
arbitrator, they shall so notify the American Arbitration Association sitting in
Indianapolis, Indiana and request it to select an impartial third arbitrator,
who shall be an office building owner, a real estate counsellor or lawyer or a
broker dealing with like types of properties, to determine Fair Market Rent as
herein defined. The arbitrators shall advise the parties of their determination
at least 30 days prior to the respective Extension Period. If the decision by
the arbitrators has not been made before the commencement of Tenant's obligation
to pay rent based upon such Fair Market Rent, then Tenant shall pay Rent and
other charges under the Lease in respect of the Premises in the amounts which
were applicable to the twelve (12) month period immediately prior to the
applicable Extension Period until the decision of the arbitrators, at which time
Tenant shall pay any underpayment of Rent and other charges to Landlord, or
Landlord shall refund to Tenant any overpayment, as the case may be. Failure of
Tenant to give an Arbitration Notice within fifteen (15) days after receipt of
the Rent Notice (time being of the essence) shall constitute Tenant's agreement
to the Rent specified in the Landlord's Rent Notice.
27. CONDITIONS PRECEDENT. This Lease and the Tenant's obligations
under this Lease are conditioned upon and expressly subject to: (i) Landlord
acquiring good and marketable title to the Real Estate no later than November 1,
1995, (ii) completion and attachment to the Lease of the floor plan to be
attached as Exhibit A depicting the layout of the Building, the interior of the
Premises and the Building exterior and all parking areas and driveways, all as
satisfactory to Tenant and completion and attachment to the Lease of the
Landlord Work Letter as Exhibit B to include those specifications which are
satisfactory to Tenant no later than thirty (30) days after this Lease is signed
by the Tenant; (iii) Landlord making and diligently prosecuting all applications
to effect an abatement of the taxes assessed against the Real Estate through all
state, county, city and other applicable
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governmental entities and having such abatement in effect as of the Commencement
Date. In the event any one of these conditions are not met by their respective
deadlines (unless extended in writing by Tenant), Tenant shall have the right to
terminate this Lease upon written notice to Landlord upon which event Tenant
shall be relieved of all obligations under the Lease whether heretofore accrued
or not and shall be entitled to reimbursement of any sums advanced or otherwise
paid to Landlord.
IN WITNESS WHEREOF, the parties have entered into this Industrial Lease
Agreement as of the date first written above.
LANDLORD
BLACKTHORN AREA PARTNERS
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Its: President
Xxxxxxx of Indiana, Inc.
General Partner
TENANT
XXXXX ELECTRONICS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
President
