This Indenture of Lease, dated as of March 1, 2001
Exhibit 10.13
This Indenture of Lease, dated as of March 1, 2001
Witnesseth: that ST. XXXXXXX PROPERTIES, a Missouri Partnership, having its principal place
of bussiness at 00 Xxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000 (the Landlord), hereby leases unto ACF
INDUSTRIES, INCORPORATED
A New Jersey corporation having its principal place of business at 000 Xxxxx Xxxxxx, Xx. Xxxxxxx,
XX, 00000
(the Tenant), and the Tenant accepts from Landlord, the premises described as 128,626 square feet,
Building 91 & 91A outlined on the floor plan(s) and attached hereto as Exhibit A (the Premises)
located at Xxxxx and Second Streets, St. Xxxxxxx, MO (the Building) (said Building, together with
the land on which it is located and all other improvements thereon being called the Property), for
the term, the rent, and subject to the conditions and covenants hereinafter provided. Parking
identified on Exhibit “A” shall be for exclusive use by the Tenant.
The term of this lease shall commence on March 1, 2001 and shall end on February 28, 2006 unless
sooner terminated as provided herein, to be occupied and used by the Tenant for manufacturing and
office. Landlord hereby grants to Tenant the right, privilege and option to extend the term for
two (2) successive periods of five (5) years each under the same terms and conditions except that
monthly rent shall be adjusted for one-half (50%) of the increase in the consumer price index
(CPI) from the base period beginning 4/1/01 and ending 12/31/05 for the first option and if the
second option is exercised, one-half (50%) of the increase in the CPI from the base period beginning
1/1/06 and ending 12/31/10 for the second option period. Tenant shall exercise each option by
giving Landlord six months prior written notice of its intent to exercise the option. The maximum
rent increase for the first renewal period shall not exceed $.25 per square foot per year and the
maximum rent increase for the second renewal period shall not exceed $.25 per square foot
per year.
In consideration thereof, the parties covenant and agree as follows:
1. RENT
(a) The Tenant shall pay to the Landlord as Base Rent, in legal tender, at the Landlord’s
office at 00 Xxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000
or as directed from time to time by Landlord’s notice, the monthly amounts as outlined in Exhibit
“D” in advance promptly on the first day of every calendar month of the term, except for the first
month’s rent which is due and payable on execution, and pro rata, in advance, for any partial month,
without demand, the same being hereby waived and without any set-off on deduction whatsoever. Interest at
the per annum rate of 10% will be charged retroactive to the first day of the month for rents not paid by the tenth (10th) of the calendar
month. Landlord shall notify tenant in writing of late payments. Notwithstanding the foregoing no
late payment penalty shall be payable by Tenant until Tenant has received two late payment notices
within a twelve
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calendar month, period. Following receipt of the second late payment notice, late payment
penalties shall be payable by Tenant for all late payments made in the twelve month period
following the second notice. If no late payments are made in such period, the requirement for two
notices shall again apply.
(b) It is understood that the Base Rent specified in Exhibit “D” does not anticipate any
increase in the amount of taxes on the Property. There fore, in order that the rental payable
throughout the term of the lease shall reflect any such increase the parties agree as hereinafter
in the Section set forth. The annual Base Rent payable pursuant to Exhibit “D” as increased
pursuant to Paragraphs (b) and (c) of this Section is hereinafter called the “Rent”. Certain
terms are defined as follows:
Tenant’s Share: For each calendar year commencing with the calendar year following the Base
Year, the amount of the Tenant’s pro rata share of the increase in Taxes for the business complex
over the Base Year. The Tenant’s Share is agreed to be 27% of such increase for increases in Taxes
covering Building 91 and Building 91A. Tenant has the right to contest property taxes should the
Landlord not contest such taxes and Tenant shall be given copies of all tax bills.
Base Year: The Base Year for Taxes as to each separate tax, shall be the fiscal tax year
ending 2001. For purposes of computing tax escalation “Base Year” and the comparison year for
“Taxes” will be the fiscal tax year separately determined for each separate tax comprising
“Taxes”.
Taxes: (i) All real estate taxes, payable (adjusted after protest or litigation, if any) for
any part of the term of this lease, exclusive or discounts, on the Property, (ii) any taxes which
shall be levied in lieu of any such taxes or which shall be levied on the gross rentals of the
Property computed, in each instance, as if the Building were the sole asset of Landlord, (iii) any
special assessments against the property which shall be required to be paid during the calendar
year in respect to which taxes are being determined, and (iv) without duplication, the expense of
contesting the amount or validity of any such taxes, charges or assessments, such expense to be
applicable to the period of the item contested and to be apportioned, to the extent appropriate,
the Landlord reserves the right to re-compute the additional rent due hereunder in the event of a
reduction of Taxes for the Base Year and the Tenant agrees to pay such additional rent when billed.
(c) In order to provide for current payments on account of an increase in the Taxes over the
Base Year the Tenant agrees, at Landlord’s request, to pay, as additional rent, Tenant’s Share due
for the ensuing twelve (12) months, as reasonably estimated by Landlord from time to time, in
twelve (12) monthly installments, each in an amount equal to 1/12th of Tenant’s Share
so estimate by Landlord commencing on the first day of the month following the month in which
Landlord notifies Tenant of the amount of such estimated Tenant’s Share. If, as finally
determined, Tenant’s Share shall be greater than or be less than the aggregate of all installments
so paid on account to the Landlord for such twelve (12) month period, then Tenant shall pay to
Landlord the amount of such underpayment, or the Landlord shall credit Tenant for the amount of
such overpayment, as the case may be. It is the intention hereunder to estimate the Amount of
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Taxes for each year and then to adjust such estimate in the following year based on actual
Taxes incurred and/or paid by Landlord. The obligation of the Landlord and Tenant with respect to
the payment of Rent shall survive the expiration or termination of this lease. Any payment,
refund, or credit made pursuant to this Paragraph (c) shall be made without prejudice to any right
of the Tenant to dispute, or of the Landlord to correct, any item(s) as billed pursuant to the
provisions hereof.
(d) Upon receipt of the Landlord’s statement, Tenant does hereby covenant and agree promptly
to pay the increases in Rent pursuant to Paragraphs (b) and (c) of this Section as and when the
same shall become due and payable, without further demand therefor, and without any set-off or
deduction whatsoever. Failure to give such statement shall not constitute a waiver by Landlord of
its right to require an increase in Rent nor shall such failure deprive Tenant of a decrease in
Rent, as the case may be.
(e) Within ninety (90) days after receipt of such statement, Tenant or its authorized employee
shall have the right to inspect the books of Landlord during the business hours of Landlord at
Landlord’s office in the Building or, at Landlord’s option, at such other location that Landlord
may specify, for the purpose of verifying information in such statement. Unless Tenant asserts
specific error(s) within one hundred-eighty (180) days after delivery of such statement, the
statement shall be deemed to be correct.
(f) No decrease in Taxes shall reduce Tenant’s Rent below the annual Base Rent sot
forth in Exhibit “D”.
(g) Tenant will cause the Premises to be insured against toss or damage by fire and such other
hazards, risks and matters covered under so called “all-risk” insurance for the full amount
of the replacement cost of the improvements on the Premises (exclusive of foundations). Beginning
with calendar year 2002, all policies of insurance shall be issued by insurers reasonably
acceptable to Tenant and shall be for limits and upon terms in each instance reasonably acceptable
to Tenant.
(h) All costs and expenses which Tenant assumes or agrees to pay to Landlord pursuant to this
lease shall be deemed additional rent and, in the event of non-payment thereof, Landlord shall
have all the rights and remedies herein provided for in case of non-payment of Rent.
2. SERVICES
The Tenant shall provide, at Tenant’s expense, except as otherwise provided, the Following
services:
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Services set forth in Exhibit “B” attached hereto and made a part hereof.
It is understood that Tenant does not warrant that any of the services referred to above, or
any other services which Tenant may supply, will be free from interruption, Landlord acknowledging
that any one or more such services may be suspended by reason of accident or of repairs,
alterations or improvements necessary to be made, or by strikes or lockouts, or by reason of
operation of law, or causes beyond the reasonable control of Tenant. Any such interruption or
discontinuance of service shall never be deemed a default, or render Tenant liable to Landlord for
damages, or relieve Landlord from performance of Landlord’s obligation under this lease.
3. QUIET ENJOYMENT
So long as the Tenant shall observe and perform the covenants and agreements binding on it
hereunder, the Tenant shall at all times during the term herein granted, peacefully and quietly
have and enjoy possession of the Premises without any encumbrance or hindrance.
4. CERTAIN
RIGHTS RESERVED TO THE LANDLORD
The Landlord reserves the following rights:
The Landlord reserves the following rights:
(a) To name the Building and to change the name or street address of the Building
(b) To install and maintain a sign or signs on the exterior or interior of the Building.
(c) During the last thirty (30) days of the term, if during or prior to that time the Tenant vacates
the Premises, to decorate, remodel, repair, alter or other wise prepare the Premises for re-occupancy,
without affecting Tenant’s obligation to pay rental for the Premises.
(d) To constantly have pass keys to the Premises.
(e) On reasonable prior notice to the Tenant, to exhibit the Premises to prospective tenants
during the last six (6) months of the term, and to any prospective purchaser, mortgagee, or
assignee of any mortgage on the Property and to others having a legitimate interest at any time
during the term.
(f) At any time in the event of any emergency, and otherwise at reasonable times 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 the Building or the Landlord’s interests, or as may be necessary
to be desirable in the operation or improvement of the Building or in order to comply with all
laws, orders and requirements of governmental or other authority.
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5. ESTOPPEL CERTIFICATE BY TENANT
The Tenant agrees that from time to time upon not less than ten (10) days prior request by the
Landlord, the Tenant will deliver to the Landlord a statement in writing certifying (1) that this
lease is unmodified and in full force and effect (or if there have been modifications that the same
is in full force and effect as modified and identifying the modifications), (b) the dates to which
the Rent and other charges have been paid, and (c) that, so far as the person making the
certificate knows, the Landlord is not in default under any provision of this lease, and, if the
Landlord is in default, specifying each such default of which the person making the certificate may
have knowledge, it being understood that any such statement so delivered may be relied upon by any
landlord under any ground or underlying lease, or any prospective purchase, mortgagee, or any
assignee of any mortgage on the Property. The Landlord will give the Tenant an estoppel within ten
(10) days after request by Tenant.
6. WAIVER OF CERTAIN CLAIMS
The Tenant, to the extent permitted by law and to the extent covered by insurance required to
be maintained by Tenant herein, waives all claims it may have against the Landlord, and against the
Landlord’s agents and employees for damage to person or property sustained by the Tenant or by any
occupant of the Premises, or by any other person, resulting from any part of the Property or any
equipment or appurtenances becoming out of repair because of a breach of Tenant’s obligations under
this Lease, or resulting from any accident in or about the Property or resulting directly or
indirectly from any act or neglect of any tenant or occupant of any part of the Properly or of any
other person, unless such damage is a result of the negligence or contributory negligence of
Landlord, or Landlord’s agents or employees. If any damage results from any act or neglect of the
Tenant, the Landlord may, at the Landlord’s option, repair such damage and the Tenant shall
thereupon pay to the Landlord the total cost of such repair. All personal property belonging to
the Tenant or any occupant of the Premises that is in or on any part of the Properly shall be there
at the risk of the Tenant or of such other person only, and the Landlord, its agents and employees
shall not be liable for any damage thereto or for the theft or misappropriation thereof unless such
damage, theft or misappropriation is a result of the negligence or contributory negligence of
Landlord or Landlord’s agents or employees. The Tenant agrees to hold the Landlord harmless and
indemnified against claims and liability for injuries to all persons and for damage to or loss of
property occurring in or about the Property, due to any act of negligence or default under the
lease by the Tenant, its contractors, agents or employees.
Landlord shall defend, indemnify and hold harmless Tenant Entities from and against any
and all Claims arising from or in connection with:
(a) the conduct or management of the Property or of any business therein, or any work or
thing whatsoever done, or any condition created (other than by Tenant) in or about the Property
prior to the Commencement Date;
(b) any act, omission or negligence of Landlord or its agents or employees; or
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(c) any accident, injury or damage whatever occurring in, at or upon the Property as a
result of Landlord’s failure to perform its obligations under this Lease;
except to the extent that any of the foregoing arise from the intentional and/or negligent acts or
omissions of Tenant.
To the extent that the Tenant carries hazard insurance on any of its property
in the Premises and to the extent that the Landlord carries hazard insurance of the Property, each policy
of insurance shall contain, if obtainable from the insurer selected by the Tenant or the Landlord,
as the case may be, without additional expense, a provision waiving subrogation against the other
party to this lease. If such provision can be obtained only at additional expense, the obligation
to obtain such provision shall continue if the other party, on notice shall pay the amount of such
additional expense. Each of the parties hereto hereby releases the other to the extent of the
limits of the insurance so carried with respect to any liability which the other may have for any damage
by fire or other casualty with respect to which the party against whom such release is claimed
shall be insured under a policy or policies of insurance containing such provision waiving
subrogation. All hazard insurance affecting the Premises and/or any property therein carried by
either Landlord or Tenant shall, name the Landlord, the Tenant, and the holder of any
first mortgage affecting the Premises as named insureds and as loss payees, as their respective
interests may appear.
7. LIABILITY INSURANCE
Tenant shall, at its expense, maintain during the term, comprehensive public
liability insurance, contractual liability insurance and property damage insurance under policies
issued by insurers of recognized responsibility, with limits of not less than $3,000,000.00 for
personal injury, bodily injury, death, or for damage or injury to or destruction of property
(including the loss of use thereof) for any one occurrence. Tenant’s policies shall name Landlord,
its agents, servants and employees as additional insureds. At the option of the Landlord, copies
of all policies of insurance shall be furnished to Landlord.
8. HOLDING OVER
If the Tenant retains possession of the Premises or any part thereof after the termination of
the term, the Tenant shall be a month to month Tenant and shall pay the Landlord Rent at
115% of the monthly rate specified in Section 1 for the time the Tenant thus remains in possession
and, in addition thereto, shall pay the Landlord for all actual damages sustained by reason of
the Tenant’s retention of possession. The provisions of this Section do not exclude the Landlord’s
rights of re-entry or any other right hereunder.
9. ASSIGNMENT AND SUBLETTING
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(a) The Tenant shall not, without the Landlord’s prior written consent, which consent shall
not be unreasonably withheld or delayed, (a) assign, convey, mortgage, pledge, encumber or
otherwise transfer (whether voluntarily or otherwise) this lease or any interest under it; (b)
allow any transfer thereof or any lien upon the Tenant’s interest by operation of law; (c) sublet
the Premises or any part thereof, or (d) permit the use or occupancy of the Premises or any part
thereof by any one other than the Tenant. Notwithstanding the foregoing provisions of this Article
9, the Premises may be occupied, from time to time, without Landlord’s consent, by any affiliates,
of Tenant, and/or any entity which may be merged or consolidated with Tenant, or into which Tenant
may be merged or consolidated. Tenant may assign this lease without Landlord’s consent upon a sale
of substantially all of Tenant’s assets or stock. If Tenant is converted to a public company then
transfers of stock will not be covered by the prohibition against assignment and do not require
consent. As used herein, “affiliate” means:
“Affiliate” any person or entity which directly or indirectly controls, or is under common
control with, or is controlled by, a person or entity and, if such person is an individual, any
member of the immediate family (including parents, spouse and descendants) of such individual and
any trust whose principal beneficiary is such individual or one or more members of the immediate
family of such individual and any person who is controlled by any such member or trust. As used in
this definition “control” (including, with its correlative meanings “controlled by” and “under
common control with”) shall mean possession, directly or indirectly, of power to direct or cause
the direction of management or policies (whether through ownership of Voting securities or other
ownership interests, by contract or otherwise), provided that, in any event, any person or entity
which owns directly or indirectly 10% or more of the voting securities or 10% or more of the other
ownership interests of any other person or entity will be deemed to control such person or entity.
(b) If with the consent of the Landlord (if required), this lease be assigned or if the
Premises or any part thereof be sublet or occupied by anybody other than Tenant, Landlord may,
after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net
amount collected to the Rent and Additional Rent herein reserved, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of any of Tenant’s covenants
contained in this lease or the acceptance of the assignee, subtenant or occupant as Tenant, or a
release of Tenant from further performance by Tenant of covenants on the part of Tenant herein
contained.
10. CONDITION OF PREMISES
Tenant’s taking possession of the Premises shall be conclusive evidence as against the Tenant
that the premises were in good order and satisfactory condition when the Tenant took possession,
except as to latent defects. No promise of the Landlord to alter, remodel, repair or improve the
Premises or the Building and no representation respecting the condition of the Premises or the
Building have been made by Landlord to Tenant, other than as may be contained herein or in a
separate Work Letter Agreement signed by Landlord and Tenant. At the termination of this lease,
the Tenant shall return the Premises broom-clean and in as good
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condition as when the Tenant took possession, ordinary wear and loss by fire or other
casualty and condemnation excepted, Failing which the Landlord may restore the Premises to such
condition and the Tenant shall pay the cost thereof on demand.
11. USE OF PREMISES
Tenant
shall use the premises for general manufacturing and office purposes, and the Tenant
agrees to comply with the to time following rules and regulations and with such reasonable modifications
thereof and additions thereto as the Landlord may hereafter from time make for the Building. The
Certificate of Occupancy, if any, covering the Building shall permit use of the premises for the purposes
herein demised.
(a) The Tenant will agree not to operate a retail store.
(b) The Tenant will not make or permit to be made any use of the premises or any part thereof
which would violate any of the covenants, agreements, terms, provisions and conditions of this
lease or which directly or indirectly is forbidden by public law, ordinance or governmental
regulation or which may be dangerous to life, limb, or property, or which may invalidate, or
increase the premium cost of any policy of insurance carried on the Building or covering its
operations, unless as to the insurance premiums, the cost of the increase in insurance premiums is
paid by the Tenant, or which will suffer or permit the premises or any part thereof to be used in
any manner or anything to be brought into or kept therein which, in the judgment of Landlord,
reasonably exercised, shall in any way impair or tend to impair the character, reputation or
appearance of the Property as a high quality office/manufacturing building, or which will impair or
interfere with or tend to impair or interfere with any of the services performed by Landlord for
the Property.
(c) Excepting those in place as of the effective date, the Tenant shall not display, inscribe,
print, maintain or affix on any place in or about the Building any additional sign, notice, legend,
direction, figure or advertisement, except on the doors of the Premises and on the Directory Board, and
then only such name(s) and matter, and in such color, size, style, place and materials, as shall first
have been approved by the Landlord, which approval shall unreasonably withheld. The listing of
any name other than that of Tenant, whether on the doors of the Premises, on the Building Directory, or otherwise, shall not operate to vest any right or
interest in this lease or in the Premises or be deemed to be the written consent of Landlord
mentioned in Section 9, it being expressly understood that any such listing is a privilege
extended by Landlord revocable at will by written notice to Tenant, except for a specified minimum number
of listings in the directory to which Tenant will be entitled throughout the term
of this lease as agreed to by Tenant and Landlord. Tenant shall be permitted to install the
signs identified on Exhibit “C” hereto.
(d) The Tenant shall not advertise the business, profession or activities of the Tenant
conducted in the building in any manner which violates the letter or spirit of any code of
xxxxxx adopted by any recognized association or organization pertaining to such business, profession or
activities and shall not use the name of the Building for any purposes other than that of the
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business address of the Tenant, and shall never use any picture or likeness of the Building
in any circulars, notices, advertisements or correspondence without the Landlord’s consent.
(e) The Tenant shall not make any alterations, improvements or additions to the Premises of a
structural nature, without the Landlord’s advance written consent. In the event Tenant desires to
make any alterations, improvements or additions of a structural nature, Tenant shall
first submit to Landlord plans and specifications therefor and obtain landlord’s written approval thereof prior to commencing any such work. All alterations, improvements or additions, Whether
temporary or permanent in character, made by Landlord or Tenant in or upon the Premises shall
become Landlord’s property and shall remain upon the Premises at the termination of this lease
without compensation to Tenant (excepting only Tenant’s movable office furniture, trade fixtures,
office and professional equipment and all manufacturing equipment and personal property).
As to alterations, 1) Landlord’s consent shall not be unreasonably withheld or delayed; 2)
decorations shall be excluded and Landlord’s consent will not be required; 3) to the extent that
Tenant is permitted to make alterations Tenant’s right to make alterations will be limited to
alterations that do not change the use nor materially affect the character of the Building unless
expressly consented to by Landlord; and 4) Landlord consents to the alterations to be made by
Tenant to the Premises in order to ready the same for Tenant’s occupancy of the Premises and
agrees that such alterations so made by Tenant in respect to its occupancy of the Premises may be
surrendered by Tenant at the expiration or earlier termination of this lease and Tenant shall not
be required to restore the Premises to their former condition prior to such alterations.
Unless the Landlord expressly so advises Tenant at the time that the Landlord consent to the
Tenant’s performance of an alteration, Tenant shall be entitled to surrender the Piemises without
having to restore such alteration. Tenant’s duty to restore shall be limited to those items which
Landlord identifies in advance of construction as being required to be removed from the Premises
at the expiration or termination of this lease.
(f) All persons entering or leaving the Building after hours on Monday through Friday,
or at any time on Saturdays, Sundays or holidays, may be required to do so under such regulations
as the Landlord may impose. The Landlord may exclude or expel any peddler.
(g) The Tenant shall not overload any floor. The Landlord may direct the time and manner of
delivery, routing and removal, and the location, of safes and other heavy articles.
(h) Unless the Landlord gives advance written consent, the Tenant shall not install or
operate any steam or internal combustion engine or boiler in or about the Premises or use the
Premises for housing accommodations or lodging or sleeping purposes, or use any illumination other
than electric light, or use or permit to be brought into the Building any inflammable fluids such
as gasoline, kerosene, naphtha, and benzene, or any explosives, radioactive materials or other
articles deemed extra hazardous to life, limb or property except in a manner which would not
violate any ordinance or regulation of the City. The Tenant shall not use the Premises for any
illegal or immoral purpose.
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(i) Tenant shall not use, keep or permit to be used or kept any foul or noxious gas or
substance in the Premises, or permit or suffer the Premises to be occupied or used in a manner
offensive or objectionable to the Landlord or so as to constitute a nuisance to other occupants of
the building by reason of noise, odors and/or vibrations, or interfere in any way with other
tenants or those having business therein, nor shall any animals or birds be brought in or kept in
or about the Premises or the Building.
(j) Tenant shall see that the doors, and windows, if operable, of the premises and
securely locked before leaving the building and must observe strict care and caution
closed that all water faucets or water apparatus are entirely shut off before Tenant or Tenant’s employees leave
the building so as to prevent waste or damage, and for any default or carelessness Tenant shall
make good all injuries or losses sustained by the Building or Landlord.
In addition to all other liabilities for breach of any covenant of this Section, the shall pay
to the Landlord an amount equal to any increase in insurance premiums payable
by the Landlord or any other tenant in the Building, caused by such breach. In addition Tenant shall pay
all legal costs of the Landlord incurred to enforce any provision of this lease, provided Landlord
is successful in such action.
Landlord shall be under an express duty, for the benefit of Tenant, to uniformly enforce the
regulations against other occupants of the development.
12. REPAIRS
Tenant shall give to Landlord prompt written notice of any damage to, or defectivecondition in any
part or appurtenance of the Building’s plumbing, electrical, heat airconditioning or other systems serving, located in, or passing through the Premises. Subject to the
provisions of Section 13, the Tenant shall, at the Tenant’s own expense, keep the Premises in good
order, condition and repair during the term, the Tenant, at the Tenant’s expense shall keep in
repair the elevators, electrical lines, plumbing fixtures located in the Building, heating and airconditioning equipment. The Tenant at the Tenant’s expense shall comply with all laws and
ordinances, and all rules and regulations of all governmental authorities and of all insurance
bodies at any time in force, applicable to the premises or to the Tenant’s use thereof, except that
Tenant shall not hereby be under any obligation to comply with any law, ordinance, rule or regulation
requiring any structural alteration of or in connection with the Premises, unless such alteration is required by reason of a condition which has been created by, or at the instance of, the Tenant, or is required by reason of a breach of any of the Tenant’s covenants and agreements
hereunder. Landlord shall not be required to make any repairs or replacements of any panels,
decoration, office fixtures, railing, ceiling, floor covering, partitions, or any other
property installed in the Premises by the Tenant. Landlord shall be responsible for repairs and restoration
of the Premises to the extent expressly provided in this lease, including the provisions of
Article 13 hereof, and to the extent, that the duties of repair or restoration are not imposed upon the
Tenant pursuant to the provisions of this lease.
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13. UNTENANTABILITY
If the Premises are made untenantable in whole or in part by fire or other casualty the Rent,
until repairs shall be made or the lease terminated as hereinafter provided, shall be
apportioned on a per diem basis according to the part of the premises which is usable by the
Tenants. If the damage or destruction to the Premises shall occur during the last three years of
the term of this lease (unless the Tenant shall elect or shall have elected to extend the term of
this lease as herein provided) and the destruction shall be so substantial that the restoration
skill take longer than either (i) one year or (ii) 50% of the balance of the term of this lease to
complete, either Landlord or Tenant shall be entitled to terminate this lease. If the damage or
destruction occurring at any time during the term of this lease shall be so extensive that the time
to complete the restoration or repair of the Premises shall take longer than 12 months, then and in
such event, Tenant may terminate this lease by notice to Landlord given within 60 days of the
occurrence of such damage or destruction. If such damage or destruction shall be so extensive that
the time to complete the restoration or repair of the Premises shall take longer than 18 months,
then and in such event Landlord may terminate this lease by notice to Tenant given within 60 days
of the occurrence of such damage or destruction. In the event of giving effective notice pursuant
to this Section, this lease and the term and the estate hereby granted shall expire on the date fifteen
(15) days after the giving of such notice as fully and completely as if such date where the date
hereinbefore set for the expiration of the term of this lease. If this lease is not so terminated,
the Landlord will promptly repair the damage at the Landlord’s expense.
Upon the occurrence of any damage or destruction there shall be an abatement of rent as
follows:
(i) if all or substantially all of the Premises are damaged or destroyed or if the portion of
the Premises damaged or destroyed is so great that the Tenant cannot feasibly continue to conduct
its business in the balance of the Premises not so damaged or destroyed, then, provided Tenant
shall vacate the Premises during restoration, all rent shall xxxxx during the period of
the restoration.
(ii) if only a part of the Premises are damaged or destroyed and Tenant can feasibly conduct
its business in the balance of the Premises not so damaged or destroyed, rent shall xxxxx so as to
be reduced to an amount which shall be a proportion to the portion of the Premises which Tenant
continues to occupy.
14. EMINENT DOMAIN
(a) In the event the whole of the Premises is taken or condemned for a public or quasi-public
use or purpose by any authority, then this Lease shall terminate when possession of the Premises is
required by the taker, and the Lease and the obligation to pay rent shall thereupon terminate.
(b) In the event only a part of the Premises shall be taken or condemned for a public or
quasi-public use or purpose by any authority, and as a result the balance of the Premises can
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be used by Tenant for the continued conduct of its business in the same manner as before
such taking or condemnation, Landlord shall repair and restore the Premises, in which case the
Lease shall not terminate. If this Lease does not terminate, the rent shall xxxxx proportionately
based on the applicable rental per square foot Provided, however, Tenant may terminate this Lease
and all of its obligations hereunder if the amount of the Premises that it may reasonably use
after such condemnation or taking is insufficient for it to conduct its business and use the
Premises as anticipated as of the date of this Lease.
(c) Any award, compensation, or damages shall be paid to and be the property of Landlord,
except that Tenant may make a claim for the loss of the property or interests of Tenant, including
the moving of Tenant” property or for the interruption of Tenant” business.
(d) Rent shall be prorated for portions of the premises that are unusable during any period of
restoration.
15. LANDLORD’S REMEDIES
All rights and remedies of the Landlord herein enumerated shall be cumulative, and none shall
exclude any other right or remedy allowed by law. In addition to the other remedies in this lease
provided, the Landlord shall be entitled to the restraint by injunction of the violation or
attempted violation of any of the covenants, agreements or conditions of this lease.
(a) If the Tenant shall (i) apply for consent to the appointment of a receiver, trustee or
liquidator of the Tenant or of all or a substantial part of its assets, (ii) admit in writing its
inability to pay its debts as they come due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or an answer seeking reorganization or arrangement with creditors
or to take advantage of any insolvency law other than the federal Bankruptcy Code (v) file an
answer admitting the material allegations of a petition filed against the Tenant in any
reorganization or insolvency proceeding, other than a proceeding commenced pursuant to the federal
bankruptcy court or a federal court sitting as a bankruptcy court, adjudicating the Tenant
insolvent or approving a petition seeking reorganization of the Tenant or appointing a receiver,
trustee or liquidator of the Tenant or of all or a substantial part of its assets, then, in any of
such events, the Landlord may give to Tenant a notice of intention to end the term of this lease
specifying a day not earlier than ten (10) days thereafter, and upon the giving of such notice the
term of this lease and all right, title and interest of the Tenant hereunder shall expire as fully
and completely on the day so specified as if that day were the date herein specifically fixed for
the expiration of the term.
(b) If the Tenant defaults in the payment of Rent and such default continues for ten (10) days
after notice, or defaults in the prompt and full performance of any other provision of this lease
and such default continues for thirty (30) days after notice, provided, however, if such default
cannot readily be cured within such thirty day period, the Tenant shall not be in default provided
that within such thirty day period, the Tenant commences the work required to cure such default and
thereafter prosecutes such work to completion with diligence and continuity, or if the leasehold
interest of the Tenant be levied upon under execution or be attached by process
12
of law, or if the Tenant abandons the premises, then and in any such event the Landlord may,
at its election, either terminate the lease and the Tenant’s right to possession of the Premises
or, without terminating this lease, endeavor to relet the Premises. Nothing in this article 15
contained shall be construed so as to relieve the Tenant of any obligation, including the payment
of Rent, as provided in this lease.
(c) Upon any termination of this lease, the Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to the Landlord, and hereby grants to the
Landlord full and free license to enter into and upon the Premises in such event with or without
process of law and to repossess the Landlord of the Premises as of the Landlord’s former estate and
to expel or remove the Tenant and any others who may be occupying or with the Premises and to
remove any and all property therefrom, using such force as may be necessary, without being deemed
in any manner guilty of trespass, eviction or forcible entry or detainer, and without relinquishing
the Landlord’s right to Rent or any other right given to the Liindlord hereunder or by operation of
law.
(d) If the Tenant abandons the Premises, and the Landlord elects, without terminating the
lease, to endeavor to relet the Premises, the Landlord may, at the Landlord’s option enter into
the Premises, remove the Tenant’s signs and other evidence of tenancy, and take and hold
possession thereof as in Paragraph (c) of this Section provided, without such entry and possession
terminating the lease or releasing the Tenant, in whole or in part, from the Tenant’s obligation
to pay the Rent hereunder for the full term as hereinafter provided. Upon and after entry into
possession without termination of the lease, the Landlord may relet the Premises or any part
thereof for the account of the Tenant to any person, firm or corporation other than the Tenant for
such rent, for such time and upon such terms as the Landlord shall determine, to be reasonable. In
any such case, the Landlord may make repairs, alterations and additions in or to the Premises, and
redecorate the same to the extent deemed by the Landlord necessary or desirable, and the
Tenant shall, upon demand, pay the cost thereof, together with the Landlord’s expenses of the
reletting. If the consideration collected by the Landlord upon any such reletting for the Tenant’s
account is not sufficient to pay monthly the full amount of the Rent reserved in this lease,
together with the cost of repairs, alterations, additions, redecorating and the Landlord’s
expenses, the Tenant shall pay to the Landlord the amount of each monthly deficiency upon demand.
(e) If the Landlord elects to terminate this lease in any of the contingencies specified in
this Section, it being understood that the Landlord may elect to terminate the lease after and
notwithstanding its election to terminate the Tenant’s right to possession as in Paragraph (b) of
this Section provided, the Landlord shall forthwith upon such termination be entitled to recover as
damages, and not as a penalty, an amount equal to the then present value of the Rent and additional
rent provided in this lease for the residue of the stated term hereof, less the present value of
the fair rental value of the Premises for the residue of the stated term.
(f) Any and all property which may be removed from the Premises by the Landlord pursuant to
the authority of the lease or of law, to which the Tenant is or may be entitled, may be handled,
removed or stored by the Landlord at the risk, cost and expense of the Tenant, and the Landlord
shall in no event be responsible for the value, preservation or safekeeping thereof. The Tenant
shall pay to the Landlord, upon demand, any and all expenses incurred in such removal
13
and all storage charges against such property so long as the same shall be in the Landlord’s
possession or under the Landlord’s control. Any such property of the Tenant not removed from the
Premises or not retaken from storage by the Tenant within thirty (30) days after the end of the
term or of the Tenant’s right to possession of the Premises, however terminated, shall be
conclusively deemed to have been forever abandoned by the Tenant and either may be retained by
Landlord as its property or may be disposed of in such manner as Landlord may see fit.
(g) The Tenant agrees that if it shall at any time fail to make any payment or perform any
other act on its part to be made or performed under this lease, the Landlord may, but shall not be
obligated to, and after reasonable notice and demand and without waiving, or releasing the Tenant
from, any obligation under this lease, make such payment or perform such other act to the extent
the Landlord may deem desirable, and in connection therewith to pay expenses and employ counsel.
The Tenant agrees to pay a reasonable attorney’s fee if legal action is required to enforce
performance by Tenant of any condition, obligation or requirement hereunder and if Landlord is
successful in this action. All sums so paid by the Landlord and all expenses in connection
therewith, together with interest thereon at the rate of 10% per annum from the date of payment,
shall be deemed additional rent hereunder and payable at the time of any installment of Rent
thereafter becoming due and the Landlord shall have the same rights and remedies for the
non-payment thereof, or of any other additional rent, as in the case of default in the payment of
Rent.
16. SUBORDINATION OF LEASE
The rights of the Tenant under this lease shall be and are subject and subordinate at all
times to all ground leases, and/or underlying leases, if any, now or hereafter in force against the
Property, and to the lien of any mortgage or mortgages now or hereafter in force against such
leases and/or the Property, and to all advances made or hereafter to be made upon the security thereof, and
to all renewals, modifications, consolidations, replacements and extensions
thereof, provided that the Landlord under any such ground or underlying lease shall agree that insurance
proceeds may be applied to restoration of the improvements on the Premises in accordance with the
provisions of this lease, and that upon the termination of such lease or any leasehold estate
through which this lease is derived that such Landlord will accept the attornment of Tenant under
this lease, and any renewal terms of this lease, provided Tenant attorns to such Landlord, for the
balance of the term of this lease, upon all the executory provisions of this lease, and in the
case of the holder of any mortgage or mortgages against the property, that such holder agrees that
insurance proceeds may be applied to restoration of the improvements on the Premises in accordance
with the provisions of this lease, and that such holder agrees that the Tenant under this
lease will not be joined in any foreclosure proceedings for the purpose of cutting off the
leasehold estate of Tenant in this lease and that thereby Tenant’s possession of the Premises shall remain
undisturbed notwithstanding the institution or prosecution of any such foreclosure
proceeding. This Section is self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination Tenant shall promptly execute such further
instruments as may be requested by the Landlord. The Tenant hereby irrevocably appoints the
Landlord as attorney-in-fact for the Tenant with full power and authority to execute and deliver
in the name of the Tenant any such instrument or instruments. Tenant, at the option of any
14
mortgagee, agrees to attorn to such mortgagee in the event of a foreclosure sale or deed in
lieu thereof.
17. NOTICES AND CONSENTS
All notices, demands, requests, consents or approvals which may or are required to be given by
either parry to the other shall be in writing and shall be deemed given when sent by United States
Certified or Registered Mail, postage prepaid, (1) if for the Tenant, addressed to the Tenant at
the Building, and to Xxxxxxx Xxxxxx, as counsel at American Real Estate Partners, 000 Xxxxx Xxxxxxx
Xx., Xx. Xxxxx, Xxx Xxxx 00000 and to Xxxx Xxxxxxx at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx 00000 or at such other place as the Tenant may from time to time designate by notice to the
Landlord, or (b) if for the Landlord, addressed to the office of the Landlord in the Building with
a copy to Landlord addressed to St. Xxxxxxx Properties, c/o Xxxxx X. Xxxxx, 00 Xxxxxx Xxxx,
Xxxxxxxxxxxx, XX. 00000 or at such other place as the Landlord may from time to time designate by
notice to the Tenant. All consents and approvals provided for herein must be in writing to be
valid. If the term Tenant as used in this lease refers to more than one person, any notice,
consent, approval, request, xxxx, demand or statement, given as aforesaid to any one of such
persons shall be deemed to have been duly given to Tenant.
Except as specifically provided in this lease, Tenant hereby expressly waives the of intention
to terminate this lease or to re-enter the Premises and waives the service demand for payment of
Rent or for possession and waives the service of any other notice or demand prescribed by any
statute or other law.
18. SPRINKLERS
If there now is or shall be installed in the Building a “sprinkler system,” and such
system or any of its appliances shall be damaged or injured or not in proper working or by reason
of any act or omission of the Tenant, Tenant’s agents, servants, employees, licensees or visitors,
the Tenant shall forthwith restore the same to good working condition at its own expense; and if
the Board of Fire Underwriters of Fire Insurance Exchange or any bureau, department or official of
the state or city government require or recommend that any changes, modifications, alterations or
additional sprinkler heads or other equipment be made or supplied by reason of the Tenant’s
business, or the location of partitions, trade fixtures, or other contents, of the Premises, or
if any changes, modifications, alterations, additional sprinkler heads or other equipment, become necessary
because of Tenant’s business or the location of partitions, trade fixtures or other contents of the premises
to prevent the imposition of a penalty or charge against the full allowance for a sprinkler system in the
fire insurance rate as fixed by said exchange, or by any fire insurance company, Tenant shall, at the
Tenant’s expense, promptly make and supply such changes, modifications, alterations, additional
sprinkler head or other equipment.
15
19. NO ESTATE IN LAND
This contract and lease shall create the relationship of landlord and tenant between Landlord
and Tenant; no estate shall pass out of Landlord.
20. INVALIDITY OF PARTICULAR PROVISIONS
If any clause or provision of this lease is or becomes illegal, invalid, or
unenforceable because of present or future laws or any rule or regulation of any governmental body or
effective during its term, the intention of the parties hereto is that the remaining parts of this
lease shall not be affected thereby unless such invalidity is, in the sole determination of
lease shall not be affected thereby unless such invalidity is, in the sole determination of
Landlord, essential to the rights of both parties in which event Landlord has the right to
terminate this lease on written notice to Tenant.
21. WAIVER OF BENEFITS
Tenant waives the benefits of all existing and future Rent Control Legislation and Statutes
and similar governmental rules and regulations, whether in time or war or not, extent permitted by
law.
22. WAIVER OF TRIAL BY JURY
It is mutually agreed by and between Landlord and Tenant that the respective hereto shall and
they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of
the parties hereto against the other on any matters whatsoever arising out of or in any way connected with
this lease, the relationship of Landlord and Tenant, Tenant’s use or occupancy of the Premises, and any
emergency statutory or any other statutory remedy.
23. MISCELLANEOUS TAXES
Tenant shall pay prior to delinquency all taxes assessed against or levied upon its occupancy
of the Premises, or upon the fixtures, furnishings, equipment and all other personal property of
Tenant located in the Premises, if nonpayment thereof shall give rise to a lien on the real estate,
and when possible Tenant shall cause said fixtures, furnishings, improvements, equipment and other
personal property to be assessed and billed separately from the property of Landlord. In the event
any or all of the Tenant’s fixtures, furnishings, equipment and other personal property, or upon
Tenant’s occupancy of the Premises, shall be assessed and taxed with the property of Landlord,
Tenant shall pay to Landlord its share of such taxes within ten (10) days after delivery to Tenant
by Landlord of a statement in writing setting forth the amount of such taxes applicable to Tenant’s fixtures,
furnishings, improvements, equipment or personal
property.
16
Excluded from taxes covered by Section 23 should be the income, franchise, excise, estate or
inheritance taxes. Taxes, in each instance, should be computed as if the properly was
the sole asset of Landlord, and if the tax is imposed by law upon Landlord, then it should be the
Landlord’s burden to pay that tax and the Tenant should only be required to pay taxes which are by
statute or common law the responsibility of Tenant.
24. SPECIAL STIPULATIONS
(a) No receipt of money by the Landlord from the Tenant after the termination of this lease or
after the service of any notice or after the commencement of any suit, or after final
judgment for possession of the Premises shall reinstate, continue or extend the term of this
lease or affect any such notice, demand or suit or imply consent for any action for which Lanlord’s
consent is required.
(b) No waiver of any default of the Tenant hereunder shall be implied from any omission
by the Landlord to take any action on account of such default if such default persists or be
repeated, and no express waiver shall affect any default other than the default specified
express waiver and that only for the time and to the extent therein stated.
(c) The term “Landlord” as used in this lease, so far as covenants or agreements
part of the Landlord are concerned shall be limited to mean and include only the owner or
of any owners of the Landlord’s interest in this lease at the time in question, and in the event
transfer or transfers of such interest the Landlord herein named (and in case of any subsequent
transfer, the then transferor) shall be automatically freed and relieved from and after the
date of such transfer of all personal liability as respects the performance of any covenants or
agreements on the part of the Landlord contained in this lease thereafter to be performed.
(d) It is understood that the Landlord may occupy portions of the Building in the conduct of
the Landlord’s business. In such event, all references herein to other tenants of the Building
shall be deemed to include the Landlord as an occupant.
(e) The term “City” as used in this lease shall be understood to mean the City in which the
Property is located.
(f) All of the covenants of the Tenant hereunder shall be deemed and construed to be
“conditions” as well as “covenants” as though the words specifically expressing or importing
covenants and conditions were used in each separate instance.
(g) The Tenant agrees that, upon receiving a written request from the Landlord, the Tenant
will within ten (10) days deliver a copy of this lease, or, if the Landlord so requests, a
Memorandum of this lease, in recordable form to the Landlord. Tenant shall not record this
lease or a memorandum thereof, without the prior written consent of the Landlord.
(h) Neither party has made any representations or promise, except as contained herein, or in
some further writing signed by the party making such representation or promise.
17
(i) In the absence of fraud, no person, firm or corporation, or the heirs, legal
representatives, successors and assigns, respectively, thereof, executing this lease as agent,
trustee or in any other representative capacity shall ever be deemed or held individually liable
hereunder for any reason or cause whatsoever. By signing this lease the signatory represents that
the signatory has authority to sign and to bind the entity for which such signatory has signed .
(j) In event of variation or discrepancy, the Landlord’s original copy of the lease shall
control.
(k) Each provision hereof shall extend to and shall, as the case may require, bind and inure
to the benefit of the Landlord and the Tenant and their respective heirs, legal representatives and
successors, and assigns in the event this lease has been assigned with the express, written
consent of the Landlord, or as otherwise provided hereunder.
(1) If because of any act or omission of Tenant, its employees, agents, contractors, or
subcontractors, any mechanic’s lien or other lien, charge or order for the payment of money shall
be filed against Landlord, or against all or any portion of the Premises, or the Building of which
the Premises are a part, Tenant shall, at its own cost and expense, cause the same to be
discharged of record, within thirty (30) days after the filing thereof, and Tenant shall
indemnify and save harmless Landlord against and from all costs liabilities, suits, penalties, claim and
demands, including reasonable attorneys’ fees resulting therefrom.
(m) It is understood and agreed that this lease shall not be binding until and parties have
signed it.
Exhibits A, B, C and D, consisting of 4 pages are attached hereto and become part of this
lease.
In Witness Whereof, Landlord and Tenant have respectively signed and sealed this lease as of
the day and year first above written.
ACF INDUSTRIES, INCORPORATED | ST. XXXXXXX PROPERTIES | |||||
By
|
/s/ Xxxxx X. Xxxxxxxxx | By | /s/ Xxxxx X. Xxxxx | |||
Xxxxx X. Xxxxxxxxx Tenant | Xxxxx X. Xxxxx Landlord | |||||
Vice President — Controller | General Partner | |||||
Attest: | ||||||
/s/ Xxxxx Xxxxxxx | ||||||
Asst. Secretary |
18
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE is made as of April 1, 2005, among ACF INDUSTRIES LLC
(a successor to ACF INDUSTRIES, INCORPORATED, a New Jersey Corporation), a Delaware limited
liability company (“Assignor”), having an address at, 000 Xxxxx Xxxxxx Xxxxxx, Xx. Xxxxxxx,
Xxxxxxxx 00000, AMERICAN RAILCAR INDUSTRIES, INC., a Missouri corporation (“Assignee”), having an
address at 000 Xxxxx Xxxxxx, Xx. Xxxxxxx, Xxxxxxxx 00000, and ST. XXXXXXX PROPERTIES, a Missouri
Partnership (“Landlord”), having an address at 00 Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000.
IN CONSIDERATION of the mutual covenants herein contained and other valuable consideration,
the receipt of which is hereby acknowledged, Assignor, Assignee and Landlord hereby covenant and
agree as follows:
1. By Indenture dated Xxxxx 0, 0000, Xxxxxxxx leased to Assignor the premises more
particularly described on Exhibit A thereto, located at Xxxxx and Second Street, St. Xxxxxxx,
Missouri, (as amended through the date hereof, the “Lease”).
2. Assignor hereby assigns unto Assignee, its successors and assigns, all of the right, title
and interest of the Assignor as tenant under the Lease, to have and to hold from this date, for the
remainder of the term, subject to the rents, covenants, conditions and other provisions of the
Lease.
3. Assignee, for itself and its successors and assigns, covenants with Assignor and its
successors and assigns that from and after this date, it assumes and agrees unconditionally to be
bound by and to pay, perform, observe and discharge all of the covenants, conditions, agreements,
terms and obligations of the tenant under the Lease accruing from and after the date hereof.
4. Landlord hereby consents to the assignment of the tenant’s interest under the Lease by
Assignor to Assignee, and hereby releases Assignor from all the obligations of the tenant under the
Lease accruing from and after the date hereof.
5. Landlord hereby represents (a) that all rent and additional rent due under the Lease have
been paid through Xxxxx 00, 0000, (x) that there are no defaults (or an event which, with notice or
lapse of time or both, would constitute a default) under the Lease, and (c) neither the tenant nor
any affiliate of the tenant has exercised any purchase option or first refusal right, if any,
contained in the Lease.
[Signature Page Follows]
ASSIGNOR, ASSIGNEE and the LANDLORD have executed this Assignment and Assumption of Lease as
of the date set forth above.
ASSIGNOR: | ACF INDUSTRIES LLC | |||
By: | /s/ Xxxx X. Xxxxxxxx | |||
Name: Xxxx X. Xxxxxxxx | ||||
Title: Vice President-Treasurer |
ASSIGNEE: | AMERICAN RAILCAR INDUSTRIES, INC. | |||
By: | /s/ Xxxx X. Xxxxxxx | |||
Name: Xxxx X. Xxxxxxx | ||||
Title: Senior Vice
President Sales & Marketing |
LANDLORD: | ST. XXXXXXX PROPERTIES | |||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: Xxxxx X. Xxxxx | ||||
Title: Partner |
[Signature Page to Assignment and Assumption of Lease made as of April 1, 2005]