Exhibit 10(u)
COMMERCIAL LEASE AND REAL ESTATE PURCHASE AGREEMENT
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THIS AGREEMENT is entered into by and between XXXXXX X. LUNG of St. Xxxxxx
County, Indiana, hereinafter referred to as "LESSOR/SELLER," who leases and
sells to XXXXXXX INDUSTRIES, INC., an Indiana Corporation with principal offices
in Elkhart County, Indiana, hereinafter referred to as "LESSEE/PURCHASER," for
and in consideration of the covenants and agreements hereinafter mentioned, that
real estate located in McLennan County, Texas, and more particularly described
on Exhibit "A" attached hereto and made a part hereof ("Premises").
1.) Lessor/Seller leases to Lessee/Purchaser the Premises from October 1,
2004, to and including the 30th day of March, 2005 (hereinafter referred to as
the "Lease Term.")
2.) That Lessee/Purchaser represents it will use said Premises for
manufacturing, warehousing, and office purposes only, all in conformity with
applicable ordinances, laws and regulations.
3.) Lessee/Purchaser will pay, as rent for said Premises, to the
Lessor/Seller at such place as the Lessor/Seller from time to time hereafter may
designate in writing, in equal monthly installments of Twenty Five Thousand
Twenty-nine Dollars ($25,029.00) each commencing on the 1st day of October,
2004, and on the first day of each succeeding consecutive month thereafter
during the Lease Term to and including the 30th day of March, 2005.
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Lessee/Purchaser shall further pay as additional rent the following:
A. Real estate taxes levied and/or assessed against the Premises by the
State of Texas and/or any political subdivision thereof commencing
with the first installment of said taxes payable after October 1,
2004. In the event that there would be any arrearage in real estate
taxes, levied and/or assessed against the Premises by the State of
Texas, for any period of time prior to this Lease term, by the terms
of a predecessor Commercial Lease, Lessee/Purchaser shall be
responsible for said taxes.
B. Insurance premiums for fire, extended coverage and hazard insurance on
the improvements located on the Premises when and as the same fall due
during the term commencing on the effective date of this Lease, said
insurance to be in the amounts and with the limits of liability as
hereinafter stated.
4.) Lessee/Purchaser has examined and knows the condition of said Premises
and has received the same in good order and repair, and that no representations
as to the condition of repair thereof have been made by the Lessor/Seller or his
representative, prior to or at the execution of this Lease that are not herein
expressed or endorsed hereon. Lessee/Purchaser will keep the interior and
exterior of said Premises in good repair, including the roof, walls, overhead
door systems, passage doors and windows, replacing all broken glass with glass
of the same size and quality as that broken, and will keep said Premises and
appurtenances, as well as all xxxxx, downspouting, catch basins, drains stools,
lavatories, sidewalks, adjoining alleys and all other facilities and equipment
in connection with said Premises, in a clean and healthy condition, according to
the city ordinances, and the direction of the proper public officers, during the
term of this Agreement.
5.) Lessor/Seller shall not be liable for damages caused by failure to keep
said Premises in repair and shall not be liable for any damage done or
occasioned by or from plumbing, gas, water, steam or other pipes, or sewage, or
the bursting or leaking of plumbing or heating fixtures or waste or soil pipe
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existing in connection with said building or Premises, nor for damage occasioned
by water, snow or ice being upon said sidewalks or coming through the roof,
skylight, trap door or otherwise, nor for any damages arising from negligence of
co-tenants or other occupants of the same building, or the agents, employees or
servants of any of them, or of any owners or occupants of adjacent or contiguous
property.
6.) Lessor/Seller shall not be liable for any injury to the
Lessee/Purchaser or any other person, occurring on, adjacent to or in front of
said Premises, irrespective of whether said injury is caused by a defect in said
Premises or by reason of said Premises becoming out of repair or arising from
any other cause whatsoever, and the Lessor/Seller shall not be liable for damage
to Lessee/Purchaser's property or to the property of any other person which may
be located in or upon said Premises and the Lessee/Purchaser agrees to indemnify
and save harmless the Lessor/Seller from any and all claims arising out of
injuries to persons or property occurring on or about said Premises.
During the term of this Lease the Lessee/Purchaser shall maintain at its
expense, for the benefit of Lessor/Seller and Lessee/Purchaser and naming both
Lessor/Seller and Lessee/Purchaser as insured parties, liability insurance with
limits of not less than Five Million Dollars ($5,000,000.00) per injury or
occurrence and Two Million Dollars ($2,000,000.00) property damage.
Lessee/Purchaser shall deliver from time to time during the term of this Lease
to Lessor/Seller evidence of the existence of such liability insurance upon
demand from Lessor/Seller.
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7.) Lessee/Purchaser shall further maintain at its sole expense for the
benefit of Lessor/Seller during the entire term of this Lease fire, extended
coverage and hazard insurance on the improvements now located on the Premises in
an amount equal to the insurable replacement cost of said improvements located
on the Premises. It is agreed by and between the parties hereto that the present
improvements located on the Premises have an initial insurable replacement value
in the amount approved, in writing, by Lessor/Seller. Lessee/Purchaser shall
further deliver to Lessor/Seller certificates of insurance issued by the insuror
of said improvement and from time to time and when the premiums on said
insurance become due and payable and shall further provide Lessor/Seller with
evidence of the payment of said premiums.
Lesssor shall be named as Loss Payee and as an Additional Insured party, as
applicable, in all insurance policies. Lessee/Purchaser shall arrange so that
Lessor/Seller will be given at least thirty (30) days notice before any
cancellations of any insurance policy and coverage by any applicable insurance
company.
In the event Lessee/Purchaser shall construct or erect any further
improvements upon said Premises and/or make any additions or alterations to the
existing improvements located upon said Premises during the term of this Lease,
Lessee/Purchaser, at its expense, shall insure said additional improvements or
additions to present improvements in an amount not less than the costs of such
further improvements or additions.
8.) The parties agree that Lessee/Purchaser may sublet all or any portion
of said Premises during the term of this Lease with the prior written consent of
Lessor/Seller. Upon the provision of said Written Consent, Lessee/Purchaser
shall deliver copies of any such subleases within five (5) days after the
execution thereof and provided, further, that Lessee/Purchaser shall not grant
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any rights to any such subtenant in excess of the rights and duties granted
Lessee/Purchaser herein.
9.) Lessee/Purchaser shall not assign this Lease or any part thereof
without the written consent of the Lessor/Seller first had and obtained, and
will not permit any transfer by operation of law of any interest in said
Premises acquired through this Lease and will not permit said Premises to be
used for any unlawful purpose or purposes which will injure the reputation of
the same nor disturb any other the tenants of the Premises or of the
neighborhood.
10.) No alterations, changes or additions in said Premises shall be made
without first submitting written plans and specifications for the same to the
Lessor/Seller and obtaining his written consent to make the same. In the event
of any such remodeling, alterations or additions, Lessee/Purchaser shall make
the same at its own expense and shall promptly pay for all materials and labor
involved in making the same. Lessee/Purchaser shall not permit any liens or
claims or demands of any nature to exist against the Lessor/Seller or the
Premises. In the event any lien, claim or demand of any action for enforcing the
same shall be filed or made against the Lessor/Seller or said Premises, the
Lessee/Purchaser shall defend the same at its own expense and Lessee/Purchaser
hereby agrees to indemnify and hold harmless the Lessor/Seller from any and all
liability or expense arising by virtue of such claim, demand or lien or the
defense of any action filed to enforce the same. Any such alterations, changes,
or additions shall, when made, become a part of the Premises and remain thereon
as the property of the Lessor/Seller at the termination of said Lease at the
option of the Lessor/Seller.
11.) Lessee/Purchaser shall allow Lessor/Seller free access to the Premises
for the purpose of examining or exhibiting the same.
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12.) Lessee/Purchaser shall promptly pay and discharge all store license
taxes and all general personal property taxes or special license fees that may
be assessed or levied by any lawful authority against the property of
Lessee/Purchaser or any subtenants on, against or by virtue of the business
conducted in or on the demised Premises during the term of this Lease.
13.) Lessee/Purchaser shall promptly pay (in addition to the rents above
specified) all water, sewerage, electric, power, gas and heating bills taxed,
levied or charged against the Premises for and during the entire term of this
Lease.
14.) If the Lessee/Purchaser shall make any assignment for the benefit of
creditors or if a receiver is appointed for the Lessee/Purchaser or its assets
or of the Lessor/Seller's interest under this Lease, and if the appointment of a
receiver is not vacated within five (5) days, or if a voluntary or involuntary
petition is filed by or against Lessee/Purchaser under the United States
Bankruptcy Code, the Lessor/Seller may, upon giving the Lessee/Purchaser ten
(10) days notice of such election, either terminate Lessee/Purchaser's right to
the possession of the Premises or terminate this Lease as in the case of a
violation by the Lessee/Purchaser of any of the terms, covenants or conditions
of this Lease.
15.) It is agreed by the parties hereto that in the event Lessee/Purchaser
has declared bankruptcy or voluntarily offers to creditors terms of composition
or in case a receiver is appointed to take charge of and conduct the affairs of
the Lessee/Purchaser, then Lessor/Seller shall have the right of immediate
possession of said Premises.
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16.) It is expressly agreed that no waiver nor apparent waiver, nor the
failure of Lessor/Seller to require strict performance of any condition,
covenant or agreement shall estop the Lessor/Seller from enforcing such
condition, covenant or agreement, nor any other condition, covenant or agreement
shall at any time be implied.
17.) It is agreed that all payments herein provided to be made shall be
made without relief from valuation or appraisement laws, and all payments
required to be made at the time due shall bear interest at the rate of eighteen
percent (18%) per annum, from date of delinquency.
18.) On the 1st day of Apirl, 2005, Lessor/Seller agrees to sell to
Lessee/Purchaser, and Lessee/Purchaser agrees to purchase from Lessor/Seller,
the Premises upon the following covenants, terms, and conditions.
19.) Lessee/Purchaser shall pay an agreed upon purchase price upon the
following terms and conditions. The Purchase Price shall be paid in cash or its
equivalent at Closing.
This Agreement is NOT conditioned upon Lessee/Purchaser's ability to obtain
financing. Lessee/Purchaser shall pay all costs of obtaining financing.
20.) Lessee/Purchaser shall be responsible for, and hereby agrees to assume
and to pay, all taxes or assessments due before, at and after Closing.
21.) This transaction shall be closed on 1st day of April, 2005.
Lessee/Purchaser shall continue to have possession at Closing.
22.) Within a reasonable time prior to Closing, Lessor/Seller shall furnish
to Lessee/Purchaser an Owner's Title Insurance Policy equal to the Purchase
Price insuring merchantable title: such Title Insurance Policy shall be issued
by a Title Company mutually agreed by Lessor/Seller and Lessee/Purchaser as of a
date as near Closing as reasonably possible and shall disclose merchantable
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title in Lessor/Seller, subject only to such items to which Lessor/Seller's Deed
is to be made subject as provided in this Agreement. If both an Owner's Title
Insurance Policy and a Mortgagee's Title Insurance Policy are to be obtained,
Lessor/Seller shall pay the cost of the Owner's Policy and Lessee/Purchaser
shall pay the balance thereof.
If defects of title are present, the same shall be pointed out in writing
and delivered to Lessor/Seller before Closing. Lessor/Seller shall have not more
than One Hundred and Twenty (120) days to cure such defects. If Lessor/Seller
does not cure the defects within the time period provided, Lessee/Purchaser may
rescind this Agreement, or Lessee/Purchaser may accept said title defects "AS
IS" and close this transaction.
At Closing, Lessor/Seller shall execute and deliver to Lessee/Purchaser a
General Warranty Deed conveying the Premises free and clear of all liens and
encumbrances and subject to all covenants, restrictions, easements, zoning
ordinances and any mortgage of record assumed by the Lessee/Purchaser.
23.) The risk of loss or damage to the Premises and improvements, or a
substantial portion thereof, by any cause whatsoever is assumed by
Lessee/Purchaser prior to, at and after Closing.
24.) No inspections shall be required as the Lessee/Purchaser has inspected
the Premises and has agreed to purchase the Premises "AS IS"in any and all
respects.
25.) In the event of a default in the terms of this Agreement, each party
shall have all rights allowed by prevailing law.
26.) Lessee/Purchaser and Lessor/Seller each represent and warrant to the
other Party that no Real Estate Broker has been employed or retained with regard
to this Agreement and transaction.
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27.) It is agreed by the parties that a defaulting party of the terms of
this Agreement shall pay and discharge all reasonable costs, attorneys fees and
related legal expenses which shall be made and incurred by the non-defaulting
party in enforcing the covenants and provisions of this Agreement. All parties
to this Agreement agree that the covenants and provisions herein contained shall
be binding upon, apply and inure to their respective heirs executors,
administrators, successors and assigns.
28.) Lessee/Purchaser does hereby release and relieve Lessor/Seller and
waives its entire right of recovery against the Lessor/Seller for loss or damage
arising out of or incident to the perils of fire, explosion or other peril
described in the "Extended Coverage" insurance endorsement approved for use in
the state where the Premises are located, which occurs in, on or about the
Premises, whether due to the negligence of Lessor/Seller, his agents or
employees or otherwise.
29.) In the event prior to closing the Premises or any portion thereof
shall be acquired or condemned by eminent domain for any public or quasi-public
use or purposes, Lessee/Purchaser is hereby entitled to any proceeds resulting
from said eminent domain taking and shall assume and take full responsibility
for resolving any claims made by any government agency pursuant to the doctrine
of eminent domain including performing any obligations required by the
condemning authority.
In the event of any such acquisition or condemnation by eminent domain,
Lessee/Purchaser shall have no claim against the Lessor/Seller as all right to
any proceeds of said eminent domain taking shall belong to the Lessee/Purchaser
and shall be Lessee/Purchaser's sole remedy for said condemnation.
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30.) Nothing herein contained shall be construed as prohibiting
Lessor/Seller from assigning its right, title and interest in and to the
Premises, subject to the terms of this Agreement, to any third party.
31.) Until further notice in written form is given by either of the parties
hereto, all notices and/or rent to be delivered to the opposite party shall be
mailed as follows:
TO Lessor/Seller:
Xxxxxx X. Lung
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
TO Lessee/Purchaser:
Xxxxxxx Industries, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
32.) Lessor/Seller covenants and agrees that so long as Lessee/Purchaser
shall perform all of the terms, conditions, covenants and agreements to be kept
by Lessee/Purchaser, Lessee/Purchaser shall have the quiet enjoyment of the
Premises.
33.) The parties agree that a memorandum of this Agreement in a form
approved in writing by Lessor/Seller, may be recorded in the records of McLennan
County, Texas.
34.) This Agreement is executed by duly authorized officers of the
Lessee/Purchaser for and on behalf of the Lessee/Purchaser and the persons
executing this lease for and on behalf of the Lessee/Purchaser acknowledge and
state that they have full power and authority to execute this Lease pursuant to
law, the by-laws of Lessee/Purchaser corporation and authority of
Lessee/Purchaser's board of directors.
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Dated effective this 15th day of October, 2004.
/S/Xxxxxx X. Lung
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Xxxxxx X. Lung
[Lessor/Seller]
Xxxxxxx Industries, Inc.
[Lessee/Purchaser]
By: /S/Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, President
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ATTEST:
/S/Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Secretary/Treasurer
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STATE OF INDIANA )
) SS:
COUNTY OF ________)
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxx X. Lung and acknowledged the execution of the above and
foregoing Commercial Lease as Lessor/Seller.
WITNESS my hand and Notarial Seal this ___ day of _________, 2004.
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___________________, Notary Public
My Commission Expires Residing in ___________ County, IN
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STATE OF INDIANA )
) SS:
COUNTY OF _________ )
Before me, a Notary Public in and for said County and State, personally
appeared __________________ and _________________, the President and
Secretary/Treasurer, respectively, of XXXXXXX INDUSTRIES, INC., an Indiana
Corporation, and acknowledged the execution of the above and foregoing
Commercial Lease for and on behalf of said corporation in their respective
representative capacities being authorized by it so to do.
WITNESS my hand and Notarial Seal this ___ day of _________, 2004.
----------------------------------
___________________, Notary Public
My Commission Expires Residing in ___________ County, IN
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EXHIBIT "A"
REAL ESTATE DESCRIPTION
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BEING 13.15 acres of land in the Xxxxx Xxxxxx League, McLennan County, Texas,
and being all that certain Tract Two as described in a deed from the Waco
Industrial Foundation to Xxxxxxx Industries, Inc., as recorded March 13, 1980,
in Col. 1347, Pg. 763 of the Deed Records of McLennan County, Texas, described
by metes and bounds as follows: BEGINNING at a nail being the northwest corner
of said Tract Two, being also in the center of the Old Fort Xxxxxx Road; THENCE
N 57 deg 3 min 54 sec E with the north line of said Tract Two passing an iron at
25.0 feet continuing for a total distance of 1120.3 feet to an iron stake for a
corner being the northeast corner of said tract; THENCE S 30 deg 15 min 27 sec E
with the cast line of said TRACT TWO a distance of 407.57 feet to an iron stake
for a corner being in the northwest line of Texas Central Railroad; THENCE S 18
deg 48 min 15 sec W with said railroad R.O.W. a distance of 225.59 feet to an
iron stake for a corner being the southeast corner of said Tract Two; THENCE S
60 deg 32 min W with the south line of said Tract Two, passing an iron stake at
a distance of 921.03 feet, continuing for a total distance of 946.03 feet to a
nail for a corner being the southwest corner of said Tract Two, being also in
the center line of Old Fort Xxxxxx Road; THENCE N 30 deg 34 min 32 sec W with
the west line of said Tract Two a distance of 490.0 feet to the place of
beginning containing 13.15 acres of land more or less, of which .028 acre is
being used as a public road, and 0.25 acre is being used as a private gravel
drive, ingress, egress easement.
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