OFFICE/ WAREHOUSE LEASE AGREEMENT
The parties to this Agreement, effective January 1, 1999, between XXXXXXXX
MISHAWAKA, LLC ("Landlord") and AM GENERAL CORPORATION ("Tenant"), Agree as
follows:
1. PREMISES; PREPARATION; SUBSTITUTION.
A. The Premises. The Landlord leases to the Tenant and the Tenant accepts
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that part of Xxxxxx Avenue Business Center located at 000 Xxxxx Xxxxxx Xxxxxx in
Mishawaka, Indiana (the "Building") as shown on the floor plan attached to this
Agreement as Exhibit A containing a total of 238,815 square feet of leasable
warehouse space (the "Warehouse") and 22,622 square feet of leasable office
space (the "Office"); and approximately 3 acres of vacant adjacent land located
east of the Building (the "Land"). The Building, Warehouse, Office and Land
are collectively referred to herein as the "Premises".
B. Substitution of Premises. The Landlord may, with at least thirty days'
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prior written notice to the Tenant, substitute other space within the Building
for the Office space subject to the same terms and conditions as though
originally leased to the Tenant at the time of execution and delivery of this
Agreement. Such substituted space shall contain at least the same useable area
as the Office space without any increase in rent. The Landlord shall pay all
reasonable moving expenses of the Tenant, including the reasonable removing and
replacement of the Tenant improvements, related to such substituted space.
2. TERM. The term of the lease (the "Term") shall be 60 months commencing
January 1, 1999 and ending December 31, 2003, unless sooner terminated as
provided in this Agreement. (See Additional Provisions).
3. USE. The premises shall be occupied and used by the Tenant for a
business office and warehousing and for any other lawful purposes.
4. RENT. The Tenant shall pay to the Landlord as rent provided below:
Warehouse space 238,815 sq. ft. at 2.15 psf or $42,787.69 per month (yrs. 1, 2 & 3)
2.20 psf or $43,782.75 per month (yr. 4)
2.25 psf or $44,777.81 per month (yr. 5)
Office space 22,622 sq. ft. at 4.00 psf or $ 7,540.67 per month (yrs. 1, 2 & 3)
Office space 22,622 sq. ft. at 4.50 psf or $ 8,483.25 per month (yrs. 4 & 5)
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.
5. ADDITIONAL RENT FOR OPERATING EXPENSES.
A. Monthly Operating Expense Payment. The Tenant shall pay its
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proportionate share of actual Operating Expenses for the Warehouse portion of
the space (defined in subsection C of this Section 5) of $.528 per square foot
or $10,507.86 ($.528 X 238,815 sf. divided by 12) per month as of January 1,
1999 ("Base Proportionate Operating Expense"). The Office lease and the Land is
a gross lease with operating expenses included. The Tenant's proportionate share
of the actual Operating Expenses shall be an amount equal to the actual
Operating Expenses divided by the leasable square feet in the warehouse portion
of the Building minus the Base Proportionate Operating Expense times the number
of square feet leased by the Tenant as set forth in Section 1. On or before
December 15 of each year during the Term, Landlord shall estimate the Operating
Expenses for the next Calendar year and shall notify the Tenant in writing of
the Tenant's proportionate share of the estimated Operating Expenses for the
next calendar year (the "Tenant's Estimated Operating Expenses"). Then, in
addition to the rent set forth in Section 4, on January 1 and on the first day
of each month during the next calendar year, with the rent the Tenant shall pay
to the Landlord an amount equal to the Tenant's Estimated Operating Expenses
divided by twelve. In no event shall Tenant's share of Operating Expenses
increase by more than five percent (5%) (exclusive of real estate taxes)
cumulative per year to the end of the Lease.
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B. Annual Operating Expenses Adjustments. On or before March 15 of each
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year after the first calendar year of the Term, whether the first year is full
or partial, the Landlord shall determine the actual Operating Expenses for both
the Warehouse and the land on which the Warehouse is located, including on-site
and off-site parking related to the Warehouse (the "Warehouse site" for the
preceding calendar year. Therefore, on or before March 15 of each subsequent
calendar year through the year following the termination of the Term, with any
options and extensions, the total amount of the Tenant's Estimated Operating
Expenses paid during the preceding calendar year shall be corrected to reflect
the actual Operating Expenses for such preceding calendar year. On or before
April 1 of each such year the Tenant shall pay to the Landlord, or the Tenant
shall be credited with, as appropriate, an amount equal to the difference
between the Tenant's proportionate share of the actual Operating Expenses for
the preceding calendar year less the Tenant's Estimated Operating Expenses which
were paid by the Tenant during such preceding calendar year except at the end
of the Term where any credits or underpayments will be paid to the party to
which it is owed no later than April 1 following the termination date.
B. 1. Credit. If the correction for any year results in a credit to the
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Tenant, then that credit shall be applied against the rent and other monies
owing from the Tenant to the Landlord which are due and payable in the month(s)
after the correction adjustment.
C. Operating Expenses Defined. The term "Operating Expenses" means and
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includes the total reasonable operating expenses related to the Warehouse and
the Warehouse Site (the Warehouse and the Warehouse Site collectively, the "Real
Estate".) which are incurred by the Landlord, and shall include, without
limitation, taxes and assessments levied, assessed or imposed at any time by any
municipal, county, state or federal government or any governmental authority,
upon or against the Real Estate ("Real Estate Taxes"), and also any tax or
assessment levied, assessed or imposed at any time by any governmental authority
in connection with the receipt of any income or rents from the Warehouse and/or
Warehouse Site to the extent that any such tax or assessment is in lieu of all
or a portion of any of the Real Estate Taxes, personal property and ad valorem
taxes, common area heat and fuel, costs of water and sewage, reasonable
management expenses, labor, including all wages, salaries, Social Security taxes
which may be levied upon such wages and salaries, supplies, repairs,
maintenance, painting, insurance, trash removal, and other items properly
constituting direct operating maintenance, and repair costs according to
standard accounting practices. The term "Operating Expenses" does not mean or
include depreciation of the Building or equipment, interest expense on borrowed
money of any form or nature, costs of maintaining the Landlord's corporate or
business existence, franchise taxes, federal or state income taxes, expenditures
required to be capitalized for federal income tax purposes, office expenses or
salaries of the Landlord's executive officers, commissions and fees paid for the
rental of the Building, or any parts thereof, or tenant improvements or costs
and expenses attributable to leasing other spaces in the Building to other
tenants including but not limited to legal fees and costs incurred in
negotiating or enforcing leases of other tenants, fines assessed against
Landlord for violation of any other tenant leases, and expenses attributable to
repairs to other tenant spaces by misuse of other tenants. Tenant or its agents
shall be permitted to audit all books and records pertaining to Operating
Expenses in the offices of the Landlord once each year during normal business
hours, upon prior written request.
D. Annual Notice. The Landlord shall notify the Tenant in writing by March
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15 of each year of the actual Operating Expenses during the preceding calendar
year, together with the computation of the additional payments for Operating
Expenses due from the Tenant by April 1 of such year pursuant to subsections A
and B of this Section 5.
6. PARKING. The Landlord shall grant to the Tenant surface parking
available on the Building Site or anything controlled by the Landlord, to be
used by the Tenant and its employees and guests, at no additional cost to the
Tenant. The Landlord reserves the right to designate the parking spaces leased
to the Tenant.
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7. SERVICES TO BE PROVIDED BY THE LANDLORD FOR THE OFFICE SPACE. The
Landlord shall provide and pay with respect to the office area any and all
charges for the following services to the Premises:
A. Janitorial services and customary cleaning in and about the Premises.
The Tenant may not provide any janitorial service of its own without the
a prior written consent, and then only subject to such additional
conditions as the Landlord may reasonably impose.
B. Heat and air conditioning to provide comfortable occupancy within
government regulations, of the Premises under normal business operations, Monday
through Friday from 8:00 a.m. to 5:00 p.m., Saturday from 8:00 a.m. through 1:00
p.m., but Sundays and holidays excepted. When Tenant works additional hours,
heat and air conditioning will be provided as needed. Whenever heat-generated
machines or equipment are used or business operations are conducted in the
Premises which, in the judgement of the Landlord, affect the temperature
otherwise maintained by the air conditioning system, the Landlord reserves the
right to modify said system including the installation of supplementary air
conditioning units in the Premises, and the cost and expense of the modification
to said system, and any increase in the expense of operation and maintenance of
said system shall be paid by the Tenant to the Landlord.
C. Water from city mains, drawn through fixtures installed by the Landlord
for drinking, lavatory, and toilet purposes, including a reasonable amount of
hot water.
D. Electrical wiring system in the Premises for standard electrical
receptacles and lighting fixtures. The electrical system may be used only for
normal equipment and accessories including replacement lighting tubes, bulbs,
lamps and ballasts for overhead fixtures.
E. Snow removal service for the outside parking facilities, related
driveways, and sidewalks at all times.
F. Lavatories for the use of the Tenant's employees and invitees in common
with other tenants in the Building.
7.1 SERVICES TO BE PROVIDED BY THE LANDLORD FOR THE WAREHOUSE SPACE.
A. Water from city mains, drawn through fixtures installed by the Landlord
for drinking, lavatory, and toilet purposes, including a reasonable amount of
hot water. The Landlord reserves the right to provide a separate meter for the
Premises and to require the Tenant to pay for its use of water billed to such
meter but only upon Landlord paying all costs associated with the conversion to
the separate meter.
B. Electrical wiring system in the Premises for standard electrical
receptacles and lighting and fixtures. The electrical system may be used only
for normal equipment and accessories. Replacement lighting tubes, lamps, bulbs,
and ballasts required for the overhead lighting fixtures in the Premises will be
installed at the Tenant's expense.
C. Tenant shall be responsible for putting utilities in their name and
payment thereof. Space is separately metered.
D. Snow removal service for the outside parking facilities related
driveways, and sidewalks at all times.
E. Heating System(s) in all warehouse spaces to provide comfortable
occupancy.
The Landlord does not warrant that any of the services in Sections 7 and 7.1
above mentioned will be free from interruptions caused by repairs, renewals,
improvements, alterations, strikes, lockouts, accidents, inability of the
Landlord to obtain fuel or supplies, or any other cause beyond the reasonable
control of the Landlord. Notwithstanding anything in this Lease to the contrary,
if any such service is interrupted, through no fault of the Tenant, and
continues for a period of 3 days, rendering either the Office or Warehouse
space, as the case may be, untenantable for the conduct of business therein,
rent and all additional charges shall xxxxx for the period of the interruption
until such service is restored. The Landlord will use reasonable efforts to
promptly remedy any situation which has interrupted any such services.
8. LANDLORD'S TITLE. Landlord has sole title to the property on which the
premises are located. 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
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title of the Landlord. This lease is subject and subordinate to all ground and
underlying leases, and to all mortgages which may now or hereafter affect such
ground and underlying leases, or the Real Estate 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, any subordination of the Lease shall be
conditional upon the existing or subsequent mortgagee or subsequent purchaser
agreeing in writing with Tenant to recognize this Lease and to not disturb
Tenant's use, occupancy and possession of the Premises so long as Tenant is not
in default of the Lease. Subject to its rights under the immediately preceding
sentence, 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
this Lease to the mortgage.
9. ASSIGNMENT AND SUBLETTING.
A. Tenant. The Tenant may not assign or transfer all or any part of its
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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, and such consent will not be
unreasonably withheld. If the Landlord grants its consent then all consideration
paid or to be paid by such third party, including fifty percent (50%) of any
amounts in excess of the rent due under this Agreement, shall be paid directly
to the Landlord, and the Tenant shall be responsible to the Landlord for any
deficiency between such consideration and the rent and other monies due under
this Agreement. These provisions shall not apply (and the Landlord shall be
deemed to have consented to) an assignment or sublet to a subsidiary, affiliate
or a successor corporation of Tenant.
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.
10. UNTENANTABILITY. If either the Office or Warehouse spaces 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 have the Landlord repair all damage to
Office or Warehouse space 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. If the
Premises are unusable during such restoration, or if the Tenant is reasonably
required to close its operation while such repairs are made, the rent shall
xxxxx during such period of repair while such operations have ceased and the
Premises are completely closed. If the Tenant continues to operate on the
specific Premises during such repairs, but is unable to use a substantial
portion of the specific Premises, then the rent shall be prorated in the
proportion which the area of unusable leased space bears to the total specific
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 specific
Premises. If the untenantability is caused by the fault of the Tenant, there
will be no apportionment or abatement of rent. Nothwithstanding anything
contained in this Section 10 to the contrary, if the specific Premises are not
or cannot be made tenantable within 90 days after the date of the casualty for
any reason whatsoever, the Tenant may terminate this Agreement and the lease.
11. SIGNS. The 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 the Building by
the Tenant except on the doors of the Premises and on the Building's directory
board, 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 signs from the Premises and the Building.
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12. ALTERATIONS. No alterations or additions exceeding a total cost of
$5,000 may be made and no fixtures may be affixed to the Premises or the
Building by the Tenant without the prior written consent of the Landlord. All
such alterations, additions, and fixtures, except the Tenant's trade fixtures
and business machines, shall be and remain the property of the Landlord unless
otherwise agreed in writing by the Landlord. Any and all maintenance, repairs,
replacements to electrical, heating, air conditioning, water and plumbing
systems in the Premises and the Building shall be made or done only by persons
authorized by the Landlord.
13. USE OF THE PREMISES. The Tenant (a) shall occupy and use the Premises
during the Term for the purposes specified in Section 3 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 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 common area driveways, parking areas, sidewalks,
entrances, courts, corridors, vestibules, halls, elevators, and stairways of the
Building; (d) may not make or permit any noise or odor that is objectionable to
other occupants of the Office to emanate from the Premises, may not create or
maintain a nuisance in the Premises, may not disturb, solicit, or canvass any
occupant of the Building, and may not do any act tending to interfere with the
quiet enjoyment of the leased space in the Building by other tenants or to
injure the reputation of the Building; (e) may not make major modification to
the building by installing any machinery, mechanical equipment, air conditioning
equipment or aerial wires inside or outside the Building without, in each and
every case, prior written consent of the Landlord so that other occupants of the
Building will not be disturbed or annoyed; (f) may not place, or permit to be
placed, any article of any kind on the window ledges or on the exterior walls
and may not throw, or permit to be thrown or dropped, any article from any
window of the Office; (g) may not attach additional locks or similar devices to
any door or window and, upon the 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; (h) shall
be responsible for locking the doors and closing the transoms and windows in and
to the Premises; (i) may not install any blinds, shades, awnings, or other form
of inside or outside window covering or window ventilators or similar devices
without the prior written consent of the Landlord; (j) may not overload any
floor, shall route and locate safes and other heavy articles as the Landlord may
direct, shall bring safes, furniture, and all large articles through the Office
and onto the Premises at such times and in such manner as the Landlord directs
and at the Tenant's sole risk and responsibility; (k) may not install in the
Office any equipment which uses a substantial amount of electricity without the
advance written consent of the Landlord, shall ascertain from the Landlord the
maximum amount of electrical current which can safely be used in the Premises,
taking into account the capacity of the electrical wiring in the Building and
the Premises and the needs of other tenants in the Building, and,
notwithstanding the Landlord's consent to such installation, may not use more
electricity than such safe capacity; (l) shall be responsible for the cost of
modification, installation, maintenance, repair, and additional operating and
utility expenses related to any supplementary air conditioning required by heat
generating machines or equipment used by the Tenant; (m) may not cover or
obstruct the windows and doors that reflect or admit light or air into the
halls, corridors or other public places in the Building; (n) may not use the
water and wash closets and other plumbing fixtures for any purposes other than
those for which they were constructed; (o) may not xxxx, drill into, or in any
way deface any part of the Premises or the Building unless restored by Tenant
prior to vacating the Premises; (p) may not lay any type of flooring without the
prior written consent of the Landlord; (q) may not bring into the Office
bicycles, vehicles or animals of any kind; (r) may not sell merchandise, goods
or property of any kind without the prior written consent of the Landlord; (s)
may not move furniture, equipment, machinery or other property into or out of
the Office space between the hours of 8:00 a.m. and 5:30 p.m., Monday through
Friday, without the prior written consent of the Landlord.
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All persons entering or leaving the Office between the hours of 6:00 p.m.
and 8:00 a.m., Monday through Friday, or any time Saturday, Sunday, or Holidays,
may be required to identify themselves to a watchman, by registration or
otherwise, and to establish their right to enter or leave the Office. The
Landlord may exclude or repel any peddler, solicitor, or beggar. In addition to
all other liabilities for breach of any covenant of this Section 13, the Tenant
shall pay to the Landlord, as additional rent under this Agreement, an amount
equal to any increase in insurance premiums caused by such breach. The violation
of any covenant of this Section 13 may be restrained by injunction.
14. REPAIRS. The Landlord agrees that, at its own expense, it will keep
and maintain the Premises, including, without limiting the generality of the
foregoing, the roof, exterior, foundation, fire protection system, structural
integrity, all utility lines and connections, interior walls, windows and window
glass, flooring, ceiling, fixtures and operational parts, paving, sidewalks,
parking areas and landscaping, in a condition and repair similar to its
condition and repair on the effective date hereof, ordinary wear and tear
excepted. Except as otherwise provided in Sections 7 and 7.1 of this Lease and
as set forth herein the Tenant shall take good care of the Premises and the
fixtures in the Premises and 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, or to the property of other tenants in
the Building caused by the Tenant may be repaired by the 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 a statement of such costs by
the Landlord to the Tenant, or mailing the same, postage prepaid, to the Tenant
at its last known address.
15. EMINENT DOMAIN. If the Premises, or any part thereof, which prevents
or substantially impairs 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 with rent prorated to the day of
the taking. The Tenant may not share in the condemnation award, except for its
personal property and relocation awards, if any and other awards to the extent
such does not diminish the award to the Landlord.
16. ENVIRONMENTAL CONDITIONS.
A. Compliance with Laws. As a principal element of the consideration for
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the lease of the Premises to the Tenant by the Landlord, the Tenant acknowledges
and agrees 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, 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
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box [X] 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.
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C. Containers; Spill Catchment. The Tenant may install or use above-ground
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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 imposed by the Landlord. 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
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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
Landlord, within fifteen days after written notice to Tenant specifying the
basis of Landlord's belief and after consultation with Tenant and its counsel
may perform an environmental site assessment or environmental audit report
prepared by an environmental engineering firm acceptable to the Landlord, to
assess 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 proven to have originated
from Tenant's use of the real estate, the Tenant shall pay all costs related to
the preparation of the report and assessment and to the required remediation.
E. Site Assessment by Landlord. In the event of a default, the Landlord (or
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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 occupier of the Real Estate. Such Site
Assessments 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. The cost of performing all Site Assessments shall be paid by the
Landlord unless, 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 within five days after
written demand by the Landlord, and thereafter shall bear interest at the rate
of 18% annum.
F. Environmental Indemnification. The Tenant shall indemnify, release,
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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 be the Tenant during
the Term and the Tenant's possession of the Premises. 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. The Landlord shall similarly indemnify the Tenant for
environmental liability caused by Landlord or presently existing at the
Premises.
G. Survival of Section. The provisions in this Section 16 shall be in
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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.
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17. RIGHTS RESERVED TO LANDLORD. The Landlord reserves all rights incident
to its ownership of the Building, including, but not limited to, the right (a)
to install and maintain signs on the exterior of the Building; (b) to designate
all sources furnishing sign painting and lettering used on the Premises
providing such sources are competitive and reputable and of good quality and
workmanship; (c) 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; (d) to have pass keys to the Premises; (e)
to exhibit the Premises during the last 180 days of the Term but only upon
advance notice and during normal business hours and accompanied by a
representative of Tenant if requested by Tenant; (f) 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 interest therein, or as may be necessary or desirable in the
operation of the Building without interfering with Tenant's operations except in
the case of an emergency. (g) Except as otherwise set forth herein the Landlord
may enter upon the Premises and may exercise any or all of the foregoing rights
hereby reserved without being deemed liable of an eviction or disturbance of the
Tenant's use or possession and without being liable in any manner to the Tenant
provided the Landlord exercises reasonable care.
18. 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 one and one-forth times
(125%) the rate of the then current rental specified in this Agreement for the
time that the Tenant thus remains in possession. If the Tenant remains in
possession of the Premises, or any part thereof, after the termination of the
term by lapse of time or otherwise, the Landlord may thereafter terminate the
tenancy with thirty (30) days written notice to the Tenant. The provisions of
this Section 18 do not waive the Landlord's right of re-entry or any other right
under this Agreement.
19. 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 or at such other place Tenant may
designate in writing, 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 pre-paid first class mail, addressed to the Landlord, c/o
The Xxxxxxxx Property Services, Inc., X.X. Xxx 0000, Xxxxx Xxxx, XX 00000, or at
such other place as the Landlord may from time to time designate in writing.
20. 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 an involuntary petition or proceeding, 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, 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
the rent for the Premises which the Landlord obtains.
B. Landlord's Remedies. If the Tenant either fails to pay any rent or other
-------------------
monies owed to the Landlord on the date it is due and payable, and fails to cure
such default within ten (10) days or is otherwise in default of any of its
obligations or duties under this Lease after thirty (30) days of written notice
thereof by the Landlord plus such additional time as is necessary to correct
said default so long as the cure is continuously and diligently undertaken by
the Tenant,
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then the Landlord may 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 or breach of covenant and may, at its option,
terminate this Lease 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 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. Landlord's Enforcement Costs. The Tenant shall pay upon demand all the
----------------------------
Landlord's costs, charges, and expenses, including reasonable fees of attorneys,
agents, and others retained by the Landlord incurred in enforcing the Tenant's
obligations under this Agreement or incurred by the Landlord in any litigation,
negotiation, or transaction in which the Tenant causes the Landlord to become
involved or concerned. The defaulting party shall pay to the non-defaulting
party all expenses in regards to enforcing the lease obligations.
21. 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.
A. Tenant's Enforcement Costs. The Landlord shall pay upon demand all
--------------------------
the Tenant's costs, charges, and expenses, including reasonable fees of
attorneys, agents, and others retained by the Tenant incurred in enforcing the
Landlord's obligations under this Agreement or incurred by the Tenant in any
litigation, negotiation, or transaction in which the Landlord causes the Tenant
to become involved or concerned. The defaulting party shall pay to the
non-defaulting party all expenses in regards to enforcing the lease obligations.
22. 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 shall be designated as a named insured with the
right to notice of cancellation or amendment ten days prior to the effective
date thereof. Said insurance shall be maintained during the Term.
B. Property Insurance. Landlord shall maintain at all times a policy or
------------------
policies of fire and extended coverage (all risk) insurance on the premises.
C. Indemnification-Landlord. 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, on, 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;
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(iii) Any negligence on the part of the Tenant, Tenant's agent or Tenant's
customers occurring in the Premises and the Building, and on the Building Site.
The Tenant shall not indemnify for any damages due to Landlord's negligent acts
or omissions or Landlord's willful acts or omissions.
D. Indemnification-Tenant. The Landlord shall indemnify, defend, and save
----------------------
the tenant harmless from all losses, liabilities, costs, damages, and expenses,
including reasonable engineers', architects' and attorneys' fees, which may be
incurred by or asserted against the Tenant by reason of or in respect to any of
the following occurring during the term:
(i) Any work or thing done by the Landlord in, on, or about the
Premises, or any part thereof
(ii) Any negligence on the part of the Landlord or it's agents occurring
in the premises and the Building, and on the Building Site.
(iii) Any breach or default by Landlord in the performance of any
obligation on Landlord's part to be performed under terms of this Lease.
The Landlord shall not indemnify for any damages due to Tenant's negligent acts
or omissions or Tenant's willful acts or omissions.
E. 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 C of this
Section 22, 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.
F. Landlord's Limited Liability. To the extent permitted by law, the
----------------------------
Landlord will not be liable for any damage, either to person or property (expect
caused by Landlord's gross negligence or failure to enforce terms of a Lease
with another Tenant), sustained by the Tenant or by other persons due to the
Real Estate, or any part thereof, being out of repair (for which the Tenant has
repair obligations) or due to the happening of any accident in or about the Real
Estate or due to any act of negligence of any tenant or occupant of the Building
or of any other person. This limitation as to liability shall apply only to the
Landlord.
G. Subrogation. Each party to this Lease waives any and every claim which
-----------
arises or may arise in its favor against the other party hereto during the term
of this Lease for any and all loss or damage, including damage to any of its
property located within or upon the Premises, which loss or damage is covered by
valid and collectible policies of insurance provided for herein, to the extent
that such loss or damage is recoverable under such insurance policies. Such
mutual waiver shall be in addition to, and not in limitation or derogation of,
any other waiver or release contained in this Lease with respect to any loss or
damage suffered by the parties hereto. Inasmuch as such mutual waiver will
preclude the assignment of any aforesaid claim by way of subrogation or
otherwise to an insurance company (or any other person), each party hereby
agrees immediately to give to each insurance company which has issued to it
policies of insurance, written notice of the terms of such mutual waiver, and to
cause such insurance policies to be properly endorsed, if necessary, to prevent
the invalidation of such insurance coverages by reason of such waiver.
23. TENANT ESTOPPEL CERTIFICATE. The Tenant agrees that at any time and
from time to time, upon not less than ten days prior written request by the
Landlord, then the Tenant shall execute, acknowledge, and deliver to the
Landlord a statement in writing certifying 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 to the extent Tenant can accurately
or truly make any of those statements. It is intended that such statement
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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.
24. 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. Upon written notice to Tenant and its failure to
clear lien within ten (10) days, at its election, 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.
25. 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 successful 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 respective 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 the Tenant to the Landlord under this Agreement
shall be deemed to be additional rent and shall be deemed due and payable on the
tenth working day after the date the Landlord renders a statement of account
therefore to the Tenant and shall bear interest at the rate of 12% per annum
from the date due and payable until paid by the Tenant.
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.
I. So long as Tenant is not in default under this Lease, Tenant shall be
entitled to peaceably possess, hold and enjoy the Premises.
J. Landlord covenants that Landlord has full right and authority to make
this Lease; that the Premises are free and clear of and from all liens,
restrictions, leases and encumbrances except as specified herein; and that there
are no laws, ordinances, governmental rules or regulations or title restrictions
or zoning or other matters which will prevent Tenant's operation of its
business. Landlord represents and warrants that when it delivers possession of
the Premises to Tenant, the Building shall be in full compliance with all laws,
ordinances and regulations relative to the use, occupation and construction
thereof. Landlord will provide more specific information regarding any
encumbrance and liens to Tenant upon request.
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26. 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.
27. ADDITIONAL PROVISIONS. Additional Sections numbered I through IX,
attached to this Agreement, are part of this Agreement and the terms and
provisions of those additional paragraphs are binding on the Landlord and the
Tenant.
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LANDLORD: XXXXXXXX MISHAWAKA, LLC
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Xxxx X. Xxxxx
TENANT: AM GENERAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx, Executive Vice President
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XXXXX XX Xxxxxxx )
) SS:
COUNTY OF St. Xxxxxx )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxx X. Xxxxx, on behalf of Xxxxxxxx Mishawaka LLC, the Landlord, and
acknowledged the execution of the foregoing Lease Agreement on 4/29, 1999.
My Commission Expires:
1/22/01
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Xxxxxx Tiechocowski, Notary Public
-------------------
Residing in Elkhart
------------------------
County, Indiana
------------------------
STATE OF Indiana )
) SS:
COUNTY OF St. Xxxxxx )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxx X. Xxxxxx, on behalf of AM General, the TENANT, and acknowledged
the execution of the foregoing Lease Agreement on 4-29, 1999.
My Commission Expires:
1-31-01
-------
Xxxxxxxxx Xxxx, Notary Public
--------------
Residing in St. Xxxxxx
------------------------
County, Indiana
------------------------
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ADDITIONAL PROVISIONS
I. PREMISES IDENTIFICATION:
Office Space:
Suite 100 22,622 sf.
Warehouse Space:
Xxxxx 000 220,739 sf.
Suite 414 18,076 sf.
II. OPTION TO RENEW: Tenant is hereby granted an Option To Renew for an
additional five (5) year term at the prevailing market rental rate for
comparable facilities at the time of renewal for 238,815 sf. of Warehouse
space; 22,622 sf. of Office space with one hundred eighty (180) days
written notice.
III. FIRST RIGHT OF REFUSAL: Tenant has First Right of Refusal on any space
vacant within the facility following ten (10) days written notification
from Landlord.
IV. TERMINATION: The portion of this Lease concerning the Office space and
Tenant's obligations thereunder shall terminate upon Tenant's relocation
to Office space in a building owned by Landlord or its affiliate.
V. TERMINATION: Tenant may terminate this lease after two (2) years with buy
out of one (1) year's rent or 50% of balance of rent through term of
lease, whichever is less. Tenant must give Landlord six (6) months's
written notice of termination. Tenant must be current with rent in order
to exercise termination terms of the lease.
VI. ROOF MAINTENANCE: Roof Performance
. Xxxxxxxx will improve roof performance over the next five years.
. Xxxxxxxx'x Property Management representative will provide quarterly
reports to AM General's Facilities Management representative
addressing roof performance issues.
. Xxxxxxxx has established a 5 year budget of $250,000 for major roof
repairs and replacement at its Xxxxxx Avenue facility. This along with
routine expenditures for roof repairs is designed to meet AM General's
roof performance expectations.
VII. Suite 404
. Rental rate $1.60 psf plus standard building CAM
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. Rent is presently being paid on 10,725 sf (actual space is 11,901) and
as long as AM General continues to pay rent on space the rent shall be
paid on 10,725 sf.
. With 90 days written notice AM General can terminate use of all of
this suite or they may terminate all of the warehouse space in this
suite and retain the use of the space that houses the document center.
VIII. AM General presently has use of 1,000 sf of office space on the second
floor. For the balance of the lease, AM General may continue to use this
space at not charge.
IX. If AM General leases the balance of the warehouse space at Xxxxxx - Xxxxx
000 - (26,620 sf) and Suite 412 - (14,024 sf) the rental rate will be
changed to $2.13 psf for all warehouse space at the time that the final
suite is leased and will remain at $2.13 for the balance of the five
years remaining on the lease. Rate for Suite 404 will remain at $1.60 as
noted in VII Above.
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