COMMERCIAL LEASE
Exhibit
10.37
This
lease is entered into between Xxxxxxx
Properties, LLC ("Landlord") and Xxxxxxx Electric, LLC ('Tenant").
1.
Agreement
to Lease.
Landlord is the owner of real estate and improvements located at 0000 X.
Xxxxxxx
Xx., Xxxxx Xxxx, Xxxxxxx, 00000, the legal description of which is attached
as
Exhibit “A” (“Real Estate” or “Property”). Subject to all the provisions of this
Lease, Landlord leases to Tenant and Tenant leases from Landlord the Real
Estate. Tenant shall be responsible for expenses on the entire Real Estate,
such
as taxes, utilities, etc. as provided in this Lease.
2.
Term.
This Lease shall be for an initial term of five (5) years beginning on January
1, 2007, (“Lease Commencement Date”) through December 31, 2011 (“Lease
Termination Date”).
3.
Use.
Tenant shall use the Property for the operation of its business and any related
purpose.
4.
Rent.
As rent for use of the Property, Tenant agrees to pay an annual amount of
Eighty-Nine Thousand Sixty Dollars and Forty Cents ($89,060.40) (“the Rent”), to
be paid in monthly payments of Seven Thousand Four Hundred Twenty One Dollars
and Seventy Cents ($7,421.70), in advance, without notice, on the first day
of
each month during the Term hereof. Payments shall be made to Landlord at
0000 X.
Xxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxx 00000, or any other place Landlord may
from
time to time designate in writing.
If
Tenant fails to pay any rent, expenses or other charges required under this
Lease within five (5) days after the due date, then any unpaid amounts shall
be
subject
to
a late
charge of two percent (2%) interest per month from the due date to the date
of
payment, which percentage rate is an annual rate of twenty-four percent (24%).
Notwithstanding this interest charge, nonpayment of any such amounts due
under
this Lease shall constitute a default.
5.
Additional
Expenses
a.
Utilities.
All utility bills, including water, sewerage, gas, electricity, telephone
arid
similar services on the Real Estate shall be paid by Tenant. Tenant shall
not
install any equipment which shall exceed the capacity of any utility facilities
furnished by Landlord. If any equipment desired by Tenant requires additional
utility facilities, the same shall be installed at Tenant's expense in
compliance with all applicable code requirements and with Landlord's prior
written approval. Further, Landlord shall not be liable to Tenant in damages
or
otherwise for any utilities or services, whether or not furnished by Landlord
hereunder, which are interrupted or terminated for any reason, including
repairs, installations, improvements, energy emergency or shortage.
b.
Taxes
and Assessments.
Tenant shall pay all real estate taxes (“Taxes”), assessments and any other
governmental charges (“Assessments”) on the Real Estate as they come due during
the term of the Lease. Tenant shall pay Taxes to Landlord in two (2) equal
installments on or before May 10 and November 10 of each year during the
term of
this Lease. Tenant shall pay Assessments to Landlord at least ten (10) days
before the Assessments are due and payable. Landlord agrees to furnish Tenant
with copies of official statements from the County Treasurer or other taxing
authority on or
before
each April 15 and October 15 reflecting the Taxes and/or Assessments due
on the
Real Estate.
c.
Maintenance.
Tenant shall at all times maintain the complete Real Estate in good working
order and repair, including but not limited to the foundations, roof and
other
structural portions of the Real Estate. All entrances, vestibules, partitions,
windows, window frames and moldings, door openers, fixtures, equipment, and
appurtenances thereof, as well as lighting, heating, electrical, plumbing,
ventilation, air conditioning and similar systems (whether installed by Landlord
or Tenant). Tenant shall keep the Real Estate in a clean, orderly, and safe
manner. Tenant covenants that the Real Estate shall at all times comply with
all
ordinances, governmental regulations and applicable laws. If replacement
of any
aforesaid equipment, fixtures or appurtenances becomes necessary, Tenant
shall
replace the same with equipment, fixtures and appurtenances of the same size
and
quality and shall promptly repair any and all damage done by such replacement.
If Tenant fails to perform these obligations, Landlord without notice may,
but
shall not be obligated to, perform such obligations and add the cost to the
next
installment of rent due. At the expiration of this Lease or any extension
thereof, Tenant shall return the Real Estate to Landlord in its Original
Condition, reasonable wear and tear excepted. Tenant shall pay for all repairs
and Real Estate upkeep, including window and glass replacement, snow removal,
trash removal, lawn care and similar expenses.
6.
Insurance.
a.
Fire
Insurance.
Tenant at its sole cost and expense shall keep the building or buildings
and
improvements on the Real Estate insured under a policy with
extended
coverage
endorsements for not less than its full or their full replacement value.
Tenant
shall be responsible for insurance covering Tenant's personal property. Tenant
shall also obtain business interruption insurance if Tenant wishes to be
protected from this risk since it is understood the Landlord shall not be
responsible for any loss to Tenant caused by fire (regardless of who is
negligent). Tenant agrees not to keep or use anything on the Property which
is
prohibited by the standard policy form of fire insurance.
b.
Public
Liability Insurance.
At Tenants expense, Tenant shall procure comprehensive and general public
liability insurance against claims for personal injury, death or property
damage
occurring in, or about the Property, such insurance to afford protection
to the
limit of not less than One Million Dollars ($1,000,000) in respect to injury
or
death of a single person, Five Million Dollars ($5,000,000) in respect to
any
one accident and Five Hundred Thousand Dollars ($500,000) in respect to property
damage.
c.
General
Requirements.
The insurance policies required to be obtained by Tenant shall name Tenant
as
the insured and the Landlord (and any mortgagee) as additional insureds.
These
insurance policies shall be issued by insurers authorized to do business
in the
State of Indiana. These policies shall provide that they not be cancelled
without at least ten (10) days prior written notice to both Landlord and
Tenant
and further that any losses shall be payable notwithstanding any act or
negligence of Tenant or Landlord which might otherwise result in forfeiture
of
the insurance. Upon
commencement of the term of this Lease and thereafter not less than fifteen
(l5)
days prior to the expiration date of each expiring policy, a certificate
evidencing the
insurance
policies issued by each insurer shall be delivered to Landlord, together
with
satisfactory evidence of payment of all required premiums.
7.
Acceptance
of Premises.
By occupying the premises, Tenant acknowledges that the Property has been
examined and is in good order and repair ("Original Condition"). Tenant
acknowledges that no representations as to the condition of repair have been
made by Landlord, except those set out below regarding “2007 Build
Out.”
8.
Alterations.
Tenant shall make no structural changes alterations, additions, or improvements,
or do any such work on or about the Property without the prior written consent
of the Landlord. All structural changes or alterations shall become a part
of
the Property and remain thereon as Landlord's property at the termination
of the
Lease. However, Landlord hereby consents to and gives Tenant the right to
install or provide such trade fixtures, partitions and equipment, together
with
any additional painting or decorative, nonstructural alterations, which Tenant
may find necessary or desirable for operation of its business. It is further
agreed that all such trade fixtures, partitions and equipment installed by
Tenant ("Trade Fixtures"), regardless of the manner of their annexation,
may be
removed by Tenant at the termination of this Lease.
All
changes, whether structural or nonstructural, shall be made at Tenant's own
expense. Restoration of the Property to its Original Condition (including
damage
caused by removal of the Trade Fixtures) also shall be made at Tenant's expense.
Tenant shall promptly pay for all materials and labor involved in making
such
changes or restoration and shall not permit any liens, claims or demands
("Claim") to exist against the Landlord or the Property. If a Claim is filed
or
made against the Landlord or the
Property,
Tenant shall defend the same at its own expense and indemnify and hold Landlord
harmless from all liability and expenses arising by virtue of the Claim (unless
the Claim arose because of the fault of the Landlord).
9.
Assignment
and Subletting.
Tenant shall not assign, pledge, mortgage, or otherwise encumber either this
Lease or the Property. Tenant shall not sublet all or any part of the Property
without the Landlord's prior written consent. However, no permitted subletting
shall relieve Tenant of Tenant's obligations under this Lease. Tenant shall
continue to be liable as a principal and not as a guarantor or surety to
the
same extent as though no subletting had been made.
10.
Casualty
Loss.
If the Property is damaged or destroyed by fire or other casualty which renders
it untenantable, Landlord may elect to either terminate the Lease or restore
the
Property to its former condition within one hundred twenty (120) days after
such
casualty. Landlord shall give written notice of such election to Tenant within
thirty (30) days after the casualty; if such notice is not given, the Lease
shall terminate. If Landlord does not restore the Property, rent shall be
paid
at the agreed rate only up to and including the date of such casualty. If
Landlord repairs the Property, the rent shall xxxxx until the Property is
again
tenantable. If the Property suffers only partial damage or destruction, Landlord
shall repair the damage within a reasonable time and shall xxxxx Tenant’s rent
in proportion to the amount of the untenantable Property.
11.
Default
of Tenant.
Failure of Tenant to perform any requirements under this Lease within thirty
(30) days after written notice of default is received from Landlord, except
Tenant's failure to make rental payments for which no written notice of default
is required from Landlord, shall be considered a default by Tenant under
this
Lease.
12.
Remedies
of Landlord.
If Tenant defaults in payment of rent, expenses or any other agreements
contained in this Lease, Tenant will at once deliver peaceable possession
of the
Property to Landlord.
13.
Signs. The
Tenant may install appropriate signs on the Property. At the termination
of this
Lease, such signs shall be removed at Tenants expense. Any damage to the
Property caused by the erection, maintenance or removal of such signs shall
be
paid for by the Tenant.
14.
Environmental
Representations.
Tenant shall not use, or permit the Property to be used, in a manner that
"violates any applicable federal, state or local law, regulation, or ordinance
now or hereafter in force. This includes, but is not limited to, any law,
regulation or ordinance pertaining to air or water quality or emissions;
the
handling, transportation, storage, treatment, usage or disposal of toxic
or
hazardous substances; or any other environmental matters. Compliance shall
be at
the sole cost and expense of Tenant, its agents, employee, contractors or
invitees.
Tenant
shall immediately notify the Landlord of any spills, releases or other potential
failures to comply with applicable environmental laws and regulations, and
of
any inspections, notices, orders, fines or communications originating from
environmental regulatory agencies.
Landlord,
its officers, employees, contractors or agents shall have the right but not
the
duty to inspect the premises, including Tenants records pertaining to
environmental compliance, and conduct any sampling or tests necessary to
verify
Tenant's compliance with applicable environmental law or regulations and
this
Lease. If Tenant is found to be in violation of this Lease or any applicable
law
or regulation, or
environmental
contamination is detected, Tenant shall be responsible for all costs associated
with such contamination or noncompliance.
Tenant
agrees to indemnify, defend and hold Landlord and its officers, directors,
employees, contractors and agents harmless from all costs or liabilities
arising
from any environmental contamination or noncompliance with any applicable
federal, state or local environmental law, regulation or ordinance now or
hereafter in force, resulting from the operations of the Tenant, its agents,
employees, contractors or invitees.
This
indemnification includes, without limitation, all claims, judgments, damages
(including natural resource damages), penalties, fines and costs incurred
in
connection with any site investigation to determine the presence or extent
of
any contamination, as well as the costs of any cleanup, removal or remedial
work, whether or not it is required by any regulatory agency. Such costs
shall
include reasonable environmental consultant's and attorney fees.
This
indemnification shall survive the expiration or earlier termination of this
Lease.
15.
Liability
and Indemnification.
Landlord shall not be liable to Tenant for any damage or injury to Tenant
or
Tenant's property arising out of or in any way related to the condition of
the
Property. Tenant shall indemnify and hold Landlord harmless against all
liabilities, losses, claims, costs, expenses and judgments of any nature
arising
from or in connection with injuries to persons or damage to property arising
from or connected with Tenant’s use of the Property.
16.
Holding
Over.
At the termination of this Lease, by lapse of time or otherwise, Tenant will
yield up immediate possession to Landlord.
17.
Option
to Renew.
Provided this Lease is in effect and Tenant is not in default, Tenant shall
have
the right and option to renew this Lease for two additional terms of three
(3)
years each under the same provisions as the original Lease, except for rental
payments. To be effective, the option to renew must be exercised by Tenant
by
notice delivered to Landlord or mailed to Landlord by certified mail, postage
prepaid and return receipt requested at least four months prior to the beginning
date of the renewal term.
For
each option renewal term, Tenant agrees to pay as rent for the Property an
increase in monthly installments equal to five percent (5%) rounded to the
nearest dollar. For the first renewal term, Tenant would pay as rent for
the
Property equal monthly installments of Seven Thousand Seven Hundred Ninety
Two
Dollars and Seventy Nine Cents ($7,792.79) each; the monthly rent for the
second
renewal term would be Eight Thousand One Hundred Eighty Two Dollars and Forty
Two Cents ($8,182.42) per month.
18. 2007
Build Out.
Landlord will make certain improvements to the Real Estate in 2007 which
are set
forth on Exhibit “B” and include building out and remodeling the office space
portion of the Real Estate (the “2007 Build Out”).
19.
Miscellaneous.
a.
Quiet
Enjoyment.
So long as Tenant performs and observes all the provisions of this Lease,
Landlord covenants and promises that Tenant shall have peaceful enjoyment
of the
Property.
b.
Notice.
Notice from one party to another relating to this Lease shall be deemed
effective if made in writing (including telecommunications) and delivered
to
the
recipient’s address or facsimile number set forth under its name by any of the
following means: (a) hand delivery, (b) registered or certified mail, postage
prepaid, with return receipt requested, (c) first class or express mail,
postage
prepaid, (d) Federal Express or like overnight courier service or (e) facsimile
transmission with request for assurance of receipt in a manner typical with
facsimile transmissions. Notice made in accordance with this section shall
be
deemed delivered on receipt if delivered by hand or wire transmission, on
the
third business day after mailing if mailed by first class, registered or
certified mail, or on the next business day after mailing or deposit with
an
overnight courier service if delivered by express mail or overnight courier.
The
current address of the parties is as follows:
|
Landlord
|
|
Tenant | |
|
Xxxxxxx
Properties, LLC
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxx
Xxxx, Xxxxxxx 00000
Fax:
000-000-0000
|
|
Xxxxxxx
Electric, LLC
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxx
Xxxx, Xxxxxxx 00000
Fax:
000-000-0000
|
|
c.
Entry
and Inspection.
Landlord shall have the right to enter and inspect the Property at reasonable
times.
d.
Attorney
Fees.
Tenant shall pay all reasonable costs, attorney and paralegal fees and
expenses
that may be incurred by Landlord in the enforcement of the terms of this
Lease
including any expenses incurred on appeal.
e. Severability.
If any provision of this Lease becomes invalid or unenforceable, the remainder
of the Lease shall not be affected and the balance of the Lease provisions
shall
be valid and enforceable to the fullest extent permitted by law.
f.
Successors.
The provisions of this Lease shall be binding upon the successors in interest
of
both Landlord and Tenant.
g
Headings.
The paragraph headings contained in this Lease are for reference purposes
only
and shall not affect in any way the meaning or interpretation of this
Lease.
h. Counterparts.
This Lease may be executed simultaneously m two or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
i.
Entire
Agreement.
This Lease (including the exhibits hereto) is intended by the parties to
and
does constitute the entire agreement of the parties with respect to the rental
of the Property. This Lease supersedes any and
all prior understandings, written or oral, between the parties
hereto.
Landlord
and Tenant now sign this Lease to be effective the 1st
day of
January, 2007.
|
Landlord
|
Tenant
|
||
|
Xxxxxxx
Properties, LLC
/s/
Xxxx X. Xxxxxxx
|
Xxxxxxx
Electric, LLC
/s/
Xxxx X. Xxxxxxx
|
||
|
Xxxx
X. Xxxxxxx, Manager
|
Xxxx
X. Xxxxxxx, President
|
Legal
Description
The
subject property is located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxx Xxxx, Xxxxxxx 00000. The subject property includes
the offices and warehouse for Xxxxxxx Electric, LLC. It is located in the
Airport Industrial Complex. The legal description of the subject property
is as
follows:
A
tract
of land In the Northeast Quarter of Section 33, Township 38 North, Range
2 East,
in and a part of the unrecorded plat of the Airport Industrial Park. City
of
South Bend, St. Xxxxxx County, Indiana, more particularly described as follows:
Commencing at the Northeast xxxxx of the Southeast Quarter of Xxxxxxx 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 0 East; thence South 00°07'29" West a distance of
815.52 feet to a point on the North line of Voorde Drive projected East;
thence
North 89°40'09" West on and along the North line of Voorde Drive a distance of
1,288.56 feet to the East line of Progress Drive; thence North 00°18'51- East on
and along the East line of Progress Drive a distance of 885.00 feet to a
1/2
inch iron pipe and the place of beginning; thence continuing North 00°18'51"
East along said East line of Progress Drive a distance of 300.00 feet to
a 1
inch iron rod; thence South 89°40'09" East a distance of 360.00 feet to a 1 inch
iron rod; thence South 00°18'51" West a distance of 300.00 feet to a 1 inch iron
rod; thence North 89°40'09- West a distance of 360.00 feet to the place of
beginning.
Exhibit
“B”
2007
Build Out Plan
