COMMERCIAL LEASE
THIS AGREEMENT, made and entered into this First day of August
1998, between XXXXXX X. LUNG BUILDING COMPANY, INC., an Indiana Corporation, of
St. Xxxxxx County, State of Indiana, hereinafter know as "LESSOR", and XXXXXXX
INDUSTRIES, INC., an Indiana Corporation with principal offices in Elkhart
County, Indiana, hereinafter referred to as "LESSEE", for and in consideration
of the covenants and agreements hereinafter mentioned, that real estate located
in Elkhart County, State of Indiana, and more particularly described in ITEM 1.
LEASED PREMISES.
Whereas, lessor is owner of certain property situated in
Elkhart, Indiana; and
WHEREAS, LESSEE is desirous of leasing said property.
NOW, THEREFORE, in consideration of the mutual promises
hereinafter contained with applicable ordinances, laws and regulations, the
parties agree as follows:
1. LEASED PREMISES: the LESSOR hereby leases to LESSEE those
premises bearing the street address of 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, more
particularly described as follows:
Part of the Northwest Quarter (NW 1/4) of section 8, Township
37 North, Range 5 East of the Second Principal Meridian in the
City of Elkhart, County of Elkhart, State of Indiana,
described as follows:
Beginning at a point in the centerline of Xxxxxx Avenue in
said City of Elkhart, said point being 942.85 feet west of a
point where said centerline is intersected by the southerly
extension of the westerly line of Xxxxxxx'x South Elkhart
Addition as the same is platted west of Sixth Street and north
of said Xxxxxx Avenue; thence xxx xxxx along the centerline of
said Xxxxxx Avenue a distance of 500.00 feet to a point;
thence due north along the east line of a tract of land
conveyed to Northern Indiana Public Service Company (Elkhart
County Deed Record 258 Page 55) a distance of 114.55 feet to
an iron stake at the northeast corner of said tract of land;
thence due east along the north line of land conveyed to
Xxxxxx X. Lung and Xxxxxxx X.
Lung, husband and wife, in Elkhart County Deed Record 297 page
534, a distance of 135 feet to an iron stake; thence north 54
degrees - 08 feet east along the north line of said Lung land
a distance of 369.42 feet to an iron stake; thence due east a
distance of 65.98 feet; thence south 0 degrees 5 feet west a
distance of 330.9 feet to the place of beginning of this
description.
Containing 2.39 acres of land.
2. TERM: The term of this Lease shall be from the 1st of
August, 1998, through the 31st day of July, 2001.
3. RENTAL: Lessee agrees to pay to Lessor in advance of the
first day of each month throughout the term of this lease, a rental of Nine
Thousand Six Hundred and Sixty ($9,660.00) Dollars per month (.23/ft for 42,000
sq. ft.). Lessee further agrees that if its operations hereunder and use of said
property cause an increase in the cost of fire and extended coverage insurance
on any building, which in whole or in part is included in the leased premises,
over and above the cost that would otherwise be applicable to said building,
then the monthly rent provided for hereinabove will be increased by the amount
of the increase in the cost of such insurance by the amount of the increase in
the cost of such insurance on a monthly basis. Lessee additionally, agrees to
pay, Real Estate Taxes as provided in the Agreement
4. CONDITION. USE AND CARE OF LEASED PREMISES: Lessee hereby
accepts the leased premises in its present condition. Lessee agrees to use said
premises for its warehousing and display, sales, repair and modification of its
products, and for all additional uses and purposes as may be customarily
incidental to the operation of Lessee's business.
Lessee agrees that in no event shall it conduct any business
on said premises which would be in violation of any local, state, or federal
rules, regulations, ordinances, or statutes.
Lessee agrees that it shall place no sign upon leased premises
until Lessor shall first have approved, in writing, the size and location of
said sign.
Lessee agrees to maintain the leased premises in good
condition at all times, subject only to reasonable wear and tear of the kind
normally accounted for by depreciation; and Lessee agrees to maintain the leased
premises in a neat and presentable condition at all times and not to permit
accumulations of any unsightly deposits of rubbish or other matter.
Lessor reserves the right to make an inspection of the leased
premises at reasonable times during business hours no oftener than once every
three (3) months; provided, however, that said inspection shall not in any way
interrupt Lessee's normal business operations.
Lessee shall have the right to make such interior changes,
improvements, and alterations to the leased premises, at its own cost and
expense, as may be desired or necessary to adapt the leased premises to the
business to be carried out by the Lessee; provided, however, that no structural
change shall be made in such leased premises without prior written consent of
the Lessor, and Lessee will not allow any liens or encumbrances to attach to the
premises for any such changes, improvements, and/or alterations, and will hold
the Lessor harmless for any such liens and encumbrances that may arise
therefrom. Any changes, alterations, and/or additions made by the Lessee in the
leased premises shall be and become a part of such premises and remain thereon
the property of the Lessor; but if such alterations, changes or additions, or
any of them, are removable without injury to the premises, then the same may be
removed at the option of the Lessee.
5. EFFECT OF DESTRUCTION OF THE LEASED PREMISES; If the leased
premises should be wholly or substantially destroyed without any fault on the
part of the Lessee, then an equitable adjustment of the rental due hereunder
shall be made with respect to the length of time between the date of the
destruction and the date when the premises are restored, said adjustment to be
made upon a prorata basis. If Lessor elects not to restore the destroyed
premises or if such restoration is not completed within four (4) months from the
date of such destruction, then this lease shall terminate as of said date of
destruction.
6. TAXES AND UTILITIES: Lessor agrees to pay all real estate
taxes levied with respect to the leased premises at the rate of taxes assessed
for the 1997 taxes payable in 1998 subject to other paragraphs of this
agreement.
Lessee agrees to pay, in equal monthly installments, any
increase in real estate taxes levied, with respect to the leased premises,
subsequent to the 1998 tax year. The first monthly installment of the annual
amount of increased taxes shall be paid on the 1st day of the month following
the notice of increase in taxes made by Lessor to Lessee upon receipt of the
same by Lessor.
Lessee agrees to pay, all taxes levied with respect to all
property of Lessee situated on the leased premises.
Lessee agrees to pay the installation costs of all current
charges for all utilities used by Lessee on the leased premises, except water.
7. LESSOR'S RESPONSIBILITY FOR REPAIR OF LEASED PREMISES; The
Lessor shall be responsible, at its expense, to keep in repair the warehouse
flooring, heating and air conditioning equipment, and the exterior of said
leased premises, including the roof, exterior walls, footings, foundations,
parking areas, and access roads. The Lessee, however, shall have the
responsibility of notifying the Lessor immediately when any repairs are required
hereunder, before the Lessor shall be held responsible for the repair. The
Lessee, however, shall be responsible for maintenance or repairs of a minor
nature which result from ordinary wear and tear of the leased premises, as well
as the utilities contained therein, or result from the acts of the Lessee, its
agents, employees, or invitees.
8. ASSIGNMENT OR SUBLETTING; Lessee may assign or sublet all
or any portion of the leased premises; provided, however, that nothing in this
paragraph shall be construed as relieving Lessee from any responsibility it may
have under this lease for nonpayment of rent or any other responsibility, and
provided further, that Lessee shall remain primarily liable on said lease in the
event of any assignment or subletting.
9. HOLD HARMLESS, INSURANCE, AND SUBROGATION: Lessee agrees to
maintain in full force and effect at all times public liability insurance with
bodily injury limits of at least $500,000 per person, $1,000,000 aggregate, and
property damage limits in amounts of at least $500,000 with an insurance carrier
acceptable to Lessor duly protecting Lessor and shall provide Lessor with a
certificate of insurance, so stating. Lessee also agrees to keep the real
property, including all fixtures, adequately insured against fire and other
casualty; Lessee agrees to keep all personal property adequately insured against
fire and other casualty. Lessee shall deliver to Lessor evidence of the
existence of such liability insurance.
Lessee agrees to hold Lessor free and harmless from any and
all liability to which Lessor might otherwise be subjected by reason of Lessee's
activities on leased premises, including, among other things, reimbursing Lessor
for all costs, attorney's fees, etc., that may be incurred by Lessor in
defending against any such claimed liability except that neither Lessor or
Lessee shall be liabile to the other for damage or loss to property growing out
of or in connection with Lessee's use and occupancy of the leased premises or to
the contents caused by the negligence or fault of Lessor or Lessee or of their
respective agents, employees, subtenants, assignees, or invitees, to the extent
such damage or loss is covered by the fire and other casualty insurance
maintained by the parties. Lessor and Lessee agree to notify their respective
insurance companies, in writing, of the provisions of this paragraph, and in the
event either party cannot waive its subrogation rights pursuant to this
paragraph, such parties shall immediately notify the other party of this fact in
writing.
Lessor shall be entitled at all times to post on the leased
premises appropriate notices of non-responsibility with respect to any work by
Lessee which might otherwise subject the leased premises to mechanic's lien
claims.
10. RIGHTS OF LESSOR ON RECEIVERSHIP OR BANKRUPTCY OF ANY
LESSEE: At the option of Lessor, this lease shall terminate and Lessor shall
forthwith be entitled to the possession of the leased premises upon the
occurrence of any of the following events:
(a) The execution by any Lessee of an assignment for
the benefit of creditors.
(b) The appointment by any court of competent
jurisdiction of a receiver or other similar officer to
administer the assets of any Lessee.
(c) The filing of a petition in bankruptcy by or
against any Lessee.
(d) The filing of a petition for any arrangement or any
other similar proceeding under any provision of the Federal
Bankruptcy Act, as amended, with respect to any Lessee.
This option shall be exercised, if at all, by Lessor mailing
postage prepaid, a written notice to Lessee at the leased premises or to the
assignee, trustee, etc., as the case may be, at his place of business, advising
of Lessor's election to so terminate this lease as of the date of the occurrence
of such event. Such written notice must be mailed within ninety (90) days after
Lessor receives actual notice of the occurrence of such event. Lessee, when used
in this paragraph, shall mean any one or more of several persons embraced within
the term Lessee under this lease.
11. RIGHTS OF LESSOR UPON DEFAULT BY LESSEE: If at any time
Lessee defaults, under this lease, by failing to fully observe and perform all
conditions and promises to be observed and performed by Lessee hereunder or
defaults in any other manner, and such default is not cured within ten (10) days
(except default in payment of rent for which the period is three (3) days) after
the delivery in person to Lessee by or on behalf of Lessor or the mailing to
Lessee, by or on behalf of Lessor, postage prepaid, addressed to Lessee at the
leased premises of a written notice of such default and a demand that the
default be cured, then at any time thereafter Lessor may pursue any one or more
of the following remedies (such remedies being cumulative and not mutually
exclusive):
(a) Lessor may immediately recover from Lessee all
amounts due to Lessor hereunder, together with damages arising
from Lessee's default.
(b) Lessor shall forthwith be entitled to the
possession of the leased premises without thereby in any way
relieving Lessee of Lessee's obligation to pay rent hereunder.
If pursuant hereto, Lessor should repossess the leased
premises, Lessor may, at its option, re-let the leased
premises for the benefit of Lessee, in which case Lessee
agrees to pay all costs of re-letting, pay monthly, the excess
of the monthly rental provided for hereunder over the monthly
rental received from such re-letting with Lessor being
entitled to retain the excess, if any, of the monthly rental
received from such re-letting over the monthly rental provided
for hereunder. Neither repossession by Lessor hereunder nor
re-letting by Lessor hereunder shall in any way take away
Lessor's right to thereafter terminate this lease as provided
for in the following subparagraph (c).
(c) Lessor may terminate this lease by delivering to
Lessee in person or by mailing, postage prepaid, to Lessee at
the leased premises, a writing stating Lessor's election to
terminate this lease.
If Lessor should thus terminate this lease, then Lessor may
forthwith recover, from Lessee the excess of rentals provided for hereunder
above the then reasonable rental value of the remainder of the term of this
lease.
Lessee agrees that if Lessor pursues any of the foregoing
remedies, Lessee will pay to Lessor all expenses and attorney's fees reasonable
incurred by Lessor in connection therewith and that in any litigation the same
shall be provided for as incidental damages.
12. Lessee agrees that this lease and Lessee's rights
hereunder shall at all times during the term hereof be subject and subordinate
to the lien of any mortgage, deed of trust, or other encumbrance which presently
exists with respect to the leased premises or which may be placed upon the
leased premises hereafter by Lessor or Lessor's successor in interest and Lessee
agrees to execute and deliver to Lessor or Lessor's successor in interest any
instrument or instruments requested by Lessor with respect to any such
encumbrance placed or to be placed upon the leased premises and subordinating
this lease thereto.
13. OPTION TO RENEW: If Lessee is not in default, it is
granted an option to renew and extend the term of this lease for an additional
period of three (3) years, on terms and conditions to be negotiated by Lessor
and Lessee at the time the option is exercised. Said option shall be exercised
by Lessee providing Lessor written notice no less than sixty (60) days prior to
the termination of this lease term.
This agreement constitutes the entire agreement by and between
the parties and may only be altered, amended, or changed in writing.
IN WITNESS WHEREOF, the parties have hereunto executed this
agreement on the day first above written.
LESSOR:
XXXXXX X. LUNG BUILDING COMPANY, INC.
By: /S/ Xxxxxx X. Lung
Xxxxxx X. Lung
LESSEE:
XXXXXXX INDUSTRIES, INC.
By: /S/ Xxxxx X. Xxxxxx
XXXXX X. XXXXXX
Attest:
/S/ Xxxxxxx X. Lung
DATED: June 29, 1998
