TABLE OF CONTENTS
Page
ARTICLE 1 Lease of Premises........................................1
Section 1.01. Lease of Premises........................................1
Section 1.02. Basic Lease Provisions...................................1
ARTICLE 2 Term.....................................................2
Section 2.01 Term.....................................................2
Section 2.02. Condition of Premises....................................2
ARTICLE 3 Occupancy and Use........................................2
Section 3.01. Occupancy and Use........................................2
Section 3.02. Access to Leased Premises................................3
Section 3.03. Surrender of Leased Premises.............................3
Section 3.04. Holding Over.............................................3
ARTICLE 4 Rent and Deposit.........................................4
Section 4.01. Components of Rent.......................................4
Section 4.02. Basic Annual Rent........................................4
ARTICLE 5 Utility and Other Building Services......................4
Section 5.01. Services to be Provided..................................4
Section 5.02. Interruption of Services.................................4
Section 5.03. Taxes and Utility Charges................................5
ARTICLE 6 Repairs; Maintenance; Alterations, Improvements
and Fixtures................................6
Section 6.01. Repair and Maintenance of Building.......................6
Section 6.02. Alterations or Improvements..............................6
Section 6.03. Trade Fixtures...........................................7
ARTICLE 7 Fire or Other Casualty; Eminent Domain...................7
Section 7.01. Condemnation and Casualty................................7
ARTICLE 8 Insurance................................................8
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Section 8.01. Landlord's Insurance.....................................9
Section 8.02. Landlord's Responsibility................................9
Section 8.03. Tenant's Insurance.......................................9
Section 8.04. Tenant's Responsibility.................................11
Section 8.05. Waiver of Subrogation...................................11
ARTICLE 9 Liens...................................................12
Section 9.01. Liens...................................................12
ARTICLE 10 Intentionally Deleted...................................12
ARTICLE 11 Assignment and Subletting...............................12
Section 11.01. Assignment and Subletting by Tenant.....................12
Section 11.02. ........................................................13
ARTICLE 12 Transfer by Landlord....................................13
Section 12.01. Sale and Conveyance of the Leased Premises..............13
Section 12.02. Subordination...........................................13
Section 12.03. Non-Disturbance.........................................13
ARTICLE 13 Defaults and Remedies...................................13
Section 13.01. Defaults by Tenants.....................................13
Section 13.02. Remedies of Landlord....................................15
Section 13.03. Suit Prior to Expiration................................16
Section 13.04. Reinstatement...........................................16
Section 13.05. Non-Waiver of Defaults..................................16
Section 13.06. Cumulative Remedies.....................................17
Section 13.07. Default by Landlord and Remedies of Tenant..............17
Section 13.08. Limitation of Landlord's Liability......................17
Section 13.09. Transfer upon Termination...............................18
Section 13.10. Waiver..................................................18
Section 13.11. Tenant's Property.......................................18
Section 13.12. Attorney's Fees and Costs...............................18
ARTICLE 14 Intentionally Deleted...................................18
ARTICLE 15 Notices.................................................18
Section 15.01. Notices.................................................18
Section 15.02. Place of Payment........................................19
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ARTICLE 16 Miscellaneous Provisions................................19
Section 16.01. Condition of Premises...................................19
Section 16.02. Intentionally deleted...................................19
Section 16.03. Choice of Law...........................................19
Section 16.04. Venue...................................................19
Section 16.05. Successors and Assigns..................................19
Section 16.06. Name....................................................19
Section 16.07. Examination of Lease....................................19
Section 16.08. Time....................................................19
Section 16.09. Defined Terms and Marginal Headings.....................20
Section 16.10. Entire Agreement; Amendments............................20
Section 16.11. Payment of and Indemnification for Leasing Commissions..20
Section 16.12. Severability of Invalid Provisions......................20
Section 16.13. Definition of the Relationship between the Parties......20
Section 16.14. Estoppel Certificate....................................20
Section 16.15. Force Majeure...........................................21
Section 16.16. Corporate Tenant........................................21
Section 16.17. Memorandum of Lease.....................................21
Section 16.18. Reciprocal Covenant on Notification of ADA Violations...21
Section 16.19. Sorting and Separation of Refuse and Trash..............21
ARTICLE 17 Additional Provisions...................................21
Section 17.01. Option to Extend Lease Term.............................21
Section 17.02. Tax Deposit.............................................22
Section 17.03. Triple Net Lease........................................22
Section 17.04. Quiet Enjoyment.........................................22
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LIST OF EXHIBITS
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Exhibit A.....................................................................1
Exhibit E....................................................................13
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LEASE
THIS LEASE, made this _________ day of February, 2000, by and between
SAM & JB, LLC, an Indiana limited liability company ("Landlord"), and ROBINSON
NUGENT, INC., an Indiana corporation ("Tenant").
W I T N E S S E T H:
ARTICLE 1
Lease of Premises
Section 1.01. Lease of Premises. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord the property commonly known as 800 East
Eighth Street, New Albany, Floyd County, Indiana, which includes the tract of
land described in Exhibit A attached hereto (the "Leased Premises") and the
improvements situated thereon (the "Building"), subject to the terms and
conditions herein set forth, for the specific term hereinafter specified. The
Leased Premises is described in Item A, Section 1.02 hereinafter.
Section 1.02. Basic Lease Provisions.
(A) BUILDING ADDRESS: 800 East Eighth Street
CITY, STATE: New Albany, IN, ZIP CODE: 47150;
(B) BUILDING AREA: _______ Square Feet;
(C) Intentionally Deleted;
(D) BASIC ANNUAL RENT: $220,000/year
(E) MONTHLY RENTAL INSTALLMENTS: $18,333.33/month
(F) LANDLORD'S SHARE OF OPERATING COSTS: Intentionally Deleted;
(G) TERM: Twenty-four (24) months;
(H) COMMENCEMENT DATE: February __, 2000;
(I) EXPIRATION DATE: February 28, 2002;
(J) Intentionally Deleted;
(K) Intentionally Deleted;
(L) PERMITTED USE: General office purposes, research and light
manufacturing and assembly, and all other legal uses permitted
by applicable zoning and other ordinances regulating use
subject to Landlord's prior written consent, which shall not
be unreasonably withheld, conditioned or delayed;
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(M) ADDRESS FOR PAYMENTS AND NOTICES AS FOLLOWS:
LANDLORD Sam & JB, LLC
7527 Highway 52
Lanesville, IN 47136
TENANT Robinson Nugent, Inc.
800 East Eighth Street
New Albany, IN 47150
With a copy to:
Berkley W. Duck, Esq.
ICE MILLER DONADIO & RYAN One American
Square Box 82001 Indianapolis, IN 46282
ARTICLE 2
Term
Section 2.01 Term. The term of this Lease shall be for the period
specified in Item G of Section 1.02 ("Original Term") (subject to if the
Commencement Date is other than the first day of a calendar month, the
Expiration Date shall occur on the last day of the 24th full calendar month
thereafter) and shall commence on the Commencement Date. "Lease Term", when used
in this Lease, shall include the Original Term and any renewal term.
Section 2.02. Condition of Premises. Tenant agrees to accept the Leased
Premises in their "As Is Where As" condition. Landlord shall not be obligated to
make any improvements whatsoever to the Leased Premises.
ARTICLE 3
Occupancy and Use
Section 3.01. Occupancy and Use. Tenant shall use and occupy the Leased
Premises for the purposes as set out in Item L of Section 1.02. Tenant shall use
the Leased Premises for no unlawful purpose or act; shall commit or permit no
waste or damage to the Leased Premises; shall comply with and obey all
directions of the Landlord, including reasonable Rules and Regulations which are
adopted, changed or modified from time to time by Landlord on reasonable notice
to Tenant, all of which are and will be a part of this Lease.
Tenant, at its expense, shall comply with all laws, rules, regulations,
ordinances or orders of Federal, State, County and Municipal authorities having
jurisdiction, and with any lawful direction of any public officer or officers,
which shall impose any duty upon Landlord or Tenant with respect to the Leased
Premises, or the use, occupation or alteration thereof.
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Section 3.02. Access to Leased Premises. Landlord reserves the right to
enter the Leased Premises in any emergency, and to also inspect the same, to
alter, improve, remodel or repair the Leased Premises, without abatement of rent
and without incurring any liability to Tenant therefor. Landlord shall also have
the right to enter the Leased Premises during Tenant's normal business hours
with two (2) business days advance notice to Tenant, and to show the same to
prospective purchasers, mortgagees and tenants. Landlord shall incur no
liability to Tenant for such entry, nor shall such entry constitute an eviction
of Tenant or a termination of the Lease, or entitle Tenant to any abatement of
rent therefor. In addition, during the final six (6) months of this Lease or any
renewal term, Landlord may place on the Leased Premises where appropriate the
usual notices "For Lease" or "For Sale" or other similar notices which Tenant
shall permit to remain without molestation.
Section 3.03. Surrender of Leased Premises. At the end of the Lease
Term or other sooner termination of this Lease, Tenant will peaceably deliver up
to the Landlord possession of the Leased Premises, together with all
improvements or additions upon or belonging to the same, by whomsoever made, in
the same condition as received, or first installed, ordinary wear and tear and
damage by fire, earthquake, Act of God or the elements alone excepted. Upon the
termination of this Lease, Tenant shall at Tenant's sole cost, remove all
counter, trade fixtures, office furniture and equipment installed by Tenant
unless otherwise agreed to in writing by Landlord. Tenant shall also repair any
damage caused by such removal. Property not so removed shall be deemed abandoned
at the termination of this Lease by Tenant and title to the same shall thereupon
pass to Landlord. Tenant shall indemnify Landlord against any loss or liability
resulting from delay by Tenant in so surrendering the Leased Premises, including
without limitation, any claims made by any succeeding tenant founded on such
delay.
Section 3.04. Holding Over. In the event Tenant remains in possession
of the Leased Premises or any part thereof without the consent of Landlord after
the expiration or earlier termination of this Lease, Tenant shall be deemed to
hold the Leased Premises as a tenant on a month-to-month basis subject to all of
the terms, conditions, covenants and provisions of this Lease (which shall be
applicable during the holdover period), except that Tenant shall pay to Landlord
rent equal to 125% of the last current Basic Annual Rent (hereinafter defined),
which rent shall be payable to Landlord on demand. In addition, Tenant shall be
liable to Landlord for all damages occasioned by such holding over. Tenant shall
vacate and surrender the Leased Premises to Landlord upon Tenant's receipt of
notice from Landlord to vacate. No holding over by Tenant, whether with or
without the consent of Landlord, shall operate to extend this Lease except as
otherwise expressly provided herein.
ARTICLE 4
Rent and Deposit
Section 4.01. Components of Rent. Tenant hereby agrees to pay to
Landlord as rent for the Leased Premises an amount equal to Basic Annual Rent
(as hereinafter defined). The aggregate of all such rentals may be referred to
hereinafter as "Rental". The annual Rental shall be due and payable in twelve
(12) equal installments on the first day of each calendar month during the term
of this Lease (each such date that rent shall be due and payable hereunder shall
hereinafter be referred to as a "Payment Date"). Tenant hereby agrees to pay the
monthly Rental installments to Landlord as provided in Item M Section 1.02 of
this Lease or at such other location as Landlord may designate from time to
time, in advance without demand and without any deduction, abatement,
counterclaim or set off. In the event of a partial month at the beginning of the
term of this Lease, the Rental and any other charges or costs, payable by Tenant
shall be prorated on the basis of a thirty (30) day month. All Rental and other
charges payable by Tenant pursuant to the terms of this Lease shall be payable
without relief from valuation and appraisement laws, and with reasonable
attorneys' fees and costs of collection.
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Section 4.02. Basic Annual Rent. Tenant hereby agrees to pay Basic
Annual Rent for the Leased Premises in the amount specified in Item D, Section
1.02 of this Lease without a right of set-off, payable in advance in equal
consecutive monthly installments as specified in Item E, Section 1.02 of this
Lease, on or before the first day of each month during the Lease Term. If any
monthly installment of Basic Annual Rent or other payment required under this
Lease remains unpaid after the fifth (5th) day of the calendar month in which it
is due or any subsequent calendar month, a service charge equal to One and
One-Half per cent (1-1/2%) of the amount overdue may be charged by Landlord for
each calendar month thereafter for the purpose of defraying the additional
expenses incident to the handling of such overdue amount. If Tenant shall fail
to pay, when the same is due and payable, any other payment owing from Tenant to
Landlord pursuant to this Lease, such unpaid amounts shall bear interest from
the due date thereof to the date of payment at the rate of One and One-Half per
cent (1-1/2%) per month. The imposition of such service charge shall not be
deemed a waiver by Landlord of any other remedies provided herein for Tenant's
failure to pay rent.
ARTICLE 5
Utility and Other Building Services
Section 5.01. Services to be Provided. If Tenant requests any utilities
or building services in addition to those in existence as of the Commencement
Date, then Landlord shall use reasonable efforts to attempt to furnish Tenant
with such additional utilities or building services. In the event Landlord is
able to and does furnish such additional utilities or building services, the
costs thereof shall be borne by Tenant.
Section 5.02. Interruption of Services. Tenant understands,
acknowledges and agrees that Landlord does not represent or warrant that the
availability and capacity of utilities or building services shall continue
uninterrupted and unchanged, and that any such interruption or change shall not
be deemed an eviction or disturbance of Tenant's right to possession, occupancy
and use of the Leased Premises or any part thereof, or render Landlord liable to
Tenant for damages by abatement of rent or otherwise, or relieve Tenant from the
obligation to perform its covenants under this Lease.
Section 5.03. Taxes and Utility Charges.
(a) Tenant will pay and discharge, or cause to be paid and discharged,
prior to the imposition of any interest or penalty for delinquency, all taxes
(including, without limitation, real estate taxes and assessments, Tenant's
income, franchise and excess profits taxes, but excluding any taxes, interest
and penalties on or with respect to Landlord's income, franchise and excess
profit taxes), all assessments that are due and payable in installments during
the Lease Term (including without limitation, all assessments for public
improvements or benefits, whether or not commenced or completed prior to the
Commencement Date and whether or not to be completed prior to the expiration of
the Lease, fees, water, sewer or other rents, rates and charges, excises,
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levies, license fees, permit fees, inspection fees, other authorization fees and
other governmental and similar charges, general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character, and any interest and
penalties thereon, which may be levied or assessed against, or be confirmed or
imposed on or in respect of: (i) the Leased Premises or any portion thereof, or
the interest of Tenant or Landlord therein or in respect thereof during or with
respect to the Lease Term, (ii) any Basic Annual Rent or any or all other
amounts payable by Tenant under the Lease, (iii) the Lease or the interest of
Tenant or Landlord thereunder, (iv) the possession, use, occupancy, maintenance,
repair or rebuilding of the Leased Premises or any portion thereof except for
repair and rebuilding that is Landlord's obligation under Section 6.02; all of
the foregoing, hereinafter referred to as the "Charges"; but nothing in the
foregoing shall require the payment or discharge of any tax, charge, levy,
assessment, or lien, or any other imposition or encumbrance on or against the
Leased Premises or any portion thereof, so long as the same shall be the subject
of a contest which is diligently being conducted. If any tax or assessment
levied or assessed against the Leased Premises may legally be paid in
installments, or in a lump sum, neither Landlord nor Tenant shall elect or
otherwise cause to have the tax or assessment payable in a lump sum and Tenant
shall be obligated to pay only such installments as shall be properly allocated
to periods within the Term hereof.
(b) Tenant shall (i) pay all costs and charges for all utility
services, including but not limited to gas, water, sewer, electricity,
telephone, refuse or garbage collection to or used by or for Tenant on or about
the Leased Premises commencing on the Commencement Date, (ii) comply with all
contracts relating to such services if noncompliance would have an adverse
effect on Landlord's interest in the Leased Premises, and (iii) do all other
things required for the maintenance and continuation of such services during the
Term; but nothing contained in this Lease shall constitute any consent or
request by Landlord or by Mortgagee, express or implied, for the performance of
any labor or services or the furnishing of any materials or other property in
such fashion as would permit the making of any claim against Landlord or against
Mortgagee in respect thereof. In the event of abandonment of the Leased Premises
by Tenant, Tenant shall cause sufficient utilities to be provided to the Leased
Premises in order to keep the Leased Premises in good condition and repair.
(c) Tenant shall furnish to Landlord, within ten (10) days after
reasonable demand by Landlord, proof of the payment of any of the Charges, or
any other charge, which is the obligation of Tenant hereunder.
ARTICLE 6
Repairs, Maintenance, Alterations,
Improvements and Fixtures
Section 6.01. Repair and Maintenance of Building. Tenant will, at its
cost and expense, keep and maintain the Leased Premises in good repair and
condition, except for ordinary wear and tear and repair that is Landlord's
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responsibility under Section 6.02, and will promptly make all structural and
non-structural, and ordinary and extraordinary, changes and repairs of every
kind which may be required to be made upon or in connection with the Leased
Premises in order to keep the same in good repair and condition except for those
that are the Landlord's obligation under Sections 6.02 and 7.01(c). Landlord
shall not be required to maintain, alter, repair, replace or rebuild the Leased
Premises or any portion thereof or to maintain the Leased Premises in any way
except for any repair that is Landlord's responsibility under Sections 6.02 and
7.01(c), and subject to Section 16.15. Tenant expressly waives the right to make
repairs at the expense of Landlord which may be provided for in any law now or
hereafter in effect.
Section 6.02. Alterations or Improvements. Upon prior written consent
from Landlord which shall not be unreasonably withheld, alterations or
improvements may be made to the Leased Premises; provided however, such
alterations or improvements shall be made by Landlord, or contractors approved
by Landlord. Tenant shall have the right to make minor alterations to the Leased
Premises without Landlord's approval so long as such alternations do not affect
the structure or marketability of the Leased Premises, and do not exceed
$10,000, which shall not be unreasonably withheld, conditioned or delayed. All
costs attributable to said alterations or improvements shall be borne by Tenant,
including, but not limited to all construction costs, fees, architectural costs,
permit fees, and attorney fees. Any alterations or improvements to the Leased
Premises, except movable office furniture, equipment and trade fixtures, shall
become part of the realty, and be the property of Landlord, and shall not be
removed by Tenant. If any present or future improvements to the Leased Premises
are made or authorized to be made by Tenant, its agents or employees, and such
improvements shall encroach upon any property or street adjacent to the Leased
Premises, or shall violate any agreement or condition contained in any
restrictive covenant affecting or applicable to the Leased Premises, or shall
impair the rights of others under any easement or right-of-way to which the
Leased Premises are subject, then upon request of Landlord, Tenant, at its cost
and expense, shall take such action as shall be necessary to remove such
encroachments or end such violation or impairment. Any such action shall be
taken in conformity with the requirements of this Section. Notwithstanding the
foregoing, Tenant shall not be required to remove any such encroachments if
Tenant has or obtains such easements, licenses or similar rights as may be
necessary to permit such encroachments to remain and had complied with this
Section. Landlord and its authorized representatives may enter the Leased
Premises or any part thereof for the purpose of inspecting the same. After
completion of said improvements, such entry shall be after reasonable notice to
Tenant and during regular business hours. Landlord shall not have any duty to
make such inspection, and Landlord shall not incur any liability or obligation
for making or not making any such inspection
Section 6.03. Trade Fixtures. Any trade fixtures installed on the
Leased Premises by Tenant at its own expense, such as movable partitions,
counters, shelving, showcases, mirrors and the like, may, and, at the request of
Landlord, shall be removed on the expiration or earlier termination of this
Lease, provided that Tenant is not then in default, that Tenant bears the cost
of such removal, and further that Tenant repairs at its own expense any and all
damages to the Leased Premises resulting from such removal. If Tenant fails to
remove any and all such trade fixtures from the Leased Premises on the
expiration or earlier termination of this Lease, all such trade fixtures shall
become the property of Landlord unless Landlord elects to require their removal,
in which case Tenant shall, at its expense, promptly remove the same and restore
the Leased Premises to their prior condition.
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ARTICLE 7
Fire or Other Casualty; Eminent Domain
Section 7.01. Condemnation and Casualty.
(a) Tenant hereby assigns to Landlord any award, compensation,
proceeds of insurance and other payment to which Tenant may become entitled in
respect of Tenant's leasehold interest hereunder (i) if the Leased Premises or
any portion thereof are damaged or destroyed due to fire or other casualty or
cause, and (ii) by reason of any condemnation, confiscation, requisition or
other taking or sale of the possession, use, occupancy or title to the Leased
Premises or any portion thereof in, by or on account of any completed, pending
or threatened eminent domain proceedings or other action by any governmental
authority or other person having the power of eminent domain. Landlord shall and
hereby is authorized and empowered by Tenant, at its cost and expense, in the
name and behalf of Landlord, Tenant or otherwise, to appear in any such
proceedings or other action, to file and prosecute, and to negotiate with
respect to, or adjust any claim for any award, compensation or other payment on
account of any such loss, damage, destruction, condemnation, confiscation,
requisition or other taking or sale, and to collect and receipt for any such
award, compensation or other payment or to accept any settlement or adjustment
thereof. With respect to condemnation or public taking only, Tenant may take
such action in connection with any claim, proceeding or other action as shall be
appropriate to protect the interests of Tenant. Each party shall pay all fees,
costs and other expenses which may become payable as a result of or in
connection with their respective activities under this paragraph. Tenant shall
have the right to claim an award for Tenant's personal property and relocation
fees provided the Tenant's claim shall in no way diminish or reduce Landlord's
award.
(b) If, after any occurrence of the character referred to in
clause (i) or (ii) of Section 7.01(a), and, in the case of an occurrence
described in said clause (i), the occurrence results in a "substantial
destruction", as defined in Section 7.01(d), or if, in the case of an occurrence
described in said clause (ii), the occurrence results in a "substantial taking",
as defined in Section 7.01(e), and as a result of either such occurrence either
(A) Tenant determines in its reasonable judgment that the Premises are unfit for
the Permitted Use or (B) Tenant loses and is unable to obtain within thirty (30)
days despite good faith efforts any city, county or state licenses necessary to
operate for the Permitted Use, Tenant, within ten (10) days after such
substantial destruction or substantial taking, may give notice to Landlord of
Tenant's intention to terminate this Lease. Such notice shall (i) specify such
termination date, which shall be the Payment Date first occurring at least sixty
(60) days after such notice is given, (ii) contain a certification by Tenant's
President that Tenant has made a good faith determination that the Leased
Premises have been rendered no longer fit for the Permitted Use by an occurrence
of the character referred to in clause (i) or (ii) of Section 7.01(a), and that
Tenant has discontinued, or within one hundred twenty (120) days after such
notice is given will discontinue, the use of the Leased Premises in Tenant's
business, and (iii) contain a brief description of such occurrence and of the
basis for such determination by Tenant. Upon receipt of such notice as required
in this Section 7.01(b), the Lease shall terminate on the termination date set
forth in the notice.
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(c) If, after any occurrence of the character referred to in
Section 7.01(a), Tenant is not permitted to give notice of its intention to
terminate this Lease, then (i) this Lease shall continue in effect without
abatement of any Basic Rent, Additional Rent or other amounts payable by Tenant
hereunder, (ii) Landlord shall, promptly after any such occurrence and receipt
of the insurance or condemnation proceeds (whichever is applicable), diligently
repair, replace and rebuild the Leased Premises, to at least the extent
necessary and practicable to restore the Leased Premises to the condition and
market value thereof immediately prior to such occurrence, and (iii) the entire
award, compensation, insurance proceeds or other payment, if any, on account of
any such occurrence, less any expenses incurred by Landlord in collecting such
award, compensation, insurance proceeds or other payment, shall be available to
Landlord to restore the Leased Premises. Notwithstanding anything contained
herein to the contrary, Landlord shall have no such obligation to repair and
rebuild if less than twelve months will remain in the Lease Term at the time the
applicable repair or rebuilding would be completed.
(d) As used herein, "substantial destruction" means damage or
destruction occurring within thirty (30) months prior to the expiration of the
Lease Term (subject to any extensions exercised and agreed to prior to the date
of the casualty as set forth in Section 7.01(b) hereof) to the extent of more
than 25% of the cost of replacement of the Building.
(e) As used herein, "substantial taking" means the taking by
condemnation or the exercise of the power of eminent domain of (i) 30% or more
of the parking area constituting a part of the Leased Premises (and the failure
of Landlord within ninety (90) days after such taking to replace such parking
area so as to provide the Leased Premises with a number of parking spaces which
is not less than that required by the applicable zoning ordinance or variance
thereof), or (ii) any part of the Building sufficient to reduce the existing
total square feet of floor area in such building so as to render it unfit for
use for the Permitted Use.
ARTICLE 8
Insurance
Section 8.01. Landlord's Insurance. Intentionally deleted.
Section 8.02. Landlord's Responsibility. Landlord will protect,
indemnify and save harmless Tenant from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expense
(including, without limitation, reasonable attorneys fees and expenses) imposed
upon or incurred by or asserted against Tenant by reason of the occurrence or
existence of either of the following: (i) any failure of Landlord's title to the
Leased Premises, (ii) any accident, injury to or death of persons or loss of or
damage to property occurring as a result of (A) any activity in remedying any
defect as required by Article 7 or any activity by Landlord, or any contractor,
subcontractor or agent of Landlord, pursuant to Article 7, (B) any other
presence or activity by Landlord, or any contractor, subcontractor or agent of
Landlord at the Leased Premises.
Section 8.03. Tenant's Insurance. Placement of Tenant's Property.
Tenant will, at all times during the Term and at its cost and expense, maintain
insurance of the following character:
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(A) Insurance against loss covered by a standard Broad Form Causes of
Losses, including but not limited to loss by windstorm, hail,
earthquake, explosion, riot (including riot attending a strike),
civil commotion, aircraft, vehicles, smoke damage, and vandalism
and malicious mischief in amounts sufficient to prevent Landlord or
Tenant from becoming a co-insurer of any loss under the applicable
policies, but in any event in amounts not less than the full
insurable value of all buildings and other improvements,
constituting a portion of the Leased Premises. The term "full
insurable value" as used herein means actual replacement cost,
including the costs of debris removal, less the cost of the
foundation, which amount shall be adjusted annually for inflation.
Landlord, upon written request of Tenant, will annually inform
Tenant of the "full insurance value" of the Leased Premises.
(B) General liability insurance covering the legal liability of
Landlord and Tenant against claims for bodily injury, death or
property damage, occurring on, in or about the Leased Premises and
the adjoining land, in the minimum amounts of $1,000,000 for each
claim with respect to any one death or bodily injury, $2,000,000
with respect to any one occurrence, and $500,000 for all claims for
property damage with respect to any one occurrence.
(C) Broad form boiler and machinery insurance (including coverage for
pressure vessels and pressure pipes) if applicable on all objects
customarily covered by such broad form insurance and at any time
constituting a part of, or being situation on, the Leased Premises,
in an amount sufficient to prevent Landlord or Tenant from becoming
a co-insurer of any loss, but in the minimum amount of $1,000,000.
(D) Workers' compensation insurance - Tenant shall comply with
applicable workmen's compensation laws of the state in which the
Leased Premises are located, and shall maintain such insurance if
and to the extent necessary for such compliance.
(E) Excess liability insurance policy in the amount of $3,000,000.
(F) Business interruption insurance for a period of no less than twelve
(12) months.
(G) Such other insurance, in such amounts and against such risks, as is
customarily maintained by Tenant with respect to properties owned
by it.
Such insurance shall be written by companies which at the time have at
least an A7 Rating in the then most recent A.M. Best Rating Guide and shall name
as the insured parties Landlord and Tenant as their interests may appear. Such
insurance may provide for such reasonable deductible amounts as are customarily
provided for in insurance maintained by Tenant with respect to properties owned
by it, and may be obtained by Tenant by endorsement on its blanket insurance
policies if such policies satisfy the requirements specified above in this
Section 8.03. Landlord shall not be required to prosecute any claim against any
insurer or to contest any settlement proposed by any insurer, but Landlord may,
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at its cost and expense, prosecute any such claim or contest any such
settlement, and in such event Landlord may bring any such prosecution or contest
in the name of Landlord, Tenant or both, and Tenant will join therein at
Landlord's request.
Tenant may, at its option satisfy any or all of the obligations to
insure with a blanket policy or policies of insurance now or hereafter carried
and maintained by Tenant provided, however, that Landlord and any additional
party required to be insured shall be insured as required by the terms of this
Lease and that such coverage shall not be reduced or diminished by reason of the
use of a blanket policy or policies and that such blanket policy or policies
satisfy the requirements of any mortgagee of the Leased Premises.
Insurance claims by reason of damage or destruction to any portion of
the Leased Premises shall be adjusted by Landlord and Tenant.
Every insurance policy maintained pursuant to Section 8.03 shall bear a
first mortgage endorsement in favor of any mortgagee of the Leased Premises
(hereinafter referred to as a "Mortgagee"), and loss proceeds under any such
policy (other than any public liability policy) in excess of $100,000 with
respect to any loss shall be made payable to the Mortgagee, if any, provided
that recoveries under any such policy shall be applied by the Mortgagee as
provided in Article 7. Every such policy shall provide thirty (30) days' prior
written notice of cancellation shall be given to Landlord and the Mortgagee and
that such insurance, as to the interest of Landlord and the Mortgagee, shall not
be invalidated by any act or neglect of Landlord or Tenant or any owner of the
Leased Premises or of any interest therein, nor by any foreclosure or any other
proceedings or notices thereof relating to the Leased Premises or any interest
therein, nor by any change in the title or ownership of the Leased Premises or
any interest therein. Landlord and Tenant each waives any and all rights of
recovery, claim, action or cause of action, against the other, its agents,
officers, servants, partners, shareholders, or employees for any loss or damage
that may occur to the Leased Premises which is insured under any property
insurance policy actually being maintained even if not required by the terms of
this Lease. In addition, Landlord shall not make any claim against proceeds of
insurance paid for the loss of any personal property of Tenant.
Tenant shall deliver to Landlord promptly after the execution and
delivery of this Lease original or duplicate policies, or certificates of
insurers satisfactory to the Landlord and Mortgagee, if any, evidencing all the
insurance which is then required to be maintained by Tenant, and Tenant shall,
within thirty (30) days prior to the expiration of any such insurance, deliver
either original or duplicate policies or certificates of the insurers evidencing
the renewal of such insurance.
Tenant shall not obtain or carry separate insurance concurrent in form
or contributing in the event of loss with that required in this Section 8.03 to
be furnished by Tenant unless Landlord is included therein as a named insured,
with loss payable as in this Lease provided. Tenant shall immediately notify
Landlord whenever any such separate insurance is obtained and shall deliver to
Landlord the policy or policies or certificates
Section 8.04. Tenant's Responsibility. Tenant will protect, indemnify
and save harmless Landlord from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expense (including,
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without limitation, reasonable attorneys' fees and expenses) imposed upon or
incurred by or asserted against Landlord by reason of the occurrence or
existence of any of the following: (i) any accident, injury to or death of
persons or loss of or damage to property occurring on or about the Leased
Premises or any part thereof or occurring on or about the adjoining sidewalks,
curbs, vaults and vault space, if any, streets or ways caused by Tenant or its
agents, (ii) any use, nonuse or condition of the Leased Premises or any part
thereof or any use, nonuse or condition of the adjoining sidewalks, curbs,
vaults and vault space, if any, streets or ways resulting from Tenant's use or
occupancy of the Leased Premises, (iii) any failure on the part of Tenant to
perform or comply with any of the terms of this Lease, or (iv) performance of
any labor or services or the furnishing of any materials or other property in
respect of the Leased Premises or any part thereof. In case any action, suit or
proceeding is brought against Landlord by reason of any such occurrence, Tenant,
upon request, will at Tenant's expense resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by counsel designated
by Tenant and reasonably approved by Landlord and Mortgagee. The obligations of
Tenant under this Section shall survive any termination of this Lease.
Notwithstanding anything herein to the contrary, Tenant shall bear the risk of
any loss or damage to its property as provided in Section 8.01.
Section 8.05. Waiver of Subrogation. Landlord and Tenant hereby release
each other and each other's employees, agents, customers and invitees from any
and all liability for any loss of or damage or injury to person or property
occurring in, on or about or to the Leased Premises, the Building or personal
property within the Building by reason of fire or other casualty which is
required to be insured against hereunder, regardless of cause, including
negligence of Landlord or Tenant and their respective employees, agents,
customers and invitees, and agree that such insurance carried by either of them
shall contain a clause whereby the insurer waives its right of subrogation
against the other party. Because the provisions of this Section 8.05 are
intended to preclude the assignment of any claim mentioned herein by way of
subrogation or otherwise to an insurer or any other person, each party to this
Lease shall give to each insurance company which has issued to it one or more
policies of fire and extended coverage insurance notice of the provisions of
this Section 8.05 and have such insurance policies properly endorsed, if
necessary, to prevent the invalidation of such insurance by reason of the
provisions of this Section 8.05.
ARTICLE 9
Liens
Section 9.01. Liens. If, because of any act or omission of Tenant or
any person claiming by, through, or under Tenant, any mechanic's lien or other
lien shall be filed against the Leased Premises or against other property of
Landlord (whether or not such lien is valid or enforceable as such), Tenant
shall, at its own expense, cause the same to be discharged of record bonded over
by a surety reasonably acceptable to Landlord within seventy-five (75) days
after the date of filing thereof, and shall also indemnify Landlord and hold it
harmless from any and all claims, losses, damages, judgments, settlements, costs
and expenses, including attorneys' fees, resulting therefrom or by reason
thereof. Landlord may, but shall not be obligated to, pay the claim upon which
such lien is based so as to have such lien released of record; and, if Landlord
does so, then Tenant shall pay to Landlord, as additional rent, upon demand, the
amount of such claim, plus all other costs and expenses incurred in connection
therewith, plus interest thereon at the rate of eighteen percent (18%) per annum
until paid.
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ARTICLE 10
Intentionally deleted.
ARTICLE 11
Assignment and Subletting
Section 11.01. Assignment and Subletting by Tenant. Tenant may not
sell, assign, or mortgage this Lease or sublet the Leased Premises or any part
thereof, without the prior written consent of Landlord which shall not be
unreasonably withheld, conditioned or delayed; and any attempted assignment or
subletting without such consent shall be invalid. Notwithstanding this, Tenant
shall have the right at any time to sublease or assign all or any portion of the
Leased Premises to any related entity or affiliate of Tenant whether by merger
or consolidation, or to any successor corporation, without Landlord's approval
or consent. In the event of a permitted assignment or subletting, Tenant shall
nevertheless at all times remain fully responsible and liable for the payment of
rent and the performance and observance of all of Tenant's other obligations
under the terms, conditions and covenants of this Lease. No assignment or
subletting of the Leased Premises or any part thereof shall be binding upon
Landlord unless such assignee or subtenant shall deliver to Landlord an
instrument (in recordable form, if requested) containing an agreement of
assumption of all Tenant's obligations under this Lease. Upon the occurrence of
an event of default, if all or any part of the Leased Premises are then assigned
or sublet, Landlord, in addition to any other remedies provided by this Lease or
by law, may, at its option, collect directly from the assignee or subtenant all
rent becoming due to Landlord by reason of the assignment or subletting. Any
collection by Landlord from the assignee or subtenant shall not be construed to
constitute a waiver or release of Tenant from the further performance of its
obligations under this Lease or the making of a new lease with such assignee or
subtenant.
Section 11.02. It shall be reasonable for Landlord to refuse, condition
or delay its consent to any proposed assignment or subletting if it is based
upon, among other things, Landlord's reasonable determination that its interest
in the Lease or the Leased Premises would be adversely affected by (i) the
financial condition, creditworthiness or business reputation of the proposed
assignee or subtenant, or (ii) the proposed use of the Leased Premises by, or
business of, the proposed assignee or subtenant, but Landlord may not take into
account the prevailing market or quoted rental rates for the Leased Premises or
other comparable leased space.
ARTICLE 12
Transfer by Landlord
Section 12.01. Sale and Conveyance of the Leased Premises. Landlord
shall have the right to sell and convey the Leased Premises at any time during
the Lease Term, subject only to the rights of Tenant hereunder; and such sale
and conveyance shall operate to release Landlord from liability hereunder
arising after the date of such conveyance as provided in Section 13.08.
Section 12.02. Subordination. Landlord shall have the right to
subordinate this Lease to any mortgage presently existing or hereafter placed
upon the Leased Premises by so declaring in such mortgage; and the recording of
any such mortgage shall make it prior and superior to this Lease regardless of
the date of execution or recording of either document. Tenant shall, at
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Landlord's request, promptly execute and deliver to Landlord, without cost, any
instrument which may be deemed necessary or desirable by Landlord to confirm the
subordination of this Lease and an Estoppel Certificate in the form reasonably
required by Landlord, and as provided in Section 16.14 of this Lease; and, if
Tenant fails or refuses to do so, Landlord may execute such instrument in the
name and as the act of Tenant. Notwithstanding the foregoing, no default by
Landlord under any such mortgage shall affect Tenant's rights hereunder so long
as Tenant is not in default under this Lease. Tenant shall, in the event any
proceedings are brought for the foreclosure of any such mortgage, attorn to the
purchaser upon any such foreclosure and recognize such purchaser as the Landlord
under this Lease.
Section 12.03. Non-Disturbance. As a condition of Tenant's
subordination of this Lease to any mortgagee, Landlord shall obtain a
nondisturbance agreement from such future mortgagee in favor of Tenant which
shall be in a form reasonably acceptable to Landlord.
ARTICLE 13
Defaults and Remedies
Section 13.01. Defaults by Tenants. Each of the following events shall
be an "Event of Default" hereunder:
(A) Failure of Tenant to pay any installment of rent or any part
thereof (including but not limited to failure to make any deposit
required under the terms of this Lease) or any other payments of
money, costs, or expenses herein agreed to be paid by Tenant when
due after ten (10) days notice to Tenant; provided, however,
Landlord shall not be obligated to provide Tenant notice of late
payment more than two (2) times every calendar year and after such
two notices in a particular calendar year, Tenant shall be deemed
to be in default if said sums are not paid when due.
(B) Failure to observe or perform one or more of the other terms,
conditions, covenants, or agreements of this Lease and the
continuance of such failure for a period of thirty (30) days, or
other such period provided in this Lease, after written notice by
Landlord specifying such failure (unless such failure requires work
to be performed, acts to be done, or conditions to be removed which
cannot by their nature reasonably be performed, done, or removed,
as the case may be, within such thirty (30) day period or other
such period required in this Lease, in which case no default shall
be deemed to exist so long as Tenant shall have commenced doing the
same within such thirty (30) day or other such period required in
this Lease and shall diligently and continuously prosecute the same
to completion);
(C) The filing of an application by Tenant for, or a consent to the
appointment of, a receiver, trustee, or liquidator of itself or of
all its assets;
(D) The filing by Tenant of a voluntary petition in bankruptcy, or the
filing of a pleading in any court of record admitting in writing
its inability to pay its debts as they become due;
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(E) The making by Tenant of a general assignment for the benefit of
creditors;
(F) The filing by Tenant of an answer admitting material allegations of
or consenting to or defaulting in answering in petition filed
against it in any bankruptcy proceedings;
(G) The entry of an order, judgment, or decree by any Court of
competent jurisdiction adjudging Tenant a bankrupt or appointing a
receiver, trustee, or liquidator of it, or all of its assets, and
such order, judgment, or decree continuing unstayed and in effect
for any period of sixty (60) consecutive days;
(H) If this Lease or the estate of Tenant hereunder shall be
transferred to or assigned to or subleased to or shall pass to or
devolve upon any person or party, except in a manner herein
expressly permitted; or
(I) If a levy under execution or attachment shall be made against
Tenant or its property and such execution or attachment shall not
be vacated or removed by court order, bonding, or otherwise within
a period of thirty (30) days.
Section 13.02. Remedies of Landlord. Upon the occurrence of any Event
of Default set forth in Section 13.01, Landlord shall have the following rights
and remedies, in addition to those allowed by law, any, or all of which may be
exercised without additional notice or demand upon Tenant.
(A) Landlord may apply any prepaid funds to the cost of cure of any
default and/or reenter the Leased Premises and cure any default of
Tenant. In such event Tenant shall immediately reimburse Landlord
as additional rental for any such costs, and shall restore the such
prepaid funds used by Landlord to cure Tenant's default; and
Landlord shall not be liable to Tenant for any loss or damage which
Tenant may sustain by reason of Landlord's actions, whether or not
caused by Landlord's negligence.
(B) Landlord may at its option give written notice to Tenant stating
that this Lease and the Lease Term shall expire and terminate on
the date specified in such notice, and upon the date specified in
such notice, this Lease and the term hereby demised, and all rights
of Tenant under this Lease shall expire and terminate, in which
event (i) Tenant shall thereupon quit and surrender the Leased
Premises but shall remain liable as hereinafter provided; (ii)
Landlord may without notice, reenter and repossess the Leased
Premises using such force for that purpose as may be necessary
without being liable to indictment, prosecution, or damages
therefor, and Tenant shall nevertheless remain liable as
hereinafter provided for the remainder of the term hereof; and
(iii) notwithstanding the termination of this Lease, Landlord may
declare all Rental which would have been due under the Lease for
the balance of the Lease Term to be immediately due and payable
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over the aggregate fair rental value of the Leased Premises at the
date of termination of Tenant's rights under this Lease for the
period from such Tenant's rights termination date to the end of the
stated term hereof, both discounted in accordance with accepted
financial practice at the rate of 8% per annum to then present
worth, and Tenant shall then be liable for the same to Landlord,
together with all loss or damage Landlord may sustain by reason of
such default and termination, it being expressly agreed and
understood that such liabilities and remedies herein specified
shall survive the termination of this Lease.
(C) Landlord may, without terminating this Lease, reenter the Leased
Premises and at its option, repair and alter the Leased Premises in
such manner as Landlord may deem necessary or advisable, and/or let
or relet the Leased Premises or any parts thereof for the whole or
any part of the remainder of the Lease Term hereof or for a longer
period, in Landlord's name or as agent of Tenant, and out of any
rental collected or received as a result of such letting or
reletting Landlord shall first, pay to itself the cost and expense
of retaking, repossessing, repairing and/or altering the Leased
Premises, and the cost and expense of removing all personal
property therefrom; second, pay to itself the cost and expense
sustained in securing any new tenants, and if Landlord shall
maintain and operate the Leased Premises, the cost and expense of
operating and maintaining the Leased Premises; and, third, pay to
itself any balance remaining on account of the liability of Tenant
to Landlord. No reentry by Landlord shall absolve or discharge
Tenant from liability hereunder. Landlord shall in no way be
responsible or liable for any failure to relet the Leased Premises
or any part thereof, or for any failure to collect any rental due
on any such reletting.
(D) Landlord may sue for injunctive relief or to recover damages for
any loss resulting from the breach.
(E) Landlord may declare all Rental for the balance of the term of this
Lease then in effect, discounted in accordance with accepted
financial practice at the rate of 8% per annum to then present
worth, to be immediately due and payable, as though expressly made
payable in advance prior to the occurrence of such event of
default, in which case Rental so becoming due and payable in
advance may be recovered in any suit, action or other legal
proceeding, provided, that if Landlord shall exercise such remedy
and Tenant shall have paid in full all Rental so declared due and
payable, Tenant thereafter shall have the right to possession of
the Leased Premises for the entire period in respect of which
Rental shall have been so accelerated by Landlord, unless and until
a further event of default.
Landlord shall mitigate Tenant's damages hereunder to the extent
required by law.
Section 13.03. Suit Prior to Expiration. Suit or suits for the recovery
of any deficiency or damages, or for a sum equal to any installment or
installments of Rental and other charges hereunder, may be brought by Landlord,
from time to time at Landlord's election, and nothing herein contained shall be
deemed to require Landlord to await the date whereon this Lease or the term
hereof would have expired by its term had there been no such default by Tenant
or termination.
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Section 13.04. Reinstatement. No receipt of monies by Landlord from
Tenant after termination of this Lease, or after the giving of any notice of
termination of this Lease, shall reinstate, continue, or extend the Lease Term
or affect any notice given to Tenant, or operate as a waiver of the right of
Landlord to enforce the payment of Rental and other sum or sums of money and
other charges herein reserved and agreed to be paid by Tenant then due or
thereafter falling due, or operate as a waiver of the right of Landlord to
recover possession of the Leased Premises by proper remedy, except as herein
otherwise expressly provided, it being agreed that after the service of notice
to terminate this Lease or the commencement of suit or summary proceedings, or
after final order or judgment for the possession of the Leased Premises,
Landlord may demand, receive, and collect any moneys due or thereafter falling
due without in any matter effecting such money collected being deemed payments
on account of the use and occupation of said Leased Premises, or at the election
of Landlord, on account of Tenant's liability hereunder.
Section 13.05. Non-Waiver of Defaults. The failure or delay by either
party hereto to exercise or enforce at any time any of the rights or remedies or
other provisions of this Lease shall not be construed to be a waiver thereof,
nor affect the validity of any part of this Lease or the right of either party
thereafter to exercise or enforce each and every such right or remedy or other
provision. No waiver of any default and breach of the Lease shall be deemed to
be a waiver of any other default and breach. The receipt by Landlord of less
than the full rent due shall not be construed to be other than a payment on
account of rent then due, nor shall any statement on Tenant's check or any
letter accompanying Tenant's check be deemed an accord and satisfaction, and
Landlord may accept such payment without prejudice to Landlord's right to
recover the balance of the rent due or to pursue any other remedies provided in
this Lease. No act or omission by Landlord or its employees or agents during the
Lease Term shall be deemed an acceptance of a surrender of the Leased Premises,
and no agreement to accept such a surrender shall be valid unless in writing and
signed by Landlord.
Section 13.06. Cumulative Remedies. Each right and remedy of Landlord
provided for in this Lease shall be cumulative and shall be in addition to every
other right and remedy provided for in this Lease or now or hereafter existing
at law or in equity or by statute or otherwise, and the exercise or beginning of
the exercise by Landlord of any one or more of the right or remedies provided
for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise shall not preclude the simultaneous or later exercise by Landlord
of any or all other rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise.
Section 13.07. Default by Landlord and Remedies of Tenant. It shall be
a default and a breach of this Lease by Landlord if any covenant or obligation
required to be performed or observed by it under this Lease for a period of
thirty (30) days after written notice thereof from Tenant; provided, however,
that if the term, condition, covenant or obligation to be performed by Landlord
is of such nature that the same cannot reasonably be performed within said
thirty (30) day period, such default shall be deemed to have been cured if
Landlord commences such performance within said thirty (30) day period and
thereafter diligently undertakes to complete the same. Upon the occurrence of
any such default, Tenant may sue for injunctive relief or to recover damages for
any loss resulting from the breach, but Tenant shall not be entitled to (i)
withhold or abate any rent due hereunder until such time as Tenant and for so
long as Tenant obtains a final, unappealable and unsatisfied judgment against
Landlord relating to said default or (ii) terminate this Lease.
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Section 13.08. Limitation of Landlord's Liability. If Landlord shall
fail to perform or observe any term, condition, covenant or obligation required
to be performed or observed by it under this Lease as provided in Section 13.07
and if Tenant shall, as a consequence thereof, recover a money judgment against
Landlord, Tenant agrees that it shall look solely to Landlord's right, title and
interest in and to the Leased Premises for the collection of such judgment; and
Tenant further agrees that no other assets of Landlord shall be subject to levy,
execution or other process for the satisfaction of Tenant's judgment and that
Landlord shall not be liable for any deficiency.
The references to "Landlord" in this Lease shall be limited to mean and
include only the owner or owners, at the time, of the fee simple interest in the
Leased Premises. In the event of a sale or transfer of such interest (except a
mortgage or other transfer as security for a debt), the "Landlord" named herein,
or, in the case of a subsequent transfer, the transferor, shall, after the date
of such transfer, be automatically released from all personal liability for the
performance or observance of any term, condition, covenant or obligation
required to be performed or observed by Landlord hereunder; and the transferee
shall be deemed to have assumed all of such terms, conditions, covenants and
obligations.
Section 13.09. Transfer upon Termination. In the event of a termination
of this Lease by reason of default or breach by Tenant hereunder: (i) all
unexpired insurance premiums, all deposits theretofore made by Tenant with
utility companies and all rights of Tenant under all insurance policies shall be
deemed to be assigned to and transferred to Landlord; and (ii) Tenant shall
deliver and assign to Landlord all leases of subtenants, and concession,
license, and occupancy agreements and all security deposits and advance rents
then held by Tenant with respect to any and all subleases upon the assumption by
Landlord of the obligation to apply all such security deposits and advance rents
held by Landlord in accordance with such subleases, and concession, license, and
occupancy agreements.
Section 13.10. Waiver. Tenant waives the right to trial by jury in any
summary proceeding that may hereafter be instituted against it or in any action
that may be brought to recover rent hereunder.
Section 13.11. Tenant's Property. If Tenant shall not remove all of
Tenant's property from the Leased Premises at any expiration or other
termination of this Lease, Landlord shall have the right, at Landlord's
election, to remove all or part of such property in any manner that Landlord
shall choose and store the same without liability to Tenant for loss thereof,
and Tenant shall be liable to Landlord for all expenses incurred in such removal
and also for the cost of storage of such property.
Section 13.12. Attorney's Fees and Costs. In the event either party
defaults in the performance or observance of any of the terms, conditions,
covenants or obligations contained in this Lease and the other party employs
attorneys to enforce all or part of this Lease, to collect any rent due or to
become due or recover possession of the Leased Premises, the defaulting party
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agrees to reimburse the non-defaulting party for all reasonable attorneys' fees
incurred thereby, whether or not suit has actually been filed. The defaulting
party shall also pay the non-defaulting party all reasonable costs and expenses,
other than attorneys' fees, incurred in the enforcement of any of the terms,
conditions, covenants or obligations contained in this Lease. All the sums paid
or obligations incurred by the non-defaulting party as aforesaid with interest
and costs shall be paid by the defaulting party to the non-defaulting party five
(5) days after the rendition of any bill or statement therefore.
ARTICLE 14
Intentionally deleted.
ARTICLE 15
Notices
Section 15.01. Notices. All notices and demands which may or are
required to be given by either party to the other hereunder shall be in writing
and shall be sent by United States certified or registered mail, postage
prepaid, addressed as specified in Item M, Section 1.02 of this Lease or to such
other firm or to such other place as Landlord may from time to time designate in
writing.
Section 15.02. Place of Payment. All Rental and other payment required
to be made by Tenant to Landlord shall be delivered, or mailed to Landlord at
the address as Specified in Item M, Section 1.02 of this Lease, and such
payments shall be deemed made when received by Landlord.
ARTICLE 16
Miscellaneous Provisions
Section 16.01. Condition of Premises. Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Leased Premises or with respect to the suitability or condition
of any part of the Leased Premises for the conduct of Tenant's business except
as provided in this Lease.
Section 16.02. Intentionally deleted.
Section 16.03. Choice of Law. This Lease shall be governed by and
construed pursuant to the laws of the State of Indiana.
Section 16.04. Venue. Tenant agrees that the venue of any action
arising between the parties to this Lease shall be in the County wherein the
Leased Premises are located, and that the federal jurisdiction shall be in the
district wherein the Leased Premises are located, and Tenant hereby waives any
claims of preferred venue under the Indiana Trial Rules, or any claim of a more
convenient forum.
Section 16.05. Successors and Assigns. Except as otherwise provided in
this Lease, all of the covenants, conditions and provisions of this Lease shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
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Section 16.06. Name. Tenant shall not, without the written consent of
Landlord, use the name of the Leased Premises for any purpose other than as the
address of the business to be conducted by Tenant in the Leased Premises, and in
no event shall Tenant acquire any rights in or to such names.
Section 16.07. Examination of Lease. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
Section 16.08. Time. Time is of the essence of this Lease and each and
all of its provisions.
Section 16.09. Defined Terms and Marginal Headings. The words
"Landlord" and "Tenant" as used herein shall include the plural as well as the
singular. If more than one person is named as Tenant, the obligations of such
persons are joint and several. The marginal headings and titles to the articles
of this Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation any part hereof.
Section 16.10. Entire Agreement; Amendments. This Lease and the
Acceptance Letter executed pursuant to Section 2.03 hereof contained all of the
agreements of the parties hereto with respect to any matter covered or mentioned
in this Lease, and no prior agreement, understanding or representation
pertaining to any such matter shall be effective for any purpose. No provision
of this Lease may be amended or added to except by an agreement in writing
signed by the parties hereto or their respective successors in interest.
Section 16.11. Payment of and Indemnification for Leasing Commissions.
The parties hereby acknowledge, represent and warrant that no broker or person
is entitled to any leasing commission or compensation as a result of the
negotiation or execution of this Lease. Each party shall indemnify the other
party and hold it harmless from any and all liability for the breach of any such
representation and warranty on its part and shall pay any compensation to any
other broker or person who may be deemed or held to be entitled thereto.
Section 16.12. Severability of Invalid Provisions. If any provisions of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions hereof shall not be affected or impaired, and such remaining
provisions shall remain in full force and effect.
Section 16.13. Definition of the Relationship between the Parties.
Landlord shall not, by virtue of the execution of this Lease or the leasing of
the Leased Premises to Tenant, become or be deemed a partner of or joint
venturer with Tenant in the conduct of Tenant's business on the Leased Premises
or otherwise.
Section 16.14. Estoppel Certificate. Tenant shall, within ten (10) days
following receipt of a written request from Landlord, promptly execute,
acknowledge and deliver to Landlord or to any lender, purchaser or prospective
lender or purchaser designated by Landlord, a statement in such form as Landlord
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may reasonably request, certifying (i) that this Lease is in full force and
effect and unmodified (or, if modified, stating the nature of such
modification), (ii) the date to which rent has been paid, and (iii) that there
are not, to Tenant's knowledge, any uncured defaults (or specifying such
defaults if any are claimed). Any such statement may be relied upon by any
prospective purchaser or mortgagee of all or any part of the Leased Premises.
Tenant's failure to deliver such statement within such period shall be
conclusive upon Tenant that this Lease is in full force and effect and
unmodified, and that there are no uncured defaults in Landlord's performance
hereunder.
Section 16.15. Force Majeure. Landlord shall be excused for the period
of any delay in the performance of any obligation hereunder when such delay is
occasioned by causes beyond its control, including, but not limited to, war,
invasion or hostility; work stoppages, boycotts, slowdowns or strikes; shortages
of materials, equipment, labor or energy; man-made or natural casualties;
unusual weather conditions; acts or omissions of governmental or political
bodies; or civil disturbances or riots.
Section 16.16. Corporate Tenant. If Tenant is a corporation,
partnership, or limited liability company, the individual, or individuals
executing this Lease warrant their capacity and authority to execute this Lease
on behalf of said corporation, partnership, or limited liability company.
Section 16.17. Memorandum of Lease. The parties hereto shall not record
this Lease, but each party shall execute a "memorandum of lease" suitable for
recording.
Section 16.18. Reciprocal Covenant on Notification of ADA Violations.
Within ten (10) days after receipt, Landlord and Tenant shall advise the other
party in writing and provide the other with copies of (as applicable), any
notices alleging violation of the Americans with Disabilities Act of 1990
("ADA") relating to any portion of the Leased Premises; any claims made or
threatened in writing regarding noncompliance with the ADA and relating to any
portion of the Leased Premises; or any governmental or regulatory actions or
investigations instituted or threatened regarding noncompliance with the ADA and
relating to any portion of the Leased Premises.
Section 16.19. Sorting and Separation of Refuse and Trash. Tenant
covenants and agrees, as its sole cost and expense, to comply with all present
and future laws, orders and regulations of all state, federal, municipal and
local governments, departments, commissions and boards regarding the collection,
sorting, separation and recycling of waste products, garbage, refuse and trash
ARTICLE 17
Additional Provisions
Section 17.01. Option to Extend Lease Term.
(A) Provided Tenant is not in default hereunder and has performed all
of its convenants and obligations hereunder, and has not abandoned
the Leased Premises Tenant shall have the option to extend the term
of this Lease (hereinafter, the "Option") for a period of twelve
(12) months upon the following terms and conditions.
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(B) Basic Annual Rent shall be the same as set forth in Section
1.02(D).
(C) Tenant shall exercise said Option only by giving written notice to
Landlord not later than twelve (12) months prior to the expiration
of the then current Term.
(D) It is understood and agreed that this Option is personal to Tenant
and is not transferable.
Section 17.02. Tax Deposit. In the event Landlord becomes obligated to
any Mortgagee to make payments for taxes in accordance with the terms of the
Mortgage, upon notice thereof by Landlord, Tenant shall pay to Landlord as
Additional Rent on the Payment Dates for Basic Rent, an amount equal to 1/12 of
the annual real estate taxes and assessments, if any, levied or to be levied
against the Leased Premises, if any, next becoming due (all hereinafter referred
to as the "charges") all as estimated by Landlord based upon taxes and
assessments against the Leased Premises. Tenant shall not be liable to Landlord,
any mortgagee or third party for any taxes and assessments with respect to the
Leased Premises for which Tenant has deposited available funds with Landlord to
pay such taxes and assessments and with respect to which Landlord may have used
any such funds paid by Tenant to Landlord for any purpose other than the payment
of such taxes and assessments for which such funds were intended, so that
Landlord shall have sufficient funds to pay the charges on the first day of the
month preceding the month in which they become due. If, from time to time,
Landlord reasonably shall determine that the balance of the funds held by it to
pay the charges is or will be insufficient to pay any of the charges when the
same shall become due and payable, then Tenant shall pay to Landlord the amount
reasonably necessary to remedy such deficiency on or before the date when such
charges shall become due. Landlord shall hold all such amounts and pay the
charges before the same become delinquent, with the right, however, to Landlord
to apply, after an Event of Default, any sums so received as a credit against
any Basic Rent or Additional Rent then remaining unpaid or to the payment of any
of the charges.
Section 17.03. Triple Net Lease. It is the purpose and intent of
Landlord and Tenant that the rent provided in Section 1.02(D) shall be absolute
net to Landlord, and that Tenant shall pay, without notice or demand, and
without abatement or setoff, and save Landlord harmless from and against, all
costs, taxes, insurance costs, expenses and other charges and expenses and
obligations of every kind and nature whatsoever relating to the Leased Premises
which may arise or become due during the term of this Lease, and in the event of
any nonpayment of any of the foregoing, Landlord shall have, in addition to any
other rights and remedies, all of the rights and remedies provided herein or by
law in the case of nonpayment of such.
Section 17.04. Quiet Enjoyment. Tenant, on paying the Rental and
keeping and performing the conditions and covenants herein contained, shall and
may peaceably and quietly enjoy the Leased Premises for the Lease Term and any
renewal term, subject to the legal requirements, applicable insurance
requirements and regulations, and the provisions of this Lease.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first written above.
TENANT: LANDLORD:
ROBINSON NUGENT, INC. SAM & JB, LLC
an Indiana corporation an Indiana limited liability company
By:_____________________________ By:_______________________________
Its:_____________________________ Its:_______________________________
