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EXHIBIT 10.14
FIRST AMENDED AND RESTATED LEASE
THIS FIRST AMENDED AND RESTATED LEASE ("Lease") is made as of the 28th day
of April, 1993 by and between CPC ASSOCIATES, INC., an Indiana corporation,
whose address is 2860 N. National Road, Columbus, Indiana 47202-0387
("Landlord") , and G L INDUSTRIES OF INDIANA, INC., an Indiana corporation,
whose address is 2860 N. National Road, Columbus, Indiana 47202-0387
("Tenant").
RECITALS:
The facts on which this Lease is based are as follows:
A. On March 31, 1990, Landlord and Tenant entered into a Lease for the
Premises described in Article 1 hereof (the "Original Lease").
B. The ownership of Tenant has been changed pursuant to a Stock Purchase
Agreement of even date herewith between LDM Industries, Inc. and Laurence M.
Luke.
C. Landlord and Tenant desire to amend and restate the Original Lease as
set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
ARTICLE 1
LEASED PREMISES
Landlord, in consideration of the rents to be paid by Tenant and the
covenants and agreements hereinafter set forth to be performed by Tenant,
does hereby agree to lease unto Tenant all of that certain land located in the
City of Columbus, County of Bartholomew, State of Indiana, and described with
particularity in Exhibit "A" attached hereto and made a part hereof, together
with all improvements and appurtenances thereto including that certain
building containing approximately 148,225 square feet constructed thereon, and
all other items of real or personal property located on or used in connection
therewith and owned by Landlord (all such property hereinafter referred to as
the "Leased Premises").
ARTICLE 2
TERM OF LEASE
The term of this Lease shall commence on April 28, 1993, (the
"Commencement Date") and shall expire on April 19, 2003,
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unless sooner terminated as herein set forth. If permission is given to Tenant
to enter into possession of the Leased Premises prior to the date specified as
the Commencement Date of the term of this Lease, Tenant covenants and agrees
that such occupancy shall be deemed to be under all terms, covenants,
conditions and provisions of this Lease.
ARTICLE 3
RENT
Tenant covenants to pay the rent herein reserved and all other sums which
may become due hereunder, or be payable by the Tenant hereunder, at the times
and in the manner in the Lease provided.
Tenant covenants to pay to the Landlord as rent for the Leased Premises
during the term of the Lease the following rent:
Rental Period No. of Months Monthly Rent
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April 28, 1993 through
October 19, 1993 6 $ 30,000.00
October 20, 1993 through
April 19, 1994 6 $ 35,000.00
April 20, 1994 through
April 19, 1995 12 $ 37,500.00
April 20, 1995 through
April 19, 2003 96 $ 40,000.00
The rents listed above shall be payable in advance, in equal monthly
installments as set forth above upon the 20th day of each month or if the lease
term shall commence on a day other than the 20th day of a calendar month or
shall end on a day other than the 21st day of a calendar month, the rental for
the first or last fractional month shall be such proportion of the monthly
rentals as the number of days in such fractional month bears to the total
number of days in the calendar month.
At the beginning of and for each rental year commencing with the first
rental year of this Lease (i.e. beginning on May 1, 1993 and each May 1st
thereafter including each May 1st during any renewal term hereof until this
Lease is terminated), the basic monthly rent set forth above shall be adjusted
and changed as set forth below.
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During the term of this Lease (including any renewal term as set forth in
Article 23 below), the basic monthly rent shall be adjusted (either upward
or downward) by an amount equal to one-twelfth (1/12th) of the difference
between a) the actual amount of interest paid by the Landlord on its
$2,160,000 mortgage note with Irwin Union Bank & Trust Co. dated April 1, 1990
(the "Mortgage Note") during the preceding twelve (12) months (or the amount
that would have been paid by the Landlord on such Mortgage Note in accordance
with its terms if the maturity date of the Mortgage Note had been extended
beyond April 1, 1997) and b) the amount of interest that the Landlord would
have paid if the interest rate on the Mortgage Loan during the preceding twelve
(12) months had remained constant at 7.75%.
On April 15th of each rental year, commencing April 15, 1994, the Landlord
shall deliver a statement to the Tenant reflecting a) the actual amount of
interest paid by the Landlord on the Mortgage Note during the preceding twelve
(12) months (or the amount of interest that would have been paid by the Landlord
on such Mortgage Note in accordance with its terms if the maturity date of the
Mortgage Note had been extended beyond April 1, 1997) and b) the amount of
interest that the Landlord would have been paid if the interest rate on the
Mortgage Loan during the preceding twelve (12) months had remained constant at
7.75%.
If the amount of interest paid by the Landlord (or which would have been
paid if the term of the Mortgage Note had been extended beyond April 1, 1997)
is greater than the amount of interest the Landlord would have paid if the
interest rate remained constant at 7.75%, the monthly rent for the subsequent
rental year shall be increased by an amount equal to one-twelfth (1/12) of the
amount of interest paid (or which would have been paid) over 7.75%.
If the amount of the interest paid by the Landlord (or which would have
been paid if the term of the Mortgage Note had been extended beyond April 1,
1997) is less than the amount of interest the Landlord would have paid if the
interest rate had remained constant at 7.75%, the monthly rent for the
subsequent rental year shall be decreased by an amount equal to one-twelfth
(1/12) of the amount of interest paid (or which would have been paid) less
than 7.75%.
If Tenant shall fail to pay, when the same is due and payable, any rent,
such unpaid amounts shall bear interest from the due date thereof to the
date of payment at the prime interest rate per annum of Irwin Union Bank and
Trust Company of Columbus, Indiana as it may vary from time to time (the "Prime
Rate") plus three percent (3%) per annum, but in no event higher than the legal
limit, whichever is lower (the "Default Rate").
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If the Tenant shall fail to pay, when the same is due and payable, any
monthly installment of rent on or before fifteen (15) days after the date
such installment is due, then, in addition to the basic monthly rent and the
interest referred to in the preceding paragraph, the Tenant shall pay to the
Landlord a "late charge" equal to five percent (5%) of the amount of the
monthly installment of rent then due.
ARTICLE 4
UTILITIES
Tenant shall be solely responsible for and agrees to pay all charges made
against the Leased Premises for gas, heat, water, electricity, sewage disposal,
telephone charges, telecommunication charges and all other utilities during the
term of this Lease as the same shall become due.
ARTICLE 5
REPAIRS, MAINTENANCE AND ACCEPTANCE OF PREMISES
Landlord hereby delivers to Tenant, and Tenant hereby accepts from
Landlord, possession of the Leased Premises. Tenant represents and warrants
that it has fully examined the Leased Premises and accepts the Leased Premises
in their current condition, subject to the terms of this Lease and the plans
and specifications of the building(s) constructed thereon and agrees that it
will accept the Leased Premises in an "as is" condition without representation
or warranty, express or implied, in fact or by law, by Landlord and without
recourse to Landlord as to the physical condition, usability or suitability of
the Leased Premises for the use or uses for which the Leased Premises may be
put.
Tenant agrees, at all times during the Lease term and at its own expense,
to maintain the Leased Premises in the same condition and state of repair
existing as of the Commencement Date except for normal wear and tear. Such
repair obligation shall include any and all appurtenances to the Leased
Premises, including the roof, the foundation, the four (4) outer walls, the
exterior and interior portion of all doors, door checks, windows, plate glass,
walks, drives, parking areas, landscaping, snow removal, heating and air
conditioning systems, electrical and wiring, plumbing and all conduits.
Notwithstanding the foregoing, the Tenant's repair obligations with respect
to the roof shall be specifically limited to those activities which involve
repairs of leaks in the roof on a "spot" basis.
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During the term of this Lease, the Landlord and the Tenant shall cooperate
with each other to determine whether repairs to the roof or replacement of the
roof are required beyond "spot" repairs. If such repairs or replacements are
required in the mutual judgment of the Landlord and the Tenant, then the
Landlord and the Tenant shall agree upon the extent and cost of such repairs or
replacement and the allocation of financial responsibility for such repairs or
replacement.
In addition, Landlord shall not be obligated to repair or replace any
damaged trade fixtures installed or attached to the Leased Premises or
leasehold improvements made by Tenant.
Tenant agrees to permit Landlord and its authorized representative to enter
the Leased Premises at all reasonable hours and with reasonable prior notice
(except in the case of emergency when Landlord may enter the Leased Premises at
any hour without prior notice) for the purpose of inspecting same and
exhibiting same to prospective tenants, purchasers or lenders. If Landlord
reasonably deems any repairs necessary which are required to be made by Tenant,
Landlord may demand that the Tenant make the repairs forthwith, and if Tenant
refuses or neglects to promptly commence any repairs deemed necessary by
Landlord, and/or complete same with reasonable dispatch, Landlord may make or
cause to be made such repairs. Except for the negligent or wilful acts or
omissions of Landlord, its agents or contractors, Landlord shall not be
responsible to Tenant for any loss or damage that may accrue to its stock or
business as a result of Tenant's failure to protect such property during
repair. If Landlord makes or causes such repairs to be made, Tenant will pay
to Landlord the cost thereof with interest at the Default Rate from the date
Landlord invoices Tenant for such repair as so much additional rent hereunder
due from Tenant to Landlord and shall be repaid to the Landlord with the rent
next due hereunder.
ARTICLE 6
TAXES AND ASSESSMENTS
Tenant shall be responsible for and agrees to pay to Landlord as additional
rent all taxes and assessments which may be levied or assessed by any lawful
authority during each calendar year during the term of this Lease against the
land, the building(s) or the Leased Premises or any part thereof (the "Taxes")
at least ten (10) days prior to the day fixed by law for the first interest or
penalty to accrue thereon. Landlord shall promptly deliver all bills for Taxes
to Tenant. Taxes shall also include all taxes, levies and charges which may be
assessed, levied or imposed in replacement of or in addition to all or any part
of real property taxes as revenue sources, and which in
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whole or in part are measured or calculated by or based upon the Leased
Premises, the free hold estate of the Landlord, the leasehold estate of the
Tenant, or the rent and other charges payable hereunder. In no event shall
Tenant be obligated to pay any income taxes of Landlord, If any tax is imposed
by a taxing authority which is not in substitution for real estate taxes and is
based on the income from the Leased Premises, such tax shall not be deemed to
be the obligation of Tenant hereunder. In addition, all reasonable costs and
expenses incurred by Landlord during negotiations for or contests of the amount
of the Taxes shall be included within the term "Taxes"; provided, however, that
Tenant shall have the first right to contest Taxes at Tenant's expense.
Tenant shall pay the Taxes levied or assessed for or during the term hereof
on or before the last day that such taxes may be paid without interest or
penalty; provided, that in the event Landlord is required under any mortgage
covering the Leased Premises to escrow real estate taxes, Landlord shall be
obligated to use the amount required to be so escrowed as a basis for its
estimate of the monthly installments due from Tenant hereunder and the Tenant,
as long as it is not in default hereunder, shall be entitled to pay such Taxes
directly to Landlord's mortgagee in satisfaction of the Landlord's obligation
to the mortgagee. If the Tenant fails to make such payment on a timely basis,
the Landlord may pay such Taxes itself and the Tenant shall be obligated to
reimburse the Landlord immediately for any such unpaid amount plus interest at
the Default Rate. Upon the receipt of all tax bills and assessment bills
attributable to any calendar year during the term hereof, Landlord shall
furnish Tenant with a written statement of the actual amount of the Taxes for
such year. In the event no tax bill is available, Landlord will compute the
amount of the Taxes. If the total amount paid by the Tenant during the
previous year is less than the amount that should have been paid by the Tenant
for such year, as shown on such statement, Tenant shall pay to Landlord the
difference between the amount paid by Tenant and the actual amount due, such
deficiency to be paid within fifteen (15) days after demand therefor by
Landlord; and if the total amount paid by Tenant hereunder for any such
calendar year shall exceed such actual amount due from Tenant for such calendar
year, such excess shall be credited against the next installment of Taxes due
from Tenant to Landlord hereunder. Any interest earned on the monthly
installments paid hereunder shall belong to Landlord, All amounts due hereunder
shall be payable to Landlord at the place where the rent is payable. For the
calendar years in which this Lease commences and terminates, the provisions of
this Article 6 shall amply, and Tenant's liability for any Taxes for such years
shall be subject to a pro-rata adjustment based on the number of days of said
calendar years during which the term of this Lease is in effect. A copy of a
tax bill or assessment bill submitted by Landlord to Tenant shall, at all
times, be sufficient evidence
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of the amount of the Taxes assessed or levied against the Leased Premises to
which such bill relates. Prior to or at the commencement of the term of this
Lease and from time to time thereafter throughout the term hereof, Landlord
shall notify Tenant in writing of Landlord's estimate of Tenant's monthly
installments due hereunder. In the event a refund of Taxes is obtained, the
portion of the refund which is credited to the Tenant shall be based upon the
percentage of the original Taxes paid by Tenant from which the refund was
derived. Tenant shall pay all real and personal property taxes levied or
assessed to the Leased Premises, including taxes attributable to all
alterations, additions, or improvements made by Tenant.
ARTICLE 7
USE AND OCCUPANCY
It is understood and agreed between the parties that the Leased Premises
during the continuance of this Lease shall be used and occupied solely for the
manufacturing of plastic products and related uses or other uses allowed
by law and approved by Landlord in writing which approval shall not be
unreasonably withheld or delayed. Tenant agrees, at its own expense, to obtain
all approvals, certificates, licenses or permits relating to the business
operations to be conducted by Tenant on the Premises. Tenant agrees that it
will comply with and not use or permit any person to use the Leased Premises
or any part thereof for any use or purpose in violation of the laws of the
United States, the State of Indiana, the ordinances or other regulations of the
municipality in which the Leased Premises is located, or of any other lawful
authorities, or the building and use restrictions in effect covering the Leased
Premises. During the Lease term Tenant will keep the Leased Premises and every
part thereof in a sanitary condition and generally will comply with all lawful
health and police regulations relating to Tenant's use of the Leased Premises.
If any alteration to the Leased Premises is required by law relating to
Tenant's use of the Leased Premises, including but not limited to alterations
required by building codes, environmental statutes and police and fire
authorities, the Tenant shall promptly make such alterations at its sole cost
and expense. All signs and advertising displayed in and about the Leased
Premises shall be such only as to advertise the business carried on upon the
Leased Premises.
ARTICLE 8
LIABILITY INSURANCE AND INDEMNITY
A. At and after the Commencement Date, Tenant agrees to defend, indemnify
and hold Landlord harmless from claims: (i)
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for personal injury, death or property damage; (ii) for incidents occurring in
or about the Leased Premises; and (iii) caused by the gross negligence or
wilful misconduct of Tenant, its agents, contractors or invitees. When the
claim is caused by the joint negligence or wilful misconduct of Tenant and
Landlord or Tenant and a third party unrelated to Tenant, except Tenant's
agents, employees or invitees, Tenant's duty to defend, indemnify and hold
Landlord harmless under this subparagraph shall be in proportion to Tenant's
allocable share of the joint negligence or wilful misconduct.
B. At and after the Commencement Date, Landlord agrees to defend,
indemnify and hold Tenant harmless from claims: (i) for personal injury, death
or property damage, (ii) for incidents occurring in or about the Leased
Premises; and (iii) caused by the gross negligence or wilful misconduct of
Landlord, its agents, invitees or contractors. When the claim is caused by the
joint negligence or wilful misconduct of Landlord, except Landlord's agents,
employees, invitees or contractors, Landlord's duty to defend, indemnify and
hold Tenant harmless shall be in proportion to Landlord's allocable share of
the joint negligence or wilful misconduct.
C. Notwithstanding anything contained herein to the contrary, Landlord
and Tenant each release each other from any claims either party (the "Injured
Party") has against the other. This release is limited to the extent that the
claim is covered by the Injured Party's insurance or the insurance the Injured
Party is required to carry under this Lease, whichever is greater.
D. Tenant agrees that it will at all times during the term hereof, carry
and maintain, for the mutual benefit of Landlord and Tenant and naming the
Landlord, any other parties in interest reasonably designated by Landlord, and
Tenant as insured parties, commercial general public liability and property
damage insurance with respect to the Leased Premises and the business operated
by Tenant and any subtenants of Tenant in the Leased Premises against claims
for personal injury, sickness or disease, including death and property damage
in, on or about the Leased Premises, such insurance to afford protection to
the limit of not less than $2,000,000.00 in respect to each person, and to the
limit of not less than $2,000,000.00 in respect to any one occurrence causing
bodily injury or death, and liability for property damage (with no deductible
provisions unless a higher deductible amount is specifically agreed to in
writing by the Landlord) of not less than $2,000,000.00 in respect to any one
occurrence, and worker's disability compensation insurance required by the laws
of the State of Indiana, and will also carry, for the mutual benefit of
Landlord and of Tenant, if any is required by Landlord, steam boiler insurance
naming Landlord
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and Tenant as insured parties, on all steam boilers, pressure vessels and other
such apparatus, including piping, at any time located on the Leased Premises,
in such amounts as Landlord may from time to time require. Tenant shall
furnish Landlord with a certificate of such insurance policy or policies. All
such insurance shall be procured from a responsible insurance company
satisfactory to Landlord and authorized to do business in the State of Indiana
and may be obtained by Tenant by endorsement on its blanket insurance policies,
provided the insurance company or companies are satisfactory to Landlord. All
such policies shall provide that the same may not be canceled or materially
modified except upon thirty (30) days prior written notice to Landlord. In the
event Tenant shall fail to procure such insurance and to keep such insurance in
effect during the entire term hereof, Landlord may, at its option following ten
(10) days prior written notice to Tenant, procure the same for the account of
Tenant, and the cost thereof shall be paid to Landlord as additional rent upon
receipt by Tenant of bills therefor.
In case any action or proceeding shall be commenced against Landlord
growing out of any loss, cost, damage or expense for which Tenant is
responsible under this Article, Landlord may give written notice of the same to
Tenant and thereafter Tenant shall assume and discharge all obligations to
defend the same and save and keep Landlord harmless from all expenses, counsel
fees, costs, liabilities, judgments and executions in any manner growing out
of, pertaining to, or connected therewith.
Notwithstanding anything contained herein to the contrary, Tenant will name
as additional insureds or loss payees, as their interests may appear, any
mortgagee for which Landlord has provided Tenant with the name and address.
ARTICLE 9
FIRE INSURANCE AND EXTENDED COVERAGE; RENT LOSS INSURANCE
Tenant shall procure and keep in full force and effect throughout the term
of this Lease, insurance covering the building(s) and all other improvements on
the Leased Premises in an amount equal to one hundred (100%) percent of the
replacement cost thereof (with a $1,000.00 deductible for any one casualty
unless a higher deductible amount is specifically agreed to in writing by the
Landlord) against loss by fire, vandalism, malicious mischief, lightning,
smoke, windstorm, sprinkler leakage, elevator collision and such other perils
as are from time to time included in a standard extended coverage endorsement.
Tenant shall furnish Landlord with a certificate of such insurance policy or
policies. Such insurance shall be procured from a responsible insurance
company reasonably
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satisfactory to the Landlord licensed to do business in Indiana, and shall
insure Landlord and Landlord's mortgagee(s) and Tenant, as their interest may
appear. Each such policy shall provide for thirty (30) days' written notice
to Landlord and Tenant of any cancellation or material modification.
Tenant shall be responsible for procuring such insurance as it may desire
covering the interior and contents of the Leased Premises, including without
limitation, partitions, floor coverings, carpeting, drapes, shades, furniture,
office equipment, inventory and any machinery and equipment within and/or
affixed to the building(s).
Tenant shall cause each insurance policy procured by it covering the Leased
Premises to be written in a manner so as to provide that the insurance company
waives all right of recovery by way of subrogation against Landlord in
connection with any loss or damage covered by any such policies.
In the event that payment of premiums relative to any insurance required
under this Article 9 is to be made from an escrowed fund required to be
established by Landlord as mortgagor under the terms of any mortgage on the
Leased Premises, then Landlord shall so notify Tenant. Tenant shall be required
to directly pay premiums into such escrowed fund in an amount equal to the
amount required to be paid by Landlord under the terms of any such mortgage. If
the Tenant fails to make such payment on a timely basis, the Landlord may pay
such premiums itself and the Tenant shall be obligated to reimburse the
Landlord immediately for any such unpaid amount plus interest at the Default
Rate. If actual premiums, when due, exceed the total amounts from time to time
paid therefor by Tenant, then the Tenant shall, upon demand by Landlord, pay
any deficiency to Landlord. If such payments by Tenant over the term of the
Lease exceed the amount of premiums paid therefrom such excess shall be
refunded by the Mortgagee to Landlord, whichever first occurs, provided Tenant
is not in default.
Tenant shall procure and keep in full force and effect throughout the term
of this Lease rental loss insurance protecting the Landlord from loss of rent
(including Tenant paid expenses) for a period of three (3) years.
Notwithstanding anything contained herein to the contrary, Tenant will name
as additional insureds or loss payees to the extent required and as their
interests may appear, any mortgagee of record (provided Landlord delivers to
Tenant written notice of the name and address of such mortgagee) and the
Landlord. In addition, Tenant shall agree to cause to be included in each
insurance policy required hereunder such provisions as may be reasonably
required by any lender to Landlord.
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ARTICLE 10
DESTRUCTION AND RESTORATION
If, after the commencement of the term of the Lease, and prior to the
expiration or earlier termination hereof, the Leased Premises shall be
partially damaged (as distinguished from "substantially damaged," as that term
is hereinafter defined) by fire or casualty, Landlord shall promptly proceed
with due diligence to restore the Leased Premises to substantially the
condition in which the Leased Premises were in at the time of such damage, but
Landlord shall not be responsible for delay which may result from any cause
beyond the reasonable control of Landlord.
Subject to the terms and conditions contained in the mortgage between the
Landlord and any mortgagee of the Leased Premises, if, after the commencement
of the term of this Lease, and prior to the expiration or earlier termination
hereof, the building and improvements located on the Leased Premises shall be
substantially damaged (as that term is hereinafter defined) by fire or
casualty, the risk of which is covered by Tenant's insurance, and neither
Landlord nor Tenant elects to terminate this Lease as hereinafter set forth,
Landlord shall promptly restore (consistent, however, with zoning laws and
building codes then in existence) the Leased Premises to substantially the
condition which the Leased Premises were in at the time of such damage, except
as hereinafter provided, but Landlord shall not be responsible for delay which
may result from a cause beyond the reasonable control of Landlord. Should the
net amount of insurance proceeds available to Landlord be insufficient to cover
the cost of restoring the Leased Premises, in the reasonable estimate of the
Landlord, either Landlord or Tenant may, but shall have no obligation to,
supply the amount of such insufficiency and restore the Leased Premises with
all reasonable diligence, or Landlord or Tenant may terminate this Lease by
giving written notice to the other party not later than thirty (30) days after
Landlord has reasonably determined the estimated net amount of insurance
proceeds available to Landlord and the estimated cost of such restoration.
The term "substantially damaged", as used herein shall refer to damage of
such a character that the normal molding operations of Tenant cannot be
conducted for a period of thirty (30) consecutive days or more.
If the Leased Premises shall be damaged by fire or casualty, the basic rent
shall abate or be reduced proportionately for the period in which by reason of
such damage, there is substantial interference with the operation of the
business of Tenant, but such abatement or reduction shall end upon completion
by Landlord
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of the work which Landlord is required to do under this Article 10 in
restoration of the Leased Premises.
ARTICLE 11
ALTERATIONS
The parties agree that Tenant shall not make any alterations, additions or
improvements to the Leased Premises without the written consent of the
Landlord, which consent shall not be unreasonably withheld or delayed, and,
if required by the terms of any mortgage on the Leased Premises, the written
consent of any such mortgagee. Upon the expiration of this Lease, Tenant shall
not remove any alterations, additions or improvements, except movable office
furniture, equipment and trade fixtures put in at the expense of Tenant, and
any such alterations, additions or improvements (other than movable office
furniture and trade fixtures put in at the expense of Tenant) shall be the
property of Landlord and shall remain upon and be surrendered with the Leased
Premises at the termination of this Lease.
ARTICLE 12
MECHANIC'S LIENS
Tenant shall not suffer or permit any Statement of Intention to hold a
mechanic's lien to be filed against the Leased Premises or any part thereof by
reason of work, labor, services or materials supplied or claimed to have
been supplied to Tenant or anyone holding the Leased Premises or any part
thereof through or under Tenant. If any such mechanic's lien shall at any time
be filed against the Leased Premises, Tenant shall cause the same to be
discharged of record within thirty (30) days after the date of filing the same
obtain affirmative title insurance coverage against the enforcement of such
lien or post reasonable security with Landlord (such as a bond or cash
collateral). If Tenant shall fail to discharge, insure over or secure over
such mechanic's lien within such period, then, in addition to any other right
or remedy of Landlord, Landlord may, but shall not be obligated to, discharge
the same either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit in court or by giving security or in such
other manner as is, or may be, prescribed by law. Any amount paid by Landlord
for any of the aforesaid purposes, and all reasonable legal and other expenses
of Landlord, including reasonable counsel fees, in or about procuring the
discharge of such lien, together with all necessary disbursements in connection
therewith, and together with interest thereon at the Default Rate from the date
of payment, shall be repaid by Tenant to Landlord on demand, and if unpaid may
be treated as additional rent. Nothing herein
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contained shall imply any consent or agreement on the part of Landlord to
subject Landlord's estate to liability under any mechanic's lien law.
ARTICLE 13
WASTE
Tenant covenants not to do or suffer any waste, damage, disfigurements or
injury to the Leased Premises or any improvement now or hereafter on the Leased
Premises, or the fixtures and equipment thereof, or permit or suffer any
overloading of the floors thereof.
ARTICLE 14
CONDITION OF LEASED PREMISES
Tenant is fully familiar with the physical condition of the Leased Premises
and Landlord had made no representations of any nature in connection with the
condition of the Leased Premises.
ARTICLE 15
EMINENT DOMAIN
If the whole or a substantial portion of the Leased Premises shall be taken
by any public authority under the power of eminent domain, the Tenant may
terminate this Lease upon written notice to Landlord within thirty (30)
days following entry of a final order condemning the Leased Premises or such
substantial portion thereof or purchase by a deed in lieu of condemnation, or
continue this Lease of the Leased Premises but in such case the rent payable
hereunder shall abate pro-rata based on the square footage of the Leased
Premises taken. In the event that Tenant shall not elect to terminate this
Lease or the taking is less than a substantial portion of the Leased Premises,
Landlord shall make all necessary repairs to the Leased Premises to render and
restore the same to the complete architectural unit and Tenant shall continue
in possession of the portion of Leased Premises not taken under the power of
eminent domain under the same terms and conditions as are in direct proportion
to the amount of the Leased Premises so taken. All damages awarded for such
taking shall belong to and be the property of Landlord, whether such damages be
awarded as compensation for diminution in value of the leasehold or to the fee
of the Leased Premises provided, however, Landlord shall not be entitled to any
portion of the award made to Tenant for removal and reinstallation of fixtures,
moving expenses, loss of business or the value of Tenant's leasehold
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interest. For purposes of this Article "substantial portion" shall be
deemed to be in excess of twenty-five (25%) percent of the floor area of the
148,225 sq. ft. building constructed on the Leased Premises.
ARTICLE 16
ASSIGNMENT AND SUBLETTING
Tenant covenants not to assign or transfer this Lease or hypothecate or
mortgage the same or sublet the Leased Premises or any part thereof without the
prior written consent of Landlord, which consent shall be at Landlord's sole
discretion. In the event of any such assignment or transfer with Landlord's
consent, Tenant shall remain fully liable to perform all of the obligations
under this Lease unless the Tenant is specifically released in writing from its
obligations by Landlord. In the event of any assignment, transfer (including
transfers by operation of law or otherwise), hypothecation, mortgage or
subletting without such written consent, in addition to any other right or
remedy Landlord may have under the provisions of this Lease, Landlord shall
have the right to terminate this Lease and/or to re-enter and repossess the
Leased Premises but Landlord's rights to damages shall survive and Tenant shall
in no way be released from any of its obligations under this Lease. Consent by
Landlord to one or more assignment of this Lease or to one or more subletting
of said Leased Premises shall not be deemed to be a waiver of the requirement
for consent of Landlord to any future assignment or subletting; provided,
however, notwithstanding anything contained therein to the contrary, Landlord
and/or Tenant shall not assign or sublease this Lease without the prior written
approval of any mortgagee to the extent such written consent shall be required
of such mortgagee and any unauthorized assignment or sublease shall be void.
Landlord and Tenant hereby acknowledge that this Lease may be assigned to any
of Landlord's mortgagees and that a Memorandum of this Lease (but not the Lease
itself) may be recorded in the appropriate public records. Notwithstanding
anything contained in this Lease to the contrary, this Lease may be assigned
with the prior written consent (which shall not be unreasonably withheld) of
Landlord, to any corporation into which Tenant may be merged or consolidated or
to any corporation which shall be an affiliate, subsidiary, parent or successor
of Tenant, to a purchaser of substantially all of Tenant's assets or to a
partnership, the majority interest of which shall be the current owners of
Tenant.
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ARTICLE 17
RIGHT TO MORTGAGE, ATTORNMENT AND SET OFF
Subject to the terms and conditions of this Article, this Lease shall
be subordinate to any mortgage encumbering the Leased Premises at any time
during the term thereof and to any and all advances made thereunder,
replacements and extensions thereof. Anything herein to the contrary
notwithstanding, any mortgagee, at its election, by notice in writing
delivered to Landlord and Tenant, shall be entitled to have this Lease treated
as prior to the lien of its mortgage, whether or not this Lease is executed
prior or subsequent to the date of such mortgage. For purposes of this
Article, "mortgage" shall include both construction and permanent financing
and shall be deemed to include mortgages, leasehold mortgages, land contracts,
deeds of trust or other financing instruments. Tenant will execute any
instruments reasonably requested by Landlord to subordinate this Lease to the
lien of any mortgage. Notwithstanding anything contained in this Article to the
contrary, Tenant's obligation to subordinate this Lease to the lien of any
"mortgage" is expressly conditioned upon the agreement of the holder of any
such mortgage to enter into a subordination, non-disturbance and attornment
agreement in commercially reasonable form and substance.
If proceedings are brought for the foreclosure of any mortgage or a
deed is delivered to a mortgagee by Landlord in lieu of such foreclosure, or
if a mortgagee shall exercise a power of sale under any mortgage made by
Landlord covering the Leased Premises, Tenant shall attorn to the purchaser,
upon any such foreclosure or sale and shall recognize such purchaser as
Landlord under this Lease. Within ten (10) days after written request by
Landlord, Tenant shall execute and deliver to Landlord a statement in
recordable form certifying (i) whether or not this Lease is in full force and
effect, (ii) the Commencement Date, (iii) whether or not the rent is paid
currently without set-off or defense thereof, (iv) the amount of rent, if any,
paid in advance, and (v) whether or not there are uncured defaults by Landlord
or stating those claimed by Tenant. Tenant hereby irrevocably appoints
Landlord its attorney-in-fact with full power and authority to execute and
deliver in the name of Tenant any such instrument or instruments upon Tenant's
failure to comply with the provisions of this Section.
ARTICLE 18
BANKRUPTCY OR INSOLVENCY
Neither this Lease nor any interest therein nor any estate thereby
created shall pass to any trustee or receiver or assignee
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for the benefit of creditors or otherwise by operation of law, except
as may specifically be provided pursuant to the United States Bankruptcy Code
(the "Bankruptcy Code").
In the event the estate created hereby shall be taken in execution or
by other process of law, or if Tenant shall be adjudicated insolvent or
bankrupt pursuant to the provisions of any state insolvency or bankruptcy act
or the Bankruptcy Code, or if a receiver or trustee of the property of Tenant
shall be appointed by reason of Tenant's insolvency or inability to pay its
debts, or if any assignment shall be made of Tenant's property for the benefit
of creditors, then and in any such event, this Lease and all rights of Tenant
hereunder shall automatically cease and terminate with the same force and
effect as though the date of such event were the date set forth herein and
fixed for the expiration of the Lease term, and Tenant shall vacate and
surrender the Leased Premises but shall remain liable as herein provided.
Upon filing of a petition by or against Tenant under the Bankruptcy
Code, Tenant, as debtor and as debtor in possession, and any trustee who may be
appointed agree as follows: (1) to perform each and every obligation of Tenant
under this Lease until such time as this Lease is either rejected or assumed by
order of the United States Bankruptcy Court; and (2) to pay monthly in advance
on the first day of each month as reasonable compensation for use and occupancy
of the Leased Premises an amount equal to the rent and other charges otherwise
due pursuant to this Lease; and (3) to reject or assume this Lease within sixty
(60) days of the filing of such petition under Chapter 7 of the Bankruptcy Code
or within one hundred twenty (120) days (or such shorter term as Landlord, in
its sole discretion may deem reasonable so long as notice of such period is
given) of the filing of a petition under any other Chapter; and (4) to give
Landlord at least forty-five (45) days prior written notice of any proceeding
relating to any assumption of this Lease; and (5) to give at least thirty (30)
days prior written notice of any abandonment of the Leased Premises; and (6) to
do all other things of benefits to Landlord otherwise required under the
Bankruptcy Code; and (7) to be deemed to have rejected this Lease in the event
of the failure to comply with any of the above; and (8) to have consented to
the entry of an order by an appropriate United States Bankruptcy Court
providing all of the above, waiving notice and hearing of the entry of same.
No default of this Lease by Tenant, either prior to or subsequent to
the filing of such a petition, shall be deemed to have been waived unless
expressly done so in writing by Landlord.
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ARTICLE 19
EVENTS OF DEFAULT AND LANDLORD'S REMEDIES
Events of Default. Any of the following shall be deemed an Event of
Default:
A. The failure to pay any installment of rent and other amounts due
hereunder when they are due and the failure continues for five (5)
business days after written notice from Landlord to Tenant that such rent
and/or other amounts are overdue.
B. Tenant's failure to perform or observe any other covenant, term or
condition of this Lease to be performed or observed by Tenant and if
curable, the failure continues for fifteen (15) days after notice thereof is
given to Tenant.
C. Abandonment of the Leased Premises.
D. The filing or execution or occurrence of:
(1) An involuntary petition in bankruptcy against Tenant and the
failure of Tenant, in good faith, to have the petition dismissed within
60 days of filing.
(2) A petition against Tenant seeking a reorganization, arrangement,
composition, readjustment, liquidation, dissolution or other relief of
the same or different kind under any provision of the Bankruptcy Act, and the
failure of Tenant in good faith to have such petition dismissed within 60 days
of filing,
(3) A general assignment for the benefit of creditors by Tenant.
(4) A voluntary petition in bankruptcy by Tenant.
(5) The taking by any party of the leasehold created hereby, or any
part thereof, upon foreclosure, levy, execution, attachment or other process
of law or equity.
(6) The adjudication of Tenant as insolvent or bankrupt pursuant to
the provisions of any state insolvency or bankruptcy act or the Bankruptcy Code.
(7) The appointment of a receiver or trustee of the property of
Tenant.
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For purposes of this Article 19, the term "Tenant" shall include any
assignee, sublessee or guarantor of Tenant. This provision, however,
shall not be construed to permit the assignment of this Lease, nor the
subletting of the Leased Premises, except as may be permitted hereby.
Landlord's Remedies. Upon the occurrence of any Event of Default, Landlord
may, at its option, in addition to any other remedy or right it has hereunder
or by law:
A. Re-enter the Leased Premises, without demand or notice, and resume
possession by an action in law or equity or otherwise and without being
liable in trespass or for any damages and without terminating this Lease.
Landlord may remove all persons and property from the Leased Premises and such
property may be removed and stored at the cost of Tenant.
B. Terminate this Lease at any time upon the date specified in a notice
to Tenant. Tenant's liability for damages shall survive such
termination. Upon termination such damages recoverable by Landlord from Tenant
shall, at Landlord's option, be either an amount equal to "Liquidated Damages"
or an amount equal to "Indemnity Payments."
"Liquidated Damages" means an amount equal to the excess of the rentals
provided for in this Lease which would have been payable hereunder by
Tenant, had this Lease not so terminated, for the period commencing with such
termination and ending with the date set for the expiration of the original
term granted (or ending with the date set for expiration of the renewal term if
the Lease has been renewed pursuant to Article 23 below) (hereinafter referred
to as "Unexpired Term"), over the reasonable rental value of the Leased
Premises for such Unexpired Term.
"Indemnity Payments" means an amount equal to the rent and other payments
provided for in this Lease which would have become due and owing
thereunder from time to time during the Unexpired Term plus the cost and
expenses paid or incurred by Landlord from time to time in connection with:
(1) Obtaining possession of the Leased Premises;
(2) Removal and storage of Tenant's or other occupant's property;
(3) Care, maintenance and repair of the Leased Premises while vacant;
(4) Reletting the whole or any part of the Leased Premises;
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(5) Repairing, altering, renovating, partitioning, enlarging, remodeling
or otherwise putting the Leased Premises, either separately or as
part of larger premises, into condition acceptable to, and
reasonably necessary to obtain new lessees.
(6) Making all repairs, alterations and improvements required to be made
by Tenant hereunder and of performing all covenants of the Tenant
relating to the condition of the Leased Premises
less the rent and other payments, if any, actually collected and
allocable to the Leased Premises or to the portions thereof relet by Landlord.
Tenant shall on demand make Indemnity Payments monthly and Landlord can sue for
all Indemnity Payments as they accrue.
C. Without terminating this Lease, relet the Leased Premises without the
same being deemed an acceptance of a surrender of this Lease nor a
waiver of Landlord's rights or remedies and Landlord shall be entitled to
Indemnity Payments, as heretofore defined, from Tenant. Any reletting by
Landlord may be for a period equal to or less than, or extending beyond the
remainder of the original term, or for the whole or any part of the Leased
Premises, separately or with other premises or for any sum or to any lessee or
for any use Landlord deems appropriate.
D. If Tenant vacates or abandons the Leased Premises in violation of
this Lease, any property or equipment or sign, interior or exterior,
that Tenant leaves on the Leased Premises shall be deemed to have been
abandoned, and may either be retained by the Landlord as the property of
Landlord, or may be disposed of at public or private sale as Landlord sees fit.
The proceeds from the sale of any property of Tenant sold at public or private
sale or the then current fair market value of such property as may be retained
by Landlord shall be applied by Landlord against (1) the expenses of Landlord
for removal, storage or sale of the personalty, (2) the arrears of rent or
future rent payable under this Lease, and (3) any other damages to which
Landlord may be entitled hereunder. The balance of such amounts, if any,
shall be given to Tenant.
Landlord shall have the option to treat as abandoned and to retain all
personal property or movable trade fixtures belonging to Tenant that Tenant
fails to remove by the expiration date of the term of this Lease specified in
Article 2 above, or Landlord may remove those items from the Leased Premises
and store the property at the expense of the Tenant.
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All rights and remedies of Landlord under this Lease shall be cumulative
and none shall be exclusive of any other rights and remedies allowed by law.
ARTICLE 20
NON-WAIVER
Waiver of any one breach of the covenants or conditions of this Lease or
the non-performance of the same for any particular time shall not be construed
as a waiver of any succeeding breaches of the same or other covenant or
condition hereof, and the consent or approval by Landlord to or of any act by
Tenant requiring Landlord's consent or approval shall not be deemed to waive or
render unnecessary Landlord's consent or approval to or of any subsequent
similar act by Tenant. Tenant shall pay all attorneys' fees and expenses of
Landlord in enforcing any of the obligations of Tenant under this Lease, or in
any litigation or negotiation in which Landlord shall, without its fault,
become involved through or on account of this Lease.
No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Landlord shall accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy in this Lease provided.
ARTICLE 21
HOLDING OVER
It is hereby agreed that in the event of Tenant holding over after the
termination of this Lease, thereafter the tenancy shall be from month to month
in the absence of a written agreement to the contrary, and Tenant shall pay to
Landlord a daily occupancy charge equal to six percent (6%) of the monthly
rental under Article 3 (plus all other charges payable by Tenant under this
Lease) for each day from the expiration or termination of this Lease until the
date the Leased Premises are delivered to Landlord in the condition required
herein, and Landlord's right to damages for such illegal occupancy shall
survive.
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ARTICLE 22
RE-RENTING
Tenant hereby agrees that for a period commencing one hundred eighty
(180) days prior to the termination of this Lease, Landlord may show the Leased
Premises to prospective tenants, at all reasonable times, upon reasonable prior
notice, and one hundred eighty (180) days prior to the termination of this
Lease, may display in and about the Leased Premises and in the windows thereof,
the usual and ordinary "For Rent" signs.
ARTICLE 23
OPTION TO RENEW
At the expiration of the initial ten (10) year Lease term referred to
in Article 2 above, the Tenant shall have the option to renew this Lease for
two five (5) year renewal terms. The Tenant shall be entitled to exercise its
option to renew the Lease only if:
1. The Tenant is not currently in default under the terms of the lease;
and
2. The Lease is currently in full force and effect and has not been
terminated for any reason; and
3. The Tenant provides the Landlord with written notice of its intention
to exercise its option to renew at least one hundred eighty (180)
days prior to the expiration of the initial Lease term.
The provisions of the Lease during any renewal term, including the
rent, shall be identical to those of the Lease during the initial term of this
Lease with the exception that the rental during each such renewal term shall be
$40,000.00 per month adjusted by the mortgage interest rate adjustment referred
to in Article 3 above and by any change in the index now known as the United
States Bureau of Labor Statistics, Consumer Price Index for All Urban
Consumers, All Items for North Central Region (1977=100) (the "Index") provided
that the amount payable by the Tenant under this Lease as basic monthly rental
shall not be less than $40,000.00 plus or minus the mortgage interest rate
adjustment referred to in Article 3 above.
The adjustment in monthly rent for each rental year commencing with the
first rental year of the first renewal term of this Lease shall be accomplished
by multiplying the basic monthly rental for the first month of the new rental
year
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(without including any cost of living adjustments) by a fraction, the
numerator of which shall be the most recently published monthly Index preceding
the first day of the rental year for which adjustment is made and the
denominator of which shall be the monthly Index for the same month in the year
2002.
If the Index is discontinued or unavailable, the Landlord and Tenant
shall substitute another standard nationally recognized cost of living index
reasonably calculated to reflect the impact of inflation on the basic monthly
rent under this Lease.
ARTICLE 24
OBLIGATION OF TENANT TO PURCHASE LEASED PREMISES
At any time during the term of this Lease (including any renewal term)
that a sale or transfer of a majority of the assets or issued and outstanding
stock of either the Tenant or LDM Industries, Inc. ("LDM"), a Michigan
corporation, occurs, then the Tenant shall notify the Landlord in writing of
such sale or transfer within five (5) days of the date of such sale or transfer
and the Tenant shall be obligated to purchase the Leased Premises from the
Landlord for "fair market value".
Within ten (10) days of the date the Tenant notifies the Landlord of
the sale or transfer of a majority of the assets or stock of the Tenant or LDM,
the Landlord and the Tenant shall meet to determine whether they can agree on a
"fair market value" for the Leased Premises. If they do agree, then the
agreed-upon value shall be the purchase price for the Leased Premises.
If the parties cannot agree on a "fair market value", then each party
shall select a real estate appraiser familiar with industrial real estate in
Columbus, Indiana, to determine "fair market value". The two appraisers so
selected shall have fifteen (15) days in which to determine the "fair market
value" by agreement. If these two appraisers cannot agree upon a "fair market
value" within such fifteen (15) day period, the two appraisers shall, within
ten (10) days of the expiration of such fifteen (15) day period, jointly select
a third appraiser. The Landlord's and the Tenant's respective appraisers shall
each supply the third appraiser with their respective determinations of "fair
market value". Within thirty (30) days of his or her appointment, the third
appraiser shall make an independent determination of the "fair market value"
and the average of the two appraisals closest in value shall be the "fair
market value" and purchase price and shall be binding upon both Landlord and
Tenant. The cost of the third appraiser shall be borne equally by the Landlord
and the Tenant.
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All appraisers selected by either party to determine "fair market
value" shall be MAI appraisers or industrial real estate brokers, shall have a
minimum of five (5) years of general commercial/industrial real estate
experience and shall have substantial recent experience and knowledge of the
industrial real estate market in Columbus, Indiana and southeastern Indiana.
Within thirty (30) days from the date that the "fair market value" and
purchase price is determined as set forth above, the Landlord shall order and
shall provide to Tenant an owner's title insurance commitment in the full
amount of the purchase price issued by a title insurance company licensed to do
business in the State of Indiana along with copies of all of the underlying
documents referred to in the title insurance commitment. The premium for the
title insurance policy issued pursuant to this commitment shall be paid for by
the Landlord.
The Tenant shall have fifteen (15) days from the date of receipt of the
commitment within which to review or have its attorney review the title
insurance commitment. Within this fifteen (15) day period, the Tenant shall
notify the Landlord that the title is in the condition required for delivery of
a Warranty Deed in accordance with this Article 24 or shall have its attorney
deliver a written opinion that the title is not in the condition required for
delivery of a Warranty Deed in accordance with this Article 24.
If the title is in the condition required for delivery of a Warranty
Deed in accordance with this Article 24, the closing shall proceed as set forth
below.
If the title is not in the condition required for delivery of a
Warranty Deed in accordance with this Article 24, based on the written opinion
of the Tenant's attorney, the Landlord shall have the option either 1) to
fulfill the requirements in the title commitment or to remedy the title defects
set forth in the opinion of the Tenant's attorney or 2) to terminate the
obligation of the Tenant to purchase the Leased Premises under the provisions
of this Article 24.
The closing of the sale of the Leased Premises to the Tenant by the
Landlord shall be scheduled within ten (10) days after delivery by the Landlord
to the Tenant of 1) a title insurance commitment reflecting the capacity of the
Landlord to convey marketable title to the Tenant, subject only to a) easements
and building and use restrictions of record; b) liens which will be discharged
from the sale proceeds; and c) the acts and omissions of the Tenant from and
after the Commencement Date of the Lease; 2) a proposed Warranty Deed prepared
in a format for recording after proper execution; and 3) closing statement
reflecting appropriate and customary prorations of insurance, utilities, rent
and taxes and appropriate allocation of financial
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responsibility for transfer tax, title insurance premiums,
recording fees, etc.
The closing shall take place at the offices of the Landlord or the
Landlord's attorneys. At the closing, in exchange for the Warranty Deed, the
Tenant shall deliver to the Landlord the purchase price (plus or minus the
amount of any prorations) in cash or cashier's check.
ARTICLE 25
SECURITY DEPOSIT
There shall be no security deposit required of the Tenant.
ARTICLE 26
ENVIRONMENTAL MATTERS AND INDEMNIFICATION
A. LANDLORD'S OBLIGATIONS. During the term of this Lease and any
extension thereof, Landlord shall not cause or permit any Hazardous
Material (as defined herein) to be released, brought upon, stored, produced,
emitted, disposed of or used upon, about or underneath the Leased Premises by
Landlord, its agents, employees, contractors or invitees except as permitted by
and in full compliance with Governmental Regulations (as defined herein) and
with Tenant's prior approval.
During the term of this Lease and any extension thereof, Landlord shall,
at its sole cost and expense, promptly take all actions required by any
federal, state or local governmental agency or political subdivision (as a
result of a release, spill or discharge of Hazardous Materials or other
contamination about or underneath the Leased Premises by (i) Tenant or any
other party prior to April 28, 1993, or (ii) Landlord, its agents, employees,
contractors or invitees) to cleanup, remediate and restore the Leased Premises
to a lawful condition or to such lesser extent as reasonably recommended by a
qualified environmental consulting firm approved by Tenant. Notwithstanding
the preceding sentence, Landlord acknowledges that an area of contamination has
been identified, and agrees that Landlord will notify the Indiana Department of
Natural Resources (or equivalent agency) on or before December 31, 1993 of the
existence of such condition, and will remediate such condition as required by
(a) applicable law, ordinance and regulations, or (b) an approved plan of
remediation.
B. TENANT'S REPRESENTATIONS, WARRANTIES AND OBLIGATIONS. Except as
otherwise previously disclosed in writing to the
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Landlord, the Tenant represents and warrants to the Landlord as
follows:
1. The Tenant shall keep or cause the Leased Premises to be kept
free of Hazardous Materials except to the extent that such Hazardous
Materials are stored and/or used in compliance with all applicable
Governmental Regulations; and, without limiting the foregoing, the Tenant
shall not cause or permit the Leased Premises to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose of, transfer,
produce or process Hazardous Materials, except in compliance with all
applicable Governmental Regulations; nor shall the Tenant cause or permit,
as a result of any intentional act or omission on the part of the Tenant or
any subtenant or occupant, a release, spill, leak or emission of Hazardous
Materials onto the Leased Premises or onto any other contiguous property.
Anything herein to the contrary notwithstanding, the Tenant shall have no
obligation to remove, remediate, or cure with respect to any Hazardous
Materials or other adverse environmental condition which was in existence
at the Leased Premises prior to April 28, 1993.
2. All federal, state, and local permits, licenses and
authorizations required for present use of the Leased Premises or
activities of the Tenant have been obtained.
3. Within six (6) months prior to the end of the terms of this Lease
(or the end of any renewal term if this Lease is renewed pursuant to
Article 23 above), or within three (3) months after the occurrence of any
Event of Default which has not been cured, the Tenant shall conduct and
complete all investigations, including a Phase I environmental audit and
such further audits as reasonably recommended by a qualified environmental
consultant approved by Landlord, studies, sampling and testing, and all
remedial, removal and other actions necessary to clean up and remove all
Hazardous Materials on, under, from or affecting the Leased Premises as
required by all applicable Governmental Regulations, in accordance with the
orders and directives of all federal, state and local governmental
authorities or to such lesser extent as reasonably recommended by a
qualified environmental consulting firm approved by Landlord. Such
testing, remedial, removal and other actions shall include those required
by federal and state regulations governing underground storage tank
systems. The provisions of this Paragraph shall apply to all Hazardous
Materials on, under, from or affecting the Leased Premises as a result of
either intentional or unintentional acts or omissions on the part of the
Tenant or any subtenant or occupant of the Leased Premises. Notwithstanding
anything herein to the contrary, Tenant
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shall not be responsible for remedial actions, removal or cures related
to Landlord's obligations pursuant to this Article 26. If the Tenant fails
to conduct an environmental audit as required above, then the Landlord may,
at its option and at the expense of the Tenant, conduct such audit.
With the exception of any environmental audit conducted by the Landlord
prior to April 28, 1993, any environmental audit conducted by either party
shall be conducted for the mutual benefit of Landlord and Tenant. By
conducting any such audit, neither party will assume any control over the
environmental affairs or operations of the other party or assume any
obligation or liability to the other party or to any third party.
4. The Tenant shall:
a) Do all things necessary to assure that the representations,
warranties and covenants set forth herein are met and continue
to be accurate and correct.
b) Assure that all entities acting on behalf of the Tenant are
aware of and comply with the obligations of the Tenant under this
Article 26.
c) Conduct periodic reviews of the use of the Leased Premises
and the activities of the Tenant to assure compliance with the
obligations of the Tenant under this Article 26.
d) Promptly (i) notify the Landlord in writing of any
occurrence or development or claim filed by it or against it which
would cause any representation, warranty, or covenant set forth in
this Article 26 to be incorrect, and (ii) take steps necessary to
mitigate the effect of such noncompliance.
5. The Tenant shall not take any action or allow the Leased
Premises to be used in such a manner that any representation,
warranty or covenant set forth in this Article 26 becomes incorrect or is
not complied with.
C. LANDLORD'S INDEMNIFICATION. Landlord and its successors and assigns
agree to defend, indemnify and hold harmless Tenant, its parent, stockholders,
and their respective officers, directors, employees, agents, successors and
assigns, from and against any Environmental Damages (as defined herein) arising
out of or in any way related to (1) the presence, disposal, release or
threatened release of any Hazardous Materials on, over, under, from or
affecting the Leased Premises
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or the soil, water, vegetation, buildings, personal property, persons or
animals; (2) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to such Hazardous Materials
on the Leased Premises; (3) any lawsuit brought or threatened, settlement
reached or government order relating to such Hazardous Materials with respect
to the Leased Premises; and/or (4) any violation of laws, orders, regulations,
or requirements which are based upon or in any way related to such Hazardous
Materials used on the Leased Premises. This indemnification shall include,
without limitation, all such conditions and/or occurrences (i) existing prior
to April 28, 1993, or (ii) directly caused or created by Landlord, its agents,
employees, contractors or invitees during the term of this Lease and any
extension thereof,
D. TENANT'S INDEMNIFICATION. Subject to the limitations set forth below,
the Tenant shall defend, indemnify and hold harmless the Landlord, its
employees, agents, officers, directors, stockholders, successors and assigns,
from and against any Environmental Damages arising out of or in any way related
to (1) the presence, disposal, release or threatened release of any Hazardous
Materials on, over, under, from or affecting the Leased Premises or the soil,
water, vegetation, buildings, personal property, persons or animals; (2) any
personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Materials on the Leased
Premises; (3) any lawsuit brought or threatened, settlement reached or
government order relating to such Hazardous Materials with respect to the
Leased Premises; and/or (4) any violation of laws, orders, regulations,
requirements or demands of the Landlord, which are based upon or in any way
related to such Hazardous Materials used on the Leased Premises.
The indemnity obligations under this paragraph are specifically limited as
follows:
1. The Tenant shall have no indemnity obligations with respect to
Environmental Damages incurred with respect to Hazardous Materials that are
first introduced to the Leased Premises or any part of the Leased Premises
prior to April 28, 1993.
2. The Tenant shall have no indemnity obligations with respect to
Hazardous Materials that are first introduced to the Leased Premises by the
Landlord, its agents, employees, contractors, invitees, successors or
assigns,
The Tenant agrees that in the event this Lease is terminated, the Tenant
shall deliver the Leased Premises to the Landlord free of any and all Hazardous
Materials which are then required to be removed by Tenant (whether over time or
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immediately) pursuant to the terms of this Lease and to applicable Governmental
Regulations affecting the Leased Premises.
The provisions of this Article 26 shall be in addition to any and all other
obligations and liabilities the Tenant may have to the Landlord under the Lease
and in common law, and shall survive (a) the payment of all sums due to the
Landlord under the Lease for rent and expenses, or (b) the satisfaction of all
of the other obligations of the Tenant under the Lease.
E. ADJUSTMENT OF RENT. In the event that Landlord fails, refuses, or is
unable to perform any of its obligations pursuant to this Article 26, at
Tenant's option, after fifteen (15) days prior written notice to Landlord, the
monthly rent payable hereunder shall be adjusted to an amount not less than
Twenty-Five Thousand Dollars ($25,000.00) per month ("Adjusted Rent"), and the
difference between the Adjusted Rent and the monthly rent otherwise payable
hereunder may be used and expended by Tenant only to cover the cost of
obligations of Landlord as set forth in this Article 26, including Tenant's
reasonable costs and expenses incurred in making necessary arrangements for the
fulfillment of such obligations, whether performed by Tenant or by third
parties.
F. DEFINITIONS. For the purposes of this Article 26, the following
definitions apply:
1. "Environmental Damages" shall mean (i) all claims, judgments,
damages, penalties, fines, costs, liabilities and losses; (ii) all sums
paid for settlement of claims, attorney fees, consultant's fees and
expert's fees; (iii) all costs incurred in connection with any
investigation, removal, action, remedial action, excavation,
transportation, handling, treatment, storage, disposal, testing,
environmental sampling, analytical services, consulting services, or any
other type of action reasonably necessary and appropriate to identify and
characterize, correct and dispose of any adverse environmental condition
affecting the Leased Premises, such cleanup, remediation, removal or
restoration to be completed to the extent required by any federal, state or
local governmental agency or political subdivision or to such lesser extent
as reasonably recommended by a qualified environmental consulting firm
approved by the party to be indemnified hereunder, which approval will not
be unreasonably withheld or delayed.
2. "Governmental Regulations" means any law, regulation, rule,
policy, ordinance, or similar requirement of the United States, any state,
and any county,
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municipality or other agency or subdivisions of the United States or
any state.
3. "Hazardous Materials" includes, without limitation, a) any
flammable explosives, radioactive materials, pollutants, contaminants,
hazardous materials, hazardous wastes, hazardous or toxic substances or
other chemical substances or related materials defined in or regulated by
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.),
the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section
6901, et seq.) and in the regulations adopted and publications promulgated
pursuant thereto, or any other federal, state or local government law,
ordinance, rule or regulation, and b) any petroleum, crude oil or any
fraction thereof.
ARTICLE 27
ENTIRE AGREEMENT
This Lease sets forth all of the covenants, promises, agreements,
conditions and understandings between Landlord and Tenant concerning the Leased
Premises, and Landlord and Tenant respectively acknowledge that there are
no covenants, promises, agreements, representations, inducements, conditions or
understandings, either oral or written, between Landlord and Tenant other than
herein set forth. No alteration, amendment, change or addition to this Lease
shall be binding upon Landlord or Tenant unless reduced to writing and signed
by each party.
ARTICLE 28
QUIET ENJOYMENT
Landlord warrants that Tenant, upon paying the rents hereinbefore provided
and in performing each and every covenant hereof, shall peacefully and
quietly hold, occupy and enjoy the Leased Premises throughout the term hereof,
without molestation or hindrance by any person holding under or through
Landlord.
ARTICLE 29
ACKNOWLEDGEMENT BY TENANT THAT LEASE
IS IN FULL FORCE AND EFFECT
Tenant agrees at any time and from time to time upon not less than ten (10)
days' prior written request by Landlord to
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execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there
have been modifications, that the same is in full force and effect as modified
and stating the modifications), and the dates to which the rent and other
charges have been paid in advance, if any, it being intended that any such
statement delivered pursuant to this Article may be relied upon by any
prospective purchaser of the fee or mortgagee or assignee of any mortgage upon
the fee of the Leased Premises.
ARTICLE 30
LANDLORD'S LIABILITY
If Landlord shall fail to perform any covenant, term or condition of this
Lease upon the Landlord's part to be performed, and if as a consequence of such
default Tenant shall recover a money judgment against Landlord, such judgment
shall be satisfied only out of the proceeds of sale received upon execution of
such judgment and levied thereon against the right, title and interest of
Landlord in the Leased Premises or through voluntary cash payment by the
Landlord, and Landlord shall not be liable for execution or levy upon other
assets or for any deficiency.
ARTICLE 31
LAWS OF THE STATE OF INDIANA
This Lease shall be governed by, and construed in accordance with, the laws
of the State of Indiana. If any provision of this Lease or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby and
each provision of the Lease shall be valid and enforceable to the fullest extent
permitted by Law.
ARTICLE 32
NOTICES
All bills, notices, statements, communications to or demands (collectively,
"Notices or Demands") upon Landlord or Tenant, desired or required to be given
under any of the provisions hereof, must be in writing, Any such Notices or
Demands will be deemed to have been duly and sufficiently given if (a) a
properly addressed copy thereof has been mailed by United States certified
mail, return receipt requested, in an envelope properly stamped and addressed,
(b) by means of a reputable overnight delivery
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service guaranteeing next day delivery ("Overnight Courier"), or (c) personally
delivered at:
If to Landlord:
CPC Associates, Inc.
2860 N. National Road
Columbus, Indiana 47202-0387
With a copy to:
Laurence M. Luke, Esq.
Thomas P. Martin, Esq.
Dean & Fulkerson, P.C.
801 West Big Beaver Road
Fifth Floor
Troy, Michigan 48084
If to Tenant:
G L Industries of Indiana, Inc.
2860 N. National Road
Columbus, Indiana 47202-0387
With a copy to:
Michael B. Lewis, Esq.
Kerr, Russell & Weber
One Detroit Center
500 Woodward Avenue
Suite 2500
Detroit, Michigan 48226-3406
or at such other address as either Landlord or Tenant may have last furnished
in writing to the other for such purpose. Except where receipt of notice
is expressly required in this Lease, the effective date of such Notice or
Demand will be deemed to be the time when personally delivered or mailed
(either by United States Mail or Overnight Courier) as herein provided.
ARTICLE 33
CAPTIONS
The captions of the paragraphs in this Lease Agreement are inserted and
included solely for convenience and shall never be considered or given any
effect in construing the provisions hereof if any question of intent should
arise.
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ARTICLE 34
TERMINOLOGY
All personal pronouns used in this Lease Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural and vice versa.
ARTICLE 35
SUCCESSORS
This Lease shall inure to the benefit of and be binding upon the parties
hereto, their respective heirs, administrators, executors, representatives,
successors and assigns.
ARTICLE 36
FINANCIAL STATEMENTS
Tenant agrees to furnish the Landlord with a copy of its financial
statements as compiled by an independent certified public accountant in
accordance with generally accepted accounting principles within ninety (90)
days of the end of Tenant's fiscal year.
ARTICLE 37
TERMINATION OF PREVIOUS LEASE
Landlord and Tenant agree that, upon the execution of this Lease, the
Original Lease between Landlord and Tenant for the Leased Premises dated March
31, 1990 shall be terminated and that the provisions of this Lease shall
supersede the provisions of the Original Lease dated March 31, 1990 between
the Landlord and the Tenant.
ARTICLE 38
CONSENT OF LANDLORD
Whenever Tenant is required to obtain the consent or approval of Landlord
as to any matter, decision or request described in the Lease, Landlord agrees
not to unreasonably withhold or delay its decision beyond ten (10) days. In
the event that Landlord fails to respond to any such request within such 10-day
period, then such consent or approval shall be deemed
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denied. In the event that Landlord's discretion is required to be exercised as
to any matter other than a consent or approval described above, then Landlord
agrees to exercise such discretion in a reasonable manner unless the language
of a specific Article provides that the Landlord may withhold its consent in
its sole discretion.
ARTICLE 39
ARBITRATION
Any controversy or claim arising out of or relating to this Lease or the
breach thereof shall settled by arbitration before three arbitrators appointed
according to the Commercial Arbitration Rules of the American Arbitration
Association and the laws of the State of Michigan. The arbitration shall be
held in Southfield, Michigan, Judgment upon the award rendered by a majority of
the arbitrators may be entered in any court having jurisdiction thereof. In
the event of arbitration, the parties agree as follows:
A. Each party shall have an absolute veto over any arbitrator, although
said veto must be utilized in good faith.
B. The arbitrators will be urged to permit discovery as long as said
discovery does not unduly delay the arbitration process.
C. The arbitrators shall complete their proceedings and render their
decision within 60 days after submission of the dispute to them,
unless the parties shall agree to an extension.
D. There can be no award of money without an opinion of law and a
finding of facts upon which said award is based.
IN WITNESS WHEREOF, the parties hereto have executed or caused this Lease
Agreement to be executed as of the day and year first above written.
LANDLORD:
WITNESSES: CPC ASSOCIATES, INC.
Thomas P. Martin By: Laurence M. Luke
- --------------------------- ------------------------------
THOMAS P. MARTIN LAURENCE M. LUKE, PRES.
Daniel J. Schulte
- ---------------------------
DANIEL J. SCHULTE
TENANT:
WITNESSES: G L INDUSTRIES OF INDIANA, INC.
Thomas P. Martin By: Joseph M. Bione
- --------------------------- ------------------------------
THOMAS P. MARTIN JOSEPH M. BIONE, PRES.
Donald A. Pierce, Jr.
- ---------------------------
DONALD A. PIERCE, JR.
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STATE OF MICHIGAN)
--------
)SS
COUNTY OF OAKLAND)
-------
On this 28 day of APRIL, 1993, before me appeared LAURENCE M. LUKE, the
PRESIDENT of CPC ASSOCIATES, INC., an Indiana corporation, to me personally
known, who being by me duly sworn, did state that the foregoing instrument was
executed on behalf of said corporation as Landlord by authority of its Board of
Directors and acknowledged said instrument to the free act deed of said
corporation.
JULIET DISESSA
---------------------------
Notary Public, Oakland County
------------
My commission expires:
JULIET DISESSA
NOTARY PUBLIC, OAKLAND COUNTY, MI
MY COMMISSION EXPIRES FEB. 4, 1996
STATE OF MICHIGAN)
-------- )SS
COUNTY OF OAKLAND)
-------
On this 28 day of APRIL, 1993, before me appeared JOSEPH M. BIONE, the
PRESIDENT of G L INDUSTRIES OF INDIANA, INC., an Indiana corporation, to me
personally known, who being by me duly sworn, did state that the foregoing
instrument was executed on behalf of said corporation as Tenant by authority
of its Board of Directors and acknowledged said instrument to be the free act
and deed of said corporation.
JULIET DISESSA
---------------------------
Notary Public, County,
------
------------
My commission expires:
JULIET DISESSA
NOTARY PUBLIC, OAKLAND COUNTY, MI
MY COMMISSION EXPIRES FEB. 4, 1996
This instrument prepared by and, when recorded, return to:
Thomas P. Martin, Esq.
Dean & Fulkerson, P.C.
801 W. Big Beaver Rd., Suite 050
Troy, Michigan 48084
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EXHIBIT A
LEGAL DESCRIPTION
Land situated in the City of Columbus, County of Bartholomew and State of
Indiana, more particularly described as follows:
Lot Number Two (2) of Jackson Minor Plat in the City of Columbus, Indiana
as recorded in Plat Book "P", Page 76A in the office of the Recorder of
Bartholomew County, Indiana, subject to all easements, restrictions,
covenants and rights-of-way of record.
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