LEASE
By and Between
ANDRA L.L.C.,
as Landlord,
and
DELCO REMY AMERICA, INC.,
as Tenant
Dated: February 9, 1995
TABLE OF CONTENTS
Page ARTICLE I. DEMISED PREMISES AND TOWNSEND ESTATES ........................ 1
Section 1.01. Demised Premises. ............................................ 1
ARTICLE II. COMPLIANCE WITH PLANS AND SPECIFICATIONS ..................... 1
Section 2.01. Landlord to Construct Building per Plans and Specifications.... 1 Section 2.02. Commencement of Construction. ................................ 2 Section 2.03. Tenant's Right to Make Changes. .............................. 2 Section 2.04. Commencement on Specified Dates. ............................. 3 Section 2.05. Time of Access. .............................................. 3 Section 2.06. Tenant Entry. ................................................ 3 Section 2.07. Construction of the Demised Premises. ........................ 3
ARTICLE III. TERM OF LEASE ................................................ 4
Section 3.01. Demised Term. ................................................ 4 Section 3.02. Lease Year. .................................................. 5 Section 3.03. Holding Over. ................................................ 5 Section 3.04. Option to Extend the Term. ................................... 5
ARTICLE IV. RENTAL ....................................................... 5
Section 4.01. Minimum Base Rent. ........................................... 5 Section 4.02. Additional Rent. ............................................. 6 Section 4.03. Payments. .................................................... 6 Section 4.04. Past Due Payments. ........................................... 6
ARTICLE V. OCCUPANCY AND USE OF DEMISED PREMISES ........................ 6
Section 5.01. Occupancy and Type of Use. ................................... 6 Section 5.02. Lawful Use and No Waste, Annoyance or Nuisance. .............. 7
ARTICLE VI. ASSIGNMENT AND SUBLETTING .................................... 8
Section 6.01. Assignment and Subletting. ................................... 8 Section 6.02. Expense. ..................................................... 8 Section 6.03. Non-Release. ................................................. 9
ARTICLE VII. UTILITY SERVICES ............................................. 9
Section 7.01. Payment. ..................................................... 9
Section 7.02. Suspension of Services. ................................... 9
ARTICLE VII. REPAIRS AND MAINTENANCE ..................................... 10
Section 8.01. Landlord's Obligation. .................................... 10 Section 8.02. Tenant's Obligation. ...................................... 10 Section 8.03. Remodeling. ............................................... 10 Section 8.04. No Lien Clause. ........................................... 11
ARTICLE IX. INSURANCE AND INDEMNIFICATION AND WAIVER OF CLAIMS ........... 11
Section 9.01. Tenant's Insurance. ....................................... 11 Section 9.02. Insurance to be Furnished by Landlord. .................... 12 Section 9.03. Mutual Indemnifications. .................................. 12 Section 9.04. Waiver of Subrogation. .................................... 12
ARTICLE X. DAMAGE TO DEMISED PREMISES .................................... 13
Section 10.01. Damage to Demised Premises. ............................... 13
ARTICLE XI. EMINENT DOMAIN ............................................... 13
Section 11.01. Condemnation of Demised Premises. ......................... 13 Section 11.02. Condemnation Award. ....................................... 14
ARTICLE XII. SIGNS ....................................................... 14
Section 12.01. Consent to Signs. ......................................... 14
ARTICLE XIII. TAXES ...................................................... 14
Section 13.01. Real Estate Taxes and Assessments and Payment by Tenant. .. 14
ARTICLE XIV. INSOLVENCY .................................................. 15
Section 14.01. Insolvency. ............................................... 15
ARTICLE XV. DEFAULT ...................................................... 15
Section 15.01. Rights on Tenant's Default. ............................... 15 Section 15.02. Default of Landlord. ...................................... 16 Section 15.03. Status of Landlord - Tenant. .............................. 16 Section 15.04. Advances. ................................................. 17 Section 15.05. Emergency Repairs. ........................................ 17
ARTICLE XVI. MISCELLANEOUS ............................................... 17
Section 16.01. Waivers. .................................................. 17 Section 16.02. Remedies Cumulative. ...................................... 17 Section 16.03. Subordination. ............................................ 17 Section 16.04. Notices and Certificates. ................................. 18 Section 16.05. Relationship of Parties. .................................. 18 Section 16.06. Construction. ............................................. 18 Section 16.07. Law of Indiana. ........................................... 18 Section 16.08. Costs. .................................................... 18 Section 16.09. Lease Memorandum. ......................................... 18 Section 16.10. Force Majeure. ............................................ 19 Section 16.11. Hazardous Materials and Environmental Requirements. ....... 19 Section 16.12. Complete Agreement. ....................................... 19 Section 16.13. Successors in Interest. ................................... 19 Section 16.14. Exclusions. ............................................... 20 Section 16.15. Americans with Disabilities Act. .......................... 20 Section 16.16. Termination Requirements. ................................. 21 Section 16.17. Address of Notices. ....................................... 21 Section 16.18. Warranties and Representations. ........................... 21
ARTICLE XVII. GENERAL PROVISIONS ......................................... 23
Section 17.1. Remedies Cumulative - Non-Waiver. .......................... 23 Section 17.2. Invalidity. ................................................ 23 Section 17.3. Consents and Approvals. .................................... 23 Section 17.4. Agreement Binding on Successors. ........................... 23 Section 17.5. Estoppel Certificate. ...................................... 23
LEASE
-----
THIS LEASE, executed this _____________ day of _________________, 1995, by and between ANDRA L.L.C. with its principal office at 3718 Timberview Court, Anderson, Indiana 46011 ("Landlord"), and DELCO REMY AMERICA, INC. ("Tenant"), whose mailing address is 2405 Columbus Avenue, Anderson, Indiana 46018, WITNESSETH THAT, in consideration of the mutual covenants hereinafter contained, and each act performed hereunder by either of the parties, Landlord and Tenant agree as follows:
ARTICLE I.
DEMISED PREMISES AND TOWNSEND ESTATES
-------------------------------------
Section 1.01. Demised Premises. Landlord hereby lets and demises to Tenant,
------------ ---------------- and Tenant hereby leases from Landlord certain real estate in Madison County, Indiana, more particularly described as Lot 3 of the real property described on the attached Exhibit A, which exhibit is attached hereto and by reference is
--------- made a part hereof (which real estate is referred to herein as the "Land"), together with a certain building (the "Building") and other improvements to be constructed thereon as hereinafter provided. The Land, Building and other improvements are referred to herein collectively as the "Demised Premises", and are located at ________________________, Anderson, Indiana 46013. The Building will consist of approximately fourteen thousand seven hundred square feet (14,700). The Land consists of approximately two (2) acres located in the development known as "Townsend Estates", which development is shown on Exhibit B. - ---------
ARTICLE II.
COMPLIANCE WITH PLANS AND SPECIFICATIONS
-----------------------------------------
Section 2.01. Landlord to Construct Building per Plans and Specifications.
------------ ----------------------------------------------------------- Landlord agrees to construct on the Demised Premises, at its sole cost and expense, a first-class building in a good and workmanlike manner and in compliance with all applicable building, zoning, and environmental regulations and restrictive covenants of record. Landlord shall use its best efforts to provide that any and all warranties that Landlord is entitled to under its construction contract will also run in favor of Tenant. The Building shall be constructed in accordance with final plans and specifications to be prepared by K.R. Montgomery and Associates, Inc., a copy of such plans and specifications to be approved by the parties hereto as identified by the initials of an officer of Landlord and an officer of Tenant (the "Plans and Specifications"). The respective parties have agreed that Landlord shall substantially complete and have ready for occupancy the Building and other improvements on or before September 1, 1995.
Attached hereto as Exhibit C are preliminary drawings of the Building.
--------- Landlord shall deliver to Tenant for review and approval, final plans and specifications on or before fifteen (15) days after the execution hereof by the latter of Landlord or Tenant, prepared by K.R.
Montgomery and Associates, Inc., which plans and specifications shall include all of the improvements to be constructed by Landlord (including, but not limited to, the Building, parking lots and driveways, bringing utilities to the Demised Premises). Tenant shall have fifteen (15) days after receipt of delivery of the same to approve or request revisions to said plans and specifications. Landlord shall have any revisions requested by Tenant made within five (5) days after notice thereof from Tenant, and provide Tenant proposed final Plans and Specifications for review and approval. The foregoing procedure shall then be applicable with such revised Plans and Specifications. If final Plans and Specifications are not agreed to by both parties within sixty (60) days from execution of this Lease by the latter of Landlord or Tenant, either party may terminate this Lease by written notice to the other within ten (10) days of the expiration of such sixty (60) day period, and neither party shall then have any further liability hereunder. After approving the same, said plans and specifications shall be identified by the initials of each party and the approved plans and specifications shall be attached hereto and made a part hereof as Exhibit C, and shall replace the drawings currently attached as
--------- Exhibit C. - ---------
No modification shall be made in the Plans and Specifications without the prior written consent of Tenant. Landlord, in constructing the Building, will use quality materials and comply with all federal, state, and municipal laws, rules, and regulations of any governmental agencies having jurisdiction of the Demised Premises. Any necessary substitution of materials because of lack or shortage of specified materials will be immediately submitted to Tenant, and Tenant shall thereupon approve these substitutions, provided they do not alter the quality of the Building or cause delay in completing the Building.
Section 2.02. Commencement of Construction. Landlord shall begin
------------ ---------------------------- construction of the Building within thirty (30) days after the latter to occur of (i) execution of this Lease by the latter of Landlord and Tenant, and (ii) receipt by Landlord of all permits required for the construction of the Building and related improvements. If Landlord has not received all required permits within sixty (60) days from the date of execution hereof by Landlord, Tenant may terminate this Lease and any time thereafter, provided at the time of such termination all of such permits have not been received.
Section 2.03. Tenant's Right to Make Changes. Tenant may at any time,
------------ ------------------------------ by written order, make changes within the general scope of this Lease and the plans and specifications in any one or more of the following:
(a) Specifications
(b) Work or services
(c) Amount of space
(d) Facilities or space layout
If any such change causes an increase or decrease in Landlord's cost of, or the time required for, performance under this Lease, the parties shall modify the Lease by making an equitable adjustment in the rental rate, making a lump sum price adjustment, or revising the delivery schedule.
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No services or work for which an additional cost or fee will be charged by Landlord will be furnished without the prior written authorization of Tenant or a designated representative of Tenant.
Section 2.04. Commencement on Specified Dates. Anything to the
------------ ------------------------------- contrary notwithstanding, if Landlord shall fail to commence construction within thirty (30) days after the date of execution of this Lease by the latter of Landlord and Tenant, Tenant may terminate this Lease without any liability.
Section 2.05. Time of Access. Anything herein to the contrary
------------ -------------- notwithstanding, Tenant shall have a period of not less than sixty (60) days before the date that the Demised Premises shall be deemed actually ready for occupancy and before the commencement of the payment of Rent during which period Tenant shall have the privilege of proceeding with any work it wants to perform in the Demised Premises. The period of sixty (60) days is to be measured from the date that the Demised Premises are suitable for the performance of said work by Tenant, and Landlord has so notified Tenant thereof. If Tenant does not regard the Demised Premises to be suitable for the performance of its work on the receipt of such notice from Landlord, then it shall, within seven (7) business days after receipt thereof, notify Landlord specifying the particulars with respect to which the Demised Premises are not suitable for such work.
Such work performed by Tenant may be performed concurrently with the work to be performed by Landlord, and each party agrees not to interrupt, delay, or prevent the work to be performed by the other. Landlord shall provide temporary light, heat, and power during regular working hours from Monday through Friday for Tenant's use as required during the construction of the Building and finishing of the Demised Premises in such amounts and at such times as Landlord in its discretion may reasonably determine and shall also provide protection of the Demised Premises from the elements during the period such work is in process.
Section 2.06. Tenant Entry. Tenant shall have the right to enter upon
------------ ------------ the Demised Premises during the course of Landlord's construction for the purpose of inspection, making measurements, and doing whatever may be appropriate to prepare the Demised Premises for Tenant's occupation, provided such entry shall not substantially interfere with Landlord's work. No such entry shall be deemed an acceptance of possession or waiver of any rights of Tenant in the event of a failure on the part of Landlord to deliver possession at the time and in the condition herein required.
Section 2.07. Construction of the Demised Premises. Landlord shall
------------ ------------------------------------ apply for and obtain, at its sole cost and expense, all permits, licenses, approvals and certificates necessary for the construction of the Building and for the occupancy thereof by Tenant. Landlord represents that the Demised Premises shall be constructed, and when completed shall be in compliance with all local, state and federal laws, rules, orders, regulations and ordinances, the Plans and Specifications and the Declaration of Development Standards set forth as Exhibit E attached hereto.
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The Demised Premises shall be deemed to be substantially completed at such time as (i) Landlord shall certify in writing to Tenant that said Demised Premises have been completed in substantial accordance with the Plans and Specifications (subject only to minor punch list items to be mutually agreed to and identified by Tenant and Landlord during a joint inspection of the Demised Premises prior to substantial completion, the completion of which will not materially affect Tenant's use and occupancy of the Demised Premises), (ii) Landlord shall have obtained all necessary governmental approvals and inspections, that all systems are fully operational, and that sufficient utilities are available to service the Demised Premises and are connected to mains and all meters are set and activated, and (iii) a licensed architect or engineer in good standing in the locality where the Demised Premises are located shall certify in writing to Tenant pursuant to and in accordance with form AIA-G704 as to those same matters in (i) and (ii) immediately preceding. At such time as the last of the foregoing requirements shall have been satisfied, Landlord shall deliver possession of the Demised Premises to Tenant. The date upon which the Demised Premises are substantially complete is herein called the "Completion Date". All punch list items shall be completed by Landlord within thirty (30) days of the Completion Date, provided, however, if such punchlist items cannot be completed within such thirty (30) day period, Landlord shall not be in default hereunder if Landlord commences to complete such punchlist items within such thirty (30) day period and diligently pursues it to completion.
In the event the Demised Premises shall not be substantially completed and ready for Tenant's occupancy on or before September 15, 1995, Tenant shall receive a per diem abatement of Rent equal to four (4) days for each one (1) day of delay that the Demised Premises are not substantially completed.
Landlord hereby warrants for a period of one (1) year from the Completion Date, the Demised Premises against defects in materials and workmanship, routine maintenance and ordinary wear and tear excepted. Upon final completion of the Demised Premises, Landlord shall deliver to Tenant copies of all warranties and guarantees relating to the Demised Premises and any and all systems contained therein. Such warranties and guarantees shall include those relating to the roof, dock levelers and the heating, ventilating and air conditioning compressor(s). To the extent permitted by such warranties and guarantees, Landlord shall assign the same to Tenant. To the extent not so permitted, Landlord shall afford to Tenant the benefit of and right to enforce the same in Landlord's name.
ARTICLE III.
TERM OF LEASE
-------------
Section 3.01. Demised Term. The "Initial Term" of this Lease and
------------ ------------ Tenant's obligation to pay Rent (as hereinafter defined) shall commence on the Completion Date and shall end fifteen (15) years following the first day of the first Lease Year (as hereinafter defined).
Landlord and Tenant may enforce and Landlord and Tenant agree to be bound by the terms and conditions of this Lease from the date of execution hereof. Within thirty (30) days
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of the Completion Date the parties shall sign Exhibit D attached hereto setting
--------- forth the exact agreed Completion Date.
Section 3.02. Lease Year. Each "Lease Year" shall consist of twelve
------------ ---------- (12) months. The first "Lease Year" shall commence on the first day of the first calendar month following the Completion Date, unless the Completion Date is on the first day of a month in which case the first Lease Year shall commence on such Completion Date. Each subsequent Lease Year shall commence on the anniversary date of the first day of the first Lease Year.
Section 3.03. Holding Over. In the event Tenant remains in possession
------------ ------------ of the Demised Premises after the expiration of the Initial Term (unless an option to extend has been exercised in accordance with Section 3.04) and without the execution of a new lease, it shall be deemed to be occupying the Demised Premises as a tenant from month to month, subject to all conditions, provisions and obligations of this Lease insofar as the same are applicable to a month to month tenancy, with the exception of the Minimum Base Rent (as hereinafter defined) which shall be one and one-quarter (1 1/4) times the Minimum Base Rent (on a monthly basis) of the last preceding year for the first month and one and one-half (1 1/2) times the Minimum Base Rent (on a monthly basis) for each month thereafter. However, this provision only establishes Landlord's liquidated damages for any such holdover and this provision does not give the Tenant the right to so continue and Landlord may file an action for possession (but not damages) of the Demised Premises.
Section 3.04. Option to Extend the Term. Landlord grants to Tenant
------- ---- ------------------------- options to renew this Lease for six (6) separate but consecutive five (5) year terms. In order to exercise any such option the Tenant must be in full compliance with the terms of the Lease and must notify Landlord in writing at least one hundred eighty (180) days prior to the expiration of the then current term. The rates for the option periods are set forth on Schedule I attached
---------- hereto and made a part hereof. Tenant shall pay full Additional Rent (as described in Section 4.02) during any extension period. The Initial Term and any extended term may be referred to herein as the "Demised Term".
ARTICLE IV.
RENTAL
------
Section 4.01. Minimum Base Rent. Commencing on the Completion Date,
------------ ----------------- Tenant shall pay to Landlord throughout the Initial Term an annual rental (the "Minimum Base Rent") at the rate set forth in Schedule I attached hereto and
---------- made a part hereof.
Minimum Base Rent shall be paid monthly in advance in an amount equal to one-twelfth (1/12) of the annual Minimum Base Rent. In the event the Initial Term shall commence on a date other than the first day of a calendar month, Tenant shall within five (5) days of the Completion Date pay Minimum Base Rent from the Completion Date to the end of the calendar
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month in which the Completion Date occurs on a prorated basis. Thereafter, Minimum Base Rent shall be paid in advance on or before the first day of each calendar month.
Section 4.02. Additional Rent. During the Lease, the Tenant shall pay
------------ --------------- Landlord, as "Additional Rent", the cost paid by Landlord pursuant to a service contract which provides upkeep and maintenance of the Building, parking area, driveways, lawns and landscaping on the Demised Premises. Tenant shall have the right and opportunity to review and approve such service contract and the party providing such service, which approvals may be granted or withheld in Tenant's sole and absolute discretion. To the extent such service contract covers property and facilities in addition to the Building and Demised Premises, such costs thereunder shall be equitably pro-rated. No markup or fee shall be charged by Landlord in connection with such service contract. Landlord shall obtain at least three (3) bids for such service contract. In the event the lowest bidder is an entity or individual related or affiliated with Landlord, Tenant shall have the right to consent to such service contract, which consent may be granted or withheld in Tenant's sole and absolute discretion. In the event any such service contract is terminated or expires, Landlord shall immediately replace such service contract with a company and agreement approved by Tenant, and during any lapse of the service contract, Landlord shall provide the required services at a cost not to exceed that of the terminated, or expired contract. Such amounts shall be paid on a monthly basis within fifteen (15) days of receipt of an invoice therefor from Landlord. Minimum Base Rent and Additional Rent under this Section 4.02 are sometimes referred to herein together as "Rent". The service contract described in this Section 4.02 may be referred to hereinafter as the "Service Contract".
Section 4.03. Payments. Minimum Base Rent and Additional Rent payments
------------ -------- are to be made payable to Landlord and mailed to Landlord, c/o William Hardacre, 3718 Timberview, Anderson, Indiana 46011, unless or otherwise as designated by Landlord from time to time in a written instrument signed by Landlord delivered to Tenant.
Section 4.04. Past Due Payments. If (i) any monthly installment of
------------ ----------------- Minimum Base Rent remains unpaid five (5) business days after the date due, or (ii) if any other payment required under this Lease is overdue and thereafter not paid within ten (10) days of written notice from Landlord, and in the event of either (i) or (i ...
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