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A G R E E M E N T O F L E A S E
STATE ROAD PROPERTIES L.P.,
Landlord
MONACO COACH CORPORATION,
Tenant
March 4, 1996
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EXHIBIT 10.12
[TOWABLES]
AGREEMENT OF LEASE, dated this 4th day of March, 1996, between STATE ROAD
PROPERTIES L.P., a Delaware Limited Partnership having an office at 0000 Xxxx
Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx, 00000 ("LANDLORD") and MONACO COACH
CORPORATION, a Delaware corporation having an office at 0000 Xxxx Xxxxxx, X.X.
Xxx 0000, Xxxxxxx, Xxxxxxx 00000 ("TENANT").
ARTICLE 1
PREMISES; TERM
1.01. Subject to and in accordance with all of the covenants and
conditions of this Lease, Landlord hereby leases to Tenant and Tenant hereby
hires from Landlord the improvements (together with the heating, ventilating and
air conditioning systems located therein, the "BUILDING") more particularly
described on Exhibit A attached hereto together with the land on which the
Building is located, more particularly described on Exhibit B attached hereto
(the "LAND"; the Land and the Building, collectively, the "LEASED PROPERTY").
1.02. The Leased Property shall be leased for a term (together with any
Extension Term, the "TERM") commencing on March 4, 1996 (the "COMMENCEMENT
DATE") and expiring on the date (the "EXPIRATION DATE") immediately preceding
the first anniversary of the Commencement Date, unless the Term shall terminate
sooner pursuant to any of the terms of this Lease or pursuant to law and subject
to the following provisions of this Section 1.02. Tenant shall have two
successive options to extend the Expiration Date for one year (each such one
year extension period, an "EXTENSION TERM"). If the first such option is
exercised as provided herein, the Expiration Date shall be the date immediately
preceding the second anniversary of the Commencement Date. If the first such
option and the second such option are exercised as provided herein, the
Expiration Date shall be the date immediately preceding the third anniversary of
the Commencement Date. Any such extension option shall be exercised by written
notice to Landlord no later than 120 days prior to the Expiration Date as in
effect prior to the exercise of such option. If the first such option is not
exercised, Tenant shall have no rights with respect to the second such option.
During the last six months of any Extension Term, Tenant shall have the right to
terminate this Lease on thirty days' written notice to Landlord. Such
termination shall be effective as of the first day of the calendar month
beginning at least thirty days after the sending of such notice. On such
effective termination date, the Term shall end with the same effect as if such
effective termination date were the Expiration Date originally set forth herein.
ARTICLE 2
CONDITION OF LEASED PROPERTY
Tenant has inspected the Leased Property and is thoroughly acquainted with
its condition. As a condition of Landlord's agreement hereunder, Tenant agrees
to take possession of and accept each
portion of the Leased Property in its "as is" condition as at the date of this
Lease. Landlord shall have no obligation to do any work or perform any services
with respect to the Leased Property except as specifically set forth in this
Lease.
ARTICLE 3
RENT
3.01.(a) Tenant covenants and agrees to pay to Landlord a fixed minimum
rent ("FIXED RENT") during the Term of this Lease, equal to $168,062.04 per
annum (pro rated in the case of partial years), payable in equal monthly
installments of $14,005.17.
(b) Monthly installments of Fixed Rent shall be payable without
notice or demand in advance on the first day of each month during the Term. If
the date on which Fixed Rent first becomes payable hereunder occurs on a day
other than the first day of a calendar month, Fixed Rent for such calendar month
shall be pro-rated on a PER DIEM basis.
3.02. All adjustments of rent, costs, charges, expenses and reimbursements
and all other sums of money which Tenant is obligated to pay to Landlord
pursuant to this Lease shall be deemed additional rent ("ADDITIONAL RENT") which
Tenant covenants to pay when due. Except as otherwise specified in this Lease,
all Additional Rent shall be due from and payable by Tenant on the twentieth
(20th) day after Landlord has rendered its xxxx therefor. Landlord shall have
all the rights and remedies with respect to nonpayment of Additional Rent as are
provided herein for nonpayment of Fixed Rent.
3.03. All Fixed Rent and Additional Rent shall be payable by Tenant to
Landlord in lawful money of the United States of America at the office of
Landlord or at such other place as Landlord may designate from time to time
without offset, abatement counterclaim or deduction in lawful money of the
United States of America. All Fixed Rent and Additional Rent shall be paid by
either (i) a good and sufficient check drawn on a bank which is a member of a
nationally recognized clearing house association or (ii) a wire transfer of
immediately available funds to Landlord's account.
3.04. If any installment of Fixed Rent or any Additional Rent is not paid
when due Tenant shall also pay interest thereon (which interest shall be
immediately due and payable and shall constitute Additional Rent) at a rate (the
"DEFAULT RATE") equal to ten percent (10%) per annum, computed from the date
such payment was first due through the date paid. Notwithstanding the
imposition of such interest, Tenant shall be in default under this Lease if any
or all payments required to be made by Tenant are not made at the time herein
stipulated, and neither the demand for, nor collection by Landlord of, such
interest shall be construed as a curing of such default on the part of Tenant.
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ARTICLE 4
TAXES
4.01. Landlord shall pay all taxes, assessments and fees levied upon the
Leased Property or the rents collected therefrom, by any Governmental Authority
based upon the ownership, leasing, renting or operation of the Leased Property,
including all costs and expenses of protesting any such taxes, assessments or
fees ("TAXES").
ARTICLE 5
USE
5.01. Tenant shall use and occupy the Leased Property, for the purposes
shown on Exhibit C and for no other purpose and only as permitted by any
applicable law, rule or regulation or determination (a "LEGAL REQUIREMENT") of
the federal government, any state or other political subdivision thereof or any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government (any of the foregoing, a "GOVERNMENTAL
AUTHORITY").
5.02. Tenant shall not use, occupy or permit the Leased Property (or any
part thereof) to be used in any manner, or permit anything to be brought into or
kept within the Leased Property, which, in Landlord's judgment, would
(i) violate the Certificate of Occupancy issued for the Building, (ii) violate
the provisions of any Superior Lease or Superior Mortgage, (iii) cause injury or
damage to the Leased Property or any part thereof, (iv) interfere with or impair
the Building's systems and equipment or the proper and economical maintenance
and operation of the Leased Property, (v) change the character of the Building,
(vi) violate any Legal Requirement or any requirements of any insurance policy
covering or applicable to all or any part of the Leased Property or the use
thereof, all requirements of the issuer of any such policy and all orders,
rules, regulations, recommendations and other requirements of any organization
of fire underwriters or the Insurance Service Office or any other body
exercising the same or similar functions and having jurisdiction or cognizance
of all or any part of the Leased Property (collectively, "INSURANCE
REQUIREMENTS"), (vii) violate any applicable Environmental Law or (viii) or
cause the presence of any Hazardous Material on or under the Land or within the
Building in violation of any applicable Environmental Law.
5.03. If any license or permit from any Governmental Authority shall be
required for the proper and lawful occupancy of the Leased Property and if
failure to secure such license or permit would in any way adversely affect
Landlord or the Leased Property, then Tenant, at its sole expense, shall procure
and deliver a copy of such license or permit to Landlord and thereafter maintain
such license or permit. Tenant shall at all times comply with the provisions of
each such license and permit.
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ARTICLE 6
MAINTENANCE AND REPAIR
6.01. Tenant shall be solely responsible for the cost and performance of
all maintenance, service, repair and replacement of any portion of the Building,
it being understood and agreed that Landlord shall have no general duty (either
to Tenant or to third parties) to keep the Leased Property in good order and
repair and that Landlord shall have no obligation to perform or pay for the cost
of any such maintenance, service, repair or replacement except to the extent
expressly provided for in this Article 6. As long as this Lease is in full force
and effect Landlord shall promptly upon request by Tenant reimburse Tenant for
the cost of any repair or replacement of any heating, ventilating and
air-conditioning system or structural or other similar portion of the Building
or Building system that becomes unusable such that the operation of Tenant's
business for the purposes described in Section 5.01 shall be materially
impaired; PROVIDED, that written notice, given reasonably in advance considering
the nature of the repair, shall have been provided to Landlord, which notice
shall set forth, in reasonable detail, the nature and scope of the repair and
the estimated cost thereof and PROVIDED further, that Landlord will be obligated
to reimburse Tenant only to the extent reasonably necessary such that Tenant's
business for the purposes described in Section 5.01 shall no longer be so
materially impaired. Tenant agrees and acknowledges that Landlord's
reimbursement obligation as set forth above is being undertaken by Landlord as
an accommodation to Tenant due to the short-term nature of this Lease. Tenant
agrees and acknowledges that it is Tenant's duty and obligation to inspect the
Leased Property from time to time, to conduct day-to-day maintenance of the
Leased Property and to perform any repairs and replacements that are required
either for Tenant's operations or for the health and safety of persons present
at the Leased Property.
6.03 Except as expressly provided above in this Article 6, Landlord shall
have no obligations to repair or maintain the Leased Property or to provide
other services to Tenant or to pay for any of the costs thereof. Tenant
acknowledges that, except as otherwise set forth herein, Tenant is solely
responsible for cleaning, security, maintenance and operation of the Building's
systems and the costs thereof.
ARTICLE 7
UTILITY SERVICE
Tenant shall obtain and pay for the supply of electric current, water
supply, sewerage service and any other utility services to the Leased Property
by direct application to and arrangement with the respective public utility
companies servicing the Building. Tenant shall be responsible for direct
payment for all such utilities and shall abide by all rules and regulations
imposed by any such utility company.
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ARTICLE 8
SUBORDINATION; ESTOPPEL CERTIFICATE
8.01. This Lease and all rights of Tenant hereunder are subject and
subordinate to all mortgages which may now or hereafter affect Landlord's
interest in the Leased Property or any part thereof (all such mortgages,
collectively, the "SUPERIOR MORTGAGES"), and to all renewals, modifications,
consolidations, replacements and extensions of Superior Mortgages. This Section
shall be self-operative and no further instrument of subordination shall be
required .In confirmation of such subordination, Tenant agrees to promptly
execute and deliver at Tenant's sole cost and expense any instrument (in
recordable form, if requested) that Landlord or the holder of any Superior
Mortgage (a "SUPERIOR MORTGAGEE") may request to evidence such subordination.
8.02. If the interests of Landlord under this Lease are transferred by
reason of, or assigned in lieu of, foreclosure or other proceedings for
enforcement of any such Superior Mortgage then Tenant shall, at the option of
such purchaser or assignee, as the case may be, (x) attorn to such party and
perform for its benefit all the terms, covenants and conditions of this Lease on
Tenant's part to be performed with the same force and effect as if such party
were the landlord originally named in this Lease, or (y) enter into a new lease
with such party, as landlord, for the remaining Term and otherwise on the same
terms and conditions of this Lease except that such successor landlord shall not
be (i) liable for any previous act, omission or negligence of Landlord under
this Lease; (ii) subject to any counterclaim, defense or offset which
theretofore shall have accrued to Tenant against Landlord; (iii) bound by any
previous modification or amendment of this Lease or by any previous prepayment
of more than one month's rent, unless such modification, amendment or prepayment
shall have been approved in writing by the Superior Mortgagee through or by
reason of which such successor landlord shall have succeeded to the rights of
Landlord under this Lease; (iv) obligated to repair the Leased Property or any
part thereof in the event of total or substantial damage, beyond such repair as
can reasonably be accomplished from the net proceeds of insurance actually made
available to such successor landlord; (v) obligated to repair the Leased
Property or any part thereof in the event of partial condemnation, beyond such
repair as can reasonably be accomplished from the net proceeds of any award
actually made available to such successor landlord, as consequential damages
allocable to the part of the Leased Property not taken; nor (vi) obligated to
perform any work to prepare or finish the Leased Property for occupancy by
Tenant. Nothing contained in this Section shall be construed to impair any
right otherwise exercisable by any such owner, holder or lessee. Landlord shall
use reasonable efforts to obtain from the holder of any Superior Mortgage and
the landlord under any Superior Lease a written recognition agreement providing
that in the event of the foreclosure of such Superior Mortgage or termination of
such Superior Lease, so long as no default by Tenant shall have occurred and be
continuing hereunder, Tenant's rights of occupancy shall not be disturbed and
Tenant shall receive all of its rights provided for under this Lease.
8.03. If any act or omission by Landlord would give Tenant the right,
immediately or after lapse of time, to cancel or terminate this Lease or to
claim a partial or total eviction, abatement of rent, setoff or counterclaim,
Tenant will not exercise any such right until (i) it has given written notice of
such act or omission to each Superior Mortgagee whose name and address shall
have previously been furnished to Tenant, by delivering notice of such act or
omission addressed to each such party at
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its last address so furnished, (ii) Landlord shall have failed to cure the same
within the time limits set forth in this Lease, and (iii) following the giving
of such notice, no Superior Mortgagee shall have remedied such act or omission
(x) in the case of an act or omission which is capable of being remedied without
possession of the Building, within the cure period available to Landlord under
this Lease plus sixty (60) days and (y) in the case of any act or omission which
is incapable of being remedied without possession of the Building, within sixty
(60) days following the date on which possession is obtained, PROVIDED a
Superior Mortgagee has promptly commenced action to obtain possession and shall
diligently pursue such action to completion and PROVIDED FURTHER that such
Superior Mortgagee shall, with reasonable diligence, give Tenant notice of its
intention to, and commence and continue to, remedy such act or omission or cause
the same to be remedied.
8.04. If any Superior Mortgagee or prospective Superior Mortgagee shall
request modifications of this Lease as a condition to the provision, continuance
or renewal of any such financing, Tenant will not unreasonably withhold, delay
or defer its consent thereto, provided that such modifications do not materially
adversely increase the obligations of Tenant hereunder or materially diminish
Tenant's rights under this Lease.
8.05. Tenant agrees, at any time and from time to time, upon not less than
fifteen (15) days' prior notice from Landlord to execute, acknowledge and
deliver to Landlord or such other person that Landlord may designate a written
certification stating (a) 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), (b) that Tenant has accepted
possession of the Leased Property, (c) the dates to which the Fixed Rent and
Additional Rent have been paid, (d) whether or not there exists any default on
the part of Landlord under this Lease, and, if so, specifying each such default
and (e) such further information with respect to this Lease or the Leased
Property that Landlord may reasonably request. Landlord agrees, at any time and
from time to time, upon not less than fifteen (15) days' prior notice from
Tenant to execute, acknowledge and deliver to Tenant a written certification
stating (a) 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), (b) the dates to which the Fixed Rent
and Additional Rent have been paid, (c) whether or not there exists any default
on the part of Tenant under this Lease, and, if so, specifying each such default
and (e) such further information with respect to this Lease that Tenant may
reasonably request.
ARTICLE 9
ASSIGNMENT AND SUBLETTING PROHIBITED
9.01. Tenant, its legal representatives and successors in interest, shall
not by operation of law or otherwise, assign (in whole or in part), mortgage,
pledge, encumber or otherwise transfer this Lease or any part hereof or any
interest of Tenant herein or in the Leased Property by reason hereof, or sublet
the Leased Property, without Landlord's prior written consent. No assignment of
this Lease shall be effective unless the assignee shall execute, acknowledge and
deliver to Landlord an agreement, in form satisfactory to Landlord, whereby the
assignee assumes all obligations of Tenant
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under this Lease, and agrees that the provisions of this Article 9 shall
continue to be binding upon it in respect of all future assignments and deemed
assignments of this Lease. No assignment of this Lease shall release the
assignor from its continuing obligations to Landlord under this Lease and Tenant
and any subsequent assignor shall continue to remain jointly and severally
liable (as primary obligor) for all Tenant's obligations hereunder.
9.02. The consent by Landlord to any assignment or subletting shall not be
a waiver of or constitute a diminution of Landlord's right to withhold its
consent to any other assignment or subletting and shall not be construed to
relieve Tenant from obtaining Landlord's express written consent to any other or
further assignment or subletting.
ARTICLE 10
ENTRY; RIGHT TO CHANGE THE BUILDING
10.01. Landlord and Landlord's agents or designees shall have the right to
enter the Leased Property, during Business Hours upon notice given reasonably in
advance to Tenant, and in case of emergency without notice and at all other
times, without incurring any liability to Tenant therefor, for the following
purposes: (a) to perform any obligations of Landlord or to exercise any right
reserved to Landlord in this Lease, (b) to exhibit the Leased Property and any
parts thereof to any prospective purchaser, or to any present or prospective
mortgagee or ground lessor, or to the authorized representative of any
Governmental Authority or organization of fire underwriters, or, during the last
twelve months of the Term to any prospective tenant of the Leased Property (or
any part thereof), (c) to make or cause to be made such repairs, alterations or
improvements, or to permit electrical or other utility meters to be read, or to
perform such maintenance, including the maintenance of Building equipment, as
Landlord may deem necessary or desirable or as may be required pursuant to any
Legal Requirements or Insurance Requirements, and (d) to take into and store
upon the Leased Property all materials that may be required in connection with
any such repairs, alterations, improvements or maintenance. The taking of
materials into, and storing of such materials at the Leased Property in
accordance with the provisions of this Section 10.01 shall not constitute an
eviction of Tenant in whole or in part and the Fixed Rent and Additional Rent
reserved herein shall not xxxxx while such repairs or alterations are being
made. In connection with any such entry by Landlord and Landlord's agents, all
reasonable security measures of Tenant shall be complied with and all reasonable
efforts shall be made so as to minimize any disruption of Tenant's operations.
ARTICLE 11
COMPLIANCE WITH LAWS
11.01. Tenant shall, at its expense, comply with all Legal Requirements
and Insurance Requirements. Without limiting the generality of the foregoing,
Tenant shall be obligated to reimburse Landlord for the cost of any alteration
of the Leased Property which shall be (a) necessitated by a condition which has
been created by Tenant, (b) attributable to the use or manner of use to which
Tenant puts the Leased Property, (c) required by reason of a breach of Tenant's
obligations hereunder, or (d) occasioned, in whole or in part, by any act,
omission or
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negligence of Tenant or any person claiming by, through or under Tenant, or any
of their assignees, subtenants, employees, agents, contractors, invitees or
licensees. Tenant shall pay all costs, expenses, fines, penalties and damages
which may be imposed upon Landlord or any Superior Mortgagee by reason of or
arising out of Tenant's failure fully and promptly to comply with the provisions
of this Section.
11.02. Notwithstanding anything to the contrary contained elsewhere in
this Lease and without limiting any other provision of this Lease by
implication, if any Governmental Authority promulgating or enforcing any Legal
Requirements or the Insurance Service Office, organization of fire underwriters
or any other body exercising the same or similar functions and having
jurisdiction or cognizance of all or any part of the Leased Property requires
that any changes, modifications, alterations or additional sprinkler heads or
other equipment be made or supplied in the Building sprinkler system or any
other portion of the Leased Property, Landlord shall make all such changes,
modifications, alterations and additions, the cost thereof shall be shared
equally by Landlord and Tenant, and Tenant shall pay its share of the cost
thereof to Landlord as Additional Rent within 5 Business Days after demand.
11.03. If Tenant receives written notice of any violation of any Legal
Requirement or Insurance Requirement, it shall give prompt notice thereof to
Landlord.
ARTICLE 12
HAZARDOUS MATERIALS
12.01. Without limiting the generality of Article 11, Tenant shall:
(a) comply with all applicable Environmental Laws and obtain and
comply with and maintain any and all licenses, approvals, registrations or
permits required by applicable Environmental Laws;
(b) refrain from storing, disposing of or releasing Hazardous
Materials in the Building or on the Land in violation of Environmental Laws;
(c) to the extent due to the release, emission or disposal of
Hazardous materials in or about the Leased Property during the Term hereof by
any action or inaction of Tenant or Tenant's employees, agents, licensees or
invitees, conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all orders and directives of all
Governmental Authorities respecting Environmental Laws, except to the extent
that the same are being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not be reasonably expected to have a
material adverse effect on the business, operations, property, condition
(financial or otherwise) or prospects of the Tenant;
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(d) promptly notify Landlord in writing and in reasonable detail of
(i) any release or discharge of any Hazardous material by Tenant or any
affiliate thereof required to be reported under Environmental Laws to any
Governmental Authority; (ii) any condition, circumstance, occurrence or event
that could result in a material liability of Landlord, Tenant or any of their
respective affiliates under Environmental Laws or could result in the imposition
of any lien or other restriction on the title, ownership or transferability of
any of the Leased Property; and (iii) any proposed action to be taken by or on
behalf of the Tenant or any affiliate thereof that could subject the Tenant or
any affiliate thereof or the Leased Property or any portion thereof to any
material additional or different requirements or liabilities under any
Environmental Law; and
(e) defend, indemnify and hold harmless Landlord and its employees,
agents, officers, directors, successors and assigns from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs, and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to any violation of, noncompliance with
or liability under any Environmental Laws or any orders, requirements or demands
of Governmental Authority related thereto (including, without limitation,
attorneys' and consultants' fees, investigation and laboratory fees, response
costs, court costs and litigation expenses) by Tenant or Tenant's employees,
agents, licensees or invitees during the Term hereof, except to the extent that
any of the foregoing arise out of the negligence or willful misconduct of the
party seeking indemnification therefor. This indemnity shall continue in full
force and effect regardless of the termination of this Lease.
12.02. For purposes of this Lease, the following terms shall have the
following meanings:
"ENVIRONMENTAL LAWS" shall mean any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority, any and all Legal
Requirements and any and all common law requirements, rules and bases of
liability regulating, relating to or imposing liability or standards of conduct
concerning pollution or protection of human health or the environment, as now or
may at any time hereafter be in effect.
"HAZARDOUS MATERIALS" shall mean any hazardous or toxic substances,
materials or wastes, defined, listed, classified or regulated as such in or
under any Environmental Laws, including, without limitation, asbestos, petroleum
or petroleum products (including gasoline, crude oil or any fraction thereof),
polychlorinated biphenyls, and urea-formaldehyde insulation.
ARTICLE 13
ALTERATIONS PROHIBITED
Tenant shall make no alterations, modifications, replacements or other
changes to the Leased Property without Landlord's prior written consent,
provided, that Tenant may construct, at Tenant's sole cost and expense,
nonstructural alterations, additions and improvements to the Leased Property
without Landlord's prior written consent so long as the aggregate cost thereof
shall not exceed $50,000.00.
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ARTICLE 14
LANDLORD'S RIGHTS TO PERFORM
TENANT'S OBLIGATIONS
If Tenant shall default in the performance of any term or covenant on its
part to be performed under this Lease, Landlord, without being under any
obligation to do so and without thereby waiving such default, may upon the
expiration of the period allowed for the cure of such default, if any, provided
by this Lease (or with or without such expiration in case of emergency) remedy
such default. Tenant shall reimburse Landlord on demand for all costs and
expenses incurred by Landlord in the performance of Tenant's obligations
hereunder.
ARTICLE 15
LIABILITY OF LANDLORD; INDEMNIFICATION
15.01. Landlord and Landlord's agents have made no representations or
promises with respect to the Building, the Land or the Leased Property except as
herein expressly set forth. No rights, easements or licenses are acquired by
Tenant by implication or otherwise, except as expressly set forth in the
provisions of this Lease.
15.02.(a) Neither Landlord, any Superior Mortgagee nor any of their
respective employees, directors, officers and agents shall be liable for any
injury or damage to persons or property unless caused by or solely due to the
proven gross negligence or willful misconduct of Landlord, its agents or
employees. Landlord, its employees, directors, officers and agents shall in no
event be liable for any such damage, or for any injury, damage to or loss (by
theft or otherwise) of any property of Tenant, caused by other tenants or
persons in the Building.
(b) In no event shall Landlord be liable for incidental,
indirect, consequential, or special damages arising out of or in connection with
this Lease, including, without limitation, lost profits.
15.03. During the existence of any Superior Lease, the term "Landlord"
wherever used in this Lease shall be limited to mean and include only the owner
or owners at the time in question of the lessee's interest in the Land and the
Building pursuant to any such Superior Lease, so that in the event of any sale,
assignment or transfer, by operation of law or otherwise, of Landlord's interest
in the Land and the Building, such seller, assignor or transferor thereupon
automatically shall be released and discharged from all covenants, conditions
and agreements of Landlord hereunder; but, subject to the provisions of
Section 8.02 above, such covenants, conditions and agreements shall be deemed to
have been assumed by and be binding upon each new owner, assignee or transferee
for the time being of Landlord's interest in the Land and the Building, until
sold, assigned or transferred.
15.04.(a) Tenant shall indemnify and save harmless Landlord and its
agents and all Superior Mortgagees and their respective officers, directors,
agents and employees (collectively, the
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"INDEMNIFIED PARTIES" and each an "INDEMNIFIED PARTY") against and from (a) any
and all claims, actions and proceedings (i) arising from (x) the use and
occupancy of the Leased Property, or (y) any work or thing whatsoever done, or
any condition created by or on behalf of Tenant (other than by Landlord for
Landlord's account) in or about the Leased Property during the Term of this
Lease or during the period of time, if any, prior to the Commencement Date that
Tenant may have been given access to the Leased Property, or (ii) arising from
any negligent or otherwise wrongful act or omission of Tenant or any of its
subtenants or licensees or invitees or its or their employees, agents or
contractors, or (iii) arising from any breach or failure to observe any term,
covenant or condition of this Lease by Tenant or its agents or anyone claiming
by or through Tenant, and (b) all costs, expenses and liabilities incurred in or
in connection with each such claim, action or proceeding brought thereon
(including reasonable attorneys' fees and disbursements), except to the extent
that any of the foregoing arises out of the negligence or willful misconduct of
Landlord, its agents or employees or any breach of this Lease by Landlord or its
agents or anyone claiming by or through Landlord. In case any action or
proceeding be brought against any Indemnified Party by reason of any such claim,
Tenant, upon notice from Landlord or such Indemnified Party (if other than
Landlord), shall cause such action or proceeding to be defended at Tenant's
expense by counsel reasonably acceptable to Landlord.
(b) Landlord shall indemnify and save harmless Tenant and its
officers, directors, agents and employees (collectively, the "TENANT INDEMNIFIED
PARTIES" and each a "TENANT INDEMNIFIED PARTY") against and from (a) any and all
claims, actions and proceedings (i) arising from any negligent or otherwise
wrongful act or omission of Landlord or any of its licensees or invitees,
employees, agents or contractors, or (ii) arising from any breach or failure to
observe any term, covenant or condition of this Lease by Landlord or its agents
or anyone claiming by or through Landlord, and (b) all costs, expenses and
liabilities incurred in or in connection with each such claim, action or
proceeding brought thereon (including reasonable attorneys' fees and
disbursements), except to the extent that any of the foregoing arises out of the
negligence or willful misconduct of Tenant, its agents or employees or any
breach of this Lease by Tenant or its agents or anyone claiming by or through
Tenant. In case any action or proceeding be brought against any Tenant
Indemnified Party by reason of any such claim, Landlord, upon notice from Tenant
or such Tenant Indemnified Party (if other than Tenant), shall cause such action
or proceeding to be defended at Landlord's expense by counsel reasonably
acceptable to Tenant.
ARTICLE 16
INSURANCE
16.01.(a) Tenant shall, at its sole cost and expense, obtain and maintain
in full force and effect during the Term of this Lease, including any renewal
thereof, comprehensive general liability insurance protecting against personal
injury and property damage. Any basic policy and any umbrella policy evidencing
Tenant's liability insurance shall be written:
(i) in an aggregate amount of not less than $5,000,000 combined
single limit per occurrence;
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(ii) with contractual liability coverage for Tenant's
liability (including indemnifications) under this Lease;
(iii) with an endorsement naming Landlord and, if required,
Landlord's agents, all Superior Mortgagees as additional insured; and
(iv) with an endorsement naming Tenant's employees as
insureds.
(b) Landlord shall, at its sole cost and expense, obtain and maintain
in full force and effect during the Term of this Lease, including any renewal
thereof, property insurance protecting against fire and other casualty covering
all of the Leased Property. Any policy evidencing Landlord's property insurance
shall be written with endorsements for extended coverage, vandalism and
malicious mischief and insuring full replacement value.
16.02. Tenant's liability insurance and Landlord's property insurance
shall be written by insurers of recognized financial standing which are
authorized to do an insurance business in the State of Indiana. Such insurance
may be evidenced by blanket insurance policies of Tenant or Landlord, as the
case may be, provided property insurance policies shall specifically allocate to
the Leased Property amounts of insurance adequate to meet the requirements of
Section 16.01(b) above. Tenant may not self-insure without Landlord's prior
written consent. Landlord or Tenant, as the case may be, shall cause to be
included in each policy a provision to the effect that the insurance evidenced
thereby shall be noncancellable except upon at least 60 days' prior written
notice to Landlord or Tenant, as the case may be. Tenant's liability insurance
shall not provide for deductibles in excess of $100,000. Landlord's property
insurance shall not provide for deductibles in excess of $500,000.
16.03. Landlord and Tenant each hereby releases and waives all right of
recovery against the other, and its respective agents, employees, partners,
officers, directors, shareholders and anyone claiming through or under each of
them by way of subrogation or otherwise for any loss or damage caused by fire or
casualty, whether or not such fire or casualty shall have been caused by the
fault or negligence of the other party. Landlord and Tenant shall each secure
an appropriate clause in, or an endorsement upon, each fire and extended
coverage policy obtained by it covering the Building, the Leased Property or the
Fixtures or the Special Tenant Improvements, as applicable, located therein
pursuant to which their respective insurance companies waive subrogation to the
full extent of such party's release of the other pursuant to the immediately
preceding sentence. If such waiver of subrogation shall be procurable only by
payment of an additional premium, the party in whose favor such waiver of
subrogation is obtained shall bear the cost thereof.
16.04. Tenant shall not do or permit to be done any act or thing in or
upon the Land or in the Building which will invalidate or be in conflict with
the terms of any insurance policies covering the Building and the fixtures and
property therein. Tenant shall comply with all rules, orders, regulations or
requirements of the any organization of fire underwriters or any other similar
body having jurisdiction, and shall not do or permit anything to be done in or
upon the Land or the Building or bring or keep anything therein or use the
Leased Property in a manner which would increase the rate of insurance upon the
Leased Property over the rate in effect at the commencement of the Term of
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this Lease or which would result in the cancellation of any policy of such
insurance or the assertion of any defense by the insurer to any claim under any
policy of insurance maintained by or for the benefit of Landlord.
ARTICLE 17
DAMAGE BY FIRE OR OTHER CAUSE
17.01. If the Leased Property shall be damaged by fire or other cause,
Tenant shall promptly notify Landlord thereof. If the damage is of such an
extent as to interfere materially with Tenant's ability to conduct its
operations at the Building, Landlord shall, at Tenant's option as determined by
Tenant by written notice to Landlord given not more than 60 days following such
fire or other casualty, either (a) repair and restore any damaged portions of
the Leased Property to a condition suitable for Tenant's use, as promptly as
reasonably practicable, to the extent of and subject to receipt of insurance
proceeds from Landlord's insurer (plus an amount equal to the amount of any
applicable deductible) sufficient to pay the cost of such repair and
restoration, it being agreed that Landlord's obligation to so repair and restore
is expressly conditioned upon the receipt and sufficiency of such insurance
proceeds (plus an amount equal to any applicable deductible) and to the extent
such insurance proceeds are unavailable or insufficient, Tenant shall be solely
responsible for the cost (or the balance of the cost, as the case may be) to so
repair and restore, or (b) terminate this Lease by written notice to Tenant sent
not later than 60 days following such fire or other casualty, in which event the
Term shall expire upon the thirtieth day following such notice and Tenant shall
vacate the Leased Property and surrender the same to Landlord on or before the
date this Lease shall so terminate. Fixed Rent and Additional Rent shall be
abated for the portion of the Leased Property which is not usable by Tenant in
the ordinary conduct of its business from the date of such damage or destruction
until the date on which the Leased Property become usable by Tenant for the
ordinary conduct of its business. There shall be no abatement of Fixed Rent or
Additional Rent for any period of time for that portion of the Leased Property
which Tenant continues to occupy or has reoccupied. If there shall be any delay
in the process of restoration and repair due to any act or omission on the part
of Tenant, Fixed Rent and Additional Rent shall commence on the date the Leased
Property would have otherwise been completed but for such delay, as shall be
determined by Landlord in its judgment reasonably exercised. No penalty or
damage shall accrue for delays which may arise by reason of adjustment of
insurance on the part of Landlord, or for delays on account of Force Majeure.
Upon termination of this Lease in accordance with this Section 17.01, Tenant's
liability for rent shall cease, subject, however, to any claim by Landlord for
Fixed Rent and/or Additional Rent accruing on or before such date.
17.02. No damage, compensation or claims shall be payable by Landlord for
inconvenience, loss of business or annoyance to Tenant arising from any damage
by fire or other casualty or from any repair or restoration of any portion of
the Leased Property or of the Building but Landlord shall use reasonable efforts
to effect promptly any such repairs as may be undertaken by Landlord pursuant to
this Lease.
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17.03. Notwithstanding the provisions of Section 17.01, if, by reason of
some action or inaction on the part of Tenant or any of its employees, agents,
licensees or contractors, Landlord, or any Superior Mortgagee shall be unable to
collect all of the insurance proceeds (including rent insurance proceeds)
applicable to damage or destruction of the Leased Property by fire or other
casualty, then, without prejudice to any other remedy which may be available
against Tenant, the abatement of rent provided for in said Section 17.01 shall
not be effective to the extent of the uncollected insurance proceeds.
ARTICLE 18
CONDEMNATION
18.01. In the event that the whole or any portion of the Leased Property
the loss of which would materially interfere with Tenant's customary operations
at the Leased Property shall be condemned or taken in any manner for any public
or quasi-public use, this Lease and the Term and estate hereby granted shall
forthwith cease and terminate as of the date of the vesting of title in the
condemning authority. In the event of any such termination, this Lease and the
Term and estate hereby granted shall expire as of the date of such termination
with the same effect as if that were the date hereinbefore set for the
expiration of the Term, and the rent hereunder shall be apportioned as of such
date. In the event that only a part of the Leased Property the loss of which
does not materially interfere with Tenant's customary operations at the Leased
Property shall be so condemned or taken, then this Lease shall be and remain
unaffected by such condemnation or taking, except that, effective as of the date
of the vesting of title in the condemning authority, the Fixed Rent and
Additional Rent hereunder for such part shall be equitably abated and this Lease
shall continue as to such part not so taken.
18.02. In the event of any condemnation or taking hereinabove mentioned of
all or a part of the Leased Property, Landlord shall be entitled to receive the
entire award in the condemnation proceeding, including any award made for the
value of this Lease and for any unexpired portion of the Term, and Tenant hereby
expressly assigns to Landlord any and all right, title and interest of Tenant
now or hereafter arising in or to any such award or any part thereof and Tenant
shall not be entitled to receive any part of such award. Tenant shall have no
claim for the value of any unexpired term of this Lease. Tenant may separately
prosecute any claim it may have for Tenant's trade fixtures and its moving
expenses (if they are compensable) provided such prosecution does not interfere
with or reduce Landlord's claim.
ARTICLE 19
BANKRUPTCY
19.01. If a trustee in bankruptcy shall assume this Lease and shall
propose to assign the same pursuant to the provisions of the Bankruptcy Code,
11 U.S.C. 101 et seq. (the "BANKRUPTCY CODE") to any person or entity who shall
have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to such trustee notice of such proposed assignment, setting forth
(i) the name and
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address of such person, (ii) all of the terms and conditions of such offer, and
(iii) the adequate assurance to be provided Landlord to assure such person's
future performance under this Lease, including, without limitation, the
assurance referred to in section 365(b)(3) of the Bankruptcy Code, shall be
given to Landlord by such trustee no later than twenty (20) days after receipt
by such trustee, but in any event no later than ten (10) days prior to the date
that such trustee shall make application to a court of competent jurisdiction
for authority and approval to enter into such assignment and assumption, and
Landlord shall thereupon have the prior right and option, to be exercised by
notice to Tenant given at any time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same terms and
conditions and for the same consideration, if any, as the bona fide offer made
by such person, less any brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment of this Lease.
19.02. Any person or entity to which this Lease is assigned pursuant to
the provisions of the Bankruptcy Code shall be deemed without further act or
deed to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall, upon demand,
execute and deliver to Landlord an instrument in recordable form confirming such
assumption.
ARTICLE 20
DEFAULT
20.01. (a) If (i) Tenant shall fail to pay Fixed Rent or Additional Rent
when due and such default continues for a period of five (5) days after written
notice thereof from Landlord; or (ii) Tenant shall default in fulfilling any of
the covenants of this Lease, other than the covenants for the payment of Fixed
Rent and Additional Rent, and such default continues for a period of twenty (20)
days after written notice from Landlord to Tenant specifying the nature of said
default, except that if the said default shall be of such a nature that the same
cannot, with reasonable diligence, be completely cured or remedied within said
twenty (20) days then Tenant shall not be deemed in default if Tenant diligently
commences curing such default within such twenty (20) day period, and shall
thereafter with diligence and in good faith proceed to remedy or cure such
default, but, in any event, Tenant shall complete such cure prior to the date on
which Landlord (A) would be subject to prosecution for a crime or (B) would be
in default of any Superior Mortgage or Superior Lease or (iii) any event shall
occur or any contingency shall arise whereby this Lease or the estate hereby
granted or the unexpired balance of the Term would, by operation of law or
otherwise, devolve upon or pass to any person other than Tenant, then in any of
the events described in the foregoing clauses (i), (ii) or (iii), Landlord may
serve a written three (3) day notice of cancellation of this Lease upon Tenant,
and upon the expiration of said three (3) days, this Lease and the Term
hereunder shall end and expire as fully and completely as if the date of
expiration of such three (3) day period were the Expiration Date of this Lease,
and Tenant shall then quit and surrender the Leased Property to Landlord but
Tenant shall remain liable as hereinafter provided.
(b) In the event of a breach or threatened breach by Tenant of
any of the covenants or provisions hereof, Landlord shall also have the right of
injunction.
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20.02. If the three (3) day notice provided for in Section 20.01 shall
have been given:
(a) Landlord and Landlord's agents may, without notice, re-enter
the Leased Property or any part thereof, and by summary proceedings or
otherwise, dispossess Tenant or the legal representative of Tenant or other
occupant of the Leased Property and remove their effects without liability for
damage thereto and hold the Leased Property as if this Lease had not been made
but Tenant shall remain liable hereunder as hereinafter provided; and
(b) Landlord may, at its option, relet the whole or any part or
parts of the Leased Property from time to time, either in the name of Landlord
or otherwise, to such tenant or tenants, for such term or terms ending before,
on or after the Expiration Date, at such rental or rentals and upon such other
conditions, which may include concessions and free rent periods, as Landlord in
its sole discretion may determine. Landlord shall have no obligation to relet
the Leased Property or any part thereof and shall in no event be liable for
refusal or failure to relet the Leased Property or any part thereof, or, in the
event of any such reletting, for refusal or failure to collect any rent upon any
such reletting, and no such refusal or failure shall operate to relieve Tenant
of any liability under this Lease or otherwise to affect any such liability.
Landlord, at Landlord's option, may make such repairs, improvements,
alterations, additions, decorations and other physical changes in and to the
Leased Property as Landlord, in its sole discretion, considers advisable or
necessary in connection with any such reletting or proposed reletting, without
relieving Tenant of any liability under this Lease or otherwise affecting any
such liability.
20.03. If this Lease shall terminate or if Landlord shall re-enter the
Leased Property as provided in this Article:
(a) Tenant shall pay to Landlord all rent to the date upon which
this Lease shall have been terminated or to the date of re-entry upon the Leased
Property by Landlord, as the case may be;
(b) Landlord shall be entitled to retain all monies, if any,
paid by Tenant to Landlord, whether as advance rent, security or otherwise, but
such monies shall be credited by Landlord against any rent due at the time of
such termination or re-entry or, at Landlord's option, against any damages
payable by Tenant;
(c) Tenant shall be liable for and shall pay to Landlord, as
damages, any deficiency between the rent payable hereunder for the period which
otherwise would have constituted the unexpired portion of the Term (conclusively
presuming the Additional Rent to be the same as was payable for the year
immediately preceding such termination or re-entry) and the net amount, if any,
of rents collected under any reletting effected pursuant to the provisions of
Section 20.02(b) for any part of such period (first deducting from the rents
collected under any such reletting all of Landlord's expenses in connection with
the termination of this Lease or Landlord's re-entry upon the Leased Property
and in connection with such reletting including all repossession costs,
brokerage commissions, legal expenses, alteration costs and other expenses of
preparing the Leased Property for such reletting);
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(d) Any deficiency in accordance with subsection (c) above shall be
paid in monthly installments by Tenant on the days specified in this Lease for
the payment of installments of Fixed Rent. Landlord shall be entitled to
recover from Tenant each monthly deficiency as the same shall arise and no suit
to collect the amount of the deficiency for any month shall prejudice Landlord's
right to collect the deficiency for any prior or subsequent month by a similar
proceeding. Alternatively, suit or suits for the recovery of such deficiencies
may be brought by Landlord from time to time at its election;
(e) Whether or not Landlord shall have collected any monthly
deficiencies as aforesaid, Landlord shall be entitled to recover from Tenant,
and Tenant shall pay Landlord, on demand, as and for liquidated and agreed final
damages and not as a penalty, a sum equal to the amount by which the Fixed Rent
and Additional Rent payable hereunder for the period to the Expiration Date from
the latest of the date of termination of this Lease, the date of re-entry or the
date through which monthly deficiencies shall have been paid in full
(conclusively presuming the Additional Rent for each year thereof to be the same
as that which was payable for the year immediately preceding such termination or
re-entry) exceeds the then fair and reasonable rental value of the Leased
Property for the same period, both discounted at the rate of 7% per annum to
present worth.
(f) In no event shall Tenant be entitled (i) to receive any excess of
any rent under subdivision (c) over the sums payable by Tenant to Landlord
hereunder or (ii) in any suit for the collection of damages pursuant to this
Section 20.03, to a credit in respect of any rent from a reletting except to the
extent that such rent is actually received by Landlord prior to the commencement
of such suit. If the Leased Property or any part thereof should be relet in
combination with other space, then proper apportionment on a square foot area
basis shall be made of the rent received from such reletting and the expenses of
reletting.
(g) If this Lease shall terminate or if the Landlord shall re-enter
the Leased Property:
(1) The Leased Property shall be, upon such earlier termination
or re-entry, in the same condition as that in which Tenant has agreed to
surrender them to Landlord on the Expiration Date;
(2) Tenant, on or before the occurrence of any default
hereunder, shall have performed every covenant contained in this Lease for the
making of any improvement or for repairing any part of the Leased Property and
(3) For the breach of either subdivision (a) or (b) of this
subsection, or both, Landlord shall be entitled immediately, without notice or
other action by Landlord, to recover, and Tenant shall pay, as and for agreed
damages therefor, the then cost of performing such covenants, plus interest
thereon at the Default Rate for the period from the date of the occurrence of
any default to the date of payment.
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(4) Each and every covenant contained in this subsection (g)
shall be deemed separate and independent and not dependent on any other term of
this Lease for the use and occupation of the Leased Property by Tenant, and the
performance of any such term shall not be considered to be rent or other payment
for the use of said Leased Property. It is understood that the consideration
for the covenants in this subsection (g) is the making of this Lease, and the
damages for failure to perform the same shall be in addition to and separate and
independent of the damages accruing by reason of default in observing any other
term of this Lease.
20.04. The remedies and rights provided for in this Lease are cumulative.
Mention in this Lease of any particular remedy shall not preclude Landlord from
pursuing any other remedy at law or equity.
20.05. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws.
20.06. The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease,
shall not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and effect of an original violation. The
receipt or acceptance by Landlord of rent with knowledge of the breach of any
covenant of this Lease shall not be deemed a waiver of such breach. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord. No endorsement or statement on
any check or any letter accompanying any check or payment as rent shall be
deemed an accord and satisfaction, and Landlord may 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.
20.07. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease. Tenant shall
not interpose any counterclaim in any summary proceeding commenced by Landlord.
ARTICLE 21
QUIET ENJOYMENT
Landlord covenants and agrees that, as long as Tenant shall comply with
all obligations on its part to be performed hereunder, Tenant may peaceably
and quietly enjoy the Leased Property, subject to the terms and conditions of
this Lease.
ARTICLE 22
SURRENDER OF PREMISES
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22.01. Upon the expiration or sooner termination of this Lease or upon
re-entry by Landlord upon the Leased Property, Tenant shall at Tenant's expense
quit and surrender the Leased Property and deliver the same to Landlord in good
order, condition and repair, ordinary wear and tear and damage by fire or other
casualty excepted. Tenant shall pay to Landlord any insurance proceeds received
by Tenant attributable to damage to the Leased Property to the extent such
proceeds have not been used to restore such items in accordance with this Lease.
22.02. Any items which shall remain in the Leased Property after the
Expiration Date, or after an earlier termination date, may, at the option of
Landlord, be deemed to have been abandoned, and in such case such items may be
retained by Landlord as its property or disposed of by Landlord, without
accountability, in such manner as Landlord shall determine at Tenant's expense.
Tenant's obligation to reimburse Landlord for its costs so incurred shall
survive expiration or termination of this Lease.
22.03. If Tenant remains in possession of the Leased Property after the
termination of this Lease without the execution of a new lease, the parties
recognize and agree that the damage to Landlord will be substantial, will exceed
the amount of monthly Fixed Rent and Additional Rent theretofore payable
hereunder and will be impossible to measure accurately. Tenant, therefore, at
the option of Landlord, shall be deemed to be occupying the Leased Property as a
tenant from month to month, at a monthly rental equal to two and one-half times
the Fixed Rent and Additional Rent payable during the last month of the Term,
subject to all of the other terms of this Lease insofar as the same are
applicable to a month-to-month tenancy. Further, Tenant hereby indemnifies
Landlord against liability resulting from delay by Tenant in so surrendering the
Leased Property, including (a) any claims made by any purchaser or prospective
purchaser, succeeding tenant or prospective tenant founded upon such delay,
(b) any payment or rent concession which Landlord may be required to make to any
purchaser or prospective purchaser, succeeding or prospective tenant for all or
any part of the Premises in order to induce such purchaser or tenant not to
terminate its purchase agreement or lease, as the case may be, or its
negotiation therefor by reason of Tenant's delay in so surrendering the Leased
Property and (c) any loss suffered if a purchaser or prospective purchaser or
succeeding or prospective tenant shall terminate its purchase agreement or
lease, as the case may be, or not proceed to close on a purchase or execute and
deliver its purchase agreement or lease, as the case may be, by reason of
Tenant's delay in so surrendering the Leased Property. Nothing herein contained
shall be deemed to permit Tenant to remain in possession of the Leased Property
after the expiration or sooner termination of the term of this Lease.
22.04. No agreement to accept a surrender of all or any part of the Leased
Property or this Lease shall be valid unless in writing and signed by Landlord.
No delivery of keys shall operate as a termination of this Lease or a surrender
of the Leased Property or this Lease.
ARTICLE 23
NOTICES
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All notices and communications permitted or required to be given pursuant
to this Lease shall given in the manner, and to the addresses, provided in the
Asset Purchase Agreement dated as of January 21, 1996 (the "AGREEMENT"), in
connection with which this Lease is being executed.
ARTICLE 24
MISCELLANEOUS
24.01. This Lease with its annexed Exhibits and the Agreement contain the
entire agreement between Landlord and Tenant, all prior negotiations and
agreements are merged into this Lease and any agreement hereafter made between
Landlord and Tenant shall be ineffective to change, modify, waive, release,
discharge or terminate or effect an abandonment of this Lease, in whole or in
part, unless such agreement shall be in writing and executed by the party to be
charged.
24.02. If any term, covenant, condition or provision of this Lease shall
be invalid or unenforceable to any extent, the remaining terms, covenants,
conditions and provisions of this Lease shall not be affected thereby. This
lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this lease to be drafted. Each
covenant, agreement, obligation or other provision of this lease on Tenant's
part to be performed, shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease.
24.03. Nothing contained in this Lease shall be deemed to confer upon any
person other than the parties hereto and their respective successors and assigns
(to the extent assignment is permitted pursuant to Article 9 hereof) any right
or benefit, including any right to insist upon, or to enforce against Landlord
or Tenant, the performance of such party's obligations hereunder.
24.04. Whenever this Lease requires an approval or consent by either
Landlord or Tenant, unless another standard is expressly stated, such approval
or consent and any conditions imposed thereby shall be reasonable and shall not
be unreasonably withheld or delayed and, in exercising any right or remedy
hereunder, each party shall at all times act reasonably and in good faith. Any
expenditure by a party permitted or required under this Lease for which such
party is entitled to demand reimbursement shall be limited to the fair market
value of the goods and services involved, shall be reasonably incurred and shall
be substantiated, upon request, by documentary evidence.
24.05. The submission by Landlord to Tenant of this Lease in draft form
shall be deemed submission solely for Tenant's consideration and not for
acceptance and execution. Such submission shall have no binding force and
effect, shall not constitute an option for the leasing of the Leased Property,
and shall not confer any rights or impose any obligations upon either party.
The submission by Landlord of this Lease for execution by Tenant and the actual
execution and delivery thereof by Tenant to Landlord shall similarly have no
binding force and effect on Landlord unless and until Landlord shall have
executed this Lease and a counterpart thereof shall have been delivered to
Tenant and all consents required pursuant to any Superior Mortgage or Superior
Lease have been received.
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24.06. This Lease shall bind and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
24.07. Tenant shall not record or file this Lease or any memorandum or
other notation thereof in any public records.
24.08. Tenant shall have access to driveways, parking lots, sidewalks and
similar surface improvements on Landlord's immediately adjoining property for
parking and ingress and egress to and from the Leased Property, provided, that
Landlord reserves the right to limit such access to the extent Landlord
reasonably determines the same poses security concerns, provided further, that
there shall be no material interference with Tenant's reasonable access to and
use of the Leased Premises for the purposes described in Section 5.01.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease on the date first above written.
STATE ROAD PROPERTIES L.P.
By: HR LEASING CORP., its General Partner
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: VP
MONACO COACH CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: VP Finance
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PHYSICAL ADDRESS
----------------
3 S.R. 19
Xxxxxxxx, Xxxxxxx 00000
[Graphic: drawing of building 3]
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EXHIBIT B
---------
LEGAL DESCRIPTION OF LAND
-------------------------
Deliberately Omitted
EXHIBIT C
PERMITTED USES
The design, manufacture, marketing, wholesale sale and factory servicing of
recreational vehicles and related parts and accessories.
FIRST AMENDMENT TO AGREEMENT OF LEASE
-------------------------------------
THIS FIRST AMENDMENT TO AGREEMENT OF LEASE is made and entered into
effective as of March 4, 1996 by and between State Road Properties L.P., a
Delaware limited partnership ("Landlord") and Monaco Coach Corporation, a
Delaware corporation ("Tenant").
WITNESSETH:
A. Landlord and Tenant are parties to that certain Agreement of Lease
dated March 4, 1996 (the "Lease") regarding certain land and improvements
described in the Lease as located at 0 Xxxxx Xxxx 00, Xxxxxxxx, Xxxxxxx 00000
and commonly known as Plant 3 (the "Leased Property"). Capitalized terms used
but not defined herein shall have the meanings given such terms in the Lease.
B. Landlord and Tenant have agreed to amend the Lease so as to correct a
mutual mistake concerning rent as set forth in the Lease and so as to reflect
the agreed upon rent as actually paid from Tenant to Landlord.
NOW, THEREFORE, Landlord and Tenant hereby agrees as follows:
25 Section 3.01(a) of the Lease is hereby deleted in its entirety and
replaced by the following:
"3.01(a) Tenant covenants and agrees to pay to Landlord a fixed
minimum rent ("FIXED RENT") during the Term of this Lease, equal
to $162,683.64 per annum (pro rated in the case of partial
years), payable in equal monthly installments of $13,556.97."
26 Except as specifically amended hereby, all of the terms of the Lease
are and shall remain in full force and effect and hereby ratified and confirmed.
The capitalized term "Lease" as used in the Lease shall be deemed to mean and
refer to the Lease, as amended by this First Amendment to Agreement of Lease.
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IN WITNESS WHEREOF, this First Amendment to Agreement of Lease has been
duly executed by Landlord and Tenant as of the date first above written.
STATE ROAD PROPERTIES, L.P.
By: HR LEASING CORP.,
its General Partner
By: /s/ Xxxxx Xxxxxx
------------------------------------
Title: Vice President
---------------------------------
MONACO COACH CORPORATION
By: /s/ Xxx Xxxxxxx
------------------------------------
Title: Chief Executive Officer
---------------------------------
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