HomeMy Public PortalAbout021-2014 - Metro - Lease - EDC - Stride RiteLEASE
By and Between
THE CITY OF RICHMOND, INDIANA
(as Landlord)
and
ECONOMIC DEVELOPMENT CORPORATION OF WAYNE COUNTY, INDIANA
(as Tenant)
SUBLEASE
By and Between
ECONOMIC DEVELOPMENT CORPORATION OF WAYNE COUNTY, INDIANA
(as Sublandlord)
and
THE STRIDE RITE CORPORATION
(as Subtenant)
1400 & 1500 Industries Road
Richmond, Indiana
Contract No. 021-2014
t 1 R
LEASE AND SUBLEASE
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THIS LEASE AND SUBLEASE (the:"Agreement' ):is made this � day of Fc�b1-y 2014 (the
"Effective Date"), by and between THE CITY OF RICHMOND, INDIANA, a/an ("Landlord"),
whose address is 50 North Fifth Street, Richmond, Indiana 47374, and ECONOMIC DEVELOPMENT
CORPORATION OF WAYNE COUNTY, INDIANA, an Indiana non-profit corporation ("Tenant"), whose
address is S00 South A Street, Suite 2, Richmond, Indiana 47374, and by and between Tenant (as
"Sublandlord"): and: THE STRIDE RITE CORPORATION, a Massachusetts corporation ("Subtenant")M:
whose address is 9341 Courtland Drive NE, Rockford Michigan 49351. As used herein, the term
"Lease":shall:mean:the: portion: of:this:Agreement:applicable:to:the: relationship: between:and:the:
rights and obligations among Landlord and Tenant and the:term:"Sublease":shall:mean:the:portion: of
this Agreement applicable to the relationship between and the rights and obligations among Tenant
and Subtenant. Except as specifically set forth herein, there shall not be any direct landlordtenant
relationship between Landlord and Subtenant.
RECITALS:
Landlord, for and in consideration of the rents and all other charges and payments
hereunder and of the covenants, agreements, terms, provisions, and conditions to be kept and
performed hereunder by Tenant, demises and leases to Tenant, and Tenant hereby leases and takes
from Landlord, the premises described below, subject to all matters hereinafter set forth and upon and
subject to the covenants, agreements, terms, provisions, and conditions of this Lease for the term
hereinafter stated, and Sublandlord, for and in consideration of the rents and other charges and
payments hereunder and of the covenants, agreements, terms, provisions, and conditions to be kept
and performed hereunder by Subtenant, demises and subleases to Subtenant, and Subtenant hereby
leases and takes from Sublandlord, the premises described below, subject to all matters
hereinafter set forth and upon and subject to the covenants, agreements, terms, provisions and
conditions of this Sublease for the term hereinafter stated.
Now THEREFORE Landlord, Tenant, and Subtenant agree to the following:
1. TERMS.
1.1 Premises. The Premises demised by this Agreement (the "Premises") are
approximately eleven (11) acres located at 1400 and 1500 Industries Road, Richmond,
Indiana, including those certain buildings thereon containing approximately thirty-five
thousand (35,000) square:feet:("Building One"):and:sixteen:thousand:(16,000) square feet
("Building Two") respectively (Building One and Building Two are collectively referred to
herein as the: "Buildings"). The location and precise acreage of the Premises is shown on
attached hereto and incorporated herein by reference.
1.2 LANDLORD, TENANT, AND SUBTENANT. Unless specifically stated otherwise or
the context clearly evidences the contrary: (a) obligations stated to be of Landlord to Tenant
(eg.M:"Landlord:sha110"):shall:also:be:deemed:to:be:obligations:of:Sublandlord to Subtenant
(e.g., as if the: Agreement: also: said: "Sublandlord: shalll7" )M: (b): obligations: of: Tenant: to:
Landlord (eg.M: "Tenant: shall'): shall: also: be: deemed: to: be: obligations: of. Subtenant: to:
Sublandlord(eg.M:as:if:this:Agreement:also:said:"Subtenant:shallf")Ca:(c):rights:of:Tenant
acquired from Landlord shall also be deemed to be rights of Subtenant acquired from
Sublandlord; (d) indemnifications by Landlord of Tenant shall also be deemed to be
indemnifications by Sublandlord of Subtenant; (e) indemnifications by Tenant of Landlord
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shall also be deemed to be indemnifications by Subtenant of Sublandlord; and (f) references to
the acts or omissions of Landlord shall, with regard to Subtenant, be deemed to be
references to the acts or omissions of Sublandlord. For purposes of interpreting the
Sublease M :paragraphs:referencing: Landlord:and:Tenant:may:be:read:such:that:"Landlord":is:
revised:to:read:"Sublandlord":and:"Tenant":is:revised:to:read:"Subtenant" 0
1.3 Lease Term
1.3.1 The term of this Lease shall commence on the "Lease
Commencement Date", which shall be the date on which Landlord's:Work:(as:such:
term is hereafter defined) is Substantially Completed (as such term is hereafter
defined) and possession of the Premises is tendered by Landlord to Tenant and
Subtenant. Landlord reasonably: anticipates: that: Landlord's: Work: will: be:
Substantially Completed on or before June 1, 2014, such date being within one
hundred eighty (180) days following receipt of a bid proposal from Subtenant. The
Sublease shall commence on the Lease Commencement Date. The term of the Lease
and Sublease shall each be one hundred twenty (120) calendar months plus any
partial month between the Lease Commencement Date and the first day of the
following calendar month if the Lease Commencement Date is not the first day of a
month and shall end at midnight of the last day of said period (the "Lease
Expiration Date"). The "Lease Term" shall be that period commencing on the
Lease Commencement Date and expiring on the Lease Expiration Date and the
"Initial Term":shall be that period commencing on the Lease Commencement Date
and expiring on the Lease Expiration Date (as such term was defined prior to the
exercise of the Extension Option [as such term is hereafter defined]).
1.3.2 If Subtenant shall comply with each of the terms, provisions, and
conditions of this Sublease so that at the end of the Lease Term there is no uncured
default of Subtenant hereunder, then Subtenant shall have the right and option (the
"Extension Option"):to:extend:the:Lease:Term:for:all:of:the Premises then subject to
this Sublease for two (2) additional periods of five (5) years each (each an
"Extension Term"):upon:written:notice:to:Tenant given at least ninety (90) days
prior to the then -current Lease Expiration Date. Upon Tenant's receipt of such
notice from Subtenant, Tenant shall exercise the Tenant Extension Option (as such
term is hereafter defined) in accordance with Section 1.3.3.
1.3.3 If Tenant shall comply with each of the terms, provisions, and
conditions of this Lease so that at the end of the Lease Term there is no uncured
default of Tenant hereunder, then Tenant shall have the right and option (the
"Tenant Extension Option") to extend the Lease Term for all of the Premises then
subject to this Lease for two (2) additional periods of five (5) years each (each an
"Extension Term") upon written notice to Landlord given at least ninety (90) days
prior to the then -current Lease Expiration: Dateffl:Upon: Landlord's receipt of such
notice from Tenant, the Lease Term shall be extended from the then -current Lease
Expiration Date for a period of time equal to the number of years stated above for
the applicable Extension Term and the Lease Expiration Date shall, thereupon, be
deemed to be the last day of the Lease Term as so extended.
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1.3.4 The foregoing provisions of Section 1.3.2 and Section 1.3.3
notwithstanding, so long as there is no uncured default of Subtenant under the
Sublease and there is no uncured default of Tenant under the Lease, Subtenant shall
have the right to exercise the Extension Option and Tenant Extension Option
simultaneously by written notice provided jointly to Landlord and Tenant.
1.4 Rent.
1.4.1 The basic rent ("Rent") for the Lease Term (including any Extension
Term) shall be as set forth in the table below. As: used: herein: the: term: "Rent
Commencement Date":shall:mean:the:date:that:is: ninety: (90): days:following:the:
Lease Commencement Date. All Rent payable by Subtenant to Tenant shall be due and
payable by Tenant to Landlord:
Period
Monthly Rent
Annual Rent
Lease Commencement
$0.00
$0.00
Date - day preceding Rent
Commencement Date
Rent Commencement Date
$10,000.00
TBD*
- December 31, 2014
January 1, 2015 -
$7,000.00
$84,000.00
December 31, 2015
January 1, 2016 -
$8,000.00
$96,000.00
December 31, 2016
January 1, 2017 -
$9,000.00
$108,000.00
December 31, 2017
January 1, 2018 -
$10,000.00
$120,000.00
December 31, 2018
January 1, 2019 - Lease $11,000.00 $132,000*
Expiration Date (or
expiration of Initial Term)
First Extension Term $9,500.00 $114,000.00
Second Extension Term $10,450.00 $125,400.00
*The annual Rent for the period from the Rent Commencement Date through
December 31, 2014, and for the final year of the Initial Term will be determined
once the Rent Commencement Date and Lease Expiration Date have been
determined.
1.4.2 Incentive Threshold/Basic Rent Penally. Landlord, Tenant, and
Subtenant:shall:perform:an:annual:audit:of.Subtenant's:full:time:and/or:full:time:
equivalent employment levels at the Premises as of the end of the preceding
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calendar year. In the event such employment levels are not equal to or in excess of
the cumulative employment requirements set forth in the table below (the
"Threshold Employment Level'), the Rent set forth in Section 1.4.1 shall increase by
ten percent (10%) until the earlier of: (a) the next anniversary of the date of such
increase: in: Rentf:or: (b):the:date:on:which:Subtenant's:employment:level:equals:or:
exceeds the Threshold Employment Level.
Year Retained* New Cumulative
2013
130
130
2014
130
75
205
2015
130
10
215
2016
130
10
225
2017
130
22
247
*As:used:herein:'Retained":shall:refer:to:employees:of:Subtenant:(or:an:affiliate:of:
Subtenant):at:any:of:Subtenants:facilities:in:Wayne:Countyf:Indiana0:as of the Lease
Commencement:DateO:Only:the:numbers:set:forth:in:the:"Cumulative":column:shall: be
considered with regard to the Threshold Employment Level; the mix of
employees between Retained and New shall not be considered.
1.5 Notices and Pavments Addresses.
If to Landlord: THE CITY OF RICHMOND, INDIANA
50 North Fifth Street
Richmond, IN 47374
Attn: Mayor
email: shutton@richmondindiana.gov
with a copy to: Walter S. Chidester, Esq.
THE CITY OF RICHMOND, INDIANA
50 North Fifth Street
Richmond, IN 47374
email: wchidester@bbkcc.com
If to Tenant: ECONOMIC DEVELOPMENT CORPORATION OF WAYNE
COUNTY, INDIANA
500 South A Street, Suite 2
Richmond, IN 47374
Attn: Valerie Shaffer, President
email: valerie(@edcwc.com
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with a copy to: George M. Sowers, Esq.
KNOLL KOLGER SOWERS & METZGER
111 South 7m Street
Richmond, IN 47374
email: gsowers@knollkolger.com
If to Subtenant: THE STRIDE RITE CORPORATION
9341 Courtland Drive NE
Rockford, MI 49351
Attn: General Counsel
email: David. Latchana@wwwinc.com
with a copy to: Michael S. Wallack, Esq.
WALLACK SOMERS & HAAS, P.C.
One Indiana Square, Suite 2300
Indianapolis, IN 46204
email: msw@wshlaw.com
1.6 Tenant's Option to Terminate. In the event that the Sublease is
terminated, Tenant shall have the right to terminate this Lease, such termination to be
effective as of the date of the termination of the Sublease.
1.7 Conditions Precedent. From and after the Effective Date, Subtenant shall
have the right to enter upon the Premises for the purpose of conducting such inspections,
tests, and examinations as Subtenant may deem prudent, including, without limitation, title
searches, survey, soil and groundwater analysis, other environmental inspections, water
pressure:testM:and:examination:of:the:availability:of:natural:gas:(the:"Property Analysis")M:
Notwithstanding any other provision of this Agreement to the contrary and
notwithstanding the full execution of this Agreement by Landlord, Tenant, and Subtenant,
neither this Agreement nor the Lease or Sublease shall become binding and effective until:
(a) completion of satisfactory negotiations for and approval of final incentive agreements
betweenM:(i):LandlordM:by:and:through:Landlord's:Redevelopment:CommissionM:Landlord's:
Common: Council0: Landlord's: Board: of: Public: Works: and: SafetyO: the Wayne County
Commissioners M:(ii):Tenant's:Board:of:Directors, if necessary; and (iii) Subtenant (including
approval:thereof:by:Subtenant's:Board:of:Directors) 0:(b):the:Real: Estate:Tax:Abatement: (as:
such term is hereafter defined) and Property Tax Abatement (as such term is hereafter
defined) are awarded to Subtenant; (c) completion of satisfactory negotiations for and
approval of a grant to Subtenant from:Tenant:(the:"EDC Grant")M:and:(d) approval of an
application from Subtenant by the Indiana Economic Development Corporation for a tax
credit (the: " IEDC Tax Credit") to be issued upon completion of certain conditions by
Subtenant; and (e) satisfactory completion of the Property Analysis, all of which are herein
referred:to:as:the:"Conditions Precedent'M:All:of:such:negotiations:shall:be:conducted:in:
good faith. In the event that any of the Conditions Precedent has not been satisfied within
one hundred eighty (180) days after the Effective Date, Subtenant shall have the right to
terminate the Sublease and, if Subtenant exercises such right, Tenant shall have the right to
terminate the Lease.
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2. PREMISES.
2.1 Landlord's Work. Landlord agrees to fund up to Two Million Five Hundred
Thousand: Dollars: ($20500O000000)(the: "Allowance"): of: retrofit, replacement, or other
improvements:to:the: Premises: ("Landlord's Work")0:subject:to:a:scope:of:work:approved:
by: Landlord:and: S ubtenant: (the:"Plans") 0:subsequently:competitively:bid:in: conformance:
with: Landlord's:Purchasing: Policy:statementO:and:managed by Landlord in consultation and
cooperation with Subtenant. Landlord acknowledges that Subtenant shall have the right to
have:a:project: manage r:on:site:at:the: Premises: during: Landlord's:Work:and:that: Landlord:
and:Landlord's: contractors: and:subcontracto rs:shall: reasonably:cooperate:with: Subtenant's:
property manager. Landlord and Subtenant must each approve all selected proposals and
contractors provided that Subtenant understands, acknowledges, and agrees that proposals
and contractors must and shall be chosen in conformance with Indiana public works laws
and common construction wage laws as applicable. Both Landlord and Subtenant agree to
work together in good faith to minimize costs, create a fair and objective bidding process
while also expediting Landlord's: Work: so: occupancy: can: begin: as: soon: as: possible0:
Subtenant shall have the right to direct all or any portion of the proceeds of the EDC Grant
to: be: used: for: the: completion: of: Landlord's: WorkO: The: foregoing: notwithstanding0: at:
Subtenant's:option0:the:initial:scope:of:Landlord's:Work:may:be:limited:to:the:portions:of:
the Premises Subtenant intends to occupy as part of the Phase One Occupancy (as such term
is:hereafter:defined) 0:In:the:event:the:cost:to: complete: Landlord's:Work:is:less:than:the:
Allowance, then Subtenant shall have the right to utilize the remaining portions of the
Allowance and/or EDC Grant for any further retrofit, replacement, or other improvements
of facility components to Building One and/or Building Two.
2.2 Acceptance of Premises. Except for Landlord's: Work and the Property
Warranties (as such term is hereafter defined), Tenant and Subtenant shall each be deemed
to have accepted the Premises on the Lease Commencement Date in its "as is" condition.
The foregoing notwithstanding: (a) Landlord represents and warrants that as of the tender
of possession of the Premises to Tenant and Subtenant: (i) Building One shall be broom
clean and all lightning, dock equipment, HVAC equipment, and other building systems and
equipment in or serving Building One shall be in good working order and condition; (ii) the
Premises is free of any Hazardous Materials (as such term is hereafter defined); and (iii) the
Premises is in compliance with all applicable laws, ordinances, and regulations (the
"Property Warranties")O:and:(b):Landlord:shall:deliver:to:Tenant:and:Subtenant:a:copy:of:
any:existing:environmental:assessment:(including:any:"no:further:action":or:similar:letter:
from any applicable governmental entity). Within thirty (30) days following Substantial
Completion and acceptance of the Premises, Subtenant shall deliver to Landlord and Tenant
an acceptance letter in the form of EXHIBIT, C. Acceptance of the Premises by Subtenant shall
be deferred until receipt by Subtenant of Landlord's notice that the Premises are ready for
occupancy. Within five (5) days after Landlord gives such notice, Subtenant shall make such
inspection of the Premises as Subtenant deems appropriate, and, except as otherwise
notified by Subtenant in writing to Landlord within such period, Subtenant shall be deemed
to have accepted the Premises in its then condition, latent defects excepted. If, as a result of
such inspection, Subtenant discovers minor deviations or variations from the Plans of a
nature commonly found on a "punch list" (as that term is used in the construction industry),
Subtenant shall promptly notify Landlord of such deviations. The existence of such punch
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list items shall not postpone the Lease Commencement Date nor the obligation of Subtenant or
Tenant to pay Rent or any other charges due under this Lease or Sublease. Subtenant's:
acceptance of the Premises shall be deemed an acceptance of the Premises by Tenant and
provided that such punch list items shall be completed and/or corrected within sixty (60) days
after notice to Landlord of the existence of such punch list items.
2.3 Substantial Completion. The terms "Substantial Completion" and
"Substantially Completed", as used in this:Lease:with:reference:to:Landlord's:Work and/or
the Premises, shall mean the date on which the Property Warranties are true and Landlord
can deliver to Tenant and Subtenant an:architect's:certificate:that:Landlord's:Work:has:been:
substantially completed, including that: (a) the Premises are sufficiently complete so as to
be ready for installation of any equipment, furniture, fixtures, and interior decoration to be
installed by Tenant and/or Subtenant; (b) any interior decoration, equipment, and fixtures
to be furnished by Landlord are installed and in working order; and (c) heat, air
conditioning, and all utilities to be provided to the Premises pursuant to this Lease are
installed and in working order.
2.4 Early Occupancy for Installation of Furniture, Fixtures, and Equipment
Subtenant and Subtenant's:contractors, employees, and representatives shall have the right
and privilege of going into the Premises commencing thirty (30) days prior to the date on
which:Landlord: reasonably: believes: Landl ord's:Wo rk:shall:be:Substantially:Complete: (the:
"Anticipated Completion Date"), for the sole purpose of installing Subtenant's: trade:
fixtures, equipment, furniture, and telephone and computer cable and wire. Landlord shall
provide to Tenant and Subtenant notice of the Anticipated Completion Date not less than
forty-five (45) days prior to the Anticipated Completion Date to permit Subtenant to access
the Premises as herein provided. Subtenant's entry upon and occupancy of the Premises
prior to the Lease Commencement Date shall be governed by and subject to all of the
provisions, covenants, and conditions of this Sublease with respect to insurance, indemnity,
remedies, and liens.
2.5 Delayed Completion. If Landlord's:Work:is not Substantially Completed on
or before the Outside Completion Date, then the obligation of Tenant (and Subtenant) to pay
Rent shall be abated for one (1) day for each day from the Outside Completion Date until
Landlord's:Work:has:been: Substantially:Completed.
2.6 Delivery of Premises. If Landlord is unable to deliver possession of the
Premises to Tenant on the Outside Completion Date, this Lease shall not be void or voidable,
nor shall Landlord be liable to Tenant for any loss or damage resulting therefrom, but in
such event Tenant shall not be liable for any Rent and other charges due under this Lease
until such time as Landlord's: Work: is Substantially Completed and possession of the
Premises has been tendered by Landlord to Tenant. The foregoing notwithstanding, if
Landlord's: Work: is not Substantially Completed and/or Landlord is unable to deliver
possession of the Premises to Tenant within one hundred eighty (180) days after the
Outside Completion Date, Subtenant shall have the right to terminate the Sublease and, if
Subtenant exercises such right, Tenant shall have the right to terminate the Lease; provided,
however0: that: if: the: reason: for: such: failure: to: Substantially: Complete: Landlord's: Work:
and/or deliver possession of the Premises within such one hundred eighty (180) day period
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is: beyond: Landlord's: reasonably: control: (including: reasons: of: force: majeure)M: then: the:
period:within:which:Landlord: must:Substantially:Complete: Landlord's:Work:and:deliver:
possession of the Premises shall be extended an additional ninety (90) days before Tenant
shall have the right to terminate this Lease.
2.7 Lease Commencement Date Agreement. Promptly following Substantial
Completion:and:Landlord's:tender:of:possession:of:the:Premises:to:Tenant and Subtenant,
Landlord, Tenant, and Subtenant shall execute a Lease Commencement Date Agreement in the
form attached hereto as EXHIBIT D and made a part hereof.
3. PAYMENT OF RENT. Subtenant shall pay Tenant the Rent and any other payments due
under this Sublease without prior notice, deduction, or offset, without relief from valuation or
appraisement laws, in lawful money of the United States in advance on or before the first (1A) day
of each month, at the address noted in Section 1.5 or at such other place as Tenant may hereafter
from time to time designate in writing. Tenant shall pay Landlord the Rent and any other payments
due under this Lease without prior notice, deduction, or offset, without relief from valuation or
appraisement laws, in lawful money of the United States in advance on or before the fifteenth (15m)
day of each month, at the address noted in Section 1.5 or at such other place as Landlord may
hereafter from time to time designate in writing. The foregoing notwithstanding, Subtenant shall
have the right to make payments of Rent (and/or any other payments due to Tenant which will
thereafter be payable by Tenant to Landlord) directly to Landlord. Rent and other amounts due
under this Lease for any partial month at the beginning or end of the Lease Term shall be prorated.
4. SECURITY DEPOSIT. [Intentionally omitted].
S. USES.
5.1 Permitted Uses. The Premises may be used for any lawful purposes
("Permitted Uses"). No act shall be done in or about the Premises that is unlawful. Tenant
shall not commit or allow to be committed any waste upon the Premises. Tenant, at its
expense, shall: (a) promptly comply with all orders, ordinances, laws, rules, and regulations of
any and all municipal, state, and federal authorities, boards, and commissions as they
currently or hereafter may exist as to the Premises (other than ordinances, laws, rules,
and/or regulations promulgated by Landlord (or any subdivision or governmental entity
subordinate:to:Landlord: Deach:a:"Subordinate Agency"a:with discriminatory impact upon the
Premises, Tenant, or Subtenant).
5.2 Hazardous Materials.
5.2.1 Tenant covenants not to introduce any Hazardous Materials (as such
term is hereafter defined) into the Buildings or Premises without complying with all
applicable Federal, State, and local laws, regulations, or ordinances pertaining to the
storage, use, or disposal of Hazardous Materials, including but not limited to
obtaining proper permits. If Tenant's storage, use, or disposal of Hazardous
Materials in the Building or Premises results in: (a) contamination of the soil or
surface or ground water; or (b) loss or damage to person(s) or property, then
Tenant agrees to clean up the contamination and indemnify, defend, and hold
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Landlord harmless from and against any claims, suits, causes of action, costs, and
fees, including attorneys' fees and costs, arising from or connected with any such
contamination, loss, or damage.
5.2.2 Landlord represents and warrants to Tenant that Landlord has not
received any notices from an applicable governmental authority that either the
Building and/or Premises is not in compliance with applicable environmental laws.
5.2.3 Landlord covenants not to introduce any Hazardous Materials into
the Building or Premises without complying with all applicable Federal, State, and
local laws, regulations, or ordinances pertaining to the storage, use, or disposal of
such Hazardous Materials, including but not limited to obtaining proper permits.
Landlord shall promptly take all action required, if any, by applicable Federal, State,
and local laws, to remove and/or encapsulate any Hazardous Materials discovered
in the Premises or Buildings prior to the Lease Term, the presence of which was not
caused by Tenant. Landlord shall repair any damage caused by such removal or
encapsulation. If the presence of Hazardous Materials renders any portion of the
Premises untenantable for the conduct of Subtenant's business, then such shall be
deemed a casualty and the provisions of Section 13 shall apply.
5.2.4 Landlord shall indemnify and hold harmless Tenant from any and all
environmental costs arising before, during, or after the Lease Commencement Date
from or in connection with the presence of suspected presence of Hazardous
Materials in, on, or about the Buildings or Premises, including, without limitation,
Hazardous Materials in, on, or about the Buildings or Premises as a result of the acts
or omissions of Dana Corporation or any other predecessor in title to the Premises
or any portion thereof. In any action or proceeding brought against Tenant by
reason of any claim indemnified hereunder, Landlord may, at its sole option, elect to
assume the defense at Landlord's expense, and Landlord shall have the right to
control the defense thereof and to determine the settlement or compromise of any
such action or proceeding. Landlord agrees to consult with Tenant regarding the
defense of the litigation prior to any settlement or compromise.
5.2.5 As used in this Section 5.2, "Hazardous Materials@" shall mean: (a)
any biological or chemically active or other toxic or hazardous wastes, pollutants or
substances, including, without limitation, asbestos, PCBs, petroleum products and
byproducts, substances defined or listed as "hazardous substances" or "toxic
substances" or similarly identified in or pursuant to the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. ' 9601 et seq., as
amended, and as hazardous waste under the Resource Conservation and Recovery
Act, 42 U.S.C. ' 6901 et seq.; (b) any chemical substance or mixture regulated under
the Toxic Substance Control Act of 1976, as amended, 15 U.S.C. ' 2601 et seq.; (c)
any "toxic pollutant" under the Clean Water Act, 33 U.S.C.' 1251 et seq. as amended;
(d) any hazardous air pollutant under the Clean Air Act, 42 U.S.C. ' 7401 et seq.; (e)
hazardous materials identified in or pursuant to the Hazardous Materials
Transportation Act, 49 U.S.C.' 1801 et seq.; and (f) any hazardous or toxic
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substances or pollutant regulated under any other applicable federal, state or local
laws.
5.2.6 The provisions of this Section 5.2 shall survive expiration or earlier
termination of this Lease.
5.3 Occupancy. Tenant and/or Subtenant shall have no obligation to commence
business operations from the Premises at any specified time. Landlord and Tenant each
acknowledge that Subtenant intends to commence a phased occupancy of the Buildings,
commencing with top floor of Building One and portions of the lower floors of Building One
("Phase One Occupancy"), followed by the remainder of Building One. Use and occupancy of:
Building: Two: will: be: at: Subtenants: option and: upon: Subtenants: schedule. As of the
Effective Date, Subtenant intends to complete all necessary renovations to Building One
(including Landlord's:Work):and:to:occupy:all:of: Building: One on or before January 1, 2015,
subject:to:the:timely:completion:of:Landlord's:WorkM
6. LATE CHARGES. Tenant hereby acknowledges that late payment to Landlord of Rent
or other charges due under this Lease will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to ascertain. If Tenant shall fail to pay,
within fifteen (15) days after written notice that the same is due and payable, any Rent or other
charges due under this Lease from Tenant, all such unpaid amounts shall bear interest at the rate of
five percent (5%) per annum or, if less, the maximum rate permitted by applicable law (the
"Interest Rate"), from the date due to the date of payment. In addition to such interest, if any Rent
or other charge due under this Lease from Tenant is not received by Landlord or Landlord's
designated agent within fifteen (15) days of when due, then Tenant shall pay to Landlord a late
charge equal to three percent (3%) of such overdue amount in order to compensate Landlord for a
portion of its administrative charges attendant thereupon. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the cost that Landlord will incur by reason of
Tenant's late payment. Landlord's acceptance of such late charge shall not constitute a waiver of
Tenant's default with respect to such overdue amount or estop Landlord from exercising any of the
other rights and remedies granted hereunder. Landlord shall also be entitled to recover from
Tenant any attorneys' fees and costs incurred by Landlord by reason of Tenant's failure to pay Rent
or other charges due under this Lease when due hereunder. The interest and late charge provisions
contained herein are in addition to and do not diminish or represent a substitute for any or all of
Landlord's rights or remedies provided for elsewhere in this Lease. In the event that Subtenant
elects to make payments directly to Landlord in accordance with Section 3, then any late payment
by Subtenant shall bear the interest and late charges set forth in this Section 6 for payments from
Tenant to Landlord and shall not bear a second late charge or interest charge for the payment from
Subtenant to Tenant.
7. REPAIRS AND MAINTENANCE. Subject: to: the: Completion: of. Landlord's: Work, any
necessary punch list repairs, and latent defects, Subtenant and Tenant accept the Premises and
Buildings in their present condition "as is":and:agree:thatM:subject:to:the:completion:of:Landlord's:
Work, Building One and the Premises (other than Building Two) are suited for the uses intended by
Subtenant. Except for the obligations of Landlord set forth below in this Section 7, Tenant, at its cost
and expense, shall keep and maintain (and shall provide all repairs and replacements necessary to
keep and maintain) the Premises at all times during the Lease Term in good order, condition, and
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repair, including, without limitation, roadways and parking lots, exterior facades, interior non -load
bearing walls, interior wall coverings, floor coverings and ceilings, interior and exterior electrical,
water, sewer and other utility lines, facilities and equipment, mechanical, heating, ventilating, and
air conditioning systems, facilities and equipment, doors, windows, guttering and downspouts,
elevators, loading docks and all other elements of the Premises. Tenant hereby acknowledges that
Landlord shall have no obligation to make any repairs to the Premises during the Lease Term. The
term "repair" as used herein shall include maintain, repair and replace, whether the same is
considered a current expense or an expense which has to be capitalized for tax purposes. The
foregoing notwithstanding, Landlord shall maintain and make all necessary repairs to and
replacements of the footings, foundations, structural supports, columns, exterior walls, bearing
walls, retaining walls, floor slabs and roof supports in the Premises, unless such repairs are
necessitated by the acts of Tenant. In the event that Landlord fails or refuses to make any repair or
perform any maintenance that it is obligated to make or perform, such failure or refusal continues
for fifteen (15) days after written notice from Tenant or Subtenant or is of an emergency nature
which threatens the safety of individuals in or about the Premises, and the repair or maintenance
that the Landlord fails or refuses to make or perform: (a) is of a nature which prevents Tenant (or
Subtenant) from using the Premises for the conduct of business; (b) is not rendered necessary by
the negligence or willful misconduct of Subtenant, Tenant, or their respective agents, customers,
employees, independent contractors, guests, invitees, or subtenants; and (c) is within Landlord's
control, then Tenant may make such repair or perform such maintenance and seek reimbursement
therefor from Landlord; provided, however, that all such repairs and maintenance shall be
performed in a good and workmanlike manner with materials and equipment of a comparable
quality to those used in the Premises. The foregoing notwithstanding, Tenant shall have no
obligation:to:repair:or:maintain:any:portion:of:Building:Two:until:such:time:as:Landlord's:Work:
with regard to Building Two has been completed or Tenant (or Subtenant) has completed other
upgrades and improvements to Building Two and occupied Building Two (the: "Building Two
Occupancy Date"). Prior to the Building Two Occupancy Date, Landlord shall have the obligation to
make necessary repairs and/o replacements to Building Two, but only to the extent that such
repairs and/or replacements are necessary to prevent damage to persons or property (including
Building:Two):or:which:can:be:reasonably:characterized:as: `life:safety":matters(?
8. UTILITIES AND SERVICES.
8.1 Utility Bills. Promptly following the Lease Commencement Date, Subtenant
shall cause the utility services for the Premises to be transferred to Subtenant and
Subtenant shall promptly pay all water, sewer, gas, electricity, fuel, phone, light, heat,
electric power, and other utility bills for the Premises. If Subtenant does not pay these bills,
Landlord or Tenant may, after notice to Subtenant, pay them and such payment shall be
added to the Rent.
8.2 Disclaimer. Landlord shall not be liable for any loss, injury or damage to
property caused byresulting from any variation, interruption, or failure of utility services
due to any cause whatsoever. The foregoing shall not be applicable to the acts of Landlord
which constitute negligence or wilful misconduct. No temporary interruption or failure of
utility services incident to the making of repairs, alterations, or improvements, or due to
accident, strike, or conditions or events beyond: Landlord's: control: shall be deemed an
eviction of Tenant or relieve Tenant from any of Tenant's obligations hereunder. In no event
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shall Landlord be liable to Tenant for any damage to the Premises or for any loss, damage or
injury to any property therein or thereon occasioned by bursting, rupture, leakage or
overflow of any plumbing or other pipes (including, without limitation, water, steam,
and/or refrigerant lines), sprinklers, tanks, drains, drinking fountains or washstands, or
other similar cause in, above, upon or about the Premises unless caused by the negligence
or: wilful: misconduct: of: Landlord: or: Landlord's: agentsM: employees0: or: contractors. The
foregoing notwithstanding, if any such interruption or stoppage of basic services is for more
than three (3) consecutive days, is of a nature which prevents Tenant from using the
Premises for the:conduct:of:Tenant's:business, is not caused by the negligence or willful
misconduct of Tenant: or: Tenant's: agentsM: employeesM: or contractors, and is within
Landlord's: control or was caused by the negligence or willful misconduct of Landlord or
Landlord's:agents, employees, or contractors, then the Rent shall be abated at the rate of
one (1) day for each day of interruption and stoppage after the third (3ra) consecutive day.
9. TAXES AND ASSESSMENTS.
9.1 Real Property Taxes. Subject to the Real Estate Tax Abatement (as such
term is hereafter defined), Tenant shall pay each installment of real property taxes and
assessments levied or assessed by any lawful authority (other than Landlord or a
Subordinate Agency) against the Premises or which become due and payable during the
Lease Term. Such taxes and assessments shall include any costs and expenses incurred in
contesting the amount or validity of such taxes, charges, or assessments; and such costs and
expenses shall be applicable to the period of time for which the item contested was
assessed. If at any time during the Lease Term there shall be levied, assessed, or imposed in
substitution, in whole or in part, for real estate taxes, a tax, charge, or capital levy or
otherwise (other than a general gross receipts tax or income tax) on the rents received from
the Premises or the rents hereunder, and such tax is imposed upon Landlord, Tenant shall
pay such tax. The foregoing is hereinafter sometimes referred to as "Real Estate Taxes".
Real Estate Taxes due and payable during the calendar year in which the Lease Term
commences and ends shall each be prorated based on the number of days within such
calendar year as shall fall within the Lease Term. All installments and payments of Real
Estate Taxes that are the obligation of Tenant hereunder shall be deemed to be Rent, even
though such installments and payments are made to the public or quasi -public bodies that
levy, charge, or impose Real Estate Taxes.
9.2 Other Taxes and Assessments. Tenant shall pay and discharge, as and
when the same are due and payable: (a) all taxes, levies, and charges imposed on, against, or
with respect to the conduct of its business operations in, on, or from the Premises; and (b)
all taxes, levies, and charges imposed on, against, or with respect to its trade fixtures,
equipment, inventory, and other personal property in, on, or about the Premises. Tenant
shall have no obligation to pay any income, inheritance, franchise or similar tax that may be
payable by or chargeable to Landlord, excepting only any such tax imposed or payable in
lieu of Real Estate Taxes.
9.3 Contesting Real Estate Taxes. Tenant, at its cost and expense, shall have
the right to contest, in the manner prescribed by law, and otherwise in a reasonable and
diligent manner, the calculation of Real Estate Taxes levied on, against, or with respect to
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the Premises (or any part thereof) or the valuation of the Premises (or any part thereof) for
the purposes of calculating such Real Estate Taxes, if: (a) Tenant determines in good faith
that such Real Estate Taxes incorrectly have been calculated or that the Premises (or any
part thereof) materially has been overvalued for purposes of calculating such Real Estate
Taxes (the "Tax Dispute"); (b) Tenant delivers to Landlord a written notice describing the
Tax Dispute and the proposed contest with particularity; and (c) Landlord does not object
to the proposed contest within ten (10) days after receipt of such notice, which objection
shall be made only if Landlord reasonably has determined that the Tax Dispute will result in
increased Real Estate Taxes extending beyond the Lease Term. Landlord shall cooperate
with Tenant in contesting any Tax Dispute and shall, if requested in writing by Tenant,
contest such Tax Dispute in its own name; provided that in either case Tenant shall within
thirty (30) days after receipt of a statement therefor reimburse Landlord for all reasonable
costs including attorneys' fees actually paid by Landlord as a direct and proximate result of
Landlord's cooperation or Landlord's prosecution of such Tax Dispute. Pending resolution
of the Tax Dispute, Tenant shall pay, when required by the applicable taxing authority, the
full amount of the Real Estate Taxes levied on, against, or with respect to the Premises.
Tenant shall not agree to any settlement of a Tax Dispute without Landlord's prior written
consent, which consent may be withheld if the settlement will result, or reasonably is
anticipated by Landlord to result, in increased Real Estate Taxes extending beyond the
Lease Term; provided that such consent otherwise shall not be withheld unreasonably.
Tenant shall indemnify and hold harmless Landlord from and against all increases in Real
Estate Taxes that result from any Tax Dispute commenced or conducted by or on behalf of
Tenant to the extent such Real Estate Taxes are due and payable after the expiration of the
Lease Term and prior to the date Real Estate Taxes are due and payable on the basis of a
new valuation of the Premises (or affected part thereof). Any refund or any credit against
future Real Estate Taxes received by Landlord with respect to Real Estate Taxes paid by
Tenant shall be the property of Tenant and shall be paid by Landlord to Tenant promptly
following receipt thereof by Landlord.
9.4 Property Tax Abatement. Promptly following the Effective Date (or
earlier), Landlord shall apply for an abatement for Real Estate Taxes for the Premises (the
"Real Estate Tax Abatement"):on:behalf:of:Subtenant. Landlord and Tenant will support
and advocate for such Real Estate Tax Abatement application and shall each agree that the
Allowance shall be deemed to qualify as a capital investment for purposes of Ordinance No.
76-2011. Receipt of the Real Estate Tax Abatement is a condition precedent to the
obligations of Subtenant under this Sublease and shall be deemed to be one of the
Conditions Precedent.
10. PERSONAL PROPERTY TAXES. Tenant shall pay, prior to delinquency, all personal
property taxes payable with respect to a 1 property of Tenant located on or about the Premises or
the Buildings and shall provide promptly, upon request of Landlord, written proof of such payment.
Subtenant: shall: have: the: right: to: apply: for: a: personal: property: tax: abatement: (the: "Personal
Property Tax Abatement'): and: Landlord: and: Tenant: will: support: and: advocate: for: any: such:
abatement application. Receipt of the Personal Property Tax Abatement is a condition precedent to
the obligations of Subtenant under this Sublease and shall be deemed to be one of the Conditions
Precedent.
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CJ
11. INSURANCE.
11.1 Real Property Insurance. Tenant, at Tenant's cost and expense, shall
maintain in full force and effect throughout the Lease Term a Special Form Property
Insurance Policy on the Buildings and all other improvements on the Premises, for at least
one hundred percent (100%) of the insurable value on a replacement cost basis, less the
replacement cost of the foundation and other structural elements that are not commonly
covered by policies of fire and extended coverage insurance, rental insurance for not less
than six (6) months, and during the course of any construction, alteration or repair of the
Buildings or improvements (performed by Tenant) builder's completed value risk insurance
against: "all: risks: of. physical: loss" covering the total value of work performed and
equipment, supplies and materials furnished, which insurance shall include the interests of
Landlord, contractors, subcontractors and all other parties in privity with Landlord. Tenant
shall pay for the premiums and all other costs and expenses necessary to obtain and
maintain such insurance and related coverages. Landlord shall be a "named: insured" on all
such policies.
11.2 Public Liability Insurance. Tenant, at Tenant's cost and expense, shall
maintain in full force and effect throughout the Lease Term a policy of general public
liability insurance naming Landlord as additional insured and covering any and all claims
for injuries to, or death of, persons and damage to, or loss of, property occurring in, on, or
about the Premises, in an amount not less than: One Million Dollars ($1,000,000.00) for
injury to, or death of, any one person; Two Million Dollars ($2,000,000.00) for injury to, or
death of, more than one person in the same accident or occurrence; and One Million Dollars
($1,000,000.00) for damage to or loss of property arising out of any one accident or
occurrence.
11.3 Personal Property Insurance. All of Tenant's trade fixtures, equipment,
inventory, and other personal property (including, without limitation, property that Tenant
stores for third parties), shall be kept in or:upon:the:Premises:at:Tenant's sole risk and
expense, and Tenant, at its cost and expense, shall maintain in full force and effect
throughout the Lease Term fire and extended coverage insurance on such trade fixtures,
equipment, inventory, and other personal property for their full insurable value on a
replacement cost basis. Tenant shall indemnify and hold harmless Landlord from any and
all claims, judgments, liabilities, losses, costs and expenses (including, without limitation,
reasonable:attorneys' fees and court costs) arising from, or in connection with, damage to,
or loss of, such trade fixtures, equipment, inventory, and other personal property except if
the same is a result of acts of Landlord which constitute gross negligence or willful
misconduct.
11.4 Worker's Compensation. Tenant shall comply with the provisions of the
applicable:worker's compensation laws, and shall insure its liability thereunder.
11.5 Certificates of Insurance. For each type of insurance that Tenant is
required to maintain under this Lease, Tenant shall furnish to Landlord an insurance
certificate showing that each such type of insurance is in full force and effect and may not be
modified or canceled without prior written notice to Landlord at least thirty (30) days in
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advancei]:provided M:however0:that:Tenant's:insurer:agrees:to:provide:such:written:notices.
All insurance policies that Tenant is required to maintain under this Lease shall be issued by
companies licensed to do business in Indiana. Notwithstanding any other provision hereof,
Tenant shall be entitled to maintain any or all required insurance as part of an umbrella
policy.
11.6 Subtenant's Insurance. The foregoing provisions of this Section 11
notwithstanding, so long as Subtenant obtains and keeps in force insurance conforming to
the requirements of this Section 11, and delivers to Landlord the insurance certificates
required by Section 11.5, then Tenant shall be relieved of the obligation to obtain insurance.
12. PROPERTY GRANT. From and after: (a) the date on which: (i) the cumulative Rent
paid by Subtenant to Tenant and/or Landlord (including any increase in Rent paid for failure to
meet the Threshold Employment Level but excluding any credit for Rent not due for the period
from the Lease Commencement Date through the Rent Commencement Date) equals or exceeds
Eight Hundred Fifty -Four Thousand Dollars ($854,000.00); and (ii) employment at the Premises
has reached two hundred forty-seven (247) full time and/or full time equivalent positions; and (b)
the fifth (5th) anniversary of the Lease Commencement Date, Subtenant shall have the right (the
"Acquisition Right"):to acquire fee simple title to all of the Premises via general warranty deed
without further consideration to Landlord or Tenant; provided, however, that Subtenant may
exercise the Acquisition Right prior to the fifth (5th) anniversary of the Lease Commencement Date
if applicable law would permit such earlier acquisition. Subtenant may exercise the Acquisition
Right by written notice to Landlord and Tenant given any time after satisfaction of the foregoing
conditions precedent. Subtenant shall have no obligation to exercise the Acquisition Right and shall
further have the right to condition acceptance:of:title:to:Subtenant's:review:and:approval:of:titleM:
survey, environmental, and other property conditions. Landlord and Tenant shall cooperate with
Subtenant in any such property examinations and inspections, including delivering to Subtenant
existing surveys, title policies or commitments, environmental reports, and similar documents.
Transfer of title to the Premises following exercise of the Acquisition Right shall occur on such date
as Subtenant may reasonably determine. Notwithstanding any other provision of this Agreement to
the:contraryM:neither: Landlord:nor:Tenant:shall M:without:Subtenant's:prior:written:consentm:which:
consent:shall:be:at:Subtenant's:sole:discretion0:grant:or:permit:any:encumbrance:upon:all:or:any:
part of the Premises that would not, by its terms, terminate on or before the transfer of title to
Subtenant. Upon acceptance of title to the Premises, the Lease and Sublease shall terminate and
Landlord, Tenant, and Subtenant shall be released of all further liabilities and obligations arising
under this Agreement other than obligations and liabilities arising prior to the termination of this
Lease and/or those which, by their express terms, survive the expiration or earlier termination of
this Lease or Sublease.
13. DAMAGE OR DESTRUCTION. If the Premises shall be destroyed by fire or other casualty,
the Premises shall be repaired as speedily as possible at Tenant's expense using insurance proceeds
and the Rent shall abate during such repair. The rebuilding or repair of the Premises shall restore
the Premises to be similar in size, floor area and quality to the Premises prior to such damage
(provided, however, that Tenant shall have no obligation to repair or replace Building Two prior to
the completion of improvements thereto:and:the:occupation:thereof:for:use:in:Tenant's:business:
[or the business of Subtenant]). Landlord shall make the insurance proceeds available to Tenant to
pay for the cost of the rebuilding and repair. Such funds shall be disbursed to Tenant as work is
done using the same standards and conditions as construction lenders use in connection with
disbursements of construction loan proceeds; provided, however, that if Subtenant exercises the
Acquisition Right, then such remaining proceeds shall be payable to Subtenant at the time that
Subtenant takes title to the Premises. If the cost to rebuild or repair the Premises is greater than
One Million Dollars ($1,000,000.00), and the fire or casualty occurs at a time when there is less than
five (5) years remaining on the Lease Term (including any Extension Option exercised by Tenant),
Tenant shall have the right to terminate this Lease effective as of the date of such casualty by giving
to Landlord, within sixty (60) days after the happening of such casualty, written notice of such
termination; provided, however, that Tenant shall not have the right to cancel the Lease if
Subtenant has not canceled the Sublease. If such notice be given, this Lease shall terminate within
thirty (30) days after such notice and Tenant shall be responsible for Rent and all other charges
through the day it vacates the Premises.
14. ALTERATIONS AND ADDITIONS; REMOVAL OF FIXTURES. Tenant shall have the right to
make alterations, additions, or improvements on or to the Premises without first obtaining the
written consent of Landlord provided that such alterations, additions, or improvements do not
diminish the value of the Premises or Buildings. Any such alterations, additions, or improvements,
shall be made at Tenant's sole expense, in compliance with all applicable laws, including, but not
limited to The Americans With Disabilities Act, by a licensed contractor, and in a good and
workmanlike manner, shall not diminish the value of the Premises, and shall at once become a part
of the realty and shall be surrendered with the Premises. Tenant shall remove all of its movable
property and trade fixtures which can be removed without damage to the Premises at the
termination of this Lease, either by expiration of the Lease Term or other cause, and shall pay
Landlord any damages for injury to the Premises or Buildings resulting from such removal.
15. Ac_cEss. Landlord and its agents, employees, and contractors shall have the right to
enter the Premises upon not less than seventy-two (72) hours': prior:written:notice: (except:in:event:
of emergency, in which even only such notice as may be reasonable under the circumstances shall
be required) to inspect the Premises; to show the Premises to prospective purchasers or lenders; to
show the Premises to prospective tenants (but only during the last six (6) months of the Lease
Term); or to determine if Tenant is complying with all terms and provisions of this Lease. All such
entries shall be done in a manner so as to minimize interference with Tenant's use of the Premises.
16. WAIVER OF SUBROGATION.
16.1 Waiver by Tenant. Whether the loss or damage is due to the negligence of
Landlord or Landlord's agents or employees, or any other cause, Tenant hereby releases
Landlord and Landlord's agents and employees from responsibility for and waives its entire
claim of recovery for: (a) any loss or damage to the personal property of Tenant located on
or about the Premises (including within the Buildings), arising out of any of the perils which
are covered by Tenant's property insurance policy (or the property insurance policy of
Subtenant), with extended coverage endorsements; or (b) loss resulting from business
interruption or loss of rental income, at the Premises, arising out of any of the perils which
may be covered by the business interruption or by the loss of rental income insurance
policy held by Tenant (or Subtenant). Tenant shall cause its insurance carrier(s) to consent
to such waiver of all rights of subrogation against Landlord. Subtenant shall cause its
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insurance carrier(s) to consent to such waiver of all rights of subrogation against both
Tenant and Landlord.
16.2 Waiver by Landlord. Whether the loss or damage is due to the negligence
of Tenant or Tenant's agents or employees, or any other cause, Landlord hereby releases
Tenant and Tenant's agents and employees from responsibility for and waives its entire
claim of recovery for: (a) any loss or damage to the personal property of Landlord located in or
about the Premises arising out of any of the perils which are covered by Landlord's
property insurance policy (or which would be covered by a commercially reasonable
property insurance policy if Landlord does not then maintain property insurance), with
extended coverage endorsements; or (b) loss resulting from business interruption or loss of
rental income, at the Premises, arising out of any of the perils which may be covered by the
business interruption or by the loss of rental income insurance policy held by Landlord (or
which would be covered by a commercially reasonable insurance policy if Landlord does not
then maintain such insurance). Landlord shall cause its insurance carrier(s) to consent to such
waiver of all rights of subrogation against Tenant.
17. INDEMNIFICATION.
17.1 Indemnification by Tenant. Tenant shall indemnify and hold harmless
Landlord, its agents and employees, from and against any and all liabilities, judgments,
demands, causes of action, claims, losses, damages, costs, and expenses, including
reasonable attorneys' fees and costs, arising out of the use, occupancy, conduct, operation,
or management of the Premises by, or the willful misconduct or negligence of, Tenant, its
officers, contractors, licensees, agents, servants, employees, guests, invitees, or visitors in or
about the Premises or arising from any breach or default under this Lease by Tenant, or
arising from any accident, injury, or damage, howsoever and by whomsoever caused, to any
person or property, occurring in or about the Premises. This indemnification shall survive
expiration or earlier termination of this Lease. This provision shall not be construed to
make Tenant responsible for loss, damage, liability, or expense resulting from injuries to
third parties caused by the sole negligence of Landlord, or Landlord's contractors, licensees,
agents, employees, or invitees.
17.2 Indemnification by Landlord. Landlord shall indemnify and hold harmless
Tenant, its agents, employees, officers, directors, partners, and shareholders from and
against any and all liabilities, judgments, demands, causes of action, claims, losses, damages,
costs, and expenses, including reasonable attorneys' fees and costs, arising out of the
ownership of the Premises by, or the willful misconduct or negligence of, Landlord, its
contractors, licensees, agents, servants, employees, guests, invitees, or visitors in or about
the Premises or arising from any breach or default under this Lease by Landlord. This
indemnification shall survive termination of this Lease. This provision shall not be
construed to make Landlord responsible for loss, damage, liability, or expense caused by the
negligence of Tenant, or its officers, contractors, licensees, agents, employees, or invitees.
17.3 Subtenant. Landlord shall have the right to assume from Tenant the
indemnification of Tenant by Subtenant (pursuant to the implied rights and obligations in
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Section 17.1) and Subtenant shall have the right to assume from Tenant the indemnification of
Tenant by Landlord (pursuant to Section 17.2).
17.4 Additional Indemnification. Tenant agrees that it shall indemnify and
save SubtenantO:Subtenant's assignor WOLVERINE WORLDWIDE, INC., a Delaware corporation
("Wolverine")M Subtenant's:consultant RAYMOND WALKER COMPANY, a Georgia corporation
("RWC"), and: their: respective: employees: and: agents: (collectively1d: the: "Indemnified
Parties"): harmless from any and all liability, damage, expense, causes of action, suits,
claims, or judgments arising out of any legal proceedings brought by Aeson, LLC ("Aeson"):
and/or Legacy Development Company, LLC ("Legacy") or any assignees thereof, arising out
of that certain option agreement between Tenant and Aeson dated on or about May 8, 2013.
Tenant:shall0:at:Tenant's cost and expense, defend any and all suits which may be brought
against any of the Indemnified Parties upon any such liability, claim, or claims and shall
satisfy, pay, and discharge any and all judgments that may be recovered against any of the
Indemnified Parties, in any such action or actions, provided however, that the Indemnified
Parties shall give prompt written notice of any such claim or demand to Tenant, and
provided further that the provisions of this Section 17.4 shall not apply to any liability,
damage, expense, causes of actions, suits, claims, or judgments arising out of any legal
proceedings based upon any real estate licensing law or requirement The provisions of this
Section 17.4 shall supersede all prior indemnity agreements between Tenant and any of the
Indemnified Parties with regard to the subject matter hereof.
18. ASSIGNMENT AND FURTHER SUBLETTING. Tenant may assign this Lease, or sublease all
or any part of the Premises, or permit the use of the Premises by any party other than Tenant, with the
prior written consent of Landlord, which consent shall not be unreasonably withheld,
conditioned, or delayed; provided, however, that Landlord's:consent:shall:not:be:required:in:the:
event of an assignment or sublease to an affiliate of Tenant or in the event of a sale of all or
substantially:all:of:Tenant's:assets. In the event of an assignment or sublease by Subtenant, only the
consent: of: Lan dlord:shall:be:required: and: Lan dlord's:consent: shalLbe:deemed:to: be: consent: of:
Tenant:to:Subtenant's:assignment or subletting.
19. ADVERTISING. Tenant shall be responsible for maintaining any materials or
advertising affixed to or placed upon the Premises, and should Tenant fail to so maintain, Landlord
may, at its sole option, maintain or remove such materials or advertising at Tenant's expense. Upon
expiration or termination of this Lease, Tenant shall remove all such materials or advertising and
shall, at its own expense, repair any damage to the Premises or Buildings caused by such removal.
Such obligation shall survive expiration or sooner termination of this Lease. If Tenant shall fail to
remove such materials or advertising, Landlord may do so at Tenant's expense. Landlord shall have the
right to display "For Sale," "For Lease," and similar signs in and about the Premises during the last
three (3) months of the Lease Term; provided, such right shall cease immediately upon
Subtenant's:exercise:of:the:Acquisition:Right
20. LIENS. Tenant shall keep the Premises and the Buildings free from any liens arising
out of any work performed, materials ordered, or obligations incurred by or on behalf of Tenant,
and Tenant hereby agrees to indemnify and hold Landlord, its agents, employees, independent
contractors, officers, directors, partners, and shareholders harmless from any liability, cost, or
expense for such liens. Tenant shall cause any such lien imposed to be released of record by
.i'
payment to the lienholder or posting of the proper bond reasonably acceptable to Landlord within
sixty (60) days after the earlier of imposition of the lien or written request by Landlord. If Tenant fails
to remove any lien within the prescribed sixty (60) day period, or to post a satisfactory bond with
Landlord, then Landlord may do so at Tenant's expense.
21. DEFAULT.
21.1 Tenant's Default. A default under this Lease by Tenant shall exist if any of
the following occurs:
21.1.1 If Tenant fails to pay Rent or any other charges due under this Lease to
be paid within fifteen (15) days following written notice from Landlord that the same
is past due; or
21.1.2 If Tenant fails to perform any term, covenant, or condition of this
Lease except those requiring the payment of money, and Tenant fails to cure such
breach within thirty (30) days after notice from Landlord where such breach could
reasonably be cured within such thirty (30) day period; provided, however, that
where such failure could not reasonably be cured within the thirty (30) day period,
that Tenant shall not be in default if it commences such performance within the
thirty (30) day period and diligently thereafter prosecutes the same to completion;
or
21.1.3 If: (a) the interest of Tenant in this Lease shall be levied upon under
execution or other legal process; (b) any voluntary petition in bankruptcy or for
corporate reorganization or any similar relief shall be filed by Tenant; (c) any
involuntary petition in bankruptcy shall be filed against Tenant under any federal or
state bankruptcy or insolvency act and shall not have been dismissed within ninety
(90) days from the filing thereof, (d) a receiver shall be appointed for Tenant or any of
the property of Tenant by any court and such receiver shall not have been
dismissed within thirty (30) days from the date of his appointment; (e) Tenant shall
make an assignment for the benefit of creditors; or (0 Tenant shall admit in writing
Tenant's inability to meet Tenant's debts as they mature; or
21.1.4 If Tenant shall have abandoned the Premises without the continued
payment of Rent; or
21.1.5 The failure by Tenant to pay Rent or any other periodic payments
required to be paid by Tenant under this Lease, within fifteen (15) days after notice
thereof for any three (3) months (consecutive or non-consecutive) during any six
(6) month period (a "Chronic Delinquency").
21.2 Remedies.
21.2.1 Subject to Section 21.3, upon the occurrence of any default, Landlord,
at its option, may at such times as it may determine, concurrently or successively,
without being deemed to have waived any rights or to have made an election of
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./ an
remedies in any circumstance, do any or all of the actions provided in this Section
21.2.1, in addition to any right or remedy provided by law or allowed in equity.
(a) Landlord may apply any prepaid funds to the cost of cure of
any default and/or reenter the Premises and cure any non -monetary default
of Tenant. In such event Tenant shall immediately reimburse Landlord for
any such costs of Landlord to cure Tenant's default; and Landlord shall not
be liable to Tenant for any loss or damage which Tenant may sustain by
reason of Landlord's actions, unless caused by Landlord's negligence or
willful misconduct.
(b) Landlord may, at its option, give notice to Tenant stating that
this Lease and the Lease Term shall expire and terminate on the date
specified in such notice, and upon the date specified in such notice, this
Lease and all rights of Tenant under this Lease shall expire and terminate, in
which event: (i) Tenant shall thereupon quit and surrender the Premises but
shall remain liable as hereinafter provided; and (ii) Landlord may without
notice, reenter and repossess the Premises using such force for that purpose as
may be necessary without being liable to indictment, prosecution, or
damages therefor, and Tenant shall nevertheless remain liable as hereinafter
provided for the remainder of the Lease Term.
(c) Landlord may, without terminating this Lease, reenter the
Premises and, at Landlord's option, repair and alter the Premises in such
manner as Landlord may deem necessary or advisable, and/or relet the
Premises or any parts thereof for the whole or any part of the remainder of
the Lease Term or for a longer period, in Landlord's name or as agent of
Tenant, and out of any rent collected or received as a result of such reletting
Landlord shall first, pay to itself the cost and expense of retaking,
repossessing, repairing, and/or altering the Premises and the cost and
expense of removing all personal property therefrom; second, pay to itself
the cost and expense sustained in securing any new tenants, and if Landlord
shall maintain and operate the Premises, the cost and expense of operating
and maintaining the Premises; and, third, pay to itself any balance remaining
on account of the liability of Tenant to Landlord. No reentry by Landlord
shall absolve or discharge Tenant from liability hereunder. Landlord shall in
no way be responsible or liable for any failure to relet the Premises or any
part thereof, or for any failure to collect any rent due on any such reletting.
(d) Landlord may sue for injunctive relief (including, without
limitation, ejectment) or to recover damages for any loss resulting from the
default by Tenant.
(e) Landlord may serve upon Tenant notice that this Lease and
the then unexpired portion of the Lease Term shall terminate and become
absolutely void on a date specified in such notice, to be not less than thirty
(30) days after the date of such notice, and this Lease, as well as the right,
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title, and interest of Tenant hereunder shall, except as to the rights and
remedies of Landlord upon termination as provided herein, terminate and
become void in the same manner and with the same force and effect as if the
date provided in such notice were the date originally specified for Lease
Expiration Date. Tenant shall then immediately quit and surrender to
Landlord the Premises and all rights of Tenant with respect thereto, and
Landlord may then or at any time thereafter, without judicial proceedings of
any kind, enter into and repossess the Premises, opening locked doors, if
necessary, to effect such entrance, and may remove all occupants and any
property thereon and therefrom without being liable for any action or
prosecution of any kind for such entry or the manner thereof or loss of or
damage to any property upon or within the Premises.
(0 Without terminating this Lease and without notice, Landlord
may, without judicial proceedings of any kind, if legally permitted, enter into
and repossess the Premises, opening locked doors if necessary, to effect such
entrance, and may remove all occupants and any property thereon and
therefrom without being liable for any action or prosecution of any kind for
such entry or the manner thereof or loss of or damage to any property upon or
within the Premises. Landlord may, in addition to its other rights and
remedies, store Tenant's property in a public warehouse or at a place
selected by Landlord, at the expense of Tenant.
21.2.2 In addition to the remedies set forth in Section 21.2.1, in the event of a
default pursuant to Section 21.1.3(b) or Section 21.1.3(c), Tenant shall pay any and
all Rent for the month of said petition and thereafter promptly, and the failure of
Tenant to do so shall constitute a further default entitling Landlord to immediate relief
from the automatic stay and termination of the Lease. Tenant further agrees that the
Rent constitutes the value of Tenant's occupancy of the Premises, and in the event that
Tenant fails to pay any Rent as set forth herein, such unpaid Rent shall constitute an
allowed super -priority administrative expense in favor of Landlord to which Landlord
is entitled to immediate payment, in full, and Tenant shall agree to enter into an order
to such effect in said bankruptcy case.
21.2.3 [Intentionally omitted].
21.2.4 [Intentionally omitted].
21.2.5 No taking or recovering possession of the Premises without
termination of this Lease, shall deprive Landlord of any remedies or actions against
Tenant for Rent or any damages for the breach of any covenant or condition herein
contained, nor shall the bringing of any such action for Rent or breach of any
covenant or condition, nor the resort to any other remedy herein or otherwise
provided for the recovery of Rent or damages for such breach, be construed as a
waiver of the right to insist upon the forfeiture and to obtain possession in the
manner herein provided.
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. ..
21.2.6 No receipt of money by Landlord from Tenant after default or
termination of this Lease shall: (a) reinstate, continue, or extend the Lease Term of
affect any notice given to Tenant; (b) operate as a waiver of the right of Landlord to
enforce the payment of Rent then due or to become due; or (c) operate as a waiver
of the right of Landlord to recover possession of the Premises by suit, action,
proceeding, or other remedy. After: (i) service of notice of termination and
forfeiture as herein provided and the expiration of the time specified therein; (ii) the
commencement of any suit, action, proceeding, or other remedy; or (iii) final order or
judgment for possession of the Premises, Landlord may demand, receive, and
collect any monies due, without in any manner affecting such notice, order, or
judgment. Any and all such monies so collected shall be deemed to be payment on
account of the use and occupation of the Premises or, at the election of Landlord, on
account of the liability of Tenant hereunder.
21.2.7 Any sums which may be expended by Landlord in accordance with the
terms of this Lease that are paid on behalf of Tenant or due to Tenant's default
hereunder shall bear interest at the Interest Rate, and Tenant shall be liable for such
sums plus such interest.
21.2.8 In the event of a Chronic Delinquency, at Landlord's option, Landlord
shall have the additional right to require that Rent be paid by Tenant
quarter -annually, in advance. Landlord however does not relinquish any rights
under Section 21.1.1 or this Section 21.2 by exercising its rights under this Section
21.2.8,
21.2.9 Landlord shall use commercially reasonable efforts to mitigate
damages.
21.3 Rights of Subtenant. Notwithstanding any other provision of this
Agreement to the contrary, Subtenant shall have the right to cure any default by Tenant
within thirty (30) days following notice from Landlord to Subtenant specifying wherein
Tenant has failed to perform any obligation hereunder (or such other breach or default
hereunder) M:providedM:howeverM:that:if:the:nature:of:Tenant's:obligation:is:such:that:more:
than thirty (30) days are required for performance, then Tenant shall not be in default if
Subtenant commences performance within such thirty (30) day period and thereafter
diligently pursues the same to completion. It is the specific intent of Landlord and Tenant,
that this Lease shall not terminate nor shall Landlord have any right of re-entry or be
entitled to any other remedies set forth herein until such time as Subtenant: (a) has
received notice of such default (or conduct which would, with the passage of time,
constitute a breach or default by Tenant); and (b) has had the opportunity, as set forth
herein, to cure any breach of Tenant (or any conduct which would, with the passage of time,
constitute a breach by Tenant). In the event that Subtenant cures a breach or default by
TenantM:Subtenant:shall:have:the:right:to:assume:Tenant's:rights:and:obligations hereunder
and:be:deemed:the:Tenant:under:this:Lease:from:and:after:the:date:of:Subtenant's:notice:to:
Landlord exercising such right.
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1 .0
21.4 Default by Landlord. Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within thirty (30) days after written notice by
Tenant to Landlord, specifying wherein Landlord has failed to perform such obligation;
provided however, that if the nature of Landlord's obligation is such that more than thirty
(30) days are required for performance, then Landlord shall not be in default if Landlord
commences performance within such thirty (30) day period and thereafter diligently
pursues the same to completion.
21.5 Abeyance of Obli>rations. Notwithstanding the foregoing provisions of this
Section 21:
(a) In the event that Subtenant shall default on an obligation to Tenant,
and: if:Tenant:is:similarly:obligated:to: LandlordM:then:Tenant's:obligation:to: Landlord:
shall be held in abeyance until such time as Subtenant shall have cured the default;
and
(b) In the event that Landlord shall default on an obligation to Tenant,
and: if: Tenant: is: similarly: obligated: to: Subtenant0: then: Tenant's: obligation: to:
Subtenant shall be held in abeyance until Landlord shall have cured such default;
provided, however, that Subtenant shall have the right to act:to:enforce:Tenant's:
rights against Landlord and/or to enforce such obligations of Landlord.
22. SUBORDINATION. This Lease and all rights of Tenant hereunder are subject and
subordinate to the lien of any mortgage, ground lease, underlying lease, or other instruments of
security that do now or may hereafter cover the Premises or any interest of Landlord therein, and
to any and all advances made on the security thereof, and to any and all increases, renewals,
modifications, consolidations, replacements, and extensions of any such mortgage, ground lease,
underlying lease, or other instruments of security. This provision is hereby declared to be self -
operative and no further instrument shall be required to effect such subordination of this Lease.
23. SURRENDER OF POSSESSION. Upon expiration or earlier termination of the Lease Term,
Tenant shall promptly and peacefully surrender the Premises to Landlord in as good condition as
when received by Tenant from Landlord or as thereafter improved, reasonable use and wear and tear
excepted; provided, however, that Tenant shall have the right to demolish Building Two or to leave
the same in the condition that it was in on the Lease Commencement Date.
24. NON -WAIVER. Waiver by Landlord or Tenant of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such term, covenant, or
condition(s); or any subsequent breach of the same or any other term, covenant, or condition of this
Lease.
25. HOLDOVER. If Tenant shall hold over after the expiration of the Lease Term without
Landlord's:consent:such tenancy shall be deemed a month -to -month tenancy, which tenancy may
be terminated as provided by applicable state law; provided, however, that the foregoing shall not
be deemed to grant Tenant a right to hold over or to evidence consent to such hold over by
Landlord. During any period that Tenant is holding over, whether with or without Landlord's
consent, Tenant agrees to comply with all obligations of Tenant arising pursuant to this Lease.
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Landlord's acceptance of such Rent shall not constitute consent to such holding over, estop
Landlord from exercising any of the other rights and remedies granted hereunder, or relieve Tenant of
any liability under Section 23.
26. CONDEMNATION.
26.1 Taking. If a Substantial Taking (as hereinafter defined) occurs as a result of
a taking by eminent domain or sale under threat of condemnation by eminent domain,
either party shall have the right to terminate this Lease as of the date title vests in the
condemning authority, and all Rent and other charges due under this Lease shall be paid to
that date. Notice of termination shall be given within sixty (60) days after the party is given
notice of the taking. As used herein, "Substantial Taking" shall mean the following: (a) a
taking of ten percent (10%) or more of either of the Buildings; (b) any portion of the
parking area that reduces the parking area to fewer than two hundred eighty-three (283)
parking spaces; or (c) any entrance from public streets to the Premises are permanently
blocked or taken, and another entrance is not provided in substitution for the one blocked
or taken. If this Lease is not terminated then the Rent shall be reduced as provided in
Section 26.2 of this Lease. Provided however, in the event Landlord provides notice to
Tenant of its election to terminate the Lease under this Section 26.1: (a) Tenant shall be
permitted within thirty (30) days after receiving Landlord's termination notice to exercise
the Extension Option in the manner provided for and subject to the limitations set forth in
Section 1.3; and (b) Subtenant shall be permitted within thirty (30) days after receiving
Landlord's termination notice to exercise the Acquisition Right (if the conditions necessary
for such exercise have been satisfied) and Landlord's notice of termination shall be null and
void and the lease shall continue under the terms hereof.
26.2 Partial Takiing. In case of a taking which is not a Substantial Taking, this
Lease shall continue in full force and effect, and the Rent shall be equitably reduced based
on the proportion by which the floor area of the Buildings and acreage of the Premises is
reduced, such reduction to be effective as of the date title to such portion vests in the
condemning authority. The foregoing notwithstanding, Building Two shall only be included in
the calculation of such equitable reduction if improvements thereto have been completed and
Building Two has been occupied for use.
26.3 Awards and Damages. Landlord reserves all rights to all damages and all
awards to the Premises for any partial or entire taking by eminent domain, and Tenant
hereby assigns to Landlord any right Tenant may have to such damages or award; provided,
however, that Tenant shall may make a claim against Landlord or the condemning authority
for damages for termination of the leasehold interest or interference with Tenant's
business. Tenant shall have the right to claim and recover from the condemning authority
compensation for any loss which Tenant may incur for Tenant's moving expenses, business
interruption or taking of Tenant's personal property (other than Tenant's leasehold
interest).
26.4 Governmental Entity. Neither Landlord nor any Subordinate Agency shall
initiate any eminent domain or similar proceeding against the Premises or any portion
thereof without the prior written consent of Subtenant.
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27. NOTICES. Unless specifically provided for herein, all notices and demands which may
be required or permitted to be given to either party hereunder shall be in writing, and shall be
delivered personally, deposited in the United States mail, certified with return receipt requested,
postage prepaid, or sent via recognized overnight delivery carrier to the addresses set out in
Section 1.5, and to such other person or place as each party may from time to time designate in a
notice to the other. The foregoing notwithstanding, where this Lease calls for "verbal notice" such
notice need not be in writing and shall be sufficient if made to the person designated by Landlord to
Tenant as Landlord's designated contact person (for notices from Tenant to Landlord) or to the
person designated by Tenant to Landlord as Tenant's designated contact person or to the assistant
of such person when the designated contact person is unavailable (for notices from Landlord to
Tenant). In addition to the notice requirements set forth herein and as an accommodation and
convenience for the parties, Landlord and Tenant shall each endeavor to provide a copy of any
required notice via electronic mail; provided, however, that failure to provide notice via electronic
mail shall not be a default hereunder and the delivery of notice via electronic mail shall not be
determinative of the effective date on which notice is deemed to have been given. Landlord shall
provide to Subtenant a copy of any notice to Tenant Subtenant shall provide to Landlord a copy of
any notice to Tenant
28. MORTGAGEE PROTECTION. Tenant agrees to give any mortgagee(s), by certified mail,
return receipt requested, a copy of any notice of default served upon Landlord, provided that prior
to such notice Tenant has been notified in writing (by way of notice of assignment of rents and
leases, or otherwise) of the addresses of such mortgagee(s). Tenant further agrees that if Landlord
shall have failed to cure such default within the time provided for in this Lease, then the
mortgagee(s) shall have an additional thirty (30) days within which to cure such default or if such
default cannot be cured within that time, then such additional time as may be necessary if within such
thirty (30) days any mortgagee(s) has commenced and is diligently pursuing the remedies
necessary to cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease shall not be terminated
while such remedies are being so diligently pursued.
29. COSTS AND ATTORNEYS' FEES. If Tenant or Landlord shall bring any action against the
other, arising out of this Lease, including any suit by Landlord for the recovery of Rent or other
charges due under this Lease, or possession of the Premises, the losing party shall pay the
prevailing party a reasonable sum for attorneys' fees and costs in such suit, at trial, and on appeal,
and such attorneys' fees and costs shall be deemed to have accrued on the commencement of such
action. If applicable law prohibits:an:award:of:attorneys':fees:against:a:party:because:such:party:is:a:
governmental entity, then neither:party:shall:be:entitled:to:an:award:of.attorneys':fees:from:the:
other.
30. BROKERS. Landlord and Tenant each represent and warrant to the other that neither
Landlord nor Tenant nor their respective officers or agents nor anyone acting on their respective
behalf has dealt with any real estate broker in the negotiating or making of this Lease, and Landlord and
Tenant each agree to indemnify and hold the other harmless from all liabilities, costs, demands,
judgments, settlements, claims, and losses, including attorneys' fees and costs, incurred in
conjunction with any such claim or claims of any broker or brokers claiming to be entitled to a
commission or similar fee in conjunction with this Lease.
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31. ASSUMPTION OF LEASEHOLD INTEREST. From and after the fifth (5m) anniversary of the
Lease Rent: Commencement: DateM: Subtenant: shall: have: the: right: to: acquire: Tenant's: leasehold:
interest in the Lease without further consideration; provided, however, that: (a) Subtenant shall
only:be:entitled:to:so:acquire:Tenant's:leasehold:interest:if:such:acquisition:is:permissible:under:
applicable law (other than applicable taw adopted by Landlord or a Subordinate Agency for the
purpose of prohibiting Subtenant from acquiring the leasehold interest) and would not cause the
original transactions contemplated by this Agreement (including, without limitation, the Lease and
Sublease) or by the EDC Grant or IEDC Tax Credit to be unwound or subject Landlord to material
and adverse consequences (other than the transfer of the leasehold interest) M:and:(b):Subtenant's:
right: to:acquire:Tenant's:leasehold:interest:shall:vest:upon:the: Rent: Commencement: Date:if:such:
acquisition is permissible at such time under applicable law and the other conditions set forth in
the preceding Section 31(a). In the event that either Landlord or Tenant believe that such
acquisition of the leasehold interest by Subtenant does violate applicable law, would cause the
original transactions (or any of them) to be unwound, or would subject Landlord to material and
adverse consequences, it shall be the burden of the party asserting such to demonstrate the reasons
therefor to Subtenant in writing.
32. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, within thirty (30) days
following Landlord's written request, execute, acknowledge:and:deliver:to:Lan dlord:or: Landlord's
designee a written statement stating: the date the Lease was executed and the date it expires; the
date Tenant entered occupancy of the Premises; the amount of Rent and other charges due under
this Lease and the date to which such amounts have been paid; that this Lease is in full force and
effect has not been assigned, modified, supplemented, or amended in any way (or specifying the
date and terms of any agreement so affecting this Lease); that this Lease represents the entire
agreement between the parties as to this leasing (or specifying such other agreements); that all
conditions under this Lease to be performed by Landlord have been satisfied (or specifying any
such conditions that have not been satisfied); that all required contributions by Landlord to Tenant
on account of Tenant's improvements have been received (or specifying any such contributions that
have not been received); that on this date there are no existing defenses or offset which Tenant has
against the enforcement of this Lease by Landlord; that no Rent has been paid more than one (1)
month in advance; that no security has been deposited with Landlord (or, if so, the amount thereof);
or any other matters evidencing the status of the Lease, as may be required either by a lender
making a loan to Landlord to be secured by a mortgage against the Premises, or a purchaser of the
Premises. The foregoing notwithstanding, Landlord shall not request such an estoppel certificate
more frequently than bi-annually except as may be required for purposes of a prospective sale or
financing of the Premises. It is intended that any such statement delivered pursuant to this Section
32 may be relied upon by a prospective purchaser of Landlord's interest or a mortgagee of
Landlord's interest or assignee of any mortgage upon Landlord's interest in the Premises.
33. TRANSFER OR ASSIGNMENT OF LANDLORD'S INTEREST. In the event of any sale or
transfer of Landlord's interest in the Premises or an assignment by Landlord of this Lease, Landlord
shall be released, freed, and relieved of all obligations under the Lease arising from and after the
date of such transfer; provided, however, that the successor landlord has executed in writing an
instrument:whereby:such:successor:has:assumed:all:of:Landlord's:obligations:arising:hereunder. It
shall be deemed without further agreement between the parties that any purchaser or transferee of
Landlord's interest in the Building or assignee of Landlord's interest in the Lease shall be the sole
party to which Tenant may look for observance and performance of all of Landlord's obligations
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under the Lease arising from and after the date of such transfer and delivery to Tenant of such
assumption instrument. Such transferee or assignee shall be deemed to be the "Landlord" and all
references to "Landlord" herein shall be deemed to refer to such transferee or assignee. The
provisions of this Section shall be applicable to any subsequent transfers or assignments and to
each successor Landlord.
34. RIGHT TO PERFORM. If Tenant shall fail to pay any sum of money, other than Rent,
required to be paid by it hereunder or shall fail to:perform: any: other: act:on:Tenant's part to be
performed hereunder, and such failure shall continue for thirty (30) days following written notice
from Landlord setting for such failure with specificity, then Landlord may, but shall not be obligated
so to do, and without waiving or releasing Tenant from any obligations of Tenant, make any such
payment or perform any such other act on Tenant's part to be made or performed as provided in
this Lease.
35. SUBSTITUTED PREMISES. [Intentionally omitted].
36. SALES AND AUCTIONS. [Intentionally omitted].
37. No ACCESS To ROOF. [Intentionally omitted].
38. SECURITY. [Intentionally omitted].
39. AUTHORITY OF TENANT. Each individual executing this Lease on behalf of Landlord,
Tenant, and Subtenant, as applicable, represents and warrants that such person is duly authorized to
execute and deliver this Lease on behalf of Landlord, Tenant, or Subtenant, as applicable, and that
this Lease is binding upon Landlord, Tenant, or Subtenant as applicable.
40. NO ACCORD OR SATISFACTION; WRITTEN UNDERTAKING. No payment by Tenant or
receipt by Landlord of a lesser amount than the Rent and other charges due under this Lease shall
be deemed to be other than on account of the earliest sums due, nor shall any endorsement or
statement on any check or accompanying any check or payment 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 sums and to pursue any other remedy provided in this Lease.
41. MODIFICATIONS FOR LENDER. If in connection with obtaining financing for the
Premises or any portion thereof, Landlord's lender shall request reasonable modifications to this
Lease as a condition to such financing, Tenant shall not unreasonably withhold, delay, or defer its
consent to such modification provided such modifications do not materially adversely affect
Tenant's rights or obligations hereunder.
42. GOVERNMENTAL LANDLORD. Notwithstanding any other provision of this Lease to the
contrary, Landlord shall not use its rights or powers as a governmental entity nor permit any
Subordinate Agency to use its rights or powers as a governmental entity to take any governmental
action:(a:"Governmental Action"):that:would:materially:decrease:Tenant's:rights:hereunder:or:
materially:increase:Tenant's:obligations:hereunderM:other:than:a:Governmental:Action:of:general:
applicability throughout the jurisdiction:covered:by:Landlord's:governing:authorityH
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43. GENERAL PROVISIONS.
43.1 Acceptance. This Agreement (and both the Lease and Sublease) shall only
become effective and binding upon full execution hereof by Landlord, Tenant, and
Subtenant, and delivery of a fully executed copy of this Agreement to each of Landlord,
Tenant, and Subtenant. The foregoing notwithstanding, this Agreement (and the Landlord
and Sublease) shall not become binding upon Landlord, Tenant, and Subtenant, as
applicable, until all of the Conditions have been satisfied.
43.2 joint Obligation. If there are more than one individual or entity identified
as Tenant, the obligations hereunder imposed shall be joint and several.
43.3 Marginal Headings, Etc. The marginal headings, Table of Contents, Lease
Summary Sheet, and titles to the sections of this Lease are not a part of the Lease and shall
have no effect upon the construction or interpretation of any part hereof.
43.4 Choice of Law and Jurisdiction. This Lease shall be governed by,
construed, and enforced in accordance with the laws of the State of Indiana without regard
to its principles of conflict of laws. Landlord and Tenant hereby consent to jurisdiction and
venue in the Circuit or Superior Court of Wayne County, Indiana, for any action or
proceeding arising out of or relating to this Lease or any document or instrument delivered
in connection herewith. All claims in respect of such action or proceeding shall be heard and
determined in the Circuit or Superior Court of Wayne County, Indiana. Any action or
proceeding brought against the other shall be brought only in such state court
43.5 Successors and Assigns. The covenants and conditions herein contained,
subject to the provisions as to assignment, inure to and bind the heirs, successors,
executors, administrators, and assigns of the parties hereto.
43.6 Recordation. Neither Landlord nor Tenant shall record this Lease, but a
short -form memorandum hereof shall be recorded at the request of Landlord or Tenant.
43.7 Quiet Possession. Upon Tenant's paying the Rent and other charges due
under this Lease, and observing and performing all of the covenants, conditions, and
provisions on Tenant's part to be observed and performed hereunder, Tenant shall have
quiet possession of the Premises for the Lease Term, subject to all the provisions of this
Lease.
43.8 Inability to Perform. This Lease and the obligations of Landlord or Tenant
hereunder shall not be affected or impaired because Landlord or Tenant, as applicable is
unable to fulfill any of their respective obligations hereunder or is delayed in doing so, if
such inability or delay is caused by reason of strike, labor troubles, acts of God, or any other
cause beyond the reasonable control of such party.
43.9 Partial Invalidity. Any provision of this Lease which shall prove to be
invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof
and such other provision(s) shall remain in full force and effect
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• \ , Y
43.10 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other remedies at law or in
equity.
43.11 Entire Agreement. Except for the Conditions Precedent and the documents
referenced therein, this Agreement contains all agreements of the parties with respect to
any matter mentioned herein. No prior or contemporaneous agreement or understanding
pertaining to any such matter shall be effective. All of the representations and obligations of
Landlord, Tenant, and Subtenant are contained herein, and no modification, waiver or
amendment of this Lease or Sublease or of any of their respective conditions or provisions
shall be binding upon Landlord, Tenant, and/or Subtenant, as applicable, unless in writing
signed by Landlord, Tenant, and/or Subtenant, as applicable.
43.12 Waiver of lure Trial. Landlord and Tenant hereby agree that each of them
shall waive trial by jury in any action, proceeding, or counterclaim brought by either
Landlord or Tenant against the other. This waiver applies to any matters whatsoever
arising out of or in any way connected with this Lease, or the relationship of Landlord and
Tenant, or Tenant's use of the Premises, or any emergency statute, or remedy authorized by
statute.
43.13 Interpretation. Whenever herein the masculine gender is used, the same
shall include the feminine and neuter genders, and vice versa, as the context shall require.
This Lease shall not be construed with resort to any presumption against the preparer
hereof.
43.14 Relationship of Parties. Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third party to create the relationship of principal and
agent, partnership, joint venture, or any association between Landlord and Tenant, Tenant
and Subtenant, or Landlord and Subtenant, it being expressly understood and agreed
that neither the method of computation of Rent nor any act of the parties hereto shall be
deemed to create any relationship between Landlord and Tenant or between Tenant and
Subtenant other than the relationship of landlord and tenant.
IN WITNESS WHEREOF, Landlord, Tenant, and Subtenant have executed this Lease and this
Sublease on the day and year first above written.
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TENANT:
ECONOMIC DEVELOPMENT CORPORATION OF WAYNE
COUNTY, INDIANA, an Indiana non-profit
corporation
By:
Printed Name: '?
Title: �r �'_S (_��' ► 1 i
SUBTENANT:
THE STRIDE RITE CORPORATION, a Massachusetts
corporation
By:"���
Printed Name: f� F01 c
Title: V -u G
LANDLORD:
THE CITY OF RICHMOND, INDIANA
By:
Prii
Tit]
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EXHIBIT A
LOCATION OF PREMISES
[Prepared by Landlord]
-31-
EXHIBIT B
PLANS
[to be attached]
-32-
-I -k:. 4,r'
EXHIBIT C
ACCEPTANCE OF PREMISES
LANDLORD: The City of Richmond, Indiana
TENANT: Economic Development Corporation of Wayne County, Indiana, an Indiana non-
profit corporation
SUBTENANT: The Stride Rite Corporation, a Massachusetts corporation
PREMISES: 1400 & 1500 Industries Road, Richmond, Indiana
LEASE TERM: 120 months
LEASE COMMENCEMENT DATE:
RENT COMMENCEMENT DATE:
LEASE EXPIRATION DATE:
Having inspected the above -described Premises, Tenant and Subtenant hereby acknowledge that
Landlord's:Work:is:substantially complete and the Premises is ready for occupancy in accordance
with the terms of the Lease and Sublease and any construction exhibits related thereto, excepting
those items requiring correction and/or completion as noted on the attached punch list form.
Tenant and Subtenant further acknowledge they have received keys to the Buildings. Tenant
and Subtenant also confirm the above -stated dates to be correct.
TENANT:
ECONOMIC DEVELOPMENT CORPORATION OF WAYNE
COUNTY, INDIANA, an Indiana non-profit
corporation
Bv:
Printed Name:
Title:
Date:
SUBTENANT:
THE STRIDE RITE CORPORATION, a Massachusetts
corporation
Bv:
Printed Name:
Title:
Date:
-33-
af^
EXHIBIT D
LEASE COMMENCEMENT DATE AGREEMENT
THIS LEASE COMMENCEMENT DATE AGREEMENT is made this day of 2014, by and
between THE CITY of RICHMOND, INDIANAO: a/an: : ("Landlord")M: whose: address: is: 50: North
Fifth Street, Richmond, Indiana 47374, and ECONOMIC DEVELOPMENT CORPORATION OF WAYNE COUNTY,
INDIANA, an Indiana non-profit: corporation: ("Tenant")M: whose: address: is: 500: South: A: Street, Suite
2, Richmond, Indiana 47374M:and:by:and:between:Tenant:(as:"Sublandlord"):and:THE STRIDE RITE
CORPORATION, a Massachusetts corporation ("Subtenant")M: whose: address: is: 9341 Courtland Drive
NE, Rockford Michigan 49351.
RECITALS:
WHEREAS, Landlord on the day of February 2014, entered into a Lease (the "Lease")
with Tenant for 1400 & 1500 Industries Road, Richmond, Indiana, for a term of one hundred twenty
(120) months; and
WHEREAS, contemporaneous with the execution of the Lease, Tenant entered into a Sublease
(the:"Sublease"):with:Subtenant:for 1400 & 1500 Industries Road, Richmond, Indiana, for a term of one
hundred twenty (120) months; and
WHEREAS, Landlord, Tenant, and Subtenant now desire to set forth certain dates pursuant to the
Lease and Sublease.
Now THEREFORE Landlord, Tenant, and Subtenant each agree that for purposes of both the
Lease and Sublease, the Lease Commencement Date shall be the day of . 2014, the
Rent Commencement Date shall be the day of . 2014, and the Lease Expiration Date shall
be the day of. 2024.
[signatures on following page]
-34-
IN WITNESS WHEREOF, Landlord, Tenant, and Subtenant have executed this Lease
Commencement Date Agreement on the day and year first above written.
TENANT:
ECONOMIC DEVELOPMENT CORPORATION OF WAYNE
COUNTY, INDIANA, an Indiana non-profit
corporation
By:
Printed Name:
Title:
SUBTENANT:
THE STRIDE RITE CORPORATION, a Massachusetts
corporation
By:
Printed Name:
Title:
LANDLORD:
THE CITY OF RICHMOND, INDIANA
By:
Printed Name:
Title:
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