Indiana-Mt. Vernon-One Competition Way Lease - Bikeland LLC and Dan's Competition Inc.
LEASE AGREEMENT
BY AND BETWEEN
BIKELAND, LLC
AND
DAN'S COMPETITION, INC.
THIS LEASE AGREEMENT (this "Lease"), is dated September 28, 2001, between
BIKELAND, LLC, an Indiana limited liability company ("Landlord"), having an
address at One Competition Way, Mt. Vernon, Indiana 47620, and DAN'S
COMPETITION, INC., a Delaware corporation ("Tenant"), having an address at 151
West 26th Street, 11th Floor, New York, New York 10001.
WITNESSETH THAT:
In consideration of the mutual covenants and conditions herein stated, the
parties agree as follows:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord a building containing approximately thirty-seven thousand four hundred
(37,400) rentable square feet of certain retail, warehouse and office space
together with the real property upon which the building is located which is
described on Schedule A hereto (the "Premises") located at One Competition Way,
Mt. Vernon, Indiana.
2. TERM. Unless sooner terminated pursuant to the provisions hereof, this Lease
shall continue for a period of four (4) years and two days (the "Term"),
commencing on September 28, 2001 (the "Commencement Date") and ending on
September 30, 2005 (the "Expiration Date"). Notwithstanding the Commencement
Date, if for any reason Landlord cannot deliver possession of the Premises on
said date, Tenant shall not be obligated to pay Rent (as hereinafter defined)
until possession of the Premises is tendered to Tenant. In the event that the
Premises are not delivered to Tenant by October 10, 2001, Tenant shall have the
right to terminate this Lease upon ten (10) days prior written notice to
Landlord.
3. RENT.
(a) Tenant shall pay to Landlord at the address set forth above, or at
such other address as Landlord may designate from time to time,
without prior demand therefore and without any deduction, setoff,
abatement or credit whatsoever, as fixed minimum monthly rent during
the first two years of the Term the sum of Twelve Thousand Two Hundred
and 00/100 Dollars ($12,200.00) ("Basic Rent")
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in advance on the first (1st) day of each calendar month during the
Term hereof. Thereafter, the Basic Rent due and payable for the
balance of the Term shall be the fair market rent for the Premises as
determined by Landlord and set forth in a written notice to Tenant,
which determination shall be as of the date (hereinafter called the
"Determination Date") occurring three (3) months prior to the start of
such new rent period and which determination shall be made by Landlord
and given in writing to Tenant within a reasonable period of time
after the occurrence of the Determination Date.
(b) If Tenant disputes the fair market rent as determined by Landlord
pursuant to Paragraph 3(a) hereof, then at any time on or before the
date occurring thirty (30) days after Tenant has been notified by
Landlord of Landlord's determination of the fair market rent, Tenant
may initiate the arbitration process provided for herein by giving
notice to that effect to Landlord, and if Tenant so initiates the
arbitration process such notice shall specify the name and address of
the person designated to act as an arbitrator on its behalf. If Tenant
fails to initiate the arbitration process as provided above, then
Landlord's determination of the Basic Rent during such period shall be
conclusive. Within thirty (30) days after the Landlord's receipt of
notice of the designation of Tenant's arbitrator, Landlord shall give
notice to Tenant specifying the name and address of the person
designated to act as an arbitrator on its behalf. If Landlord fails to
notify Tenant of the appointment of its arbitrator within the time
above specified, then the appointment of the second arbitrator shall
be made in the same manner as hereinafter provided for the appointment
of a third arbitrator in a case where the two arbitrators appointed
hereunder and the parties are unable to agree upon such appointment.
The two arbitrators so chosen shall meet within ten (10) days after
the second arbitrator is appointed, and if, within twenty (20) days
after the second arbitrator is appointed, the two arbitrators shall
not agree upon a determination of the Basic Rent for such period, they
shall together appoint a third arbitrator. If they are unable to agree
upon such appointment within thirty (30) days after the appointment of
the second arbitrator, the third arbitrator shall be selected by the
parties themselves if they can agree thereon within a further period
of fifteen (15) days. If the parties do not so agree, then either
party, on behalf of both and on notice to the other, may request such
appointment by the American Arbitration Association (or any
organization successor thereto). The majority of the arbitrators shall
determine the fair market rent of the Premises for the balance of the
Term and render a written certified report of their determination to
both Landlord and Tenant within thirty (30) days of the appointment of
the first two arbitrators or thirty (30) days from the appointment of
the third arbitrator, if such third arbitrator is appointed pursuant
to this Paragraph 3(b); and the fair market rent, so determined, shall
be the Basic Rent for the Premises during the balance of the Term.
(c) Each party shall pay the fees and expenses of the one of the two
original arbitrators appointed by or for such party, and the fees and
expenses of the third arbitrator and all other expenses (not including
the attorneys fees, witness fees
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and similar expenses of the parties which shall be borne separately by
each of the parties) of the arbitration shall be borne by the parties
equally.
(d) Each of the arbitrators selected as herein provided shall be a
licensed real estate appraiser in the State of Indiana and have at
least five (5) years experience in the appraisal or professional
licensed brokerage of leasing and renting of similar space in Posey
and/or Vanderburgh County, Indiana and shall hold the designation as a
Member of the Appraisal Institute, Counselor of Real Estate or Society
of Real Estate Appraisers.
(e) If the Tenant initiates the aforesaid arbitration process and as of
the applicable date the amount of the fair market rent has not been
determined, Tenant shall continue to pay the Basic Rent then in effect
and when the determination has actually been made, an appropriate
retroactive adjustment shall be made as of the applicable date. If
that such determination shall result in an overpayment by Tenant of
any Basic Rent, such overpayment shall be paid by Landlord to Tenant
promptly after such determination.
(f) All other sums payable by Tenant hereunder, regardless of to whom such
sums may be payable, shall be deemed additional rent ("Additional
Rent"), and shall be collectible by Landlord in the same manner as
Basic Rent. Basic Rent and Additional Rent are hereinafter referred to
collectively as "Rent".
4. OCCUPANCY. Tenant shall use and occupy Premises solely for executive,
administrative, retail store, warehouse space and general office use and for no
other purpose whatsoever. Tenant shall not at any time use or occupy the
Premises in violation of the certificate of occupancy issued for the Premises.
5. TAXES.
(a) Real Estate Taxes. Tenant shall pay all real estate taxes and
assessments on the Premises which are due and payable during the term
of this Lease when due. All real estate taxes shall be paid to the
Landlord by the Tenant, as additional Rent. Landlord shall promptly
forward to the Tenant a copy of all billings for real estate taxes and
assessments on the Premises, which are due and payable during the term
of this Lease. Tenant shall within ten (10) days prior to its due date
either (i) appropriately pay the real estate taxes and assessments and
forward evidence of payment to the Landlord; or (ii) pay the Landlord
an amount equal to the real estate taxes and assessments so as to
enable the Landlord to pay the real estate taxes before the due date
thereof. Within thirty (30) days prior to the termination of this
Lease or vacation of the Premises by the Tenant, the Tenant shall pay
to the Landlord the pro-rated amount of the real estate taxes and
assessments for the Premises payable through the Lease termination
date or Tenant's vacation date but not yet due. Tenant shall have the
right to promptly, reasonably and in good faith contest the real
estate taxes assessed during the term of this Lease; provided that the
Tenant indemnifies the Landlord and save harmless the Landlord from
all
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such actions related to the real estate taxes, including all
attorney's fees and expenses incurred by Landlord. Notwithstanding the
foregoing to the contrary, Landlord hereby agrees to cooperate with
any such appeal made by Tenant, provide any information and execute
any documents required in making such appeal.
(b) Personal Property Taxes. Tenant shall pay all taxes, assessments,
license fees and levies of every kind, before the same become
delinquent, that may be assessed against its personal property and
fixtures located on the Premises, and/or resulting from operations on
the Premises. Tenant shall have the right to promptly, reasonably and
in good faith contest the personal property taxes assessed during the
term of this Lease; provided that the Tenant indemnifies the Landlord
and save harmless the Landlord from all such actions related to the
personal property taxes, including all attorney's fees and expenses
incurred by Landlord. Notwithstanding the foregoing to the contrary,
Landlord hereby agrees to cooperate with any such appeal made by
Tenant, provide any information and execute any documents required in
making such appeal.
6. UTILITIES. Tenant shall obtain all utility services (including, without
limitation, all electrical energy for the air-conditioning and ventilating
system servicing the demised premises) directly from the public utility
companies furnishing such services to the Premises. The costs of such services
shall be paid by Tenant directly to such public utility companies, but a default
by Tenant in the payment of any bill or charge of such company shall be deemed a
default by Tenant under this Lease.
7. MAINTENANCE AND REPAIRS. Tenant shall, at its sole expense, maintain and take
good care of the Premises and make all non-structural repairs to the interior
portions of the Premises as well as to all building systems such as HVAC,
plumbing and electrical systems that are necessary to keep the Premises in good
order and repair. Landlord shall, at its sole expense, make all repairs and
replacements to the roof, exterior walls and structure of the Premises All
repairs by Landlord and Tenant shall be performed in a good and workmanlike
manner and in accordance with all applicable laws. Tenant shall not commit or
suffer, and shall use all reasonable precaution to prevent, waste, damage or
injury to the Premises. The Tenant shall not be liable for any resulting damage
occasioned by leak, defect, known or unknown, or the failure to make such
repairs. The Tenant agrees to inform the Landlord promptly upon becoming aware
of any condition that might require a repair to be made by the Landlord.
8. REQUIREMENT OF LAW, INSURANCE. Landlord, at Landlord's sole cost and expense,
shall promptly comply with all present and future laws, orders and regulations
of all state, federal, municipal and local governments, departments, commissions
and boards and any direction of any public officer pursuant to law which shall
impose any violation, order or duty upon Landlord with respect to the Premises.
Tenant, at Tenant's sole cost and expense, shall promptly comply with all
present and future laws, orders and regulations of all state, federal, municipal
and local governments, departments, commissions and boards and any direction of
any public officer pursuant to law which shall impose any violation, order or
duty upon Tenant with respect to the Premises. Nothing herein shall require
Tenant to make structural repairs or
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alterations unless Tenant has, by its manner of use of the Premises or method of
operation therein, or any Alterations (hereinafter defined) made by or on behalf
of Tenant, violated any such laws, ordinances, orders, rules, regulations or
requirements with respect thereto. Tenant shall not do or permit any act to be
done in or to the Premises which is contrary to law, or will invalidate or be in
conflict with public liability, fire or other policies of insurance at any time
carried by or for the benefit of Landlord with respect to the Premises or the
Premises, or which shall or might subject Landlord to any liability or
responsibility to any person or for property damage. Tenant shall pay all costs,
expenses, fines, penalties, and/or damages which may be imposed upon Landlord by
reason of Tenant's failure to comply with the provisions of this Paragraph.
9. TENANT ALTERATIONS, IMPROVEMENTS. Tenant shall make no structural
alterations, installations, additions or improvements (collectively,
"Alterations") in or to the Premises, of any nature without Landlord's prior
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed. Tenant shall, before making any Alterations at its expense, obtain
all permits, approvals and certificates required by any governmental or
quasi-governmental bodies (including certificates of final approval thereof) and
shall deliver promptly duplicates of all such permits, approvals and
certificates to Landlord. If any mechanic's lien is tiled against the Premises
or the Premises for work claimed to have been done for, or materials furnished
to, Tenant, the same shall be discharged by Tenant at Tenant's expense, within
thirty (30) days after filing, by payment or filing the bond required by law.
All Alterations, wiring, cabling, fixtures, paneling, partitions, railings and
like installations installed in the Premises at any time, either by Tenant or by
Landlord on Tenant's behalf, shall, upon installation, become the property of
Landlord and shall remain upon and be surrendered with the Premises. Nothing in
this Paragraph shall be construed to give Landlord title to or to prevent
Tenant's removal of trade fixtures, moveable office furniture and equipment, but
upon removal of any such items from the Premises Tenant shall, at its expense,
repair and restore the Premises. All property permitted or required to be
removed by Tenant at the end of the Term remaining in the Premises for more than
thirty (30) days after the Expiration Date shall be deemed abandoned and may, at
the election of Landlord, either be retained as Landlord's property or be
removed from the Premises by Landlord, at Tenant's expense.
10. TRADE FIXTURES. Landlord agrees that Tenant may install any and all fixtures
and equipment on said Premises which may be necessary and proper for the use of
the Premises and such trade fixtures shall be deemed as belonging to Tenant and
may be removed by Tenant at the time it vacates the Premises; provided, however,
that if the removal or failure to remove such trade fixtures shall cause any
damage to the Premises, then Tenant covenants and agrees either to repair such
damage and to restore the Premises to the same condition they were prior to such
removal, or to compensate Landlord for such damage. If Tenant fails to remove
such trade fixtures and personal property then the same shall become the
property of Landlord.
11. SIGNS. Tenant shall have the right to erect and maintain appropriate signage
for the sole purpose of advertising its business; provided, however, all such
signage must be in compliance with applicable laws and ordinances. Tenant shall
not erect or install any other sign or other type of display whatsoever on the
Premises or upon the exterior of the buildings which constitute part
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of the Premises or upon or in any window of such buildings without the prior
express written consent of the Landlord, which consent will not unreasonably be
withheld or delayed.
12. SUBORDINATION/ATTORNMENT. This Lease is subject and subordinate to any
ground lease or mortgage which may now or hereafter encumber the Premises, and
to all renewals, modifications, amendments, consolidations, replacements and
extensions thereof provided that such current or future lender executes an
agreement which provides that Tenant subordinates its interest to lender
provided that in the event of Landlord's default of such mortgage or foreclosure
Tenant's use and occupation of the Premises pursuant to this Lease shall not be
disturbed so long as Tenant is not then in default under this Lease beyond all
applicable notice and cure periods In the event of the sale or assignment of
Landlord's interest in the Premises, or in the event of any proceeding brought
for the foreclosure of any mortgage or other security instrument made by
Landlord covering the Premises (or the granting of a deed in lieu thereof),
Tenant shall attorn to the assignee or purchaser and recognize such assignee or
purchaser as the landlord hereunder.
13. DESTRUCTION BY FIRE AND OTHER CASUALTY. If the Premises or any part thereof
shall be damaged by fire or other casualty, Tenant shall give immediate notice
upon its awareness of such fire or casualty thereof to Landlord and this Lease
shall continue in full force and effect except as hereinafter set forth. If the
Premises are partially damaged or rendered partially unusable by fire or other
casualty, the damages thereto shall be repaired by and at the expense of
Landlord and the Rent until such repair shall be substantially completed shall
be abated from the day following the casualty apportioned equitably based on the
amount of space rendered unuseable by such fire or casualty. If the Premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
Rent shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the Premises shall have been
repaired and restored by Landlord (or if sooner re-occupied in part by Tenant
then Rent shall be apportioned as provided in this Paragraph 13), subject to
Landlord's right to elect not to restore the same as hereinafter provided. If
the Premises are rendered wholly unusable or (whether or not the Premises are
damaged in whole or in part) if the Premises shall be so damaged that Landlord
shall decide to demolish it or to rebuild it, then, in any of such events,
Landlord may elect to terminate this Lease by written notice to Tenant, given
within 60 days after such fire or casualty, or 10 days after adjustment of the
insurance claim for such fire or casualty, whichever is sooner, specifying a
date for the expiration of this Lease, which date shall not be more than 30 days
after the giving of such notice, and upon the date specified in such notice the
term of this Lease hall expire as fully and completely as if such date were the
Expiration Date and Tenant shall forthwith quit, surrender and vacate the
Premises without prejudice, however, to Landlord's rights and remedies against
Tenant under the Lease provisions in effect prior to such termination, and any
rent owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Landlord shall serve a termination notice as provided for herein,
Landlord shall make the repairs and restorations required under this Paragraph
13 with all reasonable diligence, subject to delays due to adjustment of
insurance claims, labor troubles and causes beyond Landlord's control. Tenant's
liability for rent shall resume five (5) days after written notice from Landlord
that the Premises are substantially ready for Tenant's occupancy.
Notwithstanding the foregoing, including Landlord's obligation to restore as
provided in this Paragraph 13, each party shall look
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first to any insurance in its favor before making any claim against the other
party for recovery for loss or damage resulting from fire or other casualty, and
to the extent that such insurance is in force and collectible and to the extent
permitted by law, Landlord and Tenant each hereby releases and waives all right
of recovery with respect to any such damage by fire or other casualty against
the other or anyone claiming through or under each of them by way of subrogation
or otherwise. The foregoing release and waiver shall be in force only if both
party's insurance policies contain a clause providing that such a release or
waiver shall not invalidate the insurance. Tenant acknowledges that Landlord
will not carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements, or appurtenances removable by Tenant and
agrees that Landlord will not be obligated to repair any damage thereto or
replace the same.
14. EMINENT DOMAIN. If the whole or any material part of the Premises shall be
acquired or condemned by eminent domain for any public or quasi public use or
purpose, then the term of this Lease shall cease and terminate from the date of
title vesting in such proceeding and Tenant shall have no claim for the value of
any unexpired term of this Lease and assigns to Landlord Tenant's entire
interest in any such award. Tenant shall have the right to make an independent
claim to the condemning authority for the value of Tenant's moving expenses and
personal property, trade fixtures and equipment, provided Tenant is entitled
pursuant to the terms of this Lease to remove such property, trade fixtures and
equipment at the end of the Term and provided further such claim does not reduce
Landlord's award.
15. ACCESS TO PREMISES. Landlord or Landlord's employees and agents shall have
the right (but shall not be obligated) to enter the Premises at reasonable times
and upon reasonable prior notice but in any emergency at any time, and, at other
reasonable times, to examine the same and to make such repairs, replacements and
improvements as Landlord may deem necessary and reasonably desirable to the
Premises or to any other portion of the Premises. Tenant shall permit Landlord
to use and maintain and replace pipes and conduits in and through the Premises
and to erect new pipes and conduits therein provided they are concealed within
the walls, floor or ceiling. Throughout the Term, Landlord shall have the right
to enter the Premises at reasonable hours and upon reasonable prior notice for
the purpose of showing the same to prospective purchasers or mortgagees of the
Premises, and during the last six (6) months of the Term for the purpose of
showing the same to prospective tenants. If Tenant is not present to open and
permit an entry into the Premises, Landlord or Landlord's employees and agents
may enter the same whenever such entry may be necessary or permissible provided
reasonable care is exercised to safeguard Tenant's property, such entry shall
not render Landlord or its agents liable therefore, nor in any event shall the
obligations of Tenant hereunder be affected.
16. INSURANCE. Throughout the Term Tenant shall maintain, at its own cost and
expense, the following insurance with recognized insurance companies licensed to
transact business in the State of Indiana: (a) fire insurance on leasehold
improvements to and personal property located in the Premises or used in
connection therewith in an amount not less than full replacement cost; (b)
public liability insurance (including contractual liability) with limits of not
less than $1,000,000 for bodily injury or death to one person, $1,000,000 for
bodily injury or death to more than one person, and $500,000 for property
damage; and (c) such other insurance as Landlord may from time to time
reasonably require. All insurance policies shall provide that the
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insurer will not cancel or modify said policies without first giving Landlord at
least thirty (30) days prior written notice.
17. DEFAULT. The occurrence of any one or more of the following events shall
constitute a default under this Lease, at the Landlord's option: (a) Tenant's
failure to make any payment of Basic Rent within ten (10) days after the due
date thereof; (b) Tenant's failure to make any payment of Additional Rent within
twenty (20) days after written notice thereof, (c) Tenant shall abandon the
Premises for more than thirty (30) days; (d) Tenant shall become insolvent, or
shall make a transfer in fraud of creditors, or shall make an assignment in lieu
of creditors; (e) Tenant shall file a petition for bankruptcy under Chapter 11
of the U.S. Code or Tenant shall be adjudicated bankrupt or insolvent in a
proceeding filed against Tenant, or a receiver or trustee shall be appointed for
all or substantially all of the assets of Tenant and such receivership shall not
be terminated or stayed within thirty (30) days; (f) Tenant fails to maintain
the insurance coverage required under Paragraph 16 hereof; or (g) Tenant fails
to comply with any term, condition or covenant of this Lease, other than those
described in clauses (a)-(f) above, and such failure is not cured within thirty
(30) days after written notice thereof.
18. REMEDIES. In the event of any default described in Paragraph 17 above: (a)
Landlord may dispossess Tenant by summary proceedings, (b) the Rent due or
payable hereunder, shall become due thereupon and be paid up to the time of such
default, (c) Landlord may re-let the Premises or any part or parts thereof,
either in the name of Landlord or otherwise, for a term or terms, which may at
Landlord's option be less than or exceed the period which would otherwise have
constituted the balance of the Term and may grant concessions or free rent or
charge a higher rental than that in this Lease, and/or (d) Tenant or the legal
representatives of Tenant shall pay Landlord as liquidated damages for the
failure of Tenant to observe and perform Tenant's covenants herein contained,
any deficiency between the rent hereby reserved and/or covenanted to be paid and
the net amount, if any, of the rents collected on account of the lease or leases
of the Premises for each month of the period which would otherwise have
constituted the balance of the Term. The failure of Landlord to re-let the
Premises or any part or parts thereof shall not release or affect Tenant's
liability for damages. In computing such liquidated damages there shall be added
to said deficiency such expenses as Landlord reasonably may incur in connection
with reletting, such as reasonable legal expenses, costs, brokerage and
advertising fees, and costs incurred for keeping the Premises in good order or
for preparing the same for re-letting. Any such liquidated damages shall be paid
in monthly installments by Tenant on the rent day specified in this Lease and
any suit brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Landlord to collect the deficiency for any
subsequent month by a similar proceeding. Landlord, in putting the Premises in
good order or preparing the same for re-rental may, at Landlord's option, make
such alterations, replacements, and/or decorations in the Premises as in
Landlord's sole judgment considers advisable and necessary for the purpose of
re-letting the Premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall in no event be
liable in any way whatsoever for failure to relet the Premises, or in the event
that the Premises are re-let, for failure to collect the rent thereof under such
reletting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Landlord
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Landlord shall have
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the right of injunction and the right to invoke any remedy allowed at law or in
equity as if re-entry, summary proceedings and other remedies were not herein
provided for. Mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedy, in law or in equity. Tenant hereby expressly
waives any and all rights of redemption granted by or under any present or
future laws in the event of Tenant being evicted or dispossessed for any cause,
or in the event of Landlord obtaining possession of Premises, by reason of the
violation by Tenant of any of the covenants and conditions of this Lease, or
otherwise. In the event of any default Tenant shall remain liable for all
reasonable costs, fees and expenses including, but not limited to, attorneys'
fees, costs and expenses incurred by Landlord in pursuit of its remedies
hereunder.
19. NO SUBLEASE OR ASSIGNMENT. Tenant shall not sublease, assign, mortgage,
pledge, or otherwise encumber this Lease or any of its rights hereunder, except
with the prior written consent of Landlord; which consent shall not be
unreasonably withheld based upon the reasonable approval of the financial
responsibilities and capabilities and general character of any proposed assignee
or subtenant; provided, however, in the event of any assignment or sublease of
all or any part of the Premises the Tenant shall remain fully liable and
responsible for the obligations imposed under this Lease. Notwithstanding the
foregoing to the contrary, Landlord's consent shall not be required in the event
of Tenant's merger or consolidation with any entity which controls or is
controlled by Tenant or is under common control with Tenant.
20. END OF TERM. Upon the expiration or other termination of the Term, Tenant
shall quit and surrender to Landlord the Premises, broom clean, in good order
and condition, and as otherwise required by this Lease, ordinary wear and
damages which Tenant is not required to repair as provided elsewhere in this
Lease excepted, and Tenant shall remove all its property. Tenant's obligation to
observe or perform this covenant shall survive the expiration or other
termination of this Lease. Tenant acknowledges that possession of the Premises
must be surrendered to Landlord at the expiration or sooner termination of the
Term.
21. NO WAIVER. The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this Lease or
of any of the rules or regulations currently in effect or hereafter adopted by
Landlord with respect to the Premises, shall not prevent a subsequent act which
would have originally constituted a violation from having all the force and
effect of an original violation. No payment by Tenant or receipt by Landlord of
a lesser amount than the monthly Rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in this Lease provided. No act or thing done by
Landlord or Landlord's agents during the Term shall be deemed an acceptance of a
surrender of the Premises.
22. HAZARDOUS MATERIAL INDEMNIFICATION. In the event the use by Tenant or the
presence of "hazardous material" on or about the Premises because of Tenant's
use or occupancy of the Premises results in contamination of the Premises or if
contamination of the Premises by hazardous material otherwise occurs for which
the Landlord is legally liable for damage resulting therefrom (except if caused
by Landlord), then the Tenant shall indemnify,
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defend and hold harmless the Landlord from any and all claims, judgments,
damages, penalties, fines, costs, liabilities or losses (including, without
limitation, diminution in value of the Premises, damages for the loss or
restriction on use of leasable or usable space or of any amenity on the
Premises, damages arising from any adverse impact on marketing of space and sums
paid in settlement of claims, attorneys' fees, consultant fees and expert fees)
which arise during or after the lease term as a result of such contamination by
Tenant. This indemnification of the Landlord by the Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any
federal, state, or local governmental agency or political subdivision because of
hazardous material present in the soil or groundwater on or under the Premises.
Without limiting the foregoing, if the presence of any hazardous material on the
Premises caused or permitted by the Tenant results in any contamination of the
Premises, the Tenant shall promptly take all actions at its sole cost and
expense as are necessary to return the Premises to the condition existing prior
to the introduction of any such hazardous material to the Premises; provided
that the Landlord's approval of such actions shall be obtained, which approval
shall not be unreasonably withheld so long as such actions would not potentially
have any material adverse long-term or short-term effect on the Premises.
As used herein, the term "hazardous material" means any hazardous or toxic
substance, material or waste which is or becomes regulated by any local
governmental authority, the State of Indiana, or the United States Government or
any agency thereof. The term "hazardous material" includes, without limitation,
any material or substance that is:
(a) radioactive material;
(b) defined as a "hazardous substance" under Indiana Codess.13-7-8.7-1, as
amended;
(c) designated as a "hazardous substance" pursuant to the Federal Water
Pollution Control Act (33 U.S.C.ss.1321), as amended;
(d) defined as a "hazardous waste" pursuant to Section 1004 of the Federal
Resource Conservation and Recovery Act, (42 U.S.C.ss.6901, et seq.),
as amended;
(e) defined as a "hazardous substance" pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act; or
(f) designated by the Landlord, in its reasonable discretion, to be
hazardous to human health or property and which the Landlord
reasonably determines must he cleaned up, removed or otherwise
treated, whether or not the substance is considered hazardous for the
purposes of any federal or state statutes or local ordinances.
23. AMERICANS WITH DISABILITIES ACT PROVISION. Tenant shall, at Tenant's sole
cost and expense, take all action, including any required alterations necessary
("Requirements") to comply with all requirements (including, but not limited to,
applicable terms of all local laws and the Americans with Disabilities Act of
1990 ("ADA"), 42 U.S.C.ss.12101 et
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seq., each as modified and supplemented from time to time) which shall, with
respect to the Premises or with respect to any abatement of nuisance:
(a) impose any violation, order, or duty upon Landlord or Tenant arising
from, or in connection with the Premises, Tenant's occupancy, use, or
manner of use of the Premises (including, without limitation, any
occupancy, use, or manner of use that constitutes a "place of public
accommodation" under the ADA), or any installations in the Premises;
or
(b) be required by reason of a breach of any of Tenant's covenants or
agreements under this Lease, whether or not those Requirements shall
now be in effect or hereafter enacted or issued, and whether or not
any work required shall be ordinary or extraordinary or foreseen or
unforeseen at the date of this Lease.
Notwithstanding the foregoing, Tenant shall not be obligated to perform any
alterations necessary to comply with any Requirements, unless compliance shall
be required by reason of (i) any cause or condition arising out of any
alterations or installations in the Premises (whether made by Tenant or by
Landlord on behalf of Tenant), or (ii) Tenant's particular use, manner of use or
occupancy on behalf of Tenant of the Premises (as opposed to mere use as
executive, general, and administrative offices), or (iii) any breach of any of
Tenant's covenants or agreements under this Lease, or (iv) any wrongful act or
omission by Tenant or persons with Tenant's control, or (v) Tenant's
"accommodation" within the meaning of the ADA.
24. WAIVER OF TRIAL BY JURY. Landlord and Tenant hereby waive trial by jury in
any action proceeding or counterclaim brought by either of them against the
other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this Lease.
25. LANDLORD'S LIABILITY. Landlord (and its members, employees and agents) shall
have no personal liability with respect to this Lease. If Landlord is in breach
or default under this Lease, Tenant shall look solely to the equity of Landlord
in the Premises for the satisfaction of Tenant's remedies and in no event shall
Tenant attempt to secure or execute any personal judgment against Landlord (or
its partners, shareholders, members, managers, beneficial landlords, employees
or agents) by reason of such default by Landlord. This Lease and the obligation
of Tenant to pay Rent hereunder and perform all of the other covenants and
agreements hereunder on part of Tenant to be performed shall in no way be
affected, impaired or excused because Landlord is unable to fulfill any of its
obligations under this Lease if Landlord is prevented or delayed from so doing
by reason of strike or labor troubles or any cause whatsoever beyond Landlord's
control, including but not limited to, government preemption or restrictions or
by reason of any rule, order or regulation of any department or subdivision of
any government agency, or by reason of war or other emergency.
26. BILLS AND NOTICES. A bill, statement, notice or communication which Landlord
may desire or be required to give to Tenant shall be deemed sufficiently given
or rendered if, in writing, delivered to Tenant personally or sent by registered
or certified mail addressed to Tenant at the Premises, and the time of the
rendition of such bill or statement and of the giving of such
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notice or communication shall be deemed to be the time when the same is
delivered to Tenant. Any notice by Tenant to Landlord must be served by
registered or certified mail addressed to Landlord at the address first
hereinabove given or at such other address as Landlord shall designate by
written notice from time to time.
27. DEFINITIONS. The term "Landlord" means a landlord or lessor, and as used in
this Lease means only the owner, or the mortgagee in possession, for the time
being of the Premises so that in the event of any sale of said Premises, the
said landlord shall be relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the purchaser, that the successor-in-interest or purchaser at any such sale has
assumed and agreed to carry out any and all covenants and obligations of
Landlord, hereunder. The term "business days" as used in this Lease shall
exclude Saturdays, Sundays, and all Federal holidays, State holidays and
holidays celebrated by the unions governing employees of the Premises.
28. SUCCESSORS. The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, distributees, executors, administrators, successors, and except as
otherwise provided in this Lease, their assigns. Tenant shall look only to
Landlord's estate and interest in the Premises for the satisfaction of Tenant's
remedies for the collection of a judgment (or other judicial process) against
Landlord in the event of any default by Landlord hereunder, and no other
property or asserts of Landlord (or any partner. member, officer or director
thereof, disclosed or undisclosed), shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this Lease, the relationship of Landlord and Tenant hereunder, or
Tenant's use and occupancy of the Premises.
29. LATE FEE. If Tenant shall fail to pay any installment of Basic Rent within
ten (10) days after the due date thereof, Tenant shall pay to Landlord, upon
demand and as Additional Rent: (a) a late fee in an amount equal to two percent
(2%) of the total amount of Basic Rent owed and not timely paid and (b) interest
on the unpaid amount at the rate of one percent (1.0%) per month from the date
such amount was originally due until the date same is paid; provided, however,
in no event shall any such amounts exceed the maximum amount permitted by
applicable law.
30. RENEWALS.
(a) Provided that a default shall not have occurred and be continuing
under this Lease at the time of the exercise thereof, Tenant shall
have three (3) options to extend the term of this Lease, each for a
period of two (2) years (each, a "Renewal Term"). Tenant shall be
deemed to have exercised the option for a Renewal Term unless it
shall, by written notice to Landlord (the "Renewal Notice") given not
less than ninety (90) days before the Expiration Date of the Initial
Term of this Lease or the Expiration Date of the Renewal Term, as the
case may be, elect to have this Lease terminate on such Expiration
Date. Unless Tenant shall elect to and shall timely terminate any such
option, the term of this Lease shall be automatically extended for two
(2) years, without the execution of an extension or
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renewal lease. Within ten (10) days after request by either party, the
parties shall execute, acknowledge and deliver an instrument
confirming that such option has been effectively exercised and
confirming the extended Expiration Date of the term of this Lease. The
terms and conditions applicable during each such Renewal Term shall be
the same terms and conditions as are in effect immediately preceding
the commencement of the Renewal Term, except that the Base Rent shall
be the fair market rent for the premises at the rate determined in
accordance with Paragraph 3(b) hereof and there shall be no further
option to extend the term of this Lease beyond the expiration date of
the third Renewal Term. Any termination, expiration, cancellation or
surrender of this Lease on or prior to the Expiration Date shall
terminate the option. Such options may not be severed from this Lease
nor separately sold, assigned nor otherwise transferred.
(b) If Tenant exercises its right to extend the term of this Lease for the
Extension Term pursuant to this Paragraph 30, the phrases "the term of
this lease" or "the term hereof" as used in this Lease, shall be
construed to include the then current Renewal Term, and the Expiration
Date shall be construed to be the date of the expiration of the then
current Renewal Term.
(c) If this Lease is renewed for a Renewal Term, then Landlord or Tenant
can request the other party hereto to execute, acknowledge and deliver
an instrument in form for recording setting forth the exercise of
Tenant's right to extend the term of this Lease and the last day of
the then current Renewal Term.
31. QUIET ENJOYMENT. So long as Tenant pays all of the Rent and performs all of
Tenant's other obligations hereunder, Tenant shall peaceably and quietly have,
hold and enjoy the Premises without hindrance, ejection or molestation by
Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease and to any subordination,
non-disturbance and attornment agreement executed between Tenant and another
party thereto.
32. NOTICE. A notice required or permitted to be given under this Lease, or by
any governmental law or regulation, shall be sufficient if in writing, and if
sent by Registered or Certified Mail, postage prepaid as follows:
Tenant: DAN'S COMPETITION, INC.
151 West 26th Street
11th Floor
New York, New York 10001
Or such other address as Tenant shall designate in writing to the Landlord.
Landlord: B1KELAND, LLC
One Competition Way
Mt. Vernon, IN 47620
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Or such other address as Landlord shall designate in writing to the Tenant.
33. MISCELLANEOUS.
(a) All understandings and agreements heretofore made between the parties
hereto are merged in this Lease and any agreement hereafter made shall
be ineffective to change or modify the terms of this Lease unless such
agreement is in writing and signed by the party against whom
enforcement is sought.
(b) Each party shall, at any time and from time to time, as requested by
the other party, upon not less than fourteen (14) days' prior notice,
execute and deliver to the requesting party a statement certifying
that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and
effect as modified and stating the modifications), certifying the
dates to which the Basic Rent and Additional Rent have been paid,
stating whether or not, to the best knowledge of the party giving the
statement, the requesting party is in default in performance of any of
its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge,
and stating whether or not, to the best knowledge of the party giving
the statement, any event has occurred which with the giving of notice
or passage of time, or both, would constitute such a default of the
requesting party, and, if so, specifying each such event; any such
statement delivered pursuant hereto shall be deemed a representation
and warranty to be relied upon by the party requesting the certificate
and by others with whom such party may be dealing, regardless of
independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as Landlord may
reasonably request; provided, however, that in no event shall Tenant
be required to submit Tenant's financial statement(s) in connection
with a request for an estoppel certificate.
(c) Irrespective of the place of execution or performance, this Lease
shall be governed by and construed in accordance with the laws of the
State of Indiana. If any provision of this Lease or the application
thereof to any Person or circumstance shall, for any reason and to any
extent, be invalid or unenforceable, the remainder of this Lease and
the application of that provision to other Persons or circumstances
shall not be affected but rather shall be enforced to the extent
permitted by law. The table of contents, captions, headings and titles
in this Lease. are solely for convenience of reference and shall not
affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against
the party causing this Lease to be drafted. If any words or phrases in
this Lease shall have been stricken out or otherwise eliminated,
whether or not any other words or phrases have been added, this Lease
shall be construed as if the words or phrases so stricken out or
otherwise eliminated were never included in this Lease and no
implication or inference shall be drawn from the fact that said words
or phrases were so stricken out or otherwise eliminated. Each
covenant, agreement, obligation or other provision of this Lease on
Tenant's part to be performed, shall be deemed and
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construedas a separate and independent covenant of Tenant, not
dependent on any other provision of this Lease. All terms and words
used in this Lease, regardless of the number or gender in which they
are used, shall be deemed to include any other number and any other
gender as the context may require.
(c) If a party institutes a legal action to enforce the terms of this
Lease, the unsuccessful party in such action or proceedings shall be
responsible to reimburse the successful party for the legal costs and
reasonable attorney's fees incurred by the successful party in
connection with such action or proceedings.
34. NO ORAL AMENDMENT OR MODIFICATIONS. No amendment or modification of this
Lease, and no approvals, consents or waivers under this Lease shall be valid or
binding unless in writing and executed by the party to be bound.
35. RELATIONSHIP OF THE PARTIES. Nothing contained herein shall be deemed or
construed as creating the relationship as principal and agent, or of
partnership, or of joint venture by the parties hereto, it being understood and
agreed that no provision contained in this Lease nor any acts of the parties
hereto shall be deemed creating a relationship other than the relationship of
Landlord and Tenant.
36. SUCCESSORS. The terms, provisions, covenants, promises, and conditions of
this Lease shall extend to and be binding upon the heirs, executors, Legal
representatives, successors and assigns of the respective parties hereto.
37. CAPTION FOR CONVENIENCE. The headings and captions hereof are for
convenience only and shall not be considered in interpreting the provisions
hereof.
38. COUNTERPARTS. This Lease may be executed in two or more counterparts each of
which shall be deemed an original and all of which shall constitute one and the
same document.
39. TIME OF THE ESSENCE. Time is of the essence under this Lease and all
provisions herein relating thereto shall be strictly construed.
40. SEVERABILITY. If any provision of this Lease shall be held invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, and
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
41. ENTIRE AGREEMENT. This Lease and the exhibits referred to herein, constitute
the final and complete expression of the parties' agreement with respect to the
Premises. Each party agrees that it has not relied upon or regarded as binding
any prior agreements, negotiations, representations, or understandings, whether
oral or written, except as expressly set forth herein.
42. MEMORANDUM OF LEASE. This Lease shall not be recorded. Tenant and Landlord
shall, at the option of Tenant, execute and deliver a memorandum of this Lease
in proper form for the purpose of recording, but said memorandum of this Lease
shall not in any circumstances
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be deemed to modify or change any of the provisions of this Lease, the
provisions of which shall in all instances prevail.
43. AUTHORITY. Each individual executing this Lease on behalf of Landlord and
Tenant represents and warrants they are duly authorized to deliver this Lease on
behalf of Landlord and Tenant and that this Lease is binding on Landlord and
Tenant in accordance with its terms.
44. VENUE. The parties hereby stipulate that the exclusive venue of any action
brought in respect of the interpretation hereof or the rights of the parties
hereunder, both during the term of this Agreement or subsequent to any
termination hereof, shall be placed in any state court of general jurisdiction
in Vanderburgh County, Indiana.
45. TRIPLE NET LEASE. It is the intention of the Landlord and Tenant that to the
maximum extent possible this Lease shall be deemed and construed to a "triple
net lease", Tenant shall pay all charges, assessments, impositions, expenses and
obligations of every kind relating to the Premises, which may arise or become
due during the term of this Lease or any extension thereof, all of which Tenant
shall pay on or before the due date thereof.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and sealed
this Lease as of the day and year first above written,
BIKELAND, LLC
By: /s/ Daniel E. Duckworth
------------------------
(signature)
Daniel E. Duckworth
----------------------------
(printed name)
Manager
----------------------------
(title)
"Landlord"
DAN'S COMPETITION, INC.
By: /s/ Matthew C. Diamond
------------------------
(signature)
Matthew C. Diamond
----------------------------
(printed name)
President
----------------------------
(title)
"Tenant"
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Schedule A
The leased real estate, consisting of a building which contains 37,400 square
feet, more or less, is more particularly described as follows:
The west one half (1/2) of the following described real estate, to wit:
Part of the East Half of the Southwest Quarter of Section 3, Township 7 South,
Range 13 West of the Second Principal Meridian, lying in Black Township, Posey
County, Indiana, and more particularly described as follows:
Beginning at a railroad spike marking the Northeast Corner of the East Half of
the Southwest Quarter of Section 3, Township 7 South, Range 13 West, said corner
being 3.57 feet South of the center line of Old Indiana Highway 62; thence South
00 degrees 06 minutes 34 seconds West contiguous with the Eastern Boundary of
said quarter section 281.56 feet to three-eighths inch iron pin; thence South 00
degrees 01 minute 20 seconds West contiguous with said Eastern Boundary 254.68
feet to the Northern Right-of-way of Indiana Route 62; thence South 69 degrees
06 minutes 33 seconds West contiguous with said Northern Right-of-way line 12.38
feet; thence South 38 degrees 08 minutes 43 seconds West contiguous with said
Northern Right-of-way line 58.31 feet; thence South 69 degrees 06 minutes 33
seconds West contiguous with said Northern Right-of-way line 437.10 feet; thence
Southwesterly 9.35 feet contiguous with said Northern Right-of-way line along an
arc concave to the Northwest with a radius of 28,517.89 feet to a five-eighths
inch iron pin with plastic cap inscribed "LS29500016" (herein called
`monument'); thence North 00 degrees 01 minute 20 seconds East 747.68 feet to a
monument on the Northern Boundary of said quarter section; thence South 89
degrees 44 minutes 25 seconds East contiguous with said Northern Boundary 465.12
feet to the point of beginning, containing 3.5 acres more or less.
17