Exhibit 10.21
LEASE
THIS LEASE is made and executed as
of the 17th day of April, 2006, by and between, KRISLEE-TEXAS, LLC,
a Michigan limited liability company (“Landlord”), and
MANITEX, INC., a Texas corporation (“Tenant”), who
agree as follows:
WHEREAS, Tenant is currently the
owner of the Premises and is in possession of the
Premises;
WHEREAS, pursuant to a Purchase
Agreement, executed simultaneously herewith, Tenant is selling the
Premises to Landlord.
WHEREAS, Tenant wishes to extend its
occupancy at the Premises for a period of twelve
(12) years.
SECTION 1
THE PREMISES
1.01 Landlord leases to Tenant and
Tenant leases from Landlord, for the term and subject to the
provisions of this Lease the land and improvements (the
“Premises”) legally described on attached Exhibit
A.
SECTION 2
LEASE TERM
2.01 The term of
this Lease (the “Term”) shall commence April
, 2006 on the date hereof (the
“Commencement Date”) and shall end on the last day of
the one hundred forty-fourth (144 th
) full calendar
month after the Commencement Date, or if one or more extension
options is/are exercised by Tenant as provided herein, the date for
expiration of the last such extension to be exercised (the
“Expiration Date”).
SECTION 3
RENT; ADDITIONAL RENT
3.01 During the Term specified in
Section 2.01, Tenant agrees to pay to Landlord minimum net
rent in monthly installments, calculated as follows:
(a) During the first twelve
(12) months following the Commencement Date, the annual
minimum net rent shall be $804,000 payable in twelve equal monthly
installments. In addition, for the period from the Commencement
Date through the last day of the partial calendar month at the
beginning of the Term, Tenant shall pay minimum net rent prorated
on a daily basis based upon the number of days existing in such
partial calendar month calculated in the foregoing
manner.
(b) For each succeeding twelve
(12) month period (or final partial year) during the Term, the
minimum net rental shall be adjusted to an annualized amount equal
to the annualized minimum net rental during the preceding twelve
(12) month period times multiplied by a fraction, the
numerator of which shall be the CPI for the final month of the
preceding twelve (12) month period, and the denominator of
which shall be the CPI for the first month of the preceding such
twelve (12) month period. For purposes hereof,
“CPI” shall mean and refer to the
Consumer Price Index for All Urban Consumers, U.S. City Average,
All Items, 1982-84 = 100, as issued by the Bureau of Labor
Statistics, United States Department of Labor. If at any time
during the term hereof the United States Bureau of Labor Statistics
shall discontinue the issuance of the CPI, then the parties agree
to use any other standard, nationally recognized cost of living
index then issued and available, which is published by the United
States Government, and if no governmental index is then published,
then by any generally recognized privately published index of the
cost of living. Notwithstanding the foregoing, (i) the
adjustment in minimum net rental for any such twelve
(12) month period in the term shall not exceed two percent
(2%) of the annualized minimum net rental for the previous
twelve (12) month period, and (ii) in no event shall the
minimum net rent in any succeeding twelve (12) month period be
less than that paid during the preceding twelve (12) month
period. Additionally, if the adjustment in annualized minimum net
rental for any new twelve (12) month period has not been
calculated prior to the due date of the monthly installment of
minimum net rent for such month, the relevant monthly installment
shall be paid based on the prior year’s annualized minimum
net rent until such time as the new minimum net rent has been
established, and the shortfall, if any, shall be paid with the
first monthly installment for which the revised minimum net rent
has been established.
(c) Except as otherwise set forth
hereinabove, each monthly installment of minimum net rent shall be
paid in advance, on the first day of each calendar month during the
Term.
3.02 In addition to the minimum net
rent specified in Section 3.01 above, Tenant agrees to pay as
“Additional Rent” for the Premises (i) all
governmental taxes, assessments, fees, penalties and charges of
every kind or nature (other than Landlord’s income taxes),
whether general, special, ordinary or extraordinary, due and
payable at any time, or from time to time, during the Term and any
extensions thereof, in connection with the ownership, leasing or
operation of the Premises or of the personal property and equipment
located therein or in connection therewith (collectively,
“:Taxes”) and (ii) all costs, expenses and charges
of every nature, including, but not limited to capital
expenditures, relating to, or incurred in connection with, the
ownership or operation of the Premises and that are attributable to
the Term. All such Taxes shall be paid by Tenant before they become
delinquent. Because Tenant or one of Tenant’s affiliates was
the prior owner and in possession of the Premises prior to the
Commencement Date, there will be no proration of taxes for the
first year of the Term. The Taxes for last year of the Term and any
extension thereof will be prorated as follows: (i) Taxes which
are due and payable in the last year of the Term shall be prorated
between Landlord and Tenant as of last date of the Term on the
basis of the days remaining in that calendar year; (ii) Any
tax bills due in the calendar year not yet received by the last
date of the Term will be estimated based upon the previous years
bill; and (c) Landlord shall be responsible for its prorated
amount of any payment not credited to Tenant at the end of the
Term. If any special assessments levied against the Premises are
payable in installments, Tenant shall be responsible only for those
installments that are attributable to the period during which
Tenant has possession of the Premises. For purposes hereof, Taxes
for any year shall be Taxes that are first due for payment in that
year, rather than taxes that are assessed or become a lien or
accrue during such year. If at any time during the Term, the
methods of taxation prevailing on the date hereof shall be altered,
such additional or substitute tax, assessment, levy, charge or
imposition shall be deemed to be included within the term
“Taxes” for the purposes hereof. Tenant shall have the
right, at its sole cost, to contest or appeal any assessment for
Taxes. All refunds or credits obtained as a result of any such
contest or appeal shall belong to and be remitted directly to
Tenant.
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3.03 Landlord and Tenant acknowledge
and agree that this is a net lease, and that it must yield, net, to
Landlord during the original Term, not less than the minimum net
rent shown in Section 3.01. All costs, expenses and charges of
every nature relating to the Premises which may be attributable to,
or become due during, the Term will be paid by Tenant, and Tenant
will indemnify and hold harmless Landlord from and against such
costs, expenses and charges.
SECTION 4
LATE CHARGES AND INTEREST
4.01 Any rent or other sums, if any,
payable by Tenant to Landlord under this Lease which are not paid
within five (5) days after they are due, and any rent or other
sums received and accepted by Landlord more than five (5) days
after they are due, will be subject to a late charge of two percent
(2%) of the amount due in each instance, to cover
Landlord’s additional administrative costs. Such late charges
will be due and payable as additional rent on or before the due
date of the next installment of minimum net rent.
4.02 Any rent, late charges or other
sums payable by Tenant to Landlord under this lease not paid within
thirty (30) days after the same are due will bear interest at
a per annum rate equal to eight (8%) from the date such
payments first became due. Such interest will be due and payable as
Additional Rent on or before the due date of the next installment
of minimum net rent, and will accrue from the date that such rent,
late charges or other sums are payable under the provisions of this
Lease until actually paid by Tenant.
SECTION 5
SECURITY DEPOSIT
5.01 None required.
SECTION 6
CONDITION OF PREMISES
Tenant agrees that Tenant is
familiar with the condition of the Premises, and Tenant hereby
accepts the Premises on an “AS-IS,”
“WHERE-IS” basis, with assumption of all faults. Tenant
acknowledges that it has been in control of occupancy of the
Premises for at least ten (10) years and that neither Landlord
nor any representative of Landlord has made any representation as
to the condition of the Premises or the suitability of the Premises
for Tenant’s intended use. Tenant represents and warrants
that Tenant has made its own inspection of the Premises and is not
relying on any representation of Landlord with respect thereto.
Landlord shall not be obligated to make any repairs, replacements
or improvements of any kind or nature to the Premises (whether
structural or nonstructural and whether or not involving the roof
of the Building, the Building’s HVAC (defined below) system,
the Premises’ parking lot, or any other component of the
Premises) in connection with, or in consideration of, this
Lease.
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SECTION 7
USE OF PREMISES; SIGNAGE
7.01 Tenant shall be entitled to use
and occupy the Premises for any lawful purpose in compliance with
all applicable laws, ordinances.
7.02 Tenant shall have the right,
with Landlord’s consent, which consent shall not be
unreasonably withheld, conditioned or delayed, and subject to
compliance with the applicable zoning ordinance, to prominent
exterior signage, all as reasonably determined by
Tenant.
SECTION 8
MAINTENANCE AND REPAIR
8.01 Throughout the term of this
Lease, Tenant at its sole cost and expense, will take good care of
the Premises, both inside and outside and keep the same and all
parts thereof, including without limitation, HVAC, plumbing and
electrical systems, the roof, foundations and appurtenances
thereto, and the drive and parking areas, together with any and all
alterations, additions and improvements therein or thereto, in
substantially the same condition as on the Commencement Date,
normal wear and tear and casualty loss excepted, suffering no waste
or injury, and will perform all regular and special maintenance and
promptly make all needed repairs and replacements, interior and
exterior, structural and non-structural, ordinary and
extraordinary, foreseen and unforeseen, in and to the Premises,
including vaults, sidewalks, water, sewer, electrical and gas
connections, pipes and mains, ventilation, heating and
air-conditioning systems, sprinkler systems, and all other
fixtures, machinery and equipment now or hereafter belonging to or
connected with the Premises or used in its operation in order that
the Premises remain in a first class condition. All maintenance,
repairs and replacements made by Tenant will be at least equal in
quality and class to that historically performed by Tenant or its
affiliates at the Premises.
8.02 Any maintenance, repairs,
additions or alterations to the Premises or any of its systems
(e.g., plumbing, electrical, mechanical), structural or
non-structural, which are required by any law, statute, ordinance,
rule, regulation or governmental authority or insurance carrier,
including, without limitation, OSHA and the American With
Disabilities Act, will be promptly made by Tenant at its sole
expense.
SECTION 9
INSURANCE
9.01 Tenant shall, at its cost,
obtain, pay for and maintain “All Risk” property
insurance on a replacement cost basis (which in no event shall be
less than the initial principal balance of any first mortgage on
the Premises obtained by Landlord), covering the building and all
of the other improvements on the Premises, which insurance shall be
written without a co-insurance penalty. The total amount of the
deductible required under each policy providing such coverage shall
be no more than $25,000.00 per loss. Landlord shall be named as an
additional insured, and Landlord’s mortgagee shall be named
pursuant to a standard mortgagee endorsement. The property
insurance required to be maintained by Tenant shall also include
coverage for acts of terrorism; provided that the cost of said
terrorism coverage does not exceed ten percent (10%) of the
cost of the overall liability insurance premium without such
terrorism coverage.
9.02 Tenant shall, at its cost, at
all times during the Lease Term obtain and pay for and maintain in
full force and effect a commercial general liability insurance
policy covering Tenant against claims arising out of liability for
bodily injury and death,
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and property damage occurring in and about the
Premises, with limits of not less than $2,000,000.00 per occurrence
and $5,000,000.00 annual general aggregate. The total amount of a
deductible or otherwise self-insured retention with respect to such
coverage shall be not more than $50,000.00 per occurrence. Such
insurance shall: (i) provide coverage on an occurrence basis
or a claims made basis; (ii) name Landlord and any mortgagee
of Landlord as additional insureds; and (iii) include a
severability of insured parties provisions and a cross-liability
endorsement. Tenant may, at its option, provide the above insurance
by means of a so-called “blanket” policy; provided,
however, that any such policy or policies of blanket insurance
must, as to the Premises, otherwise comply as to endorsements and
coverage with the other provisions of this
Section 9.
9.03 Tenant shall, at its cost,
obtain, pay for and maintain workers’ compensation insurance
as required in the state in which the Premises are
located.
9.04 Tenant shall, at is cost,
obtain, pay for and maintain loss of rents insurance covering
minimum net rent for a period of one (1) year.
9.05 All insurance policies required
under this Lease shall: (i) be issued by companies licensed to
do business in the State in which the Premises are located and
acceptable to Landlord; (ii) not be subject to cancellation or
material change or non-renewal without at least thirty
(30) days’ prior written notice to Landlord; and
(iii) be deemed to be primary insurance in relation to any
other insurance maintained by Landlord. A certificate of insurance
evidencing such policy shall be delivered by Tenant to Landlord
upon commencement of the Lease Term and thereafter at least thirty
(30) days prior to any expiration of such policy.
9.06 Landlord shall not be liable to
Tenant [or to any insurance company (by way of subrogation of
otherwise) insuring Landlord] for any loss or damage to the
Premises, the structure of the buildings located thereon, other
tangible property located on the Premises, or any resulting loss of
income, or losses under workers’ compensation laws and
benefits, despite the fact that such loss or damage might have been
occasioned by the negligence or misconduct of such party, its
agents or employees, provided and to the extent that any such loss
or damage would be covered by insurance that the party suffering
the loss is required to maintain pursuant to the terms of this
Lease. The failure of Tenant to insure its property shall not void
this waiver. Tenant shall secure an appropriate clause in, or an
endorsement upon, each insurance policy obtained by it and covering
or applicable to the Premises and the personal property, fixtures,
and equipment located therein or thereon, pursuant to which the
insurance company consents to such waiver of right of recovery. The
waiver of right of recovery set forth above in this
Section 9.05 shall extend to Landlord, its agents and
employees, and its mortgagee.
SECTION 10
CASUALTY LOSS
10.01 Subject to the provisions of
Section 10.03 below, if the Premises are damaged by fire or
other insured casualty, Tenant shall repair the damage and restore
and rebuild the Premises with reasonable dispatch. Landlord will
(and if applicable, will cause its mortgagee to) promptly endorse
any check for insurance proceeds in favor of Tenant in order to
fund repairs and restoration and will not delay or condition such
endorsement.
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10.02 If (a) the Premises is
damaged by fire or other casualty thereby causing material
interference with Tenant’s use, enjoyment or occupancy of the
Premises, or (b) the Premises are partially damaged by fire or
other casualty casualty thereby causing material interference with
Tenant’s use, enjoyment or occupancy of the Premises, all
rent shall be equitably abated to the extent of the portion of the
Premises Tenant is unable to reasonably use, enjoy, or occupy until
completion of the repair and restoration work and issuance of a
certificate of occupancy.
10.03 If the Premises is totally
destroyed by fire or other casualty, or if the Premises is so
damaged by fire or other casualty that: (i) its repair or
restoration requires more than two hundred forty (240) days;
or (ii) such repair or restoration requires the expenditure of
more than seventy percent (70%) of the full insurable value of
the Premises immediately prior to the casualty; or (iii) the
damage (x) is less than the amount stated in (ii) above
but more than fifty percent (50%) of the full insurable value
of the Premises and (y) occurs during the last two
(2) years of Lease Term; Tenant shall have the option to
terminate this Lease (by so advising Landlord in writing) within
thirty (30) days after such contractor or architect delivers
written notice of its opinion to Landlord and Tenant. In such
event, the termination shall be effective as of the date upon which
Landlord receives written notice from Tenant terminating this Lease
pursuant to the preceding sentence. In addition, if repair and
restoration of the Premises is not completed and a certificate of
occupancy issued within two hundred forty (240) days after
occurrence of the casualty loss (subject to increase by up to 30
days due to force majeure events), Tenant shall have the right to
terminate this Lease by so advising Landlord in writing within ten
(10) business days after expiration of such two hundred forty
(240) day period (as extended by up to 30 days due to force
majeure events), except that such termination election shall be
void if the repair and restoration work is substantially completed
and a certificate of occupancy has been issued before
Tenant’s delivery of its termination notice.
SECTION 11
COMPLIANCE WITH LAWS; HAZARDOUS
MATERIALS
11.01 To the best of Tenant’s
knowledge, neither the Tenant nor any affiliate of Tenant has used
Hazardous Materials (hereinafter defined) on, from or affecting the
Premises in any manner which violates in any material respect
federal, state or local laws, ordinances, rules, regulations or
policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of
Hazardous Materials, including, without limitation, the laws
referred to below (collectively, “Environmental Laws”)
or which causes an existing material environmental problem or
contamination at our about the Premises, or which required or
requires any permit or are subject to special regulation (without
in each such case having obtained the applicable permit or complied
with such special regulation).
11.02 The Tenant has never received
any notice of any violations (and to the best of its knowledge is
not aware of any existing violations) of Environmental Laws, the
Premises are not in violation of any Environmental Laws and the
Tenant is unaware of (i) any actions commenced or threatened
by any party for non-compliance of Environmental Laws which affects
the Premises in any material way, or (ii) any environmental
problems or contamination at or about the Premises.
11.03 The Tenant shall only use
Hazardous Materials in the ordinary course of its business at the
Premises and such use shall not in any manner violate Environmental
Laws governing said use nor require any permit, nor cause any
environmental problems or
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contamination at or about the Premises. The
Tenant shall not cause or permit the Premises to be used to
generate, manufacture, refine, transport, treat, store, handle,
dispose of, transfer, produce or process any hazardous waste,
except in compliance with Environmental Laws.
11.04 The Tenant shall conduct and
complete all investigations, studies, sampling and testing, and all
removal and other actions necessary to clean up and remove all
Hazardous Materials on, under, from or affecting the Premises if
the Tenant is required by Environmental Laws or any agency or court
order, determination or recommendation to undertake such acts or if
Tenant shall become aware of the presence of Hazardous Materials
on, under, from or affecting the Premises.
11.05 The Tenant shall indemnify,
defend and hold harmless Landlord, its employees, attorneys,
agents, advisors, trustees, officers, directors, members,
successors and assigns from any and against all claims, suits,
demands, penalties, liabilities, settlements, damages, costs or
expenses of whatever kind or nature, including attorneys’
fees, fees of environmental consultants and laboratory fees, known
or unknown, contingent or otherwise, arising out of or in any way
related to (i) the presence, contamination, use, disposal,
discharge, emission, release or threatened release by Tenant of any
Hazardous Materials on, over, under, from or affecting the Premises
or the soil, water, vegetation, buildings, personal property,
persons or animals thereon; (ii) any personal injury or
property damage (real or personal) arising out of or related to
such Hazardous Materials used by Tenant on the Premises including,
without limitation, the loss of use thereof; (iii) any lawsuit
brought or threatened, settlement reached or governmental order or
directive relating to such orders, regulations, requirements or
demands of governmental authorities, which are based upon Hazardous
Materials used by Tenant on, under, from or about the Premises with
respect to any acts, violations or matters indemnified against by
the Tenant pursuant to this subparagraph.
11.06 The Tenant agrees that, upon
expiration of the Term or any extensions thereof, or upon any
earlier termination of this Lease, the Tenant shall deliver the
Premises to Landlord free of any and all Hazardous Materials to the
extent required by and in compliance with all Environmental
Laws.
11.07 For purposes of this Lease,
“Hazardous Materials” include, without limitation, any
flammable explosive or radioactive materials, mono- and
polychlorinated biphenyls, petroleum products, natural gas, radon
and natural gas liquids, asbestos-containing materials, hazardous
materials, hazardous wastes, pollutants, contaminants, hazardous or
toxic substances or related materials defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended (42 USC § 9601, et seq. ), the Superfund
Amendments and Reauthorization Act (Public Law 99-499, 100 Stat.
1613), the Hazardous Materials Transportation Act, as amended 949
USC § 1801, et seq. ), the Resource Conservation
and Recovery Act, as amended (42 USC § 6901, et
seq. ), the National Environmental Policy Act (42 USC 4321),
the Safe Drinking Water Act (42 USC § 300F, et
seq. ), the Federal Water Pollution Control Act (33 USC
§ 1251, et seq. ), the Clean Air Act (42 USC
§ 7401, et seq. ), the Environmental Protection
Agency regulations pertaining to asbestos (including 40 C.F.R. Part
61, 29 C.F.R. §§ 1910.1001 and 1926..58), the Toxic
Substances Control Act, as amended (15 USC § 2601, et
seq. ), the Michigan Environmental Code, as amended, and in the
regulations, rules and policies adopted and promulgated thereto, or
in any other federal, state or local governmental law, ordinance,
rule or regulation.
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11.08 The Tenant shall deliver to
Landlord at such times as Landlord shall reasonably require (but in
no event more often than annually), evidence that all licenses,
permits or certificates, if any, required under all applicable
Environmental Laws with respect to the Premises have been obtained
and evidence of compliance with “right to know
regulations” and other disclosure requirements under
Environmental Laws.
SECTION 12
ALTERATIONS
12.01 Tenant may at any time and
from time to time, so long as Tenant is not in default under this
Lease beyond applicable notice and cure periods, at its expense and
without Landlord’s consent, make additions, alterations or
improvements (including the construction of a separate additional
building) in and to the Premises in an amount not to exceed One
Hundred Thousand Dollars ($100,000) on any one occasion in a lien
free basis and with notice of such action to Landlord at least
thirty (30) days prior to commencing such activity
(hereinafter collectively referred to as
“Alterations”), provided that the fair market value of
the Premises shall not be diminished thereby. Additions,
alterations or improvements to the Premises, including construction
of a separate building, in amounts exceeding One Hundred Thousand
Dollars ($100,000) on any one occasion shall require
Landlord’s consent, which consent shall not be unreasonably
withheld, conditioned or delayed. Landlord shall have no right,
except upon the request of or express prior written approval by
Tenant (which approval may be witheld in Tenant’s sole
discretion), to construct additions, alterations or improvements
(including without limitation construction of any additional
buildings or improvements) upon the Premises. Upon expiration or
earlier termination of the Term, Tenant shall not be required to
remove or restore any Alterations, provided that Tenant shall be
entitled to remove any Alterations if Tenant restores the Premises
to its condition prior to such Alterations.
12.02 Tenant shall cause any
Alterations performed by it to be performed in a good and
workmanlike manner, using materials and equipment at least equal in
quality and class to the existing components of the Building.
Tenant shall obtain all necessary permits and certificates for
final governmental approval of the Alterations. Tenant shall be
solely responsible for obtaining a certificate of occupancy for all
Alterations, and shall observe and comply with all applicable
provisions of the laws granting construction liens for persons
providing goods or services for the improvement of real
estate.
12.03 Tenant shall defend, indemnify
and hold harmless Landlord against, and at Tenant’s expense,
shall procure the satisfaction or discharge of record of any
construction liens resulting from Alterations contracted for by
Tenant within sixty (60) days after the filing thereof; or in
lieu thereof, Tenant may procure (for Landlord’s benefit) a
bond or other protection against any such lien or encumbrance. If
and in the event Landlord reasonably determines that any such lien
if left undischarged would place Landlord’s interest in the
Premises unreasonably at risk, or cause a material default under
Landlord’s mortgage of the Premises, then upon not less than
ten (10) days notice to Tenant, Landlord may itself bond off
such lien and invoice the cost of such bond to Tenant, payable as
Additional Rent with the next installment of minimum annual rent
falling due.
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SECTION 13
QUIET ENJOYMENT
13.01 So long as Tenant is not in
default under this Lease beyond applicable notice and cure periods,
Tenant shall have continuous and exclusive possession of the
Premises, and shall have the quiet and peaceful use and enjoyment
of the Premises.
SECTION 14
UTILITIES
14.01 Tenant, at its own expense,
shall purchase and pay for all utility services to the
Premises.
SECTION 15
ESTOPPEL CERTIFICATES; SUBORDINATION;
MORTGAGE
15.01 Tenant shall at any time upon
not less than ten (10) business days prior written notice from
Landlord execute, acknowledge and deliver to Landlord a statement
in writing (i) certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in
full force and effect), the amount of any security deposit, and the
date to which the rent and other charges are paid in advance, if
any, and (ii) acknowledging that there are not, to
Tenant’s knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any are
claimed.
15.02 Provided that Tenant is
provided with a reasonable and customary nondisturbance agreement
duly executed by the holder of any mortgage and in form and
substance reasonably acceptable to Tenant, this Lease shall be
subject and subordinate at all times to any mortgage or deed of
trust that may now exist or hereafter be placed upon and encumber
any or all of the Premises or Landlord’s interest or estate
in the Premises. Notwithstanding the forego
