Form 25-6

Industrial Lease

Basic Information

Date:

Landlord:

Landlord’s Address:

Tenant:

Tenant’s Address:

[Include if applicable: Guarantors: [see guaranty agreement at form 25-22 in this chapter]]

[Include if applicable: Guarantors’ Addresses:]

Premises

Approximate square feet:

Name of Building:

Street address/suite:

City, state, zip:

Term (months):

Commencement Date:

Termination Date:

Base Rent (monthly):

Tenant’s Pro Rata Share: [percent] percent ([percent]%)

Security Deposit:

Permitted Use:

Tenant’s Insurance: As required by Insurance Addendum

Landlord’s Insurance: As required by Insurance Addendum

Tenant’s Rebuilding Obligations: If the Premises are damaged by fire or other elements, Tenant will be responsible for repairing or rebuilding the following leasehold improve­ments: [see section 25.1:4]

A.Definitions

A.1.“Agent” means agents, contractors, employees, licensees, and, to the extent under the control of the principal, invitees.

A.2.“Common Areas” means all facilities and areas of the Building that are intended and designated by Landlord from time to time for the common, general, and nonexclusive use of all tenants of the Building, including parking lots. Landlord has the exclusive control over and right to manage the Common Areas.

A.3.“Essential Services” means utility connections reasonably necessary for occu­pancy of the Premises for the Permitted Use.

A.4.“Injury” means (a) harm to or impairment or loss of property or its use, (b) harm to or death of a person, or (c) “personal and advertising injury” as defined in the form of liabil­ity insurance Tenant is required to maintain.

A.5.“Lienholder” means the holder of a deed of trust covering the Premises.

A.6.“Rent” means Base Rent plus any other amounts of money payable by Tenant to Landlord.

B.Tenant’s Obligations

B.1.Tenant agrees to—

B.1.a.Lease the Premises for the entire Term beginning on the Commencement Date and ending on the Termination Date.

B.1.b.Accept the Premises in their present condition “AS IS,” the Premises being cur­rently suitable for the Permitted Use.

B.1.c.Obey (i) all laws relating to Tenant’s use, maintenance of the condition, and occupancy of the Premises and Tenant’s use of any Common Areas in the Building; (ii) any requirements imposed by utility companies serving or insurance companies covering the Premises or Building; and (iii) any rules and regulations for the Building and Common Areas adopted by Landlord.

B.1.d.Pay monthly, in advance, without demand, on the first day of the month, the Base Rent to Landlord at Landlord’s Address.

B.1.e.Pay a late charge of 5 percent of any Rent not received by Landlord by the tenth day after it is due.

B.1.f.Reimburse Landlord for real property taxes paid on the Premises.

B.1.g.Obtain and pay for all utility services used by Tenant and not provided by Land­lord.

B.1.h.Pay Tenant’s Pro Rata Share of any utility services provided by Landlord.

B.1.i.Allow Landlord to enter the Premises to perform Landlord’s obligations, inspect the Premises, and show the Premises to prospective purchasers or tenants.

B.1.j.Repair, replace, and maintain any part of the Premises that Landlord is not obli­gated to repair, replace, or maintain, reasonable wear excepted.

B.1.k.Keep the sidewalks, service ways, and loading areas adjacent to the Premises clean and unobstructed.

B.1.l.Submit in writing to Landlord any request for repairs, replacement, and mainte­nance that are the obligations of Landlord.

B.1.m.If requested, deliver to Landlord a financing statement perfecting the security interest created by this lease.

B.1.n.Vacate the Premises and return all keys to the Premises on the last day of the Term.

B.1.o.Pay all costs caused by Tenant’s introduction of materials, other than ordinary human waste, into the sanitary sewer system.

B.1.p.Install and maintain any dilution tanks, holding tanks, settling tanks, sewer sam­pling devices, sand traps, grease traps, or other devices required by law for the Permitted Use of the sanitary sewer system.

B.1.q.If the Premises are served by rail and if requested by the railroad, enter into a joint maintenance agreement with the railroad and bear Tenant’s Pro Rata Share of the cost of maintaining the railroad spur.

B.1.r.On request, execute an estoppel certificate that states the Commencement Date and Termination Date of the lease, identifies any amendments to the lease, describes any rights to extend the Term or purchase rights, lists defaults by Landlord, and provides any other information reasonably requested.

B.1.s.Indemnify, defend, and hold Landlord and Lienholder, and their respective Agents, harmless from any Injury (and any resulting or related claim, action, loss, liability, or reasonable expense, including attorney’s fees and other fees and court and other costs) occurring in any portion of the Prem­ises if caused in whole or in part by the acts or omissions of Tenant or its Agents, including in whole or in part the negligent acts or omissions of Tenant or its agents. The indemnity contained in this paragraph (i) is independent of Tenant’s Insurance, (ii) will not be limited by comparative negligence stat­utes or damages paid under the Workers’ Compensation Act or similar employee benefit acts, (iii) will survive the end of the Term, and (iv) will apply even if an Injury is caused in part by the ordinary negligence or strict liability of Landlord or Landlord’s Agents but will not apply to the extent an Injury is caused in whole or in part by the gross negligence or willful misconduct of Landlord, lienholder, or their respective Agents.

B.2.Tenant agrees not to—

B.2.a.Use the Premises for any purpose other than the Permitted Use.

B.2.b.Create a nuisance.

B.2.c.Interfere with any other tenant’s normal business operations or Landlord’s man­agement of the Premises.

B.2.d.Permit any waste.

B.2.e.Use the Premises in any way that would increase insurance premiums or void insurance on the Premises.

B.2.f.Change Landlord’s lock system.

B.2.g.Alter the Premises.

B.2.h.Allow a lien to be placed on the Premises.

B.2.i.Assign this lease or sublease any portion of the Premises without Landlord’s written consent.

B.2.j.Use the roof on the Premises.

B.2.k.Place any signs on the Premises without Landlord’s written consent.

C.Landlord’s Obligations

C.1.Landlord agrees to—

C.1.a.Lease to Tenant the Premises for the entire Term beginning on the Commence­ment Date and ending on the Termination Date.

C.1.b.Obey all laws relating to Landlord’s operation of the Building.

C.1.c.Repair, replace, and maintain the (i) roof, (ii) foundation, (iii) Common Areas, and (iv) structural soundness of the exterior walls, excluding windows, window glass, plate glass, and doors.

C.1.d.Return the Security Deposit to Tenant, less itemized deductions, if any, on or before the sixtieth day after the date Tenant surrenders the Premises.

C.1.e.Indemnify, defend, and hold Tenant harmless from any Injury and any resulting or related claim, action, loss, liability, or reasonable expense, including attorney’s fees and other fees and court and other costs, occurring in any portion of the Common Areas. The indemnity contained in this paragraph (i) is independent of Landlord’s Insurance, (ii) will not be limited by compara­tive negligence statutes or damages paid under the Workers’ Compensation Act or similar employee benefit acts, (iii) will survive the end of the Term, and (iv) will apply if caused in whole or in part by the acts or omissions of Landlord or its Agents, including in whole or in part by the negligent acts or omissions of Landlord or its agents, even if an Injury is caused in part by the ordinary negligence or strict liability of Tenant but will not apply to the extent an Injury is caused in whole or in part by the gross negligence or willful misconduct of Tenant.

C.2.Landlord agrees not to—

C.2.a.Interfere with Tenant’s possession of the Premises as long as Tenant is not in default.

C.2.b.Unreasonably withhold consent to a proposed assignment or sublease.

D.General Provisions

Landlord and Tenant agree to the following:

D.1.Alterations.      Any physical additions or improvements to the Premises made by Tenant will become the property of Landlord. Landlord may require that Tenant, at the end of the Term and at Tenant’s expense, remove any physical additions and improvements, repair any alterations, and restore the Premises to the condition existing at the Commencement Date, normal wear excepted.

D.2.Abatement.      Tenant’s covenant to pay Rent and Landlord’s covenants are inde­pendent. Except as otherwise provided, Tenant may not abate Rent for any reason.

D.3.Insurance.      Tenant and Landlord will maintain the respective insurance cover­ages described in the attached Insurance Addendum.

D.4.Release of Claims/Subrogation.      Landlord and Tenant release each other and Lienholder, and their respective Agents, from all claims or liabilities for damage to the Premises or Building, damage to or loss of personal property within the Building, and loss of business or revenues that are insured by the releasing party’s property insurance or that would have been insured by the required insurance if the party fails to maintain the property coverages required by this lease. The party incurring the damage or loss will be responsi­ble for any deductible or self-insured retention under its property insurance. Landlord and Tenant will notify the issuing property insurance companies of the release set forth in this paragraph and will have the property insurance policies endorsed, if necessary, to prevent invalidation of coverage. This release will not apply if it invalidates the property insurance coverage of the releasing party. The release in this paragraph will apply even if the damage or loss is caused in whole or in part by the ordinary negligence or strict liability of the released party or its Agents but will not apply to the extent the dam­age or loss is caused in whole or in part by the gross negligence or willful misconduct of the released party or its Agents.

D.5.Casualty/Total or Partial Destruction

D.5.a.If the Premises are damaged by casualty and can be restored within ninety days, Landlord will, at its expense, restore the roof, foundation, Common Areas, and structural soundness of the exterior walls of the Premises and any leasehold improvements within the Premises that are not within Tenant’s Rebuilding Obligations to substantially the same condi­tion that existed before the casualty and Tenant will, at its expense, be responsible for replac­ing any of its damaged furniture, fixtures, and personal property and performing Tenant’s Rebuilding Obligations. If Landlord fails to complete the portion of the restoration for which Landlord is responsible within ninety days from the date of written notification by Tenant to Landlord of the casualty, Tenant may terminate this lease by written notice delivered to Land­lord before Landlord completes Landlord’s restoration obligations.

D.5.b.If Landlord cannot complete the portion of the restoration for which Landlord is responsible within ninety days, Landlord has an option to restore the Premises. If Landlord chooses not to restore, this lease will terminate. If Landlord chooses to restore, Landlord will notify Tenant in writing of the estimated time to restore and give Tenant an option to termi­nate this lease by notifying Landlord in writing within ten days from receipt of Landlord’s estimate. If Tenant does not notify Landlord timely of Tenant’s election to terminate this lease, the lease will continue and Landlord will restore the Premises as provided in D.5.a. above.

D.5.c.To the extent the Premises are untenantable after the casualty, the Rent will be adjusted as may be fair and reasonable.

D.6.Condemnation/Substantial or Partial Taking

D.6.a.If the Premises cannot be used for the purposes contemplated by this lease because of condemnation or purchase in lieu of condemnation, this lease will terminate.

D.6.b.If there is a condemnation or purchase in lieu of condemnation and this lease is not terminated, Landlord will, at Landlord’s expense, restore the Premises, and the Rent pay­able during the unexpired portion of the Term will be adjusted as may be fair and reasonable.

D.6.c.Tenant will have no claim to the condemnation award or proceeds in lieu of condemnation.

D.7.Uniform Commercial Code.      Tenant grants Landlord a security interest in Tenant’s personal property now or subsequently located on the Premises. This lease is a secu­rity agreement under the Uniform Commercial Code. Landlord may file financing statements or continuation statements to perfect or continue the perfection of the security interest.

D.8.Default by Landlord/Events.      Defaults by Landlord are failing to comply with any provision of this lease within thirty days after written notice and failing to provide Essen­tial Services to Tenant within ten days after written notice.

D.9.Default by Landlord/Tenant’s Remedies.      Tenant’s remedies for Landlord’s default are to sue for damages and, if Landlord does not provide an Essential Service for thirty days after default, terminate this lease.

D.10.Default by Tenant/Events.      Defaults by Tenant are (a) failing to pay Rent timely, (b) abandoning the Premises or vacating a substantial portion of the Premises, and (c) failing to comply within ten days after written notice with any provision of this lease other than the defaults set forth in (a) and (b).

D.11.Default by Tenant/Landlord’s Remedies.      Landlord’s remedies for Tenant’s default are to (a) enter and take possession of the Premises and sue for Rent as it accrues; (b) enter and take possession of the Premises, after which Landlord may relet the Premises on behalf of Tenant and receive the Rent directly by reason of the reletting, and Tenant agrees to reimburse Landlord for any expenditures made in order to relet; (c) enter the Premises and perform Tenant’s obligations; and (d) terminate this lease by written notice and sue for dam­ages. Landlord may enter and take possession of the Premises by self-help, by picking or changing locks if necessary, and may lock out Tenant or any other person who may be occu­pying the Premises, until the default is cured, without being liable for damages.

D.12.Default/Waiver.      All waivers must be in writing and signed by the waiving party. Landlord’s failure to enforce any provisions of this Lease or its acceptance of late installments of Rent will not be a waiver and will not estop Landlord from enforcing that pro­vision or any other provision of this Lease in the future.

D.13.Mitigation.      Landlord has mitigated the loss of rent if Landlord, within thirty days after Tenant’s loss of possession, (a) places a “For Lease” sign at the Premises, (b) places the Premises on Landlord’s inventory of properties for lease, (c) makes Landlord’s inventory available to area brokers on a monthly basis, (d) advertises the Premises for lease in a suitable trade journal in the county in which the Premises are located, and (e) shows the Premises to prospective tenants who request to see it.

D.14.Security Deposit.      If Tenant defaults, Landlord may use the Security Deposit to pay arrears of Rent, to repair any damage or injury, or to pay any expense or liability incurred by Landlord as a result of the default.

D.15.Holdover.      If Tenant does not vacate the Premises following termination of this lease, Tenant will become a tenant at will and must vacate the Premises on receipt of notice from Landlord. No holding over by Tenant, whether with or without the consent of Landlord, will extend the Term.

D.16.Alternative Dispute Resolution.      Landlord and Tenant agree to mediate in good faith before filing a suit for damages.

D.17.Attorney’s Fees.      If either party retains an attorney to enforce this lease, the party prevailing in litigation is entitled to recover reasonable attorney’s fees and other fees and court and other costs.

D.18.Venue.      Exclusive venue is in the county in which the Premises are located.

D.19.Entire Agreement.      This lease, its exhibits, addenda, and riders are the entire agreement of the parties concerning the lease of the Premises by Landlord to Tenant. There are no representations, warranties, agreements, or promises pertaining to the Premises or the lease of the Premises by Landlord to Tenant, and Tenant is not relying on any statements or representations of any agent of Landlord, that are not in this lease and any exhibits, addenda, and riders.

D.20.Amendment of Lease.      This lease may be amended only by an instrument in writing signed by Landlord and Tenant.

D.21.Limitation of Warranties.      There are no implied warranties of mer­chantability, of fitness for a particular purpose, or of any other kind arising out of this lease, and there are no warranties that extend beyond those expressly stated in this lease.

D.22.Notices.      Any notice required or permitted under this lease must be in writing. Any notice required by this lease will be deemed to be given (whether received or not) the ear­lier of receipt or three business days after being deposited with the United States Postal Ser­vice, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this lease. Notice may also be given by regular mail, per­sonal delivery, courier delivery, or e-mail and will be effective when received. Any address for notice may be changed by written notice given as provided herein.

D.23.Use of Common Areas.      Tenant will have the nonexclusive right to use the Common Areas subject to any reasonable rules and regulations that Landlord may prescribe.

D.24.Abandoned Property.      Landlord may retain, destroy, or dispose of any prop­erty left on the Premises at the end of the Term.

   
[Name of landlord]

   
[Name of tenant]