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LEASE
AGREEMENT OF LEASE, made this 31st day of October, 1996 between Xxxxxxx X.
Xxxxxxxxxx (hereinafter referred to as "Landlord") and Xxxxx Xxxxx, Inc., a
Wisconsin corporation (hereinafter referred to as "Tenant").
WITNESSETH:
Landlord, in consideration of the rents, covenants and agreements
hereinafter reserved, mentioned and contained on the part of Tenant, to be paid,
kept and performed, has leased, rented, let and demise unto Tenant, and Tenant
does hereby take and hire upon and subject to the conditions hereinafter
expressed, the building and improvements located at 00000 Xxxxx Xxxx, Xxxxxxx
xx Xxxxxxxxxx, Xxxxxx of Washington, Wisconsin, legal description per attached
Exhibit "A" (hereinafter referred to as the "Premises"). The Premises are leased
subject to the following:
a. Zoning regulations and zoning ordinances of the city, town or village
in which the Premises lie;
b. All covenants, reservations, restrictions, agreements and/or easements
of record pursuant to which Landlord acquired title to the Premises;
c. The liens of real estate taxes, sewer and water charges and other
charges, accruing on and after the date of this Lease;
d. Any state of facts an accurate survey may disclose.
TO HAVE AND TO HOLD the Premises unto Tenant, for a term of approximately
eight (8) months, to commence on the 1st day of November, 1996, and to expire at
midnight on the 30th day of June, 1997 or until said term shall sooner cease and
expire under the provisions hereof.
This Lease and agreement is made on the following covenants, agreements,
terms, provisions, conditions and limitations, all of which Landlord and Tenant
covenant and agree to perform and observe:
I. RENT
A. Landlord reserves and Tenant covenants and agrees to pay to Landlord
without demand, at the office of Landlord as set forth hereinabove, or elsewhere
as designated from time to time by written notice to Tenant and in the manner
herein prescribed for payment thereof, a monthly rent for the Premises payable
in equal monthly installments of $9,210.83, plus one twelfth (1/12th) of the
estimated real estate taxes based upon the real estate tax statement for the
year 1995 in the sum of $1,636.53, for a total
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monthly payment of $10,847.36 in advance on the first day of each month
throughout the term of the Lease commencing the 1st day of November, 1996.
Commencing January 1, 1997, said monthly rate shall be increased based upon any
increase in real estate taxes for the 1996 year for the premises, so that
Tenant will be paying one twelfth (1/12th) of said tax each month during the
remaining term of this Lease based upon the most recent real estate tax
statement available.
B. It is understood and agreed that this Lease does not create the
relationship of principal and agent or of partnership or of joint venture or of
any association between Landlord and Tenant, the sole relationship between
Landlord and Tenant being that of Landlord and Tenant.
C. Rent shall be payable in lawful money of the United States which shall
be legal tender for payment of all debts and dues, public and private, at the
time of payment, at the office of Landlord or such place as Landlord may
designate, without any setoff or deduction whatsoever.
D. If Tenant fails to pay rent or any other amount due to Landlord
hereunder, Landlord will be entitled to interest on the unpaid amount at the
rate of one and one-half percent (1 1/2%) per month (or the highest contract
rate permitted to be charged by law, whichever is lower) from the date of
default, compounded monthly.
II. ADDITIONAL RENT
Tenant shall, during the term, as additional rent (hereinafter sometimes
referred to as the "additional rent"), pay and discharge, within thirty (30)
days after the same shall become due and payable, all real property taxes,
assessments, water rates and charges, sewer rates and charges and other
governmental impositions and charges of every kind and nature whatsoever,
extraordinary as well as ordinary, and each and every installment thereof, and
all fees and charges of public and governmental authorities for construction,
maintenance, occupation or use during the term, of any space in, over or under
any sidewalk or street on or adjacent to the Premises, or for construction,
maintenance or use during the term of any part of any building covered hereby
within the limits of any street, which shall or may during the term be charged,
laid, levied, addressed, imposed, become due and payable or liens upon or for
the Premises or any part thereof, or any building, appurtenances or equipment
thereof or therein or any part hereof, or the sidewalks or streets in front of
or adjoining the Premises, and all taxes charged, laid, levied, assessed or
imposed in lieu of the foregoing, together with all interest and penalties
thereof, under or by virtue of all present or future laws, ordinances,
requirements, orders, directions, rules or regulations of the Federal, State,
County and City governments and all other governmental authorities whatsoever.
To the extent that the same
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may be permitted by law, Tenant shall have the right to apply for the
conversion of any assessment for local improvements in order to cause the same
to be payable in annual installments, and upon such conversion Tenant shall pay
and discharge punctually said installments as they shall become due and payable
during the term, provided, however, that Tenant shall be required to pay and
discharge the prorated share of all of the items enumerated in the first
sentence of this Article II due and payable upon the expiration of the term of
any renewal term hereof. Tenant shall also pay, within ten (10) days after the
same shall become due and payable, all charges for water, heat, gas, hot water,
electricity, sewer, and any other service or services furnished to the Premises
or the occupants thereof during the term of this Lease, it being understood
that no such charge or service shall become a lien against the Premises or be
payable by Landlord. Tenant shall be deemed to have complied with the covenants
of this Article II if payment of such tax, assessment, water charge, sewer
charge or other governmental imposition or charge shall have been made, either
within any grace period allowed by law or by the governmental authority
imposing the same during which payment is permitted without penalty or
interest, or before the expiration of the term or any renewal term hereof,
whichever is the first to occur, and Tenant shall, within five (5) days after
the time above provided for the payment by Tenant of the items enumerated
above, produce and exhibit to Landlord receipted bills or sufficient and
adequate copies of same, as proof of such payment.
III. REPAIRS
Any and all buildings and improvements which are now or may be erected or
placed upon the Premises at any time during said term shall be kept, outside and
inside, including sidewalks, parking areas or lots, and grounds or streets in
front or appurtenant to the same, in good and substantial order and repair by
Tenant at its sole cost and expense, and Tenant shall comply with all the laws,
ordinances, orders, regulations, rules and requirements of every kind and
nature. Tenant shall have the right to contest or review any notice, order,
rule, regulation, requirement, violation or penalty issued against the Premises
by legal proceedings or in such other manner as he deems suitable, provided that
such action will not subject Landlord to criminal penalties of any nature, and
may have, if able, any such notice, order, rule, regulation, requirement,
violation or penalty canceled, removed or revoked without actual compliance with
the same, and if such actions or proceedings are instituted, they shall be
conducted promptly at the expense of Tenant and free of expense to Landlord,
provided, however, that Landlord shall, upon request of Tenant, join as a
party to any such proceeding and shall execute at the request of Tenant all
such documents as shall be necessary to successfully prosecute such
proceedings, and Tenant shall reimburse Landlord for any expenses incurred by
Landlord in connection therewith; and, if as a result of any such actions or
proceedings, any notice, order,
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rule, regulation, requirement, violation or penalty is modified or partially
revoked or canceled, Tenant shall be obligated to comply only with that part
thereof which shall remain in force and effect. The legal proceedings herein
referred to shall include appropriate appeals from any judgments, decrees or
orders but all such legal proceedings and appeals shall be begun as reasonably
soon as possible after the filing of any such notice, order, rule, regulation,
requirements, violation or penalty and shall be prosecuted to final
adjudication with all promptness and dispatch. If and whenever any such notice,
order, rule, regulation, requirement, violation or penalty shall become
absolute against Tenant and the Premises or against Landlord, after contest
thereof, Tenant shall then comply with the same, with due diligence and if
Tenant, within ten (10) days thereof, shall not be engaged in complying with
the same and diligently prosecute the same, Landlord may comply therewith and
the provisions contained in the paragraph of this Lease headed "REPAYMENT TO
LANDLORD" shall apply. Landlord and its agents and other representatives shall
have the right to enter into and upon the Premises or any part thereof at all
reasonable hours for the purpose of examining the same or making such repairs
or alterations therein as may be necessary for the safety and preservation
thereof, which right to make repairs or alterations shall, however, be subject
and subordinate to each and every provision contained in this Agreement
applicable to repairs or alterations. Tenant, however, is not under any
obligation to make any repairs, alterations or improvements of structural
nature, but Landlord shall make all such repairs, alterations and improvements
at his own cost and expense.
IV. INDEMNIFICATION OF LANDLORD
Tenant shall hold Landlord harmless against any and all claims, damages,
suits or causes of action for damages arising after the commencement of and
during the term hereof, or any renewal term hereof, and any orders, decrees or
judgments which may be entered therein, brought for damages or alleged damages
resulting from any injury to person or property or from loss of life sustained
in or about the Premises and the buildings and improvements thereon, or in or
upon the sidewalks or streets in front of or appurtenant to, by any person or
persons whatsoever, irrespective of how the same may be caused. It is the
intention and agreement that Landlord shall not be liable for any personal
injuries or damage to Tenant, its agents or employees, invitees, trespassers or
to any other persons or to any occupant of any part of the Premises, or for
any injury or damage to any goods, wares, merchandise, equipment or property of
Tenant, or of any occupant of any part of the Premises, irrespective of how the
same may be caused, whether from action of the elements or acts of negligence
of the owner or occupants of the adjacent properties. Tenant shall and will
indemnify and save harmless Landlord of and from any and all liability, loss,
damage or expense, cause of action, suits,
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claims and judgments, including reasonable legal expenses in connection with
defending against such action, suit or claim, arising from injury to person or
property of any and every nature and for any matter or thing growing out of the
occupation of the Premises, or any part thereof, or arising or growing out of
the use, occupation, management or possession of the Premises, or of any
building thereon, or any part thereof or sidewalks adjacent thereto, occasioned
by Tenant, its agents, employees, occupants, invitees or trespassers of any
part of the Premises, or by their agents or employees, respectively, or which
may be occasioned by any person or thing whatsoever, at any time during the term
hereof, irrespective of how the same may be caused.
V. INSURANCE
A. Tenant shall, throughout the term of this Lease, at its own
cost and expense, provide and keep in force for the benefit of Landlord,
insurance against loss or damage or injury or destruction of any building or
buildings new or hereafter erected on the Premises resulting from fire, or from
any hazard included in the so-called extended coverage endorsement, (including
sprinkler leakage, collapse and vandalism and malicious mischief) in such
company or companies as may be reasonably acceptable to Landlord, and if more
than one company is used, with such distribution of the amount thereof among
such companies as may be approved by Landlord. In addition to the foregoing,
Tenant shall, at its own cost and expense, provide and keep in force for the
benefit of Landlord, insurance against loss or damage or injury or destruction
of any building or buildings now or hereafter erected on the Premises resulting
from water damage. Tenant shall provide and keep in force all such insurance
in an amount equal to one hundred percent (100%) of the full replacement cost
of the building, including the fixtures and equipment therein. If, at any time,
Landlord and Tenant cannot agree as to the full replacement cost of the building
and the fixtures and equipment, the value of same shall be determined by the
insurance company by whom the policy or policies of insurance are being
maintained, and the amount of insurance so determined shall be the amount of
insurance to be carried. Such insurance policies shall exclude foundations,
excavating, and the usual items customarily excluded in such insurance
policies. Where reference is made to fixtures and equipment, the parties hereto
intend that the same be fixtures and equipment appurtenant to and used in
connection with the operation of the building.
B. Tenant shall provide and maintain general liability insurance
(including personal injury and property damage) in the single limit amount of
Five Hundred Thousand and No/100's Dollars ($500,000.00) and an umbrella policy
of Three Million and No/100's Dollars ($3,000,000.00) and such policies shall
inure to both Landlord and Tenant; and Tenant shall pay the premium on all said
policies from time to time; and Tenant shall deliver to Landlord certificates
for said policies. Tenant will arrange to have
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Landlord named as a party insured under said policy, entitled to the full
benefits and protection afforded by the provisions of said policy.
C. Each such policy or certificate thereof issued by the insurer
shall, to the extent obtainable, contain an agreement by the insurer that such
policy shall not be canceled without at least ten (10) days' prior written
notice to Landlord. Tenant shall have the right to take out such insurance
under a blanket insurance policy or policies which can cover other properties
owned or occupied by Tenant, as well as the Premises.
D. Upon the failure at any time on the part of Tenant to procure
and deliver to Landlord any of the policies of insurance or certificates as
hereinabove provided, at least twenty (20) days before the expiration of the
prior insurance policies, if any, or to pay the premiums therefor, Landlord
shall be at liberty from time to time, as often as such failure shall occur, to
procure such insurance for a term not exceeding one (1) year and to pay the
premiums therefor, and any sums paid for insurance by Landlord shall be and
become and are hereby declared to be rent under this Lease forthwith due and
payable, and shall be collectible accordingly.
VI. BANKRUPTCY OR INSOLVENCY
If at any time during the term of this Lease or any renewal or
extension of this Lease, Tenant shall voluntarily petition or ask for
reorganization under the Bankruptcy Laws or shall take advantage of any
insolvency act by voluntary petition or assignment for the benefit of
creditors, or if Tenant shall be adjudicated a bankrupt through involuntary
proceedings, or if in any such involuntary proceedings a receiver, trustee,
assignee or other similar custodian of Tenant's property shall be appointed,
then and in any such event, Tenant shall be deemed to be in default of this
Lease, and Landlord may, at its option, upon at least ten (10) days' notice,
declare this Lease terminated and of no further force or effect.
VII. LIENS
If any mechanic's or other lien or order for the payment of money
shall be filed against the Premises or any building or improvement thereon by
reason of any change, alteration, addition or new building, or the cost or
expense thereof, or any contract relating to the same, or against Landlord as
owner thereof, as a result of or arising out of any labor or material
furnished, or alleged to have been furnished, or to be furnished, to or for the
Tenant at the Premises, Tenant shall, within thirty (30) days after notice to
Tenant of the filing thereof, cause the same to be canceled and discharged of
record by bond or court order at the election of Tenant, but in a manner to the
reasonable satisfaction
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of Landlord and shall also defend for Landlord, at Tenant's sole cost and
expense, any action, suit or proceeding which may be brought thereon, or for
the enforcement of the same, and will pay any damages and satisfy and discharge
any judgment entered therein and save harmless Landlord from any liability,
claim or damage resulting therefrom.
VIII. ASSIGNMENT AND SUBLETTING
Tenant may not at any time assign this Lease or sublet or underlet the
Premises to a person, firm or corporation, without the prior written consent of
Landlord. It is expressly agreed between the parties that no assignment,
subletting or underletting of the Premises shall in any way relieve Tenant of
any of his obligations under the terms and provisions of this Lease.
IX. ALTERATIONS, IMPROVEMENTS & ADDITIONS
Subject to the compliance with and observance of all of the terms,
conditions, covenants and agreements provided for in this Lease, Tenant shall
have the right to make alterations, improvements and additions in and to the
Premises, provided, however, that Tenant notify Landlord of his intention to
make such alterations, improvements and/or additions in writing prior to the
commencement of any such work and obtain the prior written approval of the
Landlord. Upon approval of Landlord of such work, Tenant shall, prior to the
commencement of any work procure and deliver to Landlord a performance and
payment bond in an amount equal to the estimated cost of construction of such
alteration, improvement and/or addition executed by a surety company or
companies reasonably satisfactory to Landlord, which shall be in a form
approved by Landlord guaranteeing that Tenant shall and will:
1. Make, erect and complete the proposed improvement in
accordance with such plans and specifications therefor and in
compliance with the building code and all laws, ordinances,
rules, regulations and orders of any governmental bureau, body
or officer having competent authority to make the same and which
may be applicable to the erection or construction of said
improvement.
2. Complete said improvement within the time to be therein
specified and fully pay for the same at the times and in the
manner as fixed by contracts therefor.
3. Perform any and all duties which are or may be legally
imposed on Landlord as owner of the Premises in connection with
the construction and obtain any necessary certificate of
occupancy therefor.
Tenant further agrees that at all time during construction, Tenant will
indemnify and keep indemnified Landlord against loss on
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account of injuries to person or property and against loss by way of penalties
or otherwise on account of the failure of Tenant to perform or fulfill any duty
imposed upon Landlord in or arising out of or connected with the intended
construction, either by appropriate endorsement on the policy or policies of
general liability insurance referred to in this Lease, or by obtaining policies
of insurance with the same limitations of coverage to cover Landlord and Tenant
during such construction.
X. USE OF PROPERTY
Tenant will not commit or suffer any waste or damage, to the Premises or
any part thereof, nor shall Tenant use or allow the Premises or any part
thereof to be used or occupied for any unlawful purpose or use or occupy the
Premises in any way which may make void or voidable any insurance then in
force with respect to the Premises.
XI. OPTION TO EXTEND LEASE
Provided that Tenant is not in default of any of the terms and
conditions set forth herein, Tenant may extend its Lease on a month-to-month
basis by so notifying Landlord in writing on or before April 30, 1997, that
Tenant desires to occupy the Premises on a month-to-month basis upon the same
terms and conditions as contained herein.
XII. DEFAULT
A. Each of the following shall be an "Event of Default":
1. Failure of Tenant to pay any installment of rent or any
part thereof or any other payments of money, costs or expenses
herein agreed to be paid by Tenant after the same shall become
due and payable and the continuance of such failure for a period
of ten (10) days after the due date;
2. Failure of Tenant to observe or perform one or more of the
other terms, conditions, covenants or agreements of this Lease
and the continuance of such failure for a period of thirty (30)
days after written notice by Landlord specifying such failure
(unless such failure requires work to be performed, acts to be
done or conditions to be removed which cannot by their nature
reasonably be performed, done or removed, as the case may be,
within such thirty (30) day period, in which case no default
shall be deemed to exist so long as Tenant shall have commenced
during the same within such thirty (30) day period and shall
diligently and continuously prosecute the same to completion;
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3. The filing or execution or occurrence of:
(i) a petition in bankruptcy by or against Tenant;
(ii) a petition by or against Tenant seeking a
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or other relief of the same or
different kind under any provision of the Bankruptcy
Act;
(iii) adjudication of Tenant as a bankrupt or
insolvent, or insolvency in the bankruptcy or equity
sense;
(iv) an assignment by Tenant for the benefit of
creditors, whether by trust, mortgage or otherwise;
(v) a petition or other proceeding by or against Tenant
for, or the appointment of, a trustee, receiver,
guardian, conservator or liquidator of Tenant with
respect to all or substantially all of his property; or
(vi) a petition or other proceeding by or against
Tenant for the taking of possession of the property of
Tenant by any governmental authority in connection with
dissolution or liquidation.
4. Abandonment of the Premises for more than thirty (30)
days.
B. In the event of the termination of this Lease either by
operation of law or if an Event of Default shall occur, Landlord may, without
notice, re-enter and repossess the Premises using such force for that purpose
as may be necessary without being liable to indictment, prosecution or damages
therefor, and Tenant shall nevertheless remain and continue liable to Landlord
in a sum equal to all rent and other payments and charges reserved herein for
the remainder of the term hereof. If Landlord shall so re-enter, Landlord may,
at its option, repair and alter the Premises in such manner as Landlord may
deem necessary or advisable and/or let or relet the Premises or any parts
thereof for the whole or any part of the remainder of the term hereof or for a
longer period, in Landlord's name or as agent of Tenant, and out of any rent
collected or received as a result of such letting or reletting Landlord shall
first, pay to itself the cost and expense of retaking, repossession, repairing
and/or altering the Premises and the cost and expenses of removing all persons
and property therefrom; second, pay to itself the cost and expense sustained in
securing any new tenants, and if Landlord shall maintain and operate the
Premises the cost and expense of operating and maintaining the Premises; and
third, pay to itself any balance
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remaining on account of the liability of Tenant to Landlord for the sum equal
to all rent and other payments and charges reserved herein and unpaid by Tenant
for the remainder of the term hereof. No re-entry by Landlord, whether had or
taken under summary proceedings or otherwise, shall absolve or discharge Tenant
from liability hereunder. Landlord shall in no way be responsible or liable for
any failure to relet the Premises or any part thereof, or for any failure to
collect any rent due on any such reletting. Should any rent so collected by
Landlord after the aforementioned payments be insufficient fully to pay
Landlord a sum equal to all such rent and other payments and charges reserved
herein, the deficiency shall be paid by Tenant on the rent days herein
specified, that is, upon each of such rent days Tenant shall pay to Landlord
the amount of the deficiency then existing; and the Tenant shall be and remain
liable for any such deficiency.
C. Suit or suits for the recovery of such deficiency or damages or for a
sum equal to any installment or installments of rent, taxes, insurance and
other charge hereunder, may be brought by Landlord, from time to time, at
Landlord's election, and nothing herein contained shall be deemed to require
Landlord to await the date whereon this Lease or the term hereof would have
expired had there been no such default by Tenant or termination.
D. No receipt of monies by Landlord from Tenant or any other person after
termination of this Lease, or after the giving of any notice of termination of
this Lease, shall reinstate, continue or extend the term of this Lease or
affect any notice theretofore given to Tenant, or operate as a waiver of the
right of Landlord to enforce the payment of rent and other sum or sums of money
and other charges herein reserved and agreed to be paid by Tenant then due or
thereafter falling due, or operate as a waiver of the right of Landlord to
recover possession of the Premises by proper remedy, except as herein otherwise
expressly provided, it being agreed that after the service of notice to
terminate this Lease or the commencement of suit or summary proceedings, or
after final order or judgment for the possession of the Premises, Landlord may
demand, receive and collect any monies due or thereafter falling due without in
any manner affecting such notice, proceeding, order, suit or judgment, except
as herein otherwise specifically provided, all such monies collected being
deemed payments on account of the use and occupation of the Premises, or at the
election of Landlord, on account of Tenant's liability hereunder.
E. Tenant shall pay to Landlord all costs and expenses, including
reasonable attorneys' fees, incurred in enforcing any of the convenants and
provisions of this Lease and incurred in any action brought on account of the
provisions hereof, and all such costs, expenses and attorneys' fees may be
included in and form a part of any judgment entered in any proceeding brought on
or under this Lease. All of the sums paid or obligations incurred as aforesaid,
with interest and costs, shall be paid within five (5)
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days of the rendition of any xxxx or statement therefor.
F. In the event of a termination of this Lease by reason of the occurrence
of an Event of Default or breach by Tenant hereunder: all unexpired insurance
premiums, all deposits theretofore made by Tenant with utility companies, all
rights of Tenant under all insurance policies, any claims for refund of any
impositions any pending claims for insurance proceeds or condemnation awards,
all monies and securities of Tenant then held by Landlord and all fuel and
supplies on the Premises shall be deemed to be and are hereby assigned to and
transferred to Landlord.
G. No failure by Landlord to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease, or to exercise any right
or remedy available upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of such covenant, agreement, term or condition. No covenant,
agreement, term or condition of this Lease to be performed or complied with by
Tenant, and no breach thereof, shall be waived, altered or modified except by
a written instrument executed by Landlord. No waiver of any breach shall affect
or alter this Lease, but each and every covenant, agreement, term and condition
of this Lease shall continue in full force and effect with respect to any other
then existing or subsequent breach thereof.
XIII. HOLDOVER
Subject to Tenant's option to extend the Lease pursuant to Article XI,
Tenant shall pay Landlord for each day Tenant retains possession of the
Premises or any part thereof after termination hereof, by lapse of time or
otherwise, at two (2) times the minimum rental set forth in Article I above
plus all other charges payable by Tenant hereunder, for the last period prior
to the date of such termination, and also pay all damages sustained by Landlord
by reason of such retention or, if Landlord gives written notice to Tenant of
Landlord's election thereof, such holding over shall constitute an extension of
this Lease for a period from month to month on the terms and conditions of this
Lease. This provision shall not be deemed to waive Landlord's right of re-entry
or any other right hereunder or at law.
XIV. SURRENDER
Tenant shall and will on the last day of the term hereof, or upon any
earlier termination of this Lease, or upon any re-entry by Landlord upon the
Premises pursuant to the provisions of this Lease, well and truly surrender and
deliver up into the possession and use of Landlord, without fraud or delay, the
Premises and also all pipes, plumbing, electric wires, heating and air
conditioning
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systems and equipment in good repair, order and conditions (except for (i)
normal wear and tear, and (ii) damage which Tenant is not obligated to repair
caused by fire or other insured cause or as a result of condemnation), broom
clean and free and clear of all liens and encumbrances other than those, if any,
created by Landlord. Furniture, trade fixtures and business equipment owned by
Tenant and not leased herein (not constituting part of the Premises) may be
removed by Tenant at or prior to the termination of this Lease, and all of
Tenant's signs shall, if requested by Landlord, be removed by Tenant prior to
the termination hereof. Any structural injury to the building or other injury
which necessitates fundamental changes in or repairs to the building caused by
such removal shall be repaired by Tenant. Any personal property of Tenant
which shall remain in the building after the termination of this Lease and/or
the removal of Tenant from the building, may, at the option of Landlord, be
deemed to have been abandoned by Tenant and either may be retained by Landlord
as the property of Landlord or be disposed of without accountability, in such
manner as Landlord sees fit. Any expenses incurred by Landlord in disposing of
same shall be charged to, and paid by, Tenant.
XV. CONDEMNATION
A. If all of the Premises are taken by any condemning authority under the
power of eminent domain or otherwise, or by any purchase or other acquisition in
lieu of eminent domain or otherwise, the term shall terminate as of the date
when title to the Premises is acquired by the condemning authority.
B. If only a part of the Premises is taken by any condemning authority
under the power of eminent domain or otherwise, or by any purchase or other
acquisition in lieu of eminent domain or otherwise, or if such taking results in
a substantial interference with the business which Tenant is conducting on the
Premises, Tenant shall have the option either (a) to terminate the Lease by
giving notice to that effect to Landlord (in which event the Lease shall
terminate as of the date when title to the Premises is acquired by the
condemning authority) or (b) ask Landlord to restore the premises within sixty
(60) days after the date when possession of the Premises is acquired by the
condemning authority to a condition reasonably comparable to the condition
and size of the Premises immediately prior to the date of such possession, in
which event the rent payable by Tenant to Landlord shall be reduced by the same
percentage that the total area of the Premises is reduced as a result of such
taking or other acquisition.
C. If the term is terminated in accordance with subparagraph A or B above,
the rent and any monies payable by Tenant under this Lease shall be apportioned
to the date of possession of the Premises by the condemning authority whose
taking occasioned such termination.
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D. Any award or payment to which Landlord may be or become entitled by
reason of any taking of the Premises or part thereof in or by condemnation or
other eminent domain proceedings pursuant to any law, general or special, or by
reason of the temporary acquisition of the use or occupancy of the Premises or
part thereof by any governmental authority, civil or military, whether the same
shall be paid or payable in respect of Tenant's leasehold interest hereunder or
otherwise, shall be paid to Landlord.
XVI. SUPPLY OF SERVICES
Landlord shall not be required to furnish any services or facilities or to
make any repairs or alterations in or to the Premises, except as provided in
Article III.
XVII. PRESENT CONDITION
Tenant has examined the Premises and accepts the buildings and improvements
thereon in their present condition and without any representation or warranty by
Landlord as to the condition of said buildings or as to the use or occupancy
which may be made thereof, and Landlord shall not be responsible for any latent
defect or change of condition in the buildings, and the rent hereunder shall in
no case be withheld or diminished on account of any defect in the building, nor
for any change in their conditions, nor for any damage occurring thereto except
as otherwise provided in this Lease, nor because of the existence of any
violations in any Municipal Departments. The approval of Landlord of any
plans or specifications shall not constitute a representation that they comply
with the laws, orders, ordinances and regulations of the public authorities, or
that the use or occupancy indicated in said plans or specifications is legal.
Tenant hereby assumes the full and sole responsibility for the condition,
operation, repair, replacement, maintenance of the Premises and accepts same "As
Is" in its present condition.
XVIII. MODIFICATION
None of the covenants, terms, agreements and conditions of this Lease
shall in any manner be altered, waived, changed or abandoned, nor shall the
term hereof or any part thereof be surrendered except by a written instrument
signed, sealed, acknowledged and delivered by the parties hereto. This Lease
contains the entire agreement between the parties and any executory agreement
hereafter made shall be ineffective to change, modify or discharge it in whole
or in part unless such executory agreement is in writing and signed by the
party against whom enforcement of the change, modification or discharge is
sought.
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XIX. NOTICES
Any notices required to be given under this Lease, either by Landlord
to Tenant or by Tenant to Landlord, shall be in writing, addressed to the
respective party as set forth herein or to such other address as either party
shall hereafter furnish to the other by registered mail for that purpose, and
the same shall be given and shall be deemed to have been served and given in
the case of Landlord when Tenant shall have received such notice, and in the
case of Tenant when Landlord shall have received such notice.
XX. INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Lease or the application thereof to
any person or circumstances shall, to any extent, be invalid or enforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
XXI. NO WAIVER
No failure by Landlord or Tenant to insist upon the strict performance
of any covenant, agreement, term or condition of this Lease or to exercise any
right or remedy available upon a breach thereof, and no acceptance of full or
partial rent during the continuance of any such breach, shall constitute a
waiver of any such breach or of such covenant, agreement, term or condition.
No covenant, agreement, term or condition of this Lease to be performed or
complied with by Tenant or Landlord, as the case may be, and no breach thereof
shall be waived, altered or modified except by a written instrument executed
by Landlord, or Tenant, as the case may be. No waiver of any breach shall
affect or alter this Lease, but each and every covenant, agreement, term and
condition of this Lease shall continue in full force and effect with respect
to any other then existing or subsequent breach thereof.
XII. MISCELLANEOUS
A. As used in this Lease, the term "Landlord" means the owner of the
fee title to the Premises. In the event of any sale or transfer of the fee
title to the Premises, the transferor shall be relieved of all obligations of
Landlord hereunder arising from and after the date of such sale or transfer.
B. Landlord shall not be liable, under any expressed or implied
covenant of this Lease, for any damages to Tenant beyond the loss of rent
reserved by this Lease, for any damages to Tenant beyond the loss of rent
reserved by this Lease accruing after any
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act or breach of covenant for which damages may be sought to be recovered
against Landlord. Tenant agrees to look solely to the then equity of Landlord
in the Premises for the satisfaction of the remedies by Tenant in the event of
a breach by Landlord of any of the covenants or conditions hereof.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and
executed this Lease on the day and year first above written.
LANDLORD:
Xxxxxxx X. Xxxxxxxxxx, Xx.
---------------------------
Xxxxxxx X. Xxxxxxxxxx, Xx.
TENANT:
XXXXX XXXXX, INC.
By: Xxxxx X. Xxxxx
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Vice-President Finance
was also signed by
Xxxxxx X. Xxxxx
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EXHIBIT "A"
LEGAL DESCRIPTION OF PREMISES
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