AMENDMENT TO LEASE AGREEMENT
BY AND BETWEEN
XXXXX XXXXXXXXX, Lessor
AND
H.K. SYSTEMS, INC., Lessor
FOR
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxxx 00000
AMENDMENT TO LEASE AGREEMENT
THIS AMENDMENT to lease agreement made and entered into at New
Berlin, Wisconsin, on the 17th day of April 1996, by and between
XXXXX XXXXXXXXX, as Lessor, and H.K. SYSTEMS, INC., as Lessee.
W I T N E S S E T H:
1. PARTIES TO AGREEMENT. The parties to this amendment to
lease agreement are:
Xxxxx Xxxxxxxxx (Lessor)
a resident of Arizona
0000 Xxxxx 000xx Xxxxxx
Xxx Xxxxxx, XX 00000
H.K. Systems, Inc. (Lessee)
a Delaware corporation
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxxx, XX 00000
H.K. Systems, Inc. was formerly known as Harnischfeger
Engineers, Inc., and, other than for change in its name only, continues as
the same entity under its changed name.
2. LEASE AGREEMENT. Heretofore, and on the 16th day of
January, 1995, the parties hereto entered into a written lease agreement
for the premises at 0000 Xxxxx Xxxxx Xxxxx, Xxx Xxxxxx, Xxxxxxxxx 00000.
3. AMENDMENT TO DESCRIPTION OF PREMISES. Paragraph 2 of the
said lease agreement is amended and restated to provide:
Lessor does hereby lease, demise and let unto Lessee, the
premises at 0000 xxxxx Xxxxx Xxxxx, Xxx Xxxxxx, Xxxxxxxxx 00000,
consisting of approximately seven acres of land improved with a commercial
building together with the adjacent parking lot now extended to the west
by addition of pavement to accommodate driveway access to and the
construction of 48 additional vehicle parking spaces and together with
attendant improvements in their entirety subject to the rights of tenants
hereinbelow described.
4. AMENDMENT TO TERM OF LEASE. Paragraph 3 of the said lease
agreement is amended and restated to provide:
Lessee shall have, hold and peaceably enjoy the use of the
premises for the term of sixteen (16) years commencing on the 1st day of
November, 1995, and ending on the 31st day of October, 2011.
5. AMENDMENT TO EXISTING LEASES. The second paragraph under
paragraph 10 of the said lease is amended and restated to provide.
The prior lease to SPX Corporation and the prior sublease to
Granite Finance Corporation have been timely terminated, and the said
lessee and sublessee have vacated the premises leased to them, and the
occupancy thereof timely delivered to Lessee herein.
6. AMENDMENT TO USE OF PREMISES. Paragraph 9 of the said
lease agreement is amended by adding thereto the following paragraph:
In consideration for the addition by Lessor of the 48 vehicle
parking spaces hereinabove described and the payment by Lessor to Lessee
of the sum of $10,000.00, receipt of which Lessee hereby acknowledges,
Lessee grants to Lessor for the exclusive use by Granite Finance
Corporation (Granite) of 26 vehicle parking spaces designated by Lessee in
the parking area at the northeast xxxxx of the premises leased, access to
which is through a gate operated by coded card, a sufficient number of
which shall be furnished by Lessee to Granite. The exclusive use by
Granite of the 26 vehicle parking spaces shall be for the initial term of
the existing lease between Lessor and Granite for the premises at 0000
Xxxxx Xxxxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxx, expiring on March 31, 2006,
together with the two successive five year extensions thereof if the
initial term of the said lease for the said premises is extended by
Granite or its successor or successors, if any, only and none other.
7. CONFIRMATION OF LEASE. The provisions of the said lease
between the parties dated the 16th day of January, 1995, not specifically
amended herein are hereby confirmed in their entirety.
IN WITNESS WHEREOF, Xxxxx Xxxxxxxxx, as Lessor, by Xxxxxxx
Xxxxxxxxx, his attorney in fact, has executed these presents, and H.K.
Systems, Inc., formerly Harnischfeger Engineers, Inc., as Lessee, has
caused these presents to be executed by its duly authorized officer, and
their respective seals to be hereunto affixed, in multiple original, at
the place and on the date first above written.
LESSOR: LESSOR:
XXXXX XXXXXXXXX (SEAL) H.K. SYSTEMS, INC. (SEAL)
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxxx, Xx.
Xxxxxxx Xxxxxxxxx, Xxxx X. Xxxxxxxxxx, Xx.,
his attorney in fact Vice President, Secretary and
General Counsel
LEASE AGREEMENT
BY AND BETWEEN
XXXXX XXXXXXXXX, Lessor
AND
HARNISCHFEGER ENGINEERS, INC., Lessor
FOR
0000 Xxxxx Xxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxxx 00000
INDEX TO
LUTERBACH/HARNISCHFEGER ENGINEERS, INC.
LEASE AGREEMENT
Title Page
1. PARTIES TO AGREEMENT . . . . . . . . . . . . . . . . . . . . . . 1
2. CONVEYANCE AND DESCRIPTION OF PREMISES . . . . . . . . . . . . . 1
3. TERM OF LEASE . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. IMPROVEMENTS BEFORE COMMENCEMENT OF TERM . . . . . . . . . . . . 3
6. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . 4
7. MAINTENANCE AND REPAIR . . . . . . . . . . . . . . . . . . . . . 4
8. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9. USE OF PREMISES, COMPLIANCE WITH LAW AND SIGNS . . . . . . . . . 5
10. ASSIGNMENT AND SUBLETTING; EXISTING LEASES . . . . . . . . . . . 6
11. TRADE FIXTURES AND REMODELING OF PREMISES . . . . . . . . . . . 7
12. INDEMNITY AND LIABILITY INSURANCE . . . . . . . . . . . . . . . 7
13. FIRST PARTY PERSONAL PROPERTY DAMAGE, INSURANCE, SUBROGATION AND
NONLIABILITY FOR CONSEQUENTIAL DAMAGES . . . . . . . . . . . . . 8
14. REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND INSURANCE PREMIUMS . 9
15. DAMAGE OR INJURY AND CONDITION OF PREMISES . . . . . . . . . . . 10
16. OPTION TO EXTEND LEASE . . . . . . . . . . . . . . . . . . . . . 10
17. SURRENDER AT END OF TERM AND HOLDING OVER . . . . . . . . . . . 11
18. RE-ENTRY UPON DEFAULT OF LESSEE . . . . . . . . . . . . . . . . 11
19. EFFECT OF BANKRUPTCY OR INSOLVENCY; FINANCIAL STATEMENTS . . . . 13
20. LESSOR'S ENTRY FOR INSPECTION, MAINTENANCE AND REPAIR; FOR RENT
SIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21. DAMAGE OR DESTRUCTION OF PREMISES . . . . . . . . . . . . . . . 14
22. WAIVER OF BREACH NOT WAIVER OF SUBSEQUENT BREACH . . . . . . . . 15
23. WRITTEN NOTICES . . . . . . . . . . . . . . . . . . . . . . . . 15
24. ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . . . . . . . . 15
25. SUBORDINATE TO MORTGAGE AND ATTORNMENT . . . . . . . . . . . . . 15
26. COVENANTS BINDING UPON ASSIGNS . . . . . . . . . . . . . . . . . 16
27. LAW OF FORUM; PROVISIONS SEVERABLE . . . . . . . . . . . . . . . 16
28. ENTIRE AGREEMENT AND MODIFICATION . . . . . . . . . . . . . . . 16
LEASE AGREEMENT
THIS INDENTURE, made and entered into at New Berlin, Wisconsin,
on the 16th day of January, 1995, by and between XXXXX XXXXXXXXX, as
Lessor, and HARNISCHFEGER ENGINEERS, INC. as Lessee.
W I T N E S S E T H:
1. PARTIES TO AGREEMENT. The parties to this lease agreement
are:
Xxxxx Xxxxxxxxx, (Lessor)
a resident of Arizona
0000 Xxxxx 000xx Xxxxxx
Xxx Xxxxxx, XX 00000
Harnischfeger Engineers, Inc. (Lessee)
a Delaware corporation
00000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Luterbach, although a resident of Arizona, designates his
indicated address for the purposes of this agreement.
After the commencement of the term of this lease agreement, the
address of Lessee shall be changed to the premises leased herein at 0000
Xxxxx Xxxxx Xxxxx, Xxx Xxxxxx, Xxxxxxxxx 00000.
2. CONVEYANCE AND DESCRIPTION OF PREMISES. Lessor does hereby
lease, demise and let unto Lessee the premises at 0000 Xxxxx Xxxxx Xxxxx,
Xxx Xxxxxx, Xxxxxxxxx 00000, consisting of approximately seven acres of
land improved with a commercial building together with the adjacent
parKing lot and attendant improvements in their entirety subject to the
rights of tenants hereinbelow described.
3. TERM OF LEASE. Lessee shall have, hold and peaceably enjoy
the use of the premises for the term of fifteen (15) years commencing on
the 1st day of November, 1995, and ending on the 31st day of October,
2010.
4. RENT. Lessee shall have, hold and peaceably enjoy the use
of the premises for the term and shall pay therefor the base rent of
Thirteen Million Eight Hundred Ninety-four Thousand Two Hundred Dollars
($13,894,200.00), adjusted as herein provided, payable at the rate of
$77,190.00 on the first day of each calendar month commencing on the 1st
day of November, 1995, through the end of the term, in advance, together
with adjustments to base rent and the other obligations particularized
hereinbelow, and together with any sales, use, occupancy or similar taxes,
if any, attributable thereto, absolutely without any claim of setoff for
any reason whatever against Lessor, the obligation to pay rent being a
covenant independent of the other covenants herein to be performed by
Lessee. No payment by Lessee or receipt by Lessor of a lesser amount than
the monthly installments of rent herein provided shall be other than on
account of the earliest unpaid rent obligation, nor shall any endorsement
or statement on or accompanying any remittance be deemed an accord or
satisfaction, and Lessor shall accept such remittance without prejudice to
Lessor's right to recover unpaid rent or to pursue any other remedy in
this lease.
Commencing with the 1st day of November, 2000, and for each
subsequent year during the term commencing on the 1st day of November, the
base rent shall be increased by three percent (3%) over the base rent
payable for the preceding year apportioned to and payable as the monthly
installments of rent.
5. IMPROVEMENTS BEFORE COMMENCEMENT OF TERM. Prior to the
commencement of the term of this lease, Lessor, at his cost, shall
complete the leasehold improvements to the premises in accordance with the
plans and specifications to be prepared by Computerized Structural Design,
Inc. (CSD), architects and engineers, coordinated to the requirements
timely provided by Lessee to Lessor to permit commencement of construction
no later than the 1st day of June, 1995. The cost of the leasehold
improvements including charges by CSD shall be not more than $1,250,000.00
with the work of improvement performed by Xxxxx Xxxxxxxxx Construction
Co., Inc. who shall charge a ten percent (10%) supervision fee upon cost
of its own work and a five percent (5%) supervision fee upon charges
payable to its subcontractors, but with total fees not to exceed
$65,000.00. Should supervising governmental authority require as a
condition to the approval of the plans and specifications for the
leasehold improvements that modifications be made to the building not
reasonably contemplated in the said plans and specifications, then Lessee
shall pay the first $10,000.00 of the cost thereof and 75 percent of any
cost in excess thereof, and Lessor shall pay the remaining 25 percent of
the excess cost. The written statement by CSD that the work of leasehold
improvements has in its professional opinion been substantially completed
in accordance with its plans and specifications and in compliance with
applicable rules and regulations including the Americans With Disabilities
Act as then defined, and that an occupancy permit is issuable to Lessee
shall be conclusive upon the parties.
The work of the leasehold improvements shall be diligently
performed. In the event the work of the leasehold improvements is delayed
by causes beyond the control of Lessor so they are not substantially
completed at the commencement of the term of this lease agreement, then
the commencement of the term shall xxxxx substantial completion thereof,
and all other dates in this lease agreement shall be extended
commensurately.
6. SECURITY DEPOSIT. Contemporaneously with the execution and
delivery of this agreement, Lessee has paid Lessor, the receipt of which
is acknowledged, the sum of $34,500.00 as security for the full and
faithful performance by Lessee of its obligations under this lease
agreement, which security deposit may be used by Lessor for his own
purposes, and which shall be returned to Lessee promptly upon the
expiration of the term of this lease agreement, provided Lessee has
faithfully performed its obligations under the terms hereof and has
surrendered the premises to Lessor, otherwise to be applied to the damages
sustained by Lessor under this lease agreement.
7. MAINTENANCE AND REPAIR. Lessor shall, as required and at
his cost, perform repairs, maintenance or replacement to the structure and
to the roof of the building of the premises, except for repairs,
maintenance or replacement to the structure or to the roof which become
necessary through the fault or neglect of Lessee, its agents, employees or
other persons, other than Lessor, in privity with Lessee, in which event
Lessee shall pay the cost thereof. Lessor shall exercise reasonable
effort to maintain the roof of the building of the premises free from
water leaks, but the parties recognize the roof of the building is flat
and will be susceptible to damage by the elements which may result in such
water leaks. In no event, however, shall Lessor be liable to Lessee for
water damage resulting from water leaks in the roof or from water seepage.
Lessee shall, at its cost, maintain the premises in good repair,
reasonable wear and tear excepted, including, but not limited to,
maintenance and repaving of the parking lot, driveway and walkways,
including snow and ice removal, landscape maintenance, maintenance, repair
and replacement as necessary of the heating, ventilating, air
conditioning, hot water and plumbing systems and window glass replacement,
excepting only the said structural and roof repairs required to be
performed by Lessor.
In the event Lessee fails to timely perform the maintenance
obligations required of it, Lessor may perform such obligations, and
Lessee shall promptly pay Lessor the costs incurred upon receipt of the
invoice therefor.
8. UTILITIES. Lessee shall, during the term of this lease,
pay for costs of gas, heat, water, sewer, electricity and all other
utilities as may be furnished to the premises including any taxes or use
assessments attributable thereto.
9. USE OF PREMISES, COMPLIANCE WITH LAW AND SIGNS. Lessee
shall use the premises for offices, storage and other uses consistent with
its business of providing professional engineering services to others, and
for no other purpose without the prior written consent of Lessor, which
shall not be unreasonably withheld, and shall comply with all requirements
of law and rules and regulations and orders of supervising governmental
authorities, and shall not, in any event, put the premises to noxious or
illegal uses, or uses that may constitute a nuisance or an irritant or
danger to adjacent properties. Lessee shall not store abandoned vehicles
or equipment exterior to the building, nor cause the premises to become
unsightly, nor paint or deface masonry or metal trim, nor erect or display
any signs visible outside of the building of the premises without the
prior written consent of Lessor which shall not be unreasonably withheld,
and Lessor may remove any unauthorized signs at the cost of Lessee.
Lessee shall pay all fees for signs imposed by supervising governmental
authority.
10. ASSIGNMENT AND SUBLETTING; EXISTING LEASES. Except as
otherwise provided herein, Lessee shall not assign this lease nor sublet
all or any portion of the premises without first obtaining the written
consent of Lessor, which shall not be unreasonably withheld. Such
assignment or subletting shall not relieve Lessee from liability for
payment of rent and the performance of all other obligations hereunder,
unless otherwise agreed in writing by both parties.
The premises are presently leased to SPX Corporation (SPX), the
successor to and the assignee of Bear Automotive Service Equipment Company
(Bear) under the terms of a lease agreement dated August 27,1986, with
amendment dated December 3,1986, for the initial term often years
commencing on April 1,1987, and ending on March 31,1997. On April
25,1994, SPX, with consent of Lessor, sublet the second floor of the
building of the premises to Granite Finance Corporation (Granite) for the
initial term of five years commencing on June 1, 1994, and ending on May
31, 1999. Lessor shall consensually terminate the lease with SPX and the
sublease with Granite 50 the premises leased to them shall be timely
available for the construction of the leasehold improvements required to
be provided by Lessor to Lessee.
Lessor shall enter into a lease for the southeasterly 9,600
square feet of the first floor of the building of the premises to ABB
Robotics, Inc. (ABB) for a term of three years commencing on the 15th day
of January, 1995, and ending on the 14th day of January, 1998, which shall
be extended for two successive one year terms unless either party shall
prior to nine months preceding the expiration of the initial term, or of
the expiration of the first extended term, gives notice to the other party
that the then extant term shall not be extended, at the rate of $7.95 per
square foot of floor space per annum, a copy of which lease agreement
shall be promptly furnished to Lessee. At the commencement of the term of
this lease agreement Lessor shall assign his interest in the lease
agreement with ABB over to Lessee who shall assume the rights and
obligations of the Lessor thereunder to the extent not required of Lessor
herein.
11. TRADE FIXTURES AND REMODELING OF PREMISES. All trade
fixtures and equipment installed by or for Lessee incident to its
business, except leasehold improvements installed by Lessor at his cost,
shall remain the property of Lessee and shall be removed by Lessee during
or at the expiration or sooner termination of the term of this lease
agreement. However, any damage caused by such removal shall be repaired
by Lessee if so required by Lessor. If Lessee shall fail to make such
removal and repair, Lessor shall make or cause the same to be made, and
Lessee shall pay Lessor the cost thereof promptly upon receipt of the
invoice therefor. No remodeling of or alteration to the premises shall be
made by Lessee without the prior written consent of Lessor which shall not
be unreasonably withheld.
Any personal property belonging to Lessee left on the leased
premises when Lessee shall surrender the premises to Lessor shall be
deemed abandoned and may be disposed of in the discretion of Lessor, and
Lessee shall reimburse Lessor for the cost of such disposal promptly upon
receipt of the invoice therefor.
12. INDEMNITY AND LIABILITY INSURANCE. In consideration for
commensurate reduction in rent, Lessee shall indemnify, hold harmless, and
defend Lessor from and against any and all claims, demands, damages,
suits, actions, judgments, decrees, orders and expenses including attorney
fees in favor of anyone arising out of or on account of this lease
agreement or the use, occupancy or condition of the premises for incidents
occurring during the term of this lease agreement, or while holding over,
caused by any person whatever, whether the claim therefor is made during
or alter the expiration of the term of this lease. To additionally secure
Lessor against such claims, Lessee shall, during the term of this lease
agreement and while holding over, maintain in lull force and effect a
policy or policies of comprehensive general liability insurance against
loss, liability or claims made by any person, including Lessee and third
parties, on an occurrence basis with a combined single limit of not less
than $5,000,000.00 for any one person, or for any one occurrence, naming
Lessor as an additional insured. Lessee shall furnish Lessor with a
certificate of insurance showing such policy or policies to be in lull
force and effect during the term of this lease agreement, or while holding
over, which shall contain a provision that the said policy or policies are
not be to cancelled except upon 30 days prior written notice of
cancellation to Lessor.
13. FIRST PARTY PERSONAL PROPERTY DAMAGE, INSURANCE,
SUBROGATION AND NONLIABILITY FOR CONSEQUENTIAL DAMAGES. Neither of the
parties hereto shall be liable or responsible to the other party for
personal property damage or for consequential damages sustained, other
than for personal injury resulting therefrom, whether or not occasioned by
negligence. Each of the parties shall insure against damage by casualty
or negligence to his or its personal property and be limited to first
party recovery from his or its respective insurance carriers without
subrogating the claim of either against the other to the benefit of the
insurance carriers making payment under insurance contracts. Each party
shall name the other party as an additional insured and shall take such
other action as will effectively prevent the insured party's insurance
carrier from subrogating a claim against the other party. Each party
shall furnish the other party with a certificate of insurance showing such
policy or policies to be in lull force and effect during the term of this
lease and while holding over, which shall contain a provision that the
said policy or policies are not to be cancelled except upon 30 days prior
written notice of cancellation to the named insureds or certificate
holders.
Lessor shall not be responsible nor liable to Lessee for any
loss, damage, injury, consequential damages or for any matter whatever
that may result through the acts or omissions of Lessor or of any other
party, it being the contemplation of the parties that Lessee may, at its
election, insure against such losses or make other provision for such
loss, damage or injury.
14. REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND INSURANCE
PREMIUMS. Lessee shall pay as additional rent the net annual real estate
taxes, special assessments, and premiums for fire and extended coverage
insurance and owner's, landlord's and tenant's liability insurance carried
by Lessor upon the premises. Said additional rent shall be prorated to
conform to the term of this lease agreement or while holding over.
Contemporaneously with the payment of the monthly installments of rent,
Lessee shall pay Lessor one-twelfth (1/12) of the estimated annual real
estate taxes, special assessments and premiums for said insurance to fully
fund the obligations therefor by the end of each calendar year for which
the taxes are assessed or charges incurred. Any deficiency in the amounts
funded for these purposes shall be promptly paid by Lessee upon receipt of
the invoice and supporting documents therefor, even if delivered alter the
expiration of the lease term. The monthly payments for estimated real
estate taxes, special assessments and insurance premiums shall be
$11,550.00 commencing with the first day of the term and continuing
through the 1st day of December, 1996, and thereafter determined annually
by the amount assessed or charged for the preceding calendar year.
Lessee shall have the right, at its cost, to contest or protest
the amounts assessed for real estate taxes or for special assessments, and
Lessor shall cooperate with Lessee in any procedure initiated therefor by
Lessee.
15. DAMAGE OR INJURY AND CONDITION OF PREMISES. Lessee shall
use and occupy the premises in a careful, safe and lawful manner, without
waste, and shall keep the premises and all parts thereof safe and in good
order, and will so deliver up the same at the expiration or sooner
termination of this lease, reasonable use and ordinary wear and tear
thereof and damage by unavoidable casualty to personal property against
which Lessor is obligated to insure and is or would be covered and fully
compensable to Lessor by such insurance excepted. Lessee, at its sole
cost and expense, shall make good any damage to said premises or any part
thereof caused by the act of Lessee or its agents and employees, or by
persons, other than Lessor, in privity with Lessee, and shall prior to the
expiration or sooner termination of the lease term repair any damage to
said premises which may be caused by its removal therefrom.
16. OPTION TO EXTEND LEASE. Provided Lessee shall in all
respects be current in the performance of its obligations under this lease
agreement, and not otherwise, and not while holding over, and shall desire
to extend the initial term of this lease agreement, it shall have the
option to do so for two additional five year terms which options shall be
exercised by giving written notice to Lessor of its election to extend the
initial term not less than 24 months prior to the expiration of the
initial term for the first extended term, and like notice at the like time
prior to the expiration of the first extended term in exercising the
option for the second extended term, whereupon this lease agreement shall
be extended for each such additional term of five years without the
necessity for any separate extension agreement. All of the provisions of
this lease agreement for the initial term shall continue through each
extended term except for base rent. Base rent for the first year of the
first extended term shall be increased, but not decreased, by the
proportionate increase in the Consumer Price Index-Urban (CIP-U) published
by the United States Department of Labor immediately prior to the
beginning of the first year of the extended term over that published most
recently prior to the thirteenth year of the initial term without
limitation. Thereafter the base rent for each subsequent year of each
extended term shall be increased but not decreased by the proportionate
increase in the CPI-U published immediately prior to the beginning of each
year of the extended term over that published most recently prior to the
twelfth month preceding the beginning of each such year, but in all events
each said annual proportionate increase in base rent shall not be less
than three percent (3%) nor more than ten percent (10%).
17. SURRENDER AT END OF TERM AND HOLDING OVER. Lessee
covenants that on the last day of the term of this lease agreement, or any
extension thereof, or earlier termination thereof, to peaceably and
quietly surrender and yield up to Lessor the entire premises, including
all leasehold and other improvements and additions to the freehold not
required to be removed, broom clean and in good order and condition,
reasonable wear and tear excepted. Should Lessee hold over alter the
expiration of the term of this lease; this lease shall then continue on a
month to month term only, subject to all of the conditions, provisions and
obligations of this lease insofar as the same are applicable to the month
to month term.
18. RE-ENTRY UPON DEFAULT OF LESSEE. If Lessee shall default
in the payment of rent which is not cured within 10 days alter Lessor
gives Lessee written notice of default, then Lessee shall, in addition to
the payment of rent in default, pay Lessor seven and one-half percent (7
1/2%) of the payment in default as a late payment fee. If Lessee shall
default in the payment of rent which is not cured within 30 days alter
Lessor gives Lessee written notice of default, then Lessor may at his
option declare the base rent for the balance of the term due in its
entirety, whereupon the same shall be payable forthwith reduced to its
then present value at an annual compounded interest rate often percent
(10%) without abatement by re-rental, but in all events the accelerated
base rent shall not be less in amount than twenty-four (24) months base
rent at the monthly base rent rate then in effect without reduction to
then present value, so that Lessor will be made whole for expenditures for
leasehold improvements incurred before the commencement of the term and as
agreed liquidated damages for unpaid base rent only.
In the event Lessee does not or shall neglect or fail to perform
and observe any of the covenants or conditions herein contained which on
its part are to be performed, including the independent covenant for
payment of rent, Lessor may lawfully, immediately, or at any time
hereafter, and while such neglect or default continues, and upon 30 days
prior written notice of default which remains uncorrected, except m those
cases where it is not feasible for the Lessee to correct the default
within 30 days and Lessee has commenced correction within 30 days of the
notice or demand and is diligently pursuing the correction to completion,
then without further notice or demand, enter into or upon said premises
and repossess the same as if its former estate as authorized by law, and
expel Lessee and those claiming under it, and remove its effects, forcibly
if necessary, without prejudice to any remedies which might otherwise be
used for arrears of rent or preceding breach of covenant; and such
expulsion and removal, whether by the direct act of Lessor or his assigns
according to law, or through the medium of legal proceedings for that
purpose instituted, shall not affect the liability of the Lessee or its
representatives for the past rent due or future rent to accrue under this
lease, but the same shall continue as if such removal or expulsion had not
taken place. Lessee further covenants and agrees to pay and discharge all
reasonable costs, attorneys' fees and expenses that shall be paid and
incurred by Lessor in enforcing the covenants and agreements of this
lease. The remedies of Lessor shall be cumulative.
Accelerated base rent and other obligations of Lessee to Lessor
shall bear interest on the unpaid balance thereof from time to time until
paid at the rate of ten-twelfths of one percent (10/12%) or three percent
(3%) over the rate charged by Firstar Bank, Milwaukee, Wisconsin, to its
most creditworthy borrowers, whichever is the greater, applied monthly to
the total amount of principal and accumulated interest accrued.
19. EFFECT OF BANKRUPTCY OR INSOLVENCY; FINANCIAL STATEMENTS.
The interest of Lessee under this agreement shall not be subject to
involuntary assignment, transfer or sale by operation of law or in any
manner whatsoever, and any such attempt at involuntary assignment,
transfer or sale shall be void and of no effect.
The parties acknowledge that the leasehold improvements to be
made by Lessor upon the premises are unique to the special use of Lessee.
In the event any proceedings under the Bankruptcy Act or similar laws be
commenced by or against Lessee which are not dismissed before an
adjudication in bankruptcy or the confirmation of a composition,
arrangement or plan of reorganization, or in the event Lessee is adjudged
insolvent or makes an assignment for the benefits of its creditors, or if
a receiver is appointed for Lessee in any proceedings or action, then at
the election of Lessor, the Lessor may accelerate the unpaid rent and all
obligations of Lessee to Lessor hereunder including all such obligations
of any and all persons claiming under Lessee as upon default by Lessee.
Lessee shall upon reasonable request by Lessor furnish Lessor
with its financial statements which Lessor shall keep confidential and
provide only if required to his attorneys, accountants and commercial
lenders.
20. LESSOR'S ENTRY FOR INSPECTION, MAINTENANCE AND REPAIR; FOR
RENT SIGNS. Lessor shall have the right, at reasonable times during the
business hours of Lessee, upon 24 hours advance verbal notice, except in
the case of an emergency when entry may be made at any time forcibly or by
key and alarm disarmament code provided by Lessee, to enter upon the
premises for the purposes of inspecting the same and of showing the said
premises to prospective tenants or purchasers or to maintain or to make
repairs or modifications to the improvements thereon. Lessee will permit
the usual "For Rent" or similar signs to be placed upon the premises at
any time within twenty-four (24) months prior to the expiration of the
term of this lease, or any extension thereof.
21. DAMAGE OR DESTRUCTION OF PREMISES. In the event the
premises shall be damaged or destroyed during the term of this lease
agreement by fire, other casualty or the elements, it shall be promptly
repaired by Lessor, at his expense. Lessor shall undertake the necessary
work within a reasonable period of time alter such damage or destruction
and shall pursue the same with due diligence, in a manner consistent with
sound construction methods; but Lessor shall not be liable for any delays
in or interruptions to such construction or repair occasioned by strikes,
acts of God, national emergency, governmental regulations, inability to
procure labor or materials or any other causes (whether of similar or
dissimilar nature) beyond his control. Rent shall be abated during the
period when the premises are unable to be occupied. In the case where the
premises may be partially occupied, rent shall be prorated to the
proportion of the premises which may be occupied.
22. WAIVER OF BREACH NOT WAIVER OF SUBSEQUENT BREACH. The
declination of Lessor to insist on strict performance of any of the terms
and conditions of this agreement and the obligations of Lessee hereunder
shall not be deemed a waiver of any subsequent breach or default on the
part of Lessee.
23. WRITTEN NOTICES. Unless otherwise specifically provided,
all notices by either party to the other shall be in writing and given by
receipted personal delivery or sent by certified mail with return postal
receipt to the other party at the address set forth hereinabove, or to
such other address as either party shall hereafter designate to the other
by written notice, and shall be effective upon the date of mailing.
24. ESTOPPEL CERTIFICATES. At any time, and from time to time,
Lessee agrees, upon request in writing from Lessor, to execute,
acknowledge and deliver to Lessor a statement in writing certifying that
its lease agreement is unmodified, or if modified stating the
modifications, and in lull force and effect and the date to and for which
the rent and other amounts and charges hereunder have been paid.
25. SUBORDINATE TO MORTGAGE AND ATTORNMENT. This lease
agreement shall at all times be subordinate to any mortgage or security
agreement placed by Lessor upon the premises, provided, so long as Lessee
is not in default under the terms of this lease agreement, the rights of
Lessee hereunder shall not be prejudiced nor its occupancy of the premises
be disturbed by any action taken by the mortgagee under terms of its
mortgage, and in consideration thereof, Lessee agrees to attorn to the
mortgagee or any successor in interest to Lessor as its successor Lessor,
and this lease agreement shall continue in lull force and effect between
Lessee and the successor Lessor. The parties hereto agree to execute such
documents as may be necessary to give effect to this provision.
26. COVENANTS BINDING UPON ASSIGNS. The covenants, conditions
and terms of this lease agreement shall be binding upon the respective
parties hereto and upon their successors, assigns, trustees, receivers,
heirs and personal representatives, as the case may be.
27. LAW OF FORUM; PROVISIONS SEVERABLE. This lease agreement
shall be governed by the laws of the State of Wisconsin. If any provision
of this lease agreement shall be declared by a court of competent
jurisdiction to be invalid, illegal or unenforceable under any law
applicable thereto, such provision shall be deemed deleted from this lease
agreement without impairing or prejudicing the validity, legality and
enforceability of the remaining provisions hereof.
28. ENTIRE AGREEMENT AND MODIFICATION. This instrument is the
entire lease agreement between the parties hereto, and there are no other
promises, conditions or understandings, oral or written, between the
parties. This agreement shall not be modified nor amended unless reduced
to writing and executed as this agreement is executed.
IN WITNESS WHEREOF, Xxxxx Xxxxxxxxx, as Lessor, has executed
these presents, and Harnischfeger Engineers, Inc. as Lessee, has caused
these presents to be executed by its duly authorized officer, and their
respective seals to be hereunto affixed, in multiple original, at the
place and on the date first above written.
LESSOR: LESSEE:
HARNISCHFEGER ENGINEERS, INC.
(SEAL)
/s/ Xxxxx Xxxxxxxxx (SEAL) By: /s/ Xxxx X. Xxxxxxxxxx, Xx.
Xxxxx Xxxxxxxxx Xxxx X. Xxxxxxxxxx, Xx.,
Vice President, Secretary
and General Counsel
