LEASE
THIS LEASE is made as of the 3rd day of November, 1997, by and
between JSK PROPERTIES, L.L.C., hereinafter referred to as "Landlord", and
THERMO-SHIELD COMPANY, INC., an Illinois corporation, hereinafter referred to
as "Tenant".
WITNESSETH:
In consideration of the rents hereinafter reserved and the covenants
and agreements hereinafter contained, Landlord hereby leases to Tenant, and
Tenant does hereby hire and take from Landlord, all those premises, except
the portion of the premises approximating 17,000 square feet leased pursuant
to a Lease dated the date hereof, (the "Leased Premises") with the building,
improvements and appurtenances now or hereafter located thereon, situated and
located at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx (the "Property"). This Lease
for the Leased Premises is subject to municipal and zoning ordinances
regulating and restricting the use of said premises and construction of any
improvements thereon; recorded covenants, easements, restrictions and grants,
if any; and licenses and permits which may affect the Leased Premises.
I. TERM OF LEASE
The term of this Lease shall commence on November 3, 1997 (the
"Commencement Date"), and shall end at 11:59 p.m. on October 31, 2007, unless
sooner terminated in accordance with this Lease.
II. RENTAL
1. From and after the Commencement Date, Tenant shall pay to
Landlord a monthly base rent of $8,000.00 payable in advance (increasing by
5% at the end of each year during ht term) on the first day of each and every
calendar month (except the rent for November 1997 shall be paid on the date
hereof) during the term. The monthly base rent as aforesaid payable for any
partial month shall be prorated on a thirty (30) day basis.
2. The base rent and any additional rent to be paid by Tenant to
Landlord under the terms of this Lease shall be paid to Landlord at the
address as hereinafter designated for notices to Landlord or at such other
place as Landlord may from time to time designate.
3. It is intended hereby that the rent stated herein shall be an
absolute net return to Landlord for the demised term, free from any expense,
charges or any deduction or offset whatsoever.
III. TAXES
1. From and after the Commencement Date, Tenant agrees to pay as
additional rent all taxes, charges and assessments, general and special,
ordinary and extraordinary, of every nature and kind whatever, and all water
rates and sewage charges levied, assessed, imposed, due
or payable during the demised term, upon the Property, whether such tax,
rate, charge or assessment shall be fore city, town, county, state, federal
or any other purpose whatsoever, said Tenant hereby covenanting to pay taxes
and assessments upon the real estate as well as upon the improvements
thereon. Tenant further covenants and agrees to pay, as additional rent, all
personal property taxes levied and assessed against all furniture, fixtures,
equipment and other items of personal property constituting a part of the
Property or situated on or about the Property. Should any governmental agency
or political subdivision impose any taxes and/or assessments, whether or not
now customary or within the contemplation of the parties hereto, either by
way of substitution for taxes and assessments presently levied and assessed
against the real estate as well as the improvements thereon, or in addition
thereto, other than Landlord's personal income tax or any estate tax or
inheritance tax, such taxes and/or assessments shall be deemed to constitute
a tax and/or assessment upon the real estate as well as the improvements
thereon for the purpose of this Paragraph and shall be paid by Tenant.
2. Real estate taxes and assessments shall be prorated for any
partial year of the term. Tenant's obligations under this Article shall
survive the expiration of the term of this Lease.
3. Tenant shall pay all such real property taxes, assessments and
charges as provided in Paragraph 1 above at the time the same are due and
payable and in any event before any fine, penalty, interest or additional
cost may be added thereto, and Tenant shall furnish to Landlord a receipted
tax xxxx and other satisfactory evidence of the payment of said taxes,
assessments and charges within ten (10) days after the same are due and
payable.
4. Notwithstanding the foregoing provisions of this Article, if the
provisions of any mortgage of the fee of the Property require deposits for
real estate taxes to be made with the holder of such mortgage (the
"Mortgagee"), Tenant shall make such tax deposits with the holder of such
mortgage in lieu of the payments under Paragraph 3 hereof.
IV. INSURANCE AND INDEMNITY
1. Tenant shall, at its own cost and expense, during the Lease term
keep the building and improvements on the Property insured against loss or
damage by fire and such other contingencies covered by an all-risk or special
form insurance policy in an amount of not less than the full replacement cost
of the building and improvements, without provision for deductible or
co-insurance. Said policy shall provide, subject to the rights of Mortgagee,
if any, that all proceeds payable thereunder shall be paid directly to
Landlord or the party designated by Landlord. Said policy shall also include
business interruption or loss-of-rent insurance to insure, without provision
for deductible or co-insurance, the payment of rent under Article II of this
Lease, the payment of taxes and assessments under Article III of this Lease,
and for the payment of insurance premiums under this Article IV for a period
of not less than twelve (12) months in the event of a casualty as
contemplated by Article VIII of this Lease.
2. Tenant shall, at its own cost and expense, during the Lease term
carry commercial general liability insurance with respect to the Property and
the business operated by Tenant therein protecting Tenant, Landlord and
Mortgagee, if any, and any other party designated by
Landlord in an amount of not less than what is customary and prudent and
which a reasonably prudent tenant would carry under similar circumstances, or
such greater limit as Landlord may reasonably determine in accordance with
prudent real estate management practices.
3. Tenant shall, at its own cost and expense, during the Lease term
carry boiler and machinery insurance in the amount of not less than the
replacement value of the building and improvements on the Leased Premises, on
any steam boilers, pressure vessels and pressure piping installed in the
Property. All proceeds of such insurance shall be payable directly to
Landlord.
4. Tenant shall, at its own cost and expense, during the Lease term
carry insurance against fire, vandalism, malicious mischief and such other
perils as are from time to time included in a standard extended coverage
endorsement, insuring any betterments and improvements made by Tenant to the
Property and all merchandise, trade fixtures, furnishings, equipment and all
other items of personal property located at the Property.
5. All insurance policies required hereunder shall be written by an
insurance company or companies acceptable to Landlord and in the name of
Landlord, Tenant, Mortgagee, if any, and any other party designated by
Landlord, as their interests appear. Such insurance shall be written as
primary policy coverage and not contributing with or in excess of any
coverage which Landlord may carry and shall be non-cancelable and
non-amendable without thirty (30) days written notice to all such parties.
The original policies or certificates thereof shall be furnished to Landlord
with evidence of timely payment of the premium therefor prior to the
commencement of the Lease term and not less than thirty (30) days prior to
the expiration of any coverage. Landlord may at any time and from time to
time inspect and/or copy any and all insurance policies required to be
procured by Tenant under this Lease.
6. Notwithstanding the foregoing provisions of the Article, if the
provisions of any mortgage of the fee of the Property require deposits for
insurance premiums next due be made with the Mortgagee, Tenant shall make
such deposits with Mortgagee.
7. Tenant hereby agrees to indemnify and hold Landlord harmless
against and from any and all claims by or on behalf of any person arising
from the conduct or management of or from any work or thing whatsoever done
in or about the Leased Premises, or arising from any breach or default on the
part of Tenant in the performance of any covenant or agreement on the part of
Tenant to be performed pursuant to this Lease, or arising from any act or
negligence of Tenant, or any occupant of the Leased Premises or any
employees, guests, invitees, licensees or customers, or arising from any
accident, injury or damage whatsoever caused to any person or property
occurring during the term of this Lease in or about the Leased Premises, and
from and against all judgments, costs, expenses and liabilities incurred in
or about any such claim. Tenant, upon notice from Landlord, shall resist or
defend such action or proceeding by counsel reasonably satisfactory to
Landlord. The foregoing covenants and indemnification shall survive the
expiration of the term of this Lease.
8. Landlord shall not be responsible or liable for any damage or
injury to any property, fixtures, buildings or other improvements, or to any
person or persons, at any time, on
the Leased Premises, including any damage or injury to Tenant or to any of
Tenant's agents, employees, contractors, guests, invitees, licensees or
customers, whether occasioned by or through any act or neglect of Landlord or
any other cause, negligent or otherwise, whatsoever.
9. Landlord and Tenant hereby expressly waive any right of recovery
each party may have against the other for a loss to the Leased Premises or
its contents due to fire or any peril included in the coverage of any
applicable insurance policy required to be carried hereunder, however caused,
including such losses as may be due to the negligence of Landlord or Tenant
or their respective agents or employees. All policies of insurance required
to be carried hereunder shall provide that the insurer waives all rights of
recovery by way of subrogation against Landlord or Tenant in connection with
any loss or damage covered by such policy.
V. CONDITION OF LEASED PREMISES; REPAIRS AND MAINTENANCE
1. Tenant acknowledges and confirms that it has inspected the Leased
Premises, knows the condition thereof, and is leasing the same in its present
"as is" condition. Landlord shall not be required to rework, remodel or
recondition the Leased Premises in any manner whatsoever for Tenant's use and
occupancy thereof. No warranties or representations are made or have been
made by Landlord or its agents and representatives that are not expressly set
forth herein.
2. Tenant shall, at its own cost and expense, throughout the term of
this Lease, keep and maintain the entire Leased Premises in good condition
and repair, including the building, parking lot, landscaped areas and all
other improvements situated thereon, and all plumbing, electrical, heating,
ventilating, air conditioning and other equipment and facilities contained in
or about the Leased Premises so that at the expiration of the Lease or any
renewal or extension thereof, the Leased Premises shall be surrendered to
Landlord in the same condition that the same are in at the commencement of
this Lease, ordinary wear and tear excepted. Tenant shall make such
replacements as from time to time may be necessary. Tenant shall not defer
any repairs, renewals or replacements to the Leased Premises by reason of
anticipation of the expiration of the term hereof. The surrender of the
Leased Premises upon the expiration or early termination of this Lease shall
not relieve Tenant of the obligation to pay for all repairs or replacements
to the Leased Premises which Tenant was obligated to perform during the Lease
term, which obligation shall survive the expiration or early termination of
this Lease. Tenant shall also use all reasonable precaution to prevent waste,
damage or injury to the Leased Premises, Tenant shall keep the Leased
Premises in a clean, tenantable condition and shall not permit any garbage,
rubbish, refuse or dirt of any kind to accumulate in or about the Leased
Premises. Landlord hall not be required to make any repairs, alterations or
replacements in or to the Leased Premises during the term of this Lease.
VI. UTILITIES
From and after the Commencement Date, Tenant shall timely pay for
all utilities used or consumed in or about the Property. Tenant shall keep
the building on the Property sufficiently heated so as to prevent freezing
and deterioration thereof and/or the equipment and facilities
contained therein. In no event shall Landlord be liable for an interruption
or failure in the supply of any utility to the Property.
VII. USE OF PREMISES
1. Tenant shall use the Leased Premises only for the operation of
Tenant's business and for no other use. Tenant expressly acknowledges that it
shall be the sole responsibility of Tenant to secure all necessary and
appropriate permits, licenses and approvals from all governmental authorities
having jurisdiction for the use of the Property as set forth herein.
2. Tenant shall, at its own cost and expense, comply promptly and
conform with all present and future laws, ordinances, rules, requirements and
regulations of the federal, state, county and city governments and of any and
all other governmental authorities or agencies affecting the Property or its
use, and Tenant shall, at its own cost and expense, make all additions,
alterations or changes to the Property or any portion thereof as may be
required by any governmental authority or agency. Without limiting the
generality of the foregoing, Tenant agrees to comply with all laws, orders
and regulations regarding the collection, sorting, separation and recycling
of waste products, garbage, refuse and trash into such categories as provided
by law.
3. Tenant shall, during the entire term of this Lease, comply with
all applicable federal, state and local environmental laws, ordinances and
all amendments thereto and rules and regulations implementing the same,
together with all common law requirements, which relate to discharge,
emissions, waste, nuisance, pollution control, hazardous or toxic substances
and other environmental matters as the same shall be in existence during the
term hereof. All of the foregoing laws, regulations and requirements are
hereinafter referred to as "Environmental Laws". Tenant shall obtain all
environmental licenses, permits, approvals, authorizations, exemptions,
classifications, certificates and registrations (hereinafter collectively
referred to as "Permits") and make all applicable filings required of Tenant
under the Environmental Laws required by Tenant to operate at the Property.
The Permits and required filings shall be made available for inspection and
copying by Landlord at Tenant's offices upon reasonable notice and during
business hours. Tenant shall not cause or permit any flammable explosive,
oil, contaminant, radioactive material, hazardous waste or material, toxic
waste or material or any similar substance (hereinafter collectively referred
to as "Hazardous Substances") to be brought upon, kept or used in or about
the Property except for small quantities of such substances as is necessary
for Tenant's business provided that Tenant shall handle, store, use and
dispose of any such Hazardous Substance in compliance with all applicable
laws and the highest standards prevailing in the industry for the storage and
use of such substances or materials, in a manner which is safe and does not
contaminate the Property, and Tenant shall give Landlord written notice of
the identity of such substances. If any lender or governmental agency shall
ever require testing to ascertain whether or not there has been any release
of any Hazardous Substance on or about the Property during the Lease term,
then the reasonable cost thereof shall be reimbursed by Tenant to Landlord
upon demand as additional rent. Tenant shall also, from time to time, at
Landlord's request, execute such other affidavits, representations and the
like concerning Tenant's best knowledge and belief regarding the presence of
Hazardous Substances on the Property. Tenant agrees to indemnify and hold
Landlord harmless from any liability, claim or
injury, including attorney fees and the cost of any required or necessary
repair, clean-up, remediation or detoxification, arising out of (i) the use,
manufacture, handling, storage, disposal or release of any Hazardous
Substances by Tenant, its agents and employees on, under or about the
Property, or (ii) an actual or alleged violation of Environmental Laws in
connection with the occupancy of the Property by Tenant or any occupant of
the Property or the operation of Tenant's business on the Property during the
term of this Lease. The foregoing covenants and indemnification shall survive
the expiration of the term of this Lease.
VIII. DESTRUCTION OF LEASED PREMISES
In the event the building or improvements on the Leased Premises are
damaged or destroyed in whole or in part by fire or any other cause
whatsoever during the term of this Lease, this Lease shall continue in full
force and effect without any abatement in rent, taxes, charges, assessments
or other obligations of Tenant referred to in this Lease, and Tenant shall,
at its own cost and expense, with all reasonable dispatch and diligence,
rebuild, restore and/or repair the building or improvements as aforesaid to a
condition equal or greater in value to that just prior to said damage or
destruction in accordance with plans and specifications to be approved in
writing by Landlord prior to commencement of said rebuilding, restoration
and/or repair. Tenant shall complete said rebuilding, restoration and/or
repair of the building or improvements as aforesaid within a period not to
exceed six (6) months from the date of said damage or destruction, subject to
extension in the event of delays beyond the control of Tenant arising from
acts of God, general labor strikes, the acts of Landlord or other
contingencies which could not be anticipated or provided for by Tenant. For
the purpose of making such repairs and restorations, Landlord agrees that the
insurance proceeds, subject to the rights of Mortgagee, if any, may be used
on account of the payment therefor in accordance with pay-out procedures
established by Landlord or Mortgagee, if any, to insure that there are
sufficient funds available for such repairs and restoration and that such
work is done in a good and workmanlike manner in accordance with the plans
and specifications approved by Landlord and free from any liens for services,
materials or supplies. Tenant's obligation to rebuild, restore and/or repair
shall be absolute whether or not the insurance proceeds available therefor
shall be sufficient to defray the entire cost thereof. If any surplus remains
after completion of such rebuilding, restoring or repair, such surplus shall
be paid over to and become the property of Landlord.
IX. CONDEMNATION
1. If the whole of the Leased Premises shall be condemned by any
governmental agency or political subdivision or sold to any governmental
agency or political subdivision in lieu of condemnation, then this Lease
shall expire on the date the Leased Premises shall be so taken or the date of
the sale in lieu of condemnation and the rent shall be apportioned as of that
date.
2. If a portion of the Leased Premises shall be condemned by any
governmental agency or political subdivision or sold to any governmental
agency or political subdivision in lieu of the use of the building on the
Leased Premises, but only the lands surrounding said building, then this
Lease shall remain in full force and effect without any abatement of rent,
and Tenant shall restore the Leased Premises for Tenant's use in the manner
set forth in Paragraph 3
below.
3. If a portion of the Leased Premises shall be condemned by any
governmental agency or political subdivision or sold to any governmental
agency or political subdivision in lieu of condemnation and if said taking or
sale directly affects the building situated on the Leased Premises and
results in making said building unsuitable for the business of Tenant, then
Tenant may elect to terminate this Lease by written notice to Landlord within
sixty (60) days after the taking and the rent shall be apportioned as of that
date. If Tenant does not exercise its option herein contained, then this
Lease shall remain in full force and effect without any abatement of rent,
and Tenant shall restore said building for Tenant's use and, subject to the
rights of Mortgagee, if any, that portion of the award or proceeds of sale
directly attributable to the taking or sale of a portion of said building may
be utilized by Tenant for said restoration in accordance with pay-out
procedures established by Landlord and/or Mortgagee, if any, to insure that
there are sufficient funds available for such restoration and that such work
is done in a good and workmanlike manner in accordance with plans and
specifications first approved by Landlord and free from any liens for
services, materials or supplies. Tenant's obligation to restore shall be
absolute whether or not the portion of the award available therefor shall be
sufficient to defray the entire cost thereof, and if any surplus of funds
remains after completion of such restoration, such surplus shall be paid over
to and become the property of Landlord.
4. No part of any award or proceeds of sale resulting from the
taking of the whole or a portion of the leased Premises or a sale in lieu of
condemnation shall belong to Tenant; provided, however, Tenant shall have the
right to pursue such claim or claims as Tenant may have legally for
relocation expense, interruption of ;business and such other items which do
not affect the award or proceeds of sale otherwise payable to Landlord.
Tenant hereby expressly waives any claim which it may have relating directly
or indirectly to the leasehold estate created under this Lease.
X. ASSIGNMENT AND SUBLETTING
Tenant shall not, without the prior written consent of Landlord, (a)
assign or encumber this Lease or any interest under it; (b) sublet the Leased
Premises or any part thereof; (c) allow any transfer of Tenant's interest
herein or any lien upon Tenant's interest by operation of law or otherwise;
or (d) permit the use or occupancy of the Leased Premises or any part thereof
by anyone other than Tenant. In the event that Tenant, with or without the
prior consent of Landlord, does assign or in any manner transfer this Lease
or any estate or interest therein, Tenant shall in no way be released from
any of its obligations under this Lease. The following shall be deemed to be
an assignment of this Lease within the meaning of this Article: (a) the sale,
issuance, or transfer of any voting capital stock of Tenant or of Tenant's
permitted assigns and subtenants (if Tenant or such assigns or subtenants be
a non-public corporation) which results in a change in the voting control of
Tenant or such assigns or subtenants; (b) the sale, issuance, or transfer of
any partnership interest in Tenant or in Tenant's permitted assigns and
subtenants (if Tenant or such assigns or subtenants be a partnership); and
(c) the death or incapacity of Tenant or of Tenants' permitted assigns and
subtenants (fi Tenant or such assigns or subtenants be a natural person). In
the event that Tenant is required to obtain Landlord's consent to any
assignment, subletting or other transfer of Tenant's interest in this Lese,
then
Tenant shall reimburse Landlord for Landlord's legal fees and expenses
incurred in connection with such approval and the drafting and preparation of
appropriate documentation effectuating the assignment, subletting or other
transfer in question.
XI. ESTOPPEL CERTIFICATE AND SUBORDINATION
1. Tenant shall, without charge, at any time and from time to time
hereafter, within ten (10) days after written request of Landlord, certify by
written instrument duly executed and acknowledged to any mortgagee or
purchaser, or proposed mortgagee or proposed purchaser, or any other person,
firm or corporation specified in such request: (a) as to whether this Lease
has been supplemented or amended, and if so, the substance and manner of such
supplement or amendment; (b) as to the validity and force and effect of this
Lease in accordance with its tenor as then constituted; (c) as to the
existence of any default thereunder; (d) as to the existence of any offsets,
counterclaims or defenses thereto; (e) as to the commencement and expiration
dates of the term of this Lease; and (f) as to any other matters as may
reasonably be so requested. Any such certificate may be relied upon by the
party requesting it and any other person, firm or corporation to whom the
same may be exhibited or delivered, and the contents of such certificate
shall be binding on Tenant.
2. This Lease shall, at the option of Mortgagee or the holder or
holders of any mortgage or mortgages now or hereafter placed upon the Leased
Premises, be subject and subordinate to the lien of any such mortgage or
mortgages, and Tenant covenants and agrees to execute and deliver upon demand
such further instruments subordinating this Lease, in accordance with the
foregoing, to the lien of any such mortgage or mortgages as shall be
requested by Landlord, or Mortgagee, if any, or any proposed mortgagees,
provided any such mortgagees shall agree to recognize the rights of Tenant
under this Lease in the event of foreclosure if Tenant is not in default.
3. Failure of Tenant to execute the instruments set forth in
Paragraph 1 and 2 above within ten (10) days upon written request so to do by
Landlord shall constitute a breach of this Lease and Landlord may, at its
option, cancel this Lease and terminate Tenant's interest therein. Further,
Tenant hereby irrevocably appoints Landlord the attorney-in-fact for Tenant
to execute and deliver any such instrument or instruments for and in the name
of Tenant.
4. In the event of (i) any proceedings brought for the foreclosure
of any mortgage or mortgages now or hereafter placed upon the Leased
Premises, or (ii) the exercise of the power of sale under any such mortgage
or mortgages, Tenant shall, at the option of the purchaser under such
proceedings or power of sale, attorn to such purchaser as Landlord under this
Lease.
XII. ALTERATIONS AND SIGNS
No alterations, additions or improvements shall be made to the
Leased Premises by Tenant nor shall any signs be erected or installed on the
Leased Premises by Tenant except with the written consent of Landlord first
had and obtained. In the event Landlord consents to any alterations,
additions or improvements or the installation of any signs by Tenant, then
the same must be made at Tenant's own cost and expense and in a good
workmanlike manner in
accordance with the laws, ordinances and codes relating thereto and free from
any claim or claims for construction liens. Tenant shall indemnify Landlord
from any and all claims, costs and expenses on account of such work.
XIII. SURRENDER AND HOLDER OVER
1. On the last day of the Lease term or on the sooner termination
thereof, Tenant shall peaceably and quietly surrender the Leased Premises in
good order, condition and repair consistent with Tenant's duty to make
repairs as herein provided. All alterations, additions, improvements and
fixtures (other than Tenant's trade fixtures and unattached movable personal
property of Tenant which may be removed by Tenant at any time during the term
and prior to the termination of this Lease provided Tenant repairs any damage
caused thereby) which may be made or installed by either Landlord or Tenant
upon the Leased Premises, shall be the property of Landlord and shall remain
upon and be surrendered with the Leased Premises as a part thereof without
disturbance, molestation or injury at the termination of the term of this
Lease, whether by the lapse of time or otherwise, all without compensation or
credit to Tenant. On or before the termination of the Lease term, Tenant
shall remove all of Tenant's trade fixtures and unattached movable personal
property from the Leased Premises and any property not so removed shall be
deemed abandoned by Tenant. Any damage caused by the removal of such property
shall be repaired by Tenant at Tenant's sole cost and expense. If the Leased
Premises be not surrendered at the end of the term as set forth herein,
Tenant shall indemnify Landlord against all loss or liability resulting from
delay by Tenant in so surrendering the Leased Premises, including, without
limitation, any claim made by any succeeding tenant founded on such delay.
Tenant shall also surrender all keys to the Leased Premises and shall inform
Landlord of combinations on any locks, safes and vaults, if any, on the
Leased Premises.
2. In the event Tenant remains in possession of the Leased Premises
after the expiration of this Lease with the consent of Landlord and without
the execution of a new lease, it shall be deemed to be occupying said
premises as a tenant from month-to-month, subject to all of the conditions,
provisions and obligations of this Lease insofar s the same are applicable to
a month-to-month tenancy. For any period that Tenant shall remain in
possession of the Leased Premises without Landlord's consent, Tenant shall
pay a use and occupancy charge equal to two (2) times the base rent in effect
immediately prior thereto, computed on a daily basis, in addition to the
additional rent and other charges and assessments provided for hereunder for
real estate taxes and other items.
XIV. NOTICES
Whenever in this Lease it shall be required or permitted that notice
be given to either party hereto by the other, such notice shall be in writing
and be given by personal delivery or by United States certified mail, postage
prepaid return receipt requested, and addressed as follows:
To Landlord: JSK Properties, L.L.C.
c/o Thermo-Shield Company, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
To Tenant: Thermo-Shield Company, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 6009
Either party may, upon prior notice to the other, specify a
different address for the giving of notice.
XV. ADDITIONAL COVENANT OF TENANT
1. Tenant shall permit Landlord and its authorized representatives
to enter upon the Leased Premises at all reasonable times during usual
business hours for the purpose of exhibiting or inspecting the same. In case
of emergency (the existence of which shall be determined by Landlord), if
Tenant shall not be present to permit entry, Landlord or its representatives
may enter the same forcibly without rendering Landlord or its representatives
liable therefor or affecting Tenant's obligations under this Lease. During
the last six (6) months prior to the expiration of the term of this Lease or
any extension period, Tenant shall permit a "For Rent" or "For Sale" sign to
be placed on the Leased Premises.
2. Tenant shall not suffer or permit any liens under any
construction lien law or similar law to be filed or recorded against the
Leased Premises or against the interest of either Landlord or Tenant therein.
If any such lien at any time be filed or recorded, Tenant shall immediately
obtain the release of record of such lien.
XVI. DEFAULTS OF TENANT
1. If (a) Tenant shall fail to pay the rental or other charges due
hereunder within five (5) days after the same shall be due, or (b) Tenants
shall fail to perform any of the other terms, conditions or covenants of this
Lease to be performed or observed by Tenant for more than ten (10) days after
notice of such default has been given to Tenant, or (c) Tenant shall vacate
the Leased Premises or abandon the same by failing to use and occupy the same
for more than five (5) consecutive days, or (d) Tenant or any guarantor of
this Lease shall be adjudged bankrupt or insolvent or shall make an
assignment for the benefit of creditors, or (e) a receiver or trustee of
Tenant's property or that of any guarantor of the Lease shall be appointed
and such receiver or trustee, as the case may be, shall not be discharged
within thirty (30) days after such appointment, or (f) an execution or
attachment is levied against Tenant's property or that of any guarantor of
this Lease, then in any such case, Landlord may, upon notice to Tenant,
recover possession of and re-enter the Leased Premises without affecting
Tenant's liability for past rent and other charges due or future rent and
other charges to accrue hereunder. In the event of any such default, Landlord
shall be entitled to recover from Tenant, in addition to rent and other
charges equivalent to rent, all other damages sustained by Landlord on
account of the breach of this Lease, including, but not limited to, the
costs, expenses and attorney fees incurred by Landlord in enforcing the terms
and provisions hereof and in re-entering and recovering possession of the
Leased Premises and for the cost of repairs, alteration and brokerage and
attorney fees connected with the reletting of the Leased Premises. Further,
at the election of Landlord, Landlord shall have the right to declare this
Lease terminated and cancelled, without
any further rights or obligations on the part of Landlord or Tenant (other
than Tenant's obligation for rent and other charges due and owing through the
date of termination), so that Landlord may relet the Leased Premises without
any right on the part of Tenant to any credit or payment resulting from any
such reletting. In case of a default under this Lease, Landlord may, in
addition to terminating this Lease, or in lieu thereof, pursue such other
remedy or combination of remedies and recover such other damages for breach
of tenancy and/or contract as are available at law or otherwise.
2. The rights and remedies of Landlord under this Lease shall be
cumulative and the exercise of any of them shall not be exclusive of any
other right or remedy provided by this Lease or allowed by law, and the
waiver by Landlord of any breach of any covenant of this Lease shall be
limited to the particular instance and shall not operate or be deemed to
waive any future breach of the same or any other covenant on the same or any
other occasion, nor operate as a waiver of Landlord's right to enforce the
payment of subsequent installments of rental or any of Landlord's rights
under this Lease by such remedies as may be appropriate.
3. No extension of time, forbearance, neglect or waiver on the party
of Landlord with respect to any one or more of the covenants, terms or
conditions of this lease, shall be construed as a waiver of any of the other
covenants, terms or conditions of this Lease, or as an estoppel against
Landlord, nor shall any extension of time, forbearance or waiver on the part
of Landlord in any one or more instances or particulars be construed to be a
waiver or estoppel with respect to any other instance or particular covered
by this Lease. After the service of a notice or the commencement of a suit or
after final judgment for possession of the premises, Landlord may receive and
collect any rent due and apply the same as and for use and occupancy, and the
payment and receipt thereof shall not waiver or affect any such notice, suit
or judgment.
4. Landlord shall have the right at any time, after five (5) days
notice to Tenant (or without notice in case of emergency or in case any fine,
penalty, interest or cost may otherwise be imposed or incurred) to make any
payment or perform any act required of Tenant under any provision of this
Lease, and in exercising such right, to incur necessary and incidental costs
and expense, including reasonable attorney fees. Nothing herein shall imply
any obligation on the part of Landlord to make any payment or perform any act
required of Tenant, and this exercise of the right to so do shall not
constitute a release of any obligation or a waiver of any default. All
payments made and all costs and expenses incurred in connection with any
exercise of such right shall be reimbursed to Landlord by Tenant within five
(5) days after such payment, together with interest at a rate equal to twelve
percent (12%) per annum from the respective dates of the making of such
payments or the incurring of such costs and expenses. In the event of
non-payment thereof, Landlord shall have the rights and remedies it would
have hereunder or by law in the case of non-payment or rent.
5. Tenant shall pay all costs, expense and reasonable attorney fees
that may be incurred or paid by Landlord in enforcing the covenants and
agreements of this Lease.
XVII. QUIET ENJOYMENT
If and so long as Tenant pays the rent reserved by this Lease and
performs and observes
all of the covenants and provisions hereof, Tenant shall quietly enjoy the
Leased Premises without hindrance, disturbance or molestation from Landlord,
subject, however, to the terms of this Lease.
XVIII. MISCELLANEOUS
1. The consent or approval by Landlord to or of any act by Tenant
requiring Landlord's consent or approval shall not be deemed to render
unnecessary Landlord's consent or approval to or of any subsequent similar
act by Tenant. No breach of a covenant or condition of this Lease shall be
deemed to have been waived by Landlord, unless such waiver be in writing
signed by Landlord.
2. This Lease and the exhibits, if any, attached hereto and forming
a part hereof, set forth all the covenants, promises, agreements, conditions
and understandings between Landlord and Tenant concerning the Leased Premises
and there are no covenants, promises, agreements, conditions and
understandings between Landlord and Tenant concerning the Leased Premises and
there are no covenants, promises, agreements, conditions or understandings,
either oral or written, between them other than are herein set forth. No
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by each party.
3. Whenever herein the singular number is used, the same shall
include the plural, and the masculine gender shall include the feminine and
neuter genders.
4. The captions and article numbers appearing in this Lease are
inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or intent of such sections or articles of this
Lease nor in any way affect this Lease.
5. Any amount due from Tenant to Landlord hereunder which is not
paid when due shall bear interest at the rate of twelve percent (12%) per
annum from the date due until paid, unless otherwise specifically provided
herein, but the payment of such interest shall not excuse or cure any default
by Tenant under this Lease.
6. The covenant to pay rent is hereby declared to be an independent
covenant on the party of Tenant to be kept and performed, and no offset
thereto shall be permitted or allowed except as expressly set forth in this
Lease.
7. No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or
statement on and check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Landlord shall accept such
check or payment without prejudice to Landlord's right to recover the balance
of such rent or pursue any other remedy in this Lease provided.
8. The submission of this Lease for examination does not constitute
a reservation of or option for the Leased Premises, and this Lease shall
become effective as a Lese only upon
execution and delivery thereof by Landlord and Tenant.
9. This Lease shall be governed by, and construed in accordance
with, the laws of the state of Wisconsin. IF any provision of this Lease or
the application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Lease shall not be
affected thereby and each provision of the Lease shall be valid and
enforceable to the fullest extent permitted by the law.
10. Tenant shall, in the event of the sale or assignment of
Landlord's interest in the Leased Premises or in the event of any proceedings
brought for the foreclosure thereof, or in the event of exercise of the power
of sale under any mortgage covering the Leased Premises, attorn to the
purchaser and recognize such purchaser as Landlord under this Lease.
11. In the event of any sale or other transfer of the Leased
Premises by Landlord, the named Landlord shall be entirely relieved of all
obligations hereunder from and after the date of the transfer; provided,
however, that the transferee shall assume the same.
12. If Landlord shall fail to perform any covenant, term or
condition of this Lease upon Landlord's part to be performed, and if as a
consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levied thereon against the
right, title and interest of Landlord in the Leased Premised and out of rents
or other income from such property receivable by Landlord, or out of the
consideration received by Landlord from the sale or other disposition of all
or any part of Landlord's right, title and interest in the Leased Premises,
and Landlord herein shall not be liable for any deficiency.
13. In the event the Mortgagee or any proposed mortgagee requests
certain modifications or amendments to this Lease, then Tenant, on demand,
agrees to execute such modifications or amendments as required.
Notwithstanding the foregoing, Tenant shall not be required to execute any
modifications or amendments to this Lease which shall modify the provisions
of this Lease relating to the amount of rent reserved, the size and location
of the Leased Premises and the duration of the term of this Lease. Tenant
further agrees to furnish such financial information as may be required or
otherwise cooperate with the obtaining of said mortgage financing.
14. Nothing contained in this Lease shall be taken or construed to
create any agency between Landlord and Tenant or to authorize Tenant to do
any act or thing or to make any contract so as to encumber in any manner the
title to the Leased Premises or to create any claim or lien upon the interest
of Landlord in the Leased Premises.
15. The officers of Tenant who are executing and attesting to this
Lease hereby represent and warrant that they have full power, authority and
right to execute this Lease, and Tenant represents and warrants that the
execution and delivery of this Lease has been duly authorized by the board of
directors of Tenant, and the execution of this Lease by such officers is
sufficient and legally binding on Tenant without the joinder or approval of
any other party.
16. Except as expressly otherwise provided, all of the terms,
covenants and conditions hereof shall be binding upon and inure to the
benefit of the heirs, personal representatives, successors in interest and
assigns of the parties hereto.
SIGNED AND SEALED as of the date first written above.
LANDLORD: TENANT:
JSK PROPERTIES, L.L.C. THERMO-SHIELD COMPANY, INC.
By: /s/ XXXX X. XXXX By: /s/ XXXX X. XXXX
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Xxxx X. Xxxx, Member Xxxx X. Xxxx, President
