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Exhibit 10.7
LEASE
This Lease entered into this 21st day of July, 1995, by and between 1st
American Management Co., Inc., Receiver, pursuant to an Order of the Superior
Court of Lake County, Indiana (hereinafter called "Landlord"), and International
Knife & Saw, Inc., a Delaware Corporation (hereinafter called "Tenant").
WITNESSETH:
1. PREMISES: Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord for the term, at the rental, and upon all of the terms and
conditions set forth herein, the tract of land, together with the building and
other improvements situated thereon consisting of approximately 18,465 square
feet (the "Stipulated Square Footage"), located at 000 Xxxxx Xxxxxx, Xxxx,
Xxxxxxx, and outlined in red on the Site Plan set forth on Exhibit "A" attached
hereto and made a part hereof for all purposes ("Site Plan"). The leased
premises is part of a building which was formerly known as the Xxxx Company
Building and now commonly known as the Southeast Industrial Center.
Said real property and the portion of the building and other
improvements thereon are hereinafter referred to as the "Leased Premises".
The Landlord shall provide the Tenant with twenty-five (25) exclusive
parking spaces as shown on the Site Plan. The Landlord shall have the right to
move and relocate said exclusive parking spaces at its sole discretion for
comparable spaces. The Landlord
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shall not be required to police the exclusivity of said parking of the Tenant.
2. TERM OF LEASE: The term of this Lease shall be for three (3) years
commencing at 12:01 a.m. on the 1st day of September, 1995, and shall continue
until midnight on the 31st day of August, 1998 (the "Initial Term"), unless
extended pursuant to the terms herein or unless sooner terminated pursuant to
the terms herein.
3. ANNUAL RENT: Tenant shall pay to Landlord in lawful money of the
United States at Landlord's address as designated herein, or to such other
person and/or addresses as Landlord may from time to time designate in writing
the following rent:
Rental Rate Annual Monthly
Year From To Per Square Foot Rent* Rent
---- ---- -- --------------- ----- ----
1 9/1/95 8/31/96 $ 3.15 $58,164.72 $4,847.06
2 9/1/96 8/31/97 $ 3.31 $61,073.04 $5,089.42
3 9/1/97 8/31/98 $ 3.47 $64,126.68 $5,343.89
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*Based upon 18,465 sq. ft., subject to adjustment per paragraph 3.1 of this
Lease.
3.1 Stipulated Square Footage. For the purpose of this Lease, the
"Stipulated Square Footage" of the Leased Premises shall be 18,465 square feet.
Notwithstanding anything to the contrary contained herein, in the event that the
total number of square feet of the Leased Premises actually delivered to Tenant
is less than 18,465 square feet or more than said amount, then "Stipulated
Square Footage" shall be recomputed to reflect the actual square footage of the
Leased Premises, the Rent and monthly installments of Rent specified in each of
the above subsections, and all other additional charges
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required to be made by the Tenant to the Landlord as provided for in this Lease,
shall be computed or recomputed on the basis of such actual square footage of
the Leased Premises, and Tenant shall pay as Annual Rent and its pro rata share
of the real estate taxes and other additional charges as provided for in this
Lease on the amount of the Stipulated Square Footage as computed or recomputed.
3.2 Time and Place of Payment of Rent. The Annual Rent and Monthly Rent
shall be payable in advance on the first day of each calendar month during the
term of this Lease in equal monthly installments (the "Monthly Rent"). Annual
Rent and Monthly Rent shall be referred to herein as (the "Rent") unless
otherwise specified. All Rent shall be payable without notice or demand and
without any deduction, offset, or abatement to 1st American Management Co.,
Inc., Receiver, 000 Xxxx Xxxx Xxxx, Xxxxx X, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxx
00000, or such other person or entity or at such other places as Landlord may
designate in writing to Tenant from time to time.
4. USE AND CONDITION:
4.1 Use. The Leased Premises shall be primarily used and occupied for
the grinding and sharpening of industrial knives and saws and related offices
required thereof. No act shall be done in or about the Leased Premises that is
unlawful or that will increase the rate of insurance for fire and extended
coverage on the improvements comprising the Leased
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Premises or on any property in the vicinity of the Leased Premises above that
normally incurred by Landlord leasing property to businesses undertaking
activities similar to Tenants. No act shall be done and no material shall be
used in or about the Leased Premises which interferes with the use of adjacent
property. Tenant shall not commit, or allow to be committed, any waste or any
public or private nuisance or permit to be stored any environmentally hazardous
wastes or radioactive materials, on the Leased Premises. Tenant shall, at
Tenant's expense, comply promptly with all applicable federal, state, county and
local statutes, ordinances, rules, regulations, orders, and laws, including
OSHA, environmental, EPA, and fire-safety requirements and fire underwriting
standards, relating to Tenant's use of the Leased Premises and shall keep and
observe such reasonable rules and regulations as may be adopted and published by
Landlord for the safety, care, cleanliness and benefit of the Leased premises,
and for the preservation of good order therein. Tenant shall at all times use
adequate ventilation/exhaust equipment and waste disposal equipment and
procedures so as to comply with all applicable governmental and safety statutes,
rules and regulations, and so as to prevent any interference with the use of
property in the vicinity of the Leased Premises. Tenant warrants and represents
that it shall not store, generate or dispose any hazardous waste, hazardous
substances, toxic substances or related materials in or about the Leased
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Premises, Southeast Industrial Center Common Area or the real property adjacent
thereto except in absolute compliance with any and all applicable federal,
state, county and local laws, statutes, regulations or other requirements.
Landlord shall be provided with copies of any and all letters and documents
required of Tenant by virtue of the aforementioned. If Tenant fails to comply
with the requirements of this Section 4, Landlord shall be entitled to pursue
any of the remedies provided in Section 5.5 or in Section 11.
4.2 Condition of Leased Premises. Tenant has occupied the Premises
under a previous Lease dated July 19, 1990, and Tenant hereby accepts the Leased
Premises, "AS IS", "WHERE IS" and "WITH ALL FAULTS AND VIRTUES", relying
exclusively upon its own inspection of the Leased Premises. Landlord warrants
and represents that it is Receiver for the Premises with full right, title and
authority to enter into and perform this Lease. Tenant hereby accepts the Leased
Premises subject to all applicable zoning, municipal, county and state laws,
ordinances and regulations governing and regulating the use of the Leased
Premises, and accepts this Lease subject thereto and to all matters disclosed
thereby and by any exhibits attached hereto. Landlord represents and warrants
that it has no knowledge and has received no notice of any violation regarding
any law governing the use, storage or disposal of any hazardous waste, toxic
substance or related materials in the Leased Premises, Xxxxxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxx Xxxx
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or the real property adjacent thereto. Tenant acknowledges that neither Landlord
nor Landlord's agent has made by representation or warranty as to the
suitability of the Leased Premises for the conduct or operations of Tenant's
business.
4.3. Indemnification by Tenant:
(i) In no event shall Landlord be responsible to Tenant for
any remediation of any Hazardous Substance or other environmental clean-up at
the Premises resulting directly from use and occupancy of the Premises by
Tenant, its employees, agents, customers, suppliers and the like.
(ii) If compliance with any Environmental Law becomes
necessary to Premises due to any acts or omissions on the part of Tenant, then
Tenant shall comply with such Environmental Law at Tenant's own expense, except
to the extent attributable to Landlord or Landlord's employees, agents,
customers, suppliers, or the like.
(iii} Tenant shall indemnify, defend and hold harmless
Landlord from and against all claims, liabilities, losses, damages and costs,
foreseen and unforeseen, including without limitation counsel fees, engineering
and other professional and expert fees, which Landlord may incur by reason of
Tenant's breach of its obligations under this paragraph or breach of Tenant's
representations under this paragraph.
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5. MAINTENANCE, REPAIRS AND ALTERATIONS:
5.1 Tenant's Obligations. Except as provided in Sections 5.2 and 5.3
below, Tenant shall, during the term of this Lease, keep in good repair,
replacement, maintenance, order and condition, the Leased Premises and every
part thereof, including but not limited to the floors, plumbing, water lines,
sewer lines, heating, electrical system, electrical substations, fire security
system, windows, doors, overhead doors, dock doors, loading docks, fences and
signs which are located in the Leased Premises. Landlord shall be responsible
for maintaining and repairing the portions of the electrical system, heating
system, water system, electrical substations, fences, fire security system,
windows and sewer lines located outside the Leased Premises until each such
system is modified to independently serve the Leased Premises. Thereafter,
Tenant shall have complete responsibility for maintenance, repair and
replacement of each such independent system or systems.
5.2 Landlord's Obligations. The Landlord shall keep in good repair and
maintenance the foundation, structure and roof of the Leased Premises, except if
damage is caused by the negligence of the tenant, its employees, agents,
subcontractors and workers. Landlord shall not be obligated to paint any
exterior nor shall Landlord be required to maintain the interior surfaces or
walls, windows, doors or any plate glass (interior or exterior). Tenant
expressly waives
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the benefits of any statute now or hereafter in effect which would otherwise
afford Tenant the right to make repairs at Landlord's expense or to terminate
this Lease because of Landlord's failure to keep the Leased Premises in good
repair, maintenance, order and condition.
5.3 Common Area Maintenance. The "Common Area" includes the real
property, together with those portions of the Southeast Industrial Center,
designated by Landlord from time to time for the common use of the Tenant with
the users of other facilities in the vicinity of or adjacent to the Leased
Premises, all of which shall be subject to the Landlord's sole management and
control and shall be operated, maintained and repaired in such manner as
Landlord, in its discretion, shall determine. Tenant agrees to pay in addition
to Rent, Tenant's proportionate share of the cost of operation and
administrative expenses as follows:
Year From To Monthly Expense
---- ---- -- ---------------
1 6/1/95 7/31/96 $ 848.16
2 6/1/96 7/31/97 $ 890.57
3 6/1/97 7/31/98 $ 935.09
Such payments shall be made monthly, in advance, and shall be paid in
addition to Rent and shall be paid for such Common Area expenses which may be
incurred by Landlord in its sole discretion. Tenant's first payment of Common
Area costs shall be made on September 1, 1995.
5.4 Surrender. On the last day of the Initial Term or any Option Term
hereof, or on any sooner termination, Tenant
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shall surrender the Leased Premises to Landlord in the same good condition as at
the commencement of the Lease, broom clean, ordinary wear and tear and loss by
fire, casualty, condemnation and acts of God excepted. Tenant shall repair any
damage other than ordinary wear and tear to the Leased Premises occasioned by
its use thereof, or by the removal of Tenant's additions, improvements, trade
fixtures, furnishings and equipment pursuant to Section 5.6(c), which repair
shall include the patching and filling of holes and repair of any and all damage
caused by removal of same.
5.5 Landlord's Rights. If Tenant fails to perform Tenant's obligations
hereunder, Landlord may, but shall not be required to, enter upon the Leased
Premises, after ten (10) days' prior written notice to Tenant, and perform the
same and the costs thereof, together with interest thereon from the date of
payment by Landlord at the lesser of the following: (a) The rate of three (3)
points in addition to the prime or corporate rate charged by The First National
Bank of Chicago, Chicago, Illinois, to its most credit-worthy corporate
customers; or (b) the highest rate then permitted by law.
5.6 Alterations and Additions.
(a) Tenant shall not, without Landlord's prior written
consent, which consent shall not be unreasonably withheld, make any
alterations, improvements, or additions, in, on or about the Leased
Premises, except for non-structural alterations not exceeding One
thousand
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dollars ($1,000.00) in cost or place any signs on the Leased
Premises and the Southeast Industrial Center. As a condition to giving
such consent, Landlord may require Tenant to remove any such
alterations, improvements, additions, signs or utility installations at
the expiration of the term, and to restore the Leased Premises and sign
placement areas to their prior condition. If Landlord does not notify
Tenant at the time of giving such consent that Tenant will be required
to remove such alteration, improvement, signs, addition or utility
installation, then Landlord shall be deemed to have waived its right to
have Tenant remove the same at the expiration of the term of this
Lease.
(b) Before commencing any work relating to alterations,
additions and improvements affecting the Leased Premises or signs,
Tenant shall notify Landlord in writing of the expected date of
commencement thereof. Landlord shall then have the right at any time
and from time to time to post and maintain on the Leased Premises such
notices as Landlord reasonably deems necessary to protect the Leased
Premises and Landlord from mechanics' liens, materialmen's liens or any
other liens. In any event, Tenant shall pay, when due, all claims for
labor or materials furnished to or for Tenant at or for use in the
Leased Premises. Tenant shall not permit any mechanics' or
materialmen's liens to be levied against
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the Leased Premises for any labor or material furnished to Tenant or
claimed to have been furnished to Tenant or to Tenant's agents or
contractors in connection with work of any character performed or
claimed to have been performed on the Leased Premises by or at the
direction of Tenant.
(c) All alterations, improvements or additions which may be
made on the Leased Premises at the cost of Tenant and Tenant's
machinery, equipment and other trade fixtures and signs shall remain
the property of Tenant and may be removed by Tenant subject to the
provisions of Section 5.4; provided that any alteration, improvement,
additions, machinery, equipment or trade fixture or sign not removed on
or prior to the last day on which this Lease is in effect shall become
part of the Leased Premises and the property of Landlord, subject to
the provisions of Section 11.2(c) below.
6. INSURANCE; INDEMNITY:
6.1 Liability. Tenant shall, at Tenant's sole cost and expense, obtain
and keep in full force during the term of this Lease a policy of comprehensive
general public liability (broad form) insurance issued by a company admitted to
do business in the State of Indiana and insuring Tenant and Landlord against any
liability arising out of the ownership, use, occupancy or maintenance of the
Leased Premises. Such insurance policy shall be in an amount or not less than
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million dollars ($6,000,000.00). Landlord reserves the right to require Tenant
to increase the limits as reasonably required by Landlord or Landlord's lender,
upon thirty (30) days written notice to Tenant.
Such insurance policies shall name Landlord as an additional insured
and shall provide that they may not be canceled without thirty (30) days prior
written notice to Landlord. Landlord, at its option, shall be furnished with
copies of such insurance policies or certificates evidencing such insurance at
least annually or such earlier time as Landlord may request in writing. If
Tenant shall fail to procure and maintain said insurance, Landlord may, but
shall not be required to, procure and maintain the same, but at the sole cost
and expense of Tenant as additional rent payable monthly pursuant to Section
5.5.
6.2 Property Insurance. Landlord shall obtain and keep in force during
the term of this Lease a policy or policies of insurance issued by a company
authorized to engage in the insurance business in the State of Indiana, insuring
all improvements comprising the Leased Premises and the entire Southeast
Industrial Center in the amount for the full replacement value thereof against
damage or destruction by any and all insurable perils pursuant to an extended
coverage fire and extended insurance policy commonly referred to as an "All
Risks" insurance policy. Tenant shall pay during the term of this Lease, in
addition to Annual Rent, Tenant's proportionate
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share of the cost of such insurance as provided for in this Section 6.2. For the
purpose of this Section 6.2, Tenant's proportionate share of the cost of such
insurance shall be calculated by multiplying the total cost of such insurance by
a fraction, the numerator of which shall be the Stipulated Square Footage of the
Leased Premises and the denominator of which shall be 1,060,000 square feet
representing the gross square footage of the Southeast Industrial Center. The
cost of such insurance shall include any increased premiums, whether such
premium increase shall be the result of the nature of Tenant's occupancy, any
act or omission of Tenant, requirements of the holder of a mortgage or deed of
trust covering the Leased Premises, increased valuation of the Premises, or any
other cause except for increase due directly to other tenant's occupancy, act or
omission which shall be paid by such other tenant or Landlord. Tenant shall pay
any such premium amounts to Landlord within thirty (30) days after receipt by
Tenant of a copy of the premium statement or other satisfactory evidence of the
amount due from Tenant. Said insurance shall provide for the payment for loss
thereunder to Landlord or the holder of a first mortgage or deed of trust on the
Leased Premises and the Southeast Industrial Center.
6.3 Insurance Policies. The Landlord or Tenant as the insuring party
and as provided for herein shall deliver prior to possession to the other party
copies of policies of such insurance or certificates of insurance evidencing the
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existence and amounts of such insurance with loss payable clauses satisfactory
to Landlord. No such policy shall be cancelable or subject to reduction of
coverage or other modification except after thirty (30) days' prior written
notice to Landlord. If Tenant is the insuring party, Tenant shall, within thirty
(30) days prior to the expiration of such policies, furnish Landlord with
renewals or "binders" thereof, or Landlord may order such insurance and charge
the cost thereof to Tenant, which amount shall be payable by Tenant upon demand.
Tenant shall not do or permit to be done anything which shall invalidate the
insurance policies referred to in Section 6.3. Notwithstanding anything
contained herein to the contrary, the amount and coverage of insurance required
pursuant to Sections 6.1 and 6.2 shall be not less than the amount which shall
be reasonably required from time to time by the holder of any mortgage or deed
of trust to which this Lease is subject. Tenant shall forthwith, upon Landlord's
demand, reimburse Landlord for any additional premiums attributable to any act
or omission or operation of Tenant causing such increase in the cost of
insurance. If Landlord is the insuring party, and if the insurance policies
maintained hereunder cover other improvements in addition to the Leased
Premises, Landlord shall deliver to Tenant a written statement setting forth the
amount of any such insurance cost increase and showing in reasonable detail the
manner in which it has been computed. Any insurance required
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pursuant to Section 6 shall be through companies authorized to engage in the
insurance business in the State of Indiana.
6.4 Waiver of Subrogation. Tenant and Landlord each waives any and all
rights of recovery that such party, or any party claiming by, through or under
such party by subrogation or otherwise, may have against the other party, or
against the officers, employees, agents and representatives of the other party,
for loss of, or damage to, such waiving party or its property or the property of
others under its control, as to any such loss or damage which is insured against
(or should be insured against pursuant to the terms of this Lease) under any
insurance policy in force at the time of such loss or damage. Tenant and
Landlord shall, upon obtaining the policies of insurance required hereunder,
give notice to the insurance carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
6.5 Hold Harmless. Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims arising from Tenant's use of the Leased
Premises and Common Area or from the conduct of its business or from any
activity, work or things which may arise from or by Tenant or its agents,
contractors, employees or invitees in or about the Leased Premises and Common
Area and shall further indemnify, defend and hold Landlord harmless from and
against any and all claims arising from any breach or default in the performance
of any obligation on Tenant's part to be performed under the
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provision of this Lease or arising from any negligence of Tenant or any of its
agents, contractors, employees or invitees and from any and all costs,
reasonable attorneys' fees, expenses and liabilities incurred in the defense of
any such claim or any action or proceeding brought thereon. Tenant hereby
assumes all risk of damage to property or injury to persons in or about the
Leased Premises from any cause except to the extent attributable to the
intentional misconduct or negligence of Landlord, or any of its agents,
contractors, employees or invitees.
6.6. Exemption of Landlord from Liability. Except as provided in
Section 6.5 with respect to the intentional misconduct or negligence of the
Landlord, or any of its agents, contractors, employees or invitees, Landlord
shall not be liable for injury to Tenant's business or for any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Tenant, Tenant's employees, agents, or customers, or any other person in or
about the Leased Premises or Common Area; nor shall Landlord be liable for
injury to Tenant's employees, agents, customers, or contractors, whether said
damage or injury results from conditions arising upon the Leased Premises,
Common Area, or from other sources or places, and regardless of whether the
cause of such damage or injury or the means of repairing the same is accessible
to or under the control of Landlord. Landlord shall not be liable for any
damages arising from any
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act or neglect of any other person. Tenant hereby agrees to indemnify, hold
harmless, and to defend Landlord from any and all claims which may arise as a
result of use of the Common Areas by Tenant, Tenant's employees, agents,
invitees, customers and contractors.
7. DAMAGE OR DESTRUCTION:
7.1 Damage. In the event the improvements on the Leased Premises are
damaged or destroyed, partially or totally, from any cause whatsoever, whether
or not such damage or destruction is covered by any insurance required to be
maintained under Section 6, Landlord shall have the following options at
Landlord's sole discretion:
(a) Landlord may, at Landlord's expense, repair or restore
such damage or destruction as soon as reasonably possible and in such
event Landlord shall commence repair or restoration within ninety (90)
days of the date of such damage or destruction and diligently proceed
with such repair or restoration until completed, and this Lease shall
continue in full force and effect without any interruption whatsoever;
provided that Rent and other amounts payable by Tenant shall
proportionately xxxxx until the Leased Premises are repaired or
restored; or
(b) Landlord may elect not to repair or restore the Leased
Premises, in which case this Lease shall automatically terminate.
Landlord must give Tenant written notice of its election not to repair
or restore
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within forty-five (45) days of the date of damage or destruction and,
if not given, Landlord shall be deemed to have elected to repair or
restore and in such event shall commence repair or restoration within
ninety (90) days of the date of such damage and diligently proceed to
completion. In such event, Rent and other amounts payable by Tenant
shall proportionately xxxxx until the Leased Premises are repaired or
restored.
7.2 Damage Near End of Term. If the Leased Premises are partially
destroyed or damaged during the last year of the fourth option term of this
Lease, Landlord may, at Landlord's option, cancel and terminate this Lease as of
the date of occurrence of such damage by giving written notice to Tenant of
Landlord's election to do so within thirty (30) days after the date of
occurrence of such damage.
7.3 Prorations. Upon termination of this Lease pursuant to this Article
7, a pro rata adjustment of rent based upon a thirty (30) day month shall be
made.
7.4 Obligation to Restore. Notwithstanding any provision to the
contrary in this Lease, if the Leased Premises are damaged or destroyed, in
whole or in part, and there are insurance proceeds available to the Landlord for
repair or restoration of such damage or destruction, then the Landlord shall
within ninety (90) days of such damage or destruction commence any repair or
replacement work required as the result of such damage or destruction and shall
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continuously and diligently proceed with such repair or replacement work until
completed.
8. REAL PROPERTY TAXES:
8.1 Payment of Taxes. For each Lease Year of the term of this Lease,
Tenant shall pay to Landlord Tenant's pro rata share of the Real Estate Taxes on
the Southeast Industrial Center and payable in said Lease Year, as additional
rent, promptly without demand, in an amount to be estimated by Landlord and, in
the event Landlord is required under any mortgage covering part or all of the
Leased Premises to escrow real estate taxes, Landlord may use the amount
required to be so escrowed as the basis for its estimate, and to be adjusted at
the end of each Lease Year based upon Landlord's actual cost. An amount equal to
one-twelfth (1/12) of the Landlord's estimate of current Real Estate Taxes shall
be paid in advance during the Term of the Lease on the first day of each
calendar month and a proportionate sum for the partial month, if any, at the
commencement and termination of the Lease Term. The Real Estate Tax payment
shall consist of all items of cost and expense for Real Estate Taxes.
8.2 Definition of Real Estate Taxes. As used herein, the term "Real
Estate Taxes" shall include any form of special assessments, ad valorem real
estate taxes, license fee, sewer tax, utility tax, water tax, trailer tax, levy,
or tax related to the Leased Premises or Tenant's use thereof imposed by any
authority having the direct or indirect power to tax,
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including any city, county, state or federal government, or any school,
lighting, drainage or other improvement district thereof, as against any legal
or equitable interest of Landlord in the Leased Premises, Common Area, or in the
real property of which the Leased Premises are a part, or as against Landlord's
business of leasing the Leased Premises. Excluded from the meaning of Real
Estate Taxes are income taxes and franchise taxes. Tenant shall not be
responsible for any penalty or interest on the payment of delinquent Real Estate
Taxes, except if caused by Tenant's failure to pay said Real Estate Taxes in a
timely fashion as required herein. Tenant shall pay any and all charges and fees
which may be imposed by the EPA, FDA or other similar government regulations or
authorities for general governmental purposes which relate to the Tenant's
occupancy and use of the Leased Premises.
8.3 Joint Assessments. If the Leased Premises are not separately
assessed, Tenant's liability shall be the Tenant's proportionate share of said
Real Estate Taxes. For the purpose of this Section 8.3, Tenant's proportionate
share of the Real Estate Taxes shall be calculated by multiplying the total cost
of said Real Estate Taxes by a fraction, the numerator of which is the
Stipulated Square Footage for the Leased Premises and the denominator of which
shall be 1,060,000 square feet representing the gross square footage of the
Southeast Industrial Center. Landlord shall provide the
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Tenant, upon the Tenant's written request, with the calculation of the Tenant's
proportionate share of said Real Estate Taxes as certified by the Landlord.
8.4 Personal Property Taxes.
(a) Tenant shall pay prior to delinquency all taxes assessed
against and levied upon leasehold improvements, trade fixtures,
furnishings, equipment and all other personal property of Tenant
contained in the Leased Premises or elsewhere. Tenant shall cause said
leasehold improvements, trade fixtures, furnishings, equipment and all
other personal property to be assessed and billed separately from the
real property of Landlord.
(b) If any of Tenant's said personal property shall be
assessed with Landlord's real property, Tenant shall pay Landlord the
taxes attributable to Tenant within ten (10) days after receipt of a
written statement setting forth the taxes applicable to Tenant's
property as certified by one of the general partners of the Landlord
following reasonable determination by Landlord.
9. UTILITIES: Tenant shall timely pay when due all water, gas, sanitary
sewer, heat, light, power, telephone and other utilities and services supplied
to the Leased Premises, together with any taxes hereon. Gas and electricity
provided to the Leased Premises shall be separately metered. If any other such
services are not separately metered to Tenant, Tenant shall pay upon demand a
reasonable proportion to be determined by Landlord of all charges
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jointly metered with other premises on a fair and equitable basis. Tenant shall
be entitled to a proportionate abatement of Rent to the extent and during the
period of any material interruption with Tenant's use of the Leased Premises as
a result of the failure of water or sewer service to the Leased Premises, the
maintenance of which is not the responsibility of Tenant, which failure occurs
for five (5) consecutive days or more. Landlord shall use its best efforts to
remedy such material interruptions as quickly as is reasonably possible under
the circumstances.
Landlord retains an exclusive easement over, across, and under any and
all portions of the Leased Premises for the purpose of installing, inspecting,
maintaining, repairing, removing, or relocating any new or existing utility
service located on or to be located on the Leased Premises. In the event that
Landlord causes any work to be performed on utilities services located on the
Leased Premises, Landlord will take reasonable steps to minimize interruption of
such services and to insure that Tenant's business is not materially interrupted
and shall restore any disturbed areas to a condition such that Tenant's use of
the Leased Premises is not substantially and materially impaired. Except to the
extent caused by act or omission of Tenant, Rent and other amounts payable by
Tenant shall xxxxx during the period of and to the extent the Leased Premises
are rendered untenantable by any repairs, alterations or improvements made
thereto or to the Southeast Industrial Center made by Landlord pursuant to this
section.
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10. ASSIGNMENT AND SUBLETTING:
10.1 Landlord's Consent Required. Tenant shall not assign, transfer,
mortgage, sublet, or otherwise transfer or encumber all or any part of Tenant's
interest in this Lease or in the Leased Premises without the prior written
consent of the Landlord, which consent shall not be unreasonably withheld if (i)
such assignment or transfer is of Tenant's entire interest in the Leased
Premises and (ii) Tenant provides to Landlord certification from a national
certified public accounting firm (acceptable to Landlord) that the proposed
assignee or transferee has a net worth of not less than Ten million dollars
($10,000,000.00). Any attempted assignment, transfer, mortgage, encumbrance or
subletting shall be void. A merger or consolidation of Tenant with or into any
other corporation shall not be deemed an assignment for purposes of this
section. The Tenant shall not mortgage or encumber any part of Tenant's interest
in this Lease or in the Leased Premises.
10.2 No Release of Tenant. Regardless of Landlord's consent, no
subletting or assignment shall release Tenant from Tenant's obligation to pay
the Rent, additional rent, or to perform all other obligations to be performed
by Tenant hereunder for the term of this Lease. The acceptance of rent by
Landlord from any other person shall not be deemed to be a waiver by Landlord of
any provision hereof. Consent to one
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assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting.
11. DEFAULTS; REMEDIES:
11.1 Defaults. The occurrence of any one or more of the following
events shall constitute a default and breach of this
Lease by Tenant:
(a) The vacating for a period of forty-five (45) consecutive
days or abandonment of the Leased Premises by Tenant.
(b) The failure by Tenant to make any payment of Rent,
additional rent, or any other payment required to be made by Tenant
hereunder, as and when due. Landlord agrees that Tenant shall not be in
default under this subparagraph if said Rent is received by Landlord
within five (5) days after the due date hereof as provided in this
Lease.
(c) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or
performed by Tenant, other than described in paragraph (b) above, where
such failure shall continue for a period of twenty (20) days after
written notice thereof from Landlord to Tenant; provided, however, that
if the nature of Tenant's default is such that more than twenty (20)
days are reasonably required for its cure, then Tenant shall not be
deemed to be in default if Tenant commenced such cure within said
twenty
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(20) day period and thereafter diligently prosecutes such
cure to completion.
(d) (i) The making by Tenant of any general assignment, or
general arrangement for the benefit of creditors; (ii) the filing by or
against Tenant of a petition to have Tenant adjudged bankrupt or a
petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Tenant, the
same is dismissed within sixty [60]] days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's
assets located at the Leased Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within thirty (30)
days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where such seizure is not discharged
within thirty (30) days.
11.2 Remedies in Default. In the event of any such default or breach by Tenant,
Landlord may at any time thereafter, with or without notice or demand and
without limiting Landlord in the exercise of any right or remedy which Landlord
may have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Leased
Premises by any lawful means, in which case this Lease shall terminate
and Tenant shall immediately
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surrender possession of the Leased Premises to Landlord. Landlord shall be
entitled to recover from Tenant all damages incurred by Landlord by reason of
Tenant's default including, but not limited to, the cost of recovering
possession of the Leased Premises; expenses of reletting, including necessary
renovation and alteration of the Leased Premises, reasonable attorneys' fees and
any real estate commission actually paid; the worth at the time of award by the
court having jurisdiction thereof of the amount by which the unpaid rent for the
balance of the term at the time of such award exceeds the amount of such rental
loss for the same period that Tenant proves could be reasonably avoided; and
that portion of the leasing commission paid by Landlord applicable to the
unexpired term of this Lease. If any installment of rent or other sum is not
received by Landlord within five (5) days after the due date thereof as provided
in this Lease, it shall bear interest from the date due at the lesser of the
following: a) the rate of three (3) points in addition to the existing prime or
corporate rate charged by The First National Bank of Chicago, Chicago, Illinois,
to its most credit-worthy corporate customers; or b) the highest rate then
permitted by law. In the event Tenant shall have abandoned the Leased Premises,
Landlord shall have the option of (i) retaking possession of the Leased Premises
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and recovering from Tenant the amounts specified in this Section 11.2(a), or
(ii) proceeding under Section 11.2(b).
(b) Maintain Tenant's right to possession, in which case this
Lease shall continue in effect whether or not Tenant shall have
abandoned the Leased Premises. In such event, Landlord shall be
entitled to enforce all or Landlord's rights and remedies under this
Lease, including the right to recover the rent as it becomes due
hereunder.
(c) Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the State of Indiana.
Landlord shall not have the right to enter the Leased Premises upon Tenant's
default and prior to termination of this Lease to take possession of any goods,
wares, equipment, furniture, machinery, trade fixture, sign, improvement,
addition, alteration, or other Personal property of Tenant, but any such
personal property not removed from the Leased Premises within twenty (20) days
after the last day on which this Lease shall be effective following such default
shall be deemed abandoned to Landlord.
In the event that an order for relief is entered in any case under
Title 11, U.S.C. (the "Bankruptcy Code") in which Tenant is the debtor and: (A)
Tenant as debtor in possession, or any trustee who may be appointed in the case
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(the "Trustee") seeks to assume the Lease, then Tenant, or Trustee, if
applicable, in addition to providing adequate assurance described in applicable
provisions of the Bankruptcy Code, shall provide adequate assurance to Landlord
of Tenant's future performance under the Lease by depositing with Landlord a sum
equal to the lesser of twenty-five (25%) percent of the Rental and other charges
due from the balance of the Lease Term of six (6) month's Rent ("Security"), to
be held (without any allowance for interest thereon) to secure Tenant's
obligations under the Lease, and (B) Tenant, or Trustee, if applicable, seeks to
assign the Lease after assumption of the same, then Tenant, in addition to
providing adequate assurance described in applicable provisions of the
Bankruptcy Code shall provide adequate assurance to Landlord of the proposed
assignee's future performance under the Lease by depositing with Landlord a sum
equal to the Security to be held (without any allowance for interest thereon) to
secure performance under the Lease. Nothing contained herein expresses or
implies, or shall be construed to express or comply, that Landlord is consenting
to assumption and/or assignment of the Lease by Tenant, and Landlord expressly
reserves all of its rights to object to any assumption and/or assignment of the
Lease. Neither Tenant nor any Trustee shall conduct or permit the conduct of any
"fire", "bankruptcy", "going out of business" or "auction sale" in or from the
Premises.
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11.3 Default by Landlord. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event later than twenty (20) days after written notice by Tenant
to Landlord specifying wherein Landlord has failed to perform such obligation;
provided, however, that if the nature of Landlord's obligation is such that more
than twenty (20) days are required for performance then Landlord shall not be in
default if Landlord commences performance within such twenty (20) day period and
thereafter diligently prosecutes the same to completion.
11.4 Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of Annual Rent, additional rent, and other sums due hereunder
will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. Such costs include,
but are not limited to, processing and accounting charges, and late charges
which may be imposed on Landlord by the terms of any mortgage or trust deed
covering the Leased Premises. Accordingly, if any installment of Rent,
additional rent, or any other sum due from Tenant shall not be received by
Landlord or Landlord's designee within ten (10) days after written notice from
Landlord to Tenant that said amount is past due, then Tenant shall pay to
Landlord a late charge equal to five (5%) percent of the overdue amount for each
month or portion thereof that said amount is overdue. The
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parties hereby agree that such late charge represents a fair and reasonable
estimate of the cost Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder.
12. CONDEMNATION: If the Leased Premises or any portion thereof are
taken under the power of eminent domain, or sold by Landlord under the threat of
the exercise of said power (all of which is herein referred to as
"Condemnation"), this Lease shall terminate as to the part so taken as of the
date the condemning authority takes title or possession, whichever occurs first.
If more than twenty-five (25%) percent of the floor area of the Leased Premises
is taken by Condemnation, either Landlord or Tenant may terminate this Lease as
of the date the condemning authority takes title or possession by notice in
writing of such election within twenty (20) days after Landlord shall have
notified Tenant of the taking or, in the absence of such notice, then within
twenty (20) days after the condemning authority shall have taken possession. For
the purpose of this Section 12, if all means of ingress and egress to the Leased
Premises are permanently taken under the power of eminent domain, then this
Lease shall terminate as provided for in this Section 12.
If this Lease is not terminated by either Landlord or Tenant then it
shall remain in full force and effect as to the portion of
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the Leased Premises remaining, provided the rental shall be reduced in
proportion to a fraction, the numerator of which shall be the remaining
Stipulated Square Footage of the Leased Premises (after any such taking) and the
denominator of which shall be Stipulated Square Footage of the Leased Premises
before any such taking. In the event this Lease is not so terminated then
Landlord agrees, at Landlord's sole cost, to undertake to restore the Leased
Premises to a complete unit of like quality and character as existed prior to
the Condemnation within ninety (90) days of the date of the taking and to
diligently proceed with such restoration until completed. All awards for the
taking of any part of the Leased Premises or any payment made under the threat
of the exercise of power of eminent domain shall be the property of Landlord,
whether made as compensation for diminution of value of the leasehold or for the
taking of the fee or as severance damages; provided, however, that Tenant shall
be entitled to any award for loss of or damage to Tenant's trade fixtures and
removable personal property, and relocation expenses.
13. STATEMENT OF TENANT: Tenant shall at such times as may be
reasonably required and upon not less than ten (10) business days prior written
notice from Landlord execute, acknowledge and deliver to Landlord a statement in
writing (i) certifying, if true, that this Lease is unmodified and in full force
and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
date to which the rent, security deposit and other
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charges are paid in advance, if any, and (ii) acknowledging, if true, that there
are not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder, or specifying such defaults, if any, which are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Leased Premises.
Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than one (1)
month's installment of Annual Rent has been paid in advance.
If Landlord desires to finance or refinance the Leased Premises, or any
part thereof, Tenant hereby agrees to deliver to any lender designated by
Landlord such financial statements of Tenant as Tenant has available in its
normal course of business (to be certified as true, correct and completed by the
chief executive officer of Tenant) and as may be reasonably requested by such
lender or Landlord. Such statements shall include the past three (3) years'
financial statements of Tenant. All such financial statements shall be received
by lender or Landlord in confidence and shall be used only for the purposes
herein set forth.
14. LANDLORD'S INTERESTS: The term "Landlord" as used herein shall mean
1st American Management Co., Inc., as Receiver, pursuant to Order of the Lake
Superior Court, Room Number One, or the owner or owners at the time in question
of the fee title. In the event
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of any transfer of such title or interest, Landlord herein named (and in case of
any subsequent transfers the then grantor) shall be relieved from and after the
date of such transfer of all liability as respects Landlord's obligations
thereafter to be performed, provided that any funds in the hands of Landlord or
the then grantor at the time of such transfer, in which Tenant has an interest,
shall be delivered to the grantee. The obligations contained in this Lease to be
performed by Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assigns, only during their respective period of ownership.
15. SEVERABILITY: The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision herein.
16. SUBORDINATION: This Lease, at Landlord's option, shall be
subordinate to any ground lease, mortgage(s), deed(s) of trust or any other
hypothecation for security now or hereafter placed upon the real property of
which the Leased Premises are a part and to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Notwithstanding such subordination,
Tenant's right to quiet possession of the Leased Premises shall not be disturbed
if Tenant is not in default and so long as Tenant shall pay the rent and observe
and perform all of the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms. If any mortgagee, trustee or ground lessor
shall elect to have this Lease prior to the lien of its mortgage, deed or trust
or
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ground lease, and shall give written notice thereof to Tenant, this Lease shall
be deemed prior to such mortgage, deed of trust, or ground lease, whether this
Lease is dated prior or subsequent to the date of said mortgage, deed of trust
or ground lease or the date of recording thereof.
Tenant agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be, that contains a non-disturbance
clause reasonably satisfactory to Tenant and failure to do so within ten (10)
business days after written demand, does hereby make, constitute and irrevocably
appoint Landlord as Tenant's attorney in fact and in Tenant's name, place and
stead, to do so.
17. COST AND ATTORNEYS' FEES: If either party shall prevail in any
action for relief against the other party, declaratory or otherwise, arising out
of this Lease, including any suit by Landlord for the recovery of rent or
damages or possession of the Leased Premises, the prevailing party shall be
entitled to its reasonable attorneys' fees, costs and disbursements.
18. NOTICES: All notices under this Lease shall be in writing and
delivered in person to the persons listed below or sent, by registered or
certified mail, return receipt requested, or by commercial courier service
(return receipt requested), as follows:
If to Tenant: International Knife and Saw, Inc.
0000 Xxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
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If to Landlord: Xxxx X. Xxxxxxxx
1st American Management Co., Inc.
000 Xxxx Xxxx Xxxx, Xxxxx X
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
With copies to: Xxxxxx Xxxxxxxxx
First Bank National Association
First Bank Place East-NPFE 0909
Xxxxxxxxxxx, Xxxxxxxxx 00000
19. HOLDING OVER: If Tenant remains in possession of the Leased
Premises or any part thereof after the expiration of the term hereof with the
express written consent of Landlord, such occupancy shall be a tenancy from
month to month at a rental in the amount of all charges, other than Rent,
payable hereunder plus two times the last month's Rent and upon the terms hereof
applicable to month-to-month tenancy.
20. WAIVERS: No waiver by Landlord of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Tenant of the same or any other provision. Landlord's consent to or approval of
any act shall not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act by Tenant. The acceptance of rent
hereunder by Landlord shall not be a waiver of any preceding breach by Tenant of
any provision hereof, other than the failure of Tenant to pay the particular
rent so accepted, regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rent.
21. LANDLORD'S ACCESS: Landlord and Landlord's agent shall have the
right to enter the Leased Premises at reasonable times for the purpose of
inspecting the same, showing the same to prospective
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purchasers or lenders, and making such alterations, repairs, improvements or
additions to the Leased Premises or to the building of which they are a part as
Landlord may deemed necessary or desirable; provided, however, Landlord shall
not unreasonably interfere with Tenant's use of the Leased Premises. Except to
the extent caused by act or omission of Tenant, Rent and other amounts payable
by Tenant shall xxxxx during the period of and to the extent the Leased Premises
are rendered untenantable by any repairs, alterations or improvements made
thereto or to the Southeast Industrial Center by Landlord pursuant to this
section. Landlord may at any time place on or about the Leased Premises any
ordinary "For Sale" signs, and Landlord may at any time during the last one
hundred twenty (120) days of the term hereof place on or about the Leased
Premises any ordinary "For Sale of Lease" signs, all without rebate of rent or
liability to Tenant.
22. PERFORMANCE BOND: At any time Tenant either desires to or is
required to make any repairs, alterations, additions, improvements or utility
installation thereon, pursuant to Section 5 or otherwise, Landlord may at its
sole option require Tenant, at Tenant's sole cost and expense, to obtain and
provide to Landlord a lien and completion and performance bond in an amount
equal to one and one-half (1 1/2) times the estimated cost of such improvements,
to insure Landlord against liability for mechanics' and materialmen's liens and
to insure completion of the work. The Tenant shall have the right at its sole
option to deposit cash in
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lieu of the above-referenced completion and performance bond provided such cash
is for the same stated amount.
23. INTEREST ON PAST-DUE OBLIGATIONS: Except as expressly herein
provided, any amount due to Landlord not paid when due shall bear interest from
the due date at the lesser of the following:
(a) The rate of three (3) points in addition to the prime or corporate rate
charged by The First National Bank of Chicago, Chicago, Illinois, to its most
credit-worthy corporate customers; or (b) The highest rate then permitted by
law.
Payment of such interest shall not excuse or cure any default by Tenant
under this Lease.
24. TIME OF ESSENCE: Time is of the essence.
25. CAPTIONS: Article, section and paragraph captions are not a part
hereof.
26. PRIOR AGREEMENTS; AMENDMENTS: This Lease contains all agreements of
the parties with respect to any matter mentioned herein. No prior agreement or
understanding pertaining to any such matter shall be effective. This Lease may
be modified in writing only, signed by the parties in interest at the time of
the modification.
27. CUMULATIVE REMEDIES: No remedy or election hereunder shall be
deemed exclusive, but shall wherever possible, be cumulative with all other
remedies at law or in equity.
28. COVENANTS AND CONDITIONS: Each provision of this Lease performable
by Tenant shall be deemed both a covenant and a condition.
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29. BINDING EFFECT; CHOICE OF LAW: Subject to any provisions hereof
restricting assignment or subletting by Tenant and subject to the provisions of
Section 14, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the state
where the Leased Premises are located.
30. MERGER: The voluntary or other surrender of this Lease by Tenant,
or a mutual cancellation thereof, shall not work a merger, and shall, at the
option of Landlord, terminate all or any existing subtenancies or may, at the
option of Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
31. CORPORATE AUTHORITY: If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the By-Laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
32. LIENS: Tenant shall have no authority, express or implied, to
suffer, create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind the Leased Premises for any claim in favor of any
person dealing with Tenant, including those who may furnish materials or perform
labor for any construction or repairs, and any such claim shall affect, and any
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such lien shall attached, if at all, only to the leasehold interest of the
Tenant.
33. SHORT FORM LEASE: This Lease shall not be recorded by Tenant.
Tenant shall sign, execute and deliver to Landlord a short form lease of this
Lease upon the furnishing of same to Tenant by the Landlord.
34. BROKERAGE COMMISSION: Landlord hereby warrants to Tenant and Tenant
hereby warrants to Landlord that no broker's commissions, finder's fees or like
charges (hereinafter collectively called "Commissions") have been incurred in
connection with this transaction by the parties so warranting herein. Landlord
and Tenant further agree to give testimony in accordance with these warranties
in case any action or proceeding shall be instituted by any purported broker,
licensed or otherwise, or any other person claiming a CommiSSion in connection
with this transaction. Landlord and Tenant hereby agree to indemnify and to hold
each other harmless from any alleged claim for any Commission that may be
claimed by any third-party through either of them against the other party.
35. SECURITY DEPOSIT: Tenant has deposited with the Landlord the sum of
Five thousand dollars (55,000.00) to be held by Landlord as security for
Tenant's satisfactory performance of the terms, covenants and conditions of this
Lease including the payment of Rent and all other amounts due hereunder. As long
as the Tenant is not in default hereunder, any and all interest earned on the
cash
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deposit referenced above shall inure to the exclusive benefit of the Tenant.
Landlord may use, apply or retain the whole or any part of the security
so deposited to the extent required for the payment of any Rent and any other
sum as to which Tenant is in default or for any sum which Landlord may expend or
may be required to expend by reason of Tenant's default in respect of any of the
terms, covenants and conditions of this Lease including any damages or
deficiency in the reletting of the Leased Premises or other re-entry by
Landlord.
If Landlord uses, applies or retains the whole or any part of the
security, Tenant shall replenish the security to its original sum after being
notified by the Landlord of the amount due. Tenant shall be in default of this
Lease if the amount due is not paid within the required time period.
In the event that Tenant shall fully and faithfully comply with all the
terms, covenants and conditions of this Lease, any part of the security not used
or retained by Landlord shall be returned to Tenant after the termination of the
Lease and after delivery of exclusive possession of the Leased Premises to
Landlord.
36. QUITE ENJOYMENT: So long as Tenant is not in default hereunder,
Tenant shall peacefully and quietly have, hold and enjoy the Leased Premises
during the full term of this Lease and any extension of renewal thereof.
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37. TERMINATION OF PRIOR LEASE: Upon the execution of this Lease, any
previous Lease entered into by Tenant shall be null and void.
38. LANDLORD'S LIABILITY: If Landlord shall be in default under this
Lease, and as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of a right,
title and interest of Landlord in either the Southeast Industrial Center as the
same may then be encumbered and neither Landlord nor any person or entity
comprising Landlord shall be liable for any deficiency. In no event shall Tenant
have the right to levy execution against any property of Landlord or any person
or entity comprising Landlord other than its interest in the Southeast
Industrial Center as herein expressly provided.
39. NO TERMINATION OF LEASE: Rejection of this Lease by the Landlord or
any Trustee of the Lessor pursuant to Section 365(h) of the Bankruptcy Code, 11
U.S.C. Section 365(h), shall not terminate this Lease. Tenant hereby waives any
right to offset against Rent received which may be conferred under Section
365(h)(2) of the Bankruptcy Code, 11 U.S.C. Section 365(h)(z).
If the rights of the Landlord or the Tenant under this Lease are at any
time pledged, hypothecated, or otherwise subject to any mortgage, deed of trust,
assignment of rents or other security instrument, and if the Landlord or any
Trustee of the Landlord shall reject this Lease pursuant to Section 365(h) of
the Bankruptcy Code, 11 U.S.C. Section 365(h)(a), the Tenant shall without
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further act or deed be deemed to have elected under Section 365(h)(1) of the
Bankruptcy Code, 11 U.S.C. Section 365(h)(1) to remain in possession of the
Leased Premises for the balance of the term hereof and shall have the right to
exercise any one or more of the extension options provided for herein, and (b)
any exercise or attempted exercise by the Tenant of a right to treat this Lease
as terminated under Section 365(h)(1) of the Bankruptcy Code shall be void.
For the purposes of Section 365(h) of the Bankruptcy Code, 11 U.S.C.
Section 365(h), the term "possession" shall mean the right to possession of the
Leased Premises granted to Lessee under this Lease whether or not all or part of
the Leased Premises has been subleased.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Lease on the date and year first above written.
LANDLORD, TENANT,
1st American Management Co., Inc. International Knife & Saw,
Inc.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------------ -----------------------------
Xxxx X. Xxxxxxxx, President Xxxxx Xxxxxxx, Gen. Mgr.
IKS-Chicago Operation
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