FOURTH AMENDMENT
TO AGREEMENT OF LEASE
---------------------
This Fourth Amendment to Agreement of Lease made as of the ______ day of
November, 1998 by and between SPG Partners, a Wisconsin general partnership
("Landlord") and Rayovac Corporation, a Wisconsin corporation ("Tenant")
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into an agreement of lease dated
May 14, 1985, as amended by First Amendment to Agreement of Lease dated as of
June 24, 1986, Second Amendment to Agreement of Lease dated as of June 10, 1987
and Third Amendment to Agreement of Lease dated as of October 1, 1997 covering
certain property located in the City of Madison, Dane County, Wisconsin, all as
more particularly described therein (the "Lease");
WHEREAS, the parties hereto desire to amend the Lease effective as of
December 31, 1998 in accordance with the terms hereof,
NOW, THEREFORE, for good and value consideration, the receipt in
sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree as
follows:
1. Article IV of the Lease is hereby deleted and restated in its entirety
to read as follows:
ARTICLE IV
RENT, ESCROW DEPOSIT
--------------------
4.01. Tenant covenants and agrees to pay to Landlord (or to any other
person designated herein) as rent for the Demised Premises the following
(a) Fixed Rent amounting to $2,600,000.00 per annum, which amount
shall be subject to adjustment based upon changes in the Consumer
Price Index (the "CPI Adjustments") as provided in Section 4.02
(herein referred to as "Fixed Rent"); and
(b) Additional Rent consisting of all other sums of whatsoever
nature which shall become due and payable by Tenant hereunder, and for
default in the payment of which Landlord shall have the same remedies
as for a default in the payment of Fixed Rent (herein referred to as
"Additional Rent").
4.02. CPI Adjustments to the Fixed Rent shall be made on the seventh
(7th), fourteenth (14th), eighteenth (18th) and twenty-fifth (25th)
anniversaries of the Commencement Date and at such other times as are
described in Article XXII of this lease (the "CPI Adjustment Dates"). CPI
adjustments to the Fixed Rent shall be based upon changes in the "Consumer
Price Index for all Urban Consumers, Milwaukee, Wisconsin" as that number
is issued by the Bureau of Labor Statistics of the United States Department
of Labor (the "CPI"). The CPI in effect for the month immediately
prior to the month in which the Commencement Date occurs shall be called
the "Beginning Index". The CPI published for the month immediately
preceding the CPI Adjustment Date in question shall be called the
"Adjustment CPI".
The seventh anniversary of the Commencement Date shall be the First CPI
Adjustment Date. On that date, the Fixed Rent shall be adjusted to equal
$2,600,000 per annum X [1+.6 X (First Adjustment CPI - 1)]
--------------------
Beginning CPI
The fourteenth anniversary of the Commencement Date shall be the Second CPI
Adjustment Date. On that date, the Fixed Rent shall be adjusted to equal
$2,600,000 per annum X [1+.6 X (Second Adjustment CPI - 1)]
---------------------
Beginning CPI
The eighteenth anniversary of the Commencement Date shall be the Third CPI
Adjustment Date. On that date, the Fixed Rent shall be adjusted to equal
$2,600,000 per annum X (Third Adjustment CPI)
----------------------
Beginning CPI
The twenty-fifth anniversary of the Commencement Date shall be the Fourth
CPI Adjustment Date. On that date, the Fixed Rent shall be adjusted to
equal
Fixed Rent as of the Third CPI Adjustment Date [1+.6 X (Fourth Adjustment CPI - 1)]
---------------------
Third Adjustment CPI
Notwithstanding anything herein to the contrary, the Fixed Rent during the
first 25 years of the Lease shall never be less than $2,600,000 per annum.
4.03. Landlord shall, promptly after each CPI Adjustment Date, deliver
to Tenant a statement setting forth the amount of the CPI Adjustment and
the basis for such computation. Until Tenant has received such statement
from Landlord, the Fixed Rent shall be paid in an amount equal to the Fixed
Rent in effect prior to such CPI Adjustment Date. On the first day of the
month following receipt of the statement of the CPI Adjustment, Tenant
shall pay, in addition to the adjustment Fixed Rent for such month, an
amount equal to the difference between the amount paid by Tenant from the
applicable CPI Adjustment Date and the amount Tenant should have paid using
the adjusted Fixed Rent.
4.04. Landlord shall not be required to make any adjustments or
recomputations, retroactive or otherwise, by reason of any revision which
may later be made in the figure of the Index first published for any month.
2
4.05. If the Index ceases to use the 1967 average equaling 100 as the
basis of calculation, or if a change is made in the term or number of items
contained in the Index, or if the Index is altered, modified, converted or
revised in any other way, then the Index shall be adjusted to the figure
that would have been arrived at had the change in the manner of computing
the Index in effect upon the Commencement Date of this Lease not been made.
If such Index (or a successor or substitute index similarly adjusted) is
not available, a reliable governmental or other reputable publication
selected by Landlord and evaluating the information theretofore used in
determining the Index shall be used.
4.06. The Fixed Rent shall be payable without demand in equal monthly
installments, in advance, on the first day of each and every calendar month
during the term of this lease (except that the first monthly installment or
pro rata portion thereof shall be due and payable as provided in Section
2.01(d)).
4.07. Tenant shall pay the Fixed Rent by good and sufficient
check-(subject to collection) drawn on a bank which is a member of the
Federal Reserve System to Landlord at the address aforesaid or a such other
place as Landlord may designate by notice.
4.08. Tenant shall pay to Landlord, through the term of this lease,
the Fixed Rent and Additional Rent (except with respect to those items of
Additional Rent which are due and payable to persons other than Landlord),
free of any charges, assessments, impositions or deductions of any kind,
and without abatement or setoff except as hereinafter otherwise expressly
provided. Tenant's obligations hereunder shall survive the expiration or
earlier termination of the term of this lease.
4.09. Prior to the Commencement Date of the Permanent Loan as that
term is defined in the Promissory Note dated February 8, 1985, executed by
Landlord as Obligor to Northwestern Mutual Life Insurance Company ("NML")
(NML or any replacement lender being hereinafter referred to as the
"Lender") and amended by Amendment of Terms of Note dated May 1, 1986 (as
amended the "Note") which Note is secured by a mortgage to NML hearing the
same date (the "NML Mortgage"), Tenant shall deposit the sum of $1,000,000
into an escrow account held by an escrow agent which is acceptable to the
Lender. Tenant shall have the exclusive right to direct the investment
(including reinvestment) of the funds deposited, Subject to limitations as
to the categories of permissible investments and as to the liquidity of
such investments. In the event of Tenant's default beyond any applicable
grace period in the payment of Fixed Rent or Additional Rent due and
payable pursuant to this Lease, the deposit, together with all interest or
other income then on deposit together with all interest or other income
than on deposit in the escrow account, shall be made available to Landlord
in such amounts as are necessary to cure Tenant's default. If at the time
of such default by Tenant, either (a) Landlord is simultaneously in default
beyond any applicable grace period under the Note and NML Mortgage or under
any replacement mortgage loan and Lender has accelerated the balance due
under its note, or (b) the Note is at maturity and Landlord is ii-i default
in its payment of the outstanding principal balance then due and owing,
then the entire deposit, including all interest or other income then on
deposit in the escrow account, shall be made available to Lender in
reduction of the outstanding principal balance payable by
3
Landlord to Lender. Tenant shall be entitled to withdraw from the escrow
account, within thirty (30) days after June 30 of each year, an amount
equal to the amount of income (interest, dividends and the like) and the
net gain (the aggregate of gains over losses) realized upon the investments
held in the escrow account if, and only if, there is at the time of such
withdrawal no default by Tenant in the payment of Fixed Rent or Additional
Rent due under this Lease and the balance remaining in the escrow account
is not less than $1,000,000. In the event NML at any time subsequent hereto
consents to, or in the event replacement financing obtained from a lender
other than NML permits the escrow account balance to be less than the
escrow account balance presently required under the NML Mortgage and this
Section 4.09, Tenant shall be permitted on the effective date of such
consent or refinancing, to reduce the escrow account balance to such lesser
amount, but in no event at any time shall the escrow account balance be
less than $750,000.
All of the above terms shall be incorporated in an Escrow Agreement
which shall be acceptable to Lender and which shall be substantially in the
form of Exhibit F annexed hereto and which replaces the Exhibit F
originally annexed to this Lease. In the event that the escrow account is,
at some time subsequent hereto, not required by NML or is not required
under the terms of replacement financing obtained from a lender other than
NML, Tenant shall then be required to maintain a security deposit of
$750,000 to be held by an escrow agent chosen by the Landlord and
reasonably acceptable to Tenant pursuant to an Escrow Agreement, which
shall be substantially the same as the form of Exhibit F annexed hereto,
excepting that all provisions relating to or in favor of a Lender, which
include, but may not be limited to, paragraph 2.6, and that portion of
paragraph 7 relating to foreclosure, shall be removed from such Escrow
Agreement.
4.10 In consideration of Tenant's performance of the obligations set
forth in Articles VI, IX and X herein, Tenant shall receive an annual
credit against Fixed Rent (the "Expense Credit") of $1,176,400.00. The
Expense Credit shall be given to Tenant in equal monthly installments as an
offset to the monthly installments of Base Rent, provided that Tenant is
not in default hereunder. The Expense Credit shall remain constant through
the term of, this Lease and shall not be increased or decreased on the
basis of any change in actual expenses or changes in the CPI. The Expense
Credit shall not be included in calculating the CPI adjustment to the Rent
Credit set forth in Section 4.12.
4.11. Tenant shall pay Landlord a Special Rental Supplement to reflect
the fact that Landlord has elected to pass through to Tenant, as provided
in Section 48(d) of the Internal Revenue Code of 1986 and in Section 32.05
of this lease, the investment tax credit for personal property placed in
service by Landlord in the Demised Premises during the Tenant's fiscal year
ending June 30, 1986. Such Special Rental Supplement shall equal a total of
$120,000 payable $60,000 on or before May 31, 1987 and $60,000 on or before
June 30, 1987.
4.12. The rent otherwise to be paid hereunder by Tenant for the period
from October 1, 1997, through December 31, 1997, shall be reduced by
$56,250. Beginning on January 1, 1998, and for each year thereafter that
this Lease or any extension
4
hereof shall be effective, the rent that Tenant shall otherwise be required
to pay hereunder shall be reduced by the following amount (the "Rent
Credit"):
$225,000 per annum, which amount shall be increased or decreased
oi-i each CPI Adjustment Date by the same percentage as the Fixed Rent
is adjusted on such CPI Adjustment Date, as provided in Section 4.02.
Thus, by way of example, if the Fixed Rent, as adjusted on a CPI
Adjustment Date, is 2% higher than the Fixed Rent immediately prior to
such CPI Adjustment Date, then the Rent Credit, as in effect
immediately prior to the CPI Adjustment Date, shall be increased by 2%
on that CPI Adjustment Date.
2. Article VI of the Lease is hereby deleted and restated in its entirety
to read as follows:
ARTICLE VI
OBLIGATION TO MAINTAIN AND REPAIR
---------------------------------
6.01. Tenant, at its expense, shall promptly make all necessary
interior, exterior, structural and non-structural repairs to the Demised
Premises and the fixtures, building systems including all appurtenances and
installations therein.
6.02 Tenant shall maintain the Demised Premises in good working order
and repair consistent with the standards prevailing in first class
commercial office projects in Madison, Wisconsin. Without limiting its
obligations, Tenant, among other things shall regularly maintain, service
and repair plumbing, heating, ventilation, air conditioning, sprinkler,
electrical and all other mechanical systems and all equipment, machinery,
fixtures and appurtenances thereto ("Mechanical Systems"); make all
structural repairs when required; maintain and repair the parking lot
(including any necessary repaving), vaults (if any), signs, railings, roof
of the Building, exterior lighting fixtures, exterior electrical work,
pipes and mains (unless owned by the utility company), curbs and utility
connections; maintain and repair all sidewalks, driveways and plaza
abutting the Building and on the Demised Premises; keep the Demised
Premises painted and landscaped in a manner consistent with the standards
prevailing in first class commercial office projects in Madison, Wisconsin;
keep the Demised Premises clean and free of debris, snow and ice; and
repair all broken glass. Landlord shall have no responsibility to repair or
maintain the Demised Premises during the term of this Lease.
6.02. Tenant shall arrange for rubbish removal and shall provide
cleaning services for the Building.
6.03. Tenant warrants to discharge any liens filed against the Demised
Premises arising in connection with any work provided pursuant to this
Article VI promptly after receipt of notice thereof and to pay all monies
due and payable by Tenant in connection therewith.
3. Article Section 7.01(c) of the Lease is hereby modified to read as
follows:
5
7.01. (e) Prior to commencing the alterations, Tenant or its
contractors shall procure and shall thereafter maintain at all times when
any work is in progress, workmen's compensation insurance, general
liability insurance and standard form of fire and extended coverage
insurance (with Builder's Risk endorsement, if appropriate), appropriate in
coverage and amount.
Notwithstanding the foregoing, alterations that (i) are likely to
materially increase the maintenance, repair or cleaning costs or (ii)
change the exterior appearance of the Demised Premises, or (iii) impact
adversely upon the structural integrity of the Building or (iv) detract
from or diminish the vale of the Demised Premises as a commercial office
project, shall be made only with the prior written consent of Landlord.
4. Article IX of the Lease is hereby deleted and restated in its entirety
to read as follows:
ARTICLE IX
PAYMENT OF IMPOSITIONS-, SEPARATE TAX LOT
-----------------------------------------
9.01. Tenant shall be responsible for the payment of all Impositions.
Throughout the term of this lease, Tenant shall pay to Landlord as
Additional Rent, within ten (10) days of receipt of Landlord's statement
clearly setting forth the amount payable by Tenant, or at lease 30 days
prior to the date that payments are due to the taxing authorities or any
superior mortgagee whichever date is later, all Impositions for any Tax
Year occurring entirely during the term of this lease. Tenant shall pay
such Additional Rent notwithstanding the pendency of a contest or
proceeding brought by either Landlord or Tenant.
9.02. All Impositions for the Tax Year in which the Commencement Date
occurs and all Impositions for the Tax Year in which the expiration or
earlier termination of the term of this lease (but not as the result of
Tenant's default) occurs shall be apportioned between Landlord and Tenant
on a basis consistent with the principles underlying the provisions of this
Article IX, taking into consideration the portion of such Tax Year which
shall have elapsed after the Commencement Date and prior to the expiration
or earlier termination of the term of this lease.
9.03. In the event that Tenant shall fall to pay such Impositions,
Landlord may, at its election, pay the same in accordance with the
provisions of Article XIX hereof.
9.04. Landlord shall at all times have the night, but not the
obligations, to contest any such Impositions in any manner permitted by law
an/or to endeavor, through proceedings or otherwise, to obtain a lowering
of the assessed valuations of the Demised Premises for the purpose of
reducing the Impositions, Any such contest or proceeding may include prompt
appeals from any judgments, decrees or orders until a determination is made
by a court having final jurisdiction in the matter. All actions taken by
Landlord to commence, prosecute and settle contests or proceedings shall be
performed at the expense of Tenant, and Tenant shall reimburse Landlord
within fifteen (15) days after
6
Landlord furnishes a statement specifying the costs and expenses (including
reasonable attorneys' fees and expenses) incurred by Landlord.
9.05 Upon obtaining the consent of Landlord, which consent shall not
be unreasonably withheld, Tenant may diligently bring any contest or
proceeding described in Section 9.04 at it own expense and in its own name,
or, whenever required by law or any rule or regulation in order to make
such action or proceeding effective, in Landlord's name.
Landlord agrees, at the request of Tenant, to cooperate with Tenant in
effecting such contest or proceeding, including, without limitation,
executing any and all documents reasonably necessary in connection with
such contest or proceeding, but without expense or liability to Landlord.
Tenant hereby agrees to indemnify and hold Landlord harmless from all
costs, expenses (including reasonable attorneys' fees and disbursements),
claims, loss, liability and damage by reason of, or in connection with, any
such contest or proceeding. Tenant shall keep Landlord advised as to the
status of such contest or proceeding.
9.06. Landlord and Tenant agree that no settlement of any proceeding
by Landlord or Tenant, as the case may be, shall result in an assessed
valuation of the Demised Premises for such tax year greater than the
assessed valuation of the Demised Premises for Such tax year as originally
imposed, unless the other party reasonably consents thereto.
9.07. If, by reason of any contest or proceeding, all or any part of
the amount of any Imposition shall be refunded or returned to Landlord,
then Landlord shall promptly pay to Tenant the entire portion of the refund
to the extent such amount is attributable to an Imposition paid by Tenant,
less the reasonable costs incurred by Landlord in obtaining such refund.
9.08 Notwithstanding anything to the contrary in this Article IX,
neither Landlord nor Tenant shall bring any contest or proceeding which
would violate the terms of the Waiver of Objection to Assessed Valuation,
executed by Landlord on January 15, 1985, a copy of which is annexed hereto
as Exhibit H.
5. Article 10 of the Lease is hereby deleted and restated in its entirety
to read as follows:
ARTICLE X
UTILITIES
---------
10.01. From and after the Commencement Date, Tenant shall pay when due
all charges for water, sewer, gas, electricity, and fuel used on or about
the Demised Premises. Tenant shall promptly make such payments directly to
the utility company or billing authority. In the event the utility xxxx
cannot be directly rendered to and for the account of Tenant, Landlord may
require Tenant to pay to Landlord any such amount billed by Landlord as
Additional Rent within ten (10) days of receipt of Landlord's
7
statement clearly setting forth the amount payable by Tenant. Appropriate
pro rata adjustments shall be made to determine the sums payable by Tenant
pursuant to this Section 10.01 in the event of a Partial Lease Year.
10.02. In no event shall Tenant's use of electric current in the
Demised Premises exceed the capacity of any of the electrical conductors or
other equipment in or otherwise servicing the Demised Premises.
6. Article II of the Lease is hereby deleted and restated in its entirety
to read as follows:
ARTICLE XI
COMPLIANCE WITH LAWS
--------------------
11.01. Subsequent to the Commencement Date, Tenant at its expense,
shall diligently comply with all laws of public authorities applicable to
the Demised Premises.
11.02. Tenant may, at its expense, (and, if necessary, in the name of
but without expense to Landlord) contest, by appropriate proceedings
prosecuted diligently and in good faith, the validity or applicability to
the Demised Premises of any law of public authority, and Landlord shall
cooperate with Tenant ii-i such proceedings, and shall execute any
documents or pleadings reasonably required by Tenant for such purpose,
provided that Landlord shall not be subject to the risk of criminal
prosecution or penalty or the risk of material civil liability, nor shall
the Demised Premises or any Fixed Rent or Additional Rent be in danger of
being forfeited or lost by reason of noncompliance or otherwise by reason
of such contest. Tenant hereby agrees to indemnify and hold Landlord
harmless from all costs, expenses (including reasonable attorneys' fees and
disbursements), claims, loss, liability and damage by reason of or in
connection with any such proceeding unless the proceeding is due to
Landlord's failure to observe or perform its obligations under this lease,
in which latter event Landlord shall be entitled to enter the proceedings
in place of Tenant and shall indemnify and hold Tenant harmless as
aforesaid, Tenant shall keep Landlord advised as to the status of such
proceedings.
[11.03. Notwithstanding any provision of this lease to the contrary,
if, after the Building and Improvements are completed in accordance with
the Plans and Specifications, any future law of public authority applicable
to the Demised Premises requires changes or alterations to be made which
under generally accepted accounting principles would be deemed to be
capital expenditures, then it is agreed that Tenant shall do the work
(subject to Landlord's night to approve the cost thereof and, at its
election, to perform the work at the same or lower estimated cost,
including the reasonable costs of any required architects and/or engineers)
and the cost thereof shall apportioned between Landlord an Tenant on a
straight-line basis over a period of eighteen (18) years; it being agreed,
for the purpose of this lease, that any such expenditure shall be deemed to
have a useful life expectancy of eighteen (18) years. The cost of the
expenditure shall be initially paid in full by Tenant at the time of
performance of the work, but shall ultimately be allocated so that Tenant
shall only be responsible for that portion thereof attributable
8
to the period up to the Expiration Date (as same may be extended in
accordance with the terms of this lease) and Landlord shall be responsible
for that portion attributable to the period after the Expiration Date.
Landlord shall reimburse Tenant on the Expiration Date for that portion of
the cost allocable to Landlord as hereinabove provided, with simple
interest thereon at an annual rate of 10% from the date of Tenant's final
payment for the work.]
7. Section 15.03. of the Lease shall be modified to eliminate any reference
to Sections 31.01., 31.02. and 31.03. by deleting the entire third sentence of
Section 15.03.
8. Article XVII of the Lease is hereby deleted and restated in its entirety
to read as follows:
ARTICLE XVII
INDEMNIFICATION
---------------
17.01. Tenant shall indemnify and save Landlord harmless from and
against all liabilities, obligations, damages, penalties, claims, costs,
charges and expenses, including reasonable architect's and attorneys' fees,
which may be imposed upon or incurred by or asserted against Landlord by
reason of any of the following occurrences during the time of this lease:
(a) any work or thing done in, on or about the Demised Premises,
or any part thereof, by Tenant or any party other than Landlord or its
agents;
(b) any use, non-use, possession, occupation condition,
operation, maintenance or management of the Demised Premises, or any
part thereof,
(c) any negligence on the part of Tenant or any of its agents,
contractors, servants, employees, subtenants, licensees or invitees;
(d) any accident, injury or damage to any person or property
occurring in, on or about the Demised Premises or any part thereof,
except if arising in connection with Landlord's Work or the breach of
Landlord's maintenance and repair obligations under Article VI hereof
(provided that Tenant gave Landlord prompt notice of any potentially
dangerous condition requiring repair of which Tenant was actually
aware); or
(e) any failure on the part of Tenant to perform or comply with
any of the covenants, agreements, terms, provisions, conditions or
limitations contained in this lease on its part to be performed or
complied with.
In case any action or proceeding is brought against Landlord by reason
of any such claim, Tenant, upon written notice from Landlord, shall at
Tenant's expense resist and defend such action or proceeding by counsel
approved by Landlord in writing, which approval shall not be unreasonably
withheld. The obligations of Tenant under this
9
Section 17.01 arising by reason of any such occurrence taking place during
the ten-n of this lease shall survive the expiration or early termination
of this lease.
17.02. Landlord shall indemnify and save Tenant harmless from and
against all liabilities, obligations, damages, penalties, claims, costs,
charges and expenses (including reasonable architects' and attorneys' fees)
which may be imposed upon or incurred by or asserted against Tenant by
reason of any of the following occurrences:
(a) any negligence on the part of Landlord or any of its agents,
contractors, servants, employees, subtenants, licensees or invitees;
(b) any failure on the part of Landlord to perform or comply with
any of the covenants, agreements, terms, provisions, conditions or
limitations contained in this lease on its part to be performed or
complied with.
In case any action or proceeding is brought against Tenant by reason
of any such claim, Landlord, upon written notice from Tenant, shall at
Landlord's expense resist and defend such action or proceeding. The
obligations of Landlord under this Section 27.02 arising by reason of any
such occurrence taking place prior to or during the term of this lease
shall survive the expiration or early termination of this lease.
9. Article XXII of the Lease is hereby deleted and restated in Its entirety
to read as follows:
ARTICLE XXII
OPTIONS TO EXTEND TERM
----------------------
22.01. Provided that Tenant shall not then be in default with respect
to any material covenant of this lease beyond the expiration of the
applicable grace period, if any, Tenant shall have the option to extend the
term of this lease for an additional period of ten (10) years (the
"Extended Term"); provided, however, that (a) Tenant shall notify Landlord
not earlier than twenty-four (24) months and not later than the date which
is eighteen (18) months prior to the then Expiration Date that Tenant
desires such extension and (b) such extension shall be on the same terms,
covenants and conditions as are contained in this lease, except with
respect to (1) the annual Fixed Rent which shall be determined in the
manner provided for in Section 22.02, (ii) such provisions in this lease
which apply only to the initial term, and (111) the option herein granted
to extend the initial term of this lease.
22.02. (a) Fixed Rent payable by Tenant during the Extended Term of
this lease shall be equal to $2,600,00 per annum, subject to the CPI
Adjustments hereinafter described.
10
(b) If the term is extended pursuant to Section 22.01 hereunder, the
first day of the Extended Term shall be the Fifth CPI Adjustment Date. The
initial fixed rent for the extended term shall be equal to
(Fifth Adjustment CPI)
$2,600,000 per annum X --------------------
Beginning CPI
(c) The seventh anniversary of the commencement date of the Extended
Term shall also be a CPI Adjustment Date (the "Sixth CPI Adjustment Date").
If the CPI for the Sixth CPI Adjustment Date has increased over the CPI for
the Fifth CPI Adjustment Date, then the fixed rent for the remainder of the
Extended Term shall equal
Sixth Adjustment CPI
Fixed Rent as of the Fifth CPI Adjustment Date [1+.6 X ( --------------------- - 1)]
Fifth Adjustment CPI
Notwithstanding anything to the contrary, the Fixed Rent during the Extended
Lease shall never be less than $2,600,000 per annum.
10. Section 29.01 of the Lease is hereby deleted and restated in its
entirety to read as follows:
29.01. Landlord and its authorized representatives shall have the
light, upon reasonable advance notice to Tenant, to enter the Demised
Premises or any part or parts thereof, during Business Hours, accompanied
by a duly authorized representative of Tenant. If Tenant makes such
representative available: (i) to examine the Demised Premises to ascertain
if Tenant has performed its obligations under this lease- (11) to show the
Demised Premises to prospective purchasers or mortgagee; (iii) during the
period commencing eighteen (18) months prior to the end of the term of
this lease (if Tenant shall not have exercised the applicable option to
extent the term pursuant to Article XXII), to show the Demised Premises to
prospective tenants; (iv) for the purpose of making such repairs in or to
the Demised Premises as may be provided for by this lease or as may be
mutually agreed upon by the parties; and (v) to conduct such environmental
and engineering tests and studies as Landlord reasonably deems necessary or
appropriate in connection with a prospectus or actual sale or refinancing
of the property. Landlord shall be allowed to take all materials into the
Demised Premises that may be required for such repairs and actions.
Landlord's rights under this Section 29.01. shall be exercised in such
manner as to cause the least practicable interference with Tenant's use and
occupancy of the Demised Premises.
11. Article XXXI shall be deleted in its entirety.
12. Section 32.06 is hereby deleted and restated in its entirety to read as
follows:
32.06. Landlord or its agents shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water, rain or snow or leaks from any
part of the Building or from pipes, appliances or plumbing works or from
the roof, street or subsurface, or from any other place or by
11
dampness or by any other cause of whatsoever nature, unless caused by or
due to the act or neglect of Landlord, its agents, servants or employees or
caused by or due to Landlord's failure to comply with its obligations under
this lease. Tenant shall give prompt notice to Landlord in case of fire or
other casualty or accidents occurring in the Demised Premises.
13. Except as modified herein, all remaining terms and conditions of the
Lease shall remain in full force and effect.
12
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as
of the date first written above.
SPG PARTNERS, a Wisconsin (general
partnership ("Landlord")
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
General Partner
By: /s/ Xxx Xxxx
--------------------------------
Xxx Xxxx
General Partner
RAYOVAC CORPORATION, a Wisconsin
corporation ("Tenant")
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
13
