Exhibit 10.30
XXXXXX
XXXXX
XXXX XXXXX XXXX & XXXXXX XXXXXXX
XXXXXXX, XXXXXXXXX
between
XXXXXX PRODUCTS, LTD.
and
PARK PLAZA by OSHKOSH, INC.
INDEX
1. Section 1: Witnesseth L-1
2. Section 2: Demise; Premises L-2
3. Section 3: Term L-2
4. Section 4: Rental Base Rent L-2
5. Section 5: Condition of Suite at Commencement L-3
of Term
6. Section 6: Use L-3
7. Section 7: Use of Common Areas L-3
8. Section 8: Utility and Building Services L-4
9. Section 9: Electrical Service and Charge L-5
10. Section 10: Repairs L-5
11. Section 11: Assignment; Sublease. L-6
12. Section 12: Compliance with Laws, Bldg. Rules and L-6
Reg
13. Section 13: Signs L-6
14. Section 14: Alterations L-7
15. Section 15: Fire Damage and Condemnation L-7
16. Section 16: Default by Tenant L-8
17. Section 17: Non-Liability of Landlord L-9
18. Section 18: Indemnity; Insurance L-9
19. Section 19: Surrender of Suite L-10
20. Section 20: Landlord's Right of Access L-10
21. Section 21: Covenants of Title and Quiet Enjoyment L-10
22. Section 22: Notices L-11
23. Section 23: Holding Over L-11
24. Section 24: Benefit L-11
25. Section 25: Force Majeure L-11
26. Section 26: Severability L-12
27. Section 27: Xxxxxxxxx Xxxxxxxx X-00
00. Section 28: Governing Law L-12
29. Section 29: Entire Agreement L-12
30. Section 30: Nonwaiver L-12
31. Section 31: Estoppel Certificate L-12
32. Section 32: Limitation on Landlord's Liability L-13
33. Section 33: Miscellaneous L-13
34. Section 34: Addenda L-14
35. Section 35: Confidentiality L-14
36. Section 36: Payment for Leasehold Improvements L-14
37. Section 37: Americans with Disabilities L-14
38. Section 38: Hazardous Wastes L-14
Exhibit A - Site Plan
Exhibit B - Legal Descriptions
Exhibit C - Building Rules and Regulations
PARK XXXXX XXXX & XXXXXX XXXXXXX
XXXXXX XXXXX
Xxxx Xxxxx Xxxx & Office Complex
000 Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
THIS AGREEMENT, made this _ day of August, 1995, by and between Park Plaza
of Oshkosh, Inc., (the "Landlord") and Xxxxxx Products, Ltd. Oshkosh, Wisconsin
(the "Tenant").
WITNESSETH:
SECTION 1:
LANDLORD: PARK PLAZA OF OSHKOSH, INC.
TENANT: XXXXXX PRODUCTS, LTD.
SUITE: The address of the Suite is 500 Park Plaza, which is located in
the Park Plaza Mall & office Complex consisting of approximately
16,000 square feet of Rentable Area, as outlined on the Site
Plan of the Park Plaza Mall and Office Complex, which is
attached hereto as Exhibit A.
TERM: Sixty (60) months (and such fraction of a month, if any, prior
to the first day of the first full calendar month), commencing
on the date that the Suite is available for occupancy and ending
on the last day of the 60th full month of the Lease Term.
Tenant shall have the option to extend the term of this Lease
for an additional sixty (60) month term (the "Extension Period")
by notifying Landlord in writing at least 180 days prior to the
end of the initial 60 month period (the "Initial Term") that it
wants to exercise this option to extend.
The date on which the Suite will be available for occupancy by
Tenant shall be seventy (70) days following the later of the
date of the execution of this Lease or the date that final
architectural drawings, that are in biddable form, are approved
by Tenant. If, however, any delays are due to change orders or
modifications requested by Tenant, then Landlord shall not be
obligated to have the space ready for occupancy within the
seventy (70) day period, but such seventy (70) day period shall
be extended to the extent, and only to the extent of the delay
caused by such modifications requested by Tenant. In any event,
Landlord shall provide fourteen (14) days prior written notice
of the occupancy date.
BASE RENT: $14,400 per month which includes Operating Expenses, Taxes,
Insurance, and charges for heating, and air conditioning
service. If Tenant exercises the option to extend the term of
this Lease then the rent for the entire Extension Period rent
shall be $14,400 per month adjusted for the increase in the
Consumer Price Index during the initial term of this Lease
calculated in accordance with Subsection (4)(S) below.
ELECTRICAL
SERVICE: Tenant shall pay the costs of its own Electrical Service which
shall be separately metered and will be billed to directly to
Tenant.
USE: Tenant shall use the space for offices and for a showroom and such
other uses as are approved by the Landlord.
SITE: The real estate tax parcel on which the Park Plaza Mall and
Office Complex is located, as such tax parcel is currently
constituted or as it may be modified in the future. The legal
description of the Site is attached hereto as Exhibit B.
SECTION 2:
Demise; Premises. Landlord hereby leases unto Tenant, and Tenant
hereby leases from Landlord, the Suite indicated in Section (1) above in the
Park Plaza Office Complex (the "Building") adjacent to and which constitutes a
part of the integrated office, shopping center and other mixed use development
known as Park Plaza Mall and Office Complex (herein called the "Center") located
in Oshkosh, Wisconsin.
SECTION 3:
Term. This lease shall be for the term indicated in Section (1)
above.
SECTION 4:
Rental. (A) Base Rent. During the initial term of this Lease, Tenant
shall pay basic rental ("Base Rent") for the Suite in equal monthly installments
as set forth in Section (1) above (which amount shall include Operating
Expenses, Taxes, Insurance and charges for heating and air conditioning) on or
before the first day of each calendar month during the term. Such Base Rent
shall be payable in advance, without previous demand therefore and without
deduction or set-Off or right to assert any counterclaim in any action for rent.
Base Rent shall be computed based on Rentable Area of the Suite.
"Rentable Area" of the Suite means floor space actually available for
discretionary use of each tenant for the accommodation of its personnel,
furniture and equipment. It is computed for the depth of the Suite by measuring
from the tenant side (the interior face) of the corridor wall to the tenant side
of the exterior glass. The width of the Suite shall be measured from the center
of the party wall partition, except if the Suite or any part thereof is end
space, in which event the measurement shall include the full width of the end
wall(s). No deductions shall be made for columns and projections necessary to
the Building.
(B) Consumer Price Index Adjustment for Extension Period. If Tenant
exercises its option to extend the term of this Lease and landlord is required
to either replace or repair carpet or wall covering or perform other renovation
work required by Tenant, then the Base Rent in effect for the Extension Period
shall be the Base Rent for the initial term of this Lease increased by the
increase in the Consumer Price Index from December 1, 1995 through November 30,
2000 however this adjustment shall not exceed $1.80 per square foot. In the
event this maximum adjustment is made the monthly Base Rent for each month
during the Extension Period shall be $16,800.
"Consumer Price Index" shall mean the United States Department of
Labor, Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers
(United States City Average, All Items), as currently published in the "Monthly
Labor Review" of the Bureau of Labor Statistics of the United States Department
of Labor. In the event the Bureau of Labor Statistics cease publishing the
index number for the United States City Average, the most comparable index
figure for the City of Oshkosh shall be used in lieu thereof. In the event the
Bureau ceases publishing the Consumer Price Index, or materially changes the
method of its computation, components, base year, consumers whose experiences
are included therein, or other features thereof, Landlord and Tenant shall
accept comparable statistics on the purchasing power of the consumer dollar, as
published at the time of such discontinuation or change, by the Bureau, another
governmental agency or unit, or a responsible financial periodical of recognized
authority, to be then chosen by Landlord.
SECTION 5:
Condition of Suite at Commencement of Term. Landlord and Tenant are
concurrently working with an architect to design the floor plan the Suite.
Landlord shall be responsible for having the space renovated in accordance with
the final architectural drawings approved by Tenant. In order to ensure that
the project is completed within this seventy (70) day period, the landlord shall
make all the final decisions regarding the construction of the improvements to
the Suite, provided that the construction complies with the architectural plans
approved by Tenant. The Suite shall be built out to a finish comparable to
similar office space in the Building which was recently renovated for other
tenants (however no chair rails or crown moldings will be included). Landlord
will provide Tenant with an allowance for carpeting of $18.00 per square yard
(installed) and for wall covering equal to $.62 per square foot of floor space
(Tenant may at its own cost have more expensive carpeting and wall covering
installed in the Suite as other office tenants have elected to do. ) Landlord
will provide standard electrical and telephone access. Any special telephone or
computer hook-ups or switches shall be paid for by the Tenant. Any special
lighting for a showroom shall also be paid for by Tenant. Windows will be cut
into the walls on the west and south walls of the Building. Tenant shall not
allow outside contractors to do any work in the Suite without prior written
approval by Landlord or Landlord's architects.
SECTION 6:
Use. The Suite shall be used only for the purposes set forth in
Section (1) above.
SECTION 7:
Use of Common Areas. Tenant shall be entitled to the reasonable
nonexclusive use of the parking areas, sidewalks, roadways, public and common
washrooms, lounges and shelters, any other common areas and facilities within or
upon the Site, and the elevators, stairways, corridors and additional common
areas within the Building, all as they may from time to time exist, but such use
shall be in common with Landlord and all others to whom Landlord has or may
hereafter grant rights to use the same, and such use shall be subject to such
rules and regulations (hereinafter referred to as "Rules and Regulations") as
Landlord may from time to time adopt governing the use, occupancy and operation
of the common areas of the Building, including but not limited to the Building
Rules and Regulations. Rules and Regulations now in force are attached hereto
and commencing at page R-1 hereof. Landlord shall have the right to close any
or all portions of the common areas and facilities to such extent as may, in the
opinion of Landlord's counsel, be necessary to prevent a dedication thereof or
the accrual of any rights to any person or to the public therein and to close
temporarily, if necessary, any part of the common areas in order to discourage
noncustomer parking; and Landlord may do such other acts in and to the parking
areas as in its judgement may be desirable to improve the convenience thereof.
Landlord shall at all times have full control, management and direction of the
common areas, and shall maintain and repair the same. The parking and other
common areas and facilities located from time to time on the Site are available
for use by occupants of other premises in the Center, their customers,
employees, agents, contractors and invitees. Landlord reserves the right to
reduce, increase, enclose or otherwise change from time to time the
configuration, size, number, location, dimensions, identity, types of stores,
type of offices and the nature of the common areas and facilities, the other
tenancies, premises and buildings upon the Site and the Center, and the right to
construct additional building and additional store, and to create additional
leasable building area(s) through enclosure(s) of or construction in common
area, and to place signs on the building(s) located to transfer, lease,
sublease, otherwise convey, dispose of, enlarge, decrease, or change the size
and dimensions of the Site or the Center. Landlord may designate from time to
time the parking areas to be used for the parking of Tenant's delivery and other
vehicles and those driven by Tenant's employees, which areas may be on the Site,
on the Center or on land in the vicinity of the Center. Tenant agrees to park
its delivery and other vehicles (and to exert its best efforts to cause its
employees to park) in such designated areas. Tenant shall not at any time
interfere with the rights of Landlord and other tenants, and their respective
concessionaires, officers, employees, agents, customers and invitees, to use any
part of the parking areas and other common areas.
SECTION 8:
Utility and Building Services. (A) Landlord shall: (i) furnish heating
and air-conditioning service for the Suite in such manner and without additional
charges to Tenant so as to provide a temperature and humidity condition required
in Landlord's judgement for comfortable occupancy of the Suite as a general
office under normal business operations during the seasons and hours specified
in the Building rules; and (ii) furnish without additional charge to Tenant a
reasonable quantity of water for lavatory purposes, elevator service for the
Building to the extent provided for in the Building rules and normal lighting in
the common areas of the Building.
(B) Tenant shall be responsible for contracting with a cleaning
service for the cleaning of the Suite.
(C) Tenant shall be responsible for the costs of Electrical Service
for lighting of the Suite and operation of normal office machines and equipment.
This Electrical Service shall be separately metered and billed directly to
Tenant.
(D) It Tenant requests and if Landlord elects to make available to
tenants in the Building services or supplies, other than those services or
supplies listed in subsections (A), (B), and (C) of this Section (8) above,
(including but not limited to towels, music, special heating or air-conditioning
in excess of that provided pursuant to Subsection 8 (A) above, special security
services, hanging pictures or moving furniture), or arranges a master contract
therefor, Tenant agrees to obtain its requirements, if any, therefor from
Landlord, provided that Landlord's charges to Tenant for such services shall be
the actual Cost to Landlord plus fifteen percent (15%) for administration and
overhead. If after commencement of the term of this Lease, Tenant's
requirements for water or other services or supplies exceed the quantities
provided by Landlord (for example, if the Tenant uses dental facilities or a
water-cooled air-conditioner), Landlord and Tenant shall negotiate an additional
monthly charge for such services or supplies. Payment for the foregoing
services shall be made monthly within ten (10) days following the date of
Landlord's xxxx therefor to Tenant. Landlord may, for any reason whatsoever and
at any time, discontinue supplying these additional services, such as water,
special heating or air-conditioning or supplies upon reasonable notification to
the Tenant without any liability or responsibility therefor. No such
interruption or discontinuance shall relieve Tenant from performance of any of
its obligations hereunder.
(E) Landlord shall not be liable to Tenant, in damages or otherwise,
should the furnishing of water, electricity, heat or air-conditioning or any
other service undertaken or elected to be supplied by Landlord be interrupted
because of necessary repairs or improvements or for any cause beyond Landlord's
control. Landlord shall use reasonable efforts to minimize disruption caused by
such necessary repairs or improvements and, except in an emergency, shall if
feasible provide Tenant advance notice of such interruptions in service.
(F) Landlord shall not be liable under any circumstances for loss or
injury to property or person, however occurring, through or in connection with
or incidental to the furnishing of or the failure to furnish any of the
foregoing, including documents, files or other property damaged, destroyed, or
lost through acts or omissions of the personnel performing janitorial, cleaning
or other services unless such loss or injury results from the failure of
Landlord to respond within a reasonable amount of time after receiving written
notice from Tenant about a condition requiring corrective action.
SECTION 9:
Electrical Service and Charge. Tenant shall pay the costs of its own
Electrical service which shall be separately metered and will be billed directly
to Tenant.
SECTION 10:
Repairs. Landlord shall, at Landlord's cost and expense, make all
structural and exterior repairs to the Suite and Building and all repairs to the
water, electrical, heating, air-conditioning and plumbing equipment and
facilities located in the Suite or Building and owned by Landlord, unless such
repairs are required by reason of willful conduct or the negligent acts or
omissions of Tenant, its employees, contractors, customers or invitees, or the
particular nature of Tenant's use of the Suite, in which case the cost of such
repairs shall be made at Tenant's cost and expense by Landlord's contractor.
Tenant shall give Landlord written notice of the need for any such repairs to be
made by Landlord, and Landlord shall be under no liability for damage or injury,
however caused, in the event of its failure to make such repairs unless it shall
have received such notice from Tenant and failed to make such repairs within a
reasonable time after receipt of such notice. Except as above provided in this
Section (10), Tenant shall at its cost and expense keep the Suite in good
condition and repair. Unclogging of the plumbing system of the Suite shall be
at Tenant'S sole cost and expense, and shall be done only by Landlord's
contractor. Tenant shall, at its expense, perform all decorating of the Suite.
The plans and specifications for any repair work, alterations or additions to be
performed by Tenant shall be subject to Landlord's prior written approval and
Tenant shall indemnify Landlord against all construction liens against the Suite
or Site for materials or labor purchased, employed or hired in connections with
the construction, repair, or alteration of the Suite, and shall cause any such
liens which are filed to be immediately removed and discharged of record.
Tenant shall perform all of the foregoing work only with contractors,
materialmen and laborers approved in advance by Landlord. Approval by Landlord
of plans and specifications shall not constitute an assumption of responsibility
for their accuracy or sufficiency, the same being the sole responsibility of the
Tenant.
SECTION 11:
Assignment; Sublease; Change in Control. Tenant shall not assign,
sell, pledge, mortgage or otherwise encumber or transfer this Lease or any
interest therein or sublease any part or all of the Suite without Landlord's
prior written consent and shall not permit any transfer of its interest in the
Suite or this Lease by operation of law. Said consent shall not be unreasonably
withheld or delayed. In no event shall any assignment or sublease be for other
than the use expressly permitted hereunder. In the event that any party
acquires or has agreed to acquire substantially all of Tenant's assets, either
through an outright purchase or as a result of a merger, consolidation,
liquidation, or other similar transaction, then Tenant must immediately notify
Landlord of any such transaction. Tenant shall cause the entity that has
acquired substantially all of its assets to guarantee Tenant's or any successor
corporation's performance under the terms and conditions of this Lease, unless
Landlord chooses to waive said guarantee. Prior to agreeing to any such
transfer, Tenant shall provide Landlord with financial statements of the
acquiring entity so that Landlord can determine the financial condition of the
acquiring entity. Notwithstanding Landlord's consent to any of the foregoing,
Tenant shall remain liable to Landlord for the payment of rental then due, and
thereafter to become due, and the performance of all other obligations of Tenant
hereunder for the balance of the term hereof.
This Lease may be assignable to any corporation affiliated with Tenant upon
notice to Landlord.
SECTION 12:
Compliance with Laws, Building Rules and Regulations. Tenant shall
not use or permit to exist upon the Suite anything that will increase the cost
to Landlord of any insurance now or hereafter carried on the Building by
Landlord, or that will invalidate any such insurance, or that will tend in any
way to create a nuisance or to injure the reputation of the Building, the Site
or the Center in the judgement of Landlord. Tenant shall comply with all
statutes, orders, rules, ordinances, regulations and requirements of law, and
all directions of public officers affecting the Suite and all rules, orders,
recommendations, regulations and requirements of the local rating bureau, and
Rules and Regulations established by Landlord. Not by way of limitation because
of the specification, Tenant shall also comply fully with the Medical Waste
Tracking Act of 1988 and any and all regulations promulgated pursuant thereto,
which includes requirements for separation of specified medical wastes, use of
special containers appropriately labeled to contain such medical waste and
accurate record-keeping and tracking of the medical waste. A list of the
Building Rules and Regulations is attached hereto as Exhibit C.
SECTION 13:
Signs. Tenant shall not, without Landlord's prior written consent,
install, affix or use: (a) any signs, lettering or advertising media of any
other kind, blinds, shades, curtains, draperies or similar items on the exterior
of the Suite or Building or in the interior of the Suite in such a manner as
shall be visible from outside the Suite, or (b) any awnings, radio or television
antennae or other objects or equipment of any nature whatsoever, on the exterior
of the Suite.
Tenant shall be permitted to erect a sign on the outside wall on the
west side of the Building and on the stair tower to the west of the Suite. Any
sign erected by Tenant shall conform to the existing exterior signs presently
affixed to the Center and shall be subject to approval by Landlord. Such
permission will not be unreasonably withheld.
No name, symbol, xxxx, design or insignia adopted by Landlord for use
in connection with the Building, the Site or the Center shall be used by Tenant
in the conduct of business in the Suite or elsewhere without the prior written
consent of Landlord. All rights to and use of the exterior walls of the Suite
and the roof of the Building are reserved to Landlord.
SECTION 14.1
Alterations. Tenant shall not make any alterations or other changes
of any kind to the Suite without Landlord's prior written consent. In the event
Landlord's prior written approval is obtained, Tenant agrees to pay promptly
when due the entire cost of any work in the Suite undertaken by Tenant so that
the Building and the Site shall at all times be free of liens for labor and
materials; to procure all necessary permits before undertaking such work; to do
all of such work in a good and workmanlike manner employing materials of good
quality; to perform such work only with contractors previously approved in
writing by Landlord; to comply with all governmental requirements; and to save
Landlord harmless and indemnified from all injury, loss, claims or damage to any
person or property occasioned by or growing out of such work.
SECTION 15:
Fire Damage and Condemnation. (A) If all or any part of the Suite or
the Building shall be destroyed or damaged by fire or other casualty, Landlord
shall have the right to terminate this Lease at any time during the ninety (90)
days following the occurrence of such destruction or damage by written notice to
Tenant. If Landlord does not so terminate this Lease, it shall thereafter
diligently proceed to repair or restore the Suite or Building to the condition
existing immediately prior to such destruction or damage. If the Suite or any
part thereof shall be rendered untenantable by any such destruction or damage, a
just proportion of the rental, based upon the number of square feet of area in
the Suite which are untenantable, shall be abated until the Suite or such part
thereof shall have been put in tenantable condition by Landlord. Landlord's
obligations shall be limited to the repair or restoration of such basic building
structure and facilities as Landlord furnished upon the commencement of the term
hereof. Each party hereby expressly waives any right of recovery it may have
against the other party for loss to the Suite or Building or contents of either
due to fire or any peril covered by the standard extended coverage endorsement
of the standard fire insurance policy, however caused, including such losses as
may be due to negligence of such other party, its agents, employees,
contractors, invitees, successors or assigns. All such policies of insurance
carried by Landlord or Tenant shall contain a provision that they are not
invalidated by the foregoing waiver, and such waiver shall cease to be effective
if the existence thereof precludes either party from obtaining any such policy.
If either party incurs any additional premiums due to the existence of such
waiver, it shall, upon it's request, be reimbursed therefor by the other party.
In the event that the suite or Building cannot be repaired within 180 days or if
Landlord cannot provide a suitable alternative location within the Center that
is acceptable to Tenant within ninety (90) days of the damage to the Suite, then
Tenant shall have the option to terminate the Lease without penalty.
(B) If more than 25 percent of the Suite shall be taken by any public
or quasi-public authority under its power of condemnation, this Lease shall
terminate as of the date possession shall be taken by the acquiring authority,
and the rental payable hereunder shall be apportioned accordingly. If any part
of the Suite or the Building shall be taken, then Landlord (whether or not the
suite be affected) shall have the right to terminate this Lease, effective as of
the date possession shall be taken by the acquiring authority, by giving written
notice to Tenant at any time within ninety (90) days after such taking, and the
rental payable hereunder shall be apportioned accordingly. Upon any such taking
and the continuing in force of the Lease as to a part of the Suite, the rental
payable thereafter shall be reduced in proportion to the amount of total floor
area of the Suite taken until the Suite is rebuilt or restored. In the event of
any such taking, Landlord, at its expense and promptly after the receipt of the
condemnation award or compensation from the acquiring authority, shall, unless
this Lease has been terminated, diligently rebuild or restore the remainder of
the Suite or Building to a complete architectural unit. Landlord's obligations
shall be limited to the rebuilding or restoration of such basic building
structure and facilities as Landlord furnished upon the commencement of the term
hereof. In any event, all damages awarded by the acquiring authority for any
such taking, whether for the whole or a part of the Suite or Building, shall
belong to and be the property of Landlord whether such damages shall be awarded
as compensation for loss of, or diminution in value to, the leasehold or the fee
of the Suite or Building. In the event that this Lease is terminated as herein
provided, Tenant shall not have any claim against Landlord for the value of the
unexpired term hereof.
SECTION 16:
Default by Tenant. (a) In the event of (a) a default in any of the
covenants or agreements herein contained to be kept by Tenant and such default
shall continue for five (5) days, in case of a default in the payment of rental
or other monetary sum, or for twenty (20) days, in case of any other defaults,
after written notice of such default is given to Tenant by Landlord or
Landlord's agents, or (b) the filing of any petition in bankruptcy or insolvency
or arrangement by or against Tenant or Tenant's adjudication as a bankrupt or
insolvent, or, (c) the appointment of a receiver for Tenant, or (d) the making
by Tenant of any general assignment for the benefit of creditors, or (e) the
Suite being vacated, then in any of the foregoing events Landlord may, if it so
elects, without notice terminate this Lease and declare the term ended, re-enter
the Suite, and with or without process of law expel and remove the Tenant
therefrom and again repossess and enjoy the Suite, all without prejudice to any
remedies which might otherwise be available to Landlord. Such expulsion or
removal shall not affect the liability of Tenant for rental or other charges or
obligations past due or thereafter accruing under this Lease. All Landlord's
remedies shall be cumulative and not exclusive of other available remedies.
Tenant hereby covenants and agrees that in the event of Tenant's failure to pay
rental and other charges when due, and further failure to cure such payment
default or defaults within the grace periods hereinabove provided, that Landlord
shall be entitled to charge, and Tenant shall become fully obligated to pay,
from and after the due date thereof, interest on all such unpaid sums at the
rate of eighteen percent (18%) per annum. Tenant acknowledges and agrees that
Landlord shall be entitled to charge and collect interest on past due rentals
and other charges notwithstanding the fact that Tenant may amortize all or some
portion of leasehold improvements in the Suite as part of the Base Rent paid by
Tenant hereunder.
(B) Additional Right in the Event of Default by Tenant. Since
Landlord is making or has made leasehold improvements to the Suite for use by
Tenant, with the reasonable expectation that such expenditures will not be
required again during the term of this Lease, and since vacating the Suite or
termination of this Lease or Tenant's right to occupy the Suite under this Lease
prior to the original expiration date of the Lease term will frustrate such
expectation in a manner as to make it almost impossible to measure the damages
to Landlord, and any reletting will cause additional costs to be incurred by
Landlord, therefore, Tenant agrees that in the event it vacates the Suite or
this Lease or Tenant's right to occupy the Suite under this Lease is terminated
due to a default by Tenant prior to the original expiration date of the term of
this Lease, then, in addition to and not in reduction of the rental or other
charges and obligations past due or thereafter accruing under this Lease, Tenant
shall pay to Landlord, Landlord's then unamortized costs of renovating the Suite
for Tenant's use. For this purpose, the assumed costs that are associated with
the improvements made to the Suite are $300,000 plus the actual costs of
improvements made to the Suite during the Lease Term. Amortization is to be
computed on a straight-line basis, without salvage value, over a 120 month
period. In addition to reimbursing Landlord for the unamortized costs of
improving the Suite, Tenant shall also pay an amount equal to three (3) months
rent for the Suite under this Lease at the then current rate.
SECTION 17:
Non-Liablilty of Landlord. Landlord shall not be responsible or
liable to Tenant for any loss or damage to Tenant or its property that may be
occasioned by or through the acts or omissions of any other occupant of premises
in the Building or any person transacting business or otherwise being present in
the Building or for any loss or damage resulting to Tenant or Tenant's property
from burst, stopped or leaking water, gas or sewer pipes or fixtures, or from
any failure or defect in any electric line, circuit or facility.
SECTION 18:
Indemnity; Insurance and Mutual Waivers of Subrogation. (A) Indemnity.
Tenant agrees to protect and hold Landlord, Landlord's employees, agents,
contractors, successors, assigns or invitees harmless and indemnified from and
against any and all claims, demands, actions and expenses, arising out of or on
account of any damage or injuries, including wrongful death, sustained or
claimed to have been sustained to any person or property in or upon the Suite by
any person whatsoever and noncompliance with any law or regulation including,
but not limited to, the Medical Waste Tracking Act of 1988 and its implementing
regulations, except for injuries directly caused by Landlord. Tenant agrees to
defend any action or proceeding brought against Landlord by reason of any of the
aforementioned causes. Notwithstanding any provision of this Lease or the Rules
and Regulations governing the Building, Landlord shall only be responsible for
damages or injuries to Tenant, Tenant's employees, agents, contractors,
successors, assigns or invitees caused substantially by the active negligence of
Landlord, Landlord's employees or agents and provided further that in no event
shall Landlord be responsible:
(i) in those cases where such damages are covered by Tenant's contents
insurance, which contents insurance shall include endorsements for vandalism,
malicious mischief, theft and mysterious disappearance (or would be covered by
contents insurance if Tenant had carried the same); or
(ii) for cash, securities, paintings, sculptures, and other objects of art,
photographs, records, files, work in process and work product, and other unique
or one-of-a-kind items which have high individual values, for all of which it
shall be the Tenant's responsibility to provide adequate security and
safekeeping.
(B) Insurance. Tenant shall, at its expense, obtain and carry at all
times during the term of this Lease, (i) public liability insurance covering the
Suite with limits of $1,000,000 for one person and $2,000,000 for any number of
persons injured or killed in one occurrence, and $500,000 property damage (or
such higher amounts as Landlord shall from time to time determine), and (ii)
fire insurance, with extended coverage, vandalism, malicious mischief, and theft
and mysterious disappearance endorsements and without co-insurance, covering the
contents of the Suite and all alterations, additions and leasehold improvements
made by or for Tenant, in the amount of their full replacement value, and (iii)
water damage and sprinkler insurance. All of such policies shall cover both
Landlord and Tenant, as their respective interests may appear, and all insurers
thereon shall agree not to cancel or change the same without at least ten (10)
days' prior written notice to Landlord. A certificate of Tenant's insurance
evidencing such insurance shall be furnished to Landlord upon occupancy and from
time to time.
(C) Mutual Waivers of Subrogation. whenever (i) any loss, cost,
damage or expense resulting from any peril described in this Section (18) is
incurred by any party to this Lease in connection with the Suite or any part of
the contents thereof, and (ii) such party is then covered under this Lease in
whole or in part by insurance with respect to such loss, cost, damage or
expense, then the party so insured hereby releases the other party from any
liability it may have on account of such loss, cost, damage or expense to the
extent of any amount recovered by reason of such insurance and waives any right
of subrogation which might otherwise exist in or accrue to any person on account
thereof, provided that such release of liability and waiver of the right of
subrogation shall not be operative in any case where the effect thereof is to
invalidate such insurance coverage or increase the cost thereof; provided,
however, in the case of an increase in the cost of the insurance coverage, the
insured shall give to the other party notice of such increase and of the amount
thereof and the other party may reinstate such waiver by paying to the insured
the amount of the increase in the cost of such insurance. The failure to give
notice of the increase in the cost shall mean the waiver is in effect
notwithstanding such increase. If Tenant fails to maintain in force any
insurance required by this Lease to be carried by it, then for the purposes of
this waiver of subrogation it shall be deemed to have been fully insured and to
have recovered the entire amount if its loss.
SECTION 19:
Surrender of Suite. Tenant agrees that it shall, upon the termination
of this Lease, by expiration or otherwise, surrender to Landlord the Suite,
including all alterations, improvements, decorations and repairs made thereto,
in as good condition and repair as when delivered by Landlord, ordinary wear and
tear and damage by fire or other insured casualty only excepted. All trade
fixtures, equipment (including special equipment of all types), and other
personal property owned by Tenant and not attached to the walls and/or floor of
the Suite as well as any improvements, fixtures, additions or alterations made
by Tenant may (and upon Landlord's request shall) be removed from the Suite by
Tenant, provided that all the terms and conditions of this Lease have been
complied with, and provided further that Tenant shall fully repair any and all
damage caused by such removal.
SECTION 20:
Landlord's Right of Access. Landlord and Landlord's agents,
contractors or employees may enter the Suite at any reasonable time to inspect
the condition thereof, to make any repairs or alterations which Landlord may, in
its discretion, deem necessary or proper for the safety, preservation or
improvement of the Building or the Suite, and to exhibit the Suite to
prospective tenants. Nothing herein contained shall be deemed to impose on
Landlord any obligation or duty to make repairs or alterations to the Suite
except as expressly provided in Section (10) above.
SECTION 21;
Covenants of Title and Quiet Enjoyment. It is understood and agreed
that Landlord is the owner of the fee interest of the Site. Landlord warrants
that Landlord has good right and title to enter into this Lease. Landlord
reserves the right at any time to enter into one or more concurrent of
successive mortgages covering its interest in the land and improvements thereon
including the Building (the term "mortgage", as used herein, includes all
extensions, renewals, amendments and supplements to any such mortgage). This
Lease shall be subject and subordinate to any such mortgage. Tenant hereby
agrees to promptly execute and deliver any further instrument which may be
deemed requisite by Landlord or any mortgagee to confirm the foregoing
subordination of this Lease to any such mortgage.
Notwithstanding anything hereinabove contained in this Section (22),
in the event the holder of any mortgage shall at any time elect to have this
Lease constitute a prior and superior lien to the mortgage, then and in such
event, upon such holder notifying Tenant to that effect in writing, this Lease
shall be deemed a prior and superior lien to the mortgage, whether this Lease is
dated prior to or subsequent to the date of the mortgage. Landlord covenants
that so long as Tenant shall duly and punctually perform and observe all of
Tenant's obligations under this Lease, Tenant shall peaceably and quietly have,
hold and enjoy the Premises free from let or hindrance by Landlord or any party
claiming by, through or under Landlord; provided, however, that Landlord's
foregoing covenant shall, nevertheless, be subject and subordinate to any zoning
or municipal laws or ordinances, regulations and building restrictions,
easements for public utilities and any mortgage or mortgages which may now or
hereafter affect the land of which the Premises are a part.
SECTION 22:
Notices. Notices and demands required or permitted to be given
hereunder shall be given by registered or certified mail, in the case of the
Landlord, addressed to it at 000 Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000; and in
the case of Tenant, addressed to it at the Suite. Notices and demands shall be
given by Landlord or Landlord's agents and by Tenant or Tenant's agents and
shall be deemed to have been given when so mailed. Either party may change the
address to which notices and demands to it are to be given by notifying the
other party hereto in writing of a new address to be used for such purpose.
SECTION 23:
Holding Over. If Tenant, with the consent of Landlord, remains in
possession of the Suite after the termination of this Lease and without the
execution of a new lease, Tenant shall be deemed to be occupying the Suite as a
tenant from month-to-month, subject to all applicable terms, conditions and
covenants of this Lease. If Tenant, without Landlord's prior written consent
and without the execution of a new lease, remains in possession of the Suite
after expiration of the term, Tenant shall pay (i) twice the monthly Rent and
all sums due under the Lease (without any reduction for a hold over of a partial
month), and (ii) any and all losses or liabilities arising out of Tenant's
failure to surrender the Suite on the expiration of the term.
SECTION 24:
Benefit. The covenants, conditions and agreements contained in this
Lease shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, administrators, executors, successors and assigns, but
in the case of Tenant's successors and assigns, only to the extent that
assignment is permitted hereunder.
SECTION 25:
Force Majeure. In the event that Landlord shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strike, lockouts, labor troubles, inability to procure materials,
failure of power, restrictive governmental law, regulations, orders, or decrees,
riots, insurrection, war, acts of God, inclement weather, or other reason of
like or unlike nature or cause beyond Landlord's control, then performance of
such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay.
SECTION 26:
Severability. Should one or more of the provisions hereof or any
given application of any particular provision hereof be found invalid or
unenforceable by a court of appropriate jurisdiction, the parties hereto
recognize and agree that the remainder of this Lease shall remain in full force
and effect and enforceable in accordance with its terms.
SECTION 27:
Paragraph Headings. The paragraph headings of this Lease are inserted
for reference and as a matter of convenience only and shall not be considered in
any way to define, limit or describe the size or intent of this Lease nor affect
it's terms and provisions.
SECTION 28:
Governing Law. This Lease shall be construed according to, and
governed by, the internal laws of the State of Wisconsin.
SECTION 29:
Entire Agreement. Tenant confirms that Landlord and its agents have
made no representations or promises with respect to the Suite or the making or
entry into of this Lease except as in this Lease expressly set forth, and agrees
that no claim or liability shall be asserted by Tenant against Landlord for, and
Landlord shall not be liable by reason of, breach of any representations or
promises not expressly stated in the Lease. This Lease can be modified or
altered only by agreement in writing between landlord and Tenant, and no act or
omission of any employee or agent of Landlord shall alter, change or modify any
of the provisions hereof.
SECTION 30:
Nonwaiver. No waiver of any provision of this Lease shall be implied
by any failure of Landlord or Tenant to enforce any remedy on account of the
violation of such provision, even if such violation be continued or repeated
subsequently, and no express waiver shall affect any provision other than the
one specified in such waiver and that one only for the time and in the manner
specifically stated. No receipt of monies by Landlord from Tenant after the
termination of this Lease shall in any way alter the length of the Term of
Tenant's right of possession hereunder or after the giving of any notice shall
reinstate, continue or extend the Term hereof or create a new tenancy or affect
any notice given Tenant prior to the receipt of such monies, it being agreed
that after the service of notice or the commencement of a suit for possession of
the Suite or after final judgement for possession of the Suite, Landlord may
receive and collect any Base Rent or Additional Rent due, and the payment of
said Base Rent or Additional Rent shall not waive, affect or nullify said
notice, suit or judgement.
SECTION 31:
Estoppel Certificate. Tenant agrees that from time to time upon not
less than fifteen (15) days prior request of Landlord or Landlord's mortgagee,
Tenant or Tenant's duly authorized representative having knowledge of the facts
will execute and deliver to Landlord an estoppel certificate in the form
reasonably so requested, together with a written statement certifying as to such
other matters regarding this Lease as Landlord or Landlord's mortgagee may
reasonably request (or duly noting exceptions to the matters covered in the
estoppel certificate, if appropriate), it being intended that any such
statements and certificates may be relied upon by any mortgagees or prospective
mortgagees of the Land or Building or the Site, or any prospective or subsequent
purchaser or transferee of all or a part of Landlord's interest in the Land or
the Building or the Suite or this Lease or any prospective transferee of all or
any part of the interests in Landlord or in any partner in Landlord.
SECTION 32:
Limitation on Landlord's Liability. It is expressly understood and
agreed by Tenant that none of Landlord's covenants, undertakings or agreements
are made or intended as personal covenants, undertakings or agreements by
Landlord and any liability of Landlord for damages or breach or nonperformance
by Landlord or otherwise arising under or in connection with this Lease or the
relationship of Landlord and Tenant hereunder, shall be collectible only out of
Landlord's interest in the Land, Building, and Center, in each case as the same
may then be encumbered, and no personal liability is assumed by, nor at any time
may be asserted against, Landlord or any of its officers, agents, employees,
legal representatives, successors or assigns, all such liability, if any, being
expressly waived and released by Tenant. The provisions of this Section (34)
are not intended to relieve Landlord from the performance of any of Landlord's
obligations under this Lease, but only to limit the personal liability of
Landlord in case of recovery of a judgement against Landlord; nor shall the
foregoing be deemed to limit Tenant's right to obtain injunctive relief or
specific performance.
In no event shall Landlord's liability for any breach of this Lease
exceed the amount of Base Rent then remaining unpaid for the then current Term
(exclusive of any extension periods which have not then actually commenced),
except for any liabilities that are covered by Landlord's liability insurance.
This provision is not intended to be a measure or agreed amount of Landlord's
liability with respect to any particular breach and shall not be utilized by any
court or otherwise for the purpose of determining any liability of Landlord
hereunder, except only as a maximum amount not to be exceeded in any event.
Landlord shall not be considered to be in default hereunder, unless
Landlord (i) shall fail to perform a covenant, term or condition of this Lease
to be performed by Landlord, (ii) shall receive written notice of the same from
Tenant specifying a such nonperformance, and (iii) shall fail to cure the same
within thirty (30) days after written notice of the same or such longer time as
is necessary to cure the same.
SECTION 33:
Miscellaneous.
(A) No rights to any view or to light or air, over any property,
whether belonging to Landlord or any other person, are granted to Tenant by this
Lease.
(B) All of the covenants of Tenant hereunder shall be deemed and
construed to be "conditions", if Landlord so elects, as well as "covenants", as
though the words specifically expressing or imparting covenants and conditions
were used in each separate instance.
SECTION 34:
Addenda. Exhibits A & B are attached to this Lease and hereby made a part
hereof as though set forth in full at this point.
SECTION 35:
Confidentiality. Tenant agrees to treat all the terms and conditions
of this Lease as confidential.
SECTION 36:
Payment for Leasehold Improvements and Other Build Out Costs. In the
event that Tenant does not elect to exercise the option to extend the term of
this Lease as set forth in Section 1 then Tenant shall pay to Landlord, as
reimbursement for the improvements made to the Suite, the sum of $150,000 plus
the actual cost of any additional improvements to the Suite that were made
during the initial term of the Lease. Such payment shall be a lump sum payable
with the rent for the last month of the initial term of the Lease.
SECTION 37:
Americans with Disabilities. Landlord hereby warrants and represents
that the Suite and those areas contiguous to the Suite comply fully with all
federal, state, and local laws, including without limitation, the Americans with
Disabilities Act ("ADA").
Landlord at its sole cost and expense shall remove all barriers to
access and provide auxiliary aids as required with respect to the Suite and
those areas contiguous to the Suite, as now or hereafter required by the ADA.
SECTION 38:
Hazardous Wastes. (A) Landlord represents and warrants that, to the
best of Landlord's knowledge, neither the Building nor the Center is
contaminated with any "Hazardous Materials" (as that terms are hereinafter
defined) and, to the best of Landlord's knowledge, there has never occurred the
release of any Hazardous materials within, in, on, or affecting the Center or
the Building. Use of the Suite will not subject the Tenant to any liability for
clean-up, removal, or relocation of any Hazardous Materials to the extent that
such clean-up, removal, or relocation is not attributable to the act or omission
of Tenant.
(B) As used herein, the term "Hazardous Materials" means any
hazardous or toxic substance, material, or waste which is or becomes regulated
by any local governmental authority, the State of Wisconsin, or the United
States Government. The term "Hazardous Material" includes, without limitation,
any material or substance that is (i) defined or designated as a "hazardous
substance" under the laws of the State of Wisconsin, (ii) petroleum, (iii)
asbestos, (iv) designated as a "hazardous substance" pursuant to Section 311 of
the Federal Water Pollution Control Act (33 U.S.C. Subsection 1321), (v) defined
as a "hazardous waste" pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. Subsection 6901 et. seq. (42 U.S.C.
Subsection 6903), (vi) defined as a "hazardous substance" pursuant to Section
101 of the Comprehensive Environmental Response Compensation and Liability Act,
42 U.S.C. Subsection 9601 et. sect. (42 U.S.C. Subsection 9601), or (vii)
defined as a "regulated substance" pursuant to Subchapter IX, Solid Waste
Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. Subsection
6991 et. seq.
(C) Landlord represents and warrants that, to the best of Landlord's
knowledge, as of the date hereof and when constructed by Landlord, the Building
and the Center complies and shall comply with all federal, state, and local
governmental, municipal laws, ordinances, and public requirements with respect
to the matters referred to in paragraphs (a) and (b) above. Landlord covenants
to comply with all federal, state, and local governmental, municipal laws,
ordinances and public requirements with respect to matters referred to in
paragraphs (a) and (b) above; provided, however, that to the extent that an act
or omission of Tenant and/or Tenant's agents, contractors or employees causes or
is responsible for violation of any federal, state, and local governmental,
municipal laws, ordinances, and/or public requirements with respect to the
matters referred to in paragraphs (a) and (b) above, then Tenant shall bear such
costs and expenses.
(D) Landlord covenants that neither the Suite nor any walls,
ceilings, beams or ducts enclosing or connected to or serving the Suite shall
contain or be exposed to asbestos as a result of acts of Landlord and those whom
it engages.
(E) Notwithstanding anything to the contrary in this Lease, Landlord
hereby indemnities and holds Tenant harmless from all costs and expenses paid or
incurred by Tenant as a result of or in connection with the breach of any
representation, covenant, or agreement of Landlord pursuant to this Section.
However, Landlord will not reimburse Tenant for any expenses incurred by Tenant
unless prior to incurring any such expenses Tenant has notified Landlord of the
reason for and the amount of the expenditure and Landlord has agreed to
reimburse Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease,
in triplicate, under seal, on the day, month and year first above written.
PARK PLAZA OF OSHKOSH, INC.
By:
President
Witness:
XXXXXX PRODUCTS LTD. ("Tenant")
By: Xxxxxx X. Xxxxx
Printed name: Xxxxxx X. Xxxxx
Attest: Xxxxx X. Xxxxxxxxxx 10/13/95
Printed Name: Xxxxx X. Xxxxxxxxxx
EXHIBIT A
[Lease Plan Xxxx Xxxxx Xxxx
X.X. Xxx 000
Xxxxxxx XX 00000-0000
Layout and map of mall]
EXHIBIT B
Commencing at the Intersection of the Southwesterly line of Pearl Avenue and the
Westerly line of Commerce Street; thence South 0 deg. 26' 46" West along the
Westerly line of Commerce Street 385.40 feet to the centerline of a vacated
portion of Xxxxxx Road; thence North 65 deg. 33' 25" West along the centerline
of vacated Xxxxxx Road 10.95 feet to a point; thence South 0 deg. 26' 46" West
123.44 feet; thence South 6 deg. 56' 46" West 129.27 feet: thence North 68 deg.
42' 00" West along the U.S. Harbor Line 1096.45 feet to the East line of Xxxxxxx
Street; thence North 0 deg. 22' 34" West along the East line of Xxxxxxx street
325.58 feet; thence North 37 deg. 32' 06" East 356.58 feet to a point; thence
Easterly 189.77 feet along a line which is 50 feet to a point; thence Easterly
189.77 feet along a line which is 50 feet Southerly from and at right angles to
the centerline of the Soo Line Railroad track; thence North 37 deg. 32' 06" East
22.55 feet; thence Easterly 70.03 feet along a line which is 35 feet Southerly
from and at right angles to the centerline of the Soo Line Railroad track;
thence South 53 deg. 30' 44" East along the Southwesterly line of Pearl Avenue
702.65 feet, to the point of commencement.
EXHIBIT C
BUILDING RULES AND REGULATIONSTENANT agrees as follows:
(1) All loading and unloading of goods shall be done only at such times, in the
areas and through the entrances, designed for such purposes by Landlord.
(2) The delivery or shipping of merchandise, supplies and fixtures to and from
the Leased Premises shall be subject to such rules and regulations as in the
judgment of Landlord are necessary for the proper operation of the Leased
Premises or the Center.
(3) All garbage and refuse shall be kept in the kind of container specified by
Landlord. Tenant will be required to place any containers in the area
designated by Landlord for pick up. If Landlord shall provide or designate a
service for picking up refuse and garbage, Tenant shall use same at Tenant's
cost. Tenant shall pay the cost of removal of any of Tenant's refuse or rubbish
based on Tenant's Proportionate Share (as defined in Subsection 4(B)(1)(b)).
(4) Except for normal office radios, no radio or television or other similar
device shall be installed without first obtaining in each instance Landlord's
consent in writing. No aerial shall be erected on the roof or exterior walls of
the premises, or on the grounds, without in each instance, the written consent
of Landlord. Any aerial so installed without such written consent shall be
subject to removal without notice at any time.
(5) Except for normal daily outside accumulations the outside areas immediately
adjoining the premises shall be kept clean and free from dirt and rubbish by
Tenant to the satisfaction of Landlord and Tenant shall not place or permit any
obstructions in such areas.
(6) Tenant and Tenant's employees shall park their cars only on the second or
third levels of the Center's parking ramp and in the area designated for that
purpose by Landlord.
(7) The plumbing facilities shall not be used for any other purpose than that
for which they are constructed and no foreign substance of any kind shall be
thrown therein, and the expense of any breakage, stoppage or damage resulting
from a violation of this provision shall be borne by Tenant who shall, or who
employees, agent or invitees shall have caused it.
(8) Tenant shall not burn any trash or garbage of any kind in or about the
Leased Premises or the Center.
(9) Tenant will not utilize any floor areas outside of Tenant's space without
Landlord's prior written approval.
(10) Tenant shall observe all security regulations established from time to
time by the Landlord and will cooperate by using any security system in place
during the term of this lease.
(11) Tenant will cooperate and follow any regulations established by
Municipal, County, State or Federal authorities.
(12) Any individuals or companies doing business with or for the Tenant
during hours outside normal business hours, shall be registered with the Center
security before commencing work.
