EXHIBIT 10.54
LEASE
THIS LEASE is made and entered into this 30th day of October, 1996, by
and between WISCONSIN WAREHOUSING, LLC, a Wisconsin limited liability company,
hereinafter referred to as "LESSOR") and XXXXXX PRODUCTS, LTD., a Delaware
corporation (hereinafter referred to as "LESSEE").
1. Description of Leased Premises. LESSOR hereby leases to LESSEE
approximately the east forty thousand (40,000) square feet of a commercial
building at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx, as depicted on the floor plan
attached hereto and incorporated as Exhibit "A" of this Lease (the "Leased
Premises"). LESSOR expressly reserves the right to construct additional
buildings and improvements on the vacant land owned by LESSOR north of the
Leased Premises; provided that such construction does not have a material
adverse effect en LESSEE'S use and enjoyment of the Leased Premises. LESSEE
shall have the right to use jointly with LESSOR and any other tenants of LESSOR
any driveways, sidewalks, parking lots, common areas, rail facilities and other
common facilities serving the building in which the Leased Premises are located.
The legal description of the real estate on which the Leased Premises are
located is set forth in Exhibit "B" of this Lease.
2. Term. This Lease shall be for a term of three (3) years commencing
November 1, 1996 and ending October 31, 1999, unless sooner terminated as
hereinafter provided.
3. Rent. The annual rent for each year of this Lease shall be
Eighty-six Thousand Four Hundred Dollars ($86,400.00). The rent shall be payable
in equal monthly installments of Seven Thousand Two Hundred Dollars ($7,200.00),
payable on the first day of each month commencing November 1, 1996. The rent
shall be paid to LESSOR at the address set forth in this Lease, or at such other
address as LESSOR shall hereinafter designate in writing to LESSEE.
4. Shared Expenses. LESSEE'S share of any real estate taxes, special
assessments, insurance premiums or other expense of which LESSEE is required to
pay a proportionate share under any provision of this Lease shall be determined
by dividing the total number of square feet available for lease in the building
in which the Leased Premises are located by the number of square feet in the
Leased Premises. The parties agree that LESSEE'S proportionate share of such
expenses is currently fifty percent (50%). LESSEE shall pay LESSEE'S share of
such expenses within thirty (30) days of LESSEE'S receipt of a billing
therefore. In the event LESSOR elects to construct an additional building on the
vacant land owned by LESSOR and LESSOR or the tenants in such building also have
use of any driveways, parking lots, rail facilities or other common areas or
facilities, LESSEE'S share of the expenses related to such common areas or
facilities shall be equitably adjusted on the basis of relative usage. If the
parties are unable to agree on the amount of such adjustment, the adjustment
shall be determined by binding arbitration as provided in Paragraph 34 of this
Lease.
5. Late Charge. In the event LESSEE fails to pay the rent due hereunder
within ten (10) days of LESSEE'S receipt of written notice that such rent is
delinquent, or fails to pay any other amount due to LESSOR under this Lease when
it is due, LESSEE shall pay to LESSOR as additional rent, interest on such
delinquent amount at the rate of twelve percent (12%) per annum from the date on
which such amount was due to the date of payment.
6. Assignment or Subletting. LESSEE shall not assign this Lease, or
sublet any portion of the Leased Premises, without the prior written consent of
LESSOR, which consent shall not be unreasonably withheld.
7. Alterations and Improvements by LESSEE. In the event LESSEE desires
to make any alterations or improvements to the Leased Premises, LESSEE shall
first submit the plans for such alterations or improvements to LESSOR for
written approval, which approval shall not be unreasonably withheld. Ml such
alterations and improvements shall be made at LESSEE'S expense in a good, safe
and workmanlike manner after LESSEE has obtained all necessary approvals and
permits from the applicable government authorities. All such alterations and
improvements shall, as of the expiration of the term, belong to LESSOR;
provided, however, LESSEE agrees that in the event there are any such
alterations, changes or improvements, LESSEE shall, upon notification of LESSOR
given at the time of approval, restore such alterations or such part thereof as
may be referred to in the notice, to the same condition as they were at the
beginning of the Lease at LESSEE'S cost and expense.
8. LESSEE'S Right to Remove Fixtures. LESSEE shall have the right to
remove from the Leased Premises all of LESSEE'S apparatus and equipment
installed therein, whether or not such apparatus and equipment be attached to
the real estate, provided that all such apparatus and equipment shall be removed
at the date of the termination of this Lease or any renewal thereof, and
provided further that LESSEE shall restore and repair any damage to the Leased
Premises caused by the removal of such apparatus and equipment, such restoration
and repairs to be accomplished in such a manner so that the restoration and
repair is not noticeable as such after completion thereof.
9. Real Estate Taxes and Special Assessments. LESSEE shall pay its
proportionate share of all general real estate taxes and special assessments
levied or assessed against the Leased Premises during tn to pay special
assessments shall be limited to the annual installments due thereon based upon
the longest payment period available to LESSOR. LESSEE'S proportionate share of
such real estate taxes and special assessments shall be computed as provided in
paragraph 4 of this Lease.
10. Personal Property Taxes. LESSEE shall pay any and all personal
property taxes levied or assessed against the equipment, improvements, inventory
and other personal property owned by or leased to LESSEE.
11. Signs. LESSEE shall have the right to erect appropriate signage
advertising the nature of LESSEE'S business. The plans for such signage shall be
submitted to LESSOR for approval, which approval shall not be unreasonably
withheld. Any signage shall be erected in compliance with all rules and
regulations concerning the same and such erection shall be conducted in a manner
so as not to unnecessarily damage the Leased Premises when such signage is
removed. Any damage caused by the removal of such signage shall be repaired by
LESSEE at LESSEE's expense.
12. Utilities. LESSEE shall pay all utility charges for the utilities
serving the Leased Premises, including without limitation, heat, gas, light,
electricity, sewer, and water. The cost for any utilities which are not
separately metered and serve both the Leased Premises and other portions of the
building in which the Leased Premises are located shall be prorated between
LESSEE and LESSOR based upon the agreement of the parties or the best estimate
of the utility company as to the actual usage of such utility by each of the
parties served.
13. Maintenance by LESSOR. LESSOR shall be responsible for the full
cost of any necessary maintenance, repair or replacement of the roof,
foundation, exterior walls and structural components of the building in which
the Leased Premises are located. Notwithstanding any other provision of this
Lease,
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LESSOR shall not be responsible for any maintenance, repair or replacements
caused by the negligence or willful acts of LESSEE, or LESSEE's employees,
agents, contractors, permittees, customers, guests and invitees.
14. Maintenance by LESSEE. LESSEE shall keep the Leased Premises
reasonably clean, and upon the termination of this Lease, LESSEE shall return
the Leased Premises to LESSOR, in the same condition as at the commencement of
the term of this Lease, except for authorized alterations and improvements;
reasonable wear and tear and other loss, damage or injury caused by fire or
other casualty beyond the reasonable control or prevention of LESSEE. Except as
otherwise expressly provided in this Lease, LESSEE shall be responsible for the
full cost of the maintenance, repair and replacement of the interior and
exterior of the Leased Premises, including without limitation: the interior
walls and wall coverings; floor coverings; plumbing and fixtures; electrical
wiring and fixtures; heating, ventilating and air conditioning systems; windows
and doors (including glass breakage); loading dock and all mechanical equipment
serving the Leased Premises. LESSEE shall also be responsible for its
proportionate share of any necessary maintenance, repair or replacement of the
sidewalks, driveways, parking lots, common rail facilities, lawn, landscaping
and common area maintenance, including lawn maintenance and snow removal. LESSEE
shall also be responsible for any maintenance, repairs or replacements
necessitated as a result of the negligence or willful acts of LESSEE or LESSEE'S
employees, agents, contractors, permittees, customers, guests and invitees.
Notwithstanding anything contained herein to the contrary, LESSEE shall not be
responsible for any maintenance, repairs or replacements caused by the
negligence or willful acts of LESSOR or any other tenant, or their respective
employees, agents, contractors, permittees, customers, guests and invitees.
15. Use of Leased Premises. The Leased Premises shall be used solely
for the finishing and storage of LESSEE'S products, offices and related uses.
LESSEE shall comply with all state, local and federal laws and regulations
governing the conduct of LESSEE'S business and the possession, occupancy and use
of the Leased Premises. LESSEE shall also comply with reasonable regulations or
restrictions imposed by LESSOR or LESSOR'S insurance carrier. LESSEE shall keep
the Leased Premises free and clear of refuse, garbage and debris. All refuse
shall be sorted in accordance with applicable recycling and refuse collection
regulations, stored in appropriate containers out of public view and promptly
removed from the Leased Premises. LESSEE shall not conduct any illegal,
dangerous or hazardous activities on the Leased Premises. LESSEE shall not use,
store or dispose of any toxic, dangerous or hazardous materials of any kind on
the Leased Premises, without the prior written consent of LESSOR. LESSEE agrees
to comply wit all environmental rules and regulations, including regulations
related to the use, storage and disposal of any toxic, dangerous or hazardous
materials permitted by LESSOR.
16. Quiet Enjoyment. LESSOR warrants and represent to LESSEE that so
long as LESSEE pays the rent due hereunder and performs all its covenants and
agreements under this Lease, LESSEE shall have peaceable and quiet enjoyment of
the Leased Premises, and all rights, easements and privileges appurtenant
thereto, without interruption by LESSOR, the mortgagee of LESSOR, or any other
person, firm or corporation claiming under either LESSOR or the mortgagee of
LESSOR.
17. Right of Entry. LESSOR, or any agent of LESSOR, shall have the
right at any reasonable time to enter the Leased Premises for the purpose of
examination or for any purpose which LESSOR (or any agent of LESSOR) may deem
necessary for the protection of the rights of LESSOR, and to exhibit the Leased
Premises for the purpose of sale at reasonable times. In the event LESSEE elects
not to renew this Lease, LESSOR shall have the right to place signs on
conspicuous portions of the Leased Premises advertising the same for rental or
for sale during tended term of this Lease. LESSOR or LESSOR'S agent shall give
LESSEE reasonable notice of LESSOR'S intention to enter the Leased Premises,
except in emergency situations.
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18. Insurance. LESSEE shall secure and maintain, during the term of
this Lease, and any renewal thereof, public liability insurance covering the
Leased Premises with an aggregate policy limit of not less than one million
dollars ($1,000,000.00). This policy shall name LESSOR as an additional insured
party
LESSOR shall secure and maintain, during the term of this Lease and any
renewal thereof, public liability insurance covering the building in which the
Leased Premises are located and the adjacent real estate owned by LESSOR with an
aggregate policy limit of not less than one million dollars ($1,000,000.00).
This policy shall name LESSEE as an additional insured party. LESSEE shall pay
its proportionate share of such insurance coverage, as provided in paragraph 4
of this Lease.
LESSOR shall secure and maintain during the term of this Lease, or any
renewal thereof, fire and extended peril insurance coverage insuring the
building and improvements owned by LESSOR for the full replacement cost thereof
LESSEE shall pay its proportionate share of the cost. of such insurance
coverage, as provided in paragraph 4 of this Lease.
LESSEE shall secure and maintain during the term of this Lease, and any
renewal thereof, fire and extended peril insurance coverage in a separate policy
for LESSEE'S inventory, equipment, trade fixtures, leasehold improvements and
other property.
All policies of insurance shall be issued by good and responsible
companies satisfactory to both parties. Each party shall, upon demand, provide
to the other party a certificate of insurance with respect to any insurance
coverage required to be maintained by such party. All certificates of insurance
shall be in a form acceptable to the party entitled to receive such certificate.
19. Indemnification and Hold Harmless. LESSEE agrees to indemnify and
hold LESSOR harmless from any and all liability for injuries to, or death of,
any persons and for loss or damage to any property, including all costs and
expenses incident thereto, arising from or in connection with LESSEE'S
installations, maintenance, repair or use of the Leased Premises or the
operation of LESSEE'S business. LESSEE shall also indemnify and hold LESSOR
harmless from any and all liability related to LESSEE'S use, storage or disposal
of any toxic, dangerous or hazardous materials of any kind on the leased
Premises. LESSEE'S obligations under this paragraph shall include, without
limitation, all fines, forfeitures, penalties, site investigation costs,
remediation plan development costs, remediation or clean-up expenses, attorney's
fees, consultant fees and other expenses incurred by LESSOR in responding to,
defending or complying with any requirement imposed upon LESSOR in any action or
proceeding brought against LESSOR. LESSEE accepts the condition of the Leased
Premises and building in which the Leased Premises are located as of the date of
the commencement of this Lease. LESSOR shall not be liable to LESSEE for any
damage done or occasioned by problems with the plumbing, electrical wiring,
heating, air conditioning, sprinkling, sewer, gas, water, steam or other
mechanical components of the Leased Premises. LESSOR shall not be liable to
LESSEE for any damage done or occasioned by bursting of pipes or the build-up of
water, snow, ice or acts of God.
20. Mutual Waiver of Subrogation. The parties agree to cause any and
all fire, extended coverage or other hazard insurance policies which may be
carried by either party to include a waiver of subrogation endorsement, unless
the party securing such insurance notifies the other party in writing that such
endorsement is unavailable. Each party hereby expressly waives all claims for
recovery from the other party for any loss or damage to its property insured
under valid and collectable insurance policies to the extent of any recovery
collectable under such insurance. This waiver of subrogation shall not be
enforced if it will invalidate or impair the coverage under any policy.
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21. Condemnation. If at any time during the original term of this
Lease, or any renewal term, there shall arise or occur any condition or
restriction of any kind or nature (including the taking of part or all of the
Leased Premises or part or all of the streets, alleys or ways now available for
ingress and egress thereto by condemnation proceedings or by right of eminent
domain), which would substantially prevent or interfere with LESSEE's use of the
Leased Premises for the purpose of carrying on its business thereon, then in
such event LESSEE shall have the right, at its option, to immediately cancel and
terminate this Lease by written notice to LESSOR and LESSEE shall thereupon be
relieved of all obligations and liabilities hereunder.
If only a part of the Leased Premises are taken by condemnation
proceedings or by right of eminent domain and LESSEE shall be able to conduct
its business operations on the remaining portion thereof and shall so notify
LESSOR in writing within ten (10) days after the taking, then the rent to be
paid hereunder shall be adjusted so that LESSEE shall pay only that portion of
the whole amount thereof that is represented by the worth or value of the
remaining property as compared with the worth or value of the property rent
shall be agreed upon in writing between the parties within thirty (30) days
after the taking.
If the parties cannot agree upon such proportionate rental for the
remaining portion of the Leased Premises within said time, then the parties
agree that such proportionate rental shall be determined as provided in
paragraph 34 of this Lease.
LESSOR shall be exclusively entitled to any award made as a result of
the condemnation proceedings or the exercise of the right of eminent domain,
except payments for the fixtures, leasehold improvements or other property of
LESSEE and relocation benefits payable to LESSEE under applicable law.
22. Destruction of the Leased Premises. In the event the Leased
Premises are totally destroyed by fire or other casualty, the LESSOR may, at
LESSOR'S option, terminate this Lease, or LESSOR may rebuild the building
situated on the Leased Premises and the rent shall xxxxx between the time of the
destruction and the time the building is rebuilt and the Leased Premises are
ready for Occupancy, or in the event of a partial destruction of the Leased
Premises by fire or other casualty, LESSOR, at LESSOR'S option, may terminate
this Lease or rebuild and repair the Leased Premises, and in such case the rent
shall proportionately xxxxx during the time between such partial destruction and
repair or rebuilding thereof, provided, that in the events aforesaid, the
options allowed to LESSOR shall be exercised within thirty (30) days after the
event giving rise thereto.
23. Defaults. In the event that any one or more of the following events
shall occur and be continuing, to-wit:
(a) LESSEE shall be in arrears in the payment of the rent for a period
of ten (10) days after written notice thereof; or
(b) LESSEE shall fail or neglect to do or perform or observe any of the
other covenants contained herein on its part to be kept and performed
and such failure or neglect shall continue for a period of not less
than thirty (30) days after LESSOR has notified LESSEE in writing of
such failure or neglect and LESSEE has failed to cure same within said
thirty (30) days or made satisfactory provisions to cure same in
respect to any covenant which cannot be cured within said thirty (30)
days; or
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(c) If the interest of LESSEE in this Lease shall be levied on under
execution or other legal process, and unless such execution or legal
process shall within thirty (30) days from the date of levy be
nullified or otherwise rendered ineffective, or if any assignment of
LESSEE'S property shall be made for the benefit of creditors, or if
LESSEE shall abandon or vacate said premises; or
(d) If any proceedings shall be commenced by or against LESSEE for any
relief which includes, or might result in, any modification of the
obligations of LESSEE hereunder under any bankruptcy or insolvency law,
or law relating to the relief of debts, readjustments of indebtedness,
reorganizations, arrangements, compositions or extensions, under
bankruptcy or insolvency law, (unless such proceedings shall within
thirty (30) days from the filing or effective date thereof be
dismissed, nullified, stayed or otherwise rendered ineffective, but
then only so long as such stay shall continue in force or such
ineffectiveness shall continue), and all the obligations of the LESSEE
under this Lease shall not have been duly assumed in writing, pursuant
to a court order or decree, by a trustee or trustees or receiver or
receivers appointed for the LESSEE (or for its property in connection
with any such proceeding) in such a manner that such obligations shall
have the same status as obligations incurred by such trustee or
trustees or receiver or receivers, within thirty (30) days after such
appointment, if any, or sixty (60) days after such proceedings shall
have been commenced, whichever shall be earlier; or
(e) If LESSEE shall fail to secure or maintain any insurance coverage
required by this Lease and such failure or neglect shall continue for a
period of not less than forty-eight (48) hours after LESSOR has
notified LESSEE in writing of such failure or neglect.
LESSOR may treat the occurrence of any one or more of the foregoing
events as a breach of this Lease and thereupon, at its option, may, without
notice of demand of any kind to LESSEE or any other person, have any one or more
of the remedies hereinafter set forth.
24. Remedies of LESSOR. Upon a breach of this Lease by LESSEE as
hereinbefore provided:
(a) LESSOR may terminate this Lease and the term created hereby, in
which event LESSOR may forthwith repossess the Leased Premises and be
entitled forthwith to recover as damages a sum of money equal to the
value of the remaining rent under this Lease, to be determined on the
basis of the rent theretofore paid or payable, less the fair rental
value of the Leased Premises for said period, and any other sum of
money and damages owed by LESSEE to LESSOR; or
(b) LESSOR may terminate LESSEE'S right of possession and may repossess
the Leased Premises, without demand or notice of any kind to LESSEE and
without terminating this Lease, in which event LESSOR shall make
reasonable efforts to re-let the same for the account of LESSEE for
such rent and upon such terms as shall be reasonably satisfactory to
LESSOR; and, if LESSOR shall fail to re-let the Leased Premises, or if
the Leased Premises are re-let and a sufficient sum shall not be
realized from such re-letting, after paying all of the costs and
expenses of such re-letting and of the collection of the rent accruing
therefrom to satisfy the rent above provided to be paid, then LESSEE
shall pay to LESSOR as damages a sum equal to the amount of the rental
reserved in this Lease for such period or periods, or, if the Leased
Premises have been re-let, LESSEE shall satisfy and pay any such
deficiency upon demand therefor, from time to time, and LESSEE agrees
that LESSOR may file suit to recover any sums falling due under the
terms of this paragraph from time to time and that no suit or recovery
of any portion due LESSOR hereunder shall be in defense to any
subsequent action brought for any amount not theretofore reduced to
judgment in favor of LESSOR.
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LESSEE will pay, in addition to the rent and other charges to be paid
by LESSEE, LESSOR'S reasonable attorney's fees in a suit or action instituted by
LESSOR to enforce the provisions of the Lease or the collection of sums due
LESSOR hereunder.
25. Defaults by LESSOR. In the event LESSOR breaches any of the terms
or provisions of this Lease and LESSOR has not cured such breach within thirty
(30) days after LESSOR'S receipt of written notice thereof, or made arrangements
to cure any breach which could not reasonably be cured within said period,
LESSEE shall have the right to cure such default on behalf of LESSOR and to
recover the reasonable cost thereof from LESSOR or offset such cost against
future rents payable hereunder.
26. Peaceable Vacation. Upon the termination of this Lease and the term
created hereby, or upon the termination of LESSEE'S right of possession, whether
by lapse of time or at the election of LESSOR or LESSEE as aforesaid, LESSEE
will at once peaceably vacate the Leased Premises and surrender possession of
same to LESSOR. If the termination is by lapse of time, LESSEE shall remove
LESSEE'S trade fixtures and personal property prior to the date of termination.
In the event termination is for a reason other than lapse of time, LESSEE shall
have a reasonable time to remove such fixtures and personal property and restore
the Leased Premises to the condition in which they were originally delivered to
LESSEE, ordinary wear and tear as well as other loss, damage or injury caused by
fire or other casualty beyond the reasonable control or prevention of LESSEE
excepted. LESSEE shall pay prorated rent based upon the amount payable prior to
such termination until the removal and restoration is completed by LESSEE. If
LESSEE shall fail hereinbefore provided, LESSEE'S right to do so shall, at the
option of the LESSOR, cease and LESSEE'S title thereto shall revert and the same
shall belong to LESSOR; or LESSOR shall have the right to remove such property
at the expense of LESSEE without any liability or damage thereto and LESSEE
shall thereupon promptly reimburse LESSOR for all reasonable expenses incurred
by LESSOR in doing so.
27. Holding Over. In the event LESSEE shall continue to occupy the
Leased Premises after the original term of this Lease, or any extension thereof,
such occupancy shall be deemed to create a tenancy at will and shall in no event
be presumed to be a renewal of this Lease. LESSEE shall, in such event, be
obligated to continue to pay rent in an amount ten percent (10%) greater than
the rent in effect immediately prior to the expiration of this Lease. During
such tenancy at will, if LESSEE desires to vacate, LESSEE shall be required to
give notice in accordance with the laws of the State of Wisconsin.
28. Subordination. This Lease is, and shall be, without further act by
LESSOR or LESSEE, subordinate to any mortgage or mortgages now or hereafter
placed upon the Leased Premises by LESSOR and to all advances made or to be made
thereunder, and to any renewals, modifications and extensions thereof, provided
that LESSOR'S mortgagee agrees in a form reasonably satisfactory to LESSEE that
LESSEE'S occupancy of the Leased Premises shall not be disturbed by the exercise
of such mortgagee's rights under the mortgage or mortgages. It is expressly
understood and agreed that no further instruments shall be required to effect
the subordination provided herein. LESSEE shall, however, upon request, execute
such documents as may be required by LESSOR'S mortgagee.
29. Waivers of Breach. No waiver of any breach of this Lease shall be
implied from any omission by LESSEE or LESSOR to take any action on account of
such breach, and no express waiver shall affect any breach or default other than
the breach or default specified in the express waiver and then only for the time
and to the extent stated. No receipt of money by LESSOR from LESSEE after any
breach or default by LESSEE, or after the termination of this Lease, whether by
lapse of time or after the commencement of any suit, or after final judgment for
possession of the Leased Premises, shall waive such breach or default or
reinstate, continue or extend the term of this Lease or affect it any way and
such notice or suit, as the case may be.
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30. LESSOR'S and LESSEE'S Rights are Cumulative. No remedy herein, or
otherwise conferred upon or reserved by either party, shall be exclusive of any
other remedy, but the same shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing; every power and
remedy given to either party hereunder may be exercised from time to time and as
often as occasion may arise. No delay or omission on the part of either party in
the exercise of any right hereunder shall impair any such right or power or
shall be construed as a waiver thereof.
31. Mechanic's Liens. Except as hereinafter provided, LESSEE shall not
permit any mechanic's liens or other liens to be placed upon the Leased Premises
or any building or improvement thereon during the term of this Lease or any
renewal thereof and in case of the filing of any such lien, LESSEE will promptly
pay the same. If default in payment thereof shall continue for thirty (30) days
after written notice thereof from LESSOR to LESSEE, LESSOR shall have the right,
at LESSOR'S option, of paying the same or any portion thereof without inquiry as
to the validity thereof, and any amounts so paid, including expenses and
interest, shall be so much additional indebtedness hereunder due from LESSEE to
LESSOR and shall be repaid to LESSOR immediately on rendition of xxxx therefor.
Notwithstanding the foregoing, in the event of any mechanic's lien or
liens being filed or placed against said Leased Premises and LESSEE desires to
contest the validity of the amount thereof or otherwise question the same,
LESSEE may do so, and in lieu of paying the same shall cause to be executed and
delivered to LESSOR a good and sufficient bond guaranteeing the payment thereof
in the event such contest or questioning of such lien or liens by LESSEE is
unsuccessful.
32. Notices. All notices, demands, statements, elections, options and
other instruments required or permitted to be given or made by either party upon
the other by the terms of this Lease or any statute shall be in writing and
shall be deemed to have been sufficiently served three (3) days after the date
of mailing if sent by certified or registered mail with proper postage prepaid
to the LESSOR and to the LESSEE at the following addresses or at such other
address as either party may hereafter designate in writing to the other party:
LESSOR: Wisconsin Warehousing, LLC
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
LESSEE: Xxxxxx Products, Ltd.
000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
33. LESSOR'S Right to Perform. If LESSEE refuses and neglects to make
repairs or maintain the Leased Premises properly as required hereunder, and to
the reasonable satisfaction of LESSOR, and as soon as reasonably possible after
written demand, LESSOR may undertake such repairs without liability for any loss
or damage to LESSEE'S merchandise, fixtures, business or other property by
reason thereof, and upon completion thereof, LESSEE shall be obligated to pay
LESSOR the cost of making such repairs, upon presentation of a xxxx therefor, as
additional rent.
34. Dispute Resolution. The following provision shall apply to any
dispute between the parties regarding the interpretation, operation or
enforcement of this Lease.
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(a) Confidentiality. The terms of this Lease and any information
relating to this Lease are confidential and private. Each party agrees
to maintain the confidentiality and privacy of, and not to disclose,
any information set forth in this Lease.
(b) Disputes. Any dispute arising with respect to this Lease, or the
making or validity thereof, or its interpretation, or any breach
thereof, shall be determined and settled by arbitration in the city of
Appleton, Wisconsin, pursuant to the rules then existing of the
American Arbitration Association, which shall be the sole and exclusive
remedy for such disputes, except as otherwise provided herein. The
attorney's fees and costs incurred by the prevailing party in the
arbitration and enforcement thereof, at the trial and appellate level,
shall be paid by the losing party. Any award rendered shall be final
and conclusive upon the parties and a judgement thereon may be entered
in any court having jurisdiction. Nothing contained herein shall limit
the right of a party to request or obtain judicial assistance in the
enforcement of any remedy hereunder, including eviction, specific
performance or injunctive relief.
35. Miscellaneous. The parties shall also be subject to the following
miscellaneous terms and conditions:
(a) Authority. Each person executing this Lease on behalf of a party
warrants and represents that he/she has been duly authorized to execute
this Lease by the party on whose behalf he/she is executing this Lease
and that this Lease will be enforceable against such party in
accordance with its terms.
(b) Saving. The invalidity or unenforceability of any provision of this
Lease shall not affect or impair the validity of any other provision.
(c) General Provisions. Nothing contained in this Lease shall be deemed
or construed by the parties hereto or by any third party to create the
relationship of principal and agent, or of partnership, or of joint
venture, or of any association whatsoever between LESSOR and LESSEE, it
being expressly understood and agreed that neither the method of
computation of rent, nor any other provision contained in this Lease,
nor any act of the parties hereto, shall be deemed to create any
relationship between the parties other than the relationship of LESSOR
and LESSEE.
(d) Paragraph Headings. The paragraph titles contained in this Lease
are for convenience only and do not define, limit or construe the
contents of such paragraph.
(e) Successors and Assigns. The term of this Lease shall extend to and
be binding upon the parties hereto and their respective heirs, personal
representatives, successors and assigns.
(f) Short Form Lease. At the request of either xxxxx, a short form
lease will be prepared and executed by both parties for recording
purposes, which will not vary any of the terms or provisions of this
Lease.
(g) Time of the Essence. Time is of the essence with respect to all
time periods specified in this Lease.
(h) Law Governing. This Lease shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin.
-9-
IN WITNESS WHEREOF, the parties have caused this Lease to be executed
the day and year first written above.
LESSOR:
WISCONSIN WAREHOUSING, LLC.:
By: /s/ Xxxxxx Xxxxxxxx(SEAL)
__________________
Xxxxxx Xxxxxxxx, Managing Member
LESSEE:
XXXXXX PRODUCTS, LTD:
By: /s/ Xxxxx Xxxxx(SEAL)
_______________
Xxxxx Xxxxx, Executive Vice President/
General Manager
STATE OF WISCONSIN )
)
WINNEBAGO COUNTY )
Personally came before me this 30th day October, 1996, above named
Xxxxxx Xxxxxxxx, Managing Member, of Wisconsin Warehousing, LLC, a Wisconsin
limited liability company, LESSOR, to me known to be the person who executed the
foregoing indenture of Lease.
/s/ Xxxxx Xxxxxx
________________
Notary Public, State of Wisconsin
My commission expires: 0-00-00
-00-
XXXXX XX XXXXXXXXX )
)
WINNEBAGO COUNTY )
Personally came before me this 28th day of October, 1996, above named
Xxxxx Xxxxx, Executive Vice President/General Manager of Xxxxxx Products, Ltd.,
a Delaware Corporation, LESSEE, to me known to be the person who executed the
foregoing indenture of Lease.
/s/ Xxxxxxx X. Xxxxx
____________________
Notary Public, State of Wisconsin
My commission expires: 12/19/99
This document was drafted by XXXXXXX X. XXXX, Attorney at Law.
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[Drawing of Site Plan]
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EXHIBIT "B"
LEGAL DESCRIPTION
That part of the North West 1/4 of the North Xxxx 0/0 xx Xxxxxxx 0 - X00X -
X00X, in the Fifteenth Xxxx, City of Oshkosh, Winnebago County, Wisconsin,
described as follows, viz:-
Commencing at the North Quarter xxxxx of said Section; thence south 0 degrees 2
minutes 44 seconds east, along the West line of said Xxxxx Xxxx 0/0 xx xxx Xxxxx
Xxxx 1/4, 947.25 feet; thence north 89 degrees 27 minutes 7 seconds east 300.00
feet; thence northeasterly 491.01 feet, along the arc of a curve to the left,
having a radius of 477.67 feet and a chord of which bears north 59 degrees 59
minutes 28 seconds east, 469.66 feet; thence south 89 degrees 47 minutes 23
seconds east 54.66 feet, to the Westerly right of way line of the Soo Line
Railroad Company; thence northeasterly, 457.21 feet along the arc of a curve to
the right, being the Westerly right of way line of the Railroad Company, having
a radius of 2897.79 feet and a chord of which bears north 8 degrees 37 minutes
43 seconds east, 456.73 feet, to the Southeasterly corner of tract of land
heretofore conveyed by Deed recorded as Document No.516490; thence north 89
degrees 59 minutes 30 seconds west, along the South line of said tract of land
heretofore conveyed, as aforementioned, 467.02 feet, thence north 0 degrees 2
minutes 44 seconds west, along the West line of tract of land heretofore
conveyed, as aforementioned, 258.00 feet, to the North line of said Section;
thence north 89 degrees 59 minutes 30 seconds west, along the North line of said
Section, 363.40 feet to the place of beginning, excepting therefrom the North
500.00 feet thereof.
-13-
