INDENTURE OF LEASE
THIS INDENTURE OF LEASE, Made as of this 18th day of July, 1995, by and
between The Intrepid Company, a Wisconsin partnership hereinafter referred to
as "Lessor" and Company 2000, Inc., a Wisconsin Corporation, hereinafter
referred to as "Lessee",
WITNESSETH:
That for and in consideration of the rents hereinafter reserved and of
the covenants and agreements hereinafter contained, Lessor has and by these
presents does hereby grant, demise and lease unto Lessee, and Lessee has and
by these presents does hereby hire and take from Lessor, premises consisting
of approximately 4,710 square feet of ground floor area in an office and
warehouse building located and situated on Lessor's real estate known as N19
X0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx, which premises are outlined in
red and identified on Exhibit A appended hereto and made a part hereof (the
"Leased Premise"). The building and the real estate appurtenant thereto of
which the Leased Premises are a part is hereinafter referred to as the
"Industrial Facility". The exterior walls and roof of the Leased Premises and
the area beneath said premises are not demised hereunder, and the use thereof
together with the right to install, maintain, use, repair, and replace pipes,
ducts, conduits, wires and structural elements leading through the Leased
Premises in locations which will not materially interfere with Lessee's use
thereof and serving other parts of the Industrial Facility are hereby
reserved unto Lessor. Prior to commencement of the term, Lessor shall perform
and substantially complete construction work identified and described on
Exhibit B appended hereto and made a part hereof (Lessor's Work). No
warranties or representations are made or have been made by Lessor or its
agents or representative that are not expressly set forth in this Lease.
I. TERM OF LEASE
The term of this Lease shall be for a period of approximately Five (5)
years commencing on 1 September, 1995 (the "Commencement Date"), and ending
31 August, 2000, unless sooner terminated in accordance with the provisions
hereof. Lessor's work on account of construction of the Leased Premises as
set forth above shall be substantially completed on or pior to the
commencement date of the term set forth above. Substantial completion of
construction as used herein shall mean such state in Lessor's work that all
items of construction for which Lessor is obligated under the terms of this
Lease are completed except for "punch list" items and similar matters which
do not substantially and materially adversely affect Lessee's use and
enjoyment of the Leased Premises and which allow Lessee to have possession of
the Leased Premises without undue interference from Lessor's workmen. In the
event that Lessor is prevented from substantially completing its work because
of delays caused by force majeure, acts of God, strikes, lockouts, shortages
of materials and/or workmen or other causes beyond Lessor's control, the date
by which Lessor's work shall be substantially completed and the
commencement date of the term shall be extended for a period equal to the
delay.
II. RENTAL
1. Beginning on the Commencement date and continuing thereafter Lessee
shall pay to Lessor a guaranteed fixed and minimum annual rental, payable in
advance in monthly installments on the first day of each calendar month
during such period, in accordance with the following:
Period Monthly Rate
1 Sept. 1995 thru 31 August 1996 $2,700.00
1 Sept. 1996 thru 31 August 1997 $2,700.00
1 Sept. 1997 thru 31 August 1998 $3,200.00
1 Sept. 1998 thru 31 August 1999 $3,640.00
1 Sept. 1999 thru 31 August 2000 $3,710.00
If for any reason the Commencement Date shall not be on the first day
of a calendar month, then the rent payable for the initial partial calendar
month shall be prorated on a thirty (30) day basis. Notwithstanding anything
to the contrary contained herein Lessee shall pay to Lessor the monthly rent
for the initial month of the term in the amount set forth above.
2. All rent and other charges to be paid by Lessee to Lessor under the
terms of this Lease shall be paid at such place as Lessor may from time to
time designate, and in lieu of such designation, then at the place specified
in Article XVIII of this lease for the giving of notices to Lessor. The
payments stated herein shall be a guaranteed and a fixed return to Lessor,
free from any expense, charges, set-off or other deduction whatsoever.
3. Lessee shall have the option to extend the term for one (1)
additional period of Five (5) years. The option shall be exercised only by
Lessee giving Lessor written notice thereof which is received by Lessor on or
before six months before the expiration of the original term then in effect.
Time shall be of the essence with respect to Lessee's notice to exercise
option as aforesaid. Such option shall be exercisable by Lessee, and the term
of this Lease, shall, in fact be extended, only if this Lease is in full
force and effect and Lessee is not in default hereunder beyond any applicable
grace period. Not withstanding anything to the contrary the sum of $39,240.00
shall be used as the annual rent amount in place at the end of the initial
five year Lease. In the event that the term of this Lease is, in fact,
extended pursuant to the foregoing, then any such extension shall be upon all
of the same and/or remaining terms and provisions contained in this Lease
provided, however, the minimum annual rental during each option period shall
be the amounts set forth below:
The fixed rent provided for in this Paragraph 3 above shall be
$39,240.00 and shall be increased as of 1 September 2000 and annually
thereafter by an adjustment which will be equal to the greater of a
compounded 3% annual increase or 70% of the percentage increase, if any, in
the Cost of Living Index for the month last published immediately preceding
the date of the rent adjustment over the Cost of Living Index as determined
one year previous to each
adjustment date. Cost of Living Index, as used herein shall mean the index
presently known as "Consumer Price Index", for Milwaukee, Wisconsin, all
items, all urban consumers, (1984=100) published by the Bureau of Labor
Statistics, United States Department of Labor.
If the computation and publication of the Cost of Living Index is
discontinued, a comparable index shall be used in lieu thereof. If the
computation and publication of the Cost of Living Index is transferred to
another governmental bureau, such bureau's publication shall be substituted
for the presently published index. If such Cost of Living Index is
substantially revised, or its method of calculation is substantially altered,
adjustments shall be made to such new index by Lessor as may be necessary to
make it comparable to the original index used, provided, however, that the
addition or elimination of particular items or commodities included in the
Cost of Living Index shall not be deemed a "substantial" revision or a event
the Bureau of Labor Statistics or other governmental bureau to whom the
publication of the Cost of Living Index is transferred publishes such
adjustment, then such adjustment as published shall be controlling upon the
parties. In the event the Cost of Living Index is discontinued, Lessor and
Lessee shall accept comparable statistics on the purchasing power of the
consumer dollar as published at the time of such discontinuation by a
responsible financial periodical of recognized authority to be then chosen by
Lessor.
III. TAXES
1. From and after the Commencement Date of the term, Lessee shall pay
as additional rental to Lessor, Lessee's proportionate share of all real
property taxes and assessments and water and sewer use charges that accrued
during the term of the lease which may be levied or assessed by any lawful
authority for each calendar year or partial calendar year during the term
hereof against the land, buildings and other improvements from time to time
comprising the Industrial Facility. Lessee's proportionate share shall be
equal to Twelve and 77/100 percent (12.77%) percent, subject to adjustment
pursuant to the provisions of Paragraph 3 of this Article III. Should any
governmental agency or political subdivision impose any taxes and/or
assessments, whether or not now customary or within the contemplation of the
parties hereto, either by way of substitution for taxes and assessments
presently levied and assessed against the real estate, as well as the
improvements thereon, or in addition thereto, including but not limited to,
any tax or assessment levied, assessed or imposed upon or measured by the
rental payable hereunder (other than Lessor's personal income tax or any
estate tax or inheritance tax) such taxes and/or assessments shall be deemed
to constitute a tax and/or assessment on the real estate, as well as the
improvements thereon for the purposes of this Article III, and Lessee shall
pay its proportionate share thereof.
2. Lessee's proportionate share of all such real property taxes,
assessments and charges during the term hereof shall be paid in advance in
estimated monthly installments of Three Hundred Eighty Dollars. ($380.00),
which amount is presently projected by Lessor (based upon the most recent
billing available to Lessor for real property taxes, assessments and charges
for the Industrial Facility) to be equal to 12.77% of Lessee's estimated
obligation for such taxes, assessments and charges. Such estimated monthly
installments shall be payable by Lessee on the first day of each calendar
month during the term. Within ninety (90) days after
the end of each calendar year during the term, Lessor shall furnish Lessee
with a statement of the actual amount of Lessee's proportionate share of such
taxes, assessments and charges for the calendar year in question. Within
fifteen (15) days after the rendition of each such statement to Lessee by
Lessor, Lessee shall pay to Lessor, or Lessor shall credit to the obligations
of Lessee, As the case may be, the difference between the estimated payments
actually made by Lessee for the calendar year in question and Lessee's
correct proportionate share of such actual taxes, assessments and charges for
such year as shown on such statement. For the calendar years in which this
Lease commences and terminates the provisions of this Article III shall
apply, and Lessee's liability for its proportionate share of such taxes,
assessments and charges for such years shall be subject to a pro rata
adjustment based on the number of days of such calendar years during which
the term of this Lease is in effect. A copy of a tax xxxx or assessment xxxx
submitted by Lessor to Lessee shall at all times be sufficient evidence of
the amount of taxes, assessments and/or charges assessed or levied against
the property to which such xxxx relates. From time to time hereafter, Lessor
may notify Lessee in writing of adjustments to Lessee's monthly installments
due hereunder, which adjustments shall be based upon the most current tax and
assessment information available to Lessor, and Lessee shall adjust its
installment payments accordingly. Lessor's and Lessee's obligations under this
Article III shall survive the expiration of the term of this Lease.
3. The parties acknowledge that Lessee's proportionate share as set
forth above represents that portion of the total number of square feet of
constructed gross leasable floor area in the Industrial Facility which
constitutes the amount of square floor area within the Leased Premises.
Lessor represents that as of the date hereof there are approximately 36,885
square feet of constructed gross leasable floor area in the Industrial
Facility. In the event that during the term hereof there shall be a change in
the number of square feet of floor area within the Leased Premises, or a
change in the number of square feet of floor area in the Industrial Facility
(whether or not the same affects the Leased Premises), then Lessee's
proportionate share shall be recalculated at the time or times in question to
be equal to a fraction, the numerator of which shall be the number of square
feet of floor area in the Leased Premises, and the denominator of which shall
be the total number of square feet of constructed gross Leasable floor area
in the Industrial Facility. From and after the effective date of any change
in Lessee's proportionate share, all payments due from Lessee under this
Lease which are calculated by reference to Lessee's proportionate share shall
be appropriately adjusted.
IV. COMMON AREAS
Lessor shall provide a paved parking area for use in common by Lessee
and other tenants of the Industrial Facility. Lessor shall maintain such
parking area and all of the other common areas and facilities used for
operation and maintenance of the Industrial Facility in good condition and
repair, including, but not limited to, the parking area, parking area
lighting standards, landscaped areas, canopies, and Industrial Facility
signs; and Lessee agrees to pay upon demand, but not more often than once
each calendar month during the term as additional rental (which additional
rental may be estimated by Lessor, subject to adjustment in future xxxxxxxx
to Lessee), Lessee's proportionate share (Lessee's proportionate share of
it's leased
gross floor area to the total gross leased floor area of the industrial
facility) of the reasonable expenses and costs of managing, operating,
lighting, landscaping maintenance, cleaning, removing snow, policing,
insuring, repairing, supplying, replacing and properly maintaining such
common areas and facilities as here defined the drives, asphaltic parking and
trucking areas (Lessee shall be responsible only for repairing, sealing and
maintaining i.e. crack filling, pot hole patching of asphaltic drives,
parking and trucking areas due to normal wear and tear. The replacement of
the total asphaltic drives, parking and trucking area are excluded as it is a
capital improvement) sidewalks, landscaped and grass areas of the Industrial
Facility. Costs shall be limited to actual net payments made to third party
service companies. Within 90 days after the close of each calendar year a
reconciliation of all common area charges shall be performed to determine
whether cash refunds are due the lessee or an additional payment is due the
lessor as a result of the actual reasonable expenses and cost incurred of
that just concluded calendar year and to adjust, if necessary, the monthly
charge for the coming year of the lease.
Lessor expressly reserves the right to promulgate from time to time
reasonable rules and regulations relating to the use of all common areas and
facilities or any part thereof for the welfare of all tenants in the
Industrial Facility and their employees, agents and invitees. Said rules and
regulations shall be binding upon Lessee upon delivery of a copy thereof to
Lessee. Said rules and regulations may be amended from time to time by Lessor
with or without advance notice, and all such amendments shall be effective
upon delivery of a copy thereof to Lessee. For the enforcement of said rules
and regulations, Lessor shall have available to it all remedies provided in
this Lease in the event of a breach thereof and all legal remedies whether or
not provided for in this Lease by law or in equity.
V. USE OF PREMISES
1. Lessee shall use the Leased Premises for the following and for no
other purposes: Offices, Sales and Mail Processing Operations and
Distribution.
All such use of the Leased Premises shall be in full compliance with all
laws, ordinances, rules and regulations of all public authorities having
jurisdiction over the premises and no part of the Leased Premises shall be
occupied or used for any purpose or in any manner so that, in accordance with
any requirements of law or any public authority, Lessor shall be obligated to
make any addition or alteration to or in the building. Lessee shall perform
no act or activity in connection with its use of the Leased Premises which
shall be a nuisance or, in the opinion of Lessor reasonably exercised,
adversely affect the use and enjoyment of the other occupants of the
Industrial Facility, including, but not limited to, the creation and/or
emission of noxious fumes or odors or noise at unreasonably high sound
levels. Impossibility of performance by either party due to unforeseen
governmental requirements or intervention, other than as elsewhere provided
herein, not triggered by the action or inaction of a party (nonculpable
party) shall provide the nonculpable party with the option to terminate the
lease by written notice stating circumstances conforming herewith.
2. Lessee shall, at its own cost and expense, comply promptly and
conform with all
present and future laws, ordinances, rules, requirements and regulations of
the federal, state, county and city governments and of any and all other
governmental authorities or agencies affecting the Leased Premises or its
use, as a result of the particular use and occupancy of the Leased Premises
by Lessee and Lessee shall, at its own cost and expense, make all additions,
alterations or changes to the Leased Premises or any portion thereof as may
be required by any governmental authority or agency and shall comply promptly
with all present and future orders, rules, rulings, regulations and
directives and of any governmental authority or agency. Any such additions,
alterations or changes will become the exclusive property of Lessor unless
otherwise agreed in writing between the parties prior to being placed into
effect. Notwithstanding anything to the contrary contained herein, Lessor
shall have the obligation to make any such additions, alterations or changes
to the structure of the Leased Premises unless such additions, alterations or
changes are required solely as a result of the particular use and occupancy
of the Leased Premises by Lessee.
VI. LESSOR'S AND LESSEE'S WORK
1. Lessor, at Lessor's cost and expense, shall make the alterations and
improvements to the Leased Premises which are identified and described on
Exhibit B. All such work shall be done in a good and workmanlike manner in
compliance with all building codes and regulations. Notwithstanding any
provision hereof the contrary, Lessor may make such variations in the work to
be performed by it as may be necessary or appropriate for the development of
the Industrial Facility and construction of the Leased Premises, but no such
changes shall materially alter the general appearance or amount of floor
space nor substantially affect the quality or substantially change the
interior arrangement of the Leased Premises.
2. Lessee, at Lessee's sole cost and expense, shall perform any future
alterations, improvements and other work necessary to finish such future work
to the Leased Premises for Lessee's use except for such work as is the
obligation of Lessor pursuant to Paragraph 1 above. All such work shall be
done in a good and workmanlike manner in compliance with all building codes
and regulations, and in accordance with plans and specifications therefor
first approved in writing by Lessor. Lessee shall indemnify Lessor and save
Lessor harmless from and against any and all claims, costs and expenses on
account of such work.
3. Nothing contained in this Article or in any part of this Lease shall
be taken or construed to create any agency between Lessor and Lessee or to
authorize the Lessee to do any act or thing or to make any contract so as to
encumber in any manner the title of the Lessor to the Leased Premises or to
create any claim or lien upon the interest of the Lessor in the Leased
Premises, it being expressly agreed and covenanted that all of the cost and
expense of Lessee for Lessee's work as referred to in this Article, or any
other work undertaken by Lessee affecting the Leased Premises or the
Industrial Facility, shall be promptly paid by the Lessee as required by the
terms of its contracts or agreements with the general contractor and all
subcontractors and material men. If any lien is at any time filed or
recorded, Lessee shall immediately obtain the release and satisfaction of
record of such lien. Upon failure of Lessee to do so Lessor may obtain same
at the sole expense of Lessee and such expense shall be conclusively deemed
additional rent due promptly upon demand.
VII. REPAIRS AND MAINTENANCE
1. Lessor shall keep the exterior structure, to-wit, foundation,
bearing walls and roof of the Leased Premises in proper repair during the
lease term, or any renewal or extension thereof; except that the cost of any
such repairs occasioned by Lessee's fault shall be paid by Lessee, unless
proceeds from insurance maintained by Lessee are made available to Lessor to
cover the entire cost of such repairs.
2. Lessor shall pay for all necessary repairs during the first year of
the lease as it relates only to faulty workmanship and/or defective material
or equipment. Lessee shall at all times during the Lease term pay for and
make all other necessary repairs and replacements to the Leased Premises,
including, but not limited to, the doors, windows, plate glass, fixtures,
heating, air conditioning systems serving the Leased Premises, electrical and
sewage (to main sewer lines) facilities of the Leased Premises, and keep and
maintain the same in good condition and repair so that the expiration of the
Lease, or any renewal or extension thereof, the Leased Premises shall be
surrendered to Lessor in the same condition that the same are in at the
commencement of said Lease, ordinary wear and tear excepted. Notwithstanding
the foregoing, provided Lessee established and follows the usual and
customary preventive maintenance program for the heating, ventilating and
air-conditioning facilities servicing the Leased Premises, Lessor shall
repair and replace the compressor and compressor motor as may be necessary
during the four (4) year after possession of the Leased Premises is furnished
to Lessee; provided, however, if any such repair and/or replacement shall be
occasioned by the sole fault or neglect of Lessee or its employees or agents,
such repair and/or replacement shall be made and paid for by Lessee.
Leasehold improvements furnished by Lessee shall not be included in warranty.
3. Lessor shall not cause or permit any toxic materials injurious to
animal life forms to be sprayed or otherwise placed in or about Lessee's
leased premises for the control of insects or other vermin unless
specifically requested by lessee or specifically approved by Lessee.
VIII. TRADE FIXTURES
All trade fixtures installed by Lessee, or by its subtenants or assigns, in
connection with the business conducted by it or them on the Leased Premises
may be removed by it or them during or at the expiration of this Lease or of
any renewal thereof. Any damage caused by such removal shall be repaired by
Lessee unless excused in writing by the then owners of the premises.
IX. UTILITIES
From and after the Commencement Date, Lessee shall be responsible for
and promptly pay all separately metered charges for heat, gas, electricity
and sewer charges as well as any charges for any other utility used or
consumed in the Leased Premises. Should Lessor elect to supply any utility to
Lessee used or consumed in the Leased Premises, Lessee agrees to pay for the
same as additional rent, but in no event at a cost greater than as if
purchased directly
and in the same quantity from the public utility furnishing the same. Lessee
shall keep the Leased Premises sufficiently heated so as to prevent freezing
or damage thereto or to the equipment and facilities contained therein. In no
event shall Lessor be liable for an interruption or failure in the supply of
any utility to the Leased Premises. In the event that water usage for the
Leased Premises is not separately metered, and Lessee shall use water in
connection with its production processes conducted at the Leased Premises,
then Lessee, at its own cost and expense, shall provide all mains, pipes,
meters and other equipment and supplies to allow the separate metering of all
water used in the Leased Premises by the public authority supplying the same,
and if, required by such authority, the individual metering of sanitary sewer
usage by Lessee at the Leased Premises, and Lessee shall pay for all such
water, sprinkler, and sanitary sewer use charges as billed. (Municipal water,
sewer and sprinkler consumption charges shall be invoiced on a pro-rated
basis, based on Lessee's leased floor area to the total leased only square
footage of the building premises. Such invoicing shall be on a quarterly
billing period.
X. ALTERATIONS
Lessee shall not make any alterations in or additions to the Leased
Premises without first procuring Lessor's written consent and delivering to
Lessor the plans and specifications therefor.
XI. SIGNS
Lessee shall not place any shade, awning, fence, sign or any structure
or device upon or above the exterior of the Leased Premises or upon the
windows of the Leased Premises without first obtaining the consent of Lessor,
in each instance and governing local authority.
Lessee shall be allowed to install a sign constructed of translucent
Plexiglas or equal. Sign dimensions shall be 7" high x 4'-O" long.
Lessee shall have the right to install sign at Lessee's expense on
monument structure located at Northwest corner of property at no cost to
Lessee.
Maintenance of sign mounting structure (See Exhibit C) shall be
included in common area charges, maintenance of actual Lessee sign shall be
solely at the Lessee's expense.
XII. INSURANCE AND INDEMNITY
1. Lessee shall, during the entire term hereof, keep in full force and
effect a policy of comprehensive general public liability insurance with
respect to the Leased Premises, and the business operated by Lessee and any
permitted sublessee of Lessee in the Leased Premises in an amount of not less
than One Million Dollars single limit or such greater amount as may be
reasonably required by Lessor from time to time in accordance with prudent
real estate
management practices. The policy shall name Lessor, as additional insured in
its capacity, and Lessee as insured, and shall contain a clause that the
insurer will not cancel or change the insurance without first giving the
Lessor thirty (30) days prior written notice. Notwithstanding that the loss
was caused by an "INSURED" OR "COINSURED" regardless of any other provision
in the policy excluding coverage for loss caused by an insured or coinsured.
Such insurance may be furnished by Lessee under any blanket policy carried by
it or under a separate policy therefor. A copy of the policy evidencing such
insurance or a certificate of insurer certifying to the issuance of such
policy be delivered to Lessor prior to commencement of the term of this Lease
or Lessee's occupancy, whichever is sooner, and such delivery shall also be
made upon renewal of such policy not less than thirty (30) days prior to the
expiration of such coverage. Lessor shall provide evidence of an in force
comprehensive general public liability insurance for the leased premises to
the lessee.
2. Lessee agrees to carry, at its expense, insurance against fire,
vandalism, malicious mischief, and such other perils as are from time to time
included in a standard extended coverage endorsement, insuring the betterment
and improvements made by it to the Leased Premises and its trade fixtures,
furnishings, equipment and all other items of personal property of Lessee
located on or within the Leased Premises, in an amount equal to not less than
Eighty Percent (80%) of the actual replacement cost thereof and to furnish
Lessor with a certificate evidencing such coverage.
3. Lessee shall not use, occupy, carry any stock of goods, or do
anything in or about the Leased Premises which will in any way prevent the
obtaining of insurance or tend to increase the insurance rates on the Leased
Premises and/or the building of which they are a part without Lessor's prior
written approval. Notwithstanding anything to the contrary in this Lease, if
anything done, omitted to be done, or suffered to be done by Lessee, or
anything kept in, upon or about the Leased Premises by Lessee shall cause the
rate of fire insurance or other insurance on the building of which it is a
part to be increased beyond the minimum rate from time to time applicable
thereto, Lessor shall notify Lessee of such increase upon Lessor's receipt of
notice thereof, and Lessee shall pay the amount of such increase promptly
upon Lessor's written demand therefor. If Lessee installs any electrical
equipment that overloads the lines in the Leased Premises, Lessee shall at
its own expense make whatever changes are necessary to comply with the
requirements of the insurance underwriters and governmental authorities
having jurisdiction; and upon failure to do so, Lessor may so comply at the
sole and exclusive expense of Lessee, which expense shall be conclusively
deemed additional rent and due upon demand.
4. Lessee hereby indemnifies Lessor and agrees to save Lessor harmless
from and against any and all claims, actions, damages, liability and expense
in connection with loss of life personal injury and/or damage to property
arising from or out of an occurrence in, upon or at the Leased Premises. For
the purpose hereof, the Leased Premises shall include any service areas
adjoining the same and any loading area allocated to the use of Lessee. In
case Lessor shall be made a party to any litigation arising directly or
indirectly out of any such occurrence, then Lessee shall protect and hold
Lessor harmless and shall pay all costs, expense and reasonable attorney fees
incurred or paid by Lessor's insurance company in connection with
such litigation. PROVIDED ALWAYS that if Lessee provides Lessor with timely
written notice of a defect in the premises, which defect under the terms of
the lease is the responsibility of Lessor to repair or maintain, and the same
is not repaired or maintained by Lessor within a reasonable time after such
notice, then and only then the indemnity provided for in this subparagraph
will not apply and in such case only, Lessor indemnifies Lessee in like
manner. This shall not include common areas over which Lessee does not have
exclusive control, provided the loss is not caused by acts or inaction of
Lessee, its employees or any other person or entity over which Lessee has any
control.
5. Lessee hereby indemnifies Lessor and agrees to save Lessor harmless
from and against any and all claims, actions, damages, liability and expense
in connection with loss of life, personal injury and/or damage to property
arising from or out of Lessee's negligence upon or at the Leased Premises or
Industrial facility. For the purpose hereof, the Leased Premises shall
include any service areas adjoining the same and any loading area allocated
to the use of Lessee. In case Lessor shall be made a party to any litigation
arising directly or indirectly out of such occurrence, then Lessee shall
protect and hold Lessor harmless and shall pay all costs, expense and
reasonable attorney fees incurred or paid by Lessor's insurance company in
connection with such litigation. PROVIDED ALWAYS that if Lessee provides
Lessor with timely written notice of a defect in the Leased Premises, which
defect under the terms of the lease is the responsibility of Lessor to repair
or maintain, and the same is not repaired or maintained by Lessor within a
reasonable time after such notice, then the indemnity provided for in this
subparagraph will not apply and in such case, Lessor indemnifies Lessee in
like manner. This shall not include common areas over which Lessee does not
have exclusive control, provided the loss is not caused by acts or inaction
of Lessee, its employees or nay other person or entity over which Lessee has
any control.
6. Lessor hereby indemnifies Lessee and agrees to save Lessee harmless
from and against any and all claims, actions, damages, liability and expense
in connection with loss of life, personal injury and/or damage to property
arising from or out of Lessor's negligence upon or at the Leased Premises or
Industrial Facility. For the purpose hereof, the Leased Premises shall
include any service areas adjoining the same and any loading area allocated
to the use of Lessor. In case Lessee shall be made a party to any litigation
arising directly or indirectly out of any such occurrence, then Lessor shall
protect and hold Lessee harmless and shall pay all costs, expense and
reasonable attorney fees incurred or paid by Lessee in connection with such
litigation. PROVIDED ALWAYS that if Lessor provides Lessee with timely
written notice of a defect in the Leased Premises, which defect under the
terms of the lease is the responsibility of Lessee to repair or maintain, and
the same is not repaired or maintained by Lessee within a reasonable time
after such notice, then the indemnity provided for in this subparagraph will
not apply and in such case, Lessee indemnifies Lessor in like manner. This
shall not include common areas over which Lessor does hot have exclusive
control, provided the loss is not caused by acts or inaction of Lessor, its
employees or any other person or entity over which Lessor has any control.
7. Notwithstanding anything in this Lease to the contrary, neither
Lessor nor Lessee shall be liable to the other for loss arising out of damage
or destruction of the Leased Premises, the
Industrial Facility or other improvement, or personal property or contents
therein if such damage of destruction is caused by a peril included within a
standard form of fire insurance policy, with full extended coverage
endorsement added, as from time to time issued in Wisconsin, to the extent
that proceeds from such insurance are realized. Such absence of liability
shall exist whether or not the damage or destruction is caused by the
negligence of either Lessor or Lessee, or their respective officers,
employees, agents or customers. It is the intention and agreement of Lessor
and Lessee that the rents reserved by this Lease have been provided in
contemplation that each party shall carry such insurance policy, each with
respect to its own property as its own expense, and that each party shall
look to its insurer for reimbursement of any such loss, and further that the
insurer involved shall have no subrogation rights against the other party.
Each party shall advise its insurance company of this release and such policy
shall, if necessary, contain a waiver of any right of subrogation by the
insurer against the other party.
8. A copy of this Article XII shall be supplied to the insurance
company writing the insurance called for in this lease; and Lessee shall
obtain written assurance from such company that the policy(s) it has issued
complies with the terms of this Article XII.
9. Lessor shall provide proof of insurance to Lessee during term of
lease.
XIII. DESTRUCTION OF LEASED PREMISES
In the event the Leased Premises shall be partially or totally
destroyed by fire or other insured casualty as to become partially or totally
untenantable, the damage to the Leased Premises shall be promptly repaired by
Lessor, unless Lessor shall elect not to rebuild as hereinafter provided, and
a just and proportionate part of the fixed minimum rental shall be abated
until such repairs are substantially completed. In no event shall Lessor be
required to repair or replace Lessee's betterment and improvements or trade
fixtures, furnishings or equipment If more than Twenty-Five Percent (25%) of
the floor area of the Leased Premises or of the floor area of the Industrial
Facility shall be damaged or destroyed by fire or other casualty, then Lessor
may elect to either repair or rebuild the Leased Premises or the Industrial
Facility, as the case may be or to terminate this Lease by giving written
notice to Lessee of its election to so terminate, such notice to be given
within ninety (90) days after the occurrence of such damage or destruction.
If lessor is required or elects to repair or rebuild the Leased Premises as
herein provided, the work shall be initiated with reasonable dispatch and
diligently proceeded with to completion and Lessee shall repair or replace
its trade fixtures, furnishings and equipment in a manner and to at least a
condition equal to that prior to its damage or destruction. The rent shall
xxxxx during construction from the date of damage destruction to substantial
completion.
XIV. EMINENT DOMAIN
1. If the whole of the premises hereby leased shall be taken by any
public authority under the power of eminent domain, then the term of this
Lease shall cease as of the day possession shall be taken by such public
authority and the rent shall be paid up to that day with a proportionate
refund by Lessor of such rent as may have been paid in advance for a period
subsequent to the date of the taking.
2. If less than the whole but more than Twenty-Five Percent (25%) of
the Leased Premises or more than Fifty Percent (50%) of the common areas of
the Industrial Facility shall be taken under eminent domain, Lessee shall
have the right either to terminate this Lease and declare same null and void,
or subject to Lessor's right of termination as set forth in Paragraph 3 of
this Article, to continue in the possession of the remainder of the Leased
Premises, and shall notify Lessor in writing of Lessee's intention within
(10) days after such taking provided Lessor has given written notice to
Lessee within 10 days of having first learned or being notified of the
commencement of proceedings expected to result in such taking. In the event
Lessee elects to remain in possession, the rent and any other charges due
hereunder shall be reduced proportionately and all other terms provided
herein, shall continue in effect and Lessor shall, at its own cost and
expense, make all the necessary repairs or alterations to the basic building
as originally installed by lessor, so as to constitute the remaining Leased
Premises a complete architectural unit. If Twenty-Five Percent (25%) or less
of the Leased Premises shall be so taken, the Lease Term shall cease only on
the part so taken as of the day possession shall be taken by such public
authority and Lessee shall pay rent up to that day, with an appropriate
prorated refund by Lessor of such rent as may have been paid in advance for a
period subsequent to the date of the taking, and thereafter the fixed minimum
annual rental shall be reduced in proportion to the amount of the Leased
Premises taken. Lessor, following such a taking, shall with reasonable
dispatch, at its expense, make all necessary repairs or alteration to the
basic building, as originally constructed by Lessor, so as to constitute the
remaining Leased Premises a complete architectural unit.
3. If more than Twenty-Five Percent (25%) of the Leased Premises or the
building in which the Leased Premises are located or more than Fifty Percent
(50%) of the common area of the Industrial Facility shall be taken under
power of eminent domain, Lessor may, by written notice to Lessee delivered on
or before the date of surrendering possession to the public authority,
terminate this lease as of the date of such taking and rent shall
proportionately xxxxx, and provide Lessee with a refund for any prepaid rent.
4. All damages awarded for a taking under the power of eminent domain
of any part of the Industrial Facility shall belong to and be the sole
property of Lessor and Lessee shall have no claim for loss of its leasehold
estate or the value of the unexpired term hereof; provided, however, that
Lessee shall be entitled to any separate award made for depreciation or
damage to, and cost of removal of Lessee's equipment fixtures and other
property.
XV. ASSIGNMENT AND SUBLETTING
Lessee shall not assign or in any manner transfer this Lease or any estate
or interest therein without the prior written consent of Lessor, nor sublet
said premises or any part or parts thereof or permit the use or occupancy of
the Leased Premises or any part thereof by anyone other than Lessee without
like consent. Consent by Lessor to one or more assignment of this Lease or to
one more subletting of said Leased Premises shall not operate to exhaust
Lessor's rights
under this Article. In the event that Lessee, with or without the previous
consent of Lessor, does assign or in any manner transfer this Lease or any
estate or interest therein, Lessee shall in no way be released from any of
its obligations under this Lease. In the event that Lessor shall approve any
assignment, subletting or other transfer of Lessee's interest in this Lease,
the Lessee shall reimburse Lessor for Lessor's legal fees and expenses
incurred in connection with such approval and the drafting and preparation of
appropriate documentation effectuating the assignment, subletting or other
transfer in question. See subparagraph 18 of Article XXV.
XVI. OFF-SET STATEMENT AND SUBORDINATION
1. Lessee agrees, within ten (10) days after request therefor by
Lessor, to execute, in recordable form and deliver to Lessor a statement, in
writing, certifying (if such be the case) (a) that to Lessee's knowledge this
Lease is in full force and effect, (b) the date of commencement of the term
of this Lease, (c) that rent is paid currently without any off-set or defense
thereto, (d) the amount of rent, if any, paid in advance, (e) that to
Lessee's knowledge there are no uncured defaults by Lessor or, if such
defaults are claimed, stating the facts giving rise thereto, and (f) other
similar matters as may be requested by Lessor.
2. Lessee agrees that this Lease shall, at the request of the Lessor,
be subordinate to any mortgages or deeds of trust that may hereafter be
placed upon said premises by Lessor and to any and all advances to be made
thereunder and to the interest thereon and all renewals, replacements and
extensions thereof, provided that the mortgagee or trustee named in said
mortgages or trust deeds shall agree to recognize this Lease of Lessee in the
event of foreclosure provided Lessee is not in default and shall not
terminate or modify this lease.
3. Failure of the Lessee to execute any of the above instruments,
within ten (10) days upon written request so to do by Lessor, shall
constitute a breach of this Lease and the Lessor may, at its option, cancel
this Lease and terminate the Lessee's interest therein in addition to any
other rights and remedies lessor may have.
XVII. LESSEE'S PROPERTY
1. Lessee shall be responsible for and shall pay before delinquency all
municipal, county, state and federal taxes assessed during the term of this
Lease against any leasehold interest or personal property of any kind, owned
by or placed in, upon or about the Leased Premises by the Lessee.
2. Lessor shall not be responsible or liable to the Lessee for any loss
or damage that may be occasioned by or through the acts or omissions of
persons occupying adjoining premises or any part of the premises adjacent to
or connected with the premises hereby leased or any part of the building of
which the Leased Premises are a part, or for any loss or damage resulting to
the Lessee or its property from bursting, stoppage or leaking of water, gas,
sewer or steam pipes or for any damage, injury, or loss of property within
the Leased Premises from any cause whatsoever except as provided in Article
XII Para 6.
3. Lessee shall give immediate notice to Lessor in case of fire or
accidents in the Leased Premises or in the building of which the premises are
a part or of defects therein or in any fixtures or equipment.
XVIII. NOTICE
All notices and demands by either party to the other shall be given in
writing and sent by United States certified mail, postage prepaid, return
receipt requested and addressed.
To Lessor: The Intrepid Company
0000 Xxxxx Xxxxx Xx.
Xxxxxxx, XX 00000
To Lessee: Company 2000, Inc.
N19 X0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx
Either party may, upon prior notice to the other, specify a different
address for the giving of notice. After commencement of the term, all bills,
statements and other communications which Lessor may be required or desired
to render to Lessee shall either be delivered to the Leased Premises or sent
by United States mail addressed to Lessee at the Leased Premises.
XIX. ADDITIONAL COVENANTS OF LESSEE
1. Lessee shall not commit or suffer to be committed any waste upon the
Leased Premises or any nuisance or other act or thing which may disturb the
quiet enjoyment of any other lessee in the Industrial Facility.
2. Lessor or Lessor's agent shall have the right to enter the Leased
Premises at all reasonable times during business hours upon reasonable notice
to Lessee to examine the same, and to show them to prospective purchasers or
mortgagees of the Industrial Facility, and to make such repairs, alterations,
improvements or additions as Lessor may deem necessary or desirable, and
Lessor shall be allowed to take all material into and upon said premises that
may be required therefor without the same constituting an eviction of Lessee
in whole or in part, provided that there is no substantial interference with
Lessee's right of quiet enjoyment, and the rent reserved shall not xxxxx
while said repairs, alterations, improvements or additions are being made. It
is understood that Lessor will act in a reasonable manner in effecting such
repairs, etc., and if the same affect only Lessee, will discontinue the same
at Lessee's written request however, if failure to promptly effect such
repairs, etc. will have a deleterious effect on the building or other
tenants, then the same will continue in all events. During the six months
prior to the expiration of the term of this Lease or any renewal term, Lessor
may exhibit the premises to prospective tenants and place upon the premises
the usual notices "To Let" or "For Rent", which notices Lessee shall permit
to remain thereon without molestation.
XX. DEFAULTS OF LESSEE
1. If Lessee shall fail to pay the rental due hereunder within fifteen
(15) days after the same shall be due or if Lessee shall fail to perform any
of the other terms, conditions or covenants of this Lease to be performed or
observed by Lessee for more than ten (10) days after notice of such default
has been given to Lessee by the Lessor, or if Lessee or any guarantor of this
Lease shall be adjudged bankrupt or insolvent or shall make an assignment for
the benefit of creditors, or if a receiver or trustee of Lessee's property or
that of any guarantor of this Lease shall be appointed and such receiver or
trustee, as the case may be, shall not be discharged within thirty (30) days
after such appointment, or if an execution or attachment is levied against
Lessee's property, or that of any guarantor of this Lease, or if this Lease
shall by operation of law devolve upon or pass to any person or persons other
than the Lessee without Lessor's prior written consent then in any such case,
Lessor may, upon notice to Lessee, terminate this Lease and recover
possession of and re-enter the Leased Premises and may expel all persons and
remove all property therefrom without becoming liable to prosecution
therefor. In the event of any such default and the termination of this Lease,
Lessor shall be entitled to recover from Lessee all past due rent and other
charges equivalent to rent plus all other damages sustained by Lessor on
account of the breach of this Lease, including, but not limited to, the
expenses and attorney fees incurred by Lessor in re-entering and recovering
possession of the Leased Premises and for the cost of repairs, alterations
and brokerage and attorney fees connected with the reletting of the Leased
Premises, without affecting Lessee's liability for future rent and other
charges to accrue hereunder. As an alternative, at the election of Lessor,
the Lessor shall have the right by written notice given to the Lessee at any
time after Lessor recovers possession of the premises to declare this Lease
terminated and canceled, without any further rights or obligation on the part
of Lessor or Lessee (other than Lessee's obligation for rent and other
charges due and owing through the date of termination), so that Lessor may
relet the premises without any right on the part of the Lessee to any credit
or payment resulting from any reletting of the premises. In case of a default
under this Lease, Lessor may, in addition to terminating this Lease, or in
lieu thereof, pursue such other remedy or combination of remedies and recover
such other damages for breach of tenancy and/or contract as are available at
law or otherwise.
2. The rights and remedies of Lessor under this Lease shall be
cumulative and the exercise of any of them shall not be exclusive of any
other right or remedy provided by this Lease or allowed by law, and the
waiver by lessor of any breach of any covenant of this Lease shall be limited
to the particular instance and shall not operate or be deemed to waive any
future breach of that or any other covenant or any other occasion, nor
operate as a waiver of Lessor's right to enforce the payment of subsequent
installments of rent or any of Lessor's rights under this lease by such
remedies as may be appropriate.
3. No extension of time, forbearance, neglect or waiver on the part of
Lessor with respect to any one or more of the covenants, terms or conditions
of this Lease, shall be construed as a waiver of any of the other covenants,
terms or conditions of this Lease, or as an estoppel against Lessor, nor
shall any extension of time, forbearance or waivers on the part of Lessor in
any one or more instances or particulars be construed to be a waiver or
estoppel with respect to any other instance or particular covered by this
Lease. After the service of a notice or the commencement of a suit or after
final judgement for possession of the premises, Lessor may
receive and collect any rent due and apply the same as and for use and
occupancy and the payment and receipt thereof shall not waive or affect any
such notice, suit or judgment.
4. Lessor shall have the right at any time, after ten (10) days notice
to Lessee (or without notice in case of emergency or in case any fine,
penalty, interest or cost may otherwise be imposed or incurred) to make any
payment or perform any act required of Lessee under any provision in this
Lease, and in exercising such right, to incur necessary and incidental costs
and expenses, including reasonable counsel fees. Nothing herein shall imply
any obligation on the part of Lessor to make any payment or perform any act
required of the Lessee, and this exercise of the right to so do shall not
constitute a release of any obligation or a waiver of any default. All
payments made and all costs and expenses incurred in connection with any
exercise of such right shall be reimbursed to Lessor by Lessee within five
(5) days after such payment, together with interest at the rate of Eighteen
Percent (18%) per annum (the "Default Interest Rate"). In the event of
non-payment thereof, Lessor shall have the rights and remedies it would have
hereunder or by law in the case of non-payment of rent.
5. Lessee shall pay all costs, expenses and reasonable attorney fees
that may be incurred or paid by Lessor in enforcing the covenants and
agreements of this Lease.
XXI. SURRENDER
On the last day of the term demised, or any extension thereof, or on
the sooner termination thereof, Lessee shall peaceably and quietly surrender
the Leased Premises in good order, condition and repair. All alterations,
additions, improvements and fixtures (other than trade fixtures, signs and
carpeting installed at Lessee's expense, all of which may be removed by
Lessee), which may be made or installed by either Lessor or Lessee upon the
Leased Premises, and all hard surface bonded or adhesively affixed flooring
shall be the property of Lessor and shall remain upon and be surrendered with
the Leased Premises as a part thereof without disturbance, molestation or
injury at the termination of the term of this Lease, whether by the lapse of
time or otherwise, all without compensation or credit to Lessee; provided,
however, if prior to said termination, or within 15 days thereafter, Lessor
so directs by written notice to Lessee, Lessee shall promptly remove the
additions, improvements, fixtures and installations which were placed in the
Leased Premises by Lessee and which are designated in said notice, and in
default thereof, Lessor may effect said removals and Lessee will pay to
Lessor, on demand, the cost thereof, with interest at the Default Interest
Rate from the date of payment by Lessor of the costs of such removal by
Lessor. On or before such date, Lessee shall also remove all of its other
property from the Leased Premises and Property not so removed shall be deemed
abandoned by Lessee, subject to Lessor's right to cause Lessee to remove the
same pursuant to the preceding sentence. If the Leased Premises be not
surrendered at the end of the term, Lessee shall indemnify Lessor against
loss or liability resulting from delay by Lessee in so surrendering the
premises, including without limitation, any claim made by any succeeding
lessee founded on such delay. ANY DELAY shall cause the provisions of Article
XX, Para 1 and 2 to apply without limiting any other remedies of Lessor.
Lessee shall also surrender all keys for the Leased Premises and shall inform
Lessor of combinations on any locks, safes and vaults, if any, on the Leased
Premises.
XXII. QUIET ENJOYMENT
If and so long as Lessee pays the rent reserved by this Lease and
performs and observes all of the covenants and provisions hereof, Lessee
shall quietly enjoy the Leased Premises, subject, however, to the terms of
this Lease.
XXIII. HAZARDOUS MATERIAL CONTROL
1. Lessee warrants and represents that no process operations shall be
conducted at the Leased Premises which would release corrosive materials into
the atmosphere which could damage or otherwise adversely affect the heating,
ventilating and air-conditioning equipment and facilities servicing the same.
All such use of the Leased Premises shall be in full compliance with all
laws, ordinances, rules and regulations of all public authorities having
jurisdiction over the premises and no part of the Leased premises shall be
occupied or used for any purpose or in any manner so that, in accordance with
any requirements of law or any public authority, Lessor shall be obligated to
make any addition or alteration to or in the building. Lessee shall perform
no act or activity in connection with its use of the Leased Premises which
shall be a nuisance or, in the opinion of Lessor reasonably exercised,
adversely affect the use and enjoyment of the other occupants of the
Industrial Facility, including, but not limited to, the creation and/or
emission of noxious fumes or odors or noise at unreasonably high sound levels.
2. Lessor shall, at its own cost and expense, comply promptly and
conform with all present and future laws, ordinances, rules, requirements and
regulations of the federal, state, county and city governments and of any and
all other governmental authorities or agencies affecting the Leased Premises
or its use, and Lessee shall, at its own cost and expense, make all
additions, alterations or changes to the Leased Premises or any portion
thereof as may be required by any governmental authority or agency and shall
comply promptly with all present and future orders, rules, rulings,
regulations and directives and of any governmental authority or agency.
Moreover, in such case Lessee shall promptly notify Lessor of any such
changes so required prior to the commencement thereof. Notwithstanding
anything to the contrary contained herein, lessor shall have the obligation
to make any such additions, alterations or changes to the structure of the
Leased Premises unless such additions, alterations or changes are required
solely as a result of the particular use and occupancy of the Leased Premises
by Lessee.
3. Without in any way limiting the foregoing provisions, Lessee
specifically agrees, at Lessee's expense, to comply with all law, rules,
orders, ordinances, directions, regulations and requirements of federal,
state, county and municipal authorities pertaining to air and water equality,
Hazardous Materials (as hereinafter defined), waste disposal, air emissions
and other environmental matters, as well as all zoning and other land use
matters. Lessee shall not cause or permit any Hazardous Material to be
brought upon, kept, or used in or about the Leased Premises by Lessee its
agents, employees, contractors or invitees without the prior written consent
of Lessor, which Lessor shall not unreasonably withhold as long as Lessee
demonstrates to Lessor's reasonable satisfaction that such Hazardous Material
is necessary or
useful to Lessee's business and will be used, kept and stored in a manner
that complies with all laws regulating any such Hazardous Material so brought
upon or used or kept in or about the Leased Premises. If Lessee breaches the
obligations stated in the preceding sentence, or if the presence of Hazardous
Material on the Leased Premises caused or permitted by Lessee results in
contamination of the Leased Premises, or if contamination of the Leased
Premises by Hazardous Material otherwise occurs for which Lessee is legally
liable or responsible, then Lessee shall indemnify, defend and hold Lessor
harmless from and against any and all claims, judgements, damages, penalties,
fines, costs, liabilities or losses (including without limitation, diminution
in value of the Leased Premises or the Industrial Facility, damages for the
loss or restriction on use of rentable or usable space or of any amenity of
the Leased Premises or the Industrial Facility, damages arising from any
adverse impact on marketing of space, and sums paid in settlement of claims,
and attorney's fees, consultant fees and expert fees which are reasonable and
necessary under the circumstances) which arise during or after the term as a
result of such contamination. This indemnification of Lessor by Lessee
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any clean-up, remedial, removal or
restoration work required by any federal, state or local governmental agency
or political subdivision because of Hazardous Material present in the soil or
groundwater on or under the foregoing. If the presence of any Hazardous
Material on the Leased Premises or the Industrial Facility caused or
permitted by Lessee results in any contamination of the Leased Premises or
the Industrial Facility, Lessee shall promptly take all actions at its sole
expense as are necessary to return the Leased Premises and the industrial
Facility to the condition existing prior to the introduction of any such
Hazardous material; provided that Lessor's approval of such action shall be
first obtained, which approval shall not be unreasonably withheld so long as
such actions would not potentially have any material adverse long-term or
short term effect on the Leased Premises or the Industrial Facility. The
foregoing indemnity shall survive the expiration of the Lease or earlier
termination of thereof.
4. As used herein, "Hazardous Material" means any hazardous or toxic
substance, material or waste, including, but not limited to, those
substances, materials and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49CFR 172.101) or by the
Environmental Protection Agency as hazardous substances (40 CFR Part 302) and
amendments thereto, or such substances, materials and wastes that are or
become regulated by the Wisconsin Department of Natural Resources or any
applicable local, state or federal law.
5. As of the Effective Date, and on each March 1st of each year
thereafter (each such date being hereinafter called a "Disclosure Date"),
including February 1 of the year after the termination of this Lease, Lessee
shall disclose to Lessor the names and amounts of all Hazardous Materials, or
any combination thereof, which were stored, used or disposed of on or about
the Leased Premises. Lessor and its agents shall have the right, but not the
duty, to inspect the Leased Premises at any time upon three (3) days written
notice (which notice shall state the reason and grounds for any such
inspection) to determine whether Lessee is complying with the terms of the
Lease and any extension and modification thereof. If Lessee is not in
compliance with such provisions, Lessor shall have the right to immediately
enter upon the Leased Premises and remedy any contamination caused by
Lessee's failure to comply, notwithstanding any other provision of this
Lease. Lessor shall use its best efforts to minimize
any interference with Lessee's business but shall not be liable for any
interference caused thereby. Any default of these provisions shall be
conclusively deemed to be material default enabling Lessor to exercise any of
the remedies set forth elsewhere in this Lease, including, but not limited
to, remedies available to Lessor by reason of nonpayment of rent.
6. Notwithstanding any provision hereof, Lessee shall not be
responsible for matters caused solely by the negligent or intentional act of
Lessor or Lessor's agents.
7. Except as expressly provided herein, all of the terms, covenants and
provisions of the Lease shall remain in full force and effect.
XXIV. HOLDING OVER
In the event Lessee remains in possession of the Leased Premises after
the expiration of this Lease, or any extension thereof, and without the
execution of new lease, it shall be deemed to be occupying said premises as a
lessee from month-to month, subject to all of the conditions, provisions and
obligations of this Lease in so far as the same are applicable to a
month-month tenancy.
XXV. MISCELLANEOUS
1. One or more waivers of any covenant or condition by Lessor shall not
be construed as a waiver of a subsequent breach of the same covenant or
condition, and the consent or approval by Lessor to or of any act by Lessee
requiring Lessor's consent or approval shall not be deemed to render
unnecessary Lessor's consent or approval to or of any subsequent similar act
by Lessee. No breach of a covenant or condition of this Lease shall be deemed
to have been waived by Lessor, unless such waiver be in writing signed by
Lessor. These provisions shall be deemed cumulative to those contained in
Article XX.
2. This Lease and the exhibits, if any, attached hereto and forming a
part hereof, set forth all the covenants, promises, agreements, conditions,
and understandings between Lessor and Lessee concerning the Leased Premises
and there are no covenants, promises, agreements, conditions or
understandings, either oral or written, between them other than are herein
set forth. No alteration, amendment, change or addition to this Lease shall
be binding upon Lessor or Lessee unless reduced to writing and signed by each
party.
3. Whenever herein the singular number is used, the same shall include
the plural, and the masculine gender shall include the feminine and neuter
genders.
4. The captions and article numbers appearing in this Lease are
inserted only as a matter of convenience and in no way define, Limit,
construe or describe the scope or intent of such sections or articles of this
Lease nor in any way affect this Lease.
5. "Floor Area" as used in this Lease means, with respect to the Leased
Premises and with respect to each building space area separately leased, the
number of square feet of floor space on all floor levels in the Leased
Premises, measured from the exterior faces of exterior
walls, corridors and the center line of party walls. No deduction or
exclusion from floor area shall be made by reason of columns or any other
interior construction or equipment.
6. Any amount due from Lessee to Lessor hereunder which is not paid
when due shall bear interest at the Default Interest Rate, of 18%, (as
defined in Article XX. Paragraph 4) from the date due until paid, unless
otherwise specifically provided herein, but the payment of such interest
shall not excuse or cure any default by Lessee under this Lease.
7. The covenant to pay rent is hereby declared to be an independent
covenant on the part of Lessee to be kept and performed, and no offset
thereto shall be permitted or allowed except as otherwise provided herein.
8. In case of an emergency if Lessee shall not be present to permit
entry, Lessor or its representatives may enter the same forcibly without
rendering Lessor or its representatives liable therefor or affecting Lessee's
obligations under this Lease.
9. No payment by Lessee or receipt by Lessor of a lesser amount than
the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent then due, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Lessor shall accept such check
or payment without prejudice to Lessor's right to recover the balance of such
rent or pursue any other remedy in this lease provided.
10. The submission of this Lease for examination does not constitute a
reservation of or option for the Leased Premises, and this Lease shall become
effective as a Lease only upon execution and delivery thereof by Lessor and
Lessee.
11. This Lease shall be governed by, and construed in accordance with
the laws of the State of Wisconsin. If any provision of this Lease or the
application thereof to any person or circumstances shall to any extent, be
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby and each provision of the Lease shall be valid and enforceable to the
fullest extent permitted by the law.
12. Lessee shall, in the event of the sale or assignment of Lessor's
interest in the building of which the Leased Premises form a part, or in the
event of any proceedings brought for the foreclosure thereof, or in the event
of exercise of the power of sale under any mortgage made by Lessor covering
the Leased Premises, attorn to the purchaser and recognize such purchaser as
Lessor under this Lease.
13. In the event of any sale or other transfer of the Industrial
Facility or this Lease, or a lease of the entire Industrial Facility, the
named Lessor shall be entirely relieved of all obligations hereunder from and
after the date of the transfer; provided, however, that the transferee shall
assume the same.
14. In the event Lessor desires to obtain mortgage financing and
Lessor's mortgagee or
mortgagees request modifications or amendments to this Lease, then Lessee
agrees to execute such modifications or amendments as required.
Notwithstanding the foregoing, Lessee shall not be required to execute any
modifications or amendments hereto which shall modify the provisions of this
lease relating to the amount of rent or other charges reserved, the size and
location of the Leased Premises, the duration of the term of this Lease or
which otherwise materially adversely affect Lessee's and or Lessor's rights
and obligations hereunder. Lessee further agrees to otherwise cooperate with
Lessor's efforts in obtaining said mortgage financing.
15. If Lessor shall fail to perform any covenant, term or condition of
this Lease upon Lessor's part to be performed, and if as consequence of such
default, Lessee shall recover a money judgment against Lessor, such judgement
shall be satisfied only out of the proceeds of sale received upon execution
of such judgment and levied thereon against the right, title, and interest of
Lessor in the Industrial Facility Site and out of rents or other income from
such property receivable by Lessor, or out of the consideration received by
Lessor from the sale or other disposition of all or any part of Lessor's
right, title and interest in the Industrial Facility Site, and neither Lessor
nor any of its partners shall be liable for any deficiency.
16. Lessee represents and warrants that the execution and delivery of
this Lease has been duly authorized by the board of directors of Lessee and
the officers of Lessee, who are executing and attesting to this Lease have
full power, authority and right to do so, and the execution of this Lease by
such officers is sufficient and legally binding on Lessee without the joinder
or approval of any other party.
17. Except as expressly otherwise provided, all of the terms covenants
and conditions hereof shall be binding upon and inure to the benefit of the
heirs, personal representatives, successors in interest and assigns of the
parties hereto.
18. Whenever consent or approval of Lessor is required for any act of
Lessee herein, the same shall not be unreasonably withheld by Lessor,
EXCEPTING as to signs, Article XI and subleasing by Lessee, where the
subjective decision of the Lessor to withhold such consent shall be deemed
conclusive. See Article XV.
19. This lease has been executed in four, (4) counterparts or copies,
each of which shall be deemed an original.
20. Unless required by local government or fire authorities to have and
make such keys available, Lessor will not maintain possession of any keys to
Lessee's premises. Should emergency entrance to Lessee's premises become
necessary, and should the lack of keys require that the premises be damaged
in order to gain entry, Lessee shall bear all costs of repairs resulting
therefrom.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease by their
duly authorized partner/officers as of the date written above.
WITNESS LESSOR: THE INTREPID COMPANY
/s/ Xxxxxxx Xxxxxx By:/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, General Partner
LESSEE: COMPANY 2000, INC.
By:/s/ Xxxxx X. Xxxxx its President
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Xxxxx X. Xxxxx
Attest:
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its
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