EXHIBIT 10.9
LEASE
This lease ("Lease") is entered into as of November 15, 1996 between
Western Atlas Inc., a Delaware corporation ("Landlord"), with offices at
000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000, and HK Systems, Inc., a
Wisconsin corporation ("Tenant"), with offices located at 0000 Xxxxx Xxxxx
Xxxxx, Xxx Xxxxxx, Xxxxxxxxx 00000.
By this Lease, Landlord herewith leases to Tenant and Tenant hires
and takes from Landlord the improvements, including a building containing
approximately 157,144 square feet (the "Building") and land located at
0000 Xxxxxx Xxxx, Xxxxxx, XX 00000 and further described and outlined in
yellow on Exhibit A attached hereto and made a part hereof (collectively,
the Building and land shall be referred to as the "Premises"). In
addition to the Premises Tenant is granted a twenty foot wide easement
upon the property South of and adjacent to the Southerly boundary of the
Premises for ingress and egress; and the Premises shall be subject to a
twenty foot easement North of and adjacent to the Southerly boundary of
the Premises for egress and ingress to the property South of the Premises.
SECTION 1: TERM
SECTION 1.01. The term of this Lease ("Lease Term") shall be for two
hundred forty (240) months commencing on November 15, 1996 and ending on
October 31, 2016.
SECTION 2: RENT
SECTION 2.01. During the Lease Term the fixed rent ("Fixed Rent")
for the Premises payable to Landlord shall be as follows:
Lease Annual Rent Total Monthly
Year Per Square Foot Annual Rent Installment
1 $3.25 $510,718.00 $42,560.00
2 $3.38 $531,146.75 $44,262.00
3 $3.50 $550,004.00 $45,834.00
4-20 $3.50 subject to CPI adjustments pursuant to
Section 2.04 below
Monthly rent installments shall commence on November 15, 1996, and shall
thereafter be due and payable on the first day of each month thereafter
through October 31, 2016. Fixed Rent for partial months at the beginning
or the end of the Lease Term shall be adjusted pro rata on a per diem
basis.
SECTION 2.02. Tenant shall pay and discharge as additional rent
("Additional Rent"), all other amounts, liabilities and obligations which
Tenant assumes or agrees to pay or discharge pursuant to this Lease. In
the event of any failure of Tenant to pay or discharge Additional Rent
within applicable grace periods, Landlord shall have all rights and
remedies provided herein or by law in the case of nonpayment of any Fixed
Rent.
SECTION 2.03. Tenant hereby acknowledges that late payment by Tenant
to Landlord of Fixed Rent and/or Additional Rent will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will
be extremely difficult or impractical to ascertain. Such costs include,
but are not limited to, processing and accounting charges, lost interest
and late charges which may be imposed on Landlord by the terms of any
mortgage or trust deed covering the Premises. Accordingly, if any
installment of Fixed Rent and/or Additional Rent from Tenant is received
by Landlord or Landlord's designee within five (5) days after such amount
shall be due and within applicable grace periods, Tenant shall pay to
Landlord a late charge equal to the lesser of seven percent (7%) of such
overdue amount or the maximum permitted by law. The parties hereby agree
that such late charge represents a fair and reasonable estimate of the
costs Landlord will incur by reason of late payment by Tenant. Acceptance
of such late charge by Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder.
SECTION 2.04. The rent described in Section 2.01 hereof shall be
adjusted commencing January 1, 2000 and continuing thereafter on the first
day of January of each year during the Term of this Lease or any extension
thereof rent shall be subject to increase at the same percentage of
increase in the Consumer Price Index (all items) for the immediate
preceding calendar year published by the U.S. Department of Labor, Bureau
of Labor Statistics. If the index is changed the index shall be converted
in accordance with the conversion factor published by the U.S. Department
of Labor, Bureau of Labor Statistics. If the index is discontinued during
the Term, such other government index or computation with which it is
replaced shall be used in order to obtain substantially the same result as
would have been obtained had the index not been discontinued. In no event
shall rent decrease.
SECTION 3: QUIET ENJOYMENT
SECTION 3.01. Landlord warrants to Tenant that it is the fee owner
of the Property containing Premises and has the authority to grant Tenant
the conditional right of quiet enjoyment in Section 3.02 hereof.
SECTION 3.02. If Tenant shall keep all the covenants and agreements
required by it to be kept by this Lease within applicable grace periods,
neither Landlord nor anyone claiming through Landlord will interfere with
the peaceful and quiet occupation and enjoyment of the Premises by Tenant.
SECTION 4: USE OF THE PREMISES
SECTION 4.01. Tenant shall use the Premises solely for any lawful
purpose.
SECTION 4.02. Tenant will not permit any unlawful occupation or
business to be conducted on the Premises, nor will Tenant permit anything
to be done on the Premises which would violate any certificate of
occupancy or violate any zoning ordinance affecting the same, cause
structural injury to the improvements on the Premises, or constitute a
public or private nuisance. Tenant shall not be responsible for any
violations occurring on or against the Premises which commenced prior to
the date of this Lease.
SECTION 5: NET LEASE
SECTION 5.01. This Lease is a net Lease, and all sums payable under
this Lease to or on behalf of Landlord shall be paid without set-off or
deduction, except as otherwise set forth in this Lease. The Fixed Rent
and Additional Rent payable hereunder shall be net to Landlord so that
this Lease shall yield to Landlord the rentals specified during the Lease
Term, and that all costs, expenses and obligations of every kind and
nature whatsoever relating to the Premises shall be paid by Tenant, except
as otherwise set forth in this Lease.
SECTION 5.02. Except as otherwise expressly provided herein, this
Lease shall not terminate, nor shall Tenant have any right to terminate
this Lease or be entitled to the abatement of any rent or any reduction
thereof. The obligations of Tenant are separate and independent covenants.
The Fixed Rent and Additional Rent hereunder shall continue to be payable
in all events and the obligations of Tenant hereunder shall continue
unaffected, unless the requirement to pay or perform the same shall be
terminated pursuant to an express provision of this Lease.
SECTION 6: PAYMENT OF TAXES, ASSESSMENTS AND OTHER CHARGES
SECTION 6.01. Tenant will pay to the persons charged with the
collection thereof prior to the date that the same are due but before any
penalty or interest is imposed thereon because of nonpayment, all taxes or
portions thereof which are imposed and accrue, all ad valorem real
property assessments (including assessments for benefits from public
improvements), levies, costs, penalties and charges, (all the foregoing
being termed "Impositions"), which, during the Term of this Lease, are
levied, assessed, or imposed and accrue upon the Premises, the use or
occupation thereof, or improvements thereon, additions or alterations
thereto, the personal property thereof, or upon the Fixed Rent, the
Additional Rent or the leasehold estate hereby created. So long as the
Premises are assessed as part of a larger tax parcel Landlord and Tenant
shall in good faith equitably apportion the total assessments of land and
improvements proportionately and Tenant's taxes shall be the Premises
proportionate share of taxes applicable to the entire tax parcel. At such
time as the Premises may become a separate tax parcel Tenant's taxes shall
be all taxes assessed upon the Premises. Landlord shall promptly forward
the applicable tax bills to Tenant upon Landlord's receipt thereof. If
during any Term of this Lease the methods of taxation shall be altered as
to cause the Impositions which are now payable by Tenant under this
Section 6.01 to be imposed on the rents received from the Premises imposed
upon Landlord, then all such Impositions shall be discharged by Tenant.
SECTION 6.02. Any Imposition which may be payable in installments
may be paid in that manner if paid by the date fixed for the payment, with
Tenant only responsible for such installments or portions of such
assessment which fall due during the Lease Term.
SECTION 6.03. If Tenant in good faith desires to contest any
Imposition, Tenant shall notify Landlord of its intention to do so and may
then defer such payment, provided that prior to the date such payment is
due and payable such security as may be requested by Landlord based on
Tenant's then current net worth shall be furnished by Tenant to ensure
such payment, and to prevent any sale or forfeiture of the Premises by
reason of such deferred payment. During any such contest Tenant will
prevent any divesting of Landlord's interest in the Premises by reason of
such contest. Tenant agrees to promptly prosecute such contest to a final
conclusion; to save Landlord harmless from and against all judgments and
costs (including all attorneys' fees and expenses) in connection
therewith; and to promptly, after the final determination of such contest,
fully discharge the amounts which are determined to be payable therein,
together with all penalties, fines, interest, costs and expenses resulting
therefrom. Landlord hereby authorizes Tenant to engage in any such contest
in the name of Landlord, and Landlord agrees to cooperate with Tenant, at
Tenant's sole cost and expense, in any such contest.
SECTION 7: LIENS AND ENCUMBRANCES
SECTION 7.01. Tenant will not create or permit to be created, and
will discharge or bond at its sole cost and expense, all liens (including
the liens of mechanics, laborers or materialmen), encumbrances and other
charges upon the Premises, or upon the rents payable hereunder, or upon
Tenant's leasehold interest in the Premises (other than permitted by
Section 7.03 hereof), except such liens, encumbrances or charges placed
upon the Premises by the act of Landlord.
SECTION 7.02. If any such lien, encumbrance or charge is filed or
asserted against the Premises, upon the Fixed Rent, or upon Tenant's
leasehold interest, Tenant shall cause the same to be discharged or bonded
within fifteen (15) days after actual notice thereof.
SECTION 7.03. The Tenant may mortgage or otherwise encumber its
estate created by this Lease but shall not encumber the rent and the
Premises and any such encumbrance shall be subordinate to any mortgage on
the property containing the Premises whether existing now or in the
future.
SECTION 7.04. Tenant may, in good faith by appropriate legal
proceedings, contest any claimed lien or encumbrance. Such contest shall
be made in the manner and subject to all the terms and conditions set
forth in Section 6 hereof.
SECTION 8: ASSIGNMENT AND SUBLETTING
SECTION 8.01. Tenant may assign this Lease to an affiliate or
subsidiary without Landlords prior consent and Tenant shall remain bound
by the terms of the Lease. Other than to an affiliate or subsidiary this
Lease may only be assigned or the Premises sublet by Tenant with
Landlord's prior written consent which shall not be unreasonably withheld.
Any assignment, subletting or transfer other than as permitted in Section
7.03 (collectively, a "Transfer") made by Tenant in violation of this
Section 8 shall be voidable at the sole option of Landlord. As a condition
of Landlord's consent to any assignment or subletting by Tenant, Tenant
shall continue to be bound by all the terms and conditions of this Lease.
SECTION 8.02. For purposes of this Lease, a Transfer shall include
any assignment by Tenant to a party other than a subsidiary or affiliate
of Tenant; any sale or transfer of most or all of the assets of Tenant at
the Premises to a party other than a subsidiary or affiliate of Tenant;
the occupancy of the Premises by any entity other than Tenant or a
subsidiary or affiliate of Tenant; and/or any other transfer, sale or
disposition by Tenant. In the event Tenant assigns this Lease or
subleases the Premises to a subsidiary or affiliate of Tenant, Tenant
shall provide written notice thereof to Landlord prior to the effective
date of such assignment or sublease and, in the case of an assignment,
Landlord, Tenant and the assignee shall execute an assignment document in
substantially the form required under Section 8.04(ii) hereof. An
affiliate of Tenant includes a successor, merger or the intra-corporate or
other restructuring of Tenant so long as either: the financial standing
and condition of the surviving entity is equal to or greater than that of
Tenant, or the predecessor Tenant is still in existence and its financial
standing and condition are not materially lessened.
SECTION 8.03. (i) In the event that, at any time or from time prior
to or during the Term, Tenant desires to Transfer this Lease in whole or
in part, whether by operation of law or otherwise, Tenant shall submit to
Landlord for its consideration (a) in writing, the name and address of the
proposed subtenant or assignee, a reasonably detailed statement of the
proposed subtenant's or assignee's business and reasonably detailed
financial references and information concerning the financial condition of
the proposed subtenant or assignee, and (b) if a subletting a description
of the area of the Premises to be sublet. Tenant agrees to pay Landlord,
as Additional Rent, all costs incurred by Landlord in connection with any
actual or proposed Transfer, including, without limitation, the reasonable
costs of making investigations as to the acceptability of a proposed
subtenant or assignee and reasonable legal costs incurred in connection
with any requested consent.
(ii) Landlord's consent to an assignment of this Lease shall be
effective upon the execution by Tenant, the assignee, and Landlord of an
assignment document in form reasonably acceptable to the Landlord in
which the assignee shall agree to assume, observe, perform, and be bound
by, all of Tenant's obligations under this Lease and Tenant shall agree to
remain primarily liable for such obligations.
Any given consent by Landlord to a subletting of all or a portion of
the Premises shall be deemed to have been given only upon the delivery by
Landlord to Tenant of a consent document prepared and executed by Landlord
expressly consenting to such subletting.
SECTION 9: INSURANCE
SECTION 9.01. All insurance provided for in this Section 9 shall be
effected by Tenant, at its sole cost and expense, under policies issued by
financial responsible insurers licensed to do business in Kentucky rated
at least B+ 10 or equivalent rating, as set forth in the most current
issue of "Best Insurance Guide."
SECTION 9.02. Tenant shall keep the Premises and the personalty,
equipment, fixtures, trade fixtures and machinery therein insured against
loss by fire, lightning, windstorm, hail, explosion, aircraft, smoke
damage, vehicle damage and such other risks as are or shall customarily be
insured against with respect to property that is similar to the Premises,
including rent loss insurance, in amounts sufficient to prevent Tenant or
Landlord from becoming a coinsurer of any loss, but in no event not less
than 100% of the full insurable value of the Premises. "Full insurable
value" means actual replacement value.
SECTION 9.03. Tenant shall maintain sprinkler leakage insurance in
amounts sufficient to prevent Landlord or Tenant from being a coinsurer of
any loss.
SECTION 9.04. Tenant shall maintain boiler and pressure vessel
(including pressure pipes) explosion insurance in an amount at least equal
to $5,000,000.00 with respect to all boilers, pressure vessels and
pressure pipes located on the Premises under a policy which shall not
contain any provision making Landlord or Tenant a coinsurer of any loss.
SECTION 9.05. Tenant shall maintain general public liability
insurance against claims for bodily injury, death or property damage
occurring on, in or about the Premises and the adjoining streets,
sidewalks and passageways, such insurance to afford protection of not less
than $2,000,000.00 with respect to bodily injury or death to any one
person, not less than $5,000,000.00 with respect to any one accident, and
not less than $5,000,000.00 with respect to property damage. Policies for
such insurance shall be for the mutual benefit of Landlord and Tenant.
SECTION 9.06. All policies of insurance required by this Section 9
shall insure Landlord and Tenant as their respective interests may appear,
and certificates of insurance shall be filed with Landlord. All policies
shall contain an undertaking that such policies shall not be canceled or
have their coverage materially altered without thirty (30) days prior
written notice to Landlord. At least thirty (30) days prior to the
expiration dates of the policies, renewal certificates of insurance from
the insurers shall be deposited with the Landlord.
SECTION 9.07. If the Premises is encumbered by a mortgage, indenture
or deed of trust ("Mortgage"), every such insurance policy (other than
liability insurance policies) shall bear a standard first mortgage
endorsement in favor of the mortgagee of Landlord's interest in the
Premises, or the trustee under a mortgage or deed of trust of such
interest (such mortgagee or trustee being referred to herein as a
"Mortgagee"), and any loss under such policy shall be made payable to the
Mortgagee. Any recoveries under any such policy shall be applied by the
Mortgagee as provided in any such mortgage. Every such policy carried by
Landlord or Tenant respecting casualty losses shall contain an agreement
by the insurer that it waives all rights of subrogation against Tenant and
Landlord, as the case may be; and that any loss thereunder shall be
payable despite any act of negligence of Tenant or Landlord. Each party
hereto waives any claim which arises in its favor against the other party
during the Lease Term for any loss or damage to any of its property which
loss or damage is covered by valid and collectible fire and extended
coverage insurance policies, to the extent that such loss or damage is
recovered under said insurance policies. Said waivers shall be in
addition to, and not in limitation or derogation of, any other waiver or
release contained in this Lease with respect to any loss or damage to
property of the parties hereto. Inasmuch as the above mutual waivers will
preclude the assignment of any aforesaid claim by way of subrogation (or
otherwise) to any insurance company (or any other person), each party
hereto hereby agrees immediately to give to each insurance company which
has issued to it policies of fire and extended coverage insurance written
notice of the terms of said mutual waivers, and to have said insurance
policies properly endorsed, if necessary, to prevent the invalidation of
said insurance coverage by reason of said waivers.
SECTION 9.08. Landlord shall not be required to prosecute any claim
or contest any insurance claim settlement. In such event, Tenant may
prosecute such claim or contest such settlement in the name of Landlord,
Tenant or both; and Landlord will join therein provided that Tenant shall
bear all costs, liabilities and expenses in connection with such
prosecution or contest.
SECTION 10: INDEMNIFICATION
SECTION 10.01. Tenant shall indemnify and hold Landlord harmless
from and against any and all claims arising from Tenant's use of the
Premises or from the conduct of Tenant's business or from any activity,
work or things done in or about the Premises or, suffered or permitted by
Tenant in or about the Premises or elsewhere (except if caused by
negligence or willful act of Landlord), and shall further indemnify and
hold Landlord harmless from and against any and all claims arising from
any breach or default in the performance of any obligation on Tenant's
part to be performed under the terms of this Lease, or arising from
negligence of Tenant, or any of Tenant's agents, contractors, or
employees, and from and against all costs, attorneys' fees, experts' fees,
expenses and liabilities incurred in the defense of any such claim or any
action or proceeding brought thereon; and in case any action or proceeding
be brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall defend the same at Tenant's expense by counsel
satisfactory to Landlord. Tenant, as a material part of the consideration
hereunder to Landlord, hereby assumes all risk of damage to property or
injury to persons in, upon or about the Premises arising from any cause
(except negligence or willful act of Landlord and other matters that are
Landlord's responsibility under this Lease), and Tenant hereby waives all
claims in respect thereof against Landlord.
SECTION 10.02. Notwithstanding anything to the contrary in this
Section 10 Tenant does not indemnify Landlord against any claim for acts,
conditions or matters occurring or arising prior to the date of this Lease
and for any acts or negligence of Landlord.
SECTION 11: LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
SECTION 11.01. If Tenant fails to pay any Imposition pursuant to
Section 6, any Additional Rent, including but not limited to the payment
of or to make any other payment or perform any act on its part to be made
or performed as provided in this Lease, Landlord may, without notice to
Tenant and without releasing Tenant from any obligation in this Lease, pay
any such Imposition, effect any such insurance coverage and pay premiums
therefor, and made any such other payment or perform any such other act of
Tenant in this Lease. In exercising such rights, Landlord may pay all
necessary and incidental costs and expenses, including attorneys' fees.
All sums paid by Landlord pursuant to this Section 11, together with
interest at the lesser of the maximum rate permitted by law or 2% over the
prime rate of Xxxxx Fargo Bank, NA, San Francisco, California from the
date of such payment, shall be repaid by Tenant to Landlord on demand.
Landlord shall have the same rights and remedies in the event of the
nonpayment or late payment thereof by Tenant as in the case of default in
the payment of Fixed Rent. Landlord shall not commence any action under
this Section 11.01 until any applicable grace period expires unless such a
delay by Landlord will increase the risk of Landlord.
SECTION 12: REPAIR AND MAINTENANCE OF THE PREMISES
SECTION 12.01. Except as set forth in this Lease, Landlord shall not
be required to rebuild any improvements on the Premises or make any
repairs, replacements or renewals of any nature to the improvements on the
Premises, whether ordinary or extraordinary, foreseen or unforeseen, or to
make any expenditure in connection with this Lease or to maintain the
Premises in any way. Except as set forth in this Lease, Tenant assumes
the sole responsibility for the condition, operation, repair, replacement,
maintenance and management of the Premises.
SECTION 12.02. Except for matters that are Landlord's responsibility
under this Lease, Tenant will, at its sole cost and expense, take good
care of the Premises and the equipment, fixtures and machinery thereon or
used in connection therewith, and keep the same in good order and
condition except for ordinary wear and tear, and make all necessary
repairs to the Premises, interior and exterior, ordinary and
extraordinary, foreseen and unforeseen. The term "repairs" includes
replacements or renewals when necessary; pest control; replacements of the
roof and HVAC system, necessary to maintain the Premises in first class
condition, such work to be performed pursuant to plans and specifications
approved by Landlord; and removal of trash and "Hazardous Materials"
(hereafter defined), except for Hazardous Materials existing on the
Premises on the date of this Lease other than chemicals used in the normal
course of Tenant's business on and after the date of this Lease. All such
repairs made by Tenant shall be equal in quality to the original work, and
shall be accomplished in a good workmanlike manner in full compliance with
applicable building, environmental, and safety laws. "Repairs" also
includes alterations required to comply with governmental regulations and
laws, including but not limited to laws requiring special signs, safety
laws and laws requiring access for the handicapped including but not
limited to, the Americans with Disabilities Act of 1990, 42 U.S.C. Section
Section 12101-12213, excluding pre-existing violations.
SECTION 12.03. Subject to Section 13.01, all repairs and
replacements to the Premises shall become part of the realty and the
property of Landlord.
SECTION 12.04. The provisions set forth in Section 13 shall apply to
repairs, maintenance and replacements done under this Section 12.
SECTION 13: PERSONAL PROPERTY, TRADE FIXTURES, ALTERATIONS AND
ADDITIONS
SECTION 13.01. Any personal property or trade fixtures (excluding
property which is the property of Landlord pursuant to Section 12.03)
installed on the Premises by Tenant, whether or not attached to the
Premises, shall be removed by Tenant at the termination of this Lease or
at any time prior thereto, and all such property shall remain the property
of the Tenant. Tenant shall repair all damage caused by such removal and
restore the Premises to good condition, reasonable wear and tear excepted.
Any personal property and trade fixtures not removed by Tenant at the
termination of this Lease shall, at Landlord's sole option become
Landlord's property, or at Landlord's option, may be removed by Landlord
at Tenant's expense.
SECTION 13.02. Tenant shall not alter the exterior, structural,
plumbing or main electrical elements of the Premises in any manner without
the consent of Landlord, which consent shall not be unreasonably withheld
or conditioned; provided, however, Tenant may undertake nonstructural
alterations to the Premises costing less than $25,000 without Landlord's
consent. If Landlord consents to the making of any such alterations, the
same shall be made by Tenant at Tenant's sole expense by a licensed
contractor and according to plans and specifications approved by Landlord
and subject to such other conditions as Landlord shall require. Any work
at any time commenced by Tenant on the Premises shall be prosecuted
diligently to completion, shall be of good workmanship and materials and
shall comply fully with all the terms of this Lease. Upon completion of
any alterations, Tenant shall promptly provide Lessor with (i) evidence of
full payment to all laborers and materialmen contributing
to the alterations, (ii) an architect's certificate certifying the
alterations to have been completed in conformity with the plans and
specifications, (iii) a certificate of occupancy if required, and (iv) any
other documents or information reasonably requested by Landlord. Lessee
shall execute and file or record, as appropriate, a "Notice of Non-
Responsibility," or any equivalent notice permitted under applicable law
in the state where the Premises is located. Any addition to or alteration
of the Premises shall be deemed a part of the Premises and belong to
Landlord, and Tenant shall execute and deliver to Landlord such
instruments as Landlord may require to evidence the ownership by Landlord
of such addition or alteration. Landlord agrees that Tenant may enlarge
the Building in accordance with the conditions of this Section 13.
SECTION 13.03. As a condition to Landlord's consent, Tenant shall
serve or post any notices necessary to hold Landlord harmless from
liability arising out of work done on the Premises.
SECTION 13.04. All alterations and improvements constructed pursuant
to Section 12 and this Section 13 of this Lease shall become part of the
Premises and the property of Landlord; provided however that by written
notice given at the time Landlord gives its consent to the alterations
(but not thereafter), Landlord may, at its option, require Tenant to
remove such alterations and improvements and restore the Premises and
repair any damage caused by such removal or applicable part thereof to the
condition that existed before the alterations or improvements were
installed.
SECTION 13.05. Tenant may at Tenant's sole expense place signs upon
the Premises, provided Landlord has approved the location and design of
the proposed sign(s) such approval not to be unreasonably withheld. All
of Tenant's signage shall comply with all codes, ordinances and
regulations.
SECTION 14: INSPECTION OF THE PREMISES
SECTION 14.01. Landlord and its authorized representatives may enter
the Premises at reasonable times on prior notice (except in emergency)
during usual business hours to inspect, or to prevent waste to the
Premises. Landlord may enter the Premises at any time in case of an
emergency. Nothing herein shall imply a duty of Landlord to do any work
that Tenant is required to perform, and the performance thereof by
Landlord, after demand upon Tenant, shall not be a waiver of Tenant's
default. During the progress of any work on the Premises, Landlord may
keep and store thereon all necessary materials, tools and equipment.
Landlord shall not be liable for inconvenience, loss of business or other
damage to Tenant because of such work, and the obligations of Tenant under
this Lease shall not thereby be affected in any manner whatsoever.
SECTION 14.02. Landlord and its authorized representatives may enter
the Premises at reasonable times on prior notice during usual business
hours to show the same to prospective purchasers or lenders (and tenants
during the final two [2] years of the Term) as Landlord may deem necessary
or desirable. Landlord may at any time place on or about the Premises any
ordinary "for sale" signs; and Landlord may, at any time during the last
year of the Lease Term, place on or about the Premises any ordinary "for
lease" or "for sale" signs, and show the Premises to prospective tenants
or purchasers.
SECTION 15: UTILITY CHARGES
SECTION 15.01. Tenant will pay all charges for gas, fuel oil, water,
steam, electricity, trash removal, trash separation, and recycling costs),
sewerage, telephone, and other utilities used in connection with the
Premises, and will indemnify Landlord from any liability on such account.
Tenant shall, at its sole cost, procure, maintain and/or renew, as the
case may be, all licenses and other authorizations required for the lawful
installation and maintenance of wires, pipes, shafts, ducts, conduits,
tubes and other equipment and appliances for use in supplying utility
services upon the Premises, except for matters which are Landlord's
responsibility in Sections 30 and 44 below.
SECTION 15.02. Certain utility services are provided from lines
located on Landlord's property beyond the premises and Tenant is given the
right of access to repair and maintain such services. Tenant shall be
responsible for the cost of any such maintenance and repair if the service
is exclusive to Tenant; and if the service is shared with the adjacent
property then Tenant shall be responsible for fifty percent (50%) (or
equitable share, if the usage of the adjacent property is not equal) of
the cost to maintain and repair the service unless the failure or damage
to such service was caused by Tenant, its employees, contractors, vendors
or visitors in which case Tenant shall be responsible for the total cost
of such repair or maintenance.
SECTION 15.03. Certain utility services shared by the Premises with
the adjacent property are provided through a meter common to both
properties. Tenant agrees that so long as it is the Tenant in the
property adjacent to the Premises that it will pay all charges as a result
of metered consumption. If Tenant ceases to be a Tenant of the adjacent
property Landlord and Tenant shall in good faith allocate the charges for
the respective utility services based on the percent of such services
agreed to have been utilized by the Premises until the same are separated
by Landlord pursuant to Sections 30 and 44 below.
SECTION 16: CONDITIONAL LIMITATIONS - DEFAULT PROVISIONS
SECTION 16.01. Any of the following occurrences is an "Event of
Default" under this Lease: (i) if Tenant (regardless of the pendency of
any bankruptcy, receivership, or other proceedings, which might have the
effect of preventing Tenant from complying with the terms of this Lease),
fails to: (a) within five (5) days after notice from Landlord make any
payment of Fixed Rent or Additional Rent on the date such payment is due
or (b) perform Tenant's other covenants within thirty (30) days after
notice of such failure (in the case of a failure to observe a nonmonetary
covenant of this Lease which cannot reasonably be cured within thirty [30]
days, if Tenant fails to proceed promptly to cure the same, it being
intended that the time to cure the same shall be extended as may
reasonably be necessary); or (ii) if Tenant shall voluntarily file a
petition in bankruptcy, or for reorganization under the United States
Bankruptcy Code; or (iii) if an involuntary petition in bankruptcy is
filed against Tenant that is not dismissed within sixty (60) days of the
date of its filing; or (iv) if a receiver of all or substantially all the
property of Tenant shall be appointed, and if such receiver is not
discharged within sixty (60) days after such appointment; or (v) if the
Premises shall have been left abandoned for thirty (30) consecutive days;
or (vi) if the leasehold interest of Tenant in the Premises is levied upon
or attached and such process is not vacated or discharged within sixty
(60) days; or (vii) a "Chronic Default" occurs, which is defined as the
occurrence of three (3) or more of any the foregoing Events of Default
within any twelve (12) month period.
SECTION 16.02. Upon an Event of Default, Landlord may give Tenant
written notice of Landlord's intention to terminate this Lease on a date
at least five (5) days after the effective date of such notice ("Notice
Date"). On the Notice Date all right, title and interest of Tenant in this
Lease shall expire unless prior to the Notice Date the defaults have been
cured or waived. On the Notice Date, Tenant shall surrender possession of
the Premises to Landlord, but Tenant shall remain liable as hereinafter
provided, and Landlord shall have the immediate right of re-entry and
possession of the Premises as if this Lease had not been made.
SECTION 16.03. Upon a termination of this Lease, as provided herein
or as permitted by law, notwithstanding any other provision of this Lease
to the contrary, Landlord will be entitled to recover from Tenant (in lieu
of all other claims for damages on account of the termination of the Term
of this Lease), as liquidated damages, but subject to Landlord's duty to
mitigate damages under law, an amount equal to the Fixed Rent and
Additional Rent hereunder for the remaining Term of this Lease discounted
to present value at the rate of 6% per annum. For purposes of this
Section 16.03, the accelerated amount of Additional Rent shall be
calculated based on the amount of Additional Rent that became due during
the twelve (12) month period preceding the month of termination increased
at the rate of four percent (4%) per annum for each remaining year (or
fraction thereof) of the Lease Term.
SECTION 16.04. As an alternative to the liquidated damages upon
termination of this Lease provided in Section 16.03, Landlord may obtain
actual damages from Tenant. Upon re-entry, Landlord shall have the right
without notice to Tenant to repair or alter the Premises in such manner as
Landlord deems advisable to put the Premises in good order and to make it
rentable. Landlord shall have the right to relet the Premises or any part
thereof, and Tenant agrees to pay to Landlord on demand all expenses
incurred by Landlord in obtaining possession, and in altering, repairing
and putting the Premises in good order and condition, and in re-letting
the same, including the fees of attorneys, architects, and other experts
hired by Landlord in this respect, and also all other associated expenses
or commissions. Tenant further agrees to pay to Landlord upon the dates
specified herein for the payment of Fixed Rent from the date of such re-
entry until the expiration date of the Term of this Lease, the Fixed Rent
and Additional Rent which would have been payable by Tenant hereunder upon
said payment dates if Landlord had not repossessed the Premises, deducting
therefrom the net amount of rents, if any, which Landlord actually
receives (after deducting from the gross receipts the expenses, costs, and
payments of Landlord which in accordance with the terms of this Lease
would have been borne by Tenant) in the meantime from any re-letting of
the Premises. The aforesaid liability of Tenant shall survive the issuance
of any action to secure possession of the Premises. Nothing herein
contained shall require Landlord to wait to begin such legal proceedings
until the date when this Lease would have expired had there been no
default by Tenant.
SECTION 16.05. No such re-entry or taking of possession of the
Premises by Landlord shall be construed as an election on Landlord's part
to terminate this Lease unless a written notice of such intention be given
to Tenant or unless such termination be decreed by a court of competent
jurisdiction. Tenant hereby consents to the exercise by Landlord of any
and all-self help remedies available at law or in equity without Landlord
resorting to any legal or judicial process, procedure or action,
notwithstanding any laws in the Commonwealth of Kentucky to the contrary.
If Landlord reenters the Premises, with or without judicial process, such
reentry shall not be deemed a trespass, and Landlord shall have no
liability to Tenant or any third party arising from such reentry.
SECTION 16.06. All rights or remedies herein conferred upon Landlord
are in addition to every other right or remedy given hereunder, or now or
hereafter existing at law or in equity or by statute. Failure of Landlord
to insist upon the strict performance of the provisions in this Lease
shall not be a waiver thereof for the future. A receipt by Landlord of
any Fixed Rent or Additional Rent with knowledge of the breach of any
provision in this Lease shall not be a waiver of such breach. No waiver
by Landlord of any provision of this Lease shall be deemed to have been
made unless expressed in writing by Landlord. In addition to the other
remedies provided in this Lease, Landlord is entitled to injunctive relief
in case of the violation, or attempted or threatened violation, of any
provision of this Lease and to any other remedy allowed to Landlord at law
or in equity.
SECTION 16.07. Tenant waives (i) any right under any present or
future law to redeem the Premises after termination of Tenant's right of
occupancy by order of any court, or after the termination of this Lease as
herein provided; and (ii) the benefits of any present or future law which
exempts property from liability for distress for rent.
SECTION 17: HAZARDOUS MATERIALS
SECTION 17.01. The term "Hazardous Materials" means any hazardous or
toxic substance, material or waste which was, is or becomes regulated, by
any local government authority, the state in which the Premises is
located, or the United States Government, but not including any such
substance, material or waste which is on the Premises on and prior to the
commencement date of this Lease (other than chemicals used in the ordinary
course of Tenant's business during the Lease Term) or any such items
placed on the Premises by Landlord, its agents and employees. The term
"Hazardous Materials" includes, without limitation, any material or
substance which is (i) asbestos; (ii) designated as a "hazardous
substances" pursuant to Section 311 of the Federal Water Pollution Control
Act (33 U.S.C. 1317); (iii) defined as a "hazardous waste" pursuant to
Section 1004 of the Federal Resource Conservation and Recovery Act, 42
U.S.C. 6901 et seq. ("RCRA"); (iv) defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 et seq. ("CERCLA"); or (v)
designated as a "hazardous material" pursuant to Section 1803 of the
Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq.
SECTION 17.02. The term "Other Premises" means any land,
improvements, vegetation, animal life, water or air (excluding the
Premises), whether publicly or privately owned (and including without
limitation any disposal facilities such as sewers or landfills) which have
become contaminated by Hazardous Materials placed thereon by Tenant, its
agents and employees. The term "Premises" includes, in addition to the
real property and improvements, the airspace above the Premises, all
substrata, and all groundwater located underneath the Premises.
SECTION 17.03. The term "Material Contamination" means any unlawful
contamination of the Premises or Other Premises, however caused, the
remediation of which would cost, at the time such contamination is
discovered, more than Five Thousand Dollars ($5,000.00) to complete. In
no event, shall the preceding sentence be construed as a "deductible" with
respect to Tenant's liabilities and obligations, nor be construed to limit
or reduce any liability or obligation of Tenant under the terms of this
Lease or applicable law if such Material Contamination occurs.
SECTION 17.04. Tenant shall not cause or permit any Hazardous
Materials to be brought upon, kept or used in, on or about the Premises
except such Hazardous Materials as is or will be necessary to Tenant's
business and will be transported, kept, stored, used, discharged,
generated, released and disposed of in a manner that complies with all
laws regulating any such Hazardous Materials.
SECTION 17.05. Tenant shall, promptly upon knowledge thereof, advise
Landlord in writing of (a) any Material Contamination of the Premises or
any Other Premises; (b) any unlawful transportation, storage, use,
discharge, generation, release or disposal of Hazardous Materials on,
about, to or from the Premises, by Tenant, its employees and agents; (c)
any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted or threatened by any federal, state or local
governmental agency with respect to Hazardous Materials affecting the
Premises or the operations of Tenant thereon or therefrom; and (d) all
claims made or threatened by any third party against Tenant or the
Premises relating to damage, contribution, cost recovery compensation,
loss or injury resulting from any Hazardous Materials brought upon,
transported, kept, stored, used, generated, discharged or released or
disposed of on, about, to or from the Premises or Other Premises.
SECTION 17.06. Tenant shall be solely responsible for, and shall
indemnify, defend and hold harmless Landlord, from and against any and all
claims, demands, suits, judgments, liens, damages, penalties, fines,
costs, expenses, liabilities or losses (including, without limitation, any
decline in the fair market value of the Premises, damages for the loss or
restriction on use of rentable or usable space or of any amenity of the
Premises, damages arising from any adverse impact on marketing of space in
the buildings or improvements constructed upon the Premises, and sums paid
in settlement of all claims, attorneys' fees, consultants' fees and
experts' fees) which arise out of Tenant's breach of Sections 17.04 or
17.05.
For purposes of this Section 17.06, any decline in the fair market
value of the Premises shall be calculated with reference to the date upon
which such contamination of the Premises is discovered.
This indemnification of Landlord by Tenant shall survive the
expiration or prior termination of this Lease, and the costs and expenses
recoverable under this indemnity shall include, without limitation, costs
incurred in connection with any investigation of site conditions and any
clean-up, remedial, removal or restoration work required by any federal,
state or local government agency or political subdivision because of
Hazardous Materials present in the buildings, soil, water or air on, under
or about the Premises or any Other Premises. Without limiting the
foregoing, if the presence of any Hazardous Materials on the Premises
caused or permitted by Tenant results in any contamination of the Premises
or Other Premises, Tenant shall promptly take all actions at its sole
expense as are necessary to return the Premises and/or Other Premises to
the condition existing prior to the introduction thereto of such Hazardous
Material.
SECTION 17.07. Except to the extent of Landlord's responsibilities
under Section 17.09 Tenant shall initiate all activities necessary to
respond to, remedy or remove Hazardous Materials located on or in the
Premises within thirty (30) days after discovery thereof, or after being
notified of the existence of such Hazardous Materials on the Premises;
provided, however, that in the event the presence of such Hazardous
Materials on, under or about the Premises caused by Tenant, its agents or
employees, either poses an immediate and serious threat to the health,
safety and welfare of any individual or is of such a nature that an
immediate response is necessary, Tenant shall initiate appropriate
remedial activities immediately. Tenant shall be fully responsible for
the conduct of such response and remedial activities, which shall be
accomplished as quickly as reasonably possible. Tenant shall directly
contract for or perform all such actions in Tenant's own name, and shall
dispose of any Hazardous Materials removed from the Property in accordance
with applicable laws. Copies of all reports submitted to governmental
authorities, and of all technical data, test results, expert opinions and
other materials generated in connection with any contamination, response
or remedial activities shall be furnished to Landlord. All remedial work
shall be performed in accordance with applicable laws, both as to remedial
procedures employed and as to levels or concentrations of contamination
allowable thereunder.
SECTION 17.08. Landlord may, at any reasonable time during the Term
of this Lease and upon thirty (30) days notice to Tenant; or within one
hundred eighty (180) days after termination of this Lease, cause to be
conducted an environmental audit of the Premises or any part thereof to
determine whether or not Tenant is complying with or has complied with the
provisions of this Section 17. If Landlord has a reasonable basis to
believe Tenant has violated this Section 17, Tenant shall pay the cost of
said environmental audit. In the event of any environmental audit
hereunder, Tenant agrees to provide Landlord with copies of any and all
records of Tenant pertaining to Tenant's transport, use, storage,
manufacture, generation, release, discharge or disposal of Hazardous
Materials on, about, to or from the Premises.
SECTION 17.09. Landlord represents to Tenant that to Landlord's
actual knowledge the Premises are in compliance with all applicable
environmental regulations as of the commencement of the Lease Term.
Landlord shall hold Tenant harmless from any cost of environmental
remediation of any contamination of the Premises (or any contamination of
Other Premises arising from the migration of Hazardous Materials from the
Premises) occurring prior to the commencement of the Lease Term.
SECTION 17.10. Tenant's indemnity under this Section 17, and
Tenant's other duties and responsibilities under this Section 17, shall
not apply to (or impose liability on Tenant in connection with) any
Hazardous Materials or other contamination occurring prior to the
commencement date of this Lease, shall not apply to any Hazardous
Materials on or contamination caused by an occurrence on adjacent property
or any Hazardous Materials or contamination caused by Landlord, its agents
or employees.
SECTION 18: ESTOPPEL CERTIFICATES
SECTION 18.01. Tenant will within fifteen (15) days of notice by
Landlord, deliver to Landlord a certification that this Lease is
unmodified and in full force and effect (or, if there have been
modifications, stating the modifications) and the dates to which the Fixed
Rent and Additional Rent and other charges have been paid, and stating
whether or not Landlord is in default of this Lease, and, if so,
specifying such default; and also stating such reasonable information
which may be requested by a mortgagee or prospective mortgagee or
prospective purchaser. It is intended that any such certificate may be
relied upon by any prospective purchaser or mortgagee of the Premises.
SECTION 19: LIMITATION OF LANDLORD'S LIABILITY
SECTION 19.01. If Landlord sells or conveys the Premises, Landlord
shall be released from any liability arising thereafter based upon any of
the terms, covenants or conditions, expressed or implied, which are
contained in this Lease. In such event, Tenant agrees to look solely to
Landlord's successor-in-interest for any liability under this Lease.
Except for the foregoing, this Lease shall not be affected by any sale or
conveyance of the Premises by Landlord and Tenant agrees to attorn to
Landlord's successor-in-interest.
SECTION 19.02. Notwithstanding anything to the contrary herein
provided or otherwise provided at law or in equity, there shall be
absolutely no personal liability in excess of its interest in the Premises
including the rents, issues and profits thereof, on the part of the
Landlord or any successor-in-interest thereto (whether the same be an
individual, joint venture, tenancy-in-common, firm or partnership,
general, limited or otherwise) or on the part of the members of any firm,
partnership or joint venture or other unincorporated entity of Landlord
with respect to any of the terms, covenants or conditions of this Lease.
In the event of a breach or default by Landlord, or any successor-in-
interest thereof, of any of its obligations under this Lease, Tenant shall
look solely to the then Landlord or such successor-in-interest of the
Premises for the satisfaction of each and every remedy of Tenant, such
exculpation of personal and additional liability which is in excess of
such interest in the Premises is absolute and without any exception
whatsoever.
SECTION 20: COVENANTS TO RUN WITH THE LAND
SECTION 20.01. Each provision of this Lease shall run with the land
and shall bind and inure to the benefit of the successors and assigns of
Landlord and Tenant.
SECTION 21: SURRENDER
SECTION 21.01. Upon the expiration or sooner termination of this
Lease, Tenant shall peaceably and quietly surrender possession of the
Premises to Landlord in the same condition in which the Premises was
received from Landlord, ordinary wear and tear excepted, and except as set
forth in Sections 24 and 25 hereof, and except for matters that are
Landlord's responsibility under this Lease, and free of occupants. Tenant
shall, at its sole cost and expense, have removed from the Premises all
personal property and trade fixtures situated thereon which are not owned
by Landlord; except as otherwise provided herein, removed all alterations
and additions required by Landlord; and repaired any damage caused by such
removal before surrender of possession of the Premises will be deemed to
be completed. Fixed Rent and Additional Rent shall continue to be due,
owing and paid until surrender is fully completed. Any property not so
removed shall become the property of Landlord or at Landlord's election,
may be removed by Landlord at Tenant's expense.
SECTION 22: NOTICES
SECTION 22.01. All notices required by this Lease shall be in
writing. All such notices shall be served personally or sent by United
States registered or certified mail or air courier, postage or charge
prepaid, addressed to Landlord or Tenant, as the case may be at its
address set forth above, or at such other place as Tenant or Landlord may
from time to time designate in a written notice to the other. Notice to
Landlord shall also include a copy sent to Real Estate Department at
Landlord's address. Notices may also be sent by telefax, provided a
duplicate copy is sent to the addressee by certified mail. Such notices
shall be deemed sufficiently served or given when telefaxed, when
deposited in any U.S. Post Office, or when deposited with any overnight
air courier service, but shall not be deemed effective until actual
receipt by the recipient.
SECTION 23: SEPARABILITY
SECTION 23.01. Each covenant and agreement of this Lease is a
separate independent covenant and agreement, and the breach of any
covenant or agreement shall not relieve the other party from performing
each covenant and agreement in this Lease. If any provision of this Lease
is unenforceable, the remainder of this Lease shall not be affected.
SECTION 24: DAMAGE OR DESTRUCTION
SECTION 24.01. In case of damage or destruction by fire or other
casualty to all or part of the Premises, all Fixed Rent and Additional
Rent provided by this Lease shall xxxxx (with Landlord to receive the
benefits of the rent loss insurance); and Tenant, at its sole cost and
expense, if insurance proceeds are made available to Tenant therefor, will
promptly cause the repair, restoration and rebuilding of the Premises to
the same size, design, and configuration of the Premises that existed
prior to such damage or destruction, or such other improvements as
Landlord may approve so that the condition of the Premises will be the
same, as nearly as practical, as its condition immediately prior to such
damage or destruction. The obligations of Tenant to continue to pay Fixed
Rent and Additional Rent shall not be abated and except as set forth in
Section 24.04 hereof the obligation of Tenant to repair and restore such
damage or destruction of the Premises shall survive and continue despite
Tenant having notified Landlord of its intent to terminate this Lease if
such damage or destruction occurs any time, including but not limited to
the last day of the Lease Term.
SECTION 24.02. Subject to the rights of a mortgagee to insurance
proceeds, all insurance proceeds recovered with respect to any particular
casualty resulting in damage or destruction of less than $25,000.00 in the
aggregate, less any cost of such recovery (such proceeds being termed "Net
Proceeds"), shall be paid to Landlord and delivered to Tenant, to be
applied to cost of restoration. All Net Proceeds, if any, recovered with
respect to any particular casualty resulting in damage or destruction in
excess of $25,000.00 shall be applied by the Landlord and Tenant to the
payment of the cost of repairing, restoring and rebuilding the Premises
(herein referred to as the "Work"), and shall be paid out from time to
time to Tenant as the Work progresses upon the request of Tenant
accompanied by a certificate of Tenant and the architect or engineer in
charge of the Work stating that: (i) the sum requested has been paid by
Tenant to persons who have rendered services or furnished materials for
the Work, or is then due and to such persons and will be paid from the sum
requested; and (ii) no part of the cost of the Work has been the basis for
a previous request. Upon completion of the Work, which completion shall
be evidenced by a certificate of Tenant and the architect or engineer in
charge of the Work stating that the Work has been completed and that there
is no outstanding indebtedness known to Tenant with respect to the Work,
any balance of the Net Proceeds held by Landlord shall be retained by
Landlord. Tenant shall furnish to Landlord at the time of each such
payment evidence satisfactory to Landlord that there has not been filed
with respect to the Premises any vendor's, mechanic's, materialmen's, or
other lien as a result of the Work which has not been discharged of record
or bonded, unless Tenant has instituted proceedings to contest the
validity or amount of such lien pursuant to Section 6 of this Lease.
Landlord shall not be required to pay out any Net Proceeds when the
Premises shall be encumbered by any such lien (unless bonding or
proceedings shall have been instituted to contest the same as aforesaid)
or if an Event of Default has occurred and is continuing under the Lease.
The obligation of Tenant under this Section 24 to repair, restore and
rebuild is not conditional upon the recovery of insurance proceeds from
any insurance company. The provisions of Sections 12 and 13 of this
Lease, except to the extent that such provisions are clearly inconsistent
with the provisions of this Section 24, shall apply to Work required to be
done under this Section 24.
SECTION 24.03. If any Net Proceeds, which would be payable to
Landlord or Tenant, are paid to any mortgagee of Landlord's interest in
the Premises, said mortgagee may apply the Net Proceeds as provided by the
terms of its mortgage. If said mortgagee exercises the right to apply the
Net Proceeds to the reduction or pay-off of the debt secured by its
mortgage, then Landlord at Landlord's sole option shall have the right (i)
to provide, at its sole cost and expense, a fund of money to finance the
Work that is equivalent to the amount of Net Proceeds used by the
mortgagee to reduce or pay-off the mortgage debt or (ii) to terminate this
Lease. If Landlord elects not to terminate, Landlord may provide such
fund of money in installments to be paid as the Work progresses pursuant
to the procedures for progress payments set forth in Section 24.02.
SECTION 24.04. If the Premises is so damaged or destroyed by fire or
other casualty as to be, no longer economically useful to Tenant in the
conduct of its business during the last two (2) years of the Lease Term,
or if it will take more than two hundred seventy (270) days to restore or
repair, Tenant in lieu of repairing, restoring and rebuilding such
improvements may terminate this Lease by giving not less than ninety (90)
days notice of such termination to the Landlord, provided that the Net
Proceeds are sufficient to restore the Premises. If the Net Proceeds are
insufficient to restore the Premises as herein provided, Tenant's right to
terminate this Lease shall not accrue until Tenant has provided to
Landlord an amount of money equivalent to the difference between
restoration costs, as reasonably determined by Landlord, and the Net
Proceeds. Notice having been so given, this Lease shall terminate on the
date specified in such notice, and all Net Proceeds payable as a result of
such damage or destruction, shall be payable to Landlord and said
mortgagee as their interests may appear.
SECTION 24.05. If the damage or destruction occurs during the term
of this Lease and the Premises is so damaged or destroyed by fire or other
casualty as to be, in Landlord's sole judgment, no longer economically
useful to Landlord in the conduct of its business, whatever that business
may then be, Landlord may terminate this Lease by giving no less than
ninety (90) days notice of such termination of Tenant. Notice having been
so given, this Lease shall terminate on the date specified in such notice,
and all insurance proceeds payable as a result of such damage or
destruction, shall be payable to Landlord and any mortgagee as their
interests may appear. If the Net Proceeds are insufficient to restore the
Premises as herein provided, Tenant shall provide Landlord with an amount
of money equivalent to the difference between restoration costs as
determined by Landlord, and the Net Proceeds, and this obligation of
Tenant shall survive the termination of this Lease.
SECTION 25: CONDEMNATION
SECTION 25.01. If during the term of this Lease: (a) the whole of
the Premises is taken for any public or quasi-public use, under any
statute, or by right of eminent domain; or (b) if any part of the Premises
is so taken, and the part not taken is insufficient for the operation of
the Tenant's business at the Premises, then when possession has been taken
thereunder, this Lease shall terminate, and the Fixed Rent, Additional
Rent, and other items payable under this Lease shall be adjusted and paid
to the time of such possession.
If any such taking is insufficient, under the provision of this
Section 25.01, to terminate this Lease, this Lease shall remain
unaffected, except:
A. The Fixed Rent shall be reduced by an amount equal to the square
footage of the taking of constructed improvements multiplied by the Fixed
Rent measured on a square footage basis immediately before the taking.
Until the new Fixed Rent is determined, the Tenant shall pay Fixed Rent at
the rate hereinbefore specified, and, upon such determination, an
appropriate adjustment shall be made and the Tenant shall receive credit
for any overpayment.
B. The Tenant shall, promptly after such taking and at its expense,
restore all the improvements located in the part of the Premises not taken
to the extent practical and reasonable to the condition existing before
such taking. After the completion of such restoration, the Tenant shall be
reimbursed for the cost thereof from the net condemnation award, after
deduction of any costs of collection, including attorneys' fees ("Net
Condemnation Award").
SECTION 25.02. Upon any taking hereunder, and except as otherwise
provided herein, Landlord shall be entitled to receive the entire award
for such taking. Tenant shall not be entitled to any payment based, inter
alia, upon the value of its leasehold estate, the value of the unexpired
term of this Lease or any renewal thereof, consequential damages to the
land not so taken, or the diminution of the assemblage or plottage value
of the land not so taken.
SECTION 25.03. If the taking is for an easement or for an estate in
the land less than a fee simple (other than a taking for temporary use,
hereinafter mentioned), or the taking is for land only that does not
unreasonably affect the use and occupation of the Premises, such taking
shall not terminate this Lease and this Lease shall continue without
change; provided, however, that if there shall be a payment predicated on
a change in the grade of a street on which the Premises abuts, the Tenant
shall be entitled, after making such change or restoration as may be
necessary because of such change of grade, to reimbursement for the
reasonable expense thereof to the extent of the net amount of any payment
after deduction of any costs of collection, including attorneys' fees. Any
part of an award for change of grade which is unexpended after such
restoration shall be the property of the Landlord.
SECTION 25.04. If permitted by law Tenant may file its own
independent claim for damages against the condemning authority.
SECTION 25.05. If a taking of all or part of the Premises is for
temporary use, this Lease shall continue without change, and the Tenant
shall be entitled to such award; provided that:
A. if the temporary taking extends beyond the expiration of the
Lease Term, such award shall be apportioned between Landlord and Tenant as
of the date of the expiration of the term of this Lease; and
B. the Tenant may file and prosecute any claim against the
condemnor for damages, for any negligent use, waste, or injury to the
Premises occurring throughout the balance of the Lease Term.
SECTION 26: USES PROHIBITED, COMPLIANCE WITH ENVIRONMENTAL LAWS,
NUISANCE AND WASTE
SECTION 26.01. Tenant shall not do or permit anything to be done in
or about the Premises nor bring or keep anything therein which will
violate federal, state or local laws relative to air quality standards,
waste disposal standards, objectionable noise or odor standards, or any
other standard relating to the environment whether passed by law,
executive order, or regulation. Tenant agrees that it will equip, manage
and operate the Premises to comply with said requirements; and shall not
create or permit nuisance or waste to exist upon the Premises.
SECTION 27: COMPLIANCE WITH LAWS
SECTION 27.01. Tenant's use and occupation of the Premises, and the
condition thereof, shall, at Tenant's sole cost and expense, comply fully
with all covenants, conditions and restrictions binding upon the Premises
and with all applicable statutes, regulations, rules, ordinances, codes,
licenses, permits, orders and approvals of any governmental agencies,
departments, commissions, bureaus, boards or instrumentalities of the
United States, the state in which the Premises are located and all
political subdivisions thereof, including, without limitation, all health,
building, fire, safety and other codes, ordinances and requirements and
all applicable standards of the national Board of Fire Underwriters and
the National Fire Protective Association.
SECTION 27.02. Tenant will not permit any act or condition to exist
on or about the Premises which will increase any insurance rate thereon,
except when such acts are required in the normal course of its business
and Tenant shall pay for such increase.
SECTION 27.03. Without limiting the generality of the other
provisions of this Section, Tenant agrees that it shall be responsible for
complying in all respects with the Americans with Disabilities Act of
1990, as such act may be amended from time to time, and all regulations
promulgated thereunder (collectively, the "ADA"). Tenant further agrees
that any and all alterations made to the Premises during the Lease Term
will comply with the requirements of the ADA. All plans for alterations
which must be submitted to Landlord under the provisions of Section 17
must include a statement from a licensed Architect or Engineer certifying
that they have reviewed the plans, and that the plans comply with all
applicable provisions of the ADA. Any subsequent approval or consent to
the plans by the Landlord shall not be deemed to be a representation of
Landlord's part that the plans comply with the ADA, which obligation shall
remain with Tenant. Tenant agrees that it will defend, indemnify and hold
harmless Landlord and Landlord's shareholders, directors, officers,
agents, attorneys and employees from and against any and all claims,
demands, causes of action, suits, proceedings, liabilities, damages
(including consequential and punitive damages), losses, costs and
expenses, including attorneys' fees, caused by, incurred or resulting form
Tenant's failure to comply with its obligations under this Section.
SECTION 27.04. In addition to the other requirements of this
Section, Tenant shall, at all times throughout the Lease Term, comply with
all federal, state or local statutes, laws, rules, regulations,
ordinances, codes, policies or rules of common law now or hereafter in
effect and in each case, as amended, and any judicial or administrative
interpretation thereof, including any judicial order, consent, decree or
judgment, applicable to Tenant; provided, however, Tenant shall not be in
default under this Section 40.04 unless Tenant's failure to comply with
the foregoing covenant shall have a material adverse effect on Tenant,
Landlord, the Premises or Landlord's interests in the Premises.
SECTION 27.05. Notwithstanding the foregoing provisions, Tenant will
not be responsible for any conditions or violations of law (including but
not limited to the ADA) relating to the Premises existing on or prior to
the date of this Lease.
SECTION 28: SUBORDINATION/NON-DISTURBANCE
SECTION 28.01. This Lease is subject and subordinated at all times
to the lien of all mortgages, indentures and deeds of trust which are
hereafter placed against Landlord's interest in the Premises, provided
that the mortgagee or beneficiary under such mortgage, indenture or deed
of trust shall agree in writing that, in the event of foreclosure of same
or of any such other such proceeding for the enforcement thereof, or of
any sale thereunder, this Lease will not be barred, terminated, cut off or
foreclosed, nor will the rights and possession of Tenant be disturbed if
the Tenant is not then in default in the payment of Fixed Rent or
Additional Rent beyond the applicable cure period and is not otherwise in
default under this Lease beyond the applicable cure period. Tenant shall
attorn to the purchaser at such foreclosure sale, sale or other action or
proceeding. The foregoing subordination shall be effective without the
necessity of having any further instruments executed by Tenant. Tenant
shall nonetheless execute upon demand such further instruments evidencing
such subordination as may be reasonably requested by Landlord, any
mortgagee or beneficiary.
SECTION 29: TENANT ACCEPTS THE PREMISES "AS IS"
SECTION 29.01. Tenant is fully familiar with the physical condition
of the Premises and the Building, improvements, systems, fixtures and
equipment thereof. Except as otherwise provided in Sections 17.09, 32 and
43 hereof, Landlord has made no representations of any nature in
connection with the condition of the Premises or the Building,
improvements, systems, fixtures or equipment thereon, and the Landlord
shall not be liable for any latent or patent defects therein. Tenant
shall be presumed to have accepted possession of the Premises under this
Lease on the first day of the Lease Term, and such acceptance of
possession shall be conclusive evidence that the Premises was in good and
satisfactory condition when possession was accepted.
SECTION 29.02. Tenant covenants to Landlord that all of its uses and
contemplated uses of the Premises shall comply with all applicable
statutes, ordinances, rules, regulations, order and requirements in effect
during the Lease Term.
SECTION 30: FIRE PROTECTION WATER SUPPLY AND UTILITY SERVICE
SECTION 30.01. Tenant acknowledges that the sprinkler system water
supply serving the Premises is shared with Landlord's adjacent property.
Landlord may at any time (and shall if required under Section 44 below)
separate the premises fire protection water supply from the adjacent
building so that the premises can be exclusively served from its existing
fire protection water supply. Landlord hereby reserves the right to enter
upon the Premises and perform such work as may be required for such
purpose. Tenant shall co-operate with Landlord during such installation,
which shall be provided at no cost to Tenant for the installation. Until
such replacement service is provided Tenant shall maintain and keep the
existing pipes and service located on the premises operational. Landlord
shall maintain the portion of the system located beyond the Premises
Landlord shall have no liability to Tenant for cessation or failure of
service beyond Landlord's control. Tenant shall have no liability for the
performance of the system beyond the Premises or any other matter
affecting other property unless the same is caused by Tenant's intentional
misconduct. Tenant shall have no responsibility to maintain any portion
of the fire protection system after its lease on adjacent premises
terminates or the space it occupies is reduced to the approximate 20,000
square feet of space as provided therein.
SECTION 30.02. Certain utility services to the Building are also
shared with Landlord's adjacent property and Landlord may at any time (and
shall if required under Section 44 below) disconnect and separate those
services so that the premises is exclusively served with such service.
Landlord shall pay the cost of such change in the provision of service but
Tenant shall continue to be responsible for the cost of its consumption of
all such services. Landlord shall have no liability to Tenant for
cessation or failure of service beyond Landlord's control.
SECTION 31: REPRESENTATIONS AND WARRANTIES OF TENANT
SECTION 31.01. The representations and warranties of Tenant
contained in this Section are being made to induce Landlord to enter into
this Lease and Landlord has relied, and will continue to rely, upon such
representations and warranties. Tenant represents and warrants to
Landlord as follows:
SECTION 31.02. (i) Tenant has been duly organized or formed, is
validly existing and in good standing under the laws of its state of
incorporation or formation and is qualified as a foreign corporation,
partnership or limited liability company to do business in any
jurisdiction where such qualification is required. All necessary
corporate, partnership or limited liability company action has been taken
to authorize the execution, delivery and performance by Tenant of this
Lease and of the other documents, instruments and Leases provided for
herein. Tenant is not a "foreign corporation", "foreign partnership",
"foreign trust" or "foreign estate", as those terms are defined in the
Internal Revenue Code and the regulations promulgated thereunder.
Tenant's United States tax identification number is correctly set forth on
the signature page of this Lease; and (ii) the persons who have executed
this Lease on behalf of Tenant are duly authorized to do so.
SECTION 31.03. This Lease constitutes the legal, valid and binding
obligation of Tenant, enforceable against Tenant in accordance with its
terms.
SECTION 31.04. There are no suits, actions, proceedings or
investigations pending, or to the best of its knowledge, threatened
against or involving Tenant before any court, arbitrator, or
administrative or governmental body which might reasonably result in an
adverse effect on either the Premises or Tenant's ability to perform its
obligations under this Lease.
SECTION 31.05. Tenant is not, and the execution, delivery and
performance of this Lease and the documents, instruments and Leases
provided for herein will not result, in any material default under any
other document, instrument or Lease to which Tenant is a party or by which
Tenant, the Premises or any of Tenant's property is subject or bound,
which breach or default could impair Tenant's ability to perform its
obligations under this Lease.
SECTION 31.06. Tenant intends for this Lease to be a "true lease"
and not a financing lease, capital lease, mortgage, equitable mortgage,
deed of trust, trust lease, security lease or other financing or trust
arrangement, and the economic realities of this Lease are those of a true
lease. The term of this Lease, including any term extensions provided for
in this Lease, is less than the remaining economic life of the Premises.
Tenant waives any claim or defense based upon the characterization of this
Lease as anything other than a true lease, and Tenant stipulates and
agrees not to challenge the validity, enforceability or characterization
of the lease of the Premises as a true lease and further stipulates and
agrees that nothing contained in this Lease creates or is intended to
create a joint venture, partnership, equitable mortgage, trust, financing
device or arrangement, security interest or the like. Tenant shall
support the intent of the parties that the lease of the Premises pursuant
to this Lease is a true lease and does not create a joint venture,
partnership, equitable mortgage, trust, financing device or arrangement,
security interest or the like if, and to the extent that, any challenge
occurs.
SECTION 32: LANDLORD'S REPRESENTATIONS
SECTION 32.01. Landlord owns the Premises in fee simple subject to
easements, conditions and restrictions of record, taxes and assessments
not yet due and payable, legal highways, applicable zoning regulations and
matters which would be disclosed by an accurate survey of the Premises.
SECTION 32.02. To Landlord's knowledge based solely on information
provided Cardinal Engineering ("Cardinal"), the Premises are zoned I-1
under the Xxxxx County, Kentucky Zoning and Planning Regulations, and
Landlord has received no notice that the Premises violate such zoning.
SECTION 32.03. To Landlord's knowledge based solely on information
received from Cardinal, the Premises has direct ingress and egress to and
from Xxxxxx Xxxx and such street is a paved, dedicated right of way.
SECTION 33: TAX AND INSURANCE IMPOUND
SECTION 33.01. Upon the occurrence of an Event of Default in the
payment of taxes or insurance as required by this Lease by Tenant,
Landlord may require Tenant to pay to Landlord sums which will provide an
impound account (which shall not be deemed a trust fund) sufficient to pay
all taxes, assessments and insurance premiums coming due during the
forthcoming year. Upon such requirement, Landlord will estimate the
amounts needed for such purposes and will notify Tenant to pay the same to
Landlord in equal monthly installments, as nearly as practicable, in
addition to all other sums due under this Lease. Should additional funds
be required at any time, Tenant shall pay the same to Landlord on demand.
Tenant shall advise Landlord of all taxes and insurance bills which are
due and shall cooperate fully with Landlord in assuring that the same are
paid. Landlord may deposit all impounded funds in accounts insured by any
Federal or State agency and may commingle such funds with other funds and
accounts of Landlord. Interest or other gains from such funds, if any,
shall be the sole property of Landlord. In the event of any Event of
Default by Tenant, Landlord may apply all impounded funds against any sums
due from Tenant to Landlord. Landlord shall give to Tenant an annual
accounting showing all credits and debits to and from such impounded funds
received from Tenant.
SECTION 34: BANKRUPTCY
SECTION 34.01. (a) As a material inducement to Landlord executing
this Lease, Tenant acknowledges and agrees that Landlord is relying upon
(i) Tenant's timely performance of all of its obligations under this Lease
notwithstanding the entry of an order for relief under the United States
Bankruptcy Code, as amended, 11 U.S.C. Section 101 et seq. (The "Code")
for Tenant and (ii) all defaults under the Lease being cured promptly and
the Lease being assumed within sixty (60) days of any order for relief
entered under the Code for Tenant, or the Lease being rejected within such
sixty (60) day period and the Premises surrendered to Landlord.
Accordingly, in consideration of the mutual covenants contained in
this Lease and for other good and valuable consideration, Tenant hereby
agrees that:
(i) All obligations that accrue under this Lease (including the
obligation to pay rent), from and after the date that an action is
commenced under the Code ("Action") shall be timely performed exactly as
provided in this Lease and any failure to so perform shall be harmful and
prejudicial to Landlord;
(ii) Any and all rents that accrue from and after the date that an
Action is commenced and that are not paid as required by this Lease shall,
in the amount of such rents, constitute administrative expense claims
allowable under the Code with priority of payment at least equal to that
of any other actual and necessary expenses incurred after the commencement
of the Action;
(iii) Any extension of the time period within which the Tenant may
assume or reject the Lease without an obligation to cause all obligations
under the Lease to be performed as and when required under the Lease shall
be harmful and prejudicial to Landlord;
(iv) Any time period designated as the period within which the
Tenant must cure all defaults and compensate Landlord for all pecuniary
losses which extends beyond the date of assumption of the Lease shall be
harmful and prejudicial to Landlord;
(v) Any assignment of the Lease must result in all terms and
conditions of the Lease being assumed by the assignee without alteration
or amendment, and any assignment which results in an amendment or
alteration of the terms and conditions of the Lease without the express
written consent of Landlord shall be harmful and prejudicial to Landlord;
(vi) Any proposed assignment of the Lease to an assignee that does
not possess financial condition equal to or better than the financial
condition of Tenant shall be harmful and prejudicial to Landlord;
(vii) The rejection (or deemed rejection) of the Lease for any
reason whatsoever shall constitute cause for immediate relief from the
automatic stay provisions of the Code, and Tenant stipulates that such
automatic stay shall be lifted immediately and possession of the Premises
will be delivered to Landlord immediately without the necessity of any
further action by Landlord.
SECTION 34.02. No provision of this Lease shall be deemed a waiver
of Landlord's rights or remedies under the Code or applicable law to
oppose any assumption and/or assignment of this Lease, to require timely
performance of Tenant's obligations under this Lease, or to regain
possession of the Premises as a result of the failure of Tenant to comply
with the terms and conditions of this Lease or the Code.
SECTION 34.03. Notwithstanding anything in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord under
this Lease, whether or not expressly denominated as such, shall constitute
"rent" for the purposes of the Code.
SECTION 34.04. For purposes of this Section addressing the rights
and obligations of Landlord and Tenant in the event that an Action is
commenced, the term "Tenant' shall include Tenant's successor in
bankruptcy, whether a trustee, Tenant as debtor in possession or other
responsible person.
SECTION 35: ATTORNEYS' FEES
SECTION 35.01. In the event of any judicial or other adversarial
proceeding between the parties concerning this Lease, to the extent
permitted by law, the prevailing party shall be entitled to recover all of
its reasonable attorneys' fees and other costs in addition to any other
relief to which it may be entitled. In addition, Landlord shall, upon
demand, be entitled to all attorneys' fees and all other costs incurred in
the preparation and service of any notice or demand hereunder, whether or
not a legal action is subsequently commenced. References in this Lease to
the attorneys' fees and/or costs of either Landlord or Tenant shall mean
both the fees and costs of independent counsel retained by such party with
respect to the matter and the reasonable fees and costs of such party's
in-house counsel incurred in connection with the matter.
SECTION 36: FORCE MAJEURE
SECTION 36.01. Any prevention, delay or stoppage due to strikes,
lockouts, acts of God, enemy or hostile governmental action, civil
commotion, fire or other casualty beyond the control of the party
obligated to perform shall excuse the performance by such party for a
period equal to any such prevention, delay or stoppage, except the
obligations imposed with regard to rental and other monies to be paid by
Tenant pursuant to this Lease.
SECTION 37: LANDLORD'S LIEN/SECURITY INTEREST Intentionally Deleted
SECTION 38: HOLDING OVER
SECTION 38.01. If Tenant remains in possession of the Premises, with
Landlord's consent after the expiration of the term of this Lease, it
shall be deemed to be a tenant from month-to-month at two (2) times the
monthly rental rate last in effect during the last month of the expired
term, and governed in all other things, except as to the duration of the
term, by the provisions of the Lease. Either party may terminate such
tenancy by giving the other at least thirty (30) days prior written notice
of such party's intent to terminate.
SECTION 39: CAPTIONS
SECTION 39.01. The captions herein are inserted only as a matter of
convenience for reference and in no way define, limit or describe the
scope of this Lease nor the intent of any of its provisions.
SECTION 40: RECORDING
SECTION 40.01. This Lease shall not be recorded, but Landlord and
Tenant agree to execute a short form of this Lease at the request of
either party, in recordable form, which shall thereafter be recorded.
SECTION 41: REAL ESTATE BROKER, FINDER
SECTION 41.01. Each party represents that it has not had dealings
with any real estate broker, finder, or other person, with respect to this
Lease in any manner. Each party shall hold harmless the other party from
all damages resulting from any claims that may be asserted against the
other party by any broker, finder, or other person, with whom the other
party dealt.
SECTION 42: EASEMENTS
SECTION 42.01. During the Lease Term Landlord shall have the right
upon reasonable notice to Tenant to grant utility easements on, over,
under and above the Premises without the prior consent of Tenant, provided
that such easements will not materially interfere with Tenant's use of the
Premises.
SECTION 42.02. Tenant's driveway along the southerly boundary of the
Premises is partly upon an easement of Tenant on the property adjacent to
that boundary and is partly subject to an easement to the adjacent
property. Tenant shall be responsible for fifty percent (50%) of the cost
of maintenance and repairs to the driveway unless the repair is necessary
as a result of the actions of Tenant, its contractors, employees, vendors,
or visitors in which case Tenant shall be responsible for the entire cost
of repair.
SECTION 43: ADDITIONAL LANDLORD REPRESENTATIONS AND WARRANTIES
SECTION 43.01. Landlord by separate agreement has sold its former
business on the Premises to Tenant and made certain warranties to Tenant
in connection with that sale. Certain of those warranties are listed in
Exhibit B attached hereto and hereby made a part hereof. To the extent
any of those warranties affect the Premises they will supersede any
condition of the Lease which is in conflict with a condition or conditions
of Exhibit B. As used in such Exhibit B, the term "Company" shall mean
Landlord; the term "Business" shall mean the business operations on the
Premises; the terms "Facilities," "Purchased Assets" and "Real Property"
shall mean the Premises; and other capitalized terms shall have the
meanings as set forth in such separate agreement. This Exhibit B shall be
enforceable against Western Atlas Inc. and shall be a personal
responsibility of Western Atlas Inc. but shall not be enforceable against
a successor Landlord of the Premises after a sale thereof.
SECTION 44: FIRE PROTECTION WATER AND UTILITIES SEPARATION
SECTION 44.01. Notwithstanding anything to the contrary in Section
15 and 30 hereof, Landlord shall, if Tenant ceases to lease and occupy the
property adjacent to the Premises known as 0000 Xxxxxx Xxxx, separate the
fire protection water supply from the adjacent building so that the
Premises is exclusively served by its existing service within a reasonable
period of time after Tenant vacates the adjacent building. Landlord shall
also separate any utilities which serve the Premises and the adjacent
property so that the Premises is exclusively served and metered by any
utility serving the Premises within a reasonable period of time after
Tenant vacates the adjacent building. Landlord shall be responsible for
the cost of completing the separations. Tenant shall grant Landlord and
it's contractors and vendors access for performing the necessary planning
and work as well as any follow up attention which may be necessary.
SECTION 45: WAIVER OF JURY TRIAL
SECTION 45.01. LANDLORD AND TENANT HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM
OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER
OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT,
TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR
DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES
HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED
AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
SECTION 46: DECLARATION OF GOVERNING LAW
SECTION 46.01. The Lease shall be governed in accordance with the
laws of the Commonwealth of Kentucky.
SECTION 47: EXTENSION
SECTION 47.01. At any time by giving written notice to Landlord
prior to twelve months before the expiration of this Lease Tenant may
extend the Term of the Lease one time for an additional 120 months. The
extension shall be on the same terms and conditions of the Lease except
Term and Fixed Rent. Fixed Rent during the extended period shall be at
the then prevailing market rate for similar buildings in the same market
area. The market rate shall be based on buildings the size of the
Premises at the commencement of the Lease and shall expressly exclude the
value or existence of any additions, improvements or alterations of the
Premises made by Tenant. If the Landlord and Tenant cannot agree on the
prevailing market rate, they shall jointly retain a professional appraiser
to perform research and determine the then prevailing market rate. If
Landlord and Tenant cannot agree on an appraiser 60 days before the
expiration of the Lease, they shall ask the American Institute of
Appraisers or it's successor organization to immediately select an
appraiser to determine the then prevailing market rate. Landlord and
Tenant shall each pay one-half of the cost of the appraiser. Time is of
the essence with regard to Tenant giving notice to Landlord.
SECTION 48: RIGHT OF FIRST OPPORTUNITY
SECTION 48.01. Landlord hereby grants to Tenant the right of first
opportunity to purchase the Premises. If Landlord intends to sell the
Premises at any time during the Lease Term, Landlord will give Tenant
written notice thereof and of the terms and conditions on which Landlord
will sell the Premises. Tenant shall have a period of thirty (30) days to
submit an offer to purchase the Premises containing terms and conditions
upon which Tenant desires to purchase the Premises, and during such thirty
(30) day period, Landlord will not enter into an agreement with any other
person or entity relating to the sale or transfer of the Premises. If
Tenant fails to submit an offer within such thirty (30) day period or if
Landlord and Tenant cannot agree on the terms of the sale after submission
of an offer by Tenant, this right of first opportunity shall cease.
SECTION 49: ENTIRE AGREEMENT
SECTION 49.01 - This Lease is the entire agreement of the parties
hereto with respect to the matters covered by this Lease, and no other
agreement, statement, or promise made by any party or to any employee,
officer, or agent of any party shall be valid, unless subsequently agreed
to in writing.
IN WITNESS WHEREOF, Landlord and Tenant have respectively caused this
Lease to be executed as of the date set forth above.
Landlord: Tenant:
WESTERN ATLAS INC. HK SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxxxxx, Xx.
By: /s/ Xxxxxxxx X. Eagle Its: Vice President
Its: Authorized Representatives
STATE OF WISCONSIN )
) SS:
COUNTY OF MILWAUKEE )
This instrument was acknowledged before me this 15th day of
November, 1996 by Xxxxxxxx X. Eagle, Authorized Representative of Western
Atlas Inc., a Delaware corporation, on behalf of the corporation.
/s/ Xxxxxx X. Xxxxxxxx, Xx.
Notary Public
My commission expires:
STATE OF WISCONSIN )
) SS:
COUNTY OF MILWAUKEE )
This instrument was acknowledged before me this 15th day of
November, 1996 by Xxxx X. Xxxxxxxxxx, Xx., Vice President of HK
Systems, Inc., a Wisconsin corporation, on behalf of the corporation.
/s/ Xxxxxx X. Xxxxxxxx, Xx.
Notary Public
My commission expires:
