Conformed Copy
LEASE
This Lease made this 13th day of October, 1995, by and between
XXXXX DEVELOPMENT, INC., and/or its successors and assigns (hereinafter
referred to as "Landlord"); and SWING-N-SLIDE CORP., whose principal place
of business is located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000
(hereinafter referred to as "Tenant").
W I T N E S S E T H:
Landlord, for and in consideration of the covenants and
agreements hereinafter set forth, to be kept and performed by Tenant,
demises and leases to Tenant, and Tenant does hereby hire and rent from
Landlord, the Demised Premises hereinafter described, for the period, at
the rental and upon the terms and conditions set forth.
I. DESCRIPTION OF DEMISED PREMISES
1.1 The Demised Premises shall consist of approximately 92,000
square feet of space in a building upon certain land described on Exhibit
A attached hereto and made a part hereof. The 92,000 square feet of said
building (together with the docks/decking hereinafter described) is herein
referred to as the "Demised Premises" and is located at Wuthering Hills
Drive and Enterprise Drive in the City of Janesville, Wisconsin. The
Demised Premises are shown on the attached building layout marked
Exhibit B. Prior to the commencement date of this Lease (as hereinafter
defined), Landlord shall install and construct in or about the Demised
Premises the improvements described in Exhibit C (Landlord's Work),
attached. Said work includes the installation of a deck area of
approximately 2,000 square feet, located on two levels within the Demised
Premises. Completion of Landlord's Work, as set forth in such Exhibit C
shall be on or before March 15, 1996, unless the work be delayed at any
time by strike, lockouts, fire, unusual delay in transportation,
unavoidable casualties, delay in obtaining required permits, or any causes
beyond the contractor's or Landlord's control. It is agreed that for
purposes of this Lease, the "commencement date" shall be the first day of
the calendar month following substantial completion of Landlord's Work in
or about the Demised Premises.
1.1(a) Notwithstanding anything to the contrary contained
herein, this Lease shall not become effective unless and until the
Landlord has acquired fee simple title to the Demised Premises from the
City of Janesville, with the thirty (30) day period following the date of
execution of this Lease. If such title is not so obtained by that date,
then this Lease shall become null and void.
1.1(b) Construction of Improvements. Prior to the
commencement date of this Lease (as hereinafter defined), Landlord agrees
that it shall construct on the Premises a new building and appurtenances
for Tenant's use and occupancy, all in accordance with certain plans and
specifications attached hereto as Exhibit C. Said plans and
specifications are hereby approved by Landlord and Tenant and shall be
deemed incorporated into this Lease. Landlord, as soon as reasonably
practicable after the execution of this Lease, shall commence the
construction of the Premises and appurtenances and diligently prosecute to
completion the construction thereof, so that all thereof shall be ready
for use at the time of the commencement of the term of this Lease.
Landlord will construct the Premises in good and workmanlike manner and in
accordance with the aforesaid plans and specifications and will not
materially deviate from such plans and specifications without the prior
written consent of Tenant. Minor deviations from plans and specifications
shall be construed as substantial compliance with all plans and
specifications. All building and mechanical warranties will be assigned
by Landlord to Tenant.
1.2 Landlord agrees to allow Tenant, its agents and contractors
access to the building and to the Demised Premises as soon as reasonably
possible for the purpose of installing tenant or leasehold improvements.
In exercising such access rights, Tenant agrees that it will not
materially interfere with Landlord or Landlord's contractors or in any
manner impede the progress of Landlord's construction. Except as provided
for in Section 6.4 below, Tenant shall not create or permit to be created
or to remain, and will discharge, any lien (including, but not limited to,
the liens of mechanics, laborers or materialmen for work or materials
alleged to be done or furnished in connection with the Demised Premises),
encumbrance or other charge upon the land, the building or the Demised
Premises or any part thereof or upon Tenant's leasehold interest therein;
provided, that Tenant shall not be required to discharge any such liens,
encumbrances or charges as may be placed upon the land, the building or
the Demised Premises by the act of Landlord. Prior to commencement of
construction by Tenant, Tenant shall furnish Landlord with satisfactory
evidence of adequate worker's compensation insurance and public liability
insurance for bodily injury or death and property damage.
1.3 Tenant shall not install any material leasehold improvements or
commence any construction upon the Demised Premises without first
submitting to Landlord the plans and specifications therefor and obtaining
the Landlord's consent thereto, which consent shall not be unreasonably
withheld or delayed.
1.4 During the term of this Lease, Tenant shall have the exclusive
right to use, in conjunction with all other tenants of the land located in
Exhibit A, all common driveways and parking areas located thereon. Such
use shall be subject to such reasonable rules and regulations relating to
such use as the Landlord may from time to time promulgate; and all such
rules and regulations shall be in writing and shall become effective and
binding upon the Tenant upon delivery. Subject to reasonable regulation
as aforesaid, Landlord shall not subsequently eliminate or materially
restrict such uses of the common areas.
1.5 Tenant shall have the right to use all loading docks/decks
serving the Demised Premises; and shall repair and maintain the same
during the term of this Lease. Landlord shall have no responsibility or
obligation to repair or replace the same.
II. TERM OF LEASE
The term of this Lease shall be for a period of years described as
beginning on the "commencement date" established in Article I hereof, plus
seven (7) years thereafter. On or before the commencement date, Landlord
and Tenant shall execute a lease Addendum to this document, which shall
specify the actual commencement date.
III. RENEWAL PERIODS
3.1 The term of this Lease may be automatically renewed for no more
than three (3) successive five (5) year periods, upon the same terms and
conditions contained herein; except that the rental for the renewal
term(s) shall be as hereinafter provided in Article IV hereof. In order
to avoid any one of the automatic renewal terms, Tenant may notify
Landlord in writing of a desire to not so renew, which notice shall be
given not less than nine (9) months or more than six (6) months prior to
the expiration of the initial term of this Lease or the applicable renewal
thereof, as the case may be. Notwithstanding the foregoing, however, in
the event the Tenant shall be in default hereunder upon expiration of the
initial term hereunder or upon expiration of any renewal term, this Lease
shall not be renewed and Tenant shall vacate the Demised Premises as
otherwise provided for herein.
3.2 In the event the Tenant shall remain in possession of the
Demised Premises beyond the initial expiration date or any renewal term,
having notified Landlord of a desire to not renew this Lease as provided
for in Section 3.1 hereof, this Lease shall continue in full force and
effect during such period of occupancy; except that the tenancy shall be
on a month-to-month basis and except that the rental shall be the monthly
rent then in effect upon the stated expiration date, plus 50.0% thereof.
3.3 In the event of any holding over or in the event the Tenant has
renewed the term of this Lease, the Tenant shall accept the Demised
Premises in the condition in which the same then is; and Landlord shall
not be obligated to renovate, redecorate or reconstruct the Demised
Premises during the renewal period, except as provided elsewhere in this
agreement.
IV. RENTAL
4.1 Tenant agrees to pay to Landlord as a Base Rental for the use
and occupancy of the Demised Premises, the following annual rentals for
each "lease year." For purposes of this agreement, the term "first lease
year" shall mean the period of time commencing on the commencement date of
this Lease, and expiring one (1) year thereafter; and subsequent lease
years shall be succeeding annual periods. The Base Rental for the first
lease year is in the sum of $276,000.00, payable in equal monthly
installments of $23,000.00 per month, payable in advance, beginning on the
commencement date hereof and on the first day of each calendar month
thereafter during this lease term or any renewal thereof. Commencing with
the second lease year and each lease year thereafter during the term of
this Lease or any renewal thereof, the Base Rental for each such
succeeding lease year shall be increased as provided for in Section 4.2
hereof.
4.2 The Base Rental shall be periodically adjusted as provided for
in Section 4.1 hereof. Commencing with the second lease year and on the
commencement of each lease year thereafter during the remaining term(s) of
this Lease, the Base Rental shall be increased by the sum of three percent
(3%) (compounded) over the Base Rental in effect for the immediately
preceding lease year. The adjusted Base Rental shall then remain in
effect until the next succeeding adjustment. Under no circumstances shall
the adjusted Base Rental ever be less than the sum set forth in Section
4.1 hereof.
4.3 Tenant shall pay the Base Rental to Landlord for each lease
year, in equal monthly installments, in advance, on the first day of each
and every month during the term of this Lease, commencing on the
commencement date of this Lease, plus any excise, sales, use or privilege
tax or taxes, if any, levied on the rentals or the receipt thereof, except
Landlord's income tax. All rent shall be paid by Tenant to Landlord at
000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx, 00000, c/o Xxxxx Xxxxx, or at such
other place as may be designated in writing by the Landlord.
4.4 Tenant may occupy the Demised Premises subsequent to the
substantial completion of Landlord's Work. In such event, the Tenant
shall pay to Landlord a rental for such period of occupancy prior to the
commencement date of this Lease in the sum of $767.00 per day for each day
(or any portion thereof) so occupied by Tenant. Such earlier occupancy
shall not change the commencement date or termination date of this Lease.
4.5 The rent provided for in this Lease shall be an absolute "net
net net" return to the Landlord for the term of this Lease, free of any
expenses or charges whatsoever with respect to the Demised Premises.
V. SERVICES AND FACILITIES
5.1 Tenant's Obligations. All installations, fixtures, leasehold
improvements, finishing and decorating on the Demised Premises not
provided to be done by Landlord in Article I of this Lease shall be
furnished and accomplished at the sole cost and expense of the Tenant.
5.2 Taxes. During the term of this Lease, Tenant shall pay as
additional rental, as they become due and payable, and before they become
delinquent, all real estate taxes and special assessments, levied against
the building and the lands described in Exhibit A. All such taxes and
assessments for the year in which this Lease is terminated shall be
prorated between Landlord and Tenant, as of the termination date, based on
the actual taxes and assessments if known or if not known, on the taxes
and assessments for the calendar year preceding the year within which this
Lease is terminated.
5.3 Repairs and Maintenance. During the term of this Lease, Tenant
shall at all times keep in good order and condition the Demised Premises
and the building in which the same are located, together with the
surrounding walkways and parking lots; and at its own cost and expense,
make all repairs and perform all required maintenance (including
structural and roof repairs) to the Demised Premises, the building
containing the same, and all equipment thereof, including, without
limitation, all pipes, ducts, conduits, plumbing, heating and air-
conditioning installations, wiring, gas and electrical fittings, and all
other equipment of every nature whatsoever (including, but not limited to,
the overhead doors). At the termination of this Lease, Tenant shall
deliver the Demised Premises and building to Landlord in good condition
and repair, allowance being made for ordinary wear and tear and
obsolescence. Tenant shall also be responsible for effectuating all
structural and roof repairs to the Demised Premises; and for all repairs,
maintenance and replacement of all driveways, parking lots, sidewalks or
other facilities serving the Demised Premises or the building in which the
same are located. Landlord agrees that it will assign all manufacturers'
or vendors' warranties on any equipment and any contractor(s)' warranties
relating to the Demised Premises, to Tenant; provided the same are
assignable and further provided that the assignments herein referred to
relate only to those items for which Tenant is responsible for the repair
and maintenance thereof.
5.4 Utility Charges and Personal Property Taxes. Tenant shall pay
all charges for electricity, gas, telephone, and other similar utility
charges furnished to the Demised Premises. Tenant shall pay, before they
become delinquent, all personal property taxes levied or assessed against
its property located in the Demised Premises, as well as any taxes levied
against its leasehold improvements referred to in Section 1.2 hereof.
Tenant shall be responsible for the payment of sewer and water charges for
such service to the Demised Premises.
5.5 Heating and Air Conditioning Repairs and Maintenance. Tenant
agrees to pay for all operating, maintenance and replacement costs, and
expenses in providing refrigerated air conditioning and heat to the
Demised Premises or any part thereof; and shall pay for all repairs and
maintenance (including replacement) of the heating and air conditioning
units located therein. Such heating and air conditioning units are the
property of Landlord and are to be provided as part of Landlord's Work.
5.6 Snow Removal and Grass Cutting. Tenant shall be responsible for
all grass cutting and snow removal on the premises described in Exhibit A.
5.7 Net Net Net Obligations. It is the intent of the parties hereto
that the Base Rentals provided for in Article IV be an absolutely net net
net return to Landlord. Therefore, Tenant shall be responsible for the
payment of any and all operation, maintenance and operating cost
associated with the operation, maintenance and repair of the Demised
Premises and the building containing the same.
VI. CONDITION AND USE OF PREMISES
6.1 Use - Compliance with Laws and Restrictions. Tenant shall have
the peaceful and quiet use of the Demised Premises for office and
warehouse purposes, without hindrance on the part of Landlord, and
Landlord shall warrant and defend Tenant in such peaceful and quiet use
against the lawful claims by any person claiming by, through or under
Landlord, so long as the Tenant is not in default hereunder. Tenant shall
comply with all present and future laws, ordinances, and regulations of
duly constituted public authorities now or hereafter in any manner
affecting the Demised Premises, the adjacent sidewalks and parking lots,
or any building thereon or the use thereof. Tenant shall have the right,
without cost or expense to Landlord, to contest the validity of laws,
ordinances, or regulations adversely affecting the use of the Demised
Premises; provided, however, that if the delay in complying with any such
law, ordinances, or regulations may result in subjecting Landlord to
criminal liability, such contest shall only be had with the consent of
Landlord.
6.2 Changes and Alterations by Tenant. Without the prior written
consent of Landlord, Tenant shall not make any structural alteration or
addition in or to the Demised Premises or to the building erected on the
lands described in Exhibit A. Tenant may make alterations which are not
structural in nature to the Demised Premises provided Landlord's consent
is first obtained and such consent shall not be unreasonably withheld.
All alterations, renewals, replacements, or improvements of and additions
to the Demised Premises or equipment on or appurtenant to the Demised
Premises made or provided by the Tenant shall, upon termination of this
Lease, be and become the property of Landlord, except for any trade
fixtures installed by Tenant and used in connection with the operation of
its business as provided for in Section 6.5 hereof.
6.3 Landlord's Right to Inspect and Repair. Landlord, its agents,
or other representatives, shall have the right to enter into or upon the
Demised Premises, or any part thereof, at all reasonable hours for the
purpose of examining the same, or making such repairs or alterations
therein that may be necessary for the safety and preservation thereof.
6.4 Mechanics' Liens. Tenant shall not permit any mechanics',
materialmen's, or similar liens to remain upon the Demised Premises for
labor or material furnished to Tenant or claimed to have been furnished to
Tenant in connection with work of any character performed or claimed to
have been performed on the Demised Premises or at the direction or with
the consent of Tenant, whether such work was performed or materials
furnished before or after the commencement of the term of this Lease.
Tenant may, however (provided Tenant gives complete and adequate notice to
Landlord), contest the validity of any such lien or claim, and further
provided Tenant shall give to Landlord reasonable security to insure
payment and to prevent any sale, foreclosure, or forfeiture of the Demised
Premises by reason of such nonpayment, if required by Landlord. Upon a
final determination of the validity of any such lien or claim, Tenant
shall immediately pay any judgment or decree rendered against Tenant
and/or Landlord with all proper costs and charges and shall cause such
lien to be released of record without cost to Landlord, and thereupon
Landlord shall return the said security provided to be deposited with
Landlord.
6.5 Machinery, Apparatus, and Equipment. Tenant may at any time and
from time to time install on the Demised Premises such machinery,
apparatus, and equipment as it may desire for the purpose of its use of
the Demised Premises, and title to such machinery, apparatus, and
equipment, and any replacements thereof and additions thereto, shall
remain in Tenant, even though such machinery, apparatus, and equipment or
any thereof may be affixed to the Demised Premises in such manner as might
under applicable law cause the same to be regarded as part of the real
property. Upon the termination of this Lease for any cause, Tenant shall
have the right to remove any and all such machinery, apparatus, and
equipment, provided only that Tenant shall leave the Demised Premises in
an undamaged condition; except that any equipment stored on the premises
by the Tenant to replace equipment originally provided by the Landlord
shall not be removed and shall become the property of the Landlord.
VII. INSURANCE
7.1 Tenant to Provide Insurance. During the term of this Lease,
Tenant shall keep all of its personal property, furniture, fixtures,
leasehold improvements and equipment insured against loss or damage by
fire or other casualty; and Landlord shall have no responsibility or
objection in connection therewith.
7.2 Fire and Casualty Insurance. The Tenant shall insure the
building and improvements located on Exhibit A against loss or damage by
fire with extended coverage (including damage due to windstorm, hail,
explosion, riot, riot attending a strike, civil commotion, aircraft,
vehicles, and smoke), in an amount equal to the full replacement value
thereof. During the term of this Lease, Tenant shall also provide and
keep in force for the benefit of Tenant and Landlord policies in standard
form protecting Landlord and Tenant against any and all liability
occasioned by accident or disaster, such policies to be written by
insurance companies satisfactory to Landlord in such amounts as Landlord
may from time to time determine. The Landlord and Tenant shall be named
as the insured in all such policies. Tenant shall not violate or permit
to be violated any condition of any of said policies, and Tenant shall so
perform and satisfy the requirements of the companies writing such
policies that at all times companies of good standing reasonably
satisfactory to Landlord shall be willing to write such insurance.
7.3 Injury and Loss. Landlord shall not be responsible or liable
for any injury or death of Tenant or any person on or about the Demised
Premises, and Tenant agrees to indemnify and hold Landlord harmless
therefrom. Landlord shall not be liable for any damage to any property at
any time stored or kept in the Demised Premises from water, rain or snow,
which may leak, issue or flow from any part of the building in which the
Demised Premises are located. Landlord shall not be liable for any loss
or damage to Tenant resulting from negligence of any other tenants in the
said building.
7.4 Waiver.
A. Tenant agrees that any fire or liability insurance policy
carried by Tenant insuring Tenant's property located in or upon the
Demised Premises on the Tenant's operations thereof, shall contain a
provision whereby the insurance carrier waives any right of subrogation
against the Landlord.
B. Landlord hereby releases and waives any and all rights of
subrogation against Tenant which, in the absence of this release and
waiver, would arise in favor of any insurance company insuring Landlord
against loss by fire, extended coverage, casualty and loss of any other
type, resulting from damage to or destruction of the Demised Premises or
any portion thereof. The foregoing waiver of subrogation rights is
expressly conditioned upon the Tenant's being able to obtain in all
present and future policies of insurance, clauses which permit the insured
to release and waive the insurance company's right of subrogation. In the
event insurance with such subrogation waiver clause cannot be obtained by
Tenant, then Tenant shall give written notice thereof to Landlord, and
after the giving of such notice, the waiver hereinabove set forth shall be
considered withdrawn and ineffective.
VIII. DAMAGE OR DESTRUCTION
8.1 In the event the Demised Premises or the building in which the
same are located shall be partially destroyed by fire or other casualty,
the Tenant will, as soon as possible, repair or replace said building so
that Tenant may continue in occupancy. It is further agreed that the
rental herein required to be paid shall not xxxxx during the period of
untenantability of the Demised Premises caused by such partial
destruction. Partial destruction under this paragraph is defined as
damage which will cost less than one-third (1/3) of the replacement cost
of the entire building to replace.
8.2 In the event the Demised Premises or the building in which the
same is located shall be damaged by fire or other casualty, and the cost
of repair and replacement shall cost more than one-third (1/3) of the cost
of the entire building to repair and replace, the rent payable hereunder
shall xxxxx as of the date of the occurrence of said damage, and any
unearned rent paid or credited in advance shall be refunded. The Landlord
and Tenant shall each have the option of terminating this Lease by
delivering written notice to terminate to the other within forty-five (45)
days of the date of occurrence of said damage. If both parties elect not
to terminate the Lease, and such election shall be evidenced by a written
agreement within forty-five (45) days of the date of occurrence of said
damage, then Tenant shall with due diligence rebuild and replace said
building in substantially the same condition as it was in prior to such
destruction or damage, within one hundred eighty (180) days of said
notice; excepting therefrom any delays due to strikes, acts of God or any
other cause beyond the control of the Landlord; and the primary term under
this Lease shall then run for the balance of the term (extended by a
period of time equal to the date of occurrence of said damage to the date
of completion of said construction), and shall be subject thereafter to
all of the provisions of this Lease.
8.3 In the event of any repair, replacement or restoration of the
Demised Premises, the Tenant may limit such repair, replacement or
restoration to such as may reasonably be obtained by the application of
the proceeds of insurance covering such loss, so long as such repair,
replacement or restoration reasonably accommodates the Tenant's previous
use of the Demised Premises immediately prior to the destruction.
8.4 In the event the Demised Premises are not restored or repaired
as a result of any casualty or loss, all applicable insurance proceeds
shall be payable to Landlord, except for Tenant insurance proceeds per
Section 7.1.
IX. CONDEMNATION
In the event the Demised Premises or any part thereof shall be
condemned and taken for a public or quasi-public use, any award made to
compensate either Landlord or Tenant for their respective damage or loss
shall be paid to Landlord; except for any award or portion thereof
attributable to Tenant's loss of fixtures, business or relocation costs.
In the event only a part of the Demised Premises is condemned and taken,
Tenant, in accordance with plans and specifications reasonably acceptable
to the Landlord, shall promptly restore the remaining portion of the
Demised Premises so that it will constitute a complete architectural unit,
and upon completion of such work and upon payment of the award or
compensation, the Tenant shall be entitled to apply the proceeds of any
such award to payment of the cost of such restoration. There shall be no
abatement in rent or other adjustments under the circumstances. Tenant
may limit any such restoration and repair to that which can be obtained by
a reasonable application of the proceeds of such award. Upon any total
taking, Tenant's obligation to pay rent or to discharge any other
obligation hereunder, other than the payment of money then due and damages
arising out of any breach on the part of Tenant, shall cease except as
provided herein. If the lands and/or buildings condemned prevent the
Demised Premises from reasonably accommodating the uses thereof by Tenant,
this Lease shall then terminate at Tenant's option.
X. LANDLORD'S RIGHTS ON DEMISED PREMISES
Landlord shall have the right at any reasonable time to enter the
Demised Premises for the purpose of examination or any other purpose
Landlord may deem necessary for the protection of the rights of Landlord,
and to exhibit the Demised Premises for sale at reasonable times, and
during the last nine months of the term to place "FOR SALE" and/or "FOR
RENT" signs on such portions of the Demised Premises as Landlord may
determine.
XI. INDEMNIFICATION
11.1 Notwithstanding anything else contained in this agreement,
Tenant agrees to indemnify, defend and save Landlord harmless from and
against any and all claims, damages, costs and expenses, including
reasonable attorney fees, arising from (1) the conduct or management of
the business conducted by the Tenant on the Demised Promises, (2) any
breach or default in the performance of any of Tenant's obligations under
this Lease, and (3) any intentional tort or other negligence of the
Tenant, its agents, contractors or employees. 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 using counsel satisfactory to Landlord. Nothing contained in this
Section 11.1, however, shall be deemed to be an indemnification against,
nor to relieve Landlord from responsibility (including reasonable attorney
fees) for, any accident, injury, damage, loss or cost caused by the
negligent or willful acts of Landlord, its contractors, employees, or
agents.
11.2 Waste. Tenant agrees that it will not suffer or permit waste to
be committed in or upon any portion of the Demised Premises during the
term of this Lease.
XII. DEFAULT AND MISCELLANEOUS
12.1 In the event Tenant fails to pay any rental due hereunder or
fails to keep and perform any of the other terms or conditions hereof,
time being of the essence, then fifteen (15) days after written notice of
default from Landlord, the Landlord may, if such default has not been
corrected, resort to any and all legal remedies or combination of remedies
which Landlord may desire to assert including, but not limited to, one or
more of the following:
(a) Lock the doors to the Demised Premises and exclude Tenant
therefrom;
(b) Retain or take possession of any property on the premises
pursuant to Landlord's lien;
(c) Enter the premises and remove all persons and property
therefrom;
(d) Declare the Lease at an end and terminate;
(e) Xxx for rent due and to become due under the Lease and for
any damages sustained by Landlord;
(f) Continue the Lease in effect and relet the premises on such
terms and conditions as Landlord may deem advisable with
Tenant remaining liable for the monthly rent plus the
reasonable cost of obtaining possession of the premises and
of any repairs and alterations necessary to prepare the
premises for reletting, less the rentals received from such
reletting, if any.
No action of Landlord shall be construed as an election to terminate the
Lease unless notice of such intention be given to Tenant. In the event
Landlord pursues any of the specifically stated remedies, that the same
shall be without prejudice to any other rights or remedies Landlord may
have and without prejudice to Landlord's right to the past rent due or
future rent to accrue under the Lease.
12.2 Should Tenant be adjudicated as bankrupt or make an assignment
for the benefit of creditors, then, and in any such event, the Landlord
shall immediately have the right to cancel this Lease, to the extent
permitted by the bankruptcy laws. No trustee in bankruptcy, receiver or
other such person representing Tenant shall have any right to continue in
the place of the Tenant if the Landlord shall have given notice to the
Tenant or its representative that this Lease is terminated; and in such
event all of the other applicable provisions of this Article shall apply
as though the Lease had been terminated for other cause.
12.3 Both parties agree to pay all reasonable attorneys' fees and
other costs and expenses incurred by the prevailing party in any action in
enforcing any and all obligations under this Lease.
12.4 Any amount due from Tenant to Landlord hereunder not paid within
ten (10) days of written notice or demand therefor shall bear interest at
the rate of fifteen percent (15%) per annum, from the due date until paid,
unless otherwise specifically provided herein, but the payment of such
interest shall not excuse or cure any default by Tenant under this Lease.
12.5 If Landlord shall default in performing its obligations under
this Lease, Tenant shall give Landlord written notice of the deficiency,
and Landlord shall have fifteen (15) days to correct the same, and if not
corrected within said fifteen (15) days and such breach is a material
breach, (except as herein provided), Tenant may terminate this Lease or
take such other legal steps to which it may be entitled; except that if
such corrections cannot be completed within fifteen (15) days, Landlord
agrees that material progress to make such corrections shall continue
without interruption at all times; provided, however, that Tenant shall
not surrender or terminate this Lease by reason of any act or omission by
Landlord until Tenant shall have first given written notice to the holder
of any mortgage of record covering the Demised Premises of such act or
omission by Landlord and affording the holder of any mortgage an
opportunity to foreclose and remedy the situation as necessary.
12.6 The failure of Tenant or Landlord to perform any of the
agreements, covenants, or conditions hereof (other than the Payment of
rental by Tenant) by reason of war, riot, lockout, strike, casualty, or
act of God, or by reason of restrictions of regulations of any federal,
state, or local governmental authority, or other cause beyond Tenant's or
Landlord's control, whether similar or dissimilar to those above
enumerated, shall not be a default hereunder as long as such cause
continues.
12.7 The failure of Landlord to insist upon strict performance of any
of the terms, covenants, and conditions hereof to be performed by Tenant
or the failure to invoke any remedy in the event of a default by Tenant
shall not be deemed a waiver of any rights or remedies which Landlord may
have and shall not be deemed a waiver of any subsequent breach or default
by Tenant in any of such terms, covenants, and conditions of this Lease.
12.8 In the event of voluntary or involuntary bankruptcy on the part
of Tenant, or the appointment of a receiver for Tenant, or a voluntary
assignment to creditors by Tenant, or if this Lease shall by operation of
law devolve upon or pass to any person, firm, or corporation other than
Tenant, then and in each of said events, this Lease shall, at the option
of Landlord, be subject to cancellation forthwith.
12.9 Notices and demands under this Lease from one party to the other
shall be given or made by registered or certified mail, with return
receipt requested, addressed as follows:
TO LANDLORD: Xxxxx Development, Inc.
Attn: Xx. Xxxxx X. Xxxxx, President
000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
TO TENANT: Swing-N-Slide Corp.
Attn: Xxxxxxx X. Xxxxxxx, President
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
The date shown by the return receipt as the date on which said registered
or certified mail is received by the addressee shall be conclusively
deemed to be the date on which a notice is given or a demand made. The
above addresses may be changed at any time or from time to time by notice
given from one party to the other in the manner hereinabove provided. In
the event legal process is required to be served upon Landlord, it is
agreed that service of process upon Landlord's managing partner at the
address specified above shall be service of process upon Landlord.
12.10 Assignment - Subletting. Tenant shall not assign this
Lease or sublet the Demised Premises, in whole or in part, without the
prior written consent of Landlord first obtained, which shall not be
unreasonably withheld. Landlord shall, in writing, advise the Tenant
within thirty (30) days after the receipt by the Landlord of such
information relative to an assignee or sublessee as Tenant may provide to
the Landlord of Landlord's intent to give or withhold consent. The
failure of the Landlord to respond within such time limit shall constitute
the Landlord's consent to such assignment or subletting. In any event,
such assignment or subletting shall be without release of the Tenant from
all of the obligations of this Lease. In the event this Lease is assigned
or the premises sublet by the Tenant and the rent to be paid the assignee
or the sublessee is greater than the rent reserved in this Lease, Tenant
shall pay such greater amounts to the Landlord in monthly installments.
12.11 Miscellaneous. No waiver of any default by Tenant
hereunder shall be implied from any omission by Landlord to take any
action on account of such default if such default persists or is repeated
and no express waiver shall effect any default other than the default
specified in the express waiver and then only for the time and to the
extent therein stated. One or more waivers of any covenant, term, or
condition of this Lease by Landlord shall not be construed as a waiver of
a subsequent breach of the same covenant, term, or condition. The
invalidity or unenforceability of any provision hereof shall not affect or
impair any other provisions. The laws of the State of Wisconsin shall
govern the validity, performance, and enforcement of this Lease. The
headings of the sections herein are for convenience and do not define,
limit, or construe the contents thereof.
12.12 Signs. Tenant shall not put upon nor permit to be put upon
any part of the premises any signs, billboards, or advertisements which
whatever, without written consent of Landlord, which consent shall not be
unreasonably withheld.
XIII. SUBORDINATION AND ATTORNMENT
13.1 Landlord reserves the right to place liens and encumbrances on
the Demised Premises, superior in lien and effect to this Lease. This
Lease, at the option of the Landlord, shall be subject and subordinate to
any liens and encumbrances now or hereafter imposed by Landlord upon the
Demised Premises; and the Tenant agrees to execute and deliver upon demand
such instruments subordinating this Lease to any such lien or encumbrance
as shall be required by Landlord from time to time, except that any such
lien or encumbrance shall be subject to Tenant's right to quiet possession
hereunder so long as it is not in default hereunder.
13.2 In the event any proceedings are brought for the foreclosure of
any mortgage or any other lien covering the Demised Premises, Tenant will
attorn to the purchaser at foreclosure sale and recognize the purchaser as
the Landlord under this Lease. The purchaser by virtue of such
foreclosure shall be deemed to have assumed, as substitute Landlord, the
terms and conditions of this Lease until the resale or other disposition
of its interest by such purchaser. Such assumption, however, shall not be
deemed of itself an acknowledgement by the purchaser of the validity of
any then-existing claims of Tenant against the prior Landlord.
13.3 Tenant agrees to execute and deliver such further assurance and
other documents (including a new lease upon the same terms and conditions
as the within Lease) confirming the foregoing as such purchaser may
reasonably request. Tenant waives any right of election to terminate this
Lease because of any such foreclosure proceedings.
13.4 Tenant agrees, upon request by Landlord from time to time, to
execute agreements with the holder of any mortgage covering the Demised
Premises wherein Tenant agrees to waive any right of election to terminate
this Lease because of any foreclosure proceedings, to attorn to such
holder of any mortgage in accordance with Section 13.2 hereof, and not to
surrender or terminate this Lease by reason of any act or omission of
Landlord until Tenant shall have first given written notice to such holder
of any mortgage of record of such act or omission by Landlord and
affording the holder of any mortgage an opportunity to foreclose and
remedy the situation as necessary. In consideration of Tenant's executing
any such agreement, the holder of any mortgage shall therein agree that so
long as Tenant is not in default, (beyond any period given to cure such
default) in the performance of any of the terms, covenants, or conditions
of this Lease on the Tenant's part to be performed, the mortgagee will not
join Tenant as a party defendant in any action or proceeding for the
purpose of terminating Tenant's interest and estate under this Lease.
XIV. WAIVER AND SEPARABILITY
14.1 The consent of the Landlord in any instance to any variation of
the terms of this Lease or the receipt of rent with knowledge of any
breach shall not be deemed to be a waiver as to any breach of any covenant
or condition herein contained, nor shall any waiver be claimed as to any
provision of this Lease unless the same be in writing, signed by the
Landlord or the Landlord's authorized agent.
14.2 This Lease and any written addendum contains the entire
agreement between Landlord and Tenant.
14.3 If any term or provision of this Lease or any application hereof
shall be invalid or unenforceable, the remaining terms and provisions of
this Lease and any other application of such term or provision shall not
be affected thereby.
XV. TERMINATION
15.1 Upon the termination of this Lease for any reason, Tenant shall
deliver up and surrender to Landlord the Demised Premises in good
condition and repair, reasonable wear and tear and obsolescence excepted.
15.2 Upon termination of this Lease, Tenant, if not in default
hereunder, may take and remove from the Demised Premises all trade
fixtures and equipment placed or installed therein by Tenant, provided
that Tenant shall restore and repair any damage done to the Demised
Premises by such removal and provided that materials so glued or affixed
to floors, walls, ceilings, or structural parts of the Demised Premises as
are not susceptible of removal without damage to the Demised Premises
shall become the property of the Landlord upon termination. In no event
may Tenant remove any tenant improvements installed at the expense of
Landlord. Any items not removed by Tenant within thirty (30) days after
such termination shall, at the option of Landlord, become the property of
Landlord; but Tenant shall continue to pay rent until said space is
finally delivered to the Landlord.
XVI. ESTOPPEL CERTIFICATES
Each party agrees that from time to time upon written request of the
other party or the holder of any mortgage covering the Demised Premises,
the party requested so to do will execute, acknowledge and deliver to the
other party or to the mortgagee, as the case may be, a certificate
evidencing whether or not:
(a) This Lease is in full force and effect;
(b) This Lease has been modified or amended in any respect, and
submitting copies of such modifications or amendments, if
any; and
(c) There are any existing defaults under this Lease to the
knowledge of the Tenant or Landlord and specifying the
nature of such defaults, if any.
XVII. NO MERGERS
There shall be no merger of this Lease or of the leasehold estate
hereby created with the fee estate in the Demised Premises or any part
thereof by reason of the fact that the same person, firm, corporation or
other legal entity may acquire or hold, directly or indirectly, this Lease
or the leasehold estate hereby created or any interest in this Lease or in
such leasehold estate and the fee estate in the Demised Premises or any
interest in such fee estate.
XVIII. STORAGE OF MATERIALS AND REMOVAL THEREOF
Notwithstanding any other provisions contained in this Lease, Tenant
shall not utilize any part of the Demised Premises for the storage of
hazardous materials or toxic wastes as those terms are defined in
applicable federal, state and local rules and regulations including, but
not limited to, U.S. Federal Register, Vol. 52, #77. On or before the
termination of this Lease, Tenant agrees to remove all materials brought
to the Demised Premises at any time after the commencement date, and
agrees to pay to the Landlord the cost of removing any such materials in
the event Tenant fails to remove such materials and such materials are
removed by the Landlord.
XIX. PARTIES BOUND
This Lease and the provisions thereof shall be binding upon and shall
inure to the parties hereto and their respective successors and assigns;
it being understood, however, that nothing herein contained shall be
construed to affect, abridge, or modify in any manner the provisions of
Section 12.10 hereof.
XX. OPTION TO PURCHASE
20.1 During the term or this Lease and any and all extensions, the
Tenant shall have the right and option to purchase the Demised Premises,
the building comprising the same and the lands thereof, as set forth in
Exhibit A, in accordance with the terms and provisions set forth herein.
In order to exercise said Option, Tenant shall exercise it by giving
written notice to Landlord during the term of this Lease. Such notice
shall specifically advise the Landlord of Tenant's intent and election to
purchase the premises in accordance with the provisions of this Section
20.1. Upon the exercise of the Option, then in such event, the Landlord
shall provide to the Tenant, a commitment for title insurance, issued by a
title insurance company licensed to engage in business in the State of
Wisconsin, in an amount equal to the purchase price. Upon receipt of such
commitment, Tenant shall have ten (10) days to object to the same. If no
objection is made, then the Tenant shall be deemed to have accepted the
commitment. If an objection is made, Landlord will then have thirty (30)
days within which to cure any title defects so raised. Within thirty (30)
days following the date of the notice exercising the Option, the
transaction shall be closed. At the closing, the Tenant shall pay the
purchase price; and upon payment therefor, the Landlord shall convey the
Demised Premises, the land and building described in Exhibit A, to the
Tenant, free and clear of all liens and encumbrances, excepting any lien
or encumbrance created by the act or omission of the Tenant. Upon such
conveyance, this Lease shall terminate and be of no further force and
effect. Landlord shall be responsible for the payment of any and all real
estate transfer tax occasioned as a result of the sale of the property;
and there shall be no proration of taxes, insurance and other costs,
excepting rental payments which will be prorated to the date of
termination of the Lease. For purposes hereof, the purchase price shall
be determined pursuant to the following formula. The Base Rental in
effect for the lease year in which the closing shall occur, shall be
applied against the capitalization rate of ten percent (10%) to arrive at
the purchase price. For example, if the Base Rent in effect for the year
in question is in the sum of $300,000.00, said Base Rent would then be
divided by a factor of .10 to arrive at a purchase price of $3,000,000.00.
Notwithstanding anything to the contrary contained herein, the notice
exercising the Option shall be given at least six (6) months in advance of
the anticipated closing and the closing must occur on or before the
February 1st following the date of the notice.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be signed on their behalf by all on the day and year first written above.
IN THE PRESENCE OF: TENANT:
SWING-N-SLIDE CORP.
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President
IN THE PRESENCE OF: LANDLORD:
XXXXX DEVELOPMENT, INC.
_____________________ By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, Landlord
EXHIBIT A
The following described lands situated in the County of Rock, State
of Wisconsin, to-wit:
6 acres - Janesville, Wisconsin - corner of Enterprise Drive
(400') and Wuthering Hills Drive to be surveyed off from a 16.99
acre parcel being purchased from the City of Janesville.
Enterprise Drive is under construction and Wuthering Hills Drive
is to be constructed in 1996 by the City of Janesville at no
cost to the Tenant.
Tenant will have no special assessments for the construction of
Enterprise Drive being done in 1995 nor for Wuthering Hills
Drive being constructed in 1996 by the City of Janesville as a
part of their TIF District cost.
EXHIBIT B
Building Layout
Those plans submitted October 12, 1995, and are a part of this
Lease.
EXHIBIT C
Landlord's Work
Landlord's work includes those items in the building plans and
also set forth in the letter of intent.
90,000 sq. ft. metal building - 24' high at xxxxx
16 docks with 8 dock levelers
2000 sq. ft. office/bathroom/breakroom with HVAC
2000 sq. ft of deck above office/bathroom/breakroom sprinkled
+/- 6 acres of land subject to survey
