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EXHIBIT 10.65
LEASE AGREEMENT
ELECTROMOTIVE SYSTEMS, INC.
a Wisconsin corporation
Landlord
AND
MAGNETEK, INC.
a Delaware corporation
Tenant
Property: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
______________, 1999
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TABLE OF CONTENTS
Page
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ARTICLE 1. LEASED PROPERTY; TERM................................................................................1
ARTICLE 2. DEFINITIONS..........................................................................................2
ARTICLE 3. RENT.................................................................................................6
3.1 Base Rent.......................................................................................6
3.2 Additional Charges..............................................................................6
3.3 Option Term.....................................................................................7
ARTICLE 4. IMPOSITIONS..........................................................................................7
4.1 Payment of Impositions..........................................................................7
4.2 Adjustment of Impositions.......................................................................8
4.3 Utility Charges.................................................................................8
4.4 Insurance Premiums..............................................................................8
ARTICLE 5. OWNERSHIP OF LEASED PROPERTY AND PERSONAL PROPERTY...................................................8
5.1 Tenant's Personal Property......................................................................8
ARTICLE 6. USE OF LEASED PROPERTY...............................................................................8
6.1 Use of the Leased Property......................................................................8
6.2 Landlord to Grant Easements.....................................................................9
ARTICLE 7. LEGAL AND INSURANCE REQUIREMENTS.....................................................................9
7.1 Compliance with Legal and Insurance Requirements................................................9
7.2 Hazardous Materials.............................................................................9
7.3 Intentionally Omitted..........................................................................10
ARTICLE 8. REPAIRS; ALTERATIONS................................................................................10
8.1 Maintenance and Repair.........................................................................10
8.2 Alterations, Additions and Improvements........................................................11
ARTICLE 9. LIENS...............................................................................................11
ARTICLE 10. PERMITTED CONTESTS.................................................................................12
ARTICLE 11. INSURANCE..........................................................................................12
11.1 General Insurance Requirements.................................................................12
11.2 Replacement Cost...............................................................................13
(i)
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11.3 Waiver of Subrogation..........................................................................13
11.4 Form of Insurance..............................................................................14
11.5 Blanket Policy.................................................................................14
ARTICLE 12. FIRE AND CASUALTY..................................................................................14
12.1 Insurance Proceeds.............................................................................14
12.2 Reconstruction in the Event of Damage or Destruction Covered by Insurance......................15
12.3 Reconstruction in the Event of Damage or Destruction Not Covered by Insurance..................15
12.4 Tenant's Property..............................................................................15
12.5 Restoration of Tenant's Property...............................................................15
12.6 Abatement of Rent..............................................................................15
12.7 Damage Near End of Term........................................................................15
ARTICLE 13. CONDEMNATION.......................................................................................16
13.1 Definitions....................................................................................16
13.2 Parties' Rights and Obligations................................................................16
13.3 Total Taking...................................................................................16
13.4 Partial Taking.................................................................................16
13.5 Restoration....................................................................................16
13.6 Award Distribution.............................................................................16
ARTICLE 14. DEFAULT............................................................................................17
14.1 Events of Default..............................................................................17
14.2 Additional Expenses............................................................................19
14.3 Application of Funds...........................................................................19
ARTICLE 15. LANDLORD'S RIGHT TO CURE...........................................................................20
ARTICLE 16. INTENTIONALLY OMITTED..............................................................................20
ARTICLE 17. HOLDING OVER.......................................................................................20
ARTICLE 18. INDEMNIFICATION....................................................................................21
18.1 Tenant's Indemnification.......................................................................21
18.2 Landlord's Indemnification Obligation..........................................................21
ARTICLE 19. SUBLETTING AND ASSIGNMENT..........................................................................21
19.1 Subletting and Assignment......................................................................21
19.2 Attornment.....................................................................................22
ARTICLE 20. QUIET ENJOYMENT....................................................................................22
(ii)
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ARTICLE 21. NOTICES............................................................................................22
ARTICLE 22. DEFAULT BY LANDLORD................................................................................23
22.1 Default by Landlord............................................................................23
22.2 Tenant's Right to Cure.........................................................................24
ARTICLE 23. FINANCING OF THE LEASED PROPERTY...................................................................24
23.1 Financing by Landlord..........................................................................24
ARTICLE 24. SUBORDINATION AND NON-DISTURBANCE..................................................................25
ARTICLE 25. MISCELLANEOUS......................................................................................25
25.1 General........................................................................................25
25.2 Estoppel Certificate...........................................................................25
25.3 Time of Essence................................................................................26
ARTICLE 26. MEMORANDUM OF LEASE................................................................................26
(iii)
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LEASE
LEASE (this "Lease") is dated as of July 23, 1999, and is between
ELECTROMOTIVE SYSTEMS, INC. ("Landlord"), a Wisconsin corporation, having its
principal office at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
MAGNETEK, INC., a Delaware corporation ("Tenant"), having its principal office
at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
ARTICLE 1.
LEASED PROPERTY; TERM
Upon and subject to the terms and conditions hereinafter set forth,
Landlord leases to Tenant and Tenant rents from Landlord all of Landlord's
rights and interest in and to the following real property (collectively, the
"Leased Property"):
(a) the real property described on Exhibit A attached hereto
(the "Land");
(b) all buildings, structures, Fixtures (as hereinafter
defined) and other improvements of every kind including, but not
limited to, alleyways and connecting tunnels, sidewalks, utility pipes,
conduits and lines (on-site and off-site), parking areas and roadways
appurtenant to such buildings and structures presently or hereafter
situated upon the Land, and Capital Additions financed by Landlord
(collectively, the "Leased Improvements");
(c) all easements, rights and appurtenances relating to the
Land and the Leased Improvements; and;
(d) all permanently affixed equipment, machinery, fixtures,
and other items of real and/or personal property, including all
components thereof, now and hereafter located in, on or used in
connection with, and permanently affixed to or incorporated into the
Leased Improvements, including, without limitation, all furnaces,
boilers, heaters, electrical equipment, heating, plumbing, lighting,
ventilating, refrigerating, incineration, air and water pollution
control, waste disposal, air-cooling and air-conditioning systems and
apparatus, sprinkler systems and fire and theft protection equipment,
and built-in oxygen and vacuum systems, all of which, to the greatest
extent permitted by law, are hereby deemed-by the parties hereto to
constitute real estate, together with all replacements, modifications,
alterations and additions thereto, but specifically excluding all items
included within the category of Tenant's Personal Property as defined
in Article 2 below (collectively the "Fixtures").
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To have and to hold for a term (the "Term") commencing on the Commencement Date
(as defined herein) and ending at midnight on the day prior to the fifth (5th)
anniversary of the Commencement Date, subject to Tenant's right to extend the
Term as provided herein.
ARTICLE 2.
DEFINITIONS
For all purposes of this Lease, except as otherwise expressly provided
or unless the context otherwise requires, (a) the terms defined in this Article
have the meanings assigned to them in this Article and include the plural as
well as the singular, (b) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles as at the time applicable, (c) all references in this Lease to
designated "Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Lease, and (d) the words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Lease as a whole and not to any particular Article, Section or other
subdivision:
Additional Charges: As defined in Section 3.2.
Affiliate: When used with respect to any corporation, limited liability
company, or partnership, the term "Affiliate" shall mean any person,
corporation, limited liability company, partnership or other legal entity,
which, directly or indirectly, controls or is controlled by or is under common
control with such corporation, limited liability company, or partnership. For
the purposes of this definition, "control" (including the correlative meanings
of the terms "controlled by" and "under common control with"), as used with
respect to any person, corporation, limited liability company, partnership or
other legal entity, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
person, corporation, limited liability company, partnership or other legal
entity, through the ownership of voting securities, partnership interests or
other equity interests.
Award: As defined in Section 13.1.
Base Rent: As defined in Section 3.1.
Building: The two buildings containing approximately 74,400 square
feet, respectively, located on the Land.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which national banks in the City of Menomonee Falls,
Wisconsin are authorized, or obligated, by law or executive order, to close.
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Code: The Internal Revenue Code of 1986, as amended.
Commencement Date: Shall mean July 23, 1999.
Condemnation, Condemnor: As defined in Section 13.1.
Date of Taking: As defined in Section 13.1.
Encumbrance: As defined in Article 23
Event of Default: As defined in Section 14.1.
Facility: The Leased Property as defined in Article 1 above.
Fixtures: As defined in Article 1.
Hazardous Materials: Any substance, including without limitation,
asbestos or any substance containing asbestos and deemed hazardous under any
Hazardous Materials Law, the group of organic compounds known as polychlorinated
biphenyls, flammable explosives, radioactive materials, infectious wastes,
biomedical and medical wastes, chemicals known to cause cancer or reproductive
toxicity, pollutants, effluents, contaminants, emissions or related materials
and any items included in the definition of hazardous or toxic wastes, materials
or substances under any Hazardous Materials Law.
Hazardous Materials Law: Any local, state or federal law relating to
environmental conditions and industrial hygiene, including, without limitation,
the Resource Conservation and Recovery Act of 1976 ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as
amended by the Superfund Amendments and Reauthorization Act of 1986 ("▇▇▇▇"),
the Hazardous Materials Transportation Act, the Federal Water Pollution Control
Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act,
the Safe Drinking Water Act, and all similar federal, state and local
environmental statutes, ordinances and the regulations, orders, or decrees now
or hereafter promulgated thereunder.
Impositions: Collectively, all ad valorem taxes, water, sewer or other
rents and charges, excises, tax levies, fees (including, without limitation,
license, permit, inspection, authorization and similar fees), and all other
governmental charges, in each case whether general or special, ordinary or
extraordinary, or foreseen or unforeseen, of every character in respect of the
Leased Property and/or the Rent (including all interest and penalties thereon
due to any failure in payment by Tenant), which at any time prior to, during or
in respect of the Term hereof may be assessed or imposed on or in respect of or
be a lien upon (a) Landlord or Landlord's interest in the Leased Property, (b)
the Leased Property or any part thereof or any rent therefrom or any estate,
right, title or interest therein, or (c) any occupancy, operation, use or
possession of, sales from, or activity conducted on, or in
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connection with, the Leased Property or the leasing or use of the Leased
Property or any part thereof; provided, however, nothing contained in this Lease
shall be construed to require Tenant to pay (1) any tax based on net income
(whether denominated as a franchise or capital stock, financial institutions or
other tax) imposed on Landlord, or (2) any transfer or net revenue tax of
Landlord, or (3) any tax imposed with respect to the sale, exchange or other
disposition by Landlord of any portion of the Leased Property or the proceeds
thereof, or (4) except as expressly provided elsewhere in this Lease, any
principal or interest on any Encumbrance on the Leased Property.
Insurance Requirements. All terms of any insurance policy required by
this Lease and all requirements of the issuer of any such policy.
Land: As defined in Article 1.
Lease: As defined in the Preamble.
Lease Year: A twelve (12) month period commencing on the Commencement
Date or on each anniversary date thereof, as the case may be.
Leased Improvements; Leased Property: Each as defined in Article 1.
Legal Requirements: All federal, state, county, municipal and other
governmental statutes, laws, rules, orders, regulations, ordinances, judgments,
decrees and injunctions affecting either the Leased Property or the
construction, use or alteration thereof, whether now or hereafter enacted and in
force, including any which may (a) require repairs, modifications, or
alterations in or to the Leased Property, or (b) in any way adversely affect the
use and enjoyment thereof, and all permits, licenses, authorizations and
regulations relating thereto.
Lending Institution: Any insurance company, federally insured
commercial or savings bank, national banking association, savings and loan
association, employees' welfare, pension or retirement fund or system, corporate
profit-sharing or pension trust, college or university, or real estate
investment trust, including any corporation qualified to be treated for federal
tax purposes as a real estate investment trust, having a net worth of at least
$50,000,000.
Landlord: Electromotive Systems, Inc., a Wisconsin corporation.
Overdue Rate: On any date, a rate per annum equal to Two Percent (2%)
above the Prime Rate, but in no event greater than the maximum rate then
permitted under applicable law.
Payment Date: Any due date for the payment of the installments of Base
Rent or any other sums payable under this Lease.
Primary Intended Use: As defined in Section 6.1(b).
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Prime Rate: The rate published by The Wall Street Journal as the "Prime
Rate".
Rent: Collectively, the Base Rent and the Additional Charges.
Taking: A taking or voluntary conveyance during the Term hereof of all
or part of the Leased Property, or any interest therein or right accruing
thereto or use thereof, as the result of, or in settlement of, any Condemnation
or other eminent domain proceeding affecting the Leased Property whether or not
the same shall have actually been commenced.
Tenant: MagneTek, Inc., a Delaware corporation, and its successors and
permitted assigns.
Tenant's Personal Property: All machinery, equipment, furniture,
furnishings, movable walls or partitions, computers, trade fixtures or other
personal property, and consumable inventory and supplies, used or useful in
Tenant's business on the Leased Property, including without limitation, all
items of furniture, furnishings, equipment, supplies and inventory, and Tenant's
accounts receivable and operating licenses except items, if any, included within
the definition of Fixtures.
Term: The Term of this Lease, to include any Option Term.
Unavoidable Delays: Delays due to strikes, lockouts, inability to
procure materials, power failure, acts of God, governmental restrictions, enemy
action, civil commotion, fire, unavoidable casualty or other causes beyond the
control of the party responsible for performing an obligation hereunder,
provided that lack of funds shall not be deemed a cause beyond the control of
either party hereto unless such lack of funds is caused by the failure of the
other party hereto, to perform any obligations of such party, under this Lease.
Unsuitable for Its Primary Intended Use: As used anywhere in this
Lease, the term "Unsuitable for Its Primary Intended Use" shall mean that, by
reason of damage or destruction, or a partial Taking by Condemnation, in the
good faith judgment of Tenant, reasonably exercised, the Facility cannot be
operated on a commercially practicable basis for its Primary Intended Use,
taking into account, all relevant factors, and the effect of such damage or
destruction or partial Taking.
Year 2000 Compliant: Shall mean that computerized electrical,
mechanical or other systems serving the Leased Property and installed as of the
Commencement Date can accurately process date/time data (including, but not
limited to, calculations, comparing and sequencing) from, into, and between the
twentieth and twenty-first centuries, and the years 1999 and 2000 and leap year
calculations.
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ARTICLE 3.
RENT
3.1 Base Rent. Tenant shall pay to Landlord without notice or demand,
in advance, in lawful money of the United States of America, at Landlord's
address set forth herein or at such other place or to such other person, firms
or corporations as Landlord from time to time may designate in writing, Base
Rent (as defined below) during the Term, in an amount equal to $319,920.00 per
year ($4.30 psf x 74,400 sf) payable in advance in equal, consecutive monthly
installments of $26,660.00 on the first day of each calendar month of the Term,
commencing on the first day of the month which is not less than thirty (30) days
following the Commencement Date. If the Commencement Date is the first day of a
calendar month, the first monthly installment is due on the Commencement Date;
but if the Commencement Date is a day other than the first day of a calendar
month, then, on the Commencement Date, the Tenant will pay pro-rated Base Rent
(on a per diem basis) for the period from the Commencement Date through the last
day of the month in which the Commencement Date occurs. Similarly, if the last
day of the Term is a day other than the last day of a calendar month, the
monthly installment of Base Rent for such partial month will be prorated on a
per diem basis. The parties acknowledge that for purposes of payment of Base
Rent, the initial square footage measurement of the Building is estimated. A
confirming measurement shall be undertaken pursuant to the BOMA method by a
broker, appraiser, or commercial property manager mutually agreeable to the
parties with the cost of such measurement divided equally among Landlord and
Tenant. If the confirming measurement varies from the initial estimate, the
parties agree to execute an amendment to the Lease confirming the Commencement
Date, the square footage of the Building, and the adjusted annual and monthly
amounts of Base Rent to be paid hereunder based on a rental rate of $4.30 per
square foot per year.
3.2 Additional Charges. In addition to the Base Rent, (a) Tenant will
also pay and discharge as and when due and payable all other amounts,
liabilities, obligations and Impositions which Tenant assumes or agrees to pay
under this Lease, and (b) in the event of any failure on the part of Tenant to
pay any of those items referred to in clause (a) above, Tenant will also
promptly pay and discharge every fine, penalty, interest and cost which may be
added for non-payment or late payment of such items (the items referred to in
clauses (a) and (b) above being referred to herein collectively as the
"Additional Charges"), and Landlord shall have all legal, equitable and
contractual rights, powers and remedies provided in this Lease, by statute or
otherwise, in the case of non-payment of the Additional Charges, as in the case
of the Base Rent. If any installment of Rent or any other sum due from Tenant
shall not be received by Landlord or Landlord's designee within five business
days (5) days after written notice from Landlord that such amount is overdue,
then Tenant shall pay to Landlord a late charge equal to five percent (5%) of
such overdue amount. 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. To the extent that Tenant pays any Additional Charges to
Landlord pursuant to any requirement of this Lease, Tenant shall be relieved of
its obligation to pay such Additional Charges to the entity to which they would
otherwise be due. Any payment of
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Rent which remains unpaid more than thirty (30) days after it is due shall bear
interest at the Overdue Rate. Unless a payment period is otherwise specified
herein, sums required to be paid by Tenant to Landlord shall be due within
thirty (30) days after receipt of written notice from Landlord.
3.3 Option Term. Provided no Event of Default shall have occurred and
continue beyond any applicable cure period, either at the time of exercise or on
the scheduled commencement of the renewal period, Tenant shall have four (4)
separate options to renew the Lease, under the same terms and conditions as
provided herein, for a consecutive five (5) year term (the "Option Term" or
"Option Terms"), exercisable by providing Landlord written notice (the "Notice")
of Tenant's intent to exercise the renewal option at least one hundred eighty
(180) days prior to the expiration of the Term, or applicable Option Term. Base
Rent for each Option Term shall increased over the Base Rent amount for the
prior five year period by an amount equal to the percentage increase in the
"Consumer Price Index - U.S. Average, All Items" (1982-1984 ' 100) of the Bureau
of Labor Statistics of the United States Department of Commerce for the locale
most specifically encompassing the Facility during the previous five year
period; provided, however, such increase shall in no event exceed 125% of the
prior Base Rent amount.
ARTICLE 4.
IMPOSITIONS
4.1 Payment of Impositions. Subject to Article 10 relating to permitted
contests, Tenant will pay, or cause to be paid, all Impositions before any fine,
penalty, interest or cost may be added for non-payment, such payments to be made
directly to the taxing authorities where feasible, and Tenant will promptly,
upon request, furnish to Landlord copies of official receipts or other
satisfactory proof evidencing such payments. Tenant's obligation to pay such
Impositions shall be deemed absolutely fixed upon the date such Impositions
become a lien upon the Leased Property or any part thereof. If any such
Imposition may, at the option of the taxpayer, lawfully be paid in installments
(whether or not interest shall accrue on the unpaid balance of such Imposition),
Tenant may exercise the option to pay the same (and any accrued interest on the
unpaid balance of such Imposition) in installments and, in such event, shall pay
such installments during the Term hereof (subject to Tenant's right of contest
pursuant to the provisions of Article 10) as the same respectively become due
and before any fine, penalty, premium, further interest or cost may be added
thereto. If any refund shall be due from any taxing authority in respect of any
Imposition paid by Tenant, the same shall be paid over to or retained by Tenant
if no Event of Default shall have occurred hereunder and be continuing. Any such
funds retained by Landlord due to an Event of Default shall be applied as
provided in Article 14. In the event governmental authorities classify any
property covered by this Lease as personal property, Tenant shall file all
personal property tax returns in such jurisdictions where it may legally so
file. Tenant may, upon giving notice to Landlord, at Tenant's option and at
Tenant's sole cost and expense, protest, appeal, or institute such other
proceedings as Tenant may deem appropriate to effect a reduction of real estate
or personal property assessments and Landlord, at Tenant's expense as aforesaid,
shall fully cooperate with Tenant in such protest,
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appeal, or other action. Except as otherwise expressly provided herein, Tenant
shall pay all expenses associated with the operation of the Leased Property
during the term hereof
4.2 Adjustment of Impositions. Impositions imposed in respect of the
tax-fiscal period during which the Term commences or terminates shall be
adjusted and prorated between Landlord and Tenant, whether or not such
Imposition is imposed before or after such termination.
4.3 Utility Charges. Tenant will contract for, in its own name, and
will pay or cause to be paid all charges for electricity, power, gas, oil, water
and other utilities used in the Leased Property during the Term.
4.4 Insurance Premiums. Tenant will contract for in its own name and
will pay or cause to be paid all premiums for the insurance coverage required to
be maintained pursuant to Article 11 during the Term.
ARTICLE 5.
OWNERSHIP OF LEASED PROPERTY AND PERSONAL PROPERTY
5.1 Tenant's Personal Property. Tenant may (and shall as provided
hereinbelow), at its expense, install, affix or assemble or place on any parcels
of the Land or in any of the Leased Improvements, any items of Tenant's Personal
Property, and Tenant shall, subject to the conditions set forth below, remove
the same upon the expiration or any prior termination of the Term. Tenant shall
provide and maintain during the entire Term all such Tenant's Personal Property
as shall be necessary in order to operate the Facility in compliance with all
licensure and certification requirements, in compliance with all material
licensure and certification requirements.
ARTICLE 6.
USE OF LEASED PROPERTY
6.1 Use of the Leased Property.
(a) Tenant covenants that it will obtain and maintain all approvals
needed to use and operate the Leased Property and the Facility for the
Primary Intended Use, as defined below, under applicable Legal
Requirements.
(b) After the Commencement Date and during the entire Term, Tenant
shall use or cause to be used the Leased Property and the improvements
thereon as a manufacturing facility, office, distribution, R & D
center, and for such other uses as may be necessary in connection with
or incidental to Tenant's business (the "Primary Intended Use"). Tenant
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shall not use the Leased Property or any portion thereof for any other
use without the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed.
(c) Tenant shall not commit or suffer to be committed any waste on
the Leased Property, or in the Facility, nor shall Tenant cause or
permit any nuisance thereon.
6.2 Landlord to Grant Easements. Landlord will, from time to time so
long as no Event of Default has occurred and is continuing, at the request of
Tenant and at Tenant's cost and expense, but subject to the reasonable approval
of Landlord and any mortgagee holding a lien on the Leased Property (a) grant
easements and other rights in the nature of easements, (b) release existing
easements or other rights in the nature of easements which are for the benefit
of the Leased Property, (c) dedicate or transfer unimproved portions of the
Leased Property for road, highway or other public purposes, (d) execute
petitions to have the Leased Property annexed to any municipal corporation or
utility district, (e) execute amendments to any covenants and restrictions
affecting the Leased Property and (f) execute and deliver to any person any
instrument appropriate to confirm or effect such grants, releases, dedications
and transfers (to the extent of its interest in the Leased Property), but only
upon delivery to Landlord of a certificate of an officer of the Tenant stating
(and such other information as Landlord may reasonably require confirming) that
such grant, release, dedication, transfer, petition or amendment is required for
and not detrimental to the proper conduct of the business of Tenant on the
Leased Property and does not reduce its value.
ARTICLE 7.
LEGAL AND INSURANCE REQUIREMENTS
7.1 Compliance with Legal and Insurance Requirements. Subject to
Article 10 relating to permitted contests, Tenant, at its expense, will promptly
comply with all Legal Requirements and Insurance Requirements in respect of the
use, operation, maintenance, repair and restoration of the Leased Property.
Landlord covenants and represents, as of the date of this Lease, that the Leased
Property is in compliance with all Legal Requirements.
7.2 Hazardous Materials. The parties incorporate herein by reference
those certain covenants, representations, and warranties contained at Section
3.17 in that certain Asset Purchase Agreement executed among the parties on or
about the date hereof. Tenant shall furnish Landlord a copy of any environmental
site assessment or study it causes to be performed with respect to the Leased
Property.
Landlord and Tenant each hereby agrees to indemnify and defend, at
its sole cost and expense, and hold the other, its successors and assigns,
harmless from and against and to reimburse the other with respect to any and all
claims, demands, actions, causes of action, losses, damages, liabilities, costs
and expenses (including, without limitation, reasonable attorney's fees and
court
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costs) of any and every kind or character, known or unknown, fixed or
contingent, asserted against or incurred by the other at any time and from time
to time by reason or arising out of any breach or violation of the above.
7.3 Intentionally Omitted.
ARTICLE 8.
REPAIRS; ALTERATIONS
8.1 Maintenance and Repair.
(a) Tenant, at its expense, will (i) keep the interior spaces of
the Building, Tenant's Personal Property, and Fixtures in good order
and repair, (ii) provide for customary janitorial service and waste
removal in the Building, (iii) provide for routine maintenance and
repair (but not replacement) of mechanical systems such as HVAC,
plumbing, and electrical systems, and (iv) maintain (but not replace)
parking lots, sidewalks, curbs, windows, glass and exterior landscaping
in good order and repair. Tenant shall maintain a standard maintenance
contract, with a company reasonably satisfactory to Landlord, covering
the HVAC system. Landlord shall, at its expense, maintain, repair, or
replace, as necessary, (i) the foundation and structural elements of
the Building and the Leased Property, and (ii) mechanical systems such
as HVAC, plumbing, or electrical systems, but only to the extent such
systems require replacement Landlord shall have no obligation to
maintain, repair or replace any leasehold improvements or other items,
structural or otherwise, installed or constructed by Tenant. All
repairs shall, to the extent reasonably achievable, be at least
equivalent in quality to the original work. Tenant shall reimburse
Landlord for all direct, reasonable costs Landlord may incur, exclusive
of amounts paid by Landlord's insurer(s), in making repairs (which are
required under the Lease to be made by Landlord), which become
necessary as a result of damage caused by the Tenant or its employees,
agents, contractors, licensees, invitees, or subtenants. Landlord
warrants that all computerized electrical, mechanical or other systems
serving the Leased Property and installed as of the Commencement Date
are Year 2000 compliant.
(b) Unless Landlord shall convey any of the Leased Property to
Tenant pursuant to the provisions of this Lease, Tenant will, upon the
expiration or prior termination of this Term, vacate and surrender the
Leased Property to Landlord in the condition in which the Leased
Property was originally received from Landlord, except as repaired,
rebuilt, restored, altered or added to as permitted or required by the
provisions of this Lease and except for ordinary wear and tear, damage
caused by Landlord and damage or destruction described in Article 12 or
resulting from a Taking described in Article 13 which Tenant is not
required by the terms of this Lease to repair or restore.
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8.2 Alterations, Additions and Improvements. Tenant may make any
alterations, additions, improvements or other changes (collectively, the
"Alterations"), structural or otherwise, in or to the Leased Property after
first obtaining the prior written consent of Landlord, which consent shall not
be unreasonably withheld. Any Alterations made by Tenant shall be made: (a) in a
good, workmanlike, first-class and prompt manner and (b) in accordance with all
applicable legal requirements. Notwithstanding the foregoing, Tenant shall have
the right to make Alterations without the Landlord's consent, provided such
Alterations (a) do not adversely affect the structural integrity or exterior of
the Leased Property, (c) do not adversely affect the electrical, heating or
plumbing systems servicing the Leased Property, and (d) do not exceed a cost of
$15,000. All Alterations to the Leased Property made by Tenant shall immediately
become the property of Landlord and shall remain upon and be surrendered with
the Leased Property as a part thereof at the expiration or earlier termination
of the Lease Term; provided, however, that if Tenant is not in default under
this Lease, then Tenant shall remove, prior to the expiration or earlier
termination of the Lease Term, all of Tenant's Personal Property and repair and
restore the Leased Property to the condition it was in immediately prior to the
installation of the item of Tenant's Personal Property so removed, reasonable
wear and tear excepted.
ARTICLE 9.
LIENS
Subject to the provisions of Article 10 relating to permitted contests,
Tenant will not directly or indirectly create or allow to remain and will
promptly discharge at its expense any lien, encumbrance, attachment, title
retention agreement or claim upon the Leased Property or any attachment, levy,
claim or encumbrance in respect of the Rent, not including, however, (a) this
Lease, (b) matters of public record affecting the Leased Property as of the date
of this Lease, (c) restrictions, liens and other encumbrances which are
consented to in writing by Landlord which consent shall not be unreasonably
withheld, or any easements granted pursuant to the provisions of Section 6.2 of
this Lease, (d) liens for those taxes of Landlord which Tenant is not required
to pay hereunder, (e) subleases permitted by Article 19, (f) liens for
Impositions or for sums resulting from noncompliance with Legal Requirements so
long as (1) the same are not yet payable or are payable without the addition of
any fine or penalty or (2) such liens are in the process of being contested as
permitted by Article 10, (g) liens of mechanics, laborers, materialmen,
suppliers or vendors for sums either disputed or not yet due, provided that (1)
the payment of such sums shall not be postponed for more than sixty (60) days
after the completion of the action giving rise to such lien and such reserve or
other appropriate provisions as shall be required by law or generally accepted
accounting principles shall have been made therefor or (2) any such liens are in
the process of being contested as permitted by Article 10, and (h) any liens
which are the responsibility of Landlord pursuant to the provisions of Article
23 of this Lease.
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ARTICLE 10.
PERMITTED CONTESTS
Tenant, on its own or on Landlord's behalf (or in Landlord's name), but
at Tenant's expense, may contest, by appropriate legal proceedings conducted in
good faith and with due diligence, the amount, validity or application, in whole
or in part, of any Imposition, Legal Requirement, Insurance Requirement, lien,
attachment, levy, encumbrance, charge or claim not otherwise permitted by
Article 9, provided that (a) in the case of an unpaid Imposition, lien,
attachment, levy, encumbrance, charge or claim, the commencement and
continuation of such proceedings shall suspend the collection thereof from
Landlord and from the Leased Property, (b) neither the Leased Property nor any
Rent therefrom nor any part thereof or interest therein would be in any
immediate danger of being sold, forfeited, attached or lost, (c) in the case of
a Legal Requirement, Landlord would not be in any immediate danger of civil or
criminal liability for failure to comply therewith pending the outcome of such
proceedings, (d) in the case of a Legal Requirement and/or an Imposition, lien,
encumbrance or charge, Tenant shall give such reasonable security as may be
demanded by Landlord to insure ultimate payment of the same and to prevent any
sale or forfeiture of the affected portion of the Leased Property or the Rent by
reason of such non-payment or non-compliance; provided, however, the provisions
of this Article 10 shall not be construed to permit Tenant to contest the
payment of Rent (except as to contests concerning the method of computation or
the basis of levy of any Imposition or the basis for the assertion of any other
claim) or any other sums payable by Tenant to Landlord hereunder, (e) in the
case of an Insurance Requirement, the coverage required by Article 11 shall be
maintained, and (f) if such contest be finally resolved against Landlord or
Tenant, Tenant shall, as Additional Charges due hereunder, promptly pay the
amount required to be paid, together with all interest and penalties accrued
thereon, or comply with the applicable Legal Requirement or Insurance
Requirement. Landlord, at Tenant's expense, shall execute and deliver to Tenant
such authorizations and other documents as may reasonably be required in any
such contest and, if reasonably requested by Tenant or if Landlord so desires,
Landlord shall join as a party therein.
ARTICLE 11.
INSURANCE
11.1 General Insurance Requirements. During the Term of this Lease,
Tenant shall at all times keep the Leased Property, and all property located in
or on the Leased Property, including Tenant's Personal Property, insured with
the kinds and amounts of insurance described below. This insurance shall be
written by companies authorized to do insurance business in the State of
Wisconsin. The policies must name Landlord, Landlord's mortgagee(s), and any
other persons from time to time having an interest in the Leased Property,
provided their names and addresses have been furnished to Tenant, as an
additional insured and losses shall be payable to Landlord and/or Tenant
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as provided in Article 12. The policies on the Leased Property, including the
Leased Improvements, the Fixtures and Tenant's Personal Property, shall insure
against the following risks:
(a) Loss or damage by fire, vandalism and malicious mischief,
extended coverage perils commonly known as "All Risk" and all physical
loss perils, in an amount not less than one hundred percent (100%) of
the then Full Replacement Cost thereof (as defined below in Section
11.2).
(b) Claims for personal injury or property damage under a policy
of comprehensive general public liability insurance including but not
limited to insurance against assumed or contractual liability including
any indemnities under this Lease with amounts not less than One Million
Dollars ($1,000,000) per occurrence in respect of bodily injury and
death and Five Hundred Thousand Dollars ($500,000) for property damage;
provided, Landlord may require that such limits be increased during the
renewal terms so as to offset the effects of inflation occurring over
the course of the term hereof.
(c) If Tenant shall engage or cause to be engaged any contractor
to perform material work on the Leased Property, Tenant shall require
such contractor to carry and maintain, at no expense to Landlord,
non-deductible comprehensive general liability insurance, including but
not limited to contractor's liability coverage, completed operations
coverage, broad form property damage endorsement and contractor's
protection liability coverage in such amounts and with such companies
as Landlord shall approve, together with worker's compensation
insurance in not less than statutory amounts, and such contractor shall
furnish certificates of such insurance coverages before commencement of
work on the Leased Property.
11.2 Replacement Cost. The term "Full Replacement Cost" as used herein,
shall mean the actual replacement cost thereof from time to time, including
increased cost of construction endorsement, less exclusions provided in the
normal fire insurance policy. In the event either Landlord or Tenant believes
that the Full Replacement Cost has increased or decreased at any time during the
Term, it shall have the right to have such Full Replacement Cost redetermined by
the fire insurance company which is then providing the largest amount of fire
insurance carried on the Leased Property, hereinafter referred to as the
"impartial appraiser". The party desiring to have the Full Replacement Cost so
redetermined shall forthwith, on receipt of such determination by such impartial
appraiser, give written notice thereof to the other party hereto. The
determination of such impartial appraiser shall be final and binding on the
parties hereto, and Tenant shall forthwith increase, or may decrease, the amount
of the insurance carried pursuant to this Article, as the case may be, to the
amount so determined by the impartial appraiser. The party requesting such
reappraisal shall pay the fee, if any, of the impartial appraiser.
11.3 Waiver of Subrogation. All insurance policies carried by either
party, or required to be carried by either party, covering the Leased Property,
the Fixtures, the Facility and/or Tenant's
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Personal Property, including without limitation, contents, fire and casualty
insurance, shall expressly waive any right of subrogation on the part of the
insurer against the other party.
11.4 Form of Insurance. All of the policies of insurance referred to in
this Section shall be written in form satisfactory to Landlord and by insurance
companies licensed to write insurance in the State of Wisconsin. Tenant shall
pay all of the premiums therefor, and upon Landlord's written request, deliver
such policies or certificates thereof to Landlord prior to their effective date
(and, with respect to any renewal policy, at least fifteen (15) days prior to
the expiration of the existing policy) and in the event of the failure of Tenant
either to effect such insurance in the names herein called for or to pay the
premiums therefor, or to deliver such policies or certificates thereof to
Landlord at the times required, Landlord shall be entitled, but shall have no
obligation, to enact such insurance and pay the premiums therefor, which
premiums shall be repayable to Landlord upon written demand therefor, and
failure to repay the same shall constitute an Event of Default within the
meaning of Section 14.1(c). Each insurer mentioned in this Section shall agree,
by endorsement on the policy or policies issued by it, or by independent
instrument furnished to Landlord, that it will give to Landlord thirty (30)
days' written notice before the policy or policies in question shall be altered,
allowed to expire or canceled.
11.5 Blanket Policy. Notwithstanding anything to the contrary contained
in this Section, Tenant's obligations to carry the insurance provided for herein
may be brought within the coverage of a so-called blanket policy or policies of
insurance carried and maintained by Tenant provided that any such blanket policy
or policies shall otherwise satisfy the insurance requirements of this Article
11.
ARTICLE 12.
FIRE AND CASUALTY
12.1 Insurance Proceeds. All proceeds payable by reason of any loss or
damage to the Leased Property, or any portion thereof, and insured under any
policy of insurance required by Article 11 of this Lease shall be paid to
Tenant, and held by Tenant in trust and shall be made available for
reconstruction or repair, as the case may be, of any damage to or destruction of
the Leased Property, or any portion thereof, and shall be paid out by Tenant
from time to time for the reasonable cost of such reconstruction or repair. Any
excess proceeds of insurance remaining after the completion of the restoration
or reconstruction of the Leased Property (or in the event neither Landlord nor
Tenant is required or elects to repair and restore, all such insurance proceeds)
shall be retained by Tenant free and clear upon completion of any such repair
and restoration except as otherwise specifically provided below in this Article
12. All salvage resulting from any risk covered by insurance shall belong to
Landlord except that any salvage relating to Tenant's Personal Property shall
belong to Tenant.
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12.2 Reconstruction in the Event of Damage or Destruction Covered by
Insurance.
(a) Except as provided in Section 12.7, if during the Term, the
Leased Property is totally or partially destroyed from a risk covered
by the insurance described in Article 11 and the Facility thereby is
rendered Unsuitable for Its Primary Intended Use, or if the damage to
the Facility is so extensive that the estimated repair period exceeds
180 days, Tenant shall have the option, by giving notice to Landlord
within sixty (60) days following the date of such destruction, to (i)
restore the Facility to substantially the same condition as existed
immediately before the damage or destruction, or (ii) terminate this
Lease. In the latter event, Landlord shall be entitled to retain the
insurance proceeds covering Landlords interest in the Facility, and
Tenant shall pay to Landlord on demand, the amount of any deductible or
uninsured loss arising in connection therewith.
(b) Except as provided in Section 12.7, if during the Term, the
Leased Improvements and/or the Fixtures are totally or partially
destroyed from a risk covered by the insurance described in Article 11,
but the Facility is not thereby rendered Unsuitable for its Primary
Intended Use and the estimated time for repairs is less than 180 days,
Tenant shall restore the Facility to substantially the same condition
as existed immediately before the damage or destruction. Such damage or
destruction shall not terminate this Lease.
12.3 Reconstruction in the Event of Damage or Destruction Not Covered
by Insurance. Except as provided in Section 12.7 below, if during the Term, the
Facility is totally or materially destroyed from a risk not covered by the
insurance described in Article 11, whether or not such damage or destruction
renders the Facility Unsuitable for Its Primary Intended Use, Tenant at its
option shall restore the Facility to substantially the same condition it was in
immediately before such damage or destruction and such damage or destruction
shall not terminate this Lease.
12.4 Tenant's Property. All insurance proceeds payable by reason of any
loss of or damage to any of Tenant's Personal Property shall be paid to Tenant.
12.5 Restoration of Tenant's Property. If Tenant is required or elects
to restore the Facility as provided in Sections 12.2 or 12.3, Tenant shall also
restore all alterations and improvements made by Tenant and Tenant's Personal
Property.
12.6 Abatement of Rent. This Lease shall remain in full force and
effect, and Tenant's obligation to make rental payments and to pay all other
charges required by this Lease shall not ▇▇▇▇▇ during any period required for
repair and restoration.
12.7 Damage Near End of Term. Notwithstanding any provisions of
Sections 12.2 or 12.3 to the contrary, if damage to or destruction of the
Facility occurs during the last twelve months (12) months of the Term, and if
such damage or destruction cannot be fully repaired and restored within three
(3) months immediately following the date of loss, either party shall have the
right to terminate
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this Lease by giving notice to the other within thirty (30) days after the date
of damage or destruction, in which event Landlord shall be entitled to retain
the insurance proceeds.
ARTICLE 13.
CONDEMNATION
13.1 Definitions.
(a) "Condemnation" means (i) the exercise of any governmental
power, whether by legal proceedings or otherwise, by a Condemnor or
(ii) a voluntary sale or transfer by Landlord to any Condemnor, either
under threat of Condemnation or while legal proceedings for
Condemnation are pending.
(b) "Date of Taking" means the date the Condemnor has the right to
possession of the property being condemned.
(c) "Award" means all compensation, sums or anything of value
awarded, paid or received on a total or partial Condemnation.
(d) "Condemnor" means any public or quasi-public authority, or
private corporation or individual, having the power of Condemnation.
13.2 Parties' Rights and Obligations. If during the Term there is any
Taking of all or any part of the Leased Property or any interest in this Lease
by Condemnation, the rights and obligations of the parties shall be determined
by this Article 13.
13.3 Total Taking. If there is a Taking of all of the Leased Property
by Condemnation, this Lease shall terminate on the Date of Taking.
13.4 Partial Taking. If there is a Taking of a portion of the Leased
Property by Condemnation, this Lease shall remain in effect if the Facility is
not thereby rendered Unsuitable for Its Primary Intended Use. If, however, the
Facility is thereby rendered Unsuitable for Its Primary Intended Use, Tenant
shall have the option (a) to restore the Facility, at its own expense, to the
extent possible, to substantially the same condition as existed immediately
before the partial Taking, or (b) to terminate this Lease by written notice to
Landlord.
13.5 Restoration. If there is a partial Taking of the Leased Property
and this Lease remains in full force and effect pursuant to Section 13.4, Tenant
shall accomplish all necessary restoration.
13.6 Award Distribution. Subject to the rights of Landlord's
mortgagee(s), the entire Award shall belong to and be paid to Landlord, except
that, if this Lease is terminated, Tenant shall
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be entitled to receive from the Award, if and to the extent such Award
specifically includes such items, the following:
(a) A sum attributable to the value, if any, of the leasehold
interest of Tenant under this Lease; and
(b) A sum attributable to Tenant's Personal Property and any
reasonable removal and relocation costs included in the Award.
If Tenant is required or elects to restore the Facility, Landlord agrees that,
subject to the rights of the Facility Mortgagees, Landlord's portion of the
Award shall be used for such restoration and it shall hold such portion of the
Award in trust, for application to the cost of the restoration.
ARTICLE 14.
DEFAULT
14.1 Events of Default. The occurrence of any one or more of the
following events (individually, an "Event of Default") shall constitute Events
of Default hereunder:
(a) if Tenant shall fail to make a payment of the Rent payable by
Tenant under this Lease when the same becomes due and payable and such
failure is not cured by Tenant within a period of ten business (10)
days after receipt by Tenant of notice thereof from Landlord, or
(b) if Tenant shall fail to observe or perform any material term,
covenant or condition of this Lease and such failure is not cured by
Tenant within a period of thirty (30) days after receipt by Tenant of
notice thereof from Landlord, unless such failure cannot with due
diligence be cured within a period of thirty (30) days, in which case
such failure shall not be deemed to continue if Tenant, within said
thirty (30) day period, proceeds promptly and with due diligence to
cure the failure and diligently completes the curing thereof, or
(c) if Tenant shall:
(i) admit in writing its inability to pay its debts generally
as they become due,
(ii) file a petition in bankruptcy or a petition to take
advantage of any insolvency act,
(iii) make an assignment for the benefit of its creditors,
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(iv) consent to the appointment of a receiver of itself or of
the whole or any substantial part of its property, or
(v) file a petition or answer seeking reorganization or
arrangement under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any
state thereof, or
(d) if the Tenant shall, after a petition in bankruptcy is filed
against it, be adjudicated a bankrupt or if a court of competent
jurisdiction shall enter an order or decree appointing, without the
consent of Tenant, as the case may be, a receiver of Tenant or of the
whole or substantially all of its property, or approving a petition
filed against it seeking reorganization or arrangement of Tenant under
the federal bankruptcy laws or any other applicable law or statute of
the United States of America or any state thereof, and such judgment,
order or decree shall not be vacated or set aside or stayed within
ninety (90) days from the date of the entry thereof, or
(e) if the estate or interest of Tenant in the Leased Property or
any part thereof shall be levied upon or attached in any proceeding and
the same shall not be vacated or discharged within the later of ninety
(90) days after commencement thereof or thirty (30) days after receipt
by Tenant of notice thereof from Landlord (unless Tenant shall be
contesting such lien or attachment in good faith in accordance with
Article 10 hereof).
If an Event of Default shall have occurred, Landlord shall have the right at its
election, then or at any time thereafter, to pursue any one or more of the
following remedies, in addition to any remedies which may be permitted by law or
by other provisions of this Lease:
A. Landlord may take any one or more of the actions permissible at
law to insure performance by Tenant of Tenant's covenants and
obligations under this Lease. In this regard, it is agreed that if
Tenant deserts or vacates the Leased Property, Landlord may enter upon
and take possession of such Leased Property in order to protect it from
deterioration and continue to demand from Tenant the monthly rentals
and other charges provided in this Lease, and shall use commercially
reasonable efforts to relet; but that if Landlord does relet all or any
portion of the Leased Property, such action by Landlord shall not be
deemed as an acceptance of Tenant's surrender of the Leased Property
unless Landlord expressly notifies Tenant of such acceptance in writing
pursuant to subsection B of this Section 14.1., Tenant hereby
acknowledging that Landlord shall otherwise be reletting as Tenant's
agent and Tenant furthermore hereby agreeing to pay to Landlord on
demand any deficiency that may arise between the monthly rentals and
other charges provided in this Lease and that actually collected by
Landlord. It is further agreed in this regard that in the event of any
default described in this Section 14.1, Landlord shall have the right
to enter upon the Leased Property, without being liable for prosecution
or any claim for damages therefor, and do whatever Tenant is obligated
to do under the terms of this Lease; and Tenant agrees to
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reimburse Landlord on demand for any expenses which Landlord may incur
in thus effecting compliance with Tenant's obligations under this
Lease.
B. Landlord may terminate this Lease by written notice to Tenant,
or, if permitted by law, terminate Tenant's right of possession of the
Leased Property without terminating this Lease, in which event Tenant
shall immediately surrender the Leased Property to Landlord, and if
Tenant fails to do so, Landlord may, without prejudice to any other
remedy which Landlord may have for possession or arrearages in rent,
enter upon and take possession of the Leased Property and expel or
remove Tenant and any other person who may be occupying said premises
or any part thereof, without being liable of prosecution or any claim
for damages therefor. In addition, Tenant shall pay to Landlord on or
before the first day of each calendar month, the monthly rentals and
other charges provided in this Lease. After the Leased Property have
been relet by Landlord, Tenant shall pay to Landlord on the 10th day of
each calendar month the difference between the monthly rentals and
other charges provided in this Lease for the preceding calendar month
and that actually collected by Landlord for such month. If it is
necessary for Landlord to bring suit in order to collect any
deficiency, Landlord shall have a right to allow such deficiencies to
accumulate and to bring an action on several or all of the accrued
deficiencies at one time. Any such suit shall not prejudice in any way
the right of Landlord to bring a similar action for any subsequent
deficiency or deficiencies. Any amount collected by Landlord from
subsequent tenants for any calendar month, in excess of the monthly
rentals and other charges provided in this Lease, shall be credited to
Tenant in reduction of Tenant's liability for any calendar month for
which the amount collected by Landlord will be less than the monthly
rentals and other charges provided in this Lease; but Tenant shall have
no right to such excess other than the above-described credit.
C. Landlord may bring an action to recover an amount equal to the
value of the Rent to be paid for the remainder of the Term (not to
include any yet unexercised Option Term), less the fair market rental
value of the Leased Property for said period, all reduced to present
value using the interest rate on unpaid judgments as a discount rate.
Landlord and Tenant agree that such amount shall be considered as
liquidated damages and not as a penalty, actual damages being difficult
to ascertain.
14.2 Additional Expenses. It is further agreed that, in addition to
payments required pursuant to Section 14.1. above, Tenant shall compensate
Landlord for (i) all expenses incurred by Landlord in repossessing the Leased
Property, (ii) all expenses incurred by Landlord in reletting (including among
other expenses, repairs, remodeling, replacements, advertisements and brokerage
fees), and (iii) Landlord's reasonable legal fees.
14.3 Application of Funds. Any payments otherwise payable to Tenant
which are received by Landlord under any of the provisions of this Lease during
the existence or continuance of any
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Event of Default shall be applied first, to costs incurred by Landlord in
connection with Tenant's default, second, to past due Rent, and third, to
current Rent.
ARTICLE 15.
LANDLORD'S RIGHT TO CURE
If Tenant shall fail to make any payment, or to perform any act
required to be made or performed under this Lease and to cure the same within
the relevant time periods provided in Section 14.1, Landlord, without waiving or
releasing any obligation or Event of Default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account and at the expense of Tenant, and may, to the extent permitted by
law, enter upon the Leased Property for such purpose and take all such action
thereon as, in Landlord's opinion, may be necessary or appropriate therefor. In
the event of emergency, Landlord may take such reasonable action as is necessary
to avoid imminent danger to persons or damage to property without the required
notice provided in Section 14.1 in the event Tenant fails to promptly take such
action as may be required hereunder. No such entry shall be deemed an eviction
of Tenant. All sums so paid by Landlord and all costs and expenses (including,
without limitation, reasonable attorneys' fees and expense, in each case, to the
extent permitted by law) so incurred, together with a late charge thereon (to
the extent permitted by law) at the Overdue Rate from the date on which such
sums or expenses are paid or incurred by Landlord, shall be paid by Tenant to
Landlord on demand. The obligations of Tenant and rights of Landlord contained
in this Article shall survive the expiration or earlier termination of this
Lease.
ARTICLE 16.
INTENTIONALLY OMITTED
ARTICLE 17.
HOLDING OVER
If Tenant shall for any reason remain in possession of the Leased
Property after the expiration of the Term or any earlier termination of the Term
hereof, such possession shall be as a tenancy from month-to-month during which
time Tenant shall pay as rental each month, the aggregate of (a) 125% of the
Base Rent payable with respect to the last complete Lease Year prior to the
expiration of the Term; (b) all Additional Charges accruing during the month,
(c) all other sums, if any, payable by Tenant pursuant to the provisions of this
Lease with respect to the Leased Property and (d) any direct, but not
consequential, damages and expenses suffered or incurred by Landlord in
connection with such holdover by Tenant. During such period of tenancy, Tenant
shall be obligated to perform and observe all of the terms, covenants and
conditions of this Lease, but shall have no rights
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hereunder other than the right, to the extent given by law to tenancies from
month-to-month, to continue its occupancy and use of the Leased Property.
ARTICLE 18.
INDEMNIFICATION
18.1 Tenant's Indemnification. Tenant (or anyone claiming under Tenant)
will protect, indemnify, save harmless and defend Landlord from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses), to the extent permitted by law, imposed upon or incurred by or
asserted against Landlord (unless resulting from the actions, failure to act,
negligence or misconduct of Landlord, its agents, employees, or invitees) by
reason of: (a) any accident, injury to or death of persons or loss or damage to
property occurring on or about the Leased Property, (b) any use, misuse,
condition, maintenance or repair by Tenant of the Leased Property, (c) any
Impositions (which are the obligations of Tenant to pay pursuant to the
applicable provisions of this Lease), and (d) any failure on the part of Tenant
to perform or comply with any of the terms of this Lease.
18.2 Landlord's Indemnification Obligation. Landlord shall protect,
indemnify, defend and hold Tenant harmless from and against all costs, damages,
claims, liabilities and expenses (including, without limitation, attorneys' fees
and expenses) suffered by or claimed against Tenant (unless resulting from the
negligence or misconduct of Tenant, Tenant's agents, employees or invitees),
directly or indirectly, based on, arising out of or resulting from (i) repair or
maintenance of the Leased Property which are the obligations of Landlord, (ii)
any act or omission by Landlord or Landlord's employees, agents, contractors,
licensees or invitees, or (iii) any breach or default in the performance or
observance of Landlord's covenants or obligations under this Lease.
ARTICLE 19.
SUBLETTING AND ASSIGNMENT
19.1 Subletting and Assignment. Tenant may, without the consent of but
with notice to Landlord, (a) assign this Lease or sublet all or any part of the
Leased Property to any Affiliate of Tenant or to any purchaser of all or
substantially all of the assets of Tenant's drives division, or (b) sublet not
more than twenty-five percent (25%) of the Building in the normal course of the
Primary Intended Use. Any further assignment or subletting shall require
Landlord's consent. Landlord shall not unreasonably withhold its consent to any
other or further subletting or assignment. In all cases of assignment or
subletting, (a) the sublessee shall comply with the provisions of Section 19.2,
(b) the assignee shall assume in writing and agree to keep and perform all of
the terms of this Lease on the part of Tenant to be kept and performed and shall
be and become jointly and severally liable with Tenant for the performance
thereof, (c) an original counterpart of each such sublease and assignment and
assumption, duly executed by Tenant and such sublessee or assignee, as the case
may be, in form
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and substance satisfactory to Landlord, shall be delivered to Landlord prior to
the effective date of such assignment or subletting.
19.2 Attornment. Tenant shall insert in each sublease permitted under
Section 19.1 provisions to the effect that (a) such sublease is subject and
subordinate to all of the terms and provisions of this Lease and to the rights
of Landlord hereunder, (b) that sublessee shall from time to time upon request
of Tenant or Landlord furnish within ten (10) days an estoppel certificate
relating to the sublease, and (c) in the event the sublessee receives a written
notice from Landlord or Landlord's assignees, if any, stating that Tenant is in
default under this Lease, the sublessee shall thereafter be obligated to pay all
rentals accruing under said sublease directly to the party giving such notice,
or as such party may direct. All rentals received from the sublessee by Landlord
or Landlord's assignees, if any, as the case may be, shall be credited against
the amounts owing by Tenant under this Lease.
ARTICLE 20.
QUIET ENJOYMENT
So long as Tenant shall pay all Rent as the same becomes due and shall
fully comply with all of the terms of this Lease and fully perform its
obligations hereunder, Tenant shall peaceably and quietly have, hold and enjoy
the Leased Property for the Term hereof, free of any claim or other action by
Landlord or anyone claiming by, through or under Landlord.
ARTICLE 21.
NOTICES
All notices, demands, consents, approvals, requests and other
communications under this agreement shall be in writing and shall be either (a)
delivered in person, (b) sent by certified mail, return receipt requested, (c)
delivered by a recognized delivery service or (d) sent by facsimile transmission
and addressed as follows:
(a) if to Tenant: MagneTek, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇
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with a copy to: MagneTek, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) if to Landlord: Electromotive Systems, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇, Stettinius & Hollister LLP
1800 Firstar Tower
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
or to such other address as either party may hereafter designate, and shall be
effective upon receipt; provided that if delivery by certified mail is refused,
notice shall be deemed given on the date that delivery was attempted. A notice,
demand, consent, approval, request and other communication shall be deemed to be
duly received if delivered in person or by a recognized delivery service, when
left at the address of the recipient and if send by facsimile, upon receipt by
the sender of an acknowledgment or transmission report generated by the machine
from which the facsimile was sent indicating that the facsimile was sent in its
entirety to the recipient's facsimile number; provided that if a notice, demand,
consent, approval, request or other communication is served by hand or is
received by facsimile on a day which is not a business day, or after 5:00 p.m.
on any business day at the addressee's location, such notice or communication
shall be deemed to be duly received by the recipient at 9:00 a.m. on the first
business day thereafter.
ARTICLE 22.
DEFAULT BY LANDLORD
22.1 Default by Landlord. Landlord shall be in default of its
obligations under this Lease if Landlord shall fail to observe or perform any
term, covenant or condition of this Lease on its part to be performed and such
failure shall continue for a period of thirty (30) days after notice thereof
from Tenant, unless such failure cannot with due diligence be cured within a
period of thirty (30) days, in which case such failure shall not be deemed to
continue if Landlord, within said thirty (30) day period, proceeds promptly and
with due diligence to cure the failure and diligently completes the curing
thereof. The time within which Landlord shall be obligated to cure any such
failure shall also be subject to extension of time due to the occurrence of any
Unavoidable Delay.
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22.2 Tenant's Right to Cure. Subject to the provisions of Section 22.1,
if Landlord shall breach any covenant to be performed by it under this Lease,
Tenant, after notice to and demand upon Landlord in accordance with Section
22.1, without waiving or releasing any obligation of Landlord hereunder, and in
addition to all other remedies available hereunder and at law or in equity to
Tenant, may (but shall be under no obligation at any time thereafter to) make
such payment or perform such act for the account and at the expense of Landlord.
All sums so paid by Tenant and all costs and expenses (including without
limitation, reasonable attorneys' fees) so incurred, together with interest
thereon at the Overdue Rate from the date on which such sums or expenses are
paid or incurred by Tenant, shall be paid by Landlord to Tenant on demand. If
Landlord fails to promptly pay such sums or expenses, Tenant may offset such
amounts from Base Rent until the full amount has been accounted for. The rights
of Tenant hereunder to cure and to secure payment from Landlord in accordance
with this Section 22.2 shall survive the termination of this Lease.
ARTICLE 23.
FINANCING OF THE LEASED PROPERTY
23.1 Financing by Landlord. Landlord agrees that, if it grants or
creates any mortgage, lien, encumbrance or other title retention agreement
("Encumbrances") upon the Leased Property, Landlord shall simultaneously obtain
an agreement from the holder of each such Encumbrance (a) to give Tenant the
same notice, if any, given to Landlord of any default or acceleration of any
obligation underlying any such Encumbrance or any sale in foreclosure of such
Encumbrance, (b) to permit Tenant to cure any such default on Landlord's behalf
within any applicable cure period, in which event Landlord agrees to reimburse
Tenant for any and all out-of-pocket costs and expenses incurred to effect any
such cure (including reasonable attorneys' fees), (c) to permit Tenant to appear
with its representatives and to bid at any foreclosure sale with respect to any
such Encumbrance, (d) that, if subordination by Tenant is requested by the
holder of each such Encumbrance, to enter into an agreement with Tenant
containing the provisions described in Article 24 of this Lease, and (e)
Landlord and Landlord's successor and assigns, further agrees that no such
Encumbrance shall in any way prohibit, derogate from, or interfere with Tenant's
right and privilege to collaterally assign its leasehold and contract rights
hereunder provided such collateral assignment and rights granted to the assignee
thereunder shall be subordinate to the rights of the holder of an Encumbrance as
provided in Article 24 hereof.
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ARTICLE 24.
SUBORDINATION AND NON-DISTURBANCE
At the request from time to time by one or more institutional holders
of a mortgage or deed of trust that may hereafter be placed by the Landlord upon
the Leased Property or any part thereof, and any and all renewals, replacements,
modifications, consolidations, spreaders and extensions thereof, Tenant shall
subordinate this Lease and all of Tenant's rights and estate hereunder to each
such mortgage or deed of trust and agree with each such institutional holder
that Tenant will attorn to and recognize such holder or the purchaser at any
foreclosure sale or any sale under a power of sale contained in any such
mortgage or deed of trust, as the case may be, as Landlord under this Lease for
the balance of the Term then remaining, subject to all of the terms and
provisions of this Lease; provided, however, that each such institutional holder
simultaneously executes and delivers a written agreement consenting to this
Lease and agreeing that, notwithstanding any such other lease, mortgage, deed of
trust, right, title or interest, or any default, expiration, termination,
foreclosure, sale, entry or other act or omission under, pursuant to or
affecting any of the foregoing, Tenant shall not be disturbed in peaceful
enjoyment of the Leased Property nor shall this Lease be terminated or canceled
at any time, except in the event Landlord shall have the right to terminate this
Lease under the terms and provisions expressly set forth herein.
ARTICLE 25.
MISCELLANEOUS
25.1 General. Anything contained in this Lease to the contrary
notwithstanding, all claims against, and liabilities of, Tenant or Landlord
arising prior to any date of termination of this Lease shall survive such
termination. If any term or provision of this Lease or any application thereof
shall be invalid or unenforceable, the remainder of this Lease and any other
application of such term or provision shall not be affected thereby. If any late
charges provided for in any provision of this Lease are based upon a rate in
excess of the maximum rate permitted by applicable law, the parties agree that
such charges shall be fixed at the maximum permissible rate. Neither this Lease
nor any provision hereof may be changed, waived, discharged or terminated except
by an instrument in writing and in recordable form signed by Landlord and
Tenant. All the terms and provisions of this Lease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. The headings in this Lease are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof. In the event of any
non-performance or non-observance of any covenants or condition of the Lease by
either party, no failure to act by the other party shall be deemed a waiver of
any right under the Lease unless such waiver shall be in writing and signed by
the waiving party.
25.2 Estoppel Certificate. Tenant shall at any time, upon not less than
twenty (20) days prior written request, execute and deliver an estoppel
certificate to Landlord and any potential
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purchaser of the Leased Property, which estoppel certificate shall be in form
and substance reasonably acceptable to Tenant.
25.3 Time of Essence. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the Landlord and
Tenant under this Lease.
ARTICLE 26.
MEMORANDUM OF LEASE
Landlord and Tenant shall, promptly upon the request of either, enter
into a short form memorandum of this Lease, in form suitable for recording under
the laws of the state in which the Leased Property is located in which reference
to this Lease, and all options contained herein, shall be made.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed
and their respective corporate seals to be hereunto affixed and attested by
their respective officers thereunto duly authorized.
LANDLORD:
ELECTROMOTIVE SYSTEMS, INC.
By:
----------------------------------------
Its:
---------------------------------------
TENANT:
MAGNETEK, INC.
By:
----------------------------------------
Its:
---------------------------------------
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EXHIBIT A
PROPERTY DESCRIPTION
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