EXHIBIT 10.19
FORM 10-K
YEAR ENDED DECEMBER 31, 2001
INDUSTRIAL LEASE AGREEMENT
between
INSITE SOUTH MILWAUKEE, L.L.C., an Illinois limited liability company,
as Landlord
and
BUCYRUS INTERNATIONAL, INC., a Delaware corporation, as Tenant
for premises located in South Milwaukee, Wisconsin
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of
the Lease referred to in this Article One explain and define the Basic Terms
and are to be read in conjunction with the Basic Terms.
Section 1.01. Date of Lease: January 4, 2002
Section 1.02. Landlord: InSite South Milwaukee, L.L.C., an Illinois
limited liability company, 1603 W. 16th Street, Oak Brook, Illinois 60523
Attention: Gerald J. Kostelny, with a copy to, InSite Real Estate Development,
1603 W. 16th Street, Oak Brook, Illinois 60523 Attention: General Counsel.
Section 1.03. Tenant: Bucyrus International, Inc., a Delaware
corporation, 1100 Milwaukee Avenue, South Milwaukee, WI 53172, Attn: John F.
Bosbous.
Section 1.04. Premises: The real property, building space (the
"Building") and other improvements located in South Milwaukee, Wisconsin and
described on the attached Exhibit A.
Section 1.05. Lease Term: Commencing on the date that Landlord closes
on its purchase of the Building (the "Commencement Date"), and ending on the
day before the twentieth (20th) anniversary of the Commencement Date (the
"Termination Date"); provided, however, that if the Commencement Date is other
than the first day of a month, then the Termination Date shall be the
twentieth (20th) year anniversary of the last day of the month in which the
Commencement Date occurs, unless otherwise terminated or extended as provided
in this Lease.
Section 1.06. Permitted Uses: (See Article Five) Industrial
manufacturing, warehousing, distribution, and associated office uses
incidental thereto
Section 1.07. Landlord's Broker: **_____NONE__________ [broker name]
Section 1.08. Tenant's Broker: **_______NONE__________ [broker name]
Section 1.09. Rent and Other Charges Payable by Tenant:
(a) Base Rent:
TOTAL ANNUAL MONTHLY
YEARS RENT INSTALLMENT
1 THRU 15 $1,125,000.00 $93,750.00
16 and after As adjusted as As adjusted as
provided in this Lease provided in this Lease
(b) Other Periodic Payments: (i) Tax Adjustment Amount (See Section
4.02); and, (ii) Insurance Premium Expense, if any (See Section 4.04).
Section 1.10. Lease Year: Any calendar year in which any portion of the
Lease Term falls, including the calendar year in which the Commencement Date
and Termination Date occur.
Section 1.11. Security Deposit: $500,000.00.
Section 1.12. Consumer Price Index ("CPI"): shall mean, as of any date,
the most recently published United States Department of Labor, Bureau of Labor
Statistics, Consumer Price Index for Urban Wage Earners and Clerical Workers
(Milwaukee Area Only), as released by the Bureau of Labor Statistics of the
United States Department of Labor. In the event the Bureau of Labor
Statistics ceases publishing the index number for the City of Milwaukee, the
comparable index figure for the United States shall be used in lieu thereof.
In the event the Bureau ceases publishing the Consumer Price Index, or
materially changes the method of its computation, components, base year,
consumers whose experiences are included therein, or other features thereof,
Lessor and Lessee shall accept comparable statistics on the purchasing power
of the consumer dollar, as published at the time of such discontinuation or
change, by the Bureau, another governmental agency or unit, or a responsible
financial periodical of recognized authority, to be then chosen by Lessor. In
the event the Bureau publishes more than one Consumer Price Index applicable
generally or to the Milwaukee Area specifically, the index to be used to make
the adjustments provided herein shall be reasonably chosen by the Lessor.
ARTICLE TWO: LEASE TERM
Section 2.01. Lease of Premises For Lease Term. Landlord leases the
Premises to Tenant and Tenant leases the Premises from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.05 and shall begin
and end on the dates specified in Section 1.05, unless the beginning or end of
the Lease Term is changed under any other provision of this Lease. Landlord
and Tenant shall, upon delivery of possession of the Premises to Tenant,
execute a Commencement Date Agreement setting forth the actual Commencement
Date and Termination Date of the Lease. Failure to execute such Commencement
Date Agreement shall not affect the actual Commencement Date and Termination
Date of the Lease.
Section 2.02. Delay in Commencement. Landlord shall not be liable to
Tenant if Landlord does not deliver possession of the Premises to Tenant on
the intended Commencement Date. Landlord s non-delivery of the Premises to
Tenant on that date shall not affect this Lease or the obligations of Tenant
under this Lease except that the Commencement Date shall be delayed until
Landlord delivers possession of the Premises to Tenant and the Lease Term
shall be extended for a period equal to the delay in delivery of possession of
the Premises to Tenant, plus the number of days necessary to end the Lease
Term on the last day of a month.
Section 2.03. Early Occupancy: If Tenant occupies the Premises prior
to the Commencement Date, Tenant s occupancy of the Premises shall be subject
to all of the provisions of this Lease. Early occupancy of the Premises shall
not advance the expiration date of this Lease. Tenant shall pay Base Rent,
Additional Rent and all other charges specified in this Lease for the early
occupancy period.
Section 2.04. Holding Over. Tenant shall vacate the Premises upon the
expiration or earlier termination of this Lease. Tenant shall reimburse
Landlord for and indemnify Landlord against all damages which Landlord incurs
from Tenant s delay in vacating the Premises. If Tenant does not vacate the
Premises upon the expiration or earlier termination of the Lease and Landlord
thereafter accepts Rent from Tenant, Tenant s occupancy of the Premises shall
be a "month-to-month" tenancy, subject to all of the terms of this Lease
applicable to a month-to-month tenancy, except that the Base Rent then in
effect shall be increased by fifty percent (50%).
Section 2.05 Security Deposit.
(a) At the time of execution hereof, Tenant shall deposit with Landlord
the Security Deposit in cash, as and for a security deposit for the full and
faithful performance by Tenant of each and every term, provision, covenant and
condition of this Lease. Landlord may apply the Security Deposit in case of an
Event of Default hereunder to the extent that such Event of Default involves a
failure of Tenant to pay any amount required to be paid by Tenant under this
Lease, including but not limited to any failure of Tenant to reimburse
Landlord for any amounts required hereunder to be reimbursed by Tenant to
Landlord. In the event that Tenant defaults in respect to any of the terms,
provisions, covenants and conditions of this Lease, including, but not limited
to, the payment of any Rent, Landlord may use, apply or retain the whole or
any part of the Security Deposit for the payment of any such Rent in default
or for any other sum which Landlord may expend or be required to expend by
reason of Tenant's default, including, but not limited to, any damages or
deficiency in the reletting of the Premises, whether such damages or
deficiency may accrue before or after reentry by Landlord. Actions by
Landlord against Tenant for breach of this Lease shall in no way be limited or
restricted by the amount of the Security Deposit and resort to the Security
Deposit shall not waive any other rights or constitute an election of remedies
which Landlord may have. Landlord shall deposit the Security Deposit in an
interest-bearing deposit or investment, and all income thereon shall accrue to
Tenant and shall become part of the security deposit. It is expressly
understood and agreed that the Security Deposit is not a measure of Landlord s
damages in case of Tenant s default. Upon application of any part of the
Security Deposit by Landlord as provided herein other than an application to
rent as provided in the last sentence of this Section 2.05(a), Tenant shall
pay to Landlord on demand the amount so applied in order to restore the
Security Deposit to its original amount less amounts applied to rent as
provided in the last sentence of this Section 2.05(a). Any application of the
Security Deposit by Landlord shall not be deemed to have cured Tenant's
default by reason of which the application is made. From and after such time
as the Security Deposit is equal to or greater than the amount remaining to be
paid hereunder as Basic Rent for the original term of this Lease, provided
that Tenant is not in default hereunder, Landlord shall apply a portion of the
Security Deposit equal to the amount of Basic Rent then due to Basic Rent each
month
(b) Subject to Tenant's right of first refusal as provided herein, in
the event of a bona fide sale of the Project, Landlord shall have the right to
transfer the Security Deposit to its vendee for the benefit of Tenant, and
thereafter Landlord shall be released of all liability for the return of the
Security Deposit and Tenant agrees to look to said vendee for the return of
the Security Deposit. It is agreed that this provision shall apply to every
transfer or assignment made of the Security Deposit to any new landlord.
(c) If Tenant shall fully and faithfully comply with all the terms,
provisions, covenants and conditions of this Lease, the Security Deposit, or
any balance thereof, shall be returned to Tenant within thirty (30) days after
the time fixed herein as the expiration of the term hereof and after the
removal of Tenant and surrender of possession of the Premises to Landlord.
Section 2.06. Renewal Option; Rent Adjustment.
(a) Provided that no default is existing under this Lease which
default has continued beyond any applicable cure period at the time a Renewal
Option (as hereinafter defined) is exercised, Tenant shall have the right (the
"Renewal Options") to extend the Term for up to five periods of five years
each (the "Renewal Periods") commencing on the expiration of the initial Lease
Term, or subsequent Renewal Periods, as appropriate.
(b) The Renewal Options shall be exercised, if at all, by written
notice to Landlord given not later than twelve (12) months prior to the
expiration of the initial Lease Term or prior Renewal Period, as appropriate.
In the event Tenant fails strictly to comply with the procedure for exercise
of a Renewal Option, Tenant shall have no further right to extend the Term.
(c) Except as specified herein, Tenant shall have no further right to
extend the Term.
(d) The Renewal Options are a right which is personal to Tenant. In no
event shall any assignee, sublessee or other transferee have any rights under
this Section 2.06, other than a person or entity described in Section 9.04
below, and other than any assignee, sublessee or other transferee of this
Lease in connection with a sale or transfer of all or substantially all of the
assets of Tenant as permitted under Section 9.01 below.
(e) Landlord's and Tenant's rights and obligations for the Renewal
Period shall be upon the same terms and conditions as are contained in this
Lease.
(f) Annual Base Rent during the last five years of the initial
Lease Term and the Renewal Periods shall be as follows:
YEARS TOTAL ANNUAL RENT
16 - 20 $1,125,000.00 plus an amount equal to $1,125,000.00
multiplied by one-half of the percentage increase in the CPI
between the Commencement Date and the date five years before
the end of the initial Lease Term, up to a total maximum
Annual Rent of $1,550,000.00.
21 - 25 For the first Renewal Period, the Total Annual Rent shall be
equal to the Annual Rent payable during the preceding year
(for purposes of this sentence, the "Previous Annual Rent")
plus an amount equal to the Previous Annual Rent multiplied
by one half of the percentage increase in the CPI between
the date five years before the end of the initial Lease Term
and the last day of the initial Lease Term, up to a total
maximum Annual Rent of $1,850,000.00.
26 - 45 For the second and each subsequent Renewal Period, the Total
Annual Rent shall be equal to the Annual Rent payable during
the preceding year (for purposes of this sentence, the
"Previous Annual Rent") plus an amount equal to the Previous
Annual Rent multiplied by the percentage increase in the CPI
between the first day and the last day of the previous
Renewal Period.
(g) Except as specified herein, Tenant shall have no further right to
extend the Term.
Section 2.07. Right of First Refusal. In the event that Landlord
desires to or will sell or transfer the Premises or any part thereof, or if
the Landlord desires to make, or there will be, any Material Change in
Ownership, Tenant shall have, at Tenant's sole option, a right of first
refusal subject to the terms set forth herein. For purposes of this Section
2.07, "Material Change in Ownership" shall mean any change in direct or
indirect ownership or control of the Premises, including but not limited to
the sale or other transfer of direct or indirect ownership interest or control
rights in Landlord, after which Landlord fails to have at least 51% of its
direct or indirect ownership and control held by the Kostelny Family and
entities owned by the Kostelny Family. For purposes of the foregoing
sentence, "Kostelny Family" shall mean one or more of Gerald J. Kostelny, his
wife and his children and trusts for the benefit of one or more of Gerald J.
Kostelny, his wife and his children. Any sale or transfer of the Premises or
Material Change in Ownership without complying with this Section 2.07 shall be
a material default by Landlord under this Lease. The Tenant's right of first
refusal shall be exercisable for a period of 30 days following the date of
receipt of a copy of a bona fide letter of intent for the proposed
transaction, including all of the material terms and conditions of the sale or
transfer of the Premises or Material Change in Ownership (the "Option
Period"). If the Tenant does not exercise the right of first refusal during
the Option Period, Landlord shall have the right to proceed to close the
proposed transaction on the terms set forth in the letter of intent provided
hereunder at any time within 120 days after the expiration of the Option
Period. If Landlord so closes the proposed transaction, and if thereafter in
the case of a sale or transfer of the Premises no owner of the Premises is an
affiliate of Landlord, and if thereafter in the case of a Material Change in
Ownership no person holding direct or indirect ownership or control of
Landlord is an affiliate of Landlord, the right of first refusal under this
Section 2.07 shall terminate. Otherwise, such right of first refusal shall
continue and be in full force and effect with respect to any other proposed
sale or transfer of the Premises or Material Change in Ownership. For
purposes of the foregoing, all of the following shall be affiliates of
Landlord: (a) Gerald J. Kostelny, his wife and his children and trusts for the
benefit of one or more of Gerald J. Kostelny, his wife and his children, (b) a
person or entity which directly or indirectly owns, controls or holds with
power to vote, 5% or more of the outstanding voting securities of Landlord;
(c) a corporation 5% or more of whose outstanding voting securities are
directly or indirectly owned, controlled or held with power to vote, by
Landlord, or a person or entity which is an affiliate within the meaning of
subclause (a) or (b) above; (d) a person or entity which manages, operates or
leases all or a material part of Landlord's business; (e) any director,
officer or controlling person of Landlord; (f) any partnership in which
Landlord or a person or entity which is an affiliate within the meaning of
subclause (a) or (b) above is a general or limited partner; or (g) any limited
liability company in which Landlord or a person or entity which is an
affiliate within the meaning of subclause (a) or (b) above is a member. If
Tenant exercises its right of first refusal, it shall be entitled to purchase
or otherwise obtain direct or indirect ownership or control of the Premises on
the terms set forth in the letter of intent provided hereunder, provided that
(1) the Tenant shall not be required to pay earnest money in excess of 3% of
the purchase price of the Premises, and (2) upon Tenant's failure to purchase
the property for any reason in the absence of a default by Landlord, Tenant
shall forfeit the earnest money as liquidated damages. Without limitation of
the foregoing, Tenant shall not have the benefit of any contingency that would
allow the buyer of the Premises to terminate the buyer's obligation to
purchase the Premises upon investigation of the condition of the Premises.
Landlord may not sell or transfer the Premises or any part thereof, and there
may be no Material Change in Ownership, that is part of a larger transaction,
and each such sale, transfer or change must be a separate transaction subject
to the right of first refusal provided herein.
ARTICLE THREE: BASE RENT
On the Commencement Date, Tenant shall pay Landlord the Base Rent in the
amount stated in Paragraph 1.09(a) above for the first month of the Lease Term
(prorated on a per diem basis if the Commencement Date is other than the first
day of a month). On the first day of each month thereafter, Tenant shall pay
Landlord the Base Rent, in advance, without offset, deduction or prior demand,
except as expressly permitted herein. The Base Rent shall be payable at
Landlord's address or at such other place as Landlord may designate in
writing.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.01. Additional Rent. All charges payable by Tenant other
than Base Rent are called "Additional Rent." Unless this Lease provides
otherwise, Tenant shall pay all Additional Rent then due with the next monthly
installment of Base Rent. The term "Rent" shall mean Base Rent and Additional
Rent.
Section 4.02. Taxes.
(a) Real Property Taxes. Tenant shall pay an amount (hereinafter
referred to as the "Tax Adjustment Amount") equal to the amount of Taxes
accrued for the Premises but not yet due and payable as of the Commencement
Date and with respect to all periods thereafter the amount of Taxes incurred
with respect to each Lease Year for the Premises; except that Tenant shall be
required to pay only a pro rata amount of the Tax Adjustment Amount for the
Lease Year in which the last day of the Term occurs, pro rated on a per diem
basis. In the event Landlord desires to contest the Taxes due on the
Premises, Tenant agrees to cooperate with Landlord and execute any document
which may be reasonably necessary and proper for any proceeding at no cost to
Tenant. The Tax Adjustment Amount with respect to each Lease Year shall be
paid as provided in Section 4.07.
(b) Definition of "Taxes." "Taxes" means: (i) real estate taxes and
assessments, both general and special, assessed or imposed with respect to the
Premises, (ii) personal property taxes assessed or imposed upon personal
property owned by Landlord and used in the operation of the Premises, (iii)
any tax or excise on rents, gross receipts tax, transaction privilege tax or
other tax, however described, which is levied or assessed by the United States
of America, the State in which the Building is located or any city,
municipality or political subdivision thereof, against Landlord in respect to
the Base Rent, Additional Rent or other charges reserved under this Lease or
as a result of Landlord's receipt of such rents or other charges accruing
under this Lease, (iv) any charge or fee replacing any tax previously included
within the definition of Taxes, and (v) fees and expenses incurred by Landlord
to contest the Taxes due on the Premises. "Taxes" does not, however; include
Landlord's federal or state income, franchise, inheritance or estate taxes. In
determining the amount of Taxes for any year, the amount of special
assessments to be included shall be limited to the amount of the installment
(plus any interest payable thereon) of such special assessment required to be
paid during such year had Landlord elected to have such special assessment
paid over the maximum period of time permitted by law. Except as provided in
the preceding sentence, all references to Taxes "for" a particular year shall
be deemed to refer to Taxes levied or assessed with respect to such year
without regard to when such Taxes are paid or payable.
(c) Personal Property Taxes.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Tenant.
Tenant shall try to have personal property taxed separately from the Premises.
(ii) If any of Tenant's personal property is taxed together with
the Premises, Tenant shall pay Landlord the taxes for the personal property
within fifteen (15) days after Tenant receives a written statement from
Landlord for such personal property taxes, unless Tenant contests the personal
property taxes in good faith and such contest permits Tenant to defer payment
of such taxes.
Section 4.03. Utilities.
(a) Tenant shall pay, directly to the appropriate supplier, the cost
of all natural gas, heat, light, power, telephone, refuse disposal and any
other utilities and services supplied to the Premises.
(b) Landlord shall not be liable to Tenant in damages or otherwise if
any utilities or services are interrupted or terminated because of necessary
repairs, installations, or improvements, nor shall any such interruption or
termination relieve Tenant of the performance of any of its obligations
hereunder.
(c) Tenant may install equipment which can exceed the capacity of any
existing utility facilities; and if any equipment installed by Tenant requires
additional utility facilities the same shall be installed at Tenant's expense
in compliance with all code requirements and plans and specifications which
must be approved in writing by Landlord.
Section 4.04. Insurance Policies.
(a) Liability Insurance. During the Lease Term, Tenant shall maintain
a policy of commercial general liability insurance (sometimes known as broad
form comprehensive general liability insurance) insuring Tenant against
liability for bodily injury, property damage (including loss of use of
Premises) and personal injury arising out of the operation, use or occupancy
of the Premises. Tenant shall name Landlord as an additional insured under
such policy. The initial amount of such insurance shall be Two Million
Dollars ($2,000,000) per occurrence and shall be subject to reasonable
periodic increase based upon requirements of Landlord's lender(s) taking into
account changes in risk exposure. The liability insurance obtained by Tenant
under this Paragraph 4.04(a) shall (i) be primary and non-contributing; (ii)
contain cross-liability endorsements; and (iii) insure Landlord against
Tenant s performance under Section 5.04, if the matters giving rise to the
indemnity under Section 5.04 result from the negligence of Tenant. The amount
and coverage of such insurance shall not limit Tenant's liability nor relieve
Tenant of any other obligation under this Lease. Landlord may also obtain
supplemental comprehensive public liability insurance in an amount and with
coverage determined by Landlord insuring Landlord against liability arising
out of ownership, operation, use or occupancy of the Premises. The policy
obtained by Landlord shall not be contributory and shall not provide primary
insurance.
(b) Property and Rental Income Insurance. During the Lease Term,
Landlord, or at Tenant's option, Tenant, shall maintain policies of insurance
covering loss of or damage to the Premises in the full amount of its
replacement value, provided that if such policies are purchased by Tenant,
they shall be from an insurer or insurers reasonably satisfactory to Landlord.
Such policy shall provide protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended perils (all risk), sprinkler leakage and any other perils
which Landlord deems reasonably necessary. Landlord shall have the right to
obtain flood and earthquake insurance if required by any lender holding a
security interest in the Premises. Landlord shall not obtain insurance for
Tenant s fixtures or equipment or building improvements installed by Tenant on
the Premises. During the Lease Term, Landlord, or at Tenant s option, Tenant,
shall also maintain a rental income insurance policy, with loss payable to
Landlord, in an amount equal to one year's Base Rent and Additional Rent from
the Premises. Tenant shall not do or permit anything to be done which
invalidates any such insurance policies, provided: (i) that Tenant is given a
copy of the relevant provisions of such policy, as same may be amended from
time to time, on the Commencement Date and at such time as any such policies
are amended or renewed; and (ii) that the relevant provisions of such policy
do not prohibit any of Tenant's activities which are permissible pursuant to
this Lease. Any insurance obtained by Tenant under this Section 4.04(b) shall
be on terms and from an issuer acceptable to Landlord and the mortgagee of the
Premises.
(c) Tenant s Personal Property Insurance. Tenant agrees, at its own
cost and expense, at all times throughout the Lease Term to carry fire
insurance in an amount adequate to cover the full replacement value all
fixtures, equipment, and other items of personal property of Tenant or others
located on or within the Premises. Such policy shall provide protection
against all perils included within the classification of fire, extended
coverage, vandalism, malicious mischief, special extended perils (all risk),
sprinkler leakage and any other perils which Landlord deems reasonably
necessary.
(d) Payment of Premiums. Tenant shall pay an amount (hereinafter
referred to as the "Insurance Premium Expense") equal to the cost of the
premiums for the insurance policies maintained by Landlord under Paragraphs
4.04(a) and (b), if any, incurred with respect to each Lease Year. Tenant
shall be required to pay only a pro rata amount of the Insurance Premium
Expense for the Lease Years in which the first and last days of the Term
occur, pro rated on a per diem basis. The Insurance Premium Expense shall be
paid as provided in Section 4.07.
(e) General Insurance Provisions.
(i) Any insurance which Tenant is required to maintain under
this Lease shall include a provision which requires the insurance carrier to
give Landlord not less than thirty (30) days written notice prior to any
cancellation or modification of such coverage.
(ii) If Tenant fails to deliver any policy, certificate or
renewal to Landlord required under this Lease within the prescribed time
period or if any such policy is canceled or modified during the Lease Term
without Landlord's consent, Landlord may, after written notice to Tenant (but
without any applicable cure period), obtain such insurance, in which case
Tenant shall reimburse Landlord for the cost of such insurance within fifteen
(15) days after receipt of a statement that indicates the cost of such
insurance.
(iii) Tenant shall maintain all insurance required under this
Lease with companies holding a "General Policy Rating" of A- or better, as set
forth in the most current issue of "Best Key Rating Guide". Landlord and
Tenant acknowledge the insurance markets are rapidly changing and that
insurance in the form and amounts described in this Section 4.04 is for the
primary benefit of Landlord. If at any time during the Lease Term, Tenant is
unable to maintain the insurance required under the Lease, Tenant shall
nevertheless maintain insurance coverage which is customary and commercially
reasonable in the insurance industry for Tenant's type of business, as that
coverage may change from time to time. Landlord makes no representation as to
the adequacy of such insurance to protect Landlord's or Tenant's interests.
Therefore, Tenant shall obtain any such additional Premises or liability
insurance which Tenant deems necessary to protect Landlord and Tenant.
(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waive any and all rights of
recovery against the other, or against the officers, employees, agents or
representatives of the other, for loss of or damage to its property or the
property of others under its control, to the extent of any proceeds received
under such insurance policies (whether or not described in this Lease) at the
time of such loss or damage. Upon obtaining the required policies of
insurance, Landlord and Tenant shall give notice to the insurance carriers of
this mutual waiver of subrogation.
Section 4.05. Late Charges. Tenant s failure to pay Rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs
are impractical or extremely difficult to ascertain. Such costs may include,
but are not limited to, processing and accounting charges and late charges
which may be imposed on Landlord by any ground lease, mortgage or trust deed
encumbering the Premises. Therefore, if Landlord does not receive any Rent
payment within five (5) business days after notice that such amount is due,
Tenant shall pay Landlord a late charge equal to $750.00. The parties agree
that such late charge represents a fair and reasonable estimate of the costs
Landlord will incur by reason of such late payment.
Section 4.06. Interest on Past Due Obligations. Any amount owed by
Tenant to Landlord which is not paid within five (5) business days after
notice that such amount is due shall bear interest at the rate of twelve
percent (12%) per annum from the due date of such amount. If the interest
rate specified in this Lease is higher than the rate permitted by law, the
interest rate is hereby decreased to the maximum legal interest rate permitted
by law.
Section 4.07. Impounds. Tenant shall pay Landlord a sum equal to one-
twelfth (1/12th) of the Tax Adjustment Amount and Insurance Premium Expense
payable by Tenant under this Lease (based on Landlord's reasonable estimates
of such amounts communicated by Landlord to Tenant from time to time),
together with each payment of Base Rent. Landlord shall hold such payments in
an interest bearing impound account with the interest thereon to accrue to the
Tenant. Following the close of each Lease Year, Landlord shall deliver to
Tenant a statement setting forth the actual amounts of the Tax Adjustment
Amount and Insurance Premium Expense for such Lease Year. If Tenant has
overpaid the impound account, Landlord will refund such excess to Tenant
within thirty (30) days, provided Tenant is not then in default under this
Lease. If Tenant has underpaid the impound account, Tenant shall pay the
deficiency to Landlord within thirty (30) days after receipt of such
statement. If Tenant defaults under this Lease, Landlord may apply any funds
in the impound account to any obligation then due under this Lease.
ARTICLE FIVE: USE OF PREMISES
Section 5.01. Permitted Uses. Tenant may use the Premises only for the
Permitted Uses set forth in Section 1.06 above.
Section 5.02. Manner of Use. Tenant shall not cause or permit the
Premises to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, or which constitutes a
nuisance or waste.
Section 5.03. Hazardous Materials.
(a) Compliance With Law. Tenant, at Tenant's expense, shall comply with all
Environmental Laws (defined below) pertaining to the Premises or Tenant's use
of the Premises, regardless of when they become effective, and with all
directions, regardless of when they become effective, of all public officers,
pursuant to any Environmental Law, which shall impose any duty upon Landlord
or Tenant with respect to the Premises or Tenant's use or occupancy of the
Premises; provided, however, that compliance by Tenant may be deferred as long
as Tenant is diligently contesting, challenging or appealing such laws or
directions or their application to Tenant, Landlord or the Premises and as
long as the Premises remain free of liens on account thereof and any
enforcement actions against Landlord and the Premises are stayed or Tenant
provides Landlord with other security reasonably satisfactory to Landlord to
protect Landlord against any loss therefrom.
(b) Notices. Tenant shall give written notice to Landlord within ten days
after receiving notice or knowledge of the following:
i. any proceeding or inquiry by any governmental authority with respect
to the presence of any Regulated Substances (defined below) on the Premises or
the migration thereof from or to other property;
ii. all claims and potential claims made, inquired about, or threatened
by any third party against Tenant or the Premises relating to any loss or
injury resulting from any Regulated Substances on the Premises; and
iii. Tenant s discovery of any occurrence or condition on any property
adjoining or in the vicinity of the Premises that could cause the Premises or
any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use of the Premises under any Environmental Law.
(c) Indemnity.
(i) In General. Subject to Section 5.03(c)(ii) hereof, Tenant shall
indemnify, defend and hold harmless the Landlord and its affiliates, agents,
officers, directors, successors and assigns ("Indemnitees") from and against
all liabilities, claims, costs, damages, losses, liens, obligations,
penalties, claims, litigation, demands, judgments, suits and expenses (except
consequential or incidental damages) which may be made, assessed against, or
otherwise incurred by an Indemnitee (including, but not limited to, those
brought by any federal, state or local governmental agency, including the
United States Environmental Protection Agency and the Wisconsin Department of
Natural Resources) and which arise out of or relate to a Tenant Environmental
Condition (collectively, "Indemnified Matters").
The indemnity provided in this Section 5.03(c) is conditioned upon the
following:
(A) Indemnitee(s) shall give Tenant prompt written notice of any
claim which is the subject of the indemnity provided herein,
(B) Tenant shall control the defense of any such claim and Tenant
shall direct and manage any investigation and/or remedial or
removal action required by any such claim, so long as Tenant is
diligently defending such claim or managing such action,
(C) Tenant shall not be responsible for any settlements entered
into without Tenant s prior written consent, which consent shall
be deemed given if Tenant does not respond to an Indemnitee within
twenty (20) business days of Tenant's receipt of notice from an
Indemnitee that the Indemnitee intends to enter into a settlement,
and
(D) Tenant shall not be responsible for any costs or expenses of
Indemnitees unless such cost or expenses (x) consist of attorney's
fees and costs not to exceed $10,000 in the aggregate incurred in
investigating and evaluating any Indemnified Matter; or (y) are
either mandated by law or are approved by Tenant prior to being
incurred, which approval shall be deemed given if Tenant does not
respond to an Indemnitee within twenty (20) business days of
Tenant s receipt of notice from an Indemnitee that it intends to
incur a cost or expense.
(ii) Scope. The scope of the Tenant's indemnity obligation includes:
(A) the cost of any repair, cleanup or detoxification of the Premises to the
full extent required by Environmental Laws as such laws are applied to
industrial property, except to the extent more specifically limited in this
section 5.03(c), (B) the costs incurred by any government entity or third
party in responding to the Indemnified Matter, and (C) liability for personal
injury or property damage arising under a statutory or common law tort theory.
For purposes of this Section 5.03(c), the full extent required by
Environmental Laws as such laws are applied to industrial property shall be
determined by a court of competent jurisdiction or the governmental
agency(ies) having jurisdiction of the Premises and the Indemnified Matter,
and the full extent required by Environmental Laws as such laws are applied to
industrial property shall be deemed to include industrial uses and such
related office or other uses as Bucyrus may engage in on the Premises. Tenant
shall be entitled to exercise all rights normally afforded a responsible
party, including but not limited to challenging any governmental agency's
regulatory interpretation or order.
(iii) Tenant's Role. Tenant may defend against, direct, control or
supervise or otherwise assume direct responsibility for any Indemnified
Matter, at its sole cost, in the name of Landlord or Tenant or both, and
designate attorneys of Tenant's own choosing reasonably acceptable to Landlord
so long as Tenant is diligently addressing such Indemnified Matter.
(iv) Environmental Remediation Obligations. Tenant agrees to conduct,
at its sole cost and expense, any such actions as are required by any
governmental agencies or law with respect to the Indemnified Matter and to
diligently continue such actions until the Premises is in full compliance with
Environmental Laws and this Section 5.03(c), but shall coordinate such actions
with Landlord. Landlord shall allow Tenant reasonable access to the Premises
for the purposes of this Section 5.03(c). Tenant shall conduct such actions
using reasonable efforts to minimize interference with the business of
Landlord and its tenants in the use of the Premises. Without limiting the
foregoing:
(A) Landlord and its consultants shall have the right and
privilege to observe any actions required under this Lease
and may collect split samples or duplicate samples at
Landlord's own expense;
(B) Tenant shall restore the surface of the Premises
substantially to its condition prior to such actions.
(C) Tenant shall make available to Landlord copies of all
final site assessments, documents, submittals to
governmental authorities, field data, reports, laboratory
analyses, and all other information hereinafter produced in
connection with such actions within a reasonable time after
they come into possession of Tenant or Tenant s
representatives.
(v) Deed Restriction. If a deed restriction is required by
Environmental Law, such restriction shall not limit the operation of the
Property for its current use or other heavy industrial use.
(vi) Survival. This Section 5.03(c) shall survive termination of this
Lease.
(d) Disclosure. At the commencement of this Lease, and at all times during
this Lease, Tenant shall maintain, and upon request by Landlord make available
to Landlord for Landlord s inspection, copies of materials safety data sheets
for all chemicals which Tenant is required to maintain under EPCRA and/or
OSHA, and if Tenant is required to file with the State Emergency Response
Commission, the Local Emergency Planning Committee or Local Fire Department
under the Emergency Planning and Community Right-to-Know Act ("EPCRA"), Tenant
shall furnish a copy thereof to Landlord within thirty (30) days after the
submission of such reporting under EPCRA. Further, Tenant shall provide
Landlord a copy of every other document relating to the Premises that Tenant
makes available to any governmental authority or to any person requesting,
discussing or required by Regulated Substances or Environmental Laws, provided
that such document is produced in connection with an alleged violation of any
Environmental Laws or an inquiry or investigation of compliance with
Environmental Laws at the Premises.
(e) Definitions. For the purposes of this Lease,
i. the term "Regulated Substances" shall include but not be limited
to substances defined as "regulated substances," "hazardous waste," "hazardous
materials," "toxic substances," "pollutants," "toxic pollutants,"
"herbicides," "fungicides," "rodenticides," "insecticides," "contaminant," or
"pesticides" in any Environmental Law.
ii. "Environmental Law" means any laws, regulations, ordinances,
rules, orders, directions, requirements or court decrees pertaining to health,
industrial hygiene, or the environmental conditions on, under or about the
Premises, including, without limitation, the Resource Conservation and
Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984,
the Comprehensive Environmental Response, Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Federal Insecticide, Fungicide and Rodenticide Act, the Clean Water Act, the
Safe Drinking Water Act, the Clean Air Act, all parallel, similar or relevant
local and state environmental laws, and the regulations, rules and ordinances
adopted and publications promulgated pursuant to the local, state and federal
laws.
iii. "Tenant Environmental Condition" shall mean any event or condition
on the Premises that violates Environmental Laws as such laws are applied to
industrial property and either:
(A) occurred or came into existence after Tenant or its affiliated
predecessors first took possession of the Premises or any part
thereof in approximately 1893 and prior to the date of this Lease;
or
(B) occurs or comes into existence after the date of this Lease
and arises out of or relates to the acts or omissions of Tenant;
provided, however, that "Tenant Environmental Condition" shall not include the
condition described in, or the requirements of, the deed restriction affecting
the Premises or the asbestos located on the Premises, except to the extent
that (1) Tenant fails to comply with the deed restriction or the Environmental
Laws relating to the asbestos as such laws are applied to industrial property
during the term of this Lease, or (2) Tenant fails to leave the Premises in
compliance with the deed restriction and the Environmental Laws relating to
the asbestos as such laws are applied to industrial property upon termination
of this Lease.
(f) Warranties. Tenant represents and warrants to Landlord that:
i. Tenant is not in material violation of or subject to any existing,
pending or threatened investigation by any governmental authority under any
Environmental Law relating to the Premises;
ii. Except for those currently in existence, Tenant has not and is not
required by any Environmental Law to obtain any permits or license to
construct or operate any improvements, fixtures or equipment forming a part of
the Premises;
iii. Tenant's use of the Premises will not result in the disposal or
release of any Regulated Substances on, to or from the Premises; and
iv. Tenant will not install, use or operate any underground storage
tank on the Premises without the express written permission of Landlord, which
permission may be withheld in Landlord s sole and arbitrary discretion.
v. Tenant shall not cause or permit any Regulated Substances to be
generated, produced, brought upon, used, stored, treated or disposed of in or
about the Premises by Tenant, its agents, employees, contractors, sublessees
or invitees without the prior written consent of Landlord, except in the
ordinary course of business in compliance with Environmental Laws.
(g) Inspection. Landlord and its agents shall have the right, but not
the duty, to inspect the Premises at any time during normal business hours to
determine whether Tenant is complying with the terms of this Lease. If Tenant
is not in compliance with this Lease and is not in the process of remedying
any such non-compliance during any applicable cure period, Landlord shall have
the right to immediately enter upon the Premises to remedy, at Tenant's
expense, any contamination caused by Tenant's failure to comply
notwithstanding any other provision of this Lease. Such remediation measures
shall be done with reasonable care in accordance with the recommendations of
Landlord's geotechnical engineers and/or consultants, and/or the requirements
of any governmental authority having jurisdiction over such matters. Tenant
shall pay to Landlord, as additional rent, all costs and expenses incurred by
Landlord in performing any such remediation measures within thirty days after
Landlord's written request therefore. Landlord shall use reasonable efforts
to minimize interference with Tenant's business but shall not be liable for
any interference caused thereby.
(h) Underground Storage Tanks. If underground storage tanks exist on
the Premises at the commencement of the term hereof, then this Section 5.03(h)
shall apply. Such tanks, pumps and all other equipment used in connection
with the operation of same shall be deemed to be excluded from the definition
of the term "Premises". Such equipment and underground tanks shall be and
remain the property of Landlord, and Tenant shall not take any actions with
regard thereto. Tenant is prohibited from using, removing, damaging or
disturbing or allowing its employees, contractors and invitees to use, remove,
damage or disturb any such equipment, including tanks.
(i) Roof. Notwithstanding anything to the contrary herein contained,
Tenant shall have the right to enter into leases for use of the roof of the
Building and to retain the rentals therefrom, provided that neither the roof
nor any other part of the Premises is damaged by the lessee's operations,
other than as may be repaired by Tenant or its lessees, and that the subject
matter of the lease and the lessee's operations thereunder are in compliance
with all applicable statutes, laws, ordinances and governmental rules and
regulations. Each such lessee shall provide such liability insurance for the
benefit of Landlord as Landlord reasonably may require (other than lessees
whose leases existed prior to the date hereof and whose leases do not require
such insurance).
Section 5.04. Indemnity. Tenant shall indemnify Landlord against and
hold Landlord harmless from any and all costs, claims or liability arising
from: (a) Tenant's use of the Premises; (b) the conduct of Tenant's business
or anything else done or permitted by Tenant to be done in or about the
Premises; (c) any breach or default in the performance of Tenant's
obligations under this Lease; (d) any misrepresentation or breach of warranty
by Tenant under this Lease; or (e) other acts or omissions of Tenant not
caused by a default by Landlord. Tenant shall defend Landlord against any
such cost, claim or liability at Tenant's expense with counsel reasonably
acceptable to Landlord or, at Landlord's election, Tenant shall reimburse
Landlord for any reasonable legal fees or costs incurred by Landlord in
connection with any such claim. As a material part of the consideration to
Landlord, Tenant assumes all risk of damage to Premises or injury to persons
in or about the Premises caused by Tenant, its agents, contractors and
employees, and Tenant hereby waives all claims in respect thereof against
Landlord, except for any claim arising out of Landlord's gross negligence or
willful misconduct. As used in this Section, the term "Tenant" shall include
Tenant's employees, agents, contractors and invitees, if applicable. Landlord
shall give written notice thereof to Tenant immediately after any of the
following occurs: (i) Landlord receives notice of any claim, action or
proceeding for which Tenant may have an indemnity obligation under this
Section 5.04, (ii) Landlord receives notice of any threatened claim, action or
proceeding for which Tenant may have an indemnity obligation under this
Section 5.4, or (iii) Landlord becomes aware of any material development with
respect to any such claim, action or proceeding, or any such threatened claim,
action or proceeding; and within 30 days after receipt of any such written
notice from Landlord, Tenant may, by written notice to Landlord, elect to
defend such claim, action or proceeding by counsel selected by Tenant at
Tenant's expense, provided that Landlord or Tenant, as applicable, shall
pursue such defense with reasonable diligence by counsel reasonably acceptable
to the other party.
Section 5.05. Landlord's Access. During normal business hours, Landlord
or its agents may enter the Premises at all reasonable times to show the
Premises to potential buyers, investors or tenants or other parties; to do any
other act or to inspect and conduct tests in order to monitor Tenant s
compliance with all applicable environmental laws and all laws governing the
presence and use of Hazardous Material; or for any other purpose Landlord
deems necessary. Within the last twelve (12) months of the Lease term,
Landlord may place customary "For Sale" and "For Lease" signs on the Premises.
Section 5.06. Quiet Possession. If Tenant pays the Rent and complies
with all other terms of this Lease, Tenant may occupy and enjoy the Premises
for the full Lease Term, subject to the provisions of this Lease, including
without limitation, the terms and conditions contained in the Documents.
Section 5.07. Documents. Notwithstanding anything herein to the
contrary, the parties acknowledge that the Premises is subject to certain
documents of record on the date hereof (excluding Landlord's mortgage and
other documents arising by, through or under Landlord, the "Documents").
Tenant acknowledges that its use and operation of the Premises will be subject
to the terms and conditions of the Documents, and agrees to be subject
thereto. To the extent any of the Documents impose any obligations on
Landlord as owner of the Premises, or otherwise, including without limitation,
the payment or reimbursement of fees and costs of any kind, any maintenance
obligations, construction of any improvements, or maintenance of insurance,
Tenant expressly assumes such obligations and agrees to perform such
obligations on Landlord s behalf in a timely manner pursuant to the terms of
the Documents.
ARTICLE SIX: CONDITION OF PREMISES; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.01. Existing Conditions. Tenant accepts the Premises in its
condition as of the execution of the Lease, subject to all recorded matter,
laws, ordinances, and governmental regulations and orders. Except as provided
herein, Tenant acknowledges that neither Landlord nor any agent of Landlord
has made any representation as to the condition of the Premises or the
suitability of the Premises for Tenant's intended use. Tenant represents and
warrants that Tenant has made its own inspection of any inquiry regarding the
condition of the Premises and is not relying on any representations of
Landlord or any Broker with respect thereto.
Section 6.02. Exemption of Landlord from Liability. Landlord shall not
be liable for any damage or injury to the person, business (or any loss of
income therefrom), goods, wares, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
Premises, from any cause whatsoever, including without limitation any damage
or injury which is caused by or results from: (a) fire, steam, electricity,
water, gas or rain; (b) the breakage, leakage, obstruction or other defects
of pipes, sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures or any other cause; or, (c) conditions arising in or about
the Premises, or from other sources or places. Landlord shall not be liable
for any such damage or injury even though the cause of or the means of
repairing such damage or injury are not accessible to Tenant.
Section 6.03. Landlord's Obligations.
(a) Except as specifically provided in this Article 6, and subject to
the provisions of Article Seven (Damage, Destruction or Condemnation),
Landlord shall have absolutely no further responsibility to repair, maintain
or replace any portion of the Premises at any time.
(b) Tenant waives the benefit of any present or future law which might
give Tenant the right to repair the Premises at Landlord's expense or to
terminate the Lease due to the condition of the Premises.
Section 6.04. Tenant's Obligations.
(a) Except for those items which are specifically Landlord's
responsibility pursuant to Section 6.03 and in Article Seven (Damage,
Destruction or Condemnation), Tenant shall be responsible for and shall keep
in good, safe, tenantable condition, sightly in appearance, and in good order
and repair all portions of the Premises (in accordance with the standard at
which the Premises exist on the Commencement Date), including without
limitation, (i) all parts of the Building, both interior and exterior,
including without limitation, the roof, (ii) any sidewalks, parking areas,
landscaped areas, driveways, located on or serving the Premises, (iii) all
heating, ventilating and air conditioning equipment located on the Premises;
(iv) the painting and redecorating of the exterior of the Building; (v) all
water, sewer, gas, electric and other utility lines and all sprinkler systems,
if any, which are located within or serve the Premises, and (vi) all
electrical equipment which is located within or serves the Premises. As used
herein "repair" shall include the obligation, when necessary, to replace.
Tenant shall carry on a regular maintenance and daily cleaning program for the
Premises in order to reflect a proper image for industrial property. Tenant
shall store all trash, and any other refuse in proper containers within the
Premises and arrange for a regular pick-up of such trash, and any other refuse
at Tenant's expense. Such trash shall not be burned in or about the Premises.
Tenant shall keep the sidewalks, driveways, and parking areas on the Premises
free and clear of snow and ice and otherwise at all times in proper condition
for safe travel thereon, and will be responsible for any and all injuries
caused by Tenant's failure to do so.
(b) Tenant shall also take all actions necessary to comply with all
applicable statutes, ordinances, rules, regulations, orders and requirements
regulating the Premises ("Laws"), as such Laws are then being enforced;
provided, however, that compliance by Tenant may be deferred as long as Tenant
is diligently contesting, challenging or appealing any such Laws or their
application to Tenant, Landlord or the Premises and as long as the Premises
remain free of liens on account thereof and any enforcement actions against
Landlord or the Premises are stayed or Tenant provides Landlord with other
security reasonably satisfactory to Landlord to protect Landlord against any
loss therefrom. Any addition, alteration, improvement, or rebuilding,
structural or otherwise, to or of the Premises or any part thereof, that may
be necessary or required by reason of any law, rule, regulation or order
promulgated by any governmental agency shall be immediately made by and at the
cost and expense of Tenant. If Tenant receives notice of non-compliance of
the Premises with any applicable codes, ordinances, or other regulations,
Tenant will promptly notify Landlord, including a copy of such notice.
(c) Tenant shall fulfill all of Tenant's obligations under this
Section 6.04 at Tenant's sole expense. If Tenant fails to maintain, repair or
replace the Premises as required by this Section 6.04, Landlord may, upon
thirty (30) days' prior notice to Tenant (except that no notice shall be
required in the case of an emergency), enter the Premises and perform such
maintenance or repair (including replacement, as needed) on behalf of Tenant.
In such case, Tenant shall reimburse Landlord for all costs incurred in
performing such maintenance or repair immediately upon demand.
Section 6.05. Alterations, Additions, and Improvements.
(a) Tenant shall not make any alterations, additions, or improvements
to the Premises without Landlord's prior written consent, except for
alterations, additions or improvements which are not structural and do not
exceed Two Hundred Fifty Thousand Dollars ($250,000) in cost for any project.
Landlord shall not unreasonably withhold such consent and may not withhold
consent to any alteration, addition or improvement which is necessary or
appropriate to allow Tenant to conduct its business on the Premises so long as
such addition or improvement will not materially decrease the value of the
Premises. Landlord may require Tenant to provide demolition and/or lien and
completion bonds in form and amount satisfactory to Landlord for any project
which will cost more than $250,000. Tenant shall promptly remove any
alterations, additions, or improvements constructed in violation of this
Paragraph 6.05(a) upon Landlord's written request. All alterations,
additions, and improvements shall be done in a good and workmanlike manner, in
conformity with all applicable laws and regulations, and by a contractor
approved by Landlord. Upon completion of any such work, Tenant shall provide
Landlord with "as built" plans, copies of all construction contracts, and
proof of payment for all labor and materials.
(b) Tenant shall pay when due all claims for labor and material
furnished to the Premises. Tenant shall have the right to contest any such
claims, provided that no liens are filed against the Premises on account
thereof or that Tenant furnishes (i) bonds insuring Landlord, its lenders and
the Premises against any adverse effects of such claims, which bonds shall be
from companies and in form and content reasonably acceptable to Landlord, or
(ii) other security reasonably satisfactory to Landlord to protect Landlord
against any loss therefrom. Tenant shall give Landlord at least twenty (20)
days' prior written notice of the commencement of any work on the Premises,
regardless of whether Landlord's consent to such work is required. Landlord
may elect to record and post notices of non-responsibility on the Premises.
Section 6.06 Liens. Tenant shall not permit to be created nor to
remain undischarged any lien, encumbrance or charge arising out of any work or
work claim of any contractor, mechanic, laborer or material supplied by a
materialman which might be, or become, a lien or encumbrance or charge upon
the Premises and Tenant shall not suffer any other matter or thing whereby the
estate, right and interest of Landlord in the Premises might be impaired. If
any lien or notice of lien on account of an alleged debt of Tenant or any
notice of contract by a party engaged by Tenant or Tenant's contractor to work
in the Premises shall be filed against the Premises, Tenant shall, within
thirty (30) days after notice of the filing thereof, cause the same to be
discharged of record by payment, deposit or bond or provide Landlord with
other security reasonably satisfactory to Landlord to protect Landlord against
any loss therefrom. If Tenant shall fail to cause such lien or notice of lien
to be discharged by either paying the amounts claimed to be due or by
procuring the discharge of such lien by deposit or by bonding proceedings and
if Tenant fails to provide other security to Landlord, Landlord shall be
entitled, if Landlord so elects, to defend any prosecution of an action for
foreclosure of such lien by the lienor or to compel the prosecution of an
action for the foreclosure of such lien by the lienor with interest, costs and
allowances. Any money paid by Landlord and all costs and expenses, including
attorney's fees, incurred by Landlord in connection therewith, together with
interest at the rate of twelve percent (12%) per annum from the respective
dates of Landlord's payment or incurring of the cost or expense, shall be paid
by Tenant to Landlord on demand. In the event Tenant diligently contests any
such claim, Tenant agrees to indemnify, defend, and hold harmless Landlord
from any and all costs, liability and damages, including attorney's fees
resulting therefrom, and, if requested, upon demand, immediately to deposit
with Landlord cash or surety bond in form and with a company satisfactory to
Landlord in an amount equal to the amount of such contested claim.
Section 6.07. Condition upon Termination. Upon the termination of the
Lease, Tenant shall surrender the Premises to Landlord, broom clean and in the
same condition as on the date hereof except for ordinary wear and tear which
Tenant was not otherwise obligated to remedy under any provision of this
Lease. However, Tenant shall not be obligated to repair any damage which
Landlord is required to repair under Article Seven (Damage or Destruction).
In addition, Landlord may require Tenant to remove any alterations, additions
and improvements which were either (a) made without Landlord's consent, if
required; or (b) made with Landlord's consent but for which Landlord indicated
it would require their removal. All such alterations, additions or
improvements must be removed prior to the expiration of the Lease, and any
damage to the Premises resulting therefrom must be repaired, all at Tenant's
expense. All alterations, additions and improvements which Landlord has not
required Tenant to remove shall become Landlord's property and shall be
surrendered to Landlord upon the expiration or earlier termination of the
Lease, except that Tenant may remove any of Tenant's machinery, trade fixtures
or equipment which can be removed without material damage to the Premises.
Tenant shall repair, at Tenant's expense, any damage to the Premises caused by
the removal of any such machinery or equipment. In no event, however, shall
Tenant remove any of the following materials or equipment (which shall be
deemed Landlord's property) without Landlord's prior written consent: any
power wiring or power panels; lighting or lighting fixtures; wall coverings;
drapes, blinds or other window coverings; carpets or other floor coverings;
heaters, air conditioners or any other heating or air conditioning equipment;
fencing or security gates; or other similar building operating equipment and
decorations.
ARTICLE SEVEN: DAMAGE, DESTRUCTION OR CONDEMNATION
Section 7.01. Damage, Destruction or Condemnation of the Premises.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence of any damage to all or any portion of the Premises or immediately
upon Tenant receiving notice of a condemnation of all or any portion of the
Premises. Landlord shall, within thirty (30) days after receipt of such
notice or of other notice of such damage or condemnation, notify Tenant in
writing (i) how much time will be necessary to repair the Premises and the
period for which Landlord will receive proceeds of rental loss insurance, (ii)
whether there are any portions of the Premises that cannot be repaired, and
(iii) whether the proceeds of insurance policies or condemnation awards will
be sufficient to pay for such repairs. Landlord shall repair the Premises and
this Lease shall remain in full force and effect unless either (A) Landlord
and Tenant agree to terminate this Lease, or (B) this Article 7 permits Tenant
to elect one of the following options, and Tenant so elects: (1) to terminate
this Lease pursuant to a provision of this Article 7, (2) to continue under
the Lease without repair of the Premises and with abatement of rent as
provided in Section 7.02, or (3) to purchase the Premises as provided below.
Notwithstanding the foregoing, if the damage or condemnation does not have a
material adverse effect on Tenant's use and enjoyment of the Premises, then
Tenant may not exercise any right Tenant otherwise may have hereunder to
terminate this Lease or purchase the Premises, and instead this Lease shall
continue with abatement of rent as provided in Section 7.02. Without
limitation of other items that may constitute a material adverse effect on
Tenant's use and enjoyment of the Premises, any damage or condemnation that
prevents Tenant from operating its business on the Premises consistent with
the use available to Tenant prior to such damage or condemnation or that
negatively affects Tenant's profits from its operations on the Premises shall
be deemed to have a material adverse effect. As used in this Article 7,
"repair" shall include repair, replacement, restoration, alteration,
improvement or other work necessary to remedy the effect of any damage or
condemnation.
(b) Landlord may elect (but is not required) to repair any damage to
Tenant's fixtures, equipment, or improvements. All repairs made under this
Article 7 shall be subject to Tenant's reasonable approval as to design and
materials. If the Landlord's efforts to repair the Premises are not
proceeding as necessary to complete the repair on or before the date which is
three months after the date for completion of repair indicated in Landlord's
notice pursuant to Section 7.01(a), and if Landlord does not within 10 days
after written notice thereof from Tenant to Landlord take reasonable steps to
cause the repair to be completed on or before the date which is three months
after the date for completion of repair indicated in Landlord's notice
pursuant to Section 7.01(a), Tenant may elect to (i) terminate this Lease as
of the date of such damage by providing written notice to Landlord at any time
prior to the time Landlord takes reasonable steps to remedy such delay, or
(ii) purchase the Premises by written notice to Landlord given any time prior
to the time Landlord takes reasonable steps to remedy such delay.
(c) If the repairs will take longer than twelve months to be
completed, Tenant may terminate this Lease by written notice to Landlord at
any time before thirty (30) days after written notice by Landlord to Tenant
that the repairs to the Premises will take longer than twelve months to be
completed. In case of damage that is being repaired, if the repairs extend
beyond the later of twelve months after the date of the damage or the end of
the period of Landlord's rental loss insurance Tenant shall elect one of the
following options: (i) commence paying rent without abatement, or (ii)
purchase the Premises by written notice to Landlord given before thirty (30)
days after written notice by Landlord to Tenant that the repairs will extend
beyond such date.
(d) If the insurance or condemnation proceeds are not sufficient to
repair the Premises, and if Landlord does not elect to pay the deficiency,
Tenant shall elect one of the following (i) terminate this Lease by written
notice to Landlord before thirty (30) days after written notice from Landlord
to Tenant that such deficiency exists, (ii) pay such deficiency to Landlord,
(iii) continue under the Lease with only such repairs as can be accomplished
with the available funds and with abatement of rent as provided in Section
7.02, or (iv) purchase the Premises by written notice to Landlord given before
thirty (30) days after written notice by Landlord to Tenant that such
deficiency exists.
(e) If (a) building or zoning laws or other legal restrictions, (b)
changes in building materials or methods, (c) Landlord's failure to diligently
pursue construction, (d) the loss of portions of the Premises due to
condemnation, or (e) any other event or condition, prevents the Premises from
timely being repaired as they existed prior to any damage or condemnation,
then Landlord and Tenant shall attempt in good faith to negotiate with each
other and the applicable governmental or other parties to achieve acceptable
plans and specifications and timetable for reconstruction of the Premises. In
case the parties cannot agree, Tenant shall elect one of the following (i)
terminate this Lease by written notice to Landlord given before thirty (30)
days after written notice from Landlord to Tenant that no agreement has been
reached, or (ii) purchase the Premises by written notice to Landlord given
before thirty (30) days after written notice from Landlord to Tenant that no
agreement has been reached.
(f) If Landlord's mortgagee has the right to retain the proceeds of
insurance rather than make them available for repair as provided in this
Article 7, then Landlord shall use its best efforts to cause the mortgagee to
make such proceeds available within thirty (30) days after the date of such
damage. If Landlord is not successful in causing its mortgagee to make such
proceeds available, then Landlord shall use its best efforts to refinance its
mortgage with a lender who will allow repair of the Premises, with such
refinancing to close within sixty (60) days after the date of such damage,
provided that such time shall be extended if repair is continuing with funds
provided by Landlord or Tenant or otherwise, and provided further that
Landlord shall not be required to obtain refinancing on terms less favorable
than the financing existing at the time the damage occurred. If Landlord does
not obtain such refinancing, then Tenant shall have the option to (i) purchase
the Premises by written notice to Landlord before thirty (30) days after
written notice by Landlord to Tenant that neither insurance proceeds nor
refinancing proceeds will be available, (ii) terminate this Lease by written
notice to Landlord before thirty (30) days after written notice from Landlord
to Tenant that neither insurance proceeds nor refinancing proceeds will be
available, or (iii) pay for all or some repairs as desired by Tenant and
continue under this Lease with abatement of rent.
Section 7.02. Reduction of Rent. If all or any portion of the usable
area of the Premises is unavailable, or if Tenant's use of the Premises is
impaired, due to damage or condemnation and this Lease does not terminate,
except as expressly provided herein, any rent payable during the period of
such unavailability or impairment, including Base Rent, insurance premiums and
real estate Taxes, shall be reduced according to the degree to which the
Premises is unavailable or Tenant's use of the Premises is impaired. Except
for such possible reduction in rent, Tenant shall not be entitled to any
compensation, reduction, or reimbursement from Landlord as a result of any
damage, destruction, repair or condemnation of or to the Premises.
Section 7.03. Waiver. Tenant waives the protection of any statute,
code or judicial decision which grants a tenant the right to terminate a lease
in the event of the substantial or total destruction of the Premises. Tenant
agrees that the provisions of Section 7.01 above shall govern the rights and
obligations of Landlord and Tenant in the event of any substantial or total
destruction to the Premises.
Section 7.04. Condemnation Award. In case of condemnation, the entire
condemnation award shall belong to Landlord; but Tenant shall not be
prohibited from pursuing a separate award for the loss of or damage to the
Tenant's trade fixtures or removable personal property or for its interest in
this Lease.
ARTICLE EIGHT: PURCHASE UPON CASUALTY OR CONDEMNATION
If Tenant exercises its right to purchase all or a portion of the
Premises under Article 7, the closing shall occur within 30 days after such
election with the purchase price to be the fair market value of the Premises
in its condition as of the date of Tenant's exercise of its right to purchase
(disregarding any alterations or improvements installed or constructed at
Tenant's expense after the date of this Lease to the extent such alterations
or improvements are not required to be completed by Tenant under this Lease
and to the extent such alterations or improvements increase the value of the
Premises), plus the amount of any insurance or condemnation proceeds actually
paid to Tenant or made available to Tenant to pay for the repair of the
Premises. If the parties do not agree on the fair market value of the
Premises, the transaction shall nonetheless close with sufficient purchase
money in escrow to pay the purchase price, and the parties shall determine the
purchase price within 60 days after closing, with the purchase price equaling
the average of three appraisals from MAI appraisers, with one such appraiser
selected by Tenant, one selected by Landlord and one selected by the two so
chosen. Each of Landlord and Tenant shall pay the cost of the appraiser
selected by it and the Landlord and Tenant shall share the cost of the third
appraiser.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. Landlord s Consent Required. Subject to the provisions
of Section 5.03(i) above and Section 9.04 below, Tenant shall not voluntarily
or by operation of law assign, transfer, mortgage or otherwise transfer or
encumber (collectively, "assignment") or sublet all or any part of Tenant's
interest in this Lease or in the Premises without Landlord's prior written
consent, which may not be unreasonably withheld, provided that this Section
9.01 shall not apply to any assignment or transfer in connection with a sale
or other transfer of all or substantially all of the assets of Tenant so long
as the assignee or transferee has a financial conditional equal to or better
than the financial condition of Tenant on the date of this Lease.
Section 9.02. Terms and Conditions Applicable to Assignment and
Subletting.
(a) Regardless of Landlord's consent, any assignment or subletting
(other than pursuant to Section 5.03(i) above) shall not: (i) be effective
without the express written assumption by such assignee or sublessee of the
obligations of Tenant under this Lease; (ii) release Tenant of any obligations
hereunder; or (iii) alter the primary liability of Tenant for the payment of
Base Rent and other sums due Landlord hereunder or for the performance of any
other obligations to be performed by Tenant under this Lease.
(b) Landlord may accept any rent or performance of Tenant's
obligations from any person other than Tenant pending approval or disapproval
of an assignment. Neither a delay in the approval or disapproval of such
assignment nor the acceptance of any rent or performance shall constitute a
waiver or estoppel of Landlord's right to exercise its remedies for the
default or breach by Tenant of any of the terms, covenants or conditions of
this Lease.
(c) The consent of Landlord to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Tenant or
to any subsequent or successive assignment or subletting by the sublessee.
(d) In the event of any default or breach of Tenant's obligations
under this Lease, Landlord may proceed directly against Tenant, any Guarantors
or any one else responsible for the performance of the Tenant's obligations
under this Lease, including the sublessee, without first exhausting Landlord's
remedies against any other person or entity responsible therefore to Landlord,
or any security held by Landlord or Tenant.
(e) Each request for consent to an assignment or subletting shall be
in writing, accompanied by information relevant to Landlord's determination as
to the financial and operational responsibility and appropriateness of the
proposed assignee or sublessee, including but not limited to the intended use
and/or required modification of the Premises, if any. Tenant agrees to provide
Landlord with such other or additional information and/or documentation as may
be reasonably requested by Landlord. If Tenant requests Landlord to consent to
an assignment or subletting, and Landlord determines, in Landlord s
commercially reasonable discretion, that Landlord will need to have outside
legal or technical assistance to review the request for consent to a proposed
assignment or subletting, Tenant shall reimburse Landlord, within thirty (30)
days of request by Landlord, for Landlord's actual out-of-pocket good faith
expenditures in such regard, with the invoice therefore accompanied by a
reasonably particularized explanation for the need for such outside
assistance.
(f) Any assignee of, or sublessee under, this Lease shall, by reason
of accepting such assignment or entering into such sublease, be deemed, for
the benefit of Landlord, to have assumed and agreed to conform and comply with
each and every term, covenant, condition and obligation herein to be observed
or performed by Tenant during the term of said assignment or sublease, other
than such obligations as are contrary to or inconsistent with provisions of an
assignment or sublease to which Landlord has specifically consented in
writing.
9.03. Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Tenant of all
or any part of the Premises and shall be deemed included in all subleases
under this Lease whether or not expressly incorporated therein:
(a) Tenant agrees that upon the termination of this Lease, Tenant will
transfer to Landlord all of Tenant's interest in subleases and all rentals and
income arising thereunder on the terms and conditions contained in this
Section 9.03(a). Landlord shall not, by reason of this or any other
assignment of such sublease to Landlord, nor by reason of the collection of
the rents from a sublessee, be deemed liable to the sublessee for any failure
of Tenant to perform and comply with any of Tenant's obligations to such
sublessee under such sublease. Tenant hereby irrevocably authorizes and
directs any such sublessee, upon receipt of a written notice from Landlord
stating that a Material Breach exists in the performance of Tenant's
obligations under this Lease, to pay to Landlord the rents and other charges
due and to become due under the sublease. Sublessee shall rely upon any such
statement and request from Landlord and shall pay such rents and other charges
to Landlord without any obligation or right to inquire as to whether such
Material Breach exists and notwithstanding any notice from or claim from
Tenant to the contrary. Tenant shall have no right or claim against said
sublessee, or, until the Material Breach has been cured, against Landlord, for
any such rents and other charges so paid by said sublessee to Landlord.
(b) In the event of a Material Breach by Tenant in the performance of
its obligations under this Lease, Landlord, at its option and without any
obligation to do so, may require any sublessee to attorn to Landlord, in which
event Landlord shall undertake the obligations of the sublessor under such
sublease from the time of the exercise of said option to the expiration of
such sublease; provided, however, Landlord shall not be liable for any prepaid
rents or security deposit paid by such sublessee to such sublessor or for any
other prior defaults or breaches of such sublessor under such sublease.
(c) No sublessee shall further assign or sublet all or any part of the
Premises without Landlord s prior written consent, except to the extent
specifically provided to the contrary in this Lease and except that a
sublessee in connection with a sale or other transfer of all or substantially
all of the assets of Tenant shall have all rights of Tenant hereunder.
9.04. Affiliates. Notwithstanding anything to the contrary
contained in this Lease, Tenant shall not be required to obtain Landlord's
prior written consent with respect to any assignment of the Lease or any
sublease of all or any portion of the Premises to an entity or person which
controls, is controlled by, or is under common control with, Tenant.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. Covenants and Conditions. Tenant's performance of each
of Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Premises is conditioned upon
such performance.
Section 10.02. Defaults. Tenant shall be in material default under
this Lease:
(a) If Tenant (i) abandons the Premises; (ii) vacates the Premises
and as a result any insurance described in Section 4.04 is cancelled; or (iii)
Tenant assigns or sublets Tenant's interest in this Lease without Landlord's
specific prior written consent as required by Article 9;
(b) If Tenant fails to pay Rent or any other charge within five (5)
business days after such payment is due;
(c) If Tenant fails to perform any of Tenant's non-monetary
obligations under this Lease for a period of thirty (30) days after written
notice from Landlord; provided that if more than thirty (30) days are
required to complete such performance, Tenant shall not be in default if
Tenant commences such performance within the thirty (30) day period and
thereafter diligently pursues its completion. However, Landlord shall not be
required to give such notice if Tenant's failure to perform constitutes a non-
curable breach of this Lease. The notice required by this Paragraph is
intended to satisfy any and all notice requirements imposed by law on Landlord
and is not in addition to any such requirement.
(d) (i) If Tenant makes a general assignment or general arrangement
for the benefit of creditors; (ii) if a petition for adjudication of
bankruptcy or for reorganization or rearrangement is filed by or against
Tenant and is not dismissed within sixty (60) days; (iii) if a trustee or
receiver is appointed to take possession of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease and
possession is not restored to Tenant within sixty (60) days; or (iv) if
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease is subjected to attachment, execution or other judicial
seizure which is not discharged within sixty (60) days. If a court of
competent jurisdiction determines that any of the acts described in this
subparagraph (d) is not a default under this Lease, and a trustee is appointed
to take possession (or if Tenant remains a debtor in possession) and such
trustee or Tenant transfers Tenant's interest hereunder, then Landlord shall
receive, as Additional Rent, the excess, if any, of the Rent (or any other
consideration) paid in connection with such assignment or sublease over the
Rent payable by Tenant under this Lease.
Section 10.03. Remedies. On the occurrence of any material default by
Tenant, and following the expiration of any applicable cure periods, Landlord
may, at any time thereafter, without further notice or demand and without
limiting Landlord in the exercise of any right or remedy which Landlord may
have:
(a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event,
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including (i) the worth at the time of
the award of the unpaid Base Rent, Additional Rent and other charges which
Landlord had earned at the time of the termination; (ii) the worth at the
time of the award of the amount by which the unpaid Base Rent, Additional Rent
and other charges which Landlord would have earned after termination until the
time of the award exceeds the amount of such rental loss that Tenant proves
Landlord could have reasonably avoided; (iii) the worth at the time of the
award of the amount by which the unpaid Base Rent, Additional Rent and other
charges which Tenant would have paid for the balance of the Lease Term after
the time of award exceeds the amount of such rental loss that Tenant proves
Landlord could have reasonably avoided; and (iv) any other amount necessary
to compensate Landlord for all the detriment proximately caused by Tenant's
failure to perform its obligations under the Lease, including, but not limited
to, any costs or expenses Landlord incurs in maintaining or preserving the
Premises after such default, the cost of recovering possession of the
Premises, expenses of reletting, including necessary renovation or alteration
of the Premises to restore the Premises to the condition in which Tenant is
obligated to maintain same hereunder, reasonable wear and tear excepted,
Landlord s reasonable attorney's fees incurred in connection therewith, and
any real estate commission paid or payable. As used in subparts (i) and (ii)
above, the "worth at the time of the award" is computed by allowing interest
on unpaid amounts at the rate of twelve percent (12%) per annum, or such
lesser amount as may then be the maximum lawful rate. As used in subpart
(iii) above, the "worth at the time of the award" is computed by discounting
such amount at the discount rate of seven percent (7%) per annum. If Tenant
has abandoned the Premises, Landlord shall have the option of (i) retaking
possession of the Premises and recovering from Tenant the amount specified in
this Paragraph 10.03(a), or (ii) proceeding under Paragraph 10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant has abandoned the Premises. In
such event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the Rent as it
becomes due, subject to Landlord's obligation to mitigate damages;
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Premises is
located, subject to Landlord's obligation to mitigate damages.
Section 10.04. Cumulative Remedies; No Waiver. Landlord's exercise of
any right or remedy shall not prevent it from exercising any other right or
remedy. Acceptance by Landlord of Rent beyond any cure period shall not be
deemed a continuing waiver by Landlord of the right to receive Rent from
Tenant on a timely basis in the future.
ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. Lease Subordinate to Mortgage. Landlord reserves the
right to subject and subordinate this Lease at all times to the lien of any
ground lease, mortgage or deed of trust now or hereafter affecting Landlord's
interest in the Project, and to all amendments, modifications, renewals,
extensions, consolidations and replacements of each of the foregoing, and to
all advances made or hereafter to be made upon the security thereof. Within
ten (10) business days following written request of Landlord, or any
mortgagee, or any ground lessor, or beneficiary of Landlord, Tenant will
expressly subordinate its rights hereunder to the interest of any ground
lessor, mortgagee or trustee under a deed of trust, now or hereafter in force
against the Project, and to all advances made or hereafter to be made upon the
security thereof, providing, however, that the ground lessor, or the mortgagee
or trustee named in said mortgage or trust deed shall agree to Tenant's
peaceable possession of the Premises and all of its rights under this Lease
will not be disturbed on account thereof. The form of the Subordination, Non-
Disturbance and Attornment Agreement to be executed by Tenant, Landlord and
mortgagee and/or ground lessor shall be a commercially reasonable form.
Section 11.02. Attornment. In the event any proceedings are brought
for foreclosure, or in the event of the exercise of the power of sale under
any mortgage or deeds of trust, upon any such foreclosure or sale, Tenant
agrees to recognize such beneficiary or purchaser as the Landlord under this
Lease, provided all of Tenant's rights under this Lease continue unabated.
Section 11.03. Prior Encumbrance. If the Premises or any estate
therein owned by Landlord is or has been encumbered prior to the execution of
this Lease, and/or if the Premises or any estate therein owned by Landlord is
subject to a ground lease, then Landlord shall use reasonable efforts to
deliver to Tenant a Subordination, Non-Disturbance and Attornment Agreement in
commercially reasonable form, or such other form as is required by Landlord's
mortgagee and/or ground lessor.
Section 11.04. Estoppel Certificates.
(a) Upon Landlord's written request, Tenant shall execute, acknowledge
and deliver to Landlord a written statement certifying: (i) that none of the
terms or provisions of this Lease have been changed (or if they have been
changed, stating how they have been changed); (ii) that this Lease has not
been canceled or terminated; (iii) the last date of payment of the Base Rent
and other charges and the time period covered by such payment; (iv) that
Landlord is not in default under this Lease (or, if Landlord is claimed to be
in default, stating why); and (v) such other representations or information
with respect to Tenant or the Lease as Landlord may reasonably request or
which any prospective purchaser or encumbrancer of the Premises may require.
Tenant shall deliver such statement to Landlord within ten (10) days after
Landlord's request. Landlord may give any such statement by Tenant to any
prospective purchaser or encumbrancer of the Premises. Such purchaser or
encumbrancer may rely conclusively upon such statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such
ten (10) day period, and fails to deliver such statement to Landlord within
ten (10) days after Landlord's second written request for the same, Landlord,
and any prospective purchaser or encumbrancer, may conclusively presume and
rely upon the following facts: (i) that the terms and provisions of this
Lease have not been changed except as otherwise represented by Landlord; (ii)
that this Lease has not been canceled or terminated except as otherwise
represented by Landlord; (iii) that not more than one month's Base Rent or
other charges have been paid in advance; and (iv) than Landlord is not in
default under the Lease. In such event, Tenant shall be estopped from denying
the truth of such facts.
Section 11.05. Tenant's Financial Condition. Tenant shall provide to
Landlord within five (5) days after written request from Landlord copies of
its annual and quarterly financial statements as filed with the SEC.
ARTICLE TWELVE: LEGAL COSTS
If Tenant or Landlord shall be in breach or default under this Lease,
such party (the "Defaulting Party") shall reimburse the other party (the
"Nondefaulting Party") upon demand for any costs or expenses that the
Nondefaulting Party incurs in connection with any breach or default of the
Defaulting Party under this Lease, whether or not suit is commenced or
judgment entered. Such costs shall include legal fees and costs incurred for
the negotiation of a settlement, enforcement of rights or otherwise.
Furthermore, if any action for breach of or to enforce the provisions of this
Lease is commenced, the court in such action shall award to the party in whose
favor a judgment is entered, a reasonable sum as attorney's fees and costs.
The losing party in such action shall pay such attorneys' fees and costs.
Tenant shall also indemnify Landlord against and hold Landlord harmless from
all costs, expenses, demands and liability Landlord may incur if Landlord
becomes or is made a party to any claim or action (a) instituted by Tenant
against any third party, or by any third party against Tenant, or by or
against any person holding any interest under or using the Premises by license
of or agreement with Tenant; (b) for foreclosure of any lien for labor or
material furnished to or for Tenant or such other person; (c) otherwise
arising out of or resulting from any act or transaction of Tenant or such
other person; or (d) necessary to protect Landlord's interest under this
Lease in a bankruptcy proceeding, or other proceeding under Title 11 of the
United States Code, as amended. Tenant shall defend Landlord against any such
claim or action at Tenant's expense with counsel reasonably acceptable to
Landlord or, at Landlord's election, Tenant shall reimburse Landlord for any
legal fees or costs Landlord incurs in any such claim or action.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. Non-Discrimination. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no
discrimination against, or segregation of, any person or group of persons on
the basis of race, color, sex, creed, national origin or ancestry in the
leasing, subleasing, transferring, occupancy, tenure or use of the Premises or
any portion thereof.
Section 13.02. Landlord's Liability; Certain Duties.
(a) As used in this Lease, the term "Landlord" means only the current
owner or owners of the fee title to the Premises, or the leasehold estate
under a ground lease of the Premises at the time in question. Each Landlord
is obligated to perform the obligations of Landlord under this Lease only
during the time such Landlord owns such interest or title. Any Landlord who
transfers its title or interest is relieved of liability with respect to the
obligations of Landlord under this Lease to be performed on or after the date
of transfer; provided, however, that the Landlord transferring its interest
shall remain liable for claims relating to its period of ownership. However,
each Landlord shall deliver to its transferee all funds that Tenant previously
paid if such funds have not yet been applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord and to any ground
lessor, mortgagee or beneficiary under any deed of trust encumbering the
Premises whose name and address have been furnished to Tenant in writing.
Landlord shall not be in default under this Lease unless Landlord (or such
ground lessor, mortgagee or beneficiary) fails to cure such non-performance
within thirty (30) days after receipt of Tenant's notice. However, if such
non-performance reasonably requires more than thirty (30) days to cure,
Landlord shall not be in default if such cure is commenced within such thirty
(30) day period and thereafter diligently pursued to completion.
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations under
this Lease (other than its duties under Article 7 and Article 8) is limited to
Landlord's interest in the Premises. Neither the Landlord nor its partners,
shareholders, officers or other principals shall have any personal liability
under this Lease.
Section 13.03. Severability. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal
or unenforceable shall not cancel or invalidate the remainder of such
provision or this Lease, which shall remain in full force and effect.
Section 13.04. Interpretation. The captions of the Articles and
Sections of this Lease are to assist the parties in reading this Lease and are
not a part of the terms or provisions of this Lease. Whenever required by the
context of this Lease, the singular shall include the plural and the plural
shall include the singular. The masculine, feminine and neuter genders shall
each include the other. In any provision relating to the conduct, acts or
omissions of Tenant, the term "Tenant" shall include Tenant's agents,
employees, contractors, invitees, successors or others using the Premises with
Tenant's expressed or implied permission.
Section 13.05. Incorporation of Prior Agreements; Modifications. This
Lease is the only agreement between the parties pertaining to the lease of the
Premises and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.06. Notices. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered or sent by
certified mail, return receipt requested, postage prepaid. Notices to Tenant
shall be delivered to the address specified in Section 1.03 above, except that
upon Tenant s taking possession of the Premises, the Premises shall be
Tenant's address for notice purposes. Notices to Landlord shall be delivered
to the address specified in Section 1.02 above. All notices shall be
effective upon delivery. Either party may change its notice address upon
written notice to the other party.
Section 13.07. Waivers. All waivers must be in writing and signed by
the waiving party. Landlord's failure to enforce any provision of this Lease
or its acceptance of rent shall not be a waiver and shall not prevent Landlord
from enforcing that provision or any other provision of this Lease in the
future. No statement on a payment check from Tenant or in a letter
accompanying a payment check shall be binding on Landlord. Landlord may, with
or without notice to Tenant, negotiate such check without being bound to the
conditions of such statement.
Section 13.08. No Recordation. Tenant shall not record this Lease
without prior written consent from Landlord. However, either Landlord or
Tenant may require that a "Short Form" memorandum of this Lease executed by
both parties be recorded. The party requiring such recording shall pay all
transfer taxes and recording fees.
Section 13.09. Binding Effect; Choice of Law. This Lease binds any
party who legally acquires any rights or interest in this Lease from Landlord
or Tenant. However, Landlord shall have no obligation to Tenant's successor
unless the rights or interests of Tenant's successor are acquired in
accordance with the terms of this Lease. The laws of the state in which the
Premises is located shall govern this Lease.
Section 13.10. Corporate Authority; Partnership Authority. Each person
signing this Lease on behalf of Tenant represents and warrants that he has
full authority to do so and that this Lease binds the corporation.
Concurrently with its execution of this Lease, Tenant shall deliver to
Landlord a certified copy of a resolution of Tenant s Board of Directors
authorizing the execution of this Lease or other evidence of such authority
reasonably acceptable to Landlord.
Section 13.11. Joint and Several Liability. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant.
Section 13.12. Force Majeure. If either party cannot perform any of
its obligations due to events beyond its control (other than Tenant's duty to
pay any amount of money required under this Lease), the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of such events. Events beyond a party's control include, but are not
limited to, acts of God, war, civil commotion, labor disputes, strikes, fire,
flood or other casualty, shortages of labor or material, government regulation
or restriction and weather conditions.
Section 13.13. Execution of Lease. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the
counterparts shall constitute a single binding instrument. Landlord's
delivery of this Lease to Tenant shall not be deemed to be an offer to lease
and shall no be binding upon either party until executed and delivered by both
parties.
Section 13.14. Survival. All representations and warranties of
Landlord and Tenant shall survive the termination of this Lease.
[SIGNATURES ON FOLLOWING PAGE]
INSITE SOUTH MILWAUKEE, L.L.C., an
Illinois limited liability company
By: /s/ Gerald J. Kostelny
Gerald J. Kostelny, Manager
BUCYRUS INTERNATIONAL, INC., a
Delaware corporation
By: /s/ John F. Bosbous
Its: Treasurer
EXHIBIT A
Description of Premises:
All improvements or structures located on the real property described
below (the "Real Property"), specifically including a warehouse/office
building containing approximately 927,685 square feet of floor area (the
"Building"), and including but not limited to any boiler systems, plumbing
systems, sanitary systems, fuel oil systems, sprinkler systems, fire and
security protection systems, heating ventilating and air conditioning systems,
electrical systems, lighting systems, wiring (other than Machine Wiring as
defined hereinafter), temperature controls (other than Machine Temperature
Controls as defined hereinafter), loading docks, dock levelers, railroad spur
tracks, cranes described in the attached Schedule 1, and any other similar
fixtures and systems presently located on the Real Property which fixtures and
systems service the Building, but excluding all Machines as defined
hereinafter. "Machines" means all equipment, machines and fixtures used for
the industrial, manufacturing and office uses of the Real Property (other than
cranes). "Machine Wiring" means wiring that services a particular Machine and
is not used to bring electricity or data from one part of the Building to
another. "Machine Temperature Controls" means temperature controls that are
used for Machines and not used to control the temperature in all or a portion
of the Building.
Exhibit A
LEGAL DESCRIPTION
PARCEL 1:
PART OF THE NORTHEAST 1/4 AND NORTHWEST 1/4 OF SECTION 11, TOWNSHIP 5 NORTH,
RANGE 22 EAST, AND PART OF LOTS 1 THROUGH 15 INCLUSIVE IN BLOCK 13 OF ADDITION
NO. 1 TO THE TOWN SITE OF SOUTH MILWAUKEE AND THE ABUTTING VACATED SOUTH 11TH
AVENUE AND VACATED MONROE AVENUE AND LOTS 1 TO 8 INCLUSIVE, IN BLOCK 77,
ADDITION NO. 5 OF TOWN SITE OF SOUTH MILWAUKEE, IN THE CITY OF SOUTH
MILWAUKEE, MILWAUKEE COUNTY, WISCONSIN, BOUNDED AND DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF THE NORTHWEST 1/4 OF SAID SECTION 11;
THENCE SOUTH 00 DEGREES 00'21" EAST 33.00 FEET TO A POINT ON THE SOUTH LINE OF
EAST RAWSON AVENUE AND THE POINT OF BEGINNING OF LANDS TO BE DESCRIBED; THENCE
NORTH 89 DEGREES 59'39" EAST ALONG THE SOUTH LINE OF EAST RAWSON AVENUE 275.87
FEET TO A POINT ON THE WEST LINE OF NORTH CHICAGO AVENUE; THENCE SOUTH 26
DEGREES 04'37" WEST ALONG SAID WEST LINE 192.80 FEET TO A POINT OF INTERSECTION
WITH THE WEST LINE OF SOUTH 10TH AVENUE; THENCE SOUTH 00 DEGREES 49'13" WEST
ALONG SAID WEST LINE 1235.38 FEET TO A POINT 16.00 FEET NORTH 00 DEGREES 49'13"
EAST OF THE SOUTHEAST CORNER OF BLOCK 13 OF ADDITION NO. 1 TO THE TOWN SITE OF
SOUTH MILWAUKEE; THENCE NORTH 89 DEGREES 42'13" WEST AND PARALLEL TO THE SOUTH
LINE OF SAID BLOCK 13 OF SAID SUBDIVISION, SAID LINE BEING THE NORTH LINE OF A
30 FOOT PUBLIC ALLEY 529.90 FEET TO A POINT ON THE WEST LINE OF SOUTH 11TH
AVENUE; THENCE SOUTH 00 DEGREES 49'13" WEST ALONG SAID WEST LINE 150.00 FEET
TO A POINT ON THE NORTH LINE OF MILWAUKEE AVENUE; THENCE NORTH 89 DEGREES
42'13" WEST ALONG SAID NORTH LINE 130.17 FEET TO A POINT ON THE EAST LINE OF
THE UNION PACIFIC RAILROAD COMPANY RIGHT-OF-WAY; THENCE NORTH 10 DEGREES 49'32"
WEST ALONG SAID EAST LINE 968.78 FEET TO A POINT; THENCE CONTINUING ALONG SAID
EAST LINE NORTHWESTERLY 608.70 FEET ALONG THE ARC OF A CURVE WHOSE CENTER LIES
TO THE EAST, WHOSE RADIUS IS 5675.00 FEET AND WHOSE CHORD BEARS NORTH
07 DEGREES 45' 10" WEST 608.41 FEET TO A POINT ON THE SOUTH LINE OF EAST
RAWSON AVENUE; THENCE NORTH 89 DEGREES 57'18" EAST ALONG SAID SOUTH
LINE 752.80 FEET TO THE PLACE OF BEGINNING.
PARCEL 2:
LOTS 10,11, 12, 13, 14 AND 15, IN BLOCK 4, IN TOWNSITE OF SOUTH MILWAUKEE, IN
THE NORTH 1/2 OF SECTION 11, TOWNSHIP 5 NORTH, RANGE 22 EAST, IN THE CITY OF
SOUTH MILWAUKEE, MILWAUKEE COUNTY, WISCONSIN.
Exhibit A
LEGAL DESCRIPTION (Continued)
PARCEL 3:
TOGETHER WITH EASEMENT FOR CONSTRUCTION AND MAINTENANCE OF UNDERGROUND TUBE
AND WATER MAIN AS SET FORTH IN INSTRUMENT DATED OCTOBER 6, 1949 AND RECORDED
OCTOBER 7, 1949, IN THE OFFICE OF THE REGISTER OF DEEDS FOR MILWAUKEE COUNTY,
WISCONSIN, IN VOLUME 2665, PAGE 82, AS DOCUMENT NO. 2891603.
PARCEL 4:
TOGETHER WITH EASEMENT FOR CONSTRUCTION AND MAINTENANCE OF UNDERGROUND TUBE
AND WATER MAIN AS SET FORTH IN INSTRUMENT DATED OCTOBER 19, 1949 AND RECORDED
NOVEMBER 1, 1949, IN THE OFFICE OF THE REGISTER OF DEEDS FOR MILWAUKEE COUNTY,
WISCONSIN, IN VOLUME 2674, PAGE 274, AS DOCUMENT NO. 2897197.
Commonly known as: 1022 and 1100 Milwaukee Avenue
South Milwaukee, Wisconsin
Parcel No's. 770-9999 and 771-0041-001
South Milwaukee Overhead Cranes
EQNUM DESCRIPTION Location Auxhookcap Mainhookcap Manufacturer S/N
OWNED CRANES
6036 CRANE 10T OH Machine Shop 10 T Zenar 800135
8400 CRANE 30/10T OH Foundry 10 T 30 T Whiting 10761
8412 CRANE 25/10T OH Machine Shop 10 T 25 T P&H 1099
8413 CRANE 75T OH Assembly 10 T 75 T P&H 5234/1726
8414 CRANE 20/10T OH Machine Shop 10 T 25 T Champion 1100
8415 CRANE 25/10T OH Machine Shop 10 T 25 T Crane Mfg 1101
8419 CRANE 25/10T OH Machine Shop 10 T 25 T Crane Mfg 1102
8427 CRANE 25/5T OH Weld Shop 5 T 25 T P&H 8167
8430 CRANE OH Fab Shop 7 1/2 T 15 T Whiting 355
8432 CRANE 20/5T GANTRY Yard 10 T 20 T Shepard Niles 3314
8433 CRANE 20/5T OH Fab Shop 5 T 20 T Whiting 5043
8434 CRANE 20/5T OH Weld Shop 5 T 20 T Whiting 5042
8436 CRANE 5/35T OH Weld Shop 5 T 35 T Whiting 6457
8437 CRANE 25/5T OH Assembly 5 T 30 T Shaw Box CR11996
8443 CRANE 25/5T Machine Shop 5 T 25 T Shaw Box 11746
8446 CRANE 15/5T Yard 5 T 15 T Shaw Box 11997
8447 CRANE 25/5T Yard 5 T 25 T P&H 8297
8448 CRANE 10T Receiving 10 T P&H 8298
8452 CRANE 60/10T OH Assembly 10 T 60 T Crane Mfg 112
8453 CRANE 75T OH Assembly 10 T 75 T Manning 31-412
8454 CRANE 30T OH Assembly 5 T 30 T P & H N/A
8455 CRANE 10T Gantry Machine Shop 10T Whiting 79618
8459 CRANE 15/5 OH Fab Shop 5 T 15 T Crane Mfg 691
8460 CRANE 10/50T OH Melt Shop 10 T 50 T Crane Mfg 606
8534 CRANE 60T OH Weld Shop 10 T 60 T Zenar 2934
8541 CRANE 10T OH Machine Shop 10 T Milwaukee Crane 1240
8545 CRANE 10T OH Machine Shop 10 T Zenar J2638
8565 CRANE 50/15T OH Foundry 15 T 50 T Zenar 4950