EXHIBIT 10(d)(1)
LEASE
This lease is made and executed on December 28, 2000, by and between
14000 LLC, organized and existing under the laws of the State of Wisconsin, with
its principal office at 000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx xx Xxxxxxxxx,
Xxxxxx of Milwaukee, State of Wisconsin, herein referred to as lessor, and
Merchants and Manufacturers Bancorporation, a corporation organized and existing
under the laws of the State of Wisconsin, with its principal office at 00000 X.
Xxxxxxxx Xxxxxx, Xxxx xx Xxx Xxxxxx, Xxxxxx of Waukesha, State of Wisconsin,
herein referred to as lessee.
SECTION ONE
DEMISE, USE, AND DESCRIPTION OF PREMISES
Lessor hereby leases to lessee, and lessee hires from lessor, for the purpose of
conducting therein the operation of a Commercial Bank including all operations
ancillary or supplemental thereto, together with such commercial and
professional offices as lessee in its sole discretion may deem appropriate in
those certain premises, with the appurtenances, situated in the City of New
Berlin, County of Waukesha, State of Wisconsin, and more particularly described
in the schedule attached hereto as Exhibit "A" and shown on the plat attached
hereto as Exhibit "B", both of which are made a part hereof. As used herein, the
term "premises" refers to the real property described in Exhibits "A" and "B"
and to any improvements located thereon from time to time during the term
hereof.
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SECTION TWO
TERM AND OPTION
The initial term of this lease shall be for two (2) years, commencing
on the 1st day of January, 2001, and ending on the 31st day of December, 2002.
Lessee shall have two (2) successive options to extend the term of this
lease agreement for periods of ten (10) years (each option); that is, for a
total of twenty (20) years, upon written notice to that effect given not less
than one hundred eighty (180) days prior to the expiration of the then current
lease term.
SECTION THREE
RENT
The total rent for the term of this lease shall be Seven Hundred
Eighty-Four Thousand and Thirty-Four and no/100 Dollars ($784,34.00) in lawful
money of the United States of America, plus any adjustments as provided in
Section Thirty-Seven hereof, which lessee agrees to pay to lessor, without
deduction of offset, at such place or places as may be designated from time to
time by lessor, in monthly installments as follows: Thirty-Two Thousand Six
Hundred Sixty-Eight and no/100 Dollars ($32,668.00). All of such payments above
specified shall be subject to any adjustments provided for in Section Thirty
Seven hereof.
In the event the commencement and ending dates of this lease term are
modified, the dates on which rent is due and payable as set forth above shall be
correspondingly modified.
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SECTION FOUR
USES PROHIBITED
Lessee shall not use, or permit the premises, or any part thereof, to
be used, for any purpose or purposes other than the purpose or purposes for
which the demised premises are hereby leased; and no use shall be made or
permitted to be made of the demised premises, nor acts done, which will cause a
cancellation of any insurance policy covering the buildings located thereon or
any part thereof, nor shall lessee sell, or permit to be kept, used, or sold, in
or about the demised premises, any article which may be prohibited by the
standard form of fire insurance policies. Lessee shall, at its expense, comply
with all requirements, pertaining to the demised premises, of any insurance
organization or company, necessary for the maintenance of insurance, as herein
provided, covering any building and appurtenances at any time located on the
demised premises.
SECTION FIVE
WASTE AND NUISANCE PROHIBITED
Lessee shall not commit, or suffer to be committed, any waste on the
demised premises or any nuisance.
SECTION SIX
ABANDONMENT
Lessee shall not vacate or abandon the demised premises at any time
during the term of this lease; and if lessee shall abandon, vacate, or surrender
the demised premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to lessee and left on the premises shall be deemed
to be abandoned, at the option of lessor, except such property as may be
encumbered to lessor.
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SECTION SEVEN
ENTRY BY LESSOR
Lessee shall permit lessor and the agents of lessor to enter into and
on the demised premises at all reasonable times for the purpose of inspecting
the same, or for the purpose of posting notices of nonresponsibility for
alterations, additions, or repairs, without any rebate of rent and without any
liability to lessee for any loss of occupation or quiet enjoyment of the
premises thereby occasioned; and lessee shall permit lessor and its agents, at
any time within six (6) months prior to the expiration of this lease, to place
on the demised premises any usual or ordinary "To Let" or "To Lease" signs and
exhibit the premises to prospective tenants at reasonable hours.
SECTION EIGHT
NOTICES
All notices, demands, or writings in this lease provided to be given or
made or sent that may be given or made or sent by either party hereto to the
other, shall be deemed to have been fully given or made or sent when made in
writing and deposited in the United States mail, registered and postage prepaid,
and addressed as follows:
To lessor: 000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000;
To lessee: 00000 X. Xxxxxxxx Xxxxxx, Xxx Xxxxxx, XX 00000;
The address to which any notice, demand, or writing may be given or
made or sent to any party as above provided may be changed by written notice
given by such party as above provided.
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SECTION NINE
TAXES AND ASSESSMENTS
(a) Taxes as additional rental. As additional rental hereunder for, and
with respect to the lease then in effect, lessee shall pay and discharge as they
become due, promptly and before delinquency, all taxes, assessments, rates,
charges, license fees, municipal liens, levies, excises, or imposts, whether
general or special, or ordinary or extraordinary, of every name, nature, and
kind whatsoever, including all governmental charges of whatsoever name, nature,
or kind, which may be levied, assessed, charged, or imposed, or which may become
a lien or charge on the land hereby demised, or any part thereof, the leasehold
of lessee herein, the premises described herein, any building or buildings, or
any other improvements now or hereafter thereon, or on lessee's estate hereby
created which may be a subject of taxation, or on lessor by reason of its
ownership of the fee underlying this lease, during the entire term hereof,
saving and excepting only those taxes hereinafter in this section specifically
excepted.
(b) Assessments affecting improvements. Specifically and without in any
way limiting the generality of the foregoing, lessee shall pay all special
assessments or levies or charges made by any municipal or political subdivision
for local improvements, and shall pay the same in cash as they shall fall due
and before they shall become delinquent and as required by the act and
proceedings under which any such assessments or levies or charges are made by
any municipal or political subdivision. If the right is given to pay either in
one sum or in installments, lessee may elect either mode of payment and its
election shall be binding on lessor. If by making any such election to pay in
installments, any of such installments shall be payable after the termination of
this lease or any extended term hereof, such unpaid installments shall be
prorated as of the date of termination, and amounts payable after such date
shall be paid by
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lessor. All other taxes and charges payable under this section shall be prorated
at the commencement, and expiration of the term hereof.
(c) Taxes excepted. Anything in this section to the contrary
notwithstanding, lessee shall not be required to pay any estate, gift,
inheritance, succession, franchise, income, or excess profits taxes which may be
payable by lessor or lessor's legal representative, successors, or assigns, nor
shall lessee be required to pay any tax that might become due on account of
ownership of property other than that herein leased which may become a lien on
the property herein leased or collectible out of the same.
(d) Contesting taxes. If lessee shall in good faith desire to contest
the validity or amount of any tax, assessment, levy, or other governmental
charge herein agreed to be paid by lessee, lessee shall be permitted to do so,
and to defer the payment of such tax or charge, the validity or amount of which
lessee is so contesting, until final determination of the contest, on giving to
lessor written notice thereof prior to the commencement of any such contest,
which shall be at least thirty (30) days prior to delinquency, and on protecting
lessor on demand by a good and sufficient surety bond against any such tax,
levy, assessment, rate, or governmental charge, and from any costs, liability,
or damage arising out of any such contest.
(e) Disposition of rebates. All rebates on account of any such taxes,
rates, levies, charges, or assessments, required to be paid and paid by lessee
under the provisions of this lease shall belong to lessee, and lessor will, on
the request of lessee, execute any receipts, assignments, or other acquittances
that may be necessary in order to secure the recovery of any such rebates, and
will pay over to lessee any such rebates that may be received by lessor.
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(f) Receipts. Once in each calendar year during the term hereof, lessee
shall obtain and deliver to lessor, receipts or duplicate receipts or
photostatic copies thereof for all taxes, assessments, and other items required
hereunder to be paid by lessee.
SECTION TEN
PERSONAL PROPERTY TAXES
Lessee shall pay before delinquency all personal property taxes
assessed against personal property of lessee in or about the demised premises at
any time during the term hereof; and shall impose on all sublessees the
obligation to timely pay all personal property taxes assessed against each
sublessee.
SECTION ELEVEN
REPAIRS AND DESTRUCTION OF IMPROVEMENTS
(a) Maintenance of improvements. Lessee shall, throughout the term of
this lease, at its own expense, and without any expense to lessor, keep and
maintain the premises, including all buildings and improvements of every kind
which may be a part thereof, and all appurtenances thereto, including sidewalks
adjacent thereto, in good, sanitary, and neat order, condition, and repair, and,
except as hereinafter specifically provided, restore and rehabilitate any
improvements of any kind which may be destroyed or damaged by fire, casualty, or
other cause whatsoever, except that lessee shall not be obliged to make capital
improvements or replace capital items (personal property) the reasonable useful
life of which item(s) exceeds the then balance of the lease term unless such
repair or replacement is funded by insurance. Lessor shall not be obligated to
make any repairs, replacements, or renewals of any kind, nature, or description
whatsoever to the demised premises or any buildings or improvements thereon,
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except capital improvements or replacements as hereinabove qualified, and which
are not covered by insurance.
"Capital Improvement" as used in this lease is defined as an
improvement which must be depreciated under, and pursuant to, the rules and
regulations of the Internal Revenue Service.
Lessee shall be obligated to pay any item that can be "expended out" in
one payment, and shall pay as additional rent, the equivalent of the
depreciation on a monthly basis, during the lease term.
(b) Damage to and destruction of improvements. The damage, destruction,
or partial destruction of any building or other improvement which is a part of
the premises shall not release lessee from any obligation hereunder, except as
hereinafter expressly provided, and in case of damage to or destruction of any
such building or improvements, lessee, at its own expense but as hereinabove
qualified, shall promptly repair and restore the same to a condition as good or
better then that which existed prior to such damage or destruction. Without
limiting such obligations of lessee, the proceeds of any insurance covering such
damage or destruction shall be made available to lessee for such repair or
replacement.
(c) Damage or destruction in event of termination. In the event this
lease shall be terminated by the agreement of the parties, there shall be no
obligation on the part of lessee to repair or restore the building or
improvements nor any right on the part of lessee to receive any proceeds
collected under any insurance policies covering such building or improvements or
any part thereof. On such termination, rent, taxes, assessments, and any other
sums payable by lessee to lessor hereunder shall be prorated as of the
termination date, and in the event any rent, taxes, or assessments shall have
been paid in advance, lessor shall rebate the same for the unexpired period for
which payment shall have been made.
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If, in the event of such destruction or damage, the proceeds of all
insurance covering such damage or destruction shall be made available to lessee
for such repair or replacement, and lessee shall be obligated to repair or
rebuild the buildings and improvements as above provided.
SECTION TWELVE
UTILITIES
Lessee shall fully and promptly pay for all water, gas, heat, light,
power, telephone service, and other public utilities of every kind furnished to
the premises throughout the term hereof, and all other expenses of every kind
whatsoever of or in connection with the use, operation, and maintenance of the
premises and all activities conducted thereon, and lessor shall have no
responsibility of any kind for any thereof.
SECTION THIRTEEN
LIENS
(a) Lessee's duty to keep premises free of liens. Lessee shall keep all
of the premises and every part thereof and all buildings and other improvements
at any time located thereon free and clear of any and all mechanics',
materialmen's and other liens for or rising out of or in connection with work or
labor done, services performed, or materials or appliances used or furnished for
or in connection with any operations of lessee, any alteration, improvement,
repairs, or additions which lessee may make or permit or cause to be made, or
any work or construction by, for, or permitted by lessee on or about the
premises, or any obligations of any kind incurred by lessee, shall at all times
promptly and fully pay and discharge all claims on which any such lien may or
could be based, and shall indemnify lessor and all of the premises and all
buildings and improvements thereon against all such liens and claims of liens
and suits or other proceedings pertaining thereto. Lessee shall give lessor
written notice not less than sixty
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(60) days in advance of the commencement of any construction, or alteration,
addition, improvement, or repair costing in excess of One Thousand Dollars
($1,000.00) in order that lessor may post appropriate notices of lessor's
nonresponsibility.
(b) Contesting liens. If lessee desires to contest any such lien, it
shall notify lessor of its intention to do so within ten (10) days after the
filing of such lien. In such case, and provided that lessee shall on demand
protect lessor by a good and sufficient surety bond against any such lien and
any costs, liability, or damage arising out of such contest, lessee shall not be
in default hereunder until thirty (30) days after the final determination of the
validity thereof, within which time lessee shall satisfy and discharge such lien
to the extent held valid; but the satisfaction and discharge of any such lien
shall not, in any case, be delayed until execution is had on any judgment
rendered thereon, and such delay shall be a default of lessee hereunder. In the
event of any such contest, lessee shall protect and indemnify lessor against all
loss, expense, and damage resulting therefrom.
SECTION FOURTEEN
INDEMNIFICATION OF LESSOR
Lessor shall not at any time or to any extent whatsoever be liable,
responsible, or in any way accountable for any injury to or death of persons or
loss, destruction or damage to property, including property and employees of
lessee, occurring in, on, or about the premises or wherever occurring, resulting
from any use of or activities on the premises, whether such injury, death, loss,
destruction, or damage shall be caused by or in any way result from or arise out
of any act, omission, or negligence of lessee or of any occupant, subtenant,
visitor, or user of any portion of the demised premises, or shall result from or
be caused by any other matter or thing, whether of the same kind as or of a
different kind than the matters or things above set forth, and
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lessee shall forever indemnify lessor against any and all claims, liability,
loss, damage, actions, or causes of action whatsoever on account of any such
injury, death, loss, destruction, or damage, and any related expense, including
attorney's fees.
SECTION FIFTEEN
ATTORNEYS' FEES
If any action at law or in equity shall be brought to recover any rent
under this lease, or for or on account of any breach of, or to enforce or
interpret any of the provisions of this lease, or for the recovery of the
possession of the demised premises, the prevailing party shall be entitled to
recover from the other party, as part of the prevailing party's costs,
reasonable attorneys' fees, the amount of which shall be fixed by the court and
shall be made a part of any judgment or decree rendered.
SECTION SIXTEEN
SURRENDER OF PREMISES
Lessee shall pay the rent and all other sums required to be paid
hereunder in the amounts, at the times, and in the manner herein provided, and
shall keep and perform all the terms and conditions hereof on its part to be
kept and performed and, at the expiration or sooner termination of this lease,
shall peaceably and quietly quit and surrender to lessor the premises in good
order and condition subject to the other provisions of this lease. In the event
of the nonperformance by lessee of any of the covenants of lessee undertaken
herein, this lease may be terminated as herein provided.
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SECTION SEVENTEEN
REMEDIES CUMULATIVE
All remedies hereinbefore and hereafter conferred on lessor shall be
deemed cumulative and no one exclusive of the other or any other remedy
conferred by law.
SECTION EIGHTEEN
INSURANCE
(a) Insurance coverage of premises. Lessee shall, at all times during
the term of this lease and at its expense, keep all improvements which are now
or hereafter a part of the premises insured against loss or damage by fire and
the extended coverage hazards for One Hundred per cent (100%) of the full
replacement value of such improvements under a Stipulated Amount Endorsement
naming lessor and lessee as the insured, and with loss payable to lessor and
lessee as their interests may appear, and any loss adjustment shall require the
written consent of both lessee and lessor, except that any loss not exceeding
One Thousand Dollars ($1,000.00) shall be payable to lessee alone, and the loss
adjustment in such cases shall not require the written consent of lessor.
(b) Insurance coverage of fixtures. At all times during the term of
this lease, lessee shall, at its expense, or the expense of a sublessee as to a
prorata portion of the total expense, keep all trade fixtures and equipment and
all merchandise of lessee or a sublessee of lessee that may be in the premises
from time to time, insured against loss or damage by fire and the extended
coverage hazards for an amount, that, in lessee's judgment, will insure the
ability of lessee, and its sublessees to replace such trade fixtures, equipment,
and merchandise.
(c) Personal injury liability insurance. Lessee shall, at its expense,
maintain, in effect throughout the term of this lease, personal injury liability
insurance covering the premises
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and its appurtenances and sidewalks fronting thereon, including the sidewalk
area used for pedestrians or vehicular travel entering or leaving the premises,
in the amount of One Million Dollars ($1,000,000.00) for injury to or death of
any one person, and Five Million Dollars ($5,000,000.00) for injury to or death
of any number of persons in one occurrence, and property damage liability
insurance in the amount of One Hundred Thousand ($100,000.00). Such insurance
shall specifically insure lessee against all liability assumed by it hereunder,
as well as liability imposed by law, and shall insure both lessee and lessor but
shall be so endorsed as to create the same liability on the part of the insurer
as though separate policies had been written for lessor and lessee.
(d) Lessor's right to pay premiums on behalf of lessee. All of the
policies of insurance referred to in this section shall be written in form and
by insurance companies satisfactory to lessor. Lessee shall pay all of the
premiums therefor and deliver such policies, or certified copies thereof,
including all endorsements and amendments thereof, to lessor, and in the event
of the failure of lessee either to effect such insurance in the names herein
called for within ten (10) days after the commencement of this lease term and
thereafter at least thirty (30) days prior to the expiration of any policy, or
to pay the premiums therefor when required, or to deliver such policies or
certificates thereof to lessor at least fifteen (15) days before they become
effective, lessor shall be entitled, but shall have no obligation, to effect
such insurance and pay the premiums therefor, which premiums shall be repayable
to lessor with the next installment of rent, and failure to repay the same shall
carry with it the same consequences as failure to pay any installment of rent.
Each insurer mentioned herein shall agree, by endorsement on the policy or
policies issued by it, or by independent instrument furnished to lessor, that it
will give lessor twenty (20) days' written notice by registered mail before the
policy or policies in question shall
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be altered or cancelled. Lessor shall not unreasonably withhold its approval as
to the form of the policies of insurance or insurance companies. The insurance
provided for in subsection (b) of this section shall not be subject to the
provisions of this subsection (d).
(e) Definition of full replacement value. The term "full replacement
value" of the improvements as used herein shall mean the actual replacement cost
thereof from time to time less exclusions provided in the normal fire insurance
policy. In the event either party believes that the full replacement value (that
is to say, the then replacement cost less exclusions) has increased or
decreased, it shall have the right, but (except as provided below), only at
intervals of not less than one (1) year, to have such full replacement value
redetermined by the fire insurance company which is then carrying the largest
amount of fire insurance carried on the demised premises (hereinafter referred
to as "impartial appraiser"). The party desiring to have such full replacement
value so redetermined by such impartial appraiser shall forthwith on the
submission of such determination to such impartial appraiser give written notice
thereof to the other party hereto. The determination of such impartial appraiser
shall be final and binding on the parties hereto, and lessee shall forthwith
increase (or may decrease) the amount of the insurance carried pursuant to this
section as the case may be to the amount so determined by the impartial
appraiser. Such determination shall be binding for a period of one (1) year, and
until superseded by agreement between the parties hereto or by a subsequent
redetermination by an impartial appraiser. The party requesting the
redetermination shall pay the entire fee, if any, of the impartial appraiser. If
during any one (1) year lessee shall have made improvements to the premises,
lessor may have such full replacement value redetermined at any time after such
improvements are made, regardless of when the full replacement value was last
determined. The term "full replacement value" of trade fixtures, equipment, and
merchandise, as used herein,
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shall mean the actual replacement cost thereof from time to time. In the event
either party believes that the full replacement value has increased or
decreased, it shall have the right to have such replacement value redetermined
as provided above.
(f) Adjustment of coverage. In the event that either party shall at any
time deem the limits of the bodily injury or property damage liability insurance
then carried to be either excessive or insufficient, the parties shall endeavor
to agree on the proper and reasonable limits for such insurance then to be
carried and such insurance shall thereafter be carried with the limits thus
agreed on until further change pursuant to the provisions of this subsection,
but, if the parties shall be unable to agree thereon, the proper and reasonable
limits for such insurance to be carried shall be determined by having each party
designate an impartial person to agree on such coverage; and in the event those
designees are unable to agree, they shall select a second imperial selector to
resolve any such impasse on application by either party made after twenty (20)
days' written notice to the other party of the time and place of such
application, and the decision of such impartial third person as to the proper
and reasonable limits for such insurance then to be carried shall be binding on
the parties and such insurance shall be carried with the limits as thus
determined until such limits shall be again be changed pursuant to the
provisions of this subsection. The expense of such determination shall be borne
equally by the parties.
(g) Blanket insurance policies. Notwithstanding anything to the
contrary contained within this section, lessee's obligation to carry the
insurance provided for herein may be brought within the coverage of a so-called
blanket policy or policies of insurance carried and maintained by lessee;
provided, however, that the coverage afforded lessor will not be reduced or
diminished or otherwise be different from that which would exist under a
separate policy meeting all of the
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requirements of this lease by reason of the use of such blanket policy of
insurance, and provided further that the requirements of subsection (d) of this
section are otherwise satisfied.
(h) Cost of insurance deemed additional rental. The cost of insurance
required to be carried by lessee in this section shall be deemed to be
additional rental hereunder.
SECTION NINETEEN
INSOLVENCY AND BANKRUPTCY
Either (a) the filing by lessee of a voluntary petition in bankruptcy
or the making of an assignment of the benefit of creditors, or (b) the
consenting by lessee to the appointment of a receiver or trustee of all or any
part of its property, or (c) the filing by lessee of a petition or answer
seeking reorganization under the National Bankruptcy Act or any other applicable
law, or (d) the filing by lessee of a petition to take advantage of any
insolvency act shall constitute a breach of this lease by lessee. On the
occurrence of any such event, this lease shall terminate thirty (30) days after
written notice of termination from lessor to lessee.
SECTION TWENTY
NOTICE OF DEFAULT
Except as to the provisions of Section Three and Section Nineteen
hereof, lessee shall not be deemed to be in default hereunder with respect to
the payment of any moneys as herein required or in the furnishing of any bond or
insurance policy when required herein unless lessor shall first give to lessee
thirty (30) days' written notice of such default and lessee has failed to cure
such default within such thirty (30) day period.
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SECTION TWENTY-ONE
DEFAULT
In the event of any default hereunder by lessee, lessor, in addition to
the other rights or remedies it may have, shall have the right to commence any
legal proceedings or pursuant to any notice provided for by law, it may either
terminate this lease or it may from time to time, without terminating this lease
relet the premises or any part thereof for such term or terms (which may be for
a term extending beyond the term of this lease) and at such rental or rentals
and on such other terms and conditions as lessor in its sole discretion may deem
advisable with a right to make alterations and repairs to the premises; on each
such reletting (a) lessee shall be immediately liable to pay to lessor, in
addition to any indebtedness other than rent due hereunder, the expense of such
reletting and for such alterations and repairs incurred by lessor, and the
amount, if any, by which the rent specified in this lease for the period of such
reletting (up to but not beyond the term of this lease) exceeds the amount
agreed to be paid as rent for the demised premises for such period on such
reletting; or (b) at the option of lessor, rents received by lessor from such
reletting shall be applied, first, to the payment of any indebtedness, other
than rent due hereunder from lessee to lessor; second, to the payment of any
expenses of such reletting and of such alteration and repairs; third, to the
payment of rent due and unpaid hereunder and the residue, if any, shall be held
by lessor and applied in payment of future rent as the same may become due and
payable hereunder. If lessee has been credited with any rent to be received by
such reletting under option (a) hereof, and such rent shall not be promptly paid
to lessor by the new tenant, or if such rentals received from such reletting
under option (b) hereof during any month are less than that to be paid during
that month by lessee hereunder, lessee shall pay any such deficiency to lessor.
Such deficiency shall be calculated and paid monthly. No re-entry or taking
possession
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of the premises by lessor shall be construed as an election on the part of
lessor to terminate this lease unless a written notice of such intention is
given to lessee or unless the termination thereof be decreed by a court of
competent jurisdiction. Notwithstanding any such reletting without termination,
lessor may at any time thereafter elect to terminate this lease for such
previous breach. Should lessor at any time terminate this lease for any breach,
in addition to any other remedy lessor may have, lessor may recover from lessee
all damages lessor may incur by reason of such breach, including the cost of
recovering the premises, and including the worth at the time of such termination
of the excess, if any, of the amount of rent and charges equivalent to the rent
reserved in this lease for the remainder of the stated term over the then
reasonable rental value of the premises for the remainder of the stated term,
all of which amounts shall be immediately due and payable from lessee to lessor.
Any action by lessor shall be subject to the right or rights of any
sublessee in the subject premises.
SECTION TWENTY-TWO
LESSOR'S RIGHT TO PERFORM
In the event that lessee by failing or neglecting to do or perform any
act or thing herein provided by it to be done or performed shall be in default
hereunder and such failure shall continue for a period as heretofore described
in Section Twenty, after written notice from lessor specifying the nature of the
act or thing to be done or performed, then lessor may, but shall not be required
to, do or perform or cause to be done or performed such act or thing (entering
on the demised premises for such purposes, if lessor shall so elect) and lessor
shall not be or be held liable or in any way responsible for any loss,
inconvenience, annoyance, or damage resulting to lessee on account thereof, and
lessee shall repay to lessor on demand the entire expense thereof,
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including compensation to the agents and employees of lessor. Any act or thing
done by lessor pursuant to the provisions hereof shall not be or be construed as
a waiver of any such default by lessee or waiver of any covenant, term, or
condition herein contained or for the performance thereof or of any other right
or remedy of lessor hereunder or otherwise. All amounts payable by lessee to
lessor under any of the provisions of this lease, if not paid when the same
become due as provided in this lease, shall bear interest from the date the same
become due until paid at the then prevailing prime interest rate (Wall Street
Journal published Prime Rate), compounded annually.
SECTION TWENTY-THREE
MAINTENANCE OF PARKING AREAS; PAINTING; ROOFING
Lessee shall, at lessee's expense, maintain in good condition and
repair and replace whenever necessary, all parking areas, sidewalks, curbs,
roads, driveways, lighting standards, landscaping, sewers, water, gas and
electrical distribution systems and facilities, drainage facilities and all
signs, both illuminated and non-illuminated that are now or hereafter on the
premises. Lessee shall maintain the lines designating the parking spaces in good
condition and paint the same as often as may be necessary so that they are
easily discernible at all times. Lessee, at its expense, shall paint the
exterior painted surfaces of all buildings on the demised premises during the
term of this lease or any extension hereof, in a first-class, workmanlike manner
with at least one coat of paint. Lessee shall install as necessary or
appropriate new roof covering on or recoat the roofs of all buildings in the
demised premises in a first-class, workmanlike manner during the term of this
lease; and lessee shall take all reasonable precautions to insure that the
drainage facilities of the various roofs are not clogged and are in
10(d)(1)-19
good and operable condition at all times. All this work is to be executed to the
approval of lessor.
SECTION TWENTY-FOUR
ALTERATIONS BY LESSEE
Subject to the provisions of Section Thirteen hereof, lessee is granted
permission to make nonstructural alterations or improvements to the interior of
the various buildings without lessor's approval, provided the cost of the same
shall not exceed Five Thousand Dollars ($5,000.00) [which total after the
initial term of this lease may be increased at one year intervals to reflect
inflation]. Prior to making any nonstructural alterations or improvements to the
interior of the various buildings that cost in excess of Five Thousand Dollars
($5,000.00) [which total after the initial term of this lease may be increased
at one year intervals to reflect inflation] or any structural alterations or
improvements of the interior of the buildings or any alterations or improvements
of the exterior of the buildings, or prior to constructing any new improvements
of the exterior of the buildings, or prior to constructing any new improvements
on the demised premises, lessee shall submit to, and obtain, lessor's written
approval of plans and specifications therefor, which approval shall not be
unreasonably withheld by lessor. Any work done in or to the premises by lessee,
with or without the approval of lessor, shall comply with the requirements of
any federal, state, or municipal authorities having jurisdiction.
SECTION TWENTY-FIVE
MAINTAINING APPEARANCE OF PREMISES
Lessee, at its expense, shall maintain the exterior of the buildings,
the parking area, landscaping and all other portions of the premises visible
from the surrounding streets in a condition consistent with the general area
where the property is located, the approval of lessor,
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and at all times shall maintain sightly screens or barricades around any garbage
or storage areas. Fencing and landscaping with proper gardening service and as
presently constituted shall be maintained at all times along the street
frontages of the demised premises, except where necessary driveways are
maintained, to insure an attractive appearance.
SECTION TWENTY-SIX
ASSIGNMENT AND SUBLEASE
(a) Sublease. Lessee may sublease all of the areas currently under
lease to the present parties or to others during the term hereof who are engaged
in the same types of businesses; and lessee may grant concessions for the
operation of one or more departments of lessee's business provided that lessee
shall at all times directly manage and control all of the areas so sublet in or
on the demised premises.
(b) Assignment. Lessee shall not assign this lease, or any interest
herein unless the net worth of the potential successor lessee is equal to, or
greater than, the net worth of Lessee in which event that said successor lessee
may assume the lease, and this Lessee shall be released.
Except as provided above, Lessee shall not sublease the demised
premises or any part thereof, or any right or privilege appurtenant thereto, or
suffer any other person (the agents and employees of lessee excepted) to occupy
or use the demised premises, without the prior written consent of lessor, which
consent shall not be unreasonably withheld by lessor. A consent to one
assignment, subletting, occupation, or use by any other person, shall not be
deemed to be a consent to any subsequent assignment, subletting, occupation, or
use by another person. Any such assignment or subleasing without such consent
shall be void and shall, at the option of lessor, terminate this lease.
10(d)(1)-21
This lease, or any interest therein, shall not be assignable, as to the
interest of lessee, by operation of law, without the written consent of lessor.
SECTION TWENTY-SEVEN
EXERCISE OF EMINENT DOMAIN
If title to the entire or any part of the demised premises shall be
taken for any public or quasi-public use under any statute or by right of
eminent domain, or by private purchase in lieu thereof, the amount that may be
awarded as damages or received as a result of any such condemnation proceedings,
or the purchase price received, shall be apportioned between lessor and lessee
as their interests may appear.
(a) Condemnation rendering premises unsuitable for lessee's occupancy.
In the event that such part of the demised premises shall be so taken that a
reasonable amount of reconstruction of the then existing buildings will not
constitute the same a practical improvement for the remaining land and
reasonably suitable for lessee's continued occupancy thereof, this lease shall
terminate as of the date title shall vest in the condemner, or the purchaser, as
the case may be, and the rental due hereunder shall be terminated as of that
date.
(b) Condemnation not rendering premises unsuitable for lessee's
occupancy. In the event that a part of the premises shall be so taken that a
reasonable amount of reconstruction of the then existing buildings will
constitute the same a practical improvement for the remaining portion of the
premises and reasonably suitable for lessee's continued occupancy, the fixed
monthly rent hereunder shall thereafter be reduced from the date of such taking
in an amount to be agreed on in writing by lessor and lessee, or if such
agreement is not reached within three (3) months after the taking, then the
amount of the reduction shall be determined by arbitrators.
10(d)(1)-22
Except as herein otherwise provided, this lease and all payments required to be
made by lessee hereunder shall remain in full force and effect.
Nothing contained in subsections (a) and (b) of this section shall be
deemed or construed to prevent lessee from interposing or prosecuting in any
condemnation proceedings a claim for the value of any fixtures or improvements
installed in, or made to the premises by lessee and receiving and retaining the
proceeds of any such claim, and lessor shall have no claim or right thereto. The
foregoing applies only to fixtures and improvements for which lessee has not
received reimbursement from lessor either in cash or by recovery of cost by
reduction of rent. Furthermore, lessee shall have the right to prosecute any
claim by reason of loss of location; and expense of relocation.
(c) Partial condemnation. In the event that only a part of the premises
shall be so taken and any of the buildings shall be partially removed or taken
as a result thereof, lessor shall, should this lease remain in force as to the
part not so taken, with reasonable diligence repair the remaining portion of the
buildings so as to restore such remaining portion as buildings complete in
themselves and so as to put the same in a condition to be used by lessee as
complete buildings, but lessor shall not be obligated to expend thereon more
than the sum awarded to lessor for damage to such buildings in such condemnation
proceedings or settlement in lieu thereof, nor shall there be any abatement or
reduction of rent during restoration, except to the extent provided for in
subsection (b) hereof. Lessor may so repair only on the condition that such
repairs will render the demised premises reasonably suitable for lessee's
continued occupancy; and if such premises shall not be reasonably suitable for
lessee's continued occupancy, lessee shall have the option to terminate this
lease.
10(d)(1)-23
(d) Notice of service of process. Each party shall give the other
immediate notice of the service on them or either of them of any legal process
in connection with any such condemnation proceedings. Each party shall execute
and deliver to the other all instruments that may be required to effectuate the
provisions hereof.
(e) Provision for arbitration. In the event that in the opinion of
either party or in the event of any dispute or controversy between the parties
with respect to the provisions of this section, the construction thereof, or the
rights and obligations of the parties hereunder, then such percentages or such
dispute or controversy shall be arbitrated as follows: each party shall select
an arbitrator, the two arbitrators so selected shall select a third arbitrator,
and the three arbitrators so selected shall hear and determine the controversy,
and their decision thereon shall be final and binding on both lessor and lessee,
who shall bear the cost of such arbitration equally between them.
SECTION TWENTY-EIGHT
SALE OR CONVEYANCE OF PREMISES BY LESSOR
In the event of any sale or conveyance by lessor of the demised
premises the same shall be made subject to this lease and shall operate to
release lessor from any further liability under any of the terms, covenants, and
conditions contained in this lease, whether express or implied, and in such
event, lessee shall look solely to the responsibility of the successor in
interest in and to this lease.
SECTION TWENTY-NINE
SURRENDER OF LEASE
The voluntary or other surrender of this lease by lessee or a mutual
cancellation thereof shall not work a merger, and shall not terminate all or any
existing subleases or subtenancies; but
10(d)(1)-24
may, at the option of lessor, operate as an assignment to it of any and all such
subleases or subtenancies.
SECTION THIRTY
TRANSFER OF SECURITY
If any security is given by lessor to secure the faithful performance
of any of the covenants of this lease on the part of lessee, lessor may transfer
or deliver the security, as such, to the purchaser of the reversion, in the
event that the reversion is sold, and thereupon lessor shall be discharged from
any further liability in reference thereto.
SECTION THIRTY-ONE
WAIVER
The waiver by lessor of, or the failure of lessor to take action with
respect to any breach of any term, covenant, or condition herein contained shall
not be deemed to be a waiver of such term, covenant, or condition, or any
subsequent breach of the same or any other term, covenant, or condition herein
contained. The subsequent acceptance of rent hereunder by lessor shall not be
deemed to be a waiver of any preceding breach by lessee of any term, covenant,
or condition of this lease, other than the failure of lessee to pay the
particular rentals so accepted, regardless of lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
SECTION THIRTY-TWO
HOLDING OVER
Any holding over after the expiration of the term of this lease, with
the consent of lessor, shall be construed to be a tenancy from month to month,
at the same monthly rental is required to be paid by lessee for the period
immediately prior to the expiration of the term hereof, and shall otherwise be
on the terms and conditions herein specified, so far as applicable, and in the
event
10(d)(1)-25
lessee shall hold over without the consent of lessor, the monthly rental shall
be 150% of the rent for the rental period immediately preceding such hold over.
SECTION THIRTY-THREE
PARTIES BOUND
The covenants and conditions herein contained shall, subject to the
provisions as to assignment, transfer, and subletting, apply to and bind the
heirs, successors, executors, administrators, and assigns of the parties hereto.
SECTION THIRTY-FOUR
ADJUSTMENT OF RENTAL
Lessor shall have the right to increase the rental to be paid by lessee
commencing on October 1, 2004, and at intervals of every one (1) year
thereafter.
In the event lessor determines to increase such rent at any of the
times specified above, lessor shall so notify lessee in writing at least Sixty
(60) days prior to the effective date of such increase and in such event the
rental thereafter to be paid by lessee (or until further adjustment as herein
provided) shall be increased as follows:
Lessee shall pay the smaller of:
a) an annual increase of two percent (2%); or
b) an increase in the same proportion that the index figure of
the Consumer Price Index published by the Bureau of Labor
Statistics, United States Department of Labor, for the City of
Milwaukee, all items, as of June 1 of the then current year
lessee has increased above such index figure for the same date
of the preceding year.
10(d)(1)-26
However, Lessor shall have the right to change the rent to an amount
greater than that hereinabove specified when the rent for the immediately
preceding years (to the year for which the adjusted rent is being calculated) is
less than a two percent (2%) increase. The additional increase shall be an
amount equal to the deficit between the rent increase for the preceding year and
two percent (2%). This cumulative factor shall not be considered as a factor
with respect to the determination as to whether option a) or option b) is
smaller.
In no event shall the rental be decreased below the amount of rent for
the immediately preceding year.
If the Bureau of Labor Statistics should, at any time during the term
hereof, revise or change the methods or basic data used in calculating such
index in such a way as to affect the direct comparability of such revised or
changed index, then the bureau shall be requested to furnish a conversion factor
designed to adjust to the new basis, the aforementioned base index.
If no conversion or other index is available, then such rental increase
shall be determined by arbitration in the manner provided in Section
Twenty-Seven hereof.
Notwithstanding any other provision of this Section, and in addition to
any other provision, upon the renewal of financing by Buyer/Lessor (Renewal of
the promissory note relating to the financing of, and for, the purchase of the
subject premises) the rent obligation/payment shall be adjusted to the extent
necessary by either increasing or decreasing such payment, on a prorata basis,
to offset the said interest adjustment so as to maintain the original intent of
the parties; that is, to enable Buyer/Lessor to realize a 15% annual return on
the investment of Buyer/Lessor; but in no event shall any increase exceed a
maximum cumulative increase of 15% per annum over the initial interest rate paid
by Buyer/Lessor.
10(d)(1)-27
SECTION THIRTY-FIVE
ASSIGNMENT TO LESSEE OF EXISTING LEASES
Lessee shall accept possession of the demised premises subject to the
leases presently in effect, copies of which leases have heretofore been
displayed to lessee, and which leases are hereby assigned to lessee as to
lessor's interest therein. This assignment shall include the right to renew such
leases pursuant to the terms of each lease.
Lessee shall assume and perform all of the obligations of lessor in all
of such leases accruing from and after the commencement date of this lease and
shall observe in the operation of lessee's business and require any subtenants
of lessee to observe and abide by any exclusive rights heretofore granted to any
of such tenants. Lessor shall, on the execution of this lease, pay over to
lessee any prepaid rent or security held by lessor under any of such leases.
SECTION THIRTY-SIX
CONDITION OF PREMISES; DISPOSITION OF IMPROVEMENTS;
TRADE FIXTURES
Lessee acknowledges that the premises are now in good condition and
repair. Subject to lessee's right to make nonstructural alterations or
improvements, as provided herein, any alterations, improvements, or
installations made by lessee to the demised premises shall at once become a part
of the realty and belong to lessor. On the expiration of this lease or any
sooner termination hereof, lessee shall, subject to the provisions of Section
Eleven (c) hereof, surrender the premises and all improvements thereon to lessor
in good, sanitary and neat order, condition and repair.
Lessee shall have the right to remove its trade fixtures from the
demised premises at the expiration or other termination of this lease term
provided lessee is not then in default hereunder
10(d)(1)-28
and provided that lessee shall repair any damage to the premises caused by such
removal. This same consideration shall be extended to all sublessees.
"Trade Fixtures" is defined as any personal property, equipment,
furniture, or furnishings not fastened to, or built into, or which becomes a
part of, the building.
SECTION THIRTY-SEVEN
PRIOR RIGHT IN THE EVENT OF CONTEMPLATED SALE
(RIGHT OF FIRST REFUSAL)
In the event Lessor shall receive a bona fide Offer to Purchase the
subject premises during the term of this agreement, or any extension thereof,
and the Offer to Purchase shall be satisfactory to Lessor, Lessor shall give
Lessee privilege of purchasing the demised premises at the price and on the
terms of the Offer so made. This privilege shall be given by notice sent to
Lessee at the subject premises by certified mail, requiring Lessee to accept the
Offer in writing and to sign a suitable contract to purchase the premises within
a period of ten (10) days after the mailing of the notice.
The failure of Lessee to accept the Offer to Purchase or sign a
contract within the period provided shall nullify and void the privilege of
Lessee and Lessor shall be at liberty to sell the premises to any other person,
firm, or corporation.
The rights granted Lessee pursuant hereto are non-assignable except
that Lessee shall have the right to assign this option to any corporation to be
formed by Lessee.
At closing of the subject transaction, and the purchase price has been
paid to Lessor, as herein provided, the subject real estate shall be conveyed to
Lessee (or its assignee as hereinabove specified), free and clear of all liens
and encumbrances and exceptions, except such exceptions as are usual and
customary in this type of transaction; that is, except municipal zoning
10(d)(1)-29
ordinances; recorded easements for public utilities serving the property;
recorded building and use restrictions and covenants; general real estate taxes
levied in the year of closing, unless such taxes are an obligation to Lessee
under the terms of the lease contract, and subject to any extant lease or
leases.
SECTION THIRTY-EIGHT
SUBORDINATION
This lease shall be subordinate to any mortgages or trust deeds that
may hereafter be placed on the demised premises and to any and all advances to
be made thereunder, and to the interest thereon, and all renewals, replacements,
and extensions thereof, provided the mortgagee or trustee named in such
mortgages or trust deeds shall agree to recognize the lease of lessee in the
event of foreclosure if lessee is not in default. In the event any mortgagee or
trustee shall elect to have this lease prior to the lien of its mortgage or
trust deed on such mortgagee or trustee giving notice in writing to lessee to
that effect, this lease shall be deemed prior to the lien of such mortgage or
trust deed, whether this lease is dated prior or subsequent to the date of such
mortgage or trust deed or the date of recording thereof. Lessee shall execute
and deliver whatever instruments may be required for such purpose, and failing
to do so within twenty (20) days after demand in writing does hereby make,
constitute, and irrevocably appoint lessor as its attorney-in-fact and in its
name, place and stead so to do.
SECTION THIRTY-NINE
TIME OF THE ESSENCE
Time is of the essence of this lease, and of each and every covenant,
term, condition and provision hereof.
10(d)(1)-30
SECTION FORTY
SECTION CAPTIONS
The captions appearing under the section number designations of this
lease are for convenience only and are not a part of this lease and do not in
any way limit or amplify the terms and provisions of this lease.
SECTION FORTY-ONE
SHORT FORM OF LEASE FOR RECORDING
A short form of this lease, in substantially the form hereunto attached
and marked Exhibit "D" will be executed and acknowledged by the parties for the
purpose of recording.
In witness whereof, the parties have executed this lease at New Berlin,
Waukesha County, Wisconsin, the day and year first above written.
14000 LLC
By: /s/ J. Xxxxxxx Xxxxxxx
-----------------------------
J. Xxxxxxx Xxxxxxx, Managing Member
STATE OF WISCONSIN )
) ss.
WAUKESHA COUNTY )
Personally came before me this 28 day of December, 2000, the above
named 14000 LLC by J. Xxxxxxx Xxxxxxx, Managing Member, to me known to be the
persons who executed the foregoing instrument and acknowledged the same.
/s/ Xxxx Xxxxxxx Xxxxxxx
------------------------------
Notary Public, Milwaukee County, WI
My Commission is permanent
10(d)(1)-31
M&M Bancorporation
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, President
By: /s/ Xxxx Xxxxxxxx
--------------------
Xxxx Xxxxxxxx, Secretary
STATE OF WISCONSIN )
) ss.
WAUKESHA COUNTY )
Personally came before me this 27th day of December, 2000, the above
named M & M Bancorporation by Xxxxx X. Xxxxxxx, President and Xxxx Xxxxxxxx,
Secretary, to me known to be the persons who executed the foregoing instrument
and acknowledged the same.
/s/ Xxxxxxx X. Xxxxxxxx
Notary Public, Milwaukee County, WI
My Commission is permanent
This instrument was drafted by:
Atty. X. X. Xxxxxxxx
State Bar No. 1007114
10(d)(1)-32
