L E A S E
ARTICLE 1. LEASE TERMS
1.1 LANDLORD AND TENANT. This lease ("Lease") is entered into this 16TH DAY OF
OCTOBER, 1996 by and between CSM INVESTORS, INC., a Minnesota corporation,
("Landlord") and MICRO COMPONENT TECHNOLOGY, INC., a Delaware corporation,
("Tenant").
1.2 PREMISES. Landlord hereby rents, leases, lets and demises to Tenant the
following described property ("Premises") as illustrated on the site plan
attached hereto as EXHIBIT A: 65,500 SQUARE FEET OF SPACE IN THE GATEWAY WEST
BUSINESS CENTER PHASE II located at 0000 XXXXXX XXXX X XX XXXXXXXXX, XXXXXXXXX,
and consisting of approximately 79,600 square feet ("Building"). The area of the
Premises may be increased or decreased by up to 3,500 square feet, as determined
by Tenant's floor plan, prior to November 1, 1996.
For the purposes of this Lease, the determination of the number of square feet
in the Premises shall be made by measuring from the exterior face of exterior
walls, and from the midline or centerpoint of interior or party walls. "As-
built" measurements will be taken of the Premises as soon as construction has
progressed to the point where such measurement is possible. Landlord will
certify such "as built" measurements to Tenant and thereafter, Landlord and
Tenant shall execute an addendum to this Lease in the form of attached EXHIBIT
B, confirming said measurements and adjusting (i) the area of the Premises, (ii)
the Base Rent, and (iii) Tenant's pro rata share, to reflect the actual square
foot area of the Premises, and such addendum shall thereupon be deemed attached
hereto, incorporated herein, and by this reference made a part of this Lease.
1.3 LEASE TERM. The term of this Lease shall commence on the date which Landlord
delivers the Premises substantially complete, as documented by issuance of a
temporary occupancy permit or receipt of verbal approval by the appropriate city
official, and shall terminate on the last day of the one hundred twentieth
(120th) full month thereafter, unless sooner terminated as hereinafter provided.
In the event that Tenant does not vacate the Premises upon the expiration or
termination of this Lease, Tenant shall be a tenant at will for the holdover
period and all of the terms and provisions of this Lease shall be applicable
during that period, except that Tenant shall pay Landlord as base rental for the
period of such holdover an amount equal to two (2) times the base rent which
would have been payable by Tenant had the holdover period been a part of the
original term of this Lease, together with all additional rent as provided in
this Lease. Tenant agrees to vacate and deliver the Premises to Landlord upon
Tenant's receipt of notice from Landlord to vacate. The rental payable during
the holdover period shall be payable to Landlord on demand. No holding over by
Tenant, whether with or without the consent of Landlord, shall operate to extend
the term of this Lease. The occupancy date herein and Landlord's liability for
late delivery fees contained in Section 2.1 are predicated on receipt of an
approved tenant floor plan on or before November 1, 1996. Landlord warrants its
ability to provide Tenant occupancy of the Premises without a completed parking
surface, in the event that a parking lot is not in place in the Fall of 1996.
1.4 BASE RENT. Base Rent is:
MONTHS MONTHLY BASE RENT * PER SQ. FT. *
------ ------------------- -------------
INITIAL TERM: 1-60 $21,014.58 $3.85
61-120 $22,379.17 $4.10
OPTION TERM: 121-144 market market
* Subject to adjustment to reflect the actual area of the Premises, as
provided in Section 1.2 hereof.
1.5 PERMITTED USE: OFFICE, PRODUCTION, RESEARCH AND WAREHOUSE.
1.6 SECURITY DEPOSIT: NONE ($0.00)
1.7 PRO-RATA SHARE: Tenant's pro-rata share shall be the fraction of space
occupied by Tenant under Section 1.2 divided by the
total area of the Building, subject to adjustment as
provided in Section 2.2 hereof.
1.8 ADDRESSES. LANDLORD'S ADDRESS:
-------------------
CSM INVESTORS, INC.
0000 XXXXXXXXXX XXXXXX XXXX, XXXXX 000
XX. XXXX, XX 00000-0000
(000) 000-0000
TENANT'S ADDRESS:
-----------------
MICRO COMPONENT TECHNOLOGY,INC.
0000 XXXXXX XXXX X
XXXXXXXXX, XX 00000
ARTICLE 2. RENT, OPERATING EXPENSES AND SECURITY DEPOSIT
2.1 BASE RENT. Tenant agrees to pay monthly as base rent during the term of this
Lease the sum of money set forth in Section 1.4 of this Lease, which amount
shall be payable to Landlord at the address shown above. One monthly installment
shall be due and payable on or before the first day of each calendar month
succeeding the Commencement Date during the term of this Lease; provided, if the
Commencement Date should be a date other than the first day of a calendar month,
the monthly rental set forth above shall be prorated to the end of that calendar
month, and all succeeding installments of rent shall be payable on or before the
first day of each succeeding calendar month during the term of this Lease.
Tenant shall pay, as additional rent, all other sums due under this Lease. If
Landlord, for any reason whatsoever (other than Tenant's default), cannot
deliver possession of the Premises to the Tenant on the Commencement Date, this
Lease shall not be void or voidable, nor shall Landlord be liable for any loss
or damage resulting therefrom, nor shall the expiration of the term be extended,
but all rent shall be abated until Landlord delivers possession, and Landlord
shall pay Tenant, as its only recourse, a late delivery fee in the amount of
$500.00 per day for each day Landlord fails to provide Tenant occupancy of the
Premises substantially complete after April 15, 1997.
2.2 OPERATING EXPENSES. Subject to Section 2.5 hereof, Tenant shall also pay as
additional rent Tenant's pro rata share of the operating expenses of Landlord
for the Building. Landlord may invoice Tenant monthly for Tenant's pro rata
share of the estimated operating expenses for each calendar year, which amount
shall be adjusted from time-to-time by Landlord based upon anticipated operating
expenses. Within six (6) months following the close of each calendar year,
Landlord shall provide Tenant an accounting showing in reasonable detail by line
item the computations of additional rent due under this Section. In the event
the accounting shows that the total of the monthly payments made by Tenant
exceeds the amount of additional rent due by Tenant under this Section, the
accounting shall be accompanied by evidence of a credit to Tenant's account. In
any event the accounting shows that the total of the monthly payments made by
Tenant is less than the amount of additional rent due by Tenant under this
Section, the accounting shall be accompanied by an invoice for the additional
rent. Within ninety (90) days of receipt of the operating expense reconciliation
for the previous year, Tenant shall have the right to audit Landlord's books and
records as they pertain to operating expenses for the immediately preceding
calendar year, in Landlord's office and with reasonable notice. If Tenant does
not provide notice to Landlord within ninety (90) days of its intent to audit,
Tenant shall automatically waive and release its right to audit for the
preceding calendar year. The cost of said audit shall be borne by Tenant unless
the audit discloses that Tenant has overpaid its proportionate share of
operating expenses for the calendar year in question by more than ten percent
(10%), in which case the reasonable expense of the audit shall be borne by
Landlord. If the audit reveals that Landlord's actual statement was incorrect in
any amount, the resulting excess or deficiency shall be paid by or reimbursed to
Tenant, as the case may be.
Notwithstanding any other provisions in this Lease, during the year in which
this Lease terminates, Landlord, prior to the termination date, shall have the
option to invoice Tenant for Tenant's pro rata share of the operating expenses
based upon the previous year's operating expenses and will be adjusted
appropriately when actual expenses have been compiled. If this Lease shall
terminate on a day other than the last day of a calendar year, the amount of any
additional rent payable by Tenant applicable to the year in which the
termination shall occur shall be prorated on the ratio that the number of days
from the commencement of the calendar year to and including such termination
date bears to 365. Tenant agrees to pay any additional rent due under this
Section within ten (10) days following receipt of the invoice or accounting
showing additional rent due. Tenant's pro rata share set forth in Section 1.7
shall, subject to reasonable adjustment by Landlord, be equal to a percentage
based upon a fraction, the numerator of which is the total area of the Premises
as set forth in Article 1 and the denominator of which shall be the net rentable
area of the Building, as the same may change from time to time.
2.3 DEFINITION OF OPERATING EXPENSES. The term "operating expenses" includes all
expenses incurred by Landlord with respect to the maintenance and operation of
the Building, including, but not limited to, the following: maintenance, repair
and replacement costs; electricity, fuel, water, sewer, gas and other common
Building utility charges; equipment used for maintenance and operation of the
Building; operational expenses; exterior window washing and janitorial services;
trash and snow removal; landscaping and pest control; commercially reasonable
management fees (not to exceed five percent (5%) of base rents), wages and
benefits payable to employees of Landlord whose duties are directly connected
with the operation and maintenance of the Building; all services, supplies,
repairs, replacements or other expenses for maintaining and operating the
Building or project including parking and common areas; improvements made to the
Building which are required under any governmental law or regulation that was
not applicable to the Building at the time it was constructed; installation of
any device or other equipment which improves the operating efficiency of any
system within the Premises and thereby reduces operating expenses with a
reasonable payback for the device or equipment; all other expenses which would
generally be regarded as operating, repair, replacement and maintenance
expenses; all real property taxes and installments of special assessments,
including dues and assessments by means of deed restrictions and/or owners'
associations which accrue against the Building during the term of this Lease and
legal fees incurred in connection with actions to reduce the same; and all
insurance premiums Landlord is required to pay or deems necessary to pay,
including fire and extended coverage, and rent loss and public liability
insurance, with respect to the Building. Notwithstanding the above, operating
expenses which for tax purposes would be considered capital improvements shall
be amortized straight line over the useful life that would govern such an
expense for federal income tax purposes.
The term "Operating Expenses" shall not include any repairs, restoration or
other work occasioned by fire or other casualty to the extent covered by
insurance; income or franchise taxes of the Landlord; expenses incurred in
leasing to or procuring tenants; leasing commissions; advertising expenses;
expenses of renovating or improving spaces for other tenants; interest or
principal on any indebtedness of the Landlord; legal or other professional fees
related to Landlord's title or financing or any such fees related to other
actual or prospective tenants in the property; any costs related to the original
construction or design of the Building; or any costs related to environmental
testing or remediation on the land underlying the Building,
2.4 INCREASE IN INSURANCE PREMIUMS. If an increase in any insurance premiums
paid by Landlord for the Building is caused by a change in Tenant's use of the
Premises or if Tenant vacates the Premises and causes an increase in such
premiums, then Tenant shall pay as additional rent the amount of such increase
to Landlord.
2.5 TENANT'S RIGHT TO CONTROL INTERIOR EXPENSES. Tenant will be allowed, at its
own expense, to control and/or provide its own services within the Premises
that do not affect the structure or exterior of the Building. Tenant will not be
charged for such interior expenses incurred by or for other tenants.
ARTICLE 3. OCCUPANCY AND USE
3.1 USE. Tenant warrants and represents to Landlord that the Premises shall be
used and occupied only for the purpose as set forth in Section 1.5. Tenant shall
occupy the Premises, conduct its business and control its agents, employees,
invitees and visitors in such a manner as is lawful, reputable and will not
create a nuisance. Tenant shall not permit any operation which emits any odor or
matter which intrudes into other portions of the Building or otherwise interfere
with, annoy or disturb any other lessee in its normal business operations or
Landlord in its management of the Building. Tenant shall not permit any waste on
the Premises to be used in any way which would, in the opinion of Landlord, be
extra hazardous on account of fire or which would, in any way, increase or
render void the fire insurance on the Building.
3.2 SIGNS. No sign of any type or description shall be erected, placed or
painted in or about the Premises or Building which are visible from the exterior
of the Premises, except those signs submitted to Landlord in writing, and which
signs are in conformance with Landlord's sign criteria, which is attached hereto
as EXHIBIT C.
3.3 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Tenant, at Tenant's sole cost
and expense, shall comply with all laws, ordinances, orders, rules and
regulations of state, federal, municipal or other agencies or bodies having
jurisdiction over the use, condition or occupancy of the Premises, provided,
however, that Tenant shall not be required to make exterior structural capital
improvements not related to Tenant's business. Tenant will comply with the
reasonable rules and regulations of the Building adopted by Landlord. Landlord
shall have the right at all times to change and amend the rules and regulations
in any reasonable manner as may be deemed advisable for the safety, care,
cleanliness, preservation of good order and operation or use of the Building or
the Premises. All rules and regulations of the Building will be sent by Landlord
to Tenant in writing and shall thereafter be carried out and observed by Tenant.
3.4 WARRANTY OF POSSESSION. Landlord warrants that it has the right and
authority to execute this Lease, and Tenant, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in this
Lease, shall have possession of the Premises during the full term of this Lease
as well as any extension or renewal thereof. Landlord shall not be responsible
for the acts or omissions of any other lessee or third party that may interfere
with Tenant's use and enjoyment of the Premises.
3.5 RIGHT OF ACCESS. Landlord or its authorized agents shall, upon 24 hours
advance notice to Tenant (except in emergencies), have the right to enter the
Premises to inspect the same, to show the Premises to prospective purchasers,
lessees, mortgagees, insurers or other interested parties, and to alter, improve
or repair the Premises or any other portion of the Building. Except in emergency
situations, Landlord and its agents will be accompanied by a representative of
Tenant during such access. Tenant hereby waives any claim for damages for injury
or inconvenience to or interference with Tenant's business, any loss of
occupancy or use of the Premises, and any other loss occasioned thereby.
Landlord and its agents acknowledge and will not violate the confidentiality of
Tenant's operations. Tenant shall not change Landlord's lock system or in any
other manner prohibit Landlord from entering the Premises. Tenant may, however,
install its own security system. Landlord shall have the right to use any and
all means which Landlord may deem proper to open any door in an emergency
without liability therefor. Tenant shall permit Landlord to erect, use, maintain
and repair pipes, cables, conduits, plumbing, vents and wires in, to and through
the Premises as often and to the extent that Landlord may now or hereafter deem
to be necessary or appropriate for the proper use, operation and maintenance of
the Building, provided that Landlord's action does not interfere with Tenant's
reasonable use of the Premises.
ARTICLE 4. UTILITIES AND ACTS OF OTHERS
4.1 BUILDING SERVICES. Tenant shall pay when due, all charges for utilities
furnished to or for the use or benefit of Tenant or the Premises. Tenant shall
have no claim for rebate of rent on account of any interruption in service.
4.2 THEFT OR BURGLARY. Landlord shall not be liable to Tenant for losses to
Tenant's property or personal injury caused by criminal acts or entry by
unauthorized persons into the Premises or the Building.
ARTICLE 5. REPAIRS AND MAINTENANCE
5.1. LANDLORD REPAIRS. Landlord shall not be required to make any improvements,
replacements or repairs of any kind or character to the Premises or the Building
during the term of this Lease except as are set forth in this Section. Landlord
shall maintain only the roof, foundation, parking and common areas, the
structural soundness of the exterior walls, doors, corridors, and other
structures serving the Premises, provided that Landlord's cost of maintaining,
replacing and repairing the items set forth in this Section are operating
expenses subject to the additional rent provisions in Section 2.2 and 2.3, and
provided that Landlord's action does not interfere with Tenant's reasonable use
of the Premises. Landlord shall not be liable to Tenant, except as expressly
provided in this Lease, for any damage or inconvenience, and Tenant shall not be
entitled to any abatement or reduction of rent by reason of any repairs,
alterations or additions made by Landlord under this Lease, unless caused by the
gross negligence of Landlord.
5.2 TENANT REPAIRS. Tenant shall, at all times throughout the term of this
Lease, including renewals and extensions, and at its sole expense, keep and
maintain the Premises in a clean, safe, sanitary and first class condition and
in compliance with all applicable laws, codes, ordinances, rules and
regulations. Tenant's obligations hereunder shall include, but not be limited
to, the maintenance, repair and replacement, if necessary, of all heating,
ventilation, air conditioning, lighting and plumbing fixtures and equipment,
fixtures, motors and machinery, all interior walls, partitions, doors and
windows, including the regular painting thereof, all exterior entrances,
windows, doors and docks and the replacement of all broken glass. When used in
this provision, the term "repairs" shall include replacements or renewals when
necessary, and all such repairs made by the Tenant shall be equal in quality and
class to the original work. The Tenant shall keep and maintain all portions of
the Premises and the sidewalk and areas adjoining the same in a clean and
orderly condition, free of accumulation of dirt, rubbish, snow and ice. If
Tenant fails, refuses or neglects to maintain or repair the Premises as required
in this Lease after notice shall have been given Tenant, in accordance with this
Lease, Landlord may make such repairs without liability to Tenant for any loss
or damage that may accrue to Tenant's merchandise, fixtures or other property or
to Tenant's business by reason thereof, and upon completion thereof, Tenant
shall pay to Landlord all costs plus fifteen percent (15%) for overhead incurred
by Landlord in making such repairs upon presentation to Tenant of xxxx therefor.
5.3. TENANT DAMAGES. Tenant shall not allow any damage to be committed on any
portion of the Premises or Building or common areas, and at the termination of
this lease, by lapse of time or otherwise, Tenant shall deliver the Premises to
Landlord in as good condition as existed at the Commencement Date of this Lease,
ordinary wear and tear excepted. The cost and expense of repairs necessary to
restore the condition of the Premises shall be borne by Tenant.
ARTICLE 6. ALTERATIONS AND IMPROVEMENTS
6.1 LANDLORD IMPROVEMENTS. Landlord will complete the construction of the
improvements to the Premises in accordance with plans and specifications agreed
to by Landlord and Tenant prior to November 1, 1996, which plans and
specifications are made a part of this Lease by reference, and Tenant shall
execute a copy of the plans and specifications and, if applicable, change orders
setting forth the amount of any costs to be borne by Tenant. In the event Tenant
fails to execute the plans and specifications and change orders prior to
November 1, 1996, Landlord may, at its sole option, declare this Lease cancelled
or notify Tenant that the base rent shall commence on the completion date even
though the improvements to be constructed by Landlord may not be complete. Any
changes or modifications to the approved plans and specifications shall be made
and accepted by written change orders or agreement signed by Landlord and Tenant
and shall constitute an amendment to this Lease.
Landlord agrees to provide an allowance of up to $20.00 per square foot towards
construction of the improvements to the Premises beyond the scope of the shell
building improvements depicted in EXHIBIT D. Immediately upon completion of the
Landlord improvements, Landlord and Tenant shall enter into an addendum to this
Lease in the form of the sample addendum which is attached hereto as EXHIBIT B
documenting the actual construction costs and amortizing costs of up to $17.00
per square foot into the base rental rate on a straight line basis at a ten
percent (10%) interest rate over the original term of this Lease, and an
additional $3.00 per square foot amortized without interest over the first year
of this Lease. Tenant shall immediately reimburse Landlord for its contribution
to tenant improvements in excess of $20.00 per square foot. Said allowance shall
include only "hard costs" of construction, which shall be defined as labor and
materials which result in improvements which remain with the Building upon
Tenant's vacation of the Premises, except that Tenant's architectural fees for
space planning may be included in the allowance.
Construction of the improvements will be undertaken on an "open book" basis with
Landlord procuring a minimum of three bids from reputable general contractors
which my be reviewed by Tenant. Landlord will not charge any additional fee for
oversight of construction of the improvements.
6.2 TENANT IMPROVEMENTS. Tenant shall not make or allow to be made any
alterations or physical additions in or to the Premises without first obtaining
the written consent of Landlord, which consent may in the sole and absolute
discretion of Landlord be denied. Any alterations, physical additions or
improvements to the Premises made by Tenant shall at once become the property of
Landlord and shall be surrendered to Landlord upon the termination of this
Lease; provided, however, Landlord, at its option, may require Tenant to remove
any physical additions and/or repair any alterations in order to restore the
Premises to the conditions existing at the time Tenant took possession, all
costs of removal and/or alterations to be borne by Tenant. This clause shall not
apply to moveable equipment or furniture owned by Tenant or a list of items to
be removed by Tenant which will be provided by Tenant and approved by Landlord
prior to occupancy, which may be removed by Tenant at the end of the term of
this Lease if Tenant is not then in default and if such equipment and furniture
are not subject to any other rights, liens and interests of Landlord, and Tenant
agrees to repair any damage caused by the removal of said items.
ARTICLE 7. CASUALTY AND INSURANCE
7.1 SUBSTANTIAL DESTRUCTION. If all or a substantial portion of the Premises or
the Building should be totally destroyed by fire or other casualty, or if the
Premises or the Building should be damaged so that rebuilding cannot reasonably
be completed within one hundred eighty (180) working days after the date of
written notification by Tenant to Landlord of the destruction, or if insurance
proceeds are not made available to Landlord, or are inadequate, for restoration,
this Lease shall terminate at the option of Landlord by written notice to Tenant
within sixty (60) days following the occurrence, and the rent shall be abated
for the unexpired portion of the Lease effective as of the date of the written
notification.
7.2 PARTIAL DESTRUCTION. If the Premises should be partially damaged by fire or
other casualty, and rebuilding or repairs can reasonably be completed within one
hundred eighty (180) working days from the date of written notification by
Tenant to Landlord of the destruction, and insurance proceeds are adequate and
available to Landlord for restoration, this Lease shall not terminate, and
Landlord shall at its sole risk and expense proceed with reasonable diligence to
rebuild or repair the Building or other improvements to substantially the same
condition in which they existed prior to the damage. If the Premises are to be
rebuilt or repaired and are untenantable in whole or in part following the
damage, and the damage or destruction was not caused or contributed to by act or
negligence of Tenant, its agents, employees, invitees or those for whom Tenant
is responsible, the rent payable under this Lease during the period for which
the Premises are untenantable shall be adjusted to such an extent as may be fair
and reasonable under the circumstances. In the event that Landlord fails to
complete the necessary repairs or rebuilding within one hundred eighty (180)
working days from the date of written notification by Tenant to Landlord of the
destruction, Tenant may at its option terminate this Lease by delivering written
notice of termination to Landlord, whereupon all rights and obligations under
this Lease shall cease to exist.
7.3 PROPERTY INSURANCE. Landlord shall not be obligated in any way or manner to
insure any personal property (including, but not limited to, any furniture,
machinery, goods or supplies) of Tenant upon or within the Premises, any
fixtures installed or paid for by Tenant upon or within the Premises, or any
improvements which Tenant may construct on the Premises. Tenant shall maintain
property insurance on its personal property. Tenant shall have no right in or
claim to the proceeds of any policy of insurance maintained by Landlord even if
the cost of such insurance is borne by Tenant as set forth in Article 2, except
that Landlord agrees to apply any proceeds of an insurance award towards the
event leading to the award, unless the terms of Landlord's mortgage on the
property, if any, does not allow such expenditure.
7.4 WAIVER OF SUBROGATION. Anything in this Lease to the contrary withstanding,
Landlord and Tenant hereby waive and release each other of and from any and all
right of recovery, claim, action or cause of action, against each other, their
agents, officers and employees, for any loss or damage that may occur to the
Premises, the improvements of the Building or personal property within the
Building, by reason of fire or the elements, regardless of cause or origin,
including negligence of Landlord or Tenant and their agents, officers and
employees, but excluding any damage or loss caused by the willful intent of
Tenant or Landlord. Landlord and Tenant agree immediately to give their
respective insurance companies which have issued policies of insurance covering
all risk of direct physical loss, written notice of the terms of the mutual
waivers contained in this Section.
7.5 HOLD HARMLESS. Neither party shall be liable to the other party's employees,
agents, invitees, licensees or visitors, or to any other person, for an injury
to person or damage to property on or about the Premises caused by any act or
omission of the other party, its agents, servants or employees, or of any other
person entering upon the Premises under express or implied invitation by the
other party. Each party agrees to indemnify and hold harmless the other party of
and from any loss, attorney's fees, expenses or claims arising out of any such
damage or injury.
7.6 PUBLIC LIABILITY INSURANCE. Tenant shall during the term hereof keep in full
force and effect at its expense a policy or policies of commercial general
liability insurance with respect to the Premises and the business of Tenant, on
terms and with companies approved in writing by Landlord, in which both Tenant
and Landlord shall be covered by being named as insured parties under reasonable
limits of liability not less than $1,000,000, or such greater coverage as
Landlord may reasonably require, combined single limit coverage for bodily
injury, property damage or death. Such policy or policies shall provide that
thirty (30) days' written notice must be given to Landlord prior to cancellation
thereof. Tenant shall furnish evidence satisfactory to Landlord at the time this
Lease is executed that such coverage is in full force and effect.
ARTICLE 8. CONDEMNATION
8.1 SUBSTANTIAL TAKING. If all or a substantial part of the Premises are taken
for any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
the taking would prevent or materially interfere with the use of the Premises
for the purpose for which it is then being used, this Lease shall terminate and
the rent shall be abated during the unexpired portion of this Lease effective on
the date physical possession is taken by the condemning authority. Tenant shall
have no claim to the condemnation award or proceeds in lieu thereof, except that
Tenant shall be entitled to a separate award for the cost of removing and moving
its personal property.
8.2 PARTIAL TAKING. If all or a substantial part of the Premises are taken for
any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as provided in Section 8.1 above, the rent payable
under this Lease during the unexpired portion of the term shall be adjusted to
such an extent as may be fair and reasonable under the circumstances. Tenant
shall have no claim to the condemnation award or proceeds in lieu thereof,
except that Tenant shall be entitled to a separate award for the cost of
removing and moving its personal property.
ARTICLE 9. ASSIGNMENT OR SUBLEASE
9.1 LANDLORD ASSIGNMENT. Landlord shall have the right to sell, transfer or
assign, in whole or in part, its rights and obligations under this Lease and in
the Building. Any such sale, transfer or assignment shall operate to release
Landlord from any and all liabilities under this Lease arising after the date of
such sale, assignment or transfer.
9.2 TENANT ASSIGNMENT. Other than to a related entity, Tenant shall not assign,
in whole or in part, this Lease, or allow it to be assigned, in whole or in
part, by operation of law or otherwise or mortgage or pledge the same, or sublet
the Premises, in whole or in part, without the prior written consent of
Landlord, and in no event shall said such assignment or sublease ever release
Tenant or any guarantor from any obligation or liability hereunder.
Notwithstanding anything in this Lease to the contrary, in the event of any
assignment or sublease, any option or right of first refusal granted to Tenant
shall not be assignable by Tenant to any assignee or sublessee. No assignee or
sublessee of the Premises or any portion thereof may assign or sublet the
Premises or any portion thereof.
9.3 CONDITIONS OF ASSIGNMENT. If Tenant desires to assign or sublet all or any
part of the Premises, it shall so notify Landlord at least thirty (30) days in
advance of the date on which Tenant desires to make such assignment or sublease.
Tenant shall provide Landlord with a copy of the proposed assignment or sublease
and such information as Landlord might request concerning the proposed sublessee
or assignee to allow Landlord to make informed judgments as to the financial
condition, reputation, operations and general desirability of the proposed
sublessee or assignee. Within fifteen (15) days after Landlord's receipt of
Tenant's proposed assignment or sublease and all required information concerning
the proposed sublease or assignee, Landlord shall have the following options:
(1) cancel this Lease as to the Premises or portion thereof proposed to be
assigned or sublet; (2) consent to the proposed assignment or sublease, and, if
the rent due and payable by any assignee or sublessee under any such permitted
assignment or sublease (or a combination of the rent payable under such
assignment or sublease plus any bonus or any other consideration or any payment
incident thereto) exceeds the rent payable under this Lease for such space,
Tenant shall pay to Landlord fifty percent (50%) of all such excess rent (after
reduction for reasonable expenses incurred by Tenant to procure such rent) and
other excess consideration within ten (10) days following receipt thereof by
Tenant; or (3) refuse, in its sole and absolute discretion and judgement, to
consent to the proposed assignment or sublease, which refusal shall be deemed to
have been exercised unless Landlord gives Tenant written notice providing
otherwise. Upon the occurrence of an event of default, if all or any part of the
Premises are then assigned or sublet, Landlord, in addition to any other
remedies provided by this Lease or provided by law, may, at its option, collect
directly from the assignee or sublessee all rents becoming due to Tenant by
reason of the assignment or sublease. Any collection directly by Landlord from
the assignee or sublessee shall not be construed to constitute a novation or a
release of Tenant or any guarantor from the further performance of its
obligations under this Lease.
9.4 RIGHTS OF MORTGAGE. Tenant accepts this Lease subject and subordinate to any
recorded mortgage presently existing or hereafter created upon the Building and
to all existing recorded restrictions, covenants, easements and agreements with
respect to the Building. Landlord is hereby irrevocably vested with full power
and authority to subordinate Tenant's interest under this Lease to any first
mortgage lien hereafter placed on the Premises, and Tenant agrees upon demand to
execute additional instruments subordinating this Lease as Landlord may require.
If the interests of Landlord under this Lease shall be transferred by reason of
foreclosure or other proceedings for enforcement of any first mortgage or deed
of trust on the Premises, Tenant shall be bound to the transferee (sometimes
called the "Purchaser") at the option of the Purchaser, under the terms,
covenants and conditions of this Lease for the balance of the term remaining,
including any extensions or renewals, with the same force and effect as if the
Purchaser were Landlord under this Lease, and, if requested by the Purchaser,
Tenant agrees to attorn to the Purchaser, including the first mortgagee under
any such mortgage if it be the Purchaser, as its Landlord. Notwithstanding the
foregoing, Tenant shall not be disturbed in its possession of the Premises so
long as Tenant is not in default hereunder.
9.5 TENANT'S STATEMENT. Tenant agrees to furnish, from time to time, within ten
(10) days after receipt of a request from Landlord or Landlord's mortgagee, a
statement certifying, if applicable, the following: Tenant is in possession of
the Premises; the Premises are acceptable; the Lease is in full force and
effect; the Lease is unmodified; Tenant claims no present charge, lien, or claim
or offset against rent; the rent is paid for the current month, but is not
prepaid for more than one month and will not be prepaid for more than one month
in advance; there is no existing default by reason of some act or omission by
Landlord; and such other matters as may be reasonably required by Landlord or
Landlord's mortgagee. Tenant's failure to deliver such statement, in addition to
being a default under this Lease, shall be deemed to establish conclusively that
this Lease is in full force and effect except as declared by Landlord, that
Landlord is not in default of any of its obligations under this Lease, and that
Landlord has not received more than one month's rent in advance. Tenant agrees
to furnish, from time to time, within ten (10) days after receipt of a request
from Landlord, the most current financial statement of Tenant.
ARTICLE 10. LANDLORD'S LIEN AND SECURITY AGREEMENT
10.1 LANDLORD'S LIEN. As security for payment of rent, damages and all other
payment required to be made by this Lease, Tenant hereby grants to Landlord a
lien upon all fixtures of Tenant now or subsequently located upon the Premises.
If Tenant abandons or vacates any substantial portion of the Premises or is in
default in the payment of any rentals, damages or other payments required to be
made by this Lease or is in default of any other provision of this Lease,
Landlord may enter upon the Premises, by picking or changing locks if necessary,
and take possession of all or any part of such fixtures, and may sell all or any
part of such fixtures at a public or private sale, in one or successive sales,
with or without notice, to the highest bidder for cash, and, on behalf of
Tenant, sell and convey all or part of such fixtures to the highest bidder,
delivering to the highest bidder all of Tenant's title and interest in the
fixtures sold. The proceeds of the sale of such fixtures shall be applied by
Landlord toward the reasonable costs and expenses of the sale, including
attorney's fees, and then toward the payment of all sums then due by Tenant to
Landlord under the terms of this Lease. Any excess remaining shall be paid to
Tenant or any other person entitled thereto by law.
10.2 SECURITY AGREEMENT. (Intentionally Omitted)
ARTICLE 11. DEFAULT AND REMEDIES
11.1 DEFAULT BY TENANT. The following shall be deemed to be events of default
("Default") by Tenant under this Lease: (1) Tenant shall fail to pay within five
(5) days of the date due any installment of rent or any other payment required
pursuant to this Lease and such failure is not cured within forty-eight (48)
hours after written notice; (2) Tenant shall abandon any substantial portion of
the Premises and such abandonment is not cured within ten (10) days after
written notice; (3) Tenant shall fail to comply with any term, provision or
covenant of this Lease, other than the payment of rent, and the failure is not
cured within ten (10) days after written notice to Tenant; (4) Tenant shall file
a petition or an involuntary petition is filed against Tenant; or Tenant becomes
insolvent under any applicable federal or state bankruptcy or insolvency law; or
Tenant admits that it cannot meet its financial obligations as they become due;
or a receiver or trustee shall be appointed for all or substantially all of the
assets of Tenant; or Tenant shall make a transfer in fraud of creditors or shall
make an assignment for the benefit of creditors; or (5) Tenant shall do or
permit to be done any act which results in a lien being filed against the
Premises or the Building and/or project of which the Premises are a part, and
said lien is not discharged within thirty (30) days of recording of said lien or
notice thereof..
In the event that an order for relief is entered in any case under Title 11,
U.S.C. (the "Bankruptcy Code") in which Tenant is the debtor and: (A) Tenant as
debtor-in-possession, or any trustee who may be appointed in the case (the
"Trustee") seeks to assume the lease, then Tenant, or Trustee if applicable, in
addition to providing adequate assurance described in applicable provisions of
the Bankruptcy Code, shall provide adequate assurance to Landlord of Tenant's
future performance under the Lease by depositing with Landlord a sum equal to
the lesser of twenty-five percent (25%) of the rental and other charges due for
the balance of the Lease term or six (6) months' rent ("Security"), to be held
(without any allowance for interest thereon) to secure Tenant's obligation under
the Lease, and (B) Tenant, or Trustee if applicable, seeks to assign the Lease
after assumption of the same, then Tenant, in addition to providing adequate
assurance described in applicable provisions of the Bankruptcy Code, shall
provide adequate assurance to Landlord of the proposed assignee's future
performance under the Lease by depositing with Landlord a sum equal to the
Security to be held (without any allowance or interest thereon) to secure
performance under the Lease. Nothing contained herein expresses or implies, or
shall be construed to express or imply, that Landlord is consenting to
assumption and/or assignment of the Lease by Tenant, and Landlord expressly
reserves all of its rights to object to any assumption and/or assignment of the
Lease. Neither Tenant nor any Trustee shall conduct or permit the conduct of any
"fire", "bankruptcy", "going out of business" or auction sale in or from the
Premises.
11.2 REMEDIES FOR TENANT'S DEFAULT. Upon the occurrence of a Default as defined
above, Landlord may elect either (i) to cancel and terminate this Lease and this
Lease shall not be treated as an asset of Tenant's bankruptcy estate, or (ii) to
terminate Tenant's right to possession only without cancelling and terminating
Tenant's continued liability under this Lease. Notwithstanding the fact that
initially Landlord elects under (ii) to terminate Tenant's right to possession
only, Landlord shall have the continuing right to cancel and terminate this
Lease by giving three (3) days' written notice to Tenant of such further
election, and shall have the right to pursue any remedy at law or in equity that
may be available to Landlord.
In the event of election under (ii) to terminate Tenant's right to possession
only, Landlord may, at Landlord's option, enter the Premises and take and hold
possession thereof, without such entry into possession terminating this Lease or
releasing Tenant in whole or in part from Tenant's obligation to pay all amounts
hereunder for the full stated term. Upon such reentry, Landlord may remove all
persons and property from the Premises and such property may be removed and
stored in a public warehouse or elsewhere at the cost and for the account of
Tenant, without becoming liable for any loss or damage which may be occasioned
thereby. Such reentry shall be conducted in the following manner: without resort
to judicial process or notice of any kind if Tenant has abandoned or voluntarily
surrendered possession of the Premises; and, otherwise, by resort to judicial
process. Upon and after entry into possession without termination of the Lease,
Landlord may, but is not obligated to, relet the Premises, or any part thereof,
to any one other than the Tenant, for such time and upon such terms as Landlord,
in Landlord's sole discretion, shall determine. Landlord may make alterations
and repairs to the Premises to the extent deemed by Landlord necessary or
desirable to relet the Premises.
Upon such reentry, Tenant shall be liable to Landlord as follows:
A. For all attorneys' fees incurred by Landlord in connection
with exercising any remedy hereunder;
B. For the unpaid installments of base rent, additional rent or
other unpaid sums which were due prior to such reentry,
including interest and late payment fees, which sums shall be
payable immediately.
C. For the installments of base rent, additional rent, and other
sums falling due pursuant to the provisions of this Lease for
the period after reentry during which the Premises remain
vacant, including late payment charges and interest, which
sums shall be payable as they become due hereunder.
D. For all expenses incurred in releasing the Premises, including
leasing commissions, attorneys' fees, and costs of alteration
or repairs necessary to restore the Premises to their original
condition, ordinary wear and tear excepted, which shall be
payable by Tenant as they are incurred by Landlord; and
E. While the Premises are subject to any new lease or leases made
pursuant to this Section, for the amount by which the monthly
installments payable under such new lease or leases is less
than the monthly installment for all charges payable pursuant
to this Lease, which deficiencies shall be payable monthly.
Notwithstanding Landlord's election to terminate Tenant's right to possession
only, and notwithstanding any reletting without termination, Landlord, at any
time thereafter, may elect to terminate this Lease, and to recover (in lieu of
the amounts which would thereafter be payable pursuant to the foregoing, but not
in diminution of the amounts payable as provided above before termination), as
damages for loss of bargain and not as a penalty, an aggregate sum equal to the
present value at ten percent (10%) per annum of the amount by which the rental
value of the portion of the term unexpired at the time of such election is less
than an amount equal to the unpaid base rent, percentage rent, and additional
rent and all other charges which would have been payable by Tenant for the
unexpired portion of the term of this Lease, which deficiency and all expenses
incident thereto, including commissions, attorneys' fees, expenses of
alterations and repairs to restore the Premises to their original condition,
ordinary wear and tear excepted, shall be due to Landlord as of the time
Landlord exercises said election, notwithstanding that the term had not expired.
If Landlord, after such reentry, leases the Premises, then the rent payable
under such new lease shall be conclusive evidence of the rental value of the
unexpired portion of the term of this Lease.
If this Lease shall be terminated by reason of bankruptcy or insolvency of
Tenant, Landlord shall be entitled to recover from Tenant or Tenant's estate, as
liquidated damages for loss of bargain and not as a penalty, the amount
determined by the immediately preceding paragraph.
11.3 LANDLORD'S RIGHT TO PERFORM FOR ACCOUNT OF TENANT. If Tenant shall be in
Default under this Lease, Landlord may, after five (5) days written notice, cure
the Default at any time for the account and at the expense of Tenant. If
Landlord cures a Default on the part of Tenant, Tenant shall reimburse Landlord
upon demand for any amount expended by Landlord in connection with the cure,
including, without limitation, attorneys' fees and interest.
11.4 INTEREST, ATTORNEY'S FEES AND LATE CHARGE. In the event of a Default by
Tenant: (1) if a monetary default, interest shall accrue on any sum due and
unpaid at the rate of the lesser of fifteen percent (15%) per annum or the
highest rate permitted by law and, if Landlord places in the hands of an
attorney the enforcement of all or any part of this Lease, the collection of any
rent due or to become due or recovery of the possession of the Premises, Tenant
agrees to pay Landlord's costs of collection, including reasonable attorney's
fees for the services of the attorney, whether suit is actually filed or not.
Other remedies for nonpayment of rent notwithstanding, if the monthly rental
payment or any other payment due from Tenant to Landlord is not received by
Landlord on or before the fifth (5th) day of the month for which the rent is
due, a late payment charge of two and one-half percent (2.5%) of such past due
amount shall become due and payable in addition to such amounts owed under this
Lease.
11.5 ADDITIONAL REMEDIES, WAIVERS, ETC.
A. The rights and remedies of Landlord set forth herein shall be
in addition to any other right and remedy now and hereafter
provided by law. All rights and remedies shall be cumulative
and not exclusive of each other. Landlord may exercise its
rights and remedies at any times, in any order, to any extent,
and as often as Landlord deems advisable without regard to
whether the exercise of one right or remedy precedes, concurs
with or succeeds the exercise of another.
B. A single or partial exercise of a right or remedy shall not
preclude a further exercise thereof, or the exercise of
another right or remedy from time to time.
C. No delay or omission by Landlord in exercising a right or
remedy shall exhaust or impair the same or constitute a waiver
of, or acquiescence to, a Default.
D. No waiver of Default shall extend to or affect any other
Default or impair any right or remedy with respect thereto.
E. No action or inaction by Landlord shall constitute a waiver of
Default.
F. No waiver of a Default shall be effective unless it is in
writing and signed by Landlord.
ARTICLE 12. RELOCATION (Intentionally Omitted)
ARTICLE 13. AMENDMENT AND LIMITATION OF WARRANTIES
13.1 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY TENANT, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES: THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE OR
TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN
WRITING IN THIS LEASE.
13.2 AMENDMENT. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LANDLORD AND TENANT.
13.3 LIMITATION OF WARRANTIES. LANDLORD AND TENANT EXPRESSLY AGREE THAT THERE
ARE AND SHALL BE NO IMPLIED WARRANTIES OR MERCHANTABILITY, HABITABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS
LEASE.
ARTICLE 14. MISCELLANEOUS
14.1 SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and agreed that
should Landlord's interest in the Premises cease to exist for any reason during
this Lease, then notwithstanding the happening of such event this Lease
nevertheless shall remain unimpaired and in full force and effect, and Tenant
hereunder agrees to attorn to the then owner of the Premises.
14.2 USE OR RENT TAX. If applicable in the jurisdiction where the Premises are
issued, Tenant shall pay and be liable for all rental, sales and use taxes or
other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Landlord under the terms of this Lease.
Any such payment shall be paid concurrently with the payment of the rent,
additional rent, operating expenses or other charge upon which the tax is based
as set forth above.
14.3 ACT OF GOD. Neither party shall be required to perform any covenant or
obligation in this Lease, or be liable in damages to the other party, so long as
the performance or non-performance of the covenant or obligation is delayed,
caused or prevented by an act of God, force majeure or by the other party.
14.4 HEADINGS. The section headings appearing in this Lease are inserted only as
a matter of convenience and in no way define, limit, construe or describe the
scope or intent of any Section.
14.5 NOTICE. All rent and other payments required to be made by Tenant shall be
payable to Landlord at the address set forth in Section 1.8. All payments
required to be made by Landlord to Tenant shall be payable at the address set
forth in Section 1.8, or at any other address within the United States as Tenant
may specify from time to time by written notice. Any notice or document required
or permitted to be delivered by the terms of this Lease shall be deemed to be
delivered (whether or not actually received) when deposited in the United States
Mail, postage prepaid, certified mail, return receipt requested, addressed to
the parties at the respective addresses set forth in Section 1.8.
14.6 TENANT'S AUTHORITY. If Tenant executes this Lease as a corporation, each of
the persons executing this Lease on behalf of Tenant does hereby personally
represent and warrant that Tenant is a duly authorized and existing corporation,
that Tenant is qualified to do business in the state in which the Premises are
located, that the corporation has full right and authority to enter into this
Lease, and that each person signing on behalf of the corporation is authorized
to do so. In the event any representation or warranty is false, all persons who
execute this lease shall be liable, individually, as Tenant.
14.7 HAZARDOUS SUBSTANCES. Tenant, its agents or employees, shall not bring or
permit to remain on the Premises or Building any asbestos, petroleum or
petroleum products, explosives, toxic materials, or substances defined as
hazardous wastes, hazardous materials, or hazardous substances under any
federal, state, or local law or regulation ("Hazardous Materials"), except items
related to Tenant's use, which use, storage and disposal shall be in accordance
with applicable codes, permits and regulations, and more stringent standard
industry practices, if applicable. Tenant's violation of the foregoing
prohibition shall constitute a material breach and default hereunder and Tenant
shall indemnify, hold harmless and defend Landlord from and against any claims,
damages, penalties, liabilities, and costs (including reasonable attorney fees
and court costs) caused by or arising out of (i) a violation of the foregoing
prohibition by Tenant or (ii) the presence of any Hazardous Materials on, under,
or about the Premises or the Building during the term of the Lease caused by or
arising, in whole or in part, out of the actions of Tenant, its agents or
employees. Tenant shall clean up, remove, remediate and repair any soil or
ground water contamination and damage caused by the presence and any release of
any Hazardous Materials in, on, under or about the Premises or the Building
during the term of the Lease caused by or arising, in whole or in part, out of
the actions of Tenant, its agents or employees, in conformance with the
requirements of applicable law. Tenant shall immediately give Landlord written
notice of any suspected breach of this paragraph; upon learning of the presence
of any release of any Hazardous Materials, and upon receiving any notices from
governmental agencies pertaining to Hazardous Materials which may affect the
Premises or the Building. The obligations of Tenant hereunder shall survive the
expiration of earlier termination, for any reason, of this Lease.
Landlord and Tenant acknowledge that Landlord has completed removal of
underground petroleum storage tanks formerly on the Premises, and that the
Minnesota Pollution Control Agency has issued a "no action, no association"
letter dated August 1, 1996, which refers to the removal of these tanks as well
as the presence of certain non-petroleum compounds on the Premises.
Notwithstanding Sections 7.5 or 13.3 hereof or any other provision of this
Lease: (a) Tenant shall not be liable for, and Landlord will hold Tenant
harmless from, any and all claims, costs, actions, administrative procedures,
fines and liabilities (including reasonable fees for attorneys and environmental
engineers) arising in any way from the past or continuing presence of petroleum
leakage or of the specified non-petroleum compounds; (b) Landlord warrants that
it does not know of the presence of any non-petroleum Hazardous Materials on the
Premises other than the specific non- petroleum compounds specified in said
letter of August 1, 1996 and in the reports identified therein; (c) Landlord
agrees to use its best efforts to have Tenant also named by the Minnesota
Pollution Control Agency as one of the "Listed Parties" to said letter of August
1, 1996; and (d) Landlord agrees that it will comply with the three "conditions"
specified on Page 3 of said letter of August 1, 1996.
14.8 SEVERABILITY. If any provision of this Lease or the application thereof to
any person or circumstances shall be invalid or unenforceable to any extent, the
remainder of this Lease and the application of such provisions to other persons
or circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
14.9 LANDLORD'S LIABILITY. If Landlord shall be in default under this Lease and,
if as a consequence of such default, Tenant shall recover a money judgment
against Landlord, such judgment shall be satisfied only out of the right, title
and interest of Landlord in the Building as the same may then be encumbered and
neither Landlord nor any person or entity comprising Landlord shall be liable
for any deficiency. In no event shall Tenant have the right to levy execution
against any property of Landlord nor any person or entity comprising Landlord
other than its interest in the Building as herein expressly provided.
14.10 BROKERAGE. Landlord and Tenant each represents and warrants to the other
that there is no obligation to pay any brokerage fee, commission, finder's fee
or other similar charge in connection with this Lease, other than fees due to
THE TEGRA GROUP, which are the responsibility of LANDLORD. Each party covenants
that it will defend, indemnify and hold harmless the other party from and
against any loss or liability by reason of brokerage or similar services alleged
to have been rendered to, at the instance of, or agreed upon by said
indemnifying party. Notwithstanding anything herein to the contrary, Landlord
and Tenant agree that there shall be no brokerage fee or commission due on
expansions, options or renewals by Tenant.
14.11 MANAGEMENT AGENT. Landlord hereby notifies Tenant that the person
authorized to execute this Lease and manage the Premises is CSM Corporation, a
Minnesota corporation, which has been appointed to act as the agent in leasing
management and operation of the Building for owner and is authorized to accept
service of process and receive or give receipts for notices and demands on
behalf of Landlord. Landlord reserves the right to change the identity and
status of its duly authorized agent upon written notice to Tenant.
14.12 RIGHT TO TERMINATE. Tenant shall have the one time option to terminate
this Lease, with no further obligation, upon the expiration of lease month
EIGHTY-FOUR (84) with delivery of written notice and a payment of a lease
termination fee in the amount of three (3) months base rent and the value of the
then unamortized improvements, delivered to Landlord prior to the expiration of
lease month SEVENTY-TWO (72). It shall be a condition of Tenant's right to
terminate that Tenant shall not be in default under Section 11 of this Lease.
14.13 MARKET RATE OPTION. Upon two hundred seventy (270) days written notice,
The Tenant may extend the term of this Lease for one (1) additional twenty-four
(24) month term under the same conditions contained herein, except that the Base
Rental shall be adjusted to reflect the prevailing market rate for comparable
space in the Roseville, Minnesota area. In no case shall the adjusted rate(s) be
less than the latest rate paid by the Tenant during the primary term of this
Lease. It shall be a condition of the exercise of this option that the Tenant
not be in default per Section 11 of this Lease.
14.14 EXPANSION OPTION. Landlord hereby grants Tenant an option to expand the
Premises into the area marked "Expansion Area" on EXHIBIT A attached hereto,
pursuant to the following terms and conditions:
A. This option may be exercised in writing, provided Tenant is
not in default in performance of its obligations under the
Lease, at any time prior to the expiration of lease month
THIRTY-SIX (36). If not timely and properly exercised, this
option will automatically be null and void and of no further
force and effect.
B. The Expansion Area will be leased to Tenant under the same
terms and conditions as are contained in this Lease, except
for base rent which shall be adjusted as hereinafter provided,
and Tenant's pro rata share which shall be adjusted to reflect
Tenant's increased square footage.
C. Base rent for the Expansion Area (which shall be in addition
to the base rent for the original Premises) shall equal the
sum of the following:
i. Four and 10/100 Dollars ($4.10) per square foot; plus
ii. The amortized cost per square foot of the leasehold
improvement allowance provided to Tenant by Landlord
for the Expansion Area (up to a maximum of Seventeen
and no/100 Dollars ($17.00) per square foot), which
amortization shall be at a rate of ten percent (10%)
over the remaining term of the Lease, subject to
Tenant maintaining a general financial condition
equal or better than that of the Tenant at the time
of execution of this Lease; and
iii. The amortized cost per square foot of unamortized
tenant improvements costing up to $10.00 per square
foot located in the Expansion Area prior to Tenant's
occupancy, based upon a ten percent (10%) rate and a
useful life of ten (10) years. The amortization of
these costs shall be at a rate of ten percent (10%)
over the remaining term of the Lease.
D. The Expansion Area shall be delivered to Tenant with completed
tenant improvements under Section 14.14.C(ii) no earlier than
the commencement of lease month forty-eight (48) and no later
than the expiration of lease month sixty (60), with the timing
of said delivery to be determined by Landlord. Landlord shall
provide at least thirty (30) days advance written notice of
the delivery date.
E. Upon exercise of this option by Tenant, Landlord and Tenant
shall execute an addendum to lease adding the Expansion Area,
to the Premises pursuant to the foregoing terms and
conditions.
F. In the event that Landlord is unable to provide Tenant with
the Expansion Area depicted in this section, Tenant, as its
only recourse, shall have the option to terminate this Lease
at the expiration of lease month sixty (60) with delivery of
sixty (60) days prior written notice to Landlord.
14.15 PARKING. Tenant shall have a minimum of one hundred eighty (180) parking
spaces available for its use during the term of this Lease, and two hundred
thirty (230) spaces available for its use after delivery of Tenant's Expansion
Area, if applicable.
14.16 SUBMISSION OF LEASE. Submission of this Lease to Tenant for signature
does not constitute a reservation of space or an option to lease. This Lease is
not effective until execution by and delivery to both Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease effective the
day and year first above written.
LANDLORD: TENANT:
CSM INVESTORS, INC. MICRO COMPONENT TECHNOLOGY, INC.
BY: /s/ ILLEGIBLE BY: /s/ Xxxxx X. Xxxxxx
---------------------------------- ----------------------------------
ITS: V.P. ITS: Pres/CEO
------------------------------- ---------------------------------
EXHIBIT A
[GRAPHIC OMITTED]
Gateway West Business Center
EXHIBIT B
ADDENDUM TO LEASE
(EXAMPLE)
THIS ADDENDUM TO LEASE to that certain Lease dated ________, 19_____, ("Lease")
by and between _______________, a ________________, ("Landlord") and __________
_____________, a ____________________ , ("Tenant"), is entered into this ______
day of _______________ , 19_____.
If any provisions contained in the printed form of said Lease is inconsistent
with any provisions contained herein, then and in the event the provisions in
this Addendum to Lease shall control.
In consideration of the mutual covenants herein contained, and for other good
and valuable consideration, Landlord and Tenant hereby amend the aforementioned
Lease as follows:
SECTION 1.B. PREMISES. Landlord and Tenant agree that the rentable area of the
Premises, according to "as-built" measurements, is__________________square feet.
SECTION 2.C. COMMENCEMENT DATE. Landlord and Tenant agree that the Commencement
Date of the Lease is__________________, and that the Lease shall expire on
__________________, unless otherwise terminated or extended as contained herein.
SECTION 4. RENTAL. The Base Rent for the Lease Term shall be:
LEASE MONTHLY ANNUAL PER
MONTHS BASE RENT BASE RENT SQ. FT.
------ --------- --------- -------
INITIAL TERM 1-60 ________ ________ ______
61-120 ________ ________ ______
OPTION TERM 121-144 market market market
The rental rate depicted in this Section represents the additional Base Rent
consisting of the amortization of $________ in tenant improvements reimbursed to
Tenant by Landlord over the original term of the Lease at a ten percent (10%)
interest rate.
SECTION 5. PRO RATA SHARE. Tenant's pro rata share of operating expenses shall
be_________ percent (__________%).
All other terms and conditions of the Lease remain unchanged.
LANDLORD: TENANT:
BY:________________________________ BY:________________________________
ITS:_______________________________ ITS:_______________________________
EXHIBIT X
XXXXXXX XXXX XXXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXX
SIGNAGE CRITERIA
GENERAL NOTES
1) TENANT SHALL BE RESPONSIBLE FOR THE PURCHASE, INSTALLATION AND MAINTENANCE
OF ALL SIGNS DESCRIBED IN THIS CRITERIA PACKAGE.
2) TENANT SHALL OBTAIN OWNER'S APPROVAL AND CITY PERMITS PRIOR TO ANY SIGNAGE
INSTALLATION.
3) TENANT MAY SOLICIT BIDS FROM ANY SIGNAGE MANUFACTURE OF TENANT'S CHOICE.
4) OWNER RESERVES THE RIGHT TO APPROVE ANY ALTERNATE SIGNAGE WHEN DEEMED
APPROPRIATE AT THE OWNER'S SOLE DISCRETION.
5) SIGNAGE ON THE BUILDING FRONT SHALL BE AS DESCRIBED ON PAGE 2 AND 3.
6) DOCK AND DRIVE-IN DOORS SHALL BE IDENTIFIED AS DESCRIBED ON PAGE 4. THIS
SIGNAGE MAY BE PROVIDED AT THE TENANT'S DISCRETION-IT IS NOT REQUIRED BY THE
OWNER.
7) SERVICE AND MAN DOORS IN THE TRUCK DOCK AREA SHALL BE IDENTIFIED AS
DESCRIBED ON PAGE 5. THIS SIGNAGE MAY BE PROVIDED AT THE TENANT'S
DISCRETION-IT IS NOT REQUIRED BY THE OWNER.
SUBMITTALS
1) TENANT SHALL SUBMIT TO THE OWNER. TWO COPIES OF ALL SIGN FACE LAYOUTS, AND
THE LOCATION OF ALL SIGNS ON THE BUILDING, FOR APPROVAL.
2) TENANT OR THE TENANT'S SIGN CONTRACTOR SHALL SUBMIT SIGNAGE PLANS TO THE
CITY, AS REQUIRED BY THE CITY, FOR PERMITS.
CSM CORPORATION
0000 XXXXXXXXXX XXX. X.
XX.XXXX, XX 00000
PHONE 000-0000
FAX 000-0000 30 MAY 00
XXXXXXX XXXX XXXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXX
SIGNAGE CRITERIA.
[GRAPHIC OMITTED]
PARTIAL ELEVATION SINGLE LINE
[GRAPHIC OMITTED]
PARTIAL ELEVATION MULTIPLE LINES
CSM CORPORATION
0000 XXXXXXXXXX XXX. X.
XX.XXXX, XX 00000
PHONE 000-0000
FAX 000-0000 30 MAY 00
XXXXXXX XXXX XXXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXX
SIGNAGE CRITERIA.
[GRAPHIC OMITTED]
SIGNAGE NOTES
1. LOGO: MAX. SIZE 4'-0" LONG x 3'-0" HIGH
MAX. AREA: 12 SQUARE FEET
COLOR: MAY MATCH TENANT'S COLOR CRITERIA
LIGHTING: MAY BE INTERIOR ILLUMINATED
WITH FACE LIGHTED.
2. TENANT NAME: SINGLE LINE SHALL BE 30" MAX. HEIGHT
MULTIPLE LINES SHALL BE NO HIGHER THAN
36" HEIGHT WITH CHARACTERS NOT EXCEEDING 30".
CSM CORPORATION
0000 XXXXXXXXXX XXX. X.
XX.XXXX, XX 00000
PHONE 000-0000
FAX 000-0000 30 MAY 00
XXXXXXX XXXX XXXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXX
SIGNAGE CRITERIA.
[GRAPHIC OMITTED]
PARTIAL ELEVATION
OVERHEAD DOOR IDENTIFICATION
CSM CORPORATION
0000 XXXXXXXXXX XXX. X.
XX.XXXX, XX 00000
PHONE 000-0000
FAX 000-0000 30 MAY 00
XXXXXXX XXXX XXXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXXX
SIGNAGE CRITERIA.
[GRAPHIC OMITTED]
EXTERIOR SERVICE DOOR ELEVATION
FOR SERVICE AND MAN DOORS IN TRUCK COURT AREA
CSM CORPORATION
0000 XXXXXXXXXX XXX. X.
XX.XXXX, XX 00000
PHONE 000-0000
FAX 000-0000 30 MAY 96
EXHIBIT D
LANDLORD SHELL IMPROVEMENTS
Prepared by:
CSM CORPORATION
MAY 29, 1996
The landlord will provide the following improvements to the tenant at
landlord's expense:
1. Exterior shell shall be 12 inch reinforced, insulated concrete block wall
in the truck dock area with brick facia on the front facia exposures.
Interior elevations shall be plain exposed concrete block.
2. Exterior window systems shall be thermally broken aluminum storefront
glazing units with thermal insulated, reflective glass. 1" horizontal mini
blinds are included at the main level buildings as part of the shell
building construction.
3. A single 3'-0" x 7'-0" aluminum and glass main entry door at designated
entry location, as shown on drawings, (excluding vestibule) shall be
included in shell building construction.
4. Shell building existing ceiling is an exposed prime painted structural
steel and metal deck with a single ply EPDM membrane, insulated roof
system.
5. Shell building floor is a 5 inch reinforced, sealed concrete slab on grade.
6. High bay brass upright sprinkler heads for minimum (ordinary hazard)
density requirements (laterals only, no drops) are included as part of
shell building construction.
7. A 2" waterline in the bar joists, and a 4" P.V.C. sanitary sewer line under
the concrete slab are included as part of the shell building construction.
8. 1600 ampere main service to the building utility room is included in the
shell building construction.
9. A concrete walkway shall be installed from the parking lot to the existing
main entry door as part of the shell building construction.
10. 8'-0" x 8'-0" flush insulated steel doors.
All other improvements shall be at tenant's sole expense, including but not
limited to the following:
A. Gypsum wall construction.
B. Interior doors.
C. Interior hardware.
D. Hollow metal frames.
E. Rooftop heating, Ventilation, and Air Conditioning units.
F. Muzak or telephone communication systems.
G. Security systems or access control systems.
H. Appliances, vending machines, kitchen equipment.
I. Office furniture, moveable partitions, etc.
J. Extra cooling capacity for tenant furnished equipment.
K. Window treatments, i.e. curtains, etc. (Horizontal mini blinds are included
as part of the shell building construction.)
L. Millwork/Built ins: counters, cabinets, shelving, closets, etc..
M. Computer terminal outlets, wiring or systems.
N. Electrical items, i.e., light fixtures, power feeds, outlets, disconnects,
etc..
O. Plumbing rough ins, connections, stub ups, vent risers, fixtures, etc..
P. Ramps and/or overhead doors to accommodate Drive-in capability, dock
levelers, shelters, etc.
Q. Tenant signage.
R. Additional structural reinforcement for tenant's roof top units, including
roof curb, roof deck penetration, and roof repair. These items shall be
performed by the owner's shell building roofing contractor in order to
maintain the roof warranty.
S. Increased City of Chanhassen, Sewer Access Charge (SAC) over and above SO.18
per square foot.
T. Gas piping. A meter socket is provided at the nearest building manifold
location.
U. Electric service to leasehold space. Including 480/277 volt feeders,
disconnect and panel.
V. Construction general conditions, including but not limited to: building
permits, field supervision, Clean up, dumpsters, and project management.
