EXHIBIT 10.35
L E A S E
ARTICLE 1. LEASE TERMS
1.1 LANDLORD AND TENANT. This lease ("Lease") is entered into this 16TH DAY OF
MAY, 1997 by and between CSM PROPERTIES, INC., a Minnesota corporation,
("Landlord") and FIELDWORKS, INC. a Minnesota corporation, ("Tenant").
1.2 PREMISES. Landlord hereby rents, leases, lets and demises to Tenant the
following described property as illustrated on the site plan attached hereto as
EXHIBIT A: approximately 53,006 SQUARE FEET OF OFFICE, ASSEMBLY/ENGINEERING, AND
WAREHOUSE SPACE, TOGETHER WITH THE NON-EXCLUSIVE RIGHT OF TENANT, ITS AGENTS,
EMPLOYEES, CUSTOMERS, CONTRACTORS, INVITEES AND VISITORS, TO USE THE PARKING
AREAS, WALKWAYS, ROADS, DRIVEWAYS, RESTROOMS, HALLWAYS, CORRIDORS AND ALL OTHER
PORTIONS OF THE PROPERTY THAT ARE NOT LEASED OR HELD FOR LEASE, ("PREMISES") IN
BUILDING B OF THE EDENVALE CROSSING BUSINESS CENTER located at ANAGRAM DRIVE AND
VALLEY VIEW ROAD IN EDEN PRAIRIE, MINNESOTA, and consisting of approximately
84,922 square feet ("Building"). A floor plan of the Premises and a description
of improvements, if any, to be constructed are attached hereto as EXHIBITS B AND
C.
On or before the Commencement Date, the number of square feet of rentable area
in the leased Premises and in the Building shall be determined and certified to
Tenant by the architectural firm that designed the Building. Such certification
shall include, but not be limited to, a certification that the rentable area in
the leased Premises and in the Building were determined by measuring from the
exterior faces of exterior walls and the mid point of common or demising walls.
The costs of such certification shall be paid by Landlord. Following such
certification, the Base Rent and Tenant's Pro Rata Share shall be adjusted to
reflect the rentable areas of the Premises and Building determined and
established by such certification, and the parties shall execute an addendum to
this Lease, in the form of attached EXHIBIT D, which will establish and confirm
the rentable areas of the Premises and Building, Base Rent and Tenant's Pro Rata
Share.
1.3 LEASE TERM. The term of this Lease shall commence on OCTOBER 1, 1997
("Commencement Date") and shall terminate EIGHTY-FOUR (84) MONTHS thereafter on
SEPTEMBER 30 2004, unless sooner terminated as hereinafter provided. Tenant
shall have access to the Premises two (2) weeks prior to October 1, 1997 to
allow Tenant to install its fixtures, data and telephone systems, with the
understanding that Tenant's installers will be working simultaneously with
Landlord's contractors. 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 one hundred
twenty-five percent (125%) of 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.
1.4 BASE RENT. Base Rent is:
MONTHS MONTHLY BASE RENT PER SQ. FT.
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INITIAL TERM: 1-48 $38,429.35 $8.70
49-84 $40,372.90 $9.14
OPTION TERM: 00-000 xxxxxx xxxxxx
121-156 market market
1.5 PERMITTED USE: OFFICE, ASSEMBLY/ENGINEERING AND WAREHOUSING, INCLUDING,
BUT NOT LIMITED TO, TESTING AND MINOR REPAIR OF ELECTRONIC
COMPONENTS AND CIRCUITRY.
1.6 SECURITY DEPOSIT: NONE ($0.00)
1.7 PRO RATA SHARE: SIXTY-TWO AND 42/100 PERCENT (62.42%),
subject to adjustment as provided in Section 2.2 hereof.
1.8 ADDRESSES.
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LANDLORD'S ADDRESS: TENANT'S ADDRESS:
CSM PROPERTIES, INC. FIELDWORKS, INC.
0000 XXXXXXXXXX XXX. X., XXXXX 000 (THE ADDRESS OF THE PREMISES
XX. XXXX, XX 00000-0000 ONCE ESTABLISHED)
(000) 000-0000
ARTICLE 2. RENT AND OPERATING EXPENSES
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.
Notwithstanding anything in this Lease to the contrary, if Landlord, for any
reason whatsoever (other than Tenant's default), cannot deliver possession of
the Premises to the Tenant on the Commencement Date, Landlord shall not 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. If Landlord fails, for any reason other than force majeure or Tenant
caused delays, to deliver possession to Tenant within thirty (30) days after the
Commencement Date, Tenant may terminate this Lease by written notice to
Landlord, which notice, to be effective, must be given prior to delivery of
possession of the Premises to Tenant.
2.2 OPERATING EXPENSES. 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 one
hundred twenty (120) days following the close of each calendar year, Landlord
shall provide Tenant an accounting showing in reasonable detail 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.
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. 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.
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, except to the extent the costs thereof are reimbursed to
Landlord by insurance; electricity, fuel, water, sewer, gas and other common
Building utility charges, except any such utilities provided to the Premises
which are separately metered; 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; management fees,
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; all other
expenses which would generally be regarded as operating, repair, replacement and
maintenance expenses; all real property taxes and installments of special
assessments 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. Landlord estimates taxes and Operating
Expenses as follows: $1.00 per square foot for 1997, $2.50 per square foot for
1998, and $3.25 per square foot for 1999.
2.4 INCREASE IN INSURANCE PREMIUMS. If an increase in any insurance premiums
paid by Landlord for the Building is caused by Tenant's use of the Premises or
if Tenant vacates the
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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 AUDIT. Tenant shall have the right to audit Operating
Expenses and Landlord shall reimburse Tenant for its actual and reasonable
out-of-pocket costs of conducting such audit, if it is determined, pursuant to
such audit, that Landlord has overstated the actual amount of Tenant's share of
Operating Expenses for the applicable year by an excess of at least five percent
(5%). Any audit should be conducted upon at least ten (10) days' prior written
notice, at a location in the Twin Cities designated by Landlord, during normal
business hours, by Tenant or a regionally or nationally recognized firm of
certified public accountants engaged by Tenant at their standard hourly rates.
If it is determined, pursuant to such audit, that there has been an overpayment
or underpayment of Tenant's share of Operating Expenses, the parties shall
promptly make such reconciliation payments and/or refunds as are appropriate.
Upon any final determination that there has been an overpayment of Tenant's
share of Operating Expenses, and Landlord shall fail to promptly (i.e. within
fifteen (15) days) reimburse Tenant as required above, Tenant shall have the
right to offset the amount of such overpayment against the next installment(s)
of Base Rent due hereunder.
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. Landlord
acknowledges that Landlord has reviewed Tenant's intended use of the Premises
and hereby approves of such use. 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 interferes 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 attached hereto as
EXHIBIT E. Subject to Landlord's prior approval, not to be unreasonably
withheld, and in compliance with applicable law, Tenant shall have the right to
erect three (3) flag poles in the common area adjacent to the Premises, and to
display business related flags or banners therefrom, and may install directional
signage for Tenant's semi-annual shareholder meetings.
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. 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, so long as such changes or amendments do not
materially and adversely affect Tenant's use of 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 third party that may interfere with Tenant's
use and enjoyment of the Premises, however, Landlord will exercise good faith
efforts to prevent such interference.
3.5 RIGHT OF ACCESS. Landlord or its authorized agents shall at any and all
reasonable times, after 24 hours advance notice and execution by all parties of
a confidentiality agreement requesting access, unless access is required due to
an emergency, 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. 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, except
loss incurred as a result of the theft or misappropriation by Landlord, its
employees, contractors or agents, of Tenant's intellectual property occurring as
a result of such entry. 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
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and maintenance of the Building.
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,
unless service is interrupted as a result of Landlord's negligent or willful and
wanton actions or omissions. Landlord shall cause gas and electrical services to
the Premises to be separately metered.
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 keep and maintain the common areas and improvements located therein in
good order, condition and repair, including, without limitation, lawn
maintenance and snow, ice and debris removal consistent with industry standards
for buildings comparable to the Building. Landlord shall maintain only the roof,
foundation, floor slab, 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. 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
the repairs are caused by the negligent or willful and wanton actions or
omissions of Landlord and prevent Tenant from using the Premises for more than
three (3) consecutive days. Landlord acknowledges and agrees that the
replacement of the HVAC unit compressors and/or heat exchangers exclusively
serving the Premises shall be at Landlord's expense, if such items cannot be
repaired. If such compressors and/or heat exchangers can be repaired, the full
cost of repair will be invoiced to and paid by Tenant, unless it occurs in the
first year of the lease term or is covered by a manufacturer's warranty. This
agreement by Landlord is also contingent on Tenant providing proof of carrying a
preventative maintenance program for the HVAC system.
5.2 LANDLORD COMPLIANCE WITH LAWS. Landlord shall comply with, or cause to be
complied with, all insurance requirements and all laws, statutes, ordinances and
regulations of federal, sate, county and municipal authorities (collectively
"Laws") which shall impose any duty upon Landlord or Tenant with respect to the
physical condition of the Building (but not with respect to the conduct of
Tenant's business therein or as a result of Tenant's occupancy thereof). The
costs incurred by Landlord in connection with the foregoing shall be recovered
by Landlord as Operating Expenses pursuant to Sections 2.2 and 2.3 of this
Lease.
5.3 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 and sanitary condition in compliance with
all applicable laws, codes, ordinances, rules and regulations, except as may
otherwise be provided in Sections 5.1 and 5.2 hereof. 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, 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 in a clean and orderly condition, free of accumulation of dirt and
rubbish. Tenant acknowledges that Tenant may, but shall not be obligated to,
from time to time, remove ice and/or snow from the entry areas serving the
Premises, to supplement the snow and ice removal to be provided by Landlord
pursuant to Section 5.1. 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 ten percent (10%) for overhead incurred by Landlord in making such repairs
upon presentation to Tenant of xxxx therefor. Landlord warrants the condition of
the HVAC equipment during the first year of the lease term.
5.4 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.
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ARTICLE 6. ALTERATIONS AND IMPROVEMENTS
6.1 LANDLORD IMPROVEMENTS. Landlord shall, at its sole cost and expense,
construct the Premises according to and to the extent provided in the plans and
specifications attached hereto as EXHIBITS B AND C and designated as "Landlord's
Work". Landlord's Work shall be completed in a good and workmanlike manner using
new materials of good quality and in compliance with Applicable Laws. Landlord
hereby guarantees all improvements for a period of one (1) year. General outline
building plans for the Building conforming to or consistent with the plans and
specifications for Landlord's Work, and including outline floor plans, and
outline structural, mechanical and electrical plans, shall be submitted to
Tenant for its review within ten (10) business days of the final signing of this
Lease by Landlord and Tenant. Tenant shall have ten (10) business days from the
receipt thereof to review such outline plans and specifications. Failure to make
written objections thereto within said ten (10) day period shall be deemed to
constitute Tenant's approval thereof. If any such objections are made by Tenant
within said period, Landlord and Tenant will attempt, in good faith, to make
such changes therein to accommodate Tenant's needs. Final detailed construction
plans and specifications of Landlord's Work for the Building shall be submitted
to Tenant for Tenant's approval within twenty (20) business days after the final
signing of this Lease by Landlord and Tenant. The detailed plans and
specifications of Landlord's Work for the Building shall conform with said
general outline plans and specifications reviewed and approved by Tenant and
with the specifications attached hereto. Any material changes or modifications
in such plans or specifications shall require Tenant's review and approval. In
the event of such material changes or modifications, Tenant shall have ten (10)
business days from the receipt of such changes and modifications to review and
comment on the same. Failure to comment within said period, in writing, shall be
deemed to constitute Tenant's approval thereof. Tenant agrees that it will not
withhold its approval, except for just and reasonable cause, and will not act in
an arbitrary or capricious manner with respect to the approval of said final
plans and specifications. When said final plans and specifications have been
approved by Landlord and Tenant by affixing thereon the signature of an
authorized officer or employee of each of the respective parties, a description
of said final plans and specifications shall be attached to each party's copy of
this Lease, in place of and in lieu of the specifications attached to this Lease
at the time of its execution and Landlord shall construct and complete the
Building in accordance with said final plans and specifications and applicable
laws. 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. In the
event Landlord and Tenant are unable to agree upon and approve said final plans
and specifications on or before the date which is forty (40) business days after
the date of this Lease, either Landlord or Tenant shall have the right to
terminate this Lease by giving written notice of such termination to the other
party hereto. Tenant shall have the privilege of entering the Building
approximately thirty (30) days prior to the substantial completion thereof
(except that Tenant may enter the Building prior to that time, with the prior
consent of Landlord, for the purpose of planning only) for the purpose of
installing fixtures and other equipment, provided that such entry or work does
not unreasonably interfere with the completion of the work to be done by
Landlord. Landlord agrees to give Tenant notice of the anticipated date of
substantial completion of the Building approximately one (1) month prior to such
substantial completion.
In the event Tenant requests, in writing, a change in any of the final approved
plans and specifications, Tenant agrees to pay Landlord upon completion of such
work, the costs, if any, incurred by Landlord as a result of implementing such
change request. Any request which would result in any material delay or material
increase in cost shall be subject to Landlord's approval, which approval may
specifically be conditioned upon additional compensation for delay, the
extension of the commencement date of the term and/or the payment in cash for
such added costs. Landlord shall determine (or provide its best estimate of) the
cost of such change order prior to implementing such change. Any such change
order which results in a material increase in costs shall be acknowledged by
Tenant in writing and if the costs have been determined, then the increase shall
be agreed upon in writing. If Landlord has estimated the cost of such change and
such change will exceed Landlord's estimate, Landlord will obtain Tenant's prior
authorization before proceeding further with such change. An itemization, with
reasonable detail, of any change order resulting in an increase in costs of
$100.00 or more, shall be supplied to Tenant, which itemization shall include
the general contractor's administrative costs, overhead and profit (not to
exceed five percent (5%) of the total change order cost) as a separate line
item. Said costs shall be increased to include construction interest incurred on
such costs and/or incurred as a result of any delay to commencement of the term.
Tenant shall also be responsible for the costs, if any, charged to Landlord by
third parties in processing any such request, which shall include, but shall not
be limited to, outside consultant fees, design professional fees and Landlord's
construction manager's overhead and profit (which shall be five percent (5%) of
the total change order cost).
Landlord's Work as shown on the final plans shall be deemed "substantially
completed" for all purposes under this Lease when: i) they are accessible and in
a condition which would enable them to be fully usable by Tenant for its normal
business operations, and ii) Landlord delivers to Tenant the city certificate of
occupancy or other evidence of Tenant's right to occupy and use the Premises,
including, without limitation, a temporary certificate of occupancy. By
occupying the Premises as a tenant, Tenant shall have conclusively deemed to
have accepted the same and to have acknowledged that said Premises are in the
condition required by this Lease, except for
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latent defects and those punch list matters which Tenant shall have notified
Landlord of, in writing, within forty-five (45) days of such occupancy. Landlord
agrees to cause to be completed or corrected as soon as reasonably possible all
such latent defects and punch list matters, if within the scope of the final
plans. Notwithstanding the foregoing, if Landlord's Work as shown on the final
plans has been substantially completed, except for exterior matters which cannot
be completed due to weather conditions and interior punch list items, then said
Landlord's Work shall nonetheless be deemed substantially completed for purposes
of this Lease, provided occupancy evidence has been delivered , and in such
case, Landlord shall complete such uncompleted exterior matters as soon as
reasonably possible once weather conditions so permit.
Landlord warrants to Tenant that Landlord's Work shall be constructed: i) in
accordance with the final plans, ii) in a workmanlike and skillful manner, iii)
free from all faults and defects in workmanship, material, design and title, and
iv) in compliance with all applicable laws, ordinances and regulations of
governmental authorities having jurisdiction over the Premises. Landlord's
obligations pursuant to this Article shall be limited to causing Landlord's
Work, at its sole cost and expense, to conform to the foregoing representations
and warranties; provided, however, that Tenant shall have first given timely
written notice of such noncompliance to Landlord, and in any event, such notice
shall be on or before ten (10) days prior to the first anniversary date of the
issuance of the city certificate of occupancy. Landlord makes no other
warranties or representations, either express or implied, nor any warranties of
habitability or for a particular purpose, with respect to the Premises, it being
understood that Tenant has approved the plans prior to construction of
Landlord's Work. Landlord shall assign to Tenant all manufacturer's warranties
and other warranties, if any, which it receives from third parties in connection
with Landlord's Work at such time during the lease term, if necessary, for
Tenant's maintenance obligations under Article 5 or other obligations under this
Lease. However, Landlord shall continue to have the license and right to enforce
such warranties, if necessary, in connection with the representations or
warranties by Landlord to Tenant under this Section or Landlord's maintenance
obligations under Article 5.
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 shall not be unreasonably
withheld or delayed, but may be conditioned upon Tenant's agreement to remove
such alteration or addition at the expiration or earlier termination of the
lease term. Any alterations, physical additions or improvements to the Premises
made and abandoned at the end of the lease term by Tenant shall become the
property of Landlord upon the termination of this Lease; provided, however,
Tenant may 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 also apply to moveable equipment or furniture owned by Tenant,
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.
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 or Tenant by written notice
to the other within thirty (30) 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. In the event Landlord exercises its right of
termination, as aforesaid, and at the time of such notice the remaining lease
term (including any exercised option term) is two (2) years or more, such
termination shall be of no force and effect if Tenant, within fifteen (15) days
following receipt of Landlord's notice of termination, provides written notice
to Landlord of Tenant's election to require Landlord to proceed with restoration
of the Building and Premises, in which event, Landlord shall proceed with due
diligence to restore the Building and Premises to substantially the same
condition as existed prior to damage, the Lease shall remain in full force and
effect, and the rent payable under the Lease shall be equitably adjusted during
the period for which the Premises are untenantable.
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. If Landlord gives Tenant written notice
that restoration will take longer than one hundred eighty (180) days (which
notice must be given no later than thirty (30) days after Tenant's notice to
Landlord of the destruction) or in the event that Landlord fails to complete
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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 LANDLORD DEFAULT. In the event Landlord shall fail to proceed with
restoration of the Building and Premises as required herein, and such default
continues for a period of fifteen (15) days following written notice of default
from Tenant to Landlord, then Tenant may proceed with restoration and repair of
the Building and Premises, to the extent necessary to permit Tenant to use and
occupy the Premises, as contemplated by this Lease, and if Landlord shall fail
to reimburse Tenant for the reasonable and necessary costs incurred by Tenant in
connection with such restoration and repair, Tenant may offset such reasonable
and necessary expenses against rent coming due under this Lease, and to the
extent necessary, the term of this Lease shall be extended to permit Tenant to
fully recover such costs.
7.4 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 and shall also maintain plate glass
insurance. Subject to the rights of Landlord's lender to apply insurance
proceeds, in its sole discretion, to restoration of the Building and Premises,
or to payment of the mortgage loan, Tenant shall have a right in or claim to the
proceeds of any policy of insurance maintained by Landlord if and to the extent
Tenant undertakes restoration of the Premises pursuant to Section 7.4 above and
Landlord fails to reimburse Tenant for the costs incurred by Tenant in
connection therewith.
7.5 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. 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.
7.6 HOLD HARMLESS. Landlord shall not be liable to the Tenant or its 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 Tenant, its agents, servants or employees, or of any other person
entering upon the Premises under express or implied invitation by the Tenant, or
caused by the improvements located on the Premises becoming out of repair, the
failure or cessation of any service provided by Landlord (including security
service and devices), or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Premises. Tenant agrees to indemnify and hold
harmless Landlord of and from any loss, attorney's fees, expenses or claims
arising out of any such damage or injury.
Tenant shall not be liable to Landlord or its employees, agents, invitees,
licensees or visitors, or to any other person, for an injury to person or damage
to property in the Building or common areas serving the Building caused by any
act or omission of Landlord, its agents, servants or employees, including
without limitation, Landlord's failure to remove ice and snow from the common
areas as required in Section 5.1 of this Lease. Landlord agrees to indemnify and
hold harmless Tenant of and from any loss, attorneys' fees, expenses or claims
arising out of any such damage or injury.
7.7 PUBLIC LIABILITY INSURANCE. Tenant shall, during the term hereof, keep in
full force and effect, at its expense, a policy or policies of public 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 injury 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.
7.8 LANDLORD'S INSURANCE. Landlord shall maintain in full force and effect
during the lease term: (i) "all risk" commercial property insurance coverage in
the amount of the full replacement value of the Building, as the value may exist
from time to time; (ii) worker's compensation and employer's liability for all
of Landlord's employees; and (iii) earthquake and/or flood insurance if the land
is in an area where such hazards are a known risk and such insurance is
reasonably available and subject to reasonably customary deductibles and
sublimits. Landlord's insurance shall be issued by insurance companies qualified
to do business in Minnesota, with a general policyholder rating of at least
A/VII or A+/V as noted in the most current Best's Insurance Report. Prior to the
Commencement Date and throughout the lease term, Landlord shall provide Tenant
with a certificate(s) of insurance evidencing the amounts and types of coverage
described above with a thirty (30) day notice of cancellation. In addition,
Landlord will cause its contractors to maintain in full force and effect
commercial general liability coverage, worker's compensation and employer's
liability, with minimum limits acceptable to Landlord and, as applicable,
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commercial property coverages to protect the interests of all parties in the
Building.
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 an assignment to a parent, subsidiary or
affiliate, or to an entity or person which controls or is controlled by Tenant
("Permitted Assignee"), 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 (including without limitation by transfer of a majority interest of
stock, merger, or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or sublet the Premises, in whole or in part, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld, and in no
event shall said such assignment (whether to a Permitted Assignee or otherwise)
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. Tenant shall provide
Landlord with written notice of an assignment to any Permitted Assignee.
9.3 CONDITIONS OF ASSIGNMENT. If Tenant desires to assign or sublet all or any
part of the Premises to a third party which is not a Permitted Assignee, 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) 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 all such
excess rent, less Tenant's reasonable costs in completing the assignment or
subletting, and other excess consideration within ten (10) days following
receipt thereof by Tenant; or (2) refuse to consent to the proposed assignment
or sublease if such refusal is commercially reasonable, 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, and Landlord shall have a security
interest in all properties on the Premises to secure payment of such sums. 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
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agrees upon demand to execute additional instruments subordinating this Lease as
Landlord may require, provided that such instruments expressly state that
Tenant's occupancy shall not be disturbed as long as Tenant is not in default.
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, provided said
Purchaser agrees in writing that 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, no more than two (2) times
each calendar year, 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, no more than two (2) times
each calendar year, within ten (10) days after receipt of a request from
Landlord, a financial statement of Tenant containing the most recent quarterly
published information, certified as true and correct by Tenant.
ARTICLE 10. LANDLORD'S LIEN AND 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 when due
any installment of rent or any other payment required pursuant to this Lease;
(2) Tenant shall abandon any substantial portion of the Premises; (3) Tenant
shall fail to comply with any term, provision or covenant of this Lease, other
than the payment of rent or additional rent, and the failure is not cured within
thirty (30) 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.
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
(in an interest bearing account) 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 (in an interest bearing account) 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. The foregoing
notwithstanding, Tenant shall not be in default if Tenant vacates all or any
portion of the Premises and (i) Tenant, a Permitted Assignee, or an approved
subtenant or assignee occupies the Premises (or portion thereof) vacated by
Tenant within ninety (90) days after Tenant has vacated, and (ii) Tenant is not
in default under any other provision of this Lease.
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
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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, 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
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, 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 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 twelve percent (12%) 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,
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a late payment charge of five percent (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.
11.6 LANDLORD DEFAULTS. At the option of Tenant, Landlord shall be considered in
default under the terms of this Lease if, during the term of this Lease,
Landlord fails to pay any amounts or perform any obligations required to be paid
or performed by Landlord and such failure continues for thirty (30) days after
written notice thereof is given to Landlord by Tenant. In the event of default
by Landlord, Tenant may immediately or at any time thereafter, upon notice, cure
such default for the account and at the expense of Landlord. If Tenant, by
reason of such default is compelled to pay or elects to pay any sum of money, or
is compelled to incur any expense, including reasonable attorney's fees, the
sums so paid, with interest thereon at the rate of twelve percent (12%) per
annum from the date of payment, shall be paid to Tenant by Landlord within five
(5) days of demand, or upon failure of Landlord to make such payment, the sums
so paid may be offset against the next rent installment(s).
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, if said owner
agrees not to disturb Tenant's occupancy, so long as Tenant is not in default
hereunder.
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
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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 Landlord nor Tenant shall be required to perform any
non-monetary covenant or obligation in this Lease, or be liable in damages to
the other, so long as the performance or non-performance of the non-monetary
covenant or obligation is delayed, caused or prevented by an act of God, force
majeure or by the other.
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. Except for substances and quantities which are
normally used in the operation of Tenant's business or the maintenance or
operation of the Premises, and which are used, stored and disposed of in
accordance with all applicable environmental laws and regulations, 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"). 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.
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
XXX XXXXXXXXX OF LANDMARK PARTNERS, INC., 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
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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 OPTION TO EXPAND. Tenant shall have a one time Option to Expand the area
of the Premises by 15,012 square feet in the "Option to Expand Area" depicted on
EXHIBIT B, which option shall be exercised, if at all, subject to the following
terms and conditions:
A. The additional 15,012 square feet of space to be provided pursuant to
this Option to Expand shall be delivered by Landlord to Tenant, if at
all, at any time from the expiration of lease month thirty-seven (37)
through the expiration of lease month forty-nine (49) of the term of
this Lease, as determined in Landlord's sole discretion and as
described in item (D) below;
B. The space shall be delivered in a warehouse finish condition, which,
for the purposes of this provision, shall mean:
CEILINGS: Exposed prime painted structural steel and metal
deck.
FLOORS: 5" reinforced, cure-sealed, concrete slab on grade.
WALLS: Demising walls shall be built with metal framing and
drywall to the underside of the structural deck
above, fire taped only, as required by local
governing codes. The interior surface of concrete
block walls shall remain unfinished.
HVAC: The warehouse area shall be heated only by means of gas
fired unit heaters to maintain 65(Degree) F.
FIRE PROTECTION: High bay brass upright
sprinkler heads for minimum
(ordinary hazard) density
requirements (laterals only, no
drops) are included as part of shell
building construction.
PLUMBING: A 6" PVC waste line under-floor and a 2" copper
cold water line overhead shall be included as part
of the shell building construction.
WAREHOUSE
LIGHTING: 8'-2" tube fluorescent light fixtures mounted at
roof joists are included to provide approximately
one fixture per 250 square feet of warehouse space.
LIGHT SWITCHES: All warehouse lights to be switched at the main
service panel.
ELECTRICAL OUTLETS: One (1) wall mounted, 120 volt duplex outlet has
been included at the main electric panel.
TELEPHONE OUTLETS: One (1) wall mounted telephone outlet shall be
included at the main electric panel.
EXIT LIGHTS & Emergency lighting shall be provided as required by
EMERGENCY LIGHTS: code and the Fire Xxxxxxxx.
ELECTRICAL SERVICE: Main service shall be a 480/277 volt, 100 ampere
panel with a step down transformer to a 100 ampere,
120/208 volt panel.
C. The Base Rent for the space shall be $4.50 per square foot per year;
D. Landlord shall, prior to the expiration of lease month thirty (30),
notify the Tenant, in writing, that either: (i) Landlord will be able
to deliver the expansion space at the expiration of lease month
thirty-seven (37); or (ii) Landlord will be able to deliver the
expansion space at the expiration of lease month forty-nine (49).
E. Tenant may exercise this option, if at all, by giving Landlord
unconditional and irrevocable written notice of exercise within sixty
(60) days following receipt of Landlord's written notice of
availability of the space.
F. If Tenant fails to exercise its Option to Expand strictly in accordance
with the terms hereof, then the Option to Expand shall become null and
void.
G. Upon the exercise of this Option to Expand by Tenant, Landlord and
Tenant will promptly execute an addendum to this Lease to accomplish
the following:
(i) Add the expansion space to the leased Premises;
(ii) Establish the effective date for the delivery and addition of
such space;
(iii) Confirm that the initial term of the expansion option shall be
coterminous with the then existing lease;
(iv) Establish and confirm that the base rental for the expansion
space shall be the prevailing warehouse rate in effect at the
time of the initial term of the Lease.
(v) Adjust Tenant's operating expense participation percentage to
reflect the
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addition of the expansion space, from and after the effective
date thereof;
H. It is an express condition of Tenant's exercise of this Option to
Expand that Tenant not be in Default in the performance of its
obligations under the Lease.
14.13 OPTION TO EXTEND TERM. If this Lease has not been previously canceled or
terminated and if Tenant is not then in default under this Lease, then Tenant
shall have the option to extend the lease term upon the same conditions and
covenants contained in this Lease for two (2) consecutive periods of three (3)
years each (singularly "Renewal Term") except that (i) the Base Rent during any
Renewal Term shall be the market Base Rent as of the commencement date of the
Renewal Term in question multiplied by the rentable square footage of the
Premises, and (ii) Landlord's obligations relative to replacement of HVAC unit
compressors or heat exchangers shall be modified such that Landlord shall be
entitled to recover the full costs of any such replacements, monthly during the
term of the Lease, on an amortized basis, with the cost being amortized over the
useful life of the replacement at an amortization rate equal to US Treasury
Securities having a term comparable to the useful life of the replacement item.
The first Renewal Term shall commence on the date the original term of this
Lease expires and the second Renewal Term shall commence on the last day of the
then expiring Renewal Term. Tenant shall exercise each option by giving
unconditional and irrevocable written notice of exercise to Landlord by the
later of (a) forty-five (45) days after Landlord notifies Tenant of Landlord's
determination of the market Base Rent (which notice shall be given not later
than nine (9) months prior to the expiration of the original lease term or the
first Renewal Term), or (b) two hundred ten (210) days prior to the expiration
of the original term of this Lease or any Renewal Term, as the case may be. If
not timely exercised, all of Tenant's options to extend the term of this Lease
shall expire and Tenant shall have no further right to extend the term of this
Lease.
14.14 MEMORANDUM OF LEASE. Tenant and Landlord shall, upon the written request
of the other, execute a memorandum or short form lease in a form suitable for
recording. Said memorandum of lease shall be dated on the date and year of the
execution of this Lease and shall disclose the parties, the term of this Lease
and such other terms and conditions of this Lease as Tenant may reasonably
require. In the event that any such instrument is recorded, Tenant shall, upon
request of Landlord following the expiration or earlier termination of this
Lease, execute and deliver a quit claim deed for the property or other
instrument that is reasonable in form and that memorializes the occurrence and
effect of any such expiration or termination.
14.15 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
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CSM INVESTORS, INC. FIELDWORKS, INC.
BY: /S/ XXXXX XXXXXXX BY: /S/ XXXXXX X. XXXXXX
ITS: VICE PRESIDENT ITS: VICE PRESIDENT OF FINANCE
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THE FOLLOWING EXHIBITS TO THE LEASE HAVE BEEN OMITTED IN THIS XXXXX FILING:
Exhibit A Illustration of the site plan
Exhibit B Floor plans of the building
Exhibit C Outline of building specifications
Exhibit D Example of addendum to lease
Exhibit E Signage criteria
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