EXHIBIT 10.42
NORTH STAR PLATING COMPANY
BUILDING LEASE
(BRAINERD INDUSTRIAL PARK)
THIS LEASE, Made and entered into as of the 1st day of January, 1995, by
and between BX PROPERTIES, a Minnesota general partnership of Xxxxxxxx X. Xxxx
and Xxxx X. Xxxxx (hereinafter referred to as "Landlord"), and NORTH STAR
PLATING COMPANY, a Minnesota corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H :
Landlord hereby leases to Tenant, and Tenant leases from Landlord the
premises described in Exhibit A attached and hereby made a part hereof, which
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premises are hereinafter referred to as the "leased premises."
TO HAVE AND TO HOLD the leased premises and appurtenances for a term of ten
(10) years, commencing on the date hereof and ending at 12:00 midnight, on the
tenth (10th) anniversary of the date hereof, plus any renewal term pursuant to
Article 13 hereinbelow, subject to the following terms and conditions.
ARTICLE 1. RENT. Landlord reserves and Tenant covenants to pay to
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Landlord, without demand, at the place at which notices to Landlord are to be
given pursuant to Article 16, base rent for the leased premises of Twenty One
Thousand Three Hundred Dollars ($21,300.00) per calendar month payable in
advance on the first day of each and every calendar month during the term and
any renewal term of this Lease. A pro rata portion of such monthly base rent
shall be due for any partial calendar month during the term or any renewal term
of this Lease, in proportion to the number of days of such calendar month
falling within the term or renewal term.
ARTICLE 2. ESCALATION OF BASE RENT. The monthly base rent shall be
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increased as of the first day of the calendar month following the first (1st)
anniversary of the commencement date of this Lease and following every
anniversary of the commencement date of this Lease thereafter, during the term
and any renewal term of this Lease, by a percentage equal to the percentage
increase in the Consumers' Price Index for All Urban Consumers for the
Minneapolis/St. Xxxx Metropolitan Area, "All Items" [1982-84 = 100] published by
the United States Bureau of Labor Statistics (the "CPIU") between the CPIU last
published as of the commencement date of this Lease or the second previous
anniversary of the commencement date of this Lease, as the case may be, and the
CPIU last published as of the immediately preceding anniversary of the
commencement date of this Lease. Such adjusted monthly rent shall be rounded to
the nearest One Dollar ($1.00). Should the CPIU be discontinued, or discontinued
for the Minneapolis/St. Xxxx Metropolitan Area, a similar figure representative
of an overall price average for the Minneapolis/St. Xxxx Metropolitan Area shall
be used or the Consumers' Price Index for All Urban Consumers "All Items" for
the United States shall be used.
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FOR EXAMPLE: Assume the CPIU last published as of the first anniversary of
the date hereof (in 1996) is 140 and the CPIU last published as of the second
anniversary of the date hereof (in 1997) is 144.2 (representing a 3% annual
increase), the monthly base rent shall be increased as of the first day of the
calendar month following the second anniversary of the date hereof by 1.5 %.
ARTICLE 3. NET LEASE. Without limitation of the specific provisions of
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this Lease, the parties declare that this Lease shall be construed in all
respects to be a net lease, with all expenses of operating, maintaining and
insuring the leased premises, and paying taxes and special assessments and
similar charges against the leased premises, to be borne by Tenant, with the
exception only of reasonable wear and tear and loss by reason of fire and other
casualty insurable under the current "special cause of loss" form of building
and personal property insurance policy published by the Insurance Services
Office or equivalent (hereinafter referred to as "Standard Hazard Insurance").
ARTICLE 4. TAXES AND SPECIAL ASSESSMENTS. Tenant shall pay, when due and
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before penalty attaches, all real estate taxes and installments of special
assessments, and any similar charges or liens due and payable during the term
hereof with respect to the leased premises and improvements situated thereon,
provided that election shall be made to pay any special assessment over the
longest period allowed by law. For any partial calendar year at the end of the
term or any renewal term of this Lease, Tenant shall be responsible for a pro
rata portion of such taxes and special assessments due and payable in such
calendar year in proportion to the number of days of such calendar year falling
within the term or renewal term of this Lease, and appropriate adjustments shall
be made at the beginning of the term and at the end of the term or renewal term
hereof. Tenant shall be responsible for all taxes and installments of special
assessments payable in the year 1995, since Tenant will occupy the leased
premises for the entire year, either pursuant to this Lease or pursuant to the
Prior Lease (as defined in Article 15 below). In the event any mortgagee of the
leased premises requires an escrow account to be maintained for the payment of
real estate taxes and special assessments, with respect to the leased premises
and improvements situated thereon, Tenant shall fund and make monthly or other
periodic payments to such an escrow account all as may be required by such
mortgagee. Any funds held in such escrow account in excess of Tenant's accrued
liability under this Article 4 shall be the property of Tenant and purchased by
Landlord upon expiration or termination of this Lease.
ARTICLE 5. MAINTENANCE AND REPAIR. Tenant hereby accepts the leased
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premises in the condition they are in. Tenant, at its sole cost and expense,
will keep, maintain and rebuild, if necessary, the leased premises, including
any altered, rebuilt, additional or substituted improvements, in good repair and
appearance during the term and any renewal term of this Lease, ordinary wear and
tear and damage by fire or other casualty insurable under Standard Hazard
Insurance excepted. All repairs made by Tenant shall be at least equal to the
original work in class and quality. Tenant shall put, keep and maintain all
portions of the leased premises and the sidewalks, curbs, drives, parking areas,
landscaped areas, and passageways adjoining the same in a clean and orderly
condition, free of dirt, rubbish, snow, ice and unlawful obstructions.
ARTICLE 6. ALTERATIONS AND ADDITIONS. Tenant may, at any time and from
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time to time during the term and any renewal term of this Lease, at its sole
cost and expense,
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make additions to, alterations of, substitutions and replacements for, and
removals from the improvements on the leased premises (hereinafter
"alterations"), provided, however, that (i) the total market value of the leased
premises shall not be lessened by reason of any such alterations, (ii) any
alterations shall be done in a good and first class workmanlike manner, (iii)
all such alterations shall be expeditiously completed in compliance with all
laws, ordinances, orders, rules, regulations and requirements applicable
thereto, (iv) if Tenant or Tenant's contractor estimates that any such
alterations will cost more than Ten Thousand and no/100 Dollars ($10,000.00),
Tenant shall give to Landlord notice of its intention to undertake the same at
least thirty (30) days prior to commencement of the work, and (v) prior to
commencement of the work Tenant shall have obtained all required consents and
approvals of all mortgagees of the leased premises. Tenant shall promptly pay
for all such alterations and shall hold Landlord harmless from any liens or
charges against the leased premises by reason of any such work. Tenant shall
procure and pay for all required permits, certificates and licenses in
connection with such alterations. All such alterations shall become the property
of Landlord, except that trade fixtures which may be removed without material
damage to the leased premises shall remain the property of Tenant.
ARTICLE 7. USE OF LEASED PREMISES; COMPLIANCE WITH LAWS; ENVIRONMENTAL
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COVENANTS. The leased premises shall be used and occupied by Tenant as an
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automotive bumper sales and repair facility and other ancillary purposes, and
for no other purpose, and such use and occupancy shall be in compliance with all
applicable laws, ordinances and governmental regulations. Without limiting the
foregoing, Tenant shall, at Tenant's expense, make all such improvements and
alterations required by reason of Tenant's use of the leased premises under the
Americans with Disabilities Act and shall comply with all Environmental Laws as
hereinafter provided, and Landlord shall have no responsibility for the same.
Tenant shall indemnify, defend and hold harmless Landlord from any loss or
liability incurred by reason of any failure by Tenant to comply with applicable
laws in its use and occupancy of the leased premises.
As used herein, the following terms shall have the following meanings:
"Environmental Law" - The Comprehensive Environmental Response, Compensation and
Liability Act, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. (S)9601 et seq.; the Resource Conservation and Recovery Act, 42
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U.S.C. (S)6901 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
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(S)1802 et seq.; the Toxic Substances Control Act, 15 U.S.C. (S)2601 et seq.;
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the Federal Water Pollution Control Act, 33 U.S.C. (S)1251 et seq.; the Clean
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Xxxxx Xxx, 00 X.X.X. (X)0000 et seq.; the Clean Air Act, 42 U.S.C. (S)7401 et
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seq.; the Minnesota Environmental Response and Liability Act, Minn. Stat. Chap.
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115B; the Minnesota Petroleum Tank Release Cleanup Act, Minn. Stat. Chap. 115C;
and any other federal, state, county, municipal or local statute, law, ordinance
or regulation which relates to or deals with human health or the environment,
all as may from time to time be amended or subsequently enacted.
"Hazardous Substances" - Asbestos, ureaformaldehyde, polychlorinated biphenyls,
nuclear fuel or material, chemical or medical waste, radioactive material,
explosives, known carcinogens, petroleum products and by-products and any other
dangerous, toxic or hazardous pollutants, contaminants, chemicals, materials or
substances listed or identified as such in, or regulated by, any Environmental
Law.
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Tenant covenants and agrees with Landlord that Tenant shall not use, or
permit the use of, the leased premises for the handling, storage,
transportation, manufacture, release or disposal of any Hazardous Substances,
except for Hazardous Substances of such types and in such quantities as normally
used in Tenant's business as specified in this Article, which are kept and used
in compliance with all Environmental Laws. In addition, the Tenant shall not
install or maintain, or permit the installation or maintenance of, any above-
ground or underground storage tanks for the storage of petroleum, petroleum by-
products or other Hazardous Substances in, about or under the leased premises
unless (i) the Tenant has obtained the prior written consent of the Landlord for
such installation and maintenance and (ii) the Tenant installs and maintains
such above-ground or underground storage tanks in compliance with all applicable
Environmental Laws. Upon the occurrence of an event of default hereunder or if
the Landlord receives information which leads the Landlord, in its reasonable
discretion, to believe that a Hazardous Substance is present on or is being
handled, stored, transported, manufactured, released or disposed of in, on or
about the leased premises, except as permitted above, the Landlord may, at its
option, through its employees, agents or independent contractors, enter upon the
leased premises and perform, at the Tenant's expense, environmental tests
(including core drilling), studies, investigations and reports from a reputable
environmental consultant chosen by Landlord. If any such environmental reports
indicates any presence, handling, storage, transportation, manufacture, release
or disposal of Hazardous Substances in, on or about the leased premises, except
as permitted above, the Landlord may require the Tenant, at the Tenant's
expense, to refrain from and take remedial action with respect to any such
presence, handling, storage, transportation, manufacture, release or disposal to
the satisfaction of the Landlord. The Tenant shall immediately notify the
Landlord in writing of any claim, investigation, administrative proceeding,
litigation, regulatory hearing or request or demand for remedial or response
action or for compensation which may be proposed, threatened or pending,
alleging the presence, handling, storage, transportation, manufacture, release,
disposal or improper handling of Hazardous Substances in, on or about the leased
premises not permitted hereby. The Landlord shall have the right, but not the
obligation, to join and participate in any such investigation, administrative
proceeding, litigation, regulatory hearing or other action, and Tenant shall pay
upon demand its attorneys' fees and expenses in connection therewith. The
Tenant shall not take any remedial or response action or enter into any
settlement or other compromise with respect to any claim, investigation,
administrative proceeding, litigation, regulatory hearing or request or demand
for remedial or response action or for compensation without prior written notice
to and consent by Tenant.
Tenant shall defend, indemnify and hold Landlord harmless from any and all
claims, actions, damages, costs, expenses and liability suffered or incurred or
paid by or asserted against Landlord, including but not limited to reasonable
attorneys fees incurred in the defense of such claims and actions, whether for
cleanup or other response costs or for damage to property, personal injury or
death, and whether to public agencies or authorities or to private persons (i)
arising from or with respect to acts or practices of Tenant occurring prior to
or after the date hereof in violation of any Environmental Law, or (ii)
resulting from the presence on or about the leased premises or the release from
or onto the leased premises of any Hazardous Substances occurring during the
term of this Lease. The Tenant's liability hereunder shall not be limited to
the extent of insurance carried by or provided by the Tenant or subject to any
exclusions from coverage in any insurance policy.
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The covenants and obligations of Tenant contained in this Article shall
survive expiration or earlier termination of the term of this Lease.
ARTICLE 8. UTILITIES. Tenant will pay or cause to be paid when due all
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charges for gas, water, sewer, electricity, telephone and other utilities and
services used, rendered or supplied to, upon or in connection with the leased
premises, and Landlord shall have no responsibility to supply the same. Without
limiting Tenant's general duty to maintain and repair, Tenant shall maintain in
good order and condition during the term and any renewal term of this Lease all
pipes, wires, conduits, boilers and other equipment for the provision of utility
services to the leased premises.
ARTICLE 9. INSURANCE.
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(a) Public Liability. At all times during the term and any renewal term of
this Lease, Tenant shall keep in full force and effect at its expense a policy
or policies of commercial general liability insurance with respect to the leased
premises and the business of Tenant and any subtenant, licensee or
concessionaire, with companies licensed to do business in the State of
Minnesota, in which both Tenant and Landlord shall be named as insureds and
adequately covered under reasonable limits of liability not less than $2,000,000
general liability aggregate and $1,000,000 per occurrence. Such limits of
liability shall be adjusted as of each fifth anniversary of the commencement
date of this Lease according to the formula stated in Article 2 above. Tenant
shall furnish Landlord with certificates or other acceptable evidence that such
insurance is in effect, which evidence shall state that Landlord shall be
notified in writing thirty (30) days prior to cancellation, material change or
renewal of insurance.
(b) Hazard Insurance. At all times during the term and any renewal term of
this Lease, Tenant shall keep in full force and effect a policy of Standard
Hazard Insurance, with companies licensed to do business in the State of
Minnesota, covering all improvements on the property in the amount of their full
insurable replacement value, naming both Landlord and Tenant as insureds, but
payable only to Landlord and containing a loss payable clause as required by any
mortgagees of the leased premises; and shall furnish Landlord and all such
mortgagees with certificates or other acceptable evidence that such insurance is
in effect, which evidence shall state that Landlord and all such mortgagees
shall be notified in writing thirty (30) days prior to cancellation, material
change or renewal of such insurance. In the event any mortgagee of the leased
premises requires an escrow account to be maintained for the payment of hazard
insurance premiums, Tenant shall fund and make monthly or other periodic
payments to such an escrow account, all as may be required by such mortgagee.
Any funds held in such escrow account in excess of Tenant's accrued liability
under this Article shall be the property of Tenant and purchased by Landlord
upon expiration or termination of this Lease. Tenant may separately or under the
same policy insure any trade fixtures, equipment, supplies and other personal
property owned by Tenant and located upon the leased premises.
(c) Waiver of Subrogation. To the extent such waiver does not void or
diminish the coverage under any policy, Landlord and Tenant hereby waive any
rights each may have against the other on account of any loss or damage
occasioned to Landlord or Tenant, as the case may be, or their respective
property, to the extent such loss or damage is covered by insurance carried
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by either Landlord or Tenant or may be insured (regardless of whether coverage
is actually in effect) under Standard Hazard Insurance.
ARTICLE 10. NON-LIABILITY; COVENANTS TO HOLD HARMLESS. Landlord shall be
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held harmless by Tenant from any liability for damages to any person or property
in or upon the leased premises and the sidewalks adjoining same, including the
property of Tenant and its employees and all persons in the building at its or
their invitation. All property kept, stored or maintained in the leased
premises shall be so kept, stored or maintained at the sole risk of Tenant.
Tenant agrees to make payment when due for any labor, services, materials,
supplies or equipment furnished or alleged to have been furnished to Tenant in
or about the leased premises which may be secured by any mechanic's,
materialmen's or other lien against the leased premises or the Landlord's
interest therein and will cause each such lien to be discharged at the time
performance of any obligation secured thereby matures; provided that Tenant may
contest such lien by appropriate proceedings which stay the enforcement thereof,
upon providing reasonable assurances or security to Landlord that Tenant will
pay the amount secured by such lien if found to be valid, but if such lien is
reduced to final judgment and if such judgment or process thereon is not stayed,
or if stayed and said stay expires, then and in such event Tenant shall
forthwith pay and discharge said judgment. Landlord shall have the right to
post and maintain on the leased premises notice of nonresponsibility under the
laws of Minnesota.
ARTICLE 11. EMINENT DOMAIN.
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(a) Entire Premises. If substantially all of the leased premises shall be
taken under the power of eminent domain then the term of this Lease shall cease
as of the day possession shall be taken and the rent shall be paid up to that
day with a proportionate refund by Landlord of such rent as may have been paid
in advance.
(b) Partial Taking. If more than twenty percent (20%) of the floor space
in the building or buildings located on the leased premises shall be taken under
the power of eminent domain, both Landlord and Tenant shall have the right to
terminate this Lease as of the day possession shall be taken by notice to the
other party given within ten (10) days after possession is so taken. If the
unexpired portion of the term or any renewal term of this Lease shall be two (2)
years or less at the date of taking of any portion of the building or buildings
located on the leased premises, Landlord shall have the right to terminate this
Lease as of the day possession shall be taken by like notice to Tenant. If more
than one third (1/3) of the parking area in the leased premises is taken under
the power of eminent domain, Tenant shall have the right to terminate this Lease
as of the day possession shall be taken by like notice to Landlord, unless
Landlord shall provide, on or before the day possession shall be taken, a
reasonably equivalent substitute parking area. Tenant shall be allowed a
reasonable time not to exceed thirty (30) days after any such termination to
vacate the remainder of the leased premises, and rent shall be paid up to the
day possession shall be taken or the day Tenant vacates the remainder of the
leased premises, whichever is later.
(c) Continuation of Lease. In the event this Lease is not terminated
pursuant to paragraphs (a) or (b) of this Article, all the terms of this Lease
shall continue in effect, except that the base rent shall be reduced in
proportion to the reduction in floor space in the building or
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buildings located on the leased premises as a result of the taking, and Landlord
shall, at its own cost and expense, make all necessary repairs or alterations to
the basic building or buildings, exterior and interior work to be in conformance
with the then existing architectural design of the improvements so as to
constitute the remaining premises a complete architectural unit.
(d) Damages. In any event all damages awarded for such taking under the
power of eminent domain, whether for the whole or a part of the leased premises,
shall belong to and be the property of Landlord whether such damages shall be
awarded as compensation for diminution in value to the leasehold or to the fee
of the premises; provided, however, that Landlord shall not be entitled to any
award made to Tenant for relocation benefits provided by M.S.A. Section 117.52
or similar successor statute, for "going concern" value of its business, loss of
business, fair value of, and cost of removal of stock and fixtures or for
temporary requisition of the use or occupancy of the leased premises or a part
thereof, which shall belong to Tenant.
(e) Definition. The term "eminent domain" shall include the exercise of
any similar power and any purchase or other acquisition in lieu of condemnation.
ARTICLE 12. DAMAGE.
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(a) Partial or Total Destruction. In case the leased premises shall be
partially or totally destroyed by fire or other casualty insurable under
Standard Hazard Insurance so as to become partially or totally untenantable, the
same, unless Landlord or Tenant shall terminate this Lease as hereinafter
provided, shall be repaired or rebuilt as quickly as practicable at the cost of
Landlord, and the base rent shall xxxxx during the period of repair in
proportion to the portion of the floor space in the building or buildings
located on the leased premises that is untenantable or unfit for use by Tenant
in its business.
(b) Extensive Damage; Election. If the building or buildings located on
the leased premises shall be destroyed or damaged by fire or other casualty
insurable under Standard Hazard Insurance, so as to become wholly untenantable,
and:
1. the leased premises cannot be repaired or restored within one hundred
eighty days (180) after such damage or destruction; or
2. the unexpired portion of the term or any renewal term of this Lease is
two (2) years or less at the date of the damage;
then either Landlord or Tenant may terminate this Lease as of the date of such
destruction or damage by giving written notice to the other party of such
election within thirty (30) days after such damage or destruction.
ARTICLE 13. SURRENDER; HOLDING OVER. On the last day of the term or any
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renewal term hereof or on the sooner termination thereof, Tenant shall peaceably
surrender the leased premises in good order, condition and repair, broom-clean,
fire and other casualty insurable under Standard Hazard Insurance and reasonable
wear and tear only excepted. Tenant shall repair any damage to the leased
premises caused by removal of Tenant's trade fixtures or equipment. Any of
Tenant's property not removed on the last day of the term or any renewal term
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hereof or on the sooner termination thereof, shall be deemed abandoned. In the
event Tenant remains in possession of the leased premises after the expiration
of the term and any renewal term of this Lease without the execution of a new
lease but with the acquiescence of Landlord, it shall be deemed to be occupying
said premises as a Tenant from month-to-month, subject to all the conditions,
provisions and obligations of this Lease insofar as the same can be applicable
to a month-to-month tenancy. The period of such month-to-month tenancy shall be
considered a renewal term of this Lease.
If Tenant desires to lease the leased premises after the expiration of the
term and any renewal term of this Lease, Tenant will notify Landlord of Tenant's
desire to enter into a lease of the leased premises at least six (6) months
prior to the expiration of the term or the renewal term, as the case may be.
ARTICLE 14. DEFAULT; REMEDIES.
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(a) Default. The occurrence of any of the following shall constitute an
event of default under this Lease:
1. Tenant shall have failed to pay any installment of base rent to
Landlord when the same shall be due and payable; or
2. Tenant shall have failed to keep in full force and effect the
insurance policies required by Article 9 above or shall have failed to
pay taxes and special assessments when due as required by Article 4
above; or
3. Tenant shall have failed to comply with any other provision of this
Lease, and shall not have cured such failure within thirty (30) days
after Landlord, by written notice, has informed Tenant of such
noncompliance; provided, however, in the case of a default which
cannot be cured, with due diligence, within a period of thirty (30)
days, Tenant shall have such additional time to cure such default as
may be reasonably necessary, provided that Tenant proceeds promptly
and with due diligence to cure such default after receipt of said
notice; or
4. Tenant shall have filed a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee for it
or its property, or any similar petition, or shall have made an
assignment for the benefit of creditors, or an order for relief shall
have been entered in any proceeding under the federal Bankruptcy Code
in which Tenant is named as the debtor; or
5. Any involuntary petition of the type or similar to those referred to
in Paragraph 4 of this Subsection (a) shall have been filed against
Tenant, and shall not be vacated or withdrawn within sixty (60) days
after the date of the filing thereof; or
6. Tenant shall have abandoned the leased premises, which shall be
conclusively presumed if Tenant shall vacate the premises for thirty
(30) days without giving written notice of its intent to return to
possession of the leased premises.
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(b) Remedies. Whenever any event of default shall have occurred and be
subsisting, Landlord may elect either:
1. To cancel and terminate this Lease; or
2. To reenter and take possession of the leased premises, and terminate
Tenant's right to possession of the leased premises, without
terminating this Lease or any of Tenant's obligations for the balance
of the term of this Lease.
Landlord may at any time elect to terminate this Lease despite a prior election
to exercise its remedies under Paragraph 2 above. In the event Landlord
exercises its remedies under Paragraph 2 above, it may remove all persons and
property from the leased premises and store such property at the cost of and for
the account of Tenant, may make alterations and repairs and redecorate the
premises to the extent deemed by Landlord necessary or desirable, and may relet
the premises, or any part thereof, for the account of Tenant, to any person,
firm or corporation, other than Tenant, for such rent, for such time and upon
such terms as Landlord, in Landlord's sole discretion, shall determine; but
Landlord shall not be required to accept any tenant offered by Tenant or to
observe any instruction given by Tenant concerning such reletting. Any rent and
other amounts received by Landlord upon such reletting shall be applied first to
the costs and expenses of Landlord in regaining possession of the leased
premises, storing property removed from the premises, making alterations or
repairs or redecorating the leased premises, and reletting the premises,
including, without limitation, brokerage and reasonable attorneys fees, then to
the rentals and other obligations of Tenant under this Lease, and any surplus
shall be paid to Tenant.
In the event Landlord elects to terminate this Lease, all base rent and
payments for hazard insurance premiums and taxes (excluding special assessments)
for the balance of the term or any renewal term of this Lease shall be
immediately due and payable to Landlord, without credit for any subsequent
reletting by Landlord, provided that all such payments shall be discounted from
the unaccelerated due dates to present value on the date of termination, using a
discount factor of five percent (5%), and such accelerated payments shall bear
interest from the date of termination to the date actually paid at the rate of
ten percent (10%) per annum. For purposes of making this calculation, payments
for hazard insurance premiums shall be presumed to remain the same as the last
annual hazard insurance premium paid, and to be due and payable on each
anniversary of said last hazard insurance premium payments and payments for
taxes and installments of special assessments shall be presumed to remain the
same as the last semiannual payment of taxes and installments of special
assessments, and to be due and payable semi-annually on May 15 and October 15 of
each year.
ARTICLE 15. PRIOR LEASE. This Lease supersedes the existing lease between
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Landlord and Tenant with respect to the leased premises (the "Prior Lease"),
which shall have no further force or effect as of the date hereof, except for
Tenant's continuing obligation to pay rent and perform its obligations which
accrued under the Prior Lease prior to the date hereof which shall continue in
effect until such rent has been paid and such obligations performed.
ARTICLE 16. NOTICES. Any notice required or permitted under this Lease
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shall be deemed sufficiently given or served when personally delivered (in
person, by commercial courier
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service, by facsimile with confirmed transmission, or otherwise) or forty-eight
(48) hours after mailed by registered or certified mail to Tenant at the address
of the leased premises and to Landlord at the address then fixed for the payment
of rent, and either party may by like written notice at any time designate a
different address to which notices shall subsequently be sent.
ARTICLE 17. GENERAL. This Lease does not create the relationship of
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principal and agent or of partnership or of joint venture or of any association
between Landlord and Tenant, the sole relationship between Landlord and Tenant
being that of Landlord and Tenant. One or more waivers of any default of Tenant
by Landlord shall not be construed as a waiver of a subsequent breach of the
same covenant, term or condition. The consent to or approval by Landlord of any
act by Tenant requiring Landlord's consent or approval shall not waive or render
unnecessary Landlord's consent to or approval of any subsequent similar act by
Tenant. Each term and each provision of this Lease performable by Tenant shall
be construed to be both a covenant and a condition. The marginal or topical
headings of the several articles, paragraphs and clauses are for convenience
only and do not define, limit or construe the contents of such articles,
paragraphs or clauses. All preliminary negotiations and all prior written
agreements regarding the subject matter of this Lease (including, without
limitation, the Prior Lease) are superseded and merged into and incorporated in
this Lease. The laws of the State of Minnesota shall govern the validity,
performance and enforcement of this Lease. The terms, covenants and conditions
hereof shall be binding upon and inure to the benefit of the successors in
interest and assigns of the parties hereto.
ARTICLE 18. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant
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that upon Tenant paying the rent and performing all of the terms and conditions
on Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the premises hereby leased, subject, nevertheless, to the terms and
conditions of this Lease.
ARTICLE 19. SUBORDINATION. Tenant agrees that its interest in the leased
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premises is and shall be subordinate to any mortgages that may hereafter be
placed upon said premises and to any and all advances to be made thereunder, and
to the interest thereon and all renewals, replacements and extensions thereof,
provided the mortgagee named in said mortgages shall agree not to disturb
Tenant's occupancy under this Lease in the event of foreclosure if Tenant is not
in default beyond applicable periods of grace. Tenant agrees to execute such
documents as may be reasonably required by such mortgagee to confirm the same.
In the event that any mortgagee elects to have the Lease a prior lien to its
mortgage, then and in such event upon such mortgagee notifying Tenant to that
effect, this Lease shall be deemed prior in lien to the said mortgage, whether
this Lease is dated prior to or subsequent to the date of said mortgage.
ARTICLE 20. ASSIGNMENT AND SUBLETTING. Landlord may freely transfer the
--------------------------------------
leased premises, subject to this Lease, and/or assign its rights under this
Lease. Upon any transfer of the leased premises, subject to this Lease,
Landlord shall be relieved of all of its obligations under this Lease provided
the transferee assumes such obligations in writing. Tenant shall not assign
this Lease or sublease all or part of the leased premises without the prior
written consent of Landlord; provided that Tenant shall have the right to assign
its interest under this Lease one time and one time only in connection with the
sale or transfer of all or substantially all the assets of Tenant including all
or substantially all of Tenant's assets located at the leased premises.
10
ARTICLE 21. MEMORANDUM OF LEASE. The parties agree not to record or
--------------------------------
register this Lease, but the parties shall execute on the date hereof two (2)
copies of the Memorandum of Lease attached hereto as Exhibit B, and either party
may record or register said Memorandum of Lease.
ARTICLE 22. OPTION TO PURCHASE. If, during the term of this Lease or
-------------------------------
during any tenancy after the end of such term (otherwise than pursuant to an
agreement which supersedes this Lease), the Tenant shall sell substantially all
of its assets, or if substantially all of the stock of the Tenant is sold, the
Tenant, or its assigns, shall have the option to purchase the leased premises.
Such option shall be exercised by written notice to the Landlord and shall
terminate on the earlier of (i) one year after the closing of any such sale, or
(ii) the date when the Tenant (or any assignee of the Tenant's interest under
this Lease) no longer occupies the leased premises. The purchase price shall be
the fair market value of the leased premises as then agreed upon by the Landlord
and the Tenant or, if not so agreed upon, as determined by appraisal. The
appraisal shall be conducted by an independent appraiser satisfactory to the
Landlord and the Tenant or, in the event that a single independent appraiser
cannot be agreed upon within thirty (30) days of a demand for appraisal, the
Landlord and the Tenant shall each select an independent appraiser who is
experienced in appraising similar property. If the Landlord and the Tenant are
not able to agree upon the qualification of the appraiser as so selected by the
other in accordance with the preceding sentence, than the senior judge of the
District Court of the county in which the leased premises is located shall
select both of the appraisers. The appraisers shall each render a written
report within ninety (90) days after the selection of the second such appraiser,
and the purchase price shall be the arithmetic mean of the value determined by
such appraisers or, in the event that one appraiser is agreed upon, the purchase
price shall be the value as determined by such single appraiser. The reasonable
fees of the appraiser (or both appraisers if two are selected) shall be shared
equally by the Landlord and the Tenant unless they shall otherwise agree. In
determining the value of the leased premises, the rent and other terms of this
Lease shall be ignored. The purchase price as so determined shall be paid, in
cash, within thirty (30) days after the report of the appraisers. Upon payment
of the purchase price, Landlord shall convey the leased premises to Tenant or
its assigns by general warranty deed free and clear of all monetary liens and
encumbrances and free and clear of all other easements, restrictions, covenants
or encumbrances except any easements, restrictions, covenants or other
encumbrances of record on the date hereof. If the Tenant fails to pay the
purchase price as so determined within such thirty (30) day period, the Tenant
shall be deemed to have not effectively exercised its option and all of the
Tenant's rights to purchase the leased premises under this Article shall be
terminated and of no further force or effect without notice or any action on the
part of the Landlord. Tenant's option to purchase under this Article is hereby
assigned and set over to Xxxxxx X. Xxxxx, and Xxxxxx X. Xxxxx shall have the
exclusive right to purchase the leased premises on the terms and conditions set
forth in this Article during the term of the option herein granted.
11
IN WITNESS WHEREOF, the Landlord and the Tenant have caused this Lease to
be executed as of the day and year first above written.
BX PROPERTIES
By______________________________________________
Xxxxxxxx X. Xxxx, Partner
And_____________________________________________
Xxxx X. Xxxxx, Partner
NORTH STAR PLATING COMPANY
By______________________________________________
Its_______________________________________
[SIGNATURE PAGE TO BUILDING LEASE BETWEEN
BX PROPERTIES AND
NORTH STAR PLATING COMPANY]
2021668
12
EXHIBIT A
TO
BUILDING LEASE
LEGAL DESCRIPTION OF LEASED PREMISES
Xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxxxxxx Xxxx, except the South 250 feet thereof,
according to the map or plat thereof on file and of record in the Office of the
Registrar of Titles in and for Crow Wing County, Minnesota.
EXHIBIT B
TO
BUILDING LEASE
MEMORANDUM OF LEASE
THIS AGREEMENT, Made and entered into as of the 2/nd/ day of January 1995,
by and between BX PROPERTIES, a Minnesota general partnership (hereinafter
referred to as "Landlord"), and NORTH STAR PLATING COMPANY, a Minnesota
corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H :
WHEREAS, the parties have this day entered into that certain Building
Lease, wherein Landlord has leased to Tenant certain property located in Crow
Wing County, Minnesota, described in Exhibit A attached hereto, which premises
are hereinafter referred to as the "leased premises".
NOW, THEREFORE, in consideration of the mutual covenants contained in said
Lease and for other good and valuable consideration, Landlord hereby leases to
Tenant, upon the terms and conditions (including an option to purchase in favor
of the Tenant or its assignees) and for the rent set forth in the Lease, which
is hereby incorporated herein and made a part hereof, the leased premises, for a
term of ten (10) years from the date hereof.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and
year first above written.
BX PROPERTIES
By______________________________________________
Xxxxxxxx X. Xxxx, Partner
And_____________________________________________
Xxxx X. Xxxxx, Partner
NORTH STAR PLATING COMPANY
By______________________________________________
Its_______________________________________
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 2/nd /day of
January, 1995, by Xxxxxxxx X. Xxxx and Xxxx X. Xxxxx, partners of BX PROPERTIES,
a Minnesota general partnership, on behalf of the partnership.
----------------------------------------------------
Notary Public
(Notarial Seal)
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 2/nd /day of
January, 1995, by Xxxxxx X. Xxxxx, the President of NORTH STAR PLATING COMPANY,
a Minnesota corporation, on behalf of the corporation.
----------------------------------------------------
Notary Public
(Notarial Seal)
THIS INSTRUMENT DRAFTED BY:
XXXXXXXXXX & XXXXX, P.A.
1100 International Centre
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
2021668
2
EXHIBIT A
TO
MEMORANDUM OF LEASE
LEGAL DESCRIPTION OF LEASED PREMISES
Xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxxxxxx Xxxx, except the South 250 feet thereof,
according to the map or plat thereof on file and of record in the Office of the
Registrar of Titles in and for Crow Wing County, Minnesota.
