STANDARD COMMERCIAL LEASE
ARTICLE 1. BASIC LEASE TERMS
1.1 Parties. This lease agreement ("Lease") is entered into this 18th
day of January, 1995 by and between Xxxxxxxx Development Co., a Minnesota
corporation ("Landlord") and Now Technologies, Inc., a Minnesota corporation
("Tenant").
1.2 Premises. In consideration of the rents, terms, provisions and
covenants of this Lease, Landlord hereby leases, lets and demises to Tenant the
following described premises ("Premises") as illustrated on Exhibit A attached
hereto: approximately 69,000 sq. ft. of warehouse space and office space located
at 0000 Xxxx Xxx Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 (`Building"), as legally
described on Exhibit B attached hereto.
1.3 Term. Subject to and upon the conditions set forth herein, the term
of this Lease shall commence on July 1, 1997 (the "Commencement Date") and shall
terminate thirty-eight months (38) months thereafter on August 31, 2000 unless
sooner terminated as hereinafter provided.
1.4 Base Rent. Base Rent is:
Month Monthly Base Rent
7/1/97 - 8/31/2000 $24,400.00
1.5 Addresses.
Landlord's Address: Tenant's Building Address:
c/x Xxxx Development Company, Inc. Now Technologies, Inc.
00000 00xx Xxxxxx Xxxxx 0000 Xxxx Xxx Xxxxxxxx Xxxx
Xxxxx X Xxxxxxxxxxx, XX 00000
Xxxxxxxx, XX 00000
1.6 Permitted Use. Office, production, storage, receiving and shipping.
1.7 Security Deposit. $19,000.00. Landlord shall initially look to
Globelle for recovery of any portion of the security deposit remaining from that
certain Sublease Agreement by and between Tenant and Globelle and thereafter. If
there remains a deficiency. Tenant shall pay Landlord an amount sufficient to
restore the security deposit to $19,000.
1.8 Pro Rate Share. 100% subject to adjustment as provided in Section
2.2 hereof.
ARTICLE 2. RENT
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 of rent shall be due and payable on July 1, 1997 of this
Lease by Tenant for the first month's rent and a like 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 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, this Lease shall not be void or voidable, nor shall Landlord be liable to
Tenant 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.
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
and/or project of which the Premises are a part. Landlord may invoice Tenant
monthly for Tenant's pro rata share of the estimated operating expenses for each
calendar year, which amount shall be adjusted from time-to-time by Landlord
based upon anticipated operating expenses. Within six (6) months following the
close of each calendar year, Landlord shall provide Tenant an accounting showing
in reasonable detail all 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 the 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 provision 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 1.8
shall 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 of which the Premises are a part, including, but not
limited to, the following: maintenance, repair and replacement costs;
electricity, fuel, water, sewer, gas and other common Building utility charges;
signage; equipment used for maintenance and operation of the Building; security
charges; security, window washing and janitorial services; trash and snow
removal; landscaping and pest control; management fees not to exceed three
percent (3%) of gross rents, wages and benefits payable to employees of Landlord
whose duties are directly connected with the operation and maintenance of the
Building; all services, supplies, repairs, replacements or other expenses for
maintaining and operating the Building or project including parking and common
areas; improvements made to the Building which are required under any
governmental law or regulation that was not applicable to the Building at the
time it was constructed; installation of any device or other equipment which
improves the operating efficiency of any system within the Premises and thereby
reduces operating expenses by an amount equal to or exceeding the cost of any
such device or equipment over the remaining Lease term; all other expenses which
would generally be regarded as operating, repair, replacement and maintenance
expenses; all real properly taxes and installments of special assessments,
including dues and assessments by means of deed restrictions and/or owner's
associations which accrue against the Building during the term of this Lease and
legal fees incurred in connection with actions to reduce the same; and all
insurance premiums Landlord is required to pay or deems necessary to pay,
including fire and extended coverage, rent loss and public liability insurance,
with respect to the Building.
2.4 Late Payment Charge. Other remedies for nonpayment of rent
notwithstanding, if the monthly rental payment or any other payment due from
Tenant to Landlord is not received by Landlord on or before the fifth (5th) day
of the month for which the rent is due, a late payment charge of three percent
(3%) of such past due amount shall become due and payable in addition to such
amounts owed under this Lease.
2.5 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 Premises and causes an increase in such
premiums, then Tenant shall pay as additional rent the amount of such increase
to Landlord.
2.6 Security Deposit. The security deposit set forth in Section 1.7
shall be held by Landlord for the performance of Tenant's covenants and
obligations under this Lease, it is being expressly understood that the security
deposit shall not be considered an advance payment of rental or a measure of
Landlord's damage in case of default by Tenant. Upon the occurrence of any event
of default by Tenant or breach by Tenant of Tenant's
2
covenants under this Lease, Landlord may, from time to time, without prejudice
to any other remedy, use the security deposit to the extent necessary to make
good any arrears of rent, or to repair any damage or injury, or pay any expense
or liability incurred by Landlord as a result of the event of default or breach
of covenant, and any remaining balance of the security deposit shall be returned
by Landlord to Tenant upon termination of this Lease or on August 31, 2000,
whichever event occurs sooner. If any portion of the security deposit is so used
or applied, Tenant shall upon ten (10) days written notice from Landlord,
deposit with Landlord by cash or cashier's check an amount sufficient to restore
the security deposit to its original amount.
2.7 Holding Over. 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 1.25 times the
base rent for the initial three (3) months of such holdover period and 1.5 times
the base rent thereafter 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.
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 1.6.
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, use any
apparatus or machine which makes undue noise or causes vibration in any portion
of the Building or otherwise interfere with, annoy or disturb any other lessee
in its normal business operations or Landlord in its management of the Building.
Tenant shall neither permit any waste on the Premises nor allow the Premises to
be used in any way which would in the option 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 project except those signs submitted to
Landlord in writing and approved by Landlord in writing.
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 rules and regulations of the Building adopted by Landlord in any
reasonable manner as may be deemed advisable for the safety, care, cleanliness,
preservation of good order and operation or use of the Building or the Premises.
All changes and amendments to the 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. Notwithstanding any provision to the contrary, no rule or
regulation adopted by Landlord shall substantially hinder the permitted use of
the Premises as set forth in Section l.5 or this Lease.
3.4 Warranty of Possession. Landlord warrants that it has the right and
authority to execute this Lease, and Tenant, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in this
Lease, shall have possession of the Premises during the full term of this Lease
as well as any extension or renewal thereof. Landlord shall not be responsible
for the acts or omissions of any other lessee or third party that may interfere
with Tenant's use and enjoyment of the Premises.
3.5 Right of Access. Landlord or its authorized agents shall, with at
least four (4) hours notice, have the right to enter the Premises to inspect the
same, to show the Premises to prospective purchaser or lessees, 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. Landlord shall at all times
have and retain a key with which to unlock all of the doors in, upon and about
the Premises. Landlord shall have the right to use any and all means
3
which Landlord may deem proper to open any door in an emergency without
liability therefor. Tenant shall permit Landlord to erect, use, maintain and
repair pipes, cables, conduits, plumbing, vents and wires in, to and through the
Premises as often and to the extent that Landlord may now or hereafter deem to
be necessary or appropriate for the proper use, operation and maintenance of the
Building.
ARTICLE 4. UTILITIES AND SERVICE
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. Such utilities shall be separately metered for the Premises and any
space not occupied by Tenant.
4.2 Theft or Burglary. Landlord shall not be liable to Tenant for
losses to Tenant's property or personal injury caused by criminal acts or entry
by unauthorized persons into the Premises or the Building.
ARTICLE 5. REPAIRS AND MAINTENANCE
5.1 Landlord Repairs. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the Premises
or the Building during the term of this Lease except as are set forth in this
Section. Landlord shall maintain only the roof, foundation, parking and common
areas, the structural soundness of the exterior walls, doors, corridors, and
other structures serving the Premises, provided, that Landlord's cost of
maintaining, replacing and repairing the items set forth in this Section are
operating expenses subject to the additional rent provisions in Section 2.2 and
2.3, save and except those certain roof and parking lot repairs detailed in
Exhibit C. 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.
5.2 Tenant Repairs. Tenant shall, at all times throughout the term of
this Lease, including renewals and extensions, and at its sole expense, keep and
maintain the Premises in a clean, safe, sanitary and first class condition and
in compliance with all applicable laws, codes, ordinances, rules and
regulations. Tenant's obligations hereunder shall include, but not be limited
to, the maintenance, repair, and replacement, if necessary, of all heating,
ventilation, air conditioning, lighting and plumbing fixtures and equipment,
fixtures, motors and machinery, all interior walls, partitions, doors and
windows, including the regular painting thereof, all exterior entrances,
windows, doors and docks and the replacement of all broken glass. When used in
this provision, the term "repairs" shall include replacements or renewals when
necessary, and all such repairs made by the Tenant shall be equal in quality and
class to the original work. The Tenant shall keep and maintain all portions of
the Premises and the sidewalk and areas adjoining the same in a clean and
orderly condition, free of accumulation of dirt, rubbish, snow and ice. If
Tenant fails, refuses or neglects to maintain or repair the Premises as required
in this Lease after notice shall have been given Tenant, in accordance with this
Lease. Landlord may make such repairs without liability to Tenant for any loss
or damage that may accrue to Tenant's merchandise, fixtures or other property or
to Tenant's business by reason thereof, and upon completion thereof. Tenant
shall pay to Landlord all costs plus fifteen percent (15%) for overhead incurred
by Landlord in making such repairs upon presentation to Tenant of xxxx therefor.
5.3 Tenant Damages. Tenant shall not allow any damage to be committed
on any portion of the Premises or Building or common areas, and at the
termination of this Lease, by lapse of time or otherwise, Tenant shall deliver
the Premises to Landlord in as good condition as existed at the Commencement
Date of this Lease, ordinary wear and tear excepted. The cost and expense of any
repairs necessary to restore the condition of the Premises shall be borne by
Tenant.
ARTICLE 6. ALTERATIONS AND IMPROVEMENTS
6.1 Landlord Improvements. If construction to the Premises is to be
performed by Landlord prior to or during Tenant's occupancy, Landlord will
complete the construction of the improvements to the Premises in accordance with
plans and specifications agreed to by Landlord and Tenant, which plans and
specifications are made a part of this Lease by reference. Within seven (7) days
of receipt of plans and specifications, Tenant shall execute a copy of the plans
and specifications and, if applicable, change orders setting forth the amount of
any costs to be
4
borne by Tenant. In the event Tenant fails to execute the plans and
specifications and change order within the seven (7) day period. Landlord may,
at its sole option, declare this Lease cancelled or notify Tenant that the base
rent shall commence on the completion date even though the improvements to be
constructed by Landlord may not be complete. Any changes or modifications to the
approved plans and specifications shall be made and accepted by written change
order or agreement signed by Landlord and Tenant and shall constitute an
amendment to this Lease.
6.2 Tenant Improvements. Tenant shall not make or allow to be made any
alterations or physical additions in or to the Premises without first obtaining
the written consent of Landlord, which consent may in the sole and absolute
discretion of Landlord be denied. Any alterations, physical additions or
improvements to the Premises made by Tenant shall at once become the property of
Landlord and shall be surrendered to Landlord upon the termination of this Lease
provided, however, Landlord, at its option, may require Tenant to remove any
physical additions and/or repair any alterations in order to restore the
Premises to the condition existing at the time Tenant took possession, all costs
of removal and/or alterations to be borne by Tenant. This clause shall not apply
to moveable equipment or furniture owned by Tenant, 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 then 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 ninety (90) 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 sixty (60) days following the occurrence, and the rent shall
be abated for the unexpired portion of the Lease, effective as of the date of
the written notification.
7.2 Partial Destruction. If the Premises should be partially damaged by
fire or other casualty, and rebuilding or repairs can reasonably be completed
within ninety (90) working days from the date of written notification by Tenant
to Landlord of the destruction, and insurance proceeds are adequate and
available to Landlord for restoration, this Lease shall not terminate, and
Landlord shall at its sole risk and expense proceed with reasonable diligence to
rebuild or repair the Building or other improvements to substantially the same
condition in which they existed prior to the damage. If the Premises are to be
rebuilt or repaired and are untenantable in whole or in part following the
damage, and the damage or destruction was not caused or contributed to by act or
negligence of Tenant, its agents, employees, invitees, or those for whom Tenant
is responsible, the rent payable under this Lease during the period for which
the Premises are untenantable shall be adjusted to such an extent as may be fair
and reasonable under the circumstances. In the event that Landlord fails to
complete the necessary repairs or rebuilding within ninety (90) working days
from the date of written notification by Tenant to Landlord of the destruction.
Tenant may at its option terminate this Lease by delivering written notice of
termination to Landlord, whereupon all rights and obligations under this Lease
shall cease to exist.
7.3 Property Insurance. Landlord shall not be obligated in any way or
manner to insure any personal property (including, but not limited to, any
furniture, machinery, goods or supplies) of Tenant upon or within the Premises,
any fixtures installed or paid for by Tenant upon or within the Premises, or any
improvements which Tenant may construct on the Premises. Tenant shall maintain
property insurance on its personal property and shall also maintain plate glass
insurance. Tenant shall have no right in or claim to the proceeds of any policy
of insurance maintained by Landlord even if the cost of such insurance is borne
by Tenant as set forth in Article 2.
7.4 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, 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 employers, 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
5
policies of insurance covering all risk of direct physical loss, written notice
of the terms of the mutual waivers contained in this Section.
7.5 Hold Harmless. Landlord shall not be liable to Tenant's employees,
agents, invitees, licensees, or visitors, or to any other person, for an injury
to person or damage to property on or about the Premises caused by any act or
omission of Tenant, its agents, servants, or employees, or of any other person
entering upon the Premises under express or implied invitation by 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.
7.6 Public Liability Insurance. Tenant shall during the term hereof
keep in full force and effect at its expense a policy or policies of 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 nor 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.
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 and reasonable business
relocation expenses.
8.2 Partial Taking. If a portion of the Premises shall be taken (or 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. 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 any such assignment or sublease ever release tenant or any guarantor
from any obligation or liability hereunder. Notwithstanding anything in this
Lease to the contrary, in the event of any assignment or sublease, any option or
right of first refusal granted to Tenant shall not be assigned 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.
6
9.3 Conditions of Assignment. If Tenant desires to assign or sublet all
or any part of the Premises, it shall so notify Landlord at least thirty (30)
days in advance of the date on which Tenant desires to make such assignment or
sublease. Tenant shall provide Landlord with a copy of the proposed assignment
or sublease and such information as Landlord might request concerning the
proposed sublessee or assignee to allow Landlord to make informed judgments as
to the financial condition, reputation, operations and general desirability of
the proposed sublessee or assignee. Within fifteen (15) days after Landlord's
receipt of Tenant's proposed assignment or sublease and all required information
concerning the proposed sublessee or assignee, Landlord shall have the following
options: (1) cancel this Lease as to the Premises or portion thereof proposed to
be assigned or sublet; (2) consent to the proposed assignment or sublease, and,
if the rent due and payable by any assignee or sublessee under any such
permitted assignment or sublease (or a combination of the rent payable under
such assignment or sublease plus any bonus or any other consideration or any
payment incident thereto) exceeds the rent payable under this Lease for such
space, Tenant shall pay to Landlord all such excess rent and other excess
consideration within ten (10) days following receipt thereof by Tenant; or (3)
although such consent shall not he unreasonably withheld, Landlord may refuse to
consent to the proposed assignment or sublease, which refusal shall be deemed to
have been exercised unless Landlord gives tenant written notice providing
otherwise. Upon the occurrence of an event of default, if all or any part of the
Premises are then assigned or sublet, Landlord, in addition to any other
remedies provided by this Lease or provided by law, may, at its option, collect
directly from the assignee or sublessee all rents becoming due to Tenant by
reason of the assignment or sublease, and Landlord shall have a security
interest in all properties on the Premises to secure payment of such sums. Any
collections directly by Landlord from the assignee or sublessee shall not be
construed to constitute a novation or a release of Tenant or any guarantor from
the further performance of its obligations under this Lease.
9.4 Rights of Mortgage. Tenant accepts this Lease subject and
subordinate to any recorded mortgage presently existing or hereafter created
upon the Building and to all existing recorded restrictions, covenants,
easements and agreements with respect to the Building. Landlord is hereby
irrevocably vested with full power and authority to subordinate Tenant's
interest under this Lease to any first mortgage lien hereafter placed on the
Premises, and Tenant agrees upon demand to execute additional instruments
subordinating this Lease as Landlord may require. If the interest of Landlord
under this Lease shall be transferred by reason of foreclosure of other
proceedings for enforcement of any first mortgage or deed of trust on the
Premises. Tenant shall be bound to the transferee (sometimes called the
"Purchaser") at the option of the Purchaser, under the terms, covenants and
conditions of this Lease for the balance of the term remaining, including any
extensions or renewals, with the same force and effect as if the Purchaser were
Landlord under this Lease, and, if requested by the Purchaser, Tenant agrees to
attorn to the Purchaser, including the first mortgagee under any such mortgage
if it be the Purchaser, as its Landlord. Notwithstanding the foregoing, Tenant
shall not be disturbed in its possession of the Premises so long as Tenant is
not in default hereunder.
9.5 Tenant's Statement. Tenant agrees to furnish, from time to time,
within ten (10) days after receipt of a request from Landlord or Landlord's
mortgagee, a statement certifying, if applicable, the following: Tenant is in
possession of the Premises; the Premises are acceptable; the Lease is in full
force and effect; the Lease is unmodified; Tenant claims no present charge,
lien, or claim of 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.
In the event Landlord or Landlord's mortgagee or a third party bonafide
purchaser of the Building requests. Tenant agrees to furnish, from time to time,
within ten (10) days after receipt of a request from Landlord, a current
financial statement of Tenant, certified as true and correct by Tenant and such
financial information shall be kept confidential,
ARTICLE 10. LIEN
10.1 Uniform Commercial Code. This Lease is intended as and constitutes
a security agreement within the meaning of the Uniform Commercial Code of the
state in which the Premises are situated. Landlord, in addition to the rights
prescribed in this Lease, shall have all of the rights, titles, liens, and
interests in and to Tenant's property, now or hereafter located upon the
Premises, which may be granted a security party, as that term is defined,
7
under the Uniform Commercial Code to secure to Landlord payment of all sums due
and the full performance of all Tenant's covenants under this Lease. Tenant will
on request execute and deliver to Landlord a financing statement for the purpose
of perfecting Landlord's security interest under this Lease or Landlord may file
this Lease or a copy thereof as a financing statement. Unless otherwise provided
by law and for the purpose of exercising any right pursuant to this Section,
Landlord and Tenant agree that reasonable notice shall be met if such notice is
given by ten (10) days written notice, certified mail, return receipt requested,
to Landlord or Tenant at the addresses specified herein. Notwithstanding the
provisions of Section 10.1 of this Lease. Landlord hereby agrees that provided
no event of default has occurred, Landlord shall subordinate the security
interest upon Tenant's property hereinbefore granted to Landlord by Tenant, to
the security interest therein granted by Tenant to Tenant's lender(s) as a
condition to obtaining financing therefor, Landlord agrees to execute and
deliver to Tenant a standard form of subordination agreement within thirty (30)
days after receipt of written request therefor from Tenant or Tenant's lender.
ARTICLE 11. DEFAULT AND REMEDIES
11.1 Default by Tenant. The following shall be deemed to be events of
default ("Default") by Tenant under this Lease; (1) Tenant shall fail to pay
within five (5) days after written notice of default 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, and
the failure is not cured within thirty (30) days after written notice to Tenant;
(4) Tenant shall file a petition or if an involuntary petition is filed against
Tenant, or becomes insolvent, under any applicable federal or state bankruptcy
or insolvency law or admit that it cannot meet its financial obligations as they
become due; or a receiver or trustee shall be appointed 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 at the Building and/or project of which
the Premises are a part, except that Tenant may deposit an amount equal to one
and one-half (1 1/2) times the asserted lien with the Landlord and contest the
lien in an appropriate proceeding.
In the event that an order for relief is entered in any Lease
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 of six (6) months' rent ("Security"), to
be held (without any allowance for interest thereon) to secure Tenant's
obligations under the Lease, and (B) Tenant, or Trustee if applicable, seeks to
assign the Lease after assumption of the same, then Tenant, in addition to
providing adequate assurance described in applicable provisions of the
Bankruptcy Code, shall provide adequate assurance to Landlord of the proposed
assignee's future performance under the Lease by depositing with Landlord a sum
equal to the Security to be held (without any allowance or interest thereon) to
secure, performance under the Lease. Nothing contained herein expresses or
implies, or shall be construed to express or imply, that Landlord is consenting
to assumption and/or assignment of the Lease. Neither Tenant nor any Trustee
shall conduct or permit the conduct of any "fire", "bankruptcy", "going out of
business" or auction sale in or from the Premises.
11.2 Remedies for Tenant's Default. Upon the occurrence of a Default as
defined above Landlord may elect either (i) to cancel and terminate this Lease
and this Lease shall not be treated as an asset of Tenant's bankruptcy estate,
or (ii) to terminate Tenant's right to possession only without cancelling and
terminating Tenant's continued liability under this Lease. Notwithstanding the
fact that initially Landlord elects under (ii) to terminate Tenant's right to
possession only, Landlord shall have the continuing right to cancel and
terminate this Lease by giving three (3) days written notice to Tenant of such
further election, and shall have the right to pursue any remedy at law or in
equity that may be available to landlord.
In the event of election under (ii) to terminate Tenant's right to
possession only, Landlord may, at Landlord's option, enter into 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 obligations 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 of and for the
8
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, release 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.
Upon such reentry, Tenant shall be liable to Landlord as follows:
A. For all attorney's 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, attorney's fees, and costs of alteration and 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 Tenants right to
possession only, and notwithstanding any releasing without termination,
Landlord, at any time thereafter, may elect to terminate this Lease, and to
recover (in lieu of the amounts which would thereafter by 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, attorney's 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 the 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,
attorney's fees and interest.
11.4 Interest and Attorney's Fees. In the event of a Default by Tenant:
(i) if a monetary default interest shall accrue on any sum due and unpaid at the
rate of the lesser of eighteen percent (18%) 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.
9
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 acquiesce
to, a Default.
D. No waiver of a 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 a Default.
F. No waiver of a Default shall be effective unless it is in
writing and signed by Landlord.
ARTICLE 12. AMENDMENT AND LIMITATION OF WARRANTIES
12.1 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
12.2 Amendment. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LANDLORD AND TENANT.
12.3 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 1N
THIS LEASE.
ARTICLE 13. MISCELLANEOUS
13.1 Act of God. Landlord shall not be required to perform any covenant
or obligation in this Lease, or be liable in damages to Tenant, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
or prevented by an act of God, force majeure or by Tenant.
13.2 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
the term of 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.
13.3 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, country or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Landlord under the terms of this Lease.
Any such payment shall be paid concurrently with the payment of the rent,
additional rent, operating expenses or other charge upon which the tax is based
as set forth above.
10
13.4 Captions. The captions 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.
13.5 Notice. All rent and other payments required to be made by Tenant
shall be payable to Landlord at the address set forth in Section 1.5. All
payments required to be made by Landlord to Tenant shall be payable to Tenant at
the address set forth in Section 1.5, 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 1.3.
13.6 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.
13.7 Corporate 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.
13.8 Hazardous Substances. Tenant shall not bring or permit to remain
on the Premises or the Building any asbestos, petroleum, or petroleum products,
explosives, toxic materials, or substances defined as hazardous wastes,
hazardous materials, or hazardous substances under any federal, state, or local
law or regulation ("Hazardous Materials"), except for such hazardous material
set forth in Exhibit D. Tenant shall use, store and dispose of all such
hazardous material in accordance with all laws, orders, rules and regulations of
state, federal, municipal or other agencies or bodies having jurisdiction over
the use, storage and disposal of such 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 or (ii) the presence or any release of
any Hazardous Materials on, under, or about the Premises or the Building during
the term of the Lease. 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 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 or
earlier termination, for any reason of this Lease.
13.9 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.
13.10 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.
13.11 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 Investment Real Estate, Inc. which are the responsibility of
Xxxxxxxx Development, Co. Each party covenants that it will defend, indemnify
and hold harmless the other party from and against any loss or liability
11
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.
13.12 Notification To Tenant. Landlord hereby notifies Tenant that the
person authorized to execute this Lease and manage the Premises is Xxxx
Development Company, Inc., which has been appointed to act as the agent in
leasing management and on behalf of Landlord. Landlord reserves the right to
change the identity and status of its duly authorized agent upon written notice
to Tenant.
13.13 Exhibits. Reference is made to the following Exhibits which are
attached hereto and made apart hereof:
Exhibit A Plan of Demised Premises
Exhibit B Legal Description
Exhibit C Roof and Parking Lot Repairs
Exhibit D Hazardous Materials
12
ARTICLE 14. SIGNATURES
SIGNED effective the day and year first above written:
Landlord Tenant
------------------------------------ --------------------------------------
By: By:/s/
--------------------------------- -----------------------------------
------------------------------------ --------------------------------------
(Type Name and Title) (Type Name and Title)
STATE OF )
) ss.:
COUNTY OF )
On this ____________ day of ___________, ___, personally came before me, a
Notary Public within and for said County. __________________ and
_____________________, to me well known to be the same persons described in and
who executed foregoing instrument, and acknowledged that they executed the same
as their free act and deed.
________________________________
Notary Public
My commission expires:_____________________
STATE OF )
) ss.:
COUNTY OF )
On this ____________ day of ___________, ___, personally came before me, a
Notary Public within and for said County. __________________ and
_____________________, to me well known to be the same persons described in and
who executed foregoing instrument, and acknowledged that they executed the same
as their free act and deed.
Notary Public
__________________________________________
My commission expires:_____________________
13
Exhibit A
[GRAPHIC OMITTED]
Exhibit B
DEUTZ ALLIS BUILDING
6410 W. Old Shakopee Road
PID - 3211621420001
Legal Description
XXX 0, XXXXX 0, XXXXXXXXX 0 ADDITION
Exhibit C
The Landlord and Tenant agree that the Tenant shall have no obligation to
contribute to the costs of the following repair items to be performed by the
Landlord in additional rents due for Operating Expenses or in the Sixty Thousand
Dollars ($60,000) allowance set forth in paragraph 6.1 as amended in Amendment I
of the Lease Agreement with Landlord:
1. Re-roofing or repairs to the portion of the roof that has not yet
been re-roofed in the past three years.
2. Needed repairs to the grounds and parking lot that either are
required because of the installation of utility lines being
installed for the new building to the north of the Building or
because of deferred maintenance evidenced by potholes and cracks.
EXHIBIT D
The Sublessee hereby informs the Sublessor that it keeps on hand the following
materials which may be regarded as hazardous materials.
Material Quantity
-------- --------
Hydrogen Peroxide 30% 10 Gallon Inventory (1 gallon bottles)
Hydrochloric Acid 37% 0 -00 Xxxxxx Xxxx & 0 -0 Xxxxxx Xxxxxxx
Sulfuric Acid 96% 50 - Gallon Bottles
Ammonium Hydroxide 29% 5 - 1 Gallon Bottles
Sodium Hydroxide 55% 1 - 55 Gallon Drum
Compressor Waste Oil/Water 20 Gallons
Ethyl Lacloia 2 Gallons
Isopropyl Alcohol 6 Gallons
Misc. Detergent 4 Gallons
Windshield Washer Fluid 4 Gallons
Latex Paint 4 Gallons
Pholorosist Thinner PGMEA 10 Gallons
Comprossor Oil 2 Gallons
Hand Soap 2 Gallons
Snoop 1 Gallon
Epoxy Paint 1 Gallon
Acetone 2 Gallons
Ammonia 1 Gallon
Bleach 1/2 Gallon
Misc. Mold Release 1 Gallon
Acrylic Primer 1/2 Gallon
Paint Thinner 1 Quart
Charcoal Lighter 1 Quart
Touch-up Paint 6 Cans
Trichlorolluornnihano 1 1/2 Quart
Tricholorihana 1 Quart
Rust Remover 1 Pint
Dangraosnr 1 Quart
Glyplal 1 Quart
Misc. Paint 1 Quart
