Exhibit 10.8
COMMERCIAL LEASE AGREEMENT
THIS LEASE is dated March 25, 2004. It is between Two Oaks, LLC, a
Minnesota limited liability company (the "Landlord"), and XxxxxXxx Technologies
of Minnesota, Inc., a Minnesota corporation (the "Tenant").
R E C I T A L S
The Landlord agrees to lease to the Tenant, and the Tenant agrees to lease
from the Landlord, the Premises for the Term, at the Rent, and upon the
conditions and provision set forth in this Lease.
1. The Premises. The Premises are located at 00000 Xxxxxxx Xxxxxx Xxxxx
and 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx, and being legally described
on attached Exhibit "A."
2. Initial Term. The Initial Term of this Lease is as follows:
2.1 Commencement Date. The Commencement Date of the Initial Term of this
Lease is April 1, 2004. Any occupancy of the Premises by Tenant
prior to the Commencement Date shall be subject to all of the
conditions and provisions of this Lease other than the obligation to
pay Rent and Additional Rent, which shall be prorated monthly.
2.2 Initial Term. The Initial Term shall be a period of twelve (12)
years from the Commencement Date.
2.3 Hold Over Term. If the Tenant remains in possession of the Premises
after the expiration of the Initial Term of this Lease and has not
exercised its option to extend as provided for in Section 4, and the
Landlord accepts rent from the Tenant, a month-to-month tenancy
shall result having the conditions and provisions of this Lease,
terminable by the Landlord or Tenant at the end of any calendar
month upon at least ninety (90) days' prior notice by the
terminating party to the other.
3. Rent. During the Initial Term of this Lease, the Tenant shall pay Rent
to the Landlord at the Landlord's address, or to whomever and/or wherever the
Landlord may designate by notice to the Tenant. The amount and payment of Rent
by the Tenant to or for the benefit of the Landlord, without any right of
deduction, setoff or counterclaim on the part of Tenant, is as follows:
3.1 Base Rent. The Tenant shall pay, as Base Rent the monthly amounts
set forth below:
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Month of Term Monthly Base Rent
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1-48 $16,250
49-96 17,550
97-144 18,955
Said monthly payment shall be due and payable by Tenant in advance on the
first day of each calendar month during the term of this Lease, or any extension
or renewal thereof.
3.2 Additional Rent. The Tenant shall pay the following Additional Rent
which shall be due and payable upon the Tenant's receipt of a
statement for it except as otherwise provided:
3.2.1 Real Estate Taxes. All real estate taxes and all assessments
for special improvements and any taxes in lieu thereof which
may be levied or assessed upon the Real Property payable in
any year within the TermInitial Term and any extension
thereof. Taxes and installments of special assessments payable
during any partial year of the Initial Term and any extensions
thereof shall be prorated on a calendar year basis. At the
option of the Landlord, this Additional Rent shall be due and
payable with the Base Rent in advance in equal monthly
installments equal to one-twelfth (1/12th) of such taxes and
assessments due and payable during the then calendar year.
3.2.2 Insurance. All premiums and expenses necessary for the
Landlord to obtain and maintain policies of casualty loss
insurance, comprehensive general liability insurance (the
Landlord's risk only), and commercial umbrella liability
insurance with a company or companies and having terms,
provisions, and coverage reasonably acceptable to the Landlord
in an amount or amounts reasonably acceptable to the Landlord
and naming any mortgagee of the premises as an additional
insured. At the option of the Landlord, this Additional Rent
shall be due and payable with the Base Rent in advance in
equal monthly installments equal to one-twelfth (1/12th) of
such premiums and expenses payable during the policy year.
3.2.3 Utilities. All utility charges (such as sewer, water, garbage
disposal, and refuse removal as may be provided by the
municipality, electricity, and gas) furnished to the Premises.
Unless otherwise directed by the Landlord, any utility charge
which is separately metered to the Premises shall be placed in
the name of the Tenant and paid by the Tenant directly to the
utility company.
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3.2.4 Service Contracts. Any service contract entered into by the
Landlord for the maintenance of the heating, ventilation, and
air conditioning systems located on the Premises and/or the
cleaning of sidewalks and parking areas (including snow
removal) and/or the maintenance of boulevard areas contiguous
to the Premises.
3.2.5 Other Additional Rent. Any other Additional Rent provided for
under other provisions of this Lease.
4. Option to Extend Lease Term. If Tenant is not in default under this
Lease, Tenant shall have the option to extend this lease for two (2) additional
terms of four (4) years each (each, a "Renewal Term"), upon notification to
Landlord of Tenant's intention to extend one (1) year prior to the end of the
Initial Term and the first Renewal Term. The extensions, if any, shall be upon
the same terms and conditions as set forth herein, provided, however, the Base
Rent shall be Twenty Thousand Eight Hundred Fifty Dollars ($20,850) per month
during the first renewal term and Twenty-two Thousand Nine Hundred Thirty-five
Dollars ($22,935) per month during the second renewal term.
5. Right of First Refusal. Landlord grants Tenant the following right of
first refusal subject to the following terms and conditions:
5.1 Landlord grants to Tenant the Right of First Refusal (the "Option")
to purchase the Property, upon the same terms as a bona fide offer,
except as otherwise provided in this paragraph 5.1, in the event
that Landlord receives a bona fide offer to purchase the entire
Property, if Tenant is not in default under this Lease at the time
Landlord receives such bona fide offer or, if Tenant is in default
at the time of receipt of the bona fide offer, Tenant cures such
default within the time specified for cure. Any transfer of the
Property by Landlord to any principal of Landlord or an immediate
family member of any principal, an affiliate, subsidiary, or parent
company of Landlord, or to another entity controlled by the same
principals as control Landlord, shall not trigger the Right of First
Refusal (provided, however, that as a condition of any such
transfer, the transferee shall agree to be bound by all of the terms
of this Lease, including this Section 5). The offer shall be
extended in writing to Tenant and shall contain a complete
description of the price, terms and conditions offered to Landlord
by the proposed transferee. If Tenant does not notify Landlord
within fifteen (15) days of its exercise of the Option, Landlord may
transfer its interest in the Property to the prospective purchaser
named in the third-party offer, such transfer to be made in all
material respects in accordance with the terms and conditions stated
in the third-party offer. However, if the Landlord fails to make
such transfer, the interest of the Landlord in the Premises shall
again be subject to the Right of First Refusal and the conditions
herein provided.
5.2 The Tenant shall exercise the Option by (a) giving Landlord written
notice of its intent to exercise the Option, which notice shall be
given to Landlord in accordance with Section 22 of this Lease within
fifteen (15) days from the date of Landlord's notice to Tenant; and
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(b) delivering to Landlord with such notice a cashier's or certified
check payable to Landlord in the amount of Fifty Thousand Dollars
($50,000) or such amount offered by any third party if greater than
Fifty Thousand Dollars ($50,000) (the "Xxxxxxx Money") as a good
faith deposit.
5.3 Title and Examination. Within a reasonable time after Tenant
exercises the Option, Landlord shall provide evidence of title,
which shall include proper searches covering bankruptcies, state and
federal judgments and liens, and pending special assessments in the
form of a commitment for an owner's policy of title insurance on a
current ALTA form issued by an insurer licensed to write title
insurance in Minnesota. Landlord shall pay the cost of the title
commitment, and Tenant shall pay the cost of an owner's policy,
including the entire premium for the owner and a lender, if any. The
closing date may, in Landlord's sole discretion, be extended as
necessary until Landlord is able to provide such marketable title,
but not exceed ninety (90) days from the date of any objection to
title by Tenant.
5.4 Deed. If Tenant exercises the Option, upon payment of the purchase
price for the Property, Landlord shall convey the Property to
Tenant, by general Warranty Deed, free and clear of all liens,
restrictions and encumbrances, but subject to (a) building and
zoning laws, ordinances, state and federal regulations; (b)
restrictions relating to use or improvement of the Property without
effective forfeiture provisions; (c) reservation of mineral rights
by the State of Minnesota; and (d) utility and drainage easements
which do not interfere with existing improvements.
5.5 Proration of Taxes. Tenant shall be responsible for all taxes and
special assessments as provided in this Lease.
5.6 Closing. The closing shall be held on a date that is mutually
acceptable to Landlord and Tenant and that is no more than one
hundred twenty (120) days from the date on which Tenant gave notice
of its election to exercise the Option. At the closing, Tenant shall
pay the purchase price by cashier's or certified check or by wire
transfer of funds in accordance with Landlord's wire transfer
instructions given to Tenant, less the Xxxxxxx Money.
5.7 Default. If, after exercising the Option, Tenant fails to close the
purchase transaction through no fault of Landlord, then Landlord may
cancel the contract and retain the Xxxxxxx Money as liquidated
damages for Tenant's failure to perform. Landlord shall also be
entitled to utilize any and all remedies or action at law or in
equity available to Landlord and shall be entitled to recover all
reasonable costs and attorney's fees incurred by Landlord as a
result of Tenant's failure to perform. If through the fault of
Landlord the purchase transaction fails to close, Tenant shall be
entitled to the prompt return of the Xxxxxx Money. Tenant shall also
be entitled to utilize any and all remedies or action at law or in
equity available to Tenant and shall be entitled to recover all
reasonable costs and attorney's fees incurred by Tenant as a result
of Landlord's failure to perform . However, any action by either
Landlord or Tenant must be commenced within six (6) months after
such right of action arises or shall be barred.
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6. Use of Premises. The Landlord covenants that, if the Tenant pays the
Rent and complies with the conditions and provisions set forth in this Lease,
the Tenant shall have and quietly enjoy Use of the Premises during the Term of
this Lease, subject to and together with the following restrictions, obligations
and rights:
6.1 Permitted Use. The premises may be used for the operation of tire
recycling facilities and any other lawful purpose. The Landlord
disclaims any warranty that the Premises are suitable for the
Permitted Use, and the Tenant acknowledges that the Tenant has had
full opportunity to make the Tenant's own determination as to the
suitability of the Premises, including the physical structure, the
type and level of the utilities servicing it, and the applicable
zoning category.
6.2 Specific Restrictions on Use. The Tenant shall not commit or permit
waste to occur on the Premises; nor shall the Tenant commit or
permit any act to be performed or any omission to occur on the
Premises which would be in violation of any statute, regulation or
ordinance of any governmental body, or constitute a nuisance .
6.3 Alterations and Improvements to Premises. The Tenant accepts the
Premises "As Is" and by taking possession under this Lease
acknowledges the same to be in tenantable condition and in all
respects acceptable to the Tenant without any obligation on the part
of the Landlord, or the right of the Tenant, to in any way alter or
improve the Premises, structurally or otherwise except as to those
alterations and/or improvements consented to by the Landlord prior
to being made. The Tenant shall not permit any mechanics or similar
liens to remain upon the Premises for labor or material furnished to
Tenant or claimed to have been furnished to Tenant in connection
with work of any character performed or claimed to have been
performed on the Premises, at the direction or with the consent of
Tenant, whether such work was performed or materials furnished
before or after the Commencement Date of the Term of this Lease.
6.4 Signs. The Tenant shall not place any signs, awnings, canopies,
lettering, placards, decorations or advertising media of any type
on, or visible from, the exterior of the Premises other than those
currently existing at the signing of this L ease without obtaining,
on each occasion, the prior consent of the Landlord. The
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Tenant shall remove all signs (other than those currently existing
at the signing of this Lease) at the end of the Term of this Lease
and restore the affected area to its original condition.
6.5 Maintenance. The respective obligations of the Landlord and of the
Tenant to maintain and repair the Premises are as follows:
6.5.1 Landlord Maintenance Obligations. Tenant is leasing the
Premises in their "as is" condition and Landlord shall have no
obligation to repair, maintain, or replace any portion of the
Premises.
6.5.2 Tenant Maintenance Obligations. The Tenant shall maintain and
repair, at its sole expense, the roof, the exterior of the
outside walls, and all structural members of the Premises, and
the heating, ventilation and air conditioning systems. The
Tenant shall also maintain and repair, at the Tenant's
expense, all other elements of the Premises including, but not
limited to, the interior of all walls, ceilings and floors,
the plate glass windows, the heating, ventilation, air
conditioning, electrical and plumbing systems. The Tenant
shall further provide for the cleaning of sidewalks (including
snow removal), and the maintenance of boulevard areas as are
contiguous to the Premises. The Tenant shall store all garbage
and refuse in closed containers which shall be located in the
rear delivery driveway in an area contiguous to the Premises
and not on the city sidewalk. The Tenant shall remove or cause
to be removed all such garbage and refuse from the Premises at
least once a week to the extent that removal is not provided
for by the city.
6.6 Reservation of Rights by Landlord. The Landlord and the Landlord's
agents may enter the property at reasonable hours to repair or
inspect the Premises and perform any work that the Landlord decides
is necessary without in any way affecting the obligations of the
Tenant to pay for the same. In addition, the Landlord may show the
Premises to potential tenants at reasonable hours during the last
ninety (90) days of the Term of this Lease, unless Tenant has
exercised its renewal options as described in Section 4. Except in
the case of an emergency, the Landlord shall give the Tenant
reasonable notice before entering the Premises. The Landlord shall
use reasonable efforts not to unreasonably interfere with the
conduct of the Tenant's business, but the Landlord shall in no event
be liable to the Tenant of any damages in connection with such entry
or installation.
6.7 Assignment and Subletting. The Tenant may not assign this Lease, nor
sublease any part or all of the Premises, nor permit any other
person or entity to use the Premises, without the prior written
consent of the Landlord. Any assignment or sublease made without the
Landlord's consent will not be effective and will entitle Landlord
to terminate this Lease. The Landlord may not unreasonably withhold
consent. The consent by the Landlord to any assignment shall not
constitute a waiver or release of the Tenant from the conditions and
provisions of this Lease, nor shall the collection or acceptance of
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Rent from any third person constitute acceptance of any assignment
or waiver or release of the Tenant or any transferee of any
condition or provision of this Lease. Should Tenant sell its
equipment and other assets located on the Premises as a going
concern, Tenant shall assign this Lease rather than remove the
equipment and assets to another location.
7. Surrender of Premises. The Tenant shall give the Landlord possession of
the Premises at the end of the Initial or any Renewal Term of this Lease and any
alterations and/or improvements made by the Tenant to the Premises shall become
the property of the Landlord unless the Landlord requires specific items to be
removed by the Tenant, at the Tenant's cost, in which event the Tenant shall do
so prior to the end of the Initial or any Renewal Term of this Lease and shall
repair any damage caused by the removal. When the Tenant moves out, the Tenant
shall leave the Premises in as good a condition as it was on the Commencement
Date, with the exception of reasonable wear and tear.
8. Abandoned Personal Property. When the Landlord recovers possession of
the Premises, the Landlord may consider the Tenant's personal property on or in
the Premises to have been abandoned. The Landlord may then dispose of the
personal property in any manner that the Landlord thinks is proper. The Landlord
shall not be liable to the Tenant for disposing of the personal property.
9. Default. The failure to pay the Rent when due or the material violation
of any material condition or provision of this Lease shall, after notice and a
reasonable opportunity to cure (not to exceed fifteen (15) days in the case of
failure to pay Rent when due), constitute a Default under this Lease. In the
event of a Default by the Tenant, the Landlord may exercise any one or more
rights and remedies in any order and/or combination without having made an
election of remedies, including the following: the Landlord may, but shall not
be required to, cure the default and the cost of such cure shall be paid to the
Landlord by the Tenant as Additional Rent; the Landlord may terminate this Lease
; and/or, the Landlord, , may enter upon and repossess the Premises and remove
the Tenant and all other persons and property from the Premises. Landlord
without being obligated to, may attempt to release the Premises for the account
of the Tenant, in the name of the Landlord or otherwise, for such Term and upon
such conditions and provisions as the Landlord may determine and the Landlord
may, but shall not be obligated to, collect and receive the Rent with any such
Rent being applied against the Tenant's obligations under this Lease. No
termination of this Lease or repossession of the Premises, whether with or
without the Tenant's consent, shall relieve the Tenant of the Tenant's
liabilities and obligations under this Lease. In the event of termination and/or
repossession, whether or not the Premises have been released, the Tenant shall
pay to the Landlord the Rent up to the time of the termination and/or
repossession, and, thereafter, the Tenant shall continue to pay to the Landlord
when due under the Lease (and not on an accelerated basis), as liquidated
damages for the Tenant's Default, the
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equivalent of the amount of the Rent for the unexpired portion of the Term of
this Lease, less the net proceeds, if any, of any releasing after deduction of
the Landlord's expenses in connection with the releasing including leasehold
improvements. The Tenant waives any and all rights of set off which the Tenant
may have or claim to have against the Landlord in any action taken by the
Landlord to enforce the conditions and provisions of this Lease. No act or
failure to act by the Landlord shall constitute a waiver by the Landlord of any
right, nor shall any waiver by the Landlord of a right, unless in writing,
discharge the Tenant or affect the ability of the Landlord to subsequently
enforce that right. The Landlord, as Additional Rent, shall be entitled to
reimbursement upon demand of all reasonable attorneys' fees, costs and expenses
incurred by the Landlord in connection with the Default or claimed Default under
this Lease.
10. Service and Return Check Charges. In addition to any other remedy of
the Landlord, the Tenant shall pay to the Landlord, as Additional Rent, Two
Hundred Dollars ($200) and interest at ten percent (10%) per annum on any
payment of Rent then due for each and every payment of Rent not received by the
Landlord by 5:00 p.m. on the tenth (10th) day following the day on which the
payment is due. The Tenant shall also pay, as Additional Rent, a fee of
Twenty-five Dollars ($25) for each returned check if returned for any reason not
the fault of the Landlord.
11. Performance Deposit. The Tenant agrees to deposit Sixteen Thousand Two
Hundred Fifty Dollars ($16,250) (the "Deposit"), payable one-half (1/2) in sixty
(60) days and the balance in one hundred twenty (120) days after the date
hereof, with the Landlord upon the execution of this Lease to be held by the
Landlord, without interest, as security for the full, timely and faithful
performance of the Tenant's covenants under this Lease, it being expressly
agreed that the Deposit is not an advance rental deposit or a measure of the
Landlord's damages in case of the Tenant's default. If the Tenant is in Default,
the Landlord may, without prejudice to any other remedy, use the Deposit to the
extent necessary to make good any arrears of Rent or other payments due from the
Tenant, and any other damage, injury, expense or liability caused by the
Tenant's Default; and the Tenant shall pay to the Landlord on demand the amount
so applied in order to restore the Deposit to its original amount. Although the
Deposit shall be deemed the property of the Landlord, any remaining balance of
the Deposit shall be returned by the Landlord to the Tenant after termination of
this Lease when the Landlord has determined that all of the Tenant's covenants
under this Lease have been fulfilled. Subject to the other conditions and
provisions contained in this Lease, if the Premises are conveyed by the
Landlord, the Deposit may be turned over to the Landlord's grantee, and if so,
upon written acceptance thereof by such grantee, the Tenant releases the
Landlord from any and all liability with respect to the Deposit and its
application or return.
12. The Tenant grants to the Landlord a lien and security interest under
the Uniform Commercial Code in all fixtures of Tenant now or hereafter placed on
the Premises. The Tenant agrees to execute such financing statements as the
Landlord may from time to time request in order to perfect this security
interest. The Landlord may file a copy of this Lease as a financing statement.
The Landlord, as secured party, shall be entitled to all of the rights and
remedies available to a secured party under the Uniform Commercial Code. The
Landlord's lien and security interest is and shall remain subject and
subordinate to any lien securing bona fide purchase money financing of any of
the property in question in favor of a party unaffiliated with the Tenant.
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Landlord agrees to execute such additional subordination agreements and waivers
as may be reasonably requested by any party unaffiliated with the Tenant that
has provided or provides purchase money financing to the Tenant.
13. Release and Indemnification. All persons and property on the Premises
shall be there at the sole risk of the Tenant. The Landlord (including the
officers, employees and agents of the Landlord) shall not be liable to the
Tenant, or to those claiming through or under the Tenant, for injury, death,
damage or loss to person or property regardless of the cause unless the result
of the intentional acts or gross negligence of the Landlord, and the Tenant
assumes all liability and obligation and indemnifies and saves harmless the
Landlord against all liabilities, obligations, costs and other expenses,
including reasonable attorneys' fees, which may be imposed upon, incurred by, or
asserted against the Landlord, or the Real Property by reason of, or arising out
of the Tenant's Use of the Premises.
14. Tenant's Insurance. The Tenant, at the Tenant's own cost and expense,
shall obtain and maintain during the Term of this Lease the following insurance:
(a) Comprehensive General Liability Insurance, such insurance to afford minimum
protection of not less than Two Million Dollars ($2,000,000), each occurrence
and Ten Million Dollars ($10,000,000) annual aggregate, which insurance shall
name the Tenant as a named insured, and the Landlord and any mortgagee as
additional insureds; and, (b) Business Interruption Insurance, sufficient to
cover the Tenant's obligations under this Lease. All such insurance shall be
effective under valid and enforceable policies (which may cover the Premises and
other locations), shall be issued by insurers of recognized responsibility
reasonably acceptable by the Landlord, and shall contain a provision whereby the
insurer agrees not to cancel the insurance without thirty (30) days' prior
written notice to the Landlord. On or before the commencement of the Initial
Term of this Lease, the Tenant shall furnish to the Landlord a certificate
evidencing the required insurance coverage, and renewal certificates shall be
furnished to the Landlord at least thirty (30) days prior to the expiration date
of each policy for which a certificate was previously furnished.
15. Waiver of Subrogation. The Tenant and Landlord each waives all rights
of subrogation with respect to the other party for loss or damage covered by
insurance or coverable by the insurance required in this Lease, even if such
loss or damage shall be the fault or negligence of the other party or anyone for
whom such party may be responsible
16. Condemnation. If all or any part of the Real Property is taken by
condemnation or the right of eminent domain or purchased under threat of
condemnation by any governmental authority, this Lease at the option of the
Landlord, shall terminate as of the date when the condemning authority takes
possession of the Real Property. Should this Lease not be terminated and the
Premises, or any part of the Premises, are not tenantable, Tenant's obligations
under this Lease shall be prorated or equitably abated until the Premises are
restored to a tenantable condition. The Tenant shall have no claim against the
condemning authority, the Landlord, or otherwise for any portion of the amount
that may be awarded as damages as a result of the taking, condemnation, or
purchase or for the value of any unexpired Term of this Lease; provided that the
Landlord shall not be entitled to any separate award made to the Tenant for loss
of business or costs of relocation.
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17. Damage by Fire or Other Casualty. If all or any part of the Real
Property is damaged by fire or other casualty, this Lease, at the option of the
Landlord, shall terminate. Should this Lease not be terminated by Landlord and
the Premises, or any part of the Premises, are not tenantable, Tenant may elect
to terminate this Lease upon notice to Landlord with no further liability to
Landlord for any period after such termination if Landlord has not made material
efforts to repair such damage by fire or other casualty. The Tenant shall have
no claim against the Landlord, or otherwise for any portion of the insurance
proceeds that may be payable; provided that the Landlord shall not be entitled
to any separate award made to the Tenant for loss of business or costs of
relocation payable under the Tenant's insurance.
18. Sale of the Real Property. The Landlord has the right to sell the Real
Property subject to the terms and conditions of this Lease; provided, however,
that as a condition of such sale, the purchaser shall agree to be bound by this
Lease and shall assume and carry out all of the covenants and obligations of the
Landlord in this Lease. In the event of a sale, the Landlord shall be relieved
of all of the covenants and obligations created by this Lease .
19. Subordination. This Lease is, and shall be, subordinate or superior,
at the option of the Landlord, to any mortgage or any other hypothecation for
security which has been or which hereafter may be placed by the Landlord upon
the Real Property, and that the subordination or superiority, depending on the
Landlord's election from time to time, shall be effective without any further
act by the Tenant; provided that the subordination shall be upon the express
condition that this Lease be recognized by any mortgagee, and/or their
successors or assigns, and that Tenant's right of quiet enjoyment of the
Premises and the other rights of the Tenant shall remain in full force and
effect during the Term of this Lease as long as the Tenant shall continue to
perform all of the covenants and conditions of this Lease and shall not be in
Default.
20. Attornment. In the event any proceedings are brought for the
foreclosure of any mortgage on the Real Property, or in the event of exercise of
the power of sale under any mortgage on the Real Property, the Tenant shall
attorn to the purchaser upon the foreclosure sale and recognize the purchaser as
the Landlord under this Lease.
21. Estoppel Certificate. Within ten (10) days after written request by
the Landlord, Tenant shall deliver a reasonable estoppel certificate to any
proposed mortgagee or purchaser or to the Landlord certifying that this Lease is
unmodified and in full force and effect (or stating what modifications exist)
and that there are no defenses or offsets thereto (or stating those claimed by
the Tenant). In the event Tenant fails to deliver said estoppel certificate
within ten (10) days after the request, the Tenant irrevocably appoints the
Landlord as the attorney-in-fact of Tenant to execute and deliver the estoppel
certificate; provided, however, that Tenant shall not
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be bound by, or liable for, any statements made by the Landlord which are
inconsistent with this Lease or facts as they exist at such time.
22. Notices. All consents, notices of other communications permitted or
required by this Lease shall be in writing and hand delivered or sent, postage
prepaid, by certified mail, return receipt requested, to the Landlord at the
Landlord's address the end of this Lease and to the Tenant at the address of the
Premises. The time at which such writing shall be deemed to have been given or
served shall be the time of its delivery, if in person, or deposit, if mailed.
Any party may change its address by giving notice in writing, stating its new
address, to any other party. Upon the giving of the notice, the newly designated
address shall be that party's address for the purposes notice under this Lease.
23. Joint and Several Liability. If two or more parties are referred to
collectively under one designation, the liability of each shall be joint and
several.
24. Heirs and Assigns. The terms of this Lease apply to the Tenant and the
Landlord. The terms of this Lease also apply to any heirs, legal representatives
of the Tenant and their successors and assigns or the Landlord and any person to
whom this Lease is assigned.
25. Time. Time is of the essence.
26. Entire Agreement. This Lease, including the exhibits, contains the
entire agreement of the parties and any and all discussions, representations and
understandings are merged herein. It may not be changed orally but only by an
agreement in writing signed by the parties against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
27. Governing Law. This Lease Agreement shall be subject to and governed
by the laws of the State of Minnesota.
28. Waiver of Jury Trial. EACH OF THE PARTIES TO THIS LEASE WAIVES THE
RIGHT TO TRIAL BY A JURY OF ANY MATTERS ARISING OUT OF THIS LEASE. Each of the
parties to this Lease agrees that in the event any party to this Lease commences
an action to enforce the terms of this Lease or for breach of this Lease, such
action shall be venued in either the United States District Court sitting in
Hennepin County, Minnesota or the Minnesota District Court in and for Xxxxx
County.
29. Memorandum of Lease. This Lease shall not be recorded. The Landlord
and the Tenant shall, at the option of the Landlord or the Tenant, execute and
deliver a memorandum of this Lease in proper form for the purpose of recording,
but the memorandum shall not be deemed to modify or change any of the provisions
of this Lease.
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30. Contingency. This Lease is contingent upon Two Oaks, LLC, as the
Assignee of Xxxx Xxxxxxx, successfully closing on the purchase of the premises
pursuant to that Purchase Agreement dated February 21, 2004 by and between Xxxx
Xxxxxxx and XxxxxXxx Technologies of Minnesota, Inc. If such purchase has not
been completed by 5:00 p.m. in Savage Minnesota on _____________, then this
Lease shall automatically be null and void without any further action of the
parties.
LANDLORD: TENANT:
-------- ------
TWO OAKS, LLC XXXXXXXX TECHNOLOGIES OF
MINNESOTA, INC.
By /s/ Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------ ------------------------
Xxxx Xxxxxxx, Governor and President Its: President
STATE OF MINNESOTA)
)SS
COUNTY OF ________)
The foregoing instrument was acknowledged before me this _____ day of
_____________, 2004 by Xxxx Xxxxxxx, Governor and President of Two Oaks, LLC, a
Minnesota limited liability company.
--------------------------------
Notary Public
STATE OF MINNESOTA)
)SS
COUNTY OF ________)
The foregoing instrument was acknowledged before me this _____ day of
_____________, 2004 by _________________, the _______________ of XxxxxXxx
Technologies of Minnesota, Inc., a Minnesota corporation.
--------------------------------
Notary Public
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EXHIBIT A
Legal Description: ______________________________
