Exhibit 10.1
LEASE AGREEMENT
This LEASE AGREEMENT ("Lease") is made and entered into this day of December,
1999 by and between CSM PROPERTIES, INC., a Minnesota corporation, ("Landlord")
and QUANTECH LTD., a Minnesota corporation, ("Tenant").
SECTION 1. FUNDAMENTAL LEASE TERMS. Subject to the covenants, terms and
conditions of this Lease as more particularly set forth herein, the fundamental
terms of this Lease are as follows:
A. Premises (Section 2): Approximately 8,328 square feet of warehouse
space, 7,340 square feet of manufacturing space, 5,114 square feet of
office space, and 90 square feet of Common Building Areas (defined
herein) (for a total of 20,872 rentable square feet of area) within the
Project (defined herein) containing approximately 73,465 total rentable
square feet of area and commonly known as the WATERS BUSINESS CENTER
PHASE II.
B. Initial Lease Term (Section 4): Eighty-four and one-half months (84
1/2) full calendar months, commencing on April 15, 2000, and expiring
on April 30, 2007.
C. Base Rent (Section 5):
Months Monthly Base Rent Per Sq. Ft.
1-48 $15,967.08 $ 9.18
49-84 $17,462.91 $10.04
Option Term:
85-144 $19,202.24 $11.04
Base Rent shall be subject to adjustment pursuant to the terms of this
Lease.
D. Proportionate Share (Section 7): Twenty-eight and 41/100 percent
(28.41%), subject to adjustment pursuant to the terms of this Lease.
E. Permitted Use (Section 10): General office, warehouse, and
manufacturing and production of medical products in accordance with
Food and Drug Administration standards.
F. Security Deposit (Section 24): Sixteen Thousand One Hundred
Fifty-eight and 41/100 Dollars ($16,158.41).
G. Address of Premises: 000 Xxxxxxxxx Xxxxxxx, Xxxxx #000, Xxxxx, XX
00000
H. Addresses for Invoices and Payments:
If to Landlord: If to Tenant:
CSM PROPERTIES, INC. QUANTECH LTD.
c/o CSM CORPORATION 000 XXXXXXXXX XXXXXXX, XXXXX 000
0000 XXXXXXXXXX XXX. X., XXXXX, XX 00000
SUITE 150 Attn: Xxxx Xxxxxxx
XX. XXXX, XX 00000-0000
Phone: (000) 000-0000
I. Addresses for Legal Notices (Section 19):
If to Landlord: If to Tenant:
CSM CORPORATION QUANTECH LTD.
0000 XXXXXXXXXX XXX. W., 000 XXXXXXXXX XXXXXXX, XXXXX 000
XXXXX 000 XXXXX, XX 00000
XX. XXXX, XX 00000-0000 Attn: Xxxx Xxxxxxx
Attn: Director of Property Management
(with copy to:)
CSM CORPORATION
0000 XXXXXXXXXX XXX. X.,
XXXXX 000
XX. XXXX, XX 00000-0000
Attn: General Counsel
SECTION 2. PREMISES.
A. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the premises ("Premises") comprised of approximately 8,328 square feet
of warehouse space, 7,340 square feet of manufacturing space, 5,114
square feet of office space, and 90 square feet of Common Building
Areas (20,872 total rentable square feet of area), which is depicted in
the site plan attached hereto as EXHIBIT A. The building in which the
Premises is located ("Building"), all other improvements within the
area outlined on EXHIBIT A, Common Areas (as defined herein), and the
real property underlying the same are collectively referred to herein
as the "Project". The Project is commonly known as the WATERS BUSINESS
CENTER PHASE II, is located at the street address of 000 Xxxxxxxxx
Xxxxxxx, Xxxxx, Xxxxxxxxx, is comprised of approximately 73,465 total
rentable square feet of area. Landlord warrants that on the Lease
Commencement Date the Premises shall be in compliance with all
applicable laws, codes and ordinances, and all Building systems shall
be in good working order and condition.
B. For the purposes of this Lease, the determination of the number of
rentable square feet in the Premises, the Building, and the Project
shall be made by measuring from the exterior face of exterior walls,
and from the midline or centerpoint of interior or party walls.
"As-built" measurements will be taken of the Building and Premises as
soon as construction has progressed to the point where such measurement
is possible. Landlord will certify such "as built" measurements to
Tenant and thereafter, Landlord and Tenant shall execute an addendum to
this Lease in the form of attached EXHIBIT B, confirming said
measurements and adjusting (i) the area of the Building, Premises and
Project, (ii) the Base Rent, and (iii) Tenant's pro rata share, to
reflect the actual rentable square feet of area of the Building,
Premises and Project, and such addendum shall thereupon be deemed
attached hereto, incorporated herein, and by this reference made a part
of this Lease. Until such time as said as-built measurements are
available, Tenant agrees that the estimated square footage of the
Premises and Project as set forth in Section 1.A. above shall be
utilized to compute Base Rent, Tenant's pro-rata share of Operating
Expenses, and any other sums due hereunder based in whole or in part on
the square footage of the Premises, Building, or the Project.
SECTION 3. COMMON AREAS. Tenant and its employees, invitees and customers shall
have the non-exclusive right to use, in common with Landlord and all other
tenants and occupants of the Project, and their respective employees, invitees
and customers, without charge, all areas and facilities of the Project outside
the Premises and within the exterior boundaries of the Project that are provided
and designated by Landlord from time to time for the general use and convenience
of such parties (collectively, "Common Areas"). The term "Common Areas" shall
include, without limitation, (i) all common mechanical rooms, utility rooms,
restrooms, vestibules, stairways or corridors within the building(s) not
intended to selectively serve one or more tenants (herein, "Common Building
Areas"), and (ii) all exterior pedestrian walkways, patios, landscaped areas,
sidewalks, service drives, plazas, malls, throughways, loading areas and parking
areas not exclusively reserved to particular tenants, entrances, exits,
driveways, and roads.
SECTION 4. LEASE TERM.
A. Tenant hereby takes the Premises from Landlord, upon and subject to the
covenants, terms and conditions hereinafter set forth, for the term
(herein, "term of this Lease" or "Lease Term") commencing on April 15,
2000 ("Commencement Date") and continuing through and including April
30, 2007 ("Expiration Date"). Except as set forth in this section, if
Landlord for any reason whatsoever (except Tenant's default) cannot
deliver possession of the Premises to the Tenant on the Commencement
Date, this Lease shall not be void or voidable, nor shall Landlord be
liable for any loss or damage resulting therefrom, however, (i) all
Rent shall be abated until Landlord delivers possession of the Premises
to Tenant, and (ii) the Commencement Date shall be the actual date
Landlord delivers possession of the Premises to Tenant and the
Expiration Date shall be the last day of the 84th full calendar month
thereafter. Landlord agrees to provide Tenant early occupancy of the
Premises on March 1, 2000, under the same terms and conditions set
forth herein, exclusive of payment of Base Rent and Operating Expenses.
Notwithstanding the above, in the event that Landlord has not provided
early occupancy of the Premises to Tenant in the condition required
herein on or before March 15, 2000, and said delay was not contributed
to by Tenant, then Landlord shall provide Tenant one-half (1/2) day of
free Base Rent for each day the Premises has not been delivered after
March 15, 2000, until April 1, 2000. In the event that Landlord has not
provided early occupancy of the Premises to Tenant in the condition
required herein on or before April 1, 2000, and said delay was not
contributed to by Tenant, then Landlord shall provide Tenant one (1)
day of free Base Rent for each day the Premises has not been delivered
after April 30, 2000, until such date that Landlord delivers the
Premises.
In the event that Landlord has not delivered the Premises to Tenant in
the condition required herein on or before May 1, 2000, and said delay
was not contributed to by Tenant, then Tenant shall have the option to
terminate this Lease with no further obligation upon delivery of
written notice delivered to Landlord no later than May 5, 2000 and
before Landlord delivers the Premises to Tenant.
B. Tenant shall have the option to extend the term of this Lease for one
(1) additional sixty (60) month term under the same terms and
conditions contained herein, provided however, that the Base Rent shall
be adjusted as set forth in Section 1.C. of this Lease. Tenant may
exercise its option term by delivering written notice to Landlord,
stating its irrevocable intent to exercise the option term, not less
than 270 days prior to the expiration of the Lease Term. In the event
that Tenant fails to deliver timely notice of its intent to exercise
the option term, Tenant's right to the option term shall be deemed null
and void. It shall be a condition of the exercise of the option term
that Tenant not be in Default pursuant to Section 18 of this Lease.
SECTION 5. RENT. Tenant agrees to pay Landlord monthly in advance, without
demand, offset, abatement or deduction, except as set forth herein, as base rent
during the term of this Lease ("Base Rent"), the sum of money set forth in
Section 1.C. of this Lease, which has been computed based upon the total
rentable area of the Premises.
The initial monthly installment of Base Rent shall be due and payable on or
before the Commencement Date and all succeeding installments of Base Rent shall
be due and payable on or before the first day of each succeeding calendar month
during the term of this Lease; provided, however, that if the Commencement Date
is other than the first day of a calendar month, then the monthly Rent for such
partial month shall be prorated based on the number of days in such partial
month and paid in advance. Tenant shall also pay to Landlord, as additional
rent, all other sums due under this Lease and the word "Rent", as used in this
Lease, shall mean the Base Rent and the additional rent payable hereunder. All
Rent shall be payable to Landlord at the address set forth in Section 1.H.
above, or at such other address as may from time to time be designated by
Landlord.
If any Rent or other sum due from Tenant is not received by Landlord on or
before the fifth (5th) day of the month for which the Rent or such sum is due, a
late payment charge of five percent (5%) of such past due amount shall become
due and payable in addition to such amounts owed under this Lease.
SECTION 6. SURRENDER OF POSSESSION AND HOLDING OVER.
In the event that Tenant does not vacate the Premises upon the expiration or
termination of this Lease, Landlord shall have the option to treat Tenant's
occupancy for the holdover period as either an at will occupancy or a month to
month occupancy and all of the terms and provisions of this Lease shall be
applicable during that period, except that Tenant shall pay Landlord as Base
Rent for the holdover period an amount equal to one and one-half (1.5) times the
rate of Base Rent in effect on the date of expiration or termination of this
Lease, together with all additional rent and other sums and charges as provided
in this Lease. Notwithstanding Landlord's election to treat Tenant's occupancy
as either an at will or month to month occupancy, Tenant agrees to vacate and
deliver the Premises to Landlord at any time during the holdover period upon
Tenant's receipt of notice from Landlord to vacate. The Rent payable during the
holdover period shall be payable to Landlord either on demand or without demand,
at Landlord's option. No holding over by Tenant, whether with or without the
consent of Landlord, shall operate to extend the term of this Lease. Nothing
contained herein shall be construed to give Tenant any right to hold over or to
impair or limit any of Landlord's rights and remedies set forth in this Lease if
Tenant holds over, including without limitation, the right to terminate this
Lease at any time during such holdover period, to recover possession of the
Premises from Tenant, or to recover damages from Tenant from such holding over.
SECTION 7. OPERATING EXPENSES. Tenant shall also pay Landlord monthly in
advance, without demand, offset, abatement or deduction, except as set forth
herein, as additional rent during the Lease Term, Tenant's Proportionate Share
of all costs which Landlord may incur in owning, maintaining, operating,
repairing and replacing the building(s), Common Areas and all other improvements
within the Project. All such costs are referred to herein as "Operating
Expenses" and are hereby defined to include, without limitation, the following:
(a) maintenance, operational, repair and replacement costs; (b) electricity,
fuel, water, sewer, gas and other common utility charges for the Project; (c)
equipment used to perform maintenance, operation, repair or replacement work for
the Project; (d) exterior window washing and janitorial services; (e) debris,
snow and ice removal; (f) landscaping; (g) management fees (not to exceed 4% of
gross Rent); (h) wages and benefits payable to employees of Landlord employed to
perform maintenance, operation, repair or replacement work for the Project; (i)
all services, supplies, repairs, replacements or other expenses for maintaining,
operating, repairing or replacing the Project; (j) improvements made to the
Project which are required under any governmental law or regulation that was not
applicable to the Project at the time it was constructed; (k) installation of
any device or other equipment which improves the operating efficiency of any
system within the Premises or the Project and thereby reduces Operating
Expenses; (l) all real property taxes and installments of special assessments
due and payable during the term of the Lease, including dues and assessments by
means of covenants, conditions, easements or restrictions of record and/or
owners' associations which accrue against the Project during the term of this
Lease and legal fees incurred in connection with actions to reduce the same
(excluding any special assessments relating to the initial construction of the
Project); (m) all insurance premiums Landlord is required to pay, including
without limitation, fire and extended coverage, commercial general liability
insurance, rent loss insurance and other insurance reasonably required by
Landlord with respect to the Project (and all costs borne by Landlord in
repairing damage caused by risks which, though insured under such insurance
policies, are not covered due to "deductible" provisions therein); (n)
maintenance, repair and testing of fire sprinkler systems; (o) the yearly
amortization of major non-recurring capital expenditures, costs and repairs
which shall be amortized over the useful life of the expenditure, cost or repair
as determined by Landlord, and (p) all other expenses which would generally be
regarded as operating, repair, replacement and maintenance expenses or Common
Area expenses. Notwithstanding the above, Operating Expenses shall not include
the following expenses:
1. Original Construction. All costs incurred in connection with
or directly related to the original construction (as
distinguished from operation, repair, maintenance and
replacement) of the Project.
2. Initial Development. Legal and other fees, leasing
commissions, advertising expenses and other costs incurred in
connection with acquisition of the land, or the original
development or original leasing of the Project.
3. Equipment and Systems Leasing. The costs of renting or leasing
anything other than items, the purchase price of which could
be included in Operating Expenses hereunder, except that this
shall not preclude Landlord from renting tools, equipment or
machinery utilized to perform its maintenance, repair and
replacement obligations.
4. Compliance with Laws. The cost of changes to the Building
(excluding the Premises), the parking structure, or the
appurtenances made in order to comply with any laws, statutes,
ordinances, rules or directives in existence on the date of
this Lease and not related to Tenant's specific use of the
Premises.
5. Employee Limitation. All costs for any employees of Landlord
above the rank of building manager and reasonable allocation
of the costs of all employees of Landlord at or below the rank
of building manager whose duties include work on other
buildings or projects of Landlord or on activities the costs
of which are otherwise excluded from operating costs.
6. Management and Accounting Services. Other than the agreed upon
management fee set forth in Section 7(g) above, all costs and
expenses associated with management and accounting services
for the Project including but not limited to all expenses of a
centralized office, the wages, salaries, bonuses and benefits
of all management personnel, costs of preparation and handling
of accounts receivable and accounts payable, and the payment
of any rent, operating expenses or taxes for an on-site
management office.
7. Depreciation. Any charge for depreciation or amortization of
the cost of any of the original improvements of the Project.
8. Ground Leases and Easements. Any charges for ground leases or
other underlying leases, easements or any other similar or
dissimilar use fees or other costs related to the use of the
land.
9. Financing Costs. Financing and refinancing costs, interest on
debt or amortization payments on any mortgage or mortgages.
10. Correcting Defects. Costs of correcting defects in the design
or construction of the Building, the major Building systems or
the material used in the construction of the Building
(including latent defects in the Building or the inadequacy of
design of the Building) or in the Building equipment or
appurtenances thereto.
11. Damage by Other Tenants. The costs of any repair to remedy
damage caused by or resulting from the negligence of any other
tenants in the Project, including their agents, servants,
employees or invitees, together with the costs and expenses
incurred by Landlord in attempting to recover such costs, but
only to the extent Landlord actually recovers all of the
foregoing costs from such other tenants.
12. Leasing Costs. All costs related to any leasing or releasing
of the Project.
13. Improvements to Rentable Areas. Costs incurred in renovating
or otherwise improving or decorating or redecorating space
(including painting, carpet shampooing, drapery cleaning and
wall washing) for tenants or other occupants in the Building
or vacant rentable space in the Building and costs incurred by
Landlord, whether or not reimbursed to Landlord by other
tenants, in connection with installation of above-shell
condition improvements.
14. Bad Debts or Rent Loss. A bad debt loss, rent loss or reserves
for bad debts or rent loss, provided, however, the cost of
purchasing rent loss insurance shall not be excluded.
15. Affiliates - Excessive Payments. Any item of cost which
represents an amount paid to an affiliate of Landlord or an
affiliate of any partner or shareholder of Landlord, or to the
Building management company or an affiliate of the Building
management company, to the extent the same is in excess of the
reasonable cost of said item or service in an arms length
transaction. For the purposes hereof "affiliate" shall include
subsidiaries of Landlord or any person or entity that directly
or indirectly through one or more intermediaries controls or
is controlled by or is under common control with Landlord or
the Building management company.
16. Bad Faith Payments - Kickbacks. Costs or expenses incurred by
Landlord which represent amounts spent by Landlord or its
agents in bad faith and an amount equal to any costs which
represent any payments received by Landlord or the Building
manager, or the employees or officers of either, from
suppliers of goods or services as kick-backs, finders fees,
expediting fees or other similar fees.
17. Operation of Landlord's Business; Tax Protest; Preservation of
Asset. Any and all costs (including legal fees and costs of
lawsuits) associated with the operation of the business of the
entity which constitutes Landlord or preservation of the
Landlord's interest in the Building; excluded items shall
specifically include, but shall not be limited to, formation
of the entity, internal accounting and legal matters,
including but not limited to preparation of tax returns and
financial statements and gathering of data therefor, costs of
defending any lawsuits with any mortgagee, costs of selling,
syndication, financing, mortgaging or hypothecating any of the
Landlord's interest in the Project, costs of any disputes
between Landlord and tenants within the Project including,
without limitation, Tenant. Landlord may pass through legal
fees and other costs associated with property tax reduction
protest procedures as a component of Operating Expenses.
18. Tenant Specific Costs. All costs and expenses arising solely
out of the specific needs or character of a particular tenant
or such tenant's officers, employees, agents or customers,
whether or not Landlord recovers such costs from such tenant.
Any increased costs resulting from Landlord permitting third
parties to use the common elements of the Project for income
producing activities.
19. Disproportionate Costs; Excess Services. All costs and
expenses resulting from the delivery to other tenants of
services, utilities, or the use of building facilities or
other benefits which are either proportionately greater in
quantity or higher in quality than those delivered to Tenant
regardless of whether or not the cost of such services is
recovered by Landlord.
20. Excess HVAC. Landlord's costs of excess electricity,
incremental heating, ventilation, or air conditioning and
other services sold or provided to tenants which are
proportionately greater than those provided to Tenant whether
or not Landlord is entitled to be reimbursed by such tenants.
21. Landlord's Negligence. Any expense incurred as a result of the
adjudicated negligence of Landlord, its agents, servants or
employees.
22. Reimbursed Costs. Any items not otherwise excluded to the
extent Landlord is reimbursed therefore by insurance or
otherwise compensated, including direct reimbursement by any
tenant, less the out-of-pocket cost of collection (including,
without limitation, reasonable attorneys' fees).
23. Interest and Penalties. All interest or penalties incurred as
a result of Landlord's failure to pay any costs or taxes as
the same shall become due.
24. Duplicate Charges. Any costs which would duplicate other costs
theretofore including in Operating Expenses.
25. Rent Loss Insurance. The cost of rent loss insurance which
insures against rent loss for a period in excess of 24 months.
The following items shall be credited to and shall be used to reduce
Operating Expenses:
1. Income from Common Areas. Any income from use, seasonal or
otherwise, of common areas in the Project, to the extent that
the fees for such use exceed the costs of permitting such use.
2. Cash Discounts. Any cash discounts received by early or prompt
payment.
Tenant's proportionate share of Operating Expenses ("Proportionate Share") shall
be equal to a fraction, the numerator of which is the total rentable square
footage of the Premises, and the denominator of which is the total rentable
square footage of the Project. Landlord may invoice Tenant monthly for one
twelfth (1/12th) of Tenant's estimated annual Proportionate Share of Operating
Expenses for each calendar year, which amount shall be adjusted from
time-to-time by Landlord based upon anticipated Operating Expenses. Tenant's
Proportionate Share of Operating Expenses for the years in which the Lease Term
commences and terminates shall be prorated as equitably determined by Landlord
based upon the Commencement Date and date of termination of the Lease Term.
Notwithstanding anything contained herein to the contrary, during the year in
which this Lease terminates, Landlord, prior to the termination date, shall have
the option to invoice Tenant for Tenant's Proportionate Share of the Operating
Expenses based upon the previous year's Operating Expenses.
Within six (6) months following the close of each calendar year, Landlord shall
provide Tenant an accounting showing in reasonable detail the computations of
Operating Expenses due pursuant to this Section, provided, however, that
Landlord's failure to timely provide any such accounting within the applicable
six (6) month period shall not relieve Tenant of its obligation to pay any sums
due to Landlord relative to any such reconciliation. If the accounting shows
that the total of the monthly payments made by Tenant exceeds the amount of
Operating Expenses due by Tenant under this Section, the accounting shall be
accompanied by evidence of a credit to Tenant's account, except that if the
Lease Term has expired, then the amount of the credit shall be paid to Tenant.
If the accounting shows that the total of the monthly payments made by Tenant is
less than the amount of Operating Expenses due by Tenant under this Section, the
accounting shall be accompanied by an invoice for the additional Operating
Expenses due from Tenant and Tenant shall pay Landlord the amount set forth in
the invoice within (10) days following receipt of same.
Within one hundred eighty (180) days after receipt of Landlord's annual
reconciliation statement for Operating Expenses, Tenant may audit Landlord's
books and records relative to computation of Operating Expenses referenced in
said reconciliation statement. If Tenant does not perform such audit within said
one hundred eighty (180) day period, Tenant shall be deemed to have waived its
right audit the applicable reconciliation statement and charges referenced
therein. Tenant may perform only one (1) such audit in each calendar year during
the Lease Term. Any such audit shall be performed at the offices of Landlord and
shall be performed at Tenant's sole cost and expense; provided, however, in the
event the audit reveals that Landlord has overcharged Tenant by more than five
percent (5%), then, in addition to refunding the overpayment, Landlord shall pay
the reasonable cost of the audit, excluding the cost of travel, lodging and
meals.
SECTION 8. UTILITIES. Commencing on the earlier of the Commencement Date or the
date Landlord delivers possession of the Premises to Tenant, Tenant shall also
pay when due, without demand, offset or deduction, as additional rent during the
Lease Term, all charges for utilities furnished to or for the use or benefit of
Tenant or the Premises. All utilities except water and sewer service for the
Premises will be separately metered and Tenant shall pay consumption charges for
the same directly to the utility provider when due. Consumption charges for any
utilities not separately metered shall be included within the definition of
Operating Expenses set forth in Section 7 above; provided, however, that if
Tenant and one or more (but less than all) other tenants of the Project share a
utility meter, then Tenant shall pay Landlord monthly one-twelfth (1/12) of
Tenant's annual estimated pro-rata share of consumption charges for such shared
utility service as equitably determined by Landlord. Landlord shall not be
liable for damages or otherwise, and Tenant shall have no right of demand,
offset, abatement or deduction, if any utility provider's service to the
Premises is interrupted or impaired by weather, fire, accident, riot, strike,
act of God, the making of necessary repairs or improvements, or any other causes
beyond the reasonable control of Landlord. If any public authorities require a
reduction in energy consumption in the use or operation of the Project, Tenant
agrees to conform to such requirements in accordance with reasonable, uniform
and non-discriminatory standards established by Landlord.
SECTION 9. ADDITIONAL TAXES. If applicable in the jurisdiction where the
Premises are located, Tenant shall pay and be liable for all rental, sales and
use taxes or other similar taxes arising from Tenant's operation of its business
within the Premises, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Landlord under the terms of this Lease.
Any such payment shall be paid concurrently with the payment of the Base Rent,
additional rent, Operating Expenses or other charge upon which the tax is based
as set forth above.
SECTION 10. PERMITTED USE. The Premises are leased to Tenant solely for the use
and purpose set forth in Section 1.E. of this Lease ("Permitted Use"). Tenant
shall not use, occupy, or permit the use or occupancy of the Premises or any
portion thereof for any other use or purpose whatsoever, without obtaining the
prior written consent of Landlord given in its reasonable discretion.
SECTION 11. ADDITIONAL OBLIGATIONS OF TENANT.
A. Occupancy and Use. Tenant shall occupy the Premises, conduct its
business and control its agents, employees, invitees and visitors in
such a manner as is lawful, reputable and will not create a nuisance.
Tenant shall not permit any operation which emits any noise, odor, or
matter which intrudes into other portions of the Project or otherwise
interferes with, annoys or disturbs any other tenant or occupant of the
Project in its normal business operations or Landlord in its management
of the Project. Tenant shall not permit any waste on the Premises to be
used in any way which would, in the opinion of Landlord, be extra
hazardous on account of fire or which would, in any way, increase the
premiums for or render void the casualty insurance on the Project.
Tenant, its employees, vendors and suppliers shall not utilize any
portion of the loading dock area or the Common Areas for parking,
placement, or storage of trailers, storage containers, or their
equivalents used in whole or in part for storage of inventory,
supplies, goods or the like, except with Landlord's prior written
consent.
B. Signs. Tenant shall not install, place, erect, or paint any sign,
marquee or awning of any type or description in or about the Premises
or Project which are visible from the exterior of the Premises, except
those signs submitted to and approved by Landlord in writing, and which
signs are in conformance with Landlord's sign criteria attached hereto
as EXHIBIT C. Landlord shall have the right to approve the type and
size, location and color of all signs which Tenant desires to use or
place in or upon the exterior or windows of the Premises or the
building within which the Premises is located. Landlord may make any
use it desires of the exterior portions of the Building that do not
materially interfere with Tenant's signage as approved by Landlord
hereunder.
C. Compliance With Laws, Rules and Regulations. Tenant, at Tenant's sole
cost and expense, shall comply with all laws, ordinances, orders, rules
and regulations of state, federal, municipal or other agencies or
bodies having jurisdiction over the use, condition or occupancy of the
Premises; provided, however, that Landlord shall be responsible for
complying with all laws, codes and ordinances requiring alterations to
the Premises that are in existence on the date of Tenant's original
occupancy of the Premises and that are not related to Tenant's specific
use of the Premises. Tenant will comply with the reasonable rules and
regulations of the Project adopted by Landlord. Landlord shall have the
right at all times to change and amend the rules and regulations in any
reasonable manner as may be deemed advisable for the safety, care,
cleanliness, preservation of good order and operation or use of the
Project or the Premises. All rules and regulations of the Project, and
amendments or modifications thereof, will be sent by Landlord to Tenant
in writing and shall thereafter be carried out and observed by Tenant.
D. Tenant's Insurance Obligations. Tenant shall, during the term hereof,
keep in full force and effect at its expense the following insurance
coverages:
(1) Property insurance written on the Insurance Service Office's
Special Perils form, or equivalent, covering the full
replacement value of Tenant's property (including, but not
limited to, any furniture, machinery, goods, inventory or
supplies), trade fixtures and tenant installed or paid for
improvements to the Premises and including plate glass
insurance;
(2) Commercial General Liability insurance in an amount of not
less than $1,000,000 per "occurrence" and $2,000,000
"aggregate" per location, insuring Tenant, its employees,
agents, contractors and invitees against liability for bodily
injury, death, personal injury, and including contractual
liability coverage pertaining to Tenant's obligations under
this Lease. The amount of such liability insurance shall not
limit Tenant's liability under this Lease. Such policy or
policies shall name Landlord, CSM Corporation (or Landlord's
other designated management agent), Landlord's designated
mortgagee, and such other parties as Landlord may reasonably
request as additional insureds and shall provide that thirty
(30) days' prior written notice must be given to Landlord
prior to modification or cancellation of such policy of
insurance.
Tenant shall furnish evidence satisfactory to Landlord at the time this
Lease is executed, and thereafter from time to time upon written
request of Landlord, that such coverages are in full force and effect.
Upon Landlord's request, Tenant shall also provide Landlord with a copy
of such policies of insurance. All such insurance carried by Tenant
shall be issued by companies reasonably acceptable to Landlord having
an A.M. Best Company rating B+ or better.
E. Tenant's Maintenance and Repair Obligations. Tenant shall at its sole
expense and all times throughout the term of this Lease, including
renewals and extensions thereof, 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, subject
to Section 11.C. and reasonable wear and tear, casualty damage, and
Landlord's repair obligations. Tenant's obligations hereunder shall
include, but not be limited to, the maintenance (including, without
limitation, regular and preventative maintenance), repair and
replacement, if necessary, of the heating, ventilation, air
conditioning, lighting and plumbing fixtures and equipment, fixtures
(including trade fixtures), motors and machinery, all interior walls,
partitions, doors and windows, including the regular painting thereof,
all exterior entrances, windows, doors, docks, lifts, dock levelers,
and dock shelters and the replacement of all broken glass, to the
extent such items exclusively serve the Premises. When used in this
provision, the term "repair" 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. Upon completion of the
Landlord Improvements (defined in Section 12.D. herein), Landlord
agrees to assign to Tenant all warranties made available to Landlord
that pertain to items to be maintained by Tenant during the Lease term.
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. At the written
request of Landlord, Tenant shall provide to Landlord written proof
substantiating Tenant's performance of any maintenance, repair or
replacement required under the terms hereof. If Tenant fails, refuses
or neglects to maintain or repair the Premises as required in this
Lease after Landlord notifies Tenant to do so, and Tenant fails to
complete within thirty (30) days thereafter (or such reasonable amount
of time if the cure is of such nature that it cannot be completed
within thirty (30) days), Landlord may make such repairs, without
liability to Tenant for any loss or damage that may accrue to Tenant's
merchandise, trade fixtures or other property or to Tenant's business
by reason thereof, and upon completion thereof, Tenant shall pay to
Landlord all costs incurred by Landlord in making such repairs within
fifteen (15) days after Landlord delivers to Tenant an invoice for such
costs. If, during the last twenty-four (24) months of the option term
(if applicable), any heating, ventilation and air conditioning unit or
unit heater shall need replacement (for purposes of this provision, a
heating, air conditioning and ventilation unit or unit heater in need
of replacement shall be defined as a malfunctioning unit requiring
repairs in an amount in excess of the current value of the unit), then
Landlord shall pay the cost of the replacement, and Tenant shall pay
Landlord yearly as additional rent , one-tenth of the cost of the unit
for the earlier of the remaining term of the Lease and extensions
thereto, or ten (10) years from the date of replacement.,
F. Initial Improvements; Subsequent Alterations and Improvements. Tenant
shall have the right and obligation, at its sole cost and expense, to
construct and install, subject to the terms of this Lease, all tenant
improvements, furniture, trade fixtures, equipment, machinery and other
improvements necessary for Tenant to utilize the Premises for its
Permitted Use. Prior to installing any initial tenant improvements on
or within the Premises, Tenant shall obtain Landlord's written approval
of plans and specifications for such improvements. Tenant shall not
make or allow to be made any subsequent alterations, physical
additions, or other improvements in or to the Premises without first
obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld; provided, however, that Tenant shall have the
right to make interior, non-structural alterations that do not affect
the mechanical, electrical or utility systems of the Building or
Project costing less than $10,000.00 without obtaining Landlord's
consent. Landlord may require in its sole discretion, as a condition of
its consent to any initial or subsequent tenant improvements,
alterations, physical additions or other improvements (collectively,
"Improvements"), costing more than $100,000.00, that Tenant provide to
Landlord at Tenant's sole cost and expense, a lien and completion bond
in an amount equal to one and one-half (1.5) times the estimated cost
of labor and materials for the Improvements, to insure Landlord against
any liability for mechanic's and materialmens' lien and to insure
completion of the work. Any Improvements in or 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 may, as a condition to Landlord's consent to any such
Improvements, require Tenant to remove all or part of such Improvements
upon expiration or earlier termination of the Lease Term, (provided
that this requirement is communicated in writing at the time Landlord
consents to the Improvement) and further provided, that, this clause
shall not apply to personal property, inventory, goods, moveable
equipment, machinery, trade fixtures, and/or furniture owned by Tenant
(collectively, "Tenant's Personal Property"), which shall be removed by
Tenant prior to the end of the term of this Lease. Tenant shall repair
any damage to the Premises arising from installation or removal of such
Improvements or Tenant's Personal Property in order to restore the
Premises to the condition existing at the time Tenant took possession.
All costs of installation and removal of such Improvements and Tenant's
Personal Property and repair to the Premises relating thereto, shall be
paid by Tenant and if not paid, shall be deemed additional rent
recoverable by Landlord under this Lease.
G. Hazardous Substances. Tenant and its agents, employees, contractors,
customers and invitees shall not bring or permit to remain on, under or
about the Premises or the Project (except for small quantities
reasonably required in the ordinary course of Tenant's business
operations in the Premises, to the extent used in compliance with
applicable laws), any asbestos, petroleum or petroleum products,
explosives, toxic materials, or substances defined as hazardous wastes,
hazardous materials, or hazardous substances under any federal, state,
or local law or regulation ("Hazardous Materials"). Tenant's violation
of the foregoing prohibition shall constitute a material breach and
default hereunder and Tenant shall indemnify, hold harmless and defend
(with counsel reasonably approved by Landlord) Landlord from and
against any claims, damages, penalties, liabilities, and costs
(including reasonable attorneys fees and expenses and court costs)
caused by or arising out of (i) a violation of the foregoing
prohibition by Tenant or (ii) the presence of any Hazardous Materials
on, under, or about the Premises or the Project during the term of the
Lease caused by or arising, in whole or in part, out of the actions or
omissions of Tenant or its agents, employees, contractors, customers or
invitees. Tenant shall clean up, remove, remediate and repair any soil
or ground water contamination and damage caused by the presence or
release of any Hazardous Materials in, on, under or about the Premises
or the Project during the term of the Lease caused by or arising, in
whole or in part, out of the actions or omissions of Tenant or its
agents, employees, contractors, customers or invitees, in conformance
with the requirements of Landlord and applicable law. Tenant shall
immediately give Landlord written notice of (i) any suspected breach of
this paragraph, (ii) upon learning of the presence or release of any
Hazardous Materials on or about the Premises or the Project, (iii) upon
receiving any notices from governmental agencies pertaining to
Hazardous Materials which may affect the Premises or the Project, or
(iv) upon receipt of notice of pending or threatened claims against
Tenant due to the presence or release of Hazardous Materials on or
about the Premises or the Project. The obligations of Tenant hereunder
shall survive the expiration or earlier termination of this Lease and
the monetary obligations of Tenant shall be deemed additional rent
payable to and recoverable by Landlord hereunder. At Landlord's option,
any penalties, damages or costs of compliance arising from the presence
or release of Hazardous Materials not caused by the acts or omissions
of Landlord or its employees, agents or contractors, may be included
within the definition of Operating Expenses pursuant to Section 7
above, except in no event shall Tenant be required to contribute more
than $1,000.00 per calendar year. Landlord shall indemnify, hold
harmless and defend (with counsel reasonably approved by Tenant) Tenant
from and against any claims, damages, penalties, liabilities, and costs
(including reasonable attorneys fees and expenses and court costs)
caused by or arising out of the presence or release of Hazardous
Materials on or about the Premises or the Project at any time prior to
execution of this Lease, or at any time after execution, except to the
extent that Tenant has contributed to said presence or release. This
indemnity shall survive the termination of the Lease.
H. Mechanic's and Materialmen's Liens. Tenant shall keep the Premises and
the Project free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. If any
mechanic's lien is filed against the Premises or the Project relative
to such work, materials or obligations, Landlord may require, at
Landlord's sole option, that Tenant provide to Landlord, at Tenant's
sole cost and expense, a bond, letter of credit or cash escrow in an
amount equal to one and one-half (1.5) times the amount of the lien, to
insure Landlord against any liability for such mechanic's lien. Tenant
agrees that if any construction on, improvement to, or alteration of
the Premises is performed by or on behalf of Tenant (other than any
improvements to be constructed by Landlord), then Tenant will post in a
conspicuous place on the Premises a notice that Landlord is not liable
for the payment of the cost of any such construction, improvement or
alteration and that neither the Premises or the Project shall be
subject to lien therefore.
I. Financial Statements. Tenant shall, within fifteen (15) days following
request by Landlord or Landlord's present or prospective lender,
furnish to Landlord, Tenant's most current financial statements
available to the general public (including a balance sheet and an
income statement) certified by an officer or general partner of Tenant,
which statements shall be in reasonable detail and conform to generally
accepted accounting principles. Landlord covenants and agrees that said
financial statements shall be kept and maintained by Landlord in a
confidential manner, except to the extent used by Landlord in
connection with the sale and/or mortgaging of the Project or a part
thereof.
J. Miscellaneous. Tenant shall not overload, damage or deface the Premises
or do any act which may make void or voidable any insurance on the
Premises or the Project, or which may render an increased or extra
premium payable for such insurance.
K. Obligations Upon Termination. Upon the termination of this Lease in any
manner whatsoever, Tenant shall (i) remove Tenant's Personal Property
(and the personal property of any other person claiming under Tenant)
and those improvements constructed by Tenant either without Landlord's
prior written consent or with Landlord's prior written consent given
conditioned upon Tenant's covenant to remove such improvements upon
termination of this Lease, and (ii) quit and deliver up the Premises to
Landlord peaceably and quietly in as good order and condition as the
same are now in or hereafter may be put in by Landlord or Tenant,
reasonable use and wear thereof, damage by casualty, and repairs which
are Landlord's obligation excepted. Any improvements required to be
removed by Tenant upon the termination of this Lease or any of Tenant's
Personal Property that are not removed on before the date of
termination of this Lease, however terminated, shall be deemed
abandoned and Landlord may dispose of the same as it deems prudent and
any cost in regard thereto shall be payable by Tenant as additional
Rent.
J. Scope of Tenant's Obligations. Tenant's obligations under this Section
11 shall extend to and include the obligation of Tenant to require its
employees, agents, contractors, and invitees to do or not do such acts,
as the case may be.
SECTION 12. OBLIGATIONS OF LANDLORD.
A. Landlord's Maintenance and Repair Obligations. Landlord shall not be
required to make any improvements, replacements or repairs of any kind
or character to the Premises or the Project during the term of this
Lease except as are specifically set forth in this Section or elsewhere
in this Lease. Landlord shall maintain only the roof, foundation,
parking areas, and Common Areas, and the structural soundness of the
exterior walls and other structures within the Project, provided, that
Landlord's cost of maintaining, replacing and repairing the items set
forth in this Section shall be included within the definition of
Operating Expenses pursuant to Section 7 of this Lease. 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; provided,
however, if Landlord fails to complete its obligations within thirty
(30) days after written notice from Tenant, or a reasonable amount of
time if the nature of the obligation is such that it cannot be
performed within thirty (30) days, Tenant shall have the right to
complete such repair or replacement and deduct the costs from the rent
payable hereunder, subject to the "Maximum Offset Amount" (defined
herein). Notwithstanding anything contained in this Lease to the
contrary, Tenant shall not deduct more than fifty percent (50%) of the
Base Rent from any monthly installment of Base Rent if there are
sufficient months remaining in the term of this Lease within which to
fully recover the amount owed by Landlord (the "Maximum Offset
Amount").
B. Landlord's Insurance Obligations. During the term of this Lease,
Landlord shall carry Property insurance coverage on the Project in
commercially reasonable amounts. Landlord shall not be obligated in any
way or manner to insure any of Tenant's Personal Property (including,
but not limited to, any furniture, machinery, goods, inventory,
supplies or trade fixtures) upon or within the Premises or any
improvements which Tenant may construct on or within the Premises.
Landlord shall also carry Commercial General Liability insurance in an
amount of at least $1,000,000 per "occurrence" and $2,000,000
"aggregate" per location. Landlord may also carry such other insurance
coverage, including without limitation, rent loss insurance, of the
type and in amounts as Landlord deems prudent. In lieu of the
foregoing, all insurance carried or required to be carried by Landlord
relative to the Project and other properties owned by Landlord may be
maintained under a policy or policies of insurance both primary and
excess, and all premiums paid by Landlord for such insurance, and the
cost of repairs not covered under such insurance due to deductible
provisions, shall be included within the definition of Operating
Expenses subject to the terms of Section 7 of this Lease. Tenant shall
have no right in or claim to the proceeds of any policy of insurance
maintained by Landlord under this Lease even if the cost of such
insurance is borne by Tenant pursuant to Section 7 of this Lease. If an
increase in any insurance premiums paid by Landlord relative to the
Project is caused by Tenant's use of the Premises or Tenant's vacating
or abandoning the Premises, then Tenant shall pay the amount of such
increase as additional rent to Landlord.
C. Landlord's Warranty of Possession. Landlord warrants that it has the
right and authority to execute this Lease, and Tenant, upon payment of
the required Rent 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. Notwithstanding the above,
Landlord agrees to use reasonable efforts to ensure that Tenant's
direct use and enjoyment of the Premises is not disrupted by third
parties so long as Tenant is not in default under the terms of the
Lease.
D. Landlord's Improvements. Landlord will complete the construction of the
improvements to the Premises in accordance with plans and
specifications agreed to by Landlord and Tenant attached hereto as
EXHIBITS D and E (the "Landlord Improvements"). Within seven (7) days
of receipt of construction drawings to be prepared by Landlord, Tenant
shall execute a copy of the construction drawings and, if applicable,
change orders setting forth the amount of any costs to be borne by
Tenant. In the event Tenant fails to execute the construction drawings
and change orders within the seven (7) day period, Landlord may, at its
sole option, notify Tenant that the Base Rent shall commence on the
Commencement Date even though the Landlord Improvements to be
constructed may not be complete. Any changes or modifications to the
approved plans and specifications shall be made and accepted by written
change orders or agreement signed by Landlord and Tenant and shall
constitute an amendment to this Lease. Landlord agrees to warrant the
labor, materials and construction of the Landlord Improvements for a
period of one (1) year following the Lease Commencement Date.
SECTION 13. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily or by
operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber
this Lease or any interest therein, and shall not sublet the Premises or any
part thereof, or any right or privilege appurtenant thereto, or suffer any other
person (the employees, agents, servants, and invitees of Tenant excepted) to
occupy or use the Premises or any portion thereof, without the prior written
consent of Landlord and any holder ("Lender") of a loan secured in whole or in
part by Landlord's interest in all or part of the Project (but only to the
extent Landlord is required to obtain such Lender's consent pursuant to the
applicable loan documents). Except as provided for herein, any assignment or
transfer of this Lease by transfer of a majority interest of stock pursuant to
an asset sale, merger, consolidation or liquidation, shall constitute an
assignment for purposes of this Section.
If Tenant desires to assign or sublet all or any part of the Premises, Tenant
shall 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 type of use, financial condition,
gross sales, business experience, reputation, operations and general
desirability of the proposed sublessee or assignee. Within fifteen (15) days
after Landlord's receipt of Tenant's proposed assignment or sublease and all
required information concerning the proposed sublease or assignee, Landlord
shall have either of the following options: (i) 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) less any cost associated with the
sublease or assignment, exceeds the Base Rent payable under this Lease for such
space, Tenant shall pay to Landlord one-half (1/2) of all such excess rent and
other excess consideration within ten (10) days following receipt thereof by
Tenant; or (ii) refuse, in Landlord's reasonable discretion and judgement, to
consent to the proposed assignment or sublease, which refusal shall be deemed to
have been exercised unless Landlord gives Tenant written notice providing
otherwise. Notwithstanding the foregoing, Tenant shall have the right, after
prior written notice to Landlord, to assign this Lease to any entity that
controls, is controlled by, or is under common control with Tenant, or to any
entity that acquires all or substantially all of Tenant's stock or assets,
without obtaining Landlord's consent, except that in no event shall such
assignment release Tenant from its obligations under the Lease.
In the event of any assignment or sublease, any option or right of first refusal
granted to Tenant shall not be assignable by Tenant to any assignee or sublessee
without Landlord's prior written consent. No assignee or sublessee of the
Premises or any portion thereof may assign or sublet the Premises or any portion
thereof. Upon the occurrence of a Default hereunder, if all or any part of the
Premises are then assigned or sublet, Landlord, in addition to any other
remedies provided by this Lease or provided by law, may, at its option, collect
directly from the assignee or sublessee all rents becoming due to Tenant by
reason of the assignment or sublease. Any acceptance of Rent or collection by
Landlord of other sums directly from the assignee, sublessee or any other person
shall not be construed as a novation or release of Tenant or any guarantor from
the further performance of their respective obligations under this Lease or any
guarantee hereof, and shall not be construed as a waiver by Landlord of any
provisions hereof or any right hereunder.
Except as set forth herein, any assignment or subletting without consent of
Landlord and, to the extent required, any Lender, shall be void, and shall at
the option of Landlord, constitute a default under this Lease. Consent to one
assignment, subletting, occupation or use by any other person or entity shall
not be deemed to be a consent to any subsequent assignment, subletting,
occupation or use by another person or entity. No subletting or assignment by
Tenant, made with or without Landlord's consent, shall ever release Tenant from
its obligation to pay the Rent and perform all other obligations to be performed
by Tenant hereunder for the term of this Lease, or release any guarantor from
any obligation or liability under any guarantee of this Lease.
SECTION 14. LANDLORD'S RIGHT OF ACCESS. Upon reasonable prior notice, at any and
all reasonable times hereunder, except in the event of an emergency, Tenant
shall give Landlord and its employees or its authorized agents or contractors
access to the Premises to inspect the same, to show the Premises to prospective
purchasers, lessees, mortgagees, insurers or other interested parties, and to
alter, improve or repair the Premises or any other portion of the Project. So
long as Tenant's business operations are not materially and adversely affected,
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. Tenant shall not change
Landlord's lock system or in any other manner prohibit Landlord or its employees
or its authorized agents or contractors from entering the Premises. Landlord
shall have the right to use any and all reasonable means which Landlord may deem
proper to open any door in an emergency without liability therefor. Tenant shall
permit Landlord to erect, use, maintain and repair pipes, cables, conduits,
plumbing, vents and wires in, to and through the Premises as often and to the
extent that Landlord may now or hereafter deem to be necessary or appropriate
for the proper use, operation and maintenance of the Project, so long as
Tenant's business operations are not materially and adversely disturbed.
SECTION 15. INDEMNITY AND WAIVER OF SUBROGATION.
A. Release and Indemnity. Tenant agrees that Landlord, its management
agent and their respective officers, directors, shareholders, employees
and agents shall not be liable to Tenant, its employees, agents,
contractors and invitees for, and Tenant hereby releases such parties
from, any damage, compensation, liability, loss or claim from any
cause, other than Landlord's breach of its obligations under this Lease
or the willful misconduct of Landlord or its management agent, relative
to or arising from: (i) loss or damage to personal property, equipment,
machinery, furniture, trade fixtures or Tenant installed or paid for
improvements in or about the Premises; (ii) lost profits, business
interruption or other consequential damages arising out of the
interruption in the use of the Premises; (iii) any injury to person or
damage to property on or about the Premises caused by any act or
omission of Tenant, its agents, employees, contractors, customers, or
invitees; (iv) any criminal act by any person other than Landlord or
its management agent; or (v) or arising from the improvements located
on the Premises being out of repair or the failure or cessation of any
service provided by Landlord, including without limitation, utilities
(except to the extent due to the negligent acts of Landlord). Tenant
agrees to hold harmless, defend (with counsel reasonably approved by
Landlord) and indemnify Landlord against any damage, compensation,
liability, loss or claim arising out of any personal injury, death or
property loss or damage occurring in or about the Premises during the
Lease Term, regardless of when such claim is made, except to the extent
caused by the negligence or willful misconduct of Landlord. Landlord
agrees to hold harmless, defend and indemnify Tenant against any
damage, compensation, liability, loss or claim arising out of any
personal injury, death or property loss or damage occurring in, or
about the Common Areas of the Project during the Lease Term, regardless
of when such claim is made, except to the extent of the negligence or
willful misconduct of Tenant, its employees, agents, contractors and
invitees.
B. Waiver of Subrogation. Notwithstanding anything in this Lease to the
contrary, Landlord and Tenant hereby waive and release each other and
their respective officers, directors, shareholders, employees and
property manager of and from any and all right of liability, recovery,
claim, action or cause of action, against each other (or anyone
claiming through or under them by way of subrogation or otherwise), for
any damage, compensation, liability, loss or claim, regardless of cause
or origin, including without limitation, negligence of Landlord or
Tenant and their respective officers, directors, shareholders,
employees and agents, to the extent covered or required to be covered
by insurance pursuant to this Lease to the extent permitted by such
insurance policies. Notwithstanding the foregoing or anything contained
in this Lease to the contrary, any release or waiver of claims shall
not be operative in any case where the affect of the release or waiver
is to invalidate insurance coverage or invalidate the right of the
insured to recover thereunder.
SECTION 16. CASUALTY LOSS.
A. Total Destruction. If all of the Premises or the Project are totally
destroyed by fire or any other event ("Casualty"), then this Lease
shall terminate at the option of either Landlord or Tenant by written
notice to the other party within sixty (60) days following the date of
Casualty, and the Rent shall be abated for the unexpired portion of the
Lease effective as of the date of Casualty.
B. Partial Destruction. If the Premises is partially damaged by Casualty,
and if the Premises are damaged to such extent that the damage cannot,
in Landlord's reasonable judgment, be rebuilt or repaired economically
(taking into account the time necessary to receive any insurance
proceeds and using normal construction methods without overtime or
other premium) within one hundred eighty (180) days after the date of
Casualty, then this Lease shall terminate at the option of Landlord or
Tenant by written notice to the other party within sixty (60) days
following the date of Casualty, and the Rent shall be abated for the
unexpired portion of the Lease effective as of the date of Casualty.
Notwithstanding anything contained herein to the contrary, if the
Premises or the Project is partially damaged by Casualty and either (i)
insurance proceeds are not made available to Landlord or are inadequate
for restoration, or (ii) repair or restoration of the same would not be
economically prudent in Landlord's reasonable determination, then
Landlord shall have the right to terminate this Lease by written notice
to Tenant within sixty (60) days following the date of Casualty, and
the Rent shall be abated for the unexpired portion of the Lease
effective as of the date of Casualty.
C. Restoration Obligations. If this Lease is not terminated pursuant to
Section 16.A. or Section 16.B above, then Landlord shall, at its sole
expense, proceed with reasonable diligence, subject to Force Majeure
Delays (as defined in Section 27.G. of this Lease) to rebuild or repair
the Premises (exclusive of improvements, alterations or changes thereto
made or paid for by Tenant), the building(s) or other improvements
within the Project to as near the condition in which they existed
immediately prior to the date of Casualty as reasonably possible. If
the Premises are to be rebuilt or repaired and are untenantable in
whole or in part following the Casualty, and the Casualty was not
caused or contributed to by the actions or omissions of Tenant, its
agents, employees, contractors, customers or invitees, then the Rent
payable under this Lease during the period for which the Premises are
untenantable shall be abated in proportion to the areas of the Premises
rendered untenantable (as reasonably and equitably determined by
Landlord) from the date of Casualty until restoration is completed by
Landlord.
D. Insurance Proceeds. Tenant hereby waives any right in or claim to the
proceeds of any policy of insurance maintained by Landlord under this
Lease. If any insurance proceeds are recoverable on account of any
Casualty affecting the Premises or the Project, then Tenant agrees that
as between this Lease and any recorded mortgage, deed of trust or other
instrument presently existing or hereafter created covering Landlord's
interest in all or part of the Premises or the Project, and all
increases, refinancings, extensions, renewals, amendments and
modifications thereof (collectively, "Mortgage"), the terms of such
Mortgage shall govern and be determinative relative to the payment and
disposition of such proceeds. Notwithstanding anything contained herein
to the contrary, if the holder of a Mortgage purchases or acquires
Landlord's interest in the Premises or the Project by foreclosure sale
or deed in lieu thereof, then such holder shall not be bound by the
restoration obligations set forth in this Section 16 and shall have the
right to apply or dispose of any insurance proceeds recoverable under
insurance maintained by Landlord under this Lease pursuant to the terms
of such Mortgage.
SECTION 17. EMINENT DOMAIN.
A. Total Taking. If the entire Premises or the Project are taken by
eminent domain, this Lease shall automatically terminate as of the date
of taking, and the Rent shall be abated for the unexpired portion of
the Lease effective as of the date of the taking.
B. Partial Taking. If part of the Premises or the Project is taken by
eminent domain, Landlord shall have the right to terminate this Lease
as of a date specified by Landlord by giving written notice thereof to
Tenant within sixty (60) days after the date of taking. If such a
significant portion of the Premises is taken so as to materially and
adversely affect Tenant's use and enjoyment of the Premises for the
purposes intended under this Lease, then Tenant shall have the right to
terminate this Lease as of a date specified by Tenant by giving written
notice to Landlord within sixty (60) days after the date of taking. If
neither party elects to terminate this Lease, then Landlord shall, at
its sole expense, proceed with reasonable diligence, subject to Force
Majeure Delays, rebuild or repair the Premises (exclusive of
improvements, alterations or changes thereto made or paid for by
Tenant), the building(s) or other improvements within the Project to as
near the condition in which they existed immediately prior to the date
of taking as reasonably possible. If part of the Premises is rendered
untenantable following any taking, then the Rent payable under this
Lease shall be abated in proportion to the areas of the Premises
rendered untenantable (as reasonably and equitably determined by
Landlord) effective as of the date of taking.
C. Condemnation Proceeds. All damages awarded for a taking under the power
of eminent domain shall belong to and be the exclusive property of
Landlord whether such damages be awarded as compensation for diminution
in value of the leasehold estate hereby created or to the fee of the
Premises or the Project; provided, however, that Tenant shall be
entitled to maintain an action for a separate award to Tenant for the
value and cost of removal and relocation of its personal property and
trade fixtures. If any condemnation proceeds are recoverable by
Landlord on account of any taking affecting the Premises or the
Project, then Tenant agrees that as between this Lease and any
Mortgage, the terms of such Mortgage shall govern and be determinative
relative to the payment and disposition of such proceeds.
SECTION 18. DEFAULT AND REMEDIES.
A. Default by Tenant. Each of the following occurrences shall be deemed an
event of default ("Default") by Tenant under this Lease:
(1) Tenant has not paid when due any installment of Rent or any
other payment required pursuant to this Lease within five (5)
days after written notice by Landlord; or
(2) Tenant has not complied with any term, provision or covenant
of this Lease, other than the payment of Rent, and has not
cured such noncompliance within ten (10) days after written
notice to Tenant or such additional time as may be reasonably
necessary to cure if the noncompliance cannot be cured within
ten (10) days, so long as Tenant commences cure within said
ten (10) day period and thereafter diligently pursues cure to
completion; or
(3) Tenant files a petition, or an involuntary petition is filed
against Tenant, or Tenant becomes insolvent under any
applicable federal or state bankruptcy or insolvency law, or
Tenant admits that it cannot meet its financial obligations as
they become due, or a receiver or trustee shall be appointed
for all or substantially all of the assets of Tenant, or
Tenant shall make a transfer in fraud of creditors or shall
make an assignment for the benefit of creditors; or
(4) Tenant does or permits to be done any act which results in a
lien being filed against the Premises or the Project, and such
lien is not discharged or bonded over pursuant to Section
11.H. of this Lease.
If a Default under Section 18.A.(4) occurs, nothing contained herein
shall be construed to express or imply that Landlord consents to any
assumption and/or assignment of the Lease by Tenant or the inclusion of
this Lease within Tenant's bankruptcy estate, and Landlord expressly
reserves the right to object to any assumption and/or assignment of the
Lease and to any inclusion of this Lease within Tenant's bankruptcy
estate. Neither Tenant nor any trustee who may be appointed in such
case shall conduct or permit of any "fire", "bankruptcy", "going out of
business", auction sale or other public sale in or from the Premises.
If Tenant abandons the Premises, Tenant releases and discharges
Landlord from any duty of care or other obligation regarding any of
Tenant's property remaining in the Premises.
B. Landlord's Remedies for Tenant's Default. Upon the occurrence of a
Default as defined above, Landlord may, in its sole discretion, elect
any one or more of the following remedies:
(1) to cancel and terminate this Lease by written notice to
Tenant; or
(2) whether or not Landlord elects to terminate this Lease, to
enter upon and repossess the Premises without resort to
judicial process or notice of any kind if Tenant has abandoned
or voluntarily surrendered possession of the Premises,
otherwise with resort to judicial process by unlawful detainer
action, summary proceedings, ejectment, force or otherwise,
and Landlord may, at Landlord's option, enter the Premises and
take and hold possession thereof, and may remove all persons
and property from the Premises and such property may be
removed and stored in a public warehouse or elsewhere at the
cost and for the account of Tenant, without Landlord becoming
liable for any loss or damage which may be occasioned thereby;
or
(3) to cure the Default at any time for the account and at the
expense of Tenant, in which event Tenant shall reimburse
Landlord upon demand for any amount expended by Landlord in
connection with the cure, including, without limitation,
reasonable attorneys' fees and interest; or
(4) to pursue any other remedy at law or in equity that may be
available to Landlord.
Upon and after repossession, whether or not Landlord has elected to
terminate this Lease, Landlord may, but shall not be obligated to,
relet the Premises, or any part thereof, to any one other than the
Tenant, for such time and upon such terms and uses as Landlord may
determine in its sole discretion. Landlord may also make alterations
and repairs to the Premises to the extent Landlord deems necessary or
desirable to relet the Premises. Any rent received shall be applied
against Tenant's monetary obligations hereunder, but Landlord shall not
be responsible or liable for any failure to collect any rent due upon
such reletting.
In the event of any such termination or repossession, Tenant shall be
liable to Landlord as follows:
(i) for all reasonable attorneys' fees and expenses incurred by
Landlord in connection with exercising any remedy hereunder;
(ii) for the unpaid installments of Base Rent, additional rent or
other unpaid sums that were due prior to such termination or
reentry, including without limitation, interest and late
payment fees, which sums shall be payable immediately;
(iii) 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, including without limitation, late
payment charges and interest, which sums shall be payable as
they become due hereunder;
(iv) for all expenses incurred in releasing the Premises, including
leasing commissions, reasonable attorneys' fees, and costs of
alteration or repairs, which shall be payable by Tenant as
they are incurred by Landlord; and
(v) while the Premises are subject to any new lease or leases made
pursuant to this Section, for the amount by which the monthly
installments of rent 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.
At any time after termination or repossession, whether or not Landlord
may have collected any damages pursuant to the foregoing provisions,
Landlord shall be entitled to recover from Tenant, as and for
liquidated and agreed upon final damages for loss of bargain due to
Tenant's Default, and not as a penalty, and in lieu of the amounts
which would thereafter be payable pursuant to the foregoing provisions
(but not in diminution of the amounts payable as provided above before
termination), the present value of a sum equal to the amount by which
the then fair rental value of the Premises is less than the Base Rent,
additional rent and other sums or charges which would have been payable
by Tenant for the unexpired portion of the term of this Lease. Tenant
shall promptly pay to Landlord on demand the amount of such deficiency
and all expenses incident thereto (including without limitation,
commissions, reasonable attorneys' fees and expenses, and costs of
repairs). If Landlord, after any such reentry, leases or relets the
Premises, then the rent payable under such new lease shall be
conclusive evidence of the fair rental value of the unexpired portion
of the term of this Lease. If this Lease shall be terminated by reason
of bankruptcy or insolvency of Tenant, Landlord shall be entitled to
recover from Tenant or Tenant's estate, as liquidated damages for loss
of bargain and not as a penalty, the amount determined by the
immediately preceding paragraph.
C. Interest and Attorney's Fees. In the event of a Default by Tenant,
Tenant agrees to pay Landlord (i) if a monetary default, accrued
interest 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,
(ii) Landlord's costs of collection, including without limitation court
costs and reasonable attorney's fees and expenses, whether suit is
actually filed or not, and (iii) any late charges set forth in Section
5 of this Lease.
D. Additional Remedies, Waivers, Miscellaneous.
(1) 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.
(2) 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, and shall not be
construed to relieve Tenant of any its liabilities and
obligations under this Lease, which shall survive any such
election.
(3) No delay or omission by Landlord in exercising a right or
remedy shall exhaust or impair the same or constitute a waiver
of, or acquiescence to, a Default.
(4) No waiver of Default shall extend to or affect any other
Default or impair any right or remedy with respect thereto.
(5) No action or inaction by Landlord shall constitute a waiver of
Default.
(6) No waiver of a Default shall be effective unless it is in
writing and signed by Landlord.
SECTION 19. NOTICES. All Rent and other payments required to be made by Tenant
shall be payable to Landlord at the address set forth in Section 1.H. of this
Lease, or such other address designated by Landlord by written notice to Tenant.
All payments required to be made by Landlord to Tenant shall be payable at the
address set forth in Section 1.H., or such other address within the United
States as designated by Tenant by written notice to Landlord. 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 (i) deposited
in the United States Mail, postage prepaid, certified mail, return receipt
requested, or (ii) deposited with a reputable national commercial courier for
overnight delivery (eg. Federal Express or U.P.S.), addressed to the parties at
the respective addresses set forth in Section 1.I. of this Lease.
SECTION 20. LANDLORD ASSIGNMENT. Landlord shall have the right to sell, convey,
transfer, mortgage, or assign, in whole or in part, for collateral purposes or
otherwise, its rights and obligations under this Lease and in all or part of the
Premises and the Project. In the event of any sale, conveyance, transfer or
assignment made other than for collateral purposes, this Lease shall remain in
full force and effect, provided, however, that (i) Landlord shall be released
from any and all liabilities under this Lease first arising after the date of
such sale, conveyance, assignment or transfer so long as the transferee assumes
the obligations of Landlord under this Lease first arising after the effective
date of such sale, conveyance, transfer or assignment, and (ii) upon receipt of
written notice from Landlord, Tenant shall immediately and automatically attorn
to the transferee.
SECTION 21. SUBORDINATION AND ATTORNMENT. This Lease is subject and subordinate
to (i) the lien of any Mortgage which may now or hereafter encumber all or part
of the Project, and (ii) all existing recorded restrictions, covenants,
easements and agreements with respect to the Project, provided, however, that so
long as this Lease is in full force and effect and Tenant is not in default
beyond any applicable cure period hereunder, Tenant's possession of the Premises
pursuant to the terms of this Lease shall not be disturbed. In order to confirm
such subordination (and/or any other terms set forth in this Section), Tenant
shall, within ten (10) days after written request from Landlord, execute and
deliver to Landlord or any Mortgage holder, any certification, instrument or
other document required by Landlord or such Mortgage holder, in form and content
as reasonably required by Landlord or such Mortgage holder. Tenant acknowledges
and agrees that its failure to deliver any such statement in a timely manner, in
addition to being a Default under this Lease, could result in a loss of
favorable financing for the Project and Tenant agrees to be liable to Landlord
for both actual and consequential damages resulting from breach hereunder.
Notwithstanding anything contained herein to the contrary, if the holder of any
Mortgage elects to have this Lease be prior to its lien, Tenant agrees that upon
receipt of notice of same from Landlord or such Mortgage holder, this Lease will
be prior to such lien.
If the interests of Landlord under this Lease shall be transferred by reason of
foreclosure, deed in lieu of foreclosure or other proceedings for enforcement of
any Mortgage to any third party transferee (including without limitation the
holder of any such Mortgage) (sometimes called the "New Owner"), then (i) Tenant
waives the provisions of any statute or rule of law, now or hereafter in effect,
which may give or purport to give Tenant any right to terminate or otherwise
adversely affect this Lease or the obligations of Tenant hereunder, (ii) at the
option of New Owner, Tenant shall be bound to the New Owner 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
New Owner were Landlord under this Lease, (iii) at the option of New Owner,
Tenant shall attorn to the New Owner as its Landlord, and (iv) so long as this
Lease is in full force and effect and Tenant is not in default beyond any
applicable cure period hereunder at the time of transfer to New Owner, this
Lease shall remain in full force and effect and the New Owner shall not disturb
Tenant's possession of the Premises. Notwithstanding anything in this Lease to
the contrary, neither the holder of any Mortgage (whether or not it acquires the
interest of Landlord under this Lease by foreclosure, deed in lieu of
foreclosure or other proceedings to enforce a Mortgage) or any New Owner shall
be liable for any act or omission of Landlord or any offsets or defenses which
Tenant might have against Landlord, or bound by any prepayment by Tenant of more
than one month's installment of Rent (unless the New Owner actually receives the
prepaid Rent), or by any amendment or modification of this Lease made subsequent
to the granting of the Mortgage by Landlord that pertains to term or rent.
SECTION 22. ESTOPPEL CERTIFICATES. Tenant agrees to furnish, from time to time,
within ten (10) days after receipt of request from Landlord, a written statement
certifying, to the extent applicable, the following: (i) Tenant is in possession
of the Premises; (ii) the Premises are acceptable; (iii) the Lease is in full
force and effect and there have been no amendments or modifications, or if there
have been amendments or modifications, stating the amendments or modifications;
(iv) the dates through which the Rent and other charges hereunder have been paid
by Tenant; (v) agreeing that Tenant and Landlord will not thereafter modify this
Lease without the prior consent of the Mortgage holder; (vi) Tenant claims no
present charge, lien, or claim or offset against Rent or describing such charge,
lien or claim; (vii) the Rent is not and will not be prepaid for more than one
month in advance; (viii) there is no existing default by reason of some act or
omission by Landlord; and (ix) such other matters as may be reasonably required
by Landlord or the Mortgage holder. Tenant agrees that any such statement may be
relied upon by any present owner or prospective purchaser of the Project and any
present or prospective Mortgage holder or assignee of such Mortgage holder.
Tenant acknowledges and agrees that its failure to deliver any such statement in
a timely manner, in addition to being a Default under this Lease, could result
in a loss of favorable sale or financing and Tenant agrees to be liable to
Landlord for both actual and consequential damages resulting from breach
hereunder.
SECTION 23. 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 Project including all future rents
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 Project as herein
expressly provided.
SECTION 24. SECURITY DEPOSIT. The security deposit set forth in Section 1.F.
("Security Deposit") shall be paid to Landlord concurrently with Tenant's
execution and delivery of this Lease to Landlord and shall be held by Landlord
for the performance of Tenant's covenants and obligations under this Lease, it
being expressly understood that the Security Deposit shall not be considered an
advance payment of Rent or a measure of Landlord's damages in case of default by
Tenant. Upon the occurrence of any Default by Tenant under this Lease, Landlord
may, from time to time, in addition to any other remedy of Landlord, 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 arising from the Default, and any remaining balance of the Security
Deposit shall be returned by Landlord to Tenant upon termination of this Lease.
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.
INTENTIONALLY DELETED
SECTION 26. 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 a fee due
to Xxxxx Xxx Xxxx of Paramount Real Estate, which is the responsibility of
Landlord. Each party covenants that it will defend, indemnify and hold harmless
the other party from and against any loss or liability by reason of brokerage or
similar services alleged to have been rendered to, at the instance of, or agreed
upon by said indemnifying party. Notwithstanding anything herein to the
contrary, Landlord and Tenant agree that there shall be no brokerage fee or
commission due on expansions, options or renewals by Tenant.
SECTION 27. MISCELLANEOUS.
A. Limitation of Warranties. EXCEPT AS OTHERWISE PROVIDED HEREIN, LANDLORD
AND TENANT EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED
WARRANTIES OF MERCHANTABILITY, HABITABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE, AND THERE ARE
NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS
LEASE.
B. Landlord's Management Agent. Landlord hereby notifies Tenant that CSM
Corporation, a Minnesota corporation, has been appointed to act as the
agent in the management and operation of the Project for Landlord and
is authorized to accept service of process and receive or give receipts
for notices and demands on behalf of Landlord. Landlord reserves the
right to change the identity and status of its duly authorized agent
upon written notice to Tenant.
C. Tenant's Authority. If Tenant executes this Lease as a corporation or
limited liability company ("LLC"), 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 or LLC, as
the case may be, that Tenant is qualified to do business in the state
in which the Premises are located, that the corporation or LLC has full
right and authority to enter into this Lease, and that each person
signing on behalf of the corporation or LLC is authorized to do so.
D. Successors and Assigns. This Lease shall be binding upon and inure to
the benefit of Landlord and its heirs, personal representatives,
successors and assigns, and Tenant and its heirs, personal
representatives and permitted successors and assigns.
E. 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.
F. Counterparts. This Lease may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an
original, but together shall constitute one and the same instrument.
G. Force Majeure. Neither party shall be required to perform any covenant
or obligation in this Lease, or be liable in damages to the other
party, so long as the performance or non-performance of the covenant or
obligation is delayed, caused or prevented by an act of force majeure
or by the other party. For purposes of this Lease, "force majeure"
shall mean any of the following occurrences: act of God; fire;
earthquake; flood; explosion; actions or the elements of war; invasion;
insurrection; riot; mob violence; sabotage; inability to procure
equipment, facilities, materials or supplies in the open market;
failure of power; failure of transportation; strikes; lockouts; actions
of labor unions; condemnation; requisition; laws; orders of governments
or civil or military authorities; or any other cause, whether similar
or dissimilar to the foregoing, not within the reasonable control of
Landlord or Tenant, as the case may be.
H. 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.
I. Headings. The section headings appearing in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe
or describe the scope or intent of any Section.
J. Amendment. This Lease may not be altered, waived, amended, or extended
except by an instrument in writing signed by Landlord and Tenant.
K. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter set forth herein, and
supersedes and replaces all other agreements or understandings of the
parties, whether oral or written.
L. Construction. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY AND THEIR
RESPECTIVE COUNSEL HAVE REVIEWED AND REVISED, OR HAVE HAD THE
OPPORTUNITY TO REVIEW AND REVISE, THIS AGREEMENT AND THAT THE NORMAL
RULE OF CONSTRUCTION TO THE EFFECT THAT AMBIGUITIES ARE TO BE RESOLVED
AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION
OF THIS LEASE OR ANY EXHIBITS, ADDENDUMS OR AMENDMENTS HERETO.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease effective the
day and year first above written.
LANDLORD TENANT
CSM PROPERTIES, INC. QUANTECH LTD.
BY: _____________________________________ BY: _______________________________
ITS: _____________________________________ ITS: ______________________________
