EXHIBIT 10.20
$5.50/ft.
OFFICE/WAREHOUSE LEASE
This Indenture of lease, dated this 10th day of May, 1994 by and between
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The Northwestern Mutual Life Insurance Company, hereinafter referred to as
"Landlord," and
FieldWorks, Inc.
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(A Minnesota Corporation),
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hereinafter referred to as "Tenant."
DEFINITIONS:
"Building" - That certain office/warehouse building containing
approximately 40,628 square feet of net rentable area located upon the Premises
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and commonly described as
Oak Park Business Center, 9947-69 Valley View Road,
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Xxxx Xxxxxxx, XX 00000
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"Common Areas" - The term "common area" means the entire areas to be used
for the non-exclusive use by Tenant and other tenants in the Building,
including, but not limited to, corridors, lavatories, driveways, truck docks,
parking lots, and landscaped areas. Subject to reasonable rules and regulations
to be promulgated by Landlord, the common areas are hereby made available to
Tenant and its employees, agents, customers, and invitees for reasonable use in
common with other Tenants, their employees, agents, customers, and invitees.
"Demised Premises" - That certain portion of the Building designated as
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Bays -------- through --------, consisting of approximately 12,386 square feet
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(7,093 57%) square feet of office space and 5,293 square feet of warehouse
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space), as measured from the outside walls of the Demised Premises to the center
of the partition wall, as shown on the floor plan attached hereto as Exhibit "B"
and made a part hereof. The Demised Premises include a non-exclusive easement
for access to common areas, as hereinafter defined, and all licenses and
easements appurtenant to the Demised Premises.
"Premises" - That certain real property located in the City of Eden
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Prairie, County of Hennepin and State of Minnesota, and legally described on
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Exhibit "A" attached hereto and made a part hereof, including all buildings and
site improvements located thereon.
WITNESSETH:
TERM:
1. For and in consideration of the rents, additional rents, terms,
provisions, and covenants herein contained, Landlord hereby lets, leases, and
demises to tenant the Demised Premises for the term of 60 months commencing on
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the first day of July 1994 (sometimes called "Commencement Date") and expiring
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the last day of June, 1999 (sometimes called "Expiration Date"), unless sooner
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terminated as hereinafter provided.
BASE RENT:
2. Tenant shall pay Landlord, a total rental of Three Hundred Forty
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Thousand Six Hundred Twenty and 00/100 Dollars ($340,620.00), payable in
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advance, in equal monthly installments of Five Thousand Six Hundred Seventy-
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Seven Dollars ($5,677.00), commencing on the Commencement Date and continuing on
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or before the first day of each and every month thereafter for the next
succeeding months during the balance of the term (sometimes called "Base Rent").
In the event the Commencement Date falls on a date other than the first of a
month, the rental for that month shall be prorated and adjusted accordingly and
one full month shall be added to the Term of the Lease for each month of delay.
ADDITIONAL RENT:
3. Tenant shall pay to landlord throughout the term of this Lease the
following:
a. Tenant shall pay a sum equal to thirty & 49/100 percent (30.49%)
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of the Real Estate taxes. The term "Real Estate Taxes" shall mean all real
estate taxes, all assessments, and any taxes in lieu thereof which may be levied
upon or assessed against the premises of which the Demised Premises are a part.
Tenant, in addition to all other payments to Landlord by Tenant required
hereunder shall pay to Landlord, in each year during the term of this Lease and
any extension or renewal thereof, Tenant's proportionate share of such real
estate taxes and assessments paid in the first instance by extension or renewal
thereof. Tenant's proportionate share of such real estate taxes and assessments
paid in the first instance by Landlord.
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Any tax year commencing during any lease year shall be deemed to correspond
to such lease year, in the event the taxing authorities include in such real
estate taxes and assessments the value of any machinery, equipment, fixtures,
inventory, or other personal property or assets of Tenant, then Tenant shall pay
all the taxes attributable to such items in addition to its proportionate share
of said aforementioned real estate taxes and assessments. A photostatic copy of
the tax statement submitted by Landlord to Tenant shall be sufficient evidence
of the amount of taxes and assessments assessed or levied against the Premises
of which the Demised Premises are a part.
b. A sum equal to thirty & 49/100% (30.49%) of the annual aggregate
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operating expenses incurred by Landlord in the operation, maintenance, and
repair of the Premises. The term "Operating Expenses" shall include but not be
limited to maintenance, repair, replacement, and care of all common area
lighting, common area plumbing and roofs, parking and landscaped areas, signs,
snow removal, non-structural repair, maintenance of the exterior of the
Building, insurance premiums, management fees, wages, and fringe benefits of
personnel employed for such work, costs of equipment purchased and used for such
purposes, and the cost or portion thereof property allocable to the Premises
(amortized over such reasonable period as Landlord shall determine together with
the interest at the rate of 12% per annum on the unamortized balance) of any
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capital improvements (including those required to bring the common areas into
compliance with the Americans with Disabilities Act of 1990) made to the
Building by Landlord after the Base Year which result in a reduction of
Operating Expenses or made to the Building by Landlord after the date of this
Lease that are required under any governmental law or regulation that was not
applicable to the Building at the time it was constructed.
The payment of the sums set forth in this Article 3 shall be in addition to
the Base Rent payable pursuant to Article 2 of this Lease. All sums due
hereunder shall be due and payable within thirty (30) days of delivery of
written certification by Landlord setting forth the computation of the amount
due from Tenant. In the event the lease term shall begin or expire at any time
during the calendar year, the Tenant shall be responsible for his pro rata share
of Additional Rent under subdivisions a. and b. during the Lease and/or
occupancy time.
Prior to commencement of this Lease, and prior to the commencement of each
calendar year thereafter commencing during the term of this Lease or any renewal
or extension thereof, Landlord may estimate for each calendar (i) the total
amount of Real Estate Taxes; (ii) the total amount of Operating Expenses; (iii)
Tenant's share of Real Estate Taxes for such calendar year; (iv) Tenant's share
of Operating Expenses for such calendar year; and (v) the computation of the
annual and monthly rental payable during such calendar year as a result of
increases or decreases in Tenant's share of Real Estate Taxes and Operating
Expenses. Said estimates will be in writing and will be delivered or mailed to
Tenant at the Premises.
The amount of Tenant's share of Real Estate Taxes, and Operating Expenses
for each calendar year, so estimated, shall be payable as Additional Rent, in
equal monthly installments, in advance, on the first day of each month during
such calendar year. In the event that such estimate is delivered to Tenant
before the first day of January of such calendar year, said amount, so
estimated, shall be payable as additional rent in equal monthly installments, in
advance, on the first day of each month during such calendar year. In the event
that such estimate is delivered to Tenant after the first day of January of such
calendar year, said amount, so estimated, shall be payable as additional rent in
equal monthly installments, in advance, on the first day of each month over the
balance of such calendar year, with the number of installments being equal to
the number of full calendar months remaining in such calendar year.
Upon completion of each calendar year during the term of this Lease or any
renewal or extension thereof, Landlord shall cause its accountants to determine
the actual amount of the Real Estate Taxes and Operating Expenses payable in
such calendar year and Tenant's share thereof and deliver a written
certification of the amounts thereof to Tenant. If Tenant has underpaid its
share of Real Estate Taxes, or Operating Expenses for such calendar year, Tenant
shall pay the balance of its share of same within ten (10) days after the
receipt of such statement. If Tenant has overpaid its share of Real Estate Taxes
or Operating Expenses for such calendar year, Landlord shall either (i) refund
such excess or (ii) credit such excess against the most current monthly
installment or installments due Landlord for its estimate of Tenant's share of
Real Estate Taxes and Operating Expenses for the next following calendar year. A
prorata adjustment shall be made for a fractional calendar year occurring during
the term of this Lease or any renewal or extension thereof based upon the number
of days of the term of the Lease during said calendar year as compared to three
hundred sixty-five (365) days and all additional sums payable by Tenant or
credits due Tenant as a result of the provisions of this Article 3 shall be
adjusted accordingly. Tenant shall have the right to inspect Landlord's records
at management office during normal business hours with prior notice.
COVENANT TO PAY RENT:
4. The covenants of Tenant to pay the Base Rent and the Additional Rent
are each independent of any other covenant, condition, provision, or agreement
contained in this Lease. All rents are payable to Landlord at
Welsh Companies, Inc.
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00000 X. 00xx Xxxxxx
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Xxxx Xxxxxxx, XX 00000
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UTILITIES:
5. Landlord shall provide mains and conduits to supply water, gas,
electricity, and sanitary sewage to the Premises. Tenant shall pay, when due,
all charges for sewer usage or rental, garbage disposal, refuse removal, water,
electricity, gas, fuel oil, LP gas, telephone, and/or other utility services or
energy source furnished to the Demised Premises during the term of this Lease,
or any renewal or extension thereof. If Landlord elects to furnish any of the
foregoing utility services or other services furnished or caused to be furnished
to Tenant, then the rate charged by landlord shall not exceed the rate Tenant
would be required to pay to a utility company or service company furnishing any
of the foregoing utilities or services. The charges thereof shall be deemed
additional rent in accordance with Articles 3 and 4.
CARE AND REPAIR OF DEMISED PREMISES:
6. Tenant shall, at all times throughout the term of this Lease, including
renewals and extensions, and at its sole expense, keep and maintain the Demised
Premises in a clean, safe, sanitary , and first class condition and in
compliance with all applicable laws, codes, ordinances, rules, and regulations.
Tenant's obligations hereunder shall include but not be limited to the
maintenance, repair and replacement, if necessary, of heating, air conditioning
fixtures, equipment, and systems, all lighting and plumbing fixtures and
equipment, fixtures, motors and machinery, all interior walls, partitions,
doors and windows, including the regular painting thereof, all exterior
entrances, windows, doors, and docks and the replacement of all broken glass.
When used under this provision, the term "repairs" shall include replacements
and overhauling equipment when necessary, and all such repairs made by the
Tenant shall be equal in quality and class to the original work. The Tenant
shall keep and maintain all portions of the Demised Premises and the sidewalk
and areas adjoining the same in clean and orderly condition, free of
accumulation of dirt, rubbish, snow, and ice.
If Tenant fails, refuses or neglects to maintain or repair the Demised
Premises as required in this Lease after notice has been given Tenant, in
accordance with Article 33 of this Lease, Landlord may make such repairs without
liability to Tenant for any loss or damage that may accrue to Tenant's
merchandise, fixtures, or other property or to its business by reason thereof,
and upon completion thereof, Tenant shall pay to Landlord all costs plus 15%
for overhead incurred by Landlord in making such repairs upon presentation to
the Tenant of xxxx therefor.
Landlord shall repair, at its expense, the structural portions of the
Building, provided, however, where structural repairs are required to be made by
reason of the acts of Tenant, the costs thereof shall be borne by Tenant and
payable by Tenant to Landlord upon demand.
The Landlord shall be responsible for all outside maintenance of the
Demised Premises, including grounds and parking areas. All such maintenance
which is the responsibility of the Landlord shall be provided as reasonably
necessary to the comfortable use and occupancy of Demised Premises during
business hours, except Saturdays, Sundays, and holidays, upon the condition that
the Landlord shall not be liable for damages for failure to do so due to causes
beyond its reasonable control.
SIGNS:
7. Any sign, lettering, picture, notice, or advertisement installed on or
in any part of the Premises and visible from the exterior of the Building, or
visible from the exterior of the Demised Premises, except for one standard sign
which Landlord shall install and pay for, shall be approved, installed, and
maintained by Landlord, at Tenant's expense. In the event of a violation of the
foregoing by Tenant, Landlord may remove the same without any liability and may
charge the expense incurred by such removal to Tenant.
ALTERATIONS, INSTALLATION, FIXTURES:
8. Except as hereinafter provided, Tenant shall not make any alterations,
additions, or improvements in or to the Demised Premises or add, disturb, or in
any way change any plumbing or wiring therein without the prior written consent
of the Landlord. In the event alterations are required by any governmental
agency by reason of the use and occupancy of the Demised Premises by Tenant.
Tenant shall make such alterations at its own cost and expense after first
obtaining Landlord's approval of plans and specifications and furnishing such
indemnification as Landlord may reasonably require against liens, costs,
damages, and expenses arising out of such alterations. Alterations and additions
by Tenant must be built in compliance with all laws, ordinances, and
governmental relations affecting the Premises and Tenant shall warrant to
Landlord that all such alterations, additions, or improvements shall be in
strict compliance with all relevant laws, ordinances, governmental regulations,
and insurance requirements. Construction of such alterations or additions shall
commence only upon Tenant obtaining and exhibiting to Landlord the requisite
approvals, licenses, permits, and indemnification against liens. All
alterations, installations, physical additions, or improvements to the Demised
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, this clause shall not apply to movable equipment or furniture owned by
Tenant which may be removed by Tenant at the end of the term of this Lease.
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POSSESSION:
9. Except as hereinafter provided, Landlord shall deliver possession of
the Demised Premises to Tenant in the condition required by Exhibit D of this
Lease on or before the Commencement Date, but delivery of possession prior to or
later than such Commencement Date shall not affect the expiration date of this
Lease. The rentals herein reserved shall commence on the date when possession
of the Demised Premises is delivered by landlord to Tenant. Any occupancy by
Tenant prior to the beginning of the term shall in all respects be the same as
that of a Tenant under this Lease. If Demised Premises are not ready for
occupancy by Commencement Date and possession is later than Commencement Date,
rent shall begin on date of possession.
SECURITY AND DAMAGE DEPOSIT:
10. Tenant, contemporaneously with the execution of this Lease, has
deposited with Landlord the sum of Nine Thousand Three Hundred Thirty-One and
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00/100 Dollars ($9,331.00), receipt of which is acknowledged hereby by Landlord,
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when deposit is to be held by Landlord, without liability for interest, as a
security and damage deposit for the faithful performance by Tenant during the
term hereof or any extension hereof. Prior to the time when Tenant shall be
entitled to the return of this security deposit, Landlord may commingle such
deposit with Landlord's own funds and to use such security deposit for such
purpose as Landlord may determine. In the event of the failure of Tenant to
keep and perform any of the terms, covenants, and conditions of this Lease to be
kept and performed by Tenant during the term hereof or any extension hereof,
then Landlord, either with or without terminating this Lease, may (but shall not
be required to ) apply such portion of said deposit as may be necessary to
compensate or repay Landlord for all losses or damages sustained or to be
sustained by Landlord due to such breach on the part of the Tenant, including,
but not limited to overdue and unpaid rent, any other sum payable by Tenant to
landlord pursuant to the provisions of this Lease, damages or deficiencies in
the reletting of Demised Premises, and reasonable attorney's fees incurred by
Landlord. Should the entire deposit or any portion thereof, be appropriated and
applied by Landlord, in accordance with the provisions of this paragraph.
Tenant, upon written demand by landlord, shall remit forthwith to Landlord a
sufficient amount of cash to restore said security deposit to the original sum
deposited, and Tenant's failure to do so within five (5) days after receipt of
such demand shall constitute a breach of this Lease. Said security deposit
shall be returned to Tenant, less any depletion thereof as the result of the
provisions of this paragraph, at the end of the term of this Lease or any
renewal thereof, or upon the earlier termination of this Lease. Tenant shall
have no right to anticipate return of said deposit by withholding any amount
required to be paid pursuant to the provision of this Lease or otherwise.
In the event Landlord shall sell the Premises, or shall otherwise convey or
dispose of its interest in this Lease, Landlord may assign said security deposit
or any balance thereof to Landlord's assignees, whereupon landlord shall be
released from all liability for the return or repayment of such security
deposit and Tenant shall look solely to the said assignees for the return and
repayment of said security deposit. Said security deposit shall not be assigned
or encumbered by Tenant without such consent of Landlord, and any assignment or
encumbrance without such consent shall not bind Landlord. In the event of any
rightful and permitted assignment or this Lease by Tenant, said security deposit
shall be deemed to be held by landlord as a deposit made by the assignee, and
Landlord shall have no further liability with respect to the return of said
security deposit to the Tenant.
USE:
11. The Demised Premises shall be used and occupied by Tenant solely for
the purposes of office, assembly and storage of electronic or related items so
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long as such use is in compliance with all applicable laws, ordinances, and
governmental regulations affecting the Building and Premises. The Demised
Premises shall not be used in such manner that, in accordance with any
requirement of law or of any public authority, Landlord shall be obliged on
account of the purpose or manner of said use to any requirement of law of any
public authority. Landlord shall be obliged on account of the purpose or manner
of said use to make any addition or alteration to or in the Building. Tenant
shall be responsible for compliance with the Americans with Disabilities Act of
1990 as it applies to the Demised Premises. The Demised Premises shall not be
used in any manner which will increase the rates required to be paid for public
liability or for fire and extended coverage insurance covering the Premises.
Tenant shall occupy the Demised Premises, conduct its business and control its
agents, employees, invitees, and visitors in such a way as is lawful and
reputable and will not permit or create any nuisance, noise, odor, or otherwise
interfere with, annoy, or disturb any other Tenant in the Building in its normal
business operations or Landlord in its management of the Building. Tenant's use
of the Demised Premises shall conform to all the Landlord's rules and
regulations relating to the use of the Premises. Outside storage on the
Premises of any type of equipment, property, or materials owned or used on the
Premises by Tenant or its customers and suppliers shall not be permitted.
ACCESS TO DEMISED PREMISES:
12. The Tenant agrees to permit the Landlord and the authorized
representatives of the Landlord to enter the Demised Premises at all times
during usual business hours for the purpose of inspecting the same and making
any necessary repairs to the Demised Premises and performing any work therein
that may be necessary to comply with any laws, ordinances, rules, regulations,
or requirements of any public authority or of the Board of Fire Underwriters or
any similar body or that the Landlord may deem necessary to prevent waste or
deterioration in connection with the Demised Premises.
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Nothing herein shall imply any duty upon the part of the Landlord to do any such
work which, under any provision of this Lease, the Tenant may be required to
perform and the performance thereof by the Landlord shall not constitute a
waiver of the Tenant's default in failing to perform the same. The Landlord
may, during the progress of any work in the Demised Premises, keep and store
upon the Demised Premises all necessary materials, tools, and equipment. The
Landlord shall not in any event be liable for inconvenience, annoyance,
disturbance, loss of business, or other damage of the Tenant by reason of making
repairs or the performance or any work in the Demised Premises, or on account of
bringing materials, supplies, and equipment into or through the Demised Premises
during the course thereof and the obligations of the Tenant under this Lease
shall not thereby be affected in any manner whatsoever.
Landlord reserves the right to enter upon the Demised Premises at any time in
the event of an emergency and at reasonable hours to exhibit the Demised
Premises to prospective purchasers or others; and to exhibit the Demised
Premises during the last sixty (60) days of the term of this Lease, all without
hindrance or molestation by Tenant.
EMINENT DOMAIN:
13, In the event of any eminent domain or condemnation proceeding or
private sale in lieu thereof in respect to the Premises during the term
thereof, the following provisions shall apply:
a. If the whole of the Premises shall be acquired or condemned
by eminent domain for any public or quasipublic use or purpose, then the term of
this Lease shall cease and terminate as of the date possession shall be taken in
such proceeding and all rentals shall be paid up to that date.
b. If any part constituting less than the whole of the Premises
shall be acquired or condemned as aforesaid, and in the event that such partial
taking or condemnation shall materially affect the Demised Premises so as to
render the Demised Premises unsuitable for the business of the Tenant, in the
reasonable opinion of Landlord, then the term of this Lease shall cease and
terminate as of the date possession shall be taken by the condemning authority
and rent shall be paid to the date of such termination.
In the event of a partial taking or condemnation of the Premises which
shall not materially affect the Demised Premises so as to render the Demised
Premises unsuitable for the business of the Tenant, in the reasonable opinion of
the Landlord, this Lease shall continue in full force and effect but with a
proportionate abatement of the Base Rent and Additional Rent based on the
portion, if any, of the Demised Premises taken. Landlord reserves the right, at
its option, to restore the Building and the Demised Premises to substantially
the same condition as they were prior to such condemnation. In such event,
Landlord shall give written notice to Tenant, within thirty (30) days following
the date possession shall be taken by the condemning authority, of Landlord's
intention to restore. Upon Landlord's notice of election to restore, Landlord
shall commence restoration and shall restore the Building and the Demised
Premises with reasonable promptness, subject to delays beyond the Landlord's
control and delays in the making of condemnation or sale proceeds adjustments by
landlord; and Tenant shall have no right to terminate this Lease except as
herein provided. Upon completion of such restoration, the rent shall be
adjusted based upon the portion, if any, of the Demised Premises restored.
c. In the event of any condemnation or taking as aforesaid,
whether whole or partial, the Tenant shall not be entitled to any part of the
award paid for such condemnation and Landlord is to receive the full amount of
such award, the Tenant hereby expressly waiving any right to claim to any part
thereof.
d. Although all damages in the event of any condemnation shall
belong to the Landlord whether such damages are awarded as compensation for
diminution in value of the leasehold or to the fee of the Demised Premises,
Tenant shall have the right to claim and recover from the condemning authority,
but not from Landlord, such compensation as may be separately awarded or
recoverable by Tenant in Tenant's own right on account of any and all damage to
Tenant's business by reason of the condemnation and for or on account of any
cost or loss to which Tenant might be put in removing Tenant's merchandise,
furniture, fixtures, leasehold improvements, and equipment. However, Tenant
shall have no claim against Landlord or make any claim with the condemning
authority for the loss of its leasehold estate, any unexpired term or loss of
any possible renewal or extension of said Lease or loss of any possible value of
said Lease, any unexpired term, renewal, or extension of said Lease.
DAMAGE OR DESTRUCTION:
14. In the event of any damage or destruction to the Premises by fire of
other cause during the term hereof, the following provisions shall apply:
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a. If the Building is damaged by fire or any other cause to
such extent that the cost of restoration, as reasonably estimated by Landlord,
will equal or exceed thirty percent (30%) of the replacement value of the
Building (exclusive of foundations) just prior to the occurrence of the damage,
then Landlord may, no later than the sixtieth (60th) day following the damage,
give Tenant written notice of Landlord's election to terminate this Lease.
b. If the cost of restoration as estimated by Landlord will
equal or exceed fifty percent (50%) of said replacement value of the Building
and if the Demised Premises are not suitable as a result of said damage for the
purposes for which they are demised hereunder, in the reasonable opinion of
Tenant, then Tenant may, no later than the sixtieth (60th) day following the
damage, give Landlord a written notice of election to terminate this Lease.
c. If the cost of restoration as estimated by Landlord shall
amount to less than thirty percent (30%) of said replacement value of the
Building, or if, despite the cost, Landlord does not elect to terminate this
Lease, Landlord shall restore the Building and the Demised Premises with
reasonable promptness, subject to delays beyond the Landlord's control and
delays in the making of insurance adjustments by Landlord; and Tenant shall have
no right to terminate this Lease except as herein provided. Landlord shall not
be responsible for restoring or repairing leasehold improvements of the Tenant.
d. In the event of either of the elections to terminate, this
Lease shall be deemed to terminate as of the date of destruction and all rentals
shall be paid up to that date. Tenant shall have no claim against Landlord for
the value of any unexpired term of this Lease.
e. In any case where damage to the Building shall materially
affect the Demised Premises so as to render them unsuitable in whole or in part
for the purposes for which they are demised hereunder, then, unless such
destruction was wholly or partially caused by the negligence or breach of the
terms of this Lease by Tenant, its employees, contractors or licensees, a
portion of the rent based upon the amount of the extent to which the Demised
Premises are rendered unsuitable shall be abated until repaired or restored. If
the destruction or damage was wholly or partially caused by negligence or breach
of the terms of this lease by Tenant as aforesaid and if Landlord shall elect to
rebuild, the rent shall not xxxxx and the Tenant shall remain liable for the
same.
CASUALTY INSURANCE:
15. a. Landlord shall at all times during the term of this Lease,
at its expense, maintain a policy or policies of insurance with premiums paid in
advance issued by an insurance company licensed to do business in the State of
Minnesota insuring the Building against loss or damage by fire, explosion, or
other insurable hazards and contingencies for the full replacement value,
provided that Landlord shall not be obligated to insure any furniture,
equipment, machinery, goods, or supplies not covered by this Lease which Tenant
may bring upon the Demised Premises or any additional improvements which Tenant
may construct or install on the Demised Premises.
b. Tenant shall not carry any stock of goods or do anything in
or about the Demised Premises which will in any way impair or invalidate the
obligation of the insurer under any policy of insurance required by this Lease.
c. Landlord hereby waives and releases all claims, liabilities,
and causes of action against Tenant and its agents, servants, and employees for
loss or damage to, or destruction of, any of the improvements, fixtures,
equipment, supplies, merchandise, and other property, whether that of Tenant or
of others in, upon, or about the Premises resulting from fire, explosion, or the
other perils included in standard extended coverage insurance, whether caused by
the negligence of any of said persons or otherwise. The waiver shall remain in
force whether or not the Tenant's insurer shall consent thereto.
d. In the event that the use of the Demised Premises by Tenant
increases the premium rate for insurance carried by landlord on the improvements
of which the Demised Premises are a part, Tenant shall pay Landlord, upon
demand, the amount of such premium increase. If Tenant installs any electrical
equipment that overloads the power lines to the building or its wiring, Tenant
shall, at its own expense, make whatever changes are necessary to comply with
the requirements of the insurance underwriter, insurance rating bureau, and
governmental authorities having jurisdiction.
PUBLIC LIABILITY INSURANCE:
16. Tenant shall during the term hereof keep in full force and effect at
its expense a policy or policies of public liability insurance with respect to
the Demises Premises and the business of Tenant, on terms and companies approved
in writing by Landlord, in which both Tenant and Landlord shall be covered by
being named as insured parties under reasonable limits of liability not less
than: $1,000,000 combined single limit. Such policy or policies shall provide
that thirty (30) days written notice must be given to the Landlord prior to
cancellation thereof. Tenant shall furnish evidence satisfactory to landlord at
the time this Lease is executed that such coverage is in full force and effect.
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DEFAULT:
17. a. In the event of any failure of Tenant to pay any rental due
hereunder within five (5) days after written notice, or any failure to perform
any other of the terms, conditions, or covenants of this Lease to be observed or
performed by Tenant for more than 30 days (or as long as is reasonably necessary
if Tenant is pursuing a cure in good faith) after written notice of such failure
shall have been given to Tenant, or if Tenant or an agent of Tenant shall
falsify any report required to be furnished to Landlord pursuant to the terms of
this Lease, or if Tenant or any guarantor of this Lease shall become bankrupt or
involvement, or file any debtor proceedings or any person shall take or have
against Tenant or any guarantor of this Lease in any court pursuant to any
statute either of the United States or of any state a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or trustee
of all or a portion of Tenant's or any such guarantor's property, or if Tenant
or any such guarantor makes an assignment for the benefit of creditors, or
petitions for or enters into an argument, or if Tenant shall abandon the Demised
Premises or suffer this Lease to be taken under any writ of execution, then in
any such event Tenant shall be in default hereunder, and Landlord, in addition
to other rights or remedies it may have, shall have the immediate right of re-
entry and may remove all persons and property from the Demised Premises and such
property may be removed and stored in a public warehouse or elsewhere at the
cost of, and for the account of Tenant, all without service of notice or resort
to legal process and without being guilty of trespass, or becoming liable for
any loss or damage which may be occasioned thereby.
b. Should Landlord elect to re-enter the Demised Premises, as herein
provided, or should it take possession of the Demised Premises pursuant to legal
proceedings or pursuant to any notice provided for by law, it may either
terminate this Lease or it may from time to time, without terminating this
Lease, make such alterations and repairs as may be necessary in order to relet
the Demised Premises, and relet the Demised Premises or any part thereof under
such term or terms (which may be for a term extending beyond the term of this
Lease) and at such rental or rentals and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable. Upon each such subletting
all rentals received by the Landlord from such reletting shall be applied first
to the payment of any indebtedness other than rent due hereunder from Tenant to
landlord; second, to the payment of any costs and expenses of such reletting,
including brokerage fees and attorney's fees and costs of such alterations and
repairs; third, to the payment of the rent due and upon payment of future rent
as the same may become due and payable hereunder. If such rentals received from
such reletting during any month are less than that to be paid during that month
by Tenant hereunder, Tenant, upon demand, shall pay any such deficiency to
landlord. No such re-entry or taking possession of the Demised Premises by
Landlord shall be construed as an election on its part to terminate this Lease
unless a written notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination. Landlord may at any
time after such re-entry and reletting elect to terminate this Lease for any
such breach. In addition to any other remedies it may have, it may recover from
Tenant all damages it may incur by reason of such breach, including the cost of
recovering the Demised Premises, reasonable attorney's fees, and including the
worth at the time of such termination of the excess, if any of the amount of
rent and charges equivalent to rent reserved in this Lease for the remainder of
the stated term over the then reasonable rental value of the Demised Premises
for the remainder of the stated term, all of which amounts shall be immediately
due and payable from Tenant to Landlord.
c. Landlord may, at its option, instead of exercising any other
rights or remedies available to it in this Lease or otherwise by law, statute,
or equity, spend such money as is reasonably necessary to cure any default of
Tenant herein and the amount so spent, and costs incurred, including attorney's
fees in curing such default, shall be paid by Tenant, as additional rent, upon
demand.
d. In the event suit shall be brought for recovery of possession of
the Demised Premises, for the recovery of rent or any other amount due under the
provisions of this Lease, or because of the breach of any other covenant herein
contained on the part of Tenant to be kept or performed, and a breach shall be
established, Tenant shall pay to Landlord all expenses incurred therefor,
including a reasonable attorney's fee, together with interest on all such
expenses at the rate of twelve percent (12%) per annum from the date of such
------- -----
breach of the covenants of this Lease.
e. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord obtaining
possession of the Demised Premises, by reason of the violation of the Tenant of
any of the covenants or conditions of this Lease, or otherwise. Tenant also
waives any demand for possession of the Demised Premises, and any demand for
payment of rent and any notice of intent to re-enter the Demised Premises, or of
intent to terminate this Lease, other than the notices above provided in this
Article, and waives any and every other notice or demand prescribed by any
applicable statutes or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law,
statute, or equity, conferred upon or reserved to Landlord or Tenant shall be
exclusive of any other remedy, but shall be cumulative, and may be exercised
from time to time and as often as the occasion may arise.
9/92 -7-
COVENANTS TO HOLD HARMLESS:
18. Unless the liability for damage or loss is caused by the negligence of
Landlord, its agents, or its employees, Tenant shall hold Landlord harmless from
any liability for damages to any person or property in or upon the Demised
Premises and the Premises, including the person and the property of Tenant and
its employees and all persons in the Building at its or their invitation or
sufferance, and from all damages resulting from Tenant's failure to perform the
covenants of this Lease. All property kept, maintained, or stored on the
Demised Premises shall be so kept, maintained, or stored at the sole risk of
Tenant. Tenant agrees to pay all sums of money in respect of any labor, service,
materials, supplies, or equipment furnished or alleged to have been furnished to
Tenant in or about the premises, and not furnished on order of Landlord, which
may be secured by any mechanics', materialmens', or other lien to be discharged
at the time performance of any obligation secured thereby matures. However,
Tenant may contest such lien, but if such lien is reduced to final judgment and
if such judgment on process thereon is not stayed, or if stayed and said stay
expires, then and in each such event, Tenant shall forthwith pay and discharge
said judgment. Landlord shall have the right to post and maintain on the Demised
Premises, notices of non-responsibility under the laws of the State of
Minnesota.
NON-LIABILITY:
19. Subject to the terms and conditions of Article 14 hereof, Landlord
shall not be liable for damage to any property of Tenant or of others located on
the Premises, nor for the loss of or damage to any property of Tenant or of
others by theft or otherwise, Landlord shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain, snow, or leaks from any part of the
Premises or from the pipes, appliances, or plumbing works or from the roof,
street, or subsurface or from any other place or by dampness or by any other
cause of whatsoever nature.
Landlord shall not be liable for any such damage caused by other Tenants or
persons in the Premises, occupants of adjacent property, of the buildings, or
the public or caused by operations in construction of any private, public, or
quasi-public work. Landlord and Tenant shall not be liable for any latent
defect in the Demised Premises. All property of Tenant kept or stored on the
Demised Premises shall be so kept or stored at the risk of Tenant only and
Tenant shall hold Landlord harmless from any claims arising out of damage to the
same, including subrogation claims by Tenant's insurance carrier.
SUBORDINATION:
20. This Lease shall be subordinated to any mortgages that may now exist
or that may hereafter be placed upon the Demised Premises and to any and all
advances made thereunder, and to the interest upon the indebtedness evidenced by
such mortgages, and to all renewals, replacements, and extensions thereof. In
the event of execution by Landlord after the date of this Lease of any such
mortgage, renewal, replacement, or extension, Tenant agrees to execute a
subordination agreement with the holder thereof which agreement shall provide
that:
a. Such holder shall not disturb the possession and other
rights of Tenant under this Lease so long as Tenant is not in default hereunder;
b. In the event of acquisition of title to the Demised Premises
by such holder, such holder shall accept the Tenant as tenant of the Demised
Premises under the terms and conditions of this Lease and shall perform all the
obligations of Landlord hereunder; and
c. The Tenant shall recognize such holder as Landlord
hereunder.
Tenant shall, upon receipt of a request from Landlord, execute
and deliver to Landlord or to any proposed holder of a mortgage or trust deed or
to any proposed purchaser of the Premises, a certificate in recordable form,
certifying that this Lease is in full force and effect and that there are no
offsets against rent nor defenses to Tenant's performance under this Lease, or
setting forth any such offsets or defenses claimed by Tenant, as the case may
be.
ASSIGNMENT OR SUBLETTING:
21. Tenant agrees to use and occupy the Demised Premises throughout the
entire term hereof for the purpose or purposes herein specified and for no other
purposes, in the manner and to substantially the extent now intended, and not to
transfer or assign this Lease or sublet said Demised Premises, or any part
thereof, whether by voluntary act, operation of law, or otherwise, without
obtaining the prior consent of Landlord in each instance. Tenant shall seek
such consent of Landlord by a written request, setting forth such information as
Landlord may deem necessary. Landlord agrees not to withhold consent
unreasonably. Consent by Landlord to any assignment of this Lease or to any
subletting of the Demised Premises shall not be a waiver of Landlord's rights
under this Article as to any subsequent assignment or subletting.
9/92 -8-
Landlord's rights to assign this Lease are and shall remain unqualified. No
such assignment or subleasing shall relieve the Tenant from any of Tenant's
obligations in this Lease contained nor shall any assignment or sublease or
other transfer of this Lease be effective unless the assignee, sublessee, or
transferee shall at the time of such assignment, sublease, or transfer, assume
in writing for the benefit of Landlord, its successors, or assigns, all of the
terms, covenants, and conditions of this Lease thereafter to be performed by
Tenant and shall agree in writing to be bound thereby. Should tenant sublease
in accordance with the terms of this Lease, fifty percent (50%) of any increase
in rental received by Tenant over the per square foot rental rate which is being
paid by Tenant shall be forwarded to and retained by Landlord, which increase
shall be in addition to the Base Rent and Additional Rent due Landlord under
this Lease.
ATTORNMENT:
22. In the event of a sale or assignment of Landlord's interest, in the
Premises, or the Building in which the Demised Premises are located, or this
Lease, or if the Premises come into custody of possession of a mortgagee or any
other party whether because of a mortgage foreclosure or otherwise, Tenant shall
attorn to such assignee or other party and recognize such party as Landlord
hereunder; provided, however, Tenant's peaceable possession will not be
disturbed so long as Tenant faithfully performs in obligations under this Lease.
Tenant shall execute, on demand, any attornment agreement required by any such
party to be executed, containing such provisions and such other provisions as
such party may require.
NOVATION IN THE EVENT OF SALE:
23. In the event of the sale of the Demised Premises, Landlord shall be
and hereby is relieved of all of the covenants and obligations created hereby
accruing from and after the date of sale, and such sale shall result
automatically in the purchaser assuming and agreeing to carry out all the
covenants and obligations of Landlord herein. Notwithstanding the foregoing
provisions of this Article, Landlord, in the event of a sale of the Demised
Premises, shall cause to be included in this agreement of sale and purchase a
covenant whereby the purchaser of the Demised Premises assumes and agrees to
carry out all of the covenants and obligations of Landlord herein.
The Tenant agrees at any time and from time to time upon not less than ten
(10) days prior written request by the Landlord to execute, acknowledge, and
deliver to the Landlord an Estoppel Certificate substantially in the form of
Exhibit E.
SUCCESSORS AND ASSIGNS:
24. The terms, covenants, and conditions hereof shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto.
REMOVAL OF FIXTURES:
25. Notwithstanding anything contained in Article 8, 29, or elsewhere in
this Lease, if Landlord requests, Tenant will promptly remove at the sole cost
and expense of Tenant all fixtures, equipment, and alterations made by Tenant
simultaneously with vacating the Demised Premises and Tenant will promptly
restore said Demised Premises to the condition that existed immediately prior to
said fixtures, equipment, and alterations having been made all at the sole cost
and expense of Tenant. Landlord shall have no responsibility or liability for
loss or damage to fixtures, facilities, or equipment installed or left on the
Demised Premises after tenant has vacated.
QUIET ENJOYMENT:
26. Landlord warrant that it has full right to execute and to perform this
Lease and to grant the estate demised, and that Tenant, upon payment of the
rents and other amounts due and the performance of all the terms, conditions,
covenants, and agreements on Tenant's part to be observed and performed under
this lease, may peaceably and quietly enjoy the Demised Premises for the
business uses permitted hereunder, subject , nevertheless, to the terms and
conditions of this Lease.
RECORDING:
27. Tenant shall not record this Lease without the written consent of
Landlord. However, upon the request of either party hereto, the other party
shall join in the execution of a memorandum lease for the purposes of
recordation. Said memorandum lease shall describe the parties, the Demised
Premises and the term of the Lease and shall incorporate this Lease by
reference.
OVER DUE PAYMENTS:
28. All monies due under this Lease from Tenant to Landlord shall be due
on demand, unless otherwise specified and if not paid when due, shall result in
the imposition of a service charge for such late payment in the amount of twelve
------
percent (12%) per annum of the amount due.
--------------
-9-
9/92
SURRENDER:
29. On the Expiration Date or upon the terminations hereof upon a day
other than the Expiration Date, Tenant shall peaceably surrender the Demised
premises broom-clean in good order, condition, and repair, reasonable wear and
tear only excepted. On or before the Expiration Date or upon termination of
this Lease on a day other than the Expiration Date, Tenant shall, at its
expense, remove all trade fixtures, personal property, equipment, and signs from
the Demised Premises and any property not removed shall be deemed to have been
abandoned. Any damage caused in the removal of such items shall be repaired by
Tenant and at its expense. All alterations, additions, improvements, and
fixtures (other than trade fixtures) which shall have been made or installed by
Landlord or Tenant upon the Demised Premises and all floor covering so installed
shall remain upon and be surrendered with the Demised Premises as a part
thereof, without disturbance, molestation, or injury, and without charge, at the
expiration or termination of this Lease. If the Demised Premises are not
surrendered on the Expiration Date or the date of termination, Tenant shall
indemnify Landlord against loss or liability, claims, without limitation, made
by any succeeding Tenant founded on such delay. Tenant shall promptly surrender
all keys for the Demised Premises to Landlord at the place then fixed for
payment of rent and shall inform Landlord of combinations of any locks and safes
on the Demised Premises.
HOLDING OVER:
30. In the event of a holding over by Tenant after expiration or
termination of this Lease without the consent in writing of Landlord, Tenant
shall be deemed a Tenant at sufferance and shall pay rent for such occupancy at
the rate of 150% of the last-current aggregate Base, plus 100% of the Additional
Rent, prorated for the entire holdover period, plus all attorney's fees and
expenses incurred by landlord in enforcing its rights hereunder, plus any other
actual damages occasioned by such holding over. Except as otherwise agreed, any
holding over with the written consent of Landlord shall constitute Tenant a
month-to-month Tenant.
ABANDONMENT:
31. In the event Tenant shall remove its fixtures, equipment, or machinery
or shall vacate the Demised Premises or any part thereof prior to the
Expiration Date of this Lease, or shall discontinue or suspend the operation of
its business conducted on the Demised Premises for a period of more than thirty
(30) consecutive days (except during any time when the Demised Premises may be
rendered untenantable by reason of fire or other casualty), then in such event
Tenant shall be deemed to have abandoned the Demised Premises and Tenant shall
be in default under the terms of this Lease.
CONSENTS BY LANDLORD:
32. Whenever provision is made under this Lease for Tenant securing the
consent or approval by Landlord, such consent or approval shall only be in
writing.
NOTICES:
33. Any notice required or permitted under this Lease shall be deemed
sufficiently given or secured if sent by registered or certified return receipt
mail to Tenant at 0000 Xxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, XX 00000, and to
----------------------------------------------
Landlord at the address then fixed for the payment of rent as provided in
Article 4 of this Lease, and either party may be like written notice at any time
designate a different address to which notices shall subsequently be sent or
rent to be paid.
RULES AND REGULATIONS:
34. Tenant shall observe and comply with the rules and regulations
hereinafter set forth in "Exhibit C," and with such further reasonable rules and
regulations as Landlord may prescribe, on written notice to Tenant for the
safety, care, and cleanliness of the Building.
INTENT OF PARTIES;
35. Except as otherwise provided herein, the Tenant covenants and agrees
that if it shall any time fail to pay any such cost or expense, or fail to take
out, pay for, maintain, or deliver any of the insurance policies above required,
or fail to make any other payment or perform any other act on its part to be
made or performed as in this Lease provided, then the Landlord may, but shall
not be obligated so to do, and without notice to or demand upon the Tenant and
without waiving or releasing the Tenant from any obligations of the tenant in
this Lease contained, pay any such cost or expense, effect any such insurance
coverage and pay premiums therefor, and may make any other payment or perform
any other act on the part of the tenant to be made and performed as in this
Lease provided, in such manner and to such extent as the Landlord may deem
desirable, and in exercising any such right, to also pay all necessary and
incidental costs and expenses, employ counsel, and incur and pay reasonable
attorneys' fees.
9/92 -10-
All sums so paid by Landlord and all necessary and incidental costs and expenses
in connection with the performance of any such act by the landlord together with
interest thereon at the rate of twelve percent (12%) per annum from the date of
---------------------
making of such expenditure, by Landlord, shall be deemed additional rent
hereunder, and shall be payable to Landlord on demand. Tenant covenants to pay
any such sum or sums with interest as aforesaid and the landlord shall have the
same rights and remedies in the event of the non-payment thereof by Tenant as in
the case of default by Tenant in the payment of the Base Rent payable under this
Lease.
GENERAL:
36. The Lease does not create the relationship of principal and agent or
of partnership or of joint venture or of any association between Landlord and
Tenant, the sole relationship between the parties hereto being that of landlord
and tenant.
No waiver of any default of Tenant hereunder shall be implied from any
omission by landlord to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect any default
other than the default specified in the express waiver and that only for the
time and to the extent therein stated. One or more waivers by Landlord shall
not be construed as a waiver of a subsequent breach of the same covenant, term,
or condition. the consent to or approval by Landlord of any act by Tenant
requiring Landlord's consent or approval shall not waive or render unnecessary
Landlord's consent to or approval of any subsequent similar act by Tenant. No
action required or permitted to be taken by or on behalf of Landlord under the
terms or provisions of this Lease shall be deemed to constitute an eviction or
disturbance of Tenant's possession of the Demised Premises. All preliminary
negotiations are merged into and incorporated in this Lease. The laws of the
State of Minnesota shall govern the validity, performance, and enforcement of
this Lease.
a. This Lease and the exhibits, if any, attached hereto and forming
a part hereof, constitute the entire agreement between Landlord and Tenant
affecting the Demised Premises and there are no other agreements, either oral or
written, between them other than are herein set forth. No subsequent alteration,
amendment, change, or addition to this Lease shall be binding upon Landlord or
Tenant unless reduced to writing and executed in the same form and manner in
which this Lease is executed.
b. If any agreement, covenant, or condition of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such agreement, covenant, or condition to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and each agreement, covenant, or condition of his Lease shall be valid
and be enforced to the fullest extent permitted by law.
HAZARDOUS MATERIAL:
37. a. The Demised Premises hereby leased shall be used by and/or at the
sufferance of Tenant only for the purpose set forth in Article 11 above and for
no other purposes. Tenant shall not use or permit the use of the Demised
Premises in any manner that will tend to create waste or a nuisance, or will
tend to unreasonably disturb other tenants in the Building. Tenant, its
employees and all persons visiting or doing business with Tenant in the building
shall be bound by and shall observe the Building Rules and Regulations attached
to this Lease as Exhibit "C," and such further and other reasonable rules and
regulations made hereafter by Landlord relating to the Demised Premises or the
Building of which notice in writing shall be given to the Tenant, and all such
rules and regulations shall be deemed to be incorporated into and for a part of
this Lease.
b. Tenant covenants throughout the Lease Term, at Tenant's sold
cost and expense, promptly to comply with all laws and ordinances and the order,
rules, and regulations and requirements of all federal, state, and municipal
governments and appropriate departments, commissions, boards, and officers
thereof, and the orders, rules, and relations of the Board of Fire Underwriters
where the Demised Premises are situated, or any other body now or hereafter well
as extraordinary, and whether or not the same require structural repairs or
alterations, which may be applicable to the Demised Premises, or the use or
manner of use of the Demised Premises. Tenant will likewise observe and comply
with the requirements of all policies of public liability, fire, and all other
policies of insurance at any time in force with respect to the buildings and
improvements on the Demised Premises and the equipment thereof.
c. In the event any Hazardous Material (hereinafter defined) is
brought or caused to be brought into or onto the Demised Premises or the
Building by Tenant, Tenant shall handle any such material in compliance with all
applicable federal, state, and/or local regulations. For purposes of this
Article, "Hazardous Material" means and includes any hazardous, toxic, or
dangerous waste, substance or material defined as such in (or for purposes of)
the Comprehensive Environmental Response, Compensation, and Liability Act, any
so-called "Superfund" or "Superlien" law, or any federal, state, or local
statute, law, ordinance, code, rule, regulation, order, or decree regulating,
relating to, or imposing liability or standards of conduct concerning any
hazardous, toxic, or dangerous waste, substance or material, as now or at any
time hereafter in effect.
-11-
9/92
Tenant shall submit to Landlord on an annual basis copies of its approved
hazardous materials communication plan, OSHA monitoring plan, and permits
required by the Resource Recovery and Conservation Act of 1976, if Tenant is
required to prepare, file, or obtain any such plans or permits. Tenant will
indemnify and hold harmless Landlord from any losses, liabilities, damages,
costs, or expenses (including reasonable attorneys' fees) which Landlord may
suffer or incur as a ressult of Tenant's introduction into or onto the Premises
of any Hazardous Material. This Article shall survive the expiration or sooner
termination of this Lease. To the best of the Landlord's knowledge, no
environmental contamination exists in the building as of the date of the lease.
CAPTIONS:
38. The captions are inserted only as a matter of convenience and for
reference, and in no way define, limit, or describe the scope of this Lease nor
the intent or any provision thereof.
EXHIBITS:
39. Reference is made to Exhibits A through E inclusive, which Exhibits
are attached hereto and made a part hereof.
EXHIBIT DESCRIPTION
------- -----------
Exhibit A Legal Description
Exhibit B Demised Premises
Exhibit C Building Rules and Regulations
Exhibit D Sign Criteria
Exhibit E Estoppel Certificate
40. Submission of this instrument to Tenant or proposed Tenant or his
agents or attorneys for examination, review, consideration, or signature does
not constitute or imply an offer to lease, reservation of space, or option to
lease, and this instrument shall have no binding legal effect until execution
hereof by both Landlord and Tenant or its agents.
41. It is agreed and understood that Xxxxx Xxxxxxxxxxxx, agent or broker
--------------------
with Welsh Companies, Inc., is representing The Northwestern Mutual Life
---------------------
Insurance Company, Landlord, and Xxxx Xxxxx, agent or broker with Xxxx
----------- ----
Properties, Inc., is representing FieldWorks, Inc., Tenant.
------------------ -----------------
42. also see rider attached hereto and made a part hereof containing
Articlees 43 through Articles 45 inclusive.
-- --
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9/92
IN WITNESS EHREOF, the Landlord and the Tenant have caused these presents to be
executed in form and manner sufficient to bind them at law, as of the day and
year first above written.
TENANT: LANDLORD:
FieldWorks, Inc. THE NORTHWESTERN MUTUAL LIFE
-------------------------------------
(A Minnesota Corporation) INSURANCE COMPANY
-------------------------------------
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------- --------------------------------
Xxxx X. Xxxxxx Xxxxxx X. Xxxxx
Its: President and CEO Its: Senior Real Estate Officer
---------------------------------- -------------------------------
STATE OF )
)ss
COUNTY OF )
On this _____ day of ________________, 199__, personally came before me, a
Notary Public within and for said foregoing instrument, and acknowledged that
he executed the same as his free act and deed.
Notary Public ___________________________________
My Commission Expires -__________________________
STATE OF )
)ss
COUNTY OF )
On this _____ day of ________________, 199__, before me appeared
_________________________ and _____________________ , Vice President and
Assistant Secretary, respectively, of The Northwestern Mutual Life Insurance
Company, who are personally to me known and known to me to be such Vice
President and Assistant Secretary and to be the same persons who, as such
officers, executed the foregoing instrument of writing in the name of said
corporation and duly and severally acknowledged the execution thereof as the
free act and deed of said corporation.
Notary Public ___________________________________
My Commission Expires ___________________________
This instrument was prepared for
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
by Xxxxx Xxxxxxxx, Attorney
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
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9/92
RIDER TO LEASE
DATED MAY 10, 1994
BY AND BETWEEN
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, LANDLORD
AND
FIELDWORKS, INC.
(A MINNESOTA CORPORATION), TENANT
Article 43 - Early Occupancy:
In the event the Demised Premises becomes available and ready for occupancy
prior to the Commencement Date, Landlord may elect Tenant to take occupancy
of the Demised Premises. Such occupancy by Tenant shall be subject to all
of the terms and conditions hereof, except no Base Rent or Additional Rent
will be charged.
Article 44 - Improvements:
The Landlord will, at no expense to Tenant, recarpet the office area,
repair broken lunchroom cabinets, repaint the office area, revarnish the
existing doors, service and certify the HVAC electrical and plumbing
systems are in proper working condition upon the Lease Commencement Date
and rekey the Demised Premises. Any additional improvements other than
those described above must be approved by the Landlord and completed at the
sole cost of the Tenant.
Article 45 - First Opportunity To Lease Additional Space:
A. Provided Tenant is not in default and has performed all of its
obligations hereunder, Tenant shall have the First Opportunity to
lease such other contiguous spaces in their entirety, or at Landlord's
direction, some portion thereof, as they become available for leasing
during the Lease Term ("First Opportunity") for a term coterminous
with this Lease at the then prevailing market rental rates for
office/warehouse upon the following other terms and conditions:
B. Upon notification in writing by Landlord that such space is available,
Tenant shall have five (5) business days in which to elect in writing
so to lease such space, in which event the lease for same shall
commence not more than thirty (30) days after such space becomes
vacant and shall be coterminous with this Lease.
C. In the event Tenant declines or fails to elect so to lease such space,
then the First Opportunity hereby granted so as to such space shall
automatically terminate and shall thereafter be null and void as to
such space.
D. It is understood that this First Opportunity shall not be construed to
prevent any other tenant in the Building from extending or renewing
its lease.
E. The First Opportunity hereby granted is personal to FieldWorks, Inc.,
is not transferrable; in the event of any assignment of subletting
under this Lease, this First Opportunity shall automatically terminate
and shall thereafter be null and void.
TENANT: LANDLORD:
FIELDWORKS, INC. THE NORTHWESTERN MUTUAL
(A MINNESOTA CORPORATION) LIFE INSURANCE COMPANY
BY: /s/ Xxxx X. Xxxxxx BY: /s/ Xxxxxx X. Xxxxx
---------------------------- --------------------------------
Xxxx X. Xxxxxx Xxxxxx X. Xxxxx
ITS: President and CEO ITS: Senior Real Estate Office
--------------------------- -------------------------------
DATE: 5/16/94 DATE: 5/16/94
--------------------------- ------------------------------
-14-
EXHIBIT 'A'
LEGAL DESCRIPTION
Portnoys 2nd Addition, Xxx 000, Xxxxx 000
XXXXXXX 'B'
FLOOR PLAN
EXHIBIT "C"
BUILDING RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement installed on or in
any part of the Premises and visible from the exterior of the Office/Showroom
Complex, or visible from the exterior of the Premises, shall be installed at
Tenant's sole cost and expense, and in such manner, character and style as
Landlord may approve in writing. In the event of a violation of the foregoing
by Tenant, Landlord may remove the same without any liability and may charge the
expense incurred by such removal to Tenant.
2. No awning or other projection shall be attached to the outside walls of the
Office/Showroom Complex. No curtains, blinds, shades or screens visible from
the exterior of the Premises, shall be attached to or hung in, or used in
connection with any window or door of the Premises without the prior written
consent of Landlord. Such curtains, blinds, shades, screens or other fixtures
must be of a quality, type, design and color, and attached in the manner
approved by Landlord.
3. Tenant, it's servants, employees, customers, invitees and guests shall not
obstruct sidewalks, entrances, passages, corridors, vestibules, halls, or
stairways in and about the Office/Showroom Complex which are used in common with
other tenants and their servants, employees, customers, guests and invitees, and
which are not a part of the Premises of Tenant. Tenant shall not place objects
against glass partitions or doors or windows which would be unsightly from the
Office/Showroom Complex corridors or from the exterior of the Office/Showroom
Complex and will promptly remove any such objects upon notice from Landlord.
4. Tenant shall not make excessive noises, cause disturbances or vibrations or
use or operate any electrical or mechanical devices that emit excessive sound or
other waves or disturbances or create obnoxious odors, any of which may be
offensive to the other tenants and occupants of the Office/Showroom Complex, or
that would interfere with the operation of any device, equipment, radio,
television broadcasting or reception from or within the Office/Showroom Complex
or elsewhere and shall not place or install any projections, antennas, aerials
or similar devices inside or outside of the Premises or on the Office/Showroom
Complex without Landlord's approval.
5. Tenant shall not waste electricity, water or air conditioning and shall
cooperate fully with Landlord to insure the most effective operation of the
Office/Showroom Complex's heating and air conditioning systems and shall refrain
from attempting to adjust any controls other than unlocked room thermostats, if
any, installed for Tenant's use. Tenant shall keep corridor doors closed.
Exhibit "C"
Building Rules and Regulations
Page Two
6. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other means
of entry to the Premises closed and secured after normal business hours.
7. In no event shall Tenant bring into the Office/Showroom Complex
inflammables, such as gasoline, kerosene, naphtha and benzine, or
explosives or any other article of intrinsically dangerous nature. If, by
reason of the failure of Tenant to comply with the provisions of this
subparagraph, any insurance premium for all or any part of the
Office/Showroom Complex shall at any time be increased. Tenant shall make
immediate payment of the whole of the increased insurance premium, without
waiver of any of Landlord's other rights at law or in equity for Tenant's
breach of this Lease.
8. Tenant shall comply with all applicable federal, state and municipal laws,
ordinances and regulations, and building rules and shall not directly or
indirectly make any use of the Premises which may be prohibited by any of
the foregoing or which may be dangerous to persons or property or may
increase the cost of insurance or require additional insurance coverage.
9. Landlord shall have the right to prohibit any advertising by Tenant which
in Landlord's reasonable opinion tends to impair the reputation of the
Office/Showroom Complex or its desirability as an Office/Showroom Complex
for office use, and upon written notice from landlord, Tenant shall refrain
from or discontinue such advertising.
10. The Premises shall not be used for lodging, sleeping or for any immoral or
illegal purpose.
11. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully and comply strictly with the foregoing rules and
regulations and such other and further appropriate rules and regulations as
Landlord or Landlord's agent may from time to time adopt. Reasonable notice
of any additional rules and regulations shall be given in such manner as
Landlord may reasonably elect.
12. Unless expressly permitted by the Landlord, no additional locks or similar
devices shall be attached to any door or window and no keys other than
those provided by the Landlord shall be made for any door. If more than two
keys for one lock are desired by the Tenant, the Landlord may provide the
same upon payment by the Tenant. Upon termination of this lease or of the
Tenant's possession, the Tenant shall surrender all keys of the Premises
and shall explain to the Landlord all combination locks on safes, cabinets
and vaults.
Exhibit "C"
Building Rules and Regulations
Page Three
13. Any carpeting cemented down by Tenant shall be installed with a releasable
adhesive. In the event of a violation of the foregoing by Tenant, Landlord
may charge the expense incurred by such removal to Tenant.
14. The water and wash closets, drinking fountains and other plumbing fixtures
shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds, or other
substances shall be thrown therein. All damages resulting from any misuse
of the fixtures shall be borne by the Tenant who, or whose servants,
employees, agents visitors or licensees, shall have caused the same. No
person shall waste water by interfering or tampering with the faucets or
otherwise.
15. No electric circuits for any purpose shall be brought into the leased
premises without Landlord's written permission specifying the manner in
which same may be done.
16. No dogs or other animals shall be allowed in office, halls, corridors, or
elsewhere in the building.
17. Tenant shall not throw anything out of the door or windows, or down any
passageways or elevator shafts.
18. All leading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse shall be made only through the entryways and
freight elevators provided for such purposes and indicated by Landlord.
Tenant shall be responsible for any damage to the building or the property
of its employees or to others and injuries sustained by any person
whomsoever resulting from the use of or moving of such articles in or out
of the leased premises, and shall make all repairs and improvements
required by landlord or governmental authorities in connection with the use
or moving of such articles.
19. All safes, equipment or other heavy articles shall be carried in or out of
the Premises only at such time and in such manner as shall be prescribed in
writing by landlord, and Landlord shall in all cases have the right to
specify the proper position of any such safe, equipment or other heavy
article, which shall only be used by Tenant in a manner which will not
interfere with or cause damage to the leased premises or the building in
which they are located, or to the other tenants or occupants of said
building. Tenant shall be responsible for any damage to the building or the
property of its employees or other and injuries sustained by any person
whomsoever resulting from the use or moving of such articles in or out of
the leased premises, and shall make all repairs and improvements required
by landlord or governmental authorities in connection with the use or
moving of such articles.
Exhibit "C"
Building Rules and Regulations
Page Four
20. Canvassing, soliciting, and peddling in the building is prohibited and
each Tenant shall cooperate to prevent the same.
22. Wherever in these Building Rules and Regulations the word "Tenant" occurs,
it is understood and agreed that it shall mean Tenant's associates, agents,
clerks, servants, and visitors. Wherever the work "Landlord" occurs, it is
understood and agreed it shall mean Landlord's agent, clerks, servants, and
visitors.
23. Landlord shall have the right to enter upon the leased premises at all
reasonable hours for the purpose of inspecting the same.
24. Landlord shall have the right to enter the leased the premises at hours
convenient to Tenant for the purpose of exhibiting the same to prospective
tenants within the sixty (60) day period prior to the expiration of this
Lease, and may place signs advertising the leased premises for rent on the
windows and doors of said Premises at any time within said sixty (60) day
period.
25. Tenant, it's servants, employees, customers invitees and guests shall, when
using the common parking facilities, if any, in and around the building,
observe and obey all signs regarding fire lanes and no parking zones, and
when parking always park between the designated lines. Landlord reserves
the right to tow away, at the expense of the owner, any vehicle which is
improperly parked, or parked in a no parking zone. All vehicles shall be
parked at the sole risk of the owner, and Landlord assumes no
responsibility for any damage to or loss of vehicles. No vehicles shall be
parked over night outside the premises without notice to landlord or its
agents.
26. All entrance doors to the Premises shall be locked when the Premises are
not in use. All corridor doors shall also during times when the air
conditioning equipment in the Office/Showroom Complex is operating so as
not to dissipate the effectiveness of the systems or place an overload
thereon.
27. Landlord reserves the right at any time to rescind, alter or waive, in
whole or in part, any of these Rules and Regulations when it is deemed
necessary, desirable, or proper, in Landlord's judgment, for its best
interest or for the best interest of the tenants of the Office/Showroom
Complex.
EXHIBIT "D"
SIGN CRITERIA
Oak Park Business Center
0000-0000 Xxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, XX
A sign criteria has been established for this project, and tenants will be
required to comply with the criteria.
1. Tenant Identification shall be by way of 30" in height x 28" in width
1/4" thick integral plexiglass signs with 1" wide x 4" high gold
colored vinyl letters, Helvetica medium style. The plexiglass will be
mounted by the entry doors including offset mounts from the wall.
2. Rear shipping identification shall be by way of 6" letters, Helvetica
Style, bronze in mounted above the shipping doors. In addition, if
desired, 3" white letters may be used on the rear entry doors.
3. Scaled drawings of the proposed signage must be submitted to the
manager of the property, Welsh Companies, 00000 X. 00xx Xxxxxx, Xxxx
Xxxxxxx, XX 00000 and be approved prior to sign construction.
4. The City manager of Eden Prairie has been instructed not to issue sign
permits for any sign unless accompanies on the necessary application
by a copy of the approved scaled drawing.
5. To assist tenants in complying with the sign criteria, a sign
consultant has been retained for the project. He is Xxxxx Xxxxxxx, 0000 0xx
Xxxxxx Xxxxx, Xxxxxxx, XX 00000; telephone number --(612) 000-0000.
EXHIBIT "E"
ESTOPPEL CERTIFICATE
(BY SPACE TENANT)
IRE NO. _____________
Premises: _____________________________________________________________________
Lease dated _______________________________ between The Northwestern Mutual Life
Insurance Company, Landlord and _______________________________________________,
Tenant, commencing _____________________________________________________, 19___.
The undersigned, the Tenant under the above Lease, hereby certifies to ________,
the proposed purchaser (or mortgate) of the above Premises:
1. that said Lease is presently in full force and effect and unmodified
except as indicated at the end of this certificate*;
2. that the undersigned has accepted possession of said Demised Premises
and that any improvements required by the terms of said Lease to be
made by the Landlord have been completed to the satisfaction of the
undersigned;
3. that no rent under said Lease has been paid more than thirty (30) days
in advance of its due date;
4. that the address for notices to be sent to the undersigned is as set
forth in said Lease, or set forth below; and
5. that the undersigned, as of this date, has no charge, lien or claim of
setoff under said Lease or otherwise, against rents or other charges
due or to become due thereunder.
DATED: ________________________________, 19___ ________________________________
Address: _______________________
________________________________
* Lease modifications, if any, to be listed here:
