LEASE AGREEMENT
THIS LEASE AGREEMENT dated JUNE 24, 1999, by and between PRINCIPAL LIFE
INSURANCE COMPANY, AN IOWA CORPORATION, C/O PRINCIPAL CAPITAL MANAGEMENT, LLC, A
DELAWARE LIMITED LIABILITY COMPANY, 000 XXXXX XXXXXX, XXX XXXXXX, XX 00000-0000,
("Landlord"), and LSC, INC., A MINNESOTA CORPORATION, whose address for the
purpose of this lease (Lease) shall be 0000 XXXXX XXXXXXXXXX XXXX, XXXXX 000,
XXXXX, XX 00000, ("Tenant").
IT IS AGREED AS FOLLOWS:
1. DEMISE.
Landlord does hereby lease to Tenant and Tenant hereby rents the
premises (Premises) described as: 11,932 square feet of net rentable
area consisting of approximately 11,419 square feet of office space and
513 square feet of warehouse space located at 0000 XXXXX XXXXXXXXXX
XXXX, XXXXX, XX, which, more particularly, includes the space and
Premises shown on the site plan attached hereto and marked EXHIBIT "A".
IMPROVEMENTS. Landlord shall prepare and furnish the drawings and
specifications as needed for all improvements set forth in EXHIBIT "B"
("LANDLORDS WORK"), which is attached hereto and made a part hereof.
2. TERM.
The term of this Lease shall be for a period of SIXTY (60) months,
commencing on the 1ST day of AUGUST, l999 and ending at midnight on the
31ST day of JULY, 2004 ("Lease Term"). Notwithstanding said
commencement date, if for any reason Landlord cannot deliver possession
of the leased Premises to the Tenant on or by AUGUST 1, 1999, Tenant
shall not be obligated to pay rent until possession of the Premises is
tendered to Tenant and Landlords work is substantially completed. In
such event, the term of the Lease shall be extended so that the term
remains SIXTY (60) months. If the leased Premises are delivered on a
date other than the 1st day of the month, rent for that month shall be
prorated and the term extended for the full term from the first day of
the following month. However if possession is not delivered on or
before August 1, 1999, Tenant shall have the right to occupy its leased
premises at 0000 Xxxxxx Xxxx Xxxx at a monthly gross rent of $8,500.00
or prorated month thereof until such time as the Landlord is able to
deliver to Tenant possession of the Premises. It is understood that
Landlord and Tenant shall execute a separate lease for the premises at
0000 Xxxxxx Xxxx Xxxx which will further define the terms and
conditions for said space. In the event that the delay of delivery of
possession results from Tenant's failure to perform work for which
Tenant is responsible, or fails to furnish or approve, as agreed, the
plans and specifications as provided above, or fails to make timely
selections of materials, color choices or other matters for which
Tenant is responsible, the rent shall, nonetheless, commence on the
commencement date stated above. If Tenant occupies the Premises prior
to said commencement date, such occupancy shall be subject to all
provisions hereof and shall not advance the termination date, and
Tenant shall not pay Base Rent and Operating Expenses for such early
possession period. Tenant shall pay utilities during such early
possession period
3. RENT.
(STEP RENT)
(A) RENT. Tenant shall pay for the use and occupancy of the
Premises a base rental (Rent) sum payable in equal monthly
installments on the first day of each month in advance without
demand during the Lease Term. Tenant's base rental sum during
the Lease shall be paid as follows:
Annual Monthly
------ -------
Months 1 - 30 $ 96,410.56 $8,034.21
Months 31-60 $106,051.62 $8,837.63
Rent of any period during the Lease Term hereof which is less than one
month shall be a pro-rata portion of the monthly installment. Rent
shall be payable in lawful money of the United States to Landlord at
the address stated herein or to such other persons or at such other
places as Landlord may designate in writing.
(B) PLACE OF PAYMENT. All such rentals shall be paid to Landlord
at CB XXXXXXX XXXXX, XX XXX 0000, XX 0000-0X000, XXXXXXXXXXX,
XX 00000-0000 or at such place as Landlord may designate from
time to time, in writing addressed to Tenant.
(C) LATE CHARGE. Tenant hereby acknowledges that late payment by
Tenant of Rent or other sums due thereunder will cause
Landlord to incur costs not contemplated by this Lease.
Therefore, if any installment of Rent or any other sum due
from Tenant shall not be received by Landlord within ten (10)
days after such amount is due, Tenant shall pay to Landlord a
late charge of six percent (6%) of such overdue amount.
Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such
overdue amount or prevent Landlord from exercising any other
right or remedy available to Landlord.
(D) RECEIPT. Receipt is hereby acknowledged of the sum of
$11,076.87 in payment of the monthly base and operating
expense Rents for the first month of the Lease Term.
(E) SECURITY DEPOSIT. Tenant shall deposit with Landlord upon
execution hereof $11,880.29 as security for Tenant's faithful
performance of Tenant's obligation hereunder. If Tenant fails
to pay Rent or other charges due hereunder or otherwise
defaults with respect to any provision of the Lease, Landlord
may use, apply or retain all or any portion of said deposit
for the payment of any Rent or other charge in default or for
the payment of any other sum to which Landlord may become
obligated by reason of Tenant's default, or to compensate
Landlord for any loss or damage which Lessor may suffer
thereby. If Landlord so uses or applies all or any portion of
said deposit, Tenant shall within ten (10) days after written
demand therefor deposit cash with Landlord in an amount
sufficient to restore said deposit to the full amount herein
above stated and Tenant's failure to do so shall be a material
breach of this Lease. If the monthly Rent shall, from time to
time increase during the Lease Term, Tenant shall thereupon
deposit with Landlord additional security deposit so that the
amount of security deposit held by Landlord shall at all times
bear the same proportion to current rent as the original
security deposit bears to the original monthly Rent set forth
in Paragraph 3A hereof. Landlord shall not be required to keep
said deposit separate from its general accounts. If Tenant
performs all of Tenant's obligations hereunder, said deposit,
or so much thereof as has not theretofore been
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applied by Landlord shall be returned, without payment of
interest or other increment for its use to Tenant (or at
Landlord's option, to the last assignee, if any, of Tenant's
interest hereunder) at the expiration of the Lease Term
hereof, and after Tenant has vacated the Premises. No trust
relationship is created herein between Landlord and Tenant
with respect to said Security Deposit except as created under
Minnesota statutes.
Tenant hereby agrees not to look to any mortgagee as
mortgagee, mortgagee-in-possession or successor in title to
the Premises for accountability for any security deposit
required by Landlord hereunder, unless said sums have actually
been received by said mortgagee as security for Tenant's
performance of this Lease. Subject to any Tenant defaults
which have not been cured, Landlord shall deliver the funds
deposited hereunder by Tenant to the purchaser of Landlord's
interest in the Premises, in the event that such interest is
sold, and thereupon Landlord shall be discharged from any
further liability with respect to said security deposit
(F) PRO RATA SHARE. Tenant's proportionate share shall be the
percentage which the square footage of the Premises bears to
the total square footage of the following-described
building(s) 0000 XXXXX XXXXXXXXXX XXXX, XXXXX, XX, CONSISTING
OF APPROXIMATELY 60,164 SQUARE FEET ("BUILDING").
Tenant's pro rata share equals 19.83% (11,932 square feet
divided by 60,164 square feet)
4. PERMITTED USE.
Tenant covenants that the Premises will be used as general office and
warehouse ("Permitted Use") together with the incidental activities of
Tenant, its affiliated companies or other subsidiary companies and for
no other use or purpose. Tenant further covenants that the Premises
will not be used or occupied for any unlawful purposes. Tenant agrees
to and shall use the Premises solely for the purpose of conducting the
Permitted Use and for no other business or purpose. Tenant agrees to
conduct Tenant's business in the Premises under Tenant's Trade Name,
which Tenant represents that it has the right to use. Tenant
acknowledges that the Permitted Use is not a use granted exclusively to
Tenant and that Landlord reserves the right to lease premises in the
building to others for the same or a similar Permitted Use. Tenant
further acknowledges that it has received no written or oral
inducements from Landlord or any of Landlord's representatives
concerning this Lease (other than as specifically set forth herein) or
that Tenant will be granted any such exclusive rights. Tenant further
covenants that the Premises will not be used or occupied for any
unlawful purposes. The Tenant will not make or permit to be made any
use of the Premises or any part thereof which would violate any of the
covenants, agreements, terms, provisions and conditions of this Lease
or which directly or indirectly is forbidden by public law, ordinance
or governmental regulation; or make or permit any use of the Premises
which may be dangerous, noxious or offensive or create or maintain any
nuisance or disturbance in, at or on the Premises; or make or permit
any use of the Premises which may invalidate, or increase the premium
cost of any policy of insurance carried on the Building and environs
and their operation, or any use which, in Landlord's sole judgement,
shall impair the character, reputation or appearance of the Building
and environs.
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5. OPERATING EXPENSES.
TAXES, UTILITIES, REPAIRS, MAINTENANCE AND REPLACEMENT
(1) Taxes
(a) The Landlord shall pay all taxes payable
during the Lease Term before the same are
delinquent.
(b) If in the future a tax or other charge on
Rents shall be imposed by any governing body
having the authority to impose such tax or
charge, then such tax or charge shall
likewise be the obligation of the Landlord.
(c) As used herein, the term "taxes" shall mean
real estate taxes, assessments (whether they
be general or special), sewer rents, rates
and charges, transit and transit district
taxes, taxes based upon the receipt of rent,
and any other federal, state or local
governmental charge, general, special,
ordinary or extraordinary (but not including
income or franchise taxes or any other taxes
imposed upon or measured by Landlord's
income or profits, except as provided
herein), which may now or hereafter be
levied, assessed or imposed against the
Premises.
(2) Tenant shall pay all utility bills incurred for which
the Tenant is not separately metered including but
not limited to water, gas, electricity, fuel, light,
heat and power bills.
(3) Landlord shall be responsible for providing the
following: (a) trash removal for the Building common
areas subject to Paragraph 5.3; (b) any vendor
services to the building common areas; (c)
landscaping; (d) all labor costs and supply costs
involved in the operation of the building; (e) all
other services of any kind and nature which may be
used in or upon the Premises (except as provided for
elsewhere in this Lease); (f) management fees paid
for the management of the Premises; (g) and the
repair, maintenance and replacement of the Building
and improvements as follows: (i) the roof; (ii) all
interior and exterior components of the building and
improvements both structural or otherwise; (iii)
parking lot, (iv) sidewalks, alleys and any and all
access drives, including the removal of snow and ice
therefrom; (v) common area heating and air
conditioning equipment, lines and fixtures; (vi)
plumbing equipment, lines and fixtures, including but
not limited to fire sprinkler and fire control
systems; (vii) electrical equipment, lines and
fixtures; (viii) all ingress-egress doors; (ix) plate
glass; (x) all utility lines and services; (xi)
preventive maintenance to all the Building heating
and air conditioning systems; (xii) and any and all
other repairs maintenance and replacements to the
building and improvements during the term of this
Lease.
(4) Landlord shall be responsible for providing Property
and Liability Insurance for the Premises. Should
Landlord choose to self-insure, the cost of
maintaining such self insurance shall be considered
an expense of the property. In no event will the cost
exceed the cost of maintaining first dollar coverage.
(5) Tenant, at Tenant's sole expense, shall comply with
all laws, rules, orders, ordinances, directions,
regulations and requirements of federal, state,
county, and
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municipal authorities now in force or which may
hereafter be in force, which shall impose any duty
upon the Landlord or Tenant with respect to the use,
occupation or alteration of the Premises, except as
otherwise provided in this Lease.
(6) All items listed in this paragraph 5(1) through
paragraph 5(4) shall hereinafter be referred to as
"Operating Expenses."
Notwithstanding the foregoing, Operating Expenses shall not, however,
include:
(i) depreciation, interest (except as set forth below with
respect to amortization of capital improvements) and
amortization on mortgages, and other debt costs or ground
lease payments, if any; legal fees in connection with leasing,
tenant disputes or enforcement of leases; real estate brokers'
leasing commissions; improvements or alterations to tenant
spaces; the cost of providing any service directly to and paid
directly by any tenant; any costs expressly excluded from
Operating Expenses elsewhere in this lease; costs of any items
to the extent Landlord receives reimbursement from insurance
proceeds or from a third party (such proceeds to be deducted
from operating Expenses in the year in which revised); and
(ii) capital expenditures except for; (a) the costs of any
capital improvements, equipment or devices installed or paid
for by Landlord (1) required or desired for the health and
safety of tenants and occupants, (2) to conform with any
change in public laws, ordinances or government regulations,
whether federal, state, local, or municipal, rules,
regulations or requirements of any governmental or quasi
governmental authority having jurisdiction not applicable to
the building as of the date of original construction or of the
board of fire underwriters or similar insurance body, or (3)
to effect a labor saving, energy saving or other economy
amortized over the useful life of such capital improvement,
equipment or device.
6. ADDITIONAL RENT (NET CLAUSE).
It is understood that the Rent set forth in paragraph 3 of the Lease
was negotiated in anticipation that the Tenant pays for a pro-rata
share of the Operating Expenses not paid directly by Tenant, defined in
paragraph 5 of the Lease. Therefore, in order that Rent payable
throughout the term of this Lease shall reflect such costs, Tenant
shall pay its pro-rata share of the Operating Expenses defined in
paragraph 5 which are estimated to be THREE AND 06/100 DOLLARS ($3.06)
per square foot per annum or THREE THOUSAND FORTY-TWO AND 66/100
($3,042.66) per month in 1999. At the beginning of the Lease Term and
within 60 days after the first day of each calendar year, Landlord
shall furnish to Tenant an estimate of Tenant's pro-rata share of
Operating Expenses, not paid directly by Tenant, defined in Paragraph 5
for the ensuing calendar year. Tenant shall pay to Landlord 1/12th of
said estimate at the same time and place as the base rent is to be paid
pursuant to paragraph 3, above. Landlord will furnish a statement of
the actual cost with respect to the reimbursable expenses no later than
sixty (60) days following the calendar year-end including the year
following the year in which the Lease terminates. In the event that
Landlord is, for any reason, unable to furnish the accounting for the
prior year within the time specified above, the Landlord will furnish
such accounting as soon thereafter as practicable with the same force
and effect as the statement would have had if delivered within the time
specified above. Tenant will pay any deficiency to Landlord as shown by
such statement within thirty (30) days after receipt of statement. If
the total amount paid by Tenant during any calendar year exceeds the
actual amount of its share of the Operating Expenses due for such
calendar year, the excess
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will be refunded by Landlord within thirty (30) days of the date of the
statement. Landlord will keep books and records showing the Operating
Expenses in accordance with generally accepted accounting principles.
Upon five (5) business days notice, Tenant shall have the right to
inspect the books and records at the office of the Landlord or its
Manager.
7. REPAIRS AND MAINTENANCE
Notwithstanding anything to the contrary contained herein, the Tenant
will keep, maintain and preserve the Premises in a first class
condition, normal wear and tear excepted. The Tenant at its sole cost
and expense will provide janitorial and window washing for the interior
of the Premises. In addition, Tenant shall be responsible for all
utility services for which the Tenant is separately metered. When and
if needed, at the Tenant's sole cost and expense, the Tenant will make
all interior repairs and replacements including but not limited to
interior walls, doors and windows, floors, floor coverings, light
bulbs, plumbing fixtures, heating/air conditioning systems, hot water
systems, and electrical fixtures. Tenant shall also make all repairs
and replacements to Tenant's overhead garage and exterior pedestrian
doors. The Tenant will also repair and replace at its sole cost and
expense any broken windows and/or damage to the building or Premises
caused by the negligence of the Tenant or its employees, agents, guests
or invitees during the Lease Term hereof. The above repairs,
replacements, and/or services must be performed by an approved
contractor of the Landlord. Should Tenant fail to perform all interior
repairs and replacements to Tenant's Premises such repairs may be
performed by the Landlord and charged to the Tenant at the Tenant's
sole cost and expense. Except as otherwise provided in this Lease,
Tenant will comply with all ordinances of the City of XXXXX, rules and
regulations of the Board of Health and the laws of the State of
MINNESOTA. The Tenant is also responsible for compliance with all laws,
rules and regulations of any governmental authority required of either
the Landlord or the Tenant relative to the repair, maintenance and
replacement in the Premises
NOTWITHSTANDING ANYTHING TO THE CONTRARY, LANDLORD SHALL BE RESPONSIBLE
FOR CUMULATIVE REPAIRS OR REPLACEMENT COSTS OF THE ROOF TOP HVAC UNITS
IN EXCESS OF $2,000.00 PER YEAR. IN ADDITION, LANDLORD AT LANDLORD'S
COST, SHALL HAVE A THIRD PARTY CONTRACTOR CERTIFY THAT THE HVAC UNITS
AND OVERHEAD DOORS SERVICING THE PREMISES ARE IN GOOD WORKING CONDITION
UPON THE COMMENCEMENT DATE OF THIS LEASE.
8. SORTING AND SEPARATION OF REFUSE AND TRASH.
(A) The Tenant covenants and agrees, as its sole cost and expense,
to comply with all present and future laws, orders and
regulations of all state, federal, municipal and local
governments, departments, commissions and boards regarding the
collection, sorting, separation and recycling of waste
products, garbage, refuse and trash. The Tenant shall sort and
separate waste products, garbage, refuge and trash into such
categories as provided by law. Each separately sorted category
of waste products, garbage, refuse and trash shall be placed
in separate receptacles reasonably approved by the Landlord.
Such separate receptacles may, at the Landlord's option, be
removed from the Premises in accordance with a collection
schedule prescribed by law.
(B) The Landlord reserves the right to refuse to collect or accept
from the Tenant any waste products, garbage, refuse or trash
that is not separated and sorted as required by law, and to
require the Tenant arrange for such collection at the Tenant's
sole cost and expense, utilizing a contractor satisfactory to
the Landlord. The Tenant shall pay all costs, expenses, fines,
penalties or damages that may be imposed on the Landlord or
the Tenant by reason of the Tenant's failure to comply with
the provisions of this paragraph 8B, and,
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at the Tenant's sole cost and expense, shall indemnify, defend
and hold the Landlord harmless (including legal fees and
expenses) from and against any actions, claims and suits
arising from such noncompliance, utilizing counsel reasonably
satisfactory to the Landlord.
9. HAZARDOUS WASTE.
The term "Hazardous Substances", as used in this lease shall mean
pollutants, contaminants, toxic or hazardous wastes, or any other
substances, the use and/or the removal of which is required or the use
of which is restricted, prohibited or penalized by any "Environmental
Law", which term shall mean any federal, state or local law, ordinance
or other statute of a governmental or quasi-governmental authority
relating to pollution or protection of the environment. Tenant hereby
agrees that (A) no activity will be conducted on the Premises that will
produce any Hazardous Substance, except for such activities that are
part of the ordinary course of Tenant's business activities (the
"Permitted Activities") provided said Permitted Activities are
conducted in accordance with all Environmental Laws and have been
approved in advance in writing by Landlord; Tenant shall be responsible
for obtaining any required permits and paying any fees and providing
any testing required by any governmental agency; (B) the Premises will
not be used in any manner for the storage of any Hazardous Substances
except for the temporary storage of such materials that are used in the
ordinary course of Tenant's business (the "Permitted Materials")
provided such Permitted Materials are properly stored in a manner and
location meeting all Environmental Laws and approved in advance in
writing by Landlord; Tenant shall be responsible for obtaining any
required permits and paying any fees and providing any testing required
by any governmental agency; (C) no portion of the Premises will be used
as a landfill or a dump; (D) Tenant will not install any underground
tanks of any type; (E) Tenant will not allow any surface or subsurface
conditions to exist or come into existence which are a result of
Tenants, its invitees or employees use of the Premises or Building and
that constitute, or with the passage of time may constitute a public or
private nuisance; (F) Tenant will not permit any Hazardous Substances
to be brought onto the Premises, except for the Permitted Materials
described above, and if so brought or found located thereon, the same
shall be immediately removed, with proper disposal, and all required
cleanup procedures shall be diligently undertaken pursuant to all
Environmental Laws. Landlord or Landlord's representative shall have
the right but not the obligation to enter the Premises for the purpose
of inspecting the storage, use and disposal of Permitted Materials to
ensure compliance with all Environmental Laws. Should it be determined,
in Landlord's sole opinion, that said Permitted Materials are being
improperly stored, used, or disposed of, then Tenant shall immediately
take such corrective action as requested by Landlord. Should Tenant
fail to take such corrective action within 24 hours, Landlord shall
have the right to perform such work and Tenant shall promptly reimburse
Landlord for any and all costs associated with said work. If at any
time during or after the term of the Lease Term, the Premises are found
to be so contaminated or subject to said conditions and are a result of
Tenants, its invitees or employees use of the Premises or Building,
Tenant shall diligently institute proper and thorough cleanup
procedures at Tenant's sole cost, and Tenant agrees to indemnify,
defend and hold harmless Landlord, its lenders, any managing agents and
leasing agents of the Premises, and their respective agents, partners,
officers, directors and employees, from all claims, demands, actions,
liabilities, costs, expenses, damages (actual or punitive) and
obligations of any nature arising from or as a result of the use of the
Premises by Tenant. The foregoing indemnification and the
responsibilities of Tenant shall survive the termination or expiration
of this Lease.
During the Lease Term, Tenant shall promptly provide Landlord with
copies of all summons, citations, directives, information inquiries or
requests, notices of potential responsibility, notices of violation or
deficiency, orders or decrees, claims, complaints, investigations,
judgments,
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letters, notice of environmental liens, and other communications,
written or oral, actual or threatened, from the United States
Environmental Protection Agency, Occupational Safety and Health
Administration, The State of MINNESOTA Environmental Protection Agency
or other federal, state or local agency or authority, or any other
entity or individual, concerning (i) any Hazardous Substance and the
Premises; (ii) the imposition of any lien on the Premises; or (iii) any
alleged violation of or responsibility under any Environmental Law.
10. INSURANCE.
(A) INSURANCE BY LANDLORD.
Landlord shall, during the Lease Term, procure and keep in force the
following insurance, the cost of which may be deemed as additional Rent
payable, by Tenant pursuant to Paragraph 5 or Paragraph 6:
(1) PROPERTY INSURANCE. "All Risk" property insurance,
including, without limitation, coverage for
earthquake and flood; and machinery (if applicable);
sprinkler damage; vandalism; malicious mischief. Such
Insurance shall not cover Tenant's equipment, trade
fixtures, inventory, fixtures or personal property
located on or in the Premises;
(2) LIABILITY INSURANCE. Commercial general liability
(lessor's risk) insurance against any and all claims
for bodily injury, death or property damage occurring
in or about the Building or the Land. Such insurance
shall have a combined single limit of not less than
One Million Dollars ($1,000,000) per occurrence per
location with a Two Million Dollar ($2,000,000)
aggregate limit; and
(3) OTHER. Such other insurance as Landlord deems
necessary and prudent.
(B) INSURANCE BY TENANT.
Tenant shall, during the Lease Term, procure and keep in force
the following insurance:
(1) PERSONAL PROPERTY INSURANCE. "All Risk" property
insurance, including, without limitation, coverage
for earthquake and flood. (if applicable); boiler and
machinery (if applicable); sprinkler damage;
vandalism; malicious mischief on all equipment, trade
fixtures, inventory, fixtures and personal property
located on or in the Premises, including fixtures
hereinafter constructed or installed on the Premises.
Such insurance shall be in an amount equal to the
full replacement cost of the aggregate of the
foregoing and shall provide coverage comparable to
the coverage in the standard ISO all risk form, when
such form is supplemented with the coverages required
above.
(2) LIABILITY INSURANCE. Commercial general liability
insurance for the mutual benefit of Landlord and
Tenant, against any and all claims for personal
injury, death or property damage occurring in, or
about the Premises (and Tenant's operations on the
Premises), or arising out of Tenant's or Tenant's
agents' use or occupancy of the Premises. Such
insurance shall have a combined single limit of not
less than One Million Dollars ($1,000,000) per
occurrence per location with Two Million Dollars
($2,000,000) aggregate limit. Such insurance shall
contain
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a cross-liability (severability of interests) clause
and an extended ("broad form") liability endorsement,
including contractual coverage. The minimum limited
specified above are the minimum amounts required by
Landlord, and may be revised by Landlord from time to
time to meet changed circumstances, including without
limitation to reflect (i) changes in the purchasing
power of the dollar, (ii) changes indicated by the
amount of plaintiff's verdicts in personal injury
actions in the State of MINNESOTA or (iii) changes
consistent with the standards required by other
landlords in the county in which the Premises are
located. Such liability insurance shall be primary
and not contributing to any insurance available to
Landlord, and Landlord's insurance (if any) shall be
in excess thereto.
(3) OTHER. Such other insurance as required by law,
including, without limitation, workers' compensation
insurance.
(4) FORM OF THE POLICIES. The policies required to be
maintained by Tenant pursuant to Paragraphs 10
(B)(1), (2), and (3) above shall be with companies
rated A10 or better in Best Insurance Guide, licensed
to do business in the State of MINNESOTA and
domiciled in USA, on forms, with deductible amounts
(if any), and loss payable clauses satisfactory to
Landlord, shall include Landlord and the beneficiary
or mortgagee of any deed of trust or mortgage
encumbering the Premises as additional insureds, and
shall provide that such parties may, although
additional insureds, recover for any loss suffered by
Tenant's negligence. Certified copies of policies or
certificates of insurance shall be delivered to
Landlord prior to the Commencement Date; a new policy
or certificates shall be delivered to Landlord at
least thirty (30) days prior to the expiration date
of the old policy. Tenant shall have the right to
provide insurance coverage which it is obligated to
carry pursuant to the terms hereof in a blanket
policy, provided such blanket policy expressly
affords coverage to the Premises and to Tenant as
required by this Lease. Tenant shall obtain a written
obligation on the part of Tenant's insurer(s) to
notify Landlord and any beneficiary or mortgagee of a
deed of trust or mortgage encumbering the Premises in
writing of any delinquency in premium payments and at
least thirty (30) days prior to any cancellation or
modification of any policy.
(5) An amount equal to five percent (5%) of the monthly
minimum base Rental shall be charged as additional
Rent for each month in which Tenant fails to deliver
to Landlord a current certificate(s) evidencing that
the insurance required hereunder is being maintained.
Each such policy and certificate shall provide for at
least thirty (30) days prior written notice to
Landlord in the event of cancellation.
(C) FAILURE BY TENANT TO OBTAIN INSURANCE.
If Tenant does not take out the insurance required pursuant to
Paragraph 10(B) or keep the same in full force and effect,
Landlord may, but shall not be obligated to take out the
necessary insurance and pay the premium therefor, and Tenant
shall repay to Landlord, as additional Rent, the amount so
paid promptly upon demand. In addition, Landlord may recover
from Tenant and Tenant agrees to pay, as additional Rent, any
and all reasonable expenses (including attorneys' fees) and
damages which Landlord may sustain by reason of the failure to
Tenant to obtain and maintain such insurance, it being
expressly declared that the expenses and damages of Landlord
shall not be limited to the amount of the premiums thereon.
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(D) SUBROGATION.
In the event of loss or damage to the Premises, each party
will look first to any insurance in its favor before making
any claim against the other party. Each party will obtain for
each policy in effect a provision permitting waiver of any
claim against the other party for loss or damage within the
scope of the insurance. In addition, each party, its agents,
employees or guests to the extent permitted, for itself and
its insurers waives all such insured claims against the other
party.
11. DAMAGE OR RESTORATION.
If, prior to or during the Lease Term, or any extension thereof, the
Premises or the building of which the Premises may be a part, shall be
so damaged or destroyed by fire or other casualty so as to render them
untenantable for the purposes set forth in Paragraph 4 hereof, then
Landlord, at its sole option, shall have the right to cancel and
terminate this Lease. If not terminated, then Landlord shall repair and
restore the Premises within one hundred eighty (180) days of the damage
or destruction to substantially the same condition as immediately prior
to such damage or destruction, and the Rent or a just and proportionate
part thereof, according to Tenant's ability to utilize the Premises in
its damaged condition, shall be abated until the Premises shall have
been repaired and restored by Landlord. In the event Landlord can not
restore the Premises within the above 180 day period, then Tenant may
terminate this Lease by providing Landlord with written notice of their
intent to terminate within ten (10) days of Landlord's notification
that the Premises can not be restored within the above date. Such
Landlord notification shall be delivered to Tenant within thirty (30)
days of the damage or destruction, Such Tenant notice shall state the
termination date of this Lease and such date shall be no less than
fifteen days nor more than forty-five (45) days after the giving of
such notice. But if the Premises shall be so lightly damaged by fire or
other casualty as not to be rendered untenantable, then Landlord agrees
to repair the Premises with reasonable promptness and the rent accrued
and accruing, shall not cease. "Untenantable" Premises shall be such as
to not allow Tenant to transact and effectuate its operations in the
ordinary course of business.
12. INDEMNIFICATION.
Tenant shall indemnify, hold harmless, and defend Landlord (except for
Landlord's gross negligence or willful misconduct) against all claims,
losses or liabilities for injury or death to any person or for damage
to or loss of use of any property arising out of any occurrence in, on
or about the Premises, if caused or contributed to by Tenant or
Tenant's agents, or arising out of any occurrence in, upon or at the
Premises or on account of the use, condition, occupational safety or
occupancy of the Premises. Tenant shall indemnify, hold harmless, and
defend Landlord (except for Landlord's gross negligence or willful
misconduct) against all claims, losses or liabilities for injury or
death to any person or for damage to or loss of use of any property
arising out of any occurrence in, on or about the building or land, if
caused or contributed to by Tenant or Tenant's agents, gross negligence
or willful misconduct. It is the intent of the parties hereto that the
indemnity contained in this Paragraph shall not be limited or barred by
reason of any negligence on the part of Landlord or Landlord's agents,
except as expressly provided herein. Such indemnification shall include
and apply to attorneys' fees, investigation costs, and other costs
actually incurred by Landlord. Tenant shall further indemnify, defend
and hold harmless Landlord from and against any and all claims arising
from any breach or default in the performance of any obligation on
Tenant's part to be performed under the terms of this Lease. The
provisions of this Paragraph shall survive Lease Termination with
respect to any damage, injury, death, breach or default occurring prior
to such termination. This Lease is made on the
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express conditions that Landlord shall not be liable for, or suffer
loss by reason of, injury to person or property, from whatever cause,
in any way connected with the condition, use, occupational safety or
occupancy of the Premises specifically including, without limitation,
any liability for injury to the person or property of Tenant or
Tenant's agents except to the extent of Landlord's gross negligence or
willful misconduct.
13. ASSIGNMENT AND SUBLETTING.
Tenant may assign, sublet or transfer this Lease to any person, firm or
corporation with the written consent of Landlord which consent shall
not be unreasonably withheld, conditioned or delayed, provided,
however, that no such assignment, sublease or transfer shall act as a
release of Tenant from any of the obligations and agreements on its
part to be kept and performed hereunder. Any assignment, sublease or
transfer without the prior written consent of Landlord shall be null
and void at Landlord's option. Landlord's approval of any subtenant or
assignee is conditioned upon there being no additional compliance
required with any laws, rules and regulations of any governmental
authority required of either the Landlord or the Tenant and such
approval shall create no responsibility or liability on the part of the
Landlord for any noncompliance with laws, rules and regulations of any
governmental authority.
Request for consent to assign Tenant's interest or to sublease the
Premises shall be accompanied by a statement setting forth the name of
the prospective assignee or sublessee, the financial details of the
assignment or sublease (i.e. the rental and security deposit), the
term, other relevant information concerning the proposed assignee or
sublessee. Landlord shall have the right within ten (10) days after
receipt of such written request from Tenant to (A) withhold consent to
the assignment or sublease if the withholding of such consent is
reasonable, or (B) consent to such sublease or Assignment, in which
case any rent payable by the assignee or sublessee (including any lump
sum of additional payment or other consideration for the assignment or
sublease) which exceeds the rent payable by Tenant hereunder shall be
shared fifty percent (50%) by Tenant and fifty percent (50%) by
Landlord, or (C) terminate this Lease, effective as of the commencement
date of the term of such sublease or the effective date of such
assignment and enter into a direct Lease with such proposed assignee or
sublessee. If Landlord elects to so terminate the Lease and enter into
a direct Lease with such proposed assignee or sublessee, then this
Lease shall be canceled and terminated as of the effective date of the
proposed assignment or the commencement date of the proposed sublease,
as set forth in Tenant's notice.
Notwithstanding the foregoing, Tenant shall have the right, without the
consent of Landlord to assign this Lease or to sublet all or a portion
of the Premises to (i) any corporation or agency which controls, is
controlled by, or is under common control with Tenant; (ii) any
corporation or agency into which or with which Tenant merges or
consolidates; (iii) any corporation or agency which acquires all or
substantially all of the business and assets of Tenant, provided that
in any of the foregoing events, (a) such assignee shall expressly agree
in writing for the benefit of Landlord to assume all of Tenant's
obligations hereunder accruing after the effective date of assignment,
and (b) Tenant shall remain liable for the performance of all of
Tenant's obligations hereunder unless said assignee or sublessee has
the same or better net worth and creditworthiness as Tenant, and said
assignee or sublessee's use of the Premises is similar to Tenant's use.
In addition, Tenant shall have the right to allow any of the entities
described above to occupy portions of the Premises in accordance with
the provisions of this Lease.
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14. CARE OF PREMISES.
Tenant further covenants and agrees that during said Lease Term it will
keep said Premises and every part thereof and all buildings at any time
situated thereon in a clean and wholesome condition and generally that
it will in all respects and at all times duly comply with all lawful
health and police regulations and also that it will keep the
improvements at any time situated upon the Premises safe, secure and
comfortable to the lawful and valid requirements applicable thereto.
15. ALTERATION BY TENANT.
(A) Tenant is hereby given the right, at its sole cost and
expense, at any time during the term hereof, to make any
alterations or improvements less than $5,000.00 to the
interior of the demised premises which the Tenant may deem
necessary or desirable for its purposes; provided, however,
that no structural, mechanical or electrical alterations or
improvements or other alterations or improvements in excess of
$5,000.00 shall be made without the written approval of the
Landlord, which written approval shall not be unreasonably
withheld. Landlord's approval of any plans, specifications or
work drawings shall create no responsibility or liability on
the part of the Landlord for their completeness, design
sufficiency or compliance with any laws, rules and regulations
of governmental agencies or authorities.
(B) All work herein permitted shall be done and completed by the
Tenant in a good and workmanlike manner and in compliance with
all requirements of law and of governmental rules and
regulations. Tenant agrees to indemnify the Landlord against
all mechanics' or other liens arising out of any of such work,
and also against any and all claims for damages or injury
which may occur during the course of any such work. The
Landlord agrees to join with the Tenant in applying for all
permits necessary to be secured from governmental authorities
and to promptly execute such consents as such authorities may
require in connection with any of the foregoing work.
(C) Landlord may require that Tenant remove any or all said
alterations, improvements or additions at the expiration of
the term, and restore the Premises to their prior condition.
Unless Landlord requires their removal, all alterations,
additions and improvements which may be made on the Premises,
shall become the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the Lease
Term. Tenant shall repair any damage to the Premises caused by
the installation or removal of Tenant's trade fixtures,
furnishings and equipment.
16. CONDEMNATION.
(A) If the leased Premises shall be wholly taken by exercise of
right of eminent domain, then this Lease shall terminate from
the day the possession of the whole of the Premises shall be
required under the exercise of such power of eminent domain.
Any award for the taking of all or part of the Premises under
the power of eminent domain or any payment made under threat
of the exercise of such power shall be the property of the
Landlord. Tenant reserves such separate rights as it may have
against the condemning authority to claim damages for loss of
its trade fixtures and the cost of removal and relocation
expenses.
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(B) If such part of the building or buildings in which Tenant's
business is operated shall be condemned so as to the
substantially and materially hamper the operation of Tenant's
business, then the Rent payable hereunder shall be reduced in
the proportion that the remaining area of the Premises bears
to the original area of the entire Premises leased hereunder.
If the parties are unable to agree upon the amount of the
reduction in Rent within seven (7) days from the date the
Tenant's business is substantially and materially hampered,
then it shall be arrived at by arbitration AIA rules, each
party to select an arbitrator and if the two arbitrators are
unable to agree they shall select a third arbitrator and the
three arbitrators so selected shall determine the amount of
such reasonable reduction. It is agreed that the findings of
the arbitrators shall be binding upon the parties and that the
parties split equally the expense of arbitration.
17. SUBORDINATION.
Tenant shall, upon the written request of Landlord, agree to the
subordination of this Lease and the lien hereof to the lien of any
present or future mortgage upon the premises irrespective of the time
of execution or the time of recording of any such mortgage. In the
event of subordination of this Lease, Landlord will attempt to obtain
from the holder of any such mortgage, a written agreement with Tenant
to the effect that (A) in the event of a foreclosure or other action
taken under the mortgage by the holder thereof, this Lease and the
rights of Tenant hereunder shall not be disturbed but shall continue in
full force and effect so long as Tenant shall not be in default
hereunder; and (B) such holder will agree that in the event it or any
successor assign shall be in possession of the premises, that so long
as Tenant shall observe and perform all of the obligations of Tenant to
be performed pursuant to this Lease, such Mortgagee will perform all
obligations of Landlord required to be performed under this Lease. The
word "Mortgage" as used herein includes mortgages, deeds of trust and
any sale-leaseback transactions, or other similar instruments, and
modifications, extensions, renewals, and replacements thereof, and any
and all advances thereunder.
18. ACCESS TO PREMISES
Landlord and its authorized agents shall have free access to said
Premises at any and all reasonable times with prior notice except in
the case of an emergency to inspect the same and for the purposes
pertaining to the rights of the Landlord.
19. RULES AND REGULATIONS.
Tenant agrees to comply with all rules and regulations promulgated by
Landlord concerning the use and enjoyment of the Premises. Among other
things, the rules and regulations specifically prohibit outdoor
storage. Landlord agrees that it shall use its best efforts to
uniformly enforce such rules and regulations
20. COVENANTS OF RIGHT TO LEASE.
Landlord covenants that it has good and sufficient right to enter into
this Lease and that they alone have full right to lease the Premises
for the Lease Term aforesaid. Landlord further covenants that upon
performing the terms and obligations of Tenant under this Lease, Tenant
will have quite enjoyment throughout the Lease Term and any renewal or
extension thereof.
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21. MECHANIC'S LIENS.
Neither the Tenant nor anyone claiming by, through, or under the lease,
shall have the right to file or place any mechanic's lien or other lien
of any kind or character whatsoever upon said Premises or upon any
building or improvement thereon, or upon the leasehold interest of the
Tenant therein, and notice is hereby given that no contractor,
subcontractor, or anyone else who may furnish any material, service or
labor for any building, improvements, alteration repairs or any part
thereof, shall at any time be or become entitled to any lien thereon,
and for the further security of the Landlord, the Tenant covenants and
agrees to give actual notice thereof in advance, to any and all
contractors and subcontractors who may furnish or agree to furnish any
such material, service or labor.
22. EXPIRATION OF LEASE AND SURRENDER OF POSSESSION.
(A) Holding Over. Tenant will, at the termination of this Lease by
lapse of time or otherwise, yield up immediate possession to
Landlord. If Tenant retains possession of the Premises or any
part thereof after such termination, then Landlord may, at its
option, serve written notice upon Tenant that such holding
over constitutes any one (i) creation of a month-to-month
tenancy, upon the terms and conditions set forth in this
Lease, or (ii) creation of a tenancy at sufferance, in any
case upon the terms and conditions set forth in this Lease;
provided, however, that the monthly Rent (or daily Rent under
(iii)) shall, in addition to all other sums which are to be
paid by Tenant hereunder, whether or not as additional Rent,
be equal to one and one-half (150%) the Rent being paid
monthly to Landlord under this Lease immediately prior to such
termination (prorated in the case of (iii) on the basis of a
365-day year for each day Tenant remains in possession). If no
such notice is served, then a tenancy at sufferance shall be
deemed to be created at the Rent in the preceding sentence.
Tenant shall also pay to Landlord all damages sustained by
Landlord resulting from retention of possession by Tenant,
including the loss of any proposed subsequent tenant for any
portion of the Premises. The provisions of this paragraph
shall not constitute a waiver by Landlord of any right of
re-entry as herein set forth; nor shall receipt of any Rent or
any other act in apparent affirmance of the tenancy operate as
a waiver of the right to terminate this Lease for a breach of
any of the terms, covenants, or obligations herein on Tenant's
part to be performed.
(B) Upon the expiration of this Lease, by lapse of time or
otherwise, any and all buildings, improvements or additions
erected on said Premises by Tenant shall be and become the
property of the Landlord without any payment therefor and
Tenant shall surrender said Premises, together with all
buildings and improvements thereon, whether erected by Tenant
or Landlord; ordinary wear and tear and damage by fire or
other casualty excepted.
(C) Tenant may install adequate equipment, fixtures and machinery
for the carrying on of its business and upon the termination
of this Lease by lapse of time or otherwise, provided all
Rents and other amounts that may be due and owing to Landlord
have been paid and the provisions of this Lease complied with,
the Tenant may remove such equipment, fixtures and machinery
installed by it at Tenant's cost. However, upon removal of
such equipment, fixtures and machinery, the Tenant shall also
repair any damage caused by such removal or installation.
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23. DEFAULT-REMEDIES.
The occurrence of one or more of the following events shall constitute
a material default and breach of this Lease by Tenant:
(A) Failure by Tenant to make payment of any Rent herein agreed to
be paid or any other payment required to be made by Tenant
hereunder, as and when due, and such a failure shall continue
for a period of five (5) working days after Landlord's written
notice thereof;
(B) The making by Tenant of any assignment or arrangement for the
benefit of creditors;
(C) The filing by Tenant of a petition in bankruptcy or for any
other relief under the Federal Bankruptcy Law or any other
applicable statute;
(D) The levying of an attachment, execution of other judicial
seizure upon the Tenant's property in or interest under this
lease, which is not satisfied or released or the enforcement
thereof stayed or superseded by an appropriate proceeding
within thirty (30) days thereafter;
(E) The filing of an involuntary petition in bankruptcy or for
reorganization or arrangement under the Federal Bankruptcy Law
against Tenant and such involuntary petition is not withdrawn
dismissed, stayed or discharged within sixty (60) days from
the filing thereof;
(F) The appointment of a Receiver or Trustee to take possession of
the property of Tenant or of Tenant's business or assets and
the order or decree appointing such Receiver or Trustee shall
have remained in force undischarged or unstayed for thirty
(30) days after the entry of such order or decree;
(G) The vacating or abandonment of the Premises without the
payment of Rent.
(H) The failure by Tenant to perform or observe any other term,
covenant, agreement or condition to be performed or kept by
the Tenant under the terms, conditions, or provisions of this
lease, and such a failure shall continue uncorrected for
thirty (30) days after written notice thereof has been given
by Landlord to the Tenant or such longer period provided that:
1) Tenant is diligently pursuing a cure, and 2) Such failure
does not materially and adversely effect the Premises or
Building.
Then and in any such event Landlord shall have the right, at the option
of the Landlord, then or at any time thereafter while such default or
defaults shall continue, to elect either (1) to cure such default or
defaults at its own expense and without prejudice to any other remedies
which it might otherwise have, any payment made or expenses incurred by
Landlord in curing such default with interest thereon at twelve percent
(12%) per annum to be and become additional Rent to be paid by Tenant
with the next installment of Rent falling due thereafter; or (2) to
re-enter the Premises, without notice, and dispossess Tenant and anyone
claiming under Tenant by summary proceedings or otherwise, and remove
their effects, and take complete possession of the Premises and either
(a) declare this Lease forfeited and the Lease Term ended, or (b) elect
to continue this Lease in full force and effect, but with the right at
any time thereafter to declare this Lease forfeited and the Lease Term
ended. In such re-entry the Landlord may, with process of law, remove
all persons from the Premises, and Tenant hereby covenants in such
event, for itself and all others occupying the Premises under Tenant,
to peacefully yield up and surrender the Premises
15
to the Landlord. Should Landlord declare this Lease forfeited and the
Lease Term ended, the Landlord shall be entitled to recover from Tenant
the Rent and all other sums due and owing by Tenant to the date of
termination, plus the costs of curing all of Tenant's defaults existing
at or prior to the date of termination, plus the cost of recovering
possession of the Premises, plus the deficiency, if any, between
Tenant's Rent for the balance of the Lease Term provided hereunder and
the Rent obtained by Landlord under another lease for the Premises for
the balance of the Lease Term remaining under this lease. Landlord
shall use its best efforts to rent the Premises with or without
advertising, and on the best terms available for the remainder of the
Lease Term hereof, or for such longer or shorter period as Landlord
shall deem advisable. Tenant shall remain liable for payments of all
Rent and other charges and costs imposed on Tenant herein, in the
amounts, at the times and upon the conditions as herein provided, but
Landlord shall credit against such liability of the Tenant all amounts
received by Landlord from such reletting after first reimbursing itself
for all costs incurred in curing Tenant's defaults and re-entering,
preparing and refinishing the Premises for reletting, and reletting the
Premises, and for the payment of any procurement fee or commission paid
to obtain another tenant, and for the attorney fees and legal costs
incurred by Landlord. Tenant specifically reserves any rights or
defenses under Minnesota law to any omissions of commissions of
Landlord's obligations pursuant to this paragraph.
24. RE-ENTRY BY LANDLORD.
No re-entry by Landlord or any action brought by Landlord to oust
Tenant from the Premises shall operate to terminate this Lease unless
Landlord shall have given written notice of termination to Tenant, in
which event Tenant's liability shall be as above provided. No right or
remedy granted to Landlord herein is intended to be exclusive of any
other right or remedy, and each and every right and remedy herein
provided shall be cumulative and in addition to any other right or
remedy hereunder or now or hereafter existing in law or equity or by
statute. In the event of termination of this Lease, Tenant waives any
and all rights to redeem the Premises either given by any statute now
in effect or hereafter enacted.
25. ADDITIONAL RIGHTS TO LANDLORD.
(A) In addition to any and all other remedies, Landlord may
restrain any threatened breach of any covenant, condition or
agreement herein contained but the mention herein of any
particular remedy or right shall not preclude the Landlord
from any other remedy or right it may have either at law or
equity, or by virtue of some other provision of this Lease;
nor shall the consent to one act, which would otherwise be a
violation or waiver of or redress for one violation either of
covenant, promise agreement undertaking or condition, prevent
a subsequent act which would originally have constituted a
violation from having all the force and effect of any original
violation.
(B) Receipt by Landlord of Rent or other payments from the Tenant
shall not be deemed to operate as a waiver of any rights of
the Landlord to enforce payment of any Rent, additional Rent,
or other payments previously due or which may thereafter
become due, or of any rights of the Landlord to terminate this
Lease or to exercise any remedy or right which otherwise might
be available to the Landlord, the right of Landlord to declare
a forfeiture for each and every breach of this Lease is a
continuing one for the life of this Lease.
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26. SUCCESSORS, ASSIGNS AND LIABILITY.
The terms, covenants, conditions and agreements herein contained and as
the same may from time to time hereafter be supplemented, modified or
amended, shall apply to, bind, and inure to the benefit of the parties
hereto and their legal representatives, successors and assigns,
respectively. In the event either party now or hereafter shall consist
of more than one person, firm or corporation, then and in such event
all such person, firms and/or corporations shall be jointly and
severally liable as parties hereunder.
27. NOTICES.
All notices required under this Lease shall be in writing and shall be
deemed to be properly served when posted by certified United States
mail, postage prepaid, return receipt requested, addressed to the party
to whom directed at the address herein set forth or at such other
address as may be from time to time designated in writing by the party
changing such address.
Landlord Tenant
-------- ------
Principal Life Insurance Company LSC, Inc.
c/o Principal Capital Management, LLC 0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 000
000 Xxxxx Xxxxxx Xxxxx, XX 00000
Des Moines, Iowa
with copy to: with copy to:
------------- ------------
CB Xxxxxxx Xxxxx Xxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 0000 X. 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
28. MORTGAGEE'S APPROVAL.
If Landlord's mortgagee shall require modifications of the terms and
provisions of this Lease, Tenant agrees to execute and deliver to
Landlord the agreements required to affect such Lease modification
within thirty (30) days after Landlord's request therefor. In no event,
however, shall Tenant be required to agree to any modification of the
provision of this Lease relating to: the amount of Rent or other
charges reserved herein; the size and/or general location of the
Premises; the duration and/or commencement date of the Lease Term; or
reducing the improvements to be made by Landlord to the Premises prior
to the delivery of possession.
29. ESTOPPEL CERTIFICATES.
Tenant agrees that at any time within ten (10) days following written
notice from Landlord, it will execute, acknowledge and deliver to
Landlord or any proposed mortgagee or purchaser a statement in writing
certifying whether this Lease is in full force and effect and, if it is
in full force and effect, what modifications have been made to the date
of the certificates and whether or not any defaults or offsets exist
with respect to this Lease and, if there are, what they are claimed to
be and setting forth dates to which Rent or other charges have been
paid in advance, if any, and stating whether or not Landlord is in
default, if so, specifying what the default may be. The failure of
Tenant to execute, acknowledge, and deliver to Landlord a statement as
above shall constitute an acknowledgment by Tenant that this Lease is
unmodified and in full force and effect and that the Rent and other
charges have been duly and fully paid to and including the respective
due dates immediately preceding the date of Landlord's notice to Tenant
and shall constitute as to any person, a waiver of any defaults which
may exist prior to such notice.
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30. MISCELLANEOUS.
(A) In the event that Tenant desires to store or maintain the type
or character of goods or materials in the Premises which cause
an increase in insurance premiums, Tenant shall first obtain
the written consent of Landlord and Tenant shall reimburse
Landlord for any increase in premiums caused thereby.
(B) If any term or provision of this Lease is declared invalid or
unenforceable, the remainder of this Lease shall not be
affected by such determination and shall continue to be valid
and enforceable.
(C) This agreement contains the entire Lease contract between the
parties hereto. A short form of this Lease, for the purpose of
recording, may be executed by the parties simultaneously
herewith and if either party desires to record this Lease, the
short form shall be used for that purpose.
(D) The parties executing this Lease warrant that this agreement
is being executed with full corporate authority and that the
officers whose signatures appear hereon are duly authorized
and empowered to make and execute this Lease in the name of
the corporation by appropriate and legal resolution of its
Board of Directors.
(E) Unless the context clearly denotes the contrary, the word
"Rent" or "Rental" as used in this Lease not only includes
cash Rental, but also all other payments and obligations to
pay assumed by the Tenant, whether such obligations to pay run
to the Landlord or to other parties.
(F) It is mutually agreed by and between Landlord and Tenant that
the respective parties hereto shall and they hereby do, waive
trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on
any matter whatsoever arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant,
Tenant's use of or occupancy of the Premises or any claim of
injury or damage and any emergency statutory or any other
statutory remedy. If Landlord commences any summary proceeding
for nonpayment of Rent. Tenant will not interpose any
counterclaim of whatever nature or description in any such
proceeding. Nothing in this paragraph shall be deemed to
preclude Tenant from interposing any claim with regard to the
Lease in a separate and collateral proceeding.
31. DEFAULT RATE OF INTEREST
All amounts owed by Tenant to Landlord pursuant to any provision of
this Lease shall bear interest from the date due until paid at twelve
percent (12%) per annum, unless a lesser rate shall then be the maximum
rate permissible by law with respect thereto, in which event said
lesser rate shall be charged.
32. EXCULPATORY PROVISIONS
It is expressly understood and agreed by and between the parties
hereto, anything herein to the contrary notwithstanding, that each and
all of the representations, warranties, covenants, undertakings and
agreements herein made on the part of Landlord while in form purporting
to be the representations, warranties, covenants, undertakings and
agreements of Landlord are nevertheless each and every one of them made
and intended, not as personal representations,
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warranties, covenants, undertakings and agreements by Landlord or for
the purpose or with the intention of binding Landlord personally, but
are made and intended for the purpose only of subjecting Landlord's
interest in the Premises to the terms of this Lease and for no other
purpose whatsoever, and in case of default hereunder by Landlord,
Tenant shall look solely to the interests of Landlord in the Premises;
and that Landlord shall not have any personal liability to pay any
indebtedness accruing hereunder or to perform any covenant, either
express or implied, herein contained, all such personal liability, if
any, being expressly waived and released by Tenant and by all persons
claiming by, through or under Tenant.
33. MORTGAGE PROTECTION
Tenant agrees to give any holder of any first mortgage or first trust
deed in the nature of a mortgage (both hereinafter referred to as a
"First Mortgage") against the Premises, or any interest therein, by
registered or certified mail, a copy of any notice or claim of default
served upon Landlord by Tenant, provided that prior to such notice
Tenant has been notified in writing (by way of service on Tenant of a
copy of an assignment of Landlord's interest in leases, or otherwise)
of the address of such First Mortgage holder. Tenant further agrees
that if Landlord shall have failed to cure any such default within
twenty (20) or such shorter time in the event of emergency repairs that
materially and adversely effect the Premises days after such notice to
Landlord (or if such default cannot be cured or corrected within that
time, then such additional time as may be necessary if Landlord has
commenced within such twenty (20) days and is diligently pursuing the
remedies or steps necessary to cure or correct such default), then the
holder of the First Mortgage shall have an additional thirty (30) days
within or such shorter time in the event of emergency repairs that
materially and adversely effect the Premises which to cure or correct
such Default (or if such default cannot be cured or corrected within
that time, then such additional time as may be necessary if such holder
of the First Mortgage has commenced with such thirty (30) days and is
diligently pursuing the remedies or steps necessary to cure or correct
such default, including the time necessary to obtain possession if
possession is necessary to cure or correct such default.
34. RECIPROCAL COVENANT ON NOTIFICATION OF ADA VIOLATIONS
Within ten (10) days after receipt, Landlord and Tenant shall advise
the other party in writing, and provide the other with copies of (as
applicable), any notices alleging violation of the Americans with
Disabilities Act of 1990 ("ADA") relating to any portion of the
property or the Premises; any claims made or threatened in writing
regarding noncompliance with the ADA and relating to any portion of the
property or the Premises; or any governmental or regulatory actions or
investigations instituted or threatened regarding noncompliance with
the ADA and relating to any portion of the property or the Premises.
35. LAWS THAT GOVERN.
Landlord and Tenant agree that the term and conditions of this Lease
shall be governed by the Laws of the State of MINNESOTA.
36. FINANCIAL STATEMENTS
At year end audit each year, and not more than one time per year,
unless Tenant has been in default of this Lease, Tenant within ten (10)
business days after Landlord's request, shall deliver to Landlord the
current financial statements of Tenant, and financial statement of the
two (2) years prior to the current financial statements year, with an
opinion of a certified public
19
accountant. This information includes a balance sheet and profit and
loss statement for the most recent prior year, all prepared in
accordance with generally accepted accounting principles consistently
applied.
37. UPON DEMOLITION OF BUILDING
Landlord shall have the right to terminate this Lease at any time if
Landlord, or the holder of legal title to the Building elects or is
required, for any reason, to substantially remodel or demolish the
building or any substantial portion of the Building Such termination
shall become effective not more than ninety (90) days after the
effective date of such termination. No money or other consideration
shall be payable by Landlord or such purchaser or ground lessee to
Tenant for this right and the right hereby reserved to Landlord, the
purchaser of ground lessee shall inure to all purchasers, assignors,
lessees, transferees and ground lessees, as the case may be, and in
addition to all other rights of Landlord.
38. CONFIDENTIALITY
Tenant agrees that this Agreement of Lease will be kept confidential
and shall not, without Landlord's prior written consent, be disclosed
by the Tenant or by its agents, representatives and employees who have
a need to know and who are informed by Tenant of the confidential
nature of the Agreement of Lease.
39. TERMINATION OPTION
Tenant shall have the option to terminate this Lease on July 31, 2002
("Termination Option"). To exercise said Termination Option, Tenant
must notify Landlord in writing of its intent to exercise said option
by October 31, 2001. In addition, Tenant shall pay to Landlord at the
time of notice an amount equal to One Hundred One Thousand Seventy Five
and no/100 Dollars ($101,075.00) ("Termination Payment"). In the event
Tenant fails to notify Landlord of its intent to exercise said option
by said date or fails to deliver the Termination Payment with said
notice than this Termination Option shall become null and void.
The Rider(s) (NONE) and/or Exhibit(s) X, X, X-0, X-0, X, XXX X attached
to this Lease, consisting of 17 pages, are hereby made a part of this
Lease.
IN WITNESS WHEREOF, the parties hereto may execute this Lease in
counterpart copies, each of which shall be deemed originals or Landlord
and Tenant have executed this Lease the date and year noted below.
Signed at 1:00 p.m. on this 28th day of June, 1999
20
Landlord: Tenant:
Principal Life Insurance Company, an Iowa corporation LSC, Inc.,
By: Principal Capital Management, LLC, a Minnesota corporation
a Delaware limited liability company,
its authorized signatory
By: /s/ Xxxxx Xxxx By: /s/ X. X. Xxxxxx
------------------------------------------- ------------------------------------
Its: Director, C.R.E. Equities Its: President/CEO
------------------------------------------- ------------------------------------
By:
------------------------------------------- ------------------------------------
Its:
------------------------------------------- ------------------------------------
--------------------------------------------------------------------------------
CONSULT YOUR ATTORNEY: This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker as to the legal
sufficiency, legal effect, or tax consequence of this document or the
transaction to which it relates. These are questions for your attorney and
financial advisors.
--------------------------------------------------------------------------------
21
State of ___________ )
)
County of _________ )
On this _______ day of __________________________________, 19 , before me, the
undersigned, Notary Public in and for the State of ___________ personally
appeared _______________________________ and __________________________________,
to me personally known, who being by me duly sworn, did say that they are the
________________________ and _______________________________, respectively of
said corporation executing the within and foregoing instrument, that the seal
affixed thereto is the seal of the said corporation; that the instrument was
signed and sealed on behalf of the corporation by authority its Board of
Directors; and that the said __________________________ and
____________________________ as such officers acknowledged the execution of said
instrument to be the voluntary act and deed of the corporation by it and by them
voluntarily executed.
-------------------------------------------------
Notary Public in and for the State of ______
22
EXHIBIT A
Eagandale Business Campus II
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxx, XX
EXHIBIT B
THIS EXHIBIT is attached to and forms a part of a certain lease dated
JUNE 24, 1999, by and between PRINCIPAL LIFE INSURANCE COMPANY, AN IOWA
CORPORATION, c/o Principal Capital Management, LLC, a Delaware limited liability
company, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, XX 00000-0000, "Landlord", and LSC, Inc.,
a Minnesota corporation, "Tenant".
Work to be Done in the Premises. Tenant's layout and interior design
shall be prepared by Tenant at Tenant's expense.
The Landlord agrees that, subject to delays due to causes beyond the
Lessor's control, it will, at its own expense, provide the following:
1. Landlord's Work to include improvements as per the Preliminary Space
Plan Al OPT2, drawn by Xxxxxxx Architects, dated 4/20/99 (attached hereto as
Exhibit B-1), and the cost estimate by The Xxxxxx Group dated April 1, 1999
(attached hereto as Exhibit B-2). Landlord's Work shall be in compliance with
all applicable governmental codes and regulations including compliance with the
American with Disabilities Act (ADA). In addition, Landlord shall provide a
Tenant Improvement Allowance of up to $3,000 for the creation of an exterior
canopy at Tenant's exterior entry.
In the event Tenant fails to deliver its plans within the time required
below subject to delays beyond its control or in the event that Tenant
materially modifies or changes its plans thereafter, then it shall be
conclusively presumed that delivery of the Premises was delayed by the amount of
time equivalent to such delay in delivery of plans or by the amount of time
required to make revised plans, correct work and otherwise make the changes
required by Tenant and in this event Tenant shall pay to Landlord all its costs
for such changes and a sum equal to the base annual rent for the period of such
delay.
If the Tenant desires alterations and improvements in excess of or
other than the work heretofore provided for in this section ("Tenant's
Additional Work"), the Lessor shall do same at the Tenant's expense, provided
the work shall be approved by the Landlord and Tenant in writing, which approval
shall not be unreasonably withheld, and further provided that no part of the
work shall be of a character which will require changes outside the Premises or
will adversely affect the legality of the use of the building or the cost of
fire insurance for the building.
The Tenant shall reimburse the Landlord upon ten (10) of demand for the
cost of Tenant's Additional Work, including the cost of architectural or
engineering services required to coordinate Tenant's Additional Work with the
Lessor's Work. Costs as used herein shall include all bona fide charges
evidenced by invoice to Landlord either from a general contractor or from
suppliers, materialmen, laborers or other contractors for material, labor
contractor's charges and other out-of-pocket costs plus ten percent (10%) for
overhead, plus an additional ten percent (10%) of the aggregate for profit,
other expenses and contingencies. Any amount for which the Tenant fails to
reimburse the Landlord upon ten (10) days of demand shall be considered
Additional Rent hereunder, and may be added to any Installment of Rent
thereafter becoming due, and the Landlord shall have the same remedies for a
default in such reimbursement as for a default in the payment of Rent.
In order to permit integration with other work being done by the
Landlord in the Premises and the building without causing any delays in such
work, the Tenant shall furnish the Landlord with the tenant's working drawings
not later than __________ and color selections not later than ___________ for
any work to be done pursuant to this Section.
EXHIBIT B-1
Office Layout Diagram
EXHIBIT B-2
Thursday, April 01, 1999
Xxxx Xxxxxxx
CB Xxxxxxx Xxxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
RE: LSC, INC.
Dear Xxxx:
We are pleased to provide you with the following Proposal for providing
construction services for the tenant improvements at 0000 Xxxxx Xxxxxxxxxx Xxxx,
Xxxxx #000, xx Xxxxx, XX. This proposal is based on plans from Xxxxxxx
Architects, LTD. dated 3/24/99 and on site observation.
The following represents an outline of the scope of work included in our
proposal:
GENERAL CONDITIONS:
- All required supervision, labor, clean up, material, insurance, taxes,
permits, and licenses as typically required in the General Conditions.
DEMOLITION:
- Removal and disposal of 22 lineal feet of partitions.
- Removal and disposal of one set of loading dock pads and bumpers.
- Removal and disposal of one overhead door and track.
- Removal and disposal of cabinets from break room.
CONCRETE AND MASONRY:
- Cut one 6'0" x 8'0" opening for new entry door and sidelight.
- Remove curb and new curb cut.
- Trench and backfill for new stoop footing and foundation.
- Form and pour stoop footing.
- Furnish and install stoop foundation.
- Furnish and install 6" granular base.
- Form and pour approximately 34 lineal feet of 5' wide x 4" thick concrete
walk.
DOORS, FRAMES, AND HARDWARE:
- Furnish and install (11) eleven 3'0" x 6"8" solid core Oak doors, Oak
frames with 24" attached sidelights, and lever handle latch sets.
- Furnish sand install one 3'0" x 6'8" solid core Oak door, Oak frame with
36" attached sidelight, and lever handle latch set.
- Furnish and install (6) six 3'0"x 6'8" solid core Oak doors, Oak frames,
and handle latch sets.
- Furnish and install (2) two 3'0" x 6'8" solid core doors, Oak frames, and
push/pull hardware.
- Furnish and install one 6'0" x double solid core Oak doors, hollow metal
frame, and lever handle latch hardware.
EXTERIOR CARPENTRY:
- Furnish and install tongue and groove wood siding above new exterior window
to match building standard.
ALUMINUM FRAMES AND GLAZING:
- Furnish and install one 3'0" x 7'0" anodized aluminum door and sidelight
with.
- Furnish and install one l0'0" x 8'0" anodized aluminum window unit where
overhead door is removed to match building standard.
GYPSUM DRYWALL:
- Furnish and install approximately 690 lineal feet of steel stud and gypsum
drywall partition to the acoustical ceiling grid uninsulated.
- Furnish and install approximately 170 lineal feet of steel stud and gypsum
drywall partition to above ceiling grid insulated around bathrooms.
- Furnish and install approximately 70 lineal feet of one hour rated steel
stud and gypsum drywall partition to the deck insulated demising wall.
- Miscellaneous patching of gypsum drywall from removal of walls.
PAINTING:
- Prime and paint 14,500 square feet of wall surface.
- Apply finishes to all new doors and frames.
- Apply finishes to all new sidelights.
- Touch-up exterior at removal of overhead door and pads.
ACOUSTICAL CEILINGS:
- Furnish and install 2 x 4 x 5/8" flat lay-in acoustical ceiling tile and
grid through out the suite, except in the warehouse and storage areas.
- Furnish and install one urinal.
- Furnish and install (5) five drop-in lavatories and faucets.
- Furnish and install (5) five traps and supply wraps.
- Furnish and install (3) three floor drains.
- Furnish and install shower valve with hand held shower, hose, and bar.
- Furnish and install one barrier free water cooler.
- Furnish and install one janitor's floor sink and wall faucet.
- Furnish and install one 50-gallon water heater.
- Re-install existing sink and faucet.
- Hook up tenant supplied dishwasher.
- Remove and cap existing laundry tub sink.
FIRE PROTECTION:
- Relocate (4) four up-right sprinkler heads.
- Furnish and install (90) ninety pendent sprinkler heads.
HEATING, VENTILATION, AND AIR CONDITIONING:
- Furnish and install one 6-ton heat / cool roof top unit with economizer for
rooms 100, 101, 102, 103, and 104. This unit is to include factory
roofcurb, two smoke detectors, thermostat and subbase.
- Furnish and install one 600-CFM power roof ventilator for bathrooms and
shower exhaust. This unit is to include a factory roofcurb, gravity
backdraft damper, and disconnect.
- Furnish and install ductwork from new unit and two existing roof top units.
- Furnish and install (38) thirty-eight diffusers and return air grilles.
- Remove and cap (3) three existing unit heaters.
- Furnish and install all gas piping from gas meter.
ELECTRICAL:
- Disconnect wiring for construction
- Remove (86) eighty-six existing strip fixtures.
- Furnish and install (152) one hundred fifty two 2 x 4 acrylic lens light
fixtures.
- Furnish and install one shower light.
- Furnish and install (17) seventeen single pole light switches.
- Furnish and install (6) six three way light switches.
- Furnish and install (7) seven exit signs and emergency lights.
- Wire and install (37) thirty-seven general duty receptacles.
- Wire and install (8) eight dedicated duplex receptacles.
- Wire and install (4) four GFI duplex receptacles.
- Wire and install (5) five base power feeds.
- Provide (26) twenty-six telephone / data openings.
- Wire and install one 1.5kw vestibule heater.
- Furnish and install aluminum capped grid and vinyl rock ceiling tile at
room 119.
MILLWORK:
- Furnish and install approximately 14 lineal feet of plastic laminate upper
and base cabinets with plastic laminate countertop.
- Furnish and install (3) three plastic laminate vanities tops with open
supports.
CERAMIC TILE:
- Furnish and install Group I ceramic wall tile for wainscot on wet walls in
both restrooms.
- Furnish and install Group I ceramic floor tile on floors in restrooms.
- Furnish and install Group I ceramic wall tile full height in shower.
- Furnish and install Group I ceramic floor tile for shower.
CARPETING:
- Furnish and install 1,079 square feet of direct glued down carpeting using
an allowance of $18.00/yard installed.
- Furnish and install 1,370 lineal feet of carpet base to match.
- Furnish and install 27 cartons of VCT and vinyl base.
RESTROOM AND SHOWER ACCESSORIES:
- Furnish and install (5) five floor mounted overhead braced metal toilet
compartments and one urinal screen.
- Furnish and install (2) two paper towel dispensers / waste receptacles.
- Furnish and install one paper towel dispenser.
- Furnish and install (5) five toilet paper holders.
- Furnish and install (5) five soap dispensers.
- Furnish and install (3) three sanitary napkin disposals.
- Furnish and install (2) two sets of grab bars.
- Furnish and install one shower grab bars set.
- Furnish and install one shower seat.
- Furnish and install one shower curtain rod, curtain, and hooks.
LOCKERS:
- Furnish and install (7) seven 12" x 18" x 72" Vanguard lockers with
recessed handles, closed bases and sloped hoods.
PLUMBING:
- Furnish and install (2) two ADA water closets.
- Furnish and install (3) three standard water closets.
- Wire one PRV.
- Wire one 6-ton roof top unit.
- Wire one 10-ton roof top unit.
- Wire one 12.5-ton roof top unit.
- Wire (3) three thermostats.
- Wire (6) six duct smoke detectors.
- Wire one hot water heater.
- See Alternates for separation of service.
Our Proposal to provide the complete construction of the above referenced work
is, $183,950.00. ONE HUNDRED EIGHTY THREE THOUSAND NINE HUNDRED FIFTY DOLLARS.
The following are option alternates to the above referenced work:
ALTERNATE #1: Wire (2) two services and separate circuits between the three
spaces. One 100-amp for vacancy, one 100-amp for EFG Technologies. Reefed
circuits as required, and furnish and install transformers as required. ADD
$8,850.00
CLARIFICATIONS:
- Due to the fact that a majority of the work included in this Proposal is
from verbalization of requirements along with minimal detail on the
drawings, the scope of work included in this proposal takes precedence.
- We have included the cost of a standard building permit but do not include
any SAC, WAC, Park dedication fees or other charges any governmental
agencies may require.
- We do not include space planning, interior design, architectural design or
structural design. If required by the City of Xxxxx, the owner or others we
can provide this service at an additional cost contingent upon the scope of
work required.
- We specifically exclude in rack fire protection or any other special
requirements as a result of tenant's special use.
- Payment due upon substantial completion.
- This Proposal may be withdrawn if not accepted in 30 calendar days, or may
be subjected to changes in price.
If this proposal is acceptable, sign one copy and return it to our office. If
you have a standard form of agreement or if you would like us to produce a
different form of agreement please advise. We appreciate having the opportunity
to provide you with our Proposal. If you have any questions or if I can be of
further assistance please call me at 000-000-0000.
Sincerely, CB Xxxxxxx Xxxxx
Accepted By:
-------------------------
Xxxxx Xxxxxx
Project Manager Title:
The Xxxxxx Group ------------------------------
Date:
-------------------------------
EXHIBIT C
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Lessor (identified below) to evaluate and finalize a lease agreement
with you as Lessee. After a lease agreement is signed by you and the Lessor (the
"Lease Agreement"), on an annual basis in accordance with the provisions of
Section _____ of the signed Lease Agreement, you are to provide an update to the
information initially provided by you in this certificate. The information
contained in the initial Hazardous Materials Disclosure Certificate and each
annual certificate provided by you thereafter will be maintained in
confidentiality by Lessor subject to release and disclosure as required by (i)
any lenders and owners and their respective environmental consultants, (ii) any
prospective purchaser(s) of all or any portion of the property on which the
Premises are located, (iii) Lessor to defend itself or its lenders, partners or
representatives against any claim or demand, and (iv) any laws, rules,
regulations, orders, decrees, or ordinances, including, without limitation,
court orders or subpoenas. Any and all capitalized terms used herein, which are
not otherwise defined herein, shall have the same meaning ascribed to such term
in the signed Lease Agreement. Any questions regarding this certificate should
be directed to, and when completed, the certificate should be delivered to:
Lessor"
-----------------------------------------------------------------------
-----------------------------------------------------------------------
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Attn:
------------------------------------------------------------------
Phone:
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Name of (Prospective) Lessee: LSC, Incorporated
------------------------------------------------
Mailing Address: 0000 Xxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, XX 00000-0000
--------------------------------------------------------------
Contact Person, Title and telephone Number(s):
--------------------------------
Xxxxxx X. Xxxxxx, Manager, Operations (000) 000-0000
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Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s): See above.
----------
Address of (Prospective) Premises: 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxx, XX 00000
----------------------------------------
Length of (Prospective) initial Term: Five (5) years
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about the
Premises, including, without limitation, principal products processed,
manufactured or assembled, services and activities to be provided or otherwise
conducted. Existing Lessees should describe any proposed changes to ongoing
operations. (Attached additional sheets if necessary).
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used / /, generated / /,
stored / / or disposed of / / in, on or about the Premises?
(NOTE: Generally all storage will be required to be fully
contained). Existing Lessees should describe any Hazardous
Materials which continue to be used, generated, stored or
disposed of in, on or about the Premises.
Wastes Yes / / No /X/
Chemical Products Yes / / No /X/
Other Yes / / No /X/
If yes is marked attach all MSDS's and please explain: (MSDS's
Attached ),
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2.2 If yes is marked in Section 2.1, attach a list of any
Hazardous Materials to be used, generated, stored or disposed
of in, on or about the Premises, including the applicable
hazard class and an estimate of the quantities of each such
Hazardous Materials at any given time; estimated annual
throughout; the proposed location(s) and method of storage,
including container sizes and types (excluding nominal amounts
of ordinary household cleaners and janitorial supplies which
are not regulated by any Environmental Laws); and the proposed
location(s) and method of disposal for each Hazardous
Material, including, the estimated frequency, and the proposed
contractors or subcontractors. Existing Lessees should attach
a list setting forth the information requested above and such
list should include actual data from ongoing operations and
the identification of any variations in such information from
the prior year's certificate. Attach a Site Plan indicating
all storage areas - (Attached / /).
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel,
petroleum, or other Hazardous Materials in tanks or sumps
proposed in, on or about the Premises? Existing Lessees should
describe any such actual or proposed activities, including any
required SPCC Plan.
Yes / / No /X/
If yes, please explain:
--------------------------------------
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4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number? Existing Lessees should describe any additional
identification numbers issued since the previous certificate.
Yes / / No /X/
Describe RCRA Status:
----------------------------------------
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4.2 Has your company filed a biennial or quarterly report as a
hazardous waste generator? Existing Lessees should describe
any new reports filed.
Yes / / No /X/
If yes, attach a copy of the most recent report filed.
(Attached / /).
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
storm drain? sewer?
------- ------
surface water? facility treatment plan?
------- ------
grounds X no wastewater or other
------- ------
(i.e., compressor blow-down) wastes discharged
Existing Lessees should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
(NOTE: Generally, discharges to storm drains will be
prohibited without prior review and approval from Landlord).
- N/A -
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6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be
used in your company's operations in, on or about the Premises
that will discharge into the air; and will such air emissions
be monitored? Existing Lessees should indicate whether or not
there are any such air filtration systems or stacks in use in,
on or about the Premises which discharge into the air and
whether such air emissions are being monitored.
Yes / / No /X/
If yes, please explain:
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6.2 Do you propose to operate any of the following types of
equipment, or any other equipment requiring an air emissions
permit? Existing Lessees should specify any such equipment
being operated in, on or about the Premises.
Spray booth(s) Incinerator(s)
------------- -------------
Dip Tank(s) Drycleaning
------------- -------------
Drying oven(s) Other (please describe)
------------- -------------
X No Equipment
------------- Requiring Air Permits
If yes, please explain:
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6.3 Do any of your operations generate an obvious odor:
Yes / / No /X/
If yes, please explain:
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7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan")
pursuant to Fire Department or other governmental or
regulatory agencies' requirements. Existing Lessees should
indicate whether or not a Management Plan is required and has
been prepared.
Yes / / No /X/
If yes, attach a copy of the Management Plan. Existing Lessees
should attach a copy of any required updates to the Management
Plan.
7.2 (CA Only) Are any of the Hazardous Materials, and in
particular chemicals, proposed to be used in your operations
in or about the premises regulated under Proposition `65?
Existing tenants should indicate whether or not there are any
new hazardous materials being used which are regulated under
Proposition `65.
Yes / / No /X/
If yes, please explain:
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8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has
your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees designated
as a PRP or has your company received requests for
information, notice or
demand letters (cited in violation of any environmental
regulation), or any other inquiries regarding its operations?
Existing Lessees should indicate whether or not any such
actions, orders or decrees have been, or are in the process of
being, undertaken or if any such requests have been received.
Yes / / No /X/
If yes, describe the actions, orders or decrees and any
continuing compliance obligations imposed as a result of these
actions, orders or decrees and also describe any requests,
notices or demands, and attach a copy of all such
10.1 (This Section reserved for any requirements unique to a State
or Local control agency)
The undersigned hereby acknowledges and agrees that this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Lessor in connection with the evaluation and finalization of a Lease
Agreement and will be attached thereto as an exhibit. The undersigned further
acknowledges and agrees that this Hazardous Materials Disclosure Certificate is
being delivered in accordance with, and as required by, the provisions of
Section 9 of the Lease Agreement. The undersigned further acknowledges and
agrees that the Lessor and its partners, lenders and representatives may, and
will, rely upon the statements, representations, warranties, and certifications
made herein and the truthfulness thereof in entering into the Lease Agreement
and the continuance thereof throughout the term, and any renewals thereof, of
the Lease Agreement. I (SEE BELOW) acting with full authority to bind the
(proposed) Lessee and on behalf of the (proposed) Lessee, certify, represent and
warrant that the information contained in this certificate is true and correct.
(PROSPECTIVE) Lessee:
By /s/
---------------------------------------------
Title President/CEO
-------------------------------------------
Date June 28, 1999
EXHIBIT D
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 use 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, its 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 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
system 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.
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 benzene 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 increase 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 reasonable 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 the Tenant desires more than two keys for one lock, 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.
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 by 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 cause
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 loading, unloading, receiving, or delivery of goods, supplies, or
disposal of garbage or refuse shall be made only through entryways and
freight elevators provided for such purposes and indicated by Landlord.
Tenant shall be responsible for any damages 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.
20. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall cooperate to prevent the same.
21. Vending machines shall not be installed without permission of the
Landlord.
22. Wherever in these Building Rules and Regulations the work "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 that it shall mean
Landlord's agents, 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 premises at hours
convenient to the Tenant for the purpose of exhibiting the same to
prospective tenants within 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, its 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 overnight 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 be closed 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 from time to 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 judgement, for its best interest or for the best interest of
the tenants of the Office/Showroom Complex.
