LEASE SUMMARY
THIS INDENTURE, made this 1st day of September, 1995, between Equitable
Life Assurance Society of the United States ("Landlord"), and Amcom Corporation,
a Minnesota corporation ("Tenant").
Section 1.1 - Premises Location: 7524-0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxx
Lease Term: Two (2) Years, Zero (0) Months
Commencement Date: July 1, 1998
Expiration Date: June 30, 2000
Basic Rent: Forty Six Thousand Three and 75/100 Dollars
annually ($46,003.75 annual base rent)
Section 1.2 - Premises Use: Office, Light Assembly, Warehousing, Distribution
Section 3.1 - Pro Rata Share of Expenses: 13.4%
Section 4.1 - Insurance: $1,000,000 Combined Single Limited Liability
Section 10.1 - Property Manager Address: Xxxx/Shelard
00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxx, XX 00000
Section 25.1 - Brokerage: Xxxx/Shelard (Landlord) CB Commercial (Tenant)
Section 26.1 - Security Deposit: Three Thousand Eight Hundred Thirty Three and
65/100 Dollars ($3,833.65)
Section 29.10 - Parking Spaces: Thirteen (13)
Exhibits A and Riders 1 are attached hereto and made a part of this Lease,
consisting of 2 pages.
WITNESSETH:
ARTICLE 1
Description-Tern-Rent-Use
Section 1. 1 The Landlord, in consideration of the rents and agreements
hereinafter reserved on the part of the Tenant to be paid and performed, does
hereby demise and lease unto the Tenant, and the Tenant does hereby take subject
to the covenants and conditions hereinafter expressed which the Tenant agrees to
keep and perform, the space ( "the Premises" ) described on Exhibit A attached
hereto in the building located at the place specified on Page One of this Lease
(the "Building"), with the privilege to the Tenant of using (subject to such
reasonable rules and regulations as the Landlord may from time to time
prescribe) the necessary entrances and appurtenances thereto.
TOGETHER with all machinery, apparatus, equipment, and fixtures now or
hereafter owned by the Landlord and located on the Premises and used exclusively
for the operation and maintenance of the Premises (the "Building Equipment").
SUBJECT, however, to any and all existing leases, encumbrances,
conditions, covenants, easements, restrictions and rights-of-way, whether or not
of record, and other matters of record, if any, and to such matters as may be
disclosed by inspection or survey.
T0 HAVE AND TO HOLD the Premises and Building Equipment unto the
Tenant, for the Term as specified on Page One of this Lease (unless the Term of
this Lease shall sooner terminate as hereinafter provided) yielding and paying
therefor during the Term an annual basic rental (said annual basic rental is
hereinafter sometimes referred to as the "Basic Rent"), over and above the other
and additional payments to be made by the Tenant as specified on Page One of
this Lease.
The Basic Rent shall be paid in equal monthly installments in advance
on the first day of each and every calendar month during the Term of this Lease,
except that the first month's rent shall be due and payable when this Lease is
executed. If the Term does not commence on the first day of a month, the monthly
installment of Basic Rent payable for the period from the commencement of the
Term of this Lease to the last day of the month in which such commencement
occurs shall be prorated and paid on the date of such commencement. Interest at
the rate of two percent (2%) per month will be charged retroactive to the first
day of the month for rents not paid by the fifth (5th) day of the calendar month
until all monies due are paid.
Section 1.2 The Tenant agrees that it will use and occupy the Premises
for the purposes set forth on Page One of this Lease. 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 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
2
policy of insurance carried on the Building and environs and their operation, or
any use which, in Landlord's sole judgment, shall impair the character,
reputation or appearance of the Building and environs.
ARTICLE II
Covenant to Pay Rent
Section 2.1 The Tenant covenants to pay, without notice or demand and
without deduction or set-off for any reason whatsoever, the Basic Rent and all
other sums to be paid by Tenant as herein provided (all of which are hereinafter
collectively referred to as "the rent").
ARTICLE III
Operating Expenses-Taxes
Section 3.1 With regard to the expenses of the Landlord for (i) taxes
or assessments payable by Landlord upon or with respect to the Building and the
land upon which it is located, or any government levies or taxes imposed in lieu
thereof, and taxes, water and sewer charges and other governmental charges
relating to the maintenance and operation of the Building or any occupancy, use
or possession of or activity conducted thereon or on any part thereof (excluding
income, franchise, inheritance or capital stock taxes), but including any taxes
on rent and further including Landlord's cost of protesting taxes, and (ii)
insurance for fire, rental, public liability, property damage and any other type
of insurance which may be carried by Landlord with respect to the building, or
any part thereof, and the land on which it is located, and (iii) any and all
other expenses for the operation, maintenance and repair of the Building and the
land on which it is located including by way of example but without limiting the
generality of the foregoing, exterior grounds clean-up, landscaping maintenance,
snowplowing, ice removal, common area utilities and common area maintenance,
Tenant agrees to pay Landlord, as additional rent hereunder, within ten days
after written demand therefor, Xxxxxx's Pro Rata Share of all such expenses.
Late payments are subject to a two percent (2%) per month service charge until
all monies are paid.
Section 3.2 In order to provide for current payments on account of the
additional rent which may be payable to Landlord pursuant to clauses (i) through
(iii) of section 3.1, the Tenant agrees, at Landlord's request, to make payments
on account of such additional rent due for the ensuing twelve (12) months, as
estimated by notice from Landlord to Tenant from time to time, in twelve (12)
monthly installments, each in an amount equal to 1/12th of the amount of
additional rent so estimated by Landlord commencing on the first day of the
month following the month in which Landlord notifies Tenant of the amount of
such estimated additional rent. If, as finally determined, the amount of
additional rent payable by Tenant pursuant to clauses (i) through (iii) of
Section 3.1 shall be less than or be greater than the aggregate of all
installments to be so paid on account to the Landlord for such twelve (12) month
period, then Tenant shall pay to Landlord the amount of such underpayment or, so
long as Tenant is not in default hereunder, the Landlord shall credit to Tenant
any overpayment against succeeding installments of rent and at the end of the
Term of this Lease refund any amount not so applied to rent.
3
Section 3.3 Tenant agrees to pay, in the same manner as set forth in
Section 3.2, as additional rent, an amount equal to any additional tax levied
with respect to improvements made to Premises by the Tenant, as the value of
such improvements is shown on the assessment records.
Section 3.4 The obligations of Tenant to pay the additional rent
provided for in Section 3.1 shall survive the termination of this Lease.
ARTICLE IV Insurance
Section 4.1 The Tenant, at the Tenant's sole cost and expense, shall
maintain for the mutual benefit of the Landlord and the Tenant, comprehensive
public liability insurance, property damage insurance and contractual liability
insurance against claims for personal injury, death or property damage occurring
upon, in or about the Premises or any elevators or escalators therein and on, in
or about the adjoining streets and passageways, if any, such insurance to afford
protection to the limits of not less than the amounts as specified on Page One
of this Lease.
Section 4.2 Tenant, at Tenant's sole cost and expense, shall further
maintain for the mutual benefit of Landlord and Tenant, insurance on its
fixtures and tenant improvements and on its merchandise, inventory, contents,
furniture, equipment or other personal property located in the Premises from
time to time, against fire and such other risks as are included in extended
coverage insurance.
Section 4.3 Landlord agrees to purchase and keep in force and effect
insurance on the Building against fire and such other risks as may be included
in extended coverage insurance from time-to-time available in an amount not less
than the greater of 80% of the full insurable value of the Building or the
amount sufficient to prevent Landlord from becoming a co-insurer under the terms
of the applicable policies. Such policies may be in blanket form and cover other
properties owned by Landlord.
Section 4.4 All policies of insurance shall be in form and substance
satisfactory to the Landlord, shall be written with companies satisfactory to
the Landlord, in amounts satisfactory to the Landlord, and shall provide that
they shall not be cancelable on less than thirty (30 days' notice to the
Landlord or the holder of any mortgage. Certificates of insurance shall be
furnished to the Landlord. Tenant's policies shall name Landlord, its agents,
servants and employees, as additional insureds.
Section 4.5 Landlord and Tenant intend that the risk of loss or damage
to the Premises or any improvements therein be borne by responsible insurance
carriers, and Landlord and Tenant hereby release each other and agree to look
solely to, and seek recovery only from, such insurance carriers in the event of
such a loss, to the extent that such coverage is agreed to be provided
hereunder. For this purpose, all insurance policies to be maintained by either
Landlord or Tenant shall contain a clause pursuant to which the insurance
carrier waives all rights of subrogation against the other party with respect to
losses payable under such policies: and any applicable deductible amount shall
be treated as though it were recoverable under such policies.
4
ARTICLE V
Landlord's Right to Perform Tenant's Covenants
Section 5.1 The Tenant covenants that if the Tenant shall at any time
fail to make any payment or perform any other act on its part to be made or
performed under this Lease, the Landlord may, but shall not be obligated to, and
without notice or demand and without waiving or releasing the Tenant from any
obligation of the Tenant under this Lease, make such payment or perform such
other act to the extent the landlord may deem desirable, and in connection
therewith to pay expenses and to employ counsel. All sums so paid by the
Landlord and all expenses (including reasonable attorneys' fees) in connection
therewith, together with interest thereon at the rate of two percent (2%) per
month until all monies are paid, shall be deemed additional rent hereunder and
be payable to the Landlord on demand.
ARTICLE VI
Repairs and Maintenance of Premises-Surrender of Premises-Waste
Section 6.1 The Tenant covenants at the Tenant's sole expense to take
good care of the Premises and any Building equipment located therein, including
by way of example but without limiting the generality of the foregoing,
ceilings, floors, walls, woodwork, paint, doors, glass, plumbing, plumbing
fixtures, heating/air conditioning, hot water systems, electrical systems,
mechanical systems and equipment, and agrees to keep the same in good order and
condition and to make promptly all repairs, replacements or renewals. The Tenant
covenants to keep the Premises in a clean and orderly condition and free of
debris, merchandise, materials and rubbish.
Section 6.2. The Tenant covenants that upon termination of this Lease
for any reason whatsoever the Tenant will surrender to the Landlord the
Premises, together with all improvements, alterations, replacements thereto, and
the Building Equipment in good order, condition and repair, except for
reasonable wear and tear; provided, however, that if Landlord requests Tenant to
remove any such improvements, alterations or replacements, the Tenant shall
remove the same and restore the Premises to their condition prior to the
installation thereof. Upon such termination, Tenant shall remove, to Landlord's
satisfaction, all petroleum, hazardous wastes and hazardous substances from the
Premises (including soil and groundwater) and from any adjacent property upon
which any such petroleum, hazardous wastes and hazardous substances generated or
disposed of by the Tenant may be located.
Section 6.3 The Tenant covenants not to do or suffer any waste or
damage, disfigurement or injury to the Premises (including, without limitation,
the walls and ceilings located therein) or permit or suffer any overloading of
the floors of the Premises.
Section 6.4 Tenant shall, at its own cost and expense, enter into a
regularly scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all hot water, heating and air conditioning systems and
equipment within the Premises. The maintenance contractor and the contract must
be approved by Landlord. The service contract must include all services
suggested by the equipment manufacturer within the operation/maintenance manual
and
5
must become effective (and a copy thereof delivered to the Landlord) within
thirty (30) days of the date Tenant takes possession of the Premises.
Section 6.5 Tenant agrees to store waste, scrap, and garbage, etc., in
enclosed metal containers with lids, and agrees not to permit any motor vehicle
to be stored on the Premises. Waste containers are to be stored within the
Premises.
Section 6.6 Tenant acknowledges that it will be doing business with
various business entities which may deliver, or cause to be delivered, various
materials to Tenant. Accordingly, Tenant covenants and agrees that it will make
all necessary repairs of damages to the foundation, roof, overhead doors, jambs,
entryways, loading dock areas and exterior walls and other parts of the Building
within which the Premises is located, which damages were caused or occasioned by
the act, omission or negligence of Tenant, Tenant's agents, employees,
customers, invitees and suppliers, their agents, employees or delivery services,
during delivery or any other pursuance of Tenant's business of any nature
whatsoever, within forty-five (45) days of the occurrence of such damages.
Section 6.7 Tenant shall be responsible for removal of any stain or
deposits of grease, oil, tar, paint, or any other material or storage vessel
which may be used in the course of business or stored by Tenant during Tenant's
occupancy, and restoration thereof to any part of the Premises, parking lot or
other outside area to its original condition.
ARTICLE VII
Compliance with Laws and Insurance Requirements
Section 7.1 The Tenant covenants, at the Tenant's sole expense, to
comply with all laws and ordinances and requirements of all governmental
agencies, legislative bodies and courts of competent jurisdiction, of whatever
kind and nature, whether now existing or hereafter enacted, amended or modified
(and specifically including, without limiting the generality of the foregoing,
any and all such laws, ordinances and requirements as relate to protection of
the environment and environmental policy) and any and all recommendations of any
insurer, which may be applicable to the Premises or the sidewalks, curbs,
tunnels, bridges or sub-sidewalk space, if any, adjoining the Premises, by
reason of the tenant's use thereof. In the event Tenant does not comply with the
recommendations of any insurer, Tenant shall be liable for the payment of any
increase on the amount of any insurance premium caused by such non-compliance.
If any permitted use hereunder becomes uninsurable, Tenant shall cause such use
to become insurable, at Xxxxxx's expense, or Landlord may cancel and terminate
this Lease upon written notice.
ARTICLE VIII
Changes and Alterations by Tenant
Section 8.1 Tenant shall not make any changes or alterations,
structural or otherwise, to the Premises without the Landlord's prior written
consent, which consent, in the case of structural changes or alterations, may be
withheld for any or no reason.
6
Section 8.2 Subject to the provisions of Section 6.2, all repairs,
improvements, changes or alterations made or installed by the Tenant shall
immediately upon completion or installation thereof be and become the property
of the Landlord without payment therefore by the Landlord.
ARTICLE IX
Damage or Destruction
Section 9.1 Tenant covenants and agrees that in case of damage to or
destruction of the Premises by fire or other casualty, the Tenant will promptly
give written notice thereof to Landlord, and the Landlord, at the Landlord's
expense, will repair, and rebuild the same as nearly as practicable to the
condition the Premises were in immediately prior to such damage or destruction,
except that Landlord shall not be required to rebuild, repair or replace any
part of the partitions, fixtures, additions and other improvements which may
have been placed in, on or about the Premises by the Tenant, or rebuild any
damage caused by the intentional and willful act of Tenant.
Section 9.2. Rent shall xxxxx proportionately on such part of the
Premises as may have been rendered wholly untenantable (so long as such
untenantability was not caused by the intentional and willful act of Tenant)
until such time as such part shall be fit for occupancy, and after which time
the full amount of rent reserved in this Lease shall be payable as hereinbefore
set forth. The Tenant hereby waives the provisions of any law now or hereafter
in effect which would relieve the Tenant from any obligation to pay rent or
additional rent under this Lease, except to the extent provided by this Section.
Section 9.3 Anything in Section 9.1 to the contrary notwithstanding, if
the Premises or Building shall be substantially damaged or destroyed by fire or
otherwise, the Landlord, in its sole discretion, shall have the option of
terminating this Lease as of the date of such damage or destruction by written
notice to Tenant given within thirty (30) days after such damage or destruction,
in which event Landlord shall make a proportionate refund to Tenant of such rent
as may have been paid in advance.
ARTICLE X
Condemnation
Section 10.1 If the whole or any part of the Premises shall be taken
under the power of eminent domain, or shall be sold by the Landlord under threat
of condemnation proceedings, then this Lease shall terminate as to the part so
taken or sold on the day when Tenant is required to yield possession thereof,
and the Landlord shall make such repairs and alterations as may be necessary in
order to restore the part not taken or sold to useful condition, and the rental
hereinbefore specified shall be reduced proportionately as to the portion of the
Premises so taken or sold. If the amount of the Premises so taken or sold is
such as to impair substantially the usefulness of the Premises for the purposes
for which the same are hereby leased, then Tenant shall have the option to
terminate this Lease as of the date when Tenant is required to yield possession.
In any and all events, all compensation awarded or paid for any such taking or
sale of the fee and the leasehold, or any part thereof, shall belong to and be
the property of the Landlord. Landlord shall notify Tenant of receipt of notice
of condemnation.
7
Section 10.2 Anything in this Article X to the contrary
notwithstanding, if a portion of the Premises shall be taken in any proceeding,
the Landlord shall have the option of terminating this Lease as of the date of
vesting of title in the proceeding by written notice to Tenant given within
thirty (30) days after such vesting of title, in which event Landlord shall make
a proportionate refund to Tenant of such rent as may have been paid in advance.
ARTICLE XI
Conditions of Work for Repairs-Alterations
Section 11.1 All work for the making of repairs as required by Section
6.1, for complying with laws, ordinances, orders, regulations or requirements as
required by Section 7.1, and for making changes or alterations as permitted by
Section 8,1, shall be done in all cases subject to the conditions which the
Landlord may impose, and shall in all cases be done in a good and workmanlike
manner.
ARTICLE XII
Mechanics Liens
Section 12.1. Tenant shall not suffer or permit any mechanics' or other
liens to be filed against the Building or Premises or any underlying or adjacent
property nor against the Tenant's leasehold interest in the Premises by reason
of work, labor, services or materials supplied or claimed to have been supplied
to the Tenant or anyone holding the Premises or any part thereof through or
under the Tenant. If any such mechanics' lien shall at any time be filed against
the Premises, the Tenant shall cause the same to be discharged of record within
twenty (20) days after the date of filing.
If the Tenant shall fail to discharge any such mechanics' lien within
such period, then, in addition to any other right or remedy of the Landlord
hereunder, the Landlord may, but shall not be obligated to, procure its
discharge by paying the amount claimed to be due, or by deposit in court, or by
bonding, and in any such event the Landlord shall be entitled, if the Landlord
so elects, to compel the prosecution of an action for the foreclosure of such
mechanics' lien by the lienor and to pay the amount of the judgment, if any, in
favor of the lienor with Interest, costs and allowances. Any amount paid by the
Landlord for any of the aforesaid purposes, and all reasonable legal and other
expenses of the Landlord, including reasonable counsel fees, with interest
thereon at the rate of two percent (2%) per month until all monies are paid,
shall be deemed additional rent hereunder and be payable by the Tenant to the
Landlord on demand.
8
ARTICLE XIII
Landlord's Right to Enter Premises
Section 13.1 The Tenant agrees to permit the Landlord and any
authorized representatives of the Landlord, with or without prior notice to
Tenant, to enter the Premises at all times during usual business hours or at any
other time in case of emergency, to inspect the same and if the Landlord shall
desire, but without implying any obligation on the Landlord so to do, to make
any repairs deemed necessary or desirable by the Landlord and to perform any
work in the Premises deemed necessary by the Landlord to comply with any laws,
ordinances, orders, regulations or requirements of any governmental authority or
the recommendations of any insurer. During the progress of any such work, the
Landlord may keep and store upon the Premises all necessary materials, tools and
equipment. The Landlord shall not in any event be liable for inconvenience,
annoyance, disturbance, loss of business or other damage to the Tenant.
Section 13.2. The Tenant agrees to permit the Landlord and any
authorized representatives of the Landlord to enter the Premises at all times
during usual business hours to exhibit the same for the purpose of sale,
mortgage or lease. During the final six (6) months of the term of this Lease, or
in the case of default, for purposes of lease or sale, the Landlord may display
on the Premises, usual "for Sale" or for Lease" signs.
ARTICLE XIV
Assignment & Subletting
Section 14.1. The Tenant shall not, without the Landlord's prior
written consent in each instance, which consent may be withheld for any or no
reason, (a) assign, convey, mortgage, pledge, encumber or otherwise transfer
(whether voluntarily or otherwise) this Lease or any interest under it (b) allow
any transfer thereof or any lien upon the Tenant's interest by operation of law;
(c) sublet the Premises or any part thereof, or (d) permit the use or occupancy
of the Premises or any part thereof by any one other than the Tenant.
Section 14.2. Xxxxxx agrees to pay to Landlord, on demand, reasonable
fees (including attorneys' fees) incurred by Landlord in connection with any
request by Tenant for Landlord to consent to any assignment or subletting by
Xxxxxx.
Section 14.3. If this Lease is assigned or if the Premises or any part
thereof is sublet or occupied by anybody other than Tenant, Landlord may (but
shall not be obligated so to do), after default by Tenant, collect rent from
such assignee, subtenant or occupant, and apply the net amount collected to the
Rent herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of Tenant's covenants contained in
this Lease or the acceptance of the assignee, subtenant or occupant as Tenant,
or a release of Tenant from further performance by Tenant of covenants on the
part of Tenant herein contained.
Section 14.4. Notwithstanding anything contained herein to the
contrary, in the event that at any time during the Term of this Lease Tenant
desires to sublet all or any part of the Premises, Tenant shall notify the
Landlord in writing (hereinafter referred to as "Sublet Notice") of the terms
9
of the proposed subletting and the area so proposed to be sublet and shall give
the Landlord the option to sublet from Tenant such space (hereinafter referred
to as "Sublet Space") at the same Basic Rent and additional rent as Tenant is
required to pay the Landlord under this Lease for the same space or, at
Landlord's option, to terminate the Lease with respect to the Sublet Space. If
the Sublet Space does not constitute the entire Premises and Landlord exercises
its option to terminate this Lease with respect to the Sublet Space, then as to
that portion of the Premises which is not part of the Sublet Space, this Lease
shall remain in full force and effect except that the Rent shall be reduced by a
fraction, the numerator of which shall be the rentable square feet of the sublet
space and the denominator of which shall be the rentable square feet of the
Premises. The option to sublet, or to terminate this Lease, shall be execisable
by Landlord in writing within a period of thirty (30) days after receipt of the
Sublet Notice.
Section 14.5. In the event Landlord exercises its option to sublease
the Sublet Space, the term of the subletting from the Tenant to the Landlord for
the Sublet Space shall be the term set forth in the Sublet Notice and shall be
on such other terms and conditions as are contained in this Lease to the extent
applicable.
Section 14.6. In the event Landlord does not exercise either of its
options specified above and Tenant with Landlord's prior written consent
completes a sublease with a third party, the subtenant shall be subject to and
comply with requirements of this section and this Lease to the extent applicable
thereto.
ARTICLE XV
Rights of Mortgagee
Section 15.1. The rights of the Tenant under this Lease shall be and
are subject and subordinate at all times to the lien of any mortgages or deeds
of trust now or hereafter in force against the Property or the Building, or both
of them, and to all advances made or hereafter to be made upon the security
thereof, and to all renewals, modifications, amendments, consolidations,
replacements and extensions thereof. This Article is self-operative and no
further instrument of subordination shall be required. Any mortgagee or
beneficiary under a deed of trust may, however, elect to have this Lease be
superior to its mortgage or deed of trust. At Landlord's request, Xxxxxx shall
execute a document in recordable form confirming that this Lease is subordinate
(or at the mortgagee's or beneficiary's election, superior) to any mortgage or
deed of trust. Tenant, at the option of any mortgagee or beneficiary under a
deed of trust ("Landlord's Mortgagee"), agrees (a) to attorn to such mortgagee
or beneficiary in the event of a foreclosure sale or deed in lieu thereof, and
(b) to execute such attornment, security, assignment or related agreements as
Landlord's Mortgagee may reasonably require. In the event of any act or omission
by Landlord which would give Tenant the right to terminate this Lease or to
claim a partial or total eviction from the Premises, Tenant shall not exercise
any such right (a) until it has notified in writing the Landlord's Mortgagee of
such act or omission, and (b) until a reasonable period for remedying such act
or omission shall have elapsed following the giving of such notice, and
Landlord's Mortgagee shall not with reasonable diligence have commenced and
continued to remedy such act or omission or to cause the same to be remedied.
Xxxxxxxx will notify Xxxxxx in writing of the name and address of each
Landlord's Mortgagee upon the execution of this Lease and subsequently inform
Xxxxxx of
10
any new Landlord's Mortgagee immediately upon the execution of a mortgage or
deed of trust encumbering title Building. No Landlord's Mortgagee shall be bound
by any cancellation, amendment or modification of this Lease, or waiver of any
provision of this Lease which has not been consented to in writing by that
Landlord's Mortgagee.
ARTICLE XVI
Indemnification of Landlord-No Representations by
Xxxxxxxx-Xxxxxx of Claims
Section 16.1. The Tenant agrees to indemnify and save harmless the
Landlord against and from any and all claims by or on behalf of any persons,
firms, corporations, or governmental entities arising from the conduct or
management of, or from any work or thing whatsoever done in or about, the
Premises during the Term of this Lease, and will further indemnify and save the
Landlord harmless against and from any and all claims arising during the Term of
this Lease from any condition of the Premises, or any street, curb, sidewalk or
parking lot area, if any, adjoining the Premises, or of the passageways or
spaces therein or appurtenant thereto, or arising from any breach or default on
the part of the Tenant in the performance of any covenant or agreement on the
part of the Tenant to be performed pursuant to the terms of this Lease, or
arising from any act or negligence of the Tenant, or any of its agents,
contractors, servants, employees or licensees, or arising from any accident,
injury or damage whatsoever caused to any person, firm or corporation occurring
during the Term of this Lease, in or about the Premises, or upon or under the
sidewalks and the land adjacent thereto, if any, and from and against all costs,
counsel fees, expenses and liabilities incurred in connection with any such
claim or action or proceeding brought thereon; and in case any action or
proceeding be brought against the Landlord by reason of any such claim, the
Tenant, at its sole cost and expense, upon notice from the Landlord covenants to
resist or defend such action or proceeding by counsel satisfactory to the
Landlord.
Section 16.2. The Tenant covenants and agrees to pay, and to
indemnify the Landlord against, all legal costs and expenses, including counsel
fees, lawfully and reasonably incurred in obtaining possession of the Premises
after default by the Tenant or upon expiration or earlier termination of the
Term of this Lease or Tenant's right to possession thereunder or in enforcing
any covenant or agreement of the Tenant herein contained, or tin the defense of
any suit arising out of the occupancy or operation of the Premises by the
Tenant.
Section 16.3. The Tenant is fully familiar with the physical condition
of the Premises and every part thereof, and accepts them in satisfactory
condition and in good repair as of the date of execution of this Lease. The
Landlord has made no representations of whatever nature in connection with the
condition of the Premises or any part thereof, and the Landlord shall not be
liable for any latent or patent defects therein.
Section 16.4. Tenant agrees that, to the extent not expressly
prohibited by law, Landlord and its officers agents, servants and employees
shall not be liable for (nor shall rent xxxxx as a result of) any direct or
consequential damage (including damage claimed for actual or constructive
eviction) either to person or property sustained by Xxxxxx, its servants,
employees, agents, invitees or guests due to the Premises or any part thereof or
any appurtenances thereof becoming out of repair, or due
11
to the happening of any accident in or about said Premises, or due to any act or
neglect of any tenant or occupant of said Premises or of any other person. This
provision shall apply particularly (but not exclusively) to damage caused by
water, snow, frost, steam, sewage, gas, electricity, sewer gas or odors or by
the bursting, leaking or dripping of pipes, faucets and plumbing fixtures and
windows, and shall apply without distinction as to the person whose act or
neglect was responsible for the damage and whether the damage was due to any of
the causes specifically enumerated above or to some other cause of a different
kind. Tenant further agrees that all of Xxxxxx's personal property in the
Premises shall be at the risk of Tenant only and that Landlord shall not be
liable for any loss or damage thereto or theft thereof.
ARTICLE XVII
Default Provisions-Remedies of Landlord
Section 17.1. The following events shall be deemed to be events of
default by Tenant under this Lease:
(a) Tenant shall fail to pay any installments of Basic Rent or
additional rent when due, or any other payment or reimbursement to Landlord
required herein when due, and such failure shall continue for a period of five
(5) days from the date of notice from Landlord that such payment was due and
outstanding.
(b) Tenant shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator of the Tenant or of all or a substantial part of
its assets, (ii) become insolvent or admit in writing its inability to pay its
debts as they come due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or an answer seeking reorganization or
arrangement with creditors or to take advantage of any insolvency law, other
than the Federal Bankruptcy Code, (v) file an answer admitting the material
allegations of a petition filed against the Tenant in any reorganization or
insolvency proceedings, other than a proceeding commenced pursuant to the
federal Bankruptcy Code, or if any order, judgment or decree shall be entered by
any court of competent jurisdiction, except for bankruptcy court or a federal
court sitting as a bankruptcy court, adjudicating the Tenant insolvent or
approving a petition seeking reorganization of the Tenant or appointing a
receiver, trustee or liquidator of the Tenant or of all or a substantial part of
its assets, or (vi) make a transfer in fraud of creditors.
(c) Tenant shall abandon or vacate any substantial portion of the
Premises for a period in excess of fifteen (15) calendar days.
(d) Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than the foregoing in this Section 17.1) and shall not cure
such failure within twenty (20) days after written notice thereof to Tenant (or
if such failure involves a hazardous condition and is not cured immediately
after written notice to Tenant).
(e) Tenant shall fail to discharge any lien placed upon the Premises in
violation of Section 12.1 hereof within twenty (20) days after any such lien or
encumbrance is filed against the Premises.
12
Section 17.2. Upon the occurrence of any of such events of default
described in Section 17.1 hereof, Landlord shall have the option to pursue
either or both of the following remedies or any other remedy available to
Landlord at law or in equity:
(a) Terminate this Lease by giving to the Tenant a notice of intention
to end the Term of this Lease specifying a day not earlier than five (5) days
thereafter, and upon the giving of such notice the Term of this Lease and all
right, title and interest of the Tenant hereunder shall expire as fully and
completely on the day so specified as if that day were the date herein
specifically fixed for the expiration of the Term, whereupon, Tenant shall
immediately surrender the Premises to Landlord, and, if Xxxxxx fails so to do,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, additional rent, or other charges, enter upon
and take possession of the Premises and expel or remove Tenant and any other
person who may be occupying such Premises or any part thereof, by force if
necessary, without being liable for prosecution or any claim of damages
therefor, and Xxxxxx agrees to pay to Landlord on demand the amount of all loss
and damage which Landlord may suffer by reason of such termination, whether
through inability to relet the Premises on satisfactory terms or otherwise.
(b) Enter upon and take possession of the Premises without terminating
this lease and expel or remove Tenant and any other person who may be occupying
such Premises or any part thereof, by force if necessary, without being liable
for prosecution or any claim for damages therefor, and without terminating this
lease or releasing Tenant from its obligations hereunder for the full Term
hereof, endeavor to relet the Premises for such time and upon such terms as the
landlord shall determine, and receive the rent therefor. In any case of
reletting hereunder, the Landlord may make repairs, alterations and additions in
or to the Premises, and redecorate the same to the extent deemed by Landlord
necessary or desirable, and the Tenant shall, upon demand, pay the cost thereof,
together with the Landlord's expenses of the reletting including but not limited
to real estate commissions, advertising, legal fees and expenses. If the
consideration collected by the Landlord upon any such reletting is not
sufficient to pay monthly the full amount of the rent, additional rent and other
charges reserved in this Lease, together with the cost of repairs, alterations,
additions, redecorating and the Landlord's expenses, the Tenant shall pay to the
Landlord the amount of such deficiency upon demand. In the event Landlord is
successful in reletting the Premises at rental in excess of that agreed to be
paid by Tenant pursuant to the terms of this Lease, Landlord and Tenant each
mutually agree that Tenant shall not be entitled, under any circumstances, to
such excess rental, and Tenant does hereby specifically waive any claim to such
excess rental and to any setoff thereof under this Lease.
Section 17.3. The Tenant hereby expressly waives the service of notice
of intention to re-enter, provided for in any statute, or to institute legal
proceedings to that end, and also waives any and all right of redemption in case
the Tenant shall be disposed by a judgment or by warrant of any court or judge.
The Landlord and Tenant hereby waive trial by jury in any action, proceeding or
counterclaim brought by either party against the other on any matters arising
out or in connection with this Lease, the relationship of Landlord and Tenant
thereunder, the Premises or the Tenants use or occupancy thereof. The terms
"enter" and "entry" as used in this Lease are not restricted to their technical
legal meaning. If, on account of any breach or default by Tenant in Tenant's
13
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning, or to enforce or defend, any of Landlord's rights or remedies
hereunder, Xxxxxx agrees to pay any attorney's fees so incurred by Landlord.
ARTICLE XVIII
Holding Over
Section 18.1. Tenant covenants that it will vacate the Premises
immediately upon the expiration or sooner termination of the Term of this Lease
or Tenant's right to possession hereunder If the Tenant retains possession of
the Premises or any part thereof after the termination of the Term, the Tenant
shall pay the Landlord rent at double the monthly rate specified in Articles I
and III for the time Tenant thus remains in possession and, in addition tbereto,
shall pay the Landlord for all damages, consequential as well as direct,
sustained by reason of the Tenant's retention of possession. If the Tenant
remains in possession of the Premises, or any part hereof, after the termination
of the Term, such holding over shall, at the election of the Landlord expressed
in a written notice to the Tenant and not otherwise, constitute a renewal of
this Lease for one year at a rental rate equal to that which Landlord in good
faith was then prepared to offer the Premises to third parties. The provisions
of this Section do not exclude the Landlord's rights of re-entry or any other
right hereunder, including without limitation, the right to refuse double the
monthly rent and instead to remove Tenant through summary proceedings for
holding over beyond the expiration of the Term of this Lease.
ARTICLE XIX
Invalidity of Particular Provisions
Section 19.1. If any covenant, agreement or condition of this Lease or
the application thereof to any person, firm or corporation or to any
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such covenant, agreement or condition to
persons, firms, or corporations or to circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby. Each covenant,
agreement or condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
ARTICLE XX
Notices
Section 20.1. All notices, demands and requests which may or are
required to be given by either party to the other shall be in writing and shall
be deemed given when sent by United States Certified Mail, postage prepaid, (a)
if for the Tenant, addressed to the Tenant at the Premises or at such other
place as the Tenant may from time to time designate by written notice to the
Landlord, or (b) if for the Landlord, addressed to The Shelard Group, Inc.,
Attn: Property Manager, 00000 Xxxxxx Xxxxx, #000, Xxxx Xxxxxxx, XX 00000, with a
copy to: Equitable Real Estate Investment Management Company, 000 Xxxxxxxxx
Xxxxx, #0000, Xxxxxxx, XX 00000-0000 or at such other place as the Landlord may
from time designate by written notice to the tenant. Copies of all notices shall
also be sent to the Property Manager at the address specified on Page one of
this Lease, or to such
14
other person or at such other place as the Landlord may from time to time
designate by written notice to the Tenant.
Section 20.2. Tenant will deliver to the Landlord, (i) copies of any
documents received from the United States Environmental Protection Agency and/or
any state, county or municipal environmental or health agency concerning the
Tenant's operations upon the Premises; and (ii) copies of any documents
submitted by the Tenant to the United States Environmental Protection Agency
and/or any state, county or municipal environmental or health agency concerning
its operations on the Premises.
ARTICLE XXI
Quiet Enjoyment
Section 21.1. The Landlord covenants and agrees that the Tenant upon
paying the Basic Rent, additional rent and all other charges herein provided for
and performing and fulfilling covenants, agreements and conditions of this Lease
on the Tenant's part to be performed and fulfilled, shall lawfully and quietly
hold, occupy and enjoy the Premises during the Term of this Lease without
hindrance or molestation by the Landlord or any person or persons claiming under
the Landlord, subject, however, to the matters herein set forth.
ARTICLE XXII
Limitation of Landlord's Liability-Exculpation
Section 22.1. The term "Landlord" as used in this Lease shall be
limited to, mean and include only the owner or owners of the Landlord's interest
in this Lease at the time in question, and in the event of any transfer or
transfers of such interest, the Landlord herein named (and in case of any
subsequent transfer, the then transferor) shall be automatically freed and
relieved from and after the date of such transfer of all personal liability as
respects the performance of any covenants or agreements on the part of the
Landlord contained in this Lease thereafter to be performed; provided that any
funds in the hands of such Landlord or the then transferor at the time of such
transfer, in which the Tenant has an interest shall be turned over to the
transferee and provided further that upon any such transfer, the transferee
shall be deemed to have assumed, subject to the limitations of this Section, all
of the covenants, agreements and conditions in this Lease contained to be
performed on the part of the Landlord, it being intended hereby that the
covenants and agreements contained in this Lease on the part of the landlord to
be performed shall, subject as aforesaid, be binding on the Landlord, its
successors and assigns, only during and in respect of their respective periods
of ownership.
Section 22.2. Any obligation of Landlord under or with respect to this
Lease or the Premises shall be enforceable only against and payable out of
Landlord's interest in the Premises, and Tenant hereby agrees that neither
Tenant nor any other person shall have or may assert any right, recourse or
remedy to or against Landlord or its agent or any assets of Landlord, except to
the extent (if any) of their respective interests in the Premises; and no
officer, shareholder, director,
15
employee, partner, trustee or beneficiary of Landlord assumes or shall have any
personal liability of any kind whatsoever hereunder.
ARTICLE XXIII
Estoppel Certificate by Xxxxxx
Section 23.1. At any time and from time to time upon not less than ten
(10) days' prior request by the Landlord, the Tenant agrees to execute,
acknowledge and deliver to the Landlord a statement in writing certifying (a)
that this Lease is unmodified and in full force and effect, or if there have
been modifications, that the same is in full force and effect as modified and
identifying the modifications, (b) the dates to which the Basic Rent, additional
rent and other charges have been paid, and (c) that the Landlord is not in
default under any provisions of this Lease, or, if Tenant believes Landlord is
in default, the nature of such default. It is intended that any such statement
may be relied upon by any person proposing to acquire the Landlord's interest in
this Lease or any prospective mortgagee of, or assignee of any mortgage upon,
such interest.
ARTICLE XXIV
Cumulative Remedies-No Waiver-No Oral Change
Section 24.1. The specified remedies to which the Landlord may resort
under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which the Landlord may be
entitled, either at law or in equity, in case of any breach or threatened breach
by the Tenant of any covenant, agreement or condition of this Lease. The failure
of the Landlord to insist in any instance upon the strict performance or
observance of any of the covenants, agreements or conditions of this Lease or to
exercise any option herein contained shall not be construed as a waiver for the
future of such covenant, agreement, condition or option. A receipt by the
Landlord of rent with knowledge of the breach of any covenant, agreement or
condition hereof shall not be deemed a waiver of such breach, and no waiver by
the Landlord of any covenant, agreement or condition of this Lease shall be
deemed to have been made unless expressed in writing and signed by the Landlord.
In addition to the other remedies in this Lease provided, the Landlord shall be
entitled to the restraint by injunction of the violation, or attempted or
threatened violation, of any of the covenants, agreements or conditions of this
Lease. No receipt of monies by Landlord from Tenant after the termination or
cancellation hereof or any rights granted to Tenant hereunder in any lawful
manner shall reinstate, continue or extend the Term hereof, or affect any notice
theretofor given to Tenant, or operate as a waiver of the right of Landlord to
enforce the payment of rent or additional rent or other charges then due or
thereafter falling due, or operate as a waiver of the right of the Landlord to
recover possession of the Premises by proper suit, action, proceedings or
remedy; it being agreed that, after the service of notice to terminate or cancel
this Lease and the expiration of the time therein specified, if the default has
not been cured in the meantime, or after the commencement of suit, action or
summary proceedings or of any other remedy, or after a final order, warrant or
judgment for the possession of the Premises, Landlord may demand, receive and
collect any moneys then due, or thereafter becoming due, without in any manner
affecting such notice, proceeding, suit, action, order, warrant or judgment and
any and all such moneys so collected shall be deemed to be payments on account
for the use and occupation of the Premises, or at the election of Landlord, on
account of the Tenant's liability hereunder. Acceptance of the keys to the
Premises or any similar act, by Landlord, or any agent or
16
employee of Landlord during the Term hereof, shall not be deemed to be an
acceptance of a surrender of the Premises unless Landlord shall consent thereto
in writing.
Section 24.2. This Lease cannot be changed orally, but only by
agreement in writing signed by the party against whom enforcement of the change
is sought.
ARTICLE XXV
Brokerage
Section 25.1. Tenant represents and warrants that it has dealt with no
broker, agent or other person in connection with this transaction and/or that no
other broker, agent or other person brought about this transaction, other than
those persons as specified on Page One of this Lease, and Xxxxxx agrees to
indemnify and hold Landlord harmless from and against any claims by any other
broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with Tenant with regard to this leasing
transaction. The provisions of this Article shall survive the termination of
this Lease.
ARTICLE XXVI
Security Deposit
Section 26.1. Tenant has deposited with the Landlord the sum as
specified on Page One of this Lease Document as security for the full
performance of every provision of this Lease to be performed by Xxxxxx. If
Tenant defaults with respect to any provision of this Lease, Landlord may use,
apply or retain all or any part of this security deposit for the payment of any
basic rent and additional rent or any other sum in default, or for the payment
of any other amount which Landlord may spend or become obligated to spend by
reason of Tenant's default, or to compensate Landlord for any other loss, cost
or damage which Landlord may suffer by reason of Tenant's default. If any
portion of said deposit is so used or applied, Tenant shall, within five (5)
days after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the security deposit to its original amount and Tenant's
failure to do so shall be a breach of this Lease. Landlord shall not, unless
otherwise required by law, be required to keep this security deposit separate
from its general funds nor pay interest to the Tenant. For full security deposit
reimbursement the following conditions must be met:
a) All walls must be clean and free of holes;
b) Overhead door must be free of any broken panels, cracked
lumber or dented panels. The overhead door springs, rollers,
tracings, motorized door operator, and all other items
pertaining to the overhead door must also be in good working
condition;
c) Heaters, air conditioning units must be in good working order.
Filters must be changed - all thermostats must be in working
order. Tenant must supply Landlord with maintenance records;
d) All floors must be clean and free of excessive dust, dirt,
grease, oil and stains;
17
e) Drop grid ceiling must be free of excessive dust from lack of
changing filters. (No ceiling tiles should be missing or
damaged);
f) All trash must be removed from both inside and outside of the
Building;
g) All light bulbs & ballasts must be working;
h) All signs in front of the Building and on glass entry door and
rear door must be removed;
i) Hot water heater must work;
j) All plumbing fixtures, equipment & drains must be clean and in
working order;
k) Warehouse floor must be clean and free of grease and stains;
1) Windows must be clean;
m) All keys must be returned;
n) All mechanical & electrical systems must be in good working
condition;
o) Tenant shall be in compliance with the surrender provisions of
Section 6.2 of this Lease; and
p) Xxxxxx shall not have attempted to set off against the rent
due hereunder any sums due and owing to Xxxxxx from Landlord.
ARTICLE XXVII
Environmental
Section 27.1. Tenant shall not in the Premises or the Building
generate, store, handle, release, discharge, or otherwise deal with any material
classified as a "hazardous material" for purposes of the Comprehensive
Environmental Response, Compensation and Liability Act of l98O, as amended from
time to time (CERCLA) or the Resource Conservation and Recovery Act of 1976, as
amended from time to time (RCRA), or any similar or related federal, state or
local statutes, rules, regulations or ordinances. Without limiting the
generality of the foregoing, Tenant expressly covenants and agrees that it shall
not, nor shall it permit anyone to:
(1) Use asbestos or any asbestos-containing materials in the Premise or
in the Building;
(2) Use any liquid-filled transformers in the Premises or in the
Building, unless consented to by Landlord in writing and confirmed by an outside
authoritative source to be free of polychlorinated biphenyls (PCB's);
18
(3) Install any underground storage tanks, unless consented to by
Landlord in writing and specifically approved and certified to be in compliance
with applicable code requirements;
(4) Store any opened containers of combustible products, such as
cleaning solvents, in other than metal containers and cabinets approved by
Landlord in writing.
Tenant shall protect, indemnify and save Landlord and its officers, agents,
servants and employees harmless from and against any and all obligations,
liabilities, costs, damages, claims and expenses of whatsoever nature arising
from or in connection with any violation of this Article XXVII. The provisions
of this Article XXVII shall survive the termination of this Lease.
ARTICLE XXVIII
Rules and Regulations
Section 28.1. Landlord reserves the right to promulgate such reasonable
rules and regulations as in Landlord's judgment may from time to time be
necessary for the safety, care and cleanliness of the Premises and the Building.
ARTICLE XXIX
Miscellaneous Provisions
Section 29.1. Tenant shall be solely responsible for and promptly pay
all charges for heat, water, gas, electricity and other utilities used or
consumed on the Premises. Landlord shall not be liable to Tenant for
interference in or interruption of any utility service nor shall any curtailment
or interruption constitute a constructive eviction or grounds for rental
abatement in whole or in part hereunder. In the event utilities are not
separately metered to Tenant, then Xxxxxx will reimburse Landlord, upon demand,
for the cost to Landlord of utilities used or consumed on the Premises.
Section 29.2. Tenant shall not place on the outside of the Building any
sign, advertisement, illumination or projection, unless the same shall first
have been approved in writing by Landlord. In multi-tenant buildings, Tenant
shall pay for and comply with Landlord's uniform signage requirements.
Section 29.3. If the Landlord is unable to tender possession of the
Premises on the date of the commencement of the Term hereof, the Landlord shall
not be liable for any damage caused thereby, nor shall this Lease be void or
voidable by Tenant, but in such event, unless the delay results from failure of
Tenant to provide plans or otherwise perform in accordance with the requirement
of the Lease, no rental shall be payable by tenant prior to actual tender to
Tenant of possession of the Premises. In any event, late delivery of the
Premises will not extend the Term of this Lease.
Section 29.4. This Lease shall be construed and enforced in accordance
with the laws of the state in which the Building is situated.
19
Section 29.5. The parties hereto agree that the covenants and
agreements herein contained shall bind and inure to the benefit of the Landlord,
its successors and assigns, and the Tenant, its successors and assigns.
Section 29.6. The submission of this Lease for examination, approval,
and/or negotiation does not constitute an offer or agreement to lease, or a
reservation of, or option for the Premises, nor shall any oral statements made
by any agent of Landlord be deemed to constitute an offer or agreement to lease.
This Lease shall be effective and binding as a lease of the Premises only upon
execution and delivery hereof, each to the other by both Landlord and Tenant.
Section 29.7. If any checks written during the lease term fail to clear
the Tenant's Bank, Landlord may demand all future rent payments to be either in
the form of cash, certified check money order, wire transfer or cash equivalent
funds.
Section 29.8. There will be a $50.00 service charge on all NSF checks
and interest will accrue on such amount at the rate of two percent (2%) per
month until all monies are paid.
Section 29.9. "Reasonable wear and tear" is hereby defined as that
degree of wear and tear which would normally occur in the general usage of a
demised premises but shall not include any physical damages to the floors,
walls, and ceiling of the Premises, nor any damage caused through operation of
machinery, office equipment or other equipment used in the operation of Tenant's
business. Additionally, if Tenant's use, by reason of fumes discharged or
liquids used by Tenant, should cause damage to the Premises or other nearby
premises, both interior or exterior, such damages shall not be deemed as
"reasonable wear and tear", and Tenant shall be liable for the complete
restoration of the Premises at Tenant's expense. Such damages shall include, but
not be limited to, damaged, rusting or corroded walls, floors, ceilings, doors,
windows, plumbing, heating and air conditioning units, metal bar joists, steel
decks, or roof vents or stacks.
Section 29.10. Landlord agrees to provide, for the use of Tenant and
Xxxxxx's employees, agents, customers and invitees, sufficient parking space
adjacent to or reasonably near the Premises (together with necessary access
thereto) to accommodate not more than the number of parking spaces for passenger
automobiles as specified on Page One of this Lease. Tenant shall have no
interest in any parking area so furnished, as tenant or otherwise, but shall
have only a license to use the same during the Term of this Lease, in common
with others entitled to the use thereof. All rights herein granted with respect
to parking and driveway areas shall at all times be subject to reasonable
regulation by Landlord, but Landlord shall have no liability to any person or
any interference with, or obstruction of, any such rights.
Section 29.11. In the event rail side track service is provided to the
Premises, Tenant covenants and agrees to pay to the Landlord, as additional
rent, its pro rata share of all costs incurred by Landlord under rail agreements
for the provisions and maintenance of such rail side track service.
20
Section 29.12. Landlord reserves the right to retain at all times, and
to use in appropriate instances, keys to all doors within and into the Premises.
No locks shall be changed without the prior written consent of Landlord.
Section 29.13. All payments becoming due under this Lease shall be
considered as rent, and if unpaid when due shall bear interest from such date
until paid at the rate of two percent (2%) per month (unless a lesser rate shall
then be the maximum rate permissible by law with respect thereto, in which event
such lesser rate shall be charged).
Section 29.14. Landlord shall have the right to apply payments received
from Tenant pursuant to this Lease (regardless of Tenant's designation of such
payments) to satisfy any obligations of Tenant bereunder, in such order and
amounts, as Landlord in its sole discretion, may elect.
IN WITNESS WHEREOF the Landlord and the Tenant have executed this
agreement the day and year first above written.
______________________________
______________________________
Landlord
By____________________________
______________________________
______________________________
Tenant
(Corporate Seal)
Attest: By /s/ Xxx X. Xxxxxxx
---------------------------
President
------------------------------
Secretary
21
CERTIFIED COPY OF RESOLUTION
I, Xxxxx Xxxxxx, do hereby certify that I am the duly elected and
acting Secretary of Amcom Corporation, a Minnesota Corporation, and the
custodian of the corporate books and records; that at a Special Meeting of the
Board of Directors of said company, held on September 5, 1995, at which all of
the Directors were present, the following Resolution was unanimously adopted:
RESOLVED, that the Corporation enter into a lease with The Equitable
Life Assurance Society of the United States for the premises located at
0000-0000 Xxxxxxxxxx Xxx. S., Eden Prairie, MN 55344 and approve the lease
submitted, and that the officers of the Corporation be and are hereby authorized
and directed to execute and deliver same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
corporate Seal of said corporation this 5th day of September, 1995.
/s/ Xxxxx Xxxxxx
------------------------------
Secretary
SEAL.
22
RIDER TO LEASE
This Rider is dated as of September 18, 1995 and is between THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES, New York corporation, as Landlord, and
AMCOM CORPORATION, a Minnesota corporation, as Tenant.
This Rider is intended to supplement and amend the provisions of the Lease to
which it is attached. To the extent that any of the provisions of this Rider are
inconsistent with the provisions of the Lease, the provisions of this Rider will
control. The terms defined in the Lease will have the same meanings when used in
this Rider.
The Premises described in this Lease are currently subleased to Tenant under a
Sublease dated as of September 18, 1995, between Viking Press, Inc. as Sublessor
and Tenant as Sublessee (the "Sublease"). In the event that the Sublease is
terminated, or Xxxxxx's right to possession of the Premises under the Sublease
is terminated, prior to the commencement date of this Lease, this Lease may be
terminated by Landlord at any time thereafter by written notice to Xxxxxx.
23
