EXHIBIT 10.30
LEASE
Skyline Builder's, Inc. ("Landlord"), a Minnesota corporation, hereby
leases to FSI International, Inc. ("Tenant"), a Minnesota corporation, and
FSI International, Inc. hereby leases from Skyline Builders, Inc., that certain
portion, as outlined in the drawing attached as Exhibit A, and containing
approximately 125,800 square feet (the "Premises"), of that certain building
(the "Building") known as 000 Xxxx Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx, located
on the legal parcel (the "Parcel") described as Tract C, Registered Land Survey
No. 51, Files of Registrar of Titles, Xxxxxx County, Minnesota, on the terms and
conditions set forth below.
1. Arrangements For Fixing Commencement Date. Landlord will immediately
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notify Tenant telephonically once Landlord acquires fee title to the Parcel. The
date of such notice is hereinafter referred to as the "Commencement Date."
Tenant will thereupon have the right to enter the Premises for the purpose of
designing and constructing Alterations (as hereafter defined) and the right to
use the Premises in any manner permitted by this Lease. Landlord will cooperate
with Tenant to give Tenant as much advance notice as is reasonably practical of
any closing in which Landlord expects to acquire fee title to the Parcel.
2. Cancellation Rights. Tenant and Landlord shall each have the right to
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cancel this Lease, without further obligation to the other (except that Landlord
will refund any security deposit or prepaid Rent) if, for whatever reason,
Landlord has not acquired fee title to the Parcel by September 1, 1995.
3. Square Footage. Preliminary measurements indicate that the Premises
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contains 125,800 square feet. Prior to the Commencement Date, Landlord may (and,
if requested by Tenant, Landlord will) have an architect, engineer, or surveyor
remeasure the Premises, at Landlord's expense, from the outside edges of the
perimeter walls to the middle of any demising walls. Landlord will promptly
notify Tenant of the results. As used in this Lease, "Square Footage" means
125,800 square feet; provided, however, that if such an architect, engineer, or
surveyor remeasures the Premises pursuant to the previous sentence, "Square
Footage" will mean the square footage of the Premises, as thus measured, without
deduction for any columns, stairwells, elevators, or other unusable space within
the boundary walls of the Premises.
4. Term. The Term of this Lease is a period (the "Initial Term") starting
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on the Commencement Date and ending at 11:59 p.m. on the last day of the
calendar month in which the fifth year anniversary of the "Rent Start Date" (as
hereinafter defined) occurs. Provided, however, that Landlord hereby grants
Tenant the option, to be exercised, if at all, only by giving Landlord written
notice at least 180 days prior to the expiration of the
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Initial Term (with time being of the essence), to extend the Term for an
additional five year period (the "Renewal Term") commencing on the day following
the last day of the Initial Term. Provided further, however, that Tenant may
exercise this option only while it is not in Default and only prior to the time,
if any, in which it is dispossessed because of a Default. The word "Term," as
used herein, shall mean the Initial Term or, after Tenant timely and effectively
exercises its renewal option, the Initial Term plus the Renewal Term.
5. Premises Condition. Landlord warrants that all electrical, mechanical,
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structural, and plumbing systems, serving the Premises within the Building as of
the date of this Lease, will be in good working condition on the Commencement
Date. At its own expense, Landlord will install one passenger elevator serving
the mezzanine portion of the Premises, will enclose and finish the two existing
stairwells serving the area of the mezzanine portion of the Premises above the
present site of the office-finished space on the ground floor, and will
construct demising walls separating the Premises from adjacent space in the
Building. Landlord will make these improvements as soon as reasonably possible
after the Commencement Date. The specifications for these improvements shall be
left to Landlord's discretion, provided, however, that these specifications
shall conform to all applicable building code requirements, and provided further
that these improvements will be done in a good and workmanlike manner. Except as
expressly provided in this Article, Tenant is leasing the Premises "as is,"
without any warranty whatsoever as to the physical condition or suitability of
the Premises, Building, or Parcel. Tenant acknowledges that it has inspected the
Premises prior to signing this Lease and that it is in no way relying on any
representation or warranty by Landlord or any agent of Landlord, other than
those expressly contained in this Lease, as to the physical condition of the
Premises or its suitability, legal, structural, functional, or otherwise, for
Tenant's intended purposes.
6. Base Rent. Base Rent will be due and owing from Tenant to Landlord, in
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advance, in the following amounts and at the following times:
A. On the Rent Start Date: the sum of $36,692 (i.e., 125,800 x $3.50/12)
multiplied by a fraction whose numerator is the number of days (starting with
the Rent Start Date) remaining in the calendar month in which the Rent Start
Date occurs, and whose denominator is the total number of days in that calendar
month.
B. On the first day of the next calendar month and each successive month
thereafter during the Initial Term: the sum of $36,692.
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C. On the first day of the next calendar month and each successive month
thereafter during the first three years of the Renewal Term: the sum of $42,248
(i.e., 125,800 x $4.03/12).
D. On the first day of the next calendar month and each successive month
thereafter during the remainder of the Renewal Term: the sum of $45,183 (i.e.,
125,800 V. $4.31/12).
E. Notwithstanding the foregoing, Base Rent amounts will be subject to a
multiplier in case of any holdover as provided in Article 19.
F. All of the foregoing sums assume the Square Footage will be 125,800. If
and when the Square Footage changes from 125,800, the foregoing sums and the sum
described in paragraph H, below, will automatically be adjusted proportionately.
G. The term "Rent Start Date" means the earliest of (a) the 60th day
after each party has signed and delivered to the other party or its agent, a
copy of the Lease, (b) the day on which Tenant first stores any inventory (other
than materials and equipment to be used to construct the Alterations, as defined
hereinafter) in the Premises, (c) the day on which any of Tenant's employees or
agents first use any of the Premises as office space, or (d) October 1, 1995.
H. On signing this Lease, Tenant will deposit $36,696 with Landlord. This
money is in addition to the Security Deposit required elsewhere in this Lease
and the prepayment of Additional Rent likewise required elsewhere in this Lease.
Landlord will apply this sum to the payment of Base Rent due on the Rent Start
Date, and will apply the balance, if any, as a credit against the Base Rent
first due under paragraph B.
7. Additional Rent.
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A. On the first day of each successive month during each calendar year or
partial calendar year of the Term, Tenant will pay, as Additional Rent, 1/12th
of Tenant's Proportionate Share of the total amount, as estimated by Landlord,
of Operating Expenses and Real Estate Taxes. Landlord will use its best efforts
to give Tenant written notice of this estimated amount for the upcoming year by
December 15 or as soon thereafter as is practical. On 30 days written notice,
Landlord may revise the estimate and adjust the Additional Rent payable by
Tenant accordingly.
B. Special Provisions for Calendar Year 1995. Landlord estimates Operating
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Expenses and Real Estate Taxes for 1995 (determined by annualizing the Operating
Expenses and Real Estate Taxes allocable to the remainder of 1995 following the
Commencement Date) at $1.60 per square foot. On signing this Lease, Tenant will
deposit $16,773.33 (i.e., 125,800 x $1.60/12) with Landlord. Landlord will apply
this sum to the payment of
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Additional Rent accruing from the Rent Start Date through the last day of the
month in which the Rent Start Date occurs, and will apply the balance, if any,
as a credit against the Additional Rent due under the next sentence. On the
first day of the following month and each successive month thereafter through
December 1995, Tenant will pay, as Additional Rent, the sum equal to the Square
Footage multiplied by $1.60/12. With respect to the period from the Commencement
Date to the day prior to the Rent Start Date, Tenant will be liable for
utilities used by Tenant or its agents and the management fee, but will not be
liable for the other components of Operating Expenses and Real Estate Taxes.
C. After the end of each calendar year, Landlord will determine the actual
amount of Operating Expenses and Real Estate Taxes for that calendar year and
give Tenant a written certification of that amount. Any overpayment or
underpayment will be due from Landlord or Tenant, as the case may be, within
thirty (30) days after Tenant receives the certification. This will be true even
if the Term has ended, it being the parties' express intent that the obligation
of the previous sentence survive termination or expiration of the Term.
D. "Real Estate Taxes" for any given calendar year means all real estate
taxes and all installments of special assessments levied against the Parcel and
first due and payable in that year.
E. "Operating Expenses" means generally all expenses incurred by Landlord
in the operation of the Building and the maintenance and repair of the Parcel
grounds of a type normally incurred in the operation of similar buildings
(excepting only those costs declared by Article 11 to be Landlord's sole
responsibility and not subject to reimbursement, and Landlord's debt service on
any loan incurred to finance the Property). This term includes a management fee
equal to 4.0 per cent of the all rent, Base and Additional, payable by Tenant.
F. Notwithstanding anything herein to the contrary, if the Xxxxxx County
assessor increases the estimated market value of the Building because of
improvements made to the Premises by Tenant or at Tenant's request, Landlord
shall have the right to allocate Real Estate Taxes into three categories--(1)
those resulting from these improvements, (2) those resulting from the
improvements made to the Building by or at the request of other tenants, and
(3) the remainder, i.e., Real Estate Taxes not resulting from improvements
described in the previous two categories--and to require Tenant to pay, as
Additional Rent, 100% of category (1) and the Tenant's Proportionate Share of
category (3) rather than the Tenant's Proportionate Share of Real Estate Taxes.
The amount so allocated to category one and category two will be the portion of
the overall estimated market value for property tax purposes which is
attributable to the improvements within each category, according to the Xxxxxx
County assessor; provided, however, that if the assessor fails to inform
Landlord, on request, of the portion of EMV attributable to the
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categories, then Landlord will allocate Real Estate Taxes to each of the various
improvements within categories one and two, in accordance with the following
formula, A x B/C, where A is the principal amount of the cost of the
improvement, as shown on the building permit(s) obtained to construct the
improvement, B is the per square foot estimated market value (for purposes of
determining property taxes for the calendar year at issue) for the "land only"
within the Parcel, and C is the per square foot estimated market value for the
land only within the Parcel as of January 2 of the year following the year in
which the improvement was completed.
G. Notwithstanding anything herein to the contrary, Landlord shall have
the right to allocate to Tenant 100% rather than Tenant's Proportionate Share of
any particular expense, otherwise qualifying as an Operating Expense, which
benefits Tenant but no other tenant of the Building or which arises solely
because of Tenant's activities or defaults, and may similarly allocate 100% of
the portion of any general expense arising from activities by Tenant creating
such expense disproportionately).
H. The term "Tenant's Proportionate Share" means the Square Footage
divided by the square footage within the Building (excluding, unless, until, and
then to the extent actually leased, the penthouse and spur track area), measured
in the same way as this Lease calls for the Square Footage to be measured,
without deduction for stairwells, columns, and other unusable space within a
leased area.
I. Tenant shall have the right to review and audit, at its own expense,
Landlord's records concerning Operating Expenses.
8. Permitted Uses; Certain Restrictions. Tenant may use the Premises only
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for office purposes, one or more laboratories, and general warehouse purposes,
and uses incidental thereto. Without limitation, manufacturing, without
Landlord's prior written consent, not to be unreasonably withheld, is
prohibited. Notwithstanding anything herein to the contrary, Tenant will comply
with all local, state, and federal laws regulating the use of the Building; will
not conduct unlawful activities in the Premises; will not do anything to create
any unusual nuisance, noise, odor, or otherwise interfere with or disturb any
other tenant of the Building in its normal business operations or Landlord in
its management of the Building; and will not bring onto the Parcel, without
Landlord's prior written consent, any Hazardous Substance (as defined below)
other than gasoline or fuel oil or a substance deemed a Hazardous Substance only
when present in quantities greater than the quantity maintained by Tenant on the
Parcel.
9. Environmental Indemnity. Tenant shall defend, indemnify, and hold
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Landlord harmless from and against any and all actions, claims, proceedings,
causes of action, damages, losses, and expenses (including, without limitation,
attorneys' fees and
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environmental engineering fees), arising from any use, handling, or release of a
Hazardous Substance by Tenant (or anyone for whom it is legally liable) on the
Parcel or in connection with Tenant's use of the Premises. Landlord represents
that, to the best of its actual knowledge, no leak, spill, release, discharge,
emission, treating, generating, or disposal of any Hazardous Substance has
occurred on the Parcel as of July 25, 1995, that no Hazardous Substance is being
stored on the Parcel as of that date, and that the soil, groundwater, and soil
vapor on or under the Parcel is free of any Hazardous Substance as of that date.
Landlord will defend, indemnify, and hold Tenant harmless from and against any
and all actions, claims, proceedings, causes of action, damages, losses, and
expenses (including, without limitation, attorneys' fees and environmental
engineering fees), arising from any breach of this representation. "Hazardous
Substance" means any pollutant or other toxic or hazardous waste, or other
substance regulated by any applicable law relating to environmental matters and
any materials containing friable asbestos, urea formaldehyde or polychlorinated
biphenyls. No waiver of Liability provision set forth in the Article of this
Lease addressing insurance shall apply to this indemnity. This Indemnity shall
survive expiration or termination of the Lease.
10. Parking Regulations. "Common Area" means the portion, if any, of the
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Parcel designated by Landlord for the use of all tenants of the Building. At
present, the only "Common Area" is the parking lots and Landlord does not
contemplate making any portion of the Building into a Common Area.
Tenant will comply with such reasonable rules and regulations as Landlord
may prescribe, on written notice to Tenant, for the safety, care, cleanliness,
or orderly management of the Building (including, without limitation, rules
designed to preclude trespassers from entering the Building) or the Common Area.
No more than 125 parking spaces are to be occupied at any one time by Tenant and
its agents, employees, and other invitees; provided, however, that if, when, and
so long as the Premises contains more than 25,000 square feet of office space,
the number of spaces available for the use of Tenant and its invitees will be
125 plus the number of parking stalls required, per city ordinance, for the
office space in excess of 25,000 (it being understood, however, that Landlord
may require Tenant to pay for the construction of additional parking stalls
within the Parcel in accordance with Article 12). Overnight storage of vehicles
and the storage at any time of any other property in the parking lots is
prohibited.
Landlord may regulate parking and allocate parking spaces within the Parcel
to Tenant and/or to the Building's other lessees, if the need arises. Landlord
has the right, in the event of such an allocation, to designate specific space
numbers for Tenant's exclusive use and Tenant shall use those spaces only;
provided, however, that Landlord shall, in making such a designation, consult
with Tenant and use its best efforts to
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designate spaces in locations acceptable to Tenant. Notwithstanding anything
herein to the contrary, however, Landlord will always allocate to Tenant no less
than 125 parking stalls in the parking lots existing on the Parcel as of the
Commencement Date.
11. Maintenance and Repairs. Tenant will keep the Premises continuously in
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a neat, clean, and sanitary condition, and in as good condition as when turned
over to it, reasonable wear and tear excepted. This maintenance and repair
obligation extends to all interior walls, doors, windows, plumbing, and
electrical fixtures within the Premises, except as these obligations may be
covered by manufacturer or contractor warranties, and includes the obligation to
replace any objects serving the Premises exclusively when replacement, as
opposed to repair, becomes appropriate.
Excepting matters that are Tenant's obligation under this Article, Landlord
will maintain and manage the Building and the Parcel by providing such services
as is customary for like buildings in this area. Except as provided elsewhere in
this Lease concerning damage caused by Tenant not subject to a waiver of claims,
Landlord shall, at its sole expense, maintain, repair, and replace the
Building's roof and load bearing walls, floors, and columns.
Notwithstanding anything herein to the contrary, Landlord shall have the
right to perform, as a reimbursable Operative Expense, all other maintenance and
repairs, otherwise Tenant's obligation under this Article, if of a nature as to
affect other tenants in the Building. E.g., repairs to a part of the HVAC system
affecting more than one Tenant.
If Tenant fails to maintain or repair the Premises as required in this
Lease after written notice shall have been given Tenant, and after Tenant has
had a reasonable time to make the repairs, Landlord may make such repairs, at
Tenant's expense, without liability to Tenant for any ensuing loss or damage.
12. Alterations. Subject to the conditions set forth in this Article,
Tenant has the right to remodel the Premises, at its own expense, so as to make
it more suitable for Tenant's needs as office, warehouse, and laboratory space.
The term "Alterations" means the changes to the Premises resulting from this
remodeling. Tenant must carry out all such Alterations in a good, workmanlike
manner and in accordance with all applicable building codes and the American
Disabilities Act. Tenant must provide Landlord with copies of all plans and
specifications for Alterations costing more than $5,000, in final, as-built form
or as close to final, as-built form as Tenant possesses. Tenant must provide
Landlord with copies of all construction contracts, warranties, and guaranties
related to the Alterations. Tenant may not alter the walls, floor, roof, or
structural columns without Landlord's prior written consent, not to be
unreasonably
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withheld. Tenant will not permit any mechanic's, materialmen's, or other liens
to arise as a result of any Tenant alteration, will immediately notify Landlord
of any such lien and shall cause the lien to be discharged within 10 days of its
filing or make other arrangements, satisfactory to Landlord, to protect
Landlord's interest from the lien.
Additional condition: If Tenant carries out any Alteration that increases
the Premises' office space, as classified for purposes of laws regulating the
number of parking stalls that must be available for Tenant's use, beyond 25,000
square feet, Tenant will be obligated to pay Landlord an amount, as reasonably
estimated by Landlord, sufficient (at the time the new stalls are to be
constructed) to pay for the creation of new striped and blacktopped parking
stalls (with curbs and gutters, together with any other feature required by city
ordinance) on the Parcel equal in number to the number of stalls required by
city ordinance for office space in the amount being added. For example, if
Tenant adds 10,000 square feet of office, and city ordinance specifies 4 stalls
per 1,000 square feet of office-finished space, Tenant is obligated to pay for
the creation of 40 new stalls. Notwithstanding the foregoing, however, (a)
Tenant need not pay this amount unless and until Landlord is ready to start
construction on the new stalls, (b) Tenant need not pay this amount unless and
until the number of stalls, as existing on the Parcel as of July 1, 1995, is
less than either (i) the number city ordinance requires Landlord to make
available to the persons or entities then actually leasing portions of the
Building, given their respective uses, or (ii) the number that Landlord has
agreed to make available to the persons or entities then actually leasing
portions of the Building (even if that number is higher than that required by
city ordinance, it being understood that Landlord shall have the right at all
times to commit to other tenants any and all parking stalls existing on the
Parcel as of July 1, 1995, other than the 125 stalls which Landlord will make
available to Tenant, and any and all new stalls constructed by Landlord
thereafter without payment or reimbursement by Tenant under this Article), and
(c) Tenant need not pay for any stalls first constructed after termination or
expiration of the Lease. Landlord will use its best efforts to cooperate with
Tenant to ensure that the additional, new stalls are completed in a timely
manner and by the time Tenant will need additional stalls because of the new
office space. Upon completion of the new stalls, Landlord will increase the
number of stalls available to Tenant by the number of new stalls and will use
its best efforts to satisfy any reasonable requests of Tenant as to the
additional stalls to be assigned to Tenant. For example, if Tenant starts with
125 stalls and Landlord builds 40 new stalls, at Tenant's expense per this
provision, Tenant will be entitled to use 165 parking stalls. Landlord need not,
however, assign to Tenant the particular new stalls constructed at Tenant's
expense, i.e., Landlord may assign to Tenant other, existing stalls, hitherto
unavailable for Tenant's use.
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Any Alteration meeting the legal definition of a fixture shall become
Landlord's property immediately. Notwithstanding the foregoing, (a) Tenant shall
maintain all such Alterations in good repair and condition during the Term and
(b) Landlord may require Tenant to remove, at Tenant's expense, at the
expiration or termination of the Term, any Alteration whereby Tenant converted
warehouse space to office space so as to increase the office space in the
Premises beyond 25,000 square feet, to repair any damage to the Building or
Premises caused by the installation or removal of any such Alteration, and to
restore the Premises to its condition as of the Commencement Date, normal wear
and tear excepted. If a particular Alteration increases the office square
footage from less than 25,000 square feet to more than that amount, Landlord may
require Tenant to remove the Alteration only as to an amount of square footage
equal to the number of office square footage minus 25,000, and shall have the
right to reasonably specify the particular square footage to be restored
(provided, however, that the square footage thus specified for restoration shall
in no event include the approximately 12,500 square feet of space finished as
office space as of the Commencement Date. Landlord will not require Tenant to
remove any Alterations to warehouse space which do not alter its character as
warehouse space.
13. Signs. Tenant may erect and maintain signs on the Parcel grounds, but
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only with Landlord's prior written consent, not to be withheld unreasonably, as
to all particulars about any such sign, including, without limitation, number,
placement, size, color, and material. Tenant shall be responsible for ensuring
that all such signs comply with zoning and all other applicable laws. Tenant
will pay all costs incurred in erecting, maintaining, and removing any such sign
upon termination or expiration of the Term.
14. Utilities. Tenant will pay for all water, gas, heat, light, power,
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telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. Tenant will pay such charges for any utility metered so
as to measure use by Tenant and no other tenant of the Building directly to the
utility provider. Landlord will xxxx any utilities not so metered to Tenant as
an Operating Expense. Tenant shall have no right to require Landlord to install
any utility meters at Landlord's expense. Tenant shall have the right to have
separate utility meters installed at Tenant's own expense.
15. Insurance.
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A. Landlord shall at all times during the term of this Lease insure the
Building for full replacement value against loss or damage by fire, explosion,
or other insurable hazards commonly covered by an "all-risk" or "extended
coverage" policy (including one years' worth of rent interruption coverage),
provided that Landlord shall not be obligated to insure against loss or damage
to any trade fixtures or personal property belonging to or leased
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by Tenant or against any loss or damage arising from Tenant's use of any
Hazardous Substance. At Landlord's option, Landlord shall not be required to
insure against loss or damage to any Alteration that Tenant has the right to
remove upon expiration or termination of this Lease or that Tenant must
remove, if Landlord so requests, upon the same. Tenant shall not be responsible
for payment of any deductible or co-insurance portions of Landlord's fire and
extended coverage insurance. Landlord shall also at all times during the term
of the Lease maintain public liability insurance in the amounts specified in
paragraph 15D in the case of insurance required of Tenant. Landlord will cause
Tenant to be named as an additional insured in the policies maintained by
Landlord, and Tenant will do the same for Landlord in the policies maintained by
Tenant.
B. Each insurance policy required by this Lease will provide that the
insured party has relinquished all rights to recover against the other party to
the Lease for loss or damage resulting from perils insured against by the
policy. Each party waives any claim against the other based on loss or damage
which is covered by insurance or coverable under the insurance policies required
by this Lease, whether those policies are maintained or not. Landlord and Tenant
will promptly notify their respective insurance carriers of this waiver of
claims and subrogation rights.
C. In the event that the use of the Premises by Tenant increases the
premium rate for insurance carried by Landlord on the Property or any Building
included within the Premises, Tenant shall pay Landlord, upon demand, the amount
of such premium increase. If Tenant installs or uses any electrical equipment
that overloads the power lines to the Building or its wiring, Tenant shall, at
its own expense, make whatever changes are necessary to comply with the
requirements of the insurance underwriter, insurance rating bureau, and
governmental authorities having jurisdiction.
D. Tenant shall keep in full force and effect, at its expense, a policy or
policies of public liability insurance with respect to the Premises and the
business of Tenant, under limits of liability not less than: $2,000,000 combined
coverage for injury or death to any one person; $2,000,000 for injury or death
to more than one person; and $100,000 with respect to damage to property. Such
policy or policies shall provide that ten (10) days written notice must be
given to Landlord prior to cancellation thereof. Tenant shall furnish evidence
satisfactory to Landlord at the time this Lease is executed and thereafter, on
request, that such coverage is in full force and effect. Tenant's providing
insurance as prescribed herein does not release Tenant from liability to
Landlord under applicable law, or otherwise limit that liability, except as to
those claims expressly deemed waived under other provisions of this Lease.
Tenant will indemnify, defend, and hold Landlord harmless from and against any
and all claims of personal injury or property
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damage asserted by Tenant's employees, agents, or any other person, or any other
business entity, arising from Tenant's operations on the Premises.
16. Non-Liability. Unless caused by Landlord's gross negligence or willful
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misconduct, under no circumstances will Landlord be liable to Tenant or persons
claiming through Tenant for: any loss or damage to any property of Tenant or of
others by theft or destruction; any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water,
rain or snow or leaks from any part of the Premises or from the pipes,
appliances, or plumbing works or from the roof, street or subsurface or from any
other place or by dampness or by any other cause of whatsoever nature. Under no
circumstances will Landlord be liable to Tenant or persons claiming through
Tenant for any such damage caused by any other tenant, other occupant, or
invitee of the Property, or the public, or caused by operations in construction
of any private, public or quasi-public work, or caused by the absence or
interruption of utilities; any loss or damage resulting from acts of God or any
cause beyond Landlord's reasonable control; any loss or damage caused by
Landlord's failure to make the Premises available for occupancy by any
particular date; or any consequential damages no matter what the cause.
17. Eminent Domain.
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A. If the entirety of the Building and Common Area is condemned (this term
includes sales in lieu of condemnation and quick takes), then the Lease will
terminate as of the date possession shall be taken by the condemning authority
and rent shall be paid to the date of such termination. If otherwise, the Lease
will remain in effect but with an equitable abatement of the Base Rent and
Additional Rent based on the portion of the Premises rendered unsuitable and the
extent of that unsuitability.
Absent termination, Landlord has the option of reducing or eliminating such
unsuitability resulting from a condemnation by restoring or remodeling the
Premises or by making available substitute areas of the Building which are
acceptable to Tenant.
B. Landlord is entitled to all condemnation proceeds, no matter what the
bases, provided, however, that Tenant shall have the right to claim and recover
from the condemning authority, but not from Landlord, such compensation as may
be separately awarded or recoverable by Tenant in Tenant's own right on account
of any relocation costs of any resulting damage to Tenant's business.
18. Damage or Destruction.
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A. Landlord has the option of terminating this Lease at any time if the
Building or Premises, as the case may be, are damaged by fire or any other cause
to such extent that the restoration
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cost, as reasonably estimated by Landlord, will equal or exceed thirty percent
(30%) of the replacement value of the Building or Premises, as the case may be,
exclusive of foundation, just prior to the occurrence of the damage. The option
is exercisable only by the giving of written notice within 90 days of the damage
and the termination is effective 30 days after the giving of the notice.
B. Except where the aforementioned option is exercised, Landlord will
promptly restore the Building or Premises, if damaged, subject to delays beyond
Landlord's control and delays in the making of insurance adjustments by
Landlord; and Tenant shall have no right to terminate this Lease as to any part
of the Premises.
C. While the Lease is in effect with respect to any portion of the Premises
that has been damaged by fire or other causes so as to be substantially
unsuitable for Tenant's purposes, then Base Rent and Additional Rent shall be
abated equitably effective as of the date of such damage, except that, if Tenant
caused the damage, Tenant will receive no rent abatement if Landlord's insurance
rent-interruption coverage bars Landlord from offering such an abatement.
19. Termination of Lease. Upon termination or expiration of this Lease,
_____________________
Tenant agrees to do the following on or before the expiration or termination
date: (a) remove all signs, personal property, and trade fixtures belonging to
or leased by Tenant; (b) perform Tenant's obligations under the last sentence of
Article 12; (c) promptly surrender all keys to Landlord at the place then fixed
for payment of rent and inform Landlord of the combinations of any locks and
safes that will remain behind; and (d) surrender possession of the Premises or
subparts being vacated, broom-clean and in as good condition and repair as the
same were in at the commencement of this Lease except for (i) reasonable wear
and tear, (ii) Alterations which Tenant is not obligated to remove under the
last sentence of Article 12, and (iii) damage or destruction caused by perils
customarily covered under fire and extended coverage insurance, acts of God, or
by any other cause beyond the reasonable control of Tenant.
Tenant agrees that Landlord shall have the option, with respect to all or
any part of any personal property left behind in violation of this Article, to
store it at Tenant's expense or declare it and treat it as having been abandoned
by Tenant.
20. Holding Over. Any holding over without Landlord's written consent after
_____________
termination or expiration of the Lease is a breach of the Lease entitling
Landlord to institute legal actions to dispossess Tenant and to xxx Tenant for
any damages resulting from the holding over. Any holding over with Landlord's
consent will be considered a month-to-month extension of the Lease, with rent
payable as provided in the next sentence. In all cases, except insofar as
Landlord may hereafter agree in writing, so
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long as Tenant remains in possession after the termination of the Lease, Tenant
agrees to pay Base Rent at one and one-half the rate in effect immediately prior
to the termination or expiration of the Lease and to otherwise abide by all the
other terms and obligations imposed on Tenant under the Lease.
21. Default of Tenant.
__________________
A. It is a Default for Tenant to: (a) not pay any Base or Additional Rent
or other sum when due under the Lease (provided, however, that Tenant shall not
be deemed in default until it fails to cure any such delinquency within 3 days
after receiving Landlord's written notice of the delinquency); (b) not cure any
Lease violation not described by the other clauses of this paragraph within 10
days after Landlord gives notice of the violation (provided Landlord will extend
this period so long as cure is possible and Tenant has begun and is diligently
pursuing a cure); (c) knowingly violate the Lease on 3 separate occasions during
any 12 month period; (d) knowingly misrepresent any material fact in any writing
provided to Landlord or pursuant to this Lease; and (f) become insolvent or the
subject of a bankruptcy petition or an assignment for the benefit of creditors.
B. A Default entitles Landlord to exercise all remedies available under
law, including the right to re-enter, at its option, the Premises and remove all
persons and property from the Premises. Without limitation, Landlord may, at its
option, instead of exercising any other rights or remedies available to it under
this Lease or otherwise, enter the Premises (if necessary) and perform such acts
or spend such sums of money as may be reasonably necessary to cure any Default
by Tenant, and the cost incurred, including reasonable attorney's fees, in
curing the Default shall be paid by Tenant, as additional rent, within 10 days
after receipt of Landlord's invoice.
C. Should Landlord elect to re-enter the Premises, as herein provided, or
should it take possession of the Premises pursuant to legal proceedings or
pursuant to any notice provided for by law, it may either terminate this Lease
or it may from time to time, without terminating this Lease, make such
alterations and repairs as may be necessary in order to relet the Premises, and
relet the Premises or any part thereof for such term or terms (which may be for
a term extending beyond the term of this Lease) and at such rental or rentals
and upon such other terms and conditions as Landlord in its sole discretion may
deem advisable. Upon each such reletting all rentals received by the Landlord
from such reletting shall be applied first to the payment of any indebtedness
other than rent due hereunder from Tenant to Landlord; second, to the payment of
any costs and expenses of such reletting, including brokerage fees and
attorney's fees and of costs of such alterations and repairs; third, to all rent
accrued and due hereunder from Tenant; and fourth, to a fund to be held by
Landlord and applied in payment
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of future rent as the same may become due and payable from Tenant hereunder. Any
surplus remaining upon termination of this Lease shall belong to Landlord. If
such rentals received from such reletting during any month be less than that to
be paid during that month by Tenant hereunder, Tenant, upon demand, shall pay
any such deficiency to Landlord. No such re-entry or taking possession of the
Premises by Landlord, or reletting, or any other act or omission, shall be
construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Tenant. Notwithstanding any such reletting
without termination, Landlord may at any time after such re-entry elect to
terminate this Lease for such previous breach.
D. In addition to its other remedies available because of Tenant's
Default, Landlord may elect, by giving written notice, to accelerate unaccrued
Base and Additional Rent and hold Tenant immediately liable for the present
value (using a 6% per annum time-value of money component) of the sum of all
Base and Additional Rent payable during the remainder of the Term. For purposes
of this provision, accelerated Additional Rent shall be deemed fixed for each
month of the remainder of the Term in the same estimated amount as had been due
monthly at the time Landlord gives notice of the acceleration. If Landlord
exercises its rights under this paragraph D., Landlord will not thereafter
terminate the Lease but rather will credit against Tenant's obligation under
this paragraph any rentals, net of the expenses of reletting, it collects from
re-letting the Premises with respect to the remainder of the Term; provided,
however, that Landlord may terminate the Lease after accelerating the rent if it
also waives any right to claim rent on an accelerated basis and limits its
remedies to those available under the other paragraphs of this Article.
Notwithstanding anything in this Article to the contrary, Landlord waives any
legal right to dispossess Tenant by reason of a Default under clauses (a) or (b)
of paragraph A., above, if Tenant cures the Default prior to the issuance of an
order for a writ of restitution or similar order by a court of competent
jurisdiction.
E. Should Landlord at any time terminate this Lease for any such Default,
in addition to any other remedies it may have, it may recover from Tenant all
damages it may incur by reason of such breach, including the worth at the time
of such termination of the excess, if any, of the amount of rent and changes
equivalent to rent (discounted to present value using a 6% value of money
discount factor) reserved in this Lease for the remainder of the stated term
over the then reasonable rental value of the Premises for the remainder of the
stated term, all of which amounts shall be immediately due and payable from
Tenant to Landlord.
F. All expenses, including, without limitation, attorneys' fees, broker's
fees, and retro-fit expense, incurred by Landlord by reason of Tenant's breach,
whether or not the breach results in the commencement of legal proceedings or
involves termination
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of the Lease, shall be chargeable to Tenant as Additional Rent and payable
within 30 days after Landlord invoices Tenant therefor.
G. No remedy of Landlord's shall be deemed exclusive except insofar as it
may be such by operation of law. To the extent the law allows, Landlord's
remedies shall be cumulative and exercisable from time to time and as often as
Landlord desires.
22. Rent Due Absolutely. Tenant's obligations to pay Base and Additional
____________________
Rent are independent of any other provision of this Lease and such Rent shall
be due irrespective of any claim of setoff. All Rent due under this Lease from
Tenant to Landlord shall be due at the times specified herein, provided,
however, that if Additional Rent payable hereunder is increased, the amount of
the increase shall be due on the 30th day following receipt of mailed notice of
the increase or when the increase would otherwise be payable, whichever is
later. Any monies due under this Lease other than Rent shall be due on the 30th
day following receipt of a written invoice for the same. All such Rent or other
monies, unless otherwise specified, if not paid when due, shall bear interest at
the rate of 18% per annum or the maximum rate permitted by law, whichever is
less. Any monies, Rent or otherwise, not paid within 10 days of when first due
shall be subject to a $50.00 late fee to cover Landlord's costs of monitoring
the delinquency.
23. Right of Entry. Landlord and Landlord's agents and employees have the
_______________
right to enter the Premises at all reasonable times with reasonable prior notice
to show premises to parties wishing to purchase, lease, or lend against the
Building; to make repairs, alterations, and improvements; to inspect the
Premises to assess Tenant's compliance with the Lease; to post notices of
non-responsibility under Minnesota law with respect to any work on the Premises
subject to the Minnesota mechanic's lien statute; and for any other reasonable
purpose. Notwithstanding the foregoing, Landlord may enter the Premises at any
time in cases of emergency. Any entry for the purpose of showing the Premises to
prospective tenants shall be confined to the last six months of the Term.
24. Assignment and Subletting. Tenant may assign, sublet, or otherwise
__________________________
transfer any of its rights under this Lease only with Landlord's prior written
consent, which consent will not be unreasonably withheld, except that Tenant may
assign its rights, without Landlord's consent, to any entity in which Tenant or
any wholly owned subsidiary owns more than 50% of the outstanding ownership
interests. Once Landlord receives Tenant's written notice, requesting such
consent in the case of a bona fide prospective transferee, Landlord shall have
30 days to notify Tenant in writing of Landlord's refusal to give consent and
the reasons for that refusal; Landlord's failure to give such notice within
those 30 days shall be deemed Landlord's consent to the proposed transfer.
Tenant agrees that it shall be deemed
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reasonable for Landlord to refuse to consent to any transfer to a tenant whose
net worth or creditworthiness does not satisfy Landlord's standards for leasing
to new tenants of the Building, or to refuse consent so long as Tenant is in
default or delinquent in respect to any obligation under this Lease. Tenant
further agrees that there may be other reasons why consent should be denied in
given instances. Absent an express release signed by Landlord, no assignment,
subleasing, or transfer, even if made with Landlord's consent, shall be
construed to relieve Tenant from any of its accrued or unaccrued obligations
under the Lease. Landlord's right to assign the Lease is unqualified, it being
understood, however, that Landlord's right to assign the Lease is not a right to
terminate it at will.
25. Subordination, Attornment, Novation. Tenant agrees to subordinate this
____________________________________
Lease to any mortgage now or hereafter placed of record, to attorn to any
successor in interest of Landlord (including the mortgagee under any such
mortgage upon foreclosure or a transfer in lieu of foreclosure of any such
mortgage), and to consent to a novation in the event Landlord conveys the Parcel
to a third party, provided, however, that the mortgagee, successor, or third
party agrees that, upon obtaining or succeeding to Landlord's interest, it will
keep this Lease in effect and abide by its terms until such time as it may be
terminated in accordance with its provisions. Tenant shall, within ten (10)
business days after receiving Landlord's request, execute and deliver to
Landlord an "estoppel certificate," in reasonable form, certifying that this
Lease is in full force and effect, and that there are no offsets against rent
nor defenses to Tenant's performance under this Lease, or setting forth any such
offsets or defenses claimed by Tenant, as the case may be, and certifying such
other information as may be reasonably requested.
26. Notices. Any notice required or permitted under this Lease shall be
________
deemed sufficiently given if sent by registered or certified return receipt
mail, postage prepaid, to Tenant at FSI International, Inc., 000 Xxxx Xxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxx 00000-0000, and to Landlord at Skyline Builders, Inc.,
0000 XxXxxxxx Xx. X.X., Xxxxxxxxxxx 00000, attn: Xxxxxx Xxxxxxx. Either party
may by like written notice at any time designate a different address to which
notices shall subsequently be sent or rent be paid. Notices so mailed will be
deemed given as of the postmarked receipt date. Notices sent by any other means
will be deemed given only upon actual receipt. Rent will be paid to Landlord at
the address then applicable for notices and will be deemed tendered at the time
of actual receipt unless directed to Landlord as provided above for mailed
notices, in which case the postmarked receipt date will be deemed the date of
such tender.
27. Representations. Tenant acknowledges that, except as expressly set
________________
forth in this Lease, Landlord has made no representations, promises, or
warranties regarding the Premises, Building, Parcel, or this Lease.
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28. Security Deposit. Upon signing this Lease, Tenant will deposit
_________________
$36,696 with Landlord as a Security Deposit. In the event Landlord resorts to
the Security Deposit, Tenant will replenish it on demand. The principal amount
of the Security Deposit shall bear interest, payable at the time this Lease
expires or terminates and Landlord will then be obligated to return the unused
portion of the Security Deposit, together with interest accruing at the rate of
4% per annum on the principal balance from time to time. The Security Deposit
may be commingled with Landlord's other funds. The Security Deposit will remain
constant, at this amount, throughout the Initial Term and Renewal.
29. Non-Waiver. Acceptance of Rent following a Default by Tenant, known
___________
or unknown to Landlord, monetary or non-monetary, shall in all cases be deemed a
matter of mitigating damages and not a waiver of such Default. Forbearance for
any length of time shall not be deemed a waiver by Landlord. Landlord's rights
can be waived only by a written express waiver. No other act, statement, or
omission of any kind by Landlord shall be deemed to be a waiver of Landlord's
rights.
30. Savings Clause. Whenever this Lease grants a party a right to do
_______________
something, that party has the option but not the obligation to exercise that
right. The unenforceability of any provision in this Lease shall not render the
Lease unenforceable as a whole. Any indemnity provisions (which term includes
defense and hold harmless agreements) and any provisions addressing the parties'
obligations upon expiration or termination of the Term shall survive the
expiration or termination of the Term.
31. Subdivision. Landlord may subdivide the Parcel at any time. If
____________
Landlord subdivides the Parcel, then from and after the effective date of the
subdivision, the term "Parcel" shall automatically mean just the legal parcel or
those legal parcels, created by the subdivision, containing the Building and any
parking lot used by Tenant or available for use by any other tenant of the
Building.
32. Brokerage Commission. Xxxxx Real Estate Company has represented
_____________________
Tenant in connection with this Lease. Landlord will pay a brokerage commission
to Xxxxx Real Estate Company, on the Commencement Date if this Lease has not
been cancelled pursuant to Article 2, equal to one-half the commission
calculated based on the standard 7-6-5-4-3 percent formula. Tenant will
indemnify Landlord against any claim by Xxxxx Real Estate Company in excess of
the obligation assumed by Landlord in the previous sentence.
33. Miscellaneous. This Lease contains all agreements of the parties
______________
pertaining to the Premises or the leasehold contemplated herein. Each party
shall be deemed to have drafted
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this Lease ad the Lease shall not be construed against one party or the other
on the premise that one or the other is responsible or more responsible for
the drafting.
34. Successors and Assigns. This Lease shall apply to, inure to the
_______________________
benefit of, and be binding upon the Landlord and Tenant and upon their
respective successors in interest and assigns.
35. Rider. This Lease is subject to a single rider, attached hereto and
______
incorporated by reference into this Lease.
IN TESTIMONY WHEREOF, the parties hereto have signed this Lease the day and
year first written below.
LANDLORD: TENANT:
SKYLINE BUILDERS, INC. FSI INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxx By: /s/ X.X. Xxxxxxx
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Its: President Its: Vice President, Operations
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Dated: 8/9/95 Dated: 8/9/95
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