AGREEMENT FOR THE
FIRST AMENDMENT TO A LEASE
On this 27th day of October, 1995, it is hereby agreed by and between
HILLCREST DEVELOPMENT, a Minnesota limited partnership, as Lessor, and
R & D SYSTEMS, INC., a Minnesota corporation, as Tenant, that the Lease
Agreement dated July 24, 1992, and letters of Agreement dated April 27, 1993,
June 22, 1993, January 17, 1995, February 17, 1995, June 15, 1995, August 18,
1995 and September 11, 1995, shall be amended as follows:
1. Section 1.A. "Premises" shall be replaced with the following:
1.A. LEASED PREMISES: Lessor leases to Tenant and Tenant rents from
Lessor approximately 318,029 (356,682 square feet on or before July 1,
1999) square feet of rentable space in the 000 XxXxxxxx Xxxxx Xxxxxxxx,
the 000 XxXxxxxx Xxxxx Xxxxxxxx, the 2201 Xxxxxxx Building, and the new
construction "in-fills" (in the aggregate hereafter called the Leased
Premises or the Premises), located at 614-640 XxXxxxxx, and 0000 Xxxxxxx
Xxxxxxx XX, Xxxxxxxxxxx, Xxxxxxxxx 00000 (see exhibit A) (the foregoing
buildings in the aggregate are hereafter called the "Building").
2. Section 1.B. "Term" shall be amended as follows:
1.B. TERM: The Lease Term shall be extended from July 1, 1995,
through December 31, 2011.
3. Section 1.C. and 1.D. shall be replaced with the following:
1.C. and 1.D.: RENTABLE AREA AND NET RENT: The rentable areas
leased by Tenant from Lessor are as follows:
Square ft Location "like kind", "like use"
--------- -------- -----------------------
84,808 000 XxXxxxxx Xxxxx Lab, office
47,360 000 XxXxxxxx Xxxxx Shipping, packaging (1st
Floor only)
79,509 2201 Xxxxxxx Lower Level Storage
17,965 0000 Xxxxxxx 0xx Xxxxx Xxxxx Shipping, packaging
46,240 0000 Xxxxxxx 0xx Xxxxx Xxxxx Xxx, office
22,267 0000 Xxxxxxx 0xx Xxxxx Xxxxx Office
11,308 South In-fill (new construction) Office
5,375 North In-fill (new construction) Shipping, packaging
3,197 North In-fill (new construction) Lab, office
38,653 0000 Xxxxxxx 0xx Xxxxx Xxxxx Xxx, office
NET rent shall be as follows:
614 XxXxxxxx (84,808 sq ft):
July 1, 1995 - December 31, 1995 $5.00 per square foot NET or
$35,336.67 per month NET.
January 1, 1996 - December 31, 1997 $5.35 per square foot NET or
$37,810.23 per month NET.
January 1, 1998 - December 31, 1999 $5.51 per square foot NET or
$38,941.01 per month NET.
January 1, 2000 - December 31, 2001 $5.68 per square foot NET or
$40,142.45 per month NET.
January 1, 2002 - December 31, 2003 $5.85 per square foot NET or
$41,343.90 per month NET.
January 1, 2004 - December 31, 2005 $6.03 per square foot NET or
$42,616.02 per month NET.
January 1, 2006 - December 31, 2007 $6.31 per square foot NET or
$44,594.87 per month NET.
January 1, 2008 - December 31, 2009 $6.82 per square foot NET or
$48,199.21 per month NET.
January 1, 2010 - December 31, 2011 $7.37 per square foot NET or
$52,086.25 per month NET.
640 XxXxxxxx (47,360 sq ft):
July 1, 1995 - December 31, 1995 $4.40 per square foot NET or
$17,365.33 per month NET.
January 1, 1996 - December 31, 1997 $4.50 per square foot NET or
$17,760.00 per month NET.
January 1, 1998 - December 31, 1999 $4.65 per square foot NET or
$18,352.00 per month NET.
January 1, 2000 - December 31, 2001 $4.80 per square foot NET or
$18,944.00 per month NET.
January 1, 2002 - December 31, 2003 $4.95 per square foot NET or
$19,536.00 per month NET.
January 1, 2004 - December 31, 2005 $5.10 per square foot NET or
$20,128.00 per month NET.
January 1, 2006 - December 31, 2007 $5.25 per square foot NET or
$20,720.00 per month NET.
January 1, 2008 - December 31, 2009 $5.68 per square foot NET or
$22,417.07 per month NET.
January 1, 2010 - December 31, 2011 $6.15 per square foot NET or
$24,272.00 per month NET.
2201 Xxxxxxx - Lower Level (79,509 sq ft):
March 1, 1996 - December 31, 1998 $2.60 per square foot NET or
$17,226.95 per month NET.
January 1, 1999 - December 31, 2001 $3.25 per square foot NET or
$21,533.69 per month NET.
January 1, 2002 - December 31, 2004 $3.90 per square foot NET or
$25,840.43 per month NET.
January 1, 2005 - December 31, 2007 $4.55 per square foot NET or
$30,147.16 per month NET.
January 1, 2008 - December 31, 2009 $5.20 per square foot NET or
$34,453.90 per month NET.
January 1, 2010 - December 31, 2011 $5.85 per square foot NET or
$38,760.64 per month NET.
2201 Xxxxxxx - 1st Floor North (17,965 sq ft):
March 1, 1996 - June 30, 1996 $8.24 per square foot NET or
$12,334.89 per month NET.
July 1, 1996 - June 30, 1997 $0.78 per square foot NET or
$1,164.09 per month NET.
July 1, 1997 - December 31, 1997 $4.34 per square foot NET or
$6,495.70 per month NET.
January 1, 1998 - June 30, 1998 $4.53 per square foot NET or
$6,787.63 per month NET.
July 1, 1998 - June 30, 1999 $7.38 per square foot NET or
$11,051.66 per month NET.
July 1, 1999 - December 31, 1999 $7.37 per square foot NET or
$11,032.29 per month NET.
January 1, 2000 - June 30, 2000 $7.56 per square foot NET or
$11,324.22 per month NET.
July 1, 2000 - June 30, 2001 $8.76 per square foot NET or
$13,115.70 per month NET.
July 1, 2001 - December 31, 2001 $6.24 per square foot NET or
$9,341.80 per month NET.
January 1, 2002 - December 31, 2003 $6.44 per square foot NET or
$9,641.22 per month NET.
January 1, 2004 - December 31, 2005 $6.63 per square foot NET or
$9,925.66 per month NET.
January 1, 2006 - December 31, 2007 $6.83 per square foot NET or
$10,225.08 per month NET.
January 1, 2008 - December 31, 2009 $7.38 per square foot NET or
$11,054.46 per month NET.
January 1, 2010 - December 31, 2011 $8.00 per square foot NET or
$11,976.67 per month NET.
2201 Xxxxxxx - 1st Floor South (46,240 sq ft):
March 1, 1996 - June 30, 1996 $9.34 per square foot NET or
$36,006.62 per month NET.
July 1, 1996 - June 30, 1997 $1.88 per square foot NET or
$7,254.18 per month NET.
July 1, 1997 - December 31, 1997 $5.44 per square foot NET or
$20,977.17 per month NET.
January 1, 1998 - June 30, 1998 $5.65 per square foot NET or
$21,778.67 per month NET.
July 1, 1998 - June 30, 1999 $8.50 per square foot NET or
$32,753.81 per month NET.
July 1, 1999 - December 31, 1999 $8.49 per square foot NET or
$32,703.96 per month NET.
January 1, 2000 - June 30, 2000 $8.71 per square foot NET or
$33,555.55 per month NET.
July 1, 2000 - June 30, 2001 $9.90 per square foot NET or
$38,166.62 per month NET.
July 1, 2001 - December 31, 2001 $7.38 per square foot NET or
$28,453.01 per month NET.
January 1, 2002 - December 31, 2003 $7.61 per square foot NET or
$29,323.87 per month NET.
January 1, 2004 - December 31, 2005 $7.84 per square foot NET or
$30,206.28 per month NET.
January 1, 2006 - December 31, 2007 $8.20 per square foot NET or
$31,608.89 per month NET.
January 1, 2008 - December 31, 2009 $8.87 per square foot NET or
$34,179.00 per month NET.
January 1, 2010 - December 31, 2011 $9.58 per square foot NET or
$36,918.79 per month NET.
0000 Xxxxxxx - 0xx Xxxxx Xxxxx (22,267 sq ft):
March 1, 1996 - June 30, 1996 $9.34 per square foot NET or
$17,339.09 per month NET.
July 1, 1996 - June 30, 1997 $1.88 per square foot NET or
$3,493.27 per month NET.
July 1, 1997 - December 31, 1997 $5.44 per square foot NET or
$10,101.62 per month NET.
January 1, 1998 - June 30, 1998 $5.65 per square foot NET or
$10,487.58 per month NET.
July 1, 1998 - June 30, 1999 $8.50 per square foot NET or
$15,772.69 per month NET.
July 1, 1999 - December 31, 1999 $8.49 per square foot NET or
$15,748.68 per month NET.
January 1, 2000 - June 30, 2000 $8.71 per square foot NET or
$16,158.77 per month NET.
July 1, 2000 - June 30, 2001 $9.90 per square foot NET or
$18,379.24 per month NET.
July 1, 2001 - December 31, 2001 $7.38 per square foot NET or
$13,701.63 per month NET.
January 1, 2002 - December 31, 2003 $7.61 per square foot NET or
$14,121.00 per month NET.
January 1, 2004 - December 31, 2005 $7.84 per square foot NET or
$14,545.92 per month NET.
January 1, 2006 - December 31, 2007 $8.20 per square foot NET or
$15,221.35 per month NET.
January 1, 2008 - December 31, 2009 $8.87 per square foot NET or
$16,451.60 per month NET.
January 1, 2010 - December 31, 2011 $9.58 per square foot NET or
$17,778.34 per month NET.
2201 Xxxxxxx - South In-fill (11,308 sq ft):
March 1, 1996 - June 30, 1996 $9.34 per square foot NET or
$8,805.42 per month NET.
July 1, 1996 - June 30, 1997 $1.88 per square foot NET or
$1,774.01 per month NET.
July 1, 1997 - December 31, 1997 $5.44 per square foot NET or
$5,129.97 per month NET.
January 1, 1998 - June 30, 1998 $5.65 per square foot NET or
$5,325.98 per month NET.
July 1, 1998 - June 30, 1999 $8.50 per square foot NET or
$8,009.95 per month NET.
July 1, 1999 - December 31, 1999 $8.49 per square foot NET or
$7,997.76 per month NET.
January 1, 2000 - June 30, 2000 $8.71 per square foot NET or
$8,206.01 per month NET.
July 1, 2000 - June 30, 2001 $9.90 per square foot NET or
$9,333.65 per month NET.
July 1, 2001 - December 31, 2001 $7.38 per square foot NET or
$6,958.19 per month NET.
January 1, 2002 - December 31, 2003 $7.61 per square foot NET or
$7,166.45 per month NET.
January 1, 2004 - December 31, 2005 $7.84 per square foot NET or
$7,386.95 per month NET.
January 1, 2006 - December 31, 2007 $8.20 per square foot NET or
$7,729.96 per month NET.
January 1, 2008 - December 31, 2009 $8.87 per square foot NET or
$8,354.73 per month NET.
January 1, 2010 - December 31, 2011 $9.58 per square foot NET or
$9,028.50 per month NET.
2201 Xxxxxxx - North In-fill ( 5,375 sq ft):
March 1, 1996 - June 30, 1996 $8.24 per square foot NET or
$3,690.51 per month NET.
July 1, 1996 - June 30, 1997 $0.78 per square foot NET or
$348.29 per month NET.
July 1, 1997 - December 31, 1997 $4.34 per square foot NET or
$1,943.47 per month NET.
January 1, 1998 - June 30, 1998 $4.53 per square foot NET or
$2,030.81 per month NET.
July 1, 1998 - June 30, 1999 $7.38 per square foot NET or
$3,306.58 per month NET.
July 1, 1999 - December 31, 1999 $7.37 per square foot NET or
$3,300.78 per month NET.
January 1, 2000 - June 30, 2000 $7.56 per square foot NET or
$3,388.13 per month NET.
July 1, 2000 - June 30, 2001 $8.76 per square foot NET or
$3,924.12 per month NET.
July 1, 2001 - December 31, 2001 $6.24 per square foot NET or
$2,795.00 per month NET.
January 1, 2002 - December 31, 2003 $6.44 per square foot NET or
$2,882.34 per month NET.
January 1, 2004 - December 31, 2005 $6.63 per square foot NET or
$2,969.69 per month NET.
January 1, 2006 - December 31, 2007 $6.83 per square foot NET or
$3,057.03 per month NET.
January 1, 2008 - December 31, 2009 $7.38 per square foot NET or
$3,307.42 per month NET.
January 1, 2010 - December 31, 2011 $8.00 per square foot NET or
$3,581.09 per month NET.
2201 Xxxxxxx - North In-fill ( 3,197 sq ft):
March 1, 1996 - June 30, 1996 $9.34 per square foot NET or
$2,489.47 per month NET.
July 1, 1996 - June 30, 1997 $1.88 per square foot NET or
$501.55 per month NET.
July 1, 1997 - December 31, 1997 $5.44 per square foot NET or
$1,450.35 per month NET.
January 1, 1998 - June 30, 1998 $5.65 per square foot NET or
$1,505.76 per month NET.
July 1, 1998 - June 30, 1999 $8.50 per square foot NET or
$2,264.57 per month NET.
July 1, 1999 - December 31, 1999 $8.49 per square foot NET or
$2,261.13 per month NET.
January 1, 2000 - June 30, 2000 $8.71 per square foot NET or
$2,320.01 per month NET.
July 1, 2000 - June 30, 2001 $9.90 per square foot NET or
$2,638.81 per month NET.
July 1, 2001 - December 31, 2001 $7.38 per square foot NET or
$1,967.22 per month NET.
January 1, 2002 - December 31, 2003 $7.61 per square foot NET or
$2,026.10 per month NET.
January 1, 2004 - December 31, 2005 $7.84 per square foot NET or
$2,088.44 per month NET.
January 1, 2006 - December 31, 2007 $8.20 per square foot NET or
$2,185.42 per month NET.
January 1, 2008 - December 31, 2009 $8.87 per square foot NET or
$2,362.05 per month NET.
January 1, 2010 - December 31, 2011 $9.58 per square foot NET or
$2,552.54 per month NET.
0000 Xxxxxxx - 0xx Xxxxx Xxxxx (38,653 sq ft):
July 1, 1999 - December 31, 1999 $8.49 per square foot NET or
$27,337.93 per month NET.
January 1, 2000 - June 30, 2000 $8.71 per square foot NET or
$28,049.79 per month NET.
July 1, 2000 - June 30, 2001 $9.90 per square foot NET or
$31,904.29 per month NET.
July 1, 2001 - December 31, 2001 $7.38 per square foot NET or
$23,784.48 per month NET.
January 1, 2002 - December 31, 2003 $7.61 per square foot NET or
$24,512.44 per month NET.
January 1, 2004 - December 31, 2005 $7.84 per square foot NET or
$25,250.07 per month NET.
January 1, 2006 - December 31, 2007 $8.20 per square foot NET or
$26,422.55 per month NET.
January 1, 2008 - December 31, 2009 $8.87 per square foot NET or
$28,571.00 per month NET.
January 1, 2010 - December 31, 2011 $9.58 per square foot NET or
$30,861.20 per month NET.
Temporary Leased Premises (2201 Xxxxxxx; 1st Floor):
2201 Xxxxxxx - (22,450 sq ft; 0xx Xxxxx):
July 1, 1995 - December 31, 1995 $0.00 per square foot NET or
$0.00 per month NET.
January 1, 1996 - March 31, 1996 $2.00 per square foot NET or
$3,741.67 per month NET.
2201 Xxxxxxx - (5,550 sq ft; 0xx Xxxxx):
July 1, 1995 - December 31, 1995 $4.40 per square foot NET or
$2,035.00 per month NET.
January 1, 1996 - March 31, 1996 $4.50 per square foot NET or
$2,081.25 per month NET.
4. The following section shall be added to the Lease Agreement:
IMPROVEMENTS TO THE LEASED PREMISES: Lessor shall provide for 2201
Xxxxxxx and the new construction "in-fills" a finished project
consisting of Phase I and Phase II as shown in the approved plans and
specifications with Tenant's share being $5,500,000.00, plus those items
for which Tenant is solely responsible, including but not limited to
cabinetry, trade fixtures and installation of the same, D.I. water
system, venting/exhaust systems, etc., as per the letter dated August 18,
1995. Tenant shall pay its $5,500,000.00 share to Lessor in cash as
follows:
Installment #1: On or before September 14, 1995, the sum of
$2,500,000.00.
Installment #2: On or before October 9, 1995, the sum of $750,000.00.
Installment #3: On or before January 4, 1996, the sum of $750,000.00.
Installment #4: On or before July 2, 1996, the sum of $1,500,000.00.
5. The following section shall be added to the Lease Agreement:
UPGRADING OF THE LEASED PREMISES: Tenant may, at its own expense,
upgrade the "like kind", "like use" areas of the Leased Premises at 2201
Xxxxxxx and the 1st Floor of 640 XxXxxxxx from a "storage" category to
either "Shipping-Packaging" or "Lab-Office" category of "like kind",
"like use". Also, "Shipping-Packaging" may be upgraded to "Lab-Office"
category of "like kind", "like use". Should upgrading occur in any
space within the Leased Premises, the NET rent for the upgraded areas
shall be appropriately increased to coincide with the appropriate
upgrade "like kind", "like use" category's NET rent for the similar use
at 2201 Xxxxxxx. The foregoing, however, shall not be construed to
limit the Parties from agreeing to upgrade any space upon such terms
and conditions as may be otherwise mutually agreeable including a
sharing of upgrade expenses and costs.
6. Section 5.D. "Loss or Damage" shall be replaced with the following:
5.D. LOSS OR DAMAGE: Except as provided in Paragraph 7 (Mutual Release
of Claim for Insured Loss), Tenant shall hold Lessor harmless from and
indemnify Lessor against any and all liability, damage, loss and expense
arising or resulting from the acts or omission of, or caused by Tenant
and Tenant's employees, agents, contractors, suppliers, guests, invitees,
licensees, assigns and subtenants in, upon or about the Leased Premises
or the Building of which the Leased Premises are a part (or the areas
adjacent thereto), or arising out of or related to the use or occupancy
of the Leased Premises or the business or activity conducted with
respect thereto, including injuries to persons or property. All property
(goods and merchandise of Tenant and of persons other than Tenant,
including Tenant's customers, in or upon the Leased Premises or the
Building of which it is a part) shall be kept, stored or maintained at
the sole risk of Tenant or the Owner of said property including, but not
limited to, loss from fire, explosion, wind, rain, hail, water leakage,
bursting of pipes or conduits, sprinklers, gas, electricity or structural
failure, regardless of negligence, unless Lessor fails to perform needed
repairs after reasonable notice or is negligent. Tenant shall hold
Lessor harmless from and keep it indemnified against any loss, damage or
liability arising out of any claim for loss or damage to the Leased
Premises.
7. Section 5.E. "Liability Insurance" shall be replaced with the following:
5.E. LIABILITY INSURANCE: Tenant will keep in force at its own expense
for so long as this Lease Agreement is in effect, public liability
insurance with respect to the Leased Premises in which both Tenant and
Lessor shall be named as insureds in companies and in a form acceptable
to Lessor with limits reasonably acceptable to Lessor. Initially, Lessor
is agreeable to a minimum combined single limit of Two Million and
00/100 Dollars ($2,000,000.00), which can and will be reviewed from time
to time to comply with accepted industry standards. Tenant will further
deposit with Lessor the policies of such insurance or certificates there
of, or other acceptable evidence that such insurance is in effect, which
evidence shall provide that Lessor shall be notified in writing thirty
(30) days prior to cancellation, material change or failure to renew the
insurance. If Tenant shall not comply with its covenant made in this
paragraph Lessor may, at its option, cause such insurance as aforesaid
to be issued and in such event, Tenant agrees to pay the premium for
such insurance promptly upon Lessor's demand.
8. Section 5.H. "Hazardous Waste" shall be replaced with the following:
H. NON-PERMITTED USE:
1. Tenant further covenants and agrees, with respect to any
"Hazardous Waste" (as that term is defined herein, hereafter
collectively "Wastes") that it shall not dispose, store, utilize,
manufacture or produce Wastes, upon the Premises in violation of any
"Environmental Requirements" or "Environmental Laws" (as those terms
are defined below). In all events, evidence that any and all such
Wastes are being handled, stored, utilized or disposed of in strict
compliance with all Environmental Requirements and Environmental
Laws shall be made available to Lessor upon request. Tenant shall
immediately upon receipt of a request provide Lessor with copies of
all permits, inspection reports, monitoring reports, licenses,
orders, demands, compliance requests, edicts or other documentation
filed, served, delivered or transmitted either with, to or from the
Minnesota Pollution Control Agency, Minnesota Department of Health,
or the Environmental Protection Agency (or any successor
organization) or any other governmental body regulating, controlling
or dealing with Wastes (hereafter, "Environmental Requirements").
Tenant further agrees to comply with all Environmental Requirements
related to Tenant's use of the Building. In no event shall any
Hazardous Wastes be disposed of on the Premises or elsewhere (except
in a lawful location off site) or through the sewer system serving
the Premises or stored underground. Tenant agrees to advise Lessor
as to what area of the Premises any Wastes or Facility Wastes may
be located and/or stored and what construction steps or procedures,
if any, need to be taken in connection with any construction of the
Improvements being made to the Premises so as to protect the
Premises and surrounding area from contamination from any said
Wastes including the prevention of any release into the environment
as a result of any handling or reasonably foreseeable mishandling of
said Wastes. Tenant further agrees to take all appropriate action
at its sole expense to prevent any release or threatened release on
to the Premises, including the Land upon which it is situated or the
surrounding environment as a result of Hazardous Wastes deposited,
stored, placed on or which otherwise come to be located upon the
Premises by Tenant, its agents, employees or invitees or which is
the result of the existence, emission or release of any Hazardous
Wastes in, on or from the Premises as a result of the operations or
possession of the Premises by Tenant.
2. "Hazardous Waste" means any "hazardous substances", "pollutants",
or "contaminants" as those terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C.
9601, et. seq. ("CERCLA") and the Minnesota Environmental Response
and Liability Act, Minn. Stat. Chapter 115B. ("XXXXX").
"Environmental Laws" as used in this Lease Agreement shall mean:
CERCLA, XXXXX, the Toxic Substance Control Act, 15 U.S.C. 2601 et.
seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.
6901 et. seq. (including the Medical Waste Tracking act of 0000),
XXXXX, the Clean Air Act, the Clean Water Act and any other federal,
state or local laws, regulations including but not limited to those
promulgated by the Food and Drug Administration, or ordinances
which deal with, regulate or pertain to either Hazardous Waste,
Facility Waste, oil or petroleum products, whether such laws,
regulations or ordinances are currently existing, or are hereafter
amended, adopted, or enacted and whether they are given retroactive
or prospective effect.
3. Upon Lessor's request, Tenant agrees to deliver a copy to Lessor
of any waste handling contract(s) evidencing compliance with this
Lease Agreement and Environmental Requirements and Environmental
Laws.
4. Lessor shall have the right from time to time to enter upon and
investigate the Leased Premises and at its sole option to obtain a
report from a reputable environmental consultant of Lessor's choice
as to the presence of any Hazardous Waste (as defined above). If
such consultant's report shows that there is a threat of imminent
release (or there has been a previous release) of Hazardous Waste
onto the Leased Premises or the surrounding environment within the
meaning of Environmental Laws or Environmental Requirements, then
Tenant shall pay for the cost of said report and investigation and
Lessor shall have the right in its sole discretion to make such
further investigations on the Leased Premises and procure such
reports from consultants as Lessor deems necessary, all at the sole
cost and expense of Tenant. If such report indicates no threat of
such imminent release (nor any previous release), then the cost
therefor shall be borne by Lessor. Lessor, at the request of
Tenant, shall request such consultant to agree to keep any research
processes, trade secrets, or other information which would normally
be considered confidential in Tenant's trade or industry, and which
such consultant shall obtain knowledge of through the course of its
inspections and/or presence upon the Leased Premises, confidential.
Such consultant shall execute an agreement to evidence such
undertaking of confidentiality.
5. If at any time it is determined that Hazardous Wastes are
present on the Leased Premises and in violation of Environmental
Requirements or Environmental Laws, and Tenant fails or refuses to
take timely corrective, remedial, or responsive action, then Lessor
may, but shall not be deemed required to, take such action. Any
such corrective, remedial or responsive action taken in connection
therewith shall be at Tenant's sole expense, whether such
corrective, remedial or responsive action is taken by Lessor or
Tenant; and if taken by Lessor, Tenant shall reimburse Lessor for
all such costs within ten (10) days of request. If any corrective,
remedial or responsive action includes any alterations to the Leased
Premises or such alterations are required by Environmental
Requirements or Environmental Laws, said alterations shall be
performed in compliance with this Lease Agreement.
6. Tenant shall indemnify and hold harmless Lessor, Lessor's
manager, and each of their former, present and future partners,
officers, directors, employees, agents, shareholders and attorneys,
and all of their respective successors and assigns, from and against
any and all liability, loss, cost, damage, and expense, including
witnesses' and attorneys' fees, resulting from or due to the
violation of this Section, including the release or threatened
release of any Hazardous Waste that was or is claimed or alleged to
have been deposited, stored, disposed of, placed or otherwise
located or allowed to be located on the Premises by any person at
any time or in connection with the removal or contamination of such
Hazardous Waste, provided however, this indemnification and hold
harmless provision shall not be applicable with respect to any
conditions relating to the Building or underlying land of which it
is situated, which existed prior to Tenant's taking possession of
the Premises; nor with respect to actions of Lessor and/or its
consultants taken upon the Premises after the date Tenant takes
possession.
7. Tenant's representations, warranties and obligations under this
Section shall not be terminated, released, discharged, extinguished
or otherwise affected by the expiration of the Term or the
termination or cancellation of this Lease Agreement. This provision
may be enforced at any time by Lessor, or its successors and
assigns or by any of the indemnified parties.
9. Section 6 "Damage by Fire or Other Casualty" shall be replaced with
the following:
6. DAMAGE BY FIRE OR OTHER CASUALTY: If all or a part of the Leased
Premises are made untenantable by fire, explosion or other casualty,
Lessor may, at its option, elect to terminate this Lease as of the date
of such damage by written notice to Tenant given within thirty (30) days
after the casualty. If Lessor does not so elect to terminate this Lease,
Lessor shall restore the leased premise to tenantable condition, in which
event it shall give written notice to Tenant within thirty (30) days
after the casualty of Lessor's election to restore. Lessor's restoration
shall proceed with due diligence, subject to delays from causes beyond
it's control. Rent shall be abated during the period that the Leased
Premises are untenable in proportion to the reduction of tenantability
during the period of restoration. If Lessor shall not complete the
restoration within 100 days in minor cases, but not to exceed 300 days
in the case of other damage or total destruction, then and thereafter
this lease may be terminated by either Lessor or Tenant by written
notice given within 30 days after the expiration of said time period.
For the purposes of this paragraph, "minor damage" shall mean damages
costing less than $50,000.00 to repair.
10. Section 7 "Mutual Release of Claim for Insured Loss" shall be replaced
with the following:
7. MUTUAL RELEASE OF CLAIM FOR INSURED LOSS: Lessor hereby releases
Tenant from all claims and causes of action for loss or damage to the
Leased Premises and its fixtures and equipment, and Tenant likewise
hereby releases Lessor from all claims and causes of action for loss or
damage to the Leased Premises and to the improvements, fixtures,
equipment, merchandise and other personal property in or upon the Leased
Premises, in each case resulting from fire, explosion or the perils of
extended coverage, covered by Lessor's fire insurance policy, regardless
of whether the loss or damage be caused by the acts or omissions of the
party or its agents or servants. As to each party, its said release
shall be in effect for so long as its insurance shall be in effect as
required by this Lease Agreement.
11. Section 12 "Notice of Tenant's Claim" shall be replaced with the following:
12. NOTICE OF TENANT'S CLAIM: Tenant shall not be entitled to assert
any action, omission or default of Lessor, (i) without first giving
notice to Lessor of such act, omission, default, condition or occurrence
by registered or certified mail sent to Lessor at its office address and
(ii) without providing Lessor by said notice a reasonable time to remedy
such action, omission, default or occurrence.
12. Section 15 "Remedies for Tenant's Default" shall be replaced with the
following:
15. REMEDIES FOR TENANT'S DEFAULT: This Lease is made upon the
condition that (a) if Tenant shall neglect or fail to pay any installment
of rent reserved or any other amount due under this Lease for a period
of five (5) days after receipt of notice, or (b) if Tenant shall file a
voluntary petition under the Bankruptcy Code of the United States, as
amended, in bankruptcy or for a reorganization or arrangement, or under
Chapter 11 of the Bankruptcy Code, or commence any other court
proceedings in bankruptcy or insolvency, or for the appointment of a
receiver or make a general assignment or transfer for the benefit of
creditor, or vacate or abandon the Leased Premises, or (c) if any
involuntary bankruptcy proceedings be instituted against Tenant under the
Bankruptcy Code of the United States, as amended, or if any other
involuntary bankruptcy or insolvency proceedings is commenced against it
or if any involuntary proceedings for the appointment of a receiver is
commenced against it, and further if any such involuntary proceedings
described in this Paragraph are not dismissed, discharged and terminated
within thirty (30) days after the commencement thereof, and the status
quo prior to the commencement of the proceedings restored, or (d) if
Tenant shall default in the payment and full performance of any covenant,
condition, or agreement of this Lease to be kept and performed by Tenant
and such default or breach of performance shall continue for more than
five (5) days after written notice to Tenant specifying such default or
breach of performance, then in any of said events, and at any time
thereafter, Lessor may terminate Tenant's estate and the Lease Term by
any one of the following methods, that is by notice in writing of such
termination to Tenant by commencement of any action to recover possession
of the Leased Premises or any action to terminate, set aside, rescind or
cancel the Lease, or by re-entry into the Leased Premises and upon the
happening of any of said events giving Lessor right of termination or in
the event of termination by Lessor, it may re-enter and take full
possession of the Leased Premises with due process of law and remove all
persons and property therefrom, using such force as may be reasonably
necessary, and Lessor shall not be liable for any damages resulting from
re-entry and removal of persons and property in or upon the Leased
Premises and may remove and abandon or otherwise dispose of the same
without accounting to Tenant, but Lessor shall have the right at its
option upon re-entry to remove and store personal property found on the
Leased Premises at Tenant's expense. Lessor shall have a lien on said
personal property for expenses of removal and storage incurred, and any
other sums due under the Lease or as a result of the breach thereof, but
Lessor shall not be liable for loss or damage of said property suffered
in removal and storage provided that reasonable care is taken in this
process. On termination of the Lease Term and Tenant's estate, Tenant
shall have no right, title or interest in the Leased Premises or right of
occupancy thereof. Notwithstanding a termination of Tenant's estate and
the Lease Term pursuant to this Paragraph, Tenant shall be and remain
liable to Lessor for the payment of the aggregate of the rents and other
amounts payable under this Lease by Tenant for the balance of the leased
term, and expenses of re-entry and making the Leased Premises Tenantable,
and to the extent permitted by law, Lessor, at its option, may accelerate
the payment of such sums so that the aggregate amount of rent, additional
rent and all other amounts payable to Lessor by Tenant herein shall be
immediately due and payable by Tenant to Lessor. Lessor, after
re-entry, shall have the right to, but no obligation to, relet the Leased
Premises, and any rents received by reletting shall be credited first
against the expenses of re-entry and of making the rents and other amounts
due under the Lease for the remainder of the Lease Term in chronological
order, and in no event shall Tenant be entitled to any excess of rent
received from reletting over rent due under this Lease. The pursuit of
any remedy provided herein shall not be a binding election, nor result
in a waiver of any other right or remedy permitted by law, and any right
or remedy given under this Lease shall be in addition to and cumulative
with Lessor's right of action against Tenant for damages for breach of
the Lease and for recovery of rent and other amounts due under the Lease
or otherwise permitted by law. Any exercise or the right of re-entry or
termination of the Lease Term shall not be a waiver of any right of
Lessor to recover damages or other amounts against Tenant. If Tenant
shall vacate or abandon the Leased Premises prior to the expiration of
the Lease Term, Lessor shall have no obligation to re-enter or relet the
Leased Premises and if Lessor shall re-enter the Leased Premises, Lessor
shall have no duty to relet the Leased Premises in whole or in part.
13. Section 21 "Exculpation" shall be replaced with the following:
21. EXCULPATION: Lessor is a limited partnership ("Partnership")
organized and existing under the laws of the State of Minnesota. The
Tenant agrees that neither the Partnership or general partners or any
limited partners, nor any officer, director or shareholder thereof shall
be liable hereunder except to the extent of the Partnership's interest
in the Building, and Tenant agrees to look solely to the Partnership's
interest in the Building for the payment of any claim hereunder or for
the performance hereof.
14. Section 27 "Right of First Refusal - Purchase" shall be replaced
with the following:
27. RIGHT OF FIRST REFUSAL - PURCHASE: If, during Tenant's occupancy
of the Leased Premises during the term of this Lease, the Lessor is in
receipt of a bona fide purchase offer from a third party to purchase the
Leased Premises ("third party offer"), which offer Lessor decides to
accept, Lessor shall give Tenant a copy of the offer along with Lessor's
written statement that Lessor desires to accept such offer. Tenant shall
have the right to purchase the Leased Premises from Lessor upon the same
terms and conditions as proposed in the third party offer. Tenant's
right to purchase the Leased Premises from Lessor may only be exercised
by Tenant's submission of a written purchase contract properly executed
by Tenant and delivered to Lessor together with the applicable xxxxxxx
money as above described no later than 7 business days after Lessor has
provided Tenant with a copy of the third party offer. If Tenant fails to
timely submit such a written purchase offer within such 7 business day
period, Tenant shall be deemed to have waived such purchase right and
Lessor shall be free to sell the Leased Premises to the third party
pursuant to the third party offer, In the case of Tenant not exercising
such purchase right, Tenant shall, upon the request of Lessor, execute
a certificate acknowledging that it has waived its rights to purchase the
Leased Premises pursuant to this paragraph. Notwithstanding the foregoing
the rights granted to Tenant under this paragraph 27 shall not be
applicable in the event Lessor transfers the Leased Premises to family
members related to any general partner or limited partner of Lessor, to
related limited partnerships or general partnerships, or to any family
trusts or related entities; provided, however, that the right of Tenant
under this paragraph shall continue to be applicable in the event of a
resale by any such related family transferee to a bona fide third party.
15. The following section shall be added to the Lease Agreement:
LIMITED OPTION TO PURCHASE THE LEASED PREMISES: Tenant is hereby granted
a limited option to purchase the Leased Premises (other than any parking
leased by Lessor) pursuant only to the terms and conditions of this
paragraph. This option may only be exercisable by Tenant by written
notice to Lessor given after December 31, 1999 and prior to January 1,
2005. Notwithstanding the foregoing, the option may not be exercised by
Tenant: (i) in the event Tenant is then in default under this Lease
Agreement; (ii) in the event the rights of Tenant to possession of the
Leased Premises at the time of exercise have been terminated; (iii) in
the event Tenant has waived its right of first refusal to purchase the
property pursuant to Section 27 of the Lease Agreement and the property
pursuant to such waiver has been sold to a bona fide third party; or
(iv) if Tenant has the ability to purchase the property pursuant to
Section 27 of the Lease Agreement but the time period to purchase under
Section 27 has not yet expired. Tenant's exercise of the option shall be
accomplished by delivering to Lessor an xxxxxxx money contract to
purchase the Leased Premises which xxxxxxx money contract shall contain
the following terms:
1. The closing date shall be specified as a date which is not more that
thirty (30) days from the receipt by Lessor of the xxxxxxx money contract;
2. The purchase price shall be determined by determining the total net
rent for the Leased Premises for the succeeding twelve (12) month period
following the closing date had the option not been exercised and dividing
this sum by a factor equal to nine one-hundredths, five one-thousandths
(.095);
3. Tenant's purchase of the Leased Premises shall be on an "as is" basis
and no representations and warranties regarding the quality of the Leased
Premises shall be made by Lessor to Tenant;
4. Real Estate Taxes and installments of special assessments shall be
prorated between the parties as of the date of closing and Tenant shall
take subject to all levied and pending special assessments due and
payable in years subsequent to the year of closing.
5. Such other terms and conditions as are customarily present in
an xxxxxxx money contract.
6. A provision allowing Lessor to utilize the tax deferred like kind
exchange provision under Section 1031 of the Internal Revenue Code and
requiring the cooperation of Tenant with the same provided that Tenant
incurs no liability or unreimbursed expense in connection with such
exchange.
16. Section 30 of the Lease Agreement and the letter dated February 17,
1995, are hereby amended in their entirety to read as follows:
PARKING: Lessor and Tenant agree that Lessor shall provide a minimum of
375 parking stalls for Tenant over the term of the Lease within a two and
one-half (2-1/2) block radius, but that the location and number of stalls
in any given location may vary from time to time as Lessor's transactions
and ownership may necessitate. Lessor agrees to use its best efforts to
provide additional parking stalls if Tenant's needs grow.
17. Sections 1.E., 24, 28, 29, 31, 32, and 33 shall be deemed null and void.
18. Section 34 "General Terms" shall be replaced with the following:
34. GENERAL TERMS: This lease contains all agreements between the
parties with respect to the Leased Premises and the Buildings of which
the Leased Premises are a part, and land on which they are situated. The
common areas and facilities in and about the Building are not part of
the Leased Premises and may be varied, expanded or reduced at Lessor's
election. This agreement shall not be amended or extended except by
written agreement signed by both parties. Square footages shall be based
upon and reflect the gross construction areas of the Leased Premises.
This agreement shall not be amended or extended except by written
agreement signed by both parties. The Lease Term shall include the
original Lease Term and any agreed extension thereof. The designation
"Tenant" shall be construed masculine, feminine or neuter as the sense
shall require, and plural if applicable to more than one party. The
obligation of Tenant shall be binding upon all named Tenants, jointly and
severally, and the terms and conditions shall inure to the benefit and
be binding upon Tenant and its representatives, successors and assigns,
subject to the prohibition against assignment and subleasing in
Paragraph 5(c) above, which is not impaired, and shall inure to the
benefit and be binding upon Lessor's liability upon assignment under
this Lease Agreement. The Lease and its performance shall be governed by
the laws of Minnesota. The paragraph headings are for convenience only
and do not limit, enlarge or construe the text of the Lease, which shall
govern. The performance of all of Tenant's covenants shall also be
conditions to Tenant's continued occupancy and all expressed obligations
of Tenant shall be Tenant's covenants regardless if so designated.
Lessor shall maintain or cause to have maintained the buildings and their
physical and mechanical systems in good working order including; HVAC,
roof, windows, sewer, plumbing, electrical, lighting (exterior/interior),
grounds and parking lots. Lessor shall also provide the necessary or
requested maintenance staff available during normal working hours and
on-call 24 hours per day in the case of an emergency. Maintenance
personnel shall also see to routine security items (i.e., checking locked
doors); however, Tenant assumes all responsibility for its own property
as provided for in Paragraph 5 (D) herein. Any notice provided herein
shall be sufficient if given by registered or certified mail properly
addressed to the party at the above stated address or such other address
as it designates in writing, and the date of giving notice shall be the
date of deposit in the U.S. mail.
Except as herein stated, all terms and conditions of the aforementioned Lease
shall remain in full force and effect.
Tenant: Lessor:
R & D SYSTEMS, INC., HILLCREST DEVELOPMENT,
a Minnesota Corporation a Minnesota Limited Partnership
By: Xxxxxx X. Xxxxx By: Xxxxx X. Xxxxxxxxx
Title: President Title: General Partner
Date: 10/27/95 Date: 10/27/95
GUARANTY OF LEASE AGREEMENT
WHEREAS HILLCREST DEVELOPMENT (the "Lessor") has been requested to
enter into an Agreement for the First Amendment to a Lease ("Lease")
with R & D SYSTEMS, INC., a Minnesota corporation ("Tenant") amending an
earlier Lease dated July 24, 1992 and certain letters covering certain
space located at 000-000 XxXxxxxx Xxxxx, 0000 Xxxxxxx Xxxxxx XX, Xxxxxxxxxxx,
XX 00000; (hereafter said July 24, 1992 Lease, the Letters, and the Agreement
for the First Amendment to Lease are collectively referred to as the "Lease")
and,
WHEREAS the Lessor, as a condition to executing the Lease has required
the execution of this Guaranty of Lease Agreement;
NOW, THEREFORE, the undersigned (hereinafter the "Guarantor"), in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, hereby agrees as
follows:
1. The Guarantor hereby absolutely, unconditionally guarantees to the
Lessor the full and prompt payment when due, whether at maturity of all
monetary and non-monetary obligations of Tenant under the Lease and any
amendments, renewals or substitutions therefore; (said obligations being
hereinafter called the "Indebtedness"); and the Guarantor agrees to pay all
costs, expenses and pre-judgment and post-judgment attorneys' fees paid or
incurred by the Lessor in endeavoring to collect the Indebtedness and in
enforcing this Guaranty.
2. Indebtedness of the Tenant under the Lease or otherwise may be
created and continued in any amount without affecting or impairing the
liability of the Guarantor hereunder.
3. No act or thing need occur to establish the liability of the
Guarantor hereunder, and with the exception of full payment, no act or thing
(including, but not limited to, a discharge in bankruptcy of the Indebtedness,
and/or the running of the statute of limitations) relating to the Indebtedness
which but for this provision could act as a release of the liabilities of the
Guarantor hereunder, shall in any was exonerate the Guarantor, or affect,
impair, reduce or release this Guaranty of the liability of the Guarantor
hereunder; and this shall be a continuing, absolute, unconditional guaranty
and shall be in force and be binding upon the Guarantor until the Indebtedness
is fully paid.
4. The liability of the Guarantor hereunder shall not be affected or
impaired in any way by any of the following acts or things (which the Lessor
is hereby expressly authorized to do, omit or suffer from time to time without
notice to or consent of anyone): (I) any acceptance of collateral security,
guarantors, accommodation parties or sureties for any or all Indebtedness;
(ii) any extension or renewal of any Indebtedness (whether or not for longer
than the original period) or any modification of the interest rate, maturity
or other terms of any Indebtedness; (iii) any waiver or indulgence granted to
the Tenant, any delay or lack of diligence in the enforcement of the
Indebtedness, or any failure to institute proceedings, file a claim, give any
required notices or otherwise protect any Indebtedness; (iv) any full or
partial release of, compromise or settlement with, or agreement not to xxx,
the Tenant or any other guarantor or other person liable on any Indebtedness
or the death of any other guarantor or obligor on any Indebtedness; (v) any
release, surrender, cancellation or other discharge of any Indebtedness or
the acceptance of any instrument in renewal or substitution for any
instrument evidencing Indebtedness; (vi) any failure to obtain collateral
security (including rights of setoff) for any Indebtedness; (vii) any manner,
order or method of application of any payments or credits on any Indebtedness
or (viii) any adjustment or modification to, or assignment of, the Lease.
5. The Guarantor waives any and all defenses, claims, setoffs, and
discharges of the Tenant, or any other obligor, pertaining to the
Indebtedness, except the defense of discharge by payment in full. Without
limiting the generality of the foregoing, the Guarantor will not assert
against the Lessor any defense of waiver, release, discharge in bankruptcy,
statute of limitations, res judicata, statute of frauds, anti-deficiency
statute, fraud, ultra xxxxx acts, usury, illegality or unenforceability which
may be available to the Tenant in respect of the Indebtedness, or any setoff
available against the Lessor to the Tenant, whether or not on account of a
related transaction. The liability of the Guarantor shall not be affected or
impaired by any voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets, marshaling of assets
and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of, or other similar event or proceeding affecting, the Tenant or any of its
assets. The Guarantor will not assert against the Lessor any claim, defense
or setoff available to the Guarantor against the Tenant.
6. The Guarantor also hereby waives: (I) presentment, demand for
payment, notice of dishonor or nonpayment, and protest of the Indebtedness;
(ii) notice of the acceptance hereof by the Lessor and of the creation and
existence of all Indebtedness; and (iii) notice of any amendment to or
modification of any of the terms and provisions of the Lease, or any other
agreement evidencing any Indebtedness. The Lessor shall not be required to
resort for payment of the indebtedness from the Tenant or other persons or
corporations, their properties or estates, or to any collateral, property,
liens or their rights or remedies whatsoever.
7. Whenever, at any time or from time to time, the Guarantor shall make
any payment to the Lessor hereunder, the Guarantor shall notify the Lessor in
writing that such payment is made under this Guaranty for such purpose. If
any payment applied by the Lessor to the Indebtedness is thereafter set aside,
recovered, rescinded or required to be returned for any reason (including,
without limitation, the bankruptcy, insolvency or reorganization of the Tenant
or any other obligor), the Indebtedness to which such payment was applied
shall for the purpose of this Guaranty be deemed to have continued in
existence, notwithstanding such application, and this Guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
8. No payment by the Guarantor pursuant to any provision hereof shall
entitle the Guarantor, by subrogation to the rights of the Lessor or otherwise,
to any payment by the Tenant or out of the property of the Tenant until all
of the Indebtedness (including interest) and all costs, expenses and attorneys'
fees paid or incurred by the Lessor in endeavoring to collect the Indebtedness
and enforcing this Guaranty have been fully paid. The Guarantor will not
exercise or enforce any right or contribution, reimbursement, recourse or
subrogation available to the Guarantor as to any Indebtedness, or against any
person liable therefor, or as to any collateral security therefor, unless and
until all such Indebtedness shall have been fully paid and discharged.
9. This Guaranty shall be binding upon the legal representatives,
successors and assigns of the Guarantor, and shall inure to the benefit of the
successors and assigns of the Lessor.
10. If the undersigned consist of more than one person or entity, then
all of the obligations herein shall be deemed the joint and several
obligations of the undersigned.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of
this 27th day of October, 1995.
TECHNE CORPORATION
By: Xxxxxx X. Xxxxx
In the presence of: Xxxx Xxxxxxx
