EXHIBIT 10.9
LEASE AGREEMENT
FOR PREMISES IN
SIGNAL HILLS SHOPPING CENTER
BETWEEN
SIGNAL BANK, INC.
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(TENANT)
AND
SIGNAL HILLS COMPANY
--------------------
(LANDLORD)
LEASE AGREEMENT
SIGNAL HILLS SHOPPING CENTER
THIS LEASE AGREEMENT ("Lease"), entered into effective as of the 29th day
of January, 1993, by and between SIGNAL HILLS COMPANY, a Minnesota General
Partnership ("Lessor") and SIGNAL BANK, INC. ("Tenant").
Lessor, for and in consideration of the rent, covenants and agreements
hereinafter set forth to be paid, kept, and performed by Tenant, hereby demises
and leases to Tenant and Tenant hereby hires and rents from Lessor, the leased
premises hereinafter described, for the period, at the rent, upon the terms and
conditions, and consistent with the Data Sheet hereinafter set forth.
DATA SHEET
LEASED PREMISES: The area outlined on Exhibit "A," attached hereto and
made a part hereof. For the purposes of this Lease, the leased premises shall
be deemed to contain seven hundred thirty-eight (738) square feet. The street
address is 00X Xxxxxx Xxxxx, Xxxx Xx. Xxxx, Xxxxxxxxx 00000.
TERM: Five (5) years, Zero (0) months, and Zero (0) days, commencing on
February 1, 1993 and continuing to and including January 31, 1998 ("termination
date").
PERMITTED USE: The leased premises shall be used by the Tenant solely for:
Activities incidental to banking operations or holding company functions.
MINIMUM GUARANTEED ANNUAL RENT: Four Thousand Four Hundred Twenty-Eight
Dollars ($4,428.00), payable in equal consecutive monthly installments of Three
Hundred Sixty-Nine Dollars ($369.00).
TENANT NAME: Tenant shall conduct its business in the leased
premises under the name Signal Bank, Inc.
Each reference in this Lease to any of the data contained in this Data
Sheet shall be construed to incorporate the data stated under the applicable
heading in this Data Sheet.
SUMMARY OF CONTENTS
PARAGRAPH PAGE
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DATA SHEET. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
1. THE LEASED PREMISES; USE OF COMMON AREAS. . . . . . . . . . . . . . . . 1
2. ACCEPTANCE OF LEASED PREMISES . . . . . . . . . . . . . . . . . . . . . 1
3. LESSOR'S PROPERTY; TENANT'S PROPERTY. . . . . . . . . . . . . . . . . . 1
4. USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5. CONDUCT OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6. TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7. HOLD-OVER TENANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8. CONTINUANCE OF LEASE. . . . . . . . . . . . . . . . . . . . . . . . . . 3
9. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10. MINIMUM GUARANTEED RENT . . . . . . . . . . . . . . . . . . . . . . . . 3
11. PERCENTAGE RENT -- Intentionally omitted. . . . . . . . . . . . . . . . 4
12. RADIUS -- Intentionally omitted . . . . . . . . . . . . . . . . . . . . 4
13. REQUIRED PAYMENTS ARE "RENT." . . . . . . . . . . . . . . . . . . . . . 4
14. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
15. JANITOR SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
16. REAL ESTATE TAXES AND ASSESSMENTS . . . . . . . . . . . . . . . . . . . 5
17. PERSONAL PROPERTY AND LEASEHOLD TAXES . . . . . . . . . . . . . . . . . 6
18. RENTAL TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
19. LICENSE FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
20. TENANT'S INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
21. WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . . 7
22. RELEASE OF LESSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
23. INDEMNIFICATION OF LESSOR . . . . . . . . . . . . . . . . . . . . . . . 8
24. MERCHANT'S ASSOCIATION. . . . . . . . . . . . . . . . . . . . . . . . . 8
25. ADVERTISING -- Intentionally omitted. . . . . . . . . . . . . . . . . . 8
26. COMMON AREAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
27. OPERATING EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
28. SIGNS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
29. REPAIRS AND MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . . . 10
30. ALTERATIONS AND IMPROVEMENTS. . . . . . . . . . . . . . . . . . . . . . 11
31. MECHANICS LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
32. LESSOR'S RIGHT TO INSPECT AND REPAIR. . . . . . . . . . . . . . . . . . 12
33. CONDITION OF LEASED PREMISES AND LESSOR'S PROPERTY AT TERMINATION . . . 12
34. DAMAGE BY FIRE OR OTHER CASUALTY. . . . . . . . . . . . . . . . . . . . 12
35. EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
36. ASSIGNMENT OR SUBLEASE BY TENANT. . . . . . . . . . . . . . . . . . . . 15
37. SALE BY LESSOR; NOVATION. . . . . . . . . . . . . . . . . . . . . . . . 15
38. SUBORDINATION; ATTORNMENT AND NON-DISTURBANCE . . . . . . . . . . . . . 15
39. ESTOPPEL CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . 16
40. REMEDIES OF LESSOR. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
41. RESERVATION OF RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . 21
42. LENDER REQUIREMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 21
43. RELATIONSHIP OF THE PARTIES . . . . . . . . . . . . . . . . . . . . . . 21
44. SHORT FORM LEASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
45. NOTICES; PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
46. IMPORTANCE OF EACH COVENANT . . . . . . . . . . . . . . . . . . . . . . 23
47. WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
48. ACCORD AND SATISFACTION . . . . . . . . . . . . . . . . . . . . . . . . 23
49. BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
50. INVALIDITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
51. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
52. DEFINITION OF LESSOR, TENANT AND GUARANTOR - JOINT AND SEVERAL
LIABILITY -- Intentionally omitted. . . . . . . . . . . . . . . . . . . 24
53. CORPORATE TENANT OR GUARANTOR . . . . . . . . . . . . . . . . . . . . . 24
54. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
55. PARTIES IN INTEREST; NEGATION OF LESSOR'S PERSONAL LIABILITY. . . . . . 24
56. ENTIRE AGREEMENT; EXHIBITS; RIDER . . . . . . . . . . . . . . . . . . . 24
57. SUBMISSION OF LEASE; SECURITY AND DAMAGE DEPOSIT -- Intentionally
omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
58. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
59. REPRESENTATION AND/OR PROMISES. . . . . . . . . . . . . . . . . . . . . 25
60. ENTIRE AGREEMENT AND AMENDMENTS . . . . . . . . . . . . . . . . . . . . 25
EXHIBIT "A"
LEGAL DESCRIPTION OF CENTER . . . . . . . . . . . . . . . . . . . . . . . . 27
EXHIBIT "B"
OUTLINE OF LEASED PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . 28
EXHIBIT "C" - SIGN CRITERIA -- Intentionally omitted. . . . . . . . . . . . 29
EXHIBIT "D"
RIDER ADDENDUM TO LEASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . 30
EXHIBIT "E" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
IT IS AGREED:
1. THE LEASED PREMISES; USE OF COMMON AREAS. Subject to the terms and
conditions of this Lease and subject to all reasonable rules and regulations
prescribed by Lessor from time to time with respect to the operations of the
Center and its common areas, which Tenant shall observe, Lessor leases to
Tenant and Tenant rents of and from Lessor the premises as set forth on the
Data Sheet ("leased premises") located in Signal Hills Shopping Center
("Center") which Center is legally described on Exhibit "B," attached hereto
and made a part hereof, West St. Xxxx, Dakota County, Minnesota.
Additionally, Tenant shall have the non-exclusive use, in common with
Lessor, other tenants of the Center, others entitled to use the same, and their
respective agents, employees, contractors, invitees, and customers, of the
common areas.
2. ACCEPTANCE OF LEASED PREMISES. Tenant accepts the leased premises in
"as is" condition. Tenant, at its cost and expense and with no right of
reimbursement from Lessor, shall do all work and make all installations
necessary for Tenant's use and occupancy, subject to the provisions of Paragraph
30.
3. LESSOR'S PROPERTY; TENANT'S PROPERTY. Tenant acknowledges hereby that
all partitions erected in the leased premises; all improvements affixed to the
leased premises; all fixtures, other than movable trade fixtures of Tenant; and
all heating, air conditioning, plumbing and electrical equipment, pipes, wiring,
connections and fittings, which are necessary to the mechanical, plumbing and
electrical operation and maintenance of the leased premises, shall become
immediately and remain the property of Lessor, without compensation to Tenant,
whether owned by Lessor at the commencement of the term, subsequently purchased
or constructed by Lessor, or purchased or constructed by Tenant in accordance
with any of Tenant's obligations under the terms of this Lease.
Tenant, at its cost and expense, shall provide certain furniture, trade
fixtures and/or trade equipment necessary for Tenant's use and occupancy of the
leased premises. Notwithstanding the fact that such items may be attached to or
affixed to the realty, such furniture, movable trade fixtures and/or trade
equipment, and replacements thereof or additions thereto, as well as movable
furniture and other movable personal property put in at the expense of Tenant,
shall be the property of Tenant, and may be removed by Tenant at termination of
this Lease, provided, Tenant is not in default hereunder, and provided further,
the leased premises are restored as hereinafter set forth. All of the property
removable pursuant to this paragraph shall be removed on or before the last day
of the term hereof, or upon the earlier termination of the term, and all
property not so removed shall be deemed abandoned by Tenant to Lessor. To the
extent Tenant's property is removed pursuant to this paragraph, Tenant, at its
cost and expense, shall repair any damage caused to the leased premises by such
removal. If Tenant chooses not to remove its property, Lessor may require
Tenant, at Tenant's cost and expense, to remove its property and restore the
leased premises to good condition and repair.
4. USE. Tenant, and no other person or entity, shall use the leased
premises solely for the purpose of conducting and operating the business as set
forth on the Data Sheet. Tenant shall continuously occupy and use the leased
premises during the term hereof for said purpose; provided, however, Tenant may
close for necessary repairs for a reasonable period of time, but without
abatement of rent unless specifically provided for herein. Tenant shall not
use, permit or suffer the use of, the leased premises for any other business
purpose. All uses not specifically granted herein are reserved to Lessor and
other tenants in the Center, but Tenant's use shall be non-exclusive.
In the event that the use of the leased premises increases the premium rate
for insurance carried by Lessor on the improvements of which the leased premises
are a part, Tenant shall pay Lessor, upon demand, the amount of such premium
increase.
5. CONDUCT OF BUSINESS. Tenant shall not use, occupy, suffer or permit
any use of, the leased premises which would (a) violate any law, ordinance, or
regulations; provided, however, Tenant shall have the right to contest the
validity of any law, ordinance or regulation adversely affecting its use of the
leased premises, but shall
hold Lessor harmless from the consequences of violation of any such law,
ordinance or regulation; (b) constitute a nuisance; (c) constitute an
extra-hazardous use; or (d) violate, suspend or void any policy or policies
of insurance of either Lessor or any other tenant in the Center.
Tenant acknowledges that there are in effect federal, state, and local
laws, regulations and guidelines, and that additional and other laws,
regulations, and guidelines may hereafter be enacted or go into effect, relating
to or affecting the leased premises and/or the Center, and concerning the impact
on the environment and/or energy sources, construction, land use, the
maintenance and operation of structures, and the conduct of business. Tenant
shall not cause, or permit to be caused any act or practice, by negligence,
omission, or otherwise, that would adversely affect the environment, waste
energy, do anything or permit anything to be done that would violate any of said
laws, regulations, or guidelines. In the event of violation of this covenant,
Lessor, at its option, may treat such violation as an event of default
constituting a breach by Tenant of this Lease. Tenant shall have no claim
against Lessor by reason of any physical or operational changes Lessor may make
in the Center or the leased premises pursuant to said laws, regulations, and
guidelines.
As indicated in paragraph 1 hereof, the leasing to Tenant is subject to all
reasonable rules and regulations prescribed by Lessor from time to time with
respect to the leased premises, common areas and the operation of he Center, and
any part or parts thereof. Tenant shall abide by such rules and regulations,
which shall be uniformly applied, and shall cooperate in the observance of such
rules and regulations. The rules and regulations which are effective as of the
date of this Lease are set forth in Exhibit "C" attached hereto and made a part
hereof, and any amendments or additions thereto which may be made form time to
time shall be effective and become binding upon Tenant upon delivery of a copy
to Tenant of such rules and regulations and amendment or additions thereto;
provided, however, such amendments or additions shall not impose a substantially
greater burden upon Tenant or materially restrict the use of the leased premises
as contemplated under the terms of this Lease at its inception.
Tenant shall keep the leased premises open for business to the public
during all regular and customary days and hours for such type of business, and
consistent with the days and hours reasonably established by Lessor.
6. TERM. The term of this Lease shall be as set forth on the Data Sheet.
If the leased premises are not available for occupancy on the commencement
date, the term shall commence on the date when the leased premises are available
for occupancy, or the date Tenant accepts occupancy of the leased premises,
whichever date first occurs ("extended commencement date"). Accordingly, the
termination date shall be extended to a date ("extended termination date") which
corresponds with the period elapsed between the commencement date and the
extended commencement date plus the number of the days remaining in that month
if said extended termination date is a date other than the last day of the
month. If Tenant is unable to occupy the leased premises at the commencement
date because the leased premises are not ready for occupancy or as a result of
any cause beyond the direct control of Lessor, Lessor shall not be liable in any
manner to Tenant; but during the period Tenant is unable to occupy the leased
premises, the rent and all other charges shall xxxxx.
"Lease year" shall mean in the case of the first lease year, that period
from the commencement date or extended commencement date to the first succeeding
January 31; thereafter, "lease year" shall mean each successive twelve (12)
calendar month period following the expiration of the first lease year, except
that in the event the termination date or extended termination date is any date
other than January 31, then the last lease year shall be the period from the end
of the preceding lease year to the termination date or extended termination
date.
7. HOLD-OVER TENANCY. If Tenant remains in possession of the leased
premises, without written consent of Lessor, after the expiration of the term of
this Lease, such holding over, if rent is accepted by Lessor for any period
after expiration of such term, shall create a tenancy from month to month, at a
rent equal to one hundred twenty percent (120%) of the last monthly rent payable
hereunder, and otherwise upon the terms and conditions of this Lease, terminable
in accordance with Minnesota law governing month to month tenancies.
8. CONTINUANCE OF LEASE. If the use of the lease premises is prohibited
or prevented by any reason, other than herein provided for, at any time during
the term of this Lease, this Lease shall not be terminated
thereby nor shall Tenant be entitled by reason thereof to surrender the
leased premises, or to any abatement or reduction in rent, nor shall the
respective obligations of Lessor and Tenant be affected.
9. QUIET ENJOYMENT. Subject to Tenant's performance of all of its
obligations under this Lease, Tenant shall have the peaceful and quiet use of
the leased premises for the permitted use set forth in the Data Sheet, without
hindrance on the part of Lessor, and Lessor shall defend Tenant in such peaceful
and quiet use against the lawful claims of all persons claiming by, through or
under Lessor, subject to any mortgage, agreement or encumbrance to which this
Lease is or may be subordinated.
10. MINIMUM GUARANTEED RENT. Tenant shall pay to Lessor as rent,
exclusive of any other charge provided for in this Lease to be paid by Tenant,
the sum of FOUR THOUSAND FOUR HUNDRED TWENTY EIGHT DOLLARS ($4,428.00) per year,
payable THREE HUNDRED SIXTY NINE DOLLARS ($369.00) each month, in advance, on
the first day of each month throughout the term of this Lease.
If the commencement date or extended commencement date is a date other than
the first day of the month, Tenant shall pay to Lessor on the day of taking
occupancy for the number of days remaining in such month, including said first
day, a prorata monthly rent calculated in the ratio that the actual number of
days of occupancy by Tenant during such month bears to the total number of days
in such month.
11. PERCENTAGE RENT -- Intentionally omitted.
12. RADIUS -- Intentionally omitted.
13. REQUIRED PAYMENTS ARE "RENT." In addition to minimum guaranteed rent
and percentage rent, all other payments required to be paid by tenant under the
provisions of this Lease shall be deemed to be and shall become additional rent,
whether or not the same be designated as such; provided, however, all provisions
dealing with abatement of rent shall be construed to permit the abatement of
minimum guaranteed rent only and not percentage rent or any other payment
required hereunder. All payments required to be paid by Tenant under the
provisions of this Lease shall bear interest at a rate which is the lesser of
the maximum allowable legal rate, or eighteen percent (18%) per annum commencing
five (5) days after the due date of each payment and continuing until the date
actually paid by Tenant.
14. UTILITIES. Tenant shall pay, as they become due and payable and
before they become delinquent, all charges for electricity, heat, air
conditioning, water, gas, fuel, telephone, sewage usage or rental, garbage
disposal, refuse removal, telephone and any other utility service furnished to
the leased premises during the term of this Lease.
If Lessor elects to furnish any of the foregoing utility services or other
services, Tenant shall purchase the same from Lessor, provided, the charge to
Tenant for such utility services or other services furnished or caused to be
furnished by Lessor shall not exceed the rate which Tenant would be required to
pay to a utility company or service company furnishing comparable services to
Tenant.
Tenant, at Tenant's sole cost and expense, shall provide and install all
lamps, tubes, bulbs, starters, ballasts, transformers and like items used or
required in the leased premises.
Tenant shall not make any alternations in or additions to the electrical
equipment and/or appliances in the leased premises without the prior written
consent of Lessor in each instance. Tenant's use of electrical current shall not
exceed at any time the capacity of the electric distribution system, and Tenant
shall not make any alteration or addition to the electric distribution system
without the prior written consent of Lessor in each instance. In the event that
at any time during the term of this Lease, Tenant desires to connect or install
any additional electric fixtures, equipment, or appliances to the electric
distribution system, and such fixtures, equipment or appliances require
additional electric current which, in combination with Tenant's existing
electrical requirements, exceed the capacity of the electric distribution
system, Lessor, upon written request of Tenant, shall install any additional
riser or risers and all other equipment necessary and proper in connection
therewith to supply Tenant's electric requirements, at
the sole cost and expense of Tenant, but only if such riser or risers and
such other equipment, if any, are necessary to supply Tenant with the
electric current required by it, and will not cause damage or injury to the
leased premises or the Center, or cause or create a dangerous or hazardous
condition, or entail excessive or unreasonable alterations, repairs, expense
or interference with or disturbance of other tenants or occupancy of the
Center.
Lessor reserves the right to cut off and discontinue any or all utility
services in an emergency and/or when necessary to make repairs, but with as
little interruption to the business of Tenant as is reasonable under the
circumstances. No such action by Lessor shall be construed as an eviction, or
disturbance of possession, or as an election by Lessor to terminate this Lease,
nor shall such action by Lessor subject Lessor to any liability to Tenant or any
other person or entity. In no event shall Lessor be liable to Tenant or any
other person or entity for any loss, damage or expense which may be sustained
for any interruption or failure in the supply of such utilities caused by fire,
other casualty, accident, riot, strike, act of God, the making of necessary
repairs, or by any cause beyond Lessor's control.
Lessor may reduce the quantity and quality of all utility services and
impose such regulations as Lessor deems necessary in order to conserve energy,
if such action is pursuant to any governmental regulation, requirement,
directive or request, or if Lessor deems such action to be for the benefit of
our national interest or the general public. "Utility services" include, but is
not limited to, heat, cooling, electricity, water, and all of the sources of
energy needed to provide same.
15. JANITOR SERVICE. Tenant shall provide and pay for any and all janitor
service required in the leased premises.
16. REAL ESTATE TAXES AND ASSESSMENTS. Subject to payment by Tenant, as
hereinafter provided, Lessor shall pay all real estate taxes and all
installments of assessments, and any taxes in lieu thereof, which may be levied
upon or assessed (collectively "taxes") against the land and improvements,
including the common areas, constituting the Center. Tenant, in addition to all
other payments to Lessor by Tenant required hereunder, shall pay to Lessor in
each year during the term of the Lease, Tenant's proportionate share, as
hereinafter defined, of said taxes. "Proportionate share" of Tenant, for
purposes of this paragraph, shall be equal to the product obtained by
multiplying the taxes due for the period for which payment is required or for
which the estimate is made by a fraction, the numerator of which shall be the
total square footage of the leased premises, and the denominator of which shall
be the gross leasable area in the building(s) of the Center, excluding therefrom
the common areas and all lower level areas not leased solely for retail
purposes, and determined as of the applicable time. The proportionate share of
the taxes to be paid hereunder by Tenant shall be paid in full by Tenant to
Lessor in an amount necessary so that Lessor will have collected Tenant's
proportionate share thirty (30) days prior to the date the taxes are due and
payable on an installment basis by Lessor to the taxing authorities before
interest or penalty accrues thereon. However, Lessor reserves the right to
estimate Tenant's proportionate share of the taxes, and Tenant shall pay monthly
to Lessor to be necessary to be billed monthly so that Lessor will have
collected Tenant's proportionate share thirty (30) days prior to the date the
taxes are due and payable on an installment basis by Lessor to the taxing
authorities before interest or penalty accrues thereon. In the event Lessor
exercise its right to estimate Tenant's proportionate share of the taxes, and
bills Tenant monthly therefor, within thirty (30) days after receipt by Lessor
of the applicable tax statement, Lessor shall render a billing to Tenant
adjusting the estimated payments received to the actual payments required, and
setting forth the difference between the total amount collected on an estimated
basis and the total amount which should have been collected on an actual basis.
In the event Tenant has underpaid Tenant's proportionate share up to the date of
such billing, based upon the applicable tax statement, Tenant shall pay any
shortage to Lessor within ten (10) days after delivery of such billing to Tenant
by Lessor; and, correspondingly, Lessor shall refund to Tenant the amount of any
overpayment within ten (10) days after delivery of such billing to Tenant by
Lessor, provided, Tenant is not in default under this Lease. Thereafter, for
the balance of the applicable period, the monthly billing by Lessor to Tenant
shall be based upon Tenant's actual proportionate share of the applicable tax
statement to be paid. In the event the taxing authorities include in such real
estate taxes and installments of assessments the value of any improvements made
by Tenant, or of machinery, equipment, fixtures, inventory or other personal
property or assets of Tenant, then Tenant shall pay all of the taxes
attributable to such items in addition to its proportionate share of said real
estate taxes and installments of assessments. A photostatic copy of the tax
statement received by Lessor and submitted by Lessor to Tenant shall
be sufficient evidence of the amount of the taxes assessed or levied against
the land and improvements constituting the Center, as well as the items taxed.
17. PERSONAL PROPERTY AND LEASEHOLD TAXES. If at any time during the term
of this Lease, under federal, state or local law or any political subdivision
thereof, a tax, charge or excise, however described, is levied or assessed
against Tenant's leasehold interest in this Lease or against the fixtures,
equipment, merchandise and other personal property located in, upon, about or
affixed to the leased premises, Tenant shall pay such tax, charge or levy as it
is due and payable, and before it becomes delinquent.
18. RENTAL TAXES. If at anytime during the term of this Lease, under
federal or state law or any political subdivision thereof, a tax, charge,
capital levy or excise on rents (fixed, guaranteed or additional), or other tax
(except income tax), however described, shall be levied against Lessor on
account of the rent payable herein, such tax, charge, capital levy, or excise on
rents or other taxes shall be paid by Tenant, or reimbursed to Lessor by Tenant
if such tax, charge, capital levy, or excise on rents or other taxes is advanced
by Lessor, the choice to be at the option of Lessor. If the amounts required to
be paid pursuant to the provisions of this paragraph are payable monthly, such
amounts shall be paid by Tenant to Lessor in addition to the monthly rent
provided for herein. If the amounts required to be paid pursuant to the
provisions of this paragraph are payable annually, such amounts shall be paid by
Tenant to Lessor annually on demand. A photostatic copy of the statement
received for such amounts shall be sufficient evidence of the amounts due and
payable.
19. LICENSE FEES. Tenant shall pay, as they become due and payable and
before they become delinquent, all fees, charges and expenses required for
licenses and/or permits, if any, required for Tenant's permitted use of the
leased premises, as set forth in the Data Sheet, during the term of this Lease.
20. TENANT'S INSURANCE. Tenant shall obtain and keep in force, at
Tenant's expense, for the term of this Lease, and any extension or renewal
thereof, the following insurance:
(a) Fire and extended coverage insurance, covering fire and extended
coverage perils, including, in addition to other standard provisions,
protection against theft, vandalism, malicious mischief, water damage
and sprinkler leakage. Said policy shall cover Tenant's stock in
trade, fixtures, furniture, equipment, signs, and all other
installations, improvements and betterments made by or for Tenant, on
or about the leased premises, on the basis of ninety percent (90%) of
replacement cost; and shall provide for allowance of complete waiver
of subrogation.
(b) Comprehensive general liability insurance, with combined single limit
of One Million Dollars ($1,000,000.00) for each occurrence, or such
higher limits as determined reasonably by Lessor. Said policy shall
name Tenant as a named insured, and Lessor as an additional insured;
shall cover the leased premises, including, any elevators, boilers or
pressure vessels therein; shall contain a broad form hold harmless
endorsement identifying Lessor; and shall cover contractual
agreements.
(c) Any other standard insurance policy as may be required reasonably by
Lessor from time to time, upon such terms and conditions as may be
required reasonably by Lessor from time to time, including, but not
limited to, plate glass insurance.
Said insurance required pursuant to the provisions of this paragraph shall
be issued by an insurance company legally authorized to do business in the State
of Minnesota; shall be in a form satisfactory to Lessor; and shall provide for
at least thirty (30) days' notice, by certified mail, return receipt requested,
to Lessor before cancellation, termination, nonrenewal or change of such
insurance. Evidence of said insurance, and any renewals thereof, shall be
delivered to and may remain in the possession of Lessor.
21. WAIVER OF SUBROGATION. Lessor waives its right of subrogation for
damage to the building of which the leased premises are a part, contents
therein, loss of use thereof, and/or loss of income, up to the amount of
insurance proceeds collected; and Tenant waives its rights of subrogation for
damage to property in the leased premises, loss of use thereof, loss of income
and/or accounts receivable, including, cash or checks of Tenant
held by Lessor as an accommodation to Tenant, up to the amount of insurance
proceeds collected. Lessor and Tenant, on behalf of their respective
insurance companies, waive any right of subrogation either may have against
the other where such waiver of subrogation is not invalidated by state law.
In the event the insurance premiums of Lessor are increased due to the
obtaining of such waiver of subrogation, Tenant shall reimburse Lessor for
the cost thereof forthwith upon receipt of a statement therefor from Lessor.
22. RELEASE OF LESSOR. All property of any kind that may be on or at the
leased premises shall be at the sole risk of Tenant, or those claiming through
or under Tenant. Lessor shall not be liable to Tenant, or to any other person
or entity due to any of the following: (a) damage, loss or injury, either to
person or persons; (b) loss of property sustained by Tenant, or by any other
person, persons or entities in or upon the leased premises or the Center; (c)
equipment, fixtures, appliances or machinery in or upon the leased premises or
the building of which the leased premises are a part, or the halls, passageways,
areas, sidewalks or streets adjoining or appurtenant to the leased premises or
the building of which the leased premises are a part, being or becoming out of
repair or defective; (d) the happening of any accident, however occurring; (e)
any act or neglect of Tenant, of any other tenant or occupant of the Center, or
of any other person, persons or entities; (f) water, snow, rain, backing up of
watermains or sewers, frost, steam, sewage, illuminating gas, sewer gas, odors,
electricity or electric current, bursting, stoppage or leaking of pipes,
radiators, plumbing, sinks and fixtures in or about the leased premises or the
building of which the leased premises are a part; (g) the use or misuse of any
instrumentality or agency in or connected with the leased premises or the
Center; or (h) any nuisance made or suffered in, on or at the leased premises.
23. INDEMNIFICATION OF LESSOR. Except to the extent that any of the
following shall result from act or omission of Lessor, its agents, employees or
contractors, or failure on the part of Lessor to perform its covenants or
agreements under this Lease, Tenant shall indemnify and save harmless Lessor
against all liabilities, damages, claims, fines, penalties, costs and other
expenses, including, reasonable attorney's fees, which may be imposed upon,
incurred by, or asserted against lessor by reason of all or any of the matters
and things referred to in Paragraph 22, and including all of the following: (a)
any use or condition of the leased premises or any part thereof; (b) any
personal injury or property damage occurring on the leased premises; (c) any
negligence on the part of Tenant, its agents, contractors, licensees or
invitees; (d) any failure to comply with any requirement of any governmental
authority; (e) any prosecution or defense of any suit or other proceeding in
discharging the leased premises or any part thereof from any liens, judgments or
encumbrances created upon or against the same or against Tenant's leasehold
estate; (f) any proceedings in obtaining possession of the leased premises after
the termination of this Lease by forfeiture or otherwise; (g) any litigation
commenced by or against Tenant to which Lessor is made a party without any fault
on the part of Lessor; and (h) any failure on the part of Tenant to perform or
comply with any covenant or agreement required to be performed or complied with
by Tenant hereunder.
24. MERCHANT'S ASSOCIATION.
25. ADVERTISING -- Intentionally omitted.
26. COMMON AREAS. "Common areas" shall consist of all parts of the Center
not under lease exclusively to Tenant hereunder or to other tenants, including,
but not limited to, parking areas, access roads and facilities, driveways,
sidewalks and other walkways, stairways, loading areas, malls (if any),
landscaped areas, and such other areas and improvements provided for common use
and benefit. Lessor and Tenant, and their customers, invitees, officers,
employees, agents, sublessees, licensees, concessionaires and contractors, shall
have common and non-exclusive rights to the use of said common areas, subject,
however, to Lessor's exclusive right to establish, modify and enforce reasonable
rules and regulations with respect to all common areas and facilities; to
construct, maintain, and operate lighting facilities on all said areas and
improvements; to police the common areas; from time to time to change the area,
level, location and arrangement of parking areas and other facilities; to
restrict parking by tenants, their officers, employees, agents, sublessees,
licensees, concessionaires and contractors to employee parking areas; to enforce
parking charges, by operation of meters or otherwise, with appropriate
provisions for free parking ticket validation by tenants; to close all or any
portion of said areas or facilities to such extent as may, in the opinion of
Lessor's counsel, be legally sufficient to prevent a dedication thereof or the
accrual of any rights to any person or the public therein; to close temporarily
all or any portion of the parking areas or facilities; to
discourage noncustomer parking; and to do and perform such other acts in and
to said areas and improvements as, in the use of good business judgment,
Lessor shall determine to be advisable with a view to the improvement of the
convenience and use thereof. Lessor shall operate and maintain the common
areas and facilities in such manner as Lessor, in its sole discretion, shall
determine from time to time. Without limiting the scope of such discretion,
Lessor shall have the full right and authority to employ all personnel and to
make all rules and regulations pertaining to and necessary for the proper
operation and maintenance of the common areas and facilities. Landlord
reserves the unrestricted right to include the service, maintenance, repair
and replacement of the heating, ventilating and air conditioning (HVAC)
equipment and roof into the common area of the shopping center by giving
notice in writing to Tenant of the Landlord's decision to take such action.
Lessor shall be responsible for repairs and maintenance of the common
areas, and lighting therefor, with payment of the expenses incident thereto as
hereinafter provided for.
27. OPERATING EXPENSES. Tenant, in addition to all other payments to
Lessor by Tenant required hereunder, shall pay to Lessor, in each year during
the term or this Lease, Tenant's proportionate share, as hereinafter defined, of
the operating expenses for operating, managing and maintaining the Center and
the common areas related thereto. The term "operating expenses" hereby is
defined to mean all expenses which for federal income tax purposes may be
deducted as an expense, including, but not limited to, the following: costs and
expenses of repairing, maintaining, cleaning and operating the common areas and
certain equipment and systems, including, but not limited to, heating,
ventilating, air conditioning, plumbing and electrical; common area electricity,
heating, air conditioning, water and utilities; common area real estate taxes
and installments of assessments; landscaping; painting and decorating; rental of
signs and equipment; pest control; operation of loud speakers and public address
systems; depreciation of machinery and equipment; repair or replacement of
paving, curbs and walkways; repair of roof; the cost of personnel and materials
to implement such services, in directing parking, policing the Center, and
affording protection thereof against fire and other risks; all insurance which
Lessor deems necessary or advisable to obtain and maintain in connection with
the Center; professional fees; leasing fees; reasonable fees for management of
the Center; and an administrative charge of fifteen percent (15%) of the total
costs and expenses paid or incurred by Lessor pursuant to this paragraph.
Excluded from "operating expenses," for purposes of this paragraph, are the
taxes billed to Tenant pursuant to other provisions of this Lease and debt
service interest payments. "Proportionate share" of Tenant, for purposes of
this paragraph, shall be equal to the product obtained by multiplying the total
costs and expenses, including administrative costs, by a fraction, the numerator
of which shall be the total square footage of the leased premises, and the
denominator of which shall be the gross leasable area in the building(s) of the
Center, excluding therefrom the common areas and all lower level area not leased
solely for retail purposes, and determined as of the applicable time. The
amount provided for in this paragraph to be paid by Tenant shall be paid to
Lessor upon demand, which demand shall be accompanied by a statement setting
forth the basis of such payment due from Tenant. However, Lessor reserves the
right to estimate Tenant's proportionate share of said costs and expenses for
any current calendar or fiscal year of Lessor, and Tenant shall pay monthly to
Lessor one-twelfth (1/12th) of the amount so estimated. Within forty-five (45)
days after receipt by Lessor of Lessor's Statement of Income and Expenses for
such calendar or fiscal year, Lessor shall render a statement to Tenant setting
forth the difference between Tenant's actual proportionate share of said costs
and expenses and the total amount of Lessor's estimate for the year, or portion
thereof, collected from Tenant. Tenant shall pay any shortage to Lessor within
ten (10) days after delivery of said statement to Tenant by Lessor.
Correspondingly, Lessor shall refund to Tenant the amount of any overpayment
within ten (10) days after delivery of said Statement to Tenant by Lessor,
provided, Tenant has fully performed all of its obligations under this Lease.
28. SIGNS. Tenant shall provide, at its expense, during the term of
this Lease, a sign or signs the form of which shall be agreed to by Lessor
and Tenant, shall be harmonious to the general exterior architectural
treatment of the Center, and shall conform to sign criteria as set forth in
Exhibit "D," attached hereto and made a part hereof. Drawings submitted for
approval by Lessor shall clearly show graphic, construction and attachment
details, and electrical load requirements. The cost of installing,
maintaining, changing and removing all signs shall be borne by Tenant.
Tenant shall keep its display windows, exterior signs and exterior
advertising displays adequately illuminated during such hours as Lessor
determines reasonably to be necessary. Upon commencement of the term of this
Lease, with said sign or signs in place, Tenant shall not erect, install,
place or cause to be erected, installed or placed, decorations or advertising
media of any type on the exterior of the leased premises
without obtaining, on each occasion, the prior written consent of Lessor.
The consent of Lessor as to signs shall not be withheld unreasonably,
provided, that any such sign shall conform to the sign criteria, any and all
governmental rules, regulations, ordinances, laws with respect to same, and
shall not be distasteful, defacing, unfit, or affect the structural strength
of the leased premises or the building of which they are a part. Tenant
shall have no right to erect any sign of any kind or nature which advertises
a business or product other than Tenant's. Tenant shall not erect, install,
place or cause to be erected, installed, or place any lettering, placards,
decorations or advertising media of any type in the windows of the leased
premises which Lessor, in its sole opinion, considers to be distasteful or
defacing, and Tenant, if so requested by Lessor, shall remove forthwith such
material from the windows of the leased premises. All signs, and all
materials placed in the windows of the leased premises, shall be maintained
in such a manner so as to be sightly and in good condition and repair.
29. REPAIRS AND MAINTENANCE. During the term of this Lease, Lessor, at
Lessor's cost and expense, shall keep and maintain in good order, condition and
repair, the foundation, exterior walls (except store fronts, plate glass or
other breakable materials used in structural portions) and structural part of
the floor. Lessor shall have no obligation to paint or decorate said foundation
or exterior walls. The foregoing to the contrary notwithstanding, any damage to
any of the foregoing caused by any act or negligence of Tenant, its employees,
agents, invitees, licensees or contractors shall be repaired or replaced
promptly by Tenant.
During the term of this Lease, Tenant, at Tenant's cost and expense, shall
keep and maintain in good order, condition and repair, including, reasonable
periodic painting and decorating, and including replacement as required, the
leased premises and every part thereof (except as specifically provided for in
this Paragraph 29 to be Lessor's obligation) including, but not limited to: the
exterior and interior portions of all doors, glass and glass windows; all
mechanical, plumbing, heating, air conditioning, ventilating and electrical
equipment and systems within, affixed (roof mounted, or otherwise) to, or
serving the leased premises; interior walls, partitions; floors and ceilings;
signs of Tenant; and all fixtures, appliances and equipment furnished by Lessor,
if any.
30. ALTERATIONS AND IMPROVEMENTS. Tenant, at its cost and expense and
with no right of reimbursement from Lessor, may make alterations, additions,
and improvements to the leased premises to better adapt the leased premises
to its use and occupancy; provided, however, on each occasion, any such
alteration, addition, or improvement shall: (i) equal or exceed the then
current standard for the Center, utilizing only new and first-grade
materials; (ii) be in conformity with all applicable federal, state and local
laws, ordinances, regulations, building codes, fire regulations, and
insurance requirements of Lessor and Tenant; (iii) be made only with the
prior written consent of Lessor, and as a condition to such consent, Lessor
may require agreement by Tenant to remove such alterations, additions, and/or
improvements at the time of termination of this Lease, and restore the leased
premises to their condition prior to the installation of such alterations,
additions and/or improvements and otherwise, in good condition and repair,
subject to reasonable wear and tear; (iv) be made pursuant to such plans and
specifications as may be required by Lessor, and upon obtaining any required
permits and licenses; (v) be conditioned upon providing to Lessor, at
Lessor's option, a letter of credit, performance bond or other
indemnification in such form and amount as may be satisfactory to Lessor to
protect against liens for labor to be performed and materials to be
furnished; and (vi) be carried out only by persons or entities selected by
Tenant and approved in writing by Lessor, who, if required by Lessor, shall
deliver to Lessor before commencement of the work proof of such workmen's
compensation, comprehensive general liability, and builder's risk insurance
as Lessor may require, with Lessor named as an additional insured, in
amounts, with companies, and in form satisfactory to Lessor, which insurance
shall remain in effect during the entire period during which such alteration,
addition, or improvement will be accomplished. Any such alteration,
addition, or improvement shall be done only at such time and in such manner
as Lessor may designate from time to time. Tenant shall promptly pay the
cost of any such change, addition, or improvement. Upon completion, Tenant
shall furnish Lessor with contractors' affidavits and full and final waivers
of liens. Tenant shall indemnify Lessor for, and hold Lessor harmless
forever from, any and all claims and liabilities of any kind and description
which may arise out of or be connected in any way with any such alteration,
addition, or improvement; provided, however, Tenant shall have no obligation
to indemnify Lessor for the negligence or intentional act of Lessor, its
agents, employees, or contractors. Any increase in property taxes on, or
insurance for, the Building attributable to such change, addition, or
improvement shall be borne by Tenant, and paid by Tenant to Lessor within
thirty (30) days after receipt by Tenant of Lessor's invoice therefor,
accompanied by appropriate evidence thereof. Subject to the provisions of
agreement, if any, pursuant to (iii)
above, all such alterations, additions, and/or improvements shall remain in
or upon and be surrendered with the leased premises at the termination of
this Lease, with the exception of furniture, movable trade fixtures, and/or
trade equipment, and other movable personal property put in at the expense of
Tenant, which items shall remain the property of Tenant.
31. MECHANICS LIENS. Tenant shall pay timely for labor and material
furnished to Tenant or claimed to have been furnished to Tenant in connection
with work of any character performed or claimed to have been performed on the
leased premises, at the direction or with the consent of Tenant, whether such
work was performed or materials furnished before or after the commencement of
the term of this Lease. Tenant shall not permit any mechanics or similar liens
to remain upon the leased premises incident to the foregoing. However, Tenant
may contest the validity of such lien or claim, provided, Tenant shall give to
Lessor such security as Lessor may require reasonably to insure payment and to
prevent any sale, foreclosure or forfeiture of the leased premises by reason of
such non-payment. Upon a final determination of the validity of any such lien
or claim, Tenant shall immediately pay any judgment or decree rendered against
Tenant or Lessor, including, but not limited to, all proper costs and charges,
and shall cause such lien to be released of record without costs to Lessor.
32. LESSOR'S RIGHT TO INSPECT AND REPAIR. Lessor, or its agents, shall
have the right to inspect any part of the leased premises at any reasonable
time. Tenant shall make any repairs, which in Lessor's reasonable opinion, are
necessary for the protection, preservation and maintenance of the leased
premises or any part thereof, other than those repairs which are Lessor's
responsibility pursuant to the provisions of this Lease. If Tenant fails to
commence such repairs promptly and adequately and/or fails to proceed diligently
to completion, Lessor, at its option, may make such repairs, and any
expenditures made in connection with such work shall be due and payable from
Tenant upon demand, plus an amount equal to fifteen percent (15%) of such
expenditures for overhead and supervision.
33. CONDITION OF LEASED PREMISES AND LESSOR'S PROPERTY AT TERMINATION. At
termination of this Lease, Tenant shall quit and deliver the leased premises,
all partitions, improvements, alterations and other property of Lessor to Lessor
in good condition and repair. If Tenant fails to deliver the leased premises
and Lessor's property to Lessor in good condition and repair, Lessor, at its
option, may make such repairs, and any expenditures made in connection with such
work shall be due and payable from Tenant upon demand, plus an amount equal to
fifteen percent (15%) of such expenditures for overhead and supervision.
34. DAMAGE BY FIRE OR OTHER CASUALTY. In the event of any damage caused
to the leased premises by fire or other casualty, if capable of accomplishment,
Tenant shall give immediate written notice to Lessor, or if not capable of
accomplishment, as soon thereafter as is reasonable under the circumstances. If
Tenant does not so notify Lessor, Tenant shall be liable for all consequential
damages directly or indirectly resulting from its failure to so notify Lessor,
in addition to every other right and remedy which Lessor may have pursuant to
this Lease, at law or in equity.
In the event the leased premises shall be damaged by fire or other casualty
to the extent of fifty percent (50%) or less of the cost of replacement of the
leased premises, and such damage is covered by Lessor's insurance, and can be
repaired within one hundred eighty (180) days after the date of the happening of
the event causing the damage, Lessor shall cause the damage to be repaired, at
its expense; provided, however, in the event such damage occurs during the last
two (2) years of the term of this Lease, Lessor shall have no obligation to
cause the damage to be repaired.
In the event the leased premises shall be damaged by fire or other
casualty, and such fire or other casualty shall not be covered by Lessor's
insurance, or the leased premises shall be damaged to the extent of more than
fifty percent (50%) of the cost of replacement of the leased premises, or
cannot be repaired within one hundred eighty (180) days after the date of the
happening of he event causing the damage but can be repaired within two
hundred seventy (270) days after the date of the happening of the event
causing the damage, then in any of such events, Lessor may elect either to
repair or rebuild the leased premises or to cancel this Lease, either of such
elections to be made by the giving of written notice to such effect by Lessor
to Tenant within sixty (60) days after the date of the happening of the event
causing the damage. In the event Lessor gives Tenant written notice of its
intention to repair or rebuild, then this Lease shall remain in force and
effect. In the event Lessor does not give Tenant written notice of its
intention to
repair or rebuild or cancel this Lease within said sixty (60) days, this
Lease may be canceled at the option of either Lessor or Tenant by written
notice by either party to the other within thirty (30) days after the
expiration of Lessor's sixty (60) days' notice period. Cancellation, if
appropriately elected, shall be effective as of the date when the damage
occurred.
In the event fifty percent (50%) or more of the building(s) constituting
the Center of which the leased premises are a part shall be damaged by fire or
other casualty, regardless of whether or not the leased premises are affected,
and such fire or other damage cannot be repaired within one hundred eighty (180)
days after the date of the happening of the event causing the damage, then in
any of such events, Lessor may elect either to repair or rebuild said building
or to cancel this Lease, either of such elections to be made by the giving of
written notice to such effect by Lessor to Tenant within ninety (90) days after
the date of the happening of the event causing the damage. In the event Lessor
shall give written notice to Tenant of its election either to repair or rebuild,
then this Lease shall remain in force and effect. In the event Lessor does not
give written notice to Tenant of its election either to repair or to rebuild or
to terminate this Lease within said ninety (90) days, this Lease may be canceled
at the option of either Lessor or Tenant by written notice by either party to
the other within thirty (30) days after the expiration of Lessor's ninety (90)
days' notice period. Cancellation, if appropriately elected, shall be effective
as of the date when the damage occurred.
As promptly as is practicable after such fire or other casualty and during
any period of repair or reconstruction of the leased premises, Tenant shall
continue the operation of its business within the leased premises to the extent
practicable. If the fire or other casualty, repairing or rebuilding shall
render the leased premises untenantable, in whole or in part, a proportionate
abatement of the rent shall be allowed from the date of the happening of the
event causing the damage until the date Lessor completes the repairs or
rebuilding, or, in the event of cancellation, until the effective date of such
cancellation, said proportionate abatement to be computed on the basis of the
relation which the square foot area of the space in the leased premises is
rendered untenantable bears to the total square foot area of the leased
premises. Nothing in this paragraph shall be construed to permit the abatement,
in whole or in part, of the percentage rent or the other charges provided for in
this Lease, but for the purpose of paragraph 11 the computation of percentage
rent shall be based upon the revised minimum rent as the same may be abated
pursuant to this paragraph.
In the event Lessor is obligated, or exercises its election to repair,
restore or replace. the improvements, it shall proceed with due diligence, and
at its sole cost and expense, to make such repairs, restoration or replacement
in such manner as to approximate original condition, reasonable wear and tear
excepted, excluding therefrom improvements or betterments to the leased premises
constructed or installed by Tenant or at Tenant's direction. In determining
"due diligence," consideration shall be given to fire and other casualties,
governmental restrictions and regulations, strikes, lock-outs, construction
delays beyond the control of Lessor, and acts of God. In no event shall Lessor
be required to repair, restore or replace the items hereinafter set forth to be
repaired, restored, or replaced by Tenant. In the event Lessor is required or
elects to repair, restore, or replace the improvements, Tenant shall proceed
with due diligence, at Tenant's sole cost and expense, to repair, restore or
replace improvements or betterments to the leased premises constructed or
installed by Tenant or at Tenant's direction, its stock-in-trade, fixtures,
furniture, furnishings, equipment, other personal property and signs. Lessor
shall not be responsible for, nor liable to, Tenant for any damages whatsoever
caused by any damage or destruction to the leased premises, nor for any delay in
repairing, restoring or replacing, nor for inability to repair, restore, or
replace, nor for any other cause whatsoever beyond Lessor's control. All
property of Tenant and all property kept, stored or maintained in or upon the
leased premises, adjacent sidewalks, loading areas or other common areas shall
be at the sole risk of Tenant.
35. EMINENT DOMAIN. If the leased premises, or such portion thereof as to
render the balance unsuitable for the use of Tenant, as set forth on the Data
Sheet, shall be taken by condemnation or the right of eminent domain or by
private sale in lieu thereof to the potential condemning authority, either party
shall be entitled to terminate this Lease upon written notice to the other
within thirty (30) days after Tenant has been deprived of possession by such
taking or sale. If any portion of the leased premises is so taken or sold and
if this Lease is not terminated in accordance with the provisions hereof, Lessor
shall proceed to restore and rebuild the remaining
portion thereof so as to make an architecturally complete unit as diligently
as is practicable, and in such event, a proportionate reduction of the
minimum guaranteed rent and reduction of Tenant's proportionate share
pursuant to paragraphs 16 and 27 shall be allowed from the appropriate date,
said proportionate reduction to be computed on the basis of the relation
which the square foot area in the leased premises so taken bears to the total
square foot area of the leased premises. Nothing in this paragraph shall be
construed to permit the abatement or reduction, in whole or in part, of the
percentage rent, or any other charges provided for in this Lease, but for the
purpose of paragraph 11, the computation of percentage rent shall be based
upon the revised minimum rent as the same may be reduced pursuant to this
paragraph.
In the event fifty percent (50%) or more of the building of which the
leased premises are a part shall be taken by condemnation or the right of
eminent domain or by private sale in lieu thereof to the potential condemning
authority, either party shall be entitled to terminate this Lease upon written
notice to the other on or before the date possession is to be surrendered to the
public or quasi-public authority, such termination to be effective as of the
date of surrender of possession.
Tenant shall have the right to make its claim for its unamortized cost of
leasehold improvements to the extent paid for by Tenant, its fixtures and moving
expenses, all to the extent such damages are allowable; provided, any award
thereof can be made separately to Tenant without diminution of any award to be
mad to Lessor. Other than the foregoing, Tenant shall not be entitled to claim,
or have paid to Tenant, any compensation or damages whatsoever for or on account
of any loss, injury, damages or taking of any right, interest or estate of
Tenant, and Tenant hereby relinquishes and hereby assigns to Lessor any rights
to any damages. Subject to the foregoing, Lessor shall be entitled to claim and
have paid to it for the use and benefit of Lessor all compensation and damages
for and on account of or arising out of such taking or condemnation, without
deduction from the amount thereof for and on account of any right, title,
interest or estate of Tenant in or to the leased premises or matter relating
thereto. Tenant, upon request of Lessor, shall execute any and all releases or
other documents as shall be required by such public or quasi-public authority in
accordance with the provisions of this paragraph. In the event Tenant fails to
execute and deliver said releases or other documents within ten (10) days after
said request, Tenant hereby appoints Lessor irrevocably as the attorney-in-fact
of Tenant to execute and deliver said releases or other documents.
36. ASSIGNMENT OR SUBLEASE BY TENANT. Tenant may not, voluntarily or by
operation of law, assign or transfer this Lease, or sublease the whole or any
part of the leased premises, or allow the whole or any part of the leased
premises to be used or occupied by any other person or entity, without the prior
written consent of Lessor. If Tenant is a corporation, then any transfer of
this Lease by merger, consolidation or liquidation, or any change in ownership
of the shares of voting stock so as to result in a change of the present
effective voting control of Tenant by the person, persons and/or entity owning a
majority of said shares on the date of this Lease, shall constitute an
assignment of this Lease, and, as such, shall require the prior written consent
of Lessor. The prior written consent of Lessor shall not be withheld
unreasonably, but only if all of the following conditions are met: (a) proposed
assignee or sublessee is financially responsible; (b) Tenant and any guarantors
hereunder remain liable for the performance of all of Tenant's obligations
pursuant to the Lease; (c) the minimum guaranteed annual rent, effective as of
the effective date of such assignment or subleasing, shall become forthwith the
greater of the following: the minimum guaranteed annual rent then applicable, or
an amount equal to the average of the rent, including percentage rent, payable
for the last two (2) lease years (or shorter period, if so required) immediately
prior to the lease year of the proposed assigning or subleasing; and (d) the use
of the leased premises remains the same as set forth on the Data Sheet, and does
not conflict with an exclusive that Lessor might have granted since the date of
this Lease. The foregoing to the contrary notwithstanding, Lessor shall have a
period of sixty (60) days after notice by Tenant of the proposed assigning or
subleasing to elect to terminate and cancel this Lease without further liability
to Tenant.
37. SALE BY LESSOR; NOVATION. Lessor shall have the right to exhibit
the leased premises to prospective purchasers, and the right to sell or
transfer the leased premises subject to all provisions of this Lease. In the
event of the sale of the leased premises, Lessor shall be and hereby is
relieved of all of the covenants and obligations created hereby other than
obligations arising for the period prior to the date of sale, and as to which
Lessor has received notice from Tenant within thirty (30) days after Tenant
has been notified of such sale. Such
sale shall result automatically in the purchaser assuming and agreeing to
carry out all the covenants and obligations of Lessor herein.
38. SUBORDINATION; ATTORNMENT AND NON-DISTURBANCE. Tenant agrees that
this Lease is, and shall be, subordinate or superior, at the option of Lessor,
to any mortgage, and to all renewals, modifications, consolidations,
replacements, and extensions thereof, to the full extent of the principal sum
secured thereby and interest thereon, to the extent such mortgage affects the
leased premises or the Center; and that such subordination or superiority,
depending on Lessor's election from time to time, shall be effective without any
further act by Tenant. Tenant further agrees that it will attorn to and
recognize any purchaser at a foreclosure sale of such mortgage, or any
transferee who acquires the leased premises by deed in lieu of foreclosure, and
the successors and assigns of such purchasers, as its Lessor for the unexpired
balance of the term of this Lease and extensions if any. Tenant further agrees
that in the event that a mortgage shall succeed to the interest of Lessor under
this Lease, such mortgage shall not be: liable for any act or omission of any
prior lessor, including Lessor; liable for the return of any security deposit;
subject to any off-sets or defenses which Tenant may have against any prior
lessor, including Lessor; bound by any rent or additional rent which Tenant may
have paid for more than the current month to any prior lessor, including Lessor;
bound by any rent or additional rent which Tenant may have paid for more than
the current month to any prior lessor, including Lessor; bound by any amendment
or modification of this Lease made without its consent. Tenant further agrees
to execute any and all further documents or instruments in addition to this
Lease which may be deemed necessary requisite or desired to effectuate said
subordination and attornment. The agreements and obligations of Tenant as set
forth in this paragraph are undertaken by Tenant with the express understanding
for the benefit of Tenant that in the event of foreclosure of any mortgage
covering the leased premises or the Center, or acquisition thereof by deed in
lieu of foreclosure, the mortgagee, its successors and assigns, will not
terminate this Lease, nor join Tenant in summary or foreclosure proceedings,
provided, Tenant shall continue to perform all of the covenants and conditions
of this Lease and shall not be in default hereunder.
39. ESTOPPEL CERTIFICATE. Within ten (10) days after request therefor by
Lessor, or in the event that upon any sale, assignment, financing or
hypothecation of the leased premises or the Center by Lessor, an Estoppel
Certificate shall be required from Tenant, Tenant agrees hereby to deliver in
recordable form an Estoppel Certificate to any proposed mortgagee, lender or
purchaser, or to Lessor, agreeing to and/or certifying as follows;
(a) that this Lease is in full force and effect, and has not been
assigned, modified, supplemented or amended in any way (or if there
has been any assignment, modification, supplement or amendment,
identifying the same);
(b) that this Lease represents the entire agreement between Lessor and
Tenant as to the subject matter hereof (or if there has been any
assignment, modification, supplement or amendment, identifying the
same);
(c) that Tenant has entered into occupancy of the leased premises, and the
date of such entry if such is the case;
(d) the commencement date and termination date of the term or terms, if
determinable at the time;
(e) that all conditions under this Lease to be performed by Lessor have
been satisfied and all required contributions, if any, by Lessor to
Tenant on account of Tenant's improvements have been received (and if
not, what conditions remain unperformed);
(f) that to the knowledge of the signer of such Estoppel Certificate, no
default exists in the performance or observance of any covenant or
conditions in this Lease and that there are no defenses or offsets
against the enforcement of this Lease by Lessor, or specifying in
reasonable detail such default, defense or offset of which the signer
may have knowledge;
(g) the amount of minimum guaranteed annual rent, and any information
reasonably requested as to percentage rent and any other charges to be
paid by Tenant pursuant to the provisions of the Lease;
(h) that Tenant has no charge, lien or claim of offset under the Lease, or
otherwise, against rent or charges due or to become due thereunder, or
stating those claimed by Tenant;
(i) if such be the case, that rent payable under this Lease has not been
paid more than thirty (30) days in advance of the next due date, and
that Tenant will not pay any rent more than thirty (30) days in
advance of any due date, with the exception of any security deposit,
in which case Tenant will state the amount of such security deposit;
(j) that if Tenant is provided appropriate evidence of a duly recorded
mortgage encumbering the leased premises or the Center by the
mortgagee named therein, its successors or assigns ("mortgagee"),
Tenant will not consent to the modification of any material provision
of this Lease, and will not seek to terminate this Lease by reason of
any act or omission to such mortgage and until ninety (90) days shall
have elapsed following the giving of such notice, during which period
such mortgage shall have the right, but not the obligation, to remedy
such act or omission; and
(k) that in the event such mortgagee or any purchaser at a foreclosure
sale acquires title to the leased premises pursuant to the exercise of
any remedy provided for in said duly recorded mortgage, Tenant will
attorn to such mortgagee, or to such other purchaser, as its new
landlord and that this Lease shall continue in full force and effect
as a direct Lease between Tenant and such mortgagee or such other
purchaser, upon the terms, covenants, conditions and agreements set
forth herein; provided, however, such mortgagee, or such other
purchaser, shall not be liable to Tenant for any act or omission of
Lessor.
40. REMEDIES OF LESSOR. In the event that during the term of this Lease
(regardless of the pendency of any bankruptcy, reorganization, receivership,
insolvency or other proceedings, in law, in equity, or before any administrative
tribunal, which has prevented or might prevent compliance by Tenant with the
terms of this Lease):
(a) Tenant shall have failed to pay any installment of rent or any other
charge provided herein, or any portion thereof when the same shall be
due and payable, and the same shall remain unpaid for a period of ten
(10) days after written notice thereof;
(b) Tenant shall have failed to comply with any other provisions of this
Lease and shall not cure such failure within ten (10) days after
Lessor, by written notice, has informed Tenant of such non-compliance;
provided, however, in the case of a default other than payment, which
cannot, with due diligence, be cured within a period of ten (10) days,
Tenant shall have such additional time to cure such default as may
reasonably be necessary, but in no event in excess of sixty (60) days,
provided, Tenant proceeds promptly and with due diligence to cure such
default after receipt of said notice; or
(c) Tenant, or its guarantor, if any, shall become insolvent or unable to
pay its debts as they mature, or suspends business or commences
proceedings under any bankruptcy, reorganization, arrangement,
insolvency, or readjustment of debt, dissolution or liquidation laws,
either of the United States or any state thereof; or
(d) if any such proceedings as set forth in subparagraph (c) of this
paragraph 40 shall be commenced against Tenant, or its guarantor, if
any, and that entity or individual consents thereto, or does not take
affirmative action to have the proceedings dismissed within ten (10)
days, or such proceeding remains undismissed for thirty (30) days, or
an order is entered in any proceeding adjudicating
Tenant, or its guarantor, if any, a bankrupt or insolvent or approving
the petition in such proceeding; or
(e) Tenant, or its guarantor, if any , makes an assignment for the benefit
of creditors, or a receiver or trustee is appointed for Tenant, or its
guarantor, if any, or for any substantial part of a property of
Tenant, or its guarantor, if any; or
(f) Tenant shall have ceased to conduct its normal business operations in
the leased premises, or shall vacate or abandon the leased premises
and leave the same vacated or abandoned for a period of ten (10) days,
excepting vacation or abandonment due to fire or other casualty, or
repairs or improvements by Lessor which necessitate such vacation or
abandonment; or
(g) Tenant shall do or permit to be done anything which creates a lien
upon the leased premises; provided, however, this subparagraph shall
be subject to the provisions of paragraph 31; then Lessor upon five
(5) days' written notice to Tenant may elect either (i) to cancel and
terminate this Lease and this Lease shall not be treated as an asset
of Tenant's estate, or (ii) to terminate Tenant's right to possession
only without canceling and terminating this Lease. Notwithstanding
the fact that initially Lessor elects under (iii) to terminate
Tenant's right to possession only, Lessor shall have the continuing
right to cancel and terminate this Lease by serving five (5) days'
written notice on Tenant of such further election, and shall have the
right to pursue any remedy at law or in equity that may be available
to Lessor.
In the event of election under (ii) to terminate Tenant's right to
possession only, Lessor may, at Lessor's option, enter into the leased premises
and take and hold possession thereof, without such entry into possession
terminating this Lease or releasing Tenant in whole or in part from Tenant's
obligation to pay the rent hereunder for the full stated term. Upon such
reentry, Lessor may remove all persons and property from the leased premises and
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Tenant, without becoming liable for any loss
or damage which may be occasioned thereby. Such re-entry shall be conducted in
the following manner: without resort to judicial process or notice of any kind
in the situation where Tenant has abandoned or voluntarily surrendered
possession of the leased premises; and, otherwise by resort to judicial process.
Upon and after entry into possession without termination of the Lease, Lessor
shall use its best efforts to relet the premises, or any part thereof, for the
account of Tenant, to any person, firm or corporation, other than Tenant, for
such rent, for such time and upon such terms as Lessor, in Lessor's sole
discretion, shall determine, but Lessor shall not be required to accept any
tenant offered by Tenant or to observe any instruction given by Tenant about
such reletting. Lessor may make alterations and repairs, and redecorate the
leased premises to the extent deemed by Lessor necessary or desirable.
Upon such re-entry, Tenant shall be liable to Lessor as follows:
(a) for the unpaid installments of rent and other unpaid sums which were
due prior to such re-entry, which sums shall be payable forthwith;
(b) for the installments of rent and other sums falling due pursuant to
the provisions of this Lease for the periods after re-entry during
which the leased premises remain vacant, which sums shall be payable
as they become due hereunder;
(c) for all expenses, including commissions, attorneys' fees, costs of
alterations, repairs and redecorating, which shall be payable as they
are incurred; and
(d) while the leased premises are subject to any new lease or leases made
pursuant to this paragraph, for the amount by which the monthly
installments payable under such new lease or leases is less than the
monthly installment for all charges payable pursuant to this Lease,
which deficiencies shall be payable monthly.
No such re-entry or taking possession of the leased premises by Lessor
shall be construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to Tenant or unless the termination
thereof be decreed by a court of competent jurisdiction. Notwithstanding
Lessor's election to terminate Tenant's right to possession only, and
notwithstanding any reletting without termination, Lessor, at any timer
thereafter, may elect to terminate this Lease, and to recover, in lieu of the
amounts which would thereafter be payable pursuant to the foregoing, as damages
for loss of the bargain and not as a penalty, an aggregate sum equal to the
amount by which the rental value of the portion of the term unexpired at the
time of such election is less than the entire amount of unpaid minimum
guaranteed rent and all additional charges which would have been payable by
Tenant hereunder for the unexpired portion of the term, which deficiency and all
expenses incident thereto, including commissions, attorney's fees, expenses of
alterations, repairs and redecorating, shall be due to Lessor as of the time
Lessor exercises said election, notwithstanding that the term has not expired;
and if Lessor, after such re-entry, leases said leased premises, then the rent
payable under such new lease shall be conclusive evidence of the rental value of
said unexpired portion of said term.
If this Lease shall be terminated by reason of the bankruptcy or insolvency
of Tenant, Lessor shall be entitled, notwithstanding any other provision of this
Lease or any present or future law, to recover from Tenant or Tenant's estate,
in lieu of the equivalent of the amount of all minimum guaranteed rent and all
other charges payable hereunder, as damages for loss of the bargain and not as a
penalty, an aggregate sum which, at the time of such termination of this Lease,
represents the then present worth of the excess, if any, of the aggregate of the
minimum guaranteed rent and all other charges payable pursuant to the provisions
of this Lease over the aggregate rental value of the leased premises for the
balance of the term, unless any statute or rule of law governing the proceedings
in which such damages are to be proved shall limit the amount of such claim
capable of being so proved, in which case, Lessor shall be entitled to prove, as
and for liquidated damages, by reason of such breach and termination of this
Lease, the maximum amount which may be allowed by or under such statute or rule
of law. Nothing contained herein shall limit or prejudice Lessor's right to
prove and obtain as liquidated damages arising out of such breach or termination
the maximum amount allowed by any such statute or rule of law which may govern
the proceedings in which such damages are to be proved whether or not such
amount be greater, equal to, or less than the amount of excess of all charges
over the rental value referred to above.
If Lessor shall at any time be entitled to rent under this Lease pursuant
to any of the covenants, conditions or agreements of this Lease either (i) after
the termination of this Lease, or (ii) after termination of Tenant's right to
possession without termination of this Lease, Lessor shall recover and Tenant
agrees to pay the minimum guaranteed rent, the percentage rent and any other
charges as provided for in this Lease. For the purpose of determining the
percentage rent, in either case, such rent shall be computed prorata on the
basis of the average sales for the twenty four (24) months immediately preceding
the occurrence of either such event of default or for the expired portion of
this Lease, whichever period is shorter.
If Tenant shall default in the performance of any covenant required to be
performed by it under this Lease, taking into consideration the grace periods
provided in paragraphs 40 (a) and 40 (b), Lessor may perform the same for the
account and at the expense of Tenant, upon giving notice to Tenant of its
intention to do so. If Lessor at any time is compelled to pay, or elects to
pay, any sum of money by reason of the failure of Tenant to comply with any
provision of this Lease, or if Lessor is compelled to incur any expense,
including, reasonable attorney's fees, in instituting, prosecuting or defending
any action or proceeding instituted by reason of any default of Tenant
hereunder, the sum or sums so paid by Lessor shall be due from Tenant to Lessor
on the next date following the payment of such sums upon which a regular monthly
rental payment is due, together with interest, at a rate which is the lesser of
the maximum allowable legal rate or eighteen percent (18%) per annum, from the
respective dates of each such payment. In addition, in the event Lessor
performs construction work on behalf of Tenant, which is Tenants obligation
pursuant to the provisions of this Lease, Lessor shall be entitled to an amount
equal to fifteen percent (15%) of the amount of the costs and expenses of such
construction as payment to Lessor for overhead and supervision, in addition to
the costs and expenses of such construction.
No right or remedy herein conferred upon or reserved to Lessor is intended
to be exclusive of any other right or remedy herein or by law provided, but each
shall be cumulative and in addition to every other right or remedy given herein
or now or hereafter existing at law or in equity or by statute.
41. RESERVATION OF RIGHTS. In addition to all other rights of Lessor and
not in limitation thereof, Lessor expressly reserves the right to use the
outside walls and roof of the leased premises, and the air space above the
leased premises; the right to install, maintain, use, repair and replace the
pipes, ducts, conduits and wires leading through the leased premises in a manner
which will not materially interfere with Tenant's use thereof; and the right,
when so requested by any occupant in the Center, at any time to adjust the space
occupied by said occupant to its business requirements, and in connection
therewith, without any other tenant's consent, to enlarge, expand or contract
the physical space occupied by such occupant, and when so requested by any
occupant, without this Tenant's consent and without restriction, to move or
relocate said occupant within the Center as such occupant's interest may
require. In the event that the Landlord determines that the best interests of
the shopping center will be served by combining Tenant's space with another
space to accommodate a new Tenant or by providing Tenant's space to an adjacent
Tenant for an expansion or for any other reason, Landlord in its sole discretion
shall be entitled to relocate Tenant to a different space within the shopping
center which is approximately the same size as Tenant's premises. Landlord
shall provide a minimum of sixty (60) days notice and all costs of said
relocation shall be paid by Landlord.
Lessor and its agents shall have the right during the term of this Lease to
exhibit the leased premises to prospective purchasers. In addition, Lessor and
its agents shall have the right, during the last three (3) months of the term of
this Lease to place and maintain on the exterior walls of the leased premises
and in the windows thereof reasonable signs advertising the availability of the
leased premises to prospective tenants. The provisions of this paragraph shall
impose no duty or obligation on Lessor contrary to or other than those contained
in the other paragraphs of this Lease.
42. LENDER REQUIREMENTS. If at any time prior to the commencement of the
term of this Lease, Lessor notifies Tenant that a lending institution lending
funds to Lessor in connection with the Center requires a change or changes in
this Lease as a condition of such financing, Tenant agrees, at the request of
Lessor, to promptly execute and deliver to Lessor an amendment to this Lease
incorporating such required changes, provided, that such changes do not change
the financial obligations of Tenant, the size of the building of which the
leased premises are a part or the parking area, the term of this Lease,
construction work (if any) to be performed by Lessor, or involve any other
substantial changes which materially alter the rights or remedies of Tenant
under this Lease.
43. RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by a third party to create the
relationship of principal and agent or of partnership or of joint venture or of
any association whatsoever between Lessor and Tenant, it being expressly
understood and agreed that neither the method of computation of rent nor any
other provisions contained in this Lease nor any act or acts of the parties
hereto shall be deemed to create any relationship between Lessor and Tenant
other than the relationship of Lessor and Tenant.
44. SHORT FORM LEASE. Tenant shall not record this lease without the
written consent of Lessor; however, upon the request of either party hereto, the
other party shall join in the execution of a memorandum or so-called "short
form" of this Lease for the purposes of recordation. Said memorandum or short
form of this Lease shall describe the parties, the leased premises, the term of
this Lease, any special provisions, and shall incorporate this Lease by
reference. Any fees required to be paid in order to record such memorandum or
short form of this Lease shall be paid by the party desiring to record such
memorandum or short form of this Lease.
45. NOTICES; PAYMENTS. Each provision of this Lease or of any applicable
governmental law, ordinance, regulation, or other requirements with reference to
the sending, mailing or delivery of any notice or the making of any payment
shall be deemed to be complied with when and if the following steps are taken:
(a) all rent and other payments required to be made by Tenant or Guarantor
to Lessor hereunder shall be payable to Lessor at the address
hereinbelow set forth, or at such other address as Lessor may specify
from time to time by written notice delivered in accordance herewith;
(b) all payments, if any, required to be made by Lessor to Tenant
hereunder shall be payable to Tenant at the address hereinbelow set
forth, or at such other address as Tenant may specify from time to
time by written notice delivered in accordance herewith;
(c) any notice or document required or permitted to be given or delivered
hereunder shall be in writing, and shall be deemed to be given when
deposited in the United States mail, postage prepaid, certified or
registered mail, return receipt requested, addressed to the respective
parties hereto at the respective addresses set out below, or at such
other addresses as they have theretofore specified by written notice
in accordance herewith:
(1) if to Lessor, to Signal Hills Company, 00X Xxxxxx Xxxxx, Xxxx Xx.
Xxxx, Xxxxxxxxx, 00000.
(2) if to Tenant, to Signal Bank, Xxxxxx X'Xxxxx, 000 Xxxxxx Xxxxx,
Xxxx Xx. Xxxx, XX 00000.
(3) if to Guarantor, to _____________________________________________
_________________________________________________________________
________________________________________________________________.
and shall be deemed to be received, whether actually received or
not, two (2) days after deposit as aforesaid in the United States
mail.
(d) All parties included within the terms "Lessor," "Tenant" and
"Guarantor" respectively, shall be bound by notices given in
accordance with the provisions of this paragraph 45 as if each had
received such notice.
46. IMPORTANCE OF EACH COVENANT. Each covenant and agreement on the part
of one party is understood and agreed to constitute an essential part of the
consideration for each covenant and agreement on the part of the other party.
47. WAIVER. The receipt of rent by Lessor with knowledge of any breach of
this Lease by Tenant or of any default on the part of Tenant in the observance
of performance of any of the obligations or covenants of this Lease shall not be
deemed to be a waiver of any provisions of this Lease. No failure on the part
of Lessor to enforce any obligation or covenant herein contained, nor any waiver
of any right hereunder by Lessor, unless in writing, shall discharge or
invalidate such obligation or covenant or affect the right of Lessor to enforce
the same in the event of any subsequent breach or default.
The receipt by Lessor of any rent or other uses of money or other
consideration paid by Tenant after the termination, in any manner, of Tenant's
right of possession or of this Lease, or terminations, shall not reinstate,
continue or extend the term hereof, or Tenant's right of possession, or in any
manner impair the efficacy of any such notice of termination as may have been
given hereunder by Lessor to Tenant prior to the receipt of any such sum of
money or other consideration, unless so agreed to in writing and signed by
Lessor. Neither the acceptance of keys nor any similar act or thing done by
Lessor during the term of this Lease shall be deemed to be a release of Tenant
from its obligations hereunder, excepting only an agreement, in writing, signed
by Lessor. The exercise of any right herein granted to Lessor to terminate this
Lease or possession thereunder during the term of this Lease shall terminate any
extension or renewal of the term hereof or possession during such extension or
renewal, as the case may be.
48. ACCORD AND SATISFACTION. No payment by Tenant or receipt by Lessor of
a lesser amount than the payments stipulated herein shall be deemed to be other
than on account of the earliest stipulated rent, nor shall any endorsement or
statement on any check or similar payment be deemed an accord and satisfaction,
and Lessor shall accept such check or payment without prejudice to Lessor's
right to recover the balance of such rent
or other required payment, or pursue any other remedy provided in this Lease.
Accord and satisfaction, if any, shall be accomplished by separate document
executed by both parties.
49. BROKERS. Tenant warrants that it has had no dealings with any broker
or agent in connection with the negotiation or execution of this Lease other
than ____________, which obligation shall be that of ________________. Lessor
and Tenant each shall indemnify and hold the other harmless from and against any
loss, liability and damage, fee or charge, so far as any of the aforementioned
arises by reason of services alleged to have been rendered to, at the instance
of, or agreed to by such party, other than arising as the result of services
rendered by _______________, which obligation shall be that of _____________.
50. INVALIDITY. If any part of this Lease or any part of any provision
hereof shall be adjudicated to be void or invalid, then the remaining provisions
hereof not specifically so adjudicated to be invalid, shall be executed without
reference to the part or portion so adjudicated, insofar as such remaining
provisions are capable of execution.
51. GOVERNING LAW. This Lease shall be subject to and governed by the
laws of the State of Minnesota, and all questions concerning the validity hereof
and questions relating to performance hereunder shall be adjudged and resolved
in accordance with the laws of that state, notwithstanding the fact that one or
more of the parties now is or may hereafter become a resident of a different
state.
52. DEFINITION OF LESSOR, TENANT AND GUARANTOR - JOINT AND SEVERAL
LIABILITY -- Intentionally omitted.
53. CORPORATE TENANT OR GUARANTOR. If Tenant or its guarantor, if any, is
a corporation, the persons executing this Lease on behalf of Tenant and such
guarantor hereby covenant, represent and warrant: that Tenant and such
guarantor, as the case may be, is duly incorporated, is in good standing, and is
duly qualified to do business in Minnesota; suitable evidence thereof shall be
supplied to Lessor upon execution of this Lease by the parties hereto; that each
person executing this Lease on behalf of Tenant and such guarantor, as the case
may be, is an officer of Tenant and such guarantor, as the case may be, and that
he or they, as such officers, are duly authorized to execute and deliver this
Lease; and an appropriate certified copy of corporate resolution of
authorization shall be supplied to Lessor upon execution of this Lease by the
Tenant and such guarantor, as the case may be.
54. HEADINGS. The headings of the paragraphs and subparagraphs of this
Lease are for convenience of reference only, do not form a part hereof, and
shall not be interpreted or construed to modify, limit or amplify such
paragraphs and subparagraphs.
55. PARTIES IN INTEREST; NEGATION OF LESSOR'S PERSONAL LIABILITY. This
Lease shall inure to the benefit of and be binding upon the heirs, personal
representatives, successors and assigns of Lessor; and shall inure to the
benefit of, subject to provisions of paragraph 36, and be binding upon the
successors and assigns of Tenant.
Notwithstanding anything to the contrary provided in this Lease, it is
specifically agreed and understood, such agreement being a primary consideration
for the execution of this Lease by Lessor, that if Lessor, its successors or
assigns, is or shall be an individual, tenancy in common, joint venture, or
general or limited partnership, there shall be no personal liability to any
individual in any of the terms, covenants and/or conditions of this Lease, and
that Tenant shall look solely to the equity of Lessor in the Center for the
satisfaction of the remedies of Tenant in the event of any breach of this Lease
by Lessor, such exculpation of liability to be absolute and without any
exception whatsoever.
56. ENTIRE AGREEMENT; EXHIBITS; RIDER. This instrument, including the
Exhibits and any Guaranty, contains the entire agreement of the parties. It may
not be changed orally but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension, or
discharge is sought. The attached Exhibits labeled Exhibits "A" LEGAL
DESCRIPTION, "B" OUTLINE OF LEASED
PREMISES, "C" SIGN CRITERIA, "D" ADDENDUM TO LEASE, "E" RULES AND REGULATIONS
and "G" GUARANTY OF TENANTS OBLIGATIONS UNDER AGREEMENT OF LEASE hereby are
made a part hereof, and supersede and control any conflicting or ambiguous
language in this Lease.
57. SUBMISSION OF LEASE; SECURITY AND DAMAGE DEPOSIT -- Intentionally
omitted.
58. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
59. REPRESENTATION AND/OR PROMISES. It is understood and agreed by the
Tenant that Landlord and Landlord's agent have made no representations or
promises with respect to the premises; that Tenant has made the selection of the
leased property herein based upon his or her own judgement and expressly
disclaims any reliance upon any statements or representations made by Landlord
or Landlord's agent. Tenant and Landlord agree that neither Landlord nor
Landlord's agent have made any representations or promises expressed or implied,
with the intent of inducing Tenant to execute and enter into this Lease expect
as is expressly set forth herein and that no claim or liability or cause for
termination shall be asserted by Tenant against Landlord and Landlord shall not
be liable for reason of any breach of any expressed or implied representations
or promises which are not expressly stated in this written Lease. Tenant
represents and warrants that Tenant has not dealt with any real estate agent or
broker in connection with this Lease other than Landlord's agent.
60. ENTIRE AGREEMENT AND AMENDMENTS. This Lease and the exhibits attached
hereto contain the entire agreement between the parties and no oral agreements
or understandings shall be binding on either of the parties hereto or be
effective to change, modify or terminate this Lease in whole or in part, unless
such agreement is in writing and duly signed by the party against whom
enforcement of such change, modification or termination is sought. This Lease
and the exhibits attached hereto comprise all the covenants, promises,
agreements, conditions and undertakings between Landlord and Tenant concerning
the leased premises herein. Lessee has not relied upon any statements,
representations or promises concerning past, present or future vacancy or
occupancy percentages of the shopping center as a whole, nor of the
demographics, the traffic flow, or the viability of any other Tenant now or
hereafter located in or about the immediate shopping center area. Additionally,
Tenant has not relied upon any economic projections, population growth, tax
projections or any other factors relating to the long term business plans that
are likely to affect Tenant's business operations. Tenant has performed its own
independent investigation and evaluation of the factors unique to its proposed
venture to determine the viability, profitability and stability to continue its
operations to the end of the term of this Lease, without reliance of Landlord or
Landlord's agent(s).
The parties hereto have duly executed this Agreement of Lease effective as
of the date and year first above written.
LESSOR:
SIGNAL HILLS COMPANY
By: /s/ Witness: /s/
---------------------------- -------------------------
Its: Managing Partner
TENANT:
SIGNAL BANK, INC.
By: /s/ Witness: /s/
---------------------------- --------------------------
Its: President
EXHIBIT "A"
LEGAL DESCRIPTION OF CENTER
EXHIBIT "B"
OUTLINE OF LEASED PREMISES
EXHIBIT "C"
SIGN CRITERIA
EXHIBIT "C" - SIGN CRITERIA -- Intentionally omitted.
EXHIBIT "D"
RIDER
ADDENDUM TO LEASE AGREEMENT
PARAGRAPH 5, CONDUCT OF BUSINESS, the first three (3) paragraphs in said
Paragraph 5 shall be deleted in their entirety.
PARAGRAPH 11, PERCENTAGE RENT, said Paragraph 11 shall be deleted in its
entirety.
PARAGRAPH 12, RADIUS, said Paragraph 12 shall be deleted in its entirety.
PARAGRAPH 24, MERCHANT'S ASSOCIATION, said Paragraph 24 shall be deleted in
its entirety and replaced with the words "Tenant shall remit $100.00 annually on
June 1st to Signal Hills Merchant's Association."
PARAGRAPH 25, ADVERTISING, said Paragraph 25 shall be deleted in its
entirety.
PARAGRAPH 52, DEFINITION OF LESSOR, TENANT AND GUARANTOR, said Paragraph 52
shall be deleted in its entirety.
PARAGRAPH 57, SUBMISSION OF LEASE; SECURITY AND DAMAGE DEPOSIT, said
Paragraph 57 shall be deleted in its entirety.
EXHIBIT "C", SIGN CRITERIA, said exhibit shall be deleted in its entirety.
Signal Bank shall not have the option to install a sign on the exterior of their
space.
Tenant shall accept leased premises in an "AS IS" condition.
LANDLORD: /s/
-------------------------
TENANT: /s/
---------------------------
EXHIBIT "E"
TO AGREEMENT OF LEASE, DATED 1-29-93 , BETWEEN SIGNAL HILLS COMPANY, AS
LESSOR AND SIGNAL BANK, INC., AS TENANT, COVERING LEASED PREMISES SITUATED IN
THE SIGNAL HILLS SHOPPING CENTER.
RULES AND REGULATIONS
TENANT AGREES THAT IT WILL:
1. Not permit the leased premises to be used in any way which will
injure the reputation of the business being conducted therein, or injure the
reputation of the Center, or may be a nuisance or annoyance to the tenants of
the Center or of the neighborhood, including, but not limited to, noise by
the playing of any musical instrument or radio or telephone; use of a
microphone or loud speaker; use of flashing lights or search lights; any
other equipment which, in the judgement of Lessor, might cause disturbance,
impairment, or interference with the use or enjoyment of the Center;
2. Not display and merchandise outside the leased premises or in any
way obstruct the sidewalks or common areas adjacent thereto, and will not
place garbage, rubbish, trash, merchandise containers, or other incidentals
to the business outside the leased premises;
3. Keep all trash, refuse, garbage and waste materials in the type of
container specified by Lessor, and such trash, refuse, garbage and waste
material will be placed and prepared for collection in the manner and at the
times and places specified by Lessor;
4. Not burn trash, refuse, garbage or waste materials on leased premises;
5. Not permit deliveries of any kind through the front entrance of the
leased premises, except where no other entrance to the leased premises is
available, and if such be the case, at the times designated by Lessor;
6. Use its best efforts to cause all trucks and servicing the leased
premises to load and unload prior to the hours of opening for business to the
general public of the stores of other tenants in the Center;
7. Observe the following rules and regulations relating to parking: In
the event particular areas are designated by lessor as employee parking areas,
all automobiles, trucks, and other vehicles of Tenant; its officers, employees,
agents, sublessees, licensees, concessionaires and contractors (hereinafter
"Tenant, et al") shall be parked only in such designated areas. Tenant shall
furnish Lessor with automobile license numbers of Tenant, et al, within five (5)
days after taking possession of the leased premises, and shall thereafter notify
Lessor of any changes within (5) days after such changes occur. In the event
Tenant, et al, fail to park their vehicles in designated parking areas as
foresaid, then Lessor, at its option, may charge Tenant, and Tenant shall pay to
Lessor, as additional rent, Twenty-five Dollars ($25.00) per day per car parked
in any area other than those designated, or such vehicles may be removed
therefrom by Lessor or its agents and stored elsewhere at Tenant's expense
without liability of Lessor for such removal;
8. Not solicit business in the parking lot or other common areas, and
will not distribute any handbills or other advertising matter on automobiles
parked in the parking area or in other common areas without written consent of
Lessor;
9. Not use the plumbing facilities for any other purpose than that for
which they are constructed, and no foreign substance of any kind will be thrown
therein, and will pay the expense of any breakage, stoppage, or damage resulting
from the violation of this provision by Tenant, its employees, agents, invitees,
sublessees, licensees, concessionaires or contractors;
10. Not keep any flammable or combustible material in, on or about the
leased premises except as may be permitted to be kept in such locations and
containers as specified by Lessor from time to time in accordance with the
recommendations or regulations of Lessor's insurance carrier, underwriter or
appropriate governmental authority;
11. Not permit the leased premises to be used for lodging purposes;
12. Not permit any auction sale, fire sale, bankruptcy sale, and/or
going-out-of-business sale, or similar types of sensational promotions to be
conducted in the leased premises or from the leased premises;
13. Not operate or conduct in or from the leased premises a so-called
"discount," "cut-rate" or "surplus" store; and
14. Not conduct catalog sales in or from the leased premises except of
merchandise which Tenant is permitted to sell "over-the-counter" in or at the
leased premises pursuant to the provisions of the Lease.
Delivery by Lessor and receipt by Tenant of the foregoing Rules and
Regulations, numbers 1 through 14, inclusive, are acknowledged hereby.
LESSOR:
SIGNAL HILLS COMPANY
By /s/
-------------------------------
Its Managing Partner
TENANT:
SIGNAL BANK, INC.
By /s/
-------------------------------
Its President
-------------------------------
