Exhibit 10.03
AMENDED AND RESTATED LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT (the "LEASE") is made and entered
into as of December __, 1995, by and between Grandchildren's Realty Alternative
Management Program I Limited Partnership, a Minnesota limited partnership
("LANDLORD"), and LaserMaster Corporation, a Minnesota corporation ("TENANT").
RECITALS:
A. Landlord is the owner of the Project (as hereinafter defined).
B. Tenant and Landlord's predecessors in interest are parties to that
certain Building Lease dated April 3, 1987, as amended (the "ORIGINAL LEASE").
C. Landlord and Tenant desire to amend and restate the Original Lease in
its entirety.
D. Tenant desires to lease from Landlord and Landlord desires to lease to
Tenant the Premises (as hereinafter defined), subject to and in accordance with
the terms and conditions set forth herein.
AGREEMENTS:
NOW, THEREFORE, for good, fair and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant hereby covenant
and agree to amend and restate the Original Lease in its entirety as follows as
of the Commencement Date (as hereinafter defined):
ARTICLE 1.
DEFINITIONS
The following words and terms shall have the following meanings ascribed to
them:
1.1. "ACCELERATED AMOUNT" shall have the meaning ascribed to such term in
Section 11.2(a) hereof.
1.2. "ADDITIONAL PREMISES" shall mean those portions of the Project
depicted as such on Exhibit "C" attached hereto, consisting of 24,501 square
feet.
1.3. "ADDITIONAL PREMISES LEASES" shall mean any current lease or
occupancy agreement to which Landlord is a party with respect to any portion of
the Additional Premises.
1.4. "ADDITIONAL RENT" shall mean all costs, expenses, charges and other
amounts owed by Tenant to Landlord hereunder, other than Base Rent. Additional
Rent shall include Tenant's Share of Impositions and Operating Expenses, as well
as any cost incurred by Landlord in fulfilling Tenant's obligations hereunder.
Additional Rent shall be due and payable on the earlier of the date Landlord
advances funds or demand, unless specifically provided to the contrary in this
Lease.
1.5. "AWARD" shall have the meaning ascribed to such term in Section 10.1
hereof.
1.6. "BANKRUPTCY CODE" shall mean the United States Bankruptcy Code, as
amended.
1.7. "BASE RENT" shall have the meaning ascribed to such term in Section
3.1 hereof.
1.8. "COMMENCEMENT DATE" shall mean January 1, 1996.
1.9. "COMMON AREAS" shall mean, to the extent applicable, all parking
areas, driveways, entrances, exits, loading docks, pick-up stations, sidewalks,
ramps, landscaped areas, exterior stairways, public elevators, escalators,
hallways, lobbies, and other areas and improvements provided by Landlord for the
common use of tenants of the Project, the guests, customers, and employees of
tenants of the Project, and all other portions of the Project that are not
leased to Tenant or other tenants of the Project or otherwise leasable,
including mechanical rooms and bathrooms available to more than one tenant.
1.10. "DEFAULT" shall mean an event which but for the giving of notice or
passing of time, or both, would constitute an Event of Default hereunder.
1.11. "DEFAULT RATE" shall mean the annual rate of interest of eighteen
percent (18%), or such lesser amount as may be the maximum amount permitted by
applicable law. In the event that Rent is not paid when due, the amount of Rent
not so paid shall bear interest at the Default Rate from the date due until the
date paid.
1.12. "EFFECTIVE DATE" shall have the meaning ascribed to such term in
Section 2.6 hereof.
1.13. "ENVIRONMENTAL REGULATION(S)" means any law, rule, regulation or
permit relating to the environment, human health or safety now existing or
hereafter enacted.
1.14. "EVENT OF DEFAULT" shall have the meaning ascribed to such term in
Section 11.1 hereof.
1.15. "EXCESS CASH AVAILABILITY" shall mean for the applicable period cash
on hand plus cash available and permitted to be drawn under any existing credit
facility during such period less the sum (without duplication) of (i) the
provision for income taxes for such period for the proposed subtenant and its
subsidiaries, (ii) accrued expenses and charges for such period for
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the proposed subtenant and its subsidiaries, and (iii) capital expenditures by
the proposed subtenant and its subsidiaries during such period.
1.16. "FINANCIAL TEST" shall mean either (a) the proposed subtenant shall
have total stockholder equity of not less than $45 million and Excess Cash
Availability of not less than $15 million (all as determined by Landlord in
accordance with GAAP), or (b) for eight (8) consecutive fiscal quarters
preceding the effective date of a proposed sublease the proposed subtenant shall
have all of the following (as determined by Landlord in accordance with GAAP):
(i) Excess Cash Availability of not less than $4 million, and (ii) pre-tax net
income of not less than $1 million (accounting for inventory on a first in -
first out basis).
1.17. "GAAP" shall mean generally accepted accounting principles as in
effect in the United States on the Commencement Date applied on a consistent
basis.
1.18. "GOVERNMENTAL AUTHORITY" means any federal, state, or local
governmental body including elected bodies, departments, agencies, commissions,
boards or instrumentalities having or purporting to have jurisdiction over
Landlord, Tenant, the Project, the Premises or the business conducted or to be
conducted from the Project or the Premises.
1.19. "HAZARDOUS SUBSTANCES" means any substance, pollutant or
contaminant, as those terms are now or hereafter defined in any Environmental
Regulation, and specifically includes, but is not limited to, asbestos,
asbestos-containing materials, petroleum, or petroleum-based products,
formaldehyde, and polychlorinated biphenyls.
1.20. "IMPOSITIONS" shall mean all taxes of every kind and nature imposed
upon or assessed of or against Landlord with respect to the Project, Tenant or
any portion of the Project or interest therein, all charges for any easement or
agreement maintained for the benefit of any portion of the Project, all general
and special assessments, levies, permits, inspection and license fees, all water
and sewer rents and charges and all other public charges, levies or taxes,
whether of a like or different nature, even if unforeseen or extraordinary,
imposed upon or assessed of or against Landlord with respect to the Project,
Tenant or any portion of the Project or interest therein, together with any
penalties or interest on any of the foregoing to the extent Tenant has not
provided Landlord with funds with respect to the payment of such taxes and
charges under Section 3.2(a) hereof.
1.21. "IMPROVEMENTS" shall mean all buildings, structures and improvements
now located or hereafter constructed on the Land and all fixtures and equipment
attached to, forming a part of and necessary for the operation of such
buildings, structures and improvements.
1.22. "INSURED CASUALTY" shall have the meaning ascribed to such term in
Article 9 hereof.
1.23. "LAND" shall mean that certain real property located in Hennepin
County, Minnesota and legally described on Exhibit A attached hereto, together
with all easements and rights benefitting or appurtenant to such real property.
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1.24. "LANDLORD" shall mean Grandchildren's Realty Alternative Management
Program I Limited Partnership, a Minnesota limited partnership, and its
successors and assigns.
1.25. "LEASE TERM" shall mean the period from the Commencement Date
through and including December 31, 2011.
1.26. "LEASE YEAR" shall mean a full calendar year, provided that the last
Lease Year shall be determined in accordance with Section 2.5 hereof.
1.27. "LEGAL REQUIREMENTS" shall mean all present and future laws,
statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules,
regulations and requirements pertaining to the Premises including any applicable
insurance, environmental, zoning or building, use and land use laws, ordinances,
rules or regulations and all covenants, restrictions and conditions now or
hereafter of record which may be applicable to any of the Premises, or to the
use, manner of use, occupancy, possession, operation, maintenance, alteration,
construction, repair or reconstruction of any of the Premises.
1.28. "OPERATING EXPENSES" shall mean all costs and expenses of owning,
operating, maintaining, repairing, restoring and replacing all or any portion of
the Project. Operating Expenses shall include all costs and expenses of
protecting, operating, managing the Project (including attorneys' and other
professional fees, except those related to negotiation or enforcement of
leases), repairing, repaving, lighting, cleaning, painting, striping, insuring,
removing of snow, ice and debris, police protection, security and security
patrol, fire protection, regulating traffic, inspecting, repairing and
maintaining of machinery and equipment used in the operation of the Common
Areas, including heating, ventilating and air conditioning machinery and
equipment, depreciation of machinery and equipment providing heating,
ventilating and air conditioning for the interior Common Areas, cost and expense
of inspecting, maintaining, repairing and replacing storm and sanitary drainage
systems, sprinkler and other fire protection systems, electrical, gas, water,
telephone and irrigation systems, cost and expense of maintaining, repairing and
replacing the Project and the exterior of the buildings in the Project,
including, but not limited to floors, roofs, skylights, elevators, walls, stairs
and signs, cost and expense of installing, maintaining and repairing burglar or
fire alarm systems, if installed, cost and expense of landscaping and shrubbery,
expense of utilities, property management, administrative and overhead costs.
The following shall not be included in Operating Expenses: (a) interest or
payments on any financing for the Project; (b) any expenses resulting from the
negligence of the Landlord, its agents or employees; (c) any items for which
Landlord is reimbursed by insurance; (d) the cost of providing improvements
within or services to or allowances for the benefit of the premises and for the
individual use of any other tenants in the Project at any time (as distinguished
from tenants generally); (e) any other cost or expense otherwise paid by Tenant
under the Lease; (f) leasing commissions; (g) property management fees in an
amount in excess of five percent (5%) of Rent in the case of a property manager
which is not affiliated with Landlord and an amount in excess of three percent
(3%) of Rent in the case of a property manager which is affiliated with
Landlord; and (h) fines and penalties incurred other than as a result of a
Default.
1.29. "ORIGINAL LEASE" shall have the meaning ascribed to such term in
Recital B
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hereof.
1.30. "PERMITTED USE" shall mean the use of the Premises as an office,
warehouse and light manufacturing facility in compliance with all Legal
Requirements and the terms and conditions of this Lease.
1.31. "PREMISES" shall mean that portion of the Project depicted as such
on Exhibit "C" attached hereto, consisting of 163,276 square feet, together with
such portions of the Additional Premises which, pursuant to the provisions of
Section 2.6 hereof, are deemed to become part of the Premises.
1.32. "PRESENT VALUE" shall have the meaning ascribed to such term in
Section 11.2(f) hereof.
1.33. "PROHIBITED CASUALTY" shall have the meaning ascribed to such term
in Article 9 hereof.
1.34. "PROHIBITED TAKING" shall have the meaning ascribed to such term in
Section 10.1 hereof.
1.35. "PROJECT" shall mean the collective reference to the Land and
Improvements, which consist of the Shadyview Business Center located at 7100
through 0000 Xxxxx Xxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxx consisting of two separate
buildings, one of which contains approximately 67,255 square feet and the other
which contains approximately 120,522 square feet. The aggregate square footage
of the buildings comprising the Project is 187,777.
1.36. "RENT" shall mean the sum of Base Rent and Additional Rent.
1.37. "RULES" shall mean those rules and regulations adopted from time to
time by Landlord with respect to the use and care of the Project.
1.38. "STATE" shall mean the State in which the Project is located.
1.39. "TAX CODE" shall mean the Internal Revenue Code of 1986, as amended.
1.40. "TENANT" shall mean LaserMaster Corporation, a Minnesota
corporation.
1.41. "TENANT'S SHARE" shall mean a percentage determined by dividing the
number of square feet contained in the Premises by 187,777. As of the
Commencement Date and without giving effect to the provisions of Section 2.6
hereof, Tenant's Share is eighty seven percent (87%).
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ARTICLE 2.
DEMISE; COMMON AREAS; TERM; LEASE YEAR
2.1. DEMISE. Subject to the terms and conditions of this Lease, Landlord
leases to Tenant and Tenant hereby leases from Landlord, the Premises. Landlord
reserves unto itself the right to grant easements across, under or through the
Land, which do not materially interfere with Tenant's access to or use of the
Premises.
2.2. USE OF COMMON AREAS. Use by Tenant of the Premises shall include the
non-exclusive use, in common with others, of the Common Areas, and such use
shall be subject to the provisions of this Lease.
2.3. CONTROL OF COMMON AREAS. The Common Areas shall be subject to the
exclusive control and management of Landlord. Landlord shall have the right to
establish, modify and enforce the Rules with regard to the Common Areas, as the
Rules may be reasonably modified by Landlord from time to time upon written
notice to Tenant, and Tenant agrees to cooperate with Landlord in enforcing the
Rules. Landlord shall have the right to alter the Common Areas and to construct
additions to or additional buildings in the Project resulting in a diminution of
Common Areas. Landlord shall have the right to construct and operate lighting
and signs on all the Common Areas and improvements, to police the same, to
change the area and location of parking areas and other common facilities, to
restrict parking by Tenant, its agents and employees, to close temporarily or
permanently the parking areas or facilities, and to perform other acts in and to
the areas and improvements as Landlord may deem advisable in its sole
discretion, provided such actions do not materially interfere with Tenant's
access to or use of the Premises.
2.4. LEASE TERM. The initial term of this Lease shall be for the Lease
Term, unless terminated sooner pursuant to any of the provisions hereof. The
Lease Term and Tenant's obligation to pay Rent shall commence on the
Commencement Date.
2.5. LEASE YEAR. The first Lease Year shall begin on the Commencement
Date and shall end on December 31, 1996. The second Lease Year shall begin on
January 1, 1997, and each Lease Year thereafter during the Lease Term shall
consist of a full calendar year, provided that if the Lease Term expires on a
date other than December 31, the period of time from January 1 of that calendar
year until such expiration date shall be construed as a Lease Year.
2.6. ADDITIONAL PREMISES. The Additional Premises Leases are identified
on the rent roll with respect to the Additional Premises attached hereto as
Exhibit "D". Landlord covenants and agrees with Tenant that provided no Default
or Event of Default shall have occurred, Landlord will not without the express
written consent of Tenant extend the term of any Additional Premises Lease
beyond that set forth on Exhibit "D" attached hereto. Tenant covenants and
agree with Landlord upon delivery by Landlord to Tenant of written notice that
all or any portion of the Additional Premises are vacant and no longer occupied
by any tenant under any Additional Premises Leases or such tenant's assignees,
subtenants or licensees, the portion of the Additional Premises identified in
such notice shall, without further action of Landlord or Tenant, automatically
become part of and be added to the Premises as of the date of such notice
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(the "EFFECTIVE DATE"). On each applicable Effective Date, Tenant's Share and
Base Rent shall increase based on the number of square feet for those portions
of the Additional Premises identified in such notice.
ARTICLE 3.
RENT AND OTHER CHARGES
3.1. BASE RENT.
Tenant shall pay as base rent (the "BASE RENT") the amount set forth in
Exhibit "B" attached hereto multiplied by the amount of square feet contained in
the Premises, as the same may be increased in accordance with the provisions of
Section 2.6 hereof. Base Rent shall be payable in advance in equal monthly
installments commencing on the Commencement Date and continuing thereafter on
the first day of each subsequent calendar month. Base Rent for any period
during the Lease Term which is less than one (1) month shall be a pro-rata
portion of the applicable monthly installment.
3.2. PAYMENT OF IMPOSITIONS.
(a) Tenant shall deposit with Landlord monthly (as a deposit and not a
payment) commencing on the Commencement Date and continuing thereafter on the
first day of each subsequent calendar month an amount equal to Tenant's Share of
one-twelfth of the annual Impositions estimated by Landlord and communicated by
Landlord to Tenant in writing so that Landlord shall have sufficient funds to
pay the Impositions on the first day of the month preceding the month in which
they become due. To the extent within Tenant's control, Tenant further agrees
to cause all bills, statements or other documents relating to Impositions to be
sent or mailed directly to Landlord. Provided Tenant has deposited sufficient
funds with Landlord pursuant to this Section 3.2(a), Landlord shall pay, when
due, such Impositions as may be due out of the funds so deposited with Landlord.
If at any time and for any reason the funds deposited with Landlord are or will
be insufficient to pay such Impositions as may then or subsequently be due,
Landlord shall notify Tenant and Tenant shall deposit an amount equal to such
deficiency with Landlord within seven (7) days after such notice.
Notwithstanding the foregoing, nothing contained herein shall cause Landlord to
be obligated to pay any amounts in excess of the amount of funds deposited with
Landlord pursuant to this Section 3.2(a). If amounts collected by Landlord
under this Section 3.2(a) exceed amounts necessary in order to pay Impositions,
Landlord shall retain such excess payments and Tenant shall receive a credit for
such excess amount toward the next payments due for such Impositions. Should
Tenant fail to deposit with Landlord sums sufficient to pay such Impositions in
full at least thirty (30) days before delinquency thereof Landlord may, at
Landlord's election, but without any obligation so to do, advance any amounts
required to make up the deficiency, which advances, if any, shall be treated as
Additional Rent. Upon expiration of the Lease Term, the sums held by Landlord
under this Section 3.2(a) shall be allocated between Landlord and Tenant as of
such expiration date based upon the periods with respect to which such sums are
due and payable, and Landlord shall be entitled to retain such portion as
represents amounts due
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and payable up through such expiration date, and the balance shall be returned
to Tenant. In the event this Lease is terminated due to an Event of Default, all
sums held by Landlord under this Section 3.2(a) shall be retained by Landlord.
(b) Subject to the following conditions, Tenant shall have the right, at
Tenant's sole cost and expense, to contest or object in good faith to any
Imposition, but such right shall not be deemed or construed in any way as
relieving, modifying or extending Tenant's covenant to pay any such Imposition
at the time and in the manner provided in this Section 3.2: (i) Landlord has
given Tenant prior written notice that Landlord does not intend to contest or
object to such Imposition; (ii) Tenant has given prior written notice to
Landlord of Tenant's intent so to contest or object to an Imposition; (iii)
Tenant shall demonstrate to Landlord's satisfaction that the legal proceedings
shall operate conclusively to prevent the sale of the Project, or any part
thereof; (iv) if Tenant has not deposited with Landlord all amounts required to
be deposited under Section 3.2(a) hereof, Tenant shall furnish a good and
sufficient bond or surety in the amount of such Impositions, or other evidence
reasonably satisfactory to Landlord of Tenant's ability to pay such Impositions,
which are being contested plus any interest and penalty which may be imposed
thereon and which could become a lien against the Project or any part thereof
and otherwise in an amount and form acceptable to Landlord; (v) no Default or
Event of Default has occurred; and (vi) Tenant covenants and agrees that any
increase in Impositions resulting from such contest or objection shall be paid
by Tenant upon demand.
(c) Landlord shall use all reasonable efforts to obtain the benefit of the
provisions of any statute or ordinance permitting any real property assessment
for public betterments or improvements to be paid over the maximum period of
time allowed by the relevant taxing authority.
3.3. UTILITIES; OPERATING EXPENSES.
(a) Tenant shall pay or cause to be paid when due, all charges, fees,
assessments and related costs for public utility services (including, without
limitation, gas, water, sewer, electricity, light, power, telephone, cable and
other communication services and refuse and garbage collection) used, rendered
or supplied in connection with the Premises throughout the Lease Term.
(b) Tenant shall deposit with Landlord monthly (as a deposit and not as a
payment) an amount equal to Tenant's Share of one-twelfth of the annual
Operating Expenses estimated by Landlord and communicated by Landlord to Tenant
in writing so that Landlord will have sufficient funds to pay Operating Expenses
on the first day of the month preceding the month in which they become due.
Provided Tenant has deposited sufficient funds with Landlord pursuant to this
Section 3.3(b), Landlord shall pay, when due, such Operating Expenses as may be
due out of the funds so deposited with Landlord. If at any time and for any
reason the funds deposited with Landlord are or will be insufficient to pay such
amounts as may then or subsequently be due, Landlord shall notify Tenant and
Tenant shall within seven (7) days after such notice deposit an amount
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equal to such deficiency with Landlord. Notwithstanding the foregoing, nothing
contained herein shall cause Landlord to be obligated to pay any amounts in
excess of the amount of funds deposited with Landlord pursuant to this Section
3.3(b). If amounts collected by Landlord under this Section 3.3(b) exceed
amounts necessary in order to pay Operating Expenses, Landlord shall retain such
excess payments and Tenant shall receive a credit for such excess amount toward
the next payments due for such Operating Expenses. Should Tenant fail to
deposit with Landlord sums sufficient to pay such Operating Expenses in full at
least thirty (30) days before delinquency thereof Landlord may, at Landlord's
election, but without any obligation so to do, advance any amounts required to
make up the deficiency, which advances if any, shall be treated as Additional
Rent. Upon expiration of the Lease Term, the sums held by Landlord under this
Section 3.3(b) shall be allocated between Landlord and Tenant as of such
expiration date based upon the periods with respect to which such sums are
incurred, and Landlord shall be entitled to retain such portion as represents
amounts incurred through such expiration date, and the balance shall be returned
to Tenant. In the event this Lease is terminated due to an Event of Default,
all sums held by Landlord under this Section 3.3(b) shall be retained by
Landlord.
(c) Within one hundred twenty (120) days after the end of each Lease Year,
Landlord shall provide Tenant with a statement of the actual Operating Expenses
for the preceding Lease Year, and if Tenant has overpaid or underpaid its share
of the actual Operating Expenses for the preceding Lease Year, Tenant or
Landlord shall pay the other, as appropriate, the amount of such overpayment or
underpayment, as the case may be, within thirty (30) days after the statement of
actual Operating Expenses is delivered.
(d) After Landlord has provided Tenant with a statement of the actual
Operating Expenses for any Lease Year, Tenant, at its expense, shall have the
right for a period of ninety (90) days after receipt of such statement, to audit
Landlord's books and records relating to the actual Operating Expenses for the
period covered by such statement. If Tenant fails to exercise its audits rights
within said ninety (90) day period, Landlord's statement of actual Operating
Expenses shall be deemed binding on Tenant. If any audit shall prove that Tenant
has overpaid in share of Operating Expenses, the amount of such overpayment
shall be applied as a credit against the next installment(s) of Additional Rent
due hereunder or refunded if Landlord is holding any such overpayment at the
expiration of the Lease Term. While Tenant shall bear the costs of any audit
conducted for or by it, Landlord hereby agrees to reimburse Tenant for the
reasonable cost of such audit with respect to any Lease Year if said audit shall
prove that actual Operating Expenses for the period of time covered by such
audit had been overstated by five percent (5%) or more. Tenant may not request
such an audit more than once for any particular Lease Year (or a portion
thereof).
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3.4. LOCATION OF PAYMENTS. Tenant shall for the entire Lease Term pay
Rent to Landlord as herein provided at the address for Landlord set forth in
Section 13.8 hereof or at such place as Landlord may from time to time in
writing designate.
3.5. NO SETOFF. All amounts due by Tenant to Landlord hereunder,
including Base Rent and Additional Rent, shall be paid without any setoff,
counterclaim or deduction whatsoever or any prior demand. The covenant to pay
Rent, whether Base Rent or Additional Rent, is hereby declared to be an
independent covenant on the part of Tenant to be kept and performed and no act
or circumstance whatsoever shall release, relieve or otherwise excuse Tenant of
the obligation to pay Rent.
ARTICLE 4.
ALTERATIONS AND ADDITIONS
4.1. ALTERATIONS.
(a) Tenant will not make or allow to be made any alterations, additions or
deletions in or to the Premises without the prior written consent of Landlord,
except as set forth in Section 4.1(b) hereof. Such alterations, physical
additions, or improvements shall become part of the Premises and the property of
the Landlord. It is the responsibility of Tenant to restore the Premises to the
condition that existed when Tenant first took possession (ordinary wear and tear
excepted), as such condition may have been altered by Landlord or Tenant with
the prior express written approval of Landlord, if Landlord so requests.
(b) Tenant may, at its sole cost and expense, make alterations or additions
to the Premises without Landlord's prior consent, provided (i) such alterations
or additions do not affect the structural integrity of the Improvements
comprising the Premises, adversely affect any of the mechanical or electrical
systems of the Improvements comprising the Premises, or alter in any way the
intended or current use of the Premises; (ii) the cost of any such alteration or
addition does not exceed $50,000 in any one instance or $150,000 in any single
Lease Year; (iii) such alterations or additions are performed by duly licensed
and qualified contractors in accordance with all Legal Requirements and in a
good and workmanlike manner; (iv) such alterations or additions are completed
prior to the expiration of the Lease Term; (v) such alterations or improvements
do not reduce the value of the Project or the Premises; (vi) such alterations
and improvements are made pursuant to plans and specifications delivered to
Landlord in advance; (vii) no Default or Event of Default has occurred and is
continuing, and (viii) no such alteration or addition is made or commenced
within the last twelve (12) months of the Lease Term.
4.2. CONSTRUCTION LIENS. Tenant shall pay when due, and indemnify,
protect, defend and hold Landlord harmless from, all claims for labor or
materials furnished or alleged to have been furnished to Tenant for use in the
Premises, which claims are or may be secured by any lien against the Premises or
any interest therein in accordance with applicable law. Tenant shall not permit
any liens to be filed against the Premises or any interest therein and shall
immediately
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obtain a release from any lien so filed or remove the same by bond in form and
content satisfactory to Landlord. Nothing in the Lease shall be construed in
any way as constituting the consent or request of Landlord to any contractor,
subcontractor, laborer, or materialman for the performance of any labor or the
furnishing of any materials for any alteration, addition, improvement or repair
to the Premises, nor as giving Tenant any right, power or authority to contract
for or permit the rendering of services or the furnishing of materials that
would give rise to the filing of a lien against the Premises.
4.3. REMOVAL OF IMPROVEMENTS. All alterations, additions and other
improvements by Tenant shall become the property of Landlord and shall not be
removed from the Premises, unless request is made by Landlord to Tenant to
remove those alterations, additions and other improvements which were made
without Landlord's approval where such approval was required under this Lease.
All moveable trade fixtures, furniture, furnishings and signs installed in the
Premises by Tenant and paid for by Tenant, shall remain the property of Tenant
and may be removed upon the expiration of the term of this Lease; provided that
any of such items as are affixed to the Premises and require severance may be
removed only if Tenant repairs any damage caused by such removal and that Tenant
shall otherwise comply with all of the terms, conditions and covenants to be
performed by Tenant under this Lease with respect to such removal. If Tenant
fails to remove such items from the Premises by the expiration of the Lease Term
or earlier termination of this Lease, all such trade fixtures, furniture,
furnishings and signs shall become the property of Landlord, unless Landlord
elects to require their removal, in which case Tenant shall, at its sole cost
and expense, promptly remove the same and restore the Premises to its condition
on the date of this Lease. The covenants contained in this Section shall
survive the expiration Lease Term or earlier termination hereof.
4.4. SIGNS. Tenant covenants and agrees that it shall not, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed, paint, erect or install any signs, lettering or placards or
make any additions, alterations or changes to the exterior of the Premises.
Upon expiration of the Lease Term or the earlier termination of the Lease,
Tenant shall at the request of Landlord remove such signs and shall promptly
restore the surfaces to which the signs were affixed to their former condition.
The obligation set forth in the preceding sentence shall survive the expiration
of the Lease Term or the earlier termination hereof.
ARTICLE 5.
REPAIRS AND MAINTENANCE
5.1. TENANT'S OBLIGATIONS. Tenant is solely responsible for causing the
Premises to be kept in a clean, safe, sanitary and first class condition and
state of repair in accordance with all Legal Requirements. In this regard and
by way of example, Tenant shall keep the exterior of the Premises and the
foundations, roof, and structural portions of the walls and roofs of the
Improvements comprising the Premises in good condition and repair; Tenant shall
also keep the Premises and every part thereof and any fixtures, facilities or
equipment contained therein, in good condition and repair, including, but not
limited to, exterior doors, window frames and all portions of the store front
area(s), columns, nonstructural walls, and partitions, the heating, air-
conditioning, ventilating, electrical, lighting, plumbing and sewer systems, and
shall make
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any replacements thereof and of all broken and cracked glass which may become
necessary during the Lease Term. Tenant shall provide for all scheduled
servicing of the Premises and maintain necessary maintenance contracts to assure
proper maintenance of the Premises. As used in this Section, the term "REPAIRS"
shall include replacements and other improvements as are necessary to maintain
the Premises as is required under this Lease. If Landlord is required to make
repairs by reason of Tenant's acts or omissions or those of Tenant's employees,
agents, invitees, licensees or contractors, Landlord shall have the right, but
shall not be obligated, to make such repairs or replacements on behalf of and
for the account of Tenant. In such event, such work shall be paid for in full
by Tenant as Additional Rent.
5.2. SURRENDER. On the last day of the Lease Term, or on any sooner
termination of this Lease, Tenant shall surrender the Premises in the same
condition as the Premises existed on the date which Tenant first took possession
thereof, ordinary wear and tear and damage by an Insured Casualty excepted, with
such additions, replacements, betterments, alterations and improvements thereto
as permitted or required hereunder, broom clean, and shall surrender all keys,
to Landlord in the condition required to be maintained by Tenant under this
Lease.
5.3. RIGHT OF ENTRY. Landlord and its authorized representatives shall
have the right to enter the Premises (a) upon prior notice to Tenant at all
reasonable times to inspect the Project or to show the Premises to prospective
purchasers or tenants, provided any such entry is done in a manner such as to
avoid interference with the operation of the Premises, and at the request of
Tenant occurs in the presence of a representative of Tenant and, (b) in the
event of the existence of an Event of Default hereunder, to make repairs,
alterations, improvements or additions as Landlord may reasonably deem
necessary, including those to be performed by Tenant, without the same
constituting an eviction of Tenant in whole or in part, and rent shall not xxxxx
as a result of such entry. Nothing herein shall imply any duty upon the part of
Landlord to do any work which the Tenant may be required to perform under this
Lease, and the performance thereof by Landlord shall not constitute a waiver of
Tenant's default in failing to perform it. If Tenant is not present to permit
entry into the Premises, Landlord may, in case of emergency, enter by master
key, or may forcibly enter, without rendering Landlord liable therefor. During
the twelve (12) month period prior to the expiration of the Lease Term, Landlord
may place upon the Premises "For Rent" signs and notices.
ARTICLE 6.
HAZARDOUS SUBSTANCES
6.1. NO HAZARDOUS SUBSTANCES. Tenant shall not bring into or permit the
existence of any Hazardous Substance on the Premises other than as permitted by
applicable Environmental Regulations. If Tenant discovers the presence of any
Hazardous Substance on or in the Premises which is in violation of any
Environmental Regulation, Tenant shall promptly give Landlord notice thereof.
If during Tenant's occupancy or at any time throughout the Lease Term the
existence of a Hazardous Substance is caused or permitted by Tenant, (a) Tenant
shall remove such Hazardous Substance and dispose of it as required by any and
all applicable Environmental Regulations, or (b) Landlord, if it is advised to
remove such Hazardous Substance itself to protect or minimize against any
liability to Landlord as a result of the presence of any Hazardous Substance by
no less than five (5) days' notice to Tenant, may elect to remove any Hazardous
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Substance and dispose of it as required by any Environmental Regulation, in
which case Tenant shall pay the entire cost of such disposal within ten (10)
days after receipt of a statement for such cost by Landlord, such amount to be
treated as Additional Rent. If any Governmental Authority shall require any
remedial action or other response with respect to the Premises as the result of
any Hazardous Substance brought into or permitted by Tenant on or in the
Premises, Tenant shall notify Landlord of such action or response and shall,
with the prior written approval of Landlord, be responsible for satisfying the
requirements of the applicable Governmental Authority.
6.2. TENANT INDEMNITY. Tenant agrees to indemnify, defend, protect and
hold Landlord harmless from any and all claims, causes of action, damages,
penalties, costs and expenses (including attorneys' fees, consultant fees and
related expenses) which may be asserted against or incurred by Landlord
resulting from the failure by Tenant to fulfill its obligations under Section
6.1 hereof. Tenant's duty to indemnify, defend, protect and hold harmless
includes, but is not limited to, proceedings or actions commenced by any
Governmental Authority.
6.3. LANDLORD INDEMNITY. Provided no Default shall have occurred,
Landlord agrees to indemnify, defend, protect and hold Tenant harmless from any
and all claims, causes of action, damages, penalties, costs and expenses
(including attorneys' fees, consultant fees and related expenses) which may be
asserted against or incurred by Tenant resulting from the failure by Landlord to
comply with any Environmental Regulation for which Landlord is otherwise
responsible under this Lease or as a matter of law. Landlord's duty to
indemnify, defend, protect and hold harmless includes, but is not limited to,
proceedings or actions commenced by any Governmental Authority.
6.4. SURVIVAL. The foregoing covenants and indemnifications shall be
deemed continuing covenants and indemnifications for the benefit of Landlord,
Tenant and their respective successors and assigns and shall survive the
expiration of the Lease Term or earlier termination of this Lease.
ARTICLE 7.
COVENANTS OF TENANT
7.1. USE OF PREMISES. Tenant covenants and agrees that from and after the
Commencement Date, use and occupy the Premises solely for the purpose of the
Permitted Use and for no other purpose.
7.2. CONTINUING COVENANTS. Tenant covenants and agrees with Landlord to:
(a) [Intentionally Omitted]
(b) maintain the Premises in a good condition
and state of repair;
(c) promptly make all of repairs, renewals, replacements and
additions, to the Premises which may be necessary, required
under any Legal Requirement
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or otherwise required under the terms of this Lease;
(d) not commit or suffer waste with respect to the Premises;
(e) [Intentionally Omitted]
(f) not remove, demolish or in any respect alter any of the Improvements
comprising the Premises, provided that Tenant may make alterations
in accordance with Section 4.1 hereof;
(g) subject to any Legal Requirement, not make, install or permit to be
made or installed, any alterations or additions to the Premises if
doing so will violate the terms and conditions of this Lease unless
approved by Landlord in writing;
(h) not make, suffer or permit any nuisance to exist on the Premises;
(i) keep the Premises neat and clean at all times and to keep any refuse
in proper containers out of sight until the same is removed;
(j) neither do nor suffer anything to be done or kept in or about the
Premises which contravenes Landlord's insurance policies or
increases the premiums therefor;
(k) adequately heat and cool the Premises;
(l) promptly comply with, or cause to be complied with, and conform to
all Legal Requirements; and
(m) to comply with all of the Rules.
ARTICLE 8.
INSURANCE AND INDEMNITIES
8.1. INSURANCE COVERAGES.
(a) Landlord shall obtain beginning on the Commencement Date and
shall maintain throughout the Lease Term, as an Operating Expense, the following
insurance coverages:
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(i) A policy of public liability insurance on the Common Areas,
providing such coverages and in such amounts as Landlord shall from
time to time determine.
(ii) A policy providing commercial property insurance on the
Common Areas and such other portions of the Project as Landlord shall
determine, providing such coverages and in such amounts as Landlord
shall from time to time determine.
(b) Tenant shall obtain, at Tenant's expense, beginning on the
Commencement Date and shall maintain through the Lease Term, the following
insurance coverages:
(i) A policy of commercial general liability insurance (including
"Insurance Service Office" (ISO) forms and endorsements or their
equivalent) naming Landlord, Tenant and any other party designated by
Landlord as an additional insured, to insure against injury to
property, person or loss of life arising out of the ownership, use,
occupancy or maintenance of the Premises with limits of general
liability not less than $10,000,000 for death and/or bodily injury,
personal injury, advertising injury and property damage. The policy
shall contain supplemental endorsements covering contractual
liability as provided in an ISO liability policy under the definition
of insured contract.
(ii) A policy providing commercial property insurance containing
the insuring agreement "Cause of Loss-Special Form" or its
equivalent, together with such endorsements as may be deemed
advisable by Landlord to insure the Improvements comprising the
Premises, Tenant's leasehold improvements, merchandise, trade
fixtures, furnishings, equipment and personal property, and naming
Landlord as loss payee. Such policy shall provide coverage in an
amount not less than the full replacement cost of the Improvements
comprising the Premises. An "Agreed Amount Clause" waiving the
coinsurance clause must be included, as well as flood and earthquake
coverage, to the extent available, at limits equal to the maximum
foreseeable loss at the location of the Premises. Coverage must also
include an "Ordinances or Law Regulations" insuring agreement
governing the construction, use or repair of property. Such coverage
must include the expense of tearing down any property, including the
cost of removing its debris. Increased cost of construction coverage
must also be included.
(iii) A policy of workers' compensation insurance must be
provided that insures the benefits required by the State law and
includes coverage B Employer's Liability. The Employer's liability
limits must be:
Bodily Injury By Accident -- $1,000,000 Each Accident
Bodily Injury By Disease -- $1,000,000 Policy Limit
Bodily Injury By Disease -- $1,000,000 Each Employee
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Landlord does not, by requiring such insurance or by any other act or
event, assume or undertake liability for any work-related injuries or
death to Tenant or Tenant's employees.
(iv) If Tenant commits or permits any activity or the placing or
operation of any equipment on or about the Premises creating unusual
hazards, Tenant shall promptly upon notice or demand from Landlord,
procure and maintain in force, during such activity or operation,
insurance sufficient to cover the risks created thereby. Landlord's
demand for unusual hazard insurance shall not constitute a waiver of
any right Landlord may have to demand the removal or cessation of
such activity or operation.
(v) A policy of business interruption insurance with an "Extra
Expense" insuring agreement naming Landlord and any other party
designated by Landlord as an additional insured providing coverage of
not less than twelve (12) months of Rent and other business income.
Such policy must include an endorsement providing an extended period
of indemnity for 180 days.
(vi) All other insurance, if any, customarily maintained by
businesses of like type, or required by any Legal Requirement to be
carried or maintained by Tenant, or as otherwise may be required by
Landlord, including but not limited to boiler and machinery coverage,
automobile and garagekeepers liability coverage, and service
interruption coverage.
8.2. INSURANCE POLICIES. Insurance required under Section 8.1 shall be
written by companies duly qualified to do business in the State and shall be
satisfactory in all respects to Landlord and the holder of any mortgage against
the Project. The companies providing such insurance shall deliver to Tenant and
Landlord copies of such policies or certificates evidencing the existence and
amount of such insurance with loss payable clauses satisfactory to Landlord,
including, specifically, the holder of the first mortgage on the Project as a
loss payee. No such policy shall be cancelable or subject to reduction of
coverage or modification except after thirty (30) days prior written notice to
Landlord and such other persons designated by Landlord. At least ten (10) days
prior to the expiration of such policies, Landlord may order such insurance and
charge the cost to Tenant as Additional Rent. Tenant shall not do or permit
anything to be done which will invalidate the insurance policies furnished
pursuant to Section 8.1 or otherwise by Landlord and shall comply with all
requirements imposed by such insurers, unless such compliance is expressly
waived in writing by Landlord. Landlord may from time to time reasonably
require that the policy limits of any or all such insurance be increased to
reflect the effects of inflation and changes in normal commercial insurance
practices.
8.3. EXEMPTION OF LANDLORD FROM LIABILITY. Tenant hereby agrees that
Landlord shall not be liable and Tenant hereby waives all claims against
Landlord for injury to Tenant's business or any loss of income or other
consequential damages or for damage to the inventory, fixtures, furnishings,
improvements or other property of Tenant, Tenant's employees, invitees,
customers, sublessees, agents, occupants, contractors, or injury to the person
of Tenant, Tenant's employees, agents, contractors, occupants, invitees,
customers, sublessees, or any other person in
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or about the Premises, whether such damage or injury is caused by or results
from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air-conditioning or lighting fixtures, or from any other cause
whatsoever, whether said damage or injury results from conditions arising upon
the Premises, or from other sources or places, and regardless of whether the
cause of such damage or injury or the means of repairing the same is
inaccessible to Tenant. Landlord shall not be liable to Tenant for any damages
arising from any act or neglect of any other tenant of the Project.
8.4. INDEMNIFICATION.
(a) Tenant shall indemnify, defend, protect and hold harmless
Landlord from and against any and all claims arising from Tenant's use of
the Premises, or from the conduct of Tenant's business or from any
activity, work or things done, permitted or suffered by Tenant in or about
the Premises or elsewhere, and shall further indemnify, defend, protect and
hold harmless Landlord from and against any and all claims arising from any
breach or default in the performance of any obligation on Tenant's part to
be performed under the terms of this Lease, or arising from any negligence
of the Tenant, or any of Tenant's sublessees, agents, customers, invitees,
contractors, occupants, or employees, and from and against all costs,
attorneys' fees, expenses and liabilities incurred in the defense of any
such claim or any action or proceeding brought thereon; and in case any
action or proceeding be brought against Landlord by reason of any such
claim, Tenant, upon notice from Landlord, shall defend the same at Tenant's
expense by counsel satisfactory to Landlord. Tenant, as a material part of
the consideration to Landlord, hereby assumes all risk of damage to
property or injury to persons, in, upon or about the Premises arising from
any cause, and Tenant hereby waives all claims in respect thereof against
Landlord. The provisions of this Section shall survive expiration of the
Lease Term or the earlier termination thereof.
(b) Provided no Event of Default has occurred, Landlord shall
indemnify, defend, protect and hold harmless Tenant from and against any
and all claims arising from any breach or default in the performance of any
obligation on Landlord's part to be performed under the terms of this
Lease, or arising from any negligence of the Landlord, or any of Landlord's
tenants (other than Tenant), agents, customers, invitees, contractors,
occupants, or employees, and from and against all costs, attorneys' fees,
expenses and liabilities incurred in the defense of any such claim or any
action or proceeding brought thereon. The provisions of this Section shall
survive expiration of the Lease Term or the earlier termination thereof.
8.5. MUTUAL WAIVER OF SUBROGATION. Nothing in this Lease shall be
construed so as to authorize or permit any insurer of Landlord or Tenant to be
subrogated to any right of Landlord or Tenant against the other party arising
under this Lease. Landlord and Tenant each hereby release the other to the
extent of any loss required to be insured against by either of the parties under
the terms of this Lease, whether or not such insurance has actually been
secured, and to the extent of their respective insurance coverage actually
received for any loss or damage caused by any such casualty, even if such
incidents shall be brought about by the fault or negligence of either party or
persons for whose acts or negligence the other party is responsible.
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Landlord and Tenant shall, to the extent permitted by their respective insurers,
each obtain appropriate waivers of subrogation from their respective insurance
carriers giving effect to this Section.
8.6. INSURANCE PREMIUM DEPOSIT. In the event the premiums with respect to
the insurance coverages set forth in Section 8.1(b) hereof are not paid annually
in advance, or in the case of a Default or an Event of Default hereunder,
Tenant, upon Landlord's request, shall deposit in advance with Landlord (as a
deposit and not a payment) an amount equal to one-twelfth of the aggregate
annual insurance premiums (as estimated by Landlord and communicated by Landlord
to Tenant in writing) on all policies of insurance required by Section 8.1(b)
hereof on the first day of each month. Upon Landlord's request, Tenant shall
cause all bills, statements or other documents relating to the foregoing
insurance premiums to be sent or mailed directly to Landlord. Upon receipt of
such bills, statements or other documents, and provided Tenant has deposited
sufficient funds with Landlord pursuant to this Section, Landlord shall pay,
when due, such insurance premiums as may be due thereunder out of the funds so
deposited with Landlord. If at any time and for any reason the funds deposited
with Landlord are or will be insufficient to pay such amounts as may then or
subsequently be due, Landlord shall notify Tenant and Tenant shall within seven
(7) days following such notice deposit an amount equal to such deficiency with
Landlord. Notwithstanding the foregoing, nothing contained herein shall cause
Landlord to be obligated to pay any amounts in excess of the amount of funds
deposited with Landlord pursuant to this Section. Landlord may impound or
reserve for future payment of insurance premiums such portion of such payments
as Landlord in its absolute discretion may deem proper. Should Tenant fail to
deposit with Landlord sums sufficient to pay in full such insurance premiums at
least thirty (30) days before delinquency thereof, Landlord may, at Landlord's
election, but without any obligation so to do, advance any amounts required to
make up the deficiency, which advances, if any, shall be treated as Additional
Rent. Upon expiration of the Lease Term, and provided there exists at such time
no Event of Default or Default, all sums held by Landlord under this Section 8.6
shall be remitted to Tenant.
ARTICLE 9.
DAMAGE OR DESTRUCTION
In the event (a) the Improvements are damaged by fire, explosion or other
casualty insured under the fire and extended coverage insurance policy required
hereunder (an "INSURED CASUALTY") to the extent of thirty percent (30%) or more
of the insurable value thereof immediately preceding the casualty, (b) the
Improvements are damaged by a casualty or occurrence other than an Insured
Casualty, (c) such damage occurs at anytime within the last twelve (12) months
of the Lease Term, or (d) the Premises or any portion thereof is damaged by
fire, explosion or other casualty and the Premises cannot be repaired, rebuilt
or restored to substantially the same condition, under any Legal Requirement or
other governmental order or under any other agreement to which the Premises is
subject (a "PROHIBITED CASUALTY"), then in such event Landlord may terminate
this Lease by giving Tenant written notice of termination within thirty (30)
days after the happening of the event causing the damage. In the event the
damage is not extensive enough to give rise to Landlord's option to terminate
this Lease, a Prohibited Casualty has not occurred, or Landlord does not elect
to terminate this Lease,
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Landlord shall promptly repair and replace the Improvements comprising the
Premises existing immediately preceding such fire, explosion or other casualty.
Upon completion of such repairs and replacements by Landlord, Tenant shall
promptly repair or replace all portions of the Premises not repaired or replaced
by Landlord to the condition existing immediately preceding such fire, explosion
or other casualty. All work by Tenant shall comply with the requirements and
limitations imposed by Landlord. During any period of reconstruction or repair
of the Premises, Tenant shall operate its business in the Premises to the extent
practicable. Base Rent shall be abated during the period of such repair and
restoration to the extent the Premises is not tenantable.
ARTICLE 10.
CONDEMNATION
10.1. TAKING OF WHOLE. In the event (a) the whole of the Premises shall
be taken or condemned for a public or quasi-public use or purpose by a competent
authority or sold by Landlord in lieu thereof, (b) such a portion of the
Premises shall be taken, condemned or sold in lieu thereof so that the balance
cannot be used for the same purpose and with substantially the same utility to
Tenant as immediately prior to such taking, or (c) the Premises or any portion
thereof shall be taken or condemned for a public or quasi-public use or purpose
by a competent authority or sold by Landlord in lieu thereof and Landlord is
unable to repair, rebuild or restore the same under the terms of any agreement
to which it is a party, or under any Legal Requirement or other governmental
order to which Landlord or the Premises is subject (a "PROHIBITED TAKING"), this
Lease shall terminate upon delivery of possession to the condemning authority or
its assignee, and any award, compensation or damage (the "AWARD") shall be paid
to and be the sole property of Landlord whether the Award shall be made as
compensation for diminution of the value of the leasehold estate or the fee of
the Land or otherwise, and Tenant hereby assigns to Landlord all of Tenant's
right, title and interest in and to any and all of the Award. Tenant shall have
no claim against Landlord by reason of such taking or termination and, subject
to the provisions of Section 10.3 hereof, shall not have any claim or right to
any portion of the Award to be paid to Landlord. Tenant shall continue to pay
Rent and other charges hereunder until the Lease is terminated.
10.2. PARTIAL TAKING. In the event (a) only a part of the Premises is
taken or condemned but the Premises or the part remaining can still be used for
the same purpose and with substantially the same utility to Tenant as
immediately prior to such taking, or (b) a Prohibited Taking has not occurred,
this Lease shall not terminate and Landlord shall repair and restore the
remaining Improvements comprising the Premises provided the cost and expense of
such repair and restoration does not exceed the amount of the Award. If the
cost of such repair and restoration exceeds the amount of the Award, Landlord
may terminate this Lease by giving Tenant written notice of termination to
Tenant within thirty (30) days of the delivery of possession to the condemning
authority. If Landlord is obligated to repair and restore the remaining
Improvements comprising the Premises, as herein provided, there shall be no
abatement or reduction in any Rent or other charges payable by Tenant under this
Lease because of such taking or condemnation.
10.3. TENANT'S AWARD. Subject to the rights of Landlord's lenders,
termination of this
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Lease because of condemnation shall be without prejudice to the rights of either
Landlord or Tenant to recover from the condemning authority compensation and
damages for the injury and loss sustained by them as a result of the taking, and
Tenant shall have the right to make a claim against the condemning authority for
the unamortized value of Tenant's leasehold improvements; interruption or
dislocation of business in the Premises; loss of good will and for moving and
remodeling expenses. Tenant shall not have the right to make a claim for
diminution in value of Tenant's leasehold estate. If this Lease is terminated
as a result of a condemnation, Tenant shall, subject to the rights of Landlord's
lenders, make a separate claim to the condemning authority for the above-
mentioned items. If the condemning authority refuses to allocate the award
between Landlord's and Tenant's claims for damages and instead grants a single,
lump sum award to Landlord, Landlord and Tenant shall use reasonable, good-faith
efforts to determine that portion of the award which is attributable to Tenant's
leasehold improvements (but only the extent such leasehold improvements were
paid for by Tenant).
ARTICLE 11.
DEFAULTS; REMEDIES
11.1. DEFAULTS. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant and each such
event shall be referred to herein as an "EVENT OF DEFAULT":
(a) The failure of Tenant to make any payment of Rent or any other
payment required to be made by Tenant under this Lease, within ten (10)
days after the date due.
(b) The failure by Tenant to observe or perform any of the terms,
covenants or conditions of this Lease to be observed or performed by Tenant
(other than those described in Sections 11.1(a), (c) or (d) hereof) where
such failure shall continue for a period of thirty (30) days after written
notice thereof from Landlord to Tenant (or without notice in case of
emergency or a hazardous condition or in case any fine, penalty, interest
or cost may otherwise be imposed or incurred); provided, however, that if
the nature of such failure is such that more than thirty (30) days are
reasonably required for its cure, then Tenant shall not be deemed to be in
default if Tenant commences such cure within said thirty (30) day period
and thereafter diligently prosecutes such cure to completion, but in no
event shall the period to cure such failure exceed ninety (90) days.
(c) (i) The making by Tenant or any entity holding a controlling
interest in Tenant of any general assignment, or general arrangement for
the benefit of creditors; (ii) the filing by or against Tenant or any
entity holding a controlling interest in Tenant of a petition to have
Tenant or such controlling entity adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless,
in the case of a petition filed against Tenant or such controlling entity,
the same is dismissed within sixty (60) days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within sixty (60) days; or (iv) the
attachment, execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this
Lease or in the Premises, where such
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seizure is not discharged within sixty (60) days.
(d) An assignment shall occur in violation of Article 12 hereof.
(e) A default shall occur under that certain Guaranty of even date
herewith made by LaserMaster Technologies, Inc., a Minnesota corporation,
in favor of Landlord.
11.2. LANDLORD'S REMEDIES. Upon the occurrence of an Event of Default,
Landlord shall have the following remedies, in addition to all other rights and
remedies provided by law or equity, or elsewhere in this Lease, to which
Landlord may resort cumulatively or in the alternative:
(a) Landlord may, at Landlord's election, terminate this Lease upon
the delivery of written notice of such termination to Tenant. On the
delivery of such notice, all Tenant's rights in the Premises and the
Project, in all improvements located at the Premises, to revenues from the
Premises, and to amounts which may otherwise be due from Landlord to Tenant
under this Lease, shall terminate. Promptly after notice of termination,
Tenant shall surrender and vacate the Premises in a broom clean condition,
and Landlord may reenter and take possession of the Premises and eject all
parties in possession or eject some and not others or eject none.
Termination under this Subsection shall not relieve Tenant from the payment
of any sum then due to Landlord or from any claim for damages previously
accrued or then accruing against Tenant. Upon such termination, Landlord
shall also be entitled to recover from Tenant (i) unpaid Rent or such other
amounts which have been earned or are payable at the time of termination,
and (ii) as liquidated damages and not as a penalty, a sum of money equal
to the Rent and such other amounts and rental costs to be paid by Tenant to
Landlord for the remainder of the Lease Term, provided that, for purposes
of this Section 11.2(a)(ii), the remainder of the Lease Term shall be
deemed to be the earlier of the expiration of the Lease Term or five (5)
years from the date of written demand by Landlord for such liquidated
damages (the "ACCELERATED AMOUNT").
(b) Landlord may, at Landlord's election, terminate Tenant's right to
possession only, without terminating the Lease. Upon termination of
Tenant's right to possession without termination of the Lease, Tenant shall
surrender possession and vacate the Premises immediately and deliver
possession of the Premises to Landlord, and Tenant hereby grants to
Landlord the immediate right to enter into the Premises, remove Tenant's
signs and other evidences of tenancy, and take and hold possession of the
Premises with or without process of law, and to dispossess the others who
may be occupying or within the Premises, without being deemed in any manner
guilty of trespass, eviction, or forcible entry or detainer, without
incurring any liability for any damage resulting therefrom, without such
entry and possession terminating the Lease or releasing Tenant from
Tenant's obligation to pay Rent and to fulfill all other of Tenant's
obligations under this Lease for the full Lease Term. Landlord shall be
entitled to recover from Tenant (i) unpaid Rent or such other amounts which
have been earned or are payable at the time of termination, and (ii) as
liquidated damages and not as a penalty, the Accelerated Amount.
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(c) Landlord may, at Landlord's election, store Tenant's personal
property, if any, for the account and at the cost of Tenant.
(d) Whether or not Landlord elects to terminate the Lease, Landlord
may, but shall be under no obligation to, relet all or any part of the
Premises for such rent and upon such terms as shall be satisfactory to
Landlord (including the right to relet the Premises as a part of a larger
area, the right to change the character or use of the Premises and the
right to restrict prospective tenants to those whose business is compatible
with the nature and character of the Premises). For the purpose of such
reletting, Landlord may decorate or may make any repairs, changes,
alterations or additions in or to the Premises that may be necessary or
convenient. If the Lease is not terminated and if the Premises is not
relet, or if it is relet and a sufficient sum shall not be realized from
such reletting after paying all of the expenses of any such decorations,
repairs, changes, alterations and additions, the expenses of such reletting
and the collection of the rent accruing therefrom (including, but not
limited to, attorneys' fees and brokers' commissions), to satisfy the Rent
and other charges herein provided to be paid for remainder of the term of
this Lease, Tenant shall pay to Landlord promptly any deficiency, and
Tenant agrees that Landlord may file suit to recover and recover any sum
falling due under the terms of this Subsection from time to time.
(e) The term "RENTAL COSTS" as used in this Lease shall be deemed to
include, but shall not be limited by implication, all repossession costs,
brokerage commissions, legal expenses, attorneys' fees, alteration costs
and expenses of preparation of the Premises or parts thereof for reletting.
(f) For purposes of Sections 11.2(a) and (b) above, the present value
(the "PRESENT VALUE") of the Accelerated Amount shall be computed by
discounting the Accelerated Amount to the date of determination applying
the rate on the United States Treasury obligation having a maturity equal
to the earlier of the balance of the Lease Term or five (5) years from the
date of written demand by Landlord for the Accelerated Amount and having an
asking price closest to par, as quoted by the Federal Reserve Bank of New
York as published in the Federal Reserve Statistical Release H. 15 (519) on
the date of determination (or the closest preceding date on which such rate
is published), or any successor publication thereto. Landlord and Tenant
agree that in the event of the exercise by Landlord of its remedy under
Sections 11.2(a) or (b) hereof and the payment by Tenant of the Present
Value of the Accelerated Amount, the cost to Landlord will be difficult to
ascertain and that the Present Value of the Accelerated Amount constitutes
a reasonable estimate of such cost and is not a penalty. Accordingly, if
Tenant defaults, the parties agree that, except as may be otherwise
expressly set forth herein to the contrary, the Present Value of the
Accelerated Amount shall be the amount due from Tenant upon such default
and Landlord shall not be obligated to mitigate its cost below such amount.
Notwithstanding anything to the contrary contained herein, Tenant
acknowledges and agrees that if Tenant fails to pay to Landlord the Present
Value of the Accelerated Amount within sixty (60) days after notice of
termination, then Tenant shall forfeit any right to have the Accelerated
Amount discounted to Present Value pursuant to the provisions of this
Section 11.2(f).
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(g) No Accelerated Amount shall be due by Tenant by reason of an
Event of Default based solely on the provisions of Section 11.1(a) hereof
unless such Default has continued for at least thirty (30) days following
delivery of written notice to Tenant.
(h) In the event Landlord elects to terminate Tenant's right to
possession only, without terminating the Lease and without pursuing
recovery of the Accelerated Amount, Landlord shall use "commercially
reasonable efforts" to relet the Premises as the agent of Tenant and
receive the rent therefor; and in the event of such reletting, Tenant shall
pay Landlord the cost of reletting including brokerage and reasonable
attorneys' fees and commissions, renovating, repairing and altering the
Premises for a new tenant or tenants and any deficiency that may arise by
reason of such reletting, on demand; provided, however, the failure of
Landlord to relet the Premises shall not release or affect Tenant's
liability for Rent or for damages and such Rent and damages shall be paid
by Tenant on the dates specified herein. For purposes hereof, "commercially
reasonable efforts" shall mean that Landlord has listed the Premises as
available for leasing with a recognized brokerage firm and if Landlord has
so listed the Premises, Landlord shall not be required to take any other
action with respect to reletting the Premises nor shall Landlord be liable
in any manner for failure to relet the Premises. The Rent payable by Tenant
hereunder shall be reduced by the rent received by Landlord from such
reletting.
11.3. LANDLORD MAY PERFORM. Landlord shall have the right at any time,
after three (3) days notice to Tenant (or without notice with respect to matters
described in Article 8, and in case of emergency or a hazardous condition or in
case any fine, penalty, interest or cost may otherwise be imposed or incurred),
to make any payment or perform any act required of Tenant under any provision in
this Lease, and in exercising such right, to incur necessary and incidental
costs and expenses, including reasonable attorneys' fees. Nothing herein shall
obligate Landlord to make any payment or perform any act required of Tenant, and
this exercise of the right to so do shall not constitute a release of any
obligation or a waiver of any default. All payments made and all costs and
expenses incurred in connection with any exercise of such right shall be
reimbursed to Landlord by Tenant as Additional Rent.
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ARTICLE 12.
ASSIGNMENT AND SUBLETTING
12.1. ASSIGNMENT BY TENANT. Tenant shall not voluntarily or by operation
of law assign, transfer, mortgage, lease, sublet, grant, license or otherwise
transfer or encumber all or any part of Tenant's interest in this Lease or in
the Premises, or permit the use or occupancy of the Premises or any part thereof
by anyone other than Tenant, without Landlord's prior written consent, which
consent may be withheld or conditioned in Landlord's sole and absolute
discretion. Landlord agrees to not unreasonably withhold its consent in the
event Tenant requests to sublet under (a) or (b) below, provided that any
proceeds payable to Tenant by reason of such subletting in excess of Rent due
hereunder are paid to Landlord when due and provided that such entity agrees to
otherwise fulfill the obligations of Tenant hereunder with respect to that
portion of the Premises which are the subject of such subletting: (a) the entire
Premises to an entity which on the effective date of such subletting satisfies
the Financial Test (for purposes of applying the Financial Test such entity
shall be treated as the proposed subtenant), and (b) any portion of the Premises
which is architecturally divisible from the balance of the Premises, provided
that the aggregate portion of the Premises permitted to be sublet under this
subsection 12.1(b) does not exceed twenty percent (20%) of the square footage of
the Premises at any time. Any attempted assignment, transfer, mortgage, use,
lease, occupancy, encumbrance or subletting without such consent shall be void
and shall constitute an Event of Default. In the event that Landlord furnishes
such consent, Tenant shall pay all costs incurred by Landlord in connection with
such consent, including attorney's fees.
12.2. [Intentionally Omitted]
12.3. ASSIGNMENT DUE TO BANKRUPTCY.
(a) In the event a petition is filed by or against Tenant under the
Bankruptcy Code, Tenant, as debtor and debtor in possession, and any
trustee who may be appointed, agree to adequately protect Landlord as
follows:
(i) to pay monthly in advance on the first day of each month
as reasonable compensation for use and occupancy of the
Premises an amount equal to all Rent due pursuant to this
Lease; and
(ii) to perform each and every obligation of Tenant under this
Lease until such time as this Lease is either rejected or
assumed by order of a court of competent jurisdiction; and
(iii) to determine within sixty (60) days after the filing of
such petition whether to assume or reject this Lease; and
(iv) to give Landlord at least thirty (30) days prior written
notice, unless a shorter notice period is agreed to in
writing by the parties, of any proceeding relating to any
assumption of this Lease; and
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(v) to do all other things of benefit to Landlord otherwise
required under the Bankruptcy Code.
Tenant shall be deemed to have rejected this Lease in the event of the
failure to comply with any of the above.
(b) If Tenant or a trustee elects to assume this Lease subsequent to
the filing of a petition under the Bankruptcy Code, Tenant, as debtor and
as debtor in possession, and any trustee who may be appointed agree as
follows:
(i) to cure each and every existing breach by Tenant within
not more than thirty (30) days of assumption of this
Lease; and
(ii) to compensate Landlord for any actual pecuniary loss
resulting from any existing breach, including without
limitation, Landlord's reasonable costs, expenses and
attorney's fees incurred as a result of the breach, as
determined by a court of competent jurisdiction, within
thirty (30) days of assumption of this Lease; and
(iii) in the event of an existing breach, to provide adequate
assurance of Tenant's future performance, including
without limitation:
(1) the deposit of an additional sum equal to Rent for
the remainder of the Lease Term to be held (without
any allowance for interest thereon) to secure
Tenant's obligations under the Lease; and
(2) the production to Landlord of written documentation
establishing that Tenant has sufficient present and
anticipated financial ability to perform each and
every obligation of Tenant under this Lease; and
(3) assurances, in form acceptable to Landlord, as may be
required under any applicable provision of the
Bankruptcy Code; and
(iv) the assumption will not breach any provision of this
Lease; and
(v) the assumption will be subject to all of the provisions of
this Lease unless the prior written consent of Landlord is
obtained; and
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(vi) the prior written consent to the assumption of any
mortgagee to which this Lease has been assigned as
collateral security is obtained.
(c) If Tenant assumes this Lease and proposes to assign the same
pursuant to the provisions of the Bankruptcy Code to any person or entity
who shall have made a bona fide offer to accept any assignment of this
Lease on terms acceptable to Tenant, then notice of such proposed
assignment shall be furnished by Tenant to Landlord, setting forth:
(i) the name and address of such person; and
(ii) all the terms and conditions of such offer; and
(iii) the adequate assurance to be provided Landlord to assure
such person's future performance under the Lease,
including without limitation, the assurances referred to
in any applicable provision of the Bankruptcy Code, shall
be given to Landlord by Tenant no later than twenty (20)
days after receipt by Tenant, but in any event no later
than ten (10) days prior to the date that Tenant shall
make application to a court of competent jurisdiction for
authority and approval to enter into such assignment and
assumption, and Landlord shall thereupon have the prior
right and option, to be exercised by notice to Tenant
given at any time prior to the effective date of such
proposed assignment, to accept (or to cause its designee
to accept) an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as
the bona fide offer made by such person, less any
brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment
of this Lease. The adequate assurance to be provided
Landlord to assure the assignee's future performance under
the Lease shall include without limitation:
(1) the deposit of a sum equal to Rent for the remainder
of the Lease Term to be held (without any allowance
for interest thereon) as security for performance
hereunder; and
(2) a written demonstration that the assignee meets all
reasonable financial and other criteria of Landlord
as did Tenant and its business at the time of
execution of this Lease, including the production of
the most recent audited financial statement of the
assignee prepared by a certified public accountant;
and
(3) the assignee's use of the Premises will be a
Permitted Use;
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and
(4) assurances, in form acceptable to Landlord, as to all
matters identified in any applicable provision of the
Bankruptcy Code.
12.4. NO RELEASE OF TENANT. Notwithstanding anything to the contrary
contained in this Lease, and regardless of Landlord's consent, no assignment,
encumbrance, subletting, transfer, lease or other permission for the use or
occupancy of all or any part of the Premises shall, unless otherwise agreed by
Landlord, release Tenant of Tenant's obligation to pay the Rent and other
charges and to perform all other obligations to be performed by Tenant under
this Lease. The acceptance of Rent and other charges by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment shall not be deemed consent to any subsequent
assignment.
12.5. TRANSFER OF LANDLORD'S RIGHTS. Landlord shall have the right to
transfer and assign, in whole or in part, all and every feature of its rights
and obligations hereunder and in the Premises. Such transfers or assignments,
howsoever made, are to be fully binding upon and recognized by Tenant. Upon
such transfer or assignment and the assumption of Landlord's obligations by the
transferee, and subject to the provisions of Section 13.2 hereof, Landlord shall
be relieved of all obligations under the Lease accruing subsequent to the date
of transfer.
ARTICLE 13.
GENERAL PROVISIONS
13.1. ESTOPPEL CERTIFICATE. Tenant shall at any time, upon not less than
ten (10) days after the giving of written notice by Landlord, execute,
acknowledge and deliver to Landlord or to such person designated by Landlord, a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
date to which the rent and other charges are paid in advance, if any, (ii)
acknowledging that there are not, any uncured defaults on the part of Landlord
hereunder, or specify such defaults if they are claimed, (iii) acknowledging
that there are no offsets, counterclaims or defenses to the obligations of
Tenant under the Lease, and (iv) certifying as to any other matters as may be
reasonably requested by Landlord. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Premises. If Tenant
does not execute, acknowledge and deliver the statement referred to in this
Section within time set forth above, the information set forth therein shall be
deemed true and correct.
13.2. LANDLORD'S LIABILITY. The term "LANDLORD," as used in this Lease,
shall mean only the owner or owners at the time in question of fee title to the
Premises. In the event of any transfer of such title or interest, Landlord
shall be released from all liability as respects Landlord's obligations
thereafter to be performed, provided that Landlord's obligations are assumed by
Landlord's transferee.
13.3. SEVERABILITY. The invalidity of any provision of this Lease, or of
its application
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to any person or circumstance as determined by a court of competent
jurisdiction, shall in no way affect the validity of any other provision hereof
and each term, covenant, condition and provision of this Lease shall be valid
and be enforced to the fullest extent permitted by law.
13.4. TIME OF ESSENCE. Time is of the essence hereof.
13.5. CAPTIONS. Article and Section captions are not a part of this
Lease.
13.6. INCORPORATION OF PRIOR AGREEMENTS. This Lease and the attached
exhibits set forth all the agreements, terms, covenants and conditions between
Landlord and Tenant concerning the Premises and there are no agreements, terms,
covenants or conditions, oral or written, between them other than those herein
contained. No amendment, change or addition to this Lease shall be binding upon
Landlord or Tenant unless it is in writing and signed by each party.
13.7. LANDLORD DEFAULT; TENANT'S REMEDIES.
(a) In the event of any default by Landlord in the observance or
performance of any obligation on Landlord's part to be observed or performed
under this Lease, Tenant shall give Landlord written notice specifying such
default with particularity and Landlord shall thereupon have thirty (30) days in
which to cure any such default; provided, however, that if the nature of such
default is such that more than thirty (30) days are required for its cure, then
Landlord shall not be in default if Landlord commences performance within said
thirty (30) days and thereafter diligently prosecutes the same to completion but
in not event shall such cure period exceed ninety (90) days in the aggregate.
If Landlord fails to cure any such default after such notice and cure period,
Tenant may, as its sole and exclusive remedy, commence an action against
Landlord for specific performance.
(b) If Landlord shall fail to perform any covenant, term or
condition of this Lease required to be performed by Landlord, if any, and if as
a consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levied thereon against the right,
title and interest of Landlord in the Premises and out of Rent receivable by
Landlord, or out of the consideration received by Landlord from the sale or
other disposition of all or any part of Landlord's right, title and interest in
the Premises, and neither Landlord nor its partners, officers, directors,
shareholders and lenders, nor their respective successors and assigns, shall be
personally liable for any deficiency.
13.8. NOTICES. All notices and demands hereunder shall be in writing, and
shall be deemed to have been properly given or served as of (a) the date of
personal delivery with acknowledgement of receipt; (b) three (3) business days
after the same is deposited in the United States mail, prepaid, for delivery by
registered or certified mail, return receipt requested; or (c) the first
business day after the date delivered to a reputable overnight courier service
providing proof of delivery. The initial addresses of Landlord and Tenant are
set forth below:
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If to Landlord: Grandchildren's Realty Alternative Management Program I
Limited Partnership
0000 Xxxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Facsimile No: (000) 000-0000
Confirmation No.: (000) 000-0000
With a copy to: Popham, Haik, Xxxxxxxxxx & Xxxxxxx, Ltd.
3300 Xxxxx Xxxxxxx Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: X.X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
If to Tenant: LaserMaster Corporation
0000 Xxxxx Xxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
With a copy to: Rider Xxxxxxx Xxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Such addresses may be changed at any time or from time to time or additional
notice parties added, by notice as above provided.
13.9. WAIVERS. No waiver by Landlord of any provision of this Lease shall
be deemed a waiver of any other provision hereof or of any subsequent breach by
Tenant of the same or any other provision. Landlord's consent to or approval of
any act shall not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act by Tenant. No payment by Tenant or
receipt by Landlord of a lesser amount than the amount then due shall be deemed
to be other than on account of the earliest rent due, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment as
payment be deemed an accord and satisfaction, and Landlord shall accept such
check or payment without prejudice to Landlord's right to recover the balance of
such payment or pursue any other remedy in this Lease provided.
13.10. RECORDING. Landlord agrees, upon Tenant's request, to execute a
short form of
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this Lease, entitled Memorandum of Lease, a copy of which is annexed hereto as
Exhibit "E" and Tenant may record the Memorandum of Lease at its expense. The
provisions of this Lease shall control, however, in regard to any omissions from
the Memorandum of Lease, or with respect to any provisions hereof which may be
in conflict with the Memorandum of Lease. As a condition to Landlord's
obligation to execute the Memorandum of Lease, Tenant will execute, acknowledge
and deliver to Landlord an instrument in recordable form sufficient to discharge
any such Memorandum of Lease (or of any modification thereof) of record. Such
instrument shall be held in escrow by Chicago Title Insurance Company or another
duly licensed title insurance company selected by Landlord pursuant to an escrow
agreement reasonably satisfactory to Landlord, Tenant and Chicago Title
Insurance Company or such other title insurance company selected by Landlord,
which escrow agreement shall provide that such instrument shall only be released
from escrow and placed of record upon the expiration or earlier termination of
this Lease as asserted by Landlord.
13.11. HOLDING OVER. Tenant shall surrender the Premises upon the
expiration of the Lease Term or earlier termination of the Lease. Any holdover
not consented to by Landlord in writing shall not result in a new tenancy or
interest and, in such case, Landlord may treat Tenant as a trespasser. If
Tenant remains in possession of the Premises or any part thereof after the
expiration of the Lease Term or the earlier termination hereof without the
express written consent of Landlord, Tenant shall pay rent (for such holdover
period) equal to the amount of one hundred fifty percent (150%) the amount of
Rent and other charges actually paid by Tenant under this Lease during the last
full Lease Year.
13.12. CUMULATIVE REMEDIES. Except as expressly provided herein, no
remedy or election hereunder shall be deemed exclusive but shall, wherever
possible, be cumulative with all other remedies at law or in equity.
13.13. COVENANTS AND CONDITIONS. Each provision of this Lease performable
by Tenant and Landlord shall be deemed both a covenant and a condition.
13.14. BINDING EFFECT. This Lease shall bind and inure to the benefit of
Landlord and Tenant and their respective permitted successors and assigns.
13.15. SUBORDINATION; ATTORNMENT AND NON-DISTURBANCE.
(a) This Lease, at the option of Landlord or any of its lenders,
shall be subordinate to any ground lease, mortgage or any other
hypothecation for security and any renewals, future advances,
modifications, consolidations, replacements and extensions thereof,
provided Tenant's rights hereunder continue to be recognized so long as no
Event of Default has occurred.
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(b) Provided Tenant's rights hereunder continue to be recognized so
long as no Event of Default has occurred, Tenant shall execute any
documents required to effectuate such subordination or to make this Lease
prior to the lien of any mortgage, ground lease or other security device,
as the case may be.
(c) In the event of (i) a sale, assignment, ground lease, mortgage
or other transfer of Landlord's interest in the Premises or any portion
thereof or in this Lease; or (ii) any proceedings brought for the
foreclosure of, the granting of a deed in lieu of foreclosure of or the
exercise of the power of sale under any mortgage or security agreement made
by Landlord covering the Premises or any portion thereof, and provided that
such mortgagee or other transferee shall agree to recognize Tenant's rights
hereunder so long as an Event of Default has not occurred, Tenant shall
attorn to the mortgagee or other transferee and recognize such mortgagee or
other transferee as Landlord under this Lease.
(d) In the event Landlord desires to convey the Premises pursuant to
a sale/leaseback transaction, Tenant shall upon Landlord's request agree to
terminate this Lease and enter into a new lease upon the same terms and
conditions as set forth herein.
(e) Upon Tenant's written request, Landlord agrees to request from
its mortgagee or other security holder whose interest in the Premises is
superior to Tenant's interest therein a non-disturbance agreement which
shall provide that in the event Landlord defaults under such mortgage or
other security instrument, Tenant's possession of the Premises shall not be
disturbed so long as Tenant is not in breach of or Default of this Lease.
Landlord shall not be liable or responsible for any fees or expenses
charged by such mortgagee or security holder in attempting to secure such
non-disturbance agreement. Further, such mortgagee's or security holder's
failure or refusal to execute a non-disturbance agreement shall not be
deemed to be a breach or default of this Lease by Landlord.
13.16. ATTORNEY'S FEES. If Landlord retains an attorney to enforce the
terms of or determine rights under this Lease, Landlord shall be entitled to
recover reasonable costs, attorneys' fees and expenses, including those incurred
at the appellate level. In the event that Landlord fails to fulfill its
obligations hereunder and Tenant commences an action against Landlord under
Section 13.7(a) hereof, the party prevailing in such action shall be entitled to
its reasonable attorneys' fees and expenses.
13.17. CORPORATE AUTHORITY. Each individual executing this Lease on
behalf of Tenant represents and warrants that he is duly authorized to execute
and deliver this Lease on behalf of Tenant, in accordance with a duly adopted
resolution, and that this Lease is binding upon Tenant in accordance with its
terms. Tenant shall, contemporaneous with the execution of this Lease, deliver
to Landlord a certified copy of a resolution of the Board of Directors of Tenant
authorizing or ratifying the execution and delivery of this Lease.
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13.18. NO JOINT VENTURE. Landlord and Tenant, by entering into this Lease
or consummating the transactions contemplated hereby, shall not be considered
partners or joint venturers.
13.19. QUIET ENJOYMENT. Provided Tenant pays the Rent herein recited and
performs all of Tenant's other covenants and agreements herein contained,
Landlord covenants that Tenant shall peacefully have, hold and enjoy the
Premises, subject to all the other provisions herein contained.
13.20. MORTGAGE FINANCING. In the event Landlord desires to obtain
mortgage financing and Landlord's mortgagee or mortgagees request certain
modifications or amendments to this Lease, then Tenant, on not less than twenty
(20) days advance notice, agrees to execute such modifications or amendments as
required. Notwithstanding the foregoing, Tenant shall not be required to
execute any modifications or amendments to this Lease which shall modify the
provisions of this Lease relating to the amount of Rent or other charges to be
paid by Tenant, the size of the Premises, the duration of the term of this
Lease, or otherwise subject Tenant to additional cost or expense. Tenant agrees
to cooperate with Landlord's efforts in obtaining said mortgage financing.
13.21. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be an original and all of which together shall
constitute and be construed as one and the same instrument.
13.22. BROKERS. In connection with this Lease, Landlord and Tenant each
warrant and represent that they know of no person who is or might be entitled to
a commission, finder's fee or other like payment in connection herewith, and
each party hereto does hereby indemnify and agree to hold the other harmless
from and against any and all loss, liability and expenses that such other party
may incur should such warranty and representation prove incorrect.
13.23. FINANCIAL STATEMENTS. Tenant shall deliver to Landlord (a) within
120 days after the end of each calendar year annual audited operating statements
for Tenant and a copy of the balance sheet of Tenant as of the end of such year,
and related statements of income and retained earnings and changes in financial
position for such year, and (b) such other information as Landlord may from time
to time reasonably request. All financial statements of Tenant delivered to
Landlord shall be true and correct in all respects, shall be prepared in
accordance with generally accepted accounting principles, consistently applied,
and fairly present the financial condition of the subject thereof as of the
dates thereof. None of the aforesaid financial statements, or any certificate
or statement furnished to Landlord by or on behalf of Tenant in connection with
the transactions contemplated hereby, shall contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained therein or herein not misleading.
13.24. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Lease is or will
be made and delivered in the State and shall be governed by and construed and
interpreted in accordance with the laws of the United States of America and the
State, without regard to principles of conflict of laws. All judicial actions,
suits or proceedings brought by or against Landlord or Tenant with
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respect to its rights, obligations, liabilities or any other matter under or
arising out of or in connection with this Lease or any transaction contemplated
hereby or for recognition or enforcement of any judgment rendered in any such
proceedings shall be brought in any state or federal court in the State. By
execution and delivery of this Lease, Landlord and Tenant accept, generally and
unconditionally, the nonexclusive jurisdiction of the aforesaid courts and
irrevocably agree to be bound by any final judgment rendered thereby in
connection with this Lease or any transaction contemplated hereby from which no
appeal has been taken or is available. Tenant and Landlord each hereby
irrevocably waive any objections, including without limitation any objection to
the laying of venue or based on the grounds of forum non conveniens, which
either may now or hereafter have to the bringing of any such action or
proceeding in any such jurisdiction. Tenant and Landlord acknowledge that final
judgment against it in any action, suit or proceeding referred to in this
Section shall be conclusive and may be enforced in any other jurisdiction by
suit on the judgment, a certified or exemplified copy of which shall be
conclusive evidence of the same.
13.25. "AS IS" LEASE. Notwithstanding anything to the contrary herein
contained, Tenant expressly understands, acknowledges and agrees that the lease
of the Premises shall be made by Landlord to Tenant on an "as is, where is"
basis, and "with all faults," and Tenant acknowledges that Tenant has agreed to
lease the Premises in its present condition and that Tenant is relying solely on
its own examination and inspections of the Premises and not on any statements or
representations made by Landlord or any agents or representatives of Landlord.
Additionally, Tenant hereby acknowledges that, Landlord makes no warranty or
representation, express or implied, or arising by operation of law, including,
but in no way limited to, any warranty of condition, habitability,
merchantability, or fitness for a particular purpose of the Project, the
Premises or any portion thereof. Landlord hereby specifically disclaims any
warranty, guaranty or representation, oral or written, past, present or future,
of, as to, or concerning: (a) the nature and condition of the Project, the
Premises or any part thereof, including but not by way of limitation, as to its
water, soil or geology, or the suitability thereof, for any and all activities
and uses which Tenant may elect to conduct thereon, or any improvements Tenant
may elect to construct thereon, or any income to be derived therefrom or
expenses to be incurred with respect thereto, or any obligations or any other
matter or thing relating to or affecting the same; (b) the absence of any
Hazardous Substances on, in or under the Project on, in or under any land
adjacent to or abutting the Land; (c) the manner of construction or condition or
state of repair or lack of repair of the Project; (d) the nature or extent of
any easement, restrictive covenant, right-of-way, lease, possession, lien,
encumbrance, license, reservation, condition or other similar matter pertaining
to the Project, the Premises or any portion thereof; and (e) the compliance of
the Project, the Premises or the operation of the Project, the Premises or
portion thereof with any Legal Requirements.
13.26. THIRD PARTY BENEFICIARY. There are no third party beneficiaries of
this Lease, intended or otherwise.
13.27. ORIGINAL LEASE. Landlord and Tenant agree that the obligations of
Landlord and Tenant under the Original Lease with respect to adjustments for
estimated Impositions and Operating Expenses with respect to the period prior to
the Commencement Date shall be made prior to May 31, 1996 and shall survive the
execution and delivery of this Lease.
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13.28. GUARANTY. Contemporaneous with the execution and delivery of this
Lease, Tenant shall cause LaserMaster Technologies, Inc. to execute and deliver
to Landlord that certain Guaranty of even date herewith.
IN WITNESS WHEREOF, Tenant and Landlord have executed this Lease as of the
date set forth above.
"LANDLORD"
GRANDCHILDREN'S REALTY
ALTERNATIVE MANAGEMENT PROGRAM I
LIMITED PARTNERSHIP,
a Minnesota limited partnership
By TimeMasters, Inc.,
a Minnesota corporation
Its General Partner
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
Its President
"TENANT"
LASERMASTER CORPORATION,
a Minnesota corporation
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Its President
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