LEASE - BUSINESS PREMISES
This Lease is made November 22nd, 1999, between XXXXXXXX PROPERTIES,
INC., a corporation organized under the laws of the State of Minnesota, having
its principal place of business at X.X. Xxx 000, Xxxx xx Xxxxxx, Xxxxxx of
Swift, State of Minnesota, herein referred to as "Lessor," and REDBALL, LLC, a
limited liability company organized under the laws of the State of Minnesota,
having its principal place of business at X.X. Xxx 000, Xxxx Xxx 00, Xxxxxx, XX
00000, City of Xxxxxx, County of Swift, State of Minnesota, herein referred to
as "Lessee."
In consideration of the mutual covenants contained herein, the parties
agree as follows:
SECTION ONE
DESCRIPTION OF PREMISES
Lessor leases to Lessee the Premises located in the City of Xxxxxx,
County of Swift, State of Minnesota, and described more particularly as follows:
Parcel 1: Approximately the South 45,500 square feet of the total
73,375 square feet of main building (the "Main Building");
approximately 52,000 square feet of the total 104,000 square feet of
the fenced lot north of the Building (the "North Lot"). LEGAL
DESCRIPTION OF PARCEL 1 IS ATTACHED AS EXHIBIT 1 AND MADE A PART
HEREOF.
Parcel 2: South shop (the "South Shop") for paint and fabrication
facility, building consisting of approximately 22,920 square feet.
LEGAL DESCRIPTION OF PARCEL 2 IS ATTACHED AS EXHIBIT 2 AND MADE A PART
HEREOF.
Parcel 3: Unfenced lot immediately east of Parcel 1 containing
approximately 96,000 square feet for inventory storage. LEGAL
DESCRIPTION OF PARCEL 3 IS ATTACHED AS EXHIBIT 3 AND MADE A PART
HEREOF.
All of the property in Parcels 1, 2 and 3 shall be collectively
referred to herein as the "Property". Lessee's portions of Parcels 1, 2
and 3 are collectively referred to hereinafter as the "Premises." The
Main Building and the South Shop are collectively referred to herein as
the "Building."
Lessor warrants that there is direct legal access to the Premises by an
existing public street or road via the driveway(s) and curb cut(s)
currently on the Property.
SECTION TWO
TERM
The initial term of this Lease is five (5) years, beginning on November
__, 1999, and terminating on September 30, 2004, at 12:00 o'clock p.m. (the
"Initial Term").
SECTION THREE
RENEWAL
This Lease shall automatically renew annually (the "Renewal Terms")
after expiration of the Initial Term, unless canceled by Lessee . In the event
of such cancellation, Lessee shall provide Lessor with nine (9) months prior
written notice of cancellation. Rent for each of the Renewal Terms shall be
adjusted annually to reflect the current fair market value rental rate as
determined by Exhibit 4 attached hereto and made a part hereof. The Initial Term
and Renewal Terms are collectively referred to hereinafter as the "Term".
SECTION FOUR
FIRST RIGHT OF REFUSAL
In the event Lessor elects to sell the Property herein during the Term, Lessee
shall have a right of first refusal as follows:
1. Lessor shall deliver to Lessee notice of the terms of a bona
fide third party offer.
2. Lessee shall have thirty (30) days to exercise its right of
first refusal by giving notice to Lessor; thereafter, Lessee
shall have sixty (60) days to complete the transaction.
3. In the event Lessee does not elect to exercise its right of
first refusal within said thirty (30) days or fails to come up
with the necessary financing to complete the transaction
within said sixty (60) days, Lessor may thereafter complete
its sale with third party upon the same terms and conditions
as the original offer.
4. If Lessee declines to exercise its right of first refusal, and
the offer is subsequently modified, rejected or terminated or
such transaction does not otherwise close, the right of first
refusal shall be reinstated.
2.
5. If the Property is conveyed to Lessee under this right of
first refusal, any prepaid rent shall be apportioned and
applied on account of the purchase price.
SECTION FIVE
RENT
The total rent under this Lease during the Initial Term shall be Two
Hundred Sixteen Thousand Dollars ($216,000) per year (the "Rent"). Lessee shall
pay Lessor Rent in installments of Eighteen Thousand Dollars ($18,000) per
month, beginning on November ___, 1999, with succeeding payments due on the
first day of each month thereafter during the Initial Term.
As additional Rent, during the Initial Term of the Lease, Lessee shall
also reimburse Lessor for the pro rata cost of any insurance Lessor is required
to maintain on the Premises pursuant to Section 19 below, and the pro-rata
portion of the real estate taxes on the Premises.
Lessor shall be obligated to refund to Lessee Lessee's pro rata share
of the amount of any refund, rebate or the like of taxes and/or assessments that
were paid by Lessee (directly or as a part of Rent) regardless of whether such
refund, rebate or the like is received by Lessor after the expiration of the
Term.
SECTION SIX
USE OF PREMISES
The Premises may be used for any lawful purpose. Lessee shall restrict
its use to such purposes, and shall not use or permit the use of the Premises
for any other purpose without the written consent of Lessor, or Lessor's
authorized agent.
3.
SECTION SEVEN
AMERICANS WITH DISABILITIES ACT
The parties agree that the liabilities and obligations of Lessee and Lessor
under that certain federal statute commonly known as the Americans With
Disabilities Act (42 U.S.C. 12101 et seq.) as well as the regulations and
accessibility guidelines promulgated thereunder as each of the foregoing is
supplemented or amended from time to time (collectively, the "ADA") shall be
apportioned as follows:
1. Lessor represents and warrants to Lessee that the Premises and all
common areas and surrounding areas, including, but not limited to,
exterior and interior horizontal and vertical routes of ingress and
egress, off-street parking, entrances, doors, lobby areas, toilet rooms
and stalls, signage, life-safety systems and telephones, and all rules
and regulations applicable to the Premises, will comply, or shall be
promptly made to comply by Lessor, at Lessor's sole cost and expense,
with the ADA. If, pursuant to the terms of this Lease, Lessor is
responsible for constructing improvements for the Lessee to, for or
within the Premises, Lessor covenants and agrees to design and
construct or to cause to be designed and constructed such improvements
in compliance with the ADA and all other applicable codes and laws.
Notwithstanding any provision of this Lease to the contrary, Lessor
shall not be permitted to pass through to Lessee, as an operating cost
or otherwise, any cost incurred by Lessor in causing the Premises or
Building to comply with the ADA, as aforesaid.
2. From and after the commencement date of the Lease, and subject to
performance by Lessor of its obligations under subparagraph (a)
immediately above, Lessee covenants and agrees to conduct its
operations within the Premises in compliance with the ADA. In the event
that Lessee elects to undertake any alterations to, for or within the
Premises, then Lessee agrees to cause such alterations to be performed
in compliance with the ADA. In the event that Lessee shall be required
to make any alterations within the Premises in order to make the
Premises comply with the ADA and such required alterations are not
required because of Lessor's failure to perform its obligations under
subparagraph (a) immediately above, then, to the extent any other term
of this Lease requires the Lessee to obtain the Lessor's consent to
make such alterations, Lessor hereby agrees to provide such consent to
Lessee.
4.
SECTION EIGHT
QUIET ENJOYMENT
Lessor represents and warrants that: (a) it is the lawful owner of the
Property including the Premises; (b) that any and all prior leases for the
Premises have been terminated; (c) that it has the full right and power to make
this Lease; and (d) Lessee shall have the right to quietly hold, occupy, and
enjoy the Premises during the Term.
SECTION NINE
RESTRICTIONS ON USE
INTENTIONALLY DELETED
SECTION TEN
ENVIRONMENTAL
To Lessor's knowledge, no Hazardous Materials (as hereinafter defined)
are or have been located in or stored (except in full compliance with all
applicable laws and regulations), or disposed on or released or discharged from
(including groundwater contamination) the Premises, or Building; and the
Premises and Building, and their use and operation currently comply with all
applicable laws and regulations. Lessor shall protect, indemnify and hold
harmless Lessee, its directors, officers, employees, agents, successors and
assigns from and against any and all loss, damage, cost, expense or liability
(including attorneys' fees and costs) in connection with any Hazardous Materials
on, in, under or about the Premises or the Property, or the violation of any
applicable laws or regulations, unless caused by Lessee. This indemnity shall
survive termination or cancellation of this Lease.
5.
"Hazardous Materials" shall mean and include all hazardous and toxic
substances, waste or materials, any pollutant or contaminant, including, without
limitations, PCBs, asbestos, asbestos-containing material, petroleum and
petroleum-based products, and raw materials that are included under or regulated
by any environmental laws or that would pose a health, safety or environmental
standard, including, but not limited to all federal, state and local statutes,
ordinances, regulations and rules presently in force or hereafter enacted
relating to environmental quality, contamination and clean-up of hazardous
materials, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Resource
Conservation and Recovery Act of 1976, as amended, state superlien and
environmental clean-up statutes and all rules and regulations presently or
hereafter promulgated under said statutes as amended.
SECTION ELEVEN
WASTE, NUISANCE, OR UNLAWFUL ACTIVITY
Lessee shall not allow any waste or nuisance on the Premises, or use or
knowingly allow the Premises to be used for any unlawful purpose.
SECTION TWELVE
UTILITIES
Lessee shall arrange for and pay for, directly to the provider, all
separately metered utilities furnished to the Premises during the Term,
including electricity, gas, water, sewer, and telephone service. If any
utilities are not separately metered to the Premises, Lessee shall pay to Lessor
its pro rata share for such utilities.
6.
SECTION THIRTEEN
REPAIRS AND MAINTENANCE
Lessee shall regularly maintain the Premises and shall keep them in
good repair at its own expense. This repair and maintenance requirement shall
include, but not be limited to the maintenance and repair of all windows,
interior doors, adjacent sidewalks, and the exterior and interior walls of the
Premises. Lessor shall be responsible for the repair and maintenance of those
portions and elements of the Property which are used by Lessee in common with
Lessor and/or other lessees, all structural elements of the Property and the
roofs of the Property. Lessee shall reimburse Lessor for its pro rata share of
the costs of such maintenance and repair of the common areas.
SECTION FOURTEEN
DELIVERY, ACCEPTANCE, AND SURRENDER OF PREMISES
Lessor represents that the Premises, including, but not limited to, all
heating, ventilating, air conditioning, plumbing and other utility systems
service the Premises, are in fit condition for use by Lessee. Acceptance of the
Premises by Lessee shall be construed as recognition that the Premises are in
fit condition for use, with the exception of latent defects and defects that are
not reasonably discoverable upon limited inspection. Lessee shall surrender the
Premises at the end of the Term, in the same condition as when Lessee took
possession, allowing for reasonable use and wear, and damage by acts of God,
including fires and storms. Before delivery, Lessee shall remove all business
signs placed on the Premises by Lessee and restore the portion of the Premises
on which such signs were placed in the same condition as when received.
7.
SECTION FIFTEEN
PARTIAL DESTRUCTION OF PREMISES. "Relevant Space" means:
(1) the Premises as defined in Section 1;
(2) systems serving the Premises; and
(3) access to the Premises.
If the Relevant Space is damaged in part or whole from any cause,
Lessor shall at its expense promptly and diligently repair and restore
the Relevant Space to substantially the same condition as existed
before the damage. This repair and restoration shall be made within one
hundred eighty (180) days from the date of the damage unless the delay
is due to causes beyond Lessor's reasonable control. Lessor's liability
for repairs shall be limited to the amount of any insurance proceeds
and any commercially reasonable deductible.
2. If the Relevant Space cannot be repaired and restored within the one
hundred eighty (180) day period, then the Lessee may, within thirty (30) days
after determining that the repairs and restoration cannot be made within one
hundred eighty (180) days, cancel the Lease by giving notice to the Lessor.
Nevertheless, if the Relevant Space is not repaired and restored within two
hundred ten (210) days from the date of the damage, then Lessee may cancel the
Lease at any time after the two hundred tenth (210th) day and before the two
hundred fortieth (240th) day following the date of damage. Lessee shall not be
able to cancel this Lease if its willful misconduct caused the damage unless
Lessor is not promptly and diligently repairing and restoring the Relevant
Space.
3. If the parties cannot agree in writing whether the repairs and
restoration described in paragraph 2 of this Section 15 will take more than one
hundred eighty (180) days to make, the determination will be submitted to
arbitration in accordance with Section 26 of this Lease.
4. Rent and shall xxxxx in proportion to that part of the Improvements
that are unfit for use in Lessee's business. The abatement shall also consider
the nature and extent of interference to Lessee's ability to conduct business in
the Premises and the need for access and essential services. The abatement shall
continue from the date the damage occurred until thirty (30) business days after
Lessor completes the repairs and restoration, or until Lessee again fully
utilizes the Premises or the part rendered unusable, whichever is first.
5. Notwithstanding anything else in this Section 15, Lessor is not
obligated to repair or restore damage to Lessee's trade fixtures, furniture,
equipment, or other personal property.
6. If more than fifty (50%) of the Premises are destroyed and the Lease
is in the last nine (9) months of its Term (and Lessee does not elect to
exercise any remaining extension or renewal options after written inquiry by
Lessor after the event of damage or destruction), then Lessor may cancel this
Lease. To cancel, Lessor must give notice to Lessee within thirty (30) days
after the Lessor knows of the damage.
8.
7. If either party cancels this Lease as permitted by this Section 15,
then this Lease shall end on the day specified in the cancellation notice. The
Rent and any other charges shall be payable up to the cancellation date (but
shall reflect any abatement). Lessor shall promptly refund to Lessee any
prepaid, unaccrued Rent, accounting for any abatement, plus security deposit, if
any, less any sum then owing by Lessee to Lessor.
SECTION SIXTEEN
ENTRY ON PREMISES BY LESSOR
Lessor reserves the right to enter on the Premises at reasonable times
to inspect them, perform required maintenance and repairs, or make additions,
alterations, or modifications to any part of the Building, and Lessee shall
permit Lessor to do so. Lessor may erect scaffolding, fences, and similar
structures, post relevant notices, and place moveable equipment in connection
with making alterations, additions, or repairs, all without incurring liability
to Lessee for disturbance of quiet enjoyment of the Premises, or loss of
occupation thereof, provided Lessor shall not unreasonably interfere with
Lessee's business operations.
SECTION SEVENTEEN
SIGNS AND MARQUEES INSTALLED BY LESSEE
Lessee shall not construct or place signs, marquees, or other
structures projecting from the exterior of the Premises without the written
consent of Lessor. All such signs, marquees, or other structures shall comply
with all applicable local ordinances. Lessee shall remove signs, advertisements,
decorations, or other structures it has placed on the Premises that are not in
compliance with local ordinances. If Lessee fails to remove such signs,
advertisements, decorations, or other structures within thirty (30) days after
receiving written notice from Lessor to remove them, Lessor reserves the right
to enter the Premises and remove them at the expense of Lessee.
9.
SECTION EIGHTEEN
NONLIABILITY OF LESSOR FOR DAMAGES
Lessor shall not be liable for liability or damage claims for injury to
persons or property from any cause relating to the occupancy of the Premises by
Lessee, including those arising out of damages or losses occurring on sidewalks
and other areas Lessee is responsible for adjacent to the Premises during the
Term, unless such damage or injury is caused by an intentional act or negligence
of Lessor, its employees, agents, officers, invitees or licensees. Lessee shall
indemnify Lessor from all other liability, loss, or other damage claims or
obligations resulting from any injuries or losses occurring on the Premises
during the Term. Lessor shall indemnify and hold harmless Lessee for all
liability, loss or other damage occurring on the Property, exclusive of the
Premises and any other areas Lessee is responsible for, unless such damage or
injury is caused by an intentional act or negligence of Lessee, its employees,
agents, officers, invitees or licensees.
SECTION NINETEEN
LIABILITY AND PROPERTY INSURANCE
Lessor shall at all times during the Term keep the Building insured for
its full replacement cost against loss or damage by fire and against those
perils included from time to time in the standard form of extended coverage
insurance endorsement, and such other coverage as may be deemed necessary by
Lessor.
Lessee shall procure and maintain in force at its expense during the
Term public liability insurance in the amount of not less than $2,000,000.00 per
occurrence, combined single limit. The liability insurance policies shall name
Lessor as an additional insured. Copies of the policies shall be delivered to
Lessor. Lessee shall obtain a written obligation from the insurers to notify
10.
Lessor in writing at least thirty (30) days prior to cancellation or refusal to
renew any policy. If the insurance policies are not kept in force during the
Term, Lessor may procure the necessary insurance and pay the premium therefor,
and the premium shall be repaid to Lessor as an additional rent installment for
the month following the date on which the premiums were paid by Lessor.
Lessee shall procure and maintain in force at his expense during the
Term a policy of insurance covering the Lessee's equipment and personal property
against loss from fire, extended coverage perils, vandalism, and malicious
mischief for an amount not less than the insurable value thereof. Insurance
policy shall contain a loss payable clause in favor of Lessor. In the event of
damage to the Premises by fire or other casualty, Lessee shall promptly serve
notice of such damage to Lessor and the insurance company. Copies of the policy
shall be delivered to Lessor. Lessee shall obtain a written obligation from the
insurers to notify Lessor in writing at least thirty (30) days prior to
cancellation or refusal to renew any policy. If the insurance policy is not kept
in force through the Term, Lessor may procure the necessary insurance and pay
the premium therefor, and the premium shall be repaid to Lessor as an additional
rent installment for the month following the date on which the premiums were
paid by Lessor.
Notwithstanding any other provision in this Lease to the contrary,
Lessor and Lessee hereby release one another from any and all liability or
responsibility (to the other or anyone claiming through or under them by way of
subrogation or otherwise) for any loss or damage covered by casualty insurance
or coverable by the insurance required by this Section, even if such loss or
damage shall have been caused by the fault or negligence of the other party, or
anyone for whom such party may be responsible.
11.
SECTION TWENTY
ASSIGNMENT, SUBLEASE, OR LICENSE
Except to a Permitted Transferee (as hereinafter defined), Lessee shall
not assign or sublease the Premises, or any right or privilege connected
therewith, or allow any other person except agents and employees of Lessee to
occupy the Premises or any part thereof without first obtaining the written
consent of Lessor. "Permitted Transferees" shall include any entity controlling,
controlled by, or under common control with Lessee, as well as any entity
acquiring all or substantially all of the assets of Lessee. A consent by Lessor
shall not be a consent to a subsequent assignment, sublease, or occupation by
other persons. An unauthorized assignment, sublease, or license to occupy by
Lessee shall be void and shall terminate the Lease at the option of Lessor. The
interest of Lessee in this Lease is not assignable by operation of law without
the written consent of Lessor.
SECTION TWENTY-ONE
BREACH
The appointment of a receiver to take possession of the assets of
Lessee, a general assignment for the benefit of the creditors of Lessee, any
action taken or allowed to be taken by Lessee under any bankruptcy act, or the
failure of Lessee to comply with each and every term and condition of this Lease
shall constitute a breach of this Lease. Lessee shall have thirty (30) days
after receipt of written notice from Lessor of any breach to correct the
conditions specified in the notice. Lessor's remedies shall be as set forth in
Section 22 below.
If Lessor is in default or breach of this Lease or any other agreement
between Lessor and Lessee, Lessor shall cure any such default within thirty (30)
days after written notice of the same from Lessee, or such longer period as is
reasonably necessary to cure the default, provided that
12.
the cure is commenced within said thirty (30) day period and provided that
Lessor continues to diligently prosecute such cure. In any event, however, if
said default or breach is not cured within thirty (30) days after notice
thereof, then Lessee shall have the right to cure the default or breach and
shall have the right to recover the costs thereby incurred from Lessor and/or to
offset such amounts from the Rent payment(s) next coming due under this Lease,
in addition to any and all other rights and remedies that may be available to
Lessee.
SECTION TWENTY-TWO
REMEDIES OF LESSOR FOR BREACH BY LESSEE
Lessor shall have the following remedies in addition to its other
rights and remedies in the event Lessee breaches this Lease and fails to make
corrections as set forth in Section Twenty-one:
1. Lessor may re-enter the Premises immediately and remove the
property and personnel of Lessee, store the property in a public
warehouse or at a place selected by Lessor, at the expense of Lessee.
2. After re-entry, Lessor may terminate the Lease on giving
fifteen (15) days' written notice of termination to Lessee. Without
such notice, re-entry will not terminate the Lease. On termination,
Lessor may recover from Lessee all damages proximately resulting from,
the breach, including the cost of recovering the Premises and the worth
(present value) of the balance of this Lease over the reasonable rental
value of the Premises for the remainder of the Term, which sum shall be
immediately due Lessor from Lessee.
3. After re-entering, Lessor may relet the Premises or any
part thereof for any term without terminating the Lease, at such rent
and on such terms as it may reasonably choose. Lessor may make
reasonable alterations and repairs to the Premises. The duties and
liabilities of the parties if the Premises are relet as provided herein
shall be as follows:
a. addition to Lessee's liability to Lessor for
breach of the Lease, Lessee shall be liable for all reasonable
expenses of the reletting, for the reasonable alterations and
repairs made, and for the difference between the rent received
by Lessor under the new lease agreement and the rent
installments that are due for the same period under this
Lease.
13.
x. Xxxxxx at its option shall have the right to apply
the rent received from reletting the Premises (i) to reduce
Lessee's indebtedness to Lessor under the Lease, not including
indebtedness for rent, (ii) to expenses of the reletting and
alterations and repairs made, (iii) to rent due under this
Lease, or (iv) to payment of future rent under this Lease as
it becomes due.
If the new lessee does not pay a rent installment promptly to
Lessor, and the rent installment has been credited in advance of
payment to the indebtedness of Lessee other than rent, or if rentals
from the new lessee have been otherwise applied by Lessor as provided
for herein, and during any rent installment period, are less than the
rent payable for the corresponding installment period under this Lease,
Lessee shall pay Lessor the deficiency, separately for each rent
installment deficiency period, and before the end of that period.
Lessor may at any time after such reletting terminate the Lease for the
breach on which Lessor based the re-entry and relet the Premises.
4. Notwithstanding any other provision in this Lease, Lessee
shall remain entitled to all rights and remedies available pursuant to
all applicable eviction, ejection, unlawful detainer or similar laws,
and Lessor shall be obligated to use best efforts to mitigate damages.
Intentionally Deleted
SECTION TWENTY-THREE
CONDEMNATION
If during the Term, the entire Premises shall be taken as a result of
the power of eminent domain, condemnation proceedings, or other like proceedings
(the "Proceedings"), the Lease and all right, title, and interest of Lessee
hereunder shall cease and come to an end on the date of taking of possession
pursuant to the Proceedings.
Proceedings resulting in the taking of a part of the Premises leased
herein, but leaving the remaining Premises usable by Lessee for the purposes of
its business, will not terminate this Lease unless Lessor, at its option,
terminates the Lease by giving at least thirty (30) days' prior written notice
of termination to Lessee. The effect of any condemnation, where the option to
14.
terminate is not exercised, will be to terminate the Lease as to the portion of
the Premises condemned, and the Lease of the remainder of the Premises shall
remain intact. The rental for the remainder of the Premises during the Term
shall be reduced by the part of the Premises taken and shall otherwise xxxxx as
equitable to Lessee by further taking into account the nature and extent of the
interference to Lessee's ability to conduct business in the Premises..
If part or all of the Premises are condemned for a limited period of
time ("Temporary Condemnation"), this Lease shall remain in effect. Rent and
Lessee's obligations for the part of the Premises taken shall xxxxx during the
Temporary Condemnation in proportion to the part of the Premises that Lessee is
unable to use in its business operations as a result of the Temporary
Condemnation, and shall otherwise xxxxx as equitable to Lessee by further taking
into account the nature and extent of interference to Lessee's ability to
conduct business in the Premises.
Lessor reserves the right to damages paid because of any partial or
entire taking of the Premises. Notwithstanding anything else in this Lease,
Lessee may claim and recover from the condemning authority a separate award for
Lessee's moving expenses, business dislocation damages, Lessee's personal
property and fixtures, the unamortized costs of leasehold improvements paid for
by Lessee, and any other applicable award. Each party shall seek its own award,
at its own expense, and neither shall have any right to the award made to the
other.
SECTION TWENTY-FOUR
WAIVER
Any waiver of any term or condition of this Lease shall not operate as
a waiver of any other breach of such term or condition, or of any other term or
condition, nor shall any failure to enforce a provision hereof operate as a
waiver of such provision or of any other provision hereof.
15.
SECTION TWENTY-FIVE
ARBITRATION
As provided in this Lease, certain controversies or claims arising out
of the transaction which is the subject matter of this Lease shall be resolved
by arbitration conducted in Minneapolis, Minnesota under the commercial rules of
the American Arbitration Association. The award of arbitration may reduce to
judgment according to applicable Minnesota Statutes. The Arbitrator(s) shall
have the discretion to determine which party shall be liable for the costs of
arbitration (including, but not limited to, the Arbitrator(s) charges). Each
party shall bear their own costs and attorney fees incurred in arbitration.
SECTION TWENTY-SIX
REMOVAL OF IMPROVEMENTS AND FIXTURES
Any improvements or fixtures installed by Lessee in the Premises or on
the property, may, at Lessee's option, be removed at any time, provided that
Lessee repairs any damage caused thereby. Lessor shall have no right under any
statute, ordinance or other law for distress or distraint or to attach or impose
a lien on any of Lessee's fixtures, furnishings, equipment or personal property
in the Premises and Lessor waives any such rights otherwise available to Lessor.
SECTION TWENTY-SEVEN
YEAR 2000 ISSUES
Lessor represents and warrants that it has performed or caused to be
performed a reasonable analysis of the so-called Year 2000 problem with respect
to the Building and the Premises and that Lessor has no knowledge of any uncured
problems with respect to the same, including but not limited to with respect to
all operating and computer systems and all software
16.
used in connection with the operation, maintenance and/or management of the
Building and/or accounting, billing and/or data processing concerning the
Building.
SECTION TWENTY-EIGHT
NOTICES
All communications with respect to this Lease shall be considered if
delivered personally or sent as follows:
1. If to Lessor, by first class, certified mail, postage prepaid,
return receipt requested, addressed as follows:
Xxxxxxxx Properties, Inc.
ATTN: Xxxxxx Xxxxxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxxxx
Xxxxxxx, Helseth, McLaughlin, Xxxxxxxx & Xxxxxxx, Chtd.
000 Xxxxxxxx Xxxxxx, X.X. Xxx 000
Xxxxxx, XX 00000.
2. If to Lessee, by first class, certified mail, postage prepaid,
return receipt requested, addressed as follows:
Redball, LLC
ATTN: President
-----------------------------------
-----------------------------------
with a copy to:
Xxxxx Xxxxxxxx
-----------------------------------
-----------------------------------
and
Ag-Chem Equipment Co., Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxx Xxxxxxxxxx
17.
or mailed to such other address as the parties hereto may designate by notice
given in like manner. Notice shall be effective three (3) days after mailing or
immediately upon personal delivery.
SECTION TWENTY-NINE
ENTIRE AGREEMENT
This Lease, together with all exhibits and writings required or
contemplated hereby, constitutes the entire agreement between the parties hereto
with respect to the transaction contemplated hereby and no party shall be liable
or bound to another in any manner by and warranties, representations, or
guarantees, except as specifically set forth herein.
SECTION THIRTY
MODIFICATION, AMENDMENTS AND WAIVERS
The parties hereto at any time may, by written agreement: (i) extend
the time for the performance of any of the obligations or other acts of the
parties hereto; (ii) waive any inaccuracies in the representations and
warranties contained in this Lease or in any exhibit, schedule or other
instrument delivered pursuant hereto; (iii) waive compliance with any of the
covenants or agreements contained in this Lease; or (iv) make any other
modifications of this Lease. This Lease shall not be altered or otherwise
amended except pursuant to an instrument in writing executed by both parties
hereto.
SECTION THIRTY-ONE
SEVERABILITY
No finding or adjudication that any provision of this Lease is invalid
or unenforceable shall affect the validity or enforceability of the remaining
provisions herein, and this Lease shall be construed as though such invalid or
unenforceable provision were omitted.
18.
SECTION THIRTY-TWO
MISCELLANEOUS
1. The terms and conditions of this Lease shall inure to the benefit of
and be binding upon the parties hereto and the respective legal representatives,
successors, and assigns of both the parties hereto.
2. The headings incorporated in the Lease are for convenience in
reference only and are not a part of the Lease and do not in any way limit or
add to the terms and provisions hereof.
3. At any time that Lessor's or Lessee's consent, approval or
discretion is required or is to be implemented, a reasonableness standard shall
be deemed to apply, and neither party shall unreasonably withhold, condition or
delay its consent or approval, nor exercise discretion in an unreasonable
manner.
4. This Lease is made pursuant to and shall be construed under the laws
of the State of Minnesota.
5. This Lease shall be executed in two (2) counterparts but each of
these counterparts shall, for all purposes, be deemed to be an original, but
both counterparts shall together constitute one in the same instrument.
6. In the event the Lessee voluntarily dissolves, or winds up its
affairs, this Lease shall automatically terminate, and the parties shall have no
further liability under this Lease. In addition, if Xxxxxx and Xxxxx Xxxxxxxx
(or their Family Members", as defined in the Member Control Agreement dated
November __, 1999 between Ag-Chem, Equipment Co., Inc. and C.A.P. Inc.) no
longer directly or indirectly control 50% of the Membership Interests of Lessee,
Lessee may terminate this Lease upon 30 days notice to Lessor.
19.
IN WITNESS WHEREOF, the parties have executed this Lease the day and
year first above written.
XXXXXXXX PROPERTIES, INC.
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
Its: President
REDBALL, LLC
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
Its: President and Chief Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF Hennepin )
--------
The foregoing instrument was acknowledged before me this 22nd day of
November, 1999 by Xxxxx Xxxxxxxx, President of Xxxxxxxx Properties, Inc., on
behalf of said corporation.
[SEAL] XXXXX X. XXXXXXXX /s/ Xxxxx X. Xxxxxxxx
NOTARY REPUBLIC - MINNESOTA -------------------------------------
HENNEPIN COUNTY Notary Public
My Comm. Expires Jan 31, 0000
XXXXX XX XXXXXXXXX )
) ss.
COUNTY OF Hennepin )
--------
The foregoing instrument was acknowledged before me this 22nd day of
November, 1999 by Xxxxx Xxxxxxxx, President and Chief Manager of Redball, LLC,
on behalf of said limited liability company.
[SEAL] XXXXX X. XXXXXXXX /s/ Xxxxx X. Xxxxxxxx
NOTARY REPUBLIC - MINNESOTA -------------------------------------
HENNEPIN COUNTY Notary Public
My Comm. Expires Jan 31, 2000
20.
EXHIBIT 1
PARCEL 1 LEGAL DESCRIPTION
That part of the Northeast Quarter (NE 1/4) of Section Nine (9), Township One
Hundred Twenty-one (121), Range Thirty-nine (39) described as follows, to-wit:
Commencing at the Northwest (NW) corner of said Section Nine (9); running thence
South on the West line of said Section Nine (9) a distance of 232.9 feet to a
point where said West line of said Section Nine (9) intersects with the old
Northerly boundary line of the right of way of U.S. Trunk Xxxxxxx Xx. 00; thence
deflecting 66 Degrees 37 Minutes along said Northerly boundary line of Trunk
Xxxxxxx Xx. 00 right of way for a distance of 5121.4 feet to a point on said
Trunk Xxxxxxx Xx. 00 right of way; thence at right angles to said Trunk Xxxxxxx
Xx. 00 right of way in a Northerly direction a distance of 50.5 feet to a point
which is the point of beginning; thence continuing Northerly along the same line
a distance of 549.5 feet; thence North 0 Degrees 23 Minutes 29 Seconds West a
distance of 852.76 feet; thence due East 354.45 feet to the East line of said
Section Nine (9); thence South 0 Degrees 23 Minutes 29 Seconds East along said
East line of Section Nine (9) to a point which would be intersected by a line
parallel to and 50.5 feet North of the old Northerly boundary line of the right
of way of Trunk Xxxxxxx Xx. 00; thence Westerly and parallel with said North
right of way boundary line of Trunk Xxxxxxx Xx. 00 to the point of beginning;
EXCEPTING however, the following described parcel:
Commencing at the Northwest corner of said Section Nine (9); thence on
an assumed bearing of South 1 Degree 15 Minutes 09 Seconds East, along
the West line of said Section Nine (9), a distance of 232.90 feet to
the old Northerly right xx xxx xxxx xx X.X.X.X. #00, thence on a
bearing of South 67 Degrees 47 Minutes 59 Seconds East along last said
old right of way line, 5121.40 feet; thence on a bearing of North 22
Degrees 12 Minutes 01 Seconds East 600.00 feet; thence on a bearing of
South 67 Degrees 47 Minutes 59 Seconds East 383.91 feet to the East
line of said Section Nine (9); thence on a bearing of North 0 Degrees
23 Minutes 29 Seconds West along last said line, 302.89 feet to the
point of beginning of the tract herein described; thence continuing on
a bearing of North 0 Degrees 23 Minutes 29 Seconds West along last said
line 75.00 feet; thence on a bearing of South 89 Degrees 36 Minutes 31
Seconds West, 354.45 feet; thence on a bearing of South 0 Degrees 23
Minutes 29 Seconds East 75.00 feet; thence on a bearing of North 89
Degrees 36 Minutes 31 Seconds East 354.45 feet to the point of
beginning, containing 0.61 acres, more or less,
Swift County, Minnesota.
EXHIBIT 2
PARCEL 2 LEGAL DESCRIPTION
That part of the Southeast Quarter of the Southeast Quarter of Section 7,
Township 121, Range 39 described as follows: commencing at a point 2,112 feet
East of the Southwest corner of the Southeast Quarter of said Section 7; thence
North 660 feet; thence East 451 feet; thence South 660 feet; thence West 451
feet to the point of beginning.
Swift County, Minnesota.
EXHIBIT 3
PARCEL 3 LEGAL DESCRIPTION
Beginning at the Xxxxxxxxx xxxxxx xx Xxxxxxx 00, Xxxxxxxx 000, Xxxxx 00; thence
due East along the North line of said Section 10 a distance of 240 feet; thence
due South 1937 feet parallel with the West line of said Section 10 to a point,
which is the point of beginning of the tract herein to be conveyed; thence
continuing South on said line a distance of 605 feet to a point on the North
line of U.S. Trunk Xxxxxxx Xx. 00; thence in a Northwesterly direction along
said North line of said Xxxxxxx Xx. 00 to a point on the West line of said
Section 10; which point is 2416 feet due South of the Northwest corner of said
Section 10; thence due North along said West line a distance of 479 feet thence
due East 240 feet to the point of beginning.
EXHIBIT 4
MARKET RENT DEFINITION
1. "Market Rent" means the fair market value rental rate for the Premises
with respect to the time period in question, taking into account all
pertinent factors and assuming the Lessor to be a prudent person
willing to lease, but being under no compulsion to do so, and assuming
the Lessee to be a prudent person willing to lease but being under no
compulsion to do so. No increase in Market Rent shall be made for any
improvements or other enhancements to value made or caused by Lessee.
2. Lessor and Lessee shall negotiate such Market Rent in good faith. If
within thirty (30) days after Lessee exercises each respective Renewal
Term, Lessor and Lessee are not able to mutually agree on Market Rent,
then each party shall choose a party with recognized experience in
determination of commercial rental rates in the geographical area of
the Premises who shall be a member in good standing of the American
Institute of Real Estate Appraisers (or successor organization or, if
no such organization exists, a person of similar professional
qualifications), with the designation M.A.I., and shall give notice of
the name and address of such person to the other within forty-five (45)
days of Lessee exercises each respective Renewal Term. Those two (2)
persons shall within fifteen (15) days after designation select a third
person who is experienced in determination of commercial rental rates
for comparable space in same geographical area as the Premises. The
third person (hereinafter the "Expert") shall make a determination of
Market Rent as expeditiously as possible thereafter but in no event
shall the determination be made more than ninety (90) days after Lessee
exercises each respective Renewal Term. Nothing herein shall be deemed
to preclude Lessor and Lessee from directly mutually agreeing on (i)
Market Rent, or (ii) the Expert, instead of initially selecting two (2)
other appraisers to select the Expert.
3. Upon the Expert's determination of the Market Rent, such determination
shall be final and binding on the parties. Any rent previously paid by
Lessee at other than Market Rent for the applicable Extension Option
shall be retroactively adjusted.
Each party will pay any and all fees and expenses incurred in connection with
such party's chosen appraiser and the fees and expenses for the Expert will be
borne equally by Lessor and Lessee.
