LEASE
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THIS LEASE is made and entered into retroactively effective as of August
22, 1997, by and between Xxxxx X. Xxxxxxxx and E. Xxx Xxxxxxxx, as trustees of
that certain revocable trust under that certain Amendment and Restatement of
Xxxxx X. Xxxxxxxx Revocable Trust Agreement dated December 20, 1996, an
undivided 1/2 interest and E. Xxx Xxxxxxxx and Xxxxx X. Xxxxxxxx as trustees
under that certain Amendment and Restatement of E. Xxx Xxxxxxxx Revocable Trust
Agreement dated December 20, 1996 an undivided 1/2 interest, whose address is
00000 - 00xx Xxxxxx Xxxxx, Xxxxxxxx, XX 00000, hereinafter referred to as
"LANDLORD", and Northstar Computer Forms, Inc., a Minnesota corporation, whose
address is 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxx, XX 00000 hereinafter
referred to as "TENANT".
Landlord in consideration of the rents, terms, covenants, conditions and
agreements hereinafter provided and described on the part of the Tenant to be
paid, kept and performed, does lease and let unto the Tenant, and Tenant does
hereby take and hire from Landlord the building and improvements described in
Section 1 hereof located on the real property described in Section 1 hereof
together with said real property and the parties do hereby covenant, promise and
further agree as follows:
1. LEASED PREMISES
The leased premises shall consist of the building and improvements located
at 0000 Xx. Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx legally described in EXHIBIT "A"
attached hereto and made a part hereof, hereinafter referred to as the
"PREMISES".
2. TERM
2.1 The term of this Lease (the "LEASE TERM") shall be for ten (10)
years commencing on August 22, 1997 ("COMMENCEMENT DATE"). The first Lease Year
shall be for a period of twelve (12) consecutive calendar months from the
Commencement Date, except that if the Commencement Date shall be other than the
first day of a calendar month, the first Lease Year shall be the period from
such Commencement Date to the end of the calendar month in which it shall occur,
plus the following twelve (12) calendar months. Each Lease Year after the first
Lease Year shall be a successive period of twelve (12) calendar months ("LEASE
YEAR"). At either party's request, the other agrees to execute for recording
purposes a short form or memorandum of this Lease, which short form or
memorandum of this Lease will set forth the Commencement Date, and the date of
termination of the Lease Term.
2.2 Tenant shall have the right to extend the Lease Term for two (2)
additional periods of five (5) years each the "OPTION TERM(S)" upon the same
terms and conditions as
provided in the original Lease Term. Tenant shall exercise this option by
giving Landlord nine (9) months written notice prior to the date of commencement
of such Option Term, as applicable. The annual rent during the Option Term
shall be as set forth in Section 3.3 hereof.
3. RENT
3.1 For purposes of computing rent under this Section 3, the following
terms shall have the meanings set forth below:
3.1.1 "BUREAU" means the Federal Bureau of Labor Statistics or any
successor agency that shall issue indices of data referred to in
(ii) below.
3.1.2 "PRICE INDEX" means the Consumer Price Index for Urban Wage
Earners and Clerical Workers (United States City Average) issued
from time to time by the Bureau, or any other measure hereafter
employed by the Bureau in lieu of such price index that measures the
cost of living nationally.
3.1.3 "AVERAGE PRICE INDEX" for any Lease Year is the average of
Price Indices issued in the twelve (12) month period ending two (2)
months prior to the first day of that Lease Year and such average is
the "AVERAGE PRICE INDEX" for that Lease Year. In making an average
there shall be excluded any index which itself is an average (i.e.,
there shall be no averaging of averages).
3.1.4 "BASE INDEX" is the average of the Price Indices issued by
the Bureau in the twelve (12) month period from September 1, 1997 to
August 31, 1998. In making such average, there shall be excluded
any index which itself is an average.
3.1.5 The "ISSUE" of a Price Index means the release to the public
of the Price Index, and the date of issue shall be the date it is so
released whether or not the issued Index is for the current month or
period in which the release occurs or for a prior month or period.
3.2 Tenant shall pay to Landlord at the address set forth above or at
such other place as Landlord shall from time to time designate in writing,
annual rental for each Lease Year in the amounts hereinafter set forth, payable
in advance in successive equal monthly installments on the first day of each and
every month during the Lease Term. Rental for a partial month shall be pro
rated based on the annual rent for the applicable Lease Year and shall be
payable together with the monthly rental installment next coming due. Except as
provided for in Section 7.3 below, it is understood and agreed that the annual
rent provided for herein shall be absolutely net to Landlord throughout the
Lease Term, free of any and all real estate taxes, costs, insurance, expenses,
liabilities, charges or other deductions whatsoever with respect to the Premises
and/or the ownership, leasing, operation, maintenance, the repair, rebuilding,
use or occupation thereof, or with respect to any interest of Landlord therein,
it
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being the intention of the parties hereto that by the execution of this Lease,
the Tenant shall, during the Lease Term, assume with respect to the Premises
every obligation relating thereto which the ownership thereof would entail and
which, but for this Lease, would be borne by Landlord. This Lease is a net
Lease, and, notwithstanding any law, all rents and other sums payable under this
Lease by Tenant whether as rents or otherwise, shall be paid without offset,
counterclaim, abatement or defense, and this Lease shall not be subject to
termination by Tenant by reason of any cause whatever, unless such right to
terminate is expressly set forth in this Lease.
3.3 The annual rental for each Lease Year is as follows:
3.3.1 For the 1st, 2nd and 3rd Lease Years, the annual rental
shall be $191,000.
3.3.2 For the 4th, 5th and 6th Lease Years $191,000, plus a sum
equal to the amount by which $191,000 times the Average Price Index
for the 4th Lease Year divided by the Base Index exceeds $191,000.
3.3.3 For the 7th, 8th and 9th Lease Years, $191,000, plus a sum
equal to the amount by which $191,000 times the Average Price Index
for the 7th Lease Year divided by the Base Index exceeds $191,000.
3.3.4 For the 10th Lease Year and the 11th and 12th Lease Years of
the Option Term, if applicable, $191,000, plus a sum equal to the
amount by which $191,000 times the Average Price Index for the 10th
Lease Year divided by the Base Index exceeds $191,000.
3.3.5 For the 13th, 14th and 15th Lease Years of the Option Term,
if applicable, $191,000, plus a sum equal to the amount by which
$191,000 times the Average Price Index for the 13th Lease Year
divided by the Base Index exceeds $191,000.
3.3.6 For the 16th, 17th and 18th Lease Years of the Option Term,
if applicable, $191,000, plus a sum equal to the amount by which
$191,000 times the Average Price Index for the 16th Lease Year
divided by the Base Index exceeds $191,000.
3.3.7 For the 19th and 20th Lease Years of the Option Term, if
applicable, $191,000, plus a sum equal to the amount by which
$191,000 times the Average Price Index for the 19th Lease Year
divided by the Base Index exceeds $191,000.
In no event shall annual rent in any Lease Year be less than $191,000.
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4. INSURANCE AND INDEMNITY
4.1 The Tenant shall, throughout the Lease Term, at its own cost and
expense, procure and maintain insurance which covers the Premises against fire,
and wind and storm damage and such other risks as may be included in the
broadest form of extended coverage insurance as may from time to time be
available to Tenant. Replacement cost and agreed amount endorsements must be
obtained, with a deductible not greater than $25,000.00.
4.2 The Tenant agrees to procure and maintain, at the Tenant's own
expense, comprehensive general liability insurance with respect to the Tenant's
use and occupancy of the Premises, the real estate described in EXHIBIT "A" and
improvements thereon, with limits of at least $500,000.00 per
person/$1,000,000.00 per occurrence for bodily injury and $500,000.00 for
property damage.
4.3 The Tenant agrees to place and maintain, at the Tenant's own
expense, rent loss insurance in an amount not less than one year's rent plus the
amount of real estate taxes and annual installments of special assessments, and
the annual insurance premiums hereunder.
4.4 The Tenant agrees to notify the Landlord in writing if it is unable
to procure all or some part of the insurance, and if the Landlord shall procure
such insurance, then the Tenant will, within three (3) days from receiving
written notice, pay the Landlord the amount of the premiums paid.
4.5 All policies of insurance provided for or contemplated by this
Section shall name the Landlord and the Tenant as insureds or additional
insured, as their respective interests may appear and shall provide that the
policies cannot be canceled without ten (10) days written notice to the parties.
All insurance companies must be approved in writing by the Landlord, such
consent not to be unreasonably withheld. The Tenant shall provide the Landlord
with a certificate of insurance evidencing all required coverages on or before
the Commencement Date and upon request copies of all such policies. In the
event that Landlord shall mortgage its interest or grant a deed of trust
conveying its interest in the Premises, the holder thereof shall be named as
loss payee and the policies shall further provide that the policies cannot be
canceled without ten (10) days written notice to the holder.
4.6 The Tenant shall defend, indemnify and hold the Landlord harmless
against any and all claims, damages and lawsuits arising after the Commencement
Date of this Lease and any orders, decrees or judgments which may be entered
therein, brought for damages or alleged damages resulting from any injury to
person or property or from loss of life sustained in or about the Premises, and
the Tenant agrees to save the Landlord harmless from, and indemnify the Landlord
against, any and all injury, loss or damage, of whatever nature, to any person
or property caused by, or resulting from any act, omission or negligence of the
Tenant or by any employee or agent of the Tenant. Provided that Tenant
maintains comprehensive general liability insurance as required under Section
4.2 above, the indemnification under the
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foregoing sentence shall be limited to amounts payable under the comprehensive
general liability insurance described therein. Landlord and Tenant hereby
release each other from any and all liability for any loss or damage caused by
fire or any of the extended coverage casualties to the Premises or the parties'
respective property located thereon, and hereby waive on behalf of their
respective insurance carriers any right of subrogation with respect to recovery
on account of any such loss. It is the intent hereof that so long as Tenant
maintains insurance in accordance with the provisions of this Article 4 that
Landlord only look to the proceeds of the insurance required to be maintained by
Tenant hereunder for recovery on account of such loss and Tenant shall look only
to the proceeds of any contents insurance which it may choose to carry for
recovery with respect to any loss which it may incur.
5. TAXES, ASSESSMENTS AND UTILITIES
5.1 The Tenant shall be liable and agrees to pay the charges for all
public utility services rendered or furnished to the Premises, including heat,
water, gas, electricity, sewer, sewage treatment facilities and the like, all
personal property taxes, real estate taxes, special assessments and municipal or
government charges, general and special, ordinary and extraordinary, of every
kind and nature whatsoever, which may be levied, imposed or assessed against the
Premises, or due and payable at any time after the Commencement Date of this
Lease and prior to the expiration of the Lease Term, or any Option Term.
5.2 The Tenant shall pay all real estate taxes, assessments for public
improvements or benefits, and other governmental impositions, duties and charges
of every kind and nature whatsoever which shall or may, during the Lease Term,
become due or payable, laid, levied, assessed, or imposed upon, or become a lien
or liens upon the Premises or any part thereof or the real estate described in
EXHIBIT "A". Such payments may be considered as additional rent paid by the
Tenant. The Tenant shall be deemed to have complied with the foregoing covenant
if payment is permitted without penalty or interest, or before the same shall
become a lien upon the Premises. If by law any real estate taxes, assessments
for public improvements or benefits, or other governmental impositions, duties
and charges of every kind and nature whatsoever may at the option of the
taxpayer be paid in installments (whether or not interest shall accrue on the
unpaid balance), the Tenant may exercise the option to pay the same in
installments and shall pay such installments as they become due during the Lease
Term. If due to a change in the method of taxation, a franchise tax, rental
tax, or income or profit tax shall be levied against Landlord in substitution
for or in lieu of any tax which would otherwise constitute a real estate tax,
such tax shall be deemed a real estate tax for the purposes herein and shall be
paid by Tenant. If any Mortgagee or holder of a deed of trust shall require
Landlord to escrow the amount of such taxes and assessments on a monthly basis,
Tenant shall then pay Landlord such amounts on a similar monthly basis.
5.3 All real estate taxes, assessments for public improvements or
benefits, water rates and charges, sewer rents and other governmental
impositions, duties and charges which shall become payable for the first and
last tax years of the Lease Term shall be apportioned pro rata between the
Landlord and the Tenant in accordance with the respective number of
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days during which each party shall be in possession of the Premises in said
respective tax years. For the purposes of this provision, all personal property
taxes, real estate taxes and special assessments shall be deemed to have been
assessed in the year that the first payment or any installment thereof is due.
5.4 The Tenant shall have the right to contest or review by legal
proceedings or in such other manner as may be legal (which, if instituted, shall
be conducted solely at Tenant's own expense) any tax, assessment for public
improvements or benefits, or other governmental imposition aforementioned, upon
condition that, before instituting such proceeding the Tenant shall pay (under
protest) such tax, assessment for public improvements or benefits, or other
governmental imposition, duties and charges aforementioned, unless such payment
would act as a bar to such contest or interfere materially with the prosecution
thereof and in such event Tenant shall post with Landlord alternative security
satisfactory to Landlord. All such proceedings shall be begun as soon as
reasonably possible after the imposition or assessment of any contested items
and shall be prosecuted to final adjudication with reasonable dispatch. In the
event of any reduction, cancellation, or discharge, the Tenant shall pay the
amount that shall be finally levied or assessed against the Premises or
adjudicated to be due and payable, and, if there shall be any refund payable by
the governmental authority with respect thereto, the Tenant shall be entitled to
receive and retain the same, subject, however, to apportionment as provided
during the first and last years of the Lease Term.
5.5 The Landlord, within sixty (60) days after notice to Tenant if
Tenant fails to commence such proceedings, may, but shall not be obligated to,
contest or review by legal proceedings, or in such other manner as may be legal,
and at the Landlord's own expense, any tax, assessments for public improvements
and benefits, or other governmental imposition aforementioned, which shall not
be contested or reviewed, as aforesaid, by the Tenant, and unless the Tenant
shall promptly join with the Landlord in such contest or review, the Landlord
shall be entitled to receive and retain any refund payable by the governmental
authority with respect thereto.
5.6 The Landlord shall not be required to join in any proceeding
referred to in this Section 5, unless in the Tenant's reasonable opinion, the
provisions of any law, rule or regulation at the time in effect shall require
that such a proceeding be brought by and/or in the name of the Landlord, in
which event the Landlord shall upon written request, join in such proceedings or
permit the same to be brought in its name.
5.7 Nothing herein contained shall require or be construed to require
Tenant to pay any inheritance, estate, succession, transfer, gift, franchise,
income or profit tax that is or may be imposed upon the Landlord, its successors
or assigns.
6. SUBLEASING OR ASSIGNMENT
The Tenant shall not sublease, sell, assign, mortgage or transfer any of
its interest in the Lease or the Premises, without the prior written consent of
the Landlord, which shall not be unreasonably withheld.
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7. REPAIRS AND MAINTENANCE
7.1 The Tenant covenants and agrees to keep and maintain in good order,
condition and repair the interior and exterior of the Premises during the Lease
Term, and further agrees that the Landlord shall be under no obligation to make
any repairs or perform any maintenance to the Premises. The Tenant covenants
and agrees that it shall be responsible for all structural and non-structural
repairs, alterations or maintenance, including but without limitation the
interior and exterior portions of all doors, door checks and operators, windows,
plate glass, plumbing, water and sewage facilities, fixtures, electrical
equipment, interior walls, ceilings, signs, interior building appliances and
similar equipment, heating and air conditioning equipment, and further agrees to
replace any of said equipment when necessary. The Tenant further agrees to be
responsible for, at its own expense, snow removal, landscaping, maintenance of
the parking lot (including parking lines and blacktop surfacing), and other
similar items.
7.2 If the Tenant refuses or neglects to commence or complete repairs
promptly and adequately, the Landlord may, but shall not be required to, do so
and the Tenant shall pay the cost thereof to Landlord upon demand. It is
understood that the intention of the parties hereto is that the Tenant shall pay
all expenses and maintenance and repair during the Lease Term. The Tenant
further covenants and agrees not to permit alterations of or upon any part of
the Premises except by and with the prior written consent of the Landlord. All
alterations and additions to the Premises shall be made in accordance with all
applicable laws and shall remain for the benefit of the Landlord unless
otherwise provided in the said written consent; and the Tenant further agrees,
in the event of making such alterations as herein provided, to indemnify and
save harmless the Landlord from all expense, liens, claims or damages to either
persons or property or the Premises arising out of or resulting from the
undertaking or making of said alterations or additions.
7.3 Notwithstanding anything contained herein to the contrary, if during
the last two Lease Years of the initial Lease Term only, the building's roof
needs to be replaced, Landlord and Tenant shall each pay one-half the cost
thereof. In the event of such roof replacement under this Section 7.3, Landlord
and Tenant must mutually agree upon the contractor and the terms of any bid or
contract with respect to the work. If the parties are unable to reach
agreement, then they will jointly select an independent architect or engineer
who shall prepare specifications for the work and contract, solicit competitive
bids and award the contract on their joint behalf. Any fee of the architect or
engineer shall be paid equally by Landlord and Tenant. Notwithstanding anything
contained herein to the contrary, if during the last two years of the initial
Lease Term only, the aggregate cost of repairs, maintenance and replacement of
the heating, ventilation, and air conditioning equipment ("HVAC Equipment")
shall exceed $5,000 (the amount in excess of $5,000 hereinafter referred to as
the "Excess Cost"), the Landlord shall pay one-half of the Excess Cost and
Tenant shall pay the costs up to and including $5,000.00 plus one-half of the
Excess Cost. In the event of replacing any HVAC Equipment during the last two
years of the initial Lease Term, Landlord and Tenant must mutually agree upon
the contractor and the terms of any bid or contract with respect to
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the work. If the parties are unable to reach agreement as to the contractor and
the terms of any such bid or contract, or in the event that the parties are
unable to reach agreement as to whether or not repairs versus replacement is
appropriate, then they shall jointly select a mechanical engineer who shall
first determine whether or not repair or replacement is appropriate and, if
replacement is appropriate, the mechanical engineer shall prepare specifications
for the work and contract, solicit competitive bids and award the contract on
their joint behalf. Any fee of the mechanical engineer shall be paid equally by
Landlord and Tenant. In the event that (i) at the time of any such repair,
maintenance or replacement of HVAC Equipment, Tenant has exercised its first
option to extend the term hereof pursuant to Section 2.2, then Landlord shall
only be required to pay 25% of any Excess Cost, and (ii) if subsequent to such
repair, maintenance and replacement resulting in a payment of 50% of Excess Cost
by Landlord, Tenant subsequently exercises its first option to extend the term
pursuant to Section 2.2, then as a condition of exercise, Tenant must
contemporaneously with sending notice thereof reimburse Landlord 25% of the
Excess Cost. In the event that Tenant desires to exercise its second option to
extend the term pursuant to Section 2.2, then as a condition of exercise Tenant
must contemporaneously with sending notice thereof reimburse Landlord an
additional 25% of any Excess Cost.
8. USE
8.1 The Premises shall be used exclusively for warehouse and
manufacturing purposes and related office purposes or for such other purposes as
Landlord may expressly approve in writing. Tenant shall not store any goods or
merchandise or use the Premises for any purpose which will in any way impair or
violate the requirements of any policies of insurance on the Premises or result
in a rating of the Premises or an increase in the insurance premium on account
thereof.
8.2 The Tenant and its use of the Premises will comply with and will
conform the Premises to all statutes, ordinances, rules, orders, regulations and
requirements of all federal, state, city and local governments, and with all
rules, orders and regulations of the applicable board of fire underwriters which
affect the use of the Premises.
9. SIGNS
The Tenant shall have the right to install and maintain a sign or signs
advertising the Tenant's business, provided that the signs conform to law, and
further provided that the sign or signs conform specifically to the written
requirements of the appropriate governmental authorities.
10. SUBORDINATION
The Landlord reserves the right and privilege to subject and subordinate
this Lease at all times to the lien of any mortgage or mortgages or deeds of
trust now or hereafter placed upon the Landlord's interest in the Premises and
to any and all advances to be made thereunder, and all renewals, modifications,
extensions, consolidations and replacements
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thereof, provided, however, as a condition thereof such lien holder agrees not
to disturb Tenant's right of possession so long as Tenant is not in default
hereunder and Tenant hereby also agrees to attorn to such lienholder. The
Tenant covenants and agrees to execute and deliver, upon demand, such further
instrument or instruments subordinating this Lease on the foregoing basis to the
lien of any such mortgage or mortgages or deed of trust as shall be desired by
the Landlord or any present or future mortgagee or holder of a deed of trust,
provided that such agreements contain the foregoing described covenants of
non-disturbance and attornment.
11. CONDEMNATION OR EMINENT DOMAIN
11.1 If the whole of the Premises are taken by any public authority under
the power of eminent domain, or by private purchase in lieu thereof, then this
Lease shall automatically terminate upon the date possession is surrendered, and
rent shall be paid up to that day. If any part of the Premises shall be so
taken as to render the remainder thereof unusable for the purposes for which the
Premises were leased, then Tenant shall have the right to terminate this Lease
upon thirty (30) days notice to the other Landlord and given within ninety (90)
days after the date of such taking. In the event that this Lease shall
terminate or be terminated, the rental shall be paid up to the day that
possession was surrendered. If after such a taking, the Lease shall not
terminate nor be terminated, Landlord shall at its cost and expense, restore the
remaining portion of the Premises to as near as practicable its pre-existing
condition, and shall make all repairs to the building in which the Premises is
located to the extent necessary to constitute the building a complete
architectural unit, provided that Landlord shall not be obligated to expend any
sums in excess of any condemnation award which it receives. Rent shall be
prorated on the basis of useable building space before and after such repairing
or restoration. Landlord and Tenant agree that if a taking results in a loss of
thirty (30) or more parking stalls on the Premises and Landlord can not provide
replacement parking within an one block radius of the Premises, then such taking
shall be deemed substantial enough to make the Premises unuseable for their
intended purpose under this clause.
11.2 All compensation awarded or paid upon such total, temporary or
partial taking of the Premises shall belong to and be the property of the
Landlord without any participation by the Tenant, whether such damages shall be
awarded as compensation for diminution in value to the leasehold estate or to
the fee estate of the Premises. Nothing contained herein shall be construed to
preclude the Tenant from prosecuting any claim directly against the condemning
authority in such proceedings for loss of business, damage to or cost of removal
of or for the value of the stock, trade fixtures, furniture, equipment and other
personal property belonging to the Tenant; provided, however, that no such claim
shall diminish or otherwise adversely affect the Landlord's award or the award
of any fee mortgagee.
12. RIGHT TO INSPECT
The Landlord reserves the right to enter upon, inspect and examine the
Premises at any time during business hours upon not less than 24 hours advance
notice, the Tenant agrees to allow the Landlord free access to the Premises to
show the Premises, and within One Hundred
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Eighty (180) days of the termination of this Lease, to place "for sale" or "for
rent" signs on the Premises.
13. DESTRUCTION OF THE PREMISES
In the event the Premises shall be destroyed or so damaged by fire,
explosion, windstorm or other casualty as to be entirely untenantable, Landlord
shall provide Tenant with a written estimate ("Estimate Notice") of the time
necessary to adjust the loss with the insurance carrier and the additional time
necessary to restore the Premises (such entire period of time for loss
adjustment and restoration hereinafter referred to as the "Restoration Period")
and Landlord's reasonable estimate of the cost of restoration (the "Restoration
Estimate"). If the Restoration Estimate equals or exceeds thirty percent (30%)
of the amount of casualty insurance required to be carried pursuant to Section
4.1 hereof, Landlord may terminate this Lease and the Lease Term as of the date
of the destruction or damage, by giving Tenant notice within ninety (90) days
after the date of the destruction or damage. In the event that the Restoration
Period shall be two-hundred seventy (270) days or longer, Tenant may terminate
this Lease and the Lease Term as of the date of destruction or damage by giving
Tenant notice within fifteen (15) days after receiving the Estimate Notice. If
the Lease is not terminated as provided for in this Section 13, then the
Landlord shall repair and restore the same with reasonable promptness to as near
as practicable its preexisting condition; provided, however, Landlord shall not
be obligated to expend any sums in excess of the amount of insurance proceeds
which it receives on account of said casualty. Rent shall be pro rated on the
basis of useable space during such repairing or restoration.
14. ACTS OF DEFAULT
Each of the following shall be deemed a default by the Tenant and a breach
of this Lease:
14.1 Failure to pay the rent herein reserved, or any part thereof, for a
period of ten (10) days after notice.
14.2 Failure to do, observe, keep and perform any of the terms,
covenants, conditions, agreements and provisions of this Lease to be
done, observed, kept or performed by the Tenant including failure to
pay any additional rent, for a period of thirty (30) days after
notice, provided, however, if such default is non-monetary in
nature, then Tenant shall be allowed such additional period of time
as may reasonably required to effectuate a cure for so long as
Tenant is diligently pursuing a course of action to effectuate a
cure, but in no event longer that one-hundred twenty (120) days
after the notice.
14.3 The abandonment of the Premises by the Tenant, the adjudication of
the Tenant as a bankrupt, the making by the Tenant of a general
assignment for the benefit of creditors, the taking by the Tenant of
the benefit of any insolvency act or law, the appointment of a
permanent receiver or trustee in bankruptcy for the Tenant's
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property, or the appointment of a temporary receiver which is not
vacated or set aside within sixty (60) days from the date of such
appointment.
15. REMEDIES ON ACCOUNT OF DEFAULT
In the event of any such uncured default by Tenant after notice as
aforesaid if required, and at any time thereafter, Landlord may at its option
and without limiting Landlord in the exercise of any other right or remedy it
may have on account of such default, and without any further demand notice:
15.1 Declare this Lease at an end, reenter the Premises with or without
process of law, eject all parties in possession and repossess and
enjoy the Premises together with all additions, alterations and
improvements thereto.
15.2 Reenter the Premises with or without process of law, eject all
parties in possession thereof and without terminating this Lease, at
any time and from time to time, relet the Premises or any part or
parts thereof, for the account of Tenant or otherwise, receive and
collect the rents therefor, applying the same first to the payment
of such expenses as Landlord may have paid, assumed or incurred in
recovering possession of the Premises, including costs, expenses and
attorneys' fees, and for placing the same in good order and
condition or reasonably incurred in preparing or altering the same
for reletting and all other reasonable expenses, commissions and
charges paid, assumed or incurred by Landlord in reletting the
premises, and then to the fulfillment of the covenant of Tenant.
Any such reletting as provided for herein may be for the remainder
of the Lease Term or any Option Term as originally granted or for a
longer or shorter period, and Landlord may execute any Lease made
pursuant to the terms hereof in its own name. Tenant shall pay to
Landlord all such sums required to be paid by Tenant up to the time
of reentry by Landlord, and thereafter Tenant shall, if required by
Landlord, pay to Landlord until the end of the Lease Term or any
Option Term the equivalent of the amount of all rent and other
charges required to be paid by Tenant under the terms of this Lease,
less the avails of such reletting during the initial Lease Term or
any Option Term after payment of the expenses of Landlord as
aforesaid, and the same shall be due and payable on the same days
that rent is due hereunder.
The foregoing rights of Landlord shall be cumulative to all other rights or
remedies now or hereafter given to Landlord by law or by the terms of this
Lease. The remedies of Landlord as hereinabove provided are in addition to and
not exclusive of any other remedy of Landlord herein given or which may be
permitted by law.
16. LIENS
Tenant shall not do or cause anything to be done whereby the Premises may
be encumbered by any mechanic's or other liens. Whenever and as often as any
mechanic's or
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other lien is filed against the Premises purporting to be for labor or materials
furnished or to be furnished to the Tenant, the Tenant shall remove the lien of
record by the payment or by bonding with a surety company authorized to do
business in the state in which the property is located, within twenty (20) days
from the date of the filing of said mechanic's or other lien. Should the Tenant
fail to take the foregoing steps within said twenty (20) day period, then the
Landlord shall have the right, among other things, to pay said lien without
inquiring into the validity thereof, and the Tenant shall forthwith reimburse
the Landlord for the total expense incurred by it in discharging said lien as
additional rent hereunder.
17. NO WAIVER
No agreement to accept a surrender of the Premises shall be valid unless in
writing signed by the Landlord. The delivery of keys to any employee of the
Landlord or the Landlord's agents shall not operate as a termination of this
Lease or a surrender of the Premises. No waiver by Landlord of any breach of
any covenant, condition or agreement herein contained shall operate as a waiver
of such covenant, condition or agreement itself or of any subsequent breach
thereof. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly installments of rent herein stipulated or of additional rent due
hereunder shall be deemed to be other than on account of the earliest stipulated
rent nor shall any endorsement or statement on any check or letter accompanying
the check for payment of rent be deemed an accord and satisfaction, and Landlord
may accept such check or partial payment without prejudice to Landlord's right
to recover the balance of such rent or to pursue any other remedy provided in
this Lease. This Lease contains the entire agreement between the parties and
may not be amended or modified except in writing. Landlord shall not be
responsible for and hereby disclaims any representations or warranties
communicated or made by any leasing or rental agent used in connection with the
negotiating or entering into of this Lease and Tenant acknowledges it has not
relied on any such representations in executing this Lease.
18. QUIET ENJOYMENT
Landlord covenants that subject to the terms of Section 10, Tenant on
paying the rent and performing the covenants hereof, shall at all times during
the Lease Term, peaceably and quietly have, hold and possess and enjoy the
Premises, provided, however, this covenant of quiet enjoyment shall not apply
with respect to any claims or title matters asserted arising out of defects in
Tenant's title to the real estate described in EXHIBIT "A". The term "LANDLORD"
as used herein shall mean solely the owner of the Premises, so that in the event
of any sale or transfer of the Premises, the covenants and obligations of
Landlord hereunder shall be imposed upon such successor in interest and any
prior Landlord shall be freed and relieved of all covenants and obligations of
Landlord hereunder. Landlord specifically reserves the right to so sell and
transfer the Premises.
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19. ESTOPPEL CERTIFICATES
Either party to this Lease will, at any time from time to time, upon not
less than ten (10) days prior request by the other party, execute, acknowledge
and deliver to the requesting party a statement in writing certifying that this
Lease is unmodified (or if modified then disclosure of such modification shall
be made) and in full force and effect on the date to which the rents and other
charges have been paid, and stating whether or not said party has knowledge of
any default hereunder on the part of the other party in the performance of any
covenant, agreement or condition contained herein and if so, specifying each
such default, it being intended that any such statement delivered pursuant to
this Section may be relied upon by any prospective purchaser, mortgagee or
holder of a deed of trust of the Premises or any assignee of any such party.
20. MISCELLANEOUS PROVISIONS
20.1 All written notices shall be given by certified mail or a nationally
recognized overnight courier such as Federal Express which is sent in a manner
that documents receipt. Notices shall be sent to the parties at the addresses
set forth on the first page hereof, unless such party shall give written notice
of a change of address.
20.2 The terms, conditions and covenants contained herein shall bind and
inure to the benefit of the Landlord and the Tenant and their respective
successors, heirs and legal representatives and assigns.
20.3 This Lease shall be governed by and construed under the laws of the
State where the Premises are located.
20.4 In the event that any provision of this Lease shall be held invalid
or unenforceable, no other provisions of this Lease shall be affected by such
holding, and all of the remaining provisions of this Lease shall continue in
full force and effect pursuant to the terms hereof.
20.5 If either party fails to perform timely any of the terms, covenants
or conditions of this Lease and such failure is due in whole or in part to any
strike, lockout, labor trouble, civil disorder, inability to procure materials,
failure of power, restrictive governmental laws or regulations (other than those
which constitute a taking under power of eminent domain), riots, insurrections,
war, fuel shortages, accidents, casualties or acts of God, or any other cause
beyond the reasonable control of such party, then such party shall not be deemed
in default under this Lease as a result of such failure and time for performance
of such covenant or condition provided for herein shall be extended until the
earlier of (i) the period of delay resulting from such cause expiring, and (ii)
the expiration of ninety (90) days after the first day of the occurrance
excusing performance. Nothing contained herein shall be deemed to excuse any
delay in the payment of rent or additional rent hereunder.
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20.6 Paragraph captions are inserted only for convenience in reference,
and are not intended, in any way, to define, limit or describe the scope, intent
and language of this Lease or its provisions.
21. ENVIRONMENTAL
Tenant covenants, represents and warrants to Landlord, its successors and
assigns (i) that it will not use or permit the Premises to be used, whether
directly or through contractors, agents, or subtenants, for the generating,
transporting, treating, storage, manufacture, omission or disposal of any
dangerous, toxic or hazardous pollutants, chemicals, waste or substances as
defined in the Federal Comprehensive Environmental Response Compensation and
Liability Act of 1980 ("CERCLA"), the Federal Resource Conversation and Recovery
Act of 1976 ("RCRA"), or any other federal, state or local environmental laws,
statutes, regulations, requirements, or ordinances ("hazardous materials"); (ii)
that the operation of the Premises will not violate any federal, state or local
law, regulation, ordinance or requirement governing hazardous materials; (iv)
that the Premises are not listed in the United States Environmental Protection
Agency's national priorities list of hazardous waste site nor any other list,
schedule, log, inventory or record of hazardous materials or hazardous waste
sites, whether maintained by the United States Government or any state or local
agency; and (v) that the Premises will not contain any formaldehyde, urea or
asbestos, except as may have previously been disclosed in writing to Landlord by
Tenant at the time of execution and delivery of this Lease. Notwithstanding the
foregoing, Tenant shall be entitled to store and use upon the Premises inks and
solvents customarily used in its printing business, provided that such items
are stored, used and disposed of in compliance with the above described
environmental laws, regulations, requirements, ordinances and the like and
Tenant shall keep a log or other record of its proper disposal of all barrels or
containers which at any time held such inks or solvents. Tenant further agrees
to indemnify and reimburse Landlord, its successors and assigns, for:
21.1 Any breach of these representations and warranties, and
21.2 Any loss, damage, expense or cost arising out of or incurred by
Landlord which is the result of a breach, misstatement or
misrepresentation of the above covenants, representations and
warranties, and
21.3 Any and all liability of any kind whatsoever which Landlord may at
any time sustain or incur by reason of hazardous materials released
upon the Premises as the result of any action or inaction by Tenant,
its employees, contractors or agents,
together with all attorneys' fees, costs and disbursements incurred in
connection with the defense of any action against Landlord arising out of the
above. These covenants, representations and warranties shall be deemed
continuing covenants, representations and warranties for the benefit of
Landlord, and any successors and assigns of Landlord. The amount of all such
indemnified loss, damage, expense or cost, shall bear interest thereon at the
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lesser of 10% per annum or the highest rate of interest allowed by law and shall
become immediately due and payable in full on demand of Landlord, its successors
and assigns.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of
the date first above written.
LANDLORD: Xxxxx X. Xxxxxxxx and E. Xxx Xxxxxxxx, as
Trustees of that certain Revocable Trust under that
certain Amendment and Restatements of Xxxxx X.
Xxxxxxxx Revocable Trust Agreement dated
December 20, 1996,
By
---------------------------------------
Its:
--------------------------------
and
E. Xxx Xxxxxxxx and Xxxxx X. Xxxxxxxx, as
Trustees of that certain Amendment
and Restatement of E. Xxx Xxxxxxxx Revocable
Trust Agreement dated December 20, 1996
By
---------------------------------------
Its:
--------------------------------
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TENANT: NORTHSTAR COMPUTER FORMS, INC.
a Minnesota corporation
By:
---------------------------------------
Its:
------------------------------------
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EXHIBIT "A"
LEGAL DESCRIPTION
Subject to the following:
1. Real Estate taxes and special assessments for 1997 and subsequent years.
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