OFFICE/WAREHOUSE LEASE
This Indenture of lease, dated this 24th day of May 1991 by and between Sierra
Development (A Minnesota General Partnership) hereinafter referred to as
"Lessor", and LecTec Corporation (A Minnesota Corporation) hereinafter referred
to as "Lessee".
DEFINITIONS:
"Premises' -That certain real property located in the City of Edina, County
of Hennepin and State of Minnesota and legally described on Exhibit 'A" attached
hereto and made a part hereof, including all buildings and site improvements
located thereon.
"Building" -That certain office/warehouse building containing approximately
45,800-square feet located upon the Premises and commonly described as ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
"Demised Premises" -That certain portion of the Building located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ and designated as Bays - - - through - - - , consisting of
approximately 29,187 - square feet ( 2,629 square feet of office space and
26,558 square feet of warehouse space), as measured from the outside walls of
the Demised Premises to the center of the partition wall, as shown on the floor
plan attached hereto as Exhibit 'B" and made a part hereof. The Demised Premises
include a non-exclusive easement for access to common areas, as hereinafter
defined, and all licenses and easements appurtenant to the Demised Premises.
"Common Areas" -The term "common area" means the entire areas to be used
for the non-exclusive use by Lessee and other lessees in the Building,
including, but not limited to, corridors, lavatories, driveways, truck docks,
parking lots and landscaped areas. Subject to reasonable rules and regulations
to the promulgated by Lessor, the common areas are hereby made available to
Lessee and its employees, agents, customers, and invitees for reasonable use in
common with other lessees, their employees, agents, customers and invitees.
WITNESSETH:
TERM: See Article 42, 45
1. For and in consideration of the rents, additional rents, terms, provisions
and covenants herein contained, Lessor hereby lets, leases and demises to Lessee
the Demised Premises for the term of 72 months commencing on the first day of
July, 1991 (sometimes called 'the Commencement Date") and expiring the last day
of June 1997 (sometimes called 'Expiration Date"), unless sooner terminated as
hereinafter provided.
BASE RENT:
2. Lessor reserves and Lessee shall pay Lessor, a total rental of Seven Hundred
Forty-four Thousand Nine Hundred Eighty-five & 20/100 dollars ($ 744,985.20),
payable in advance, in equal monthly installments of See Article 43 Dollars ($
See Art. 43 ), commencing on the Commencement Date and continuing on the first
day of each and every month thereafter for the next succeeding months during the
balance of the term (sometimes called 'Base Rent'). In the event the
Commencement Date falls on a date other than the first of a month the rental for
that month shall be prorated and adjusted accordingly
ADDITIONAL RENT.- See Articles 43 & 48
3. Lessee shall pay to Lessor throughout the term of this Lease the following:
a. Lessee shall pay a sum equal to sixty-three and 73/100 percent ( 63.73%)
of the Real Estate taxes. The term 'Real Estate Taxes' shall mean all real
estate taxes, all assessments and any taxes in lieu
thereof which may be levied upon or assessed against the Premises of which the
Demised Premises are a part. Lessee, in addition to all other payments to Lessor
by Lessee required hereunder shall pay to Lessor, in each year during the term
of this Lease and any extension or renewal thereof, Lessee's proportionate share
of such real estate taxes and assessments paid in the first instance by Lessor.
Any tax year commencing during any lease year shall be deemed to correspond
to such lease year. In the event the taxing authorities include in such real
estate taxes and assessments the value of any improvements made by Lessee, or of
machinery, equipment, fixtures, inventory or other personal property or assets
of Lessee, then Lessee shall pay all the taxes attributable to such items in
addition to its proportionate share of said aforementioned real estate taxes and
assessments. A photostatic copy of the tax statement submitted by Lessor to
Lessee shall be sufficient evidence of the amount of taxes and assessments
assessed or levied against the Premises of which the Demised Premises are a
part, as well as the items taxed.
b. A sum equal to sixty-three and 73/100 percent (63.73 %) of the annual
aggregate operating expenses incurred by Lessor in the operation, maintenance
and repair of the Premises. The term 'Operating Expenses' shall include but not
be limited to maintenance, repair, replacement and care of all common area
lighting, common area plumbing and roofs, parking and landscaped areas signs,
snow removal, non-structural repair and maintenance of the exterior of the
Building, insurance premiums, management fee, wages and fringe benefits of
personnel employed for such work, costs of equipment purchased and used for such
purposes, and the cost or portion thereof properly allocable to the Premises
(amortized over such reasonable period as lessor shall determine together with
the interest at the rate of 12 % per annum on the unamortized balance) of any
capital improvements made to the Building by Lessor after the Base Year which
result in a reduction of Operating Expenses or made to the Building by Lessor
after the date of this Lease that are required under any governmental law or
regulation that was not applicable to the Building at the time it was
constructed.
c. In no event shall the total adjusted monthly rent be less than See
Article 43 Dollars ($ See Art 43 ) per month during the term of this Lease.
The payment of the sums set forth in this Article 3 shall be in addition to
the Base Rent payable pursuant to Article 2 of this Lease. All sums due
hereunder shall be due and payable within thirty (30) days of delivery of
written certification by Lessor setting forth the computation of the amount due
from Lessee. In the event the lease term shall begin or expire at any time
during the calendar year, the Lessee shall be responsible for his prorate share
of Additional Rent under subdivisions a. and b. during the Lease and/or
occupancy time.
Prior to commencement of this Lease, and prior to the commencement of each
calendar year thereafter commencing during the term of this Lease or any renewal
or extension thereof, Lessor may estimate for each calendar year (i) the total
amount of Real Estate Taxes; (ii) the total amount of Operating Expenses; (iii)
Lessee's share of Real Estate Taxes for such calendar year; (iv) Lessee's share
of Operating Expenses for such calendar year; and (v) the computation of the
annual and monthly rental payable during such calendar year as a result of
increases or decreases in Lessee's share of Real Estate Taxes, and Operating
Expenses. Said estimates will be in writing and will be delivered or mailed to
Lessee at the Premises.
The amount of Lessee's share of Real Estate Taxes, and Operating Expenses
for each calendar year, so estimated, shall be payable as Additional Rent, in
equal monthly installments, in advance, on the first day of each month during
such calendar year at the option of Lessor. In the event that such estimate is
delivered to Lessee before the first day of January of such calendar year, said
amount, so estimated, shall be payable as additional rent in equal monthly
installments, in advance, on the first day of each month during such calendar
year. In the event that such estimate is delivered to Lessee after the first day
of January of such calendar year, said amount, so estimated, shall be payable as
additional rent in equal monthly installments, in advance, on the first day of
each month over the balance of such calendar year, with the number of
installments being equal to the number of full calendar months remaining in such
calendar year.
Upon completion of each calendar year during the term of this Lease or any
renewal or extension thereof, Lessor shall cause its accountants to determine
the actual amount of the Real Estate Taxes, and Operating Expenses payable in
such calendar year and Lessee's share thereof and deliver a written
certification of the amounts thereof to Lessee. If Lessee has underpaid its
share of Real Estate Taxes, or Operating Expenses for such calendar year, Lessee
shall pay the balance of its share of same within ten
(10) days after the receipt of such statement. If Lessee has overpaid its share
of Real Estate Taxes, or Operating Expenses for such calendar year, Lessor shall
either (I) refund such excess, or (ii) credit such excess against the most
current monthly installment or installments due Lessor for its estimate of
Lessees share of Real Estate Taxes, and Operating Expenses for the next
following calendar year. A prorata adjustment shall be made for a fractional
calendar year occurring during the term of this Lease or any renewal or
extension thereof based upon the number of days of the term of the Lease during
said calendar year as compared to three hundred sixty-five (365) days and all
additional sums payable by Lessee or credits due Lessee as a result of the
provisions of this Article 3 shall be adjusted accordingly.
COVENANT TO PAY RENT:
4. The covenants of Lessee to pay the Base Rent and the Additional Rent are each
independent of any other covenant, condition, provision or agreement contained
in this Lease. All rents are payable to Lessor at Welsh Companies, Inc., ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
UTILITIES:
5. Lessor shall provide mains and conduits to supply water, gas, electricity and
sanitary sewage to the Premises. Lessee shall pay, when due, all charges for
sewer usage or rental, garbage, disposal, refuse removal, water, electricity,
gas, fuel oil, L.P. gas, telephone and/or other utility services or energy
source furnished to the Demised Premises during the term of this Lease, or any
renewal or extension thereof. In Lessor elects to furnish any of the foregoing
utility services or other services furnished or caused to be furnished to
Lessee, then the rate charged by Lessor shall not exceed the rate Lessee would
be required to pay to a utility company or service company furnishing any of the
foregoing utilities or services. The charges thereof shall be deemed additional
rent in accordance with Article 3.
CARE AND REPAIR OF DEMISED PREMISES:
6. Lessee shall, at all times throughout the term of this Lease, including
renewals and extension, and at its sole expense, keep and maintain the Demised
Premises in a clean, safe, sanitary and first class condition and in compliance
with all applicable laws, codes, ordinances, rules and regulations. Lessee's
obligations hereunder shall include but not be limited to the maintenance,
repair and replacement, if necessary, of heating, air conditioning fixtures,
equipment, and systems, all lighting and plumbing fixtures and equipment,
fixtures, motors and machinery, all interior walls, partitions, doors and
windows, including the regular painting thereof, all exterior entrances,
windows, doors and docks and the replacement of all broken glass. When used in
this provision, the term 'repairs' shall include replacements or renewals when
necessary, and all such repairs made by the Lessee shall be equal in quality and
class to the original work. The Lessee shall keep and maintain all portions of
the Demised Premises and the sidewalk and areas adjoining the same in a clean
and orderly condition, free of accumulation of dirt, rubbish, snow and ice.
If Lessee falls, refuses or neglects to maintain or repair the Demised
Premises as required in this Lease after notice shall have been given Lessee, in
accordance with Article 33 of this Lease, Lessor may make such repairs without
liability to Lessee for any loss or damage that may accrue to Lessees
merchandise, fixtures or other property or to Lessee's business by reason
thereof, and upon completion thereof, Lessee shall pay to Lessor all costs plus
15% for overhead incurred by Lessor in making such repairs upon presentation to
Lessee of ▇▇▇▇ therefor.
Lessor shall repair, at its expense, the structural portions of the
Building, provided however where structural repairs are required to be made by
reason of the acts of Lessee, the costs thereof shall be borne by Lessee and
payable by Lessee to Lessor upon demand.
The Lessor shall be responsible for all outside maintenance of the Demised
Premises, including grounds and parking areas. All such maintenance which is the
responsibility of the Lessor shall be provided as reasonably necessary to the
comfortable use and occupancy of Demised Premises during business hours, except
Saturdays, Sundays and holidays, upon the condition that the Lessor shall not be
liable for damages for failure to do so due to causes beyond its control.
SIGNS: See Exhibit "C"
7. Any sign, lettering, picture, notice or advertisement installed on or in any
part of the Premises and visible from the exterior of the Building, or visible
from the exterior of the Demised Premises, shall be approved and installed by
Lessor at Lessee's expense. In the event of a violation of the foregoing by
Lessee, Lessor may remove the same without any liability and may charge the
expense incurred by such removal to Lessee.
ALTERATIONS, INSTALLATION, FIXTURES:
8. Except as hereinafter provided, Lessee shall not make any alteration,
additions, or improvements in or to the Demised Premises or add, disturb or in
any way change any plumbing or wiring therein without the prior written consent
of the Lessor. In the event alterations are required by any governmental agency
by reason of the use and occupancy of the Demised Premises by Lessee, Lessee
shall make such alterations at its own cost and expense after first obtaining
Lessor's approval of plans and specifications therefor and furnishing such
indemnification as Lessor may reasonably require against liens, costs, damages
and expenses arising out of such alterations. Alterations or additions Lessee
must be built in compliance with all laws, ordinances and governmental
regulations affecting the Premises and Lessee shall warrant to Lessor that all
such alterations, additions, or improvements shall be in strict compliance with
all relevant laws, ordinances, governmental regulations, and insurance
requirements. Construction of such alterations or additions shall commence only
upon Lessee obtaining and exhibiting to Lessor the requisite approvals, licenses
and permits and indemnification against liens. All alterations, installations,
physical additions or improvements to the Demised Premises made by Lessee shall
at once become the property of Lessor and shall be surrendered to Lessor upon
the termination of this Lease; provided, however, this clause shall not apply to
movable equipment or furniture owned by Lessee which may be removed by Lessee at
the end of the term of this Lease if Lessee is not then in default.
POSSESSION: See Article 43
9. Except as hereinafter provided Lessor shall deliver possession of the Demised
Premises to Lessee in the condition required by this Lease on or before the
Commencement Date, but delivery of possession prior to or later than such
Commencement Date shall not affect the expiration date of this Lease. The
rentals herein reserved shall commence on the date when possession of the
Demised Premises is delivered by Lessor to Lessee. Any occupancy by Lessee prior
to the beginning of the term shall in all respects be the same as that of a
Lessee under this Lease. Lessor shall have no responsibility or liability for
loss or damage to fixtures, facilities or equipment installed or left on the
Demised Premises. If Demised Premises are not ready for occupancy by
Commencement Date and possession is later than Commencement Date, rent shall
begin on date of possession.
SECURITY AND DAMAGE DEPOSIT-
10. Lessee contemporaneously with the execution of this Lease, has deposited
with Lessor the sum of Eleven Thousand Five Hundred Forty-eight and 70/100
Dollars ($ 11,548.70 ), receipt of which is acknowledged hereby by Lessor, which
deposit is to be held by Lessor, without liability for interest, as a security
and damage deposit for the faithful performance by Lessee during the term hereof
or any extension hereof. Prior to the time when Lessee shall be entitled to the
return of this security deposit, Lessor may commingle such deposit with Lessor's
own funds and to use such security deposit for such purpose as Lessor may
determine. In the event of the failure of Lessee to keep and perform any of the
terms, covenants and conditions of this Lease to be kept and performed by Lessee
during the term hereof or any extension hereof, then Lessor, either with or
without terminating this Lease, may (but shall not be required to) apply such
portion of said deposit as may be necessary to compensate or repay Lessor for
all losses or damages sustained or to be sustained by Lessor due to such breach
on the part of Lessee, including, but not limited to overdue and unpaid rent,
any other sum payable by Lessee to Lessor pursuant to the provisions of this
Lease, damages or-deficiencies in the reletting of Demised Premises, and
reasonable attorney's fees incurred by Lessor. Should the entire deposit or any
portion thereof, be appropriated and applied by Lessor, in accordance with the
provisions of this paragraph, Lessee upon written demand by Lessor, shall remit
forthwith to Lessor a sufficient amount of cash to restore said security deposit
to the original sum deposited, and Lessee's failure to do so within five (5)
days after receipt of such demand shall constitute a breach of this Lease. Said
security deposit shall be returned to Lessee, less any depletion thereof as the
result of the provisions of this paragraph, at the end of the term of this Lease
or any renewal thereof, or upon the earlier termination of this Lease. Lessee
shall have no right to anticipate return of said deposit by withholding any
amount required to be paid pursuant to the provision of this Lease or otherwise.
In the event Lessor shall sell the Premises, or shall otherwise convey or
dispose of its interest in this Lease, Lessor may assign said security deposit
or any balance thereof to Lessor's assignee, whereupon Lessor shall be released
from all liability for the return or repayment of such security deposit and
Lessee shall look solely to the said assignee for the return and repayment of
said security deposit. Said security deposit shall not be assigned or encumbered
by Lessee without such consent of Lessor, and any assignment or encumbrance
without such consent shall not bind Lessor. In the event of any rightful and
permitted assignment or this Lease by Lessee, said security deposit shall be
deemed-to be held by Lessor as a deposit made by the assignee, and Lessor shall
have no further liability with respect to the return of said security deposit to
the Lessee.
USE:
11. The Demised Premises shall be used and occupied by Lessee solely for the
purposes of office, production, and storage of medical products so long as such
use is in compliance with all applicable laws, ordinances and governmental
regulations affecting the Building and Premises. The Demised Premises shall not
be used in such manner that, in accordance with any requirement of law or of any
public authority, Lessor shall be obliged on account of the purpose or manner of
said use to make any addition or alteration to or in the Building. The Demised
Premises shall not be used in any manner which will increase the rates required
to be paid for public liability or for fire and extended coverage insurance
covering the Premises. Lessee shall occupy the Demised Premises conduct its
business and control its agents, employees, invitees and visitors in such a way
as is lawful and reputable and will not permit or create any nuisance,
unreasonable noise for a manufacturing company, odor, or otherwise interfere
with annoy or disturb any other Lessee in the Building in its normal business
operations or Lessor in its management of the Building. Lessee's use of the
Demised Premises shall conform to all the Lessor's rules and regulations
relating to the use of the Premises. Outside storage on the Premises of any type
of equipment, property or materials owned or used on the Premise by Lessee or
its customers and suppliers shall not be premitted.
ACCESS TO DEMISED PREMISES:
12. The Lessee agrees to permit the Lessor and the authorized representatives of
the Lessor to enter the Demised Premises at all times during usual business
hours for the purpose of inspecting the same and making any necessary repairs to
the Demised Premises and performing any work therein that may be necessary to
comply with any laws, ordinances, rules, regulations or requirements of any
public authority or of the Board of Fire Underwriters or any similar body or
that the Lessor may deem necessary to prevent waste or deterioration in
connection with the Demised Premises. Nothing herein shall imply any duty upon
the part of the Lessor to do any such work which, under any provision of this
Lease, the Lessee may be required to perform and the performance thereof by the
Lessor shall not constitute a waiver of the Lessee's default in failing to
perform the same. The Lessor may, during the progress of any work in the Demised
Premises, keep and store upon the Demised Premises all necessary materials,
tools and equipment. The Lessor shall not in any event be liable for
inconvenience, annoyance, disturbance, loss of business, or other damage of the
Lessee by reason of making repairs or the performance or any work in the Demised
Premises, or on account of bringing materials, supplies and equipment into or
through the Demised Premises during the course thereof and the obligations of
the Lessee under this Lease shall not thereby be affected in any manner
whatsoever.
Lessor reserves the right to enter upon the Demised Premises at any time in
the event of an emergency and at reasonable hours to exhibit the Demised
Premises to prospective purchasers or others; and to exhibit the Demised
Premises to prospective Lessees and to the display "For Rent' or similar signs
on windows or doors in the Demised Premises during the last ninety (90) days of
the term of this Lease, all without hindrance or molestation by Lessee. however
such access may require a security escort.
EMINENT DOMAIN
13. In the event of any eminent domain or condemnation proceeding or private
sale in lieu thereof in respect to the Premises during the term thereof, the
following provisions shall apply:
a. If the whole of the Premises shall be acquired or condemned by eminent
domain for any public or quasipublic use or purpose, then the term of this Lease
shall cease and terminate as of the date shall be taken in such proceeding and
all rentals shall be paid up to that date.
b. If any part constituting less than the whole of the Premises shall be
acquired or condemned as aforesaid, and in the event that such partial taking or
condemnation shall materially affect the Demised Premises so as to render the
Demised Premises unsuitable for the business of the Lessee, in the reasonable
opinion of Lessor and Lessee, then the term of this Lease shall cease and
terminate as of the date possession shall be taken by the condemning authority
and rent shall be paid to the date of such termination.
In the event of a partial taking or condemnation of the Premises which
shall not materially affect the Demised Premises so as to render the Demised
Premises unsuitable for the business of the Lessee, the reasonable opinion of
the Lessor and Lessee, this Lease shall continue in full force and effect but
with a proportionate abatement of the Base Rent and Additional Rent based on the
portion, if any, of the Demised Premises taken. Lessor reserves the right, at
its option, to restore the Building and the Demised Premises to substantially
the same condition as they were prior to such condemnation. In such event,
Lessor shall give written notice to Lessee, within thirty (30) days following
the date possession shall be taken by the condemning authority, of Lessor's
intention to restore. Upon Lessor's notice of election to restore, Lessor shall
commence restoration and shall restore the Building and the Demised Premises
with reasonable promptness, subject to delays beyond Lessor's control and delays
in the making of condemnation or sale proceeds adjustments by Lessor; and Lessee
shall have no right to terminate this Lease except as herein provided. Upon
completion of such restoration, the rent shall be adjusted based upon the
portion, if any, of the Demised Premises restored.
c. In the event of any condemnation or taking as aforesaid, whether whole
or partial, the Lessee shall not be entitled to any part of the award paid for
such condemnation and Lessor is to receive the full amount of such award, the
Lessee hereby expressly waiving any right to claim to any part thereof.
d. Although all damages in the event of any condemnation shall belong to
the Lessor whether such damages are awarded as compensation for diminution in
value of the leasehold or to the fee of the Demised Premises, Lessee shall have
the right to claim and recover from the condemning authority, but not from
Lessor, such compensation as may be separately awarded or recoverable by Lessee
in Lessee's own right on account of any and all damage to Lessee's business by
reason of the condemnation and for or on account of any cost or loss to which
Lessee might be put in removing Lessees merchandise, furniture, fixtures,
leasehold improvements and equipment. However, Lessee shall have no claim
against Lessor or make any claim with the condemning authority for the loss of
its leasehold estate, any unexpired term or loss of any possible renewal or
extension of said lease or loss of any possible value of said lease, any
unexpired term, renewal or extension of said Lease.
DAMAGE OR DESTRUCTION:
14. In the event of any damage or destruction to the Premises by fire or other
cause during the term hereof, the following provisions shall apply:
a. If the Building is damaged by fire or any other cause to such extent
that the cost of restoration, as reasonably estimated by Lessor, will equal or
exceed thirty percent (30%) of the replacement value of the Building (exclusive
of foundations) just prior to the occurrence of the damage, then Lessor may, no
later than the sixtieth (60th) day following the damage, give Lessee written
notice of Lessor's election to terminate this Lease.
b. If the cost of restoration as estimated by Lessor will equal or exceed
fifty percent (50%) of said replacement value of the Building and if the Demised
Premises are not suitable as a result of said damage-for the purposes for which
they are demised hereunder, in the reasonable opinion of Lessee, then Lessee
may, no later than the sixtieth (60th) day following the damage, give Lessor a
written notice of election to terminate this Lease.
c. If the cost of restoration as estimated by Lessor shall amount to less
than thirty percent (30%) of said replacement value of the Building, or if,
despite the cost, Lessor does not elect to terminate this Lease, Lessor shall
restore the Building and the Demised Premises with reasonable promptness,
subject to delays beyond Lessor's control and delays in the making of insurance
adjustments by Lessor; and Lessee shall have no right to terminate this Lease
except as herein provided. Lessor shall not be responsible for restoring or
repairing leasehold improvements of this Lessee
d. In the event of either of the elections to terminate, this Lease shall
be deemed to terminate on the date of the receipt of the notice of election and
all rentals shall be paid up to that date. Lessee shall have no claim against
Lessor for the value of any unexpired term of this Lease.
e. In any case where damage to the Building shall materially affect the
Demised Premises so as to render them unsuitable in whole or in part for the
purposes for which they are demised hereunder, then, unless such destruction was
wholly or partially caused by the negligence or breach of the terms of this
Lease by Lessee, its employees, contractors or licensees, a portion of the rent
based upon the amount of the extent to which the Demised Premises are rendered
unsuitable shall be abated until repaired or restored. If the destruction or
damage was wholly or partially caused by negligence or breach of the terms this
Lease by Lessee as aforesaid and if Lessor shall elect to rebuild, the rent
shall not ▇▇▇▇▇ and the Lessee shall remain liable for the same.
CASUALTY INSURANCE:
15. a. Lessor shall at all times during the term of this Lease, at its expense,
maintain a policy or policies of insurance with premiums paid in advance issued
by an insurance company licensed to do business in the State of Minnesota
insuring the Building against loss or damage by fire, explosion or other
insurable hazards and contingencies for the full replacement value, provided
that Lessor shall not be obligated to insure any furniture, equipment,
machinery, goods or supplies not covered by this Lease which Lessee may bring
upon the Demised Premises or any additional improvements which Lessee may
construct or install on the Demised Premises.
b. Lessee shall not carry any stock of goods or do anything in or about the
Demised Premises which will in any way impair or invalidate the obligation of
the insurer under any policy of insurance required by this Lease.
▇. ▇▇▇▇▇▇ hereby waives and releases all claims, liabilities and causes of
action against Lessee and its agents, servants and employees for loss or damage
to, or destruction of, the Premises or any portion thereof, including the
buildings and other improvements situated thereon, resulting from fire,
explosion and other perils included in standard extended coverage insurance,
whether caused by the negligence of any of said persons or otherwise. Likewise,
Lessee hereby waives and releases all claims, liabilities and causes of action
against Lessor and its agents, servants and employees for loss or damage to, or
destruction of, any of the improvements, fixtures, equipment, supplies,
merchandise and other property, whether that of Lessee or of others in, upon or
about the Premises resulting from fire, explosion or the other perils included
in standard extended coverage insurance, whether caused by the negligence of any
of said persons or otherwise. The waiver shall remain in force whether or not
the Lessee's insurer shall consent thereto.
d. In the event that the use of the Demised Premises by Lessee increases
the premium rate for insurance carried by Lessor on the improvements of which
the Demised Premises are a part, Lessee shall pay Lessor, upon demand, the
amount of such premium increase. If Lessee installs any electrical equipment
that overloads the power lines to the building or its wiring, Lessee shall, at
its own expense, make whatever changes are necessary to comply with the
requirements of the insurance underwriter, insurance rating bureau and
governmental authorities having jurisdiction.
PUBLIC LIABILITY INSURANCE:
16. Lessee shall during the term hereof keep in full force and effect at its
expense a policy or policies of public liability insurance with respect to the
Demised Premises and the business of Lessee, on terms with companies approved in
writing by Lessor, in which both Lessee and Lessor shall be covered by being
named as insured parties under reasonable limits of liability not less than:
$500,000 for injury/death to any one person; $1,000,000 for injury/death to more
than one person, and $500,000 with respect to damage to property. Such policy or
policies shall provide that ten (10) days written notice must be given to Lessor
prior to cancellation thereof. Lessee shall furnish evidence satisfactory to
Lessor at the time this Lease is executed that such coverage is in full force
and effect.
DEFAULT OF LESSEE:
17. a. In the event of any failure of Lessee to pay any rental due hereunder
within ten (10) days after the same shall be due, or any failure to perform any
other of the terms, conditions or covenants of this Lease to be observed or
performed by Lessee for more than thirty (30) days after written notice of such
failure shall have been given to Lessee, or if Lessee or an agent of Lessee
shall falsity any report required to be furnished to Lessor pursuant to the
terms of this Lease, or if Lessee or any guarantor of this Lease shall become
bankrupt or insolvent, or file any debtor proceedings or any person shall take
or have against Lessee or any guarantor of this Lease in any court pursuant to
any statute either of the United States or of any state a petition in bankruptcy
or insolvency or for reorganization or for the appointment of a receiver or
trustee of all or a portion of Lessee's or any such guarantor's property, or if
Lessee or any such guarantor makes an assignment for the benefit of creditors,
or petitions for or enters into an arrangement, or if Lessee shall abandon the
Demised Premises or suffer this Lease to be taken under any writ of execution,
then in any such event Lessee shall be in default hereunder, and Lessor, in
addition to other rights of remedies it may have, shall have the immediate right
of re-entry and may remove all persons and property from the Demised Premises
and such property may be removed and stored in a public warehouse or elsewhere
at the cost of, and for the account of Lessee, all without service of notice or
resort to legal process and without being guilty of trespass, or becoming liable
for any loss or damage which may be occasioned thereby.
b. Should Lessor elect to re-enter the Demised Premises, as herein
provided, or should it take possession of the Demised Premises pursuant to legal
proceedings or pursuant to any notice provided for by law, it may either
terminate this Lease or it may from time to time, without terminating this
Lease, make such alterations and repairs as may be necessary in order to relet
the Demised Premises, and relet the Demised Premises or any part thereof such
term or terms (which may be for a term extending beyond the term of this Lease)
and at such rental or rentals and upon such other terms and conditions as Lessor
in its sole discretion may deem advisable. Upon each such subletting all rentals
received by the Lessor from such reletting shall be applied first to the payment
of any indebtedness other than rent due hereunder from Lessee to Lessor; second,
to the payment of any costs and expenses of such reletting, including brokerage
fees and attorney's fees and costs of such alterations and repairs; third, to
the payment of the rent due and unpin payment of future rent as the same may
become due and payable hereunder. If such rentals received from such reletting
during any month be less than that to be paid during that month by Lessee
hereunder, Lessee, upon demand, shall pay tiny such deficiency to Lessor. No
such re-entry or taking possession of the Demised Premises by Lessor shall be
construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Lessee or unless the termination thereof be
decreed by a court of competent jurisdiction. Notwithstanding any such reletting
without termination, Lessor may at any time after such re-entry and reletting
elect to terminate this Lease for any such breach, in addition to any other
remedies it may have, it may recover from Lessee all damages it may incur by
reason of such breach, including the cost of recovering the Demised Premises,
reasonable attorney's fees, and including the worth at the time of such
termination of the excess, if any, of the amount of rent and charges equivalent
to rent reserved in this Lease for the remainder of the stated term over the
then reasonable rental value of the Demised Premises for the remainder of the
stated term, all of which amounts shall be immediately due and payable from
Lessee to Lessor.
▇. ▇▇▇▇▇▇ may, at its option, instead of exercising any other rights or
remedies available to it in this Lease or otherwise by law, statute or equity,
spend such money as is reasonably necessary to cure any default of Lessee herein
and the amount so spent, and costs incurred, including attorney's fees in curing
such default, shall be paid by Lessee, as additional rent, upon demand.
d. In the event suit shall be brought for recovery of possession of the
Demised Premises, for the recovery of rent or any other amount due under the
provisions of this Lease, or because of the breach of any other covenant herein
contained on the part of Lessee to be kept or performed, and a breach shall be
established, Lessee shall pay to Lessor all expenses incurred therefor,
including a reasonable attorney's fee, together with interest on all such
expenses at the rate of twelve percent (12%) per annum from the date of such
breach of the covenants of this Lease.
e. Lessee hereby expressly waives any and all rights of redemption granted
by or under any present or future laws in the event of Lessee being evicted or
dispossessed for any cause, or in the event of Lessor obtaining possession of
the Demised Premises, by reason of the violation by Lessee of any of the
covenants or conditions of this Lease, or otherwise. Lessee also waives any
demand for possession of the Demised Premises, and any demand for payment of
rent and any notice of intent to re-enter the Demised Premises, or of intent to
terminate this Lease, other than the notices above provided in this Article, and
waives any and every other notice or demand prescribed by any applicable
statutes or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law, statute
or equity, conferred upon or reserved to Lessor or Lessee shall be exclusive of
any other remedy, but shall be cumulative, and may be exercised from time to
time and as often as the occasion may arise.
COVENANTS TO HOLD HARMLESS:
18. Unless the liability for damage or loss is caused by the negligence of
Lessor, its agents or employees. Lessee shall hold harmless Lessor from any
liability for damages to any person or property in or upon the Demised Premises
and the Premises, including the person and the property of Lessee and its
employees and all persons in the Building at its or their invitation or
sufferance, and from all damages resulting from Lessee's failure to perform the
covenants of this Lease. All property kept, maintained or stored on the Demised
Premises shall be so kept, maintained or stored at the sole risk of Lessee.
Lessee agrees to pay all sums of money in respect of any labor, service,
materials, supplies or equipment furnished or alleged to have been furnished to
Lessee in or about the Premises, and not furnished on order of Lessor, which may
be secured by any Mechanic's Materialmen's or other lien to be discharged at the
time performance of any obligation secured thereby matures, provided that Lessee
may contest such lien, but if such lien is reduced to final judgment and if such
judgment or process thereon is not stayed, or if stayed and said stay expires,
then and in each such event, Lessee shall forthwith pay and discharge said
judgment. Lessor shall have the right to post and maintain on the Demised
Premises, of non-responsibility under the laws of the State of Minnesota.
NON-LIABILITY:
19. Subject to the terms and conditions of Article 14 hereof, Lessor shall not
be liable for damage to any property of Lessee or of others located on the
Premises, nor for the loss of or damage to any property of Lessee or of others
by theft or otherwise. Lessor shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow or leaks from any part of the Premises or from
the pipes, appliances, or plumbing works or from the roof, street or subsurface
or from any other place or by dampness or by any other cause of whatsoever
nature. Lessor shall not be liable for any such damage caused by other Lessees
or persons in the Premises, occupants of adjacent property, of the buildings, or
the public or caused by operations in construction of any private, public or
quasipublic work. All property of Lessee kept or stored on the Demised Premises
shall be so kept or stored at the risk of Lessee only and Lessee shall hold
Lessor harmless from any claims arising out of damage to the same, including
subrogation claims by Lessee's insurance carrier.
SUBORDINATION:
20. This Lease shall be subordinated to any mortgages that may now exist or that
may hereafter be placed upon the Demised Premises and to any and all advances
made thereunder, and to the interest upon the indebtedness evidenced by such
mortgages, and to all renewals, replacements and extensions thereof . In the
event of execution by Lessor after the date of this Lease of any such mortgage,
renewal,
replacement or extension, Lessee agrees to execute a subordination agreement
with the holder thereof which agreement shall provide that:
a. Such holder shall not disturb the possession and other rights of Lessee
under this Lease so long as Lessee is not in default hereunder,
b. In the event of acquisition of title to the Demised Premises by such
holder, such holder shall accept the Lessee as Lessee of the Demised Premises
under the terms and conditions of this Lease and shall perform all the
obligations of Lessor hereunder, and
c. The Lessee shall recognize such holder as Lessor hereunder. Lessee
shall, upon receipt of a request from Lessor therefor, execute and deliver to
Lessor or to any proposed holder of a mortgage or trust deed or to any proposed
purchaser of the Premises, a certificate in recordable form, certifying that
this Lease is in full force and effect, and that there are no offsets against
rent nor defenses to Lessee's performance under this Lease, or setting forth any
such offsets or defenses claimed by Lessee, as the case may be.
ASSIGNMENT OR SUBLETTING:
21. Lessee agrees to use and occupy the Demised Premises throughout the entire
term hereof for the purpose of purposes herein specified and for no other
purposes, in the manner and to substantially the extent now intended, and not to
transfer or assign this Lease or sublet said Demised Premises, or any part
thereof, whether by voluntary act, operation of law, or otherwise, without
obtaining the prior consent of Lessor in each instance. Lessee shall seek such
consent of Lessor by a written request therefor, setting forth such information
as Lessor may deem necessary. Lessor agrees not to withhold consent
unreasonably. Consent by Lessor to any assignment of this Lease or to any
subletting of the Demised Premises shall not be a waiver of Lessor's rights
under this Article as to any subsequent assignment or subletting. Lessor's
rights to assign this Lease are and shall remain unqualified. No such assignment
or subleasing shall relieve the Lessee from any of Lessee's obligations in this
Lease contained, nor shall any assignment or sublease or other transfer of this
Lease be effective unless the assignee, sublessee or transferee shall at the
time of such assignment, sublease or transfer, assume in writing for the benefit
of Lessor, its successors or assigns, all of the terms, covenants and conditions
of this Lease thereafter to be performed by Lessee and shall agree in writing to
be bound thereby. Should Lessee sublease in accordance with the terms of this
Lease, fifty percent (50%) of any increase in rental received by Lessee over the
per square foot rental rate which is being paid by Lessee shall be forwarded to
and retained by Lessor, which increase shall be in addition to the Base Rent and
Additional Rent due Lessor under this Lease.
ATTORNMENT:
22. In the event of a sale or assignment of Lessor's interest, in the Premises,
or the Building in which the Demised Premises are located, or this Lease, or if
the Premises come into custody or possession of a mortgagee or any other party
whether because of a mortgage foreclosure, or otherwise, Lessee shall attorn to
such assignee or other party a) and recognize such party as Lessor hereunder;
provided, however, Lessee's peaceable possession will not be disturbed so long
as Lessee faithfully performs its obligations under this Lease. Lessee shall
execute, on demand, any attornment agreement required by any such party to be
executed, containing such provisions and such other provisions as such party may
require.
NOVATION IN THE EVENT OF SALE: See Article 49
23. In the event of the sale of the Demised Premises, Lessor shall be and hereby
is relieved of all of the covenants and obligations created hereby accruing from
and after the date of sale, and such sale shall result automatically in the
purchaser assuming and agreeing to carry out all the covenants and obligations
of Lessor herein. Notwithstanding the foregoing provisions of this Article,
Lessor, in the event of a sale of
the Demised Premises, shall cause to be included in this agreement of sale and
purchase a covenant whereby the purchaser of the Demised Premises assumes and
agrees to carry out all of the covenants and obligations of Lessor herein.
The Lessee agrees at any time and from time to time upon not less than ten
(10) days prior written request by the Lessor to execute, acknowledge and
deliver to the Lessor a statement in writing certifying that this Lease is
unmodified and in full force and effect as modified and stating the
modifications, and the dates to which the basic rent and other charges have been
paid in advance, if any, it being intended that such statement delivered
pursuant to this paragraph may be relied upon by any prospective purchaser of
the fee or mortgagee or assignee of any mortgage upon the fee of the Demised
Premises.
SUCCESSORS AND ASSIGNS:
24. The terms, covenants and conditions hereof shall be binding upon and inure
to the successors and assigns of the parties hereto.
REMOVAL OF FIXTURES:
25. Notwithstanding anything contained in Article 8, 29 or elsewhere in this
Lease, if Lessor requests then Lessee will promptly remove at the sole cost and
expense of Lessee all fixtures, equipment and alterations made by Lessee
simultaneously with vacating the Demised Premises and Lessee will promptly
restore said Demised Premises to the condition that existed immediately prior to
said fixtures, equipment and alterations having been made all at the sole cost
and expense of Lessee.
QUIET ENJOYMENT:
26. Lessor warrants that it has full right to execute and to Lease and to grant
the estate demised, and that Lessee, upon payment of the rents and other amounts
due and the performance of all the terms, conditions, covenants and agreements
on Lessee's part to be observed and performed under this Lease, may peaceably
and quietly enjoy the Demised Premises for the business uses permitted
hereunder, subject, nevertheless, to the terms and conditions of this Lease.
RECORDING:
27. Lessee shall not record this Lease without the written consent of Lessor.
However, upon the request of either party hereto, the other party shall join in
the execution of the Memorandum lease for the purposes of recordation. Said
Memorandum lease shall describe the parties, the Demised Premises and the term
of the Lease and shall incorporate this Lease by reference. This Article 27
shall not be construed to limit Lessor's right to file this Lease under Article
22 of this Lease.
OVERDUE PAYMENTS:
28. All monies due under this Lease from Lessee to Lessor shall be due on
demand, unless otherwise specified and if not paid when due, shall result in the
imposition of a service charge for such late payment in the amount of ten
percent (10%) of the amount due.
SURRENDER:
29. On the Expiration Date or upon the termination hereof upon a day other than
the Expiration Date, Lessee shall peaceably surrender the Demised remises
broom-clean in good order, condition and repair, reasonable wear and tear only
excepted. On or before the Expiration Date or upon termination of this Lease on
a day other than the Expiration Date, Lessee shall, at its expense, remove all
trade fixtures, personal property and equipment and signs from the Demised
Premises and any property not removed shall be deemed to have been abandoned.
Any damage caused in the removal of such items shall be
repaired by Lessee and at its expense. All alterations, additions, improvements
and fixtures (other than trade fixtures) which shall have been made or installed
by Lessor or Lessee upon the Demised Premises and all floor covering so
installed shall remain upon and be surrendered with the Demised Premises as a
part thereof, without disturbance, molestation or injury, and without charge, at
the expiration or termination of this Lease. If the Demised Premises are not
surrendered on the Expiration Date or the date of termination, Lessee shall
indemnify Lessor against loss or liability, claims, without limitation, made by
any succeeding Lessee founded on such delay. Lessee shall promptly surrender all
keys for the Demised Premises to Lessor at the place then fixed for payment of
rent and shall inform Lessor of combinations of any locks and safes on the
Demised Premises.
HOLDING OVER:
30. In the event of a holding over by Lessee after expiration or termination of
this Lease without the consent in writing of Lessor, Lessee shall be deemed a
lessee at sufferance and shall pay rent for such occupancy at the rate of 150%
the last-current aggregate Base and Additional Rent, prorated for the entire
holdover period, plus all attorney's fees and expenses incurred by Lessor in
enforcing its rights hereunder, plus any other damages occasioned by such
holding over. Except as otherwise agreed, any holding over with the written
consent of Lessor shall constitute Lessee a month-to-month lessee.
ABANDONMENT:
31. In the event Lessee shall remove its fixtures, equipment or machinery or
shall vacate the Demised Premises or any part thereof prior to the Expiration
Date of this Lease, or shall discontinue or suspend the operation of its
business conducted on the Demised Premises for a period of more than thirty (30)
consecutive days (except during any time when the Demised Premises may be
rendered untenantable by reason of fire or other casualty), then in any such
event Lessee shall be deemed to have abandoned the Demised Premises and Lessee
shall be in default under the terms of this Lease. However, Lessee shall not be
deemed to have abandoned the Demised Premises or to be in default under the
terms of this Lease if the Lessee makes the rental payments as required herein
not withstanding the other provisions of this section.
CONSENTS BY LESSOR:
32. Whenever provision is made under this Lease for Lessee securing the consent
or approval by Lessor, such consent or approval shall only be in writing. and
such consent or approval shall not be unreasonably withheld.
NOTICES:
33. Any notice required or permitted under this Lease shall be deemed
sufficiently given or secured if sent be registered or certified return receipt
mail to Lessee at ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and to
Lessor at the address then fixed for the payment of rent as provided in Article
4 of this Lease, and either party may by like written notice at any time
designate a different address to which notices shall subsequently be sent or
rent to be paid.
RULES AND REGULATIONS:
34. Lessee shall observe and comply with the rules and regulations hereinafter
set forth in "Exhibit C", and with such further reasonable rules and regulations
as Lessor may prescribe, on written notice to Lessee for the safety, care and
cleanliness of the Building.
INTENT OF PARTIES:
35. Except as otherwise provided herein, the Lessee covenants and agrees that if
it shall any time fail to pay any such cost or expense, or fail to take out, pay
for, maintain or deliver any of the insurance policies
above required, or fail to make any other payment or perform any other act on
its part to be made or performed as in this Lease provided, then the Lessor may,
but shall not be obligated so to do, and without notice to or demand upon the
Lessee and without waiving or releasing the Lessee from any obligations of the
Lessee in this Lease contained, pay any such cost or expense, effect any such
insurance coverage and pay premiums therefor, and may make any other payment or
perform any other act on the part of the Lessee to be made and performed as in
this Lease provided, in such manner and to such extent as the Lessor may deem
desirable, and in exercising any such right, to also pay all necessary and
incidental costs and expenses, employ counsel and incur and pay reasonable
attorneys' fees. All sums so paid by Lessor and all necessary and incidental
costs and expenses in connection with the performance of any such act by the
Lessor, together with interest thereon at the rate of twelve percent (12%) per
annum from the date of making of such expenditure, by Lessor, shall be deemed
additional rent hereunder, and shall be payable to Lessor on demand. Lessee
covenants to pay any such sum or sums with interest as aforesaid and the Lessor
shall have the same rights and remedies in the event of the non-payment thereof
by Lessee as in the case of default by Lessee in the payment of the Base Rent
payable under this Lease.
GENERAL:
36. The Lease does not create the relationship of principal and agent or of
partnership or of joint venture or of any association between Lessor and Lessee,
the sole relationship between the parties hereto being that of Lessor and
Lessee. No waiver of any default of Lessee hereunder shall be implied from any
omission by Lessor to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. One or more waivers by Lessor shall not then be
construed as a waiver of a subsequent breach of the same covenant, term or
condition. The consent to or approval by Lessor of any act by Lessee requiring
Lessor's consent or approval shall not waive or render unnecessary Lessor's
consent to or approval of any subsequent similar act by Lessee shall be
construed to be both a convenant and a condition. No action required or
permitted to be taken by or on behalf of Lessor under the terms or provisions of
this Lease shall be deemed to constitute an eviction or disturbance of Lessee's
possession of the Demised Premises. All preliminary negotiations are, rnerged
into and incorporated in this Lease. The laws of the State of Minnesota shall
govern the validity, performance and enforcement of this Lease.
a. This Lease and the exhibits, if any, attached hereto and forming a part
hereof, constitute the entire agreement between Lessor and Lessee affecting the
Demised Premises and there are no other agreements, either oral or written,
between them other than are herein set forth. No subsequent alteration,
amendment, change or addition to this Lease shall be binding upon Lessor or
Lessee unless reduced to writing and executed in the same form and manner in
which this Lease is executed.
b. If any agreement, covenant or condition of this Lease or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
agreement, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each agreement, covenant or condition of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
HAZARDOUS MATERIAL: See Article 50
37. a. The Premises hereby leased shall be used by and/or at the sufferance of
Lessee only for the purpose set forth in Article 11 above and for no other
purposes. Lessee shall not use or permit the use of the Premises in any manner
that will tend to create waste or a nuisance, or will tend to unreasonably
disturb other Lessees in the Building or the Project. Lessee, its employees and
all persons visiting or doing business with Lessee in the Premises shall be
bound by and shall observe the Building Rules and Regulations attached to this
Lease as Exhibit 'C", and such further and other reasonable rules and
regulations made hereafter by Lessor relating to the Premises, the Building or
the Project of which notice in writing shall be given to the Lessee, and all
such rules and regulations shall be deemed to be incorporated into and form a
part of this Lease.
b. Lessee covenants throughout the Lease Term, at Lessee's sole cost and
expense, promptly to comply with all laws and ordinances and the orders, rules
and regulations and requirements of all federal,
state and municipal governments and appropriate departments, commissions,
boards, and officers thereof, and the orders, rules and regulations of the Board
of Fire Underwriters where the Premises are situated, or any other body now or
hereafter well as extraordinary, and whether or not the same require structural
repairs or alterations, which may be applicable to the Premises, or the use or
manner of use of the Premises. Lessee will likewise observe and comply with the
requirements of all policies of public liability, fire and all other policies of
insurance at any time in force with respect to the buildings and improvements on
the Premises and the equipment thereof.
c. In the event any Hazardous Material (hereinafter defined) is brought or
caused to be brought into or onto the Premises, the Building or the Project by
Lessee, Lessee shall handle any such material in compliance with all applicable
federal, state and/or local regulations. For purposes of this Article,
'Hazardous Material' means and includes any hazardous, toxic or dangerous waste,
substance or material defined as such in (or for purposes of) the Comprehensive
Environmental Response, Compensation, and Liability Act, any so-called
'Superfund" or 'Superlien' law, or any federal, state or local statute, law,
ordinance, code, rule, regulation, order decree regulating, relating to, or
imposing liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter in
effect. Lessee shall submit to Lessor on an annual basis copies of its approved
hazardous materials communication plan, OSHA monitoring plan, and permits
required by the Resource Recovery and Conservation Act of 1976, if Lessee is
required to prepare, file or obtain any such plans or permits. Lessee will
indemnify and hold harmless Lessor from any losses, liabilities, damages, costs
or expenses (including reasonable attorneys' fees) which Lessor may suffer or
incur as a result of Lessee's introduction into or onto the Premises of any
Hazardous Material. This Article shall survive the expiration or sooner
termination of this Lease.
CAPTIONS:
38. The captions are inserted only as a matter of convenience and for reference,
and in no way define, limit or describe the scope of this Lease nor the intent
or any provision thereof.
EXHIBITS:
39. Reference is made to Exhibits A through D, inclusive, which Exhibits are
attached hereto and made a part hereof.
EXHIBIT DESCRIPTION
------- -----------
Exhibit A Legal Description
Exhibit B Demised Premises
Exhibit C Building Rules and Regulations
Exhibit D Improvements
40. Submission of this instrument to Lessee or proposed Lessee or his agents or
attorneys for examination, review, consideration or signature does not
constitute or imply an offer to lease, reservation of space, or option to lease,
and this instrument shall have no binding legal effect until execution hereof by
both Lessor/Owner and Lessee or its agents.
41. It is agreed and understood that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ agent or broker with
Welsh Companies, Inc. is representing Sierra Development, Lessor, and ▇▇▇▇
▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇, agent or broker with ▇▇▇▇▇ Real Estate is representing LecTec
Corporation (A Minnesota Corporation) Lessee.
SEE ALSO THE RIDER ATTACHED HERETO AND MADE A PART HEREOF, AND CONTAINING
ARTICLES 42 THROUGH 50, INCLUSIVE
IN WITNESS WHEREOF, the Lessor and the Lessee have caused these presents to be
executed in form and manner sufficient to bind them at law, as of the day and
year first above written.
Lessee: Lessor:
LecTec Corporation Sierra Development
(A Minnesota Corporation) (A Minnesota General Partnership)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its President and CEO Its Partner
REV 6/89
Printed in U.S.A.
RIDER TO LEASE
DATED MAY 24,1991
BY AND BETWEEN
SIERRA DEVELOPMENT (A MINNESOTA GENERAL PARTNERSHIP), LESSOR
AND
LECTEC CORPORATION (A MINNESOTA CORPORATION), LESSEE
Article 42 - Early Occupancy:
In the event the Premises become available and ready for occupancy
prior to the Commencement Date, Lessor may elect to permit Lessee to
take occupancy of all or part of the Premises prior to such date. In
such event, it is agreed that all the terms and conditions of this
Lease shall be in full force and effect except Base Rent and Additional
Rent shall be abated until the Commencement Date.
Article 43 - Base Rent:
The following is hereby added to and made a part of Article 2, Base
Rent, and Article 3, Additional Rent of this Lease:
Monthly Total Period
Period Base Rent Base Rent
July 1, 1991 through and
including October 31, 1991 $0.00 $0.00
November 1, 1991 through and
including June 30, 1994 $10,288.50 $329,232.00
July 1, 1994 through and
including June 30, 1997 $11,548.70 $415,753.20
TOTAL $744,985.20
All other terms and conditions of this Lease, including Article 3,
Additional Rent, shall be in full force and effect July 1, 1991.
Article 44 - Improvements:
The Lessor agrees, at no expense to the Lessee, to provide all of the
improvements detailed in Exhibit "D". Any additional improvements shall
be approved by the Lessor and completed at the sole cost and expense of
the Lessee.
Rider To Lease
LecTec Corporation
Page Two
Article 45 - Right To Terminate:
Provided the Lessee is not in default and performed all of its
obligations hereunder it shall have the one time right to terminate
this Agreement on July 1, 1996. To exercise this Right To Terminate the
Lessee shall notify the Lessor in writing of its intent no later than
120 days prior to
July 1, 1996. Such notification shall also be accompanied by a
termination fee of $11,548.70. This Right To Terminate is personal to
LecTec Corporation and is not transferable; and in the event of any
assignment or subletting shall automatically terminate and shall
thereafter become null and void.
Article 46 - Parking:
The Lessor agrees to provide the Lessee with 65 parking stalls. In the
event the balance of the Building is leased and parking becomes a
problem, the Lessor agrees to use its commercially reasonable best
efforts to correct such parking problems.
Article 47 - First Opportunity to Lease Additional Space:
A. Provided Lessee is not in default and has performed all of its
obligations hereunder, Lessee shall have the first opportunity
to lease such other contiguous space in their entirety, or at
Lessor's direction, some portion thereof, as they become
available for leasing during the first four (4) years of the
Term ("First Opportunity") for a term coterminous with this
Lease and, at the same square foot rental rates and upon such
other terms and conditions, as are then being paid by Lessee
for the Demised Premises.
B. Upon notification in writing by Lessor that such space is
available, Lessee shall have three (3) business days in which
to elect in writing so to lease such space, in which event the
lease for same shall commence not more than thirty (30) days
after such space becomes vacant and shall be coterminous with
this Lease.
C. In the event Lessee declines or fails to elect so to lease such
space, then the First Opportunity hereby granted so at to such
space shall automatically terminate and shall thereafter be null
and void as to such space.
D. It is understood that this First Opportunity shall not be
construed to prevent any other lessee in the Building from
extending or renewing its lease.
Rider To Lease
LecTec Corporation
Page Three
E. The First Opportunity hereby granted is personal to LecTec
Corporation and is not transferable; in the event of any
assignment or subletting under this Lease, this First
Opportunity shall automatically terminate and shall thereafter
be null and void.
Article 48 - Additional Rent:
The following is hereby added to and made a part of Article 3,
Additional Rent of this Lease:
A. The Lessee shall not be responsible for paying delinquency
penalties imposed upon Lessor for Lessor's late payment of
real estate taxes.
B. The Lessee shall have the right to inspect Lessor's records
relating to the operating costs on the building which are
billed back to the Lessee as Additional Rent.
Article 49 - Lessee's Approval of Sale:
In the event that Lessor shall elect to sell, assign or transfer its
interest in the Building to a "Competitor" (as hereinafter defined)
Lessor shall disclose the identity of the Competitor in writing
to Lessee (the "Notice of Intended Sale"). If Lessee reasonably
determines that leasing by the Lessee of the Demised Premises from the
Competitor would (i) cause material harm to the Lessee's business or
(ii) violate any law, rule or regulation applicable to Lessee, Lessee
shall have thirty (30) days after receipt of the Notice of Intended
Sale to elect to terminate this Lease effective ninety (90) days from
the date of such election. Election to terminate shall be made by
written notice to Lessor as provided herein. Such election to terminate
shall be accompanied by (i) an affidavit from an officer of Lessee
setting forth the factual basis justifying termination and (ii) payment
of a termination premium in an amount equal to fifty percent (50%) of
the then present value (using a 10% interest rate assumption) of the
remaining base rental obligation of Lessee under the lease term. For
purposes hereof, a "Competitor" shall be any entity which derives more
than fifty percent (50%) of its revenues from the sale or manufacture
of products which are substantially the same as, and in direct
competition with, products sold or manufactured by Lessee as of the
date hereof.
Article 50 - Hazardous Material:
Lessor warrants and covenants that it did not, and will not in the
future, install, use, generate, store or dispose of on or about the
Premises (or the Building) any hazardous substances, toxic chemicals,
pollutants or other materials regulated
Rider To Lease
LecTec Corporation
Page Four
pursuant to the Federal Comprehensive Environmental Response
Compensation and Liability Act ("CERCLA!'), the Federal Resource
Conservation and Recovery Act ("RCRA") and the Minnesota Environmental
Response and Liability Act ("▇▇▇▇▇"), or any similar statutes or
regulations, including without limitation any materials containing
asbestos, polychlorinated biphenyls ("PCB's"), petroleum, crude oil or
natural gas (collectively, "Hazardous Substances"), except for
immaterial quantities of any Hazardous Substances customarily used in
the construction and maintenance of like properties which have been
used in accordance with applicable laws, statutes, regulations and
ordinances then in effect. Lessor further agrees to indemnify and hold
Lessee harmless from and against any claim, damage, fine or any other
expense (including court costs, attorney's fees and any other cost of
defense) arising out of Lessor's installation, use, generation, storage
or disposal of any Hazardous Substances in or about the Premises (or
the Building).
Lessor has not, and to the best of its knowledge without independent
verification, no prior owner or occupant has installed in, on or about
the Premises any underground storage tank containing Hazardous
Substances (as defined elsewhere in Lease), including, but not limited
to, petroleum, crude oil or by-products of petroleum or crude oil.
Lessor hereby warrants that, to the best of its knowledge without
independent verification, no asbestos containing materials have been
used or installed upon the Premises, or, if at any time asbestos
containing materials were located on the Premises, such materials have
been removed prior to the date of this Lease.
LESSEE: LESSOR:
LECTEC CORPORATION SIERRA DEVELOPMENT
(A MINNESOTA CORPORATION) (A MINNESOTA GENERAL PARTNERSHIP)
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
ITS: President and CEO ITS: Partner
DATE: May 24, 1991 DATE: May 24, 1991
EXHIBIT "A"
LEGAL DESCRIPTION
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Addition
EXHIBIT "B"
Floor Plan
Exhibit "B" (which is a schematic of the leased building and grounds) has been
omitted from this electronic filing.
EXHIBIT "C"
Rules and Regulations
THESE RULES ARE FOR THE MUTUAL BENEFIT OF ALL USERS
PLEASE COOPERATE
Tenant agrees to be bound by and comply with the Rules and Regulations, as
follows:
(a) Trash. Each Tenant shall provide its own dumpster for trash and agrees not
to leave or store any materials, litter or trash on the grounds or parking
areas.
(b) Parking. Parking shall fully comply with the City of Edina ordinances.
(c) Signs. No sign, advertisement, or other lettering shall be painted, affixed,
or exposed on the windows or doors or any part of the outside of the building or
property without the prior written consent of the Landlord, which consent shall
not be unreasonably withheld. All identification signs shall be per the building
standards and fully comply with the City of Edina ordinances.
(d) Fixture Movement. Tenant agrees that any and all furniture, fixtures and
goods will be moved by the Tenant whenever such moving is necessary for purpose
of building repair and/or maintenance by Landlord.
(e) Access. Landlord or authorized agent, has the right to enter the Leased
Premises at any reasonable time to inspect, make repairs or alterations as
needed, and three (3) months prior to the termination of this Agreement to
display the Leased Premises to prospective tenants, and to place on doors and
windows appropriate notice that the premises are for rent.
(f) Locks. No additional locks will be placed on any of the doors in the
building without Landlord's prior written approval, which approval shall not be
unreasonably withheld, and unless Landlord receives an access key to such locks.
(g) Storage. Storage and installation of any machinery, parts, materials,
equipment, shelving or furniture of any type whatsoever, constitutes occupancy.
Tenant has read and agrees to abide by all Landlord's Rules and Regulations and
acknowledges that violation of any provision of this Agreement or Rules
constitutes a breach of this Lease Agreement.