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FIRST AMENDMENT OF LEASE
FIRST AMENDMENT OF LEASE (this "Amendment"), dated November 9, 1995,
between METRO INTERNATIONAL INC., an Ontario corporation ("Landlord"), and ADC
TELECOMMUNICATIONS, INC., a Minnesota corporation ("Tenant").
Preliminary Statement
Landlord and Tenant have entered into the Lease, dated March 1, 1986, with
respect to the premises located at 00000 X-Xxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx.
The initial term of the Lease expired on July 31, 1991, and Tenant exercised
its renewal option pursuant to letter dated June 5, 1990, extending the term of
the Lease to July 31, 1996.
Landlord and Tenant desire to further extend the term of the Lease, and to
make certain other amendments to the Lease, all as more particularly set forth
in this Amendment.
Therefore, in consideration of the mutual promises in this Amendment, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant agree as follows:
1. All capitalized terms used but not otherwise defined in this
Amendment shall have the meanings set forth in the Lease.
2. Effective as of August 1, 1996 (the "Effective Date"), the Lease is
hereby amended as follows:
(a) The Term of the Lease shall be extended by five (5) years (the "Second
Renewal Term"), upon all the terms, covenants and conditions set forth in the
Lease (except as otherwise modified by this Amendment), so that the expiration
of the Term shall be July 31, 2001.
(b) Tenant shall pay to Landlord Minimum Rent at the annual rate of Five
Hundred Seventy-Six Thousand One Hundred Eighty and 00/100 Dollars
($576,180.00), payable in lawful money of the United States of America, in
equal monthly installments in the amount of Forty-Eight Thousand Fifteen and
00/100 Dollars ($48,015.00) each, payable in advance on the first day of each
calendar month during the Second Renewal Term without any setoff, offset,
abatement or deduction whatsoever.
(c) Tenant shall have the right, at its option, to renew the Term of the
Lease, for all of the Leased Premises, for a renewal term (the "Third Renewal
Term"), of five (5) years. The Third Renewal Term shall commence on August 1,
2001, and shall terminate on July 31, 2006. Tenant shall exercise the option
described herein by giving Landlord written notice of such election to renew
not later than August 1, 2000, and upon the giving of such notice the Lease
shall thereupon be deemed renewed for the Third Renewal Term with the same
force and effect as if the Third Renewal Term had
originally been included in the Term of the Lease. Time is of the essence with
respect to Tenant's delivery of such notice to renew.
(d) Tenant shall pay to Landlord Minimum Rent at the annual rate of Six
Hundred Twenty-Three Thousand Seven Hundred and 00/100 Dollars ($623,700.00),
payable in lawful money of the United States of America, in equal monthly
installments in the amount of Fifty-One Thousand Nine Hundred Seventy-Five and
00/00 Dollars ($51,975.00) each, payable in advance on the first day of each
calendar month during the Third Renewal Term without any setoff, offset,
abatement or deduction whatsoever.
(e) The definition of "Term" is amended to include the Initial Term, together
with the Renewal Term, the Second Renewal Term, and the Third Renewal Term.
(f) The definition of "Minimum Rent" is amended to include the annual rent
payable during the Initial Term, the Renewal Term, the Second Renewal Term, and
the Third Renewal Term.
3. Tenant has agreed to accept the Leased Premises "AS IS", "WHERE IS",
in their existing condition and state of repair, and without any representation
or warranty by or on behalf of Landlord, express or implied, including any
representation or warranty as to: (i) MERCHANTABILITY; (ii) TENANTABILITY;
(iii) fitness for Tenant's intended purposes or any other particular purpose;
(iv) the condition or state of repair of the Leased Premises; (v) the absence
or presence of any structural or other defects or deficiencies in the Leased
Premises; or (vi) any other matter or aspect pertaining to the Leased Premises
or the use, potential use, or condition thereof. Tenant hereby expressly
covenants and agrees that Landlord shall, under no circumstances, be liable for
any latent, patent, or other non-structural defects or deficiencies in the
Leased Premises.
4. Landlord and Tenant hereby represent and warrant to the other that it
has dealt with no broker, finder or like agent in connection with this
Amendment. Landlord and Tenant hereby agree to indemnify and hold the other
harmless from and against any and all losses, costs, damages and expenses
(including, without limitation, attorneys' fees and disbursements) incurred by
the indemnified party for any claim of, or liability to, any broker, finder or
like agent who shall claim to have dealt with the indemnifying party in
connection with this Amendment.
5. Written notices, statements or requests to Landlord, permitted or
required in accordance with the Lease, shall be delivered to 000 Xxxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx XXX 0X0.
6. Tenant acknowledges and agrees that, as of the date hereof, (i)
Tenant has no offsets, claims, counterclaims or defenses of any nature
whatsoever to the performance of its obligations under the Lease (including,
without limitation, its obligation to pay any Rent) and, to the best of
Tenant's knowledge, there is no condition which, with the giving of notice
and/or lapse of time, would constitute the basis of such an offset, claim,
counterclaim or defense, and (ii) Tenant has no claims of any nature whatsoever
against Landlord.
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7. All of the terms, covenants and conditions of this Amendment shall be
conditional upon Tenant not being in default under Lease, and upon the Lease
being in full force and effect as of the Effective Date.
8. As modified by this Amendment, all of the terms and conditions of the
Lease are hereby ratified and confirmed in all respects and shall continue to
remain in full force and effect throughout the remainder of the Term of the
Lease.
9. The terms and conditions contained in this Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
10. This Amendment may not be modified, amended or terminated, and no
provision may be waived, except by an agreement in writing, signed by the party
against whom enforcement of any modification, amendment, termination or waiver
is sought.
11. Tenant shall, simultaneously with the execution and delivery of this
Amendment, deliver a check made payable to Landlord in the amount of Five
Hundred and 00/100 Dollars ($500.00), on account of the legal fees incurred by
Landlord in connection with the preparation of this Amendment.
12. This Amendment may be executed in counterparts, each of which will be
deemed to be an original and all of which will together constitute one
instrument.
THIS AMENDMENT has been executed and delivered by Landlord and Tenant the
day first set forth above.
LANDLORD:
METRO INTERNATIONAL INC., an Ontario corporation
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Vice President
TENANT:
ADC TELECOMMUNICATIONS, INC., a Minnesota
Corporation
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Senior Vice President
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