PHG/JKB/kk
7/18/98
LEASE AGREEMENT
THIS LEASE is executed this 19th day of August, 1998, by and between
DUKE REALTY MINNESOTA, LLC, a Minnesota limited liability company ("Landlord"),
and LULL INTERNATIONAL, INC., a Delaware corporation ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
A. Leased Premises Address: 0000 Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxxxxx,
Xxxxxxxxx 00000 (the "Building"); located in Enterprise Industrial
Center (the "Park");
B. Rentable Area: approximately 39,648 square feet;
Landlord shall use commercially reasonable standards, consistently
applied, in determining the Rentable Area and the rentable area of the
Building. The Rentable Area shall include the area within the Leased
Premises plus a pro rata portion of the area covered by the common
areas within the Building, as reasonably determined by Landlord from
time to time. Landlord's determination of Rentable Area made in good
faith shall conclusively be deemed correct for all purposes hereunder,
including without limitation the calculation of Tenant's Proportionate
Share and Tenant's Minimum Annual Rent.
C. Tenant's Proportionate Share: 23.92%;
D. Annual Base Rent:
10/01/98 - 09/30/99 $119,736.96
10/01/99 - 09/30/01 $151,058.88 per year
10/01/01 - 09/30/04 $160,970.88 per year;
E. Monthly Rental Installments:
10/01/98 - 09/30/99 $ 9,978.08 per month
10/01/99 - 09/30/01 $ 12,588.24 per month
10/01/01 - 09/30/04 $ 13,414.24 per month;
F. Term: Six (6) years;
G. Commencement Date: October 1, 1998;
H. Security Deposit: $13,400.00;
I. Guarantor: None;
J. Broker: Duke Realty Services Limited Partnership representing
Landlord;
Duke Realty Services Limited Partnership will not share the broker's
compensation with other brokers who may represent Tenant. Landlord is
solely responsible for Duke Realty Services Limited Partnership's
brokerage compensation and will hold Tenant harmless therefrom.
K. Permitted Use: Office and Warehouse Use including for example and
without limitation for stocking, service training, light
manufacturing, painting and subassembly operations (provided, however,
that in the event Tenant uses the Leased Premises for painting, the
same shall be done in a paint booth in a location mutually agreed upon
by both Landlord and Tenant);
L. Addresses for notices:
Landlord: Duke Realty Minnesota, LLC
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Tenant: Lull International, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
With a
Copy to: OmniQuip International, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Address for rental and other payments:
Duke Realty Minnesota, LLC
NW 7210
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000-0000
Section 1.02. Leased Premises. Landlord hereby leases to Tenant and
Tenant leases from Landlord, subject to all of the terms and conditions set
forth herein, that portion of the Building described in the Basic Lease
Provisions consisting of approximately 39,648 rentable square feet and outlined
on Exhibit A attached hereto (the "Leased Premises"). Landlord also grants to
Tenant, together with and subject to the rights granted from time to time by
Landlord to other tenants and occupants of the Building, the right to use the
common areas and parking area adjoining the Building. Notwithstanding the
foregoing sentence, Landlord grants to Tenant and its customers and invitees the
right to exclusive use of not less than fifty percent (50%) of the parking area
to the east of the Leased Premises. In the event parking issues arise, Landlord
and Tenant hereby agree to work together in good faith to resolve said parking
issues.
ARTICLE 2 - TERM AND POSSESSION
Section 2.01. Term. The term of this Lease ("Lease Term") shall be the
period of time specified in the Basic Lease Provisions and shall commence on the
Commencement Date described in the Basic Lease Provisions. Upon tender of
possession of the Leased Premises to Tenant, Tenant shall have the right to
inspect the same and provided the Leased Premises are in the condition required
by the Lease, Tenant agrees to execute a letter of understanding acknowledging
(i) the Commencement Date of this Lease, and (ii) that Tenant has accepted the
Leased Premises for occupancy and that the condition of the Leased Premises
(including any tenant finish improvements constructed thereon) and the Building
was at the time satisfactory and in conformity with the provisions of this Lease
in all respects.
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Such letter of understanding shall become a part of this Lease. If Tenant takes
possession of and occupies the Leased Premises, Tenant shall be deemed to have
accepted the Leased Premises as described above, even though Tenant may not have
executed the letter of understanding.
Section 2.02. Construction of Tenant Improvements. Tenant has
personally inspected the Leased Premises and accepts the same "as is" without
representation or warranty by Landlord of any kind, except Landlord shall
construct in a good and workmanlike manner the improvements in the Leased
Premises in accordance with Tenant's plans and specifications which shall be
mutually agreed upon by both Landlord and Tenant and attached hereto as Exhibit
B, in an amount not to exceed Fifty-nine Thousand Dollars ($59,000.00)
("Landlord's Allowance"). Landlord agrees to competitively bid such
improvements. In the event Landlord receives a bid from a qualified, reputable
general contractor capable of performing the work on the improvements as
provided herein, and such bid is less than Fifty Thousand Dollars ($50,000.00),
Tenant shall be entitled to add additional work to the improvements set forth in
Exhibit B up to a total cost of Fifty Thousand Dollars ($50,000.00). Tenant
hereby acknowledges and agrees that all costs in excess of Landlord's Allowance
(in an amount not to exceed Twenty-five Thousand Dollars ($25,000.00))
("Amortized Amount") will be amortized at an interest rate of eleven percent
(11%) per annum and paid by Tenant as Additional Rent over the Lease Term;
provided, that such excess costs shall be in conformity with Exhibit B and
mutually agreed upon by both Landlord and Tenant. Any costs in excess of the
Amortized Amount shall be paid by Tenant to Landlord within thirty (30) days of
Tenant's receipt of Landlord's invoice therefor. In addition, Landlord hereby
agrees to upgrade the existing sprinkler system in the Building, at Landlord's
sole expense.
Section 2.03. Surrender of the Premises. Upon the expiration or
earlier termination of this Lease, or upon the exercise by Landlord of its right
to re-enter the Leased Premises (as a result of Tenant's default) without
terminating this Lease, Tenant shall immediately surrender the Leased Premises
to Landlord, in broom-clean condition and in good order, condition and repair,
except for ordinary wear and tear and damage which Tenant is not obligated to
repair. Tenant shall also remove its personal property, trade fixtures and any
of Tenant's alterations designated by Landlord; promptly repair any damage
caused by such removal; and restore the Leased Premises to the condition
existing prior to the installation of the items so removed. If Tenant fails to
do so, Landlord may restore the Leased Premises to such condition at Tenant's
expense, and Landlord may cause all of said property to be removed at Tenant's
expense, and Tenant hereby agrees to pay all the costs and expenses thereby
reasonably incurred. All property of Tenant which is not removed within ten (10)
days following Landlord's written demand therefor shall be conclusively deemed
to have been abandoned by Tenant, and Landlord shall be entitled to dispose of
such property without thereby incurring any liability to Tenant. The provisions
of this section shall survive the expiration or other termination of this Lease.
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Section 2.04. Holding Over. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant shall
become a tenant from month to month at 200% of the Monthly Rental Installment in
effect at the end of the Lease Term (plus Additional Rent as provided in Article
3 hereof), and otherwise upon the terms, covenants and conditions herein
specified, so far as applicable. Acceptance by Landlord of rent after such
expiration or earlier termination shall not result in a renewal of this Lease,
and Tenant shall vacate and surrender the Leased Premises to Landlord upon
Tenant being given thirty (30) days prior written notice from Landlord to
vacate.
ARTICLE 3 - RENT
Section 3.01. Base Rent. Tenant shall pay to Landlord as Annual Base
Rent for the Leased Premises the sum specified in the Basic Lease Provisions,
payable in equal consecutive Monthly Rental Installments, in advance, without
deduction or offset, beginning on the Commencement Date and on or before the
first day of each and every calendar month thereafter during the Lease Term. The
Monthly Rental Installment for partial calendar months shall be prorated based
on the number of days during the month this Lease was in effect in relation to
the total number of days in such month.
Section 3.02. Additional Rent. In addition to the Annual Base Rent
specified in this Lease, Tenant agrees to pay to Landlord for each calendar year
during the Lease Term, as "Additional Rent," Tenant's Proportionate Share (as
described in the Basic Lease Provisions) of all costs, charges and expenses
incurred by Landlord during the Lease Term for Real Estate Taxes and Operating
Expenses for the Building and appurtenant common areas (collectively "Common
Area Charges").
"Operating Expenses" shall mean all of Landlord's expenses for
operation, repair, replacement and maintenance as necessary to keep the Building
and appurtenant common areas in good order, condition and repair (including all
additional direct costs and expenses of operation and maintenance of the
Building which Landlord reasonably determines it would have paid or incurred
during such year if the Building had been fully occupied), including, but not
limited to, service and other charges incurred in the operation and maintenance
of the electrical systems, heating, ventilation and air conditioning systems and
sprinkler and plumbing systems; management fees; utilities; stormwater discharge
fees; license, permit, inspection and other fees; environmental and pollution
testing and consultation fees related thereto; fees and assessments imposed by
any covenants or owners' association; tools and supplies; security services;
insurance premiums; and maintenance and repair of the driveways and parking
areas (including snow removal), exterior lighting facilities, landscaped areas,
walkways, curbs, drainage strips, sewer lines, exterior walls, foundation,
structural frame, roof and gutters.
"Real Estate Taxes" shall include any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any license fee,
commercial rental tax, improvement bond or bonds, levy or tax (other than
inheritance, personal income or estate taxes) imposed upon the Building and
common areas (or against Landlord's business of leasing the Building, provided
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such taxes are in lieu of standard Real Estate Taxes) by any authority having
the direct or indirect power to tax, together with costs and expenses of
contesting the validity or amount of Real Estate Taxes.
Tenant shall pay, prior to delinquency, all taxes assessed against and
levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in the Leased Premises or elsewhere. Tenant shall
cause such trade fixtures, furniture, equipment and all other personal property
to be assessed and billed separately from the Leased Premises.
Section 3.03. Payment of Additional Rent. Landlord shall estimate the
total amount of Additional Rent to be paid by Tenant during each calendar year
of the Lease Term, whereupon commencing on the Commencement Date, Tenant shall
pay to Landlord each month, at the same time the Monthly Rental Installment is
due, an amount equal to one-twelfth (1/12) of the estimated Additional Rent for
such year. Within ninety (90) days after the end of each calendar year, or as
soon afterward as is practicable, Landlord shall submit to Tenant a statement of
the actual amount of such Additional Rent and within thirty (30) days after
receipt of such statement, Tenant shall pay any deficiency between the actual
amount owed and the estimates paid during such calendar year, or in the event of
overpayment, Landlord shall credit the amount of such overpayment toward the
next installments of Base Rent. To the extent that the Lease Term includes any
partial calendar years, the Additional Rent included in this section shall be
prorated based upon the number of days in such calendar year included within the
Lease Term divided by 360. Tenant may, by notice to Landlord within thirty (30)
days after Landlord's notice of the actual amount of Additional Rent, require an
audit of Landlord's books and records relating to Additional Rent for the
preceding calendar year. Landlord shall have the option of either providing
Tenant with an audit prepared by an independent certified public accountant or
allowing Tenant access to Landlord's books and records for purposes of
performing the audit. If the audit indicates Landlord has overstated Additional
Rent by more than five percent (5%), Landlord shall pay the cost of the audit in
an amount not to exceed Five Thousand Dollars ($5,000.00).
Section 3.04. Late Charges. Tenant acknowledges that Landlord may
incur certain additional unanticipated costs and expenses, including
administrative costs and attorneys' fees, if Tenant fails to timely pay any
payment required hereunder. Therefore, as compensation for such additional
expenses, and in addition to the other remedies available to Landlord hereunder,
if any payment of Minimum Rent or any other sum or charge required to be paid by
Tenant to Landlord hereunder shall become overdue for a period of ten (10) days,
a late charge of three percent (3%) of the payment so due shall be paid by
Tenant as additional rent. In addition, if Tenant fails to pay within thirty
(30) days after the same is due and payable any sum or charge required to be
paid by Tenant to Landlord, such unpaid amount shall bear interest from the due
date thereof to the date of payment at the rate of fifteen percent (15%) per
annum.
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ARTICLE 4 - SECURITY DEPOSIT
Tenant, upon execution of this Lease, shall deposit with Landlord the
Security Deposit as specified in the Basic Lease Provisions as security for the
full and faithful performance by Tenant of all of the terms, conditions and
covenants contained in this Lease on the part of Tenant to be performed,
including but not limited to the payment of the rent. In the event of a default
by Tenant of any term, condition or covenant herein contained, Landlord may
apply all or any part of such security deposit to curing all or any part of such
default; and Tenant agrees to promptly, upon demand, deposit such additional sum
with Landlord as may be required to maintain the full amount of the security
deposit. All sums held by Landlord pursuant to this section shall be without
interest. At the end of the Lease Term, provided that there is then no uncured
default, Landlord shall return the security deposit to Tenant.
ARTICLE 5 - USE
Section 5.01. Use of Leased Premises. The Leased Premises are to be
used by Tenant solely as provided in the Basic Lease Provisions, and for no
other purposes without the prior written consent of Landlord.
Section 5.02. Covenants of Tenant Regarding Use. In connection with
its use of the Leased Premises, Tenant agrees to do the following:
(a) Tenant shall (i) use and maintain the Leased Premises and conduct
its business thereon in a safe, careful, reputable and lawful manner, (ii)
comply with all laws, rules, regulations, orders, ordinances, directions and
requirements of any governmental authority or agency, now in force or which may
hereafter be in force, including without limitation those which shall impose
upon Landlord or Tenant any duty with respect to or triggered by a change in the
use or occupation of, or any improvement or alteration to, the Leased Premises,
and (iii) comply with and obey all reasonable directions of the Landlord,
including any Rules and Regulations that may be adopted by Landlord from time to
time.
(b) Tenant shall not (i) use the Leased Premises for any unlawful
purpose or act, (ii) commit or permit any waste or damage to the Leased
Premises, (iii) store any inventory, equipment or any other materials outside
the Leased Premises (except as otherwise provided herein), or (iv) do or permit
anything to be done in or about the Leased Premises or appurtenant common areas
which constitutes a nuisance or which will in any way obstruct or interfere with
the rights of other tenants or occupants of the Building or injure or annoy
them. Landlord acknowledges that Tenant may, from time to time, use the areas
outside of the Leased Premises for temporary staging of equipment, inventory or
other materials and Landlord consents to such use, provided that (i) Tenant
gives Landlord prior written notice thereof, and (ii) such activities are
conducted in a location mutually agreed upon by Landlord and Tenant and are in
compliance with all other terms of the Lease. Landlord shall not be responsible
to Tenant for the nonperformance by any other tenant or occupant of the Building
of its lease or of any Rules and Regulations.
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(c) Tenant shall not overload the floors of the Leased Premises as to
cause damage to the floor. The designed floor load capacity is 3,000 pounds per
square foot. All damage to the floor structure or foundation of the Building due
to improper positioning or storage of items or materials shall be repaired by
Landlord at the sole expense of Tenant, who shall reimburse Landlord immediately
therefor upon demand.
(d) Tenant shall not use the Leased Premises, or allow the Leased
Premises to be used, for any purpose or in any manner which would, in Landlord's
opinion, invalidate any policy of insurance now or hereafter carried on the
Building or increase the rate of premiums payable on any such insurance policy.
Should Tenant fail to comply with this covenant, Landlord may, at its option,
require Tenant to stop engaging in such activity or to reimburse Landlord as
Additional Rent for any increase in premiums charged during the term of this
Lease on the insurance carried by Landlord on the Leased Premises and
attributable to the use being made of the Leased Premises by Tenant.
(e) Tenant may, at its own expense, erect a sign concerning its
business which shall be in keeping with the decor and other signs on the
Building, provided that such sign is first approved by Landlord in writing,
which approval shall not be unreasonably withheld. Landlord's approval, if
given, may be conditioned upon such reasonable criteria as Landlord deems
appropriate to maintain the area in a neat and attractive manner. Tenant agrees
to maintain any sign in good state of repair, and upon expiration of the Lease
Term, Tenant shall promptly remove the sign and repair any resulting damage to
the Leased Premises or Building.
Section 5.03. Landlord's Rights Regarding Use. In addition to the
rights specified elsewhere in this Lease, Landlord shall have the following
rights regarding the use of the Leased Premises or the appurtenant common areas
by Tenant, its employees, agents, customers and invitees, each of which may be
exercised without notice or liability to Tenant:
(a) Landlord may install such signs, advertisements, notices or tenant
identification information as it shall deem necessary or proper.
(b) Landlord shall have the right at any time to change or otherwise
alter the appurtenant common areas. Landlord may control the appurtenant common
areas in such manner as it deems necessary or proper, provided that the same
shall not materially impair Tenant's rights under the Lease. Landlord agrees to
use commercially reasonable efforts not to interrupt Tenant's business
operations in the exercise of its rights hereunder.
(c) Landlord or Landlord's agent shall be permitted to inspect or
examine the Leased Premises at any reasonable time and upon prior reasonable
notice to Tenant, except in the event of an emergency in which case no notice
shall be required, and Landlord shall have the right to make any repairs to the
Leased Premises which are necessary for its preservation; provided, however,
that any repairs made by Landlord shall be at Tenant's expense, except as
provided in Section 7.01 hereof. If Tenant is not present to open and permit
such entry into the Leased Premises at any time when such entry is necessary or
permitted hereunder, Landlord and its employees and agents may enter the
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Leased Premises by means of a master or pass key or otherwise, provided Landlord
has used reasonable efforts to notify Tenant as required hereunder. Except for
loss or damage caused by its gross negligence or intentional misconduct,
Landlord shall incur no liability to Tenant for such entry, nor shall such entry
constitute an eviction of Tenant or a termination of this Lease, or entitle
Tenant to any abatement of rent therefor. Landlord agrees to use commercially
reasonable efforts not to interrupt or interfere with Tenant's business
operations in the exercise of its rights hereunder.
ARTICLE 6 - UTILITIES AND SERVICES
Tenant shall obtain in its own name and shall pay directly to the
appropriate supplier the cost of all utilities and services serving the Leased
Premises, including but not limited to: natural gas, heat, light, electrical
power, telephone, janitorial service, refuse disposal and other utilities and
services. However, if any services or utilities are jointly metered with other
property, Landlord shall make a reasonable determination of Tenant's
proportionate share of the cost of such utilities and services and Tenant shall
pay such share to Landlord within fifteen (15) days after receipt of Landlord's
written statement. Except for damage or interruption caused by the gross
negligence or intentional misconduct of Landlord, its agents or employees,
Landlord shall not be liable in damages or otherwise for any failure or
interruption of any utility service or other service furnished to the Leased
Premises; and no such failure or interruption shall entitle Tenant to terminate
this Lease or withhold sums due hereunder.
ARTICLE 7 - MAINTENANCE AND REPAIRS
Section 7.01. Landlord's Responsibility. During the term of this
Lease, Landlord shall maintain in good condition and repair the electrical
systems, heating and air conditioning systems, sprinkler and plumbing systems,
roof, exterior walls, foundation and structural frame of the Building and the
parking and landscaped areas, the costs of which shall be included in Operating
Expenses; provided, however, that to the extent any of the foregoing items
require repair because of the negligence, misuse, or default of Tenant, its
employees, agents, customers or invitees, Landlord shall make such repairs at
Tenant's expense.
Section 7.02. Alterations. Tenant shall not permit structural or
non-structural alterations or additions in or to the Leased Premises unless and
until the plans have been approved by Landlord in writing, which approval shall
not be unreasonably withheld. As a condition of such approval, Landlord may
require Tenant to remove the alterations and restore the Leased Premises upon
termination of this Lease; otherwise, all such alterations or improvements,
except movable office furniture and equipment and trade fixtures, shall at
Landlord's option become a part of the realty and the property of Landlord, and
shall not be removed by Tenant. If Landlord consents to Tenant's performance of
alterations or additions to the Leased Premises, Tenant shall ensure that all
alterations and improvements which are made or necessitated thereby shall be
made in accordance with all applicable laws, regulations and building codes, in
a good and workmanlike manner and in quality equal to or better than the
original construction of the
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Building. Landlord's approval of the plans, specifications and working drawings
for Tenant's alterations shall create no responsibility or liability on the part
of Landlord for their completeness, design sufficiency, or compliance with all
laws, rules and regulations of governmental agencies or authorities. Tenant
shall indemnify and save harmless Landlord from all costs, loss or expense in
connection with any construction or installation. No person shall be entitled to
any lien directly or indirectly derived through or under Tenant or through or by
virtue of any act or omission of Tenant upon the Leased Premises for any
improvements or fixtures made thereon or installed therein or for or on account
of any labor or material furnished to the Leased Premises or for or on account
of any matter or thing whatsoever; and nothing in this Lease contained shall be
construed to constitute a consent by Landlord to the creation of any lien. If
any lien is filed against the Leased Premises for work claimed to have been done
for, or material claimed to have been furnished to, Tenant, Tenant shall cause
such lien to be discharged of record within thirty (30) days after filing by
bonding or in any other lawful manner. Tenant shall indemnify and save harmless
Landlord from all costs, losses, expenses, and attorneys' fees in connection
with any such lien.
ARTICLE 8 - CASUALTY
Section 8.01. Casualty. In the event of total or partial destruction
of the Building or the Leased Premises by fire or other casualty, Landlord
agrees to promptly restore and repair the Building and the Leased Premises;
provided, however, that Landlord's obligation as to the interior finishing of
the Leased Premises shall be consistent with and limited in amount to Landlord's
Allowance regarding the tenant finish improvements as were originally required
to be made by Landlord, if any. Any insurance proceeds not used by Landlord in
restoring or repairing the Leased Premises shall be the sole property of
Landlord. Rent shall proportionately xxxxx during the time that the Leased
Premises or part thereof are unusable because of any such damage thereto.
Notwithstanding the foregoing, if the Leased Premises are (i) so destroyed that
they cannot be repaired or rebuilt within one hundred eighty (180) days from the
date on which the insurance claim is adjusted or one (1) year from the date of
the incident causing damage, whichever is earlier; or (ii) destroyed by a
casualty which is not covered by the insurance required hereunder or, if
covered, such insurance proceeds are not released by any mortgagee entitled
thereto or are insufficient to rebuild the Building and the Leased Premises;
then, in case of a clause (i) casualty, either Landlord or Tenant may, or, in
the case of a clause (ii) casualty, then Landlord may, upon thirty (30) days
written notice to the other party, terminate and cancel this Lease; and all
further obligations hereunder shall thereupon cease and terminate.
Section 8.02. Fire and Extended Coverage Insurance. During the term of
this Lease, Landlord shall maintain fire and extended coverage insurance on the
Building, but shall not protect Tenant's property on the Leased Premises; and,
notwithstanding the provisions of Section 9.01, Landlord shall not be liable for
any damage to Tenant's property, regardless of cause, including the negligence
of Landlord and its employees, agents, and invitees. Tenant hereby expressly
waives any right of recovery against Landlord (or any other tenant of the
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Building) for damage to any property of Tenant located in or about the Leased
Premises, however caused, including the negligence of Landlord and its
employees, agents, and invitees; and, notwithstanding the provisions of Section
9.01 below, Landlord hereby expressly waives any rights of recovery against
Tenant for damage to the Leased Premises or the Building which is insured
against under Landlord's fire and extended coverage insurance. All insurance
policies maintained by Landlord or Tenant as provided in this Lease shall
contain an agreement by the insurer waiving the insurer's right of subrogation
against the other party to this Lease and agreeing not to acquire any rights of
recovery which the insured has expressly waived prior to loss.
ARTICLE 9 - LIABILITY INSURANCE
Section 9.01. Tenant's Responsibility. Landlord shall not be liable to
Tenant or to any other person for (i) damage to property or injury or death to
persons due to the condition of the Leased Premises, the Building or the
appurtenant common areas, or (ii) the occurrence of any accident in or about the
Leased Premises or the appurtenant common areas, or (iii) any act or neglect of
Tenant or any other tenant or occupant of the Building or of any other person,
unless such damage, injury or death is directly and solely the result of
Landlord's negligence; and Tenant hereby releases Landlord from any and all
liability for the same. Tenant shall be liable for, and shall indemnify and
defend Landlord and hold it harmless from, any and all liability for (i) any act
or neglect of Tenant and any person coming on the Leased Premises or appurtenant
common areas by the license of Tenant, express or implied, (ii) any damage to
the Leased Premises, and (iii) any loss of or damage or injury to any person
(including death resulting therefrom) or property occurring in, on or about the
Leased Premises, regardless of cause, except for any loss or damage from fire or
casualty insured as provided in Section 8.02 and except for that caused solely
and directly by Landlord's negligence. Notwithstanding the foregoing, Tenant
shall bear the risk of any loss or damage to its property as provided in Section
8.02.
Section 9.02. Tenant's Insurance. Tenant, in order to insure against
the liabilities specified in this Lease, shall at all times during the term of
this Lease carry, at its own expense, one or more policies of general public
liability and property damage insurance, issued by one or more insurance
companies acceptable to Landlord, with the following minimum coverages:
A. Worker's Compensation: minimum statutory amount.
B. Comprehensive General Liability Insurance, including blanket,
contractual liability, broad form property damage, personal injury,
completed operations, products liability, and fire damage: Not less
than $1,000,000 Combined Single Limit for both bodily injury and
property damage.
C. Fire and Extended Coverage, Vandalism and Malicious Mischief, and
Sprinkler Leakage insurance, if applicable, for the full cost of
replacement of Tenant's property.
D. Business interruption insurance.
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The insurance policy or policies shall protect Tenant and Landlord as their
interests may appear, naming Landlord and Landlord's managing agent and
mortgagee as additional insureds, and shall provide that they may not be
cancelled on less than thirty (30) days prior written notice to Landlord. Tenant
shall furnish Landlord with Certificates of Insurance evidencing all required
coverage. Should Tenant fail to carry such insurance and furnish Landlord with
such Certificates of Insurance after a request to do so, Landlord shall have the
right to obtain such insurance and collect the cost thereof from Tenant as
additional rent.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or appurtenant common
areas shall be acquired by the exercise of eminent domain, Landlord may
terminate this Lease by giving written notice to Tenant within fifteen (15) days
after possession thereof is so taken. If all or any part of the Leased Premises
shall be acquired by the exercise of eminent domain in such a manner that the
Leased Premises shall become unusable by Tenant for the purpose for which it is
then being used, Tenant may terminate this Lease by giving written notice to
Landlord within fifteen (15) days after possession of the Leased Premises or
part thereof is so taken. Tenant shall have no claim against Landlord on account
of any such acquisition for the value of any unexpired lease term remaining
after possession of the Leased Premises is taken. All damages awarded shall
belong to and be the sole property of Landlord; provided, however, that Tenant
shall be entitled to any award expressly made to Tenant by any governmental
authority for the cost of or the removal of Tenant's property, including without
limitation its stock, equipment and fixtures and other moving expenses.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or sublet the Leased Premises in
whole or in part without Landlord's prior written consent, which consent shall
not be unreasonably withheld. In the event of any assignment or subletting,
Tenant shall remain primarily liable to perform all of the covenants and
conditions contained in this Lease, including but not limited to payment of Base
Rent and Additional Rent as provided herein. The acceptance of rent from any
other person shall not be deemed to be a waiver of any of the provisions of this
Lease or to be a consent to the assignment of this Lease or the subletting of
the Leased Premises.
Without in any way limiting Landlord's right to refuse to consent to
any assignment or subletting of this Lease, Landlord reserves the right to
refuse to give such consent if in Landlord's discretion and opinion (i) the use
of the Leased Premises is or may be in any way adversely affected; (ii) the
business reputation of the proposed assignee or subtenant is deemed
unacceptable; or (iii) the financial worth of the proposed assignee or subtenant
is insufficient to meet the obligations hereunder or is less than that of
Tenant. Landlord further expressly reserves the right to refuse to give its
consent to any subletting if (i) the proposed rent is to be less than the then
current rent for similar premises in the Building, or (ii) the proposed rent is
to be less than the current rent
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payable by Tenant under the Lease. Tenant agrees to reimburse Landlord for
reasonable accounting and attorneys' fees incurred in conjunction with the
processing and documentation of any such requested transfer, assignment,
subletting or any other hypothecation of this Lease or Tenant's interest in and
to the Leased Premises.
ARTICLE 12 - TRANSFERS BY LANDLORD
Section 12.01. Sale and Conveyance of the Building. Landlord shall
have the right to sell and convey the Building at any time during the term of
this Lease, subject only to the rights of Tenant hereunder; and such sale and
conveyance shall operate to release Landlord from liability hereunder after the
date of such conveyance.
Section 12.02. Subordination and Estoppel Certificate. Landlord shall
have the right to subordinate this Lease to any mortgage presently existing or
hereafter placed upon the Building by so declaring in such mortgage; and the
recording of any such mortgage shall make it prior and superior to this Lease
regardless of the date of execution or recording of either document. Within ten
(10) days following receipt of a written request from Landlord, Tenant shall
execute and deliver to Landlord, without cost:
(a) any instrument which Landlord may deem necessary or desirable to
confirm the subordination of this Lease. If Tenant fails or refuses to do so,
Landlord may execute such instrument in the name and as the act of Tenant.
(b) an estoppel certificate in such form as Landlord may reasonably
request certifying (i) that this Lease is in full force and effect and
unmodified (or, if modified, stating the nature of such modification), (ii) the
date to which rent has been paid, (iii) that there are not, to Tenant's
knowledge, any uncured defaults (or specifying such defaults if any are
claimed), and (iv) any other matters or state of facts reasonably required
respecting the Lease or Tenant's occupancy of the Leased Premises. Such estoppel
may be relied upon by Landlord and by any purchaser or mortgagee of all or any
part of the Building. Tenant's failure to deliver such statement within such
period shall be conclusive upon Tenant that this Lease is in full force and
effect and unmodified and that there are no uncured defaults in Landlord's
performance hereunder.
(c) Notwithstanding the foregoing, if the mortgagee shall take title
to the Leased Premises through foreclosure or deed in lieu of foreclosure,
Tenant shall be allowed to continue in possession of the Leased Premises as
provided for in this Lease so long as Tenant shall not be in default. Tenant
shall, in the event any proceedings are brought to foreclose any such mortgage,
attorn to the purchaser upon any such foreclosure and recognize such purchaser
as the landlord under this Lease.
Section 12.03. Lender's Rights. Landlord shall have the right, at any
time and from time to time, to notify Tenant in writing that Landlord has placed
a mortgage on the Building, specifying the identity of the Lender ("Lender").
Following receipt of such notice, Tenant agrees to give such Lender a copy of
any notice of default served by Tenant on Landlord. Tenant further agrees that
if Landlord fails to cure any default as
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provided in Section 13.03 herein, Lender shall have an additional thirty (30)
days within which to cure such default; provided, however, that if the term,
condition, covenant or obligation to be performed by Landlord is of such nature
that the same cannot reasonably be performed within such thirty-day period, such
default shall be deemed to have been cured if Lender commences such performance
within said thirty-day period and thereafter diligently completes the same.
ARTICLE 13 - DEFAULT AND REMEDY
Section 13.01. Default. The occurrence of any of the following shall
be deemed an "Event of Default":
(a) Tenant shall fail to pay any Monthly Rental Installment or
Additional Rent within five (5) days after the same shall be due and payable, or
Tenant shall fail to pay any other amounts due Landlord from Tenant within ten
(10) days after the same shall be due and payable.
(b) Tenant shall fail to perform or observe any term, condition,
covenant or obligation as required under this Lease for a period of ten (10)
days after notice thereof from Landlord; provided, however, that if the nature
of Tenant's default is such that more than ten days are reasonably required to
cure, then such default shall be deemed to have been cured if Tenant commences
such performance within said ten-day period and thereafter diligently completes
the required action within a reasonable time.
(c) Tenant shall vacate or abandon the Leased Premises for any
period, or fail to occupy the Leased Premises or any substantial portion thereof
for a period of thirty (30) days.
(d) All or substantially all of Tenant's assets in the Leased Premises
or Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency, or for reorganization or arrangement is
filed by or against Tenant (and Tenant fails to secure a stay or discharge
thereof within sixty (60) days thereafter); Tenant shall be insolvent and unable
to pay its debts as they become due; Tenant makes a general assignment for the
benefit of creditors; Tenant takes the benefit of any insolvency action or law;
the appointment of a receiver or trustee in bankruptcy for Tenant or its assets
if such receivership has not been vacated or set aside within thirty (30) days
thereafter; dissolution or other termination of Tenant's corporate charter if
Tenant is a corporation.
Section 13.02. Remedies. Except as otherwise provided by law regarding
Tenant's rights and Landlord's obligations upon default, upon the occurrence of
any Event of Default, Landlord shall have the following rights and remedies, in
addition to those allowed by law, any one or more of which may be exercised
without further notice to or demand upon Tenant:
(a) Landlord may apply the security deposit or re-enter the Leased
Premises and cure any default of Tenant, and Tenant shall reimburse Landlord as
additional rent for any costs and expenses which Landlord thereby incurs; and
Landlord shall not be liable to Tenant for any loss or damage which Tenant may
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sustain by reason of Landlord's action, except for loss or damage caused by
Landlord's gross negligence or intentional misconduct.
(b) Landlord may terminate this Lease or, without terminating this
Lease, terminate Tenant's right to possession of the Leased Premises as of the
date of such default, and thereafter (i) neither Tenant nor any person claiming
under or through Tenant shall be entitled to possession of the Leased Premises,
and Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Upon the
termination of this Lease, Landlord may declare the present value (as determined
by Landlord) of all rent which would have been due under this Lease for the
balance of the Lease Term to be immediately due and payable, whereupon Tenant
shall be obligated to pay the same to Landlord, together with all loss or damage
which Landlord may sustain by reason of Tenant's default ("Default Damages"),
which shall include without limitation expenses of preparing the Leased Premises
for re-letting, demolition, repairs, tenant finish improvements, and brokers'
and attorneys' fees, it being expressly understood and agreed that the
liabilities and remedies specified in this subsection (b) shall survive the
termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Tenant
shall be immediately obligated to pay to Landlord as liquidated damages the
difference between the rent provided for herein and that provided for in any
lease covering a subsequent re-letting of the Leased Premises, for the period
which would otherwise have constituted the balance of the Lease Term, together
with all of Landlord's Default Damages.
(d) Landlord may xxx for injunctive relief or to recover damages for
any loss resulting from the breach.
(e) In addition to the defaults and remedies described above, the
parties hereto agree that if Tenant defaults in the performance of any (but not
necessarily the same) term or condition of this Lease three (3) or more times
during any twelve (12) month period, regardless of whether such defaults are
ultimately cured, then such conduct shall, at Landlord's option, represent a
separate Event of Default. Tenant acknowledges that (i) Landlord will incur
additional unanticipated costs as a result of such repetitive defaults,
including but not limited to administrative costs and legal fees, and (ii) the
purpose of this provision is to adequately compensate Landlord for those costs,
which would be difficult to determine with certainty. Therefore, Tenant agrees
to pay to Landlord upon a default under this habitual default provision the
amount of One Thousand Dollars ($1,000.00) as liquidated damages to cure such
default, payable within ten (10) days after written demand therefor to Tenant by
Landlord.
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Section 13.03. Landlord's Default and Tenant's Remedies. Landlord
shall be in default if it shall fail to perform or observe any term, condition,
covenant or obligation as required under this Lease for a period of thirty (30)
days after written notice thereof from Tenant to Landlord and to Lender, if any;
provided, however, that if the term, condition, covenant or obligation to be
performed by Landlord is of such nature that the same cannot reasonably be
performed within such thirty-day period, such default shall be deemed to have
been cured if Landlord commences such performance within said thirty-day period
and thereafter diligently undertakes to complete the same. Upon the occurrence
of any such default, Tenant may xxx for injunctive relief or to recover damages
for any loss resulting from the breach, but Tenant shall not be entitled to
terminate this Lease (unless otherwise ordered by a court of competent
jurisdiction) or withhold, offset or xxxxx any rent due hereunder.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall
fail to perform or observe any term, condition, covenant or obligation required
to be performed or observed by it under this Lease and if Tenant shall, as a
consequence thereof, recover a money judgment against Landlord (whether
compensatory or punitive in nature), Tenant agrees that it shall look solely to
Landlord's right, title and interest in and to the Building for the collection
of such judgment; and Tenant further agrees that no other assets of Landlord
shall be subject to levy, execution or other process for the satisfaction of
Tenant's judgment and that Landlord shall not be personally liable for any
deficiency.
The references to "Landlord" in this Lease shall be limited to mean
and include only the owner or owners, at the time, of the fee simple interest in
the Building. In the event of a sale or transfer of such interest (except a
mortgage or other transfer as security for a debt), the "Landlord" named herein,
or, in the case of a subsequent transfer, the transferor, shall, after the date
of such transfer, be automatically released from all liability for the
performance or observance of any term, condition, covenant or obligation
required to be performed or observed by Landlord hereunder; and the transferee
shall be deemed to have assumed all of such terms, conditions, covenants and
obligations.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay
in exercising any of its rights or remedies or other provisions of this Lease
shall be construed to be a waiver thereof or affect its right thereafter to
exercise or enforce each and every such right or remedy or other provision. No
waiver of any default shall be deemed to be a waiver of any other default.
Landlord's receipt of less than the full rent due shall not be construed to be
other than a payment on account of rent then due, nor shall any statement on
Tenant's check or any letter accompanying Tenant's check be deemed an accord and
satisfaction, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of the rent due or to pursue any other
remedies provided in this Lease. No act or omission by Landlord or its employees
or agents during the term of this Lease shall be deemed an acceptance of a
surrender of the Leased Premises, and no agreement to accept such a surrender
shall be valid unless in writing and signed by Landlord.
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Section 13.06. Attorneys' Fees. If either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the non-defaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party for the attorneys' fees incurred thereby.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
Intentionally Omitted.
ARTICLE 15 - NOTICE AND PLACE OF PAYMENT
Section 15.01. Notices. Any notice required or permitted to be given
under this Lease or by law shall be deemed to have been given if it is written
and delivered in person or by overnight courier or mailed by certified mail,
postage prepaid, to (i) the party who is to receive such notice at the address
specified in the Basic Lease Provisions and (ii) in the case of a default notice
from Tenant to Landlord, any Lender designated by Landlord. When so mailed, the
notice shall be deemed to have been given as of the date it was mailed. Either
party may change its address by giving written notice thereof to the other
party.
Section 15.02. Place of Payment. All payments required to be made by
Tenant to Landlord shall be delivered or mailed to Landlord's management agent
at the address specified in the Basic Lease Provisions or any other address
Landlord may specify from time to time by written notice to Tenant.
ARTICLE 16 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.
Section 16.01. Definitions.
a. "Environmental Laws" - All federal, state and municipal laws,
ordinances, rules and regulations applicable to the environmental and ecological
condition of the Leased Premises, including, without limitation, the Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended; the Federal Resource Conservation and Recovery Act; the Federal Toxic
Substance Control Act; the Clean Air Act; the Clean Water Act; the rules and
regulations of the Federal Environmental Protection Agency, or any other
federal, state or municipal agency or governmental board or entity having
jurisdiction over the Leased Premises.
b. "Hazardous Substances" - Includes:
(i) Those substances included within the definitions of "hazardous
substances," "hazardous materials," "toxic substances" "solid waste" or
"infectious waste" in any of the Environmental Laws; and
(ii) Such other substances, materials and wastes which are or
become regulated under applicable local, state or federal law, or which are
classified as hazardous, toxic or infectious under present or future
Environmental Laws or other federal, state, or local laws or regulations.
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Section 16.02. Compliance. Tenant, at its sole cost and expense, shall
promptly comply with the Environmental Laws which shall impose any duty upon
Tenant with respect to the use, occupancy, maintenance or alteration of the
Leased Premises. Tenant shall promptly comply with any notice from any source
issued pursuant to the Environmental Laws or with any notice from any insurance
company pertaining to Tenant's use, occupancy, maintenance or alteration of the
Leased Premises, whether such notice shall be served upon Landlord or Tenant.
Section 16.03. Restrictions on Tenant. Tenant shall not cause or
permit to occur:
a. Any violation of the Environmental Laws related to environmental
conditions on, under, or about the Leased Premises, or arising from Tenant's use
or occupancy of the Leased Premises, including, but not limited to, soil and
ground water conditions.
b. The use, generation, release, manufacture, refining, production,
processing, storage or disposal of any Hazardous Substances on, under, or about
the Leased Premises, or the transportation to or from the Leased Premises of any
Hazardous Substances, except as necessary and appropriate for general office use
in which case the use, storage or disposal of such Hazardous Substances shall be
performed in compliance with the Environmental Laws and the highest standards
prevailing in the industry. Landlord understands that Tenant may stock at the
Leased Premises, materials falling within the definition of Hazardous
Substances, including but not limited to paint, oil, grease, sealants, friction
modifiers, calcium chloride, lubricants, adhesives, cleansers, nitrogen and
other materials commonly used in connection with servicing and maintenance of
construction equipment. Tenant understands and agrees to use, store and dispose
of such materials only in accordance with applicable law. Landlord consents to
the stocking of such materials, provided same is in accordance with applicable
law and the provisions of this Lease.
Section 16.04. Notices, Affidavits, Etc.
a. Tenant shall immediately notify Landlord of (i) any violation by
Tenant, its employees, agents, representatives, customers, invitees or
contractors of the Environmental Laws on, under or about the Leased Premises, or
(ii) the presence or suspected presence of any Hazardous Substances on, under or
about the Leased Premises and shall immediately deliver to Landlord any notice
received by Tenant relating to (i) and (ii) above from any source.
b. Tenant shall execute affidavits, representations and the like from
time to time, within five (5) days of Landlord's request therefor, concerning
Tenant's best knowledge and belief regarding the presence of any Hazardous
Substances on, under or about the Leased Premises.
Section 16.05. Landlord's Rights.
a. Landlord and its agent shall have the right, but not the duty, upon
advance notice (except in the case of emergency when no notice shall be
required) to inspect the Leased Premises and conduct tests thereon at any time
to determine whether or the extent to which there has been a violation of
Environmental Laws
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by Tenant or whether there are Hazardous Substances on, under or about the
Leased Premises. In exercising its rights herein, Landlord shall use reasonable
efforts to minimize interference with Tenant's business but such entry shall not
constitute an eviction of Tenant, in whole or in part, and Landlord shall not be
liable for any interference, loss, or damage to Tenant's property or business
caused thereby.
b. If Landlord, any lender or governmental agency shall ever require
testing to ascertain whether there has been a release of Hazardous Substances
on, under or about the Leased Premises or a violation of the Environmental Laws,
and such requirement arose in whole or in part because of an act or omission on
the part of Tenant, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as Additional Rent.
Section 16.06. Tenant's Indemnification. Tenant shall indemnify and
hold harmless Landlord and Landlord's managing agent from any and all claims,
loss, liability, costs, expenses or damage, including reasonable attorneys' fees
and costs of remediation, incurred by Landlord in connection with any breach by
Tenant of its obligations under this Article 16. The covenants and obligations
of Tenant under this Article 16 shall survive the expiration or earlier
termination of this Lease.
Section 16.07. Landlord's Indemnification. Landlord shall indemnify
and hold Tenant harmless from and against any and all claims, loss, liability,
costs, expenses or damage, including reasonable attorneys' fees and costs of
remediation, incurred by Tenant as a result of any Hazardous Substances existing
on or in the Leased Premises or the Building prior to the Commencement Date,
except to extent caused by or exacerbated by Tenant.
ARTICLE 17 - MISCELLANEOUS
Section 17.01. Benefit of Landlord and Tenant. This Lease and all of
the terms and provisions hereof shall inure to the benefit of and be binding
upon Landlord and Tenant and their respective successors and assigns.
Section 17.02. Governing Law. This Lease shall be governed in
accordance with the laws of the State of Minnesota.
Section 17.03. Guaranty. In consideration of Landlord's leasing the
Leased Premises to Tenant, Tenant shall provide Landlord with a Guaranty of
Lease executed by the guarantor(s) described in the Basic Lease Provisions, if
any.
Section 17.04. Force Majeure. Landlord and Tenant (except as to the
payment of rent) shall be excused for the period of any delay in the performance
of any obligation hereunder when such delay is occasioned by causes beyond its
control, including, but not limited to, war, invasion or hostility; work
stoppages, boycotts, slowdowns or strikes; shortages of materials, equipment,
labor or energy; man-made or natural casualties; unusual weather conditions;
acts or omissions of governmental or political bodies; or civil disturbances or
riots.
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Section 17.05. Condition of Premises. Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Leased Premises or the Building or with respect to the
suitability or condition of any part thereof for the conduct of Tenant's
business except as provided in this Lease.
Section 17.06. Examination of Lease. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
Section 17.07. Indemnification for Leasing Commissions. The parties
hereby represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are those named in the Basic Lease
Provisions and that no other broker or person is entitled to any leasing
commission or compensation as a result of the negotiation or execution of this
Lease. Each party shall indemnify and hold the other harmless from any and all
liability for the breach of this representation and warranty on its part and
shall pay any compensation to any other broker or person who may be deemed or
held to be entitled thereto.
Section 17.08. Quiet Enjoyment. If Tenant shall perform all of the
covenants and agreements herein provided to be performed by Tenant, Landlord
covenants that Tenant shall, at all times during the Lease Term, have the quiet
enjoyment and peaceful possession of the Leased Premises without hindrance from
Landlord or any persons lawfully claiming under Landlord, except as may be
provided in Section 12.02 hereunder.
Section 17.09. Severability of Invalid Provisions. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions hereof shall not be affected or impaired, and such remaining
provisions shall remain in full force and effect.
Section 17.10. Financial Statements. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord on an annual basis, within
ninety (90) days following the end of Tenant's fiscal year, a copy of Tenant's
most recent certified and audited financial statements prepared as of the end of
Tenant's most recent fiscal year. Such financial statements shall be prepared in
conformity with generally accepted accounting principles, consistently applied.
Section 17.11. Tenant's Representations and Warranties. The
undersigned represents and warrants to Landlord that (i) Tenant is duly
organized, validly existing and in good standing in accordance with the laws of
the state under which it was organized; (ii) all action necessary to authorize
the execution of this Lease has been taken by Tenant; and (iii) the individual
executing and delivering this Lease on behalf of Tenant has been authorized to
do so, and such execution and delivery shall bind Tenant. Tenant, at Landlord's
request, shall provide Landlord with evidence of such authority.
Section 17.12. Representations and Indemnifications. Any
representations and indemnifications of Landlord contained in the Lease shall
not be binding upon (i) any mortgagee having a
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mortgage presently existing or hereafter placed on the Building, or (ii) a
successor to Landlord which has obtained or is in the process of obtaining fee
title interest to the Building as a result of a foreclosure of any mortgage or a
deed in lieu thereof.
Section 17.13. Early Occupancy. In the event the Leased Premises
become available and are ready for occupancy prior to the Commencement Date,
Landlord may elect to allow Tenant to take possession of the Leased Premises
prior to the Commencement Date for fixturing purposes. Tenant agrees to
coordinate its fixturing work with the work of Landlord such that Tenant's work
does not interfere with or delay Landlord's work; provided, however, that
neither Landlord nor any of Landlord's affiliates shall have any responsibility
or liability whatsoever for any injury (including death) to persons or loss or
damage to any of Tenant's leasehold improvements, fixtures, equipment or any
other materials installed or left in the Leased Premises prior to the
Commencement Date. All of the terms and conditions of this Lease will become
effective upon Tenant taking possession of the Leased Premises except for the
payment of Annual Base Rent and Additional Rent which will commence on the
Commencement Date.
Section 17.14. Option to Extend.
X. Xxxxx and Exercise of Option. Provided that (i) Tenant has not been
in default hereunder at any time during the Term of this Lease (the "Original
Term"), (ii) the creditworthiness of Tenant is then acceptable to Landlord,
(iii) Tenant originally named herein remains in possession of and has been
continuously operating in the entire Leased Premises throughout the Original
Term and (iv) the current use of the Leased Premises is a Permitted Use pursuant
to Section 1.01.K., Tenant shall have two (2) options to extend the Original
Term for additional periods of five (5) years each (the "Extension Terms"). The
Extension Terms shall be upon the same terms and conditions contained in the
Lease for the Original Term except (i) Tenant shall not have any further options
to extend and (ii) the Annual Base Rent shall be adjusted as set forth herein
("Rent Adjustment"). Tenant shall exercise such option by delivering to
Landlord, no later than one hundred twenty (120) days prior to the expiration of
the then current Term, written notice of Tenant's desire to extend the then
current Term. Tenant's failure to properly exercise such option shall waive it.
If Tenant properly exercises its option to extend, Landlord shall notify Tenant
of the Rent Adjustment no later than ninety (90) days prior to the commencement
of the Extension Term. Tenant shall be deemed to have accepted the Rent
Adjustment if it fails to deliver to Landlord a written objection thereto within
ten (10) business days after receipt thereof. If Tenant properly exercises its
option to extend, Landlord and Tenant shall execute an amendment to the Lease
(or, at Landlord's option, a new lease on the form then in use for the Building)
reflecting the terms and conditions of the Extension Term, within thirty (30)
days after Tenant's acceptance of the Rent Adjustment.
B. Market Rent Adjustment. The Annual Base Rent for the Extension Term
shall be an amount equal to the Annual Base Rent then being quoted by Landlord
to prospective new tenants of the Building for space of comparable size and
quality and with
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similar or equivalent improvements as are found in the Building, and if none,
then in similar buildings in the Park, excluding free rent and other
concessions; provided, however, that in no event shall the Annual Base Rent
during the Extension Term be less than the highest Annual Base Rent payable
during the Original Term. The Minimum Monthly Rent shall be an amount equal to
one-twelfth (1/12) of the Annual Base Rent for the Extension Term and shall be
paid at the same time and in the same manner as provided in the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
LANDLORD:
DUKE REALTY MINNESOTA, LLC,
a Minnesota limited liability
company
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Chief Manager
TENANT:
LULL INTERNATIONAL, INC.,
a Delaware corporation
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------
Printed: Xxxxxx X. Xxxxxx
--------------------------
Title: Controller
----------------------------
STATE OF _______________)
) SS:
COUNTY OF ______________)
Before me, a Notary Public in and for said County and State,
personally appeared _________________________, by me known and by me known to be
the ________________________ of Lull International, Inc., a Delaware
corporation, who acknowledged the execution of the above and foregoing Lease
Agreement for and on behalf of said corporation.
WITNESS my hand and Notarial Seal this 19th day of August, 1998.
/s/ Xxx Xxx Verbovanec
---------------------------------
Notary Public
Xxx Xxx Verbovanec
---------------------------------
(Printed Signature)
My Commission Expires: January 31, 2000
------------------
My County of Residence: Washington
-----------------
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