EXHIBIT 10.11
LEASE
This agreement is made and entered into as of December 15, 1992, by and
between David H. Arnold and Muriel M. Arnold, husband and wife, and Daniel M.
Rukavina and Patricia A. Rukavina, husband and wife parties of the first part,
Lessors, and EMD Associates, Inc., a Minnesota corporation, party of the second
part, Lessee;
WITNESSETH:
That the said parties of the first part, in consideration of the rents and
covenants hereinafter mentioned, do hereby demise, lease and let unto the said
party of the second part, and the said party of the second part does hereby hire
and take from the said parties of the first part the premises situated at
Theurer Boulevard and 41st Avenue, Goodview, Minnesota, legally described as
Lots One (1), Two (2), and Three (3), Block Two (2), Goodview Industrial Park.
TO HAVE AND TO HOLD the above rented premises unto the said Lessee, its
successors and assigns, just as they are, without any liability or obligations
on the part of said Lessors of making any alterations, improvements or repairs
of any kind on or about said premises, except as expressly provided herein, for
and during the full term of five (5) years from and after December 15, 1992, and
thereafter from year to year until terminated by either party by sixty (60) days
written notice, for the following purposes, to-wit: Offices and manufacturing or
other similar lawful uses.
And the said Lessee agrees to and with the said Lessors to pay as rent for
the above mentioned premises the sum of Fifty Thousand Three Hundred and no/100
($50,300.00) Dollars per
month during the full term of this lease; subject to adjustment as follows: If,
during any lease year, the Average Prime Rate, as hereinafter defined, exceeds
13%, the rent for such lease year shall be adjusted by an amount equal to the
annual rent provided herein multiplied by a fraction, the numerator of which
shall be the difference between the Average Prime Rate and 11 1/2 , and the
denominator of which shall be 11 1/2. The amount of any such adjustment shall be
determined by Lessors at the end of the lease year, and shall be due and payable
within thirty (30) days after written notice to Lessee, showing the amount and
basis for the adjustment. The Prime Rate shall be the rate of interest
established by Chase Manhattan Bank of New York as its "base" or "prime" rate,
as published from time to time. The Average Prime Rate shall be the weighted
average of the Prime Rates in effect during the lease year, calculated by
multiplying each Prime Rate in effect during the lease year by the number of
days such rate was in effect, then adding all of the products so determined, and
then dividing that sum by the number of days in the lease year.
The Lessee, for itself, its successors and assigns, hereby covenants with
the Lessors, their heirs, executors, administrators, and assigns:
(1) That it will promptly pay all gas, oil, electric, light, sewage, water
rates or charges which may become payable during the continuance of this lease
for gas, oil, electric, light and water used on said premises.
(2) That it will keep all and singular the said building and premises,
including the plumbing and heating plant and all driveways, parking areas and
other appurtenances, in such repair as the same are at the commencement of the
said term or may be put in during the continuance
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thereof, reasonable wear and tear and damage by fire or extended coverage perils
only excepted, and will promptly replace all glass thereof broken during the
said term by other of the same quality and size.
(3) That it will not injure, overload or deface or suffer to be injured,
overloaded or defaced the premises or any part thereof.
(4) That it will save harmless and indemnify the Lessors from and against
all loss, liability or expense that may be incurred by reason of any accident
with the machinery, pipes or from any damage or neglect arising from or in any
way growing out of the misuse or abuse of the city water or from the bursting of
any pipes or from any neglect in not removing snow and ice from the premises; or
from any accident or other occurrence on or about said premises.
(5) That it will not make or suffer any unlawful, improper or offensive
use of the premises or any use or occupancy thereof contrary to any law of the
State or any ordinance of the City now or hereafter made, or which shall be
injurious to any person or property or which shall be liable to endanger or
affect any insurance on the said building or to increase the premium thereof.
(6) That it will not make any alterations or additions in or to the
premises without the written consent of the Lessors; nor suffer any holes to be
made or drilled in the outside stone or brick work; not to suffer any signs to
be placed upon the building except such as the Lessors shall in writing approve.
(7) Lessee shall not assign, underlet or part with the possession of the
whole or any part of the demised premises without first obtaining the written
consent of the Lessors.
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(8) Lessors at all reasonable times may enter to view the premises and to
make repairs which Lessors may see fit to make, or to show the premises to
persons who may wish to buy or lease, and that during three (3) months next
preceding the expiration of the term Lessors will be permitted to place and keep
next to the sidewalk in the front of said premises a notice 24" x 24" that the
premises are for rent or sale.
(9) That at the expiration of said term Lessee will peaceably yield up to
Lessors or those having their estates therein the premises and all erections or
additions made upon the same in good repair in all respects, reasonable use and
wear and damage by fire and other unavoidable casualty excepted, as the same now
are or may be put in by Lessors.
(10) That all property of any kind that may be on the premises during the
continuance of this lease shall be at the sole risk of the Lessee, and that the
Lessors shall not be liable to the Lessee or any other persons for any injury,
loss or damage to property or to any person on the premises; and neither Lessee
nor Lessors will make any claim against the other for losses arising by reason
of fire or extended coverage perils for which full recovery has been made from
any other person, corporation, or association.
(11) Lessee covenants and agrees to pay for the costs of procuring and
maintaining and keeping in full force during the term hereof the following
insurance which shall be procured and renewed from time to time by Lessee at
Lessee's cost and expense:
(a) Insurance upon all of the buildings and improvements located
on the demised premises against loss thereof, or damage
thereto, by fire and the risks included in what is commonly
known as an "all risk policy", for the replacement cost from
time to time of said buildings and improvements; and
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any loss insured against shall be payable to Lessors and
Lessee as their respective interests may appear.
(b) Comprehensive general liability insurance insuring Lessors and
Lessee against liability for injury to and destruction of
property and for injury to or loss of life of persons, with a
combined single limit of at least One Million Dollars per
accident or occurrence.
(c) The policies or certificates evidencing the aforesaid
insurance shall be delivered to the Lessors and in turn may be
delivered by the Lessors to their mortgagee.
(d) All policies shall provide that the same shall not be
cancelled or altered except on ten (10) days' prior written
notice to Lessors and to the mortgagee.
(12) Lessee covenants and agrees that it will not use or permit any person
to use said demised premises or any part thereof for any use or purpose in
violation of the laws of the United States of America, the State of Minnesota or
ordinances or other regulations of any municipality in which said premises are
situated, or of any other lawful authorities, or use or permit, or suffer any
person or use of said premises or any buildings thereof for the manufacture or
sale of intoxicating liquor of any kind, character or description whatsoever;
that during said term it will keep said demised premises and every part thereof
and all buildings at any time situated thereon in a clean and wholesome
condition, and generally that it will in all respects and at all times fully
comply with all lawful health, police and fire regulations, and also that it
will keep the improvements at any time situated on the demised premises and all
sidewalks and areas adjacent thereto, as well as the area thereof, safe, secure
and comfortable to the lawful and valid requirements of any municipality in
which said premises may be situated, and of all other public authorities.
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(13) That no assent, express or implied by the Lessors, to any breach of
any of the Lessee's covenants shall be deemed to be a waiver of any succeeding
breach of the same covenant.
Provided always that these presents are upon this condition that if the
Lessee or its representatives, successors or assigns, shall neglect or fail to
perform and observe any covenant herein contained which on the Lessee's part is
to be performed, or if their leasehold estate shall be taken in execution, or if
the Lessee shall be declared bankrupt or insolvent according to law or shall
make assignment for the benefit of their creditors, then and in any case the
Lessors or those having the estate of the Lessors in the premises, lawfully may
immediately or at any time thereafter and without notice or demand, enter into
and upon the demised premises or any part thereof and repossess the same as if
of their former estate and expel the Lessee and those claiming under it and
remove Lessee's effects forcibly if necessary without being taken or deemed to
be guilty of any manner of trespass. And thereupon this demise shall absolutely
determine but without prejudice to any remedies which might otherwise be used by
the Lessors for arrears of rent or any breach of the Lessee's covenants herein
contained.
Provided also that in case the demised premises or any part thereof shall
at any time during said term be destroyed or damaged by fire or other
unavoidable casualty so as to be unfit for occupancy and use and so the premises
cannot be rebuilt or restored by the Lessors within one (1) year thereafter,
then and in that case this demise shall terminate, but if the premises can be
rebuilt or restored within one (1) year, and if proceeds of insurance payable
for such casualty are sufficient
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therefor, the Lessors will at their own expense and with due diligence so
rebuild or restore the premises and Lessee shall continue to pay the rents
hereunder without abatement.
Provided also that in case the whole or any part of the premises hereby
demised shall be taken by the City or State or other public authority for any
use, then this demise shall terminate from the time when such possession of the
whole or any part so taken shall be required for such public use and the rents
properly apportioned shall be paid up to that time; and such taking shall not be
deemed a breach of the Lessors' covenant for quiet enjoyment hereinbefore
contained.
(14) Lessee covenants and agrees to pay all taxes due and payable and all
assessments hereafter levied during the term or extension thereof of this lease.
(15) Each party hereto hereby waives all claims for recovery from the
other party for any loss or damage to any of its property insured under valid
and collectible insurance policies to the extent of any recovery collectible
under such insurance, subject to the limitation that this waiver shall apply
only when the fire and extended coverage policies of both parties contain a
clause to the effect this waiver shall not affect said policies or the right of
both parties to recover thereunder. Both parties agree that such insurance
policies will include such clause as long as the same is includable without
extra cost.
This lease shall be subject to and subordinate to the lien of any mortgage
or mortgages or deed or deeds of trust which at any time may be placed upon the
fee title to the premises above described; provided, however, that the rights of
the Lessee, its successors and assigns hereunder shall
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not be cut off or affected by foreclosure of any such mortgage or mortgages or
deed or deeds of trust so long as the Lessee, its successors and assigns, shall
not be in default hereunder.
This lease amends and supersedes a Lease Agreement between the parties
dated July 1, 1988, as previously amended.
IN WITNESS WHEREOF, the parties hereto have executed this agreement,
effective the day and year first above written.
/S/ DAVID H. ARNOLD
David H. Arnold
/S/ MURIEL M. ARNOLD
Muriel M. Arnold
/S/ DANIEL M. RUKAVINA
Daniel M. Rukavina
/S/ PATRICIA A. RUKAVINA
Patricia A. Rukavina
EMD ASSOCIATES, INC.
By /S/ DANIEL M. RUKAVINA
Daniel M. Rukavina, President
By /S/ DAVID H. ARNOLD
David H. Arnold, Secretary
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AMENDMENT TO LEASE
This agreement is made and entered into as of January 1, 1994, by and
between David H. Arnold and Muriel M. Arnold, husband and wife, and Daniel M.
Rukavina and Patricia A. Rukavina, husband and wife, Lessors, and EMD
Associates, Inc., a Minnesota corporation, Lessee.
WHEREAS, the parties hereto entered into a Lease Agreement dated December
15, 1992, whereby Lessors demised and let unto Lessee certain premises situated
at Theurer Boulevard and 41st Avenue, Goodview, Minnesota, legally described as
Lots One (1), Two (2), and Three (3), Block Two (2), Goodview Industrial Park,
upon which was then situated a manufacturing and office building, for a term of
five (5) years from and after December 15, 1992, and thereafter from year to
year until terminated as provided therein, for a net rent of $50,300.00 per
month, subject to adjustment as provided therein; and
WHEREAS, the said Lease remains in effect; and
WHEREAS, at the request and direction of Lessee, Lessors acquired an
adjacent parcel of real estate, legally described in Exhibit A attached hereto,
for improvement and use by Lessee for vehicle parking (the "Parking Area");
NOW THEREFORE, the parties hereto agree as follows:
1. From and after January 1, 1994, the leased premises shall include
the Parking Area.
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2. From and after January 1, 1994, Lessee shall pay to Lessors as rent for
the leased premises the sum of $50,932.00 per month during the full remaining
term of the Lease, subject to adjustment as provided therein.
3. Except as amended herein, the said Lease Agreement shall be and
remain in full fore and effect.
IN WITNESS WHEREOF, the parties hereto have executed this agreement,
effective the day and year first above written.
/S/ DAVID H. ARNOLD
David H. Arnold
/S/ MURIEL M. ARNOLD
Muriel M. Arnold
/S/ DANIEL M. RUKAVINA
Daniel M. Rukavina
/S/ PATRICIA A. RUKAVINA
Patricia A. Rukavina
EMD ASSOCIATES, INC.
By /S/ DAVID FRADIN
David Fradin, President and CEO
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EXHIBIT A
That part of the Southeast Quarter of the Southwest Quarter (SE 1/4 of SW 1/4)
of Section Seventeen (17), Township One Hundred Seven (107) North, of Range
Seven (7), West of the Fifth Principal Meridian, Winona County, Minnesota,
described as follows:
Commencing at the Southeast corner of said SE 1/4 of the SW 1/4, thence on
an assumed bearing of North along the East line of said SE1/4 of the SW1/4, a
distance of 1.20 feet to the Northerly right of way line of the Soo Line
Railroad Company; thence North 61(degree)57'00" West way line distant 134.60
feet Southeasterly of the most Southerly corner of Lot 1, Block 2, record plat
of Goodview Industrial Park, Winona County, Minnesota, and the point of
beginning of the land to be described; thence continue North 61(degree)57'00"
West, along said right of way line, 134.60 feet to said most Southerly corner of
Lot 1; thence North 27(degree)55' East, along the Southeasterly line of said Lot
1, a distance of 240.00 feet to the most Easterly corner of said Lot 1; then
South 61(degree)57'00" East, along the Southwesterly line of Lot 3, said Block
2, a distance of 134.60 feet to the most Southerly corner of said Lot 3; thence
South 27(degree)55' West, 240.00 feet to the point of beginning.
Excepting therefrom and reserving to Lessors the metal storage building situated
thereon, and the right of ingress thereto and egreiss therefrom.
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AMENDMENT TO LEASE
This agreement is made and entered into as of December 15, 1995, by and
between David H. Arnold and Muriel M. Arnold, husband and wife, and Daniel M.
Rukavina and Patricia A. Rukavina, husband and wife, Lessors, and EMD
Associates, Inc., a Minnesota corporation, Lessee.
WHEREAS, the parties hereto entered into a Lease Agreement dated December
15, 1992, whereby Lessors demised and let unto Lessee certain premises situated
at Theurer Boulevard and 41st Avenue, Goodview, Minnesota, legally described as
Lots One (1), Two (2), and Three (3), Block Two (2), Goodview Industrial Park,
upon which was then situated a manufacturing and office building, for a term of
five (5) years from and after December 15, 1992, and thereafter from year to
year until terminated as provided therein, for a net rent of $50,300.00 per
month, subject to adjustment as provided therein; and
WHEREAS, the said Lease was amended by an Amendment to Lease dated as of
January 1, 1994, to include an adjacent parking area, and to increase the rent
for the leased premises to the sum of $50,932.00 per month for the remaining
term of the lease; and
WHEREAS, the said Lease, as so amended, remains in effect; and WHEREAS,
the parties have agreed to extend the said lease as provided herein; NOW
THEREFORE, the parties hereto agree as follows:
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4. The term of the said lease shall be extended for a period of ten (10)
years from and after December 15, 1995, and shall continue until December 15,
2005, and thereafter from year to year until terminated by either party by sixty
(60) days written notice.
5. Except as amended herein, the said Lease Agreement shall be and remain
in full force and effect. /S/ DAVID H. ARNOLD David H. Arnold
/S/ MURIEL M. ARNOLD
Muriel M. Arnold
/S/ DANIEL M. RUKAVINA
Daniel M. Rukavina
/S/ PATRICIA A. RUKAVINA
Patricia A. Rukavina
EMD ASSOCIATES, INC.
By /S/ DAVID FRADIN
David Fradin, President and CEO
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AMENDMENT TO LEASE
This Amendment to Lease (this "Amendment") is made and entered into on
this 30th day of July, 1996, by and between David H. Arnold and Muriel M.
Arnold, husband and wife, and Daniel M. Rukavina and Patricia A. Rukavina,
husband and wife (collectively, "Lessor"), and EMD Associates, Inc., a Minnesota
corporation ("Lessee").
WHEREAS, the Lessor and Lessee entered into a Lease Agreement dated
December 15, 1992 (the "Original Lease"), whereby Lessor demised and let unto
Lessee certain premises situated at Theurer Boulevard and 41st Avenue, Goodview,
Minnesota, legally described as Lots One (1), Two (2) and Three (3), Block Two
(2), Goodview Industrial Park, upon which is situated a manufacturing and office
building, for a term of five (5) years from and after December 15, 1992, and
thereafter from year to year until terminated as provided therein, for a net
rent of $50,300 per month, subject to adjustments as provided therein; and
WHEREAS, the Original Lease was amended by (i) an Amendment to Lease dated
as of January 1, 1994, to include an adjacent parking area within the leased
premises, and to increase the rent for the leased premises to the sum of $50,932
per month for the remaining term of the Lease, and (ii) an Amendment to Lease
dated as of December 15, 1995, to extend the term of the Lease for a period of
ten (10) years from and after December 15, 1995 and continuing until December
15, 2005, and thereafter from year to year until terminated by either party by
sixty (60) days written notice (the "Original Lease, as so amended, being herein
referred to as the "Lease"); and
WHEREAS, the Lease remains in full force and effect; and
WHEREAS, the parties have agreed to further modify and amend the Lease,
and to provide for a purchase option in favor of Lessee covering the leased
premises covered by the Lease (the "Leased Premises"), as more particularly
described herein;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of all of which is hereby acknowledged and confessed, the parties
hereto hereby agree as follows:
6. The term of the Lease is hereby amended such that the term of the Lease
shall continue for a period of ten (10) years from and after July 30, 1996, and
shall continue until July 31, 2006, and thereafter from year to year until
terminated by either party by providing the other party with written notice of
such party's election to terminate the Lease not less than one hundred eighty
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(180) days prior to the expiration of the term (as the term may be extended year
to year as provided herein).
7. From and after August 1, 1996, the rent for the Leased Premises shall
be the sum of $50,932.00 per month for the remaining term of the Lease. The rent
shall not be subject to adjustment provided in the Lease (and such adjustment
provision is hereby deleted and of no further force and effect).
8. Lessor hereby grants to Lessee an option to purchase the Leased
Premises for a stipulated and agreed upon sum of $4,711,000.00. The term of said
purchase option shall commence on the date hereof and shall expire on July 31,
1999. In the event Lessee desires to exercise its option to purchase the Leased
Premises, Lessee shall notify Lessor in writing of Lessee's exercise of such
purchase option on or before July 31, 1999; otherwise, the purchase option shall
be null and void and of no further force or effect. In the event Lessee timely
exercises its option to purchase the Leased Premises, Lessor and Lessee agree to
cooperate with each other in good faith to close the purchase of the Leased
Premises within thirty (30) days following the date that Lessee notifies Lessor
in writing that Lessee has exercised its purchase option. The purchase option
shall cover the entire Leased Premises, including all improvements, structures
and buildings thereon, all fixtures, located therein or thereon, and all of
Lessor's right, title and interest in and to all easements and other
appurtenances thereto, and the same shall be conveyed by Lessor to Lessee by
warranty deed and bills of sale and assignments, with covenants of general
warranty, free and clear of all liens and encumbrances.
9. In each instance in the Lease where consent or approval is required to
be obtained from a party to the Lease, such consent or approval shall not be
unreasonably withheld, delayed or conditioned.
10. Concurrently with the execution of this agreement, Lessor and Lessee
agree to execute and file of record in the appropriate public records of Winona
County, Minnesota, a Memorandum of Option specifying the leased premises and the
term of the option described in Paragraph 3 above, in the form attached hereto
as EXHIBIT "A"/
11. Except as amended herein, the said Lease shall be and remain in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment,
effective July 30, 1996.
EMD ASSOCIATES, INC. /S/ DAVID H. ARNOLD
David H. Arnold
By:/S/DAVID W. FRADIN /S/ MURIEL M. ARNOLD
Name: DAVID W. FRADIN Muriel M. Arnold
Title: PRESIDENT /S/ DANIEL M. RUKAVINA
Daniel M. Rukavina
/S/ PATRICIA A. RUKAVINA
Patricia A. Rukavina
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