EXHIBIT 10.6
ARTICLE 1.
BASIC LEASE TERMS
1.1 PARTIES. This lease agreement ("Lease") is entered into this 5th
day of October, 1998 by and between Plymouth Partners II, a Minnesota General
Partnership ("Landlord") and Insignia Systems, Inc., a Minnesota Corporation
("Tenant").
1.2 PREMISES. In consideration of the rents, terms, provisions and
covenants of this Lease, Landlord hereby leases, lets and demises to Tenant the
following described premises ("Premises") as illustrated on Exhibit A attached
hereto: approximately 9,762 square feet of warehouse space, approximately 4,543
square feet of production space and 11,881 square feet of office space located
at 5025 Cheshire Lane North, Plymouth, Minnesota ("Building") which consists of
approximately 26,186 square feet, as legally described on Exhibit B attached
hereto. The square footage of the Premises was calculated by a certified and
registered architect in accordance with the ANSI/BOMA standard for measuring
floor area publication dated June 7, 1996. The improvements to the Premises
shall consist of the Tenant Finish Specifications included on the floorplan
attached hereto as Exhibit C and the Schedule of Additional Leasehold
Improvements attached hereto as Exhibit D which shall detail the improvements,
if any, to be installed at the expense of Landlord or Tenant, as set forth on
Exhibit D.
1.3 TERM. Subject to and upon the conditions set forth herein, the term
of this Lease shall commence on April 1, 1999 the "Commencement Date") and shall
terminate (60) months thereafter on March 31, 2004, unless sooner terminated or
extended as hereinafter provided. The term may be renewed for One (1) additional
term of Three (3) years each as provided in Section 1.10 below.
1.4 BASE RENT. Base rent is:
Month Monthly Base Rent
----- -----------------
1 - 60 $17,457.00
1.5 ADDRESSES.
Landlord's Address: Tenant's Address:
HOYT PROPERTIES, INC. INSIGNIA SYSTEMS, INC.
708 South Third Street 5025 Cheshire Lane North
Suite 108 Plymouth, MN 55446
Minneapolis, MN 55415
(612) 338-7787
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Tenant's Address for Notices:
5025 Cheshire Lane North
Plymouth, Minnesota
1.6 PERMITTED USE. General office and warehouse and sign printing
operations.
1.7 SECURITY DEPOSIT. None
1.8 PRO RATA SHARE. 100% subject to adjustment as provided in Section
2.2 hereof.
1.9 EARLY OCCUPANCY. It is agreed and understood that Tenant shall have
Early Occupancy of the Premises on December 15, 1998 for the purpose of facility
set-up as well as operating its business. It is also agreed and understood that
for such early occupancy period (December 15, 1998 through and including March
31, 1999) Tenant shall be under all the terms and conditions of this Lease
including providing proof of insurance coverage and converting gas and
electrical service to Tenant's account except Tenant shall not be required to
pay Base Rent and Operating Expenses. If early occupancy on December 15, 1998
cannot be achieved (except for reasons caused by Lessee and provided the Lease
is executed by Tenant on October 9, 1998) the Commencement Date shall be
extended by the same number of days that it took beyond December 15, 1998.
1.10 OPTION TO RENEW.
a) Provided Tenant has not been in default and has performed
all of its covenants and obligations hereunder, Tenant shall have the
option to extend the Term of this Lease (hereinafter, the "Option") for
one consecutive period of Three (3) years at a monthly Base Rent equal
to the following: $17,457.00 plus an increase based on 75% of the
following CPI factor: CPI factor = the percentage increase in the
United States Consumer Price Index, all items, St. Paul Minneapolis
Area between the time period April 1, 1998 and March 31, 2004. An
example calculation of this is as follows:
Assume the CPI increase for the above stated 5 year period turns out to
be 10%, the Monthly Base Rent increase would equal 7.5% hence, the
Monthly Base Rent for the renewal period would equal $18,766.28. In no
event shall the Monthly Base Rent for the renewal period be less than
$17,457.00.
Such option to renew is also upon the following terms and conditions:
b) Tenant shall exercise said Option only by giving written
notice to Landlord not earlier than April 1, 2003 and not later than
September 30, 2003.
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c) It is understood and agreed that this Option is personal to
Insignia Systems, Inc. is not transferable; in the event of any
assignment or subleasing during the initial term of the Lease of any or
all of the Demised Premises said Option shall be null and void.
ARTICLE 2.
RENT
2.1 BASE RENT. Tenant agrees to pay monthly as base rent during the
term of this Lease the sum of money set forth in Section 1.4 of this Lease,
which amount shall be payable to Landlord at the address shown above. One
monthly installment of rent shall be due and payable on the date of execution of
this Lease by Tenant for the first month's rent and a like monthly installment
shall be due and payable on or before the first day of each calendar month
succeeding the Rent Commencement Date during the term of this Lease; provided,
if the Rent Commencement Date should be a date other than the first day of a
calendar month, the monthly rental set forth above shall be prorated to the end
of that calendar month, and all succeeding installments of rent shall be payable
on or before the first day of each succeeding calendar month during the term of
this Lease. Tenant shall pay, as additional rent, all other sums due under this
Lease. Notwithstanding anything in this Lease to the contrary, if Landlord, for
any reason whatsoever (other than Tenant's default), cannot deliver possession
of the Premises to the Tenant on the Rent Commencement Date, this Lease shall
not be void or voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom, nor shall the expiration of the term be extended,
but all rent shall be abated until Landlord delivers possession. All base rent,
additional rent and other sums payable by Tenant pursuant to this Lease are
payable without demand and without any reduction, abatement, counterclaims or
setoff.
2.2 OPERATING EXPENSES. Tenant shall also pay as additional rent
commencing on the Commencement Date, Tenant's pro rata share of the operating
expenses of Landlord for the Building and/or project of which the Premises are a
part. Landlord may invoice Tenant monthly for Tenant's pro rata share of the
estimated operating expenses for each calendar year, which amount shall be
adjusted from time-to-time by Landlord based upon anticipated operating
expenses. Within ninety (90) days following the close of each calendar year,
Landlord shall provide Tenant an accounting showing in reasonable detail all
computations of additional rent due under this Section. In the event the
accounting shows that the total of the monthly payments made by Tenant exceeds
the amount of additional rent due by Tenant under this Section, the accounting
shall be accompanied by evidence of a credit to Tenant's account. In the event
the accounting shows that the total of the monthly payments made by Tenant is
less than the amount of additional rent due by Tenant under this Section, the
accounting shall be accompanied by an invoice for the additional rent.
Notwithstanding any other provision in this Lease, during the year in which this
Lease terminates, Landlord, prior to the termination date, shall have the option
to invoice Tenant for Tenant's pro rata share of the operating expenses based
upon the previous year's operating expenses. If this Lease shall terminate on a
day other than the last day of a calendar year, the amount of any additional
rent payable by Tenant applicable to the year in which the termination shall
occur shall be prorated on the ratio that the
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number of days from the commencement of the calendar year to and Including such
termination date bears to 365. Tenant agrees to pay any additional rent due
under this Section within ten (10) days following receipt of the invoice or
accounting showing additional rent due. Tenant's pro rata share set forth in
Section 1.8 shall be equal to a percentage based upon a fraction the numerator
of which is the total area of the Premises as set forth in Article 1, subject to
adjustment as provided in this Lease, and the denominator of which shall be the
net rentable area of the Building. Upon termination of the Lease, Landlord and
Tenant agree to reconcile within sixty (60) days any amounts due from either
party for the over payment or underpayment of operating expenses by Tenant.
2.3 DEFINITION OF OPERATING EXPENSES. The term "operating expenses"
includes all expenses incurred by Landlord with respect to the maintenance and
operation of the Building of which the Premises are a part, including, but not
limited to, the following: maintenance, repair and replacement costs;
electricity, fuel, water, sewer, gas and other common Building utility charges;
signage; equipment used for maintenance and operation of the Building; security
charges; security, window washing and janitorial services; trash and snow
removal; landscaping and pest control; management fees, wages and benefits
payable to employees of Landlord whose duties are directly connected with the
operation and maintenance of the Building; all services, supplies, repairs,
replacements or other expenses for maintaining and operating the Building or
project including parking and common areas; improvements made to the Building
which are required under any governmental law or regulation that was not
applicable to the Building at the time it was constructed; installation of any
device or other equipment which improves the operating efficiency of any system
within the Premises and thereby reduces operating expenses; all other expenses
which would generally be regarded as operating, repair, replacement and
maintenance expenses; all real property taxes and installments of special
assessments, including dues and assessments by means of deed restrictions and/or
owners' associations which accrue against the Building during the term of this
Lease and legal fees incurred in connection with actions to reduce the same
except that Tenant shall have the right to approve legal fees associated with
reducing taxes; and all insurance premiums Landlord is required to pay or deems
necessary to pay, including fire and extended coverage, rent loss and public
liability insurance, with respect to the Building. Notwithstanding the
foregoing, operating expenses shall not include the following:
a) The cost of decorating, redecorating, special cleaning, or
other services not provided on a regular basis to all tenants of the
Building.
b) Any costs associated with the initial interior or exterior
landscaping and the purchase, rental or maintenance of sculpture,
paintings, or other objects purporting to be art for the Building and
Common Areas.
c) Landlord's general overhead except to the extent it is
expended in direct connection with the management and operation of the
Building.
d) Wages, salaries, fees, and fringe benefits paid to
administrative or executive personnel or officers or partners of
Landlord.
e) Any charge for depreciation or amortization (except as
specifically noted herein) of the Building or equipment.
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f) All costs relating to activities for the solicitation and
execution of leases for space in the Building.
g) All costs for which Tenant or any other tenant in the
Building is being charged other than pursuant to similar "operating
costs" clauses.
h) Except as provided in section i., the cost of structural
repairs and/or replacements including the cost of correcting defects in
the construction of the Building or other structures which are a part
of the project and the related equipment and any other costs that are
considered to be of a capital nature under generally accepted
accounting principles consistently applied, including, but not limited
to, capital improvements, capital repairs, capital equipment, capital
tools, and other capital items.
i) Any such capital improvements made to reduce operating
expenses may be amortized over the longest useful life of improvement
on a straight line basis. The amount amortized in any year shall be an
amount not to exceed the amount of the net reduction or operating cost
savings resulting in such year from the improvements.
j) Costs of initial cleaning of, and rubbish removal from, the
Building to be performed prior to final completion of construction of
the Building or Common Areas.
k) The cost of any repair made by Landlord because of the
total or partial destruction of the Building or the condemnation of a
portion of the Building.
l) Repairs, alterations, additions, improvements or
replacements made to rectify or correct any defect in the design,
materials or workmanship of the Building or Common Areas.
m) Repairs or replacements covered by warranties or guaranties
to the extent of service or payment thereunder.
n) Any insurance premium to the extent that Landlord is
entitled to be reimbursed for it by Tenant pursuant to Tenant's Lease
or by any tenant of the Building pursuant to a similar lease other than
pursuant to causes comparable to this "operating costs" clause and any
insurance premium increase caused by re-rating of the Building caused
by other tenants' uses.
o) The cost of any items for which Landlord is reimbursed by
insurance or otherwise compensated by a tenant or another party other
than by tenants of the Building pursuant to clauses similar to this
"operating costs" clause.
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p) Any operating cost representing an amount paid to Landlord
or a related corporation, entity or person which is in excess of the
amount which would be paid in the absence of such a relationship.
q) The cost of any work or services performed for or
facilities furnished to any tenant of the Building to a greater extent
or in a manner more favorable to such tenant than performed or
furnished to tenant.
r) Costs, including costs of plans, construction, permit,
license and inspection costs, incurred with respect to the installation
of tenant improvements made for tenants in the Building or incurred in
renovating or otherwise improving, decorating, painting or redecorating
vacant space for tenants or other occupants of the Building.
s) The cost of regular and overtime wages and salaries or any
other expenses to Landlord in curing its defaults or performing work
expressly provided in this Lease to be borne at Landlord's expense.
t) Any costs, fines, or penalties incurred due to violation by
the Landlord of any law or other governmental rule or authority.
u) Damage and repairs necessitated by the negligence or
willful misconduct of Landlord or Landlord's employees, contractors or
agents.
v) Promotional and advertising expense.
w) Attorney's, accountants and other professionals fees and
expenses incurred in connection with: negotiations or disputes with
tenants, other occupants, or prospective tenants or other occupants;
accounting, legal or other professional fees relating to the ownership,
construction, sale or any litigation relating to the Building or the
Project except as specifically provided in this Lease.
x) Finance charges, interest and other payments on any
mortgages and/or other debt encumbering the Building or Common Areas,
or obligation in the nature of a mortgage or other project financing
and rental payments on any ground lease or other underlying lease.
y) Rental payments incurred in leasing air conditioning
systems, elevators or other equipment ordinarily considered to be of a
capital nature, except operating/maintenance equipment not affixed to
the Building or Common Areas which is used in providing janitorial or
similar services.
z) The costs resulting from Landlord's default or from the
default of any other tenant.
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aa) The costs for any activity (including but not limited to
legal fees) associated with the removal, correction or clean up of
toxic or hazardous waste in the Building, Premises or future expansion
areas or the project.
bb) Costs relating to compliance with laws regarding CFC's and
HCFC's.
cc) Any costs associated with modifications made to the
Building in order to comply with the requirements of laws including
without limitation the Americans with Disabilities Act.
dd) Any property management fee (or similar operating
agreement fee) shall be as charged as an operating expense to all other
Building tenants, but in no event shall be in excess of 5% of all Base
Rent and Additional Rent payable by Tenant to Landlord hereunder and
shall include all costs associated with the delivery of such service
including, but not limited to, the property management office and all
other building personnel except certified building engineer(s) and
janitorial services.
ee) Any charge for Landlord's income tax, excess profit tax,
franchise tax, gross receipts, or like tax on Landlord's business or
resulting from Tenant's lease with Landlord.
ff) Except on a temporary basis (not to exceed one (1) month)
in cases of emergency or except for items as to which Tenant shall
specifically agree in advance in writing, the costs of renting or
leasing capital items, the cost of which could not be amortized as an
operating expense under (i) above but such costs may be included in
amortization of capital improvements made to reduce operating expenses
to the extent permitted in section i.
gg) Auditing fees.
hh) The cost of subscriptions, political donations,
professional fees (except as specifically provided in the Lease),
travel costs, automobile allowances, entertainment and all other dues
and donations.
ii) Insurance expense and costs incurred for other than
Building Operations (including without limitation rent insurance,
Directors and Officers insurance and personal general liability
insurance for any employee of Landlord).
jj) Insurance any charges that would result in Landlord
collecting in excess of one hundred percent (100%) of all Operating
Expenses.
kk) No profit or administrative charges shall be included in
Operating Expenses.
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2.4 LATE PAYMENT CHARGE. If the monthly rental payment or any other
payment due from Tenant to Landlord is not received by Landlord on or before the
due date thereof, Landlord shall be entitled to exercise any remedy for
nonpayment provided in this Lease and, in addition, if such payment is not
received on or before five (5) days after the due date, a late payment charge of
five percent (5%) of such past due amount shall become due and payable by Tenant
in addition to such amounts owed under this Lease.
2.5 INCREASE IN INSURANCE PREMIUMS. If an increase in any insurance
premiums paid by Landlord for the Building is caused by Tenant's use of the
Premises or if Tenant vacates the Premises and causes an increase in such
premiums, then Tenant shall pay as additional rent the amount of such increase
to Landlord.
2.6 HOLDING OVER. In the event that Tenant does not vacate the Premises
upon the expiration or termination of this Lease, Tenant shall be a tenant at
will for the holdover period and all of the terms and provisions of this Lease
shall be applicable during that period, except that Tenant shall pay Landlord as
base rental for the period of such holdover an amount equal to one and one half
(1.5) times the base rent which would have been payable by Tenant had the
holdover period been a part of the original term of this Lease, together with
all additional rent as provided in this Lease. Tenant agrees to vacate and
deliver the Premises to Landlord upon Tenant's receipt of notice from Landlord
to vacate. The rental payable during the holdover period shall be payable to
Landlord on demand. No holding over by Tenant, whether with or without the
consent of Landlord, shall operate to extend the term of this Lease.
ARTICLE 3.
OCCUPANCY AND USE
3.1 USE. Tenant warrants and represents to Landlord that the Premises
shall be used and occupied only for the purpose as set forth in Section 1.6.
Tenant shall occupy the Premises, conduct its business and control its agents,
employees, invitees and visitors in such a manner as is lawful, reputable and
will not create a nuisance. Tenant shall not permit any operation which emits
any odor or matter which intrudes into other portions of the Building, use any
apparatus or machine which makes undue noise or causes vibration in any portion
of the Building or otherwise interfere with, annoy or disturb any other lessee
in its normal business operations or Landlord in its management of the Building.
Tenant shall neither permit any waste on the Premises nor allow the Premises to
be used in any way which would in the opinion of Landlord, be extra hazardous on
account of fire or which would in any way increase or render void the fire
insurance on the Building.
3.2 SIGNS. No sign of any type or description shall be erected, placed
or painted in or about the Premises or project except those signs submitted to
Landlord in writing and approved by Landlord in writing, and which signs are in
conformance with Landlord's sign criteria established for the project, attached
hereto as Exhibit E.
3.3 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Tenant, at Tenant's
sole cost and expense, shall comply with all laws, ordinances, orders, rules and
regulations of state, federal, municipal or other agencies or bodies having
jurisdiction over the use, condition or
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occupancy of the Premises. Tenant will comply with the rules and regulations of
the Building adopted by Landlord, including those attached hereto as Exhibit F.
Landlord shall have the right at all times to change and amend the rules and
regulations in any reasonable manner as may be deemed advisable for the safety,
care, cleanliness, preservation of good order and operation or use of the
Building or the Premises. All changes and amendments to the rules and
regulations of the Building will be sent by Landlord to Tenant in writing and
shall thereafter be carried out and observed by Tenant. Landlord agrees to
enforce any such rules and regulations in a non-discriminatory manner.
3.4 WARRANTY OF POSSESSION. Landlord warrants that it has the right and
authority to execute this Lease, and Tenant, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in this
Lease, shall have possession of the Premises during the full term of this Lease
as well as any extension or renewal thereof. Landlord shall not be responsible
for the acts or omissions of any other lessee or third party that may interfere
with Tenant's use and enjoyment of the Premises.
3.5 RIGHT OF ACCESS. Landlord or its authorized agents shall at any and
all reasonable times upon reasonable verbal notice have the right to enter the
Premises to inspect the same, to show the Premises to prospective purchasers or
lessees, and to alter, improve or repair the Premises or any other portion of
the Building, however Landlord agrees to not show the Premises to prospective
Lessee's prior to six (6) nine (9) months before lease expiration unless
otherwise permitted. Landlord shall have the right to use any and all means
which Landlord may deem proper to open any door in an emergency without
liability therefor. Tenant shall permit Landlord to erect, use, maintain and
repair pipes, cables, conduits, plumbing, vents and wires in, to and through the
Premises as often and to the extent that Landlord may now or hereafter deem to
be necessary or appropriate for the proper use, operation and maintenance of the
Building.
3.6 ACCEPTANCE. Upon substantial completion of Landlord's work,
Landlord and Tenant shall schedule a walkthrough inspection of the Premises and
shall mutually agree upon a list of punchlist items. Landlord shall diligently
proceed to complete such punchlist items. Subject to completion of such
punchlist, the commencement by Tenant of any business in the Premises shall
constitute an acknowledgment that the Premises are in the condition called for
in this Lease and that Landlord has performed all of Landlord's work.
ARTICLE 4.
UTILITIES AND SERVICE
4.1 BUILDING SERVICES. Tenant shall pay when due, all charges for
utilities furnished to or for the use or benefit of Tenant or the Premises.
Tenant shall have no claim for rebate of rent on account of any interruption in
service unless caused by Landlord or Landlord's agent negligence or misconduct.
4.2 THEFT OR BURGLARY. Landlord shall not be liable to Tenant for
losses to Tenant's property or personal injury caused by criminal acts or entry
by unauthorized persons into the Premises or the Building.
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ARTICLE 5.
REPAIRS AND MAINTENANCE
5.1 LANDLORD REPAIR. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the Premises
or the Building during the term of this Lease except as are set forth in this
Section. Landlord shall maintain only the roof, foundation, parking and common
areas, the structural soundness of the exterior walls, doors, corridors, and
other structures serving the Premises, provided, that Landlord's cost of
maintaining, replacing and repairing the items set forth in this Section are
operating expenses subject to the additional rent provisions in Section 2.2 and
2.3. Landlord shall not be liable to Tenant, except as expressly provided in
this Lease, for any damage or inconvenience, and Tenant shall not be entitled to
any abatement or reduction of rent (except if caused by Landlord or Landlord's
agent negligence or willful misconduct) by reason of any repairs, alterations or
additions made by Landlord under this Lease.
5.2 TENANT REPAIRS. Tenant shall, at all times throughout the term of
this Lease, including renewals and extensions, and at its sole expense, keep and
maintain the Premises in a clean, safe, sanitary and first class condition and
in compliance with all applicable laws, codes, ordinances, rules and
regulations. Tenant's obligations hereunder shall include, but not be limited
to, the maintenance, repair and replacement, if necessary, of all heating,
ventilation, air conditioning, lighting and plumbing fixtures and equipment,
fixtures, motors and machinery, all interior walls, partitions, doors and
windows, including the regular painting thereof, all exterior entrances,
windows, doors and docks and the replacement of all broken glass. When used in
this provision, the term "repairs" shall include replacements or renewals when
necessary, and all such repairs made by the Tenant shall be equal in quality and
class to the original work. The Tenant shall keep and maintain all portions of
the Premises and the sidewalk and areas adjoining the same in a clean and
orderly condition, free of accumulation of dirt, rubbish, snow and ice. If
Tenant fails, refuses or neglects to maintain or repair the Premises as required
in this Lease after notice shall have been given Tenant, in accordance with this
Lease, Landlord may make such repairs without liability to Tenant for any loss
or damage that may accrue to Tenant's merchandise, fixtures or other property or
to Tenant's business by reason thereof, and upon completion thereof, Tenant
shall pay to Landlord all costs plus ten percent (10%) for overhead incurred by
Landlord in making such repairs upon presentation to Tenant of bill therefor.
5.3 TENANT DAMAGES. Tenant shall not allow any damage to be committed
on any portion of the Premises or Building or common areas, and at the
termination of this Lease, by lapse of time or otherwise, Tenant shall deliver
the Premises to Landlord in as good condition as existed at the Commencement
Date of this Lease, ordinary wear and tear excepted. The cost and expense of any
repairs necessary to restore the condition of the Premises shall be borne by
Tenant.
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ARTICLE 6.
ALTERATIONS AND IMPROVEMENTS
6.1 LANDLORD IMPROVEMENTS. If construction to the Premises is to be
performed by Landlord prior to or during Tenant's occupancy, Landlord will
complete the construction of the improvements to the Premises in accordance with
plans and specifications agreed to by Landlord and Tenant, which plans and
specifications are made a part of this Lease by reference on Exhibits C and D.
Any changes or modifications to the approved plans and specifications shall be
made and accepted by written change order or agreement signed by Landlord and
Tenant and shall constitute an amendment to this Lease. Landlord warrants that
the Premises and any such improvements completed by Landlord shall comply with
all applicable laws, rules and regulations including ADA at the time of
occupancy by Tenant.
6.2 TENANT IMPROVEMENTS. Tenant shall not make or allow to be made any
alterations or physical additions in or to the Premises without first obtaining
the written consent of Landlord, which consent may in the sole and absolute
discretion of Landlord be denied. Any alterations, physical additions or
improvements to the Premises made by Tenant shall at once become the property of
Landlord and shall be surrendered to Landlord upon the termination of this
Lease; provided, however, Landlord, at its option, may require Tenant to remove
any physical additions and/or repair any alterations in order to restore the
Premises to the condition existing at the time Tenant took possession, all costs
of removal and/or alterations to be borne by Tenant. This clause shall not apply
to moveable equipment or furniture owned by Tenant, which may be removed by
Tenant at the end of the term of this Lease if Tenant is not then in default and
if such equipment and furniture are not then subject to any other rights, liens
and interests of Landlord. Tenant shall have the right to make non-structural
alterations to the Premises under $10,000.00 without obtaining Landlord's
written approval. However, Tenant may elect to submit any such plans to Landlord
and request Landlord's approval at that time to not be responsible to remove
such alteration upon Lease Expiration. Tenant shall be permitted to install
security systems and phone systems and remove same at the termination of the
Lease.
ARTICLE 7.
CASUALTY AND INSURANCE
7.1 SUBSTANTIAL DESTRUCTION. If all or a substantial portion of the
Premises or the Building should be totally destroyed by fire or other casualty,
or if the Premises or the Building should be damaged so that rebuilding cannot
reasonably be completed within one hundred eighty (180) working days after the
date of written notification by Tenant to Landlord of the destruction, this
Lease shall terminate at the option of either party by written notice to the
other party within sixty (60) days following the occurrence, and the rent shall
be abated for the unexpired portion of the Lease, effective as of the date of
the written notification.
7.2 PARTIAL DESTRUCTION. If the Premises should be partially damaged by
fire or other casualty, and rebuilding or repairs can reasonably be completed
within one hundred eighty (180) working days from the date of written
notification by Tenant to Landlord of the destruction, this Lease shall not
terminate, and Landlord shall at its sole risk and expense proceed with
reasonable diligence to rebuild or repair the Building or other improvements to
substantially
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the same condition in which they existed prior to the damage. If the Premises
are to be rebuilt or repaired and are untenantable in whole or in part following
the damage, and the damage or destruction was not caused or contributed to by
act or negligence of Tenant, its agents, employees, invitees or those for whom
Tenant is responsible, the rent payable under this Lease during the period for
which the Premises are untenantable shall be adjusted to such an extent as may
be fair and reasonable under the circumstances. In the event that Landlord fails
to complete the necessary repairs or rebuilding within one hundred eighty (180)
working days from the date of written notification by Tenant to Landlord of the
destruction, Tenant may at its option terminate this Lease by delivering written
notice of termination to Landlord, whereupon all rights and obligations under
this Lease shall cease to exist.
7.3 PROPERTY INSURANCE. Landlord shall not be obligated in any way or
manner to insure any personal property (including, but not limited to, any
furniture, machinery, goods or supplies) of Tenant upon or within the Premises,
any fixtures installed or paid for by Tenant upon or within the Premises, or any
improvements which Tenant may construct on the Premises. Tenant shall maintain
property insurance on its personal property and shall also maintain plate glass
insurance. Tenant shall have no right in or claim to the proceeds of any policy
of insurance maintained by Landlord even if the cost of such insurance is borne
by Tenant as set forth in Article 2.
7.4 WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the Premises, the improvements of the Building or personal property
within the Building, by reason of fire or the elements, regardless of cause or
origin, including negligence of Landlord or Tenant and their agents, officers
and employees. Landlord and Tenant agree immediately to give their respective
insurance companies which have issued policies of insurance covering all risk of
direct physical loss, written notice of the terms of the mutual waivers
contained in this Section.
7.5 HOLD HARMLESS. Neither party shall be liable to the other's
employees, agents, invitees, licensees or visitors, or to any other person, for
an injury to person or damage to property on or about the Premises caused by any
act or omission of either party, its agents, servants or employees, or of any
other person entering upon the Premises under express or implied invitation by
either party, or caused by the improvements located on the Premises becoming out
of repair, the failure or cessation of any service provided by Landlord
(including security service and devices), or caused by leakage of gas, oil,
water or steam or by electricity emanating from the Premises. Both parties agree
to indemnify and hold harmless the other party of and from any loss, attorney's
fees, expenses or claims arising out of any such damage or injury.
7.6 PUBLIC LIABILITY INSURANCE. Tenant shall during the term hereof
keep in full force and effect at its expense a policy or policies of public
liability insurance with respect to the Premises and the business of Tenant, on
terms and with companies approved in writing by Landlord, in which both Tenant
and Landlord shall be covered by being named as insured parties under reasonable
limits of liability not less than $1,000,000, or such greater coverage as
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Landlord may reasonably require, combined single limit coverage for injury or
death. Such policy or policies shall provide that thirty (30) days' written
notice must be given to Landlord prior to cancellation thereof. Tenant shall
furnish evidence satisfactory to Landlord at the time this Lease is executed
that such coverage is in full force and effect.
ARTICLE 8.
CONDEMNATION
8.1 SUBSTANTIAL TAKING. If all or a substantial part of the Premises
are taken for any public or quasi-pubic use under any governmental law,
ordinance or regulation, or by right of eminent domain or by purchase in lieu
thereof, and the taking would prevent or materially interfere with the use of
the Premises for the purpose for which it is then being used, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease effective on the date physical possession is taken by the condemning
authority. Tenant shall have no claim to the condemnation award or proceeds in
lieu thereof, except that Tenant shall be entitled to a separate award for the
cost of removing and moving its personal property.
8.2 PARTIAL TAKING. If a portion of the Premises shall be taken for any
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain or by purchase in lieu thereof, and this Lease is
not terminated as provided in Section 8.1 above, the rent payable under this
Lease during the unexpired portion of the term shall be adjusted to such an
extent as may be fair and reasonable under the circumstances. Tenant shall have
no claim to the condemnation award or proceeds in lieu thereof, except that
Tenant shall be entitled to a separate award for the cost of removing and moving
its personal property.
ARTICLE 9.
ASSIGNMENT OR SUBLEASE
9.1 LANDLORD ASSIGNMENT. Landlord shall have the right to sell,
transfer or assign, in whole or in part, its rights and obligations under this
Lease and in the Building. Any such sale, transfer or assignment shall operate
to release Landlord from any and all liabilities under this Lease arising after
the date of such sale, assignment or transfer.
9.2 TENANT ASSIGNMENT. Tenant shall not assign, in whole or in part,
this Lease, or allow it to be assigned, in whole or in part, by operation of law
or otherwise (including without limitation by transfer of a majority interest of
stock, merger, or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or sublet the Premises, in whole or in part, without the prior written
consent of Landlord, which shall not be unreasonably withheld or delayed and in
no event shall say such assignment or sublease ever release Tenant or any
guarantor from any obligation or liability hereunder. Notwithstanding anything
in this Lease to the contrary, in the event of any assignment or sublease, any
option or right of first refusal granted to Tenant shall not be assignable by
Tenant to any assignee or sublessee. No assignee or sublessee of the Premises or
any portion thereof may assign or sublet the Premises or any portion thereof.
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9.3 CONDITIONS OF ASSIGNMENT. If Tenant desires to assign or sublet all
or any part of the Premises, it shall so notify Landlord at least thirty (30)
days in advance of the date on which Tenant desires to make such assignment or
sublease. Tenant shall provide Landlord with a copy of the proposed assignment
or sublease and such information as Landlord might request concerning the
proposed sublessee or assignee to allow Landlord to make informed judgments as
to the financial condition, reputation, operations and general desirability of
the proposed sublessee or assignee. Within fifteen (15) days after Landlord's
receipt of Tenant's proposed assignment or sublease and all required information
concerning the proposed sublessee or assignee, Landlord shall have the following
options: (1) cancel this Lease as to the Premises or portion thereof proposed to
be assign or sublet; (2) consent to the proposed assignment or sublease, and, if
the rent due and payable by any assignee or sublessee under any such permitted
assignment or sublease (or a combination of the rent payable under such
assignment or sublease plus any bonus or any other consideration or any payment
incident thereto) exceeds the rent payable under this Lease for such space,
after recovering all direct and indirect costs associated with such assignment
or Sublease, Tenant shall pay to Landlord 50% of all such excess rent and other
excess consideration within ten (10) days following receipt thereof by Tenant;
or (3) refuse, in its sole and absolute discretion and judgment, to consent to
the proposed assignment or sublease, which refusal shall be deemed to have been
exercised unless Landlord gives Tenant written notice providing otherwise. Upon
the occurrence of an event of default, if all or any part of the Premises are
then assigned or sublet, Landlord, in addition to any other remedies provided by
this Lease or provided by law, may, at its option, collect directly from the
assignee or sublessee all rents becoming due to Tenant by reason of the
assignment or sublease, and Landlord shall have a security interest in all
properties on the Premises to secure payment of such sums. Any collection
directly by Landlord from the assignee or sublessee shall not be construed to
constitute a novation or a release of Tenant or any guarantor from the further
performance of its obligations under this Lease.
9.4 RIGHTS OF MORTGAGE. Tenant accepts this Lease subject and
subordinate to any recorded mortgage presently existing or hereafter created
upon the Building and to all existing recorded restrictions, covenants,
easements and agreements with respect to the Building. Landlord is hereby
irrevocably vested with full power and authority to subordinate Tenant's
interest under this Lease to any first mortgage lien hereafter placed on the
Premises, and Tenant agrees upon demand to execute additional instruments
subordinating this Lease as Landlord may require. If the interests of Landlord
under this Lease shall be transferred by reason of foreclosure or other
proceedings for enforcement of any first mortgage or deed of trust on the
Premises, Tenant shall be bound to the transferee (sometimes called the
"Purchaser") at the option of the Purchaser, under the terms, covenants and
conditions of this Lease for the balance of the term remaining, including any
extensions or renewals, with the same force and effect as if the Purchaser were
Landlord under this Lease, and, if requested by the Purchaser, Tenant agrees to
attorn to the Purchaser, including the first mortgagee under any such mortgage
if it be the Purchaser, as its Landlord. Notwithstanding the foregoing, Tenant
shall not be disturbed in its possession of the Premises so long as Tenant is
not in default hereunder.
9.5 TENANT'S STATEMENTS. Tenant agrees to furnish, from time to time,
within ten (10) days after receipt of a request from Landlord or Landlord's
mortgagee, a statement certifying, if applicable, which may indicate exceptions
thereto the following: Tenant is in
34
possession of the Premises; the Premises are acceptable; the Lease is in full
force and effect; the Lease is unmodified; Tenant claims no present charge,
lien, or claim of offset against rent; the rent is paid for the current month,
but is not prepaid for more than one month and will not be prepaid for more than
one month in advance; there is no existing default by reason of some act or
omission by Landlord; and such other matters as may be reasonably required by
Landlord or Landlord's mortgagee. Tenant's failure to deliver such statement, in
addition to being a default under this Lease, shall be deemed to establish
conclusively that this Lease is in full force and effect except as declared by
Landlord, that Landlord is not in default of any of its obligations under this
Lease, and that Landlord has not received more than one month's rent in advance.
Tenant agrees to furnish, from time to time, however no more frequently than
annually, within ten (10) days after receipt of a request from Landlord, a
current financial statement of Tenant, certified as true and correct by Tenant.
ARTICLE 10.
LIENS
10.1 LANDLORD'S LIEN. As security for payment of rent, damages and all
other payments required to be made by this Lease, Tenant hereby grants to
Landlord a lien upon all property of Tenant now or subsequently located upon the
Premises. If Tenant is in default in the payment of any rentals, damages or
other payments required to be made by this Lease or is in default of any other
provision of this Lease, Landlord may enter upon the Premises, by picking or
changing locks if necessary, and take possession of all or any part of the
personal property, and may sell all or any part of the personal property at a
public or private sale, in one or successive sales, with or without notice, to
the highest bidder for cash, and, on behalf of Tenant, sell and convey all or
part of the personal property to the highest bidder, delivering to the highest
bidder all of Tenant's title and interest in the personal property sold. The
proceeds of the sale of the personal property shall be applied by Landlord
toward the reasonable costs and expenses of the sale, including attorney's fees,
and then toward the payment of all sums then due by Tenant to Landlord under the
terms of this Lease. Any excess remaining shall be paid to Tenant or any other
person entitled thereto by law.
ARTICLE 11.
DEFAULT AND REMEDIES
11.1 DEFAULT BY TENANT. The following shall be deemed to be events of
default ("Default") by Tenant under this Lease: (1) Tenant shall fail to pay
when due any installment of rent or any other payment required pursuant to this
Lease; (2) Tenant shall abandon any substantial portion of the Premises; (3)
Tenant shall fail to comply with any material term, provision or covenant of
this Lease, other than the payment of rent, and the failure is not cured within
ten (10) days after written notice to Tenant unless in the case of a
non-monetary default and such default may not be cured within such period,
Tenant has proceeded with reasonable promptness after written notice from
Landlord and has continued with such effort to cure the default as soon as
practicable; (4) Tenant shall file a petition or if an involuntary petition is
filed against Tenant, or becomes insolvent, under any applicable federal or
35
state bankruptcy or insolvency law or admit that it cannot meet its financial
obligations as they become due; or a receiver or trustee shall be appointed for
all or substantially all of the assets of Tenant; or Tenant shall make a
transfer in fraud of creditors or shall make an assignment for the benefit of
creditors; or (5) Tenant shall do or permit to be done any act which results in
a lien being filed against the Premises or the Building and/or project of which
the Premises are a part, for which Tenant has made no provision to eliminate
such lien through an escrow agreement or bond.
In the event that an order for relief is entered in any case under
Title 11, U.S.C. (the "Bankruptcy Code") in which Tenant is the debtor and: (A)
Tenant as debtor-in-possession, or any trustee who may be appointed in the case
(the "Trustee") seeks to assume the Lease, then Tenant, or Trustee if
applicable, in addition to providing adequate assurance described in applicable
provisions of the Bankruptcy Code, shall provide adequate assurance to Landlord
of Tenant's future performance under the Lease by depositing with Landlord a sum
equal to the lesser of twenty-five percent (25%) of the rental and other charges
due for the balance of the Lease term of six (6) months' rent ("Security"), to
be held (without any allowance for interest thereon) to secure Tenant's
obligations under the Lease, and (B) Tenant, or Trustee if applicable, seeks to
assign the Lease after assumption of the same, then Tenant, in addition to
providing adequate assurance described in applicable provisions of the
Bankruptcy Code, shall provide adequate assurance to Landlord of the proposed
assignee's future performance under the Lease by depositing with Landlord a sum
equal to the Security to be held (without any allowance or interest thereon) to
secure performance under the Lease. Nothing contained herein expresses or
implies, or shall be construed to express or imply, that Landlord is consenting
to assumption and/or assignment of the Lease by Tenant, and Landlord expressly
reserves all of its rights to object to any assumption and/or assignment of the
Lease. Neither Tenant nor any Trustee shall conduct or permit the conduct of any
"fire", "bankruptcy", "going out of business" or auction sale in or from the
Premises.
11.2 REMEDIES FOR TENANT'S DEFAULT. Upon the occurrence of a Default as
defined above Landlord may elect either (i)to cancel and terminate this Lease
and this Lease shall not be treated as an asset of Tenant's bankruptcy estate,
or (ii) to terminate Tenant's right to possession only without canceling and
terminating Tenant's continued liability under this Lease. Notwithstanding the
fact that initially Landlord elects under (ii) to terminate Tenant's right to
possession only, Landlord shall have the continuing right to cancel and
terminate this Lease by giving three (3) days' written notice to Tenant of such
further election, and shall have the right to pursue any remedy at law or in
equity that may be available to Landlord.
In the event of election under (ii) to terminate Tenant's right to
possession only, Landlord may, at Landlord's option, enter into the Premises and
take and hold possession thereof, without such entry into possession terminating
this Lease or releasing Tenant in whole or in part from Tenant's obligation to
pay all amounts hereunder for the full stated term. Upon such reentry, Landlord
may remove all persons and property from the Premises and such property may be
removed and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant, without becoming liable for any loss or damage which may be
occasioned thereby. Such reentry shall be conducted in the following manner:
without resort to judicial process or notice of any kind if Tenant has abandoned
or voluntarily surrendered possession of the Premises; and,
36
otherwise, by resort to judicial process. Upon and after entry into possession
without termination of the Lease, Landlord may, but is not obligated to, relet
the Premises, or any part thereof, to any one other than the Tenant, for such
time and upon such terms as Landlord, in Landlord's sole discretion, shall
determine. Landlord may make alterations and repairs to the Premises to the
extent deemed by Landlord necessary or desirable.
Upon such reentry, Tenant shall be liable to Landlord as follows:
A For all attorneys' fees incurred by Landlord in connection with
exercising any remedy hereunder;
B. For the unpaid installments of base rent, additional rent or other
unpaid sums which were due prior to such reentry, including interest and late
payment fees, which sums shall be payable immediately.
C. For the installments of base rent, additional rent, and other sums
falling due pursuant to the provisions of this Lease for the period after
reentry during which the Premises remain vacant, including late payment charges
and interest, which sums shall be payable as they become due hereunder.
D. For all expenses incurred in releasing the Premises, including
leasing commissions, attorneys fees, and costs of alteration and repairs, which
shall be payable by Tenant as they are incurred by Landlord; and
E. While the Premises are subject to any new lease or leases made
pursuant to this Section, for the amount by which the monthly installments
payable under such new lease or leases is less than the monthly installment for
all charges payable pursuant to this Lease, which deficiencies shall be payable
monthly.
Notwithstanding Landlord's election to terminate Tenant's right to
possession only, and notwithstanding any reletting without termination,
Landlord, at any time thereafter, may elect to terminate this Lease, and to
recover (in lieu of the amounts which would thereafter be payable pursuant to
the foregoing, but not in diminution of the amounts payable as provided above
before termination), as damages for loss of bargain and not as a penalty, an
aggregate sum equal to the amount by which the rental value of the portion of
the term unexpired at the time of such election is less than an amount equal to
the unpaid base rent, percentage rent, and additional rent and all other charges
which would have been payable by Tenant for the unexpired portion of the term of
this Lease, which deficiency and all expenses incident thereto, including
commissions, attorneys' fees, expenses of alterations and repairs, shall be due
to Landlord as of the time Landlord exercises said election, notwithstanding
that the term had not expired. If Landlord, after such reentry, leases the
Premises, then the rent payable under such new lease shall be conclusive
evidence of the rental value of the unexpired portion of the term of this Lease.
If this Lease shall be terminated by reason of the bankruptcy or
insolvency of Tenant, Landlord shall be entitled to recover from Tenant or
Tenant's estate, as liquidated
37
damages for loss of bargain and not as a penalty, the amount determined by the
immediately preceding paragraph.
11.3 LANDLORD'S RIGHT TO PERFORM FOR ACCOUNT OF TENANT. If Tenant shall
be in Default under this Lease, Landlord may cure the Default at any time after
10 days written notice from Landlord for the account and at the expense of
Tenant. If Landlord cures a Default on the part of Tenant, Tenant shall
reimburse Landlord upon demand for any amount expended by Landlord in connection
with the cure, including, without limitation, attorney's fees and interest.
11.4 INTEREST AND ATTORNEY'S FEES. In the event of a Default by Tenant:
(1) if a monetary default, interest shall accrue on any sum due and unpaid at
the rate of the lesser of twelve percent (12%) per annum or the highest rate
permitted by law and, if Landlord places in the hands of an attorney the
enforcement of all or any part of this Lease, the collection of any rent due or
to become due or recovery of the possession of the Premises, Tenant agrees to
pay Landlord's costs of collection, including reasonable attorney's fees for the
services of the attorney, whether suit is actually filed or not.
11.5 ADDITIONAL REMEDIES, WAIVERS, ETC.
A. The rights and remedies of Landlord set forth herein shall be in
addition to any other right and remedy now and hereafter provided by law. All
rights and remedies shall be cumulative and not exclusive of each other.
Landlord may exercise its rights and remedies at any times, in any order, to any
extent, and as often as Landlord deems advisable without regard to whether the
exercise of one right or remedy precedes, concurs with or succeeds the exercise
of another.
B. A single or partial exercise of a right or remedy shall not preclude
a further exercise thereof, or the exercise of another right or remedy from time
to time.
C. No delay or omission by Landlord in exercising a right or remedy
shall exhaust or impair the same or constitute a waiver of, or acquiesce to, a
Default.
D. No waiver of a Default shall extend to or affect any other Default
or impair any right or remedy with respect thereto.
E. No action or inaction by Landlord shall constitute a waiver of a
Default.
F. No waiver of a Default shall be effective unless it is in writing
and signed by Landlord.
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ARTICLE 12.
RELOCATION
ARTICLE 13.
AMENDMENT AND LIMITATION OF WARRANTIES
13.1 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY TENANT, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES: THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE OR
TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN
WRITING IN THIS LEASE.
13.2 AMENDMENT. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LANDLORD AND TENANT.
13.3 LIMITATION OF WARRANTIES. LANDLORD AND TENANT EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OR MERCHANTABILITY, HABITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE,
AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN
THIS LEASE.
ARTICLE 14.
MISCELLANEOUS
14.1 ACT OF GOD. Landlord shall not be required to perform any covenant
or obligation in this Lease, or be liable in damages to Tenant, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
or prevented by an act of God, force majeure or by Tenant.
39
14.2 SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and inure
to the benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and agreed that
should Landlord's interest in the Premises cease to exist for any reason during
the term of this Lease, then notwithstanding the happening of such event this
Lease nevertheless shall remain unimpaired and in full force and effect, and
Tenant hereunder agrees to attorn to the then owner of the Premises.
14.3 RENT TAX. If applicable in the jurisdiction where the Premises are
issued, Tenant shall pay and be liable for all rental, sales and use taxes or
other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Landlord under the terms of this Lease.
Any such payment shall be paid concurrently with the payment of the rent,
additional rent, operating expenses or other charge upon which the tax is based
as set forth above.
14.4 CAPTIONS. The captions appearing in this Lease are inserted only
as a matter of convenience and in no way define, limit, construe or describe the
scope or intent of any Section.
14.5 NOTICE. All rent and other payments required to be made by Tenant
shall be payable to Landlord at the address set forth in Section 1.5. All
payments required to be made by Landlord to Tenant shall be payable to Tenant at
the address set forth in Section 1.5, or at any other address within the United
States as Tenant may specify from time to time by written notice. Any notice or
document required or permitted to be delivered by the terms of this Lease shall
be deemed to be delivered (whether or not actually received) when deposited in
the United States Mail, postage prepaid, certified mail, return receipt
requested, addressed to the parties at the respective addresses set forth in
Section 1.5.
14.6 SUBMISSION OF LEASE. Submission of this Lease to Tenant for
signature does not constitute a reservation of space or an option to lease. This
Lease is not effective until execution by and delivery to both Landlord and
Tenant.
14.7 CORPORATE AUTHORITY. If Tenant executes this Lease as a
corporation, each of the persons executing this Lease on behalf of Tenant does
hereby personally represent and warrant that Tenant is a duly authorized and
existing corporation, that Tenant is qualified to do business in the state in
which the Premises are located, that the corporation has full right and
authority to enter into this Lease, and that each person signing on behalf of
the corporation Is authorized to do so. In the event any representation or
warranty is false, all persons who execute this Lease shall be liable,
individually, as Tenant.
14.8 HAZARDOUS SUBSTANCES. Tenant shall not bring or permit to remain
on the Premises or the Building any asbestos, petroleum or petroleum products,
explosives, toxic materials, or substances defined as hazardous wastes,
hazardous materials, or hazardous substances under any federal, state, or local
law or regulation ("Hazardous Materials"). Tenant's violation of the foregoing
prohibition shall constitute a material breach and default hereunder and
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Tenant shall indemnify, hold harmless and defend Landlord from and against any
claims, damages, penalties, liabilities, and costs (including reasonable
attorney fees and court costs) caused by or arising out of (i) a violation of
the foregoing prohibition or (ii) the presence or any release of any Hazardous
Materials on, under, or about the Premises or the Building during the term of
the Lease. Tenant shall clean up, remove, remediate and repair any soil or
ground water contamination and damage caused by the presence and any release of
any Hazardous Materials in, on, under, or about the Premises or the Building
during the term of the Lease in conformance with the requirements of applicable
law. Tenant shall immediately give Landlord written notice of any suspected
breach of this paragraph; upon learning of the presence of any release of any
Hazardous Materials, and upon receiving any notices from governmental agencies
pertaining to Hazardous Materials which may affect the Premises or the Building.
The obligations of Tenant hereunder shall survive the expiration or earlier
termination, for any reason, of this Lease. To the best of Landlord's knowledge,
the Premises does not contain any hazardous substances as of the Lease
Commencement Date.
14.9 SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
14.10 LANDLORD'S LIABILITY. If Landlord shall be in default under this
Lease and, if as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
right, title and interest of Landlord in the Building as the same may then be
encumbered and neither Landlord nor any person or entity comprising Landlord
shall be liable for any deficiency. In no event shall Tenant have the right to
levy execution against any property of Landlord nor any person or entity
comprising Landlord other than its interest in the Building as herein expressly
provided.
14.11 BROKERAGE. Landlord and Tenant each represents and warrants to
the other that there is no obligation to pay any brokerage fee, commission,
finder's fee or other similar charge in connection with this Lease including
expansions, options and renewals, other than fees due to Welsh Companies, Inc.
and Woodbridge Partners which are the responsibility of Landlord. Each party
covenants that it will defend, indemnify and hold harmless the other party from
and against any loss or liability by reason of brokerage or similar services
alleged to have been rendered to, at the instance of, or agreed upon by said
indemnifying party. Notwithstanding anything herein to the contrary, Landlord
and Tenant agree that there shall be no brokerage fee or commission due on
expansions, options or renewals by Tenant.
14.12 NOTIFICATION TO TENANT. Landlord hereby notifies Tenant that the
person authorized to execute this Lease and manage the Premises is Hoyt
Properties, Inc. which has been appointed to act as the agent in leasing
management and operation of the Building for owner and is authorized to accept
service of process and receive or give receipts for notices and demands on
behalf of Landlord. Landlord reserves the right to change the identity and
status of its duly authorized agent upon written notice to Tenant.
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14.13 EXHIBITS. Reference is made to the following Exhibits which are
attached hereto and made a part hereof:
Exhibit A Plan of Demised Premises
Exhibit B Legal Description
Exhibit C Floorplan and Tenant Finish Specifications
Exhibit D Schedule of Additional Leasehold Improvements
Exhibit E Sign Restrictions
Exhibit F Rules and Regulations
Exhibit G Restrictive Covenants
ARTICLE 15.
SIGNATURES
SIGNED effective the day and year first above written:
LANDLORD TENANT
PLYMOUTH PARTNERS II INSIGNIA SYSTEMS, INC.
(A MINNESOTA GENERAL PARTNERSHIP) (A MINNESOTA CORPORATION)
By: /s/ Steven B. Hoyt By: /s/ John R. Whisnant
Its: General Partner Its: VP-Finance
Date: 10/12/98 Date: 10/9/98
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RIDER TO LEASE
DATED
OCTOBER 5, 1998
BY AND BETWEEN
PLYMOUTH PARTNERS II
(A MINNESOTA GENERAL PARTNERSHIP), AS LANDLORD
AND
INSIGNIA SYSTEMS, INC.
(A MINNESOTA CORPORATION), AS TENANT
INTERPRETATION OF RIDER:
The Lease is hereby modified and supplemented. Wherever there exists a
conflict between the Lease and this Rider, the provisions of this Rider
shall control.
ARTICLE 15 - LETTER OF CREDIT
Within five (5) days after execution of the lease by both parties, and
as a condition precedent to Landlord's obligations to commence
improvement of the Premises, Tenant, at Tenant's sole cost and expense,
shall deliver to Landlord an irrevocable, unconditional, standby letter
of credit in the amount of $240,000.00 (such letter of credit together
with any other renewal or replacement letters of credit delivered or to
be delivered by Tenant hereunder shall be referred to herein
collectively as the "Letter of Credit"). Any Letter of Credit
(including any renewal or replacement letter of credit) described
hereunder shall be in form and substance, and issued by a United States
bank or a United States agency of a foreign bank, in either case
authorized to conduct business in Minnesota and reasonably acceptable
to Landlord (the "Issuer").
The Letter of Credit shall be maintained throughout the period from the
date of issuance until the termination of the Lease Agreement, except
as hereinafter agreed. To the extent, Tenant has not been in default of
this Lease, such Letter of Credit shall be reduced to $160,000.00 on
April 1, 2000 and further reduced to $80,000.00 on April 1, 2001. On
April 1, 2002, provided no draw in pending in connection with any
statement delivered to Issuer by Landlord pursuant to this Article 15,
Tenant shall be entitled to a full release of the Letter of Credit and
Landlord or Issuer shall return the Letter of Credit to Tenant.
Tenant shall periodically renew the Letter of Credit to assure that it
is maintained throughout the entirety of said period; provided that any
single Letter of Credit may have a term or maturity of twelve (12)
months or more as determined by Tenant from the date it is issued and
any such periodic Letter of Credit must be extended, renewed and/or
replaced with a new Letter of Credit at least thirty (30) days prior to
the maturity date of the preceding periodic Letter of Credit.
Notwithstanding any contrary provision herein, if, at any time, Tenant
defaults in its obligations under this Lease beyond the applicable cure
period therefor, if any, Landlord may draw upon the Letter of Credit,
which remedy shall be in addition to any other remedy which may be
elected by Landlord hereunder.
No draw by Landlord under the Letter of Credit shall be deemed a waiver
of, or be deemed to have cured, any default by Tenant under any
provision of the Lease; provided that a draw by Landlord shall be
applied to delinquent obligations of Tenant under the Lease and, if so
applied, shall be deemed to have cured Tenant's default in the payment
of such obligations to the extent the proceeds of the draw are applied
to cover the delinquent payment obligations. The funds drawn by
Landlord under the Letter of Credit shall be nonrefundable and shall
remain the property of Landlord.
To obtain the draw under the Letter of Credit, Landlord shall deliver
to the Issuer (with a copy to Tenant) an original statement signed by a
person who purports to be an authorized representative of Landlord
stating that Landlord has given Tenant at least ten (10) days prior
notice of Landlord's intention to draw on the Letter of Credit and that
Landlord is entitled to draw on the Letter of Credit in the amount
thereof in accordance with the terms
43
of this Lease and the Letter of Credit. No claim or demand of set-off,
deduction, or default under the Lease shall be deemed an estoppel or
defense to any draw under the Letter of Credit.
The delivery of the Letter of Credit to Landlord and the drawing upon
the Letter of Credit by Landlord shall be in addition to all other
rights and remedies available to Landlord under the Lease, or arising
at law or in equity, and shall not be in substitution or replacement
thereof.
ARTICLE 16 - SATELLITE DISH
To the extent Tenant requires a satellite dish on the Building,
Landlord agrees to not withhold such approval provided Tenant meets all
requirements of the City and any other applicable requirement for the
installation of such equipment. The installation of a satellite dish or
any such equipment shall not cause Tenant's Base Rent to increase. The
installation and removal of any satellite dish and equipment shall be
under the supervision of Landlord and Tenant agrees to remove such dish
and equipment upon expiration of the Lease.
LANDLORD TENANT
PLYMOUTH PARTNERS II INSIGNIA SYSTEMS, INC.
(A MINNESOTA GENERAL PARTNERSHIP) (A MINNESOTA CORPORATION)
By: /s/Steven B. Hoyt By: John R. Whisnant
Its: General Partner Its: VP-Finance
Date: 10/12/98 Date: 10/9/98
44
EXHIBIT "A"
(BUILDING PICTURE)
45
EXHIBIT "B"
LEGAL DESCRIPTION
Lots 1, 2 and 3, Block 1,
Plymouth Technology Park 2nd Addition
46
EXHIBIT C
INSIGNIA SYSTEMS, INC.
ESTIMATE (REVISION #2)
BASIS OF BUDGET, SEPTEMBER 23, 1998
PAGE 1 OF 5
1. This estimate is based on Sheet A1 dated September 15, 1998, 1998 by
Architects Professional Association.
2. This estimate specifically includes:
A. Concrete:
1) Infill utility trench with concrete to match existing
floor, approximately 3,600 SF of floor area.
B. Carpentry:
1) Provide 8 FL of closet rod and shelf.
2) Provide 2 plastic laminate vanities.
C. Doors, Frames & Hardware:
1) Thirty-three (33) hollow metal frames.
2) Five (5) hollow metal doors.
3) Thirty (30) non-rated, plain sliced, red oak wood
doors.
4) One (1) non-rated, plain sliced, red oak wood bi-fold
door.
5) Provide Schlage passage hardware on all doors.
D. Drywall:
1) Provide demising walls to deck between
office/warehouse of office/printing, sheetrock on
each side with sound insulation.
2) Provide partitions to ceiling grid at all interior
office partitions.
3) Provide sheetrock on existing framing and insulation
at window wall locations within the office area.
4) Provide taping to deck on warehouse side of demising
wall.
5) Provide taping to deck on new walls in printing room.
E. Miscellaneous Metal:
1) Allowance of $1,500 for any required steel
reinforcing at rooftop units.
F. Rooftop Fencing:
1) Allowance of $1,00 for fencing around two (2) rooftop
units.
47
INSIGNIA SYSTEMS, INC.
ESTIMATE (REVISION #2)
BASIS OF BUDGET, SEPTEMBER 23, 1998
PAGE 2 OF 5
G. Glazing:
1) Provide non-insulated, uncoated glass at new entry
vestibule.
H. Painting:
1) Paint all gypsum board walls at office areas with two
coats of latex eggshell.
2) Finish doors, frames and railings at rear entry.
3) Paint warehouse side of new demising wall to deck.
4) Paint new demising wall in the printing room to deck.
5) Provide 54" type II vinyl wallcovering with an
allowance of $8.00 per lineal yeard at reception and
board room.
I. Acoustical Ceiling:
1) Suspension System at 10' AFF - 2x4 intermediate duty
#511 series by Chicago Metallic.
2) Lay-in Panel - 2' x 4' x 3/4" scored 2' x 2' revealed
edge mineral tile by USG>
J. Ceramic Tile:
1) Provide 4" x 4" standard grade ceramic wall tile, and
1" x 1" standard grade floor at two (2) bathroom
locations as shown on plans.
2) Provide standard grade 6" x 6" quarry tile at one (1)
vestibule location.
K. Carpet and Carpet Base:
1) Provide glued down carpet and carpet base at a $14.00
per yard installed allowance.
L. Specialties:
1) Provide five (5) floor mount toilet partitions.
2) Provide toilet accessories as shown on the plans.
3) Provide loading dock equipment.
* One (1) Kelly "FX" Automatic Dockleveler
Model FX 6 X 8.
* Size to be 6 W x 8L.
* Capacity to be 25,000 lbs. (ANSI-MH 14.1 -
87/CS-202-56).
* Includes two (2) laminated dock bumpers.
* Brush weatherseals.
* Kelly Tufseal Dockseal - Model #DSH 200.
* Projection to be 10".
* Basic material to be 40 oz. Vinyl.
* Color to be black.
* New Pit Construction.
* Includes 8 PC Steel curb angle set.
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INSIGNIA SYSTEMS, INC.
ESTIMATE (REVISION #2)
BASIS OF BUDGET, SEPTEMBER 23, 1998
PAGE 3 OF 5
M. HVAC:
1) Project design and coordination.
2) Furnish four heating and cooling rooftop units with
outdoor air economizers, thermostats and smoke
detectors. The units will have a total capacity of
36.5 tons.
3) Spot the roof curbs.
4) Roofing of penetrations made during HVAC
installation.
5) Rig the units on the roof.
6) Fabricate and install the shet metal air distribution
system and diffusers.
7) Air balancing.
8) Gas piping and fittings.
9) Start and test the equipment.
10) Permits, fees, taxes and freight.
N. Plubing:
1) Plumbing permits and approved plumbing drawings.
2) Installation in compliance with all codes and
ordinances.
3) Roofing of penetrations made during plumbing
instalation.
4) Plumbing fixtures shall meet ADA requirements.
a) Five (5) water closets, floor set, tank
type.
b) One (1) urinal, wall hung, flush valve.
c) Four (4) lavatories, self rimming type,
single lever handle faucet
d) One (1) electric water cooler, wall hung,
compact, standard cabinet.
e) One (1) mop sink, floor set, 24 x 24,
Chicago 897.
f) Two (2) floor drains.
g) One (1) water heater, electric, twenty
gallon
O. Fire Protection:
1) Add and drop 84 new chrome plated semi recessed
sprinklers through the new ceiling.
2) All sprinklers will be installed in a symmetrical
pattern but will not necessarily be installed in the
center of the ceiling tiles or centered between other
ceiling fixtures.
3) All required spinkler permits and approvals.
P. Electrical:
148 2 x 4 layins
57 8" two lamp strips
15 Exit lights
49
INSIGNIA SYSTEMS, INC.
ESTIMATE (REVISION #2)
BASIS OF BUDGET, SEPTEMBER 23, 1998
PAGE 4 OF 5
60 Single pole switches in the offices
2 Single pole switches in the warehouse
119 Duplex receptacles in the offices (includes no GFI receptacles in the
bathrooms)
1 Duplex receptacle at the panel
60 Phone ring and string openings
1 400 amp 480 volt panel in the space
1 400 amp CT, meter and disconnect in the main electrical room
1 75 kV transformer
1 200 amp 208 volt panel
4 RTU
1 PRV
1 1500 watt water heater
Q. Final Cleaning of the Office Area
3. Alternates
A. Provide airconditioning in the warehouse area with two (2)
10-ton rooftop units, 20 tons total. Add $30,383
B. Provide one (1) floor mounted janitor sink in the printing
area. Add $ 995
C. Provide plastic laminate base and upper cabinets and one (1)
sink in the lunch room. Each base cabinet will have one shelf
and two drawers. Add $ 8,840
D. Provideplastic laminate base cabinet with one (1) sink in the
board room. Each base cabinet will have one shelf and two
drawers. Add $ 2,615
E. Provide one (1) aluminum exit dor at grid line #1 to match
base building finish. Add $ 2,070
F. Provide 8' chain link fence in warehouse area as shown on
plans. Add $ 1,513
G. Electrical wiring of owner's equipment.
1 30 amp 208 volt 3 phase panel in the phone room.
6 IG receptacles on dedicated circuits in the phone room.
1 30 amp receptacle.
9 dedicated receptacles in the lunch room.
1 stove hook-up.
2 connection of printer control panels to power. No other
wiring concerned with the printers in included. No wiring
of the exhaust system in included.
2 heater units wired to the connection point on the units.
50
INSIGNIA SYSTEMS, INC.
ESTIMATE (REVISION #2)
BASIS OF BUDGET, SEPTEMBER 23, 1998
PAGE 5 OF 5
No control wiring is included.
30 indistrial 8' 2 lamp strips in the printing room with two
switches.
1 Compressor in the room next to the mechanical room.
Power only, no control wiring.
1 motorized projection screen.
17 Parabolic 2 x 4' flourecent lay-in fixtures in the reception
room and in the conference room.
8 Recessed cans in the conference room.
1 Dimmmer in the conference room.
12 Recessed cans in the training room.
2 Dimmers in the training room.
1 Reconnection of the receptionist desk. Add $ 30,906
4. This estimate specifically excludes:
A. Any cost that may be incurred due to the presence of hazardous
materials in the work area.
B. Any fire alarm systems other than sprinklers.
C. Any warehouse exhaust system.
D. Any sheetrock in the warehouse other than the demising wall.
E. Any sheetrock on the window walls in the printing room.
F. Moving any furniture.
G. Any appliances.
H. Any window treatments.
I. Any SAC or WAC charges.
J. Wiring tenant furniture.
5. All work will be done during regular working hours (7:00 a.m. to 4:00
p.m., Monday through Friday).
6. This estimate is subject to change as the scope of the work and the
design are finalized.
7. This budget is valid until November 2, 1998.
51
EXHIBIT "D"
SCHEDULE OF ADDITIONAL LEASEHOLD IMPROVEMENTS
The following indicate clarifications to the Leasehold Improvements and further
indicate what Landlord is responsible to pay for and provide to Tenant.
1) The doors shall be 3' 0" x 7' 0" solid core, sliced red oak as shall be
the bi-fold doors.
2) All ceiling heights in office area shall be 10'.
3) Ceiling tile shall be 2' x 4' Armstrong "second look".
4) All office walls or other interior walls abutting the window mullions
shall be equipped with a neoprene gasket or other effective sound
transmission barrier to prevent sound transmission between the
respective offices.
5) All drywall shall be taped and sanded and shall receive 2 coats of
latex eggshell with the exception of the reception area and boardroom
which shall receive vinyl wall covering.
6) Carpet allowance shall be $14.00 per square yard, installed.
7) There shall be no other permits, fees or charges of any kind or nature
from the local municipality including, but not limited to SAC, WAC,
etc.
8) There shall be no charges from Landlord for supervision of the
construction.
9) Landlord shall furnish all code required signage for the Premises such
as exiting signs, etc.
10) Landlord shall furnish one (1) premium grade of Kelly or Rite-Hite dock
leveler with door seal.
11) All sheetrock walls in the warehouse and printing areas shall be taped,
sanded and painted.
12) All walls separating the office area (excluding the print area office)
from the warehouse and printing areas shall contain sound insulation
and shall run to the roof deck.
13) Landlord shall furnish and install five (5) water closets, floor set
tank type.
14) Landlord shall provide opening in wall and string and conduit above
ceiling grid, however Tenant shall be responsible for the cost of
installing the wiring and providing the jack.
Any additional items or improvements shall be the responsibility of Tenant and
shall be at the sole cost of Tenant.
52
EXHIBIT "E"
SIGN CRITERIA FOR PLYMOUTH TECHNOLOGY PARK
Landlord shall provide one (1) rectangular non-illuminated site sign identifying
Plymouth Technology Park. The sign will be appropriately 4'x 8' and mounted on a
3' x 8' brick base.
One (1) rectangular non-illuminated sign structure approximately 3' x 6' mounted
on a 3' x 6' brick base will be provided for each building to be shared for
tenant identification. Landlord shall provide single color vinyl Tenant copy.
Landlord shall also provide vinyl address lettering on both the front and rear
entrances to Tenant's Demised Premises.
Any special Tenant logo or colors shall be at Tenant's sole cost. Any additional
Tenant signage on the front or rear entrance shall be done in good taste within
city code and shall be at the sole cost of the Tenant.
53
EXHIBIT "F"
BUILDING RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement installed on or
in any part of the Premises and visible from the exterior or interior
common area of the Building, or visible from the exterior of the
Premises, shall be installed at Lessee's sole cost and expense, and in
such manner, character and style as Lessor may approve in writing.
Anything herein to the contrary not withstanding, approval as to signs
shall be subject to Lessor's approval which may be withheld in Lessor's
sole discretion. In the event of a violation of the foregoing by
Lessee, Lessor may remove the same without any liability and may charge
the expense incurred by such removal to Lessee.
2. No awning or other projection shall be attached to the outside walls of
the Building. No curtains, blinds, shades or screens visible from the
exterior Premises, shall be attached to or hung in, or used in
connection with any such curtains, blinds, shades, screens or other
fixtures must be of a quality, type, design and color, and attached in
the manner approved by Lessor.
3. Lessee, its employees, customers, invitees and guests shall not
obstruct sidewalks, entrances, passages, corridors, vestibules, halls
or stairways in and about the Building which are used in common with
other tenants and their employees, customers, guests and invitees, and
which are not a part of the Premises of Lessee. Lessee shall not place
objects against glass partitions or doors or windows which would be
unsightly from the Building corridors or from the exterior of the
Building and will promptly remove any such objects upon notice from
Lessor.
4. Lessee shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that
omit excessive sound or other waves or disturbances or create obnoxious
odors, any of which may be offensive to the other tenants and operation
of any device equipment, radio, television broadcasting or reception
from or within the Building aerials or similar devices inside or
outside of the Premises or on the Building.
5. Lessee shall not waste electricity, water or air conditioning furnished
by Lessor, if any, and shall cooperate fully with Lessor to ensure the
most effective operation of the Building's heating and air conditioning
systems.
6. Lessee assumes responsibility for protecting its space from theft,
robbery, and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured after normal business
hours.
54
7. In no event shall Lessee bring into the Building flammables, such as
gasoline, kerosene, naphtha and benzene, or explosives or any other
article of intrinsically dangerous nature except as permitted by law.
If, by reason of the failure by Lessee to comply with the provisions of
this subparagraph, any insurance premium for all or part of the
Building shall at any time be increased, Lessee shall make immediate
payment of the whole of the increased premium, without waiver of any of
Lessor's other rights or law or in equity for Lessee's breach of this
Lease.
8. Lessee shall comply with all applicable federal, state and municipal
laws, ordinances and regulations, and building rules and shall not
directly or indirectly make any use of the Premises which may be
prohibited by any of the foregoing or which may be dangerous to persons
or property or may increase the cost of insurance or require additional
insurance coverage.
9. Lessor shall have the right to prohibit any advertising by Lessee which
in Lessor's reasonable opinion tends to impair the reputation of the
Building Complex or its desirability as a building complex for
office/warehouse use, and upon written notice from Lessor, Lessee shall
refrain from or discontinue such advertising.
10. The Premises shall not be used for cooking (as opposed to heating of
food), lodging, sleeping or for any immoral or illegal purpose.
11. Lessee and Lessee's employees, agents, visitors and licensees shall
observe faithfully and comply strictly with the foregoing Rules and
Regulations and such other further appropriate rules and regulations as
Lessor or Lessor's agent may from time to time adopt. Reasonable notice
of any additional rules and regulations shall be given in such manner
as Lessor may reasonably elect.
12. Unless expressly permitted by the Lessor, no additional locks or
similar devices shall be attached to any door or window and no keys
other than those provided by the Lessor shall be made for any door. If
more than two keys for one lock are desired by the Lessee, the Lessor
may provide the same upon payment by the Lessee. Upon termination of
this Lease or of the Lessee's possession, the Lessee shall surrender
all keys of the Premises and shall explain to the Lessor all
combination locks on safes, cabinets and vaults.
13. Any carpeting cemented down shall be installed with a releasable
adhesive. In the event of a violation of the foregoing by Lessee,
Lessor may charge the expense incurred by such removal to Lessee.
14. The restrooms, drinking fountains and other plumbing fixtures shall not
be used for any purpose other than those for which they are
constructed, and no sweepings, rubbish, rags, coffee grounds or other
substances shall be thrown therein. All damages resulting from any
misuse of the fixtures shall be borne by the Lessee who, or whose
employees, agents, visitors or licensees have caused the same. No
person shall waste water by interfering or tampering with the faucets
or otherwise.
55
15. No electric or other wires for any purpose shall be brought into leased
Premises without Lessor's written permission specifying the manner in
which same may be done. Lessee shall not overload any utilities serving
the Premises.
16. No dog or other animal shall be allowed in the Building.
17. All loading, unloading, or delivery of goods, supplies or disposal of
garbage or refuse shall be made only though entryways for such
purposes. Lessee shall be responsible for any damage to the Building or
the property of its employees or others and injuries sustained by any
person whomsoever resulting from the use or moving of such articles in
or out of the Premises, and shall make all repairs and improvements
required by Lessor or governmental authorities in connection with the
use or moving of such articles.
18. All safes, equipment or other heavy article shall be carried in our out
of the Premises only in such manner as shall be prescribed in writing
by Lessor, and Lessor shall in all cases have the right to specify the
proper position of any such safe, equipment or other heavy article,
which shall only be used by Lessee in a manner which will not interfere
with or cause damage to the Premises or Building in which they are
located, or to the other tenants or occupants of said Building. Lessee
shall be responsible for any damage to the building or other property
of its employees or others and injuries sustained by any person
whomsoever resulting form the use or moving of such articles in or out
of the Premises, and shall make all repairs and improvements required
by Lessor or governmental authorities in connection with the use or
moving of such articles.
19. Canvassing, soliciting and peddling in or about the Building Complex is
prohibited and each Lessee shall cooperate to prevent the same.
20. Wherever in these Building Rules and Regulations the word "Lessee"
occurs, it is understood and agreed that it shall mean Lessee's
associates, employees, agents, clerks, invitees and visitors. Wherever
the word "Lessor" occurs, it is understood and agreed that it shall
mean Lessor's assignees, agents, clerks and visitors.
21. Lessor shall have the right to enter the Premises at hours convenient
to the Lessee for the purpose of exhibiting the same to prospective
tenants within the one hundred eighty (180) day period prior to the
expiration of this Lease, and may place signs advertising the leased
Premises for rent on the exterior of said Premises at any time within
said period.
22. Lessee, its employees, customers, invitees and guests shall, when using
the parking facilities in and around the Building, observe and obey all
signs regarding fire lanes and no parking zones, and when parking
always park between the designated lines. Lessor reserves the right to
tow away, at the expense of the owner, any vehicle which is improperly
parked or parked in a no parking zone. All vehicles shall be parked at
the sole risk of the owner, and Lessor assumes no responsibility for
any damage to or loss of vehicles. No vehicles shall be parked
overnight.
56
23. In case of invasion, mob, riot, public excitement, or other commotion,
Lessor reserves the right to prevent access to the Building during the
continuance of the same by closing the doors or otherwise, for the
safety of the tenant or the protection of the Building and the property
therein. Lessor shall in no case be liable for damages for any error or
other action taken with regard to the admission to or exclusion for the
Building of any person.
24. All entrance doors to the Premises shall be locked when the Premises
are not in use. All common corridor doors, if any, shall also be closed
during times when the air conditioning equipment in the Building is
operating so as not to dissipate the effectiveness of the system or
place an overload thereon.
25. Lessor reserves the right at any time and from time to time to rescind,
alter or waive, in whole or in part, any of these Rules and Regulations
when it is deemed necessary, desirable, or proper, in Lessor's
judgment, for its best interest or for the best interest of the tenants
of the Building.
57
EXHIBIT "G"
RESTRICTIVE CONVENANTS
Plymouth Partners II, a Minnesota general partnership, the owner of the
property legally described on Exhibit A attached hereto (the "Property") does
hereby declare that the Property shall be subject to the following Restrictive
Covenants which shall be binding on all subsequent owners of the Property and
each owner shall accept title subject thereto:
1. Trash Disposal Facilities. There shall be no outsie trash
disposal facilities located on the Property.
2. Duration. These Restrictive Covenants run with the land and
shall be binding on all parties and persons claiming under
them for a period to, and including, December 31, 2027, after
which time, said Restrictive Covenants shall extend themselves
automatically for successive periods of ten years each unless
an instrument signed by a majority of the then owners of the
Property has been recorded whereby said Restrictive Covenants
are changed in whole or in part.
3. Enforcement. Enforcement of these Covenants shall be by
proceedings at law and equity either to restrain violation or
to recover damages against any person or persons violating or
attemptint to violate the same.
IN WITNESS WHEREOF, Plymouth Partners II has executed this document as of this
17th day of June, 1997.
PLYMOUTH PARTNERS II,
A Minnesota general partnership
By: /s/ Steven B. Hoyt
Its: Partner
58