EXHIBIT 10.33
OFFICE / TECH LEASE
This LEASE is made this 30th day of March, 1999, between Paul D. Kelly (the
"Landlord") and Kelco Acquisition LLC (the "Tenant").
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W I T N E S S E T H:
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In consideration of the mutual covenants, promises, and agreements herein
contained, the parties agree as follows:
1. DESCRIPTION OF THE PREMISES
Tenant hereby leases from Landlord certain premises (the "Leased Premises")
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located at 6400-6420 Zane Avenue North, Brooklyn Park, Minnesota 55428,
consisting of the land legally described in Exhibit "A" attached hereto and made
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a part hereof and the building containing approximately 54,016 square feet of
space now existing thereon (the "Building") and all the improvements located
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thereon.
2. RENT
Tenant covenants to pay annual Base Rent for the Leased Premises payable to the
Landlord, or to any other entity designated by Landlord, without further notice,
in equal monthly installments, subject to proration in the case of the first and
last months of the Lease term, on the first business day of each month during
the full term hereof. Tenant's obligation to pay Base and Additional Rent is
unconditional and independent of any other provision of this Lease, except as
otherwise set forth in this Lease. Tenant agrees to pay a three percent (3%)
late charge fee each month on Base Rent due Landlord which are owing to the
Landlord by the tenth day of that month.
TERM MONTHLY BASE RENT:
Years 1 - 3: $30,089.00
Years 4 - 6: $33,700.00
Years 7 - 10: $37,744.00
3. TERM OF LEASE
The initial term of the Lease is Ten (10) years Zero (0) months commencing on
the date hereof and expiring on the last day of the month immediately preceding
the tenth (10th) anniversary of the date hereof. Provided Tenant is not then in
default under this Lease beyond any applicable notice and cure periods, Tenant
shall have the option to extend the term of this Lease for three
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(3) additional periods of five (5) years each upon the same terms and conditions
as are provided for the original term except that the Base Rent shall be
modified as herein provided. In the event Tenant elects to exercise any
option(s) to extend as provided herein, Tenant shall give Landlord written
notice thereof at least six (6) months prior to the expiration of the original
term or the then current extension period, as the case may be. Tenant shall not
be deemed to have waived its right to exercise these options unless Landlord
delivers a notice to Tenant at least thirty (30) days prior to the expiration of
the time within which Tenant may exercise each renewal option. The second and
third options to extend may not be exercised unless all preceding options have
been exercised. The Base Rent for the entirety of each extension period shall be
increased by the increase in the Consumer Price Index For All Urban Consumers
(CPI-U). Selected Area, all items index using the figure applicable to the state
of Minnesota, or if not available, the region in which Minnesota is located (the
"Index") published by the Bureau of Labor Statistics of the United States
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Department of Labor from the date of the most recent increase in Base Rent to
the commencement date of such renewal term. If publication of the Index is
discontinued, the parties hereto shall accept comparable statistics of the cost
of living for the State of Minnesota, where available, but where not available,
then for the region which includes Minnesota, as may be agreed upon Landlord and
Tenant and as published by an agency of the United States or the State of
Minnesota, as the case may be, or by a responsible newspaper or financial
periodical of recognized authority.
4. USE OF PREMISES
Tenant may use the Leased Premises for office, machining, and applicable uses of
a machine shop and any other lawful use; subject to all local, state, and
federal laws regulating such use. Such use shall not cause excessive vibrations
which may materially injure the Building. Landlord represents and warrants to
Tenant that: Landlord has received no written notice of and has no actual
knowledge that the Leased Premises are in violation of any laws and legal
requirements applicable thereto, including, without limitation, those relating
to zoning, building and land use restrictions that are applicable to the Leased
Premises. If the foregoing representations and warranties should prove not to be
accurate not any time during the term of this Lease, Tenant, at its option, may
require Landlord use its best efforts to take all necessary action, at
Landlord's sole expense, to make such representation and warranty accurate, or
take such actions itself and offset the same against amounts payable hereunder.
5. PARKING
Landlord represents and warrants to Tenant that there are parking spaces
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located on the Leased Premises.
6. NET LEASE
This is a "net" Lease, and Landlord shall not be required to provide any
services or do any acts in connection with the Leased Premises not specifically
set forth in this Lease. As hereinafter
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further described in this Lease, the Tenant is responsible for and shall pay its
utility charges, trash removal, interior cleaning and maintenance and real
estate taxes.
7. REAL ESTATE TAXES
"Real Estate Taxes" include the following:
(1) all real estate taxes;
(2) all installments of assessments, general or special, levied against
the Leased Premises; and
(3) city water and sewer charges.
Real Estate Taxes shall be paid by Tenant directly to the taxing authority
(except in the case of tax years where the tax year does not fall entirely
within the term of the Lease in which case Real Estate Taxes shall be paid by
Landlord directly to the taxing authority and Tenant shall reimburse Landlord
based upon the proportion of such tax year which occurs during the term of
Lease) before any interest or penalty accrues on same, and Tenant shall provide
Landlord with evidence of timely payment. Landlord represents and warranties to
Tenant that neither Landlord nor the immediately preceding occupant of the
Leased Premises is the beneficiary of any abatement or exemption pertaining to
real estate taxes or assessments of which Tenant will not also be the
beneficiary and that Landlord has received no notice and has no knowledge of any
pending or contemplated assessments against the Leased Premises. Notwithstanding
the aforesaid if any assessment or other government charges pertain to public
work, improvements or benefits having an expected useful life exceeding the
remaining Lease term, the amount of such assessment or other government charges
shall be divided on such basis between Landlord and Tenant.
Notwithstanding anything to the contrary in no event shall "Real Estate Taxes"
include any taxes in the nature of income, capital, stock, successor, transfer,
inheritance, estate, gift, franchise, profit, rent or similar taxes, levied,
assessed or imposed against Landlord or any partner, shareholder, manager,
member, trustee or beneficiary in or of Landlord. "Real Estate Taxes" shall be
reduced by the amount of any discount received by Landlord or Tenant for early
payment or prepayment. "Real Estate Taxes" shall not include any interest,
penalty or late charge incurred by Landlord for nonpayment or late payment for
years in which Landlord is responsible for paying Real Estate Taxes directly to
the taxing authority but shall include interest, penalty and late charges
incurred by Tenant for nonpayment or late payment for years in which Tenant is
responsible for paying Real Estate Taxes directly to the taxing authority. "Real
Estate Taxes" shall not exceed the actual amount payable by Landlord or Tenant
and shall reflect any refund of or credit against real estate taxes received by
Landlord or Tenant.
Tenant shall have the right to contest the amount or validity, in whole or in
part, of any Real Estate Taxes or to seek a reduction in the valuation of the
Leased Premises assessed for tax
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purposes and to prosecute any action or proceeding heretofore commenced by
Landlord to that end by appropriate proceedings diligently conducted in good
faith and upon giving written notice to Landlord to such effect.
Landlord shall not be required to join in any proceedings referred to herein
unless the provisions of any law, rule or regulation at the time in effect shall
require that such proceedings be brought by or in the name of Landlord or any
owner of the Leased Premises, in which event Landlord shall join in such
proceedings or permit the same to be brought in its name. Landlord shall not be
subjected to any liability for payment of any costs or expenses in connection
with any such proceedings brought by Tenant. Tenant shall be entitled to any
refund of any Real Estate Taxes and penalties or interest thereon received by
Landlord which have been paid by Tenant, or which have been paid by Landlord but
previously reimbursed by Tenant.
8. UTILITIES
Tenant is responsible for and shall pay for all of its utility services.
Landlord represents to Tenant that the Leased Premises are separately metered
for gas, electricity and telephone service. Tenant will contract directly with
the utility companies for service requirements and billing.
Landlord shall, under no circumstances, be liable for physical loss arising from
any failure to furnish heating, cooling, water, electricity, telephone, or any
other utility.
9. INSURANCE
The Tenant shall maintain in full force and effect during the term hereof, a
policy of public liability insurance. The minimum limits of liability of such
insurance shall be $1,000,000.00 combined single limit for bodily injury and
property damage, and will name Landlord as additional insured. In addition the
Tenant shall carry a policy of property insurance against direct physical damage
to the buildings and improvements located on the Leased Premises, including all
leasehold improvements, on a replacement cost value basis caused by "all-risks"
perils subject to standard exclusions. Tenant will also insure the risk of loss
of "Rental Value" for the period of one year from date of a covered loss. Rental
Value is defined as total anticipated rental income from Tenant's occupancy of
the Leased Premises described in this Lease and includes all charges which are
the legal obligation of the Tenant and which would otherwise be the obligation
of the Landlord.
Tenant agrees to deliver a duplicate copy of said policy, or a certificate of
insurance evidencing such coverage, to Landlord upon execution of this Lease.
Such policy shall contain a provision requiring thirty (30) days written notice
to the Landlord before cancellation of the policy can be effected.
Each insurance policy carried by either the Landlord or Tenant covering the
Leased Premises or its contents shall provide that the insured party has
relinquished all rights to recover against the other party for loss or damage
resulting from perils insured against by the policy. Landlord and Tenant each
hereby waive any claim based upon liability which may arise against the other so
far
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as the claim relates to loss or damage to the Leased Premises or contents which
is covered by insurance or coverable under the aforementioned insurance
policies, whether maintained, or not.
10. MAINTENANCE
Landlord represents and warrants to Tenant that, to the best of Landlord's
knowledge, the Leased Premises, including, without limitation, all building
systems and equipment, all structural components, the roof, the basement, all
plumbing, electrical, mechanical, heating, ventilating, air conditioning and
sprinkler systems, and all sewer, waste water, paving and parking equipment,
systems and facilities, are fully installed and, as applicable, operating, and
adequate for the conduct of the business as presently and proposed to be
conducted, and there are no known material defects in the same that would hinder
or impair such business and operations.
The Tenant shall be wholly responsible for the maintenance and repair of the
interior of the Leased Premises, and will keep it in as good condition as when
turned over to Tenant, reasonable wear and tear and damage by fire and the
elements and condemnation excepted. The Tenant agrees to keep the Leased
Premises in a clean, orderly and sanitary condition and will neither do nor
permit to be done therein anything which is in violation of insurance polices on
the building or that is contrary to law. The Tenant will neither commit nor
suffer waste to the Building or to the Leased Premises.
The maintenance and repair obligations of the Tenant specifically extend to all
non-structural interior walls, interior doors, interior windows, plumbing and
electrical fixtures within the Leased Premises, except as these obligations may
be covered by manufacturer or contractor warranties. The Landlord agrees to
cooperate with and reasonably assist Tenant in pursuing such warranties which
are still in effect.
Landlord shall make all structural repairs to the Leased Premises and shall keep
the Leased Premises safe, dry and tenantable, unless the necessity thereof shall
be caused by the gross negligence or intentional misconduct of Tenant, its
agents, servants, employees, invites or licensees. For the purpose of this
paragraph, structural repairs shall mean repairs to the building foundation, all
external walls and doors, roofs, exterior windows, vertical and horizontal
supporting beams of the floor. In addition to any other repair obligations
imposed upon Landlord by this Lease, Landlord shall make all repairs, whether of
a structural or non-structural nature, which are caused by the negligent acts or
omissions of Landlord, its employees, contractors and agents or which relate to
latent defects in the Leased Premises or arise from breaches by Landlord of its
representations and warranties under this Lease.
If Landlord does not make repairs that it is required to make with due diligence
to the Leased Premises, Tenant, at its option, upon ten (10) days' prior written
notice to Landlord, shall be allowed to do this at Landlord's expense and seek
reimbursement from Landlord for the cost of such repairs. Any failure by Tenant
to give notice to Landlord of the need to repair shall not relieve Landlord of
its obligation to make such repairs if Landlord otherwise obtains knowledge
thereof. Landlord agrees in the making of any repairs, alterations, additions or
improvements
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and will use its best efforts to minimize interference with Tenant's use and
enjoyment of and access to the Leased Premises and that Landlord will perform
and complete such repairs or changes with due diligence. If, as a result of
Landlord's failure to make such repairs, or to take such other action as is
required hereunder, Tenant is not able to use the Leased Premises for three (3)
business days, Tenant shall be entitled to an abatement of Base Rent, additional
rent and all other amounts payable by Tenant hereunder for that portion of the
Leased Premises which is unusable until such time as all such repairs have been
made and other necessary actions taken. The abatement shall end upon notice from
Landlord to Tenant that such repairs have been completed and the Leased Premises
are tenantable.
11. CONDEMNATION LOSS
Should all the Leased Premises be taken in condemnation proceedings or by
exercise of any right of eminent domain, then this Lease shall automatically
terminate as of the date the condemning authority or the authority exercising
its right of eminent domain takes possession of the Leased Premises. If, as a
result of a partial taking, the Leased Premises is no longer useable for the
purposes specified in of this Lease, then, in any such case, the Tenant may
terminate this Lease as of the date the condemning authority or the authority
exercising its right of eminent domain takes possession of the Leased Premises.
If this Lease is not terminated, Landlord will immediately make all repairs
necessary to make the Leased Premises complete and tenable, in such
circumstances, all Base Rent and Additional Rent and all other amounts payable
by Tenant hereunder shall abate until the Leased Premises are again complete and
tenantable and Tenant shall only pay Base Rent, Additional Rent and all other
amounts payable by Tenant hereunder after such restoration based on the ratio of
the square footage of the Leased Premises after such restoration to the square
footage of the Leased Premises prior to such taking. The Landlord shall be
specifically entitled to all awards for condemnation, except in the case of
awards made specifically for loss or damage to Tenant's property or Tenant's
relocation expenses.
12. TENANT ASSIGNMENT AND SUBLETTING
The Tenant may not assign this Lease, and may not sublet all or any part of the
Leased Premises without the prior written consent of the Landlord which shall
not be unreasonably withheld, delayed or conditioned provided such assignee or
subtenant is financially sound. Any such assignment or subletting will not
release the Tenant from its responsibilities under this Lease, unless expressly
agreed to in writing by the Landlord. Notwithstanding anything to the contrary
contained in this Lease, Landlord's consent shall not be required for an
assignment of this Lease or the subletting of all or any portion of the Leased
Premises to an entity now or hereafter affiliated with Tenant (including a
subsidiary, affiliate, parent, controlling entity or entity under common control
with Tenant).
13. DEFAULT BY TENANT
It is a "Default" for Tenant: (a) if any installment of Base Rent shall remain
unpaid for a period of more than ten (10) days after the same is due; (b) if
Additional Rent or any other sum due by
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Tenant under this Lease (other then Base Rent) shall be unpaid as of the date
payment is required for ten (10) days after Landlord gives Tenant written notice
thereof; (c) if Tenant fails to perform any of the other terms, conditions,
covenants and obligations of this Lease to be observed or performed by the
Tenant for more than thirty (30) days after Landlord gives Tenant written notice
thereof (it being agreed that a default other than failure to pay Base Rent,
Additional Rent or other sums due, which is of such character that the cure
thereof reasonably requires longer than thirty (30) days, shall be deemed cured
within said period, if Tenant in good faith commences a cure within the thirty
(30) day period and diligently undertakes to complete the cure with reasonable
dispatch); (c) if Tenant becomes the subject of a bankruptcy petition, shall
have a receiver appointed of its property, shall make an assignment for the
benefit of creditors, or its rights hereunder shall be taken under execution;
and the same is not dismissed or discharged within sixty (60) days of the
occurrence of same.
A Default gives Landlord the right (without further notice except as hereinafter
expressly provided) to: (a) after Landlord is awarded possession by a court of
competent jurisdiction immediately reenter the Leased Premises, change the
locks, and remove all persons, and at Tenant's expense, remove and store
Tenant's property in accordance with applicable state law; (b) make alterations
and repairs; (c) without terminating the Lease, relet all or part of the Leased
Premises, at Tenant's expense and for its account, upon such terms, for such
rentals and for such term as Landlord in its sole discretion deems advisable.
Whether or not Landlord reenters and/or relets the Leased Premises, Tenant will
remain liable, for all periods in which this Lease is in full force and not
terminated for the Base Rent, Additional Rent and utilities due hereunder,
subject only to a credit for rental received from a substitute tenant over and
above expenses of reletting and other sums due hereunder, which shall be payable
when such Base Rent and Additional Rent, would otherwise be payable under this
Lease. Additionally, whether or not Landlord has already resorted to any other
above-mentioned right, Landlord may elect, by giving a written notice, after
appropriate legal proceedings, to terminate the Lease effective as of any date
specified in the notice. No act, including the re-entering and/or reletting,
except the giving of such notice, shall be deemed a termination, or acceptance
of surrender of the Lease. Upon said effective date, after appropriate legal
proceedings, Tenant will comply with such surrender provisions.
Tenant will be liable for (a) all reasonable expenses and damages incurred by
Landlord resulting, whether before or after termination, from a Default,
including, without limitation, reasonable attorney's fees and customary and
reasonable brokers' fees to obtain a new tenant, reasonable costs of reclaiming
possession and reasonable alteration or repair costs to obtain a new tenant and
(b) 5% interest on any sum due under the Lease, from the date due.
Landlord hereby expressly waives any contractual, statutory or common law lien
on Tenant's property. Landlord acknowledges that Tenant's lender will have a
security interest in Tenant's equipment, machinery, inventory, personal property
and trade fixtures and Landlord is executing simultaneously herewith a Landlord
Lien Waiver and Collateral Access Agreement waiving any and all contractual,
statutory or common law rights to Tenant's equipment, machinery, inventory,
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personal property and trade fixtures, whether or not the foregoing are movable,
and allowing Tenant's corporate lender to enter Leased Premises to hold a public
auction or private sale of the same. Landlord hereby agrees to execute a similar
document at any time in the future in favor of any new lender.
14. ALTERATIONS
Tenant shall have the right to make all non-structural alterations without
Landlord's approval, but Tenant will give Landlord notice of same. The Tenant
shall not make any structural alterations to the Leased Premises without the
written consent of the Landlord, such consent not to be unreasonably withheld or
delayed. If the Tenant shall desire to make any such alterations costing more
than $37,500, it shall furnish plans and specifications of the work to be so
performed together with a construction statement containing an estimate of the
cost of all labor and material included therein. Tenant agrees to obtain a
building permit from the city for any alterations where the same is required by
law. Tenant agrees that all such work shall be done in a good, workmanlike
manner, and in compliance with applicable building codes and all applicable
laws, including, without limitation, the American Disabilities Act, and that the
structural integrity of the Building shall not be impaired by any such
alterations. Tenant shall use diligent efforts to ensure that no liens shall
attach to the Building or Leased Premises by reason thereof. Tenant shall remove
any mechanic's or materialmen's liens arising from Tenant's alterations within
sixty (60) days of receiving notice of same. If Tenant does not remove any such
liens within sixty (60) days after Tenant receives notice of same, Landlord may,
at its option, pay such liens and recover the amount thereof plus reasonable
attorneys fees and costs from Tenant.
Any such alterations shall become the property of Landlord as soon as they are
affixed to the Leased Premises and all right, title and interest therein of the
Tenant shall immediately cease unless otherwise stated in writing. The Tenant
however, shall remain the owner of any installed fixtures used in the conduct of
Tenant's business, equipment, machinery, trade fixtures, personalty and
inventory and shall have the right to remove same at the expiration of this
Lease Agreement so long as damage to the Leased Premises and/or Building is
repaired.
15. COMPLIANCE WITH LAW
Landlord shall be responsible for the cost of compliance with all laws existing
on the date of the Lease with which the Leased Premises do not comply on the
date of the Lease, including alterations to the Leased Premises required by law
as a result of the existing operations or the existing use of the Leased
Premises, including, without limitation, the Americans with Disabilities Act of
1990. Subject to the foregoing, all alterations required to be made to Leased
Premises in order to comply with new laws or changes in law enacted or
promulgated after the date of the Lease (excluding Environmental Laws (as
hereinafter defined)) or alterations to the Leased Premises required by law as a
result of the Tenant's operations or use of the Leased Premises from and after
the date hereof should be amortized on a straight line basis over the usable
life of such alteration and Tenant shall be responsible only for the portion of
such cost attributable to the portion of the useful life falling within the
Lease Term and Landlord shall be
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responsible for the portion of such cost attributable to the portion of the
useful life falling outside the Lease Term. Any such alterations shall be made
by Landlord and Tenant shall reimburse Landlord monthly during the term of this
Lease for the portion of any such alteration (amortized on a straight line basis
over its useful life) attributable to such month.
Tenant shall not be required to incur any expense or liability in connection
with any circumstance, release of hazardous substances, violation of law or
other act or omission which occurred, or resulted in connection with any
environmental condition which was in existence, prior to the inception of this
Lease or which occurs during the term of this Lease but is not the result of any
act or omission of or on behalf of Tenant.
Tenant may contest and appeal any such laws, ordinances, orders, rules,
regulations or requirements, provided same is done with all reasonable
promptness and provided such appeal shall not subject Landlord to prosecution
for a criminal offense.
16. SIGNS
Tenant shall be entitled to exhibit any signage permitted by law and no signage
shall be located on the Leased Premises not approved by Tenant, in Tenant's sole
discretion.
17. ENTRY
Landlord, its agents, and its employees shall have the right to enter the Leased
Premises upon reasonable prior written notice at times convenient to Tenant to
inspect them, to make repairs, and to maintain the Leased Premises in accordance
with Landlord's obligations under this Lease. During the one hundred and eighty
(180) days prior to the expiration of the term, the Landlord or its agents may
exhibit the Leased Premises to prospective tenants.
18. SUBORDINATION
Landlord represents and warrants that it is the fee owner of the Leased
Premises. Landlord represents that there are no underlying leases, ground leases
or mortgages presently affecting the Leased Premises. Landlord shall deliver
non-disturbance agreement in favor of Tenant from all lessors under any future
underlying or ground leases and future holders of mortgages encumbering superior
leases or the Leased Premises. Provided that Landlord shall deliver to Tenant
non-disturbance agreements from the lessors under any underlying leases, ground
leases and the holders of any mortgages encumbering such superior leases or the
Leased Premises, then it is mutually agreed that this Lease shall be subordinate
to such mortgages and ground leases, including any renewals, modifications,
consolidations and extensions thereof now or hereafter recorded against the
Leased Premises by the Landlord. Tenant's right to quiet possession of the
Leased Premises shall not be disturbed if Tenant is not in Default and so long
as Tenant shall pay the Base and Additional Rents and observe and perform all of
the provisions of this Lease, unless this Lease is otherwise terminated pursuant
to its terms.
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19. NOTICES
All notices, consents, demands and requests which may be or are required to be
given by either party to the other, shall be in writing, and sent by United
States registered or certified mail, with return receipt requested, or by
Federal Express or other nationally recognized overnight courier, addressed to
the Tenant at the street address set forth in Paragraph 1, with a copy to: c/o
Kidd & Company, LLC, Three Pickwick Plaza, Greenwich, Connecticut 06830,
Attention: Richard J. Effress; and Parker Chapin Flattau & Klimpl, LLP, 1211
Avenue of the Americas, New York, New York 10036-8735, Attention: Edward R.
Mandell, Esq.; and to the Landlord in care of Aurora Development 6420 Zane
Avenue North, Brooklyn Park, MN 55428 or to such other address as Landlord may
direct in writing in the future.
The date of notice shall be five (5) days after said registered or certified
mail is deposited by the Landlord or Tenant with the post office or such earlier
date as the same is actually received, or the first business day after deposited
by Landlord or Tenant with Federal Express or other nationally recognized
overnight courier and such date shall be conclusively deemed to be the date on
which a notice, consent, demand, or request is given or made.
The above address or addresses of a party may be changed at any time or from
time to time by notice given by said party to the other party in the manner
herein above provided.
20. SHORT FORM LEASE
The parties hereto shall simultaneously herewith execute a short form of Lease
for recording purposes in the form customary in the State of Minnesota and
reasonably acceptable to each of the parties hereto.
21. LANDLORD ASSIGNMENT
The Landlord may assign its right, title and interest in this Lease, and such
assignment shall then terminate all the Landlord's obligations arising under
this Lease after the date of transfer so long as the Landlord is not in default
when such assignment is made and the assignee assumes the Landlord's
responsibilities thereafter.
22. OCCUPANCY
Anything to the contrary contained herein notwithstanding, Tenant shall be
entitled to immediate possession of the Leased Premises upon the execution of
this Lease subject to all the terms, covenants, provisions and conditions
contained herein.
If the Leased Premises are not surrendered and vacated as and at the time
required by this lease (time being of the essence) for any reason or cause
whatsoever (other than by reason of the acts of Tenant) including, without
limitation, the holding-over or retention of possession of any tenant,
undertenant or occupants, because of the fact that a Certificate of Occupancy
has not been
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procured, at Tenant's option (i) Tenant may terminate this Lease on ten (10)
business days notice, in which case all monies delivered by Tenant to Landlord
pursuant to the terms of this Lease, if any, shall immediately be returned or
(ii) Tenant may choose to reserve its right to subsequently terminate this
lease.
23. FIRE REPAIR
In the event of damage to the Leased Premises by fire, the elements or other
casualty, Landlord shall repair the damage to the extent proceeds are received
by Landlord under the policy of "all-risk" insurance carried by Tenant pursuant
to Article 9 with reasonable dispatch and shall pay the cost thereof. If the
damage renders the Leased Premises untenantable in whole Base Rent and
Additional Rent and all other amounts payable by Tenant under this Lease shall
abate and if the damage renders the Leased Premises untenantable in part but
Tenant continues to occupy them in part, the Base and Additional Rent and all
other amounts payable by Tenant under this Lease shall be reduced in a
proportionate and equitable manner. Landlord shall be entitled to all proceeds
of under the Loss of Rents coverage to be carried by Tenant pursuant to Article
9 of this Lease.
Within thirty (30) days of the occurrence of any casualty, Landlord will advise
Tenant in a written notice with regard to whether the proceeds received by
Landlord under the policy of "all-risk" insurance carried by Tenant pursuant to
Article 9 are adequate to repair the damage to the Leased Premises and the
reasonably estimated time necessary to complete the repair/restoration of the
Leased Premises together with evidence pertaining to each of the foregoing. In
the event that Landlord advises Tenant that the insurance proceeds are
inadequate to repair the Leased Premises or estimates the time to repair/restore
the Leased Premises will exceed one hundred eighty (180) days, Tenant may cancel
the Lease within fifteen (15) days of the delivery of the aforesaid notice.
Anything to the contrary contained in this Lease notwithstanding, in the event
the Leased Premises, or any part thereof, shall be damaged by fire or other
casualty, and Landlord shall not have repaired and restored the Leased Premises
within one hundred eighty (180) days after such fire or other casualty, then
Tenant shall have the option to terminate this Lease upon not less than thirty
(30) days written notice to Landlord unless such restoration and repair is
completed by Landlord with in such thirty (30) day period. In the event Tenant
shall exercise such option, the term of this Lease shall end and expire on the
date set forth in said notice as if such date were the date originally set for
the expiration of the term of this Lease.
Notwithstanding anything to the contrary herein, in the event that the Leased
Premises are substantially damaged or destroyed by casualty or eminent domain
during the last twelve (12) months of the Lease, Tenant may terminate this Lease
upon written notice to Landlord.
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24. QUIET ENJOYMENT
Tenant, upon payment of the Base and Additional Rent herein reserved and upon
performance of all of the terms, covenants and conditions of this Lease by it to
be kept and performed, shall at all times during the term hereof or during any
extension or renewal hereof, peaceably and quietly enjoy the Leased Premises
without any disturbance from Landlord or from any other person claiming through
Landlord. Upon expiration or sooner termination of the term hereof, Tenant shall
surrender the Leased Premises in good condition and repair, except for
reasonable wear and tear, condemnation and casualty.
25. HOLDING OVER
Tenant shall hold over the Leased Premises or any part thereof after the
expiration of the term hereof, or any extension thereof, such holding over shall
be construed only to be a tenancy from day to day subject to all of the
covenants, conditions and obligations hereof except that the Base Rent shall be
150% of the rent normally due. Nothing herein shall be construed to give Tenant
any rights to holdover and to continue in possession of the Leased Premises
after expiration of the term hereof.
26. OTHER PROVISIONS
The invalidity or unenforceability of any provisions hereof shall not effect or
impair the validity of any other provision. The headings herein are inserted
only for convenience and reference and shall have no substantive import. Where
necessary, the singular imports the plural and vice versa, and masculine,
feminine and neuter pronouns and expressions are interchangeable. The Lease
shall bind and inure to the benefit of the Landlord and Tenant, their respective
heirs, administrators, legal representatives, successors and assigns.
During the term of the Lease, Landlord's acceptance of an amount which is less
then the amount due at that time, will be deemed partial payment only, not
payment in full.
This Lease shall be governed by Minnesota Law.
One or more waivers of any provision by either party shall not be construed as a
waiver of subsequent breach of same. Failure to enforce or delay in enforcing
any right hereunder will not be construed as a waiver thereof. Each party
expressly (a) consents to the maintaining of any such action in any court of
competent subject matter jurisdiction, and (b) agrees that the mailing, with
postage pre-paid, registered or certified mail, of any complaint or other legal
to it, at either the address stated in this Lease for notice or any other
address where that party is then actually residing or doing business,
constitutes legally sufficient service of the same upon that party as of five
(5) days after the postmark date of the mailing or such earlier date as the same
is actually received, it being party's intent to waive in the event of such a
mailing, any insufficiency of
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service of process, lack of personal jurisdiction claim, or the like that might
otherwise arise from provisions of the law otherwise requiring a different form
of personal service.
Tenant hereby agrees that in the event of a purchase of the Leased Premises by
another party, Tenant will sign a Lease Estoppel Agreement, stating that this
Lease between Tenant and Landlord is in full force and effect and that all
covenants herein have been met, except that any uncompleted covenants should be
noted and listed on the Lease Estoppel Agreement.
27. RIGHT OF FIRST REFUSAL
Should Landlord at any time during the term of this Lease or any extension
thereof, receive an offer to purchase the Leased Premises, and Landlord desires
to accept said offer, Landlord shall give Tenant thirty (30) business days'
notice in writing of such offer setting forth the amount of the proposed
purchase price, and all other material terms and conditions of such offer, and
Tenant shall have the first option to purchase the Leased Premises which are the
subject of the offer, said option to be exercised by giving written notice to
Landlord within said thirty (30) business day period of Tenant's agreement and
intention to purchase at the same price and on the same terms of any such offer,
it being understood that in the event Tenant does not give notice of its
intention to exercise said option to purchase within said period and in the
manner provided and Landlord proceeds to sell the Leased Premises pursuant to
the terms and conditions set forth in Landlord's notice, this Lease and all of
its terms and conditions, excluding this Article, shall nevertheless remain in
full force and effect and the provisions of this Article shall be deemed null
and void and of no further force or effect. If Tenant does not exercise the
option to purchase hereunder and Landlord does not proceed to sell the Leased
Premises pursuant to the terms and conditions set forth in Landlord's notice,
the terms and provisions of this Article shall apply to any subsequent offer to
Landlord to purchase the Leased Premises which Landlord desires to accept.
28. HAZARDOUS MATERIALS
Tenant shall have no obligation to make any repairs, alterations or improvements
to the Leased Premises or incur any costs or expenses whatsoever as a result of
the existence of Hazardous Materials at the Leased Premises unless such
Hazardous Materials are placed on the Leased Premises as a result of the act of
Tenant, its employees, agents, representatives, contractors or vendors after the
date hereof. Landlord shall be solely responsible for any changes to the Leased
Premises relating to Hazardous Materials required by any present or future laws,
ordinances and regulations of any governmental authority, insurance carrier or
any similar body, unless such Hazardous Materials are placed on the Leased
Premises as a result of the act of Tenant, its employees, agents,
representatives, contractors or vendors after the date hereof.
In the event Tenant should desire to make any additions or improvements to the
Leased Premises and is forced to incur any identifiable charges or expenses
arising as a result of Hazardous Materials (not placed on the Leased Premises
after the date hereof as a result of the act of Tenant, its employees, agents,
representatives, contractors or vendors) in, on, under or at the
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Leased Premises and which would not have otherwise been incurred with respect to
such measures, Landlord shall be fully responsible for and shall reimburse
Tenant for such expenses. Base Rent, Additional Rent and all other amounts
payable by Tenant under this Lease shall abate if as a result of the presence of
any Hazardous Materials of the Leased Premises or any Hazardous Materials Claim
(not arising as a result of the act of Tenant, its employees, agents,
representatives, contractors or vendors after the date hereof), Tenant may not
use the Leased Premises for the conduct of Tenant's business.
Landlord shall indemnify and hold Tenant harmless on demand from and against all
liabilities, costs, damages and expenses which Tenant may incur (including,
without limitation, attorneys' and consultants' fees and disbursements) as the
result of the presence of Hazardous Materials (not placed on the Leased Premises
after the date hereof by the act of Tenant, its employees, agents,
representatives, contractors or vendors) or pursuant to any Environmental Law,
including, without limitation, claims, proceedings, enforcement, cleanups,
removals or other actions of any governmental entity or any third party against
or with respect to the Leased Premises relating to, arising out of or
attributable to the presence, use, generation, storage, release, threatened
release, discharge, transportation, or disposal of Hazardous Materials (not
placed on the Leased Premises after the date hereof as a result of the act of
Tenant, its employees, agents, representatives, contractors or vendors)
(collectively, "Hazardous Materials Claims"), or in enforcing the provisions of
--------------------------
this Article 28 and Tenant may offset all such liabilities, costs, damages and
expenses against Base Rent, Additional Rent and all other amounts payable by
Tenant under this Lease. The foregoing indemnity of Landlord in favor of Tenant
in this Article 28 shall be limited in its application to those items set forth
in Schedule 5.16 of the Asset Contribution and Exchange Agreement, dated as of
January 25, 1999, among Tenant, Kelco Industries, Inc., Landlord, individually
and as Trustee of the Paul D. Kelly 1997 Annuity Trust and Wayne A. Kelly (the
"Asset Agreement") in the same manner and extent as the indemnification
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obligations of Seller (as defined in the Asset Agreement) and the Shareholders
(as defined in the Asset Agreement) are limited in Section 12.4(a) of the Asset
Agreement with respect to items set forth on Schedule 5.16 of the Asset
Agreement; however, there shall be no time limit with respect to the
indemnification obligations of Landlord under this Lease. Except as limited in
the preceding sentence, there are no other limitations upon the indemnification
obligations of Landlord provided for in this Lease and the limitation in the
preceding sentence shall have no application to the indemnification obligations
of Landlord in their application to items not set forth in Schedule 5.16 of the
Asset Agreement.
As used in this agreement, (i) "Hazardous Material" means any contaminant,
pollutant or toxic or hazardous waste, effluent or other substance or material
which is subject to regulation under any Environmental Law or any License (as
defined in the Asset Agreement) or order relating thereto, including, without
limitation, any radioactive, explosive, flammable, corrosive or infectious
substance or material or any substance or material containing asbestos,
polychlorinated biphenyls, petroleum or urea formaldehyde, and (ii)
"Environmental Law" means any Law (as defined in the Asset Agreement) relating
to environmental protection, as the same is in effect on the date of this
agreement, including without limitation the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Section 6901 et seq., the Comprehensive Environmental
Response,
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Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., the
Clean Air Act, the Clean Water Act, the Toxic Substance Control Acts, OSHA, and
any comparable state or local law.
Tenant covenants to Landlord that Tenant will conduct its business activities at
or about the Leased Premises in a manner which complies with all applicable
Environmental Laws. Tenant shall indemnify and hold Landlord harmless from and
against all liabilities, costs, damages and expenses which Landlord may incur
(including, without limitation, reasonable attorneys' fees and disbursements)
arising from the presence of Hazardous Materials placed, released or generated
at the Leased Premises in violation of applicable Environmental Law as a result
of the act of Tenant, its employees, agents, representatives, contractors or
vendors after the date hereof.
29. BROKERAGE
Landlord and Tenant hereby represent and warrant each to the other that it has
not dealt with any broker in connection with the leasing of the Leased Premises
to Tenant and each agrees to indemnify and hold the other harmless from any
financial liability, cost or expense (including, without limitations, attorneys'
fees, disbursements and court costs) relating to the indemnifying party
breaching its warranty.
30. INDEMNITY
Landlord shall, and hereby does, protect, defend, save, indemnify and forever
hold harmless Tenant, along with Tenant's affiliates and the officers,
directors, employees and agents of each, from and against any and all claims,
demands, liabilities, fines, suits, actions, proceedings, orders, decrees,
judgments, losses, damages, costs and expenses (including, without limitation,
attorney's fees) arising out of or occurring in connection with: (i) any
negligent act or omission or misconduct of Landlord (or any of its agents,
employees, licensees or contractors); (ii) any breach by Landlord (or any of its
agents, employees, licensees or contractors) of any of Landlord's duties,
representations, warranties or covenants under this Lease; and (iii) occurrences
of injury to or death of any person, or damage to property, arising out of any
work, construction, reconstruction, restoration, maintenance or other work to be
done hereunder by Landlord. Tenant shall, and hereby does, protect, defend,
save, indemnify and forever hold harmless Landlord, from and against any and all
claims, demands, liabilities, fines, suits, actions, proceedings, orders,
decrees, judgments, losses, damages, costs and expenses (including, without
limitation, attorney's fees) arising out of or occurring in connection with: (i)
any negligent act or omission or misconduct of Tenant (or any of its agents,
employees, licensees or contractors); (ii) any breach by Tenant (or any of its
agents, employees, licensees or contractors) of any of Tenant's duties,
representations, warranties or covenants under this Lease; and (iii) occurrences
of injury to or death of any person, or damage to property, arising out of any
work, construction, reconstruction, restoration, maintenance or other work to be
done hereunder by Tenant.
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31. VIOLATIONS
Anything to the contrary contained in this Lease notwithstanding, Landlord shall
be responsible for the removal of record of any and all violations of record or
relating to conditions existing at the Leased Premises as of the commencement
date of the term of this Lease.
This instrument contains all of the agreements made between the parties and may
not be modified orally or in any manner other than by agreement in writing
signed by all parties to this Lease.
The signatories below warrant that they are duly authorized to enter into this
Lease representing the parties hereto.
32. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF LANDLORD
Landlord represents and warrants to Tenant that Landlord has received no
written notice of and has no knowledge of any pending, proposed, contemplated or
anticipated (i) annexation, condemnation, eminent domain or similar proceeding
affecting, or that may affect, all or any portion of the Leased Premises, (ii)
proceeding to change or redefine the zoning classification of all or any portion
of the Leased Premises, (iii) change in any applicable Laws relating to the use,
occupation or operation of the Leased Premises, or (vi) tax certiorari
proceeding with respect to any Leased Premises;
33. LANDLORD'S EXCULPATION
If Landlord shall fail to perform any covenant, term or condition of this Lease
upon Landlord's part to be performed, and if as a consequence of such default
Tenant shall recover a money judgment against Landlord, such judgment shall be
satisfied only out of Landlord's right, title and interest in the Leased
Premises. The term "Landlord's right, title and interest in the Leased Premises"
shall include (i) Landlord's equity interest therein, (ii) the rents, issues,
profits and income from the Leased Premises, (iii) the proceeds from the sale or
other disposition or refinancing of all or any portion of such interest, and
(iv) insurance proceeds or condemnation awards previously belonging to and
received by Landlord which are required, by the terms of this Lease, to be
applied to the restoration of the Leased Premises. The limitation of this
Article shall not apply to or limit any injunctive or other equitable,
---------------------------
declaratory or other forms of relief to which Tenant may be entitled
(notwithstanding that such actions are in personam in nature), which do not
-----------
involve the personal liability of Landlord, Landlord's affiliates (or any
successor landlord) hereunder for monetary damages from property other than
Landlord's right, title and interest in the Leased Premises as aforesaid.
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed the
day and year first above written.
Landlord Tenant
KELCO ACQUISITION LLC
/s/ Paul D. Kelly By: /s/ Richard J. Effress
- ---------------------------- ---------------------------------
PAUL D. KELLY Name: Richard J Efress
Title: Chairman
Date March 30, 1999 Date March 30, 1999
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EXHIBIT "A"
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Description
Lot 11, Block 1, Cooper's Industrial Park, according to the plot thereof on file
or of record in the office of the Registrar of Title in and for Hennepin County
Lot 12, Block 1, Cooper's Industrial Park, according to the plot thereof on file
or of record in the office of the Registrar of title in and for Hennepin County
LEASE AMENDMENT
This Lease Amendment is made and entered into this day of
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, 2002, by and between Canis Major Development Limited
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Partnership ("Landlord") and Kelco Acquisition LLC ("Tenant").
RECITALS:
WHEREAS, Paul D. Kelly, as predecessor to Landlord, and Tenant entered into
a Lease dated March 30, 1999 for the premises located at 6400-6420 Zane Avenue
North, Brooklyn Park, Minnesota 55428; and
WHEREAS, the parties wish to amend and clarify the Lease as hereafter
specifically provided,
NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions hereafter set forth, the parties agree as follows:
1. The term "Additional Rent" as used in paragraph 2 of the Lease and
elsewhere in the Lease, refers to all sums owed by Tenant to Landlord pursuant
to the Lease or owed by Tenant to third parties pursuant to the Lease. By way of
illustration, and not by limitation, the amount to be payable by Tenant as real
estate taxes, pursuant to paragraph 7 of the Lease, is Additional Rent as well
as the sums that are to be payable by Tenant pursuant to paragraph 8 for utility
services.
2. Paragraph 9 of the Lease is hereby amended in its entirety to read as
follows:
"9. INSURANCE.
The Tenant shall maintain in full force and effect during the term
hereof, a policy of public liability insurance. The minimum limits of
liability of such insurance shall be $2,000,000.00 combined single limit
for bodily injury and property damage, and will name Landlord as additional
insured. Proof of such insurance shall be made to Landlord upon Landlord's
request. In addition, during the term hereof, the Tenant shall carry, on
behalf of Landlord, a policy of casualty insurance against direct physical
damage to the buildings and improvements located on the Leased Premises,
including all leasehold improvements, on a replacement cost value basis
caused by "all-risks" perils subject to standard exclusions. Such policy of
property insurance shall name Landlord as the only insured. Tenant will
also provide Loss of Rents insurance on behalf of Landlord for the period
of one year from date of a covered loss which policy shall name Landlord as
the only insured. Such policy shall cover the loss as anticipated rental
income from Tenant's occupancy of the Leased Premises described in this
Lease including all charges, which are the legal obligation of the Tenant.
Tenant agrees to deliver annually, or within ten (10) days of the
Landlord's written request, a duplicate copy of said casualty insurance and
Loss of Rents policy. Such policies shall contain a provision requiring
thirty (30) days written notice to the Landlord before cancellation of the
policy can be effected. If Tenant so fails to deliver duplicate copies of
either one of such policies of such insurance to Landlord, Landlord may
obtain the same and the cost thereof shall be deemed Additional Rent owed
by Tenant to Landlord which Additional Rent shall be deemed due and payable
upon the written demand of Landlord.
Each insurance policy carried by either the Landlord or Tenant
covering the Leased Premises or its contents shall provide that the insured
party has relinquished all rights to recover against the other party for
loss or damage resulting from perils insured against by the policy.
Landlord and Tenant each hereby waive any claim based upon liability which
may arise against the other so far as the claim relates to loss or damage
to the Leased Premises or contents which is covered by insurance or
coverable under the aforementioned insurance policies."
3. The last sentence of paragraph 11 of the Lease is hereby amended in its
entirety to read as follows:
"The Landlord shall be specifically entitled to all awards for
condemnation, except in the case of awards made specifically for loss or
damage to Tenant's personal property or trade fixtures or Tenant's
relocation expenses."
4. Paragraph 23 of the Lease is hereby amended in its entirety to read as
follows:
"23. FIRE REPAIR.
In the event of damage to the Leased Premises by fire, the elements or
other casualty, Landlord shall repair the damage to the extent proceeds are
received by Landlord under the policy of "casualty" insurance to be
maintained on Landlord's behalf by Tenant or which is purchased by Landlord
pursuant to Article 9 with reasonable dispatch and shall pay the cost
thereof. If the damage renders the Leased Premises untenantable in whole
Base Rent and Additional Rent and all other amounts payable by Tenant under
this Lease shall abate and if the damage renders the Leased Premises
untenantable in part but Tenant continues to occupy them in part, the Base
and Additional Rent and all other amounts payable by Tenant under this
Lease shall be reduced in a proportionate and equitable manner. Landlord
shall be entitled to all proceeds under the Loss of Rents coverage or the
casualty coverage to be obtained by Tenant on Landlord's behalf pursuant to
Article 9 of this Lease.
Within thirty (30) days of the occurrence of any casualty, Landlord
will advise Tenant in a written notice with regard to whether the proceeds
received by
Landlord under the policy of "casualty" insurance to be paid for by Tenant
pursuant to Article 9 are adequate to repair the damage to the Leased
Premises and the reasonably estimated time necessary to complete the
repair/restoration of the Leased Premises together with evidence pertaining
to each of the foregoing. In the event that Landlord advises Tenant that
the insurance proceeds are inadequate to repair the Leased Premises or
estimates the time to repair/restore the Leased Premises will exceed one
hundred eighty (180) days, Tenant may cancel the Lease within fifteen (15)
days of the delivery of the aforesaid notice.
Anything to the contrary contained in this Lease notwithstanding, in
the event the Leased Premises, or any part thereof, shall be damaged by
fire or other casualty, and Landlord shall not have repaired and restored
the Leased Premises within one hundred eighty (180) days after such fire or
other casualty, then Tenant shall have the option to terminate this Lease
upon not less than thirty (30) days written notice to Landlord which notice
shall be given to Landlord within thirty (30) days of the end of such one
hundred eighty (180) day period unless such restoration and repair is
completed by Landlord within such thirty (30) day period. In the event
Tenant shall exercise such option, the term of this Lease shall end and
expire on the date set forth in said notice as if such date were the date
originally set for the expiration of the term of this Lease.
Notwithstanding anything to the contrary herein, in the event that the
Leased Premises are substantially damaged or destroyed or eminent domain
during the last twelve (12) months of the Lease, Tenant, within thirty (30)
days of such casualty, may elect to terminate this Lease upon written
notice to Landlord given within such thirty (30) day period."
. Except as provided for above, all of the remaining terms and conditions
of the Lease shall remain in full force and effect.
LANDLORD: TENANT:
Canis Major Development Kelco Acquisition LLC
Limited Partnership
By: By: /s/ Joseph Caffarelli
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Its: Its: SVP
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