Minnesota-Waseca-Northridge Plaza Shopping Center Lease - Engelsma LP and ADC Telecommunications Inc.
LEASE AGREEMENT
KRAUS-ANDERSON
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TABLE OF CONTENTS
ARTICLE DESCRIPTION PAGE
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1 Premises and Term . . . . . . . . . . . . . . . . . . . 1
2 Preparation of Leased Premises. . . . . . . . . . . . . 1
3 Minimum Rent. . . . . . . . . . . . . . . . . . . . . . 1
4 Percentage Rent . . . . . . . . . . . . . . . . . . . . 2
5 Sales Reports . . . . . . . . . . . . . . . . . . . . . 3
6 Common Areas and Common Area Expenditures . . . . . . . 3
7 Use . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8 Utilities . . . . . . . . . . . . . . . . . . . . . . . 5
9 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 5
10 Repairs . . . . . . . . . . . . . . . . . . . . . . . . 6
11 Installations, Alterations and Signs. . . . . . . . . . 6
12 Indemnity . . . . . . . . . . . . . . . . . . . . . . . 7
13 Insurance . . . . . . . . . . . . . . . . . . . . . . . 7
14 Fire or Other Casualty. . . . . . . . . . . . . . . . . 8
15 Eminent Domain. . . . . . . . . . . . . . . . . . . . . 8
16 Assignment and Subletting . . . . . . . . . . . . . . . 9
17 Access to Premises. . . . . . . . . . . . . . . . . . . 9
18 Remedies. . . . . . . . . . . . . . . . . . . . . . . . 9
19 Surrender of Possession . . . . . . . . . . . . . . . .10
20 Subordination . . . . . . . . . . . . . . . . . . . . .11
21 Notices . . . . . . . . . . . . . . . . . . . . . . . .11
22 Consents. . . . . . . . . . . . . . . . . . . . . . . .11
23 Merchants' Association. . . . . . . . . . . . . . . . .11
24 Offset Statement. . . . . . . . . . . . . . . . . . . .12
25 Title . . . . . . . . . . . . . . . . . . . . . . . . .12
26 General . . . . . . . . . . . . . . . . . . . . . . . .12
Signatures. . . . . . . . . . . . . . . . . . . . . . .14
EXHIBIT A Shopping Center Site Plan
EXHIBIT B Shopping Center Legal Description
EXHIBIT C Plans and Specifications
EXHIBIT D Additional Provisions
EXHIBIT E Sign Criteria
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KRAUS-ANDERSON
SHOPPING CENTER LEASE AGREEMENT
THIS LEASE, Made this 2nd day of August 19 93 , by and between
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Engelsma Limited Partnership, a Minnesota limited partnership at 523 South
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Eighth Street, Minneapolis, Minnesota 55404, sometimes hereinafter called
"LANDLORD", and ADC Telecommunications, Inc., a Minnesota corporation, at 4900
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W. 78th St., Minneapolis, Minnesota 55435 , hereinafter called "TENANT".
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ARTICLE 1
PREMISES AND SECTION 1. LANDLORD hereby leases to TENANT, and TENANT hereby
TERM: leases from LANDLORD, the store unit shown outlined in red on
Exhibit A, attached hereto and made a part hereof. (The premises
outlined in red are hereafter called the "leased premises" and
contain approximately 4,000 square feet.) Said store unit is
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situated in the City of Waseca , County of Waseca ,
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and State of Minnesota , located in the Northridge Plaza
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Shopping Center, which shopping center is located on land
legally described in Exhibit B attached hereto and made a part
of hereof. The shopping center name is subject to change by
LANDLORD.
SECTION 2. To Have And To Hold the leased premises unto TENANT
for a term of SEE EXHIBIT D years commencing on --- day of
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--- , 19 -- , and ending on the -- day of
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-- , unless sooner terminated as hereinafter
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provided.
SECTION 3. In the event the leased premises should not be ready
for occupancy or LANDLORD for any reason is unable to deliver
possession thereof by the commencement date of this lease,
LANDLORD shall not be liable nor responsible for any claims,
damages or liabilities in connection therewith or by reason
thereof and this lease shall remain in full force and effect.
TENANT shall not be liable for rent until LANDLORD delivers
possession of the leased premises to TENANT, but the term shall
not be extended by the delay.
ARTICLE 2
PREPARATION SECTION 1. TENANT takes and accepts the leased premises in their
OF LEASED "as is" condition. "As is" shall mean in tenantable condition so
PREMISES: that the lights, front and rear doors, HVAC, plumbing, water
heater, exhaust fans and roll gates (all as applicable) are in
working or operating condition. Taking of possession of the
leased premises by TENANT shall be conclusive evidence that the
leased premises were, on that date, in good, clean and
tenantable condition as represented by LANDLORD. TENANT
acknowledges that no representations as to the repair of the
leased premises or promises to alter, remodel or improve the
leased premises have been made by LANDLORD.
ARTICLE 3
MINIMUM RENT: SECTION 1. The fixed annual minimum rent shall be payable by
TENANT in equal monthly installments, on or before the first day
of each month in advance, at the office of LANDLORD or at such
other place designated by LANDLORD without prior demand
therefore. Said fixed annual minimum rent shall be Thirteen
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Thousand Three Hundred Twenty and No/100 Dollars
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($13,320.00) payable One Thousand One Hundred Ten and
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No/100 Dollars ($1,110.00) per month. Minimum
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rent for any partial month at the beginning of the lease term
shall be equitably prorated, and is payable on the commencement
date of the lease term.
SECTION 2. On execution of this lease, TENANT shall pay
$ 2,220.00 to LANDLORD. $ 1,110.00 of the sum shall be the
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minimum monthly rent due for the first full month of the term.
If TENANT is not in default of any of the provisions of this
Lease, $ 1,110.00 of the sum shall be applied toward the
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minimum monthly rent due for the last month of the term.
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SECTION 3. TENANT waives and disclaims any present or future
right to withhold any rent payment or other payment due under
this lease, or to set off any obligation of LANDLORD against any
such payment, however incurred, and agrees that it will not
claim or assert any right to so withhold or setoff.
SECTION 4. All rental and other sums payable hereunder by TENANT
which are not paid when due shall bear interest from the date
due to the date paid at the rate of eighteen percent (18%) per
annum or the highest rate permitted by law, whichever is less.
In addition to the above, TENANT shall pay LANDLORD a $25.00
service charge for all monthly minimum rent payments not paid by
the 10th day of the month for which they are payable. Said
$25.00 charge is a service charge to cover extra expense
involved in collecting and handling delinquent payments.
ARTICLE 4
(text deleted)
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ARTICLE 5
(text deleted)
ARTICLE 6
COMMON AREAS SECTION 1. The term "common areas" shall mean all that portion
AND COMMON of shopping center improvements excepting only that area which
AREA is constructed for lease to tenants or hereafter leased to
EXPENDITURES: tenants. LANDLORD has made no representation as to identity,
type, size or number of other stores or tenancies in the
shopping center, and LANDLORD reserves the unrestricted right to
change the design or size of the building, the driveways,
parking areas, and identity and type of other stores or
tenancies and add buildings and other structures provided only
that the size of the leased premises, reasonable access to the
leased premises and minimum parking facilities as required by
governmental authorities having jurisdiction, shall not be
substantially or materially impaired, subject to the provisions
of Article 15 hereof.
SECTION 2. LANDLORD grants to TENANT, its employees, customers
and invitees, the nonexclusive right during the term of this
lease to use the common areas from time to time constructed,
such use to be common with LANDLORD and all tenants of LANDLORD,
its and their employees, customers, and invitees. TENANT shall
not at any time interfere with the rights of LANDLORD and other
tenants, its and their employees, customers and invitees, to use
any part of the common areas. It is understood and agreed that
LANDLORD may contract for mutual easement rights with adjoining
landowners who shall thereafter along with their employees,
customers, and invitees use the common areas in common with
LANDLORD, TENANT and all tenants of LANDLORD, and their
employees, customers, and invitees to the extent of the
adjoining landowners' contract rights.
SECTION 3. LANDLORD agrees to manage, operate and maintain all
common areas and common facilities within the common areas of
the shopping center. The manner in which such areas and
facilities shall be maintained and the expenditures therefor
shall be at the sole discretion of LANDLORD, who shall have the
right to adopt and promulgate reasonable nondiscriminatory rules
and regulations, from time to time, including the right to
designate parking areas for the use of employees of tenants of
the shopping center and to restrict such employees from parking
areas designated exclusively for customers. Upon reasonable
request by LANDLORD, TENANT shall furnish a complete list of the
name of the TENANT's employees at the leased premises who have
automobiles and of the
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license numbers of their automobiles and the license numbers of
all motor vehicles operated by TENANT. LANDLORD shall have the
right to use portions of the common areas for the purpose of
displays, promotions, programs, games, or other uses which may
be of interest to all or part of the general public. LANDLORD
shall have the right to close portions of the common areas from
time to time for repairs, to prevent accruing of public rights
therein and for any other legitimate purpose.
SECTION 4. TENANT agrees to pay as additional rent TENANT's
proportionate share of all expenditures incurred by LANDLORD in
managing, maintaining, repairing, replacing, operating,
insuring, securing, lighting and cleaning the common areas
including, but not limited to, the cost of snow removal, line
and exterior painting, insurance of employees, traffic
regulation, security patrols and security guards for the entire
shopping center, replacement of paving, curbs, sidewalks,
landscaping, drainage, roof and lighting facilities, and
including the cost of heating and air conditioning the shopping
center enclosed mall and walkway areas, if any, (plus fifteen
percent (15%) of the total of the foregoing for overhead) in
monthly payments with the monthly rent payments. TENANT's
proportionate share of such costs shall be based on the
proportion the total square foot area on the ground floor in the
leased premises bears to the total square foot rentable area on
the ground floor in the shopping center. The monthly payments
may be based on LANDLORD's reasonable estimate of the costs
subject hereto made at the beginning of each lease year. At the
end of each lease year, LANDLORD shall furnish a statement of
all costs subject hereto and TENANT's share thereof certified to
by LANDLORD. If, at the end of any lease year, the amount paid
by TENANT is greater than its share as shown on said statement,
the excess shall be credited against the next rent payments due
hereunder. If at the end of any lease year, the amount paid by
TENANT is less than its share as shown on said statement, the
deficiency shall be payable with the next monthly minimum rent
payment due hereunder.
ARTICLE 7
USE: SECTION 1. The leased premises may be used for only office use
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for the development and engineering of devices in the
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telecommunications industry (subject always to the
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provisions of Section 2 of this Article 7) and for no other
purpose without the written consent of LANDLORD. TENANT agrees
to occupy the leased premises upon the commencement date of the
term hereof and to operate the entire leased premises during the
term of this lease unless prevented from doing so by strikes,
damage to the premises or other similar cause beyond the
TENANT's control, and to conduct its business at all times in
good faith, in a high grade and reputable manner. TENANT shall
conduct its business in the leased premises during the regular
customary days and hours for such type of business in the city
or trade area in which the shopping center is located. TENANT
shall promptly comply with all laws, ordinances and regulations
affecting the leased premises or TENANT's business therein, plus
insurance company requirements affecting the cleanliness,
safety, use and occupation of the leased premises.
SECTION 2. TENANT shall not, without LANDLORD's prior written
consent, conduct any auction, fire, closing-out or bankruptcy
sales in or about the leased premises nor obstruct the common
areas or use the same for business or display purposes, nor
abuse the building, other improvements, fixtures or personal
property constituting the shopping center (including, without
limitation, walls, ceilings, partitions, floors and wood, stone
and iron work), nor use plumbing for any purpose other than that
for which constructed, nor make or permit any noise or odor
objectionable to the public, to other occupants of the building
or the LANDLORD to emit from the leased premises; nor create,
maintain or permit a nuisance thereon; nor do any act tending to
injure the reputation of the shopping center; nor without
LANDLORD's prior written consent, place or permit any radio or
television antenna, loud speaker or sound amplifier, or any
phonograph or other devices similar to any of the foregoing
outside of the leased premises or at any place where the same
may be seen or heard outside of the leased premises; nor, where
loading and delivery facilities are provided, use or permit to
be used entrances for delivery or pick-up of merchandise or
supplies to or from the leased premises, or permit trucks or
other delivery vehicles while being used for any such purpose to
be parked at any place within the shopping center except such
facilities as are specifically provided for such purpose. TENANT
shall not permit any blinking or flashing light to emit from the
leased premises. TENANT shall keep the leased premises and
loading platform areas allowed for the use of TENANT, clean and
free from rubbish and dirt at all times, and shall store all
trash and garbage within the leased premises and will make the
same available for regular pick-up which TENANT will arrange at
the TENANT's expense. TENANT shall not burn any trash or garbage
at any time in or about the shopping center.
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SECTION 3. (text deleted)
SECTION 4. LANDLORD reserves the right, without liability to
TENANT, to refuse admission to the shopping center and the
leased premises outside ordinary business hours to any person
who is not known to any watchman in charge, or who is not
properly identified, to eject any person from the shopping
center whose conduct may be harmful to the safety and interest
of shopping center tenants or to close any part of the shopping
center during any riot or other commotion where person or
property may be imperiled.
SECTION 5. TENANT shall use the shopping center name as its
advertised address when referring to its business in the leased
premises in newspaper and other advertising. The right to use
such name for such purpose for the term of this lease is hereby
licensed by LANDLORD to TENANT. LANDLORD retains all property
rights in such name and TENANT shall not acquire or have any
rights in or to such name other than as are expressly granted by
LANDLORD in this Section 5 or otherwise in writing.
ARTICLE 8
UTILITIES: SECTION 1. TENANT shall pay for all heating, air conditioning,
electricity, gas, water and sewer charges used in the leased
premises throughout the term of this lease.
SECTION 2. If TENANT receives utilities through a meter which
utilities are also supplied to other tenants of the shopping
center, then TENANT shall pay to LANDLORD as additional rent a
sum equivalent to its proportionate share of the total utility
meter charge as TENANT'S portion thereof. TENANT shall pay
LANDLORD, as additional rent, along with TENANT'S payment of
monthly rent a sum equivalent to TENANT'S consumption of said
services as computed by LANDLORD.
SECTION 3. TENANT agrees to keep the air conditioning and
heating systems operating during business hours at levels
sufficient to satisfy the requirements of the leased premises
and that it will not at any time obtain or seek to obtain any
such conditioned or heated air by methods or means which would
draw such conditioned or heated air from the air conditioned and
heated shopping center enclosed mall and walkway areas, if any.
SECTION 4. LANDLORD shall not be liable in damages or otherwise
if the furnishings by LANDLORD or by any other supplier of any
utility or other service to the leased premises shall be
interrupted or impaired by fire, repairs, accident, or by any
causes beyond LANDLORD's reasonable control.
SECTION 5. In compliance with the Federal Energy Policy and
Conservation Act of 1975, LANDLORD has provided within the
leased premises a heating and air conditioning system capable of
maintaining a summer indoor condition of 78 DEG. F, and a winter
indoor condition of 65 DEG. F, such temperatures to be taken
approximately two (2) feet away from any wall.
ARTICLE 9
TAXES: SECTION 1. LANDLORD shall pay all real property taxes and
installments of special assessments payable therewith on the
shopping center land and improvements payable during the lease
term and rental taxes on rentals levied during the term hereof
upon the rentals from the leased premises. TENANT shall
reimburse LANDLORD for TENANT's share of such payments of real
property taxes and installments of special assessments. TENANT's
share of such costs shall be based on the ratio that the total
square foot floor area on the ground floor in the leased
premises bears to the total square foot rentable floor area on
the ground floor in the shopping center except buildings
separately taxed or assessed for which such taxes and
assessments are directly allocated to their tenants. TENANT
shall also reimburse LANDLORD for rental taxes, and gross
receipts taxes, if any, paid by LANDLORD on rentals from the
leased premises. One-twelfth of a full year's taxes,
installments of which are next payable, shall be payable on the
first day of each month and added to the monthly rental. This
amount may be based on LANDLORD's reasonable estimate until the
actual tax amounts are available and when available an
adjustment shall be made and any difference shall be payable
based on TENANT's actual share as determined. TENANT's share of
such taxes payable in the first and last calendar year of the
lease term shall be equitably prorated based on the portion of
the year included in the lease term. TENANT shall pay all
personal property and similar taxes on its property in the
leased premises.
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ARTICLE 10
REPAIRS: SECTION 1. LANDLORD shall keep the foundations, exterior walls
(except plate glass or glass or other special breakable
materials used in structural portions) and roof in good repair,
and (whether or not necessary or required by proper governmental
authority) make modifications or replacements thereof, except
that LANDLORD shall not be required to make any such repairs,
modifications or replacements which become necessary or
desirable by reason of the negligence of TENANT, its agents,
servants or employees.
SECTION 2. (text deleted)
SECTION 3. Except as provided in Section 1 and 2 of this
Article, the LANDLORD shall have the right at TENANT's cost and
expense but shall not be obliged to make repairs, replacements
or improvements of any kind upon the leased premises, or any
equipment, facilities or fixtures therein contained, including
heating and air conditioning equipment or other equipment
serving only the leased premises even if located outside the
leased premises, which at all times TENANT shall repair, replace
and keep in good order and in a clean, sanitary and safe
condition, ordinary wear and tear excepted, in accordance with
all applicable laws, ordinances and regulations of any
governmental authority having jurisdiction. If LANDLORD
exercises its rights pursuant to this Section 3, TENANT shall
reimburse LANDLORD for costs and expenses incurred hereunder
upon demand. TENANT shall permit no waste, damage or injury to
the leased premises.
SECTION 4. TENANT shall forthwith at its own cost and expense
replace with glass of the same quality any cracked or broken
glass, including plate glass or glass or other special breakable
materials used in structural portions, and any interior and
exterior windows and doors in the leased premises. If
specifically required by LANDLORD, TENANT shall maintain a
policy or policies in acceptable companies insuring LANDLORD and
TENANT, as their interests may appear, against breakage of all
such glass in the leased premises.
ARTICLE 11
INSTALLATIONS, SECTION 1. TENANT, at its own expense, shall purchase, install
ALTERATIONS and maintain in good condition its trade fixtures and floor
AND SIGNS: covering, and all interior wall coverings and decorating.
SECTION 2. TENANT shall not make any repairs, alterations or
additions to the leased premises or make any contract therefor
without first procuring LANDLORD's written consent and
delivering to LANDLORD the plans and specifications and copies
of the proposed contracts and necessary permits, and shall
furnish indemnification against liens, costs, damages and
expenses as LANDLORD may require. All alterations, additions,
improvements and fixtures, other than trade fixtures, which may
be made or installed by either of the parties hereto upon the
leased premises and which in any manner are attached to the
floors, walls or ceiling shall, at the termination of the lease,
become the property of LANDLORD, and shall remain upon and be
surrendered with the leased premises as a part thereof, without
damage or injury; any floor covering affixed to the floor or
track lighting affixed to the ceiling shall likewise become the
property of LANDLORD, all without compensation or credit to
TENANT. All fixtures installed by TENANT shall be new or
completely reconditioned. SEE EXHIBIT D.
SECTION 3. TENANT shall promptly pay all contractors and
materialmen, so as to avoid the possibility of a lien attaching
to the leased premises, and should any lien be made or filed,
TENANT shall bond against or discharge the same within ten (10)
days after written request by LANDLORD. Nothing in this lease
contained shall be construed as a consent on the part of the
LANDLORD so as to subject the LANDLORD's estate in the leased
premises to any lien or liability under the lien laws of the
State in which the leased premises are located.
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SECTION 4. Except to the extent permitted by LANDLORD's Sign
Criteria on Exhibit E hereto, TENANT shall not erect or install
any exterior window or door signs, advertising media or window
lettering or placards or other signs or install any interior
window or door signs, advertising media or window or door
lettering or placards or other signs without LANDLORD's prior
written consent. TENANT shall not install any exterior light or
plumbing fixtures, shades or awnings, or make any exterior
decoration or painting, or build any fence, or make any changes
to the store front without LANDLORD's prior written consent. Use
of roof is reserved to LANDLORD.
ARTICLE 12
INDEMNITY: SECTION 1. TENANT agrees to indemnify and save LANDLORD harmless
against any and all claims, demands, damages, costs and
expenses, including reasonable attorneys' fees, arising from the
conduct or management of the business conducted by TENANT or
from any breach or default on the part of TENANT in the
performance of any covenant or agreement on the part of TENANT
to be performed pursuant to the terms of this lease, or from any
act or negligence of TENANT, its agents, contractors, servants,
employees, sublessees, concessionaires or licensees, in or about
the leased premises or the common areas, the sidewalks adjoining
the same, and the loading platform area allocated to the use of
TENANT. LANDLORD shall not be liable and TENANT waives all
claims for damages to person or property sustained by TENANT or
TENANT's employees, agents, servants, contractors, sublessees,
concessionaires, invitees, and customers resulting from the
building in which the leased premises are located or by reason
of the leased premises or any equipment or appurtenances
thereunto appertaining becoming out of repair, or resulting from
any accident in or about the leased premises, the building in
which the same are situated or resulting directly or indirectly
from any act or neglect of any other tenant in the shopping
center. This shall apply especially, but not exclusively, to the
flooding of the leased premises, and to damage caused by steam,
excessive heat or cold, falling plaster, broken glass, sewage,
gas, odors or noise, or the bursting or leaking of pipes or
plumbing fixtures. All property belonging to TENANT or any
occupant of the leased premises or the shopping center shall be
there at the risk of TENANT or such person only, and LANDLORD
shall not be liable for damage thereto or theft or
misappropriation thereof.
ARTICLE 13
INSURANCE: SECTION 1. TENANT shall not carry any stock of goods or do
anything in or about the leased premises which shall in any way
tend to increase insurance rates on the leased premises or the
building in which the same are located without the consent of
LANDLORD. If LANDLORD shall consent to such use, TENANT agrees
to pay as additional rental any increase in premiums for
insurance resulting from the business carried on in the leased
premises by TENANT. If TENANT installs any electrical equipment
that overloads the power lines to the building, TENANT shall, at
its own expense, make whatever changes are necessary to avoid
such overload and to comply with the requirements of insurance
underwriters and insurance rating bureaus and governmental
authorities having jurisdiction.
SECTION 2. TENANT agrees to procure and maintain a policy or
policies of liability insurance, at its own cost and expense,
insuring LANDLORD and TENANT from all claims, demands, or
actions for injury or death sustained by one or more persons as
a result of any one occurrence in the amount of One Million
Dollars ($1,000,000), and for damage to property in an amount of
not less than One Hundred Thousand Dollars ($100,000) made by or
on behalf of any person or persons, firm or corporation arising
from, related to or connected with, the conduct and operation of
TENANT's business in the leased premises. Said insurance shall
not be subject to cancellation except after at least ten
(10) days' prior written notice to LANDLORD, and the policy or
policies, or duly executed certificate or certificates for the
same, shall be deposited with LANDLORD at the commencement of
the term and upon any renewal of said insurance not less than
thirty (30) days prior to the expiration of the term of such
coverage.
SECTION 3. LANDLORD may procure fire and extended coverage
(including coverage for rental loss in connection with damage
and destruction covered by the said fire and extended coverage
insurance) and other reasonably necessary insurance on the
shopping center. Such insurance shall be for the benefit of
LANDLORD and TENANT shall have no interest therein. TENANT shall
reimburse LANDLORD, monthly with its rental payments, for its
share of the actual net cost and expense to LANDLORD of such
insurance. TENANT's share of such costs shall be that fractional
part of the total of such costs as the total area of the leased
premises bears to the total rentable area of all buildings and
structures constituting part of this shopping center.
One-twelfth of the amount due shall be payable on the first day
of each month and added to the monthly rental. This amount may
be based on an estimate until the actual premiums are available
and when available an adjustment shall be made and any
difference shall be payable based on TENANT's actual share as
determined.
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SECTION 4. TENANT shall maintain at its own cost and expense,
fire and extended coverage, vandalism, malicious mischief and
special extended coverage insurance in an amount adequate to
cover the cost of replacement of all alterations, changes, wall
coverings, floors, furnishings, decorations, additions, fixtures
and improvements in the leased premises in the event of a loss,
in companies and in form acceptable to LANDLORD. The insurance
which the TENANT agrees to carry in this Section shall insure
the full insurable value of the improvements and betterments
installed by the TENANT in the leased premises, whether the same
have been paid for entirely or partially by TENANT. TENANT will
further deposit the certificate thereof with LANDLORD.
SECTION 5. If TENANT fails to comply with the requirements of
this Article 13, LANDLORD may obtain such insurance and keep the
same in effect and TENANT shall pay LANDLORD the premium costs
thereof on demand.
ARTICLE 14
FIRE OR SECTION 1. In case the shopping center shall be partially or
OTHER totally destroyed by any fire or other casualty so as to become
CASUALTY: partially or totally untenantable, the same shall be repaired at
the expense of LANDLORD, (unless LANDLORD shall elect not to
rebuild, as hereinafter provided), and the rent shall abate
until the leased premises are repaired and the extent to which
the leased premises are untenantable. SEE EXHIBIT D.
SECTION 2. In case the shopping center buildings, including
common areas, shall be destroyed or so damaged by fire or other
casualty as to render more than fifty percent (50%) thereof
untenantable, or if the unexpired term of this lease is two (2)
years or less on the date of any substantial destruction or
damage, then LANDLORD may, if it so elects by notice in writing
within thirty (30) days after such destruction or damage,
terminate this lease. The above shall apply whether or not any
part of the leased premises is damaged or destroyed. LANDLORD's
obligation to repair or rebuild pursuant to this Article shall
be limited to a basic building and the replacement of any
interior work which may have originally been installed at
LANDLORD's cost. In no event in the case of any such destruction
shall LANDLORD be required to repair or replace TENANT's stock
in trade, leasehold improvements, fixtures, furniture,
furnishings or floor coverings and equipment. TENANT covenants
to make such repairs and replacements and to furnish LANDLORD,
on demand, evidence of insurance assuring its ability to do so.
ARTICLE 15
EMINENT SECTION 1. If the whole of the leased premises shall be taken
DOMAIN: under the power of eminent domain, then the term of this lease
shall cease as of the day possession shall be taken and the rent
shall be paid up to that date.
SECTION 2. In the event more than ten percent (10%) of the land
area in the shopping center is so taken, the LANDLORD shall have
the right to terminate this lease at the time and with the rent
adjustment as provided in Section 1 by giving TENANT written
notice of termination within sixty (60) days after the taking of
possession by such public authority.
SECTION 3. If any of the floor area of the leased premises or
forty percent (40%) or more of the parking area shall be so
taken, then LANDLORD or TENANT shall have the right either to
terminate this lease, or, subject, in the case of TENANT, to
LANDLORD's rights of termination as set forth in this Article,
to continue in possession of the remainder of the leased
premises upon notice in writing to the other party hereto within
thirty (30) days after such taking of possession. In the event
this lease is not terminated, all of the terms herein provided
shall continue in effect except that the rent shall be equitably
abated as to any portion of the leased premises so taken and
LANDLORD shall make all necessary repairs or alterations to the
extent provided in Article 14, Section 2 of this lease.
SECTION 4. All damages awarded for such taking under the power
of eminent domain, whether for the whole or a part of the leased
premises, shall be the property of LANDLORD, whether such
damages shall be awarded as compensation for diminution in value
of the leasehold or to the fee of the leased premises; provided,
however, that LANDLORD shall not be entitled to any separate
award made to TENANT for loss of business, depreciation of or
cost of removal of stock and fixtures.
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ARTICLE 16
ASSIGNMENT SECTION 1. TENANT shall not assign or in any manner transfer
AND SUBLETTING: this lease or any interest therein, nor sublet said leased
premises or any part or parts thereof, nor permit occupancy by
anyone without the prior written consent of LANDLORD. Consent by
LANDLORD to one or more assignments of this lease or to one or
more sublettings of the leased premises shall not operate as a
waiver of LANDLORD's rights under this Article. No assignment
shall release TENANT of any of its obligations under this lease
or be construed or taken as a waiver of any of LANDLORD's rights
hereunder. For the purposes hereof, if TENANT is a corporation
or partnership or other entity, any change in the ownership of
TENANT shall be deemed to be an assignment which shall require
LANDLORD's consent as above set forth. The acceptance of rent
from someone other than TENANT shall not be deemed to be a
waiver of any of the provisions of this lease or consent to any
assignment or subletting of the leased premises. SEE EXHIBIT D.
SECTION 2. TENANT agrees not to change the advertised name of
the place of business operated in the leased premises, which
name shall be ADC Kentrox without prior consent of LANDLORD.
-----------
SECTION 3. Neither this lease nor any interest therein, shall
pass to any trustees or receiver in bankruptcy, or any assignee
for the benefit of creditors, or by operation of law.
ARTICLE 17
ACCESS TO SECTION 1. LANDLORD shall have the right to enter upon the
PREMISES: leased premises during all business hours for the purpose of
inspecting the same or of making repairs, additions or
alterations thereto or to the building in which the same are
located, or for the purpose of exhibiting the same to
prospective tenants, purchasers or others. LANDLORD's exercise
of such right shall not be deemed an eviction or disturbance of
TENANT's use or possession.
ARTICLE 18
REMEDIES: SECTION 1. LANDLORD may terminate TENANT's estate herein demised
and TENANT's right to possession hereunder upon the failure of
TENANT to pay an installment of rent when due or to perform any
other of its covenants under this lease and the continuance of
such default for thirty (30) days (ten (10) days in the case of
the payment of rent or other monetary obligations of TENANT
hereunder) after written notice to TENANT.
SECTION 2. If, at any time during the term of this lease (a) the
TENANT shall file in any court a petition in bankruptcy or
insolvency or for reorganization, or for arrangement or for the
appointment of a receiver or trustee of all or a portion of the
TENANT's property, or (b) an involuntary petition of any kind
referred to in Subdivision (a) of this Section shall be filed
against the TENANT, and such petition shall not be vacated or
withdrawn within thirty (30) days after the date of filing
thereof, or (c) if the TENANT shall make an assignment for the
benefit of creditors, or (d) if the TENANT shall be adjudicated
a bankrupt, or (e) a receiver shall be appointed for the
property of the TENANT by order of a court of competent
jurisdiction (except where such receiver shall be appointed in
an involuntary proceeding, if he shall not be withdrawn within
thirty (30) days from the date of appointment), TENANT's estate
and right to possession hereunder shall terminate ipso facto
upon the happening of any one of such events, and the TENANT
shall then quit and surrender the leased premises to the
LANDLORD, but the TENANT shall remain liable as hereinafter
provided.
SECTION 3. Upon the termination of the estate as aforesaid, the
LANDLORD may re-enter the leased premises by any lawful means,
and remove all persons and chattels therefrom and LANDLORD shall
not be liable for damages or otherwise by reason of lawful
re-entry or termination. Notwithstanding such termination, the
liability of TENANT for the rent provided for hereinabove shall
not be extinguished for the balance of the term remaining after
said termination.
Should termination of TENANT's estate as herein provided, or
should LANDLORD take possession pursuant to legal proceedings or
pursuant to any notice provided for by law, it may either
terminate this lease or it may from time to time without
terminating this lease, make such alterations and repairs as may
be necessary in order to relet the premises, and relet said
premises or any part thereof for such term or terms (which may
be for a term extending beyond the term of this lease) and at
such rental or rentals and upon such other terms and conditions
as LANDLORD in its sole discretion may deem advisable; upon each
such reletting all rentals received by the
9
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LANDLORD from such reletting shall be applied, first, to the
payment of any indebtedness other than rent due hereunder from
TENANT to LANDLORD; second, to the payment of any costs and
expenses of such reletting, including brokerage fees and
attorneys' fees and of costs of such alterations and repairs;
third, to the payment of rent due and unpaid hereunder, and the
residue, if any, shall be held by LANDLORD and applied in
payment of future rent as the same may become due and payable
hereunder.
If such rentals received from such reletting during any month be
less than that to be paid during that month by TENANT hereunder,
TENANT shall pay any such deficiency to LANDLORD. Such
deficiency shall be calculated and paid monthly. No such
re-entry or taking possession of said premises by LANDLORD shall
be construed as an election on its part to terminate this lease
unless a written notice of such intention be given to TENANT or
unless the termination thereof be decreed by a court of
competent jurisdiction.
Notwithstanding any such reletting without termination, LANDLORD
may at any time thereafter elect to terminate this lease for
such previous breach. Should LANDLORD at any time terminate this
lease for any breach, in addition to any other remedies it may
have, it may recover from TENANT all damages it may incur by
reason of such breach, including the cost of recovering the
leased premises, reasonable attorneys' fees, and including the
worth at the time of such termination of the excess, if any, of
the amount of rent and charges equivalent to rent reserved in
this lease for the remainder of the stated term over the then
reasonable rental value of the leased premises for the remainder
of the stated term, all of which amounts shall be immediately
due and payable from TENANT to LANDLORD.
SECTION 4. In the event of any breach hereunder by TENANT,
LANDLORD may immediately or at any time thereafter, without
notice, cure such breach for the account and at the expense of
TENANT. If LANDLORD at any time by reason of such breach, is
compelled to pay, or elects to pay, any sum of money or do any
act which will require the payment of any sum of money, or is
compelled to incur any expense, including reasonable attorneys'
fees, the sum or sums so paid by LANDLORD, with interest thereon
at the rate of eighteen percent (18%) per annum or the highest
rate permitted by law, whichever is less, from the date of
payment thereof, shall be deemed to be due from TENANT to
LANDLORD on the first day of the month following the payment of
such respective sums or expenses.
SECTION 5. LANDLORD is hereby given a lien upon all property of
TENANT which shall come in or be placed upon the leased premises
and whether acquired by TENANT before or after the date hereof
to secure the payment of rent and the performance of each and
every covenant herein contained to be performed by TENANT. Upon
default by TENANT, and failure to cure as provided in Section 1
of this Article, LANDLORD, with notice or demand, may take
possession of and sell such property with legal process at
public or private sale after one publication of a notice thereof
in a daily newspaper published in the county where the leased
premises are situated, not less than ten (10) days before such
sale or by giving minimum notices required by law. The proceeds
of any such sale shall be applied first to the payment of
expenses thereof, second to the discharge of the rent or other
liability hereunder unpaid, and the balance, if any, shall be
held for the account of the TENANT. TENANT agrees to execute and
record any financing statements and other documents necessary to
perfect of record the lien herein granted.
SECTION 6. Should LANDLORD be in default under the terms of this
lease, LANDLORD shall have reasonable and adequate time in which
to cure the same after written notice to LANDLORD by TENANT.
SECTION 7. TENANT hereby expressly waives, to the full extent
waivable, any and all rights or redemption granted by or under
any present or future laws in the event of TENANT being evicted
or dispossessed for any cause, or in the event of LANDLORD
obtaining possession of the leased premises, by reason of the
violation by TENANT of any of the covenants or conditions of
this lease, or otherwise.
ARTICLE 19
SURRENDER OF SECTION 1. At the expiration of the lease term, whether by lapse
POSSESSION: of time or otherwise, TENANT shall surrender the leased premises
broom clean and in good condition and repair, reasonable wear
and tear and loss by fire or unavoidable, insurable casualty
excepted. If the leased premises are not surrendered at the end
of the term or the sooner termination thereof, TENANT shall
indemnify LANDLORD against loss or liability resulting from
delay by TENANT in so surrendering the premises. TENANT shall
promptly surrender all keys for the leased premises to
10
<PAGE>
LANDLORD at the place then fixed for payment of rent.
SECTION 2. In the event TENANT remains in possession of the
leased premises after the expiration of the tenancy created
hereunder with the consent of LANDLORD and without execution of
a new lease, it shall be deemed to be occupying the leased
premises as a tenant from month to month, at twice the minimum
rent, subject to all the other conditions, provisions and
obligations of this lease insofar as the same are applicable to
a month-to-month tenancy.
SECTION 3. Upon the expiration of the tenancy hereby created, if
LANDLORD so requires in writing, TENANT shall promptly remove
any alterations, additions, improvements and fixtures other than
trade fixtures placed in the leased premises by TENANT and
designated in said request, and repair any damage occasioned by
such removals at TENANT's expense, and in default hereof.
LANDLORD may effect such removals and repairs, and TENANT shall
pay LANDLORD the cost thereof, with interest at the rate of
eighteen percent (18%) per annum, or the highest rate permitted
by law whichever is less, from the date of payment by LANDLORD.
ARTICLE 20
SUBORDINATION: SECTION 1. TENANT agrees that this lease shall be subordinate to
any mortgages or trust deeds that may hereafter be placed upon
said leased premises and to any and all advances to be made
thereunder, and to the interest thereon, and all renewals,
replacements and extensions thereof provided that the mortgagee
or trustee thereunder shall agree to recognize TENANT's rights
hereunder as long as TENANT is not in default hereunder. TENANT
further agrees that upon notification by LANDLORD to TENANT,
this lease shall be or become prior to any mortgages or trust
deeds that may heretofore or hereunder be placed on the said
leased premises. TENANT shall execute and deliver whatever
instruments may be required for the above purposes, and failing
to do so within ten (10) days after demand in writing, does
hereby make, constitute and irrevocably appoint LANDLORD as its
attorney-in-fact and in its name, place and stead so to do.
TENANT shall in the event of the sale or assignment of
LANDLORD's interest in the building of which the leased premises
form a part, or in the event of any proceedings brought for the
foreclosure of, or in the event of exercise of the power of sale
under any mortgage made by LANDLORD covering the leased
premises, attorn to the purchase and recognize such purchaser as
LANDLORD under this lease.
SECTION 2. TENANT shall, upon demand, in the event any
proceedings are brought for the foreclosure of, or in the event
of an exercise of power of sale under any mortgage, trust deed,
or other financing investment, made by the LANDLORD covering the
leased premises, attorn in writing to the purchaser upon any
such foreclosure of sale and recognize such purchase as the
LANDLORD under the lease.
ARTICLE 21
NOTICES: SECTION 1. Whenever under this lease provision is made for
notice of any kind, such notice shall be in writing and shall be
deemed sufficient to TENANT if actually delivered to TENANT or
sent by registered or certified mail, return receipt requested,
postage prepaid, to the last Post Office address of TENANT
furnished to LANDLORD for such purpose, or to the leased
premises; and to LANDLORD if actually delivered to LANDLORD or
if sent by registered or certified mail, return receipt
requested, postage prepaid, to the LANDLORD at the address
furnished for such purpose, or to the place then fixed for the
payment of rent. If the holder of record of any mortgage or
ground lessor's interest covering the leased premises shall have
given prior written notice to TENANT that it is the holder of
said mortgage or lessor's interest and such notice includes the
address at which notices to such mortgagee or ground lessor are
to be sent, then TENANT agrees to give to such party or parties
notice simultaneously with any notice given to LANDLORD to
correct any default of LANDLORD as hereinabove provided and
agrees that such party or parties shall have the right within
thirty (30) days after receipt of said notice, to correct or
remedy such default before TENANT may take any action under this
lease by reason of such default.
ARTICLE 22
CONSENTS: SECTION 1. The parties agree that whenever under this lease
provision is made for securing the written consent, permission
or approval of either that such written consent, permission or
approval shall not be unreasonably withheld or delayed.
ARTICLE 23
(text deleted)
11
<PAGE>
ARTICLE 24
OFFSET SECTION 1. Within ten (10) days after request therefor by
STATEMENT: LANDLORD, TENANT shall provide an offset statement in recordable
form to any proposed mortgagee or purchaser, or to LANDLORD,
certifying (if such be the case) that this lease is in full
force and effect and there are no defenses or offsets thereto,
or stating those claimed by TENANT and certifying to such other
matters as such party shall reasonably require. In the event
TENANT should refuse to execute and deliver said statement
and/or certificate, LANDLORD shall have the right to, as
attorney-in-fact for TENANT, make such a statement, TENANT
hereby constituting and irrevocably appointing LANDLORD its
attorney-in-fact for such purpose. LANDLORD's mortgage lenders
and purchasers shall be entitled to rely upon any statement so
executed pursuant to t his Article 24.
ARTICLE 25
TITLE: SECTION 1. LANDLORD covenants that it has full right and
authority to enter into this lease for the full term hereof.
LANDLORD further covenants that TENANT, upon performing the
covenants and agreements of this lease to be performed by said
TENANT, will have, hold and enjoy quiet possession of the leased
premises.
ARTICLE 26
GENERAL: SECTION 1. RELATIONSHIP OF PARTIES. Nothing contained herein
shall be deemed or construed by anyone as creating the
relationship of principal and agent or of partnership or of
joint venture between the parties hereto.
SECTION 2. CUMULATIVE REMEDIES AND NON-WAIVER. The various
rights and remedies contained in this lease shall not be
considered as exclusive of any other right or remedy, but shall
be construed as cumulative and shall be in addition to every
other remedy now or hereafter existing at law, in equity, or by
statute. No delay or omission of the right to exercise any power
by either party shall impair any such right or power, or shall
be construed as a waiver of any default or as acquiescence
therein. One or more waivers of any covenant, term or condition
of this lease by either party shall not be construed by the
other party as a waiver of a subsequent breach of the same
covenant, term or condition. The consent or approval by either
party to or of any act by the other party of a nature requiring
consent or approval shall not be deemed to waive or render
unnecessary consent to approval of any subsequent similar act.
SECTION 3. HEADINGS. The headings of the several articles
contained herein are for convenience only and do not define,
limit or construe the contents of such articles.
12
<PAGE>
SECTION 4. BINDING EFFECT OF LEASE. The covenants, agreements
and obligations herein contained, except as herein otherwise
specifically provided, shall extend to, bind and inure to the
benefit of the parties hereto and their respective personal
representatives, heirs, successors and assigns. LANDLORD, at any
time and from time to time may make an assignment of its
interest in this lease, and, in the event of such assignment and
the assumption by the assignee of the covenants and agreements
to be performed by LANDLORD herein, LANDLORD and its successors
and assigns (other than the assignee of this lease) shall be
released from any and all liabilities hereunder.
SECTION 5. FORCE MAJEURE. SEE EXHIBIT D.
SECTION 6. RECORDING OF LEASE. TENANT shall not record this
lease without the written consent of LANDLORD. SEE EXHIBIT D.
SECTION 7. ACCEPTANCE OF PAYMENT. No payment by TENANT or
receipt by LANDLORD of a lesser amount than the amount then due
under this lease shall be deemed to be other than on account of
the earliest portion thereof due, nor shall any endorsement or
statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfaction, and LANDLORD may
accept such check or payment without prejudice to LANDLORD's
right to recover the balance due or pursue any other remedy in
this lease provided.
SECTION 8. NO BROKERAGE. Each of the parties represents and
warrants that there are no claims for brokerage commissions or
finder's fees in connection with the execution of this lease,
except as listed below, and each of the parties agrees to
indemnify the other against, hold it harmless from, all
liabilities arising from any such claim for which such party is
responsible (including, without limitation, the cost of counsel
fees in connection therewith) except as follows.
SECTION 9. UNENFORCEABILITY. Unenforceability of any provision
contained in this lease shall not affect or impair the validity
of any other provision of this lease.
SECTION 10. GOVERNING LAW. The laws of the state in which the
shopping center is located shall govern the validity,
performance and enforcement of this lease.
SECTION 11. ADDITIONAL PROVISIONS. Additional provisions, if
any, are set forth on the attached Exhibit D, which is by
reference made a part hereof.
SECTION 12. EXHIBITS ATTACHED. The following exhibits are part
of this lease agreement: Exhibit A, Shopping Center Site Plan;
Exhibit B, Shopping Center Legal Description; Exhibit C, Plans
and Specifications; Exhibit D, Additional Provisions; and
Exhibit E, Sign Criteria, if any. All said Exhibits are hereby
incorporated herein by reference and are construed as a part of
this lease.
SECTION 13. JOINT AND SEVERAL LIABILITY. In the event that two
or more individuals, corporations, partnerships or other
entities (or any combination of two or more thereof) shall sign
this lease agreement as TENANT, the liability of each such
individual, corporation, partnership or other entity to perform
all obligations hereunder shall be deemed to be joint and
several. In like manner, in the event that the TENANT named in
this lease agreement shall be a partnership or other business
association, the members of which are, by virtue of statute, or
general law, subject to personal liability, then and in that
event, the liability of each such member shall be deemed to be
joint and several.
SECTION 14. RIGHT TO REPAIR. LANDLORD shall have the right to
install, maintain, use, repair and replace pipes, ducts,
conduits, and wires leading through the leased premises and
serving other parts of the building in locations which will not
materially interfere with the TENANT's use thereof.
SECTION 15. TENANT'S CONFLICTS. TENANT hereby covenants,
warrants and represents that by executing this lease and by the
operation of the leased premises under this lease, it is not
violating, has not violated and will not be violating any
restrictive covenant or agreement contained in any other lease
or contract affecting the TENANT or any affiliate, associate or
any other person or entity with whom or with which TENANT is
related or
13
<PAGE>
connected financially or otherwise. TENANT hereby covenants and
agrees to indemnify and save harmless LANDLORD any future owner
of the fee or any part thereof, and any mortgagee thereof
against and from all liabilities, obligations, damages,
penalties, claims, costs and expenses, including attorneys'
fees, paid, suffered or incurred by them or any of them as a
result of any breach of the foregoing covenant. TENANT's
liability under this covenant extends to the acts and omissions
of any sub-tenant, and any agent, servant, employee or licensee
of any sub-tenant of TENANT.
SECTION 16. WAIVER OF SUBROGATION. Anything in this lease to the
contrary notwithstanding, LANDLORD and TENANT each hereby waives
any and all rights of recovery, claim, action or
cause-of-action, against the other, its agents (including
partners, both general and limited), officers, directors,
shareholders or employees, for any loss or damage that may occur
to the leased premises, or any improvements thereto, or said
shopping center of which the leased premises are a part, or any
improvements thereto, or any property of such party therein, by
reason of fire, the elements, or any other cause which could be
insured against under the terms of standard fire and extended
coverage insurance policies, regardless of cause or origin,
including negligence of the other party hereto, its agents,
officers or employees, and covenants that no insurer shall hold
any right of subrogation against such other party.
SECTION 17. EXECUTION OF LEASE BY LANDLORD AND LANDLORD'S
EXCULPATION. The submission of this document for examination and
negotiation does not constitute an offer to lease, or a
reservation of, or option for, the leased premises and this
document becomes effective and binding only upon the execution
and delivery hereof by LANDLORD and TENANT. All negotiations,
considerations, representations and understandings between
LANDLORD and TENANT are incorporated herein and may be modified
or altered only by agreement in writing between LANDLORD and
TENANT and no act or omission of any employee or agent of
LANDLORD or of LANDLORD's broker shall alter, change, or modify
any of the provisions hereof. Further, if the LANDLORD or any
successor in interest shall be an individual, joint venture,
tenancy in common, firm, or partnership, general or limited,
there shall be no personal liability on such individual or on
the members of such joint venture, tenancy in common, firm, or
partnership or on such joint venture, tenancy in common, firm,
or partnership, in respect to any of the covenants or conditions
of this lease, and in the event of any default or breach by
LANDLORD with respect to any of the terms, covenants and
conditions of this lease to be observed, honored or performed by
LANDLORD, TENANT shall look solely to the estate and property of
LANDLORD in the land and buildings owned by LANDLORD comprising
the shopping center for the collection of any judgment (or any
other judicial procedures requiring the payment of money by
LANDLORD) and no other property or assets of LANDLORD shall be
subject to levy, execution, or other procedures for satisfaction
of TENANT's remedies.
IN WITNESS WHEREOF, LANDLORD and TENANT have signed and sealed this lease as of
the day and year first above written.
ENGELSMA LIMITED PARTNERSHIP ADC TELECOMMUNICATIONS, INC. a Minnesota
corporation
By /s/ Lloyd Engelsma By /s/ W.C. Hamer
------------------------------- -------------------------------
Its General Partner Its Vice President, Chief
----------------------------- Technical Officer
-----------------------------
And
------------------------------
Its
-----------------------------
LANDLORD TENANT
14
<PAGE>
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 2nd day of August,
--- ------
1993, by Lloyd Engelsma, the General Partner of Engelsma Limited Partnership, a
-- -------------- --------------- ----------------------------
Minnesota limited partnership on behalf of the corporation. [LANDLORD]
-----------------------------
/s/ Victoria J. Pease
----------------------------
Victoria J. Pease
NOTARY PUBLIC - MINNESOTA
HENNEPIN COUNTY
My commission expires 3-8-95
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 30th day of July,
---- ----
1993, by William C. Hamer, the Vice President and Chief Technical Officer of
-- ---------------- -------------- -----------------------
ADC Telecommunications, Inc., a Minnesota corporation, on behalf of the
---------------------------- ---------
corporation. [TENANT]
/s/ JUDITH G. PANKRATZ
----------------------------
JUDITH G. PANKRATZ
NOTARY PUBLIC - MINNESOTA
HENNEPIN COUNTY
My commission expires July 29, 1997
15
<PAGE>
EXHIBIT A
NORTHRIDGE SHOPPING CENTER
highway 13 & 17th avenue n.e. waseca, minnesota
[MAP]
<PAGE>
EXHIBIT B
SHOPPING CENTER LEGAL DESCRIPTION
Block 2, North Ridge, County of Waseca, State of Minnesota, except the
following:
Beginning at the Northeast corner of Block 2; thence South 0 DEG. 20'30" East,
assumed bearing, 342.86 feet along the east line of said Block 2; thence South
89 DEG. 40'13" West 175 feet along a line parallel with the North line of said
Block 2; thence North 00 DEG. 20'30" West 342.86 feet to the North line of said
Block 2; thence North 89 DEG. 40'13" East 175 feet to beginning. Containing
1.38 acres, or 60,000.5 square feet, more or less. Subject to easements and
restrictions of record, if any; and
except the following:
Commencing at the Southwest corner of Block 2, North Ridge (point of beginning);
thence North 00 DEG. 00'01" West, assumed bearing 127.97 feet along the West
line of said Block 2, thence South 89 DEG. 59'59" West 15 feet along the
boundary line of said Block 2; thence North 00 DEG 00'01" West 12.16 feet along
the West line of said Block 2; thence North 89 DEG. 40'13" East 357 feet;
thence South 00 DEG. 19'47" East 147.33 feet to the South line of said Block 2;
thence Westerly along the South line of said Block 2 and along a nontangential
curve concave to the South central angle 03 DEG. 14'27", radius 533 feet, arc
length 30.15 feet; thence Westerly along the South line of said Block 2 and
along a tangential curve concave to the South, central angle 03 DEG. 22'47",
radius 533 feet, arc length 31.44 feet; thence North 89 DEG. 44'03" West,
assumed bearing, 281.42 feet along the South line of said Block 2 to the point
of beginning; and
except the following:
Commencing at the southwest corner of said Block 2, thence South 89 DEG. 44'03"
East, assumed bearing, 281.42 feet along the South line of said Block 2; thence
Easterly along the South line of said Block 2 and along a tangential curve
concave to the South, central angle 06 DEG. 37'14", radius 533 feet, arc length
61.59 feet to the True Point of Beginning; thence North 00 DEG. 19'47" West 220
feet; thence North 89 DEG. 40'13" East 180 feet; thence South 00 DEG. 19'47"
East 265.57 feet to the South line of said Block 2; thence North 75 DEG. 53'04"
West 128.30 feet along the South line of said Block 2; thence Westerly along the
South line of said Block 2 and along a tangential curve concave to the South,
central angle 03 DEG. 05'28", radius 533 feet, arc length 28.74 feet to said
True Point of Beginning.
TO BE ATTACHED TO AND BECOME A PART OF THAT CERTAIN LEASE AGREEMENT COVERING
SPACE IN THE NORTHRIDGE SHOPPING CENTER.
----------
<PAGE>
EXHIBIT C
PLANS AND SPECIFICATIONS
LANDLORD'S AND TENANT'S CONSTRUCTION:
Tenant hereby acknowledges and agrees that it is aware of the requirements set
forth in the Americans with Disabilities Act 42 U.S.C. Secs. 12101-12213 (the
"ADA") and warrants that all construction done by Tenant in connection with the
terms and conditions of this lease, both in the first instance and subsequently
throughout the term of this Lease, shall be in compliance with the requirements
of the ADA. If the Landlord grants its consent to proposed changes to be made
by the Tenant in the leased premises, the granting of such consent by the
Landlord will not mean that the Tenant's proposed changes necessarily comply
with the ADA; the question of compliance is the Tenant's responsibility.
Tenant shall hold Landlord harmless and shall protect and defend Landlord in any
cause of action brought against Landlord or to which Landlord is a defendant,
arising out of alleged violations of the ADA., wherein, by the provisions of
this Lease, Tenant was obligated to and failed to comply with any provision of
the ADA.
TO BE ATTACHED TO AND BECOME A PART OF THAT CERTAIN LEASE AGREEMENT
COVERING SPACE IN THE SHOPPING CENTER
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EXHIBIT D
ADDITIONAL PROVISIONS
ARTICLE 1, SECTION 2 - TERM: The term of this lease shall commence upon the
earlier of (i) the date upon which Tenant opens the leased premises for
business, or (ii) September 1, 1993, and the lease term shall be three years,
plus that period of time, if any, prior to September 1, 1993 that Tenant is open
for business in the leased premises.
Tenant shall have the right to use and occupy the leased premises for the period
from the date upon which the leased premises are turned over to Tenant until the
commencement of the lease term (the "construction period") for purposes of
adapting the premises to Tenant's use under this lease. Tenant's use and
occupancy of the leased premises during the construction period shall be
governed by all the terms and conditions of this lease, including, but not
limited to, the payment by Tenant of all charges for utility services furnished
to the leased premises; provided, however, that Tenant shall not owe or pay
Landlord any sums for minimum rent, real estate taxes, insurance, or common area
maintenance associated with the leased premises during said construction period.
ARTICLE 11, SECTION 2 - INSTALLATIONS AND ALTERATIONS BY TENANT: If Tenant uses
non-union workers to construct installations or alterations to the leased
premises pursuant to this Section 2, and any labor disputes arise as a result
thereof, Tenant shall (i) promptly resolve such dispute; and (ii) indemnify
Landlord from any and all damages suffered by Landlord as a result of Tenant's
use of said non-union labor. Notwithstanding anything in this Section 2 to the
contrary, Tenant shall not be required to obtain Landlord's consent before
Tenant makes repairs, alterations or additions to the leased premises ("Tenant
Changes") if such Tenant Changes do not cost more than $3,000 and do not affect
or change the roof or structure of the building.
ARTICLE 12, INDEMNITY - SECTION 1:
A. TENANT agrees to indemnify and save LANDLORD harmless against any and
all claims, demands, damages, costs and expenses, including reasonable
attorneys' fees, arising from the conduct or management of the business
conducted by TENANT or from any breach or default on the part of TENANT in the
performance of any covenant or agreement on the part of TENANT to be performed
pursuant to the terms of this lease, or from any act or negligence of TENANT,
its agents, contractors, servants, employees, sublessees, concessionaires or
licensees, in or about the leased premises and the loading platform area
allocated to the use of TENANT. TENANT's general liability insurance described
in Article 13, Section 2 hereof insuring LANDLORD and TENANT shall be primary
insurance coverage with no right of contribution as to all claims for damage to
person or property sustained by TENANT's employees, agents, servants,
contractors, sublessees, concessionaires, invitees, and customers resulting from
the building in which the leased premises are located or by reason of the leased
premises or any equipment or
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appurtenances thereunto appertaining becoming out of repair, or resulting from
any accident in or about the leased premises, or resulting directly or
indirectly from any act or neglect of any other tenant in the shopping center.
The terms of the foregoing sentence shall apply especially, but not
exclusively, to the flooding of the leased premises, and to damage caused by
steam, excessive heat or cold, falling plaster, broken glass, sewage, gas, odors
or noise, or the bursting or leaking of pipes or plumbing fixtures. All
property belonging to TENANT or any occupant of the leased premises or the
shopping center shall be there at the risk of TENANT or such person only, and
LANDLORD shall not be liable for damage thereto or theft or misappropriation
thereof.
B. LANDLORD agrees to indemnify and save harmless TENANT from and against
all claims, demands, damages, costs and expenses, including reasonable
attorneys' fees, arising from any property damage or personal injury caused by
the negligent act or misconduct of LANDLORD or LANDLORD's agents, servants, or
employees, where such property damage or personal injury occurs outside of the
leased premises but within the shopping center.
ARTICLE 14, SECTION 1 - FIRE OR OTHER CASUALTY: If Landlord fails to restore
the leased premises to tenantable condition as described in this Article within
ninety (90) days after the date of destruction, then Tenant may elect to
terminate this lease by providing Landlord with ten (10) days' prior written
notice of termination.
ARTICLE 16, SECTION 1 - ASSIGNMENT AND SUBLETTING: Notwithstanding anything
herein to the contrary, Tenant shall have the right, without the consent of
Landlord first obtained, to assign this lease to its parent company, if any, or
to any affiliate or subsidiary corporation, or a corporation into which Tenant
shall be merged or sold, provided, however, that Tenant shall remain liable for
the performance of all Tenant obligations under this lease, and provided further
that such assignee shall agree in writing to assume all of Tenant's obligations
hereunder.
ARTICLE 26, SECTION 5 - FORCE MAJEURE: Whenever a period of time is herein
provided for either party to do or perform any act or thing, that party shall
not be liable or responsible for any delays, and applicable periods for
performance shall be extended accordingly, due to strikes, lockouts, riots, acts
of God, shortages of labor or materials, national emergency, acts of a public
enemy, governmental restrictions, laws or regulations, or any other cause or
causes, whether similar or dissimilar to those enumerated, beyond its reasonable
control, provided the party prevented from performing gives the other party
written notice of such cause promptly after its commencement; however, either
party may terminate this lease by giving the other party written notice thereof
if such cause continues for a period of 45 days, except in the case of the
Landlord's obligation to deliver the leased premises to the Tenant at the
commencement of the initial term of this lease, in which case such right shall
arise after the expiration of 15 days after the commencement of such a cause.
The provisions of this Section 5 shall not operate to excuse TENANT
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from prompt payment of rent, percentage rent, additional rent, or other monetary
payments required by the terms of this lease.
ARTICLE 26, SECTION 6 - RECORDING OF LEASE: Either party will, upon the written
request of the other party, execute a short-form lease ("Memorandum of Lease")
regarding this lease, in a form suitable for recording. Such Memorandum of
Lease will be dated as of the date of this lease and will disclose the parties,
the term of the lease, descriptions of the leased premises, Tenant's expansion
and extension rights, if any, and any such other terms and conditions as the
parties agree upon. The party requesting the execution of such Memorandum of
Lease will bear all costs of the Memorandum of Lease, including any recording
fees. Upon the execution of a pertinent amendment to this lease and the written
request of either party, the parties will execute a corresponding amendment to
the Memorandum of Lease, with the party requesting the execution of such
amendment bearing all costs of the amendment, including any recording fees.
Either party will, following any termination of this lease and upon the written
request of the other party, execute a document setting forth the date of such
termination, in a form suitable for recording. Failure of a party to execute
such a document will not affect the termination, and in such event the party
requesting the document may execute and file an affidavit setting forth the date
of termination. The party requesting the execution of such document will bear
all costs thereof, including any recording fees.
ENVIRONMENTAL AUDIT: Tenant shall have the right, at Tenant's sole cost and
expense, to conduct a phase-I environmental audit of the leased premises.
Tenant may terminate this lease before the commencement of the lease term, with
ten (10) days' prior written notice to Landlord, if such audit reveals any
environmental contamination in the leased premises; provided, however, that if
Tenant terminates the lease pursuant to this provision, then (i) Tenant shall,
at Landlord's request, restore the leased premises to the condition existing at
the time of delivery of said premises to Landlord, and (ii) Tenant shall provide
Landlord with a copy of such environmental audit.
RIGHT OF FIRST REFUSAL: If Landlord intends to lease Bay 8 (outlined in green
upon Exhibit "A" attached to this lease) to another lessee during the term of
this lease, Tenant shall have the right to lease said Bay 8 from Landlord
subject to the following terms and conditions:
(a) Landlord shall provide Tenant with written notice of Landlord's intent
to lease Bay 8 to a third-party ("Prospect"), and Tenant shall have
two business days to exercise its rights to lease Bay 8 by written
notice to Landlord. If Tenant fails to deliver written notice of
Tenant's exercise of its right to lease within said two business days,
then Landlord shall have the right to lease Bay 8 to said Prospect,
without any further consent or act by Tenant.
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(b) If Tenant exercises its right to lease the Bay 8 as aforesaid, Tenant
shall lease the Bay 8 from Landlord upon the same terms and conditions
as were offered to the Prospect, and said lease shall commence no
later than thirty (30) days after Tenant's written notice to Landlord
exercising Tenant's right to lease.
(c) Notwithstanding anything herein to the contrary, if Landlord leases
Bay 8 to a Prospect pursuant to this Paragraph, Landlord shall have
the right to renew or extend Landlord's lease to said Prospect or that
Prospect's assignee or sublessee without first offering Bay 8 to
Tenant.
RENEWAL OPTION: Tenant shall have the option to renew the term of this lease
for one (1) period of three (3) years upon the same terms and conditions as are
provided herein except that the fixed minimum rent during said renewal term
shall be determined in the manner hereinafter provided, and there shall be no
further options to renew.
The said option shall be exercised by Tenant giving notice by certified mail to
Landlord, return receipt requested, at least one hundred eighty (180) days
before the expiration of the then existing term and not more than 365 days
before the expiration of the then existing term. It shall be a condition of the
exercise of the foregoing option that at the time of the exercise of said
option, Tenant shall not be in default hereunder.
Within thirty (30) days after the receipt by Landlord of Tenant's exercise of
the option herein granted, the Landlord and Tenant shall commence negotiations
with regard to the fixed minimum rent to be paid by Tenant to Landlord during
the option term. Provided, however, that in the event that Landlord and Tenant
are unable to agree on said fixed minimum rent within ninety (90) days from the
date of exercise of the option, then it shall be deemed that Tenant did not
exercise its option and the lease will terminate at the end of the then existing
term.
Notwithstanding the foregoing, Tenant's option to renew this lease may be
terminated by Landlord at any time after receipt of notice of Tenant's exercise
of the option, by notice from Landlord that it is Landlord's intention to no
longer continue to operate the shopping center as a retail shopping center.
Landlord's notice to Tenant must be given to Tenant by certified mail, return
receipt requested, not less than ninety (90) days prior to the end of the then
existing term of this lease.
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EXHIBIT E
NORTHRIDGE SHOPPING CENTER
Waseca, Minnesota
SIGNAGE CRITERIA
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NORTHRIDGE SHOPPING CENTER
Waseca, Minnesota
SIGNAGE CRITERIA
Explanation 1
Exterior Sign Criteria - General 2
Exterior Sign Criteria - Lighting 3
Exterior Sign Criteria (cont.) 4
Prohibited Signs 5-6
Sign Approvals 7
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EXPLANATION
1. It is intended that the signing of the stores at the Northridge Shopping
Center shall be developed in an imaginative and varied manner. This
criteria shall govern for all Tenant signing at Northridge.
2. Although previous and current signing practices of the Tenant will be
considered, they will not govern signs to be installed at Northridge.
3. Approval of store design drawings or working drawings and specifications
for Tenant's leased premises does not constitute approval of any sign work.
Landlord's written approval of Tenant's sign drawing and specifications is
required.
4. The furnishing and installation of a sign and the costs incurred shall be
the responsibility of the Tenant. Sign construction is to be completed in
compliance with the instructions contained within this criteria.
5. Each Tenant will be required to identify its premises by a sign.
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EXTERIOR SIGN CRITERIA-GENERAL
1. Tenants' signs shall be store identity signs only, and such name shall not
include any item sold therein.
2. Tenants will be allocated an area on the exterior fascia of the shopping
center, directly in front of the occupied store, and proportionately equal
to the lineal footage of the store front.
3. Tenant's sign shall be restricted to the recessed area on the exterior
fascia of the parapet wall. Maximum height of sign letters shall not
exceed four feet (4'), and an 18" border will be required from each end of
the Tenant's allocated sign area.
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EXTERIOR SIGN CRITERIA-LIGHTING
1. The parapet fascia of the Shopping Center will be externally illuminated
from the canopy. Therefore, Tenants' signs shall consist of either
individually illuminated or non-illuminated letters per specifications
furnished in this criteria.
2. Sign letters or components that are illuminated shall not have exposed neon
or other lamps. All light source shall be concealed by translucent
material. Maximum brightness, in any event, shall not exceed 100 foot
lamberts.
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EXTERIOR SIGN CRITERIA (cont.)
3. Tenants' signs may be fabricated out of the following materials.
A. Marine grade plywoods.
B. Plexiglass edged with silva-trim or equal.
C. Fabricated sheet metal or cast aluminum.
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PROHIBITED SIGNS
C. The following type of signs or sign components shall be PROHIBITED.
1. Signs employing exposed raceways, ballast boxes, or transformers.
2. Moving or rotating signs.
3. Signs employing moving or flashing lights.
4. Signs employing luminous, vacuum-formed type, plastic letters.
5. Signs, letters, symbols, or identification of any nature painted directly
on exterior doors or windows, excluding addresses.
6. Cloth, wood, paper, or cardboard signs; stickers or decals on exterior
surfaces (doors and/or windows) of the premises.
7. Signs employing unedged or uncapped plastic letters, or letters with no
returns and exposed fastenings.
8. Free-standing signs.
9. Rooftop signs.
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PROHIBITED SIGNS (cont.)
10. Signs employing noise making devices and components.
11. Signs exhibiting the names, stamps, or decals of the sign manufacturer or
installer.
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SIGN APPROVALS
1. Tenant shall submit drawings and specifications, including samples of
materials and colors, for all its proposed sign work. Three (3) sets of
drawings will be required by our Sign Consultants. The drawings shall
clearly show location of sign on designated sign area, including graphics,
color, construction, and attachment details. Full information regarding
electrical load requirements and brightness in foot lamberts is also to be
included.
2. The Sign Consultant shall return one (1) set of the sign drawings, as soon
as possible, to the Tenant. The drawing will either be marked "Approved,"
"Approved Based on Landlord's Modifications," or "Disapproved." Sign
drawings that have been "Approved Based on Landlord's Modifications" are to
be returned to the Landlord bearing Tenant's approval, or are to be
redesigned and resubmitted for Landlord's approval within seven (7) days of
receipt by Tenant. Sign drawings that have been "Disapproved" are to be
redesigned and resubmitted to Landlord's Sign Consultant for approval, also
within seven (7) days of receipt by Tenant.
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