Exhibit 99
LEASE AGREEMENT
THIS LEASE (the
“Lease” is executed this ___ day of _____, 2005, by and
between France Edina, Property LLP, a North Dakota limited
partnership (“Landlord”), and REGIS Inc., a Minnesota
corporation (“Tenant”).
WITNESSETH:
Article 1 –
Lease of Premises
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Section 1.01.
Basic Lease
Provisions and Definitions.
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A.
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Leased Premises (legally described
on Exhibit A attached hereto): All of the rentable
square footage of the building at 4401 W. 76
th
St., Edina, Minnesota
55435 (“Property”);
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B.
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Rentable Area of the Property:
Approximately 102,448 square feet. At Tenant’s election, upon
delivery of the Property to Tenant, Tenant may re-measure the
Property. If the total area of the Property is found to be less
than or greater than the area as set forth in this Section, then
Landlord and Tenant shall execute an amendment to the Lease to
correct the discrepancy in the total area of the Property, for all
purposes of this Lease. If Tenant does not request a re-measurement
of the Property, the Rentable Area of the Property stated in this
Section shall be deemed accepted by the parties hereto for all
purposes of this Lease.
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C.
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Tenant’s Proportionate Share:
100.00%;
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D.
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Months
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Premises
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Net Rent/rsf
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Annual Installment
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Monthly Installment
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51,224 sf
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$
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9.50
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$
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$
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40,552.33
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102,448 sf
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$
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9.50
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$
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973,256.00
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$
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81,104.67
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102,448 sf
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$
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9.75
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$
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998,868.00
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$
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83,239.00
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102,448 sf
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$
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10.00
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$
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1,024,480.00
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$
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85,373.33
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102,448 sf
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$
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10.25
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$
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1,050,092.00
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$
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87,507.67
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102,448 sf
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$
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10.50
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$
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1,075,704.00
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$
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89,642.00
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102,448 sf
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$
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10.75
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$
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1,101,316.00
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$
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91,776.33
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102,448 sf
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$
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11.00
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$
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1,126,928.00
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$
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93,910.67
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102,448 sf
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$
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11.25
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$
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1,152,540.00
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$
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96,045.00
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102,448 sf
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$
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11.75
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$
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1,203,764.00
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$
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100,313.67
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E.
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Landlord’s Share of Expenses:
N/A;
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F.
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Lease Term: One Hundred Twenty Eight
(128) Months;
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G.
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Commencement Date: Tenant’s
rental payments shall begin to accrue on the day which
Tenant’s work and leasehold improvements to the
“Property” are substantially completed, as evidenced by
the issuance of a certificate of occupancy by the local building
authority, but in no event later than October 1,
2005.
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H.
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Security Deposit: None;
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I.
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Guarantor(s): REGIS Corporation.
Terms are defined in Exhibit “C-4”;
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J.
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Brokers: CRESA Partners representing
Tenant and CB Richard Ellis, Inc. representing Landlord;
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K.
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Permitted Use: Tenant may use the
Property for general office purposes or for any other lawful
use.
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L.
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Addresses for notices:
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Landlord:
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Goldmark
Management
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5001 W.
80 th
Street
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Suite 675
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Bloomington, MN
55435
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Tenant:
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REGIS
Inc.
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7201 Metro
Blvd.
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Edina, MN
55439
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With a copy
to
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REGIS, Inc.
7201 Metro Blvd.
Edina, MN 55439
Attn: Legal Dept.
and
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Landlord’s address for rental and other
payments:
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Goldmark
5001 American Blvd. W., Suite 675
Bloomington, MN 55437
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Tenant’s
address for purposes of invoices and other demands for
payment
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Goldmark
5001 American Blvd. W., Suite 675
Bloomington, MN 55437
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Section 1.02 . Property . Landlord hereby leases
to Tenant and Tenant leases from Landlord, under the terms and
conditions herein, the Property.
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ARTICLE 2 – TERM
AND POSSESSION
Section 2.01. Term. The term of this Lease
(“Lease Term”) shall be the period of time as set forth
in Section 1.01 (F) and shall commence on
October 1, 2005 (“Commencement Date”) in
accordance with the terms and provisions of Section 1.01G
above.
Upon the
Commencement Date and at the written request of Landlord, Tenant
shall execute a letter of understanding in substantially the form
attached hereto as Exhibit B and made a part hereof,
acknowledging (i) the Commencement Date of this Lease, and
(ii) that Tenant has accepted the Property for occupancy and
that the condition of the Property (including any Tenant finish
improvement constructed thereon) was at the time satisfactory and
in conformity with the provisions of this Lease in all respects (or
if the condition of the Property is not satisfactory and in
conformity with the provisions of this Lease in all respects (or if
the condition of the obligations of Landlord). Such letter of
understanding shall become a part of this Lease. If Tenant takes
possession of and occupies the Property without executing the
letter of understanding within ten (10) days after
Landlord’s written request therefore, Tenant shall be deemed
to have accepted the Property as described above.
Section 2.02 Construction.
A.
Landlord’s Allowance and Compliance. Without limiting
the foregoing, Landlord shall provide Tenant upon Lease
Commencement with a Tenant finish improvement allowance equal to
two million, five hundred sixty one thousand, two hundred dollars
($2,561,200.00) (“Landlord Allowance”).
Landlord’s Allowance shall be applied solely toward
Tenant’s cost of construction (the “Finish Work”)
including, without limitation, the construction Tenant’s
office finish work, restrooms, including demising walls; interior
finishes, electric, plumbing and heating, ventilating and
air-conditioning work, and all other work, labor and materials
necessary to complete the Finish Work, all as more particularly set
forth in plans and specifications to be prepared by Tenant’s
architect, a written description of which shall be approved by
Tenant and Landlord and attached hereto as Exhibit
“C-1” (“Interior Plans and
Specifications”). The cost of any Finish Work which exceeds
the amount of Landlord’s Allowance shall be paid solely by
Tenant. Tenant shall be free to manage all aspects of the
construction of Tenant Improvements using contractors and vendors
of their own choosing, with reasonable Landlord approval. Landlord
shall be given reasonable approval rights over Tenant’s plans
but shall not be entitled to collect any supervision or plan review
fees in conjunction with Tenant’s work. At the time of
receipt, Tenant shall provide Landlord with the
following:
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1.
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Sworn Construction
Statement;
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2.
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Lien waivers or within thirty
(30) days of receiving the allowance such Lien waivers for
payments set forth on the Sworn Construction Statement.
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Notwithstanding
Tenant shall not allow for any Liens to be placed on the property,
or shall provide an escrow in an amount satisfactory to the First
Mortgage Lender and Title in lieu of such Lien waiver. In addition
to the allowance set forth above, Landlord shall provide an
additional allowance as follows:
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New roof;
materials, installation, warranty;
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$
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272,962.00
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Equipment and
installation of packaged rooftop units;
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$
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140,000.00
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Chip coating
and striping of lot;
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$
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19,500.00
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If Tenant
elects to seal coat at a lesser price then Tenant will reimburse
savings to Landlord.
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Fourteen
(14) 12’x7’ 6 panel windows per plan documents by
Welman Sperides. Demolition, installation and clean up.
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$
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247,363.00
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If Landlord can
provide a bid acceptable to Tenant, which is lower than
$247,363.00, then Tenant shall reimburse savings to
Landlord.
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Collectively these four items
shall be referred to as the “Base Property Finish”.
Tenant agrees to apply such funds to completion of the Base
Property Finish with specifications not less than those provided to
Tenant by Landlord and attached to this lease as
Exhibit C-2.
B.
Project Design Schedule and Permits. The Shell Plans and
Specifications and the Interior Plans and Specifications shall be
designed and the Shell Work and Finish Work shall be constructed by
Tenant in a good and workmanlike manner and in accordance with the
“Project Schedule” attached hereto as Exhibit
“C-3”. Tenant shall apply for and obtain as
expeditiously as possible at its sole cost and expense, all
permits, licenses and certificates necessary for the construction
of the Shell Work and Finish Work and for the occupancy thereof by
Tenant.
C.
Substantial Completion, Possession and Commencement Date.
(i)Tenant shall certify in writing to Landlord that Property have
been completed in substantial accordance with the Interior Plans
and Specifications, (ii) Tenant shall have obtained all
necessary governmental approvals and inspections for Tenant’s
occupancy of the Property, (iii) the project architect, shall
certify in writing to Tenant as to those same matters in (i), (ii),
and (iv) the issuance of a temporary certificate of occupancy
of the Property for the Permitted Use.
D. Tenant
Caused Delays. “Tenant Caused Delays” shall mean
any delay caused by or resulting from the following or any
combination of the following (provided the following actually
results in a delay to the Substantial Completion of the Property):
(1) failure of Tenant to comply with the Project Schedule;
(2) failure of Tenant to cooperate with Landlord and respond
promptly to any reasonable request of Landlord; or
(3) Tenant’s fixturing of the Property prior to the
Commencement Date, to the extent such work causes a delay. Tenant
caused delays shall not delay the Commencement Date.
E.
Warranty . Landlord hereby warrants that the roof top HVAC
unit(s), shall be in good working condition for a period of three
(3) years from Commencement Date, routine maintenance (except
as to Landlord’s obligations herein) and ordinary wear and
tear excepted. The foregoing warranties cover all materials, labor
and equipment for replacement, should a unit or any portion thereof
need replacement, but does not cover consequential damages, such as
lost profits or opportunity, incurred by the Tenant. In addition to
the foregoing, upon the Commencement Date, Landlord shall enforce
for the benefit of Tenant all warranties and guarantees relating to
the unit(s). Tenant shall not take any action which shall
invalidate any of the foregoing warranties and shall provide
Landlord with written notice of all warranty claims. Tenant will
notify Landlord promptly upon discovery of any potential problems
which may be covered under the foregoing warranties. Without
limiting Landlord’s duty to perform repairs under any
warranties contained herein, the extent and performance of any
replacements required
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under, the foregoing warranties
will be mutually agreed to between Landlord and Tenant so as to
minimize the disruption to Tenant’s business
operations.
It
is the intention of the parties that Landlord’s
responsibility shall be for the replacement of major components of
the unit(s) only. Routine operational and maintenance costs shall
be borne by the Tenant. Landlord shall be allowed to inspect and
survey the units during the term of this Lease at Landlord’s
expense.
F. Early
Occupancy. Landlord will allow Tenant to take possession of the
Property upon full execution of the Lease. The date Landlord
permits Tenant to take possession of the Property as provided above
shall be the “Early Occupancy Date”. Landlord agrees to
use commercially reasonable efforts to not interfere with
Tenant’s possession of the Property as of the Early Occupancy
Date. Tenant agrees to coordinate the foregoing work with the work
of Landlord such that Tenant’s work does not interfere with
or delay Landlord’s work; provided, however, that except for
Landlord’s negligence or willful misconduct, neither Landlord
not any of Landlord’s affiliates shall have any
responsibility or liability whatsoever for any injury (including
death) to persons or loss or damage to any of Tenant’s
leasehold improvements, fixtures, equipment or any other materials
installed or left in the Property prior to the Commencement Date.
All of the terms and conditions of this Lease will become effective
upon the Early Occupancy Date except for the payment of Minimum
Annual Rent and Additional Rent which will commence on the
Commencement Date. Tenant will be required to maintain adequate
insurance during the early occupancy period. Payment of all
utilities during this period will be the responsibility of
Tenant.
Section 2.03. Surrender of the Premises. In the
event Tenant does not exercise the Purchase Option I or II set
forth below, upon the expiration or earlier termination of this
Lease Tenant shall immediately surrender the Property to Landlord
in the condition and repair received as of the Commencement Date,
reasonable wear and tear, casualty and condemnation excepted.
Tenant shall also remove its personal property, trade fixtures and,
subject to Section 7.02 , and of Tenant’s alterations
from the Property and promptly repair any damage caused by such
removal, and restore the Property to the condition existing upon
the Commencement Date, reasonable wear and tear excepted. If Tenant
fails to comply with this Section 2.03 , Landlord may
restore the Property to the condition required herein, and Landlord
may cause all of the property which Tenant was obligated to remove
to be removed and all restoration to be completed at Tenant’s
expense, and Tenant hereby agrees to pay all the costs and expenses
thereby reasonably incurred. All Tenant property which is not
removed within thirty (30) days following Landlord’s
written demand therefore shall be conclusively deemed to have been
abandoned by Tenant, and Landlord shall be entitled to dispose of
such property at Tenant’s cost without thereby incurring any
liability to Tenant. Tenant will promptly remove all of
Tenant’s cabling from the Property. The provisions of this
section shall survive the expiration or other termination of this
Lease.
Section 2.04. Holding Over. If Tenant retains
possession the Property after the expiration or earlier termination
of this Lease, Tenant shall become a Tenant from month to month at
one hundred fifty percent (150%) of the Gross Monthly Rental
Installment in effect at the end of the Lease Term, and otherwise
upon the terms, covenants and conditions herein specified, so far
as applicable. Acceptance by Landlord of rent in such event shall
not result in a renewal of this Lease, and Tenant shall vacate and
surrender the Property to Landlord upon Tenant being given thirty
(30) days’ prior written notice from Landlord to vacate
whether or not
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said notice is given on the rent
paying date. This Section 2.04 shall in no way constitute a
consent by Landlord to any holding over by Tenant upon the
expiration or earlier termination of this Lease, nor limit
Landlord’s remedies in such event.
If
Landlord and Tenant are in good faith negotiation during the hold
over period, and an agreement is consummated between the parties to
continue a Landlord/Tenant relationship, all rental payments under
the new agreement (“New Rental Payments”) shall be
retroactive to the first day of the hold over period. Any Hold Over
Payments made by Tenant in excess of the New Rental Payments shall
be a credit to the New Rental Payments first coming due, and any
deficiency between the New Rental Payment and the Hold Over
Payments made during the hold over period shall be paid by Tenant
to Landlord with the first New Rental Payments. All other
conditions, provisions and obligations of the Lease shall remain
the same and in full force and effect.
Article 3 -
Rent
Section 3.01. Base Rent . Landlord and Tenant do
each state and represent that it is the intention of each of them
that this Lease be interpreted and construed as an absolute net
lease and that all Basic Rent and Additional Rent to the extent
required below, will be paid by Tenant to Landlord without
abatement, deduction, diminution, deferment, suspension, reduction
or setoff, except as may be expressly permitted in this
Lease.
It
is the further express intent of Landlord and Tenant that, except
as otherwise expressly provided herein: (i) the obligations of
Landlord and Tenant hereunder will be separate and independent
covenants and agreements and that the Basic Rent and Additional
Rent, and all other charges and sums payable by Tenant hereunder,
will commence at the times provided herein and will continue to be
payable in all events unless the obligations to pay the same will
be terminated pursuant to an express provision in this Lease;
(ii) all costs or expenses of whatsoever character or kind,
general or special, ordinary or extraordinary, foreseen or
unforeseen, and of every kind and nature whatsoever that may be
necessary or required in and about the Property, or any portion
thereof, and Tenant’s possession or authorized use thereof
during the Term of this Lease, will be paid by Tenant other than as
expressly and specifically set forth in this Lease, and all
provisions of this Lease are to be interpreted and construed in
light of the intention expressed in this Section; (iii) the
Basic Rent specified in Article 3 will be absolutely net to
Landlord so that Landlord will be paid the entire Basic Rent
specified in Article 3 in each year during the Term of this
Lease (unless extended or renewed at a different Basic Rent);
(iv) all Impositions and Taxes, insurance premiums, utility
expense, repair and maintenance expense, and all other costs, fees,
interest, charges, expenses, reimbursements and obligations of
every kind and nature whatsoever relating to the Premises, or any
portion thereof, (other than as expressly and specifically set
forth in this Lease) which may arise or become due during the Term
of this Lease, or any extension or renewal thereof, will be paid or
discharged by Tenant and (iv) Tenant hereby agrees to
indemnify, defend and save Landlord harmless from and against such
costs, fees, charges, expenses, reimbursements and obligations, any
interest thereon.
Section 3.02. Additional Rent. It is the express
intention of Landlord and Tenant, that Tenant will be solely
responsible for all aspects of the operation and management of the
Property, including the management and payment of all items
described in Section 3.02 and all items of capital expense,
repair and replacement, collectively referred to as
“Operating
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Expenses”, subject to
Section 2.02E and to any warranties provided by vendors or
suppliers. Tenant agrees to pay any of the items herein directly to
such third parties as are authorized to receive them. Real Estate
Taxes and insurance shall be paid as required under any existing
mortgage secured by the Property. During the first eight
(8) months of the Lease, Landlord will pay to Tenant, on a
monthly basis, fifty percent (50%) of all fixed costs including
Real Estate Taxes while Tenant will pay one hundred percent (100%)
of variable expenses. In no event will “Real estate
Taxes” be deemed to include gift, transfer, inheritance,
estate, franchise taxes or any tax measured by Landlord’s
income. As used herein, “Operating Expense” shall mean
any costs or expenses paid or incurred for operation, repair,
maintenance, and management of the Property and shall include, but
shall not be limited to, the costs and expenses of; (a) water,
sewage, disposal, drainage, refuse collection, gas, electricity,
light, power, or other utility services; (b) general
maintenance and repair of the Property, including the structural
components of the Property, (c) maintenance of irrigation and
landscaping, replanting where necessary, and keeping the parking
area free from litter, dirt, debris, or other obstructions;
(d) taxes, assessments or other impositions, general, special,
or supplemental, which may be levied, assessed or imposed upon or
with respect to the Property, or any part thereof, or personal
property at any time situated thereon; (e) casualty, liability
and other insurance as may be required by mortgagee of the
Property; (f) capital improvements or structural
modifications, which costs shall be constructed and paid for by
Landlord and then amortized over the useful life of the capital
improvements or structural modifications which amortization shall
be included in operating costs.
Section 3.03 Late Charges. Tenant acknowledges
that Landlord shall incur certain additional unanticipated
administrate and legal costs and expenses if Tenant fails to timely
pay any payment required hereunder. Therefore, in addition to the
other remedies available to Landlord hereunder, if any payment
required to be paid by Tenant to Landlord hereunder shall become
overdue, such unpaid amount shall bear interest from the date which
is five (5) business days following Tenant’s receipt of
Landlord’s overdue notice to the date of payment at the prime
rate (as reported in the Wall Street Journal) of interest
(“Prime Rate”) plus six percent (6%) per annum. In
addition a five (5%) percent Administrative fee will be charged to
Tenant by Landlord.
Article 4 –
Security Deposit
{THIS SPACE LEFT INTENTIONALLY BLANK}
Article 5 -
Use
Section 5.01. Use of Property. The Property will
be used by Tenant solely for the Permitted Use and for no other
purposes without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, conditioned, or
delayed.
Section 5.02 Covenants of Tenant Regarding Use.
Tenant shall (i) use and maintain the Property and conduct its
business thereon in a safe, careful, reputable and lawful manner
(provided, however, in no event shall this Section 5.02 be
deemed to obligate Tenant to continually use the Property so long
as Tenant continues to comply with the obligations and terms set
forth herein), (ii) comply with all laws, rules, regulations,
orders, ordinances, directions and requirements of any governmental
authority or agency, now in force or which may hereafter be in
force relating to Tenant’s use of the Property or any
improvement or alteration to the
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Property. Tenant shall not do or
permit anything to be done in or about the Property which
constitutes a nuisance. Tenant shall not overload the floors of the
Property. All damage to the floor, structure or foundation of the
Property due to improper positioning or storage of items or
materials shall be repaired by Landlord at the sole expense of
Tenant, and Tenant shall reimburse Landlord immediately therefore
upon demand. Tenant shall not use the Property, or allow the
Property to be used, for any purpose or in any manner which would
invalidate any policy of insurance now or hereafter carried on the
Property. Landlord and Tenant shall each use their best efforts to
negotiate the most favorable rates of insurance, including but not
limited to Tenants ability to self insure to the extent acceptable
to any mortgagee that requires such insurance on the
Property.
Tenant agrees to
keep all of its trash containers, pallets, dumpsters, refuse and
waste within its Property (including exterior dock areas) and not
outside and agrees no to litter any of the grounds or entries.
Tenant is responsible for the cost of the removal of its
trash.
Section 5.03. Landlord’s Rights Regarding
Use. In addition to the rights specified elsewhere in this
Lease, Landlord shall have the following rights regarding the use
of the Property: (a) Landlord or Landlord’s agent shall,
upon prior reasonable notice to Tenant (except in an emergency when
no notice shall be required) be permitted to inspect or examine the
Property at any reasonable time. Tenant agrees to repair or
maintain any items discovered during such inspection to the extent
they are Tenant’s responsibility under the terms of this
Lease. During the last eighteen (18) months of the lease term
or during any extension term, Landlord shall have the right to
notify Tenant in writing of any repairs required to the Tenant that
would be the responsibility of Tenant under the terms of this
Lease, normal wear and tear excepted, and if Tenant fails to make
or fails to commence to make such repairs within thirty
(30) days of such notice, then Landlord shall have the right
to make such repairs to the Property; provided that any repairs
made by Landlord shall be at Tenant’s cost. Landlord shall
have the right to make any repairs to the Lease Premises at any
reasonable time and Landlord shall have the right to make any
repairs to the Lease Premises, which are necessary for its
preservation; provided, however, that any repairs made by Landlord
shall be at Tenant’s expense, except as provided in
Section 7.01 hereof. Subject to the terms contained herein and
except for Landlord’s negligence or willful misconduct,
Landlord shall incur no liability to Tenant for such entry, nor
shall such entry constitute an eviction of Tenant or a termination
this Lease, or entitle Tenant to any abatement of rent therefore.
Notwithstanding the foregoing, Landlord shall use commercially
reasonable efforts to notify Tenant and to not interfere with
Tenant’s use of the Property in connection with its right as
set forth is this Section 5.03.
article 6 –
Utilities and Services
Section 6.01 Tenant shall obtain in its own name and
pay directly to the appropriate supplier the cost of all utilities
and services serving the Property. Landlord shall not be liable in
damages or otherwise for any failure or interruption of any utility
or other building service, unless such failure or interruption was
caused by Landlord’s negligence or Landlord’s
intentional misdeeds.
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Article 7 –
Maintenance and Repair
Section 7.01. Tenant’s Responsibility.
During the term of this Lease, Tenant shall maintain in good
condition and repair, and replace as necessary, the electrical
systems, heating and air conditioning systems subject to
Landlord’s obligations, as set forth herein, sprinkler and
plumbing systems of the Property.
Section 7.02 Alterations. Tenant shall not
permit alterations to the foundation, roof, HVAC System, windows,
exterior doors, walls, parking lot or to any item existing outside
of the Property walls unless and until the plans have been approved
by Landlord in writing, which approval shall not be unreasonably
withheld, conditioned or delayed. Landlord shall require Tenant to
remove the alterations and restore the Property upon termination of
this Lease; or alternatively, whether such alteration shall become
a part of the realty and the property of Landlord, and shall not be
removed by Tenant. Notwithstanding the foregoing, Tenant may
perform alterations to the Property without Landlord’s
consent if such alterations do not affect the structural components
of the Property or the Property’s systems. Tenant shall
ensure that all alterations shall be ma
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