HomeMy WebLinkAboutCC RES 96-054 RESOLUTION APPROVING A LEASE BETWEEN THE CIFT OF ST. ANTHONY AND THE STE. MARIE COMPANY AND AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE SAID LEASE ON BEHALF OF THE CITY OF ST. ANTHONY Meeting Sheet
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103317
Box: 26 '
Folder: RES 1996
Document: CC RES 96-054 RESOLUTION APPROVING A LEASE
BETWEEN THE LIFT OF ST. ANTHONY AND THE STE. MARIE COMPANY
AND AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE
SAID LEASE ON BEHALF OF THE CIN OF ST. ANTHONY
Y
CITY OF ST. ANTHONY
11�
RESOLUTION 96-054
A RESOLUTION APPROVING A LEASE BETWEEN THE CITY OF
ST. ANTHONY AND THE STE. MARIE COMPANY AND
AUTHORIZING THE MAYOR AND CITY MANAGER TO
EXECUTE SAID LEASE ON BEHALF OF THE CITY OF ST. ANTHONY
WHEREAS, the City of St. Anthony desires to rent space in the Tires Plus building for
operation of the City-owned off-sale SAV H Liquor Store; and
WHEREAS, the Ste. Marie Company, owner of Apache Plaza, desires to lease said space
to the City of St. Anthony.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of St.
Anthony hereby approves the Lease between the City and the Ste. Marie Company for
space at the Tires Plus building to operate SAV H Liquor Store and authorizes the Mayor
and City Manager to execute said Lease on behalf of the City of St. Anthony.
Adopted this day of , 1996.
Mayor
ATTEST:
City Clerk
Reviewed for administration:
City Manager
*61-
LAW OFFICES
BRIGGS AND MORGAN
PROFESSIONAL ASSOCIATION
2200 FIRST NATIONAL BANK BUILDING
SAINT PAUL,MINNESOTA 55101
TELEPHONE (612) 223-6600
FACSIMILE (612) 223-6450
MINNEAPOLIS OFFICE
2400 I D S CENTER
WRITER'S DIRECT DIAL NUMBER September 27 , 1996 MINNEAPOLIS,MINNESOTA 55402
TELEPHONE 10121 334-8400
FACSIMILE 16121 334-8650
(612) 223-6636
VIA MESSENGER
William R. Soth
Dorsey and Whitney
220 South Sixth Street
Suite 2200
Minneapolis, MN 55402
Michael J. Mornson
City of St . Anthony
3301 Silver Lake Road
St . Anthony, MN 55418-1699
Subject : Apache Plaza Shopping Center
Ste. Marie Company/City of St. Anthony
Liquor Store Lease
Enclosed for your review is the latest draft of the liquor
store Lease Agreement . This copy has been machined marked to show
the changes from the previous draft . Please call me once you have
had a chance to review this draft so that we may discuss any
questions or comments you may have .
David G. reening
DGG/pg
Enclosures
CC : Larry McCabe
Dick Mikos
•
LEASE AGREEMENT
by and between
STE. MARIE COMPANY
Landlord
and
CITY OF ST. ANTHONY, MINNESOTA
Tenant
for premises at
APACHE PLAZA SHOPPING CENTER
326559.8 Redlined V8 to V7 9-27-96
TABLE OF CONTENTS
pap
DATASHEET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1: PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE2: TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 3: OPTION TO EX'T'END . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 4: LEASEHOLD IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE5: USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE6: RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 7: INTENTIONALLY OMITTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 8: IN'T'ENTIONALLY OMITTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 9: TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 10: COMMON AREAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 11: UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 12: MAINTENANCE, REPAIRS AND ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 13: INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 14: INDEMNITY AND WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 15: MECHANICS' LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 16: ASSIGNMENT OR SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-516
ARTICLE 17: CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 18: CASUALTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 19: BANKRUPTCY OR INSOLVENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 20: DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 21: LEASE SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
• ARTICLE 22: HAZARDOUS MATERIALS . . . . . . . . . . . . . . . . . . 22
ARTICLE 23: FIXTURES . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 24: SURRENDER OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE 25: MERCHANT'S ASSOCIATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 26: LIABILITY OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 27: INTENTIONALLY OMITTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 28: NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 29: GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Pape
EXHIBIT A-1 SHOPPING CENTER BOUNDARIES
EXHIBIT A-2 LEGAL DESCRIPTION OF SHOPPING CENTER
EXHIBIT B-1 SUBJECT PARCEL DRAWING
EXHIBIT B-2 SUBJECT PARCEL LEGAL DESCRIPTION
EXHIBIT C PREMISES
EXHIBIT D LEASE ADDENDUM
EXHIBIT E LANDLORD'S WORK
EXHIBIT F MONUMENT SIGN
EXHIBIT G SHOPPING CENTER RULES AND REGULATIONS
•
326559.8 Redlined V8 to V7 9-27-96
LEASE AGREEMENT
This LEASE AGREEMENT ("Lease") made as of the day of SeptembeF October, 1996, by
and between Ste.Marie Company,a Minnesota corporation,having a mailing address of First Bank Place,601
Second Avenue South,Minneapolis, Minnesota 55402 ("Landlord"),and the City of St. Anthony, Minnesota,
a Minnesota municipal corporation, having a mailing address of 3301 Silver Lake Road, St. Anthony,
Minnesota 55418-1699 ("Tenant").
Witnesseth
FOR AND IN CONSIDERATION of good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
DATA SHEET
(1) SHOPPING CENTER: The shopping center known as Apache Plaza. The boundaries of the
Shopping Center are shown on the site plan attached hereto as Exhibit A-1; the legal description of the
Shopping Center is shown on Exhibit A-2 attached hereto.
(2) SUBJECT PARCEL: A portion of the Shopping Center on which the Premises are located;
the boundaries of which Subject Parcel are shown on Exhibit B-1 attached hereto. The legal description of
• the Subject Parcel is shown on Exhibit B-2 attached hereto.
(3) PREMISES: The area cross-hatched on Exhibit C attached hereto. For purposes of this
Lease, the Premises shall be deemed to contain 8,506 square feet. The Premises includes the premises
currently located in an existing building deemed to contain 3,699 square feet and "Expansion Premises"
(labeled as such on Exhibit B-1) deemed to contain 4,807 square feet. Square footage may be modified in
accordance with Article 6 Section E hereof._ The Premises shall also include any basement areas within the
perimeter of the Premises and such areas shall otherwise be covered and governed by the terms of this Lease.
however. the area thereof has not and shall not be included in the calculation of Rent.
(4) COMMENCEMENT DATE: danua The date as established in accordance with Article 2.
Section A hereof, which date is expected to be on or about Mal 1, 1997.
(5) Intentionally Omitted.
(6) TERM: A period of 180 months during which this Lease shall be in effect, which shall
commence on the Commencement Date and terminate on the last day of the period specified in Section 10(c)
of this Data Sheet (the "Termination Date"); said period being sometimes herein referred to as the "Base
Term". Tenant is granted an option to extend the Lease as indicated in Section 7 of this Data Sheet and in
the event of such extension the Termination Date shall then be extended to the last day of the duly exercised
Option Term. The "Term" shall include the Base Term and any Option Term duly exercised by Tenant in
accordance with the provisions of this Lease.
(7) OPTION TO EXTEND: Subject to Article 3 hereof,Tenant shall have one option to extend
this Lease for one (1) period of five (5) years (such period being an "Option Term").
326559.8 Redlined V8 to V7 9.27-96 1
r
(8) PERMITTED USE: The Premises shall ma -v be used by the Tenant &"Iy for the
• purpose of conducting and operating the business of an off-sale liquor store and such other similar or related
uses which are or may become customarily conducted in conjunction with an off-sale liquor store. In addition,
permitted assignees or subtenants of Tenant under Article 16 hereof may use the Premises for other lawful
purposes which otherwise comply with all Private Restrictions, as hereinafter defined.
(9) TENANTS BUSINESS NAME: Teflant Shall operate and do Tenant's business in the
Premises, and all signs and advertising shall bey under the trade name St.Anthonv Villnee
Liquor Warehouse or such other new name as Tenant may select, provided such new name is not the same
as,or confusingly similar to,any other tenant in the Shopping Center. During the Term of this Lease,Tenant
may include the name of the Shopping Center in its business letterheads and in all other advertising,but shall
not use such name for any other purpose.
(10) ANNUAL MINIMUM RENT:
a) For the period commencing on the Commencement Date and ending 60 months thereafter
(provided that if the Commencement Date is a day other than the first day of a calendar month,then the said
period shall end 60 months after the last day of the calendar month in which the Commencement Date occurs
it being the intention of the parties hereto that the last day of such period,and any applicable option period,
shall be the last day of a calendar month), Annual Minimum Rent shall be $53,162.50 annually, payable
$4,430.21 monthly, based upon a rental rate of$6.25 per square foot.
b) For the period of 60 months following the period described in (a) above,Annual Minimum Rent
shall be $57,415.50 annually, payable $4,784.63 monthly, based upon a rental rate of$6.75 per square foot.
C) For the period of 60 months following the period described in (b) above, Annual Minimum
Rent shall be $61,668.50 annually, payable $5,139.04 monthly, based upon a rental rate of$7.25 per square
foot.
d) Subject to Article 3 hereof, for the period (the Option Term) of 60 months following the
period described in (c) above,Annual Minimum Rent shall be the then"current market rent" (determined in
accordance with Article 3) for similar commercial property in the Minneapolis/St. Paul metropolitan area;
provided, however,such Annual Minimum Rent shall not be less than the Annual Minimum Rent described
in (c) above.
Annual Minimum Rent is subject to possible adjustment in accordance with Article 6, Section D
hereof.
(11) PERCENTAGE RENT: Not applicable.
(12) SECURITY DEPOSIT: None.
(13) GUARANTORS: None.
Each reference in this Lease to any of the data contained in this Data Sheet shall be construed to incorporate
the data stated under this title.
326559.8 Redlined V8 to V7 9.27-96 2
•
•
•
326559.8 Redlined V8 to V7 9-27-96 3
ARTICLE 1: PREMISES
• A. Lease of Premises. Landlord hereby demises and leases to Tenant and Tenant hereby rents and takes
from Landlord, subject to and with benefit of the terms, covenants, conditions and provisions of this Lease,
the Premises (extending to the center line of the demising or parry walls, if any, and to the exterior faces of
all other walls) as shown on Exhibit C together with the appurtenances specifically granted in this Lease, but
reserving and excepting to Landlord the use of the exterior walls and the roof and air space above the Premises
and the ;igh; to install, maintain, Use, mpai; and mphwa for purposes of Performing Landlord's obligations
hereunder and for the Purposes of installing, maintaining, using, repairing and replacing pipes, ducts,
conduits, wires and appurtenant fixtures leading through the Premises in a manner that will not materially
interfere with Tenant's use of the Premises, . Landlord shall not erect any sign or signs
on the roof or exterior walls of the Premises, except for noncommercial directional or informational signs.
B. Shopping Center and Subject Parcel. Exhibit A-1 depicts the Shopping Center located in the City of
St. Anthony, Ramsey County, Minnesota,and Exhibit B-1 depicts the Subject Parcel on which the Premises
are located. Tenant acknowledges that Exhibits A-1, B-1 and C are intended only to identify the real estate
comprising the Shopping Center and the Subject Parcel and the approximate boundary lines thereof and the
approximate size and location of the Shopping Center buildings, the Subject Property building and the
Premises and are not to be considered or construed as a representation or covenant of the exact shape, size,
location,number and extent of the real estate,buildings and other improvements and shall not be considered
or construed as a representation or covenant to construct, refrain from constructing, demolish, refrain from
demolishing or otherwise alter the shape, size, location, number and extent of the real estate and
improvements, except as may otherwise be expressly provided herein.
ARTICLE 2: TERM
A. Delivery of Possession and Commencement Date. Landlord shall deliver possession of the Premises
to Tenant on the
by the GOMMAIRremen: D te, Landler4 shall not he Hable te Team! for- damages of any l4nd, in Shp event
date the work to be performed under the Construction Contract,as defined in Article 4,Section A(1) hereof,
is substantially (except for punch list items) completed (the "Commencement Date"). If Landlord is unable
to deliver Possession of the Premises to Tenant by Mav 1. 1997. Landlord shall not be liable to Tenant for
damages of any kind. In the event the Commencement Date has not occurred by May 31. 1997 because the
construction under said Construction Contract has not been substantially (except for Punch list items)
completed for any reason whatsoever,then either Party may terminate this Lease upon thirty (30) days prior
written notice. Provided such right to terminate shall expire if within said thirty (30) day period such work
Is substantially (except for punch list items) completed and Possession of the Premises are tendered to
Tenant. In the event said Construction Contract, in form, substance and amount mutually satisfactory to
Landlord and Tenant is not fully signed and delivered by all parties thereto on or before Astebat November
15, 1996, this Lease may be terminated by either party by written notice to the other
on or before December 1. 1996, in which event neither party shall thereafter have any liability to the other
hereunder except that Tenant shall be responsible for a portion of certain plan preparation costs as provided
in Article 4, Section A(1) and A 2.1 hereof.
B. Lease Addendum. At the commencement of the Lease Term, Landlord and Tenant shall execute a
Lease Addendum to evidence Tenant's acceptance of the Premises,and confirming the Commencement Date,
the Termination Date,the square footage of the Premises and Annual Minimum Rent. The Lease Addendum
shall be in substantially the form of Exhibit D attached hereto.
ARTICLE 3: OPTION TO EXTEND
A. Option. Tenant shall have the option to extend the Term of this Lease as such option is specified
in Section 7 of the Data Sheet. If said option is validly exercised,all of the terms and provisions of this Lease
shall continue in full force and effect during the extended term, except that following exercise of the option
there shall be no further option to extend,and the Annual Minimum Rent shall be as specified in Section 10
of the Data Sheet and Section D of this Article 3.
B. Exercise. Should Tenant elect to exercise its option to extend, it may do so only by giving Landlord
written notice of such election in the one hundred eighty(180)day period immediately prior to the"Exercise
Date". The "Exercise Date" is a date which is one hundred and eighty (180) days prior to the expiration of
the Base Term.
C. Conditions. Tenant's exercise of its option to extend shall not be effective unless,as of the Exercise
Date and as of the last day of Base Term (a)Tenant is not in default in any of its obligations under this Lease
beyond any applicable notice and cure period; and (b) Tenant or its permitted subtenant or assignee is in
actual physical possession of the Premises. Tenant shall have no option to extend if, as of the Exercise Date
or the first day of the Option Term the Lease has terminated for any reason.
326559.8 Redlined V8 to V7 9-27-96 4
D. Current Market Rent. To establish "current market rent" for purposes of Section 10(d) of the Data
Sheet, during the period from 120 to 90 days prior to the Exercise Date, Landlord shall notify Tenant in
writing of Landlord's determination of the current market rent for similar commercial property in the
Minneapolis/St.Paul metropolitan area(the"Extended Term Rent Notice"). The current market rent as stated
in the Extended Term Rent Notice shall be the rent applicable for the Option Term,unless,within sixty(60)
days after receipt of the Extended Term Rent Notice (1) Landlord and Tenant agree to a different amount,
or (2) Tenant shall notify Landlord in writing that it exercises its option to extend the Term for the Option
Term and requests that the current market rent be established by appraisal. In the event such notice is given
by Tenant,and provided Tenant is otherwise entitled to extend the Term of the Lease for the Option Term,
Tenant shall be deemed to have exercised its option to so extend the Term of the Lease and Landlord and
Tenant shall be bound to the determination of current market rent in accordance with the appraisal provisions
of Section E of this Article 3. In the event current market rent is not finally determined by appraisal as
provided in said Section E on or before the commencement date of the Option Term,Annual Minimal Rent
shall be paid by Tenant in accordance with the amount as stated in the Extended Term Rent Notice until such
time as the current market rent is determined by appraisal. In the event the current market rent as
determined by appraisal is different than the amount paid by Tenant,an appropriate adjustment shall be made
and Tenant or Landlord shall pay to the other, as appropriate, an amount such that Tenant shall have paid
from the beginning of the Option Term Annual Minimal Rent as determined by the appraisal.
E. Appraisal. Within fifteen(15)days after Tenant's notification to Landlord requesting appraisal,each
party,at its sole cost and expense and by giving notice to the other party,shall appoint one qualified appraiser
with at least five years of commercial appraisal experience in Ramsey and/or Hennepin County, Minnesota,
to appraise and set the current market rent for the Option Term. Each appraiser so appointed shall
acknowledge and agree in writing that he has received and shall abide by the provisions of this Section E. If
a party does not appoint an appraiser within said 15-day period, the single appraiser appointed shall be the
sole appraiser and shall set the current market rent for the Option Term. If two appraisers are appointed and
are unable to agree on the current market rent within twenty-one(21)days after the second appraiser has been
• appointed,the two appraisers shall attempt to jointly select a third appraiser meeting the qualifications stated
herein and agreeing to abide by the provisions of this Section E within seven (7) days after the expiration of
the 21-day period. If the two appraisers are unable to agree on a third appraiser within said seven (7) day
period, either of the parties to this Lease, giving seven (7) days notice to the other party, may apply to any
judge of the Ramsey County District Court for the selection of a third appraiser who meets the qualifications
stated herein and agrees to abide by the terms of this Section E. Each of the parties shall pay one-half of the
cost of appointing the third appraiser and paying the third appraiser's fee. Within twenty-one (21)days after
the selection of the third appraiser, a majority of the appraisers shall set the current market rent for the
Option Term. If the majority of the appraisers are unable to agree upon the current market rent within the
stipulated 21-day period, the separate appraisals of each appraiser shall be added together and the sum shall
be divided by three with the resulting quotient being the current market rent during the Option Term. In
determining current market rent, each appraiser shall consider the then-prevailing rate for properties of
equivalent quality, size, utility and location and considering the length of the Option Term.
ARTICLE 4: LEASEHOLD IMPROVEMENTS
A. Premises. All work performed on the Premises shall be subject to obtaining all necessary
governmental approvals and permits. As to relates to "Landlord's Work" as hereinafter defined, the
responsibility to obtain such approvals and permits shall be the Lan _ construction ms's
con_ Tenant shall be responsible for obtaining all such approvals and permits relating to "Tenant's
Work",as hereinafter defined. All such approvals and permits required under the Construction Contract shall
be the responsibility of the contractor.
(1) Construction Contract. Landlord shall enter into a construction contract for the
construction of Tenant's Premises (the "Construction Work"). Such construction contract
shall be with a contractor and in a form, substance and amount mutually acceptable to
. Landlord and Tenant the "Construction Contract"). The Construction(!) Landless
" Work shall be completed in a good and
workmanlike manner using new materiais of good quality and in compliance with all
applicable laws, statutes and ordinances, and all governmental rules, directives, regulations
or requirements of governmental authorities affecting the Premises ("Applicable Laws").
R;91;miA2r-Y building plans fa; the R-amisas Landlord sprees to pay the actual cost of the
Construction Work not to exceed$167.000. All costs and expenses of the Construction Work
in excess of$167.000 shall be paid by Tenant. The Construction Contract shall provide that
Tenant shall be the third party beneficiary thereof,and shall provide that all change orders,
changes in the costs of construction and amendments to the Construction Contract shall be
subject to the mutual approval of Landlord and Tenant. Landlord shall have no obligation
or responsibility to Tenant for the failure of the contractor to perform the work as provided
in the Construction Contract.including without limitation anv damages or claims resulting
326559.8 Redlined V8 to V7 9-27.96 5
7
from delay or failure to observe or perform the terms and conditions of the Construction
Contract nor anv warranty claims for failure to construct the Construction Work in
• accordance with the provisions thereof. Landlord shall cooperate with Tenant in anv
enforcement actions taken under the Construction Contract. If for anv reason this Lease
Is terminated prior to commencement of the Construction Work: Tenant shall reimburse
Landlord for one-half the cost of preoarine plans relating to the Construction Work.
(2) Landlord's Improvements. Landlord shall cause to be performed and constructed certain
work according to and to the extent provided in the specifications attached hereto and made
mart hereof as Exhibit E and designated as"Landlord's Work". Landlord's Work shall be
completed in a good and workmanlike manner using new materials of good quality and in
compliance with all Applicable Laws.Preliminary plans for the Landlord's Work conforming
to or consistent with the specifications of Landlord's Work shall be submitted to Tenant for
its review within fifteen (15)days of the final signing of this Lease. Tenant shall have fifteen
(15)days from the receipt thereof to review such preliminary plans. Failure to make written
objections thereto within said fifteen (15)day period shall be deemed to constitute Tenant's
approval thereof. If any such objections are made by Tenant within said period,Landlord and
Tenant will attempt, in good faith, to make such changes therein to accommodate Tenant's
needs, provided that Landlord shall not be required to incur any additional cost or expense
in constructing modifications or changes requested by Tenant. The detailed plans and
specifications of Landlord's Work shall conform with said preliminary plans
reviewed by Tenant and with the specifications of Exhibit E. Any changes or modifications
in such plans or specifications shall require Tenant's review and approval. In the event of
such changes or modifications, Tenant shall have five (5) days from the receipt of such
changes and modifications to review and comment on the same. Failure to comment within
said period in writing shall be deemed to constitute Tenant's approval thereof.
agmes ;Q pay the am-] Vast of 1 2 not to- excNed $167 C1gtS
•
" "
pr@vid@ that all Shan ;6, cha g 6 `n the nos♦ of cancguction 2nd amandmantsthe
T andlar-d shall ha no ol.liga♦ion or ns'h'1 ty♦o Tnna t f ♦h fa'1 f♦h • ct
o vr>rt'eePvrmive:ee)-ry r earorre:vs erre eu:ra:Pv
a" damages or- Glaims ;esuhing &@m delay o; failure to absetpM or- pef-f4g;ffi the ;eFM and
r
Tenant by taking
possession of the Premises shall be conclusively deemed to have accepted Landlord's Work
If for any reason this Lease
is terminated prior to commencement of Landlord's Work,Tenant shall reimburse Landlord
for one-half the cost of preparing plans relating to the Landlord's
Work. Landlord and/or the contractor under the Construction Contract shall be responsible
for and pay the cost of any asbestos removal and environmental contamination clean-up
which is discovered on the Subject Parcel during the course of construction of Landlord's
Work or the Construction Work. To the extent said contractor charges a oremium to
assume responsibility for all environmental contamination clean-up under the Construction
Contract such amount shall be paid by Landlord and shall be in addition to the $167,000
Landlord has agreed to pay for the Construction Work
• (3)M Tenant's Improvements. Tenant shall have the right, at Tenant's sole cost and expense, to
make permanent improvements to the Premises for Tenant's use thereof, pursuant to plans
and specifications approved in advance by Landlord,which approval shall not be unreasonably
withheld. Tenant shall submit to Landlord for review and approval its detailed plans and
specifications for all improvements. Unless Landlord shall object thereto in writing within
fifteen (15) business days of receipt of Tenant's plans and specifications, such plans and
specifications shall be deemed approved by Landlord. If Landlord reasonably objects thereto,
Tenant shall make such changes and modifications to its plans and specifications as Landlord
shall reasonably require and resubmit the same for approval by Landlord using the same
procedure and time limits as specified herein for the original submission thereof. Such
procedure shall be followed until the plans and specifications are approved by Landlord.
Once approved,Tenant's plans and specifications shall not be changed or modified without
Landlord's prior written consent. Except as may otherwise be specifically provided in Article
12,Section C hereof,no work shall be done or fixtures or equipment installed by Tenant (1)
326559.9 Redlined VS to V7 9-27.96 6
i
without the express prior written approval of Landlord of all plans and specifications therefor,
or (2) in such manner as to unreasonably interfere with Landlord,its agents,contractors,or
• other tenants. Tenant agrees to employ for such work its own employees or one or more
licensed, bonded responsible contractors and to carry itself or cause such contractors
employed by Tenant to carry insurance in accordance with the requirements set forth in
Article 4, Section B, and to submit certificates evidencing such coverage to Landlord prior
to the commencement of construction. If Landlord determines that Tenant's contractors are
using non-union workers, and such usage creates problems or interference with other work
being performed in the Shopping Center,Tenant shall cause its contractors to use only union
workers. All of Tenant's improvements shall first be approved by all appropriate
governmental agencies and all applicable permits and authorizations shall be obtained and
copies delivered to Landlord before commencement. All of Tenant's improvements shall be
completed in a good and workmanlike manner in due diligence using new materials of good
quality, and in compliance with Applicable Laws and plans and specifications approved by
Landlord.
B. Insurance.
In the event Tenant engages a contractor to perform improvements, during such term that work is
being performed, Tenant shall obtain or cause its contractor to obtain the following coverages, and
Tenant shall provide Landlord with a certificate of such insurance:
1. Workmen's Compensation.
a. Statutory limits.
b. Employer's liability coverages of:
(i) Bodily injury, each accident $500,000.
(ii) Disease, each employee $500,000.
• (iii) Policy limit, $500,000.
2. Comprehensive General Liability.
a. Property damage, per occurrence $100,000.
b. Bodily injury, each person $500,000.
C. Bodily injury, each occurrence $1,000,000.
d. Aggregate $1,000,000.
3. Comprehensive Automobile Liability.
a. Bodily injury, each person $1,000,000.
b. Bodily injury, each occurrence $1,000,000.
C. Property damage liability $1,000,000.
4. Landlord's and Tenant's Protective Liability.
a. Bodily injury, each person $1,000,000.
b. Bodily injury, each occurrence $1,000,000.
C. Property damage liability$1,000,000.
d. Property damage aggregate $1,000,000.
5. Builder's Risk Insurance.
a. All physical loss.
per-fer-med,Tenant shall obtain the fell 0
I.
3.
4.
All insurance shall also comply with the insurance requirements specified in Article 13,Section A(6)
of this Lease.
C. Ownership. All leasehold improvements installed within the Premises by Tenant in accordance with
this Article 4 and all Alterations made therein as defined in Article 12 Section C hereof,whether temporary
326559.8 Redlined V8 to V7 9-27-96 7
or permanent in character, including,without limitation,wall coverings,carpeting and other floor coverings,
shall become Landlord's property and shall remain in the Premises at the expiration or termination of this
• Lease without compensation to Tenant, except for Tenant's personal property and trade fixtures which shall
be governed by Article 23 hereof. Landlord shall have the right to require Tenant to remove leasehold
improvements and Alterations at Tenant's sole cost and expense in accordance with the provisions of Article
24 hereof.
D. Ste. Tenant shall have the right, at its sole cost and expense, to install,operate and maintain one
or more signs affixed to the exterior of the Premises; provided, however, the locations, specifications and
designs are approved in advance by Landlord. Tenant also shall have the right to instate maintain,, at Its
sole�e,one reader board on the monument to be erected on the Subject Parcel,which reader board shall
be in the lower position, which monument sign is described on Exhibit F attached hereto. All signs must
comply with the sienage plan previously approved by the City of St. Anthonv
and attached hereto as Exhibit F and with the ordinances of the City of St. Anthony and any and all
agreements, declarations, restrictions and covenants affecting the Subject Parcel (the "Private Restrictions"),
and shall be harmonious with the general exterior architectural treatment of the building on the Subject
Property and with the general Shopping Center exterior design and appearance. The Private Restrictions
include,without limitation, that certain Reciprocal Easement Agreement and Stormwater Maintenance and
Easement Agreement both dated May 6, 1996 and recorded as Document Nos. and
respectively,in the officer of the Ramsey County Recorder. Tenant shall not erect,install,place
or cause to be erected,installed or placed any signs,canopies,lettering,place cards,decorations or advertising
or any type on the exterior of the Premises without obtaining,on each occasion, the prior written consent of
Landlord. Tenant may install awnings on the exterior of the Premises with Landlord's prior written consent,
which consent will not be unreasonably withheld. Tenant shall have no right to erect any sign of any kind or
nature which advertises a business or product other than Tenant's. All signs and all materials placed in the
windows of the Premises shall be maintained in such a manner as to be sightly and in good condition and
repair and not be obscene or offensive. Tenant shall keep any electrical signage illuminated for at least the
• hours that Tenant is open for business and may keep such signage illuminated for such longer hours as Tenant
may elect. Tenant shall operate and maintain said signs in accordance with all Applicable Laws and such
reasonable rules as Landlord may promulgate. Tenant shall remove, at its expense, all such signs at the
expiration or termination of the Term and repair any damage caused by such removal.
ARTICLE 5: USE
Subject to the provisions of Article 29,Section AA(D hereof.Tenant shall occupy the Premises upon
the commencement of the Term, and thereafter will continuously conduct in 100%of the Premises only the
business expressly set forth in Section 8 of the Data Sheet and shall keep the Premises open for business to
the public during all regular and customary days and hours for such type of business and at least on such days
and for such minimum hours as may be reasonably designated by Landlord from time to time. Tenant shall
at all times conduct its business in a reputable manner as a quality retail establishment in accordance with the
standards of the Shopping Center. The Premises shall not be used in such manner that the Landlord shall
be obligated in accordance with any requirement of law or of any public authority on account of the purpose
or manner of said use, to make any addition or alteration to or in the building of which the Premises are a
part. Tenant will not,without the written consent of Landlord, (i) place or maintain any merchandise, flags,
banners, balloons, tents, temporary or movable signs or other articles outside of the Premises; (ii) use or
permit the use of any loudspeakers, phonographs, public address systems, flashing, moving and/or rotating
lights, sound amplifiers, radio or broadcasts within the Premises which are audible or visible outside the
Premises; (iii) except within the Premises, solicit business or distribute advertising material within the
Shopping Center; (iv) permit the parking of delivery vehicles so as to interfere with the use of any driveway,
walk,parking area,or other Common Areas in the Shopping Center or the Subject Parcel;or(v)conduct any
fire,bankruptcy, liquidation, going out of business or auction sales, either real or fictitious. Tenant will not
use or permit upon the Premises anything that may be dangerous to life or limb. Tenant will not in any
manner deface or injure said building or any part thereof or overload the floors of the Premises. Tenant will
• not do anything or permit anything to be done upon the Premises in any way tending to create a nuisance.
Tenant will promptly and fully comply with all health and police requirements and regulations respecting the
Premises. Tenant will not use the Premises for lodging or sleeping purposes or for any illegal purposes.
Tenant shall not conduct nor permit to be conducted on the Premises any business or activity which is contrary
to Applicable Laws. Tenant shall promptly comply with all Applicable Laws, with the requirements of any
board of fire underwriters, with any directive or occupancy certificate issued pursuant to any law or by any
public officer, and with the requirements and provisions of all recorded documents affecting the Premises.
ARTICLE 6: RENT
A. Rentals. Tenant covenants and agree's to pay to Landlord,without set-off,deduction or demand, at
the address shown in the heading of this Lease,or at such other place as Landlord may designate in writing
to Tenant, rental at the following rates and times:
326559.8 Redlined V8 to V7 9.27-96 8
i
(1) Annual Minimum Rent. Tenant shall pay annually during the Term of this Lease
the sum specified on the Data Sheet as Annual Minimum Rent,which sum shall be
• payable in twelve(12) equal monthly installments,on or before the first day of each
month,in advance. Should the Term of this Lease commence or terminate on a day
other than the first day of a calendar month, then the rental for such partial month
shall be equal to the product obtained by multiplying the number of days of the
Term included in the partial month by a fraction, the numerator of which is the
Annual Minimum'Rent then in effect and the denominator of which is 360.
(2) Other Charges. Tenant shall pay all other charges, sums or amounts permitted to
be imposed against it under any other Article of this Lease concurrently with the
next succeeding installment of Annual Minimum Rent, unless a different time for
such payment is specified in this Lease.
B. Rent Definition. For purposes of this Lease, "Rent" shall include Annual Minimum Rent and
Tenant's Proportionate Share of Taxes (Article 9),costs and expenses of the Common Areas (Article 10) and
insurance premiums (Article 13).
C. Late Payments, Landlord's Rights. If..
(a) Tenant fails to pay Rent when such payment is due and such failure continues for ten (10) days
after written notice is given by Landlord to Tenant, or
(b) Tenant is more than ten (10) days late in the payment of any Rent and Landlord has within the
twelve month period immediately preceding such due date given Tenant at least one written notice
of failure to pay Rent,
Tenant shall pay concurrently with the late payment five percent (5%) of the delinquent amount to
• compensate Landlord for the administrative costs associated with such late payment. No payment by Tenant
or receipt by Landlord of a lesser amount than the monthly Rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction,and Landlord
may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent
or pursue any other remedy in this Lease provided.
D. Adjustment for Construction. The parties acknowledge that the Annual Minimum Rent has been
calculated based upon (1) the rental rate per square foot as specified in Section 10 of the Data Sheet,and (2)
the square footage of the Premises as specified in Section 2 of the Data Sheet. In the event Landlord's Work
in the Premises is not substantially completed on the date of signing this Lease Agreement, then upon such
completion, Landlord's architect shall measure the Premises to confirm the actual square footage. Such
measurements shall be to the outside face of all exterior walls and to the center of all common demising walls,
and shall include all interior trash storage areas. In the event said measurement results in a number which
is greater or lesser than the square footage described in Section 2 of the Data Sheet,the actual square footage
of the Premises, pursuant to said measurement,shall govern this Lease, in which case the Annual Minimum
Rent shall be adjusted as follows: (a) the Annual Minimum Rent specified in Section 10 of the Data Sheet
shall be recalculated by multiplying the actual square footage of the Premises as so determined by Landlord's
architect by the rental rate per square foot for each of the respective periods as shown in Section 10 of the
i Data Sheet, and each such adjusted Annual Minimum Rent shall be payable monthly in installments of the
one-twelfth of the amount of such adjusted Annual Minimum Rent.
ARTICLE 7: INTENTIONALLY OMITTED
ARTICLE 8: INTENTIONALLY OMITTED
eARTICLE 9: TAXES
A. Real Estate Taxes. Tenant shall pay to Landlord its"Proportionate Share"of all real estate taxes and
special assessments (including interest thereon, but excluding any special assessments for work performed
within the boundaries of the Shopping Center at the request of Landlord, which work and resulting
assessments are performed and levied because of Landlord's development work within the Shopping Center)
and charges against the land, buildings or improvements comprising the Subject Parcel that are levied or
assessed by any lawful authority and which are payable during each calendar year during the term of this Lease
(such taxes, special assessments (and interest thereon) and charges being herein called "Taxes"). For the
calendar years in which this Lease commences and terminates, the provisions of this Article shall apply, and
Tenant's liability for Taxes for such years shall be subject to a pFerata _pro rata adjustment based on the
number of days of said calendar year during which the Term of this Lease is in effect. Should the United
i States government, the State of Minnesota or any political subdivision thereof or any other authority
possessing such jurisdiction and authority to impose a tax,assessment,excise and/or surcharge of any kind or
nature upon, against or with respect to (1) all or any part of the rent (as such term is defined by such
326559.8 Redlined V8 to V7 9-27-6 9
ti
authority) to be paid by Tenant or received by Landlord under this Lease, or (2) the parking areas or the
number of parking spaces in the Subject Parcel, or (3) taxes imposed in lieu of ad valorem real estate taxes;
• such tax,assessment,excise and/or surcharge shall be deemed to constitute a part of the term"Taxes"as used
herein. Taxes shall not include any inheritance,estate,succession,transfer,gift,franchise,corporation,income
or profit tax that is imposed upon Landlord.
B. Tenant's "Proportionate Share". For purposes of this Article, Tenant's "Proportionate Share" shall
be equal to a percentage obtained by multiplying 100 by a fraction, the numerator of which shall be the
number of square feet of the Premises, and the denominator of which shall be the total number of rental
square feet located upon the Subject Parcel for occupancy by tenants, such area being called in this Article
"Rentable Area". Changes in Rentable Area or the square footage of the Premises shall, for purposes of
determining Tenant's Proportionate Share under this Article, be effective on the first day of the month
coincident with or immediately following such change,and the square footage of the Premises and Rentable
Area,respectively,in effect for the whole of any accounting period shall be the average of such square footage
of the Premises and the Rentable Area,respectively,in effect on the first day of each calendar month in such
accounting period.
C. Payment of Taxes. Tenant shall pay its Proportionate Share of Taxes in monthly installments on or
before the first day of each calendar month, in advance, in an amount estimated by Landlord; provided, that
in the event Landlord is required under any mortgage covering the Shopping Center and/or the Subject Parcel
to escrow Taxes, Landlord may, but shall not be obligated to, use the amount required to be so escrowed as
a basis for its estimate of the monthly installments due from Tenant hereunder. Upon receipt of all tax and
assessment bills attributable to any calendar year during the Term hereof,Landlord shall furnish Tenant with
a written statement of the actual amount of Tenant's Proportionate Share of the Taxes for such calendar year.
In the event the total amount of monthly installments paid by Tenant pursuant to this Article does not equal
the sum due from Tenant as shown on such statement,then Tenant shall pay to Landlord the deficiency upon
receipt of such statement, or Landlord shall issue to Tenant at the time the statement is furnished a credit
• invoice for such excess, as the case may be. A copy of a tax or assessment bill submitted by Landlord to
Tenant shall at all times be sufficient evidence of the amount of Taxes against the property to which such bill
relates. Prior to or at the commencement of the Term of this Lease and from time to time thereafter
throughout the Term hereof, Landlord shall notify Tenant in writing of Landlord's estimate of Tenant's
monthly installments due hereunder. Landlord's and Tenant's obligations under this Article shall survive the
expiration or termination of this Lease. Landlord shall pay all Taxes when and as they become due, unless
the same are contested in accordance with Applicable Laws. In any event, late charges, penalties or interest
assessed for non-payment shall not be included in Taxes, provided that Tenant pay its Proportionate Share
of Taxes when due.
D. Certain Costs and Refunds, Contests. Notwithstanding anything in this Article to the contrary, all
reasonable costs and expenses incurred by Landlord during negotiations for or contests of the amount of Taxes
shall be included within the term "Taxes", provided such costs and expenses shall not exceed the amount of
the reduction in Taxes. In the event a refund is obtained,Landlord shall issue a credit invoice for same,such
portion to be based upon the percentage of the original Taxes paid by Tenant from which the refund was
derived. Landlord shall have the exclusive right to contest Taxes in the manner provided by law.
E. Other Taxes, License Fee and Charges. In addition to the foregoing, Tenant at all times shall be
responsible for and shall pay,before delinquency,all taxes levied,assessed or unpaid on any leasehold interest,
any right of occupancy,any investment of Tenant in the Premises,or any personal property of any kind owned,
installed or used by Tenant including Tenant's leasehold improvements, or on Tenant's right to occupy the
Premises. Tenant also shall pay,as they become due and payable and before they become delinquent,all fees,
charges and expenses required for licenses and/or permits, if any, required for Tenant's use of the Premises
during the Term of this Lease.
• ARTICLE 10: COMMON AREAS
A. Common Areas. The term "Common Area" or "Common Areas" means the entire areas within the
Subject Parcel designated from time to time by Landlord for the common use or benefit of the occupants of
the Subject Parcel including,but not by way of limitation,parking lots,landscaped and vacant areas,passages
for trucks and automobiles,areaways,roads,sidewalks,walkways and curbs,with facilities appurtenant to each,
and water detention or retention facilities, including, but not limited to, treatment areas and settling ponds,
whether located within or outside of the Subject Parcel. Subject to the parking restrictions set forth in Section
E of this Article,and further subject to reasonable,nondiscriminatory rules and regulations to be promulgated
by Landlord from time to time, the Common Areas are hereby made available to Tenant and its employees,
agents, customers and invitees for their reasonable nonexclusive use in common with other tenants, their
employees,agents,customers,invitees,Landlord and others entitled from time to time to use the same for the
purposes for which constructed. Landlord shall have the right to enter into,modify and terminate easements
and other agreements pertaining to the use and maintenance of the Common Areas;to construct parking areas
and facilities; to establish and change the level of parking surfaces; to temporarily close any portion, but not
all,of the Common Areas to such extent as may,in the opinion of Landlord's counsel,be necessary to prevent
326559.8 Redlined V8 to V7 9.27-% 10
a dedication thereof or the accrual of any rights to any person or to the public therein; to close temporarily
any portions, but not all, of the Common Areas,and to do and perform other such acts in and to said areas
and improvements as, in the exercise of good business judgement, Landlord shall determine to be advisable
• with a view to the improvement of the convenience and use thereof by tenants,their officers,agents,employees
and customers. Notwithstanding the foregoing to the contrary, any changes to the Common Areas located
within the Subject Parcel made by Landlord shall not materially and adversely effect the number of parking
spaces on the Subject Parcel or 4he obstruct or block access to the Premises from the two driveway entrances
to the Subiect Parcel shown on Exhibit C attached hereto and designated "Driveway Access".
B. Operation of Common Areas. Except for Tenant's obligations under Article 12 Section B,Landlord
shall operate and maintain the Common Areas or shall cause the same to be operated and maintained in a
manner deemed by Landlord reasonable, appropriate and for the best interests of the occupants of the
Shopping Center. Landlord shall have an annual report made of the cost and expense of operating and
maintaining the Common Areas incurred during each calendar year. Such epelating o ration and
maintenance and cost and expense thereof shall include, but not be limited to, all sums expended in
connection with the Common Areas for operating, repairing, lighting, cleaning, painting, insuring (including
liability insurance for personal injury, death and property liability and insurance against fire, theft or other
casualties), removing of snow, ice debris and surface water, sewer, striping, security, inspecting, equipment
depreciation, worker's compensation insurance covering personnel, fidelity bonds for personnel, insurance
against liability for defamation and claims of false arrest occurring in and about the Common Areas,
professional services,service and maintenance contract fees,regulation of traffic,fees for permits,all cost and
expenses(other than those of a capital nature)of repair and replacement of paving,curbs,sidewalks,walkways,
roadways, parking surfaces, signage, landscaping, drainage, ponding areas and facilities, utilities and lighting
facilities, fees and other charges payable by Landlord pursuant to any document of record and governmental
requirement affecting the Shopping Center (including without limitation the Private Restrictions), and an
administrative fee equal to fifteen percent (15%) of the total of the foregoing costs and expenses, or in lieu
thereof, at the option of Landlord, management fees and'expenses not to exceed 15% of such costs and
expenses. The cost and expense of operating the Subject Parcel shall also include,all costs,expenses,fees and
• charges payable by Landlord for operation, repair and maintenance of any offsite improvements (including,
without limitation, roadways, utilities and lighting facilities, signage, drainage, ponding areas and facilities)
serving or benefitting the Subject Parcel and other costs, expenses, fees and charges payable by Landlord
pursuant to any document of record and governmental requirement affecting the Subject Parcel (including
without limitation the Private Restrictions)and Tenant shall be required to pay Tenant's Proportionate Share
of all such expenses. The said costs and expenses of such offsite improvements chargeable to the Tenant shall
be made on a proportionate basis which is fair and equitable. Notwithstanding anything to the contrary herein
contained, Common Area costs and expenses shall exclude: (1) leasing commissions, attorneys' fees, costs,
disbursements and other expenses incurred in connection with negotiations or disputes with tenants or leasing,
renovating or improving space for tenants or other occupants of the building; (2) costs including permits,
licenses and inspection fees incurred in renovating or otherwise improving or decorating, painting or
redecorating vacant leasable space or leasable space for tenants or other occupants; (3)Landlord's cost of any
service sold to tenants or other occupants for which Landlord is entitled to be reimbursed as an additional
charge or rental over and above the minimum rent, operating costs and expenses, insurance and tax charges
and escalations payable under the lease with that tenant or other occupant; (4)costs incurred by Landlord for
alterations or additions that are considered capital improvements and replacements under generally accepted
accounting principles (unless the same is made to reduce operating costs or limit increases therein); (5) any
depreciation and amortization of the building;(6)costs of a capital nature,including,but not limited to capital
improvements,capital repairs,capital equipment and capital tools as determined in accordance with generally
accepted accounting principles (unless the same is made to reduce operating costs or limit increases therein);
(7) overhead and profit increments paid to subsidiaries or affiliates of Landlord for management or other
services on or to the building or for supplies or other materials to the extent that the cost of the services,
supplies or materials exceed the cost that would have been paid had the services,supplies or materials been
provided by unaffiliated parties on a competitive basis; (8) interest on debt or amortization payments or
increases in interest on debt on any mortgages and rental under any ground or underlying lease or charges in
deed of trust or any other debt for borrowed money; (9) rentals and other related expenses incurred in leasing
• air conditioning systems, elevator or other equipment ordinarily considered to be of a capital nature, except
equipment used in providing janitorial services that is not affixed to the building; (10) all items and services
for which Tenant reimburses Landlord or pays third persons or which Landlord provides selectively to one or
more tenants without reimbursement; (11)advertising and promotional expenditures(except for signage);(12)
repairs and other work occasioned by fire,windstorm or other casualty of an insurable nature and other work
paid from insurance or condemnation proceeds; (13)Landlord's costs of electricity and other services that are
sold to tenants and for which Landlord is entitled to be reimbursed by tenants as an additional charge or
rental over and above the minimum rent, operating costs and expenses, insurance and tax charges and
escalation payable under the lease with such tenant;(14)any costs,fines or penalties incurred due to violation
by Landlord of any governmental rule or authority; (15) costs for sculpture, paintings or other objects of art;
(16) wages, salaries or other compensation paid to any executive employees above the grade of building
manager shall be limited to Landlord's general overhead not to exceed ten percent(10%)of any such expense;
(17) the cost of correcting any code violations which were violations prior to the commencement of the term
of this Lease; (18) costs arising from Landlord's charitable or political contributions; and (18) costs arising
326559.8 Redlined V8 to V7 9.27-96 11
from the presence of hazardous materials or substances in.on.or under or about the Premises. The annual
report shall be made available to Tenant for inspection during normal business hours.
• C. Tenant's "Proportionate Share". For purposes of this Article, Tenant's "Proportionate Share" shall
be equal to a percentage obtained by multiplying 100 by a fraction, the numerator of which shall be the
number of square feet of the Premises,and the denominator shall be the total number of rentable square feet
located upon the Subject Parcel for occupancy by tenants,such designated area being called in this Article the
"Rentable Area". Changes in Rentable Area or the square footage of the Premises shall, for purposes of
determining Tenant's Proportionate Share under this Article, be effective on the first day of the month
coincident with or immediately following such change, and the square footage of the Premises and Rentable
Area,respectively,in effect for the whole of any accounting period shall be the average of such square footage
of the Premises and the Rentable Area, respectively,in effect on the first day of each calendar month of such
accounting period.
D. Payment of Operating Costs. Tenant shall pay to Landlord during the Term of this Lease Tenant's
Proportionate Share of the costs and expenses of maintaining and operating the Common Areas. Tenant's
Proportionate Share thereof shall be paid by Tenant in monthly installments on the first day of each calendar
month,in advance,in an amount estimated by Landlord from time to time. Within ninety(90) days after the
end of each calendar year, Landlord shall furnish Tenant with a statement of the actual amount of Tenant's
Proportionate Share of such costs and expenses for such period. In the event the total of Tenant's monthly
installments for any calendar year does not equal its Proportionate Share as shown on such statement, then
Tenant shall promptly pay Landlord any deficiency,or Landlord upon receipt of such annual statement,shall
issue to Tenant a credit invoice for such excess, as the case may be. Landlord will keep books and records
of such costs and expenses. Tenant will have the right,at its expense, to inspect and audit Landlord's books
and records relating to such costs and expenses. If Tenant does not give Landlord written notice within one
(1)year after receiving Landlord's statement of Tenant's Proportionate Share of actual costs and expenses that
Tenant disagrees with the statement and specifying the amounts in dispute, Tenant will be deemed to have
waived the right to contest the statement. If Landlord provides Tenant with such a statement of Tenant's
• Proportionate Share of actual costs and expenses and Landlord does not give Tenant written notice of any
corrections or other changes of the statement within one year thereafter, Landlord will be deemed to have
waived the right to change the statement. For the calendar years in which this Lease commences and
terminates,the provisions of this Article shall apply,and Tenant's liability for its Proportionate Share of such
costs and expenses shall be subject to a p;@;ata eta adjustment based on the number of days of said
calendar year during which the Term of this Lease is in effect.
E. Parking. Parking for Tenant and its employees, agents, sublessees, licensees, concessionaires,
contractors,customers and their invitees (collectively"Tenant,et al,")is restricted to only those parking areas
located on the Subject Parcel, subject to such exclusive parking rights in parking spaces located in the
southerly 129 feet of the Subject Parcel as Landlord may from time to time designate in favor of the other
tenant or tenants of the building of which the Premises are a part. Tenant may, at its expense, sign t4a uM
t_6 parking spaces located in the Northerly 150 feet of the Subiect Parcel for exclusive use of Tenant's
customers . Such signs shall only be installed if
in the reasonable judgment of Tenant it is necessary due to parking problems. The size,location and design
of such signs shall be subject to Landlord's prior written approval. Enforcement of such exclusive parking
shall be the sole responsibility of Tenant. If Tenant, et al, fail to park their cars in the designated area and
if the problem continues for three (3) days following written notice by Landlord to Tenant, Landlord shall
have the right to charge Tenant Ten Dollars ($10) per day per car parked in any areas other than those
designated. Parking available to Tenant shall conform to the parking ordinances of the City of St. Anthony
and Tenant shall have no right to parking areas in excess of ordinance requirements. At Landlord's request,
Tenant shall furnish Landlord with automobile license numbers of Tenant,et al, and, thereafter, shall notify
Landlord within five (5) days after a change therein.
F. Deliveries. All deliveries to the Premises shall be limited to the areas located immediately adjacent
to the Premises on the south side of the building in which the Premises are located. In no event shall said
deliveries obstruct parking or access to any other part of the Subject Parcel or Shopping Center.
G. Changes to Shopping.Center/Subject Parcel. Landlord hereby reserves the absolute right,at any time
and from time to time,with respect to the Shopping Center and/or the Subject Parcel to (1) withdraw from
the Common Area (on the Shopping Center as a whole and/or on the Subject Parcel) such portions thereof
as may be necessary to construct or cause to be constructed additions to existing buildings and/or additional
buildings; (2) construct or cause to be constructed additions to existing buildings and/or additional buildings
and demolish or cause to be demolished all or a portion of existing buildings on the Shopping Center and/or
the Subject Parcel; (3) increase or decrease the land size of the Shopping Center, exclusive of the Subject
Parcel; (4) change the location and arrangement of accesses, entrances, curbs, roads, drives, sidewalks,
walkways,signs,parking areas,landscaping,drainage facilities,lighting or other improvements in the Common
Areas (on the Shopping Center as a whole and/or on the Subject Parcel); and (5) change, from time to time,
the size, location and nature of any Common Area (on the Shopping Center as a whole and/or on the Subject
Parcel),add to or delete portions thereof or withdraw portions thereof from such use as such,and may make
326559.8 Redlined V8 to V7 9.27-6 12
installations thereon, provided that any changes made described in accordance with subsection (4) and (5)
above shall not materially and adversely affect the number of parking spaces on the Subject Parcel an the or
• obstruct or block access to the Premises from the"Driveway Access" as shown on Exhibit C attached hereto:
and Landlord shall not be subject to liability therefor, nor shall Tenant be entitled to any compensation or
rent adjustment therefor, nor shall any such action be deemed an actual or constructive eviction of Tenant.
Any such changes requiring approval of the City of St. Anthony or other governmental authority having
jurisdiction shall not be made unless such approval is first obtained.
ARTICLE 11: UTILITIES
A Electricity, Natural Gas, Water and Sewer. Landlord agrees to cause mains, conduits and other
facilities to be provided which are capable of supplying electricity,natural gas,water and sewer service to the
Premises for its intended use. Tenant shall pay for all utilities,including without limitation,electricity,natural
gas, telephone,water and sewer service used in the Premises. If Landlord shall elect to supply the service or
services used, or if said services are invoiced to Tenant through Landlord, Tenant shall accept and use the
same as tendered by Landlord and pay therefor, at the applicable rates filed with the proper regulating
authority, and in effect, or if not required to be so filed, or if not in effect, then at rates prevailing in the
vicinity for similar service.
B. Heating, Air Conditioning and Ventilating. Tenant agrees at its own cost to repair, operate and
maintain the system designed to heat, air condition and ventilate the Premises.
C. Interruption of Service. Landlord shall not be liable in damages or otherwise if the furnishing by any
supplier of any utility service or other service to the Premises shall be interrupted or impaired by fire,accident,
riot,strike, act of God, the making of necessary repairs or improvements or by any causes beyond Landlord's
control,provided,however,that in the event any such utilities are interrupted for more than
rive (5) days and the cause of such interruption is an
• event covered by Landord's insurance, then Rent shall abate hereunder for the period of such interruption
following said five_(_ period. Landlord shall cause all necessary repairs to such
services to be made as soon as reasonably possible, and in the event of a repair which necessitates the
interruption of any such service, Landlord shall give Tenant reasonable advance notice of such interruption.
D. Energy Shortage. Should it become necessary or desirable because of recommendations or directives
of public authorities to reduce energy consumption within the Subject Parcel,Tenant will cooperate in energy
conservation programs in accordance with reasonable, uniform and non-discriminatory standards established
by Landlord.
ARTICLE 12: MAINTENANCE, REPAIRS AND ALTERATIONS
A. Landlord's Obligations. Landlord shall keep or cause to be kept,and shall comply with all Applicable
Laws with respect to, (1) the foundations, the exterior and interior load-bearing walls, the roof, downspouts
and gutters of the building of which the Premises are a part,and(2)to the extent Tenant or other tenants are
not obligated to maintain the same, all utility systems, lines, conduits and appurtenances thereto located
outside the Premises and within the Landlord's control,and (3) to the extent any utilities are metered within
the Premises, all utility systems, lines,conduits and appurtenances thereto located within the Premises up to
the meter, in good repair, ordinary wear and tear excepted; provided however, if the need for such repair is
directly or indirectly attributable to or results from action or inaction of Tenant or from the business activity
being conducted within the Premises, then, in such case, Tenant agrees, subject to the limitations of Article
1.3, Section E hereof, to reimburse Landlord for all costs and expenses incurred by Landlord with respect to
such repair. In the event repair or changes are required by changes in local, state or federal laws, rules or
ordinances which occur after the date of this Lease, Tenant agrees to reimburse Landlord for all costs and
expenses incurred by Landlord with respect thereto,Brovided if such changes or repair are of a capital nature,
all such costs as are necessary because of Tenant's particular tvpe of business or activity on the Premises
shall be paid by Tenant,and if otherwise,the cost thereof shall be amortized and Tenant shall nav the amount
to be amortized over the remainder of Term.inclusive of the Option Term. Landlord shall commence repairs
it is required to do hereunder as soon as reasonably practicable after receiving written notice from Tenant of
the necessity of such repairs, but in no event shall Landlord be required to make any other repairs, subject
to the provisions of Article 17 and Article 18 Section A herein. Notwithstanding any provisions to the
contrary in this Lease,if any default shall occur in the performance of any of Landlord's obligations under this
Article 12, Section A, or Article 10, Section B relating to Landlord's obligation to operate and maintain the
Common Areas on the Subject Parcel, then Tenant,without being obligated to and without thereby waiving
such default, after thirty (30) days'written notice to Landlord (plus such additional time as may be required
to cure a default which,despite Landlord's diligent efforts,cannot by its nature be cured within said thirty(30)
days), Tenant may perform such obligation. The full amount of the cost and expense so incurred by Tenant
shall be paid by Landlord to Tenant within thirty(30) days after receipt of a statement therefor from Tenant.
If Landlord shall fail to pay such costs and expenses within thirty (30) days after receipt of said statement,
326559.8 Redlined V8 to V7 9-27-96 13
Tenant shall have the right to deduct such amount,without liability or forfeiture,as an offset from Rent then
due or thereafter coming due hereunder.
• B. Tenant's Obligations Tenant will (1) illuminate,clean and remove snow and ice from the sidewalks
and door entrances along the south, north and east sides of the Premises at Tenant's expense; (2) keep the
inside and outside of all glass in the doors and windows of the Premises clean; (3) maintain in good working
order all electrical, plumbing, HVAC,and drainage systems within the Premises; (4) replace promptly,at its
expense,any broken doors and any cracked or broken glass of the Premises with glass of like kind and quality;
(5) maintain and repair the Premises at its expense in a tenantable,clean,orderly and sanitary condition and
free of insects, rodents,vermin and other pests; (6) keep any garbage, trash, rubbish or refuse removed at its
expense on a regular basis and temporarily stored in the Premises or as otherwise designated by Landlord and
in accordance with local codes; (7) keep all mechanical apparatus free of vibration and noise which may be
transmitted beyond the Premises; (8) comply with all reasonable recommendations of Landlord's insurance
carrier hereafter in effect; (9) maintain and repair its sign(s) in good working order; and (10) conduct its
business and maintain window displays, advertising matter, signs, merchandise and store fixtures in keeping
with the character and standards of a first class shopping center. Except as may be limited by the provisions
of Article 13, Section E hereof, Tenant will also repair promptly, at its expense ung-lass :ha cast tharnat ;s
(11) any damage to the Premises or any other
improvements within the Shopping Center caused by Tenant, its employees, agents, contractors and
subcontractors, or anyone claiming by or through Tenant, and (12) any damage caused by the installation or
removal of Tenant's property, regardless of fault or by whom such damage shall be caused unless caused by
Landlord,its agents,employees or contractors or subcontractors. Except as otherwise provided in this Article,
the Premises shall at all times be kept in good order,condition and repair at Tenant's own cost and expense
and in accordance with all Applicable Laws. If Tenant refuses or neglects to commence repairs within twenty
(20)days after written demand,or fails to complete such repairs within a reasonable time thereafter,or in the
case of an emergency, Landlord may make the repairs without liability to Tenant for any loss or damage that
may accrue to Tenant's stock or business by reason thereof unless caused by the negligence of Landlord (but
• in no event shall Landlord be liable for any consequential damages), and if Landlord makes such repair,
Tenant shall pay to Landlord the costs thereof.
C. Tenant's Alterations. Except for decorating changes and other alterations which do not adversely
affect the structure, systems, Common Areas, exterior, or value of the building of which the Premises are a
part and which do not exceed a cost of$5,000 for work done as a single project or alteration,Tenant shall not
make any repairs,replacements,alterations,improvements or additions("Alterations")to the Premises without
the prior written consent of Landlord, which consent shall not be unreasonably withheld so long as the
Alterations do not adversely affect the structure, systems, Common Areas,exterior or value of said building.
If Landlord's consent is required, then Tenant in requesting such consent and prior to any such work, shall
at its sole cost and expense:
(1) Submit to Landlord for review plans and specifications showing such work in reasonable
detail.
(2) Furnish Landlord with the names and addresses of all contractors and copies of all contracts.
(3) Provide Landlord with all necessary permits evidencing compliance with all applicable laws,
ordinances and regulations.
(4) Provide Landlord with certificates of insurance in forms and amounts reasonably satisfactory
to Landlord naming Landlord as an additional insured when required by Landlord.
(5) Comply with such other requests as Landlord may reasonably make in connection with such
work, so long as the same does not result in additional expense to Tenant.
All such work shall, at Landlord's election, be subject to supervision by Landlord. Tenant shall protect,
defend, indemnify and hold Landlord,the said building and other tenants of said building,harmless from and
against any liabilities which may arise out of or in connection with the Alterations. All Alterations by Tenant
will be constructed with new materials,in a good and workmanlike manner,and in compliance with the plans
and specifications approved by Landlord, all insurance requirements, and all Applicable Laws. Tenant will
pay for any labor,services,materials,supplies or equipment furnished to Tenant in or about the Premises,and
will pay and discharge any mechanic's,materialmen's or other lien against the Premises resulting from Tenant's
failure to make such payment,or provide for the discharge thereof as provided in Article 15 hereof. Landlord
may post notices of nonresponsibility on the Premises as provided by law. Upon completing any Alterations,
Tenant shall furnish Landlord with contractors'affidavits,sworn statements and full and final waivers of liens
and receipted bills covering all labor and material expended and used.
D. Exterior of Premises. Except for any repairs or maintenance required to be performed by Tenant in
accordance herewith,Tenant will not paint or decorate any part of the exterior of the Premises,including store
fronts,or attach or affix any signs to any portion of the exterior of the Premises,or display any signs attached
326559.8 Redlined V8 to V7 9.27.96 14
to the exterior of windows of the Premises without first obtaining Landlord's written approval. In the event
• of a violation of the foregoing by Tenant, Landlord may,upon five (5)days written notice to Tenant,remove
the same without any liability and may charge the expense incurred by such removal to Tenant. Landlord shall
have the exclusive right to use all or any part of the roof of the Premises for ,
L'gidlOW °'"" AQt Amat an, .— an She roof of the D s those Purposes described in Article 1.
Section A hereof, and Tenant shall not erect or install any equipment, antenna or other structure or device
on the roof without the prior written consent of Landlord,except as may otherwise be provided in Article 29,
Section W hereof. Landlord shall also have the right to install, maintain, use, repair and replace within the
Premises pipes, ducts, conduits,wires and all other mechanical equipment serving other parts of the Subject
Parcel or Shopping Center so long as the same do not reasonably interfere with the use of the Premises by
Tenant.
E. Maintenance Contract. Tenant shall, at its sole cost and expense, during the term of this Lease
maintain a regularly scheduled preventive maintenance/service contract with a maintenance contractor for the
servicing of all heating and air conditioning systems and equipment serving the Premises. The maintenance
contractor and contract must be approved by Landlord (which approval shall not be unreasonably withheld)
and must include all services suggested by the equipment manufacturer. If Tenant fails to maintain such a
contract during the Term hereof,Landlord may,upon five (5)days written notice to Tenant,obtain the same
and Tenant shall pay the cost thereof to Landlord.
ARTICLE 13: INSURANCE
A. Tenant's Insurance.
(1) During the Term hereof,Tenant shall keep,in full force and effect,at its expense,a policy or
policies of comprehensive public liability insurance with respect to the Premises and the
business of Tenant and any approved subtenant, licensee, or concessionaire, with limits of
• liability not less than$500, 11,000,000 for personal injury,bodily injury,sickness,disease
or death and $899,9W 11,000,000 for damage or injury to or destruction of property
(including the loss of use thereof)for any one occurrence,and liquor liability insurance with
limits of not less than $16000.000.
(2) If during the Term hereof Tenant receives Landlord's written approval to operate a pressure
boiler or other pressure vessels in the Premises, Tenant will place and carry insurance in
adequate amounts approved by Landlord,but not less than $1,000,000 property damage per
occurrence, and will comply fully with all applicable laws, statutes and regulations with
reference to the operation and inspection of boilers and steam vessels.
(3) If during the Term hereof the nature of Tenant's operation is such as to place any or all of
its employees under the coverage of local workers'compensation or similar statutes,Tenant
shall also keep in force,at its expense,workers'compensation or similar insurance affording
statutory coverage and containing statutory limits.
(4) During the Term hereof, Tenant agrees to carry, at its expense, insurance for fire and other
casualty including,but not limited to,vandalism and malicious mischief, perils covered by all
risk and extended coverage, theft, sprinkler leakage, water damage (however caused),
explosion,malfunction or failure of heating and cooling or other apparatus,and other similar
risks, including plate glass insurance, insuring for the full insurable replacement value of
Tenant's merchandise, inventory,contents, trade fixtures, tenant improvements, furnishings,
operating equipment,and personal property,including wall coverings,carpeting and drapes,
lighting fixtures and built-in cabinets.
• (5) If Tenant shall not comply with its obligations under subparagraphs (1), (2h Lr (3), OF (4)
above,Landlord may,but shall not be obligated to,obtain such insurance. Tenant agrees to
pay the premium for any such insurance obtained by Landlord.
(6) All insurance required to be carried by Tenant herein shall be with insurers of recognized
responsibility licensed to do business in the State of Minnesota, shall provide that it is
specific and not contributory and name Landlord (including its officers, agents and
employees)as an additional insured with respect to comprehensive Public liability insurance
and, as it relates to property insurance,shall contain a
waiver of subrogation clause in favor of Landlord. Tenant shall furnish Landlord with
certificates evidencing that all such insurance is in effect and stating that Landlord shall be
notified in writing thirty (30) days prior to cancellation, material change or nonrenewal of
such insurance and, at Landlord's request,will deliver copies of insurance policies and any
renewals thereof.
326559.8 Redlined V8 to V7 9-27-96 15
B. Landlord's Insurance. Landlord agrees to carry with a reasonable and responsible insurer or insurers
during the Term hereof insurance for fire and extended coverage,insuring the improvements located upon the
• Subject Parcel including the Premises and all appurtenances thereof (except Tenant's merchandise, trade
fixtures,furnishings,operating equipment and personal property and also excepting wall coverings,carpeting
and drapes) in an amount not less than the greater of 80%of the full insurable value of the buildings or the
amount sufficient to prevent Landlord from becoming a co-insurer under the terms of the applicable policies.
Landlord shall also obtain rents loss insurance for a period of not less than six-(6) twelve 12 months.
Deductibles for all Landlord's insurance required herein shall be determined solely by Landlord. Landlord
may,at its option,also obtain comprehensive public liability insurance with respect to the Premises with such
limits as Landlord may from time to time determine is reasonable. Tenant shall pay to Landlord on the first
day of each month during the Term hereof Tenant's Proportionate Share of the cost of the premiums for such
insurance,except that the total cost of such comprehensive public liability insurance shall be paid by Tenant.
C. Tenant's "Proportionate Share". For purposes of this Article, Tenant's "Proportionate Share" shall
be equal to a percentage obtained by multiplying 100 by a fraction, the numerator of which shall be the
number of square feet of the Premises,and the denominator shall be the total number of rentable square feet
located upon the Subject Parcel for occupancy by Tenants,such area being called in this Article the"Rentable
Area". Changes in Rentable Area or the square footage of the Premises shall,for the purposes of determining
Tenant's Proportionate Share under this Article,be effective on the first day of the month coincident with or
immediately following such change, and the square footage of the Premises and the Rentable Area,
respectively, in effect for the whole of any accounting period shall be the average of such square footage of
the Premises and the Rentable Area, respectively, in effect on the first day of each calendar month of such
accounting period.
D. Increased Risks. Tenant will not do or suffer to be done,or keep or suffer to be kept, anything in,
upon or about the Premises which will invalidate or contravene Landlord's policies insuring against loss or
• damage by fire or other hazards (including,without limitation,public liability)or which will prevent Landlord
from procuring such policies in companies acceptable to Landlord. If anything done, omitted to be done or
suffered to be done by Tenant,or kept or suffered by Tenant to be kept,in,upon or about the Premises shall
cause the rate of fire or other insurance on the Premises or other property of Landlord in companies
acceptable to Landlord to be increased beyond the minimum rate from time to time applicable to the Premises
for the use permitted under this Lease or to any other property for the use or uses made thereof,Tenant will
pay the amount of any increase.
E. Release. By this Article, Landlord and Tenant intend that the risk of loss or damage referred to in
Article 13 Section A(2) and (4), and Article 13 Section B, be borne by responsible insurance carriers to the
extent provided therein. Accordingly,anything in this Lease to the contrary notwithstanding,it is agreed that
each party (the "Releasing Party") hereby releases the other (the "Released Party") from liability which the
Released Party would,but for this Article,have had to the Releasing Party during the Term of this Lease,and
agree to look solely to,and to seek recovery only from their respective insurance carriers in the event of a loss
of a type referred to in said Article 13 Section A(2) and (4), and Article 13 Section B, to the extent that
coverage is to be provided thereunder, whether or not such loss is actually covered. For this purpose, any
applicable deductible amount shall be treated as though it were recoverable under such policies. Insofar as
Tenant is the Releasing Party,it will also release from any such liability any ground lessor(s)or mortgagee(s)
as if the ground lessor(s) and mortgagee(s) were each a Released Party under this Article 13 Section D.
ARTICLE 14: INDEMNITY AND WAIVER
A. Indemnities.
(1) Tenant will indemnify and defend Landlord and its officers and employees and save them
harmless from and against any and all claims, actions, damages, liability and expense in
• connection with loss of life and/or personal or bodily injury or damage to property occurring
in the Premises or arising from or out of the occupancy or use by Tenant of the Premises or
any part thereof, except to the extent caused by the negligent act or intentional misconduct
of Landlord or its agents, officers or employees.
(2) Landlord will indemnify and defend Tenant and its officers and employees and save them
harmless from and against any and all claims, actions, damages, liability and expense in
connection with loss of life and/or personal or bodily injury or damage to property occurring
in the Common Areas or arising from or out of the occupancy or use by Landlord of the
Common Areas or any part thereof, except to the extent caused by the negligent act or
intentional misconduct of Tenant or its agents, officers or employees.
(3) The indemnifications and hold harmless obligations as described in subparagraphs A(1) and
A(2) of this Article 14 shall not extend to or apply to any consequential damages,but shall
survive the expiration or termination of this Lease.
376559.8 Redlined V8 to V7 9-27-% 16
B. Waiver. Except as otherwise provided in Article 14A hereof,Landlord and Tenant(each,a"Releasing
Party") shall not be liable to the other (each, a "Released Party") and each waives and releases the Released
• Party, its employees, agents and contractors, from all claims, liabilities and causes of action against the
Released Party, its employees, agents and contractors for all damage, injury to or loss or destruction of
person(s) or property (including, without limitation, all improvements, fixtures, equipment, supplies and
merchandise) sustained by the Releasing Party or its employees, agents and servants Fe6ulting f0em (I) any
Atha; tanalms in 4he Shopping Game covered by property insurance or coverable by a customary policy of
Insurance required by the terms of this Lease,even if such loss or damage shall have been caused by the fault
or negligence of the Released Party or anyone for whom such party shall be responsible. This waiver shall
include,without limitation,damage or injury to persons or property arising from steam,excessive heat or cold,
falling plaster, broken glass, sewage, gas, odors or noise, or bursting or leaking pipes or plumbing fixtures.
All property belonging to Tenant or any occupant of the Premises or the Shopping Center,including personal
property. inventory, equipment or trade fixtures in the Premises Including books. records files, computer
equipment, computer data money, securities, negotiable instruments or other papers shall be at the risk of
Tenant or such person only,and Landlord shall not be liable for damage thereto or theft or misappropriation
thereof.
ARTICLE 15: MECHANICS' LIENS
Tenant agrees to promptly pay all sums of money in respect to any labor,services,materials,supplies
or equipment furnished to Tenant in, at or about the Premises, or furnished to Tenant's agents, employees,
contractors or subcontractors,which may be secured by any mechanics',materialmens',suppliers'or other type
of lien against the Premises or the Landlord's interest therein. In the event any such lien or similar lien shall
be filed, Tenant shall within three (3) business days of receipt thereof, give notice to Landlord of such lien,
• and Tenant shall within ten (10) days after receiving notice of the filing of lien, discharge such lien by full
payment,deposit or bond; provided that if such discharge is made by deposit or bond, the form,amount and
terms of such deposit or bond shall be in all regards satisfactory to Landlord. Failure of Tenant to so
discharge the lien shall within fifteen(15)business days after notice thereof from Landlord constitute a default
under this Lease and in addition to any other right or remedy of Landlord, Landlord may, but shall not be
obligated to, discharge the same of record by paying the amount claimed to be due, and the amount so paid
by Landlord and all costs and expenses incurred by Landlord therewith, including reasonable attorney's fees,
shall be immediately due and payable by Tenant to Landlord. Nothing contained in this Lease shall authorize
or empower Tenant to do anything to encumber Landlord's title to the building of which the Premises are a
part, the Subject Parcel or the Shopping Center, or in any way subject Landlord's title to any claims of lien
or encumbrance whether claimed by operation of law or by virtue of any expressed or implied contract of
Tenant.
ARTICLE 16: ASSIGNMENT OR SUBLETTING
A. Tenant's Interest. Except as otherwise specifically provided in paragraph B of this Article 16,Tenant
may not in whole or in part assign this Lease, or sublet the Premises nor in any other manner transfer its
interest in the Lease or the Premises,voluntarily,involuntarily,by operation of law,or otherwise,without the
prior written consent of Landlord,which consent shall not be unreasonably withheld as provided in Article
16B hereof. Notwithstanding any assignment,subletting or other transfer,Tenant shall remain fully liable on
this Lease and shall not be released from performing any of the terms, covenants and conditions hereof. If
Tenant is a corporation the stock of which is not listed on a recognized security exchange, then any transfer
of this Lease from Tenant by merger, consolidation or dissolution, or any change in ownership or power to
vote a majority of the outstanding voting stock of Tenant, shall constitute an assignment,whether the result
of a single transaction or series of transactions,and shall be subject to the provisions contained herein relative
• to assignment. Acquisition of all stock of Tenant by any corporation, the stock of which is listed on a
recognized security exchange, or the merger of Tenant into such corporation, the stock of which is so listed,
shall not be considered an assignment of this Lease. All rentals received by Tenant from its subtenants in
excess of the Rent payable by Tenant to Landlord under this Lease shall be paid 50% each to Landlord and
Tenant; and all sums to be paid by any assignee to Tenant in consideration of the assignment of this Lease
shall be paid 50%each to Landlord and Tenant;provided however,that Tenant shall be first entitled to deduct
from such excess its reasonable costs and expenses incurred in procuring said subtenant or assignee. No
consent to any assignment or subletting shall be deemed to waive the operation of this Article 16 as to any
subsequent assignment or subletting, each such subsequent assignment or subletting to require Landlord's
consent. PQ; a period of thi (39) Prior to any assignment or subletting by Tenant. and for a period of
fort�fortv®days after Tenant has given written notice to Landlord
sableminge€advising of Tenant's intent to attempt to assign or sublet all or a portion of the Premises,which
sublease,Landlord shall have the right by written notice to Tenant to terminate this Lease as to that portion
of the Premises which Tenant proposes to assign or sublease, such termination to be effective as at the
proposed effer-tive data- of;he assignment or. subleas sixty (60) days atter notice from Landlord to Tenant
326559.8 Redlined V8 to V7 9.27-96 17
of its intention to terminate this Lease. Landlord's failure to exercise its rights to terminate this Lease shall
not be deemed to constitute a consent to any proposed assignment or subletting by Tenant. If Landlord elects
• to terminate this Lease, Tenant shall, on or before the termination date determined under the immediately
preceding sentence, vacate and deliver to Landlord possession of that portion of the Premises subject to
Landlord's termination. Upon termination by Landlord,Landlord may,at Landlord's option,enter into a new
lease covering all or a portion of the Premises to be vacated by Tenant
In such event, Tenant shall not be
entitled to any portion of the profit, if any,which Landlord may realize on account of such termination and
reletting. From and after the date of such termination of this Lease,Tenant shall have no further obligation
to Landlord with respect to the portion of the Premises subject to termination, except for matters occurring
or obligations arising prior to the effective date of such termination. If Landlord elects not to terminate this
Lease within the time herein specified and if Landlord thereafter consents to Tenant's request to assign or
sublet, then Tenant shall within thirty (30) days following notification of Landlord's consent, in a form and
subject to terms acceptable to Landlord, assign or sublet to the named assignee or subtenant an the torms
1—an-d-I a-r-d-n f a p;o pg6Cd ag 6;gAM C R t g;Sabi@ ging 0 f 0 Bly a p@Aj o a (and no4 all)Q9 t It a Prom;r.es,and La n d 1
sublet said poAiloa elf the Rmmim, in--hrh 0''904 th@ P;Gpg6a! --h-all-1 hfik V-dt11dFaVM, tho Landln;d's mlact*__
B. Landlord's Consent to Assignments.
(1) In connection with any subletting or assignment of this Lease as to which Landlord
may not unreasonably withhold consent,Landlord may consider all relevant factors,and it is expressly
agreed by Tenant that it shall be reasonable for Landlord to withhold its consent if any one of the
following applies:
• (a) in Landlord's reasonable business judgment, the sublessee or assignee is of a
character or reputation or engaged in business which is not consistent with the then
existing character and quality of the Shopping Center;
(b) in Landlord's reasonable business judgment,the sublessee or assignee lacks sufficient
experience in the business to operate a successful business at the Premises;
(G) the not 'AM-Mb of the sublessee or- assignee &S Of 1118 dat$ &118 HO&O Of-th@ PFOPOS@d SUblettin
(dUc the sublessee or assignee proposes to use the Premises for other than retail sales or
service;
(d) in no event shall any of the followine uses be permitted:
(i) any operation primarily used as a warehouse operation and any assembling
or manufacturing operation;
(ii) any second-hand store,government-surplus store,flea market,salvage store,
or auction house;
(iii) any dumping, disposing, incineration, or reduction of garbage (exclusive of
garbage compactors or containers located in the rear of any building);
• (iv) any central laundry, dry cleaning plant, or laundromat; provided, however,
this prohibition shall not be applicable to on-site service oriented to pickup
and delivery by the ultimate consumer, including nominal supporting
facilities, as the same may be found in retail shopping districts in the
metropolitan area where the Shopping Center is located;
(v) any automobile, truck, trailer,or recreational-vehicle sales, leasing,display,
repair, or car wash;
(vi) any place of amusement or recreation, such as a movie theater, bowling
alley, pool or billiard parlor, amusement or video arcade, game room,
exercise facility, gymnasium, health spa or club, massage parlor, dance
studio, discotheque, dance hall, or skating rink;
326559.8 Redlined V8 to V7 9-27-% 18
(vii) any auditorium,meeting hall,school or other place of public assembly,bar,
off-track betting business, bingo or game of chance business;
• (viii) any living quarters, sleeping apartments, or lodging rooms;
(ix) any veterinary hospital or animal raising facilities;
(x) any mortuary-,
(xi) any establishment that derives a substantial portion of its revenue from the
sale, rental, or exhibition of books, periodicals, films, videotapes, or other
materials that are obscene or pornographic;
(xii) any bar, tavern, restaurant or night club;
(xiii) any health care facility, such as a clinic, medical office, dental office,
chiropractic office, or optometric office;
(xiv) any unlawful or illegal purpose;
(xv) any use that is a public or private nuisance;
(xvi) any supermarket,convenience food market,meat market or department,fish
and seafood market or department,grocery market or department,vegetable
produce market or department,fruit produce market or department,bakery
or bakery department, dairy store or department, or any other store or
business establishment selling food at wholesale;
• (xvii) any facility for the sale of health and beauty products,including prescription
drugs and medications; and
(f) the subletting or assignment would in Landlord's reasonable judgment breach any
covenant or agreement binding on Landlord, Tenant, the sublessee, the assignee or
the Shopping Center in respect of radius,location,use or exclusivity or other matter
in any other lease, financing agreement, recorded document or other agreement
(including without limitation the Private Restrictions),or under any Applicable Laws.
The foregoing list of considerations is not intended to be complete or limiting and Landlord may
review and consider any other matters relevant to its determination. Tenant acknowledges and agrees
that the obligation of Landlord to act reasonably with respect to subletting and assignments under
Article 16A and B hereof are appropriate and reasonable,given the respective interests of Landlord
and Tenant in the Premises. Landlord may impose reasonable conditions in respect of any consent
under Article 16A and B.
(2) The rights and interests of Tenant under this Lease shall not be assignable by
operation of law without Landlord's prior written consent, which consent may be withheld in
Landlord's absolute discretion. Any assignment, transfer or subletting or purported assignment,
transfer or subletting except as specifically permitted in accordance with this Article 16B shall be null
and void and of no force and effect.
C. Landlord's Interest. Landlord's rights to assign this Lease are and shall remain unqualified. Landlord
shall have the right upon reasonable advance notice to Tenant and when accompanied by Tenant's personnel,
to exhibit the Premises to prospective purchasers. Landlord shall have the right to sell or transfer the
• Premises, Subject Parcel and/or Shopping Center, subject to the provisions of this Lease. Upon any
conveyance or transfer of the Premises, Landlord shall thereupon be entirely free of all obligations of the
Landlord hereunder arising or accruing after such conveyance or transfer and Landlord shall not be subject
to any liability resulting from any act or omission or event occurring after such conveyance or transfer. Upon
the conveyance or other transfer of Landlord's interest in this Lease, Tenant agrees to recognize and attorn
to such transferee as Landlord,provided the transferee assumes all obligations of Landlord under this Lease
thereafter arising or accruing,and Tenant further agrees to execute and deliver a recordable instrument setting
forth the provisions of this paragraph. Landlord's parent,First Bank National Association,a national banking
association, shall have no liability or obligations of any kind whatsoever under this Lease.
ARTICLE 17: CONDEMNATION
A- Definitions.
326559.8 Redlined V8 to V7 9-27-96 19
i
(1) "Condemnation"means(a)the exercise of any governmental power,whether by legal
proceedings or otherwise, by a Condemnor, or (b) a voluntary sale or transfer by
• Landlord to any Condemnor, either under threat of condemnation or while legal
proceedings for condemnation are pending.
(2) "Date of Taking" means the date the Condemnor has the right to possession of the
property being condemned.
(3) "Award" means all compensation, sums, or anything of value awarded, paid or
received on a total or partial condemnation.
(4) "Condemnor" means any public or quasi-public authority, or private corporation or
individual, having the power of condemnation.
B. Total Taking. If all of the Premises shall be taken in Condemnation,except for a taking for temporary
use, this Lease shall be terminated automatically as of the Date of Taking.
C. Partial Taking.
(1) If(a) twenty five percent (25%) or more of the parking area in the Subject Parcel;
or (b) twenty five percent (25%) or more of the rentable area of the Subject Parcel
shall be taken;or(c) twenty-five percent(25%)or more of the square footage of the
Premises shall be taken,then Landlord shall have the option to terminate this Lease
by notice in writing to Tenant given within thirty(30)days after the Date of Taking,
which notice shall take effect sixty (60) days after the Date of Taking.
(2) If any part of the floor area of the Premises shall be taken, then Tenant may elect
• to terminate this Lease upon notice in writing to Landlord of Tenant's election
within ten (10)days after the Date of Taking. In the event Tenant does not elect to
terminate within such ten (10)day period,then all of the terms herein provided shall
continue in effect as to the remainder of the Premises except that the Annual
Minimum Rent shall be proportionately and equitably abated, and Landlord shall
make all necessary repairs or alterations to the extent of available condemnation
Award.
(3) If all or a portion of the parking area located on the Subject Parcel shall be taken
such that the remaining available parking area is insufficient to meet required
governmental standards pertaining to the Premises and any other leased premises on
the Subject Parcel, then Tenant may notify Landlord in writing that it intends to
terminate this Lease unless Landlord makes sufficient parking available in a location
reasonably accessible to the Premises in order to bring the ratio up to the required
governmental standards for the Premises. Landlord shall have ninety(90)days from
the date of receipt of Tenant's notice to provide such substitute parking area in a
location reasonably acceptable to Tenant. If Landlord does not provide such
substitute parking within said 90 day period,this Lease shall terminate automatically
on the day following the expiration of such 90 days period.
D. Temporary Taking. If there is a taking of the Premises for temporary use, this Lease shall continue
in full force and effect,and Tenant shall continue to comply with Tenant's obligations under this Lease,except
to the extent compliance shall be rendered impossible or impracticable by reason of the taking.
E. Award. The Award for any taking shall be the sole property of Landlord, except for relocation
payments which are the sole property of Tenant. Tenant hereby waives any rights it may have with respect
• to the loss of its leasehold interest in this Lease; provided, however, that Landlord shall not have any right
or claim to any award or settlement for Tenant's moving expenses or for the loss of Tenant's stock, personal
property and trade fixtures or for the unamortized costs of improvements paid for by Tenant pursuant to this
Lease which are the sole property of Tenant for which Tenant shall be entitled to claim separately.
F. Landlord Liability. No damages, compensation or claim shall be payable by Landlord by reason of
any delay in completing repairs caused by delay in receiving condemnation awards,governmental requirements
or Force Majeure defined in Article 29 Section & nor by reason of inconvenience, loss of business or
annoyance arising from any restoration of any portion of the Premises, Subject Parcel or of the Shopping
Center, provided; however, if the repair is delayed due to the negligence or intentional wrongful act of
Landlord,Rent shall be Proportionately abated as to that portion of the Premises needing such repair for the
period of such delay se caused by Landlord. Notwithstanding any provision of this Lease to the contrary, if
any mortgagee of a mortgage on the Shopping Center or Subject Parcel should require that the proceeds of
the Condemnation be used to retire or apply on the debt secured by such mortgage, Landlord shall, in such
event, have no obligation to restore the Premises, Subject Parcel or the Shopping Center and at Landlord's
326559.8 Redlined V8 to V7 9-27-96 20
election, this Lease shall terminate thirty (30) days after Landlord's furnishing Tenant written notice of
Landlord's election to terminate.
• ARTICLE 18: CASUALTY
A. Repairs by Landlord. In the event the Premises or the building of which the Premises are a part are
damaged by fire, or other casualty insured under the coverage which Landlord is obligated to carry pursuant
to Article 13 Section B hereof, Landlord shall, subject to being able to obtain all necessary permits and
approvals within 120 days of such casualty,and provided Landlord has not terminated this Lease pursuant to
Article 18 Section C hereof,commence to repair,reconstruct and restore the Premises and/or the building of
which the Premises are a part to the condition in which they were immediately prior to the happening of such
casualty, except for the items Tenant is responsible to repair or replace pursuant to Article 18 Section B
hereof, and prosecute the same diligently to completion. If the Premises are rendered partially or totally
untenantable as a result of such casualty,then to the extent the Premises are rendered untenantable,the Rent
shall be proportionately abated until Landlord has completed such repair, reconstruction or restoration.
B. Tenant's Repairs. In the event Landlord is required or elects to repair, reconstruct or restore the
Premises, Tenant shall be responsible for the costs to repair or replace its merchandise, trade fixtures,
furnishings,operating equipment and personal property,including wall coverings,carpeting and drapes.Such
repair and replacement shall be done as soon as possible after the occurrence of such casualty to at least a
condition equal to that prior to its damage or destruction. In no event shall Landlord be liable for
interruption to the business of Tenant or for damage to or repair, reconstruction or restoration of any items
belonging to Tenant or within the Premises.
C. Option to Terminate.
(1) Landlord shall have the option to terminate this Lease upon giving written notice to
• Tenant of the exercise thereof within sixty(60)days after the occurrence of an event
described in Article 18 Section A hereof, if-
(a) The event occurs within the last three (3) years of the Term; or
(b) Fifty percent (50%) or more of the number of square feet located
in the building of which the Premises are a part is rendered
untenantable thereby.
(2) If the event causing damage to the Premises is not covered by insurance the Landlord
is obligated to carry pursuant to Article 13 Section B hereof and the Premises are
rendered untenantable, or if Landlord cannot obtain all necessary permits and
approvals for the repair, reconstruction and restoration of the Premises within the
period set forth in Article 18 Section A hereof,
eF if the heldeF 9f any mqFtgage
then Landlord shall
have the option to terminate this Lease upon giving written notice to Tenant of the
exercise thereof within sixty (60) days after the occurrence of such uninsured event
or lapse of time or mortgagee's decision, as the case may be.
(3) In the event more than ten percent (10%) of the floor area of the Premises are
damaged as provided herein, and provided Landlord does not commence to repair,
reconstruct and restore the Premises within ninety (90) days and/or has not
substantially completed said reconstruction,repair or restoration within one hundred
eighty (180) days, Tenant may elect to terminate the Lease by delivery of written
notice to Landlord within thirty (30) days after the expiration of said ninety (90) or
one hundred eighty (180) day period, as the case may be.
• D. Termination. Upon any termination of this Lease under the provisions of this Article,the Rent and
all other charges imposed under this Lease shall be adjusted as of the date of such termination and the parties
shall be released thereby without further obligation to the other party coincident with the surrender of
possession of the Premises to the Landlord,except for items which have been theretofore accrued and are then
unpaid, and except for obligations which are designated as surviving termination of this Lease.
ARTICLE 19: BANKRUPTCY OR INSOLVENCY
A. Non-Bankruptcy Receivers, Etc.. Tenant or Tenant's guarantor, if any, shall not cause or give cause
for the appointment of a trustee or a receiver of the assets of Tenant or Tenant's guarantor,if any,and shall
not make any assignment for the benefit of creditors, or be adjudicated insolvent. The allowance of any
petition under any insolvency law except under the United States Bankruptcy Code (the "Code") or the
appointment of a trustee or receiver of Tenant or Tenant's guarantor, if any, or of either of them, shall be
conclusive evidence of the petition,unless the appointment of a trustee or receiver is vacated within thirty(30)
326559.9 Redlined V8 to V7 9-27-96 21
days after such an allowance or appointment. Any act described in this paragraph shall be deemed a material
breach of Tenant's obligations hereunder and this Lease shall thereon automatically terminate. Landlord does,
• in addition, reserve any and all other remedies provided in this Lease or at law or in equity.
B. Bankruptcy. Upon the filing of a petition by or against Tenant under the Code, Tenant, as debtor
and as debtor in possession,and any trustee who may be appointed,agree as follows; (1) to perform each and
every obligation of Tenant under this Lease including, but not limited to, the use and manner of operations
as provided in Article 5 of this Lease until such time as this Lease is either rejected or assumed by order of
the United States Bankruptcy Court; and (2) to pay monthly in advance on the first day of each month as
reasonable compensation for use and occupancy of the Premises an amount equal to all monthly installments
of Rent and other charges otherwise due pursuant to this Lease;and(3)to reject or assume this Lease within
sixty (60)days of the filing of such petition under Chapter 7 of the Code or within one hundred twenty(120)
days (or such shorter term as Landlord, in its sole discretion,may deem reasonable so long as notice of such
period is given) of the filing of a petition under any other Chapter of the Code,and (4) to give Landlord at
least forty-five (45)days prior written notice of any proceeding relating to any assumption of this Lease; and
(5) to give at least thirty (30) days prior written notice of any abandonment of the Premises; any such
abandonment to be deemed a rejection of this Lease; and (6) to do all other things of benefit to Landlord
otherwise required under the Code; and (7) to be deemed to have rejected this Lease in the event of the
failure to comply with any of the above; and (8) to have consented to the entry of an order by an appropriate
United States Bankruptcy Court providing all of the above,waiving notice and hearing of the entry of same.
C. Non-Waiver. No default under this Lease by Tenant, either prior to or subsequent to the filing of
such a petition, shall be deemed to have been waived unless expressly done so in writing by Landlord.
D. Bankruptcy Code. It is understood and agreed that this is a lease of real property in a shopping center
as such a lease is described in Section 365 (b) (3) of the Code.
• E. Assignments or Assumptions. Included within and in addition to any other conditions or obligations
imposed upon Tenant or its successor in the event of a bankruptcy related assumption and/or assignment are
the following: (1)the cure of any monetary defaults and the reimbursement of pecuniary loss within not more
than thirty(30)days of assumption and/or assignment;and (2)the deposit of an additional sum equal to three
(3) months'Rent to be held as security,and (3) the Use of the Premises,as set forth in Section 8 of the Data
Sheet and Article 5 hereof, with the quality, quantity and/or lines of merchandise of any goods or services
required to be offered for sale are unchanged; and (4) the reorganized debtor or assignee of such debtor in
possession or Tenant's trustee demonstrates in writing that it has retailing experience in shopping centers of
comparable size and financial ability to operate a retail establishment in the Premises in the manner
contemplated in this Lease and meets all other reasonable criteria of Landlord as did Tenant upon execution
of this Lease; and (5) the prior written consent of any mortgagee to which this Lease has been assigned as
collateral security; and (6) the Premises, at all times, remains a single store and no physical changes of any
kind may be made to the Premises unless in compliance with the applicable provisions of this Lease.
ARTICLE 20: DEFAULT
A. Events of Default. In the event Tenant shall:
(1) fail to pay Rent when due and such failure shall continue for a period of ten (10)
days after Landlord shall have given written notice to Tenant of such failure, or
(2) fail to pay Rent when due under this Lease,provided that within the twelve months
immediately preceding such due date Landlord has given Tenant at least two written
notices of failure to pay Rent under subparagraph (1) above, or
(3) fail to keep or perform any of the terms,conditions or covenants of this Lease to be
• kept or performed by Tenant (other than the payment of Rent) for more than thirty
(30) days after written notice of such failure shall have been given by Landlord to
Tenant, provided that if such default is of such a character as to reasonably require
more than thirty (30) days to cure,Tenant shall be allowed a reasonable additional
period of time to cure such default, provided Tenant promptly and diligently
prosecutes such cure, but in no event shall such additional cure period exceed an
additional sixty (60) days, or
(4) vacate or abandon (not operating for business in the Premises for thirty (30)
consecutive days) the Premises,
then Landlord, besides other rights or remedies it may have, shall have the right to either (a) terminate this
Lease upon the expiration of three (3) days after written notice of such intent is given to Tenant, in which
event the Term hereof shall expire and terminate with the same force and effect as though the date set forth
in said notice were the date originally set forth herein and fixed for the expiration of the Term,or(b)re-enter
326559.8 Redlined V8 to V7 9-27.96 22
the Premises,dispossess Tenant and/or other occupants of the Premises,remove all property from the Premises
and store the same in a public warehouse or elsewhere at the cost of,and for the account of Tenant,and hold
• the Premises as hereinafter provided,without being deemed guilty of trespass,or becoming liable for any loss
or damage which may be occasioned thereby; Tenant agreeing that no such re-entry or taking possession of
the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease, such
right however, being continuously reserved by Landlord.
B. Reentry. In the event Landlord elects to re-enter the Premises, Landlord may, but shall not be
obligated to, 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 extend beyond the Term of this Lease)
and at such rental and upon such other terms and conditions as Landlord in its sole discretion may deem
advisable. Upon each such reletting all rentals and other sums received by 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 reasonable brokerage fees and
attorneys' fees and of costs of such alterations and repairs; third, to the payment of Rent and other charges
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 and other sums received from such
reletting during any month be less than that to be paid during that month by Tenant hereunder,Tenant shall
pay such deficiency to Landlord; if such rentals and sums shall be more, Tenant shall have no right to the
excess. Such deficiency shall be calculated and paid monthly. Notwithstanding any such re-entry by Landlord,
Landlord may at any time hereafter elect to terminate this Lease for such previous breach.
C. Certain Damages. Should Landlord at any time terminate this Lease for any default, in addition to
any other remedies it may have,it may recover from Tenant all damages it may incur by reason of such default,
including the cost of recovering the Premises, reasonable attorneys' fees,and including the worth at the time
of such termination of the excess, if any, of the amount of Rent reserved in this Lease for the remainder of
the stated Term over the then reasonable rental value of the Premises for the remainder of the stated Term,
all of which amounts shall be immediately due and payable from Tenant to Landlord. The failure of Landlord
• to relet the Premises shall not affect Tenant's liability.
D. Waiver. It is mutually agreed by and between Landlord and Tenant that the respective parties hereto
shall and they hereby do waive trial by jury in any action,proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this Lease,the relationship of Landlord and Tenant,Tenant's use
or occupancy of the Premises, and any statutory remedy. Tenant shall not interpose any counterclaim or
counterclaims (except for compulsory counterclaims) in a summary proceeding or other action based on
termination or holdover.
E. Remedies Cumulative. Mention in this Lease of any particular remedy shall not preclude Landlord
from any other remedy, in law or in equity. Tenant hereby expressly waives any and all rights of 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 Premises, by reason of the violation by Tenant of
any of the terms, covenants and conditions of this Lease or otherwise.
ARTICLE 21: LEASE SUBORDINATION
Tenant's rights under this Lease are and shall always be subordinate to the operation and effect of
any mortgage, ground lease,or other security instrument hereafter placed upon the Shopping Center, or any
part or parts thereof by Landlord,provided that notwithstanding any default under the mortgage,ground lease
or security instrument, and so long as Tenant is not in default under this Lease beyond any applicable cure
period, the holder of the mortgage, ground lease or security instrument ("Holder") shall not, in the exercise
of any of its rights under the mortgage,ground lease or security instrument,disturb or interfere with Tenant,
deprive Tenant of its possession or its right of possession of the Premises (or any part thereof) under this
Lease,deprive Tenant of any right or privilege granted to Tenant or inuring to the benefit of the Tenant under
this Lease, or join Tenant in any summary eviction or foreclosure proceedings or action to terminate this
Lease. The Holder shall execute and deliver to Tenant a non-disturbance agreement confirming the foregoing
which shall be signed by Tenant; Tenant shall also execute such further assurances as may reasonably be
required by Landlord or any Holder. Notwithstanding the foregoing to the contrary,any Holder may elect that
this Lease shall have priority over its mortgage, ground lease or other security instrument and upon
notification of such election by such Holder to Tenant, this Lease shall be deemed to have priority over said
mortgage,ground lease or other security instrument whether this Lease is dated prior to or subsequent to the
date of such mortgage, ground lease,or other security instrument. If the interest of Landlord is transferred
to any party by reason of foreclosure of a mortgage or security instrument or cancellation or termination of
a ground lease, or by delivery of a deed in lieu of foreclosure, Tenant agrees that it will attorn to and
recognize such party as its Landlord for the unexpired balance (and any extensions, if exercised) of the Term
of this Lease upon the same terms and conditions set forth in this Lease,provided that the transferee execute
the non-disturbance agreement described hereinabove. Tenant shall execute such instruments as reasonably
requested by Landlord to evidence said subordination and attornment.
326559.8 Redlined V8 io V7 9.27.96 23
ARTICLE 22: HAZARDOUS MATERIALS
• Tenant shall not unlawfully use, handle, generate, treat,store or dispose of, or permit the unlawful
handling, generation, treatment, storage or disposal of any Hazardous Materials by its officers, agents,
employees,contractors,sublessees or licensees in,on,under,around or above the Premises,Subject Parcel or
the Shopping Center. Tenant will indemnify, defend and save Landlord harmless from any actions,
proceedings, claims, costs, expenses and losses of any kind, including, but not limited to, those arising from
injury to any person,including death,damage to or loss of use or value of real or personal property,and costs
of investigation and cleanup with respect to any breach by Tenant of the preceding sentence. Except for
matters described in the immediately preceding sentence,Tenant shall have no obligation with respect to any
other Hazardous Materials located upon the Premises,the Subject Parcel or the Shopping Center. The term
"Hazardous Materials",when used herein,shall include,but shall not be limited to,any substances,materials
or wastes to the extent quantities thereof are regulated by any local,state or federal governmental authority,
because of toxic, flammable, explosive, corrosive, reactive, radioactive or other properties that may be
hazardous to human health or the environment,including asbestos and including any materials or substances
that are listed in the United States Department of Transportation Hazardous Materials Table, as amended,
49 C.F.R. 172.101, or in the Comprehensive Environmental Response, Compensation and Liability Act, as
amended,42 U.S.C. subsections 9601 et seq., or the Resources Conservation and Recovery Act,as amended,
42 U.S.C. subsections 6901 et seq., or any other applicable governmental regulation imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous substances, waste or material, now or
hereafter in effect. Tenant's obligations and liabilities under this Article shall survive the expiration or
termination of this Lease.
ARTICLE 23: FIXTURES
All personal property and trade fixtures owned by Tenant and installed in the Premises shall remain
the property of Tenant and shall be removed by Tenant at the expiration of the Term, provided Tenant shall
• not at such time be in default under any covenant or agreement contained herein,and provided further that
the Tenant repair any damage to the Premises caused by the removal thereof. If Tenant shall be in default
under this Lease, Landlord shall have a lien on said personal property and fixtures as security against loss or
damage resulting from any such default by Tenant and said personal property and fixtures shall not be
removable by Tenant until such default is cured. If, upon the expiration or termination of the Term, said
personal property and fixtures have not been removed by Tenant,they shall become the property of Landlord
to dispose of as Landlord chooses and Tenant shall pay to Landlord all costs incurred by Landlord in
connection with the removal and disposal of same and the costs of any repairs to the Premises in connection
therewith.
ARTICLE 24: SURRENDER OF PREMISES
This Lease shall terminate on the Termination Date without the necessity of any notice from either
Landlord or Tenant to terminate the same,and Tenant hereby waives notice to vacate the Premises and agrees
that Landlord shall be entitled to the benefit of all provisions of law respecting the summary recovery of
possession of premises from a tenant holding over to the same extent as if statutory notice had been given.
For the period of six (6) months prior to the expiration of the Term Landlord shall have the right to display
on the exterior of the Premises (but not in any window or doorway thereof) the customary sign "For Rent",
and during such period Landlord may show the Premises and all parts thereof to prospective tenants during
normal business hours. Landlord shall give reasonable advance notice of any such showing. Before the date
the Term expires or Tenant's right of possession otherwise terminates, Tenant shall (A) restore the Premises
to the same condition as they were in at the beginning of the Term (except for reasonable wear and tear and
except as otherwise provided in Article 18 hereof)and remove those leasehold improvements made by Tenant
in accordance with Article 4 hereof,and all Alterations and other improvements or additions installed for or
during Tenant's occupancy,which Landlord shall require Tenant to remove,provided that Landlord may only
require Tenant to remove such leasehold improvements, alterations and other improvements or additions
• which are (1) designated by Landlord as items to be removed by Tenant at the time Landlord approves the
plans therefor,or(2)installed or constructed by Tenant without the review and express approval by Landlord
of the plans therefor; (B) remove all of Tenant's personal property and trade fixtures in accordance with the
provisions of Article 23 hereof;and(C)surrender possession of the Premises to Landlord in a clean condition
free of rubbish and debris. If Tenant does not comply with this Article,Landlord may enter the Premises,put
the Premises in such condition,and recover from Tenant Landlord's cost of doing so. If the Premises be not
surrendered at such time, Tenant shall indemnify Landlord against loss or liability resulting from delay by
Tenant in so surrendering the Premises, including, without limitation, any claims made by any succeeding
tenant founded on such delay. Tenant shall surrender all keys for the Premises to Landlord at the place then
fixed for payment of Rent. Tenant's obligation to observe or perform the provisions of this Article shall
survive the expiration or termination of this Lease.
ARTICLE 25: MERCHANTS ASSOCIATION
326559.8 Redlined V8 to V7 9-27-6 24
A. MembersW. Tenant shall have the option to become a member of,participate fully in,and
remain in good standing in the merchants association sponsored for the Shopping Center, and, if Tenant
• becomes a member, shall abide by any rules or regulations promulgated by said association. The purpose of
said association is to encourage its members to deal fairly and courteously with their customers, to follow
ethical business practices,and to promote the retail business of the Shopping Center and the tenants therein
by sales promotions, center-wide advertising, or by any other means determined by the membership of said
association.
B. Dues. If Tenant becomes a member, Tenant shall pay dues to said association in such
amounts and at such times as the association itself shall determine from time to time.
C. Lease Superior. Nothing in the bylaws or regulations of said association conflicting with the
provisions of this Lease or with any reasonable rules and regulations adopted pursuant to the provisions of
this Lease shall in any way effect the rights of Landlord hereunder.
ARTICLE 26: LIABILITY OF PARTIES
If two or more individuals, corporations, partnerships, or other business associations (or any
combination of two or more thereof) shall sign this Lease as Tenant, the liability of each such individual,
corporation,partnership or other business association to pay Rent and perform all other obligations hereunder
shall be deemed to be joint and several. In like manner, if the Tenant named in this Lease shall be a
partnership or other business association,the members of which are by virtue of statute or general law,subject
to personal liability,the liability of each member shall be deemed to be joint and several. Tenant shall look
solely to the then interest of Landlord in the Subject Parcel,and to the extent Landlord owns both the Subject
Parcel and portions of the Shopping Center, that portion of the ShoWne Center owned by Landlord or of
any successor to interest to Landlord, as owner af the Shopping Genw thth®f, for the satisfaction of any
remedy of Tenant for failure of Landlord to perform any of Landlord's obligations under this Lease, express
or implied, or under any law. Neither Landlord nor any disclosed or undisclosed principal of Landlord (or
• officer,director,stockholder,partner or agent of Landlord or of any such principal),nor any successor of any
of them, shall have any personal liability for any such failure under this Lease or otherwise.
ARTICLE 27: INTENTIONALLY OMITTED
ARTICLE 28: NOTICES
Any notice, demand, approval or consent desired or required to be given under this Lease shall be
in writing and delivered personally or by a nationally recognized air courier service or mailed by United States
certified mail, postage paid, if to Landlord addressed to:
Ste. Marie Company
Attention: Mary T. Rothchild
First Bank Place
MPFP 1802
601 Second Avenue South
Minneapolis, MN 55402
and if to Tenant, to Tenant's address as shown on page 1 of this Lease; such notice, demand, approval or
consent to the Tenant shall also be deemed made by delivery of such notice to the Premises. Mailed notices
shall be deemed given upon posting in the United States mail. Either party may (A) by written notice
designate a different address to which notices may be sent,and (B)by written notice designate not more than
two (2) additional parties to whom copies of all notices must be sent.
ARTICLE 29: GENERAL
• A. Quiet Enjoyment. Landlord hereby warrants that it and no other person or corporation has the right
to lease the Premises. So long as Tenant shall perform each and every covenant to be performed by Tenant
hereunder, Tenant shall have peaceful and quiet use and possession of the Premises, and Landlord shall
warrant and defend Tenant in such peaceful and quiet use and possession.
B. Interest. Any amount due from Tenant to Landlord under this Lease which is not paid when due,
except payment of Rent which is not more than thirty(30)days past due,shall bear interest from the due date
until paid at the rate of 10% per annum or the maximum interest rate allowed by law,whichever is lower;
provided, however the payment of such interest shall not excuse or cure the default upon which such interest
accrued.
C. Expense of Enforcement. If either party hereto be made or becomes a party to any litigation
commenced by or against the other party involving the enforcement of any of the rights and remedies of such
party, or arising on account of the default of the other party in the performance of such party's obligations
326559.8 Redlined V8 to V7 9.27-% 25
hereunder, then the prevailing party in any such litigation, or the party becoming involved in such litigation
because of a claim against such other party,provided the said party becoming involved prevails and is without
• responsibility with respect to the claim, as the case may be, shall receive from the other party all costs and
reasonable attorneys' fees incurred by such party in such litigation.
D. Holding Over. In the event Tenant remains in possession of the Premises after the expiration of this
Lease and without the execution of a new lease, it shall be deemed to be occupying the Premises as a tenant
from month-to-month. During such holdover period, the Annual Minimum Rent portion of aggregate Rent
shall be one hundred fifty percent (150%) of the Annual Minimum Rent payable immediately prior to such
expiration. Except for the foregoing adjustment in Annual Minimum Rent, during such holdover period
Tenant shall be subject to all other conditions,provisions and obligations of this Lease in so far as the same
can be applicable to a month-to-month tenancy and this Lease shall be cancelable by either party upon thirty
(30) days written notice to the other.
E. Landlord's Access. Landlord,its agents,employees and contractors shall have the right to enter the
Premises at any time in the case of an emergency and at all other reasonable times for the purpose of
inspecting the same or of making repairs, additions or alterations thereto or to the building of which the
Premises are a part,or for the purpose of exhibiting the same to prospective tenants,purchasers or otherwise,
or for the purpose of enforcing or performing the terms of this Lease. Landlord will use its best efforts to
give Tenant at least one (1) days' notice of such entry (except in the case of emergencies) and shall be
accompanied by Tenant's personnel (except if not practicable in the case of an emergency). Landlord shall
not be liable to Tenant in any manner for any expense,loss or damage by reason thereof,nor shall the exercise
of such right be deemed an eviction or disturbance of Tenant's use or possession.
F. Short Form. Landlord and Tenant agree that neither shall record this Lease,provided,however, the
parties hereto agree that each will at the request of the other execute,acknowledge and deliver a short form,
in recordable form,of this Lease specifying the parties hereto,the Premises and the Term hereof. Preparation,
• recording and like charges and any stamp or like tax shall be paid for by the party requesting such recording.
G. Non-Waiver. Landlord's or Tenant's failure to insist upon a strict performance of any covenant of
this Lease or to exercise any option or right herein contained shall not be a waiver or relinquishment for the
future of such covenant, right or option, but the same shall remain in full force and effect.
H. Captions. The captions and headings herein are for convenience and reference only, and the words
contained therein shall in no way be held to explain,modify,amplify or aid in the interpretation,construction,
or meaning of the provisions of this Lease.
I. Applicable Law. This Lease shall be construed under the laws of the State of Minnesota. If any
provision of this Lease,or portion thereof, or the application thereof to any person or circumstance shall,to
any extent, be invalid or unenforceable, the remainder of this Lease shall not be affected thereby and each
provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
J. Successors. This Lease and the covenants and conditions herein contained shall inure to the benefit
of and be binding upon Landlord,its successors and assigns,and shall be binding upon Tenant, its successors
and assigns, and shall inure to the benefit of Tenant and only the permitted assigns of Tenant.
K Force Majeure. The time within which any of the parties hereto shall be required to perform any act
or acts under this Lease shall be extended to the extent that the performance of such act or acts shall be
delayed by acts of God,fire,windstorm,flood,explosion,collapse of structures,riot,war,labor disputes,delays
or restrictions by governmental bodies,inability to obtain or use necessary materials,or any cause beyond the
reasonable control of such party,provided,however,that the party entitled to such extension hereunder shall
give prompt notice to the other party of the occurrence causing such delay. The provisions of this Article 29
Section K shall not operate to excuse Tenant from prompt payment of Rent or any other payments required
• by the terms of this Lease.
L. Brokers. Tenant represents and warrants to Landlord that neither it nor its officers or agents nor
anyone acting on its behalf has dealt with any leasing or real estate broker in the negotiation or making of
this Lease. Landlord shall be responsible for the leasing fees payable to its broker, Welsh Companies, Inc.
(and Welsh Companies, Inc. shall be responsible for any co-brokerage fee payable to The Schoening Group,
Inc.).
M. No Partnership. Any intention to create a joint venture, partnership or agency relation between the
parties hereto is hereby expressly disclaimed.
N. Amendments in Writing. This Lease and the Exhibits attached hereto and forming a part hereof,set
forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Premises and there are no covenants, promises, agreements, conditions or understandings,
either oral or written,between them other than as herein set forth. Except as herein otherwise provided, no
326559.8 Redlined V8 to V7 9-27-% 26
subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord and
Tenant unless reduced to writing and signed by them.
• O. Authority. Landlord and Tenant, if a corporation, warrants and represents to the other that its
execution of this Lease is pursuant to a resolution of its Board of Directors or as otherwise duly authorized
by all necessary corporate action.
P. Copies. This Lease is executed in two (2) four 4 copies,any of which may be considered and used
as an original copy.
Q. Examination. The submission of this Lease for examination does not constitute a reservation of or
option for the Premises and this Lease becomes effective only upon execution and delivery thereof by Landlord
and Tenant.
R. Estoppel. Tenant agrees that at any time and from time to time at reasonable intervals,within fifteen
(15) days after written request by Landlord, Tenant will execute, acknowledge and deliver to Landlord,
Landlord's mortgagee, or others designated by Landlord,a certificate in a form as may from time to time be
provided, ratifying this Lease and certifying: (1) that Tenant has entered into occupancy of the Premises and
the date of such entry if such is the case; (2) that this Lease is in full force and effect, and has not been
assigned,modified,supplemented or amended in any way(or if there has been any assignment, modification,
supplement or amendment,identifying the same);(3)that this Lease represents the entire agreement between
Landlord and Tenant as to the subject matter hereof (or if there has been any assignment, modification,
supplement or amendment, identifying the sante); (4) the Commencement Date and the Termination Date;
(5) that all conditions under this Lease to be performed by Landlord have been satisfied (and if not, what
conditions remain unperformed); (6) that to the knowledge of the signer of such writing no default exists in
the performance or observance of any covenant or condition in this Lease and there are no defenses or offsets
against the enforcement of this Lease by Landlord or specifying each default, defense or offset of which the
• signer may have knowledge; (7) that no Rent or other charges have been paid in advance, and (8) the date
to which Rent and all other charges have been paid under this Lease. In the event Tenant fails to execute
such a writing within twenty (20) days of receipt of Landlord's request, Landlord may prepare its own
certificate covering such matters and Tenant agrees that it shall not dispute or challenge any matter stated
therein prepared in good faith by Landlord, and any mortgagee,purchaser or other person or entity may rely
thereon.
S. Advertising. Tenant may use as its advertised business address for the Premises the name of the
Shopping Center. 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 Article 29,
Section S. Tenant agrees that the name of the Shopping Center shall not be used in any confusing,
detrimental or misleading manner,and upon termination of this Lease,Tenant will cease to use the name of
the Shopping Center. In no event shall Tenant use the Landlord's name for such purposes.
T. Rules and Regulations. Tenant shall comply with Landlord's Rules and Regulations for the Shopping
Center a copy of which is attached hereto as Exhibit G. Landlord reserves the right to amend said Rules and
Regulations from time to time so long as such amendments are reasonable and uniformly applied and are not
materially inconsistent with the provisions of this Lease. Landlord shall provide Tenant with a copy of said
amended Rules and Regulations. Landlord shall use its good faith best efforts to consistently and uniformly
apply and enforce said Rules and Regulations for and against all tenants in the Shopping Center.
U. Apache Wells Lease. Tenant is presently leasing certain premises in the Shopping Center under a
Lease dated June 2, 1989 between Tenant and Landlord's predecessor in interest, Apache Plaza, Ltd., as
amended(the"Apache Wells Lease"). By the execution and delivery of this Lease,Landlord and Tenant agree
that the Apache Wells Lease is amended to provide that the Term of the Lease (as specified in Article 4
• thereof), is amended such that the Term of the Apache Wells Lease shall terminate as of ug;u&* 1, !996 the
Commencement Date, on which Commencement Date Landlord shall refund to Tenant the minimum
guaranteed rent paid by Tenant under the Apache Wells Lease for the one hundred fifty (150) day period
prior to the Commencement Date. In the event the Lease is terminated prior to the Commencement Date
or if the Commencement Date never occurs for any reason,the Apache Wells Lease shall remain in full force
and effect and shall be unmodified herebv.
V. SAV Liquor Warehouse Lease. Tenant is presently leasing certain premises in the Shopping Center
for use as a SAV Liquor Warehouse under a Lease dated July 9, 1986 between Tenant and Landlord's
predecessor in interest, Apache Plaza, Ltd., as amended, (the "SAV Lease"). Landlord and Tenant
acknowledge and agree that the Term of the SAV Lease expired on August 30, 1996, and that Tenant has
occupied said premises on the same terms and conditions as contained in the SAV Lease,except that the same
has been on a month-to-month basis. Landlord and Tenant hereby extend the Term of the SAV Lease to the
date thirty (30) days after the Commencement Date of this Lease; provided however, if this Lease is
terminated_prior to the Commencement Date, the SAV Lease shall continue on a month-to-month basis
326559.8 Redlined V8 to V7 9-27-96 27
further provided that if this Lease is terminated after the commencement of the Construction Work.Landlord
shall not be entitled to terminate the SAV Lease, for reasons other than Tenant's default. for a period of
• ninety (90) days following the termination of this Lease.
W. Antenna Installation. Landlord hereby grants to Tenant and its agents and contractors, at Tenant's
sole cost and expense,the right to install,maintain and operate a satellite dish or antenna not to exceed four
(4)feet in height(the"Antenna")and related equipment,including cables from the exterior of the roof directly
above the Premises to equipment inside the Premises, necessary to the operation of the Antenna, as part of
Tenant's business. Tenant may locate the Antenna at or relocate the Antenna to some other location on or
about the roof of the Premises for purposes of adequate reception, subject to appropriate law, codes and
regulations. Tenant shall ensure that the Antenna, and each part of it, shall be installed in accordance with
all local, state and federal building codes and rules of construction and shall include screening so that the
Antenna shall not be visible from the ground in any part of the Shopping Center. Tenant shall obtain all FCC
and other licenses or approvals required to install and operate the Antenna. The Antenna is and shall remain
the property of Tenant or Tenant's permitted assignee,transferee or sublessee,and Landlord and Tenant agree
that the Antenna is not, and installation of the Antenna shall not cause the Antenna to become, a fixture
pursuant to this Lease or by operation of law. Notwithstanding any provision of this Lease to the contrary,
Tenant shall be responsible for the repair and maintenance of the Antenna and any roof problems or other
damage or repair caused by or related to the installation,maintenance and operation thereof during the Term
of this Lease,at its sole cost and expense,and upon the termination or expiration of this Lease,Tenant shall
remove said Antenna and repair any and all damage to the building (including, but not limited to, the roof
of the building) caused as a result of such installation or removal. Plans and specifications for initial
installation and any subsequent work on the Antenna shall be subject to the prior review and approval of
Landlord,which approved shall not be reasonably withheld.
X. Certain Exclusive Rights. Landlord agrees that during the Term of this Lease,Landlord will not lease
or rent to any other person or entity any space in the Shopping Center for purposes of operating an off-sale
liquor store. This restriction shall not be applicable (a) during any time that Tenant is in default under the
• terms and provisions of this Lease beyond any applicable cure, if any, or (b) during any time that Tenant's
gross sales from the sale of l alcoholic beverages from the Premises is less than 75% of Tenant's total
gross sales from the Premises. Landlord agrees to enforce this restriction against other Tenants in the
Shopping Center using all reasonable legal means. In the event of a breach of Landlord under this Article
29 Section X, Tenant shall be entitled to injunctive relief as well as other remedies available at law or at
equity.
Y. Rights Regarding Purchase of Subject Parcel. In the event Landlord elects to sell the Subject Parcel,
Landlord shall notify Tenant of its intention to do so. Tenant shall then have a period of twenty(29)thirt
days to negotiate with Landlord for the purchase of the Subject Parcel. If Landlord and Tenant fail to
execute a purchase agreement for the Subject Parcel within said period, Landlord may thereafter sell the
Subject Parcel or any part thereof to any other person or entity without liability or responsibility of any kind
to Tenant free of any rights of Tenant under this Section. Nothing contained herein shall be deemed to
require that Landlord sell the Subiect Parcel to the Tenant upon any terms it being the intention that this
provision shall merely give Tenant an opportunity to discuss the possibility thereof with Landlord Upon the
request of Landlords Tenant shall deliver to Landlord a termination certificate acceptable to Landlord and in
recordable form evidencing the termination of Tenant's rights under this Section. The rights of Tenant under
this Section shall not be severed from this Lease or separately sold, assigned or transferred, and will expire
according to the terms of this Section, or upon the termination of this Lease, whichever occurs first. The
provisions of this Section shall not apply to any sale or other transfer of the Subject Parcel to an entity
controlled by, controlling, or under common control with Landlord,or to any sale or transfer in connection
with a merger or consolidation of Landlord or a
particular business component of Landlord
• Z. Right to Lease Additional Space. In the event Landlord elects from time to time to lease vacant space
in the building of which the Premises are a part,Landlord shall notify Tenant of its intention to do so. Tenant
shall then have a period of-twenty (W) thirty days to negotiate with Landlord for the leasing of such
additional space. If Landlord and Tenant fail to execute a lease for such space within said period, Landlord
may thereafter lease the space or any part thereof to any other person or entity without liability or
responsibility of any kind to Tenant. Nothing contained herein shall be deemed to require that Landlord lease
such space to the Tenant upon any terms, it being the intention that this provision shall merely give Tenant
an opportunity to discuss the possibility thereof with Landlord. The rights of Tenant under this Section shall
not be severed from this Lease or separately sold, assigned or transferred, and will expire according to the
terms of this Section, or upon the termination of this Lease,whichever occurs first.
AA. Certain Provisions Applicable Only to City of St. Anthony. So long as the City of St. Anthony,
Minnesota, is the tenant under this Leases and the tenant's interest hereunder has not been assigned or sublet
to another person or entity,the following provisions shall be applicable to the City of St.Anthony.Minnesota:
326559.8 Redlined V8 to V7 9.27-96 28
(1) In the event Tenant uses it own employees to Perform improvements as Permitted in Article
4 hereof,during such term that work Is being Performed,Tenant shall obtain the following
• coverages, and Tenant shall provide Landlord with a certificate of such Insurance:
1. Workmen's Compensation.
a. Statutory limits.
b. Employer's liability coverages of-
(I)
f(I) Bodily iniurv, each accident$600.000
(ii) Disease. each employee$200,000.
(iii) Policy limit, $600 M.
2. Comprehensive General Liability.
a. Property damage, Per occurrence$600,000.
b. Bodily iniurv. each Person $600.000.
C. Bodily in ury, each occurrence $600,000.
d. Aggregate $600,000.
3. Comprehensive Automobile Liability.
a. Bodily iniury, each Person $600,000.
b. BodlIv Iniurv. each occurrence $600,000.
C. Property damage liability$600.000.
4. Landlord's and Tenant's Protective Liability.
a. Bodily injury, each person $600,000.
b. Bodily iniurv, each occurrence $600,000.
C. Property damage liability,$600.000.
d. Property damage aggregate$600.000.
. 5. Builder's Risk Insurance.
a. All phvsical loss.
kl-)S2 The first sentence of Article 5 is amended to read as follows:
"Tenant shall may only occupy the Premises upon the Commencement of the
Term,and thereafter wiU conduct in I QQQ a€the Premises only the business
expressly set forth in Section 8 of the Date Shoat 2nd Q211 keop 1he
of baslaess Data Sheet: hours of operation, if any, shall be subject to
statutory requirements for liquor stores."
(3) The insurance amounts in Article 13, Section A (1) and (2) hereof are reduced from
$1,000,000 to 1600,000.
(4) The indemnification obligations of Landlord and Tenant under Article 14 Section A hereof
are limited to$600,000 each.
(5) Notwithstanding any provision of Article 17 of this Lease to the contrary,Tenant shall have
no right to terminate this Lease or obtain a reduction in Rent due to or arising out of a
taking in Condemnation by the City of St.Anthony, Minnesota.
(6) The second sentence of Article 18, Section B shall not reauire that repair and replacement
be made by Tenant.
(.2)M The provision of Article 20, Section 9 is amended to read as follows:
"vacate or abandon (not operating for business in the Premises for one
hundred eighty (180) consecutive days) the Premises,"
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease Agreement to be signed and
delivered as of the day and year first above written.
LANDLORD:
Ste. Marie Company, a Minnesota
corporation
326559.8 Redlined V8 to V7 9-27.96 29
By:
Its
•
TENANT:
City of St. Anthony, Minnesota, a Minnesota municipal
corporation
By:
Its Mayor
By:
Its City Manager
326559.8 Redlined V8 to V7 9-27-96 30
• Exhibit A-1 is site plan of shopping center
Note: a site plan of the shopping center is being prepared and upon completion Landlord and Tenant will
initial and date a copy of the plan which executed copy shall be attached as Exhibit A-1 to this Lease
THIS PAGE IS ONLY FOR PROOFING/WORD PROCESSING CLARITY
i
•
326559.8 Redlined VS to V7 9-27-96
EXHIBrr A-2
• Legal Description of"Shopping Center":
Lot 5, Block 1,Apache Plaza according to the recorded plat thereof,and Lots 2-7, Block 1,
and Outlots A, B and C, Silver Lake Center, according to the recorded plat thereof, all
situate in Ramsey County, Minnesota.
•
•
326559.8 Redlined V8 to V7 9-27-96 A-1
• Exhibit B-1 is drawing of the Subject Parcel
THIS PAGE IS ONLY FOR PROOFING/WORD PROCESSING CLARITY
•
326559.8 Redlined V8 to V7 9-27-96
V
EJHEBPf B-2
• Legal Description of"Subject Parcel"
Lot 5,Block 1,Silver Lake Center according to the plat thereof on record in Ramsey County,
Minnesota.
•
316559.8 Redlined V8 to V7 9-27-% B-1
• Exhibit C is drawing of the "Premises"
THIS PAGE IS ONLY FOR PROOFING/WORD PROCESSING CLARITY
•
326559.8 Redlined V8 to V7 9-27-96
SIT D
• LEASE ADDENDUM
This Lease Addendum forms an integral part of that certain Lease Agreement ("Lease") dated the
day of Septembe; O® , 1996, by and between Ste. Marie Company, a Minnesota corporation
("Landlord"), and City of St. Anthony, Minnesota, a Minnesota municipal corporation ("Tenant").
Pursuant to Article 2B of the Lease Agreement, the parties hereto agree and confirm as follows:
1. Tenant hereby accepts the Premises.
2. The Commencement Date of the Lease is . 199—.
3. The Termination Date of the Base Term of the Lease is
4. The square footage of the Premises is square feet.
5. The Annual Minimum Rent payable under the Lease is as set forth in Section 10 of the Data Sheet
and there are no adjustments thereof on account of an adjustment in the actual square footage of the
Premises, except (specify if applicable)
IN WITNESS WHEREOF, the parties hereto have executed this Lease Addendum on the day
of ' 199—.
• LANDLORD:
STE. MARIE COMPANY, a Minnesota corporation
By:
Its:
TENANT:
CITY OF ST. ANTHONY, MINNESOTA, a Minnesota
municipal corporation
By:
Mayor
And By:
City Manager
326559.8 Redlined V8 to V7 9-27.96 D_1
EXMIT E
• DESCRIPTION OF LANDLORD'S WORK
Monument - Landlord shall install a ground level monument on the east side of the
building along Silver Lake Road. This sign shall provide a reader board for two(2) tenants.
• Asbestos Removal - Landlord shall remove all asbestos from the Premises.
,
•
•
326559.8 Redlined V8 to V7 9-27.96 B-1
J
EXHIBIT F
•
•
•
326559.8 Redlined V8 to V7 9-27-96 F.1
J
EXHIBIT G
SHOPPING CENTER RULES AND REGULATIONS
Rules and Re"tions
TENANT AGREES THAT IT WILL:
1. Keep the Premises in a clean, safe and healthy condition, and clean the snow and ice from
any sidewalks contiguous to the Premises;
2. Not permit the Premises to be used in any way which will injure the reputation of the business
being conducted therein,or injure the reputation of the Shopping Center, or may be a nuisance, annoyance,
inconvenience, or damage to the tenants of the Shopping Center or of the neighborhood, including,but not
limited to,noise by playing of any musical instrument or radio or television,or the use of a microphone,loud
speaker, electrical equipment, in the judgment of Landlord, might cause disturbance, impairment, or
interference with the use or enjoyment by any other tenant in the Shopping Center;
3. Not display any merchandise outside the Premises or in any way obstruct the sidewalks or
common areas adjacent thereto, and (subject to Rule #4 below) will not place garbage, rubbish, trash,
merchandise containers, or other incidentals to the business outside the Premises;
4. Keep all trash, refuse, garbage and waste materials in the type of container specified by
Landlord, and such trash,refuse,garbage and waste material will be placed outside the Premises prepared for
collection in the manner and at the times and places specified by Landlord;
5. Not burn trash, refuse, garbage or waste materials on the Premises or elsewhere on the
Subject Parcel or Shopping Center;
6. Not permit deliveries of any kind through the front entrance of the Premises, except where
no other entrance to the Premises is available,and if such be the case, at the times designated by Landlord;
7. Not solicit business in the parking or other common areas, and will not distribute any
handbills or other advertising matter on automobiles parked in the parking area or in other common areas
without written consent of Landlord;
8. Not use the plumbing facilities for any other purpose than that for which they are constructed,
and no foreign substance of any kind will be thrown therein, and will pay the expense of any breakage,
stoppage, or damage resulting from the violation of this provision by Tenant, its employees, agents, invitees,
sublessees, licensees, concessionaires or contractors;
9. Not keep any flammable or combustible material (except for alcoholic beverages), in,on or
about the Premises except as may be permitted to be kept in such locations and containers as specified by
Landlord from time to time in accordance with the recommendations or regulations of Landlord's insurance
carrier, underwriter or appropriate governmental authority;
10. Not permit the Premises to be used for lodging purposes;
11. Not permit any auction sale, fire sale,bankruptcy sale and/or going-out-of-business sale, or
similar types of sensational sales promotions to be conducted in the Premises or from the Premises;
• 12. Not operate or conduct in or from the Premises a so called,army, navy store or government
"surplus" store; and
13. Not conduct catalog sales in or from the Premises except of merchandise which Tenant is
permitted to sell "over the counter" in or at the Premises pursuant to the provisions of the Lease.
326559.8 Redlined V8 to V7 9-27-96 G-1
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3265597 3®
•
326559.8 Redlined V8 to V7 9.27-% G-2