<PAGE>
FORM 10-QSB
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Quarterly Report Under Section 13 or 15 (d)
of the Securities Exchange Act of 1934
For the Quarter Ended March 31, 1999 Commission File No. 0-9996
DOTRONIX, INC.
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(Exact name of registrant as specified in its charter)
Minnesota 41-1387074
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
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Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date.
Class Outstanding at April 23, 1999
- ----------------------- -----------------------------
Common stock, par value 4,041,601 shares
$ .05 per share
<PAGE>
DOTRONIX, INC.
INDEX
Part I - Financial Information Page(s)
-------
Item 1. Financial Statements (Unaudited)
Balance Sheets 3
Statements of Operations 4
Statements of Cash Flows 5
Notes to Financial Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 7-8
Part II - Other Information
Item 6. Exhibits and Reports on Form 8-K 9-10
EXHIBIT 27 - Financial Data Schedule 11
EXHIBIT 10a-Building Purchase Agreement Attached
EXHIBIT 10b-Building Lease Agreement Attached
2
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
DOTRONIX, INC.
<TABLE>
<CAPTION>
ASSETS March 31, June 30,
1999 1998
------------ ------------
(unaudited)
<S> <C> <C>
Cash and cash equivalents $ 399,210 $ 290,578
Accounts receivable, less allowance
for doubtful accounts of $36,588 1,048,335 1,141,845
Inventories:
Raw materials 1,897,483 2,975,987
Work-in-process 502,365 443,728
Finished goods 374,509 485,022
------------ ------------
Total inventories 2,774,357 3,904,737
Prepaid expenses 226,727 15,324
------------ ------------
Total Current Assets 4,448,629 5,352,484
PROPERTY, PLANT & EQUIPMENT
at cost net of accumulated depreciation
of $5,674,394 and $5,549,793, respectively 1,053,893 1,121,679
OTHER ASSETS:
Excess of cost over fair value of net assets acquired,
less amortization of $863,973 and $809,974, respectively 575,981 629,980
Other 31,390 66,202
------------ ------------
TOTAL ASSETS $ 6,109,893 $ 7,170,345
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Revolving loans $ 353,003 $ 254,264
Accounts payable 514,493 284,230
Salaries, wages and payroll taxes 202,892 183,787
Other accrued liabilities 127,518 96,828
------------ ------------
Total current liabilities 1,197,906 819,109
STOCKHOLDERS' EQUITY:
Common stock, $.05 par value 201,980 201,980
Additional paid-in capital 10,796,081 10,796,081
Accumulated deficit (6,086,074) (4,646,825)
------------ ------------
Total stockholders' equity 4,911,987 6,351,236
------------ ------------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $ 6,109,893 $ 7,170,345
============ ============
</TABLE>
See notes to financial statements
3
<PAGE>
DOTRONIX, INC.
STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three months ended, Nine months ended,
March 31 March 31
-------------------------- --------------------------
1999 1998 1999 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
REVENUES $ 1,673,190 $ 2,337,159 $ 5,355,915 $ 7,599,920
OPERATING EXPENSES:
Cost of Sales 1,397,524 1,577,192 3,949,142 5,200,753
Selling, general
And administrative 899,374 1,079,663 2,798,267 2,771,900
Interest 13,468 23,058 47,755 99,431
----------- ----------- ----------- -----------
Net (loss) $ (637,176) $ (342,754) $(1,439,249) $ (472,164)
=========== =========== =========== ===========
Basic and diluted (loss)
per common share
(Note B) $ (0.16) $ (0.08) $ (0.36) $ (0.12)
Average number of common
shares outstanding 4,041,601 4,039,306 4,040,394 4,038,218
</TABLE>
See notes to financial statements
4
<PAGE>
DOTRONIX, INC.
STATEMENTS OF CASH FLOWS
(Unaudited)
Nine months ended
March 31,
--------------------------
1999 1998
----------- -----------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(1,439,249) $ (472,164)
Adjustments to reconcile net loss to
Cash used in operating activities:
Provision for loss on accounts receivable (100,009)
Provision for inventory obsolescence 82,192 --
Depreciation and amortization 186,099 151,955
Changes in assets and liabilities:
Accounts receivable 93,510 339,115
Inventories 1,048,187 (439,408)
Prepaid expenses (211,402) 11,100
Other assets 27,312 (25,826)
Accounts payable and accrued liabilities 280,058 (82,219)
----------- -----------
Net cash provided by (used in)
operating activities 66,707 (617,456)
CASH FLOWS FROM INVESTING ACTIVITIES-
Purchases of property, plant and equipment (56,815) (108,734)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from sale of stock -- (1,362)
Borrowings on revolving and demand loans 5,590,604 7,471,118
Repayments on revolving and demand loans (5,491,864) (8,167,123)
----------- -----------
Net cash provided by (used in)
financing activities 98,740 (697,367)
----------- -----------
NET INCREASE (DECREASE) IN CASH AND
CASH EQUIVALENTS 108,632 (1,423,557)
CASH AND CASH EQUIVALENTS AT BEGINNING
OF THE PERIOD 290,578 2,582,679
----------- -----------
CASH AND CASH EQUIVALENTS AT END OF
THE PERIOD $ 399,210 $ 1,159,122
=========== ===========
See notes to financial statements
5
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DOTRONIX, INC.
NOTES TO FINANCIAL STATEMENTS
Unaudited
A. Basis of Presentation
The balance sheet as of March 31, 1999, the statements of operations for the
three and nine month periods ended March 31, 1999 and 1998 and the statements of
cash flows for the nine month periods ended March 31, 1999 and 1998 have been
prepared by the Company without audit. In the opinion of management, all
adjustments (consisting only of normal recurring accruals) necessary to present
fairly the financial position, results of operations and cash flows at March 31,
1999 and for the three and nine months periods ended March 31, 1999 and 1998
presented herein have been made.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted. It is suggested that these financial statements
be read in conjunction with the Company's financial statements and notes thereto
included in the Annual Report on Form 10-KSB of the Company for the fiscal year
ended June 30, 1998.
B. Earnings per share
Effective December 15, 1997 the Company adopted Statement of Financial
Accounting Standards No. 128, "Earnings per Share" (SFAS No. 128). Earnings per
share amounts presented for the three and nine month periods ended March 31,
1998 have been restated for the adoption of SFAS No. 128. The following table
reflects the calculation of basic and diluted earnings per share.
<TABLE>
<CAPTION>
Three months Three months Nine months Nine months
------------ ------------ ----------- -----------
March 31 March 31 March 31 March 31
1999 1998 1999 1998
------------ ------------ ----------- -----------
<S> <C> <C> <C> <C>
Loss per share
Net loss ($637,176) ($342,754) ($1,439,249) ($472,164)
Weighted average shares outstanding 4,041,601 4,039,306 4,040,934 4,038,218
Net loss per share - basic ($0.16) ($0.08) ($0.36) ($0.12)
=====================================================================
Loss per share - assuming dilution
Net loss ($637,176) ($342,754) ($1,439,249) ($472,164)
Weighted average shares outstanding 4,041,601 4,039,306 4,040,934 4,038,218
Dilutive impact of options outstanding $0.00 $0.00 $0.00 $0.00
Weighted average shares and potential
Dilutive shares outstanding 4,041,601 4,039,306 4,040,934 4,038,218
Loss per share - assuming dilution ($0.16) ($0.08) ($0.36) ($0.12)
=====================================================================
</TABLE>
Options to purchase 138,000 shares of common stock at exercise prices of
$.78 to $2.54 were outstanding during the nine months ended March 31, 1999, and
options to purchase 143,000 shares of common stock at exercise prices of $.78 to
$2.54 were outstanding during the nine months ended March 31, 1998, but were not
included in the computation of diluted earnings per share because of their
anti-dilutive impact on the loss per share.
6
<PAGE>
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.
RESULTS OF OPERATIONS
Revenue decreased 28% and 30%, respectively for the three months and nine months
ended March 31, 1999 compared to the prior year. Revenue was down in the three
and nine month periods due to reduced shipments of several product lines.
Gross margin percentage for the quarter ended March 31, 1999 was 16% compared to
33% for the same quarter ended in fiscal 1998. Gross margin for the nine month
period ended March 31, 1999 was 26% compared to 32% in the prior year period.
The Company's product mix, and low level of sales in January and February of the
three months ended March 31, 1999 was the primary contributing factor of the
reduced gross margin results when compared to the 1998 performance.
Selling, general and administrative expenses decreased $180,000 or 17% in the
quarter ended March 31, 1999, when compared to the prior year. The decrease was
due to an ongoing effort to improve the efficiencies of the Company's sales and
marketing efforts . General and administrative expenses increased $87,000, or 3%
during the nine month period ended March 31, 1999 when compared to the prior
year. The increase was caused by increased engineering effort on new product
designs.
Interest expense decreased $52,000, or 53% during the nine month period ended
March 31, 1999 compared to the same period of the prior year. The establishment
of a new financing agreement which is discussed under "Liquidity and Capital
Resources" resulted in lower financing costs.
LIQUIDITY AND CAPITAL RESOURCES
On November 13, 1997, the Company entered into a working capital loan and
security agreement with Coast Business Credit. The agreement covers a period of
three years with the following provisions:
o Maximum availability of $3,000,000 not to exceed the total of 85% of
eligible receivables, as defined, plus outstanding equipment acquisition
loans. The capital equipment acquisition loans can not exceed $500,000.
o The loans bear interest at 2% over prime (10.5% at March 31, 1999) and are
secured by all the assets other than real estate of the Company. The
agreement also provides for minimum interest payments on loan balances of
$600,000 in year one, $900,000 in year two and $1,200,000 in year three.
o Payment of a $1,250 quarterly loan facility fee.
o Early termination fees of $90,000 the first year, $60,000 the second year
and $30,000 in the third year.
o The maintenance of a minimum tangible net worth as defined, of $5,000,000.
The Company's tangible net worth at March 31, 1999 was $4,304,615, which is
below the $5,000,000 minimum tangible net worth as defined by the credit
agreement. The Lender has waived the minimum tangible net worth provision for
December 1998 and January 1999 for a fee of $5000. For periods after January
1999 the Lender has indicated that continued waiver of the minimum tangible net
worth loan provision will result in a higher interest being assessed on future
borrowings. If the Lender requires repayment of loans outstanding the Company
will seek financing elsewhere. There is no certainty that financing will be
available.
7
<PAGE>
In April 1999 the Company sold one of its buildings in a sale and leaseback
agreement with its chief executive officer. Due diligence was taken to ensure
that the sale and leaseback was an arms length transaction. The building, at 160
First Street Southeast, New Brighton, Minnesota, was sold for $570,000. A net,
net, net, ten year (10) lease was signed by the Company. Monthly rent is $6100.
At the end of 5 years the monthly rent may increase. The Company has the option
of extending the lease for two (2) additional periods of five (5) years.
Additional operating funds of $558,000 after closing costs was thereby secured.
The purchase agreement is attached as Exhibit 10a, and the lease agreement is
attached as Exhibit 10b.
The Company believes that the cash and cash equivalents on hand at March 31,
1999, the additional funds secured through the sale of the building, described
above, and the future amounts available to it under the aforementioned credit
agreement or any other new credit agreement should be adequate to meet both
short and long-term capital needs, including those discussed in the "Impact of
the Year 2000" section which follows.
During the nine months ended March 31, 1999, operations provided 67,000 of cash.
Purchases of property, plant and equipment consumed $57,000 of cash. Increased
borrowings on the working capital loan provided $99,000 of cash to the Company.
The overall result was an increase in cash of $109,000.
At March 31, 1999, working capital amounted to $3,251,000
COMMON STOCK LISTING
In a letter dated January 14, 1999, the Company was informed by Nasdaq that a
Nasdaq Listing Qualification Panels had determined that the Company's common
stock listing was to be moved from the Nasdaq National Market to the Nasdaq
SmallCap Market, which took place on January 19, 1999.
Nasdaq sent a letter dated March 29, 1999 stating that the Company's common
stock was scheduled to be de-listed from the Nasdaq Stock Market effective with
the opening of business on April, 5, 1999, unless a hearing was requested. The
Company requested a hearing, which was confirmed by Nasdaq in a letter dated
April 7, 1999. The hearing is to take place in Washington D.C. on May 20, 1999
before a Panel authorized by the Nasdaq Stock Market Board of Directors. In the
event the Panel determines to delist the company's securities, the Company will
not be notified until the delisting has become effective.
In the event of delisting the Company's securities will be listed on the OTC
Bulletin Board.
IMPACT OF THE YEAR 2000 ON THE COMPANY'S INFORMATION TECHNOLOGY SYSTEMS.
The Company's products are not impacted by the year 2000 issue since the
displays/monitors that the Company designs and manufacturers do not contain date
logic as part of their operation.
The Company's business systems; consisting of manufacturing requirements
planning (MRP) and accounting systems (accounts receivable, accounts payable,
general ledger) are not year 2000 compliant. To comply with the year 2000 issue,
the Company is replacing the existing business system. The new business system
will be operational on July 1, 1999.
8
<PAGE>
The Company has financed the network and hardware portions (approximately
$160,000) of the implementation through a two year lease arrangement. Software,
training, and installation costs (approximately $200,000, of which approximately
$140,000 was paid at March 31, 1999) will be financed through the use of the
Company's available operating cash flow and advances under its line of credit.
Software costs will be capitalized.
ACCOUNTING FOR DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES
SFAS No. 133 Accounting for Derivative Instruments and Hedging Activities, was
issued in June 1998. SFAS No. 133 provides a comprehensive standard for the
recognition and measurement of derivatives and hedging activities. The Company
does not have investments in derivatives and does not participate in hedging
activities. The Company is currently assessing the impact of SFAS No. 133 will
have on the Company's financial position and results of operations in 1999.
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Securities Holders
At the annual meeting of the shareholders of the Company held on November 11,
1998 the following were elected directors:
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Votes For Withheld
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William S. Sadler 3,651,832 66,605
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Ray L. Bergeson 3,651,632 66,805
- -----------------------------------------------------------------------------
Robert J. Snow 3,651,632 66,805
- -----------------------------------------------------------------------------
Edward L. Zeman 3,651,667 66,770
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L. Daniel Kuechenmeister 3,651,667 66,770
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9
<PAGE>
Item 6. Exhibits and reports on Form 8-K
(a) Exhibits
Exhibit 27.......Financial Data Schedule
Exhibit 10a......Building Purchase Agreement
Exhibit 10b......Building Lease Agreement
(b) No reports on Form 8-K were issued during the quarter.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: May 14, 1999 DOTRONIX, INC.
By /s/ William S. Sadler
---------------------------------
William S. Sadler
President
(Principal Executive Officer)
By /s/ Robert V. Kling
---------------------------------
Robert V. Kling
Chief Financial Officer
(Principal Financial and
accounting Officer)
10
<PAGE>
Exhibit 10a
PURCHASE AGREEMENT
THIS AGREEMENT is made as of April 26, 1999 between Dotronix, Inc., a
Minnesota corporation, whose Tax I.D. Number is 41-1387074 ("Seller") and
William S. Sadler, an individual, whose Tax I.D. Number is ("Buyer").
In consideration of this Agreement, Seller and Buyer agree as follows:
1. Sale of Property. Seller agrees to sell to Buyer, and Buyer agrees to
buy from Seller, the following property (collectively, "Property"):
1.1 Real Property. The real property located in Ramsey County, Minnesota,
described on the attached Exhibit A ("Land") together with (1) all
buildings and improvements constructed or located on the Land
("Buildings") and (2) all easements and rights benefiting or
appurtenant to the Land (collectively the "Real Property").
1.2 Personal Property. All of the personal property situated in or about
the Real Property owned by Seller used in connection with Buildings or
Land described on Exhibit B ("Personal Property").
1.3 Leases. Seller's interest as lessor in all of the leases, if any, as
described on the rent roll attached to this Agreement as Exhibit C
("Leases").
1.4 Contracts, Permits, Warranties, Records, Miscellaneous. Seller's
interests in the following items, all of which relate to the Property:
all service and maintenance contracts, equipment leases and other
contracts ("Contracts"); all permits, licenses, and trade names
("Permits"); all warranties and guaranties relating to the Property
("Warranties"); and all business records, including management,
leasing, real estate taxes, assessments, insurance, rents,
maintenance, repairs, capital improvements and services ("Records").
2. Purchase Price and Manner of Payment. The total purchase price
("Purchase Price") to be paid for the Property shall be Five Hundred Seventy
Thousand Dollars ($570,000). The Purchase Price shall be payable as follows:
2.1 $570,000 in cash or by wire transfer of funds on the Closing Date.
3. Contingencies. The obligations of Buyer under this Agreement are
contingent upon each of the following:
<PAGE>
3.1 Representations and Warranties. The representations and warranties of
Seller contained in this Agreement must be true now and on the Closing
Date as if made on the Closing Date.
3.2 Title. Title shall have been found acceptable, or been made
acceptable, in accordance with the requirements and terms of Section 6
below.
3.3 Access and Inspection. Seller shall have allowed Buyer, and Buyer's
agents, access to the Real Property without charge and at all
reasonable times for the purpose of Buyer's investigation and testing
the same. Seller shall make available to Buyer and Buyer's Agents
without charge all plans and specifications, records, inventories,
permits and correspondence in Seller's possession relating to
Hazardous Substances affecting the Property; and the right to
interview employees of Seller who may have knowledge of such matters.
Buyer shall pay all costs and expenses of such investigation and
testing, shall restore the Real Property, and shall hold Seller and
the Real Property harmless from all costs and liabilities relating to
Buyer's activities. Buyer shall have been satisfied in its sole
discretion with the results of all tests and investigations performed
by it or on its behalf.
3.4 [Intentionally deleted.]
3.5 Document Review. Buyer shall have determined, in its sole judgment, on
or before the Contingency Date, that it is satisfied with its review
and analysis of the Leases, Contracts, Permits, Warranties, Plans,
Records and Permitted Encumbrances. Seller shall on or before Date of
Closing deliver to Buyer copies of all such documents for review.
3.6 Government Approvals. Buyer shall have obtained at its sole cost and
expense on or before the Closing Date all final governmental
approvals, if any, necessary in Buyer's judgment in order to make the
use of the Property which Buyer intends. Seller shall cooperate in all
reasonable respects with Buyer in obtaining such approvals, and shall
execute such applications, permits and other documents as may be
reasonably required in connection therewith.
3.7 Financing. Buyer shall have received on or before the Closing Date the
proceeds of financing necessary and sufficient in Buyer's opinion to
implement Buyer's plans for and complete the purchase of the Property.
The "Contingency Date" shall be on the same day as the Closing Date, as defined
below. If any contingency has not been satisfied on or before the Closing Date,
then this Agreement may be terminated by notice from Buyer to Seller. Upon
termination, neither party will have any further
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<PAGE>
rights or obligations regarding this Agreement or the Property. All the
contingencies are specifically for the benefit of the Buyer, and the Buyer shall
have the right to waive any contingency by written notice to Seller.
4. Closing. The closing of the purchase and sale contemplated by this
Agreement (the "Closing") shall occur on April 26, 1999 (the "Closing Date").
4.1 Seller's Closing Documents. On the Closing Date, Seller shall execute
and deliver to Buyer the following (collectively, "Seller's Closing
Documents"), all in form and content reasonably satisfactory to Buyer:
4.1.1 Deed. A Warranty Deed (in the form of a Minnesota Uniform
Conveyancing Blank) conveying the Real Property to Buyer, free
and clear of all encumbrances, except the Permitted Encumbrances
hereafter defined.
4.1.2 Bill of Sale. A Warranty Bill of Sale conveying the Personal
Property to Buyer, free and clear of all encumbrances.
4.1.3 [Intentionally deleted.]
4.1.4 Assignment of Contracts, Permits, Warranties and Miscellaneous
Documents. An Assignment of Contracts, Permits, Warranties and
miscellaneous documents conveying Seller's interest to Buyer
together with the consent of all parties having a right to
consent to such Assignment.
4.1.5 [Intentionally deleted.]
4.1.6 Original Documents. Original copies of the Leases, Contracts,
Permits, Warranties, and Records, all plans and specifications
for the Property in Seller's possession, a Bring Down
Certificate, and copies of all records required to be kept
concerning the presence, location and quantity of asbestos
containing materials and presumed asbestos containing materials
in the Property.
4.1.7 FIRPTA Affidavit. A non-foreign affidavit, properly executed,
containing such information as is required by Internal Revenue
Code Section 1445(b)(2) and its regulations.
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<PAGE>
4.1.8 Owner's Duplicate Certificates of Title. The owner's
duplicate certificates of title regarding the Real
Property.
4.1.9 IRS Forms. A Designation Agreement designating the
"reporting person" for purposes of completing Internal
Revenue Form 1099 and, if applicable, Internal Revenue Form
8594.
4.1.10 Well and Septic/Sewer Certificate. A Certificate signed by
Seller warranting that there are no "Wells" on the Property
within the meaning of Minn. Stat. ss. 103I or if there are
"Wells", a Well Certificate in the form required by law,
and warranting that there is no septic system in use or
abandoned on the Property, and warranting that sewage from
the property goes to permitted facilities.
4.1.11 Storage Tanks. If the Property contains or contained a
storage tank, an affidavit with respect thereto, as
required by Minn. Stat. ss. 116.48.
4.1.12 Other Documents. All other documents reasonably determined
by Buyer or Title to be necessary to transfer the Property
to Buyer free and clear of all encumbrances.
4.1.13 ACM Materials. Copies of all records required to be kept
concerning the presence, location and quantity of asbestos
containing materials and presumed asbestos containing
materials in the Property.
4.2 Buyer's Closing Documents. On the Closing Date, Buyer will execute
and deliver to Seller the following (collectively, "Buyer's
Closing Documents"):
4.2.1 Purchase Price. Funds representing the Purchase Price, by
wire transfer and execution or delivery of any required
Seller's financing documents.
4.2.2 Assumption Agreement. An Assumption Agreement by which
Buyer will assume all obligations of Seller under the
Leases, Contracts and Permits that accrue after the Closing
Date.
4.2.3 IRS Form. A Designation Agreement designating the
"reporting person" for purposes of completing Internal
Revenue Form 1099 and, if applicable, Internal Revenue Form
8594.
5. Prorations. Seller and Buyer agree to the following pro-rations and
allocation of costs regarding this Agreement:
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<PAGE>
5.1 Title Insurance and Closing Fee. Seller will pay all costs of the
Title Evidence, the Title Policy and the fees charged by Title for
any escrow required regarding Buyer's Objections. Buyer will pay
all additional premiums required for the issuance of any
mortgagee's Title Policy. Seller will pay any closing fee or
charge imposed by any closing agent or by the title company.
5.2 Deed Tax. Seller shall pay all State Deed Tax payable in
connection with this transaction. Buyer shall pay all Mortgage
Registry Tax payable in connection with Buyer's financing.
5.3 Real Estate Taxes and Special Assessments. Real Estate Taxes
payable in the year in which Closing occurs shall be pro-rated
based upon a calendar year based upon the Date of Closing. Seller
shall provide for payment of special assessments pending as of the
date of the closing for improvements ordered by the City Council
or other governmental assessing authority. Seller's provision for
payment shall be by payment into escrow 1 1/2 times the estimated
amount of the assessments. Seller shall pay all levied special
assessments and any deferred special assessments or real estate
taxes, including, but not limited to, "Green Acres" taxes under
Minnesota Statutes 273.111, which are required to be paid as a
result of its sale of the Property, at or prior to closing if
required by Buyer's Lender; otherwise Seller may, at its option,
continue to pay such assessments in installments as allowed by the
appropriate taxing authorities. Seller shall pay installments of
special assessments certified to its real estate taxes payable in
the year in which the closing occurs.
5.4 [Intentionally deleted.]
5.5 Other Costs. All other operating costs of the Property shall be
allocated between Seller and Buyer as of the Closing Date, so that
Seller pays that part of operating costs payable before the
Closing Date, and Buyer pays that part of operating costs payable
from and after the Closing Date.
5.6 Attorney's Fees. Each of the parties will pay its own attorney's
fees, except that a party defaulting under this Agreement or any
Closing Document will pay the reasonable attorney's fees and court
costs incurred by the nondefaulting party to enforce its rights
hereunder.
5.7 Sales Tax. Buyer shall pay in addition to the Purchase Price all
state and local sales tax arising from the transaction herein
described, including any additional sales tax assessed by
governmental authority after filing of the sales tax return. At
the Closing, Buyer shall deliver the amount of sales tax to Seller
and Seller shall
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<PAGE>
deliver to Buyer evidence that Seller has obtained a Sales Tax
Permit. Seller shall file a sales tax return and pay such tax as
required by law.
6. Title Examination. Title Examination will be conducted as follows:
6.1 Seller's Title Evidence. Seller shall furnish, if requested by
Buyer, the following (collectively, "Title Evidence"): (a) a
commitment ("Title Commitment") for an ALTA Form B 1990 Owner's
Policy of Title Insurance insuring title to the Real Property,
deleting standard exceptions and including affirmative insurance
regarding zoning, contiguity, appurtenant easements and such other
matters as may be identified by Buyer or Buyer's Lender, in the
amount of the Purchase Price, issued by Land Title ("Title"); (b)
Seller shall deliver to Title or Buyer an Abstract of Title and/or
Registered Property Abstract to the Real Property certified to a
current date to include all appropriate judgment and bankruptcy
searches; (c) UCC searches against Seller by name and the
Property; and (d) a certified report of all liens for unpaid sales
or withholding taxes on file against Seller (or against any trade
name or business name used by Seller) which are on file in the
office of the Minnesota Secretary of State or any applicable
County Recorder.
6.2 Buyer's Objections. Buyer hereby acknowledges that it has no
objections to the condition of the Title Evidence as of the
Closing Date.
7. Operation Prior to Closing. During the period, if any, from the date
of Seller's acceptance of this Agreement to the Closing Date (the "Executory
Period"), Seller shall operate and maintain the Property in the ordinary course
of business in accordance with prudent, reasonable business standards, including
the maintenance of adequate liability insurance and insurance against loss by
fire, windstorm and other hazards, casualties and contingencies, including
vandalism and malicious mischief. Seller shall execute no contracts, leases or
other agreements regarding the Property during the Executory Period that are not
terminable on or before the Closing Date, without the prior written consent of
Buyer, which consent may be withheld by Buyer at its sole discretion.
8. Representations and Warranties by Seller. Seller represents and
warrants to Buyer as follows:
8.1 Existence; Authority. Seller is duly organized, qualified and in
good standing, and has the requisite power and authority to enter
into and perform this Agreement and Seller's Closing Documents;
such documents have been duly authorized by all necessary action;
such documents are valid and binding obligations of Seller, and
are enforceable in accordance with their terms.
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<PAGE>
8.2 Leases. Seller has made available to Buyer a correct and complete
copy of each Lease and all its amendments. The information
regarding the Leases contained in the attached Rent Roll is
correct and complete as of the date of this Agreement. The Leases,
if any, are in full force and neither Seller, nor any tenant, is
in default under the Leases. There are no other leases or
possessory rights of others regarding the Real Property.
8.3 Contracts. Seller has made available to Buyer a correct and
complete copy of each Contract and its amendments which will
survive a closing hereunder.
8.4 Operations. Seller has received no notice of actual or threatened
cancellation or suspension of any utility services or certificate
of occupancy for any portion of the Real Property. Seller warrants
that the usual utilities are available to the Property as of the
Closing Date. Seller has received no notice of actual or
threatened special assessments or reassessments of the Real
Property. The Property is, and to Seller's best knowledge has
been, used in compliance with all governmental permits. All
necessary permits have been obtained and are in full force and
effect and no default exists thereunder. Seller warrants that the
Property is usable for its current purposes without violating any
zoning or municipal regulations as of the Closing Date.
8.5 Environmental Laws. To the best of Seller's knowledge, no toxic or
hazardous substances or wastes, pollutants or contaminants
(including, without limitation, asbestos, urea formaldehyde, the
group of organic compounds known as polychlorinated biphenyls,
petroleum products including gasoline, fuel oil, crude oil and
various constituents of such products, and any hazardous substance
as defined in any Environmental Law (collectively, "Hazardous
Substances") have been generated, treated, stored, transferred
from, released or disposed of, or otherwise placed, deposited in
or located on the Property in violation of any Environmental Law,
nor has any activity been undertaken on the Property that would
cause or contribute to the Property becoming a treatment, storage
or disposal facility within the meaning of any Environmental Law.
The term "Environmental Law" shall mean any and all federal, state
and local laws, statutes, codes, ordinances, regulations, rules,
policies, consent decrees, judicial orders, administrative orders
or other requirements relating to the environment or to human
health or safety associated with the environment, all as amended
or modified from time to time. To the best of Seller's knowledge
there has been no discharge, release or threatened release of
Hazardous Substances from the Property, and there are no Hazardous
Substances or conditions in or on the Property that may support a
claim or cause of action under any Environmental Law. The Property
is not now, and to the best of Seller's knowledge never has
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<PAGE>
been, listed on any list of sites contaminated with Hazardous
Substances, nor used as landfill, dump, disposal or storage site
for Hazardous Substances. Seller has maintained all records
required to be kept concerning the presence, location and quantity
of asbestos containing materials, and presumed asbestos containing
materials, in the Property and will deliver the same to Buyer on
or before closing. To the best of Seller's knowledge means, for
the purposes of this Agreement, Robert Kling, the Seller's Chief
Financial Officer.
8.6 Seller's Defaults. To the best knowledge of Seller, Seller is not
in default concerning any of its obligations or liabilities
regarding the Property.
8.7 Operating Statements. Operating statements for the Property will
be supplied by Seller to Buyer, if requested, and will be correct
and complete and prepared in accordance with generally accepted
accounting standards.
8.8 FIRPTA. Seller is not a "foreign person", "foreign partnership",
"foreign trust" or "foreign estate", as those terms are defined in
Section 1445 of the Internal Revenue Code.
8.9 Proceedings. There is no action, litigation, investigation,
condemnation or proceeding of any kind pending or to the best
knowledge of Seller threatened against Seller or any portion of
the Property.
8.10 Condition. To the best knowledge of Seller, the buildings,
structures and improvements included within the Property are
structurally sound and in good repair and in first-class
condition, and all mechanical, electrical, heating, air
conditioning, drainage, sewer, water and plumbing systems are in
proper working order and comply with applicable state and
municipal codes, statutes and ordinances.
8.11 Wells. The Seller certifies and warrants that the Seller does not
know of any "Wells" on the described Property within the meaning
of Minn. Stat. ss. 103I. This representation is intended to
satisfy the requirements of that statute.
8.12 Storage Tanks. To the best knowledge of Seller after due inquiry,
no above ground or underground tanks are located in or about the
Property, or have been located under, in or about the Property and
have subsequently been removed or filled. To the extent storage
tanks exist on or under the Real Property, such storage tanks have
been duly registered with all appropriate regulatory and
governmental bodies, and otherwise are in compliance with
applicable federal, state and local statutes, regulations,
ordinances and other regulatory requirements.
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<PAGE>
8.13 Reports. Seller has delivered to Buyer copies of all environmental
reports and studies relating to the Property which are in the
possession of Seller.
8.14 Wetlands. There does not exist on or contiguous to the Property
any portion of a wetland, watercourse, waterbody, floodplain or
shoreland district, or tidelands or coastal zone, which is
regulated by the Army Corps of Engineers, the Minnesota Department
of Natural Resources or any other federal, state or local
governmental agency under any Environmental Law.
8.15 Individual Sewage Treatment Systems. Solely for purposes of
satisfying the requirements of Minn. Stat. ss.115.55 Sellers
represents that there is no "individual sewage treatment system"
(within the meaning of that statute) in use or abandoned, on or
serving the Property.
Seller will indemnify Buyer, its successors and assigns, against, and will hold
Buyer, its successors and assigns, harmless from, any expenses or damages,
including reasonable attorneys' fees, that Buyer incurs because of the breach of
any of the above representations and warranties, whether such breach is
discovered before or after Closing. Wherever herein a representation is made "to
the best knowledge of Seller", such representation is limited to the actual
knowledge of Robert Kling . Except as herein expressly stated, Buyer is
purchasing the Property based upon its own investigation and inquiry and is not
relying on any representation of Seller or other person and is agreeing to
accept and purchase the Property "as is, where is" subject to the conditions of
examination herein set forth and the express warranties herein contained.
Consummation of this Agreement by Buyer with knowledge of any such breach by
Seller will not constitute a waiver or release by Buyer of any claims due to
such breach.
9. Casualty; Condemnation. If all or any part of the Property is
substantially damaged by fire, casualty, the elements or any other cause, Seller
shall immediately give notice to Buyer, and Buyer shall have the right to
terminate this Agreement and receive back all Earnest Money by giving notice
within thirty (30) days after Seller's notice. If Buyer shall fail to give the
notice, then the parties shall proceed to Closing, and Seller shall assign to
Buyer all rights to insurance proceeds resulting from such event. If eminent
domain proceedings are threatened or commenced against all or any part of the
Property, Seller shall immediately give notice to Buyer, and Buyer shall have
the right to terminate this Agreement and receive back all Earnest Money by
giving notice within thirty (30) days after Seller's notice. If Buyer shall fail
to give the notice, then the parties shall proceed to Closing, and Seller shall
assign to Buyer all rights to appear in and receive any award from such
proceedings.
10. Assignment. Either party may assign its rights under this Agreement
with the prior written consent of the other party, before or after the Closing.
Any such assignment will not relieve such assigning party of its obligations
under this Agreement.
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<PAGE>
11. Survival. All of the terms of this Agreement and warranties and
representations herein contained shall survive and be enforceable after the
Closing.
12. Notices. Any notice required or permitted hereunder shall be given by
personal delivery upon an authorized representative of a party hereto; or if
mailed by United States registered or certified mail, return receipt requested,
postage prepaid; or if transmitted by facsimile copy followed by mailed notice;
or if deposited cost paid with a nationally recognized, reputable overnight
courier, properly addressed as follows:
If to Seller: Dotronix, Inc.
160 First Street S.E.
St. Paul, Minnesota 55112
Attn: Robert Kling
Fax #: 651-633-7025
If to Buyer: William S. Sadler
160 First Street S.E.
St. Paul, MN 55112
Fax #: 651-633-7025
Notices shall be deemed effective on the earlier of the date of receipt or the
date of deposit, as aforesaid; provided, however, that if notice is given by
deposit, the time for response to any notice by the other party shall commence
to run one business day after any such deposit. Any party may change its address
for the service of notice by giving notice of such change 10 days prior to the
effective date of such change.
13. Miscellaneous. The paragraph headings or captions appearing in this
Agreement are for convenience only, are not a part of this Agreement, and are
not to be considered in interpreting this Agreement. This written Agreement
constitutes the complete agreement between the parties and supersedes any prior
oral or written agreements between the parties regarding the Property. There are
no verbal agreements that change this Agreement, and no waiver of any of its
terms will be effective unless in a writing executed by the parties. This
Agreement binds and benefits the parties and their successors and assigns. This
Agreement has been made under the laws of the State of Minnesota, and such laws
will control its interpretation.
15. Remedies. If Buyer defaults under this Agreement, Seller shall have
the right to terminate this Agreement by giving written notice to Buyer. If
Buyer fails to cure such default within 30 days of the date of such notice, this
Agreement will terminate, and upon such termination Seller will retain the
Earnest Money as liquidated damages, time being of the essence of this
Agreement. The termination of this Agreement and retention of the Earnest Money
will be the sole remedy available to Seller for such default by Buyer, and Buyer
will not be liable for damages or specific performance. If Seller defaults under
this Agreement, this provision does
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<PAGE>
not preclude Buyer from seeking and recovering from Seller damages for
nonperformance or specific performance of this Agreement. If Seller defaults
under this Agreement, Buyer shall have no right to seek damages from Seller for
Buyer's loss of its bargain in failing to acquire the Property, but Buyer shall
recover as damages from Seller all of Buyer's out-of-pocket costs and fees,
including without limitation, attorneys' fees, accountants' fees and other
consultants' fees incurred by Buyer in preparing and negotiating this Agreement,
preparing for the closing, obtaining financing commitments, investigating the
status, title and condition of the Property, and other similar and reasonable
costs and expenses.
16. Withdrawal of Offer. This Agreement shall be deemed to be withdrawn,
unless accepted by Seller, and a fully executed counterpart of this Agreement
returned to Buyer on or before April 23, 1999.
Seller and Buyer have executed this Agreement as of the date first
written above.
DOTRONIX, INC.
Date of Signature By
----------------------------------
Robert Kling
Chief Financial Officer
_______________________ , 1999 SELLER
Tax I.D. Number
---------------------
Date of Signature
-----------------------------------
William S. Sadler
_______________________ , 1999 BUYER
Tax I.D. Number
---------------------
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<PAGE>
EXHIBIT A
Legal Description
Lots 17-24, Block 3, Vermont Park, City of New Brighton, County of Ramsey,
Minnesota.
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<PAGE>
EXHIBIT B
Personal Property
Personal property directly related to the operation and maintenance of the
building, except for those personal property items and fixtures described in the
UCC-1 Financing Statement filed with the Secretary of State as document number
1980526 dated October 14, 1997.
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<PAGE>
EXHIBIT C
Leases
None
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<PAGE>
EXHIBIT D
Permitted Encumbrances
-15-
<PAGE>
Exhibit 10b
================================================================================
LEASE
Between
William S. Sadler
Landlord
And
Dotronix, Inc.
Tenant
Address of Premises:
160 First Street S.E.
New Brighton, MN
Dated as of April __, 1999
================================================================================
<PAGE>
BASIC TERMS
The information provided on this page is for convenience purposes only. In the
event of any conflict or inconsistency between the terms set forth below and the
terms of the attached Lease, the terms of the Lease shall be controlling.
DATE: April 26, 1999
BUILDING ADDRESS: 160 First Street S.E.
New Brighton, MN
USE: Manufacturing/Office Facility
LANDLORD'S NAME AND ADDRESS: William S. Sadler
1370 West Ryan Avenue
Roseville, MN 55113
Telephone No.: 651-633-1742
Telecopy No.: 651-633-7025
TENANT'S NAME AND ADDRESS: Dotronix, Inc.
160 First Street S.E.
New Brighton, MN 55112
Telephone No.: 651-633-1742
Telecopy No.: 651-633-7025
LEASE TERM: April 26, 1999 through April 30, 2009
OPTIONS TO EXTEND: Two five year options
INITIAL MONTHLY BASE RENT: $6100 a month
PERCENTAGE RENT: None
SECURITY DEPOSIT: None
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INDEX
Page
----
ARTICLE 1 Definitions ......................................................1
ARTICLE 2 Premises .........................................................4
ARTICLE 3 Lease Term .......................................................4
ARTICLE 4 Rent .............................................................5
ARTICLE 5 Impositions ......................................................5
ARTICLE 6 Use ..............................................................6
ARTICLE 7 Surrender ........................................................7
ARTICLE 8 Insurance ........................................................8
ARTICLE 9 Indemnification of Landlord .....................................10
ARTICLE 10 Operation, Repairs and Maintenance; Alterations .................10
ARTICLE 11 Discharge of Liens ..............................................13
ARTICLE 12 Compliance with Laws ............................................14
ARTICLE 13 Damage or Destruction ...........................................15
ARTICLE 14 Condemnation ....................................................17
ARTICLE 15 Assignment ......................................................19
ARTICLE 16 Default .........................................................20
ARTICLE 17 Security ........................................................23
ARTICLE 18 Subordination ...................................................23
ARTICLE 19 Entry by Landlord; Performance of Covenants .....................24
ARTICLE 20 Certificates ....................................................24
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<PAGE>
ARTICLE 21 Notices .........................................................25
ARTICLE 22 Miscellaneous ...................................................26
Exhibit A Legal Description of the Land
Exhibit B Base Rent During Extended Terms
Rider Additional Provisions
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<PAGE>
LEASE
THIS LEASE ("Lease") is made as of April 26, 1999, by and between William
S. Sadler, an individual having an office at 160 First Street S.E., New
Brighton, MN ("Landlord"), and Dotronix, Inc., a Minnesota corporation having an
office at 160 First Street S.E., New Brighton, MN ("Tenant").
ARTICLE 1
Definitions
1.1 Certain Definitions. Landlord and Tenant agree that the following
capitalized terms when used herein shall, unless the context otherwise requires,
have the following meanings:
"Accessibility Regulation" shall mean a Law relating to accessibility of
facilities or properties for disabled, handicapped and/or physically challenged
persons, including, without limitation, the
Americans With Disabilities Act of 1991, as amended.
"Additional Rent" shall mean all sums payable by Tenant pursuant to this
Lease, except Base Rent.
"Base Rent" shall mean the sums payable to Landlord pursuant to Section
4.1.1 hereof.
"Building" shall mean the building located on the Land, together with all
fixtures, building systems, equipment, and any personal property located therein
and used in the operation and maintenance thereof, to the extent now owned by
Landlord, together with all other improvements now or hereafter constructed on
the Land.
"Commencement Date" shall mean the day the Lease Term begins as
identified in Section 3.1 hereof.
"Environmental Regulation" shall mean a Law relating to the environment
and/or the impact thereof on human health or safety, or governing, regulating or
pertaining to the generation, treatment, storage, handling, transportation, use
or disposal of any Hazardous Substance.
"Event of Default" shall mean any of the events or circumstances
described in Section 16.1 hereof.
<PAGE>
"Expiration Date" shall mean the day the initial Lease Term expires as
identified in Section 3.1 hereof.
"Full Insurable Value" shall mean the replacement cost of the Building,
without allowance for depreciation, but excluding footings, foundations and
other portions of improvements which are not insurable. A determination of Full
Insurable Value shall be made at least once every three (3) years at Tenant's
expense by a firm of qualified property insurance appraisers satisfactory to
Landlord and to property insurance companies generally.
"Hazardous Substance" means any substance or material defined in or
governed by any Environmental Regulation as a dangerous, toxic or hazardous
pollutant, contaminant, chemical, waste, material or substance, and also
expressly including urea-formaldehyde, polychlorinated biphenyls, dioxin,
asbestos, asbestos containing materials, nuclear fuel or waste, radioactive
materials, explosives, carcinogens and petroleum products, including but not
limited to crude oil or any fraction thereof, natural gas, natural gas liquids,
gasoline and synthetic gas, or any other waste, material, substance, pollutant
or contaminant which would subject the owner or operator of the Premises to any
damages, penalties or liabilities under any applicable Environmental Regulation.
"Impositions" shall mean all real estate taxes, assessments, water,
sewer, heat, electricity, gas and all other utility rates and other governmental
charges, general and special, ordinary and extraordinary, unforeseen as well as
foreseen, of every kind and nature whatsoever, including, but not limited to,
assessments for local improvements and betterments, which are assessed, levied,
confirmed, imposed or shall become payable upon or with respect to the Premises
during the term hereof. There shall also be included with such term any taxes
which may hereafter be imposed upon or payable with respect to the Rent payable
by Tenant hereunder, excluding income and franchise taxes imposed with respect
to all income of Landlord.
"Land" shall mean the parcel of land described in Exhibit A attached
hereto, together with all appurtenances thereto and easements benefitting such
parcel.
"Law" shall mean any federal, state or local law, statute, code,
ordinance, rule or regulation which is applicable to the Premises or the use or
operation thereof.
"Lease Term" shall mean the term of this Lease as identified in Article 3
hereof, including any extensions of the initial term made in accordance with the
provisions thereof.
"Permitted Encumbrances" shall mean:
1. Any state of facts which an accurate survey of the Premises would
show, and/or which a physical inspection thereof would disclose or reveal.
2. All Laws.
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<PAGE>
3. The revocable nature of the right, if any, to maintain vaults, vault
spaces, basement and sub-basement spaces, areas, structures, coal chutes, fuel
pipes, sidewalk doors and elevators, canopies, marquees, signs, ledges,
cornices, parapets, window sills, facade ornamentation, standpipes, doors, show
windows, exhaust pipes and any other encroachment or projection across or beyond
the building lines.
4. All notes or notices of violations of Law heretofore or hereafter
noted in or issued by any governmental or municipal board, body, agency,
authority or department, whether or not affecting the Premises as of date
hereof, including, without limitation, any such violations which might be
disclosed by an examination, inspection or search of the Premises by any
governmental or municipal board, body, agency or department, or any condition
which, following an inspection of the Premises, might give rise to such a note
or notice of violation, all of which Tenant covenants and agrees to promptly
remove or to correct in accordance with the provisions of Article 12 hereof.
5. All covenants, restrictions, easements, conditions, and agreements,
including, without limitation, any party wall agreements, of record, if any.
6. All rights, grants or easements affecting the Premises, whether or not
of record, heretofore or hereafter given, afforded to or acquired by any public
utility company or governmental authority furnishing utilities to the Premises,
or in or to the area in which the Premises are located, including easements to
maintain wires, pipes, conduits, and other facilities which enter or cross the
Premises.
7. The present condition and state of repair of the structures included
in the Premises.
8. All Impositions.
"Premises" shall mean the Land and Building and all other buildings and
improvements now, or at any time hereafter, erected or situated on the Land.
"Rent" shall mean all Base Rent, Additional Rent and other sums payable
to Landlord or on behalf of Landlord under this Lease, whether or not
specifically denominated as rent.
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<PAGE>
ARTICLE 2
Premises
2.1 Leasing. Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord, subject to the Permitted Encumbrances
and upon all of the terms, covenants and conditions set forth herein.
2.2 Acceptance "As Is". Tenant has investigated the Premises to Tenant's
satisfaction, and has had the benefit of a full physical inspection thereof; and
Tenant represents that it is fully familiar with the physical condition and
state of repair of the Premises, with any notices of existing violations, and
with any conditions constituting, or which might constitute violations. Except
as may be otherwise provided in any Rider which may be attached hereto, Tenant
accepts the Premises and all appurtenances thereto "as is", in their present
condition and state of repair, without any representation or warranty, express
or implied, including, but not limited to, warranties of fitness for a
particular purpose or merchantability, having been made by Landlord or by any
person on Landlord's behalf with respect thereto.
ARTICLE 3
Lease Term
3.1 Initial Term. The Premises are leased to Tenant, for a term
commencing on April 26, 1999, and ending on April 30, 2009, unless sooner
terminated or further extended, as hereinafter provided.
3.2 Option to Extend. Provided that no Event of Default shall exist
hereunder at the time of exercise of such option, Tenant shall have the right
and option to extend the Lease Term for two (2) additional periods of five (5)
years, commencing on the day following the Expiration Date. Such option shall be
exercised by Tenant giving written notice thereof to Landlord not later than six
(6) months prior to what would otherwise be the last day of the Lease Term, time
being strictly of the essence. If Tenant so exercises its option to extend the
Lease Term, all of the terms, covenants, conditions and provisions of this Lease
shall continue to be applicable during such additional period, except that the
monthly Base Rent payable by Tenant during the additional period shall be as
determined in accordance with the provisions contained in Exhibit B attached
hereto.
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<PAGE>
ARTICLE 4
Rent
4.1 Rent. Tenant agrees to pay to Landlord, without demand and without
deduction, set-off or counterclaim, at the address set forth hereinabove, or at
such other place as Landlord may from time to time designate in writing, Rent
for the Premises as follows:
4.1.1 Base Rent. A monthly Base Rent shall be due and payable in advance
on the first day of each and every calendar month during the Lease Term. Base
Rent for any period between the Commencement Date and the first day of the first
full calendar month during the Lease Term shall be prorated and paid on the
Commencement Date. The monthly Base Rent shall be $6,100 from April 20, 1999 to
April 30, 2004. The monthly Base Rent from May 1, 2004 to April 30, 2009 shall
be $2,500 plus the amount equal to the monthly payments of principal and
interest on a loan for the Premises in the amount of $456,000, obtained by
Landlord on commercially reasonable terms, with an amortization period of 15
years or longer, but in no event shall the monthly Base Rent be less than $6,100
a month.
Tenant shall pay as Additional Rent all other sums of money required to
be paid pursuant to this Lease, which shall be paid at the time and in the
amounts set forth elsewhere in this Lease.
4.2 Rent is Net of All Costs. It is the purpose and intent of Landlord
and Tenant that the Base Rent payable by Tenant hereunder shall be absolutely
net to Landlord, so that this Lease shall yield, net to the Landlord, the Base
Rent in each year during the Lease Term, and that all costs, fees, expenses,
interest (other than mortgage principal and interest, if any), charges,
reimbursements and obligations of every kind and nature whatsoever relating to
the Premises (except those expressly stated in this Lease to be obligations of
the Landlord, if any), which may arise or become due during the Lease Term shall
be paid or discharged by Tenant as Additional Rent hereunder, whether or not
specifically designated as such, and Tenant agrees to indemnify and hold
Landlord harmless from and against such costs, fees, interest, charges,
expenses, reimbursements and obligations, and interest thereon.
ARTICLE 5
Impositions
5.1 Tenant to Pay Impositions. Tenant covenants to pay, as Additional
Rent, when due and before any fine or penalty is added thereto for the
nonpayment thereof, all Impositions which become due and payable during the
years which are included in whole or in part in the Lease Term; provided,
however, that if any such Imposition may be paid in installments, Tenant may pay
each installment before any fine or penalty is added to any such installment for
the nonpayment thereof. Impositions which become due and payable during the
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<PAGE>
years when the Lease Term commences and terminates shall be prorated according
to the number of days in such years which are included in the Lease Term. Tenant
shall also reimburse Landlord for sales or rental taxes, if any, paid or payable
by Landlord on rentals from the Premises.
5.2 Evidence; Contents. Tenant shall deliver to Landlord from time to
time duplicate receipts or photostatic copies thereof showing payment of all
Impositions within 10 days after the respective payment dates. Landlord shall,
at its option, have the right at any time during the Lease Term to pay, without
the necessity of inquiring into the validity or legality thereof, any delinquent
Impositions and interest and penalties thereon, and the amount so paid,
including reasonable expenses incurred in connection therewith, shall be so much
Additional Rent due from the Tenant to Landlord at the next rental payment date
after such payment; provided, however, that if Tenant shall in good faith
proceed to contest any such Impositions or the validity thereof by proper legal
proceedings which shall operate to prevent the collection thereof and the sale
of the Premises or any part thereof to satisfy the same, Tenant shall not be
required to pay, discharge or remove any Impositions so long as such proceeding
is pending and Tenant is diligently prosecuting such proceeding; provided
further that Tenant, not less than 30 days before any such Impositions shall
become delinquent, shall give notice to Landlord of Tenant's intention to
contest the validity thereof and shall deposit with Landlord an amount
sufficient to pay the contested Impositions, plus penalty and interest through
the period of contest.
5.3 Utilities. Tenant expressly agrees that Landlord shall not be
required to furnish to Tenant any water, sewer, gas, heat, electricity, light,
power or any other facilities, equipment, labor, materials or any services of
any kind whatsoever. Tenant shall make its own arrangements, at its own cost and
expense, for the furnishing to the Premises of all utilities, facilities or
services required for Tenant's use, and Tenant shall pay for all such utilities,
facilities or services to the Premises.
ARTICLE 6
Use
6.1 Use. The Leased Premises shall be used and occupied by Tenant solely
for operation of a office and manufacturing facility, and for no other purpose,
and such use and occupancy shall be in compliance with all Laws. The Premises
shall not be used in such manner that, in accordance with any requirement of
Law, including but not limited to any Accessibility Regulation, Landlord shall
be obligated to make any addition or alteration to or in the Building.
6.2 Covenant of Tenant Not to Abandon. Tenant covenants and agrees not to
abandon the Premises. In the event the Premises are abandoned by Tenant,
Landlord shall have the right, but not the obligation, to relet the Premises for
the remainder of the Lease Term or for
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<PAGE>
any lesser term; and if the rent received through such reletting does not at
least equal the Rent provided herein, Tenant shall pay and satisfy any
deficiency between the amount of Rent herein provided and that received through
reletting (after deducting therefrom all expenses incurred in connection with
any such reletting, including but not limited to brokerage fees and the cost of
renovating, altering and decorating for any or all new tenants or occupants).
Nothing herein shall be construed as impairing or denying Landlord's right, in
the event of abandonment of the Premises or other breach of this Lease by
Tenant, to treat the same as an entire breach, and to exercise all the remedies
herein provided for defaults by Tenant.
6.3 Compliance with Environmental Regulations. Except for substances and
in quantities which are normally used in the operation of Tenant's business or
for the maintenance or operation of the Premises, and which are used, stored and
disposed of in accordance with all applicable Environmental Regulations, Tenant
shall not, nor shall it permit others to, place, store, locate, generate,
produce, create, process, treat, handle, transport, incorporate, discharge,
emit, spill, release, deposit or dispose of any Hazardous Substance in, upon,
under, over or from the Premises. Tenant shall cause all Hazardous Substances
found in or under the Premises which are not permitted under the foregoing
sentence and which exist in quantities which violate applicable Environmental
Regulations to be properly removed therefrom and properly disposed of at
Tenant's expense. Tenant shall not install or permit to be installed any
underground storage tank on or under the Land. Tenant shall, promptly after
obtaining actual knowledge thereof, give notice to Landlord of (i) any activity
in violation of any applicable Environmental Regulation relating to the
Premises, (ii) any governmental or regulatory actions instituted or threatened
under any Environmental Regulation affecting the Premises, (iii) all claims made
or threatened by any third party against Tenant or the Premises relating to any
Hazardous Substance or a violation of any Environmental Regulation, and (iv) any
discovery by Tenant of any occurrence or condition on or under the Premises
which could subject Landlord, Tenant or the Premises to a claim under any
Environmental Regulation. Any investigation, remedial or corrective action taken
with respect to the Premises shall be done under the supervision of a qualified
engineer or consultant acceptable to Landlord who shall, at Tenant's expense and
at the completion of such investigation or action, provide a written report
thereon to Landlord. Tenant shall indemnify Landlord, his heirs, successors and
assigns and hold Landlord harmless from and against any claim or expense arising
from or related to any Hazardous Substances, including, but not limited to,
attorneys' fees and costs and expenses relating to such claim.
6.4 Compliance with Accessibility Regulations. Tenant shall, at its sole
cost and expense, comply with all Accessibility Regulations which are applicable
to the Leased Premises.
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ARTICLE 7
Surrender
7.1 Time; Condition. Upon termination of this Lease, whether by reason of
lapse of time, forfeiture or otherwise, Tenant shall immediately surrender
possession of the Premises to Landlord in good order, condition and repair,
ordinary wear and tear and loss by insured casualty excepted, and all fixtures
and improvements on the Premises shall, at the option of Landlord, become the
property of Landlord without any obligation on the part of Landlord to
compensate Tenant therefor, subject to Article 7.2 below. If possession be not
immediately surrendered, Landlord, with or without process of law, may forthwith
re-enter the Premises and repossess the same or any part thereof and expel and
remove therefrom, using such force as may be necessary, all persons and property
without being deemed guilty of any unlawful act or liable for damages by reason
of such re-entry and without prejudice to any other legal remedy available to
Landlord. Notwithstanding such re-entry by Landlord or any termination or
forfeiture under this Lease, the liability of Tenant for the Rent provided for
herein shall continue for the balance of the Lease Term.
7.2 Removal of Fixtures. Notwithstanding the preceding Section hereof, if
this Lease terminates by reason of the expiration of the Lease Term and if
Tenant is not in default in any respect hereunder, Tenant may remove its trade
fixtures and equipment, provided that such removal shall be made prior to the
end of the Lease Term. Any damage resulting from removal shall be repaired by
Tenant.
ARTICLE 8
Insurance
8.1 Required Insurance. Tenant, at its sole cost and expense, shall
maintain in effect at all times during the Lease Term the following insurance,
plus any insurance reasonably required by Landlord's lender:
8.1.1 A Commercial General Liability Insurance policy providing
coverage on an "occurrence" rather than on a "claims made" basis, which
policy shall include coverage for bodily injury, property damage,
personal injury, contractual liability (applicable to this Lease),
independent contractors and products-completed operations liability. Such
policy shall provide coverage of at least $2,000,000 for each occurrence
and annual aggregate coverage of at least $2,000,000.
8.1.2 Insurance on the Building against loss by fire and other
hazards covered by the so-called "all-risk" form of policy, and including
contingent liability from operation of building laws coverage, in an
amount not less than the Full Insurable Value. Such policy shall have an
"agreed amount" endorsement or otherwise exclude co-insurance
participation by the insured, and may include a deductible in an amount
not greater than $5,000. While any building or other improvement is in
the course of being constructed or rebuilt on the Land, such insurance
shall be in builder's risk, completed value form.
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8.1.3 If the Building includes steam boilers or other equipment
excluded from coverage under the "all-risk" form of policy, boiler and
machinery insurance in an amount not less than the Full Insurable Value.
8.1.4 If the Land or any part thereof is located in a designated
flood-hazardous area, flood insurance insuring the Building in an amount
equal to the maximum limit of coverage made available with respect to the
Premises under the Federal Flood Disaster Protection Act of 1973, as
amended, and the regulations issued thereunder.
8.1.5 Rent loss and rental value insurance insuring Landlord
against loss of rental under this Lease in amount equal to at least the
total Rent payable hereunder for a period of three (3) months.
8.1.6 Worker's compensation and disability insurance with limits
at least as great as required by law.
8.2 Insured Parties; Other Provisions. All property insurance policies
shall name Landlord as the insured party and loss payee. All liability insurance
policies shall name both Landlord and Tenant as insured parties. If Landlord so
elects, such policies shall also include the holders of any mortgages now or
hereafter encumbering the Premises. In the event that the holder of such a
mortgage is named as an insured under any of the foregoing property insurance
policies, the proceeds under such policies shall be made payable to such
mortgagee or mortgagees pursuant to standard mortgagee clauses. Each of the
foregoing policies shall contain the agreement of the insurer that:
8.2.1 Such policies shall not be cancelled except upon 15 days'
prior notice to each named insured;
8.2.2 The coverage afforded thereby shall not be affected by the
performance of any work or alterations in or about the Premises;
8.2.3 The insurer waives all rights of subrogation against all
named insureds; and
8.2.4 The insurance provided to Landlord thereunder shall not be
affected by any defense the insurer may have against Tenant or any other
person.
8.3 Companies; Renewals; Failure to Provide. All policies required by
this Article shall be carried in such companies and upon such forms as Landlord
and Landlord's mortgagee from time to time approve. All policies required to be
furnished hereunder shall be deposited with the Landlord prior to the
commencement of the Lease Term, and renewals thereof, and evidence of the
payment of premium to continue coverage in force shall all be deposited with
Landlord not less than 30 days prior to the date on which such insurance would
otherwise expire. At Landlord's option, exercised in writing, in the event
Tenant shall fail to
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provide such policies, Landlord may obtain such insurance and the entire cost
thereof shall be due and payable as Additional Rent upon billing by Landlord.
ARTICLE 9
Indemnification of Landlord
9.1 Indemnity. Tenant shall indemnify and hold Landlord harmless against
and from all liabilities, obligations, damages, penalties, claims, costs,
charges and expenses, including reasonable attorneys' and other consultants'
fees, which may be imposed upon, incurred by or asserted against Landlord by
reason of any accident, injury, death or damage to property occurring in, on or
about the Premises during the Lease Term. In case any action or proceeding is
brought against Landlord by reason of such liabilities, obligations, damages,
penalties, claims, costs, charges, and expenses, Tenant, upon written notice
from Landlord, shall at Tenant's expense resist or defend such action or
proceeding by counsel approved by Landlord in writing.
9.2 Release. Tenant hereby expressly releases Landlord, its agents and
employees, from any claim or cause of action for any loss or damage whatsoever
to the Premises or Tenant's property therein or business conducted therefrom
arising out of any negligence or alleged negligence of the Landlord, its agents
or employees. It is the intention of the parties that the Tenant shall look only
to its insurance carrier, if any, for payment of such loss. This shall apply
specifically, but not exclusively, to the flooding of the Premises, and to
damages caused by sprinkling devices, heating and air conditioning apparatus,
water, snow, excessive heat or cold, falling plaster, broken glass, sewage, gas,
odor or noise, or the bursting or leaking of pipes, plumbing fixtures or the
roof or walls of the Building.
ARTICLE 10
Operation, Repairs and Maintenance; Alterations
10.1 Operation, Repairs and Maintenance. Throughout the Lease Term,
Tenant shall, at Tenant's sole cost and expense, take good care of the Premises,
including the roof of the Building, and all passageways, sidewalks, curbs and
vaults adjoining the Premises, and shall put and keep the same in good order,
condition and repair, and shall make all repairs thereto, interior and exterior,
structural and non-structural, ordinary and extraordinary, and foreseen and
unforeseen, all as may be necessary to keep the Premises and the fixtures,
appurtenances, and installations therein contained in good order and condition
and in compliance with all Laws. When used in this Lease, the term "repairs"
shall include all replacements, renewals, alterations, additions and
betterments, when necessary and appropriate. All repairs made by Tenant shall be
equal in quality and class to the original work. Tenant will do or cause others
to do all necessary
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shoring of foundations and walls of the Building and every other act or thing
for the safety and preservation thereof which may become necessary by reason of
any excavation or other building operation upon any adjoining property or
street, alley or passageway. Tenant shall keep the Building adequately heated
during all months of the year when temperatures are below freezing to prevent
damage to the Building by freezing or heaving and further shall make all repairs
necessary to avoid any structural damage or injury to the Premises whether
caused by freezing or heaving, ordinary wear and tear or any other reason.
Tenant shall also keep and maintain all portions of the Premises, and all
passageways, roadways, entrances, curbs and sidewalks adjoining the Premises, in
a clean and orderly condition, free of accumulated dirt, rubbish, snow and ice,
and any other unlawful obstructions; and Tenant shall not permit or suffer the
overloading of any of the floors, elevators or escalators of the Building.
Without limitation of the foregoing, Tenant shall not do, permit or suffer to be
committed any waste or damage, disfigurement or injury to the Premises, or any
part or portion thereof.
10.2 No Landlord Obligations. Landlord shall not be required to furnish
any services or facilities or to make any repairs or alterations in or to the
Premises whatsoever, Tenant hereby assuming the full and sole responsibility for
the condition, operation, repair, replacement, maintenance and management of the
Premises. Landlord shall nevertheless have the right to enter the Premises at
all reasonable times for the purpose of inspecting all or any part thereof. If
Tenant shall fail to perform any repairs, restoration or other work which Tenant
is obligated to perform under this Lease, and if such default is not remedied
within the applicable grace period provided therefor in this Lease, or within
such shorter period as under the circumstances may be reasonable in the case of
an emergency, Landlord shall have the right (without being obligated to do so)
to enter the Premises and to perform such work. All expenses paid or incurred by
Landlord for any of said purposes, and all necessary incidental costs and
expenses (including legal and architectural fees and disbursements) of Landlord
in connection therewith, together with interest thereon at the maximum legal
rate per annum (limited in all events to 18% per annum), from the date of the
making of such expenditures by Landlord, shall be due and payable by Tenant to
Landlord on demand. Nothing herein shall be implied to impose any duty upon
Landlord to do any such work or to make any such alterations or repairs,
additions or improvements to the Premises of any kind whatsoever (including any
repairs, alterations, and other restoration work made necessary due to any fire
or other casualty), and the performance by Landlord of any such work,
alterations or repairs shall neither constitute a waiver of Tenant's default in
failing to perform the same, nor impose any obligation on Landlord to perform
any such work, alterations or repairs in the future. During the progress of any
such work, alterations or repairs, Landlord may keep and store on the Premises
all necessary materials, supplies, equipment and tools. Landlord shall not in
any event be liable for any inconvenience, annoyance, disturbance, loss of
business or other damage of Tenant, or any other occupant of the Premises, by
reason of the making of any such work, alterations or repairs, or on account of
the keeping or storing of such materials, supplies, and equipment; and the
obligations of Tenant under this Lease shall not thereby be modified or reduced
in any manner whatsoever.
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10.3 Alterations. Tenant may not make any change, alteration, addition,
restoration or improvement (herein collectively referred to as an "alteration")
in, to or of the Premises except at Tenant's sole cost and expense, and without
first, in each instance (except in the instance of interior non-structural
alterations costing $5,000 or less, in the aggregate), obtaining the written
consent of Landlord. Such consent shall not be unreasonably withheld or delayed,
and shall not be withheld to the extent to which such an alteration is in fact
required to effect compliance with any Law. Landlord may, in its sole
discretion, withhold consent to any signage placed on the exterior, except for
any signs in place on the Commencement Date, and any minor repairs thereto.
Unless Landlord shall agree otherwise in writing, Tenant shall be required to
remove all alterations at or prior to the end of the Lease Term and to repair
any damage caused by such removal. Any and all alterations may be made only
subject to and in compliance with the following:
10.3.1 Before the commencement of any alteration herein:
(1) Tenant shall, except in emergency, give 60 days' prior
written notice thereof to Landlord;
(2) Tenant shall, except in the case of an interior
non-structural alteration costing less than $5,000, obtain
Landlord's prior written approval of a licensed architect or a
licensed professional engineer selected and paid for by Tenant who
shall supervise any such alteration; and
(3) Tenant shall, except in the case of an interior
non-structural alteration costing less than $5,000, obtain
Landlord's prior written approval of detailed plans and
specifications prepared and approved in writing by said approved
architect or engineer. No alterations shall be made except such as
are in all material respects in accordance with said detailed
plans and specifications. The reasonable cost and expense, if any,
of reviewing the plans and specifications for each such
alteration, whether by Landlord, or by the holders of all
mortgages, if for any reason billed by them or by any of them to
Landlord, shall be paid by Tenant to Landlord, as Additional Rent,
forthwith upon demand.
(4) Tenant shall post security reasonably required by
Landlord.
10.3.2 No alteration shall be undertaken until Tenant shall have
procured and paid for, so far as the same may be required from time to
time, all permits and authorizations of any federal, state or municipal
government or department, or subdivision of any of them, having or
asserting jurisdiction. Landlord shall join in the application for such
permits or authorizations, if and to the extent required, but at Tenant's
sole cost and expense.
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10.3.3 No alteration shall be of such character as to reduce the
value and utility of the Premises for the uses permitted hereunder below
the value and utility thereof prior to commencement of such alteration.
10.3.4 Tenant shall obtain the written consent and approval of
each then-existing mortgagee, if any, before the commencement of any
alteration hereunder, to the extent to which such consent may be required
under the applicable mortgage or mortgages, and shall proceed in such a
manner as to satisfy the requirements of this Lease and the applicable
requirements of each such mortgage.
10.3.5 Any alteration shall be made promptly and in a good and
workmanlike manner and in compliance with all applicable permits and
authorizations and building and zoning laws, and with all other Laws.
10.3.6 The cost of any alteration shall be paid when due so that
the Premises shall at all times be free of liens for labor and materials
supplied or claimed to have been supplied to the Premises and free from
any encumbrances, chattel mortgages, conditional bills of sale, or
security interests.
10.3.7 Whenever appropriate, the property insurance required to be
maintained during the Lease Term shall be endorsed or supplemented to
provide, at Tenant's sole cost and expense, during any period when
alterations are in progress, for builder's risk insurance written on a
so-called completed value form. Workman's compensation insurance covering
all persons employed in connection with the work and with respect to whom
death or bodily injury claims could be asserted against Landlord, Tenant
or the Premises, and comprehensive general public liability insurance,
providing full coverage with respect to any accident, injury or
occurrence involving, relating to, or arising during or as a result of
such alteration, naming Landlord and Tenant as insureds, with limits of
not less than those required for commercial general liability insurance
hereunder, shall be maintained by Tenant (or Tenant's independent
contractor) at Tenant's (or at such contractor's) sole cost and expense
at all times when any work is in progress in connection with any such
alteration.
10.3.8 No alteration shall increase the height of the Building, or
combine, tie-in or connect the Building and/or any other portion of the
Premises, or any structure or improvement thereon erected or situated,
with any other building or improvement located on any adjoining property;
and Tenant shall in no event include or attempt to include the Premises
with other properties in a common zoning lot under any zoning ordinance
or related statute which may now or hereafter be applicable to the
Premises in such respect.
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ARTICLE 11
Discharge of Liens
11.1 No Liens. If any lien for work performed or materials supplied after
the commencement of the Lease Term is filed against the Premises or Landlord's
or Tenant's interest therein, other than liens arising as a result of acts of
Landlord, Tenant shall cause same to be discharged of record within 10 days
after notice of such filing. Tenant, at its sole expense, shall defend the
Premises and Landlord against all suits for the enforcement of any such lien or
any bond in lieu of such lien, and Tenant hereby indemnifies Landlord against
any and all loss, cost, damage, expense or liability resulting from any such
lien or suit. Should Tenant fail to so discharge any such lien, Landlord may do
so by payment, bond or otherwise on 10 days' written notice to Tenant, and the
amount paid or incurred therefor by Landlord shall be reimbursed to Landlord by
Tenant as Additional Rent upon demand, with interest from the date of demand at
the maximum rate of interest lawfully permitted to be collected (limited to the
rate of 18% per annum).
11.2 Right to Contest. Tenant shall have the right to contest any such
mechanic's or other lien claim filed against the Premises or any part thereof if
Tenant notifies Landlord in writing of its intention so to do, diligently
prosecutes any such contest, at all times effectually stays or prevents any
official or judicial sale of the Premises under execution or otherwise, and pays
or otherwise satisfies any final judgment adjudicating or enforcing such
contested mechanic's or other lien and thereafter promptly procures and records
a satisfaction and release of same, provided Tenant has deposited with Landlord
a sum sufficient to cover the lien so contested, plus interest, costs and
attorneys' fees which will accrue during the period of such contest.
11.3 No Consent. Nothing in this Lease shall be deemed to constitute the
consent or request of Landlord to any contractor, subcontractor or material
supplier for the performance of any labor or the furnishing of any materials for
any specific improvement to the Premises. Notice is hereby given that Landlord
has assumed no obligation and shall not be liable or responsible for or in
connection with any labor or materials hereafter furnished to Tenant, or to any
other party, whether on credit, or otherwise, and that no mechanic's or other
lien for any such labor or materials shall attach to or affect the Premises, or
Landlord's reversionary interest and estate therein. Landlord shall have the
right to post and maintain on the Premises, notice of nonresponsibility under
the laws of the State of Minnesota.
ARTICLE 12
Compliance with Laws
12.1 Compliance. Throughout the Lease Term, Tenant shall at Tenant's sole
cost and expense, promptly remove of record any and all violations noted or
filed against the Premises, shall correct all conditions constituting
violations, and shall promptly comply with all
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present and future Laws and directives of all federal, state and municipal
governments, departments, commissions, boards and officers, and all orders,
rules and regulations of the National Board of Fire Underwriters, or any other
body or bodies exercising similar functions, which may be applicable to the
Premises and the sidewalks, alleyways, passageways, curbs and vaults adjoining
the Premises, or to the use or manner of use of the Premises, or to the owners,
tenants or occupants thereof, whether or not any such Law or directive shall
necessitate structural changes or improvements, or interfere with the use and
enjoyment of the Premises.
12.2 Insurance Requirements. Tenant shall likewise at Tenant's sole
expense observe and comply with the requirements of all policies of public
liability and property insurance, and all other policies of insurance at any
time in force with respect to the Premises, and Tenant shall, in the event of
any violation or any attempted violation of the provisions of this Article by
any subtenant or occupant, take all required steps, immediately upon knowledge
of such violation or attempted violation, to remedy or prevent the same, as the
case may be.
ARTICLE 13
Damage or Destruction
13.1 Casualty. Notwithstanding any provisions of this Lease to the
contrary, in the event that the Premises shall be damaged or destroyed by fire
or other casualty, whether or not covered by insurance, Tenant shall promptly
give written notice thereof to Landlord, and Tenant shall promptly repair,
restore, replace, or rebuild the same, as nearly as may be practicable, to its
condition and character immediately prior to such damage or destruction. Such
restoration, repairs, replacements, rebuilding or alterations shall be commenced
promptly and prosecuted with reasonable diligence, subject only to unavoidable
delays. Subject only to the provisions of any mortgage to which this Lease is or
shall be subordinate, the net insurance proceeds, if any, on account of such
damage or destruction, and collected by Landlord and/or Tenant (except rent-loss
and rental value insurance, which proceeds shall be Landlord's sole property)
shall be held in trust by Landlord or Landlord's designee and shall be made
available to Tenant as the work progresses (subject to periodic delivery to
Landlord of appropriate architect's certifications as to the cost of the
required work remaining until full completion, and title company certifications
as to the absence of any liens, or encumbrances relating to such work) for use
in making payments when due for the repairs, restoration or replacement required
under this Article 13, and pursuant to such controls and subject to such
approvals as Landlord or Landlord's mortgagee shall require. If such insurance
money shall be insufficient to pay the entire cost of such work, Tenant agrees
to pay the deficiency to a reputable title company before construction begins
for it to hold until the Work is completed. At any time after the completion of
such work, the balance of the insurance money not theretofore used pursuant to
the foregoing provisions of this section shall be paid to Landlord or Landlord's
mortgagee as their interests shall appear.
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13.2 Restoration Controls. The provisions and conditions of Articles 9
and 10 shall apply to the repairs, restoration or replacement required to be
performed by Tenant under this Article 13.
13.3 Rent Abatement. In the event such destruction or damage shall make
it impossible or unfeasible for Tenant to conduct business from all or any
substantial portion of the Premises, all Base Rent paid in advance shall be
apportioned as of the date of the destruction or damage and the Base Rent
thereafter accruing shall be equitably and proportionately suspended and
adjusted according to the nature, extent and duration of the destruction or
damage, pending completion of repairs, except that in the event the destruction
or damage is so extensive as to make it unfeasible for Tenant to conduct its
business on the Premises, Rent shall be completely abated until Tenant resumes
the conduct of its business on the Premises or 30 days after the repairs are
complete, whichever event first occurs. Such adjustment, suspension or abatement
of Rent shall not extend beyond the period of coverage nor reduce the amount
otherwise payable hereunder by more than the amount of the rent-loss and rental
value insurance then in effect pursuant to Section 8.1 hereof, it being the
intention that Landlord shall continue to receive full rental payments from
Tenant or such insurer throughout the period of any such work. In no event shall
[Percentage Rent or] Additional Rent be abated. Such Rent abatement shall be
Tenant's sole remedy for such damage or destruction and, except as set forth in
Section 13.4 hereof, Tenant shall have no right to cancel or terminate this
Lease due to such damage or destruction.
13.4 Option to Terminate. If the Premises are damaged or destroyed by an
insured casualty during the final 12 months of the Lease Term and to an extent
that would require more than 3 months to repair or restore, then either party
shall have the right and option to terminate this Lease as of the date of such
damage or destruction by giving written notice thereof to the other party within
30 days after such date. In such event, all Rent payable hereunder shall be
apportioned to the date of such damage or destruction and Landlord shall be
entitled to receive and retain all insurance proceeds payable by reason of such
occurrence. Tenant shall also have the right and option to terminate this Lease
as of the date of such damage or destruction if the holder of any mortgage
covering the Premises refuses to make the net insurance proceeds available for
restoration and Landlord also refuses to provide such funds. Such option shall
be exercised by Tenant giving written notice thereof to Landlord within 30 days
after Landlord notifies Tenant that the funds will not be available.
13.5 Release. Landlord releases Tenant from all claims, and all liability
or responsibility to Landlord and to anyone claiming through or under Landlord,
by way of subrogation or otherwise, for any loss or damage to the Building
caused by fire or other peril, even if such fire or other peril was caused in
whole or in part by the negligence or other act or omission of Tenant or its
agents or employees; provided, however, that this release and waiver of
subrogation shall (i) only be effective to the extent that the loss or damage is
covered by the insurance maintained by Tenant pursuant to this Lease, (ii) not
apply to the extent of any deductible applicable to such insurance, and (iii)
only apply if such insurance includes a full release from liability and waiver
of subrogation privilege permitting the release and waiver
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contemplated by this provision without jeopardizing the rights of Landlord to
recover under such insurance.
ARTICLE 14
Condemnation
14.1 Total Taking. If the entire Premises shall be condemned or taken
through or under the power of eminent domain, or if such a material portion of
the Premises is so taken that in the reasonable opinion of Landlord or Tenant
the restoration of the remaining portions of the Premises for the uses thereof
at the time of such partial taking is economically unfeasible, this Lease and
the term hereof shall cease and terminate upon the date of the vesting of title
in the condemning authority, and all Rent, Impositions and other Additional Rent
hereunder shall be apportioned to such date of termination, and any payments
theretofore made in advance by Tenant shall be refunded ratably to Tenant.
Landlord shall be entitled in such event to receive the entire award for the
property so taken or condemned which may be made in such condemnation
proceeding, and Tenant shall not be entitled to receive any portion thereof.
Tenant hereby assigns and transfers to Landlord any and all claims to such award
and waives and relinquishes any right to make any claim for an award for the
value of this Lease, or otherwise; provided, however, that Tenant shall be
permitted to make separate claims for Tenant's own trade fixtures and equipment,
and for relocation expenses and allowances, to the extent available, such claims
by Tenant to only be permitted to the extent that any resulting awards to Tenant
would not be directly deducted from or would not indirectly reduce the award
made to Landlord for such condemnation, and Tenant's claims shall be limited
accordingly.
14.2 Partial Taking. If less than such a material portion of the Premises
shall be taken or condemned, as aforesaid, this Lease shall continue and shall
remain in full force and effect; provided, however, that the Base Rent hereunder
shall thereafter be reduced to the product obtained when the Base Rent otherwise
payable hereunder is multiplied by a fraction, the numerator of which shall be
the total floor area of the Building (expressed in square feet) remaining
following the condemnation, and the denominator of which shall be the total
floor area thereof (expressed in square feet) upon the Commencement Date. Such
reduction in Base Rent shall first become effective as of the first day of the
month next succeeding the date of vesting of title in the condemning authority,
and shall not in any event diminish, reduce or abate the Impositions,
[Percentage Rent,] Additional Rent and other charges payable hereunder by
Tenant. In the event of such a partial condemnation, Tenant shall promptly make,
or cause to be made, all demolition, repairs, reconstruction, restoration,
replacement or rebuilding and all other work necessary, as nearly as may be
practicable, to restore the Premises to the value, rentability, utility and
condition immediately prior to such taking (with such alterations, additions and
improvements, if any, as may be constructed under and in accordance with the
provisions of Article 10). Subject only to the provisions of any mortgage to
which this Lease is or shall be subordinate, the net proceeds of the award in
respect of such partial taking or condemnation, after
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the payment of all fees and expenses incurred in connection with the collection
of such award, shall be paid over to Landlord, and shall be held in trust by
Landlord or Landlord's designee and shall be made available to Tenant as work
progresses (subject to periodic delivery to Landlord of appropriate architect's
certifications as to the cost of the required work remaining until full
completion, and title company certifications as to the absence of any liens, or
encumbrances relating to such work) for use in making payments when due for the
demolition, repairs, restoration or replacement required under this Article 14,
and pursuant to such controls and subject to such approvals as Landlord or
Landlord's mortgagee shall require. If such proceeds shall be insufficient to
pay the entire cost of such work, Tenant agrees to pay the deficiency. At any
time after the completion of such work, the balance of the proceeds not
theretofore used pursuant to the foregoing provisions of this section shall be
paid to Landlord or Landlord's mortgagee as their interests shall appear.
14.3 Temporary Taking. If the whole or any part of Tenant's estate or
interest under this Lease shall be taken or condemned by any governmental agency
or authority for its temporary use or occupancy, this Lease shall not terminate
by reason thereof, and Tenant shall continue to pay, in the manner and at the
times herein specified, the Base Rent, the Impositions and all other Additional
Rent, and all other charges payable by Tenant hereunder, without any abatement
or reduction thereof, and, except only to the extent that Tenant may be
prevented from so doing pursuant to the terms of the order of the condemning
authority, Tenant shall perform and observe all of the other terms, covenants,
conditions and obligations hereof upon the part of Tenant to be performed and
observed, as though such taking had not occurred. Tenant shall be entitled to
receive the entire award paid for or in connection with such a taking, whether
by way of damages, as rent, or otherwise, so long as Tenant shall not be in
default hereunder; provided, however, that if the award is paid in a lump sum,
or shall be payable less frequently than in monthly installments, the award
shall be paid to and held jointly by Landlord and Tenant, in Landlord's and
Tenant's names, in an interest-bearing account with a commercial banking
organization designated by Landlord and such award shall be applied as follows:
(a) If the award shall be made in a lump sum, it shall be divided
by the number of months included in the period of such temporary use or
occupancy and, so long as Tenant shall not be in default hereunder, an
amount equal to the quotient shall be paid over to Tenant monthly; and
(b) If the award or awards shall be paid less frequently than in
monthly installments, each such installment shall be divided by the
number of months to which it is attributable and, so long as Tenant shall
not be in default hereunder, an amount equal to the quotient shall be
paid over to Tenant monthly;
provided, however, that if such period of temporary use or occupancy shall
extend beyond the expiration of the Lease Term, Landlord shall be entitled to
receive and retain the amount of the award attributable to the period subsequent
to the expiration of the Lease Term. Upon the termination of any such period of
temporary use or occupancy, Tenant shall, at its sole cost and
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expense, restore the Premises, as nearly as may be practicable, to the condition
thereof immediately prior to such taking.
14.4 Taking Controls. To the extent applicable, the provisions and
conditions of Articles 9 and 10 shall apply to repairs, restoration or
replacement required to be performed by Tenant under this Article 14.
ARTICLE 15
Assignment
15.1 Assignment by Tenant. Tenant shall not, without obtaining the prior
written consent of Landlord, assign, convey, mortgage or otherwise transfer this
Lease or any interest hereunder, or sublet the Premises or any part thereof. A
change in the ownership of Tenant which results in a change in the control of
Tenant shall be deemed to be an assignment within the meaning of this Section.
Tenant shall by notice in writing advise Landlord of any request to assign this
Lease or to sublet all or any part of the Premises. Tenant's notice shall
include all of the terms of and consideration for the proposed assignment or
sublease, the proposed effective date, the name and address of the proposed
assignee or subtenant and a true and complete copy of the proposed assignment or
sublease and any other related agreements. In the event of a proposed assignment
of this Lease or a sublease of more than 30% of the floor area of the Building,
Landlord shall have the right to terminate this Lease as of the proposed
effective date stated in Tenant's notice by giving written notice thereof to
Tenant within 30 days after Tenant's notice. If Landlord does not exercise such
termination right, or if it is not applicable, Landlord will not unreasonably
withhold its consent to Tenant's proposed assignment or subletting to the party
identified in Tenant's notice. If Landlord consents to any such assignment or
subletting, Tenant shall pay to Landlord any profit derived by Tenant from such
assignment or subletting. Profit shall be deemed to include the amount paid or
payable to Tenant to enter into any such transaction and the amount of all rent
or other consideration payable by the assignee or sublessee in excess of the
Rent payable by Tenant under this Lease, computed in the case of a partial
sublease on a per square foot of rentable Building floor area basis. The profit
due Landlord shall be paid to Landlord within 10 days after receipt thereof by
Tenant. If Landlord shall consent to such assignment or sublease, no such
consent shall be deemed a release of Tenant or any guarantor, each of whom shall
continue to be jointly, severally, unconditionally and primarily liable for
payment and performance of all obligations hereunder with the assignee or
sublessee. Consent by Landlord to one assignment of this Lease or to one
subletting shall not be a waiver of Landlord's rights under this Section as to
any subsequent assignment or subletting. Landlord's reasonable costs, including
without limitation attorney's fees, for review of any assignment documentation
shall be paid by Tenant.
15.2 Assignment by Landlord. In the event that Landlord, or any successor
owner of the Premises, or the lessee under any ground or underlying lease, or
any holder of
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Landlord's interest in this Lease, or any fee owner of all or any portion of the
Premises (or the owner of any interest or estate therein), shall convey or
otherwise dispose of such title, interest or estate, or shall assign Landlord's
interest in this Lease to any ground or underlying lessee, then all liabilities
and obligations thereafter accruing or maturing on the part of Landlord or any
such successor-owner of the Premises, or former holder of Landlord's interest
under this Lease, or former fee owner of the Premises or any interest or estate
therein, shall cease and terminate, and each successor-owner of the Premises or
holder of Landlord's interests under this Lease, shall, without further
agreement, be bound by Landlord's covenants and obligations, but only during the
respective periods of the ownership by such parties; and Tenant shall continue
to be bound by this Lease, and shall recognize the successor to Landlord's
interests as the Landlord hereunder.
ARTICLE 16
Default
16.1 Events of Default. There shall be an "Event of Default" hereunder
and the Landlord may terminate this Lease upon 5 days' notice to Tenant:
16.1.1 If Tenant shall be in default in the payment of any Rent
and such default is not cured within 5 days after written notice thereof
given by Landlord; or
16.1.2 If Tenant shall be in default in the performance of any of
the terms, covenants, conditions and provisions of this Lease on Tenant's
part to be performed (other than the covenants for the payment of Rent)
and such default is not cured within 30 days after written notice thereof
given by Landlord; or if such default shall be of such nature that it
cannot be cured completely within said 30 day period, if Tenant shall not
have promptly commenced curing such default within such period and shall
not thereafter proceed with reasonable diligence and dispatch and in good
faith to remedy such default; or
16.1.3 If Tenant shall be adjudicated a bankrupt, shall make a
general assignment for the benefit of its creditors, or invoke the
benefit of any insolvency act, or if a permanent receiver or trustee in
bankruptcy be appointed for Tenant's property and such appointment is not
vacated within 60 days; or
16.1.4 If the Premises are permitted to be physically vacant or
deserted (unless as a result of an insured casualty) for a period of 30
consecutive days; or
16.1.5 If this Lease shall be mortgaged or assigned, or if the
Premises, or any portion thereof, are sublet, other than in accordance
with the terms hereof.
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<PAGE>
16.2 Termination. If Landlord shall give the 5 days' notice of
termination provided in Section 16.1, then, upon the expiration of such 5 day
period, this Lease shall terminate and Tenant shall then quit and surrender the
Premises to Landlord. If this Lease shall so terminate, it shall be lawful for
Landlord, at its option, without formal demand or notice of any kind, to
re-enter the Premises by summary dispossession proceedings, or by any other
lawful means, and to remove Tenant therefrom without being liable for any
damages therefor.
16.3 Remedies. Notwithstanding such termination as provided in Section
16.2, and such re-entry by Landlord, or in the event Landlord shall dispossess
Tenant by summary proceedings, or otherwise, the obligations of Tenant shall
survive and Tenant shall remain liable for all of its obligations hereunder for
the balance of the Lease Term, and shall reimburse Landlord for all such costs
and expenses as Landlord may sustain or incur for attorneys' and accountants'
fees and disbursements, brokerage fees, and/or putting the Premises in good
order, and for preparing the same for re-rental (including contributions to the
cost of tenant alterations and installations in connection therewith); and
Landlord may re-let the Premises, or any part or parts thereof, either in the
name of Landlord, or as agent for Tenant, on such conditions and for such term
or terms as Landlord may deem advisable, if Landlord so elects, which terms may
at Landlord's option be less than or exceed the unexpired period which would
otherwise have constituted the remainder of the Lease Term, and may grant rent
concessions and other credits to the lessees (including credits or allowances to
accommodate the cost of tenant alterations and improvements), and may charge a
greater or lesser rental than that reserved in this Lease; and Tenant or the
legal representatives of Tenant shall pay to the Landlord, as liquidated and
agreed current damages for the failure of Tenant to observe and perform this
Lease, and Tenant's undertakings and obligations hereunder, any deficiency
between the Rent hereby reserved and/or covenanted to be paid, including all
Impositions and other charges required to be paid by Tenant hereunder, and the
net amounts, if any, of the rents collected on account of such re-lettings of
the Premises for each month of the period which would otherwise have constituted
the unexpired Lease Term, if this Lease had remained in effect. The failure or
refusal of Landlord to re-let the Premises, or any part or parts thereof, shall
not release or affect Tenant's liability for Rent and/or damages. In computing
such current damages there shall be added to the said deficiency all such costs
and expenses as Landlord may sustain or incur in connection with re-letting,
such as attorneys' and accountants' fees and disbursements, brokerage
commissions, advertising expenses, and the cost to keep and maintain the
Premises in good order and repair, and to prepare the same for re-letting,
including contributions to the cost of tenant alterations and installations in
connection therewith, if any. Tenant shall pay such current damages (herein
called the "deficiency") to Landlord monthly, in advance, on the days on which
the Rent would have been payable under this Lease if this Lease were still in
effect, and Landlord shall be entitled to recover from Tenant each monthly
deficiency as the same shall arise or accrue. At any time after any such
expiration or termination, whether or not Landlord shall have collected any
monthly deficiencies, Landlord shall be entitled to recover from Tenant, and
Tenant shall pay to Landlord, on demand, as and for liquidated and agreed final
damages for Tenant's default, an amount equal to the then present worth
(computed using 8% per annum as the discount factor) of the excess of the Rent,
Impositions and other charges reserved under this Lease from the date of such
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expiration or termination for what would have been the then unexpired Lease Term
if the same had remained in effect, above the then fair market rental value of
the Premises for the same period.
16.4 No Release. Landlord, in putting the Premises in good order or
preparing the same for re-rental may, at Landlord's option, make such
alterations, repairs, replacements, and/or decorations in the Premises as
Landlord, in Landlord's sole judgment, considers advisable and necessary for the
purpose of re-letting the Premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed to release
Tenant from liability hereunder as aforesaid. Landlord shall in no event be
liable or responsible for any failure to re-let the Premises, or any part
thereof, or, in the event that the Premises are re-let, for failure to collect
any rent due upon any such re-letting, and in no event shall Tenant be entitled
to receive any excess of the total rental collected over the sums otherwise
payable by Tenant to Landlord hereunder.
16.5 Waiver. Tenant hereby waives, so far as permitted by law, the
service of any notice of intention to enter or re-enter provided for in any
statute, or the institution of legal proceedings to that end; and Tenant, for
itself, and for and on behalf of any and all persons claiming through or under
Tenant (including, but not limited to, any creditors of Tenant, any subtenant,
any assignee for the benefit of creditors of either, or, to the fullest extent
now or hereafter permitted by law, any receiver or trustee of Tenant or any
subtenant, or of the assets of either) also waives any and all rights of
redemption or re-entry or repossession or to redeem or restore the operation of
this Lease in the event that Tenant shall be dispossessed by a judgment or by a
warrant or order of any court, or case of entry, re-entry, or repossession by
Landlord, or in case of any expiration or termination of this Lease. Tenant
also, so far as permitted by law, hereby waives and will waive any and all right
to a trial by jury in the event that summary dispossession proceedings shall be
instituted by Landlord, and in any action, proceeding or counterclaim brought by
Landlord against it on any matters whatsoever arising out of or in any way
connected with this Lease, including the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Premises, or any claim of injury or damage. The
terms "enter," "re-enter," "entry" or "re-entry," as used in this Lease are not
restricted to their technical legal meanings. Tenant waives any legal
requirement for notice of intention to re-enter and any right of redemption
otherwise available to Tenant, whether by statute or otherwise.
16.6 No Waiver. The remedies of Landlord and Tenant provided in this
Lease are cumulative and shall not exclude any other remedies to which either
may be lawfully entitled. The failure of either party to insist upon strict
performance by the other of any term, covenant or condition herein contained
shall not be a waiver of such term, covenant or condition by the non-objecting
party for the future. Acceptance of Rent by Landlord with knowledge of an
existing breach of any covenant shall not be deemed a waiver of such breach. No
waiver or change or any provision of this Lease shall be effective unless
contained in a written instrument signed by both Landlord and Tenant.
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<PAGE>
16.7 Costs; Interest. Tenant shall pay all costs, expenses and reasonable
attorneys' fees incurred by Landlord in enforcing any of Tenant's obligations
under this Lease. Tenant shall be liable to Landlord for interest on all sums
not paid to Landlord when due hereunder from the date due until paid at the rate
of 18% per annum, or such lesser rate as shall be the maximum permitted by law.
ARTICLE 17
Security
17.1 Deposit. Tenant has not deposited any sum as security for this
Lease. Landlord may require up to one month's rent as security deposit upon
exercising of Tenant's option to renew the Lease as described herein.
ARTICLE 18
Subordination
18.1 Lease Subordinate. This Lease shall be and it hereby is made, and
shall at all times be and remain, subject and subordinate to any and all ground
or underlying leases or to the lien of any and all duly recorded mortgages,
whether heretofore or hereafter made, affecting or encumbering such a ground or
underlying lease, or the Premises, or premises of which the Premises shall be a
part, and to all extensions, renewals, modifications or replacements thereof;
provided that provisions substantially as follows with respect to this
subordination shall be contained in each such ground or underlying lease and in
each such mortgage (or in a separate instrument), and at all times duly observed
by the holder thereof, or lessee thereunder, namely that so long as this Lease
has not been terminated by reason of any default by Tenant hereunder, and so
long as Tenant is not in default in the payment of Rent or any Imposition or
other charge payable by Tenant as in this Lease provided, Tenant shall not
(unless required by law) be made a party to any action or proceeding to
terminate such a ground or underlying lease, or to foreclose any such mortgage,
or to any order or judgment terminating such a ground or underlying lease, or to
any judgment of foreclosure and sale, and Tenant's use, possession, tenancy and
occupancy hereunder shall remain undisturbed and shall survive any such action,
proceeding, order or judgment.
18.2 Attornment. The subordination of this Lease and Tenant's rights
hereunder, as provided in Section 18.1, shall be effective without the execution
of any further or other instruments by Tenant, but Tenant shall, at Landlord's
request, and without charge therefor to Landlord, execute and deliver any
further document or instrument to evidence the subordination of this Lease to
such ground or underlying leases and mortgages as shall comply with the
provisions of Section 18.1; and, to the extent requested by the holder of any
such ground or
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<PAGE>
underlying lease or mortgage, Tenant shall execute and deliver such instruments
and documents as shall confirm Tenant's undertaking and agreement hereunder to
attorn under the terms and provisions of this Lease to such a ground or
underlying lessee or mortgagee, or to the designee or nominee of such ground or
underlying lessee or mortgagee, or to the purchaser or assignee of such a ground
or underlying lease, or of the mortgaged premises at a foreclosure sale, or at a
sale of the premises pursuant to such power of sale as may be contained in such
a lease or mortgage, and to recognize such ground or underlying lessee or
mortgagee, its designee or nominee, or such purchaser, as the Landlord hereunder
from and after the date of such a transfer of title, with the same force and
effect as if the Premises had been sold or conveyed to such new landlord by the
prior landlord hereunder.
ARTICLE 19
Entry by Landlord; Performance of Covenants
19.1 Entry. Tenant shall permit Landlord or its agents to enter the
Premises during normal business hours (and at any time in cases of emergency)
(i) for the purpose of inspection thereof, (ii) for showing the Premises to
persons wishing to purchase the same, or in connection with mortgage or other
financing, and (iii) at any time within 12 months prior to the expiration of the
Lease Term, for exhibition to persons wishing to rent the same.
19.2 Cure of Covenants. If Tenant shall be in default hereunder, Landlord
may, with or without declaring an "Event of Default", upon 10 days' prior notice
to Tenant, or without notice in case of an emergency, cure such default on
behalf of Tenant (unless Tenant shall itself, within such period, commence and
thereafter diligently proceed to cure such default), and for the purpose thereof
may enter upon the Premises, and upon demand Tenant shall reimburse Landlord for
any reasonable and necessary expenses incurred to effect such cure, together
with interest thereon at the maximum rate which may be legally collected by
Landlord (not to exceed 18% per annum).
19.3 No Eviction. No entry of Landlord or its employees, agents or
representatives, or by any other party at the direction of Landlord, shall ever
be construed or interpreted as an ouster of Tenant from possession or as a
constructive eviction or to alter, diminish or abate Landlord's rights or
Tenant's obligations under this Lease.
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<PAGE>
ARTICLE 20
Certificates
20.1 Estoppel Certificates. Tenant agrees, at any time, and from time to
time, upon not less than 10 days' prior written notice by Landlord, to execute,
acknowledge and deliver to Landlord, or to any existing or prospective ground or
underlying lessee or mortgagee, or to any prospective purchaser, of the
Premises, a statement or certificate in writing setting forth the Rent,
Impositions and other charges then payable, and specifying each element thereof,
and certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that this Lease is in full force and effect, as
modified, and setting forth the modifications), and the dates to which the Rent,
Impositions, and other charges payable hereunder have been paid, and stating (to
the extent known to Tenant) whether or not the Landlord is in default in
keeping, observing or performing any of the terms contained in this Lease and,
if in default, specifying each such default. It is intended that any such
statement or certificate delivered pursuant hereto may be relied upon by
Landlord, by any prospective purchaser of the Premises, or by any existing or
prospective ground or underlying lessee, mortgagee, or lender. Tenant shall bear
the cost of providing this certificate.
ARTICLE 21
Notices
21.1 Notices. All notices, demands, consents, or requests under this
Lease must be in writing and shall be sent postage prepaid by United States
registered or certified mail addressed, or telecopied and followed within one
day by registered or certified mail, if the party for whom intended is the
Landlord, to Landlord at the following address and telecopy number:
William S. Sadler
1370 West Ryan Avenue
Roseville, MN 55113
Telecopy No.: 651-633-7025
and if such party is the Tenant, to Tenant at the following address and telecopy
number:
Dotronix, Inc.
160 First Street S.E.
New Brighton, MN 55112
Telecopy No.: 651-633-7025
Notices, demands, consents or requests served or given as aforesaid shall be
deemed sufficiently served or given for all purposes hereunder on the day on
which such telecopying or mailing shall
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<PAGE>
occur; provided, however, that in lieu of such notice by United States
registered or certified mail, the party giving the notice may do so by personal
delivery to the addresses above specified. Either party shall have the right to
change the address or telecopy number to which notices shall thereafter be sent
to it by giving notice to the other party as aforesaid, but not more than two
addresses shall be in effect at any given time for Landlord and Tenant
hereunder.
ARTICLE 22
Miscellaneous
22.1 Quiet Possession. Landlord covenants that Tenant shall peaceably and
quietly enjoy the Premises for as long as Tenant performs and observes its
obligations hereunder.
22.2 Holding Over by Tenant. In the event of holding over by Tenant after
expiration or termination of the Lease Term, without the written consent of
Landlord, Tenant shall pay as monthly Base Rent 150% of the Base Rent applicable
to the last month of the Lease Term for the entire holdover period. No holding
over by Tenant after the expiration of the Lease Term shall operate to extend
the Lease Term. In the event of any unauthorized holding over, Tenant shall
indemnify Landlord against all claims for damages by any other lessee to whom
Landlord may have leased all or any part of the Premises effective upon the
termination of this Lease. Any holding over with the consent of Landlord in
writing shall thereafter constitute this Lease a lease from month to month.
22.3 Binding Effect. The terms, covenants, conditions and agreements
herein contained shall run with the Premises and shall bind and inure to the
benefit of the parties hereto and their respective representatives, successors
and assigns; it being understood, however, that neither the provisions of this
Section 22.3, nor any other provision in this Lease contained, shall be deemed
to authorize the assignment of this Lease by Tenant without the prior written
consent of Landlord, as herein required.
22.4 Captions. The captions of this Lease are for convenience and ease of
reference only, and in no way define, limit or describe the scope or intent of
this Lease, nor in any way affect this Lease, and shall be disregarded in the
interpretation hereof.
22.5 Severable. If any provisions of this Lease shall be declared invalid
or unenforceable, the remainder hereof shall remain unaffected thereby and shall
continue in full force and effect.
22.6 Interpretation. It is acknowledged that in preparation of this
Lease, indistinguishable contributions have been made by representatives of both
Landlord and Tenant, and that Landlord and Tenant each waives any and all
rights, either at law or in equity, to have
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<PAGE>
this Lease, or any term or provision herein contained, construed in favor of
either party over the other by reason of who drafted the same.
22.7 Entire Agreement. This Lease, including any Rider attached hereto,
contains the entire and only agreement between the parties hereto with respect
to the Premises; and no oral statements, agreements or representations not
embodied in this Lease shall have any force or effect. This Lease shall not be
modified or amended in any manner except in writing, by instrument executed by
both parties.
22.8 Interpretation of Terms. All personal pronouns used in this
agreement shall include the other genders whether used in the masculine or
feminine or neuter gender, and the singular shall include the plural whenever
and as often as may be appropriate.
22.9 No Partnership. This Lease does not create the relationship of
principal and agent or of partnership or of joint venture or of any association
between Landlord and Tenant, the sole relationship between the parties being
that of landlord and tenant. The laws of the State of Minnesota shall govern the
validity, performance and enforcement of this Lease.
22.10 Liability of Landlord. Any liability or obligation of Landlord, or
any agent of Landlord, under or with respect to this Lease shall be enforceable
only against and payable out of Landlord's interest in the Premises. Tenant
shall not have and may not assert any right, recourse or remedy to or against
Landlord or its agents or any assets of Landlord, except its interest in the
Premises. No officer, director, shareholder, partner, employee, trustee or
beneficiary of Landlord assumes or shall have any personal liability of any kind
whatsoever under this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have each duly executed this
Lease as of the date and year first above written.
LANDLORD:
------------------------------------
William S. Sadler
TENANT:
Dotronix, Inc.
By
----------------------------------
Robert Kling
Chief Financial Officer
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<PAGE>
EXHIBIT A
The Land
Lots 17-24, Block 3, Vermont Park, City of New Brighton, County of Ramsey,
Minnesota.
<PAGE>
EXHIBIT B
Base Rent During Extended Terms
The monthly Base Rent from May 1, 2009 - April 30, 2014 shall be $3,000
plus the amount equal to the monthly payments of principal and interest on a
loan for the Premises in the amount of $456,000, obtained by Landlord on
commercially reasonable terms, with an amortization period of 15 years or
longer, but in no event shall the monthly Base Rent be less than $6,100 a month.
The monthly Base Rent from May 1, 2014 - April 30, 2019 shall be $3,500 plus the
amount equal to the monthly payments of principal and interest on a loan for the
Premises in the amount of $456,000, obtained by Landlord on commercially
reasonable terms, with an amortization period of 15 years or longer, but in no
event shall the monthly Base Rent be less than $6,100 a month.
Tenant shall pay as Additional Rent all other sums of money required to
be paid pursuant to this Lease, which shall be paid at the time and in the
amounts set forth elsewhere in this Lease.
<PAGE>
RIDER
Additional Provisions
NONE
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<FISCAL-YEAR-END> JUN-30-1999 JUN-30-1999
<PERIOD-START> JAN-01-1999 JUL-01-1998
<PERIOD-END> MAR-31-1999 MAR-31-1999
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<SECURITIES> 0 0
<RECEIVABLES> 1,084,923 0
<ALLOWANCES> (36,588) 0
<INVENTORY> 2,774,357 0
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0 0
0 0
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<TOTAL-COSTS> 899,374 2,859,064
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<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 13,468 47,765
<INCOME-PRETAX> (637,176) (1,439,249)
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<NET-INCOME> (637,176) (1,439,249)
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