7.3 SR 03-01-2021Request for Action
To
Item Number
Mayor and City Council
7.3
Agenda Section
Meeting Date
Prepared by
Public Hearin
March 1, 2021
Colleen Eddy, Economic Development Specialist
Item Description
Reviewed by
Property Tax Abatement for Sportech LLC.
Cal Portner, City Administrator
Reviewed by
Action Requested
1. Open public hearing to consider comment on the proposed property tax abatement assistance for Sportech,
LLC.
2. Following the public hearing, the Council is asked to consider adoption of the attached resolution approving
property tax abatements and authorizing execution of a tax abatement agreement for Sportech, LLC.
Background/Discussion
The City Council must hold a public hearing and invite comments for any business subsidy in the amount
greater than $150,000.
The attached staff report provides background on the project as considered and recommended for approval by
the EDA on February 16, 2021, for property tax abatement.
Financial Impact
The owner, Meritex, proposes an $8,388,775 million project funded through private funds, owner cash equity
and city/county tax abatement of $769,875 for up to 14 years with no more than $362,880 from the city.
Mission/Policy/Goal
The purpose of the tax abatement assistance is to provide financial and technical assistance for the creation and
retention of new employment to an existing business located in the community.
Attachments
■ EDA staff memo (February 16, 2021)
■ Resolution Approving Property Tax Abatement for Sportech LLC.
■ Financial Analysis
■ Tax Abatement Agreement
■ Executed Tax Abatement Application
■ Meritex Lease Agreement
■ Second Amendment to Sportech Lease
■ 2021 B2 Expansion
■ Sportech Expansion Proposal
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional,` 01 e
service, and community engagement that encourages and inspires pi ospei ly INAWRE1
Request for Action
To
Item Number
Economic Development Aorit T
7.2
Agenda Section
Meeting Date
Prepared by
General Business
February 16, 2021
Colleen Eddy, Economic Development Director
Item Description
Reviewed by
Sportech LLC Tax Abatement Application
Cal Portner, City Administrator
Reviewed by
Action Requested
Recommend, by motion, the City Council provide Tax Abatement Assistance for Sportech LLC.
Background/Discussion
The Joint Finance Committee reviewed and recommended the EDA approve Sportech LLC application for
Property Tax Abatement financing.
Sportech LLC applied for financial assistance to fund a portion of the construction costs for a 91,050sf building
expansion located at 10752 168 Circle. Sherburne County will consider a similar request on February 16, 2021.
The project is expected to retain the existing 323 employees and require a minimum of 85 new FTEs within
three years of completion. The average wage of new jobs is projected to be $18.20/hr ($23.04 with benefits)
which meets the city business subsidy policy provisions.
The original building has 14 years of abatement remaining. The proposal is to amend the original abatement
agreement to include the expansion. The county assessor estimates the expansion's taxable value at $2,825,000
accounting for a city tax share for the remaining 14 years of approximately $362,880. The city's tax abatement
and business subsidy policy objectives are met with the proposed level of assistance.
Financial Impact
The owner, Meritex, proposes an $8,388,775 million project funded through private funds, owner cash equity
and city/county tax abatement of $769,875 for up to 14 years with no more than $362,880 from the city.
Mission/Policy/Goal
The purpose of the tax abatement assistance is to provide financial and technical assistance for the creation and
retention of new employment to an existing business located in the community.
Attachments
■ Financial Analysis
■ Executed Tax Abatement Application
■ Meritex Lease Agreement
■ Second Amendment to Sportech Lease
■ 2021 B2 Expansion
■ Sportech Expansion Proposal
The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional,` 01 e
service, and community engagement that encourages and inspires prosperity INAWRE1
CITY OF ELK RIVER, MINNESOTA
RESOLUTION NO.
RESOLUTION GRANTING A PROPERTY TAX
ABATEMENT FOR CERTAIN PROPERTY IN THE CITY
OF ELK RIVER AND AUTHORIZING THE EXECUTION
OF A TAX ABATEMENT AND BUSINESS SUBSIDY
AGREEMENT FOR THE SPORTECH PHASE II PROJECT
BE IT RESOLVED by the City Council (the "City Council") of the City of Elk River,
Minnesota (the "City") as follows:
Section 1. Recitals.
1.01. The City is authorized by Minnesota Statutes, Sections 469.1812 to 469.1815 (the
"Abatement Act") to grant a property tax Abatement (as hereinafter defined) in order to achieve
one or more public purposes identified in the Abatement Act.
1.02. On July 20, 2015, the City Council adopted a resolution (the "Original Abatement
Resolution") approving the provision of tax abatement assistance in the amount of $1,288,590
(the "Original Abatement") to Envision Company, LLC ("Envision") in the form of a land write
down in connection with the sale of land to Envision for the construction of a 105,000 square
foot manufacturing facility (the "Original Facility") to be located in the City on the property
identified as Lots 1 and 2, Block 2, Natures Edge Business Center Second Addition, tax parcel
number 758280205 (the "Property").
1.03. The City entered into an Abatement Agreement, dated September 14, 2016 (the
"Original Abatement Agreement"), with Envision setting forth the terms and conditions of the
provision of the Original Abatement. The Original Abatement Agreement was assigned to
Envision 3, LLC, a Minnesota limited liability company (the "Assignor"), and in connection
therewith, the City received a Mortgage, Security Agreement, Assignment of Leases and Rents,
and Fixture Financing Statement dated September 14, 2016 (the "Mortgage") from the Assignor
in favor of the City and a Promissory Note dated September 14, 2016 (the "Note") as security for
the land write down provided to Envision.
1.04. In April 2016, the City consented to (i) the transfer of the Property and the
Original Facility to Meritex Elk River, LLC ("Meritex"), (ii) the satisfaction of the Mortgage and
the termination of the Note in accordance with the terms thereof, (iii) an amendment to the
Abatement Agreement to address insurance for the Original Facility pursuant to a First
Amendment to Abatement Agreement by and between the City and the Assignee (the
"Amendment"), and (iv) the assignment of the Assignor's rights and obligations under the
Abatement Agreement to Sportech, Inc., a wholly owned subsidiary of Off Road Acquisition
Co., LLC (the "Sportech") pursuant to an Assignment and Assumption of Tax Abatement by and
between the Assignor and the Sportech (the "Assignment and Assumption Agreement").
1.05. Meritex, or an affiliate or an entity related thereto (the "Developer"), proposes to
expand the Original Facility through the construction and equipping of an approximately 91,050
square foot expansion to the existing manufacturing facility located on the Property to be owned
by the Developer and leased to Sportech for use in its manufacturing business (the "Expansion
Proj ect").
1.06. The Developer and Sportech propose to expand their operations in the City and
has requested financial assistance in the form of additional tax abatement assistance in
connection with the Expansion Project. It is expected that Sportech will maintain existing jobs in
the City and create additional new jobs within two years of the completion of the Expansion
Proj ect.
1.07. The City has determined that it is reasonable and necessary to provide certain
financial assistance to the Developer and Sportech in order to facilitate the Expansion Project
and to modify the Original Abatement Resolution to provide additional abatement assistance to
the Developer and Sportech in connection with the Expansion Project on the Property. To that
end, the City will consider approving a Tax Abatement and Business Subsidy Agreement
between the City and Developer (the "Abatement Agreement") which sets forth term and
conditions of the Abatement and the construction the Expansion Project.
1.08. The proposed term of the abatement will be for up to 14 years in an amount not to
exceed $362,880. The proposed abatement will apply to a portion of the City's share of real
estate taxes which relate to the construction of the Expansion Project on the Property by the
Developer and not the real estate taxes on the Property that relate to the value of the land or the
Original Facility. The "Abatement" authorized herein means 100% of the City's share of annual
real estate taxes received by the City with respect to the Property in an amount calculated in each
tax -payable year as follows: the City tax rate for such tax -payable year multiplied by the
difference between the net tax capacity of the Property resulting from the construction of the
Expansion Project, as of January 2 in the prior year, less $106,946 (i.e. the net tax capacity of the
existing land and existing building value only of the Property, as established by the County
assessor on January 2, 2020, for taxes payable in 2021).
1.09. The Abatement constitutes a business subsidy within the meaning of Minnesota
Statutes, Sections 116J.993 to 116J.995, as amended (the "Business Subsidy Act") and the
Abatement Agreement set certain job and goals in connection with the subsidy represented by
the Abatement as required by the Business Subsidy Act.
1.10. On the date hereof, the City Council conducted a duly noticed public hearing on
the Abatement proposed to be granted by the City, as well as the business subsidy to be provided
to the Developer. The views of all interested persons were heard and considered at the public
hearing.
Section 2. Findings.
2.01. This resolution modifies the Original Abatement Resolution to provide additional
2
abatement assistance to the Developer and Sportech in connection with the Expansion Project on
the Property. All other terms of the Original Abatement Resolution and the Original Abatement
shall remain in full force and effect.
2.02. The recitals set forth above are incorporated into this resolution.
2.03. It is hereby found and determined that the benefits to the City from the Abatement
will be at least equal to the costs to the City of the Abatement, because (a) based on
representations of the Developer, the City believes that the development to be facilitated is not
reasonably likely to occur absent the Abatement, (b) the development to be facilitated by the
Abatement will likely encourage additional development within the area, and (c) the Facility will
generate significant City tax revenues after termination of the Abatement, which revenues will
far exceed the amount of the Abatement itself.
2.04. It is hereby found and determined that the Abatement is in the public interest
because such action will increase the City's tax base, stimulate commercial development and
provide additional employment opportunities in the City and the State.
2.05. It is further specifically found and determined that the Abatement is expected to
result in the following public benefits:
(a) Creation of an estimated $2,825,000 increase in market value for property tax
purposes for the Expansion Project, which will be available to all taxing jurisdictions
after expiration of the Abatement; and
(b) Creation of new jobs in the City and the State.
Section 3. Actions Ratified; Abatement Approved
3.01. The City Council hereby ratifies all actions of the City's staff and consultants in
arranging for approval of this resolution in accordance with the Abatement Act and the Business
Subsidy Act.
3.02. Subject to the provisions of the Abatement Act, the Abatement is hereby
approved and adopted subject to the following terms and conditions:
(a) The City will pay the Abatements in the amount, at the time, and in accordance
with all the terms and conditions set forth in the Abatement Agreement, which are
incorporated herein by reference upon the execution thereof by both parties.
(b) In accordance with Section 469.1813, subdivision 8 of the Abatement Act, in no
year shall the Abatement, together with all other abatements approved by the City under
the Abatement Act and paid in that year exceed the greater of 10% of the net tax capacity
of the City for that year or $200,000 (the "Abatement Cap"). The City may grant other
abatements permitted under the Abatement Act after the date of this resolution, provided
that to the extent the total abatements in any year exceed the Abatement Cap, the
3
allocation of Abatement Cap to such other abatements is subordinate to the Abatement
granted pursuant to this resolution.
(c) The Abatement will have a maximum term of fourteen (14) years.
(d) In no event shall the total payments of the Abatement to the Developer exceed
$362,880 or continue to be paid for more than fourteen (14) years as set forth in the
Abatement Agreement.
(e) The Abatement is subject to modification in accordance with the Abatement Act,
subject to the terms of the Abatement Agreement.
(f) In accordance with Section 469.1815 of the Abatement Act, the City will add to
its levy in each year during the term of the Abatement the total estimated amount of
current year Abatement granted under this resolution.
(g) The City makes no warranties or representations regarding the amount or
availability of the Abatement.
(h) The Property is not located in a tax increment financing district.
(i) The City will abate and pay to the Developer the Abatement as provided in the
Abatement Agreement, the terms of which, as executed by both parties, are incorporated
herein by reference.
Section 4. Execution of Documents. The City Council hereby approves the
Abatement Agreement in substantially the form on file with the City Administrator, together
with any related documents necessary in connection therewith, including without limitation
issuance of and any related documents necessary in connection therewith, including without
limitation, all documents or certifications referenced in or attached to the Abatement Agreement
(collectively, the "Documents") and, the Mayor and City Clerk are hereby authorized and
directed to execute the Documents to which the City is a parry on behalf of the City and to carry
out, on behalf of the City, the City's obligations thereunder. In the event of absence or disability
of the officers, any of the Documents authorized by this Resolution to be executed may be
executed without further act or authorization of the Council by any duly designated acting
official, or by such other officer or officers of the City as, in the opinion of the City Attorney,
may act in their behalf.
Section 5. Finalizing Documents. The approval hereby given to the Documents
includes approval of such additional details therein as may be necessary and appropriate and
such modifications thereof, deletions therefrom and additions thereto as may be necessary and
appropriate and approved by legal counsel to the City and by the officers authorized herein to
execute said Documents prior to their execution; and said officers are hereby authorized to
approve said changes on behalf of the City. The execution of any instrument by the appropriate
officers of the City herein authorized shall be conclusive evidence of the approval of such
Document in accordance with the terms hereof.
In
Section 6. Conflicting Provisions. In the event of a conflict between the content of
this resolution and the Documents, the terms of the Documents shall prevail.
Section 7. Effective Date. This resolution is effective upon execution in full of the
Abatement Agreement.
Approved by the City Council of the City of Elk River, Minnesota this 1st day of
March, 2021.
ATTEST:
City Clerk
Mayor
5
bakertitly
MUNICIPAL ADVISORS
Memo - Draft for Review
Members of the Economic Development Authority
To: Cal Portner, City Administrator
Colleen Eddy, Economic Development Specialist
From: Mikaela Huot, Director
Date: February 11, 2021
Subject: Financial Analysis and Review related to Application for Tax Abatement
Assistance for Sportech business expansion
Background
The City of Elk River received an application from Sportech LLC, the applicant, for financial assistance through
tax abatement to assist with financing a portion of the construction costs related to the 91,050 square foot
expansion to the existing building located at 10752 168th Circle in the City of Elk River for continued business
growth and expansion of existing company operations. In 2015, they purchased 14 acres from the City and
built a 105,000 square foot facility and moved into it in early 2016 (removing previous Building 2), bringing their
total square footage of buildings in the City to 201,000 sq. ft. The City approved tax abatement assistance
related to the original project acquisition and construction and 14 years remain on the original abatement. The
building was purchased by Meritex, a private real estate investment and management company in May 2016
and Sportech (the business leasing the building) was purchased by Off Road Acquisition Co., LLC (becoming a
wholly owned subsidiary) in December of 2019.
The expansion project is expected to retain the existing 323 company employees and create a minimum of 85
new FTE employees within 3 years of project completion. The new expansion alone would retain 171
employees (132 FTE), plus the additional 85 full-time employees. The average base wage of the Building 2
employees is $17.92/hr (excluding benefits) and $22.76 (including benefits). Average wage of jobs to be
created at the expanded site is $18.20/hr, (excluding benefits) and $23.04 (including benefits) and would meet
the City's business subsidy policy provisions.
Baker Tilly has been retained by the City to review the application for financial assistance. The purpose of this
memorandum is to provide a summary of Baker Tilly's review of the development project costs and sources of
funds, and supporting financial information as provided by the applicant to assist the City with making a
determination if the project as proposed meets the merits of the City's tax abatement policy and verification of
the need for the requested tax abatement assistance. When reviewing requests for financial assistance it is
important to understand how the level of financial assistance would impact the ability of the project to proceed
as proposed and maximize new value created on the current project site. The level of requested tax abatement
assistance would trigger the City's business subsidy policy and thereby require certain job and wage goals
related to the project and public assistance. Without public assistance, the applicant would not be subject to
the same requirements.
Applicant Request for Assistance
The applicant's application for financial assistance includes an approximate $8.38 million project that would be
funded by Meritex (the owner) through private funds and owner cash equity. The applicant has requested
$769,875 in tax abatement assistance from both the City and County to provide annual cash flow assistance
following the expansion construction for up to 15 years. The City's share of tax abatement as requested over
15 years is approximately $388,800 and would constitute as a business subsidy due to the proposed amount.
The process for considering a business subsidy includes holding of a public hearing, similar to the tax
abatement process. The maximum amount available based on 14 years of the remaining eligible term of the
abatement is estimated to be $362,880, as further described within the memo.
The sources and uses of funds for the business expansion as outlined in the application for tax abatement
assistance is illustrated in the table below.
Sources
Amount
Uses
Amount
First Mortgage
$0
Acquisition
$0
Other Private Funds (Meritex - owner)
$5,963,775
Site Development
$353,000
Owner Cash Equity
$2,425,000
Construction
$5,503,775
Machinery & Equipment
$2,425,000
Legal/Professional Fees
$107,000
Contingencies
$100,000
Total
$8,388,775
Total
$8,388,775
Qualifications
Pursuant to the Section V of the City's tax abatement policy, all tax abatement projects considered by the
City must meet each of the following qualifications:
a. The project shall meet one of the objectives set forth in Section III
b. The use of tax abatement will be limited to
• Industrial development, expansion, redevelopment, or rehabilitation or
• Commercial redevelopment or rehabilitation, or
• Research and development facilities that satisfy Business Park zoning requirements, or
• Office facilities with a minimum new construction of 25,000 square feet, or
The developer shall demonstrate that the project is not financially feasible but -for the use of tax
abatement.
The city will consider the use of Tax Abatement assistance for projects that may not meet the but -for
and job creation criteria, but rather would be considered as a "location incentive". These projects
may result in other public benefits such as a significant tax base increase, the creation of higher
paying jobs (at least twice the minimum hourly rate stated in the city's Business Subsidy Policy), and
is likely to assist in the marketing and attraction of additional desired developments.
Section I I I of the policy outlines the following objectives for the use of tax abatement:
• To retain local jobs and/or increase the number and diversity of jobs that offer stable employment
and /or attractive wages and benefits as defined in the City's Business Subsidy policy
• To enhance and diversify the City of Elk River's economic base
• To encourage additional unsubsidized private development in the area, either directly or indirectly
through "spin off' development
• To facilitate the development process and to achieve development on sites which would not be
developed without Tax abatement assistance
• To remove blight and/or encourage redevelopment of commercial and industrial areas in the City
that result in high quality redevelopment and private reinvestment
• To offset increased costs of redevelopment (i.e. contaminated site clean-up) over and above the
costs normally incurred in development
• To create opportunities for affordable housing
• To contribute to the implementation of other public policies, as adopted by the city from time to time,
such as promotion of quality urban or architectural design, energy conservation, and decreasing
capital and/or operating costs of local government
• To significantly increase the City of Elk River's tax base
Any political subdivision, including statutory cities, home rule charter cities, towns, counties, and school
districts, is authorized to abate property taxes on selected parcels or defer the payments of the taxes and
abate the interest and penalty that otherwise would apply, if:
• The benefits gained equal or exceed the cost to the political subdivision or the abatement phases in
a property tax increase, and
• The abatement is in the public interest because it will:
— increases or preserves the tax base;
— provides employment opportunities;
— provides or helps acquire or construct public facilities;
— helps redevelop or renew blighted areas;
— helps provide access to services;
— finances or provides for public infrastructure;
— phase in a property tax increase on the parcel resulting from an increase of 50% or more in one
year on the estimated market value of the parcel, other than an increase due to improvement of the
parcel; or
— stabilize the tax base through equalization of property tax revenues for a specified time period with
respect to a taxpayer whose real and personal property is subject to valuation under Minnesota
Rules, chapter 8100.
Cities, counties, and school districts as combined jurisdictions may grant an abatement for no longer than 15
years (8 year maximum if no initial duration is specified), or for no longer than 20 years if two or fewer
jurisdictions participate. No back-to-back abatements. Eight years must pass before a new abatement can
be applied.
In any given year, the total amount of property taxes abated by a political subdivision for all parcels may not
exceed the rg eater of (1) 10% of the net tax capacity of the political subdivision for the taxes payable year to
which the abatement applies, or (2) $200,000. Property in a tax increment financing district is not eligible for
abatement.
Project Financing
There are generally two ways in which assistance can be provided for most projects, either upfront or on a pay-
as-you-go basis. With upfront financing, the City would finance a portion of the applicant's initial project costs
through the issuance of bonds or as an internal loan. Future revenues would be collected by the City and used
to pay debt service on the bonds or repayment of the internal loan. With pay-as-you-go financing, the applicant
would finance all project costs upfront and would be reimbursed over time for a portion of those costs as
revenues are available.
Pay -as -you -go -financing is generally more acceptable than upfront financing for the City because it shifts the
risk for repayment to the applicant. If revenues are less than originally projected, the applicant receives less
and therefore bears the risk of not being reimbursed the full amount of their financing. However, in some cases
pay as you go financing may not be financially feasible. With bonds, the City would still need to make debt
service payments and would have to use other sources to fill any shortfall of revenues. With internal financing,
the City reimburses the loan with future revenue collections and may risk not repaying itself in full if revenues
are not sufficient. The project financing would be pay-as-you-go for reimbursement of certain costs.
Tax Abatement Revenue Assumptions
The County Assessor provided a taxable value estimate for the project. To estimate the amount of available
revenues generated by the proposed project, certain assumptions were made based on the value of the project,
construction schedule, and anticipated financing terms.
Total existing value
o Parcel ID: 75-828-0205
o Base value as of Jan. 1, 2020
■ Existing building value of $5,384,800
■ Original net tax capacity (ONTC) of $106,946
o Assuming classification as commercial -industrial (C-1)
0 C-1 classification rate is 1.5% first $150,000 value and 2% value above $150,000
• Estimated total market value upon completion
0 91,050 square foot facility
■ $31 per square foot (approximate)
■ $2,825,000
• Incremental value based on difference between existing and new land/building value
• Construction commences and is completed in 2021
0 Project values 100% complete for assess 2022 and taxes payable 2023
• First abatement collection in 2023
• Final year collection in 2036
• Original term of abatement
0 Approved term from 2015 was 15 years (2017-2031)
• Maximum term of abatement
0 15 years if all three taxing entities participate or
0 20 years if one taxing entity declines participation or 90 days pass from initial participation
request
0 Total revised abatement term would be 2017-2036
■ To include both original and updated abatements and
■ With written denial of participation from the School District
• 0% annual market value inflator
Tax Abatement Revenue Estimates
Tax Abatement Revenue Projections
Annual Market Value Inflator
0%
City Share Total Estimated Annual Revenue Full Buildout
$25,920
County Share Total Estimated Annual Revenue Full Buildout
$26,584
School Share Total Estimated Annual Revenue Full Buildout
$0
Total Gross Revenues
$52,504
Estimated City Share (14 Years)
$362,880
Estimated County Share (12 Years)
$312,300
Estimated School District Share
Total over Remaining Number of Years
$675,180
The City and County approved a tax abatement for the original building construction for Sportech in 2015. The
City approved a 15-year term and the County approved a 12-year term. Due to location of the building
expansion on the same property and within the existing tax abatement, the maximum level of assistance that
could be provided must fit within the remaining term of tax abatement (up to 20 years total). The first year of
abatement was 2017 and the final year with a full 2-year term would be 2036. Based on current assumptions
for construction of the expansion, the maximum number of years for the City share of tax abatement assistance
would be 14 years (2023-2036).
Applicant Pro forma Analysis including But -For
In approving an abatement project, the Elk River EDA and City Council have requested that a finding be made
that the proposed project would not reasonably be expected to occur solely through private investment within
the reasonably foreseeable future. The City's tax abatement policy outlines the considerations for which tax
abatement may be considered as a financing tool. The policy also includes a provision for which the but -for test
need not be met if the assistance for a project is considered more as a "location incentive". Public benefits may
include significant tax base increase, the creation of higher paying jobs (at least twice the minimum hourly rate
stated in the city's Business Subsidy Policy), and is likely to assist in the marketing and attraction of additional
desired developments.
The applicant has provided minimum expected job creation (85 new FTE) and wage goals (average $23.04 with
benefits) based on completion of the business expansion. Without financial assistance, it will not be committed
or required to meet those job and wage goals. Financial assistance from the City allows for additional revenues
to provide sufficient project cash flow and market returns to investors that will achieve project feasibility and
facilitate the targeted job creation and wage goals. The applicant has stated the assistance will offset a portion
of the costs associated with construction of the building expansion, acquiring the machinery and equipment,
related costs and hiring the new employees. In addition, the current estimated project costs are in excess of the
estimated future value of the building upon development as provided by the County. Based on this analysis, the
EDA and City could be justified in determining that the project meets the "but for" test and would not proceed
without assistance. As stated tax abatement does not statutorily require a "but for" analysis to determine if the
project would proceed without assistance and the City's tax abatement policy provides considerations for when
the but -for test may not be entirely met.
Conclusion
The applicant has requested financial assistance through tax abatement from the City of Elk River for financing
a portion of the costs associated with constructing an approximate 91,050 square foot building expansion to the
existing building. The taxable value for the expansion is estimated to be $2.825 million and total project
investment is close to $8.38 million. Tax abatement revenues would provide additional cash flow for the project
to allow fulfilment of increased employment goals and requirements and meet growth expectations and future
potential business growth and development.
According to the City's tax abatement policy, the City may consider the use of tax abatement assistance for
projects that may not meet the traditional "but -for" and/or job creation criteria, but rather would be considered
as a "location incentive". These projects may result in other public benefits such as a significant tax base
increase, the creation of higher paying jobs (at least twice the minimum hourly rate stated in the city's
Business Subsidy Policy), and is likely to assist in the marketing and attraction of additional desired
developments. For this proposed project, the applicant is proposing to retain over 323 employees between
both company locations, and create an additional minimum 85 employees with average wages of $23.04.
Without tax abatement assistance from the City, the company will not be required to create the jobs or meet
any provisions of the City's business subsidy policy. The applicant is also requesting tax abatement
assistance from the County for the same period (15 years). The County's policy for assistance supports 12
years of financial assistance through tax abatement.
Tax abatement is a tool that can assist with covering a portion of the additional eligible costs associated with
the project. Since terms of the assistance include pay-as-you-go as reimbursement for certain costs, the
applicant will be responsible for obtaining all upfront funding sources and using cash flow from the project and
any tax abatement assistance to repay obligations. Total estimated tax abatement revenues that could be
available from the City's share of taxes for this project for the remaining 14 years within the abatement area are
approximately $362,880 for the years 2023-2036. Aligning the level of assistance to the availability of projected
revenues provides a method of financing a portion of the project costs and allow the public participation for the
project to remain at a reasonable level, while meeting the City's tax abatement and business subsidy policy
objectives. Without tax abatement assistance, the project may not adhere to the job and wage goal
requirements.
Thank you for the opportunity to be of assistance to the City of Elk River. Please contact me at 651.368.2533
or Mikaela.Huota-bakertily.com with any questions or comments.
Projected Tax Abatement Report
City of Elk River,
Minnesota
Proposed Tax Abatement Assistance
Sportech Business Expansion
Draft Abatement Revenues: 91,050 new building construction
Less:
45.88%
46.08%
Non-
Retained
Times:
Estimated
Maximum
Maximum
Maximum
P.V.
Annual
Total Total
Abated
Captured
Tax
Annual
Tax
Tax
Tax
Estimated
Annual
Period
Market Net Tax
Net Tax
Net Tax
Capacity
Property
Abatement
Abatement
Abatement
Project
Abate To
Ending
Value (') Capacity (2)
Capacity (3)
Capacity
Rate (4)
Taxes
City *
County *
School *
Abatement
02/01/21
(1)
(2) (3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
2.25%
12/31/21
12/31/22
0 0
0
0
128.860%
0
0
0
0
0
0
12/31 /23
8,209,800 163,446
106,946
56,500
128.860%
72,806
25,920
26,035
0
51,955
48,962
12/31 /24
8,294,550 165,141
106,946
58,195
128.860%
74,990
26,698
26,816
0
53,514
49,321
12/31/25
8,381,843 166,887
106,946
59,941
128.860%
77,240
27,499
27,621
0
55,119
49,683
12/31 /26
8,471,754 168,685
106,946
61,739
128.860%
79,557
28,323
28,449
0
56,773
50,047
12/31 /27
8,564,362 170,537
106,946
63,591
128.860%
81,944
29,173
29,303
0
58,476
50,414
12/31/28
8,659,749 172,445
106,946
65,499
128.860%
84,402
30,048
30,182
0
60,230
50,784
12/31 /29
8,757,998 174,410
106,946
67,464
128.860%
86,934
30,950
31,087
0
62,037
51,157
12/31 /30
8,859,194 176,434
106,946
69,488
128.860%
89,542
31,878
32,020
0
63,898
51,532
12/31/31
8,963,425 178,519
106,946
71,573
128.860%
92,228
32,835
32,980
0
65,815
51,910
12/31/32
9,070,784 180,666
106,946
73,720
128.860%
94,995
33,820
33,970
0
67,789
52,291
12/31 /33
9,181, 364 182,877
106,946
75,931
128.860%
97,845
34,834
34,989
0
69,823
52,674
12/31 /34
9,295,261 185,155
106,946
78,209
128.860%
100,780
35,879
36,039
0
71,918
53,061
12/31 /35
9,412,575 187,501
106,946
80,555
128.860%
103,804
36,956
0
0
36,956
26,666
12/31 /36
9,533,408 189,918
106,946
82,972
128.860%
106,918
38,064
0
0
38,064
26,861
12/31/37
9,657,866 192,407
192,407
0
128.860%
0
0
0
0
0
0
$1,243,985
$442,878
$369,489
$0
$812,367
$665,363
Total estimated market value based on preliminary
value estimate
following reviewby County Assessor
very preliminary and subject to further review.
Includes 3% annual market value inflator
(2) Total net tax capacity based on
commercial -industrial
class rate of 1.5% first $150,000 value and 2% value above $150,000
(3) Original net tax capacity based
on existing land value
(4) Total local tax capacity rate for taxes payable 2020
* subject to individual Board approvals. Maximum 20 year term requires
denial of participation from
other taxing entity (or 90 days passing
from original request)
TAX ABATEMENT AND BUSINESS SUBSIDY AGREEMENT
BY AND BETWEEN
CITY OF ELK RIVER, MINNESOTA
AND
MERITEX ELK RIVER, LLC
LL185\31\703544.v1
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.............................................................................................
1
Section 1.1
Definitions........................................................................................
1
ARTICLE II REPRESENTATIONS AND WARRANTIES .............................................
4
Section 2.1
Representations and Warranties of the City .......................................
4
Section 2.2
Representations and Warranties of the Developer .............................
4
ARTICLE III UNDERTAKINGS BY DEVELOPER AND CITY ......................................
6
Section 3.1
Construction of Project and Reimbursement of Project Cost .............
6
Section 3.2
Limitations on Undertaking of the City .............................................
6
Section 3.3
Commencement and Completion of Construction .............................
6
Section 3.4
Damage and Destruction...................................................................
6
Section 3.5
Change in Use of Project..................................................................
6
Section 3.6
Prohibition Against Transfer of Project and Assignment of
Agreement........................................................................................
6
Section 3.7
Real Property Taxes..........................................................................
7
Section 3.8
Business Subsidy Act........................................................................
8
Section 3.9
Abatement Program..........................................................................
9
Section 3.10
Legal and Administrative Expenses ................................................
10
ARTICLE IV EVENTS OF DEFAULT............................................................................
11
Section 4.1
Events of Default Defined...............................................................
11
Section 4.2
Remedies on Default.......................................................................
11
Section 4.3
No Remedy Exclusive....................................................................
11
Section 4.4
No Implied Waiver.........................................................................
12
Section 4.5
Agreement to Pay Attorney's Fees and Expenses ............................
12
Section 4.6
Release and Indemnification Covenants ..........................................
12
ARTICLE V ADDITIONAL PROVISIONS...................................................................
13
Section 5.1
Conflicts of Interest........................................................................
13
Section 5.2
Titles of Articles and Sections.........................................................
13
Section 5.3
Notices and Demands.....................................................................
13
Section5.4
Counterparts...................................................................................
13
Section 5.5
Law Governing...............................................................................
13
Section5.6
Duration.........................................................................................
14
Section 5.7
Provisions Surviving Rescission or Expiration ................................
14
-I-
LL185\31\703544.v1
TAX ABATEMENT AND BUSINESS SUBSIDY AGREEMENT
THIS AGREEMENT, made as of the day of March, 2021, by and among the City of
Elk River, Minnesota (the "City"), a municipal corporation under the Constitution and laws of
the State of Minnesota, and Meritex Elk River, LLC, a Minnesota limited liability company (the
"Developer"), as acknowledged by Sportech, Inc., a wholly owned subsidiary of Off Road
Acquisition Co., LLC.
WITNESSETH:
WHEREAS, pursuant to Minnesota Statutes, Sections 469.1812 through 469.1815, as
amended, the City has established a Tax Abatement Program (as hereinafter defined); and
WHEREAS, the City believes that the development and construction of a certain Project
(as defined herein), and fulfillment of this Agreement are vital and are in the best interests of the
City, will result in preservation and enhancement of the tax base, provide employment
opportunities and are in accordance with the public purpose and provisions of the applicable state
and local laws and requirements under which the Project has been undertaken and is being
assisted; and
WHEREAS, the requirements of the Minnesota Statutes, Sections 116J.993 through
116J.995, as amended (the "Business Subsidy Act"), apply to this Agreement; and
WHEREAS, the City has adopted criteria for awarding business subsidies that comply
with the Business Subsidy Act, after public hearings for which notice was published; and
WHEREAS, in connection with the assistance provided under this Agreement, this
agreement constitutes a subsidy agreement under the Business Subsidy Act.
NOW, THEREFORE, in consideration of the premises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. All capitalized terms used and not otherwise defined herein
shall have the following meanings unless a different meaning clearly appears from the context:
Agreement means this Tax Abatement and Business Subsidy Agreement, as the same
may be from time to time modified, amended or supplemented;
Benefit Date means the date on which a certificate of occupancy for the Project is issued
by the City;
Business Day means any day except a Saturday, Sunday or a legal holiday or a day on
which banking institutions in the City are authorized by law or executive order to close;
1
LL185\31\703544.v1
Business Subsidy Act means Minnesota Statutes, Sections 116J.993 through 116J.995, as
amended.
City means the City of Elk River, Minnesota;
CouM means Sherburne County, Minnesota;
Developer means Meritex Elk River, LLC, a Minnesota limited liability company, its
successors and assigns;
Event of Default means any of the events described in Section 4.1;
Lease means the lease agreement between the Developer and Sportech;
Legal and Administrative Expenses means the fees and expenses incurred by the City in
connection with the adoption and administration of the Tax Abatement Program and the
preparation and negotiation of this Agreement;
Net Tax Capacity has the meaning provided in Minnesota Statutes, Section 273.13,
Subdivision 21b, as it may be amended from time to time;
Project means the construction and equipping of an approximately 91,050 square foot
expansion to the Developer's existing manufacturing facility located on the Tax Abatement
Property to be owned by the Developer and leased to Sportech for use in its manufacturing
business. The Project will not be a warehouse or storage facility;
Sportech means [Sportech, Inc., a wholly owned subsidiary of Off Road Acquisition
Co., LLC], its successors or assigns;
State means the State of Minnesota;
Tax Abatement Act means Minnesota Statutes, Sections 469.1812 through 469.1815, as
amended;
Tax Abatement Program means the resolution adopted by the City Council on March 1,
2021 pursuant to the Tax Abatement Act, and undertaken in support of the Project;
Tax Abatement Property means all and any portion of the real property currently
identified as Parcel Identification Number 758280205, Lots 1 and 2, Block 2, Natures Edge
Business Center Second Addition, Sherburne County, Minnesota, Sherburne County, Minnesota,
located in the City;
Tax Abatements means the amount calculated by the City in its sole discretion in each
tax -payable year as follows: the City tax rate for such tax -payable year multiplied by the
difference between the Net Tax Capacity of the Tax Abatement Property resulting from the
construction of the Project, as of January 2 in the prior year, less $106,946 (i.e. the Net Tax
Capacity of the existing land and existing building value only of the Tax Abatement Property, as
2
LL185\31\703544.v1
established by the County assessor on January 2, 2020, for taxes payable in 2021), then abated in
accordance with the Tax Abatement Program.
Unavoidable Delays means delays beyond the reasonable control of the parry seeking to
be excused as a result thereof which are the direct result of war, terrorism, strikes, other labor
troubles, fire or other casualty to the Project, litigation commenced by third parties which, by
injunction or other similar judicial action, directly results in delays, unusually severe or
prolonged bad weather, acts of God, or acts of any federal, state or local governmental unit
(other than the City in exercising its rights under this Agreement) which directly result in delays.
Unavoidable Delays shall not include delays in the Developer's obtaining of permits or
governmental approvals necessary to enable construction of the Project by the dates such
construction is required under this Agreement, unless (a) Developer has timely filed any
application and materials required by the City for such permit or approvals, and (b) the delay is
beyond the reasonable control of the Developer.
3
LL185\31\703544.v1
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the City. The City makes the following
representations and warranties:
(1) The City is a municipal corporation and a political subdivision of the State and
has the power to enter into this Agreement and carry out its obligations hereunder.
(2) The Tax Abatement Program was created, adopted and approved in accordance
with the terms of the Tax Abatement Act.
(3) To finance the costs of the Project to be undertaken by or on behalf of the
Developer, the City proposes, subject to the further provisions of this Agreement, to apply the
Tax Abatements to reimburse the Developer for a portion of the costs of the Project as further
provided in this Agreement.
(4) The City has made the findings required by the Tax Abatement Act for the Tax
Abatement Program.
Section 2.2 Representations and Warranties of the Developer. The Developer makes the
following representations and warranties:
(1) The Developer has the power to enter into this Agreement and to perform its
obligations hereunder and is not in violation of its articles, operating agreement or member
control agreement or any local, state or federal laws.
(2) The Developer is a limited liability company validly existing under the laws of
this State and has full power and to enter into this Agreement and carry out the covenants
contained herein.
(3) The Developer will construct the Project or cause the Project to be constructed in
accordance with the terms of this Agreement and all local, state and federal laws and regulations
(including, but not limited to, environmental, zoning, energy conservation, building code and
public health laws and regulations).
(4) The Developer will obtain or cause to be obtained, in a timely manner, all
required permits, licenses and approvals, and will meet, in a timely manner, all requirements of
all applicable local, state, and federal laws and regulations which must be obtained or met before
the Project may be lawfully constructed
(5) The construction of the Project would not be undertaken by or on behalf of the
Developer, and in the opinion of the Developer would not be economically feasible within the
4
LL185\31\703544.v1
reasonably foreseeable future, without the assistance and benefit to the Developer provided for in
this Agreement.
(6) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of,
the terms, conditions or provisions of any contractual restriction, evidence of indebtedness,
agreement or instrument of whatever nature to which the Developer is now a parry or by which it
is bound, or constitutes a default under any of the foregoing.
(7) The Developer will cooperate fully with the City with respect to any litigation
commenced with respect to the Project but only to the extent that the City and the Developer are
not adverse parties to the litigation.
(8) The Developer will cooperate fully with the City in resolution of any traffic,
parking, trash removal or public safety problems which may arise in connection with the
construction and operation of the Project.
5
LL185\31\703544.v1
ARTICLE III
UNDERTAKINGS BY DEVELOPER AND CITY
Section 3.1 Construction of Project and Reimbursement of Project Cost.
(1) The costs of the Project shall be paid by the Developer or Sportech and none of
such costs shall be paid by the City except as reimbursed as specifically provided in this
Agreement. The Developer will construct the Project or cause the Project to be constructed in
accordance with the approved construction plans and at all times prior to the termination of this
Agreement will operate and maintain, preserve and keep the Project or cause the Project to be
maintained, preserved and kept with the appurtenances and every part and parcel thereof, in good
repair and condition.
(2) Upon submission to the City of paid invoices for costs of the Project in an amount
not less than the Reimbursement Amount, the City shall reimburse the Developer for costs of the
Project actually incurred in an amount not to exceed $362,880 (the "Reimbursement Amount")
pursuant to the Tax Abatement Program as provided in Section 3.9.
Section 3.2 Limitations on Undertaking of the City. Notwithstanding the provisions of
Section 3.1, the City shall have no obligation to reimburse the Developer for the costs of the
Project, if the City, at the time or times such payment is to be made, is entitled under Section 4.2
to exercise any of the remedies set forth therein as a result of an Event of Default which has not
been cured.
Section 3.3 Commencement and Completion of Construction. Subject to Unavoidable
Delays, the Developer shall complete the Project or cause the Project to be completed by
December 31, 2021. All work with respect to the Project to be constructed or provided by or on
behalf of the Developer shall be in conformity with the construction plans as submitted by the
Developer and approved by the City.
Nothing in this Agreement shall be deemed to impair or limit any of the City's
procedures, rights or responsibilities under its zoning laws or construction permit processes and
policies.
Section 3.4 Damage and Destruction. In the event of damage or destruction of the
Project the Developer shall repair or rebuild the Project or cause the Project to be repaired or
rebuilt.
Section 3.5 Change in Use of Project. The City's obligations pursuant to this Agreement
shall be subject to the continued operation of the Project as a manufacturing facility by the
Developer and Sportech. A failure to comply with this Section 3.5 shall be an Event of Default
in accordance with Section 4.1 hereof.
Section 3.6 Prohibition Against Transfer of Project and Assignment of Agreement. The
Developer represents and agrees that prior to the termination date of this Agreement the
6
LL185\31\703544.v1
Developer shall not transfer the Project or any part thereof or any interest therein, except
between the Developer and Sportech, without the prior written approval of the City. The City
shall be entitled to require as conditions to any such approval that:
(1) Any proposed transferee shall have the qualifications and financial responsibility,
in the reasonable judgment of the City, necessary and adequate to fulfill the obligations
undertaken in this Agreement by the Developer.
(2) Any proposed transferee, by instrument in writing satisfactory to the City shall,
for itself and its successors and assigns, and expressly for the benefit of the City, have expressly
assumed all of the obligations of the Developer under this Agreement and agreed to be subject to
all the conditions and restrictions to which the Developer is subject.
(3) There shall be submitted to the City for review and prior written approval all
instruments and other legal documents involved in effecting the transfer of any interest in this
Agreement or the Project.
(4) The Developer shall have paid all reasonable legal fees and expenses of the City,
including fees of the City Attorney's office and outside counsel retained by the City to review
the documents submitted to the City in connection with any transfer.
Section 3.7 Real Property Taxes. The Developer shall, so long as this Agreement
remains in effect, pay or cause to be paid all real property taxes with respect to all parts of the
Tax Abatement Property acquired, owned or leased by it or acquired, owned and leased by
Sportech which are payable pursuant to any statutory or contractual duty that shall accrue
subsequent to the date of its acquisition of title to the Tax Abatement Property (or part thereof)
and until title to the property is vested in another person. The Developer agrees that for tax
assessments so long as this Agreement remains in effect:
(a) It will not seek administrative review or judicial review of the
applicability of any tax statute relating to the ad valorem property taxation of real
property contained on the Tax Abatement Property determined by any tax official to be
applicable to the Project or the Developer or raise the inapplicability of any such tax
statute as a defense in any proceedings with respect to the Tax Abatement Property,
including delinquent tax proceedings; provided, however, "tax statute" does not include
any local ordinance or resolution levying a tax;
(b) It will not seek administrative review or judicial review of the
constitutionality of any tax statute relating to the taxation of real property contained on
the Tax Abatement Property determined by any tax official to be applicable to the Project
or the Developer or raise the unconstitutionality of any such tax statute as a defense in
any proceedings, including delinquent tax proceedings with respect to the Tax Abatement
Property; provided, however, "tax statute" does not include any local ordinance or
resolution levying a tax;
(c) It will not seek any tax deferral or abatement, either presently or
prospectively authorized under Minnesota Statutes, Section 469.181, or any other State or
7
LL185\31\703544.v1
federal law, of the ad valorem property taxation of the Tax Abatement Property so long
as this Agreement remains in effect.
Section 3.8 Business Subsidy Act.
(1) In order to satisfy the provisions of the Business Subsidy Act, the Developer
acknowledges and agrees that the amount of the "Business Subsidy" granted to the Developer
under this Agreement is the value of a portion of the Tax Abatement Property, which is
approximately $362,880, and that the Business Subsidy is needed because the Project is not
sufficiently feasible for the Developer to undertake without the Business Subsidy. The public
purpose of the Business Subsidy is to increase the tax base, encourage economic development,
and provide employment opportunities in the City and the State and stimulate construction and
the creation of jobs, including construction jobs. The Developer further represents that, pursuant
to the Lease, Sportech has agreed that, it will meet the following job creation goals (the
"Goals"): it will cause Sportech to maintain 323 existing full time equivalent jobs with an
average hourly wage of at least $22.76 per hour including benefits in the City and create at least
85 full time equivalent jobs, at an average hourly wage of at least $23.04 per hour including
benefits in connection with the development of the Development Project, within two years from
the Benefit Date.
(2) If none of the Goals are met, the Developer agrees to repay all of the Business
Subsidy to the City, plus interest ("Interest") set at the implicit price deflator defined in
Minnesota Statutes, Section 275.70, Subdivision 2, accruing from and after the Benefit Date,
compounded semiannually. If the Goals are met in part, the Developer will repay a portion of
the Business Subsidy (plus Interest) determined by multiplying the Business Subsidy by a
fraction, the numerator of which is the number of jobs in the Goals which were not maintained or
created at the wage level set forth above and the denominator of which is 408 (i.e. the number of
jobs set forth in the Goals).
(3) The Developer agrees to (i) report its progress on achieving the Goals to the City
until the later of the date the Goals are met or two years from the Benefit Date, or, if the Goals
are not met, until the date the Business Subsidy is repaid, (ii) include in the report the
information required in Section 116J.994, Subdivision 7 of the Business Subsidy Act on forms
developed by the Minnesota Department of Employment and Economic Development, and (iii)
send completed reports to the City. The Developer agrees to file these reports no later than
March 1 of each year commencing March 1, 2022, and within 30 days after the deadline for
meeting the Goals. The City agrees that if it does not receive the reports, it will mail the
Developer a warning within one week of the required filing date. If within 14 days of the post
marked date of the warning the reports are not made, the Developer agrees to pay to the City a
penalty of $100 for each subsequent day until the report is filed up to a maximum of $1,000.
(4) Sportech has agreed, pursuant to the Lease with the Developer, to continue
manufacturing operations at the Project for at least 5 years after the Benefit Date. Use of the
Project for warehousing and storage does not comply with this Section 3.8(4).
8
LL185\31\703544.v1
(5) Other than a $ loan from the Minnesota Department of Employment
and Economic Development, the Tax Abatements and comparable tax abatements from the
County, there are no other state or local government agencies providing financial assistance for
the Project other than the City and the County.
(6) [There is no parent corporation of Sportech or the Developer.][DEVELOPER TO
CONFIRM]
Section 3.9 Tax Abatement Program. The Tax Abatement Program shall exist for a
period of up to 14 years beginning with real estate taxes payable in 2023 through 2036. The
City shall pay the Developer the amount of the Tax Abatements actually received by the City in
the previous six month period on February 1 and August 1 of each year commencing August 1,
2023 or the first February 1 or August 1 thereafter in the first tax -payable year in which both (i)
the Developer has provided a copy of the Lease to the City as required by Section 3.6 hereof, and
(ii) the Developer has complied with Section 3.1(2) hereof. Such payments shall continue until
the earlier of the date that the Developer shall have received the Reimbursement Amount or
February 1, 2037. The City may terminate the Tax Abatement Program and this Agreement at an
earlier date if an Event of Default occurs and the City rescinds or cancels this Agreement.
(1) The Developer acknowledges that it has not relied on any representations of the
City, or any of its officers, agents, or employees, and has not relied on any opinion of any
attorney of the City, as to the Federal or State income tax consequences relating to the Tax
Abatement payments under this Section. The pledge of Tax Abatements is subject to all the
terms and conditions of the Tax Abatement Resolution. The Tax Abatements is payable solely
from and to the extent of the Tax Abatements, and nothing herein shall be construed to obligate
the City to make payments from any other funds.
(2) The Developer acknowledges that the City shall in no event be obligated to make
any payment of Tax Abatements under this Section to Developer unless and until (i) all ad
valorem property taxes due and payable with respect to the Tax Abatement Property as of the
applicable payment date have been paid in full and (ii) the City has received from the County or
any other source as provided by law an ad valorem property tax distribution that includes all or
any portion of the Tax Abatements.
(3) The Developer acknowledged that a failure to complete construction of the
Project in accordance with the timeline set forth in Section 3.3 hereof could reduce the amount of
the Tax Abatements below the reimbursement amount.
(4) The Developer acknowledges that all estimates of Tax Abatements that have been
prepared by or on behalf of the City have been done for the City's use only and neither the City
nor its consultants shall have liability to Developer if the actual Tax Abatements are less than the
amounts estimated.
(5) The Developer further acknowledges that the total Tax Abatements attributable to
any calendar year (i.e., the combined payments on Payment Dates of August 1 and the following
February 1) may not exceed the greater of $200,000 or 10% of the City's net tax capacity for that
9
LL185\31\703544.v1
tax -payable year (the "Statutory Cap"), all pursuant to Section 469.1813, Subdivision 8 of the
Abatement Act. The City has previously granted abatement under the Abatement Act for other
projects in the City. The City reasonably expects that the Statutory Cap will not cause the Tax
Abatements under this Agreement to be reduced; however, Developer acknowledges that, during
the term of the Tax Abatement under this Section, if the total abatements payable by the City
under the Tax Abatement Act in any year would exceed the Statutory Cap, the Statutory Cap is
allocated first to the City's existing abatement obligations, second to the Tax Abatements
payable under this Agreement, and third to any other abatements granted after the date of this
Agreement.
Section 3.10. Legal and Administrative Expenses. The Developer shall be solely
responsible for all costs incurred by the Developer. In addition, the Developer shall be
responsible for the City's Legal and Administrative Expenses. In addition, certain engineering,
environmental advisor, legal, land use, zoning, subdivision and other costs related to the
development of the Tax Abatement Property are required to be paid, or additional funds
deposited in escrow, in accordance with the City's fee schedule. The Developer has previously
deposited $10,000 with the City for the payment or reimbursement of the City's reasonable
Legal and Administrative Expenses incurred prior to the full execution and acceptance of this
Agreement. If at any time the City determines that the amount deposited by Developer will be
insufficient to pay the City's Legal and Administrative Expenses, the City may notify the
Developer in writing as to any additional amount required to be deposited. The Developer must
deposit such additional funds within 10 business days after receipt of the City's notice. The City
will notify the Developer at any point when it has received invoices for Legal and Administrative
Expenses equal, in aggregate, to $10,000 and the Developer shall notify the City whether it is
willing to incur additional Legal and Administrative Expenses. If the Developer fails to notify
the City of its willingness to continue to incur additional Legal and Administrative Expenses
within 10 days, the City will instruct all Legal and Administrative Expenses service providers to
discontinue further work and submit final invoices which the Developer shall reimburse the City
for reasonable Legal and Administrative Expenses within 10 business days after receipt of the
City's notice even if the remaining Legal and Administrative Expenses exceed $10,000 as a
result of work done prior to the notification to discontinue work. Any funds deposited by
Developer and not expended by the City for its Legal and Administrative Expenses will be
returned to the Developer upon the issuance of the Certificate of Completion. This Section 3.10
shall survive termination of this Agreement and shall be binding on the Developer regardless of
the enforceability of any other provision of this Agreement.
10
LL185\31\703544.v1
ARTICLE IV
EVENTS OF DEFAULT
Section 4.1 Events of Default Defined. The following shall be "Events of Default"
under this Agreement and the term "Event of Default" shall mean whenever it is used in this
Agreement any one or more of the following events:
(1) Failure by the Developer to timely pay or cause to be paid any ad valorem real
property taxes, special assessments, utility charges or other governmental impositions with
respect to the Project.
(2) Failure by the Developer to construct or cause the construction of the Project to be
completed pursuant to the terms, conditions and limitations of this Agreement.
(3) Failure by the Developer to observe or perform any other covenant, condition,
obligation or agreement on its part to be observed or performed under this Agreement.
(4) If the Lease shall be terminated or the operations under the Lease discontinue at
the Project.
Section 4.2 Remedies on Default. Whenever any Event of Default referred to in Section
4.1 occurs and is continuing, the City, as specified below, may take any one or more of the
following actions after the giving of 30 days' written notice to the Developer citing with
specificity the item or items of default and notifying the Developer that it has 30 days within
which to cure said Event of Default. If the Event of Default has not been cured within said 30
days:
(a) The City may suspend its performance under this Agreement until it
receives assurances from the Developer, deemed adequate by the City, that the Developer
will cure its default and continue its performance under this Agreement.
(b) The City may terminate the Tax Abatement Program and cancel and
rescind this Agreement and terminate any payments of Tax Abatements.
(c) The City may take any action, including legal or administrative action, in
law or equity, which may appear necessary or desirable to enforce performance and
observance of any obligation, agreement, or covenant of the Developer under this
Agreement.
Section 4.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to the
City is intended to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such right or power or
11
LL185\31\703544.v1
shall be construed to be a waiver thereof but any such right and power may be exercised from
time to time and as often as may be deemed expedient.
Section 4.4 No Implied Waiver. In the event any agreement contained in this Agreement
should be breached by any parry and thereafter waived by the other parry, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
Section 4.5 Agreement to Pay Attorney's Fees and Expenses. Whenever any Event of
Default occurs and the City shall employ attorneys or incur other expenses for the collection of
payments due or to become due or for the enforcement or performance or observance of any
obligation or agreement on the part of the Developer herein contained, the Developer agrees that
they shall, on demand therefor, pay to the City the reasonable fees of such attorneys and such
other expenses so incurred by the City.
Section 4.6 Release and Indemnification Covenants.
(1) The Developer releases from and covenants and agrees that the City, and its
governing bodies' members, officers, agents, including the independent contractors, consultants
and legal counsel, servants and employees thereof (hereinafter, for purposes of this Section,
collectively the "Indemnified Parties") shall not be liable for and agrees to indemnify and hold
harmless the Indemnified Parties against any loss or damage to property or any injury to or death
of any person occurring at or about or resulting from any defect in the Project, except to the
extent caused by any willful misrepresentation or any willful or wanton misconduct of the
Indemnified Parties.
(2) Except for any willful misrepresentation or any willful or wanton misconduct of
the Indemnified Parties, the Developer agrees to protect and defend the Indemnified Parties, now
and forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit,
action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly
arising from the actions or inactions of the Developer (or if other persons acting on its behalf or
under its direction or control) under this Agreement, or the transactions contemplated hereby or
the acquisition, construction, installation, ownership, and operation of the Project; provided, that
this indemnification shall not apply to the representations and warranties made or obligations
undertaken by the City in this Agreement.
(3) The City and its governing body members, officers, agents, servants and
employees shall not be liable for any damages or injury to the persons or property of the
Developer or its officers, agents, servants or employees or any other person who may be about
the Project due to any act of negligence of any person.
(4) All covenants, stipulations, promises, agreements and obligations of the City
contained herein shall be deemed to be the covenants, stipulations, promises, agreements and
obligations of the City and not of any governing body member, officer, agent, servant or
employee of the City in the individual capacity thereof.
12
LL185\31\703544.v1
ARTICLE V
ADDITIONAL PROVISIONS
Section 5.1 Conflicts of Interest. No member of the governing body or other official of
the City shall participate in any decision relating to this Agreement which affects his or her
personal interests or the interests of any corporation, partnership or association in which he or
she is directly or indirectly interested. No member, official or employee of the City shall be
personally liable to the City in the event of any default or breach by the Developer or successor
or on any obligations under the terms of this Agreement.
Section 5.2 Titles of Articles and Sections. Any titles of the several parts, articles and
sections of this Agreement are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Section 5.3 Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand or other communication under this Agreement by any parry to any
other shall be sufficiently given or delivered if it is dispatched by registered or certified mail,
postage prepaid, return receipt requested, or delivered personally, and
(1) in the case of the Developer is addressed to or delivered personally to:
Meritex Elk River, LLC
Attention:
(2) in the case of the City is addressed to or delivered personally to the City at:
City of Elk River
Elk River City Hall
13065 Orono Parkway
Elk River, MN 55330-5600
Attn: Director of Economic Development
or at such other address with respect to any such parry as that parry may, from time to time,
designate in writing and forward to the other, as provided in this Section.
Section 5.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 5.5 Law Governing. This Agreement will be governed and construed in
accordance with the laws of the State of Minnesota.
13
LL185\31\703544.v1
Section 5.6 Duration. This Agreement shall remain in effect through the earlier of the
date the Developer receives the Reimbursement Amount or February 1, 2036, unless earlier
terminated or rescinded in accordance with its terms.
Section 5.7 Provisions Surviving Rescission or Expiration. Sections 4.5 and 4.6 shall
survive any rescission, termination or expiration of this Agreement with respect to or arising out
of any event, occurrence or circumstance existing prior to the date thereof.
14
LL185\31\703544.v1
IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its
name and on its behalf, and the Developer has caused this Agreement to be duly executed in its
name and on its behalf, on or as of the date first above written.
MERITEX ELK RIVER, LLC
in
Its
This is a signature page to the Tax Abatement and Business Subsidy Agreement by and between
the City of Elk River, Minnesota and Meritex Elk River, LLC
S-1
LL185\31\703544.v1
CITY OF ELK RIVER, MINNESOTA
By
Its Mayor
By
Its City Clerk
This is a signature page to the Tax Abatement and Business Subsidy Agreement by and between
the City of Elk River, Minnesota and Meritex Elk River, LLC
S-2
LL185\31\703544.v1
Sportech acknowledges the requirements set forth in Section 3.8 hereof and agrees to comply
therewith.
SPORTECH, INC., A WHOLLY OWNED
SUBSIDIARY OF OFF ROAD
ACQUISITION CO., LLC
WE
ITS:
This is a signature page to the Tax Abatement and Business Subsidy Agreement by and between
the City of Elk River, Minnesota and Meritex Elk River, LLC
S-3
LL185\31\703544.v1
'Financial Incentive Application
Ef Tax Abatement Financing
v
VIII. APPLICATION FOR TAX ABATEMENT
Public Information Notice
Generally, correspondence to and from Staff is considered public information. Specific data related
to a financial assistance request is deemed not public: Financial Information, Financial Statements,
Net worth Calculations, Business Plans, Income and Expense projections, Balance Sheets, Customer
Lists, Income Tax returns. When public financial assistance is received, only the following remains
not public: Business Plans, Income and Expense projections, Customer lists, Income tax returns,
design, market, and feasibility studies not paid for with public funds. The city does allow an
applicant to submit sensitive financial information directly to the city's financial consultant, for
additional security.
A. APPLICANT INFORMATION
Name of Business Entitv's _tS... __ yicoii__ L
Address �.... 2 ..1.... th _0rC 1` ivo a N 5r,330
Primary Contact Tim Do i �i...n.....__..f.....D p okl ah V?oV
Address .......
�irna�dcc an roup.�o�
Phone... _ ...331 �...l,,,3Fax_,_,� Email
Brief description �:af the business entity, including history; principal product or service:
Attorney
Phone
Page 8of15
n
BVfldln2 (Io5,000 sq.W
ame roll Batamg-aOner 11MODA
Email
EDA & City Council Approved April 17, 2017
5
ctm
i
INE Y
Accountant Name M c a n J o h n so n, Rtd W$ C 0
A��YP��w 55 .....�b n+
Phone 1)1 ' 4 V 1' t� Fax
Email YYIaVni
O n
un a vis+ru Ch oh
n-LO M
Engineer
Address
0O&UM
ka M" An
n
S0
Phone ! Fax Email
Architect Name Lam ..v.R+ An,James Bats+hiarnuti
AddrePhone '�j • , Z rJ y„, Email
�` j i Fax " .....����
B. PROJECT INFORMATION
project will be:
Industrial: New Construction A Expansion Redevelopment / Rehab.
Office/research facility that conforms to Business Park zoning standards
Commercial Redevelopment/Rehabilitation
Other
2. In Vdition to the city of Elk River, applicant is requesting Tax Abatement from:
Sherburne County „m, School District 728
3. The project will be: _Owner Occupied ALeased Space
4. Project Address m 10162 JVWO (,IYGIt Ww kRwtr
Parcel Identification Number(s .. •y _. _.....
5. Site Plan and Construction Plans Attached: J Yes No
6. Total Amount of Tax Abatement Requeste : $„ Vw I �! �......, . _ over 15 years.
City Portion: Annual $ Z Total $m 00
County Portion: Annual $ Total $ MIN cz�
ISD 728 Portion: Annual $„m _ mmmmITm �QTotal $ '�
7. Current Real Estate Taxes on Project Site: $ { } 6) 000
Estimated Real Estate Taxes upon Completion: Phase I $............ .. _._..._,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,...............
Phase II $
S. Construction Start Date: v 41 61
Construction Completion Date: IT �6
If Phased Project: Year ,,_% Completed
,Year _ ..„% Completed
Page 9 of 15 EDA & CityCouncil Approved April 17, 2017
1tlI�t� nt1
C. PUBLIC PURPOSE
It is the policy of the city of Elk River that the use of Tax Abatement should result in
ndicate how this project will sery
A-nefitCreation/RetentionJob to the public. Se Number of existing jobs 2 ✓a p� % im!V1,o ......
Number of jobs created by project
Average hourly wage of jobs created/retained G��i 4�C� ' p•�
-kNew industrial development which will result in additional private 1a
investment in the area.
Enhancement and/or diversification of the city of Elk River's economic base.
The project contributes to the fulfillment of the city's Economic Development
Strategic Plan.
_Removal of blight.
Rehabilitation of a high profile or priority site.
Significantly increase the city's tax base.
k gJJJ+10na I * 4.%+ j hr bahefitS
D. SOURCES & USES
SOURCES
Bank Loan
Other Private Funds
Owner Cash Equity
Fed Grant/Loan
State Grant/Loan
EDA Micro Loan
Tax Abatement
ID Bonds
TOTAL
USES
Land Acquisition
Site Development
Construction
NAME
Machinery & Equipment
Architectural & Engineering Fees
Legal Fees ) Pr OWSA 0 na i Foos
Interest During Construction
Debt Service Reserve
Contingencies
TOTAL
Page 10 of 15 EDA & City Council Approved April 17, 2017
E. ADDITIONAL DOCUMENTATION AND CHECKLIST
Applicants will also be required to provide the following documentation:
-k—A) Written business plan, including a description of the business,
ownership/management, date established, products and services, and
future plans
B) Financial Statements for Past Two Years
Profit & Loss Statement
Balance Sheet
C) Current Financial Statements
Profit & Loss Statement to Date
Balance Sheet to Date
D) Two Year Financial Projections
—J(—E) Personal Financial Statements & Current Tax Return of all Major
Shareholders
�F) Letter of Commitment from Applicant Pledging to Complete
During the Proposed Project Duration
G) Letter of Commitment from the Other Sources of Financing, `
Stating Terms and Conditions of their Participation in the Project - s t 0
H) Application deposit of $10,000, with any unused portion to be refunded
if project does not proceed
XI) Construction Plans and Itemized Project Construction Statement
_X-J) Attach the following documentation as Exhibits
Exhibit A - Corporation/Partnership Description
Exhibit B - Description of Project
Exhibit C - List of Shareholders/Partners
Exhibit D - But -For Analysis
Exhibit E - List of Prospective Lessees
Exhibit F - Legal Description and PID Number(s)
Note: All owners with ownership interests greater than 20% will be required to sign
personal guarantees if up front financing of the project is required.
Page 11 of 15 EDA & City Council Approved April 17, 2017 LiiNZATURIE
R E 0
The undersigned certifies that all information provided in this application is true and correct
to the best of the undersigned's knowledge. The undersigned authorizes the city of Elk
River to check credit references, verify financial and other information, and share this
information with other political subdivisions as needed. The undersigned also agrees to
provide any additional information as may be requested by the city after the filing of this
application.
The undersigned has received the city's policy regarding the payment of costs of review,
understands that reimbursement to the city of costs incurred in reviewing the application will
be required, agrees to reimburse the city as required in the policy and make payment when
billed by the city, and agrees that the application may be denied for failure to reimburse the
city for costs as provided in the policy,
Applicant Name .._.._...�...� .�._.�_...._. --.—.,,,,Date
Page 12 of 15 EDA & City Council Approved April 17, 2017 Fa V tt 0 F-6—" f
LEASE AGREEMENT
Between
Meritex Elk River, LLC,
A Delaware limited liability company,
as Landlord
and
Sportech, Inc,,
a Minnesota corporation,
as Tenant
Dated Apra $ , 2016
(00286926 )
085714\001\4121203.v7
TABLE OF CONTENTS
ARTICLE 1 GRANT AND TERM................................................................................................. I
ARTICLE2 RENT..........................................................................................................................
I
ARTICLE3 USE.............................................................................................................................3
ARTICLE 4 POSSESSION.............................................................................................................4
ARTICLE5 TAXES........................................................................................................................4
ARTICLE6 INSURANCE..............................................................................................................8
ARTICLE7 UTILITIES................................................................................................................1
l
ARTICLE8 REPAIRS..................................................................................................................
I I
ARTICLE 9 COMPLIANCE WITH APPLICABLE LAWS........................................................13
ARTICLE 10 MECHANIC'S LIENS...........................................................................................14
ARTICLE 11 DEFAULTS OF TENANT.....................................................................................14
ARTICLE 12 DESTRUCTION AND RESTORATION..............................................................20
ARTICLE 13 CONDEMNATION................................................................................................22
ARTICLE 14 ASSIGNMENT AND SUBLETTING....................................................................25
ARTICLE 15 SUBORDINATION, NONDISTURBANCE AND ATTORNMENT...................26
ARTICLE 16 SIGNS AND BUILDING IDENTIFICATION......................................................27
ARTICLE 17 LANDLORD'S ACCESS.......................................................................................28
ARTICLE 18 CHANGES AND ALTERATIONS........................................................................29
ARTICLE19 SURRENDER.........................................................................................................30
ARTICLE 20 HAZARDOUS MATERIALS................................................................................31
ARTICLE 21 INTENTIONALLY DELETED.............................................................................33
ARTICLE 22 MISCELLANEOUS PROVISIONS.......................................................................33
ARTICLE 23 NOTIFICATION PRIOR TO LITIGATION.........................................................39
ARTICLE 24 LANDLORD DEFAULT AND BANKRUPTCY..................................................39
ARTICLE 25 OPTIONS TO EXTEND........................................................................................39
ARTICLE 26 OPTION TO EXPAND..........................................................................................41
ARTICLE 27 CONSENT TO JURISDICTION............................................................................47
EXHIBITS
Exhibit A
Legal Description
Exhibit B
Permitted Exceptions
Exhibit E
Termination Value Schedule
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made as of Apyi t D , 2016 (the
"Commencement Date"), by and between Meritex Elk River, LLC, a Delaware limited liability
company ("Landlord") and Sportech, Inc., a Minnesota corporation ("Tenant").
ARTICLE 1
GRANT AND TERM
1.1 Grant of Leasehold. Landlord, for and in consideration of the rents herein
reserved and the covenants and agreements herein contained on the part of Tenant to be
performed, hereby leases and demises to Tenant, and Tenant, for and in consideration of the
covenants and agreements contained herein on the part of Landlord to be performed, hereby
leases from Landlord, the entirety of that certain parcel of land located in the City of Elk River,
Minnesota (the "City") legally described on Exhibit A attached hereto (the "Land"), together
with Landlord's interest in (i) all hereditaments, easements and rights appurtenant thereto, (ii) all
site work and landscaping installed or constructed upon the Land, and (iii) the building
constructed upon the Land (the "Building") containing approximately 105,000 rentable square
feet, all of the foregoing being herein collectively defined as the "Premises", all of which is
leased to Tenant subject to the encumbrances referred to in Exhibit B attached hereto (the
"Permitted Exceptions"). The term Premises includes parking, storage and loading facilities,
Landlord's interest in all drives, sidewalks and landscaping and all other improvements on the
Land.
1.2 Term. The term of this Lease shall be for a period of ten (10) years, commencing
on the Commencement Date and ending on the day before the tenth (loth) anniversary of the end
of the calendar month in which the Commencement Date occurs (the "Term"), unless the Term
shall be sooner terminated in accordance herewith, or unless the Term shall be extended in
accordance with Article 25, in which event "Term" shall mean the initial Term of this Lease as
extended. The dates upon which the Term shall commence and expire shall be referred to herein
as the "Commencement Date" and the "Expiration Date", respectively. If the
Commencement Date occurs on a day other than the first day of a calendar month and/or the
Expiration Date on a day other than the last day of a calendar month, Tenant shall pay Monthly
Rent (as herein defined) at the monthly rate set forth herein (in advance) proportionately for such
partial month, as well as Taxes (as hereinafter defined) and any other charges payable
proportionately for such partial calendar month.
ARTICLE 2
RENT
2.1 Rent Amount. Commencing on the Commencement Date and continuing on the
first business day of each calendar month during the Term to and including the first business day
of the last month of the Term, Tenant shall pay to Landlord monthly base rent in the amounts set
forth in the following schedule (the "Monthly Rent"):
PERIOD
ANNUAL RENT
MONTHLY RENT
First Lease Year
$525,000.00
$43,750.00
Second Lease Year
$535,500.00
$44,625.00
Third Lease Year
$546,210,00
$45,517.50
Fourth Lease Year
$557,134.20
$46,427.85
Fifth Lease Year
$568,276.88
$47,356.41
Sixth Lease Year
$579,642.42
$48,303.54
Seventh Lease Year
$591,235.27
$49,269.61
Eighth Lease Year
$603,059.98
$50,255.00
Ninth Lease Year
$615,121.18
$51,260.10
Tenth Lease Year
$627,423.60
$52,285,30
Also beginning on the Commencement Date, Tenant shall pay all other sums due under this
Lease as set forth herein ("Additional Rent"). Monthly Rent and Additional Rent are herein
collectively referred to as "Rent".
2.2 Payment of Rent. Monthly Rent shall be paid by Automatic Clearing House
(ACH) electronic payments in immediately available funds in lawful currency of the United
States of America. Monthly Rent owing to Landlord hereunder shall be paid by Tenant without
notice, demand, set-off, or abatement of any kind.
2.3 Default Rate. Rent or other amounts not paid to Landlord when due shall bear
interest from the date when due and payable under the terms hereof until the same is paid at the
rate per annum (the "Default Rate") equal to the rate of 8% per annum. If Tenant does not pay
Additional Rent when due, Tenant shall be in default as set forth in Article 11, but the Default
Rate shall not apply to such unpaid sums unless such sums are owed to Landlord, in which case
the Default Rate shall apply beginning on the date when such payment was owed to Landlord.
Neither the accrual of interest at the Default Rate, nor Tenant's payment thereof, will be deemed
to grant Tenant any extension or grace period in which to pay the Rent as and when due under
this Lease.
2A Net Lease. This Lease is what is commonly called a "bondable net lease", it
being understood that Tenant shall pay the Rent in addition to, and independently of, any and all
other impositions, taxes, assessments, liens, charges or expenses of any nature whatsoever in
connection with the maintenance, repair, replacement and operation of the Premises, all of which
will be paid by Tenant. Tenant shall be solely responsible for and shall pay all impositions,
Taxes (as defined in Article 5), insurance premiums, operating charges, maintenance and the
costs of all charges, Repairs (as defined in Article 8), replacements, landscaping, janitorial costs,
utilities, construction costs, and other charges, costs and expenses (capital or otherwise) which
2
arise or may be contemplated under any provisions of this Lease or as otherwise required for the
preservation and operation of the Premises during the Term, and any interest, penalties or other
charges due to Tenant's failure to timely pay any of such items. All such payments to be made
by Tenant as described in this Lease (whether to Landlord or otherwise) in addition to the
Monthly Rent shall be deemed to be Additional Rent for which Tenant is obligated under this
Lease. This Lease may not be terminated by Tenant except as provided herein.
2.5 Independent Obligations, The obligations of Tenant hereunder, including but not
limited to the obligation to pay Rent, shall be separate and independent covenants and
agreements. Nothing herein shall preclude Tenant from pursuing or realizing upon its other
remedies at law or in equity by reasons of, any default by Landlord; provided, however, Tenant
may not pursue any remedy that would permit it to terminate this Lease or that would entitle it to
a set-off or abatement of Rent of any kind.
2.6 Security Deposit. Tenant, contemporaneously with the execution of this Lease,
has deposited with Landlord the sum of $100,000, receipt of which is acknowledged hereby by
Landlord. The Security Deposit will be held by Landlord, without liability for interest, as a
security and damage deposit for the faithful performance by Tenant of all obligations under this
Lease to be performed by Tenant. The Security Deposit will not be held in an escrow account.
Landlord may intermingle such Deposit with Landlord's own funds. If an Event of Default
occurs under this Lease, then Landlord may (but will not be required to) appropriate and apply
all or such portion of said Deposit as may be necessary to compensate or repay Landlord for all
amounts, losses or damages sustained or to be sustained by Landlord due to such Event of
Default. So long as no Event of Default by Tenant has occurred in the prior twelve (12) months,
Landlord agrees to return twenty percent (20%) of the Security Deposit to Tenant on each
anniversary of the Lease term for five (5) consecutive years and thereby reducing the amount of
the Security Deposit each year. If the entire Security Deposit, or any portion thereof, is applied
by Landlord, in accordance with the provisions of this paragraph, Tenant, upon written demand
by Landlord, will immediately pay Landlord a sufficient amount of cash to restore the Security
Deposit to the amount thereof immediately prior to such application. If not previously released
to Tenant, the Security Deposit will be returned to Tenant, less any depletion thereof as the result
of the provisions of this paragraph, at the end of the Term of this Lease or any renewal thereof.
Tenant will have no right to anticipate a return of said Security Deposit by withholding any
amount required to be paid pursuant to the provisions of this Lease or otherwise.
ARTICLE 3
USE
3.1 Lawful Use. The Premises may be used and occupied for assembly,
manufacturing and warehouse purposes and for any other lawful purpose. Tenant shall not use
or pen -nit the Premises to be used in any manner which would (i) be contrary to Applicable Laws
(as defined in Section 9.1), (ii) violate any certificate of occupancy affecting the Premises, (iii)
constitute a public or private nuisance or waste, (iv) render the insurance on the Premises or any
portion thereof void, (v) cause a material decrease in the value of the Premises, or (vi) be in
violation of any of the Permitted Exceptions. Tenant agrees that it will promptly, upon discovery
of any such prohibited use, discontinue such prohibited use. Nothing in this Lease shall be
construed to require Tenant to occupy the Building or keep the Building open for the operation
of its business or to continue to operate its business in the Premises.
ARTICLE 4
POSSESSION
4.1 Access and Possession. Tenant acknowledges that, upon the Commencement
Date, it will occupy the Premises. Landlord shall deliver the Premises to Tenant and Tenant
shall accept exclusive possession of the Premises on the Commencement Date. Tenant's
execution and delivery of this Lease evidences Tenant's unconditional acceptance of the
Premises to use for the purposes permitted in Article 3 hereof. Tenant will self -manage the
Premises.
4.2 CONDITION OF PREMISES AT POSSESSION. TENANT
ACKNOWLEDGES THAT TENANT, AT ITS SOLE COST AND INDEPENDENTLY OF
LANDLORD, HAS CAUSED THE CONSTRUCTION OF THE BUILDING AND ALL
OTHER IMPROVEMENTS LOCATED ON THE LAND PRIOR TO THE
COMMENCEMENT DATE. TENANT IS SOLELY RESPONSIBLE FOR THE CONDITION
OF THE PREMISES. LANDLORD IS NOT MAKING AND SPECIFICALLY DISCLAIMS
ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES, INCLUDING, BUT NOT
LIMITED TO, THE PHYSICAL CONDITION OF THE PREMISES, ENVIRONMENTAL
CONDITIONS, HAZARDOUS MATERIALS, COMPLIANCE WITH APPLICABLE LAWS,
AVAILABILITY OF ACCESS, INGRESS OR EGRESS, OPERATING COST PROJECTIONS,
VALUATION, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS,
THE QUALITY OF THE CONSTRUCTION OR MATERIALS INCORPORATED INTO THE
PREMISES, AND THE MANNER, QUALITY, STATE OF REPAIR, OR LACK OF REPAIR,
OF THE PREMISES. TENANT ACCEPTS POSSESSION OF THE PREMISES ON THE
COMMENCEMENT DATE AS -IS, WHERE -IS, AND WITH ALL FAULTS.
ARTICLE ,5
TAXES
5.1 Definitions.
(a) "Taxes" shall mean real estate taxes, assessments (general or special), and any
other federal, state or local governmental and quasi -governmental taxes, fees and charges,
general, special, foreseen or unforeseen, ordinary or extraordinary, and any additions to tax,
penalties or interest thereon payable with respect to the Premises or the Rent during the Term
(but not including (i) income or franchise taxes or any other taxes imposed upon or measured by
Landlord's income or profits and/or (ii) taxes in the nature of sales, use, rental, stamp, transfer or
license taxes), which may now or after the date hereof be imposed or levied upon or assessed
against or with respect to or in connection with the Premises, or any part or interest therein, or
any additions, modifications or improvements thereto. Notwithstanding anything contained in
the foregoing definition to the contrary:
4
(i) If at any time the method of taxation then prevailing shall be altered so
that any new or additional tax, assessment, levy, imposition or charge or
any part thereof shall be imposed in place or partly in place of any Taxes
or contemplated increase therein, then all such new taxes, assessments,
levies, impositions or charges or part thereof, shall be included in Taxes.
(ii) Notwithstanding the year for which any such taxes or assessments are
levied, in the case of such taxes or assessments which may be payable in
installments, the amount of each installment, plus any interest payable
thereon, payable during any year during the Term shall be considered
Taxes assessed and levied for that year.
(iii) Taxes shall also include personal property taxes (if any) imposed upon the
furniture, fixtures, machinery, equipment, apparatus, systems or
appurtenances used in connection with the Premises or the operation
thereof.
(b) Notwithstanding anything to the contrary contained herein, Tenant will have no
obligation under this Article 5 with respect to amounts described in any one or more of the
following:
(i) (A) Taxes that are imposed on Landlord, based on, or measured by, gross
or net income or gross or net receipts, including capital gains taxes, excess
profits taxes, minimum taxes from tax preferences, alternative minimum
taxes, branch profits taxes, accumulated earnings taxes, personal holding
company taxes, succession taxes and estate taxes, and any withholding
taxes on, based on or measured by gross or net income or receipts,
(B) capital or net worth, excess profits; franchise or conduct of business,
or (C) Taxes imposed by any foreign or domestic government or taxing
authority (other than the United States or any state or local government or
taxing authority);
(ii) (A) Taxes (including Taxes imposed on the transferee in those cases
where the Tax on transfer is imposed on, or collected from, the transferee)
attributable to any (1) voluntary sale, assignment, transfer or other
disposition (including a deemed transfer or disposition) (collectively, a
"Transfer") by any entity of any interest in the Premises or any part
thereof or any interest therein, (2) any involuntary Transfer of any of the
foregoing interests resulting from any bankruptcy or other proceeding for
the relief of debtors in which any entity is a debtor, (3) any foreclosure by
a creditor of any entity, or (4) any transfer as the result of Condemnation,
and (B) any Taxes in excess of those that would have been imposed had
there not been a Transfer or other disposition by or to any entity;
(iii) Taxes imposed with respect to any period after the expiration or earlier
termination of this Lease;
(iv) any interest, penalties or additions to Tax imposed against or payable by
Landlord or any affiliate thereof that are the result (in whole or in part) of
the failure of such entity to prepare and file any return properly and
timely; and/or
(v) Taxes that would not have been imposed but for any failure of Landlord or
any affiliate thereof to comply with certification, information,
documentation, reporting or other similar requirements (each, a
"Requirement") concerning the nationality, residence, identity or
connection with the jurisdiction imposing such Taxes, if such compliance
is required by statute or regulation of the jurisdiction imposing such Taxes
as a precondition to relief or exemption from such Taxes and Landlord or
said affiliate was eligible to comply with such Requirement; provided,
however, that the exclusion set forth in this clause (v) shall not apply if
such failure to comply is due to a failure of the Tenant to provide
reasonable assistance or response in complying with such request.
5.2 Payment of Taxes. Tenant shall pay directly to the taxing authority, not less than
fifteen (15) days before any fine, penalty, interest or cost is incurred, all Taxes payable during
the Term. In the event that the manner of collection of Taxes should require that any Taxes be
paid to the applicable taxing authority by Landlord, Tenant shall pay such Taxes to Landlord
within thirty (30) days of receipt of a copy of reasonable evidence showing the amount of Taxes
due. Tenant shall pay, at its sole cost and expense, in timely fashion to the taxing authorities, or
to Landlord if Landlord is required to pay such Taxes, that portion of the Taxes in the nature of
real estate taxes and assessments payable during the year in which the Term expires which the
number of days in said year within the Term bears to 365, and Landlord shall pay to the taxing
authorities, or to Tenant if paid by Tenant, the balance of such Taxes for said year (if any),
Tenant will pay all Taxes due and payable in the year in which the Commencement Date occurs.
The parties intend that, during the Term, Landlord has no obligation to pay Taxes, except as set
forth in this Article 5. Tenant shall accurately prepare for filing and file, unless Landlord is
required to file, in which case Tenant shall deliver to Landlord reasonably in advance of the
filing due date, all returns, reports, statements and other filings regarding Taxes for which Tenant
is required to pay hereunder.
5.3 Monthly Escrow for Taxes. If required by any Mortgagee pursuant to the terms
of a Mortgage encumbering the Premises, in lieu of Tenant paying the Taxes directly, Tenant
will pay monthly to Landlord, or to a designated third -party escrow agent, on or before the first
business day of each calendar month, one -twelfth (1/12th) of the amount of the Taxes payable by
Tenant for the calendar year in question, as reasonably estimated by Landlord. Landlord will
cause the amounts held in escrow pursuant to this Section to be paid to the appropriate taxing
authority not less than fifteen (15) days before any fine, penalty, interest or cost is incurred. To
the extent the amount in the escrow account is inadequate to pay all of the Taxes for which
Tenant is obligated hereunder, then within ten (10) days after written request from Landlord,
Tenant will pay such additional funds into the escrow account as may be necessary to pay the
next installment of Taxes in full.
5.4 Contesting Taxes. Tenant shall have the exclusive right (except as otherwise
provided in this Section) at its own expense to contest the amount or validity, in whole or in part,
of any Taxes by appropriate proceedings diligently conducted in good faith, before or after the
Taxes are levied (including any proposed or levied special assessments and any methods and
options for payment thereof), provided that Tenant shall indemnify, defend and hold harmless
Landlord and the Premises from any charge, liability or expense incurred by Landlord in
connection with such contest, and Tenant shall not have the right to contest any Taxes levied or
imposed on Landlord (i) to the extent the proceeding would involve any liability for taxes,
assessments, fees or charges imposed on Landlord other than Taxes which Tenant is required to
pay hereunder or (ii) if the actions taken by the Tenant in contesting any Taxes would interfere
with the Premises or result in any material danger of an imminent sale, forfeiture or loss of, or
the creation of any lien against the Premises (except if Tenant shall have adequately bonded such
lien or otherwise made provision to protect the interests of Landlord in the Premises or any
interest therein). Tenant shall also have the right to select the counsel to be retained in
connection with the prosecution of any such proceedings. Tenant shall promptly notify Landlord
of any contest of the amount or validity of Taxes. If Tenant does not elect to contest the amount
or validity of such Taxes, Landlord may contest the amount or validity of any Taxes by
appropriate proceedings but, if payable by Tenant, only with Tenant's prior written approval,
which approval shall not be unreasonably withheld. With respect to any Taxes in the nature of
real estate taxes and assessments levied during the Term but payable in whole or in part after the
Expiration Date, (A) Tenant may contest the amount or validity of said Taxes by appropriate
proceedings only with the prior written approval of Landlord, which approvals shall not be
unreasonably withheld, and (B) if Tenant does not elect to contest the amount or validity of such
Taxes, Landlord may contest the amount or validity of said Taxes by appropriate proceedings
without Tenant's prior written approval. If Landlord contests such Taxes, then to the extent that
such contest is successful and Tax savings are achieved for the benefit of Tenant, Tenant shall
reimburse Landlord for Landlord's reasonable out-of-pocket expenses incurred in connection
therewith to the extent of such savings. If Landlord contests such Taxes, then to the extent that
such contest results in additional Taxes to be paid by Tenant, Landlord shall reimburse Tenant
for Tenant's additional Taxes; provided, however, under no circumstances may Landlord contest
Taxes to intentionally increase Tenant's tax burden. Upon the termination of any proceedings
conducted by Tenant or Landlord hereunder, Tenant shall pay the amount of such Taxes or part
thereof, if any, as finally determined in such proceedings, the payment of which may have been
deferred during the prosecution of such proceedings, together with any reasonable costs, fees,
including attorneys' fees, interest, penalties, fines and other liability in connection therewith.
Tenant shall be entitled to the refund of any Taxes received by Landlord which have been paid
by Tenant or which have been paid by Landlord but for which Landlord has been previously
reimbursed in full by Tenant, less any out-of-pocket costs incurred by Landlord in obtaining such
refund. Landlord shall not be required to join in any proceedings referred to in this Section
unless the provisions of any Applicable Laws at the time in effect shall require that such
proceedings be brought by or in the name of Landlord, in which event Landlord, at Tenant's
expense, shall join in such proceedings or permit the same to be brought in Landlord's name, and
shall cooperate in all respects, sign all necessary documents related thereto, and shall be
represented in any such proceedings by counsel selected by Tenant and approved by Landlord,
which approval shall not be unreasonably withheld or delayed. Tenant shall keep Landlord
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informed of the status of the proceedings, and if the proceedings are brought in the naive of
Landlord, consult in good faith with Landlord regarding the conduct of the proceedings.
5.5 Receipts. If requested by Landlord, Tenant shall furnish Landlord, within thirty
(30) days after the date upon which any Taxes are payable by Tenant, official receipts of the
appropriate taxing authority, or other appropriate proof reasonably satisfactory to Landlord,
evidencing the payment of the same. If the provisions of Section 5.3 are applicable and the
Tenant is required to pay, monthly, the appropriate amount of the Taxes into an escrow account,
then if requested by Tenant, Landlord will furnish to Tenant within thirty (30) days after the date
upon which any Taxes are payable by Landlord, official receipts of the appropriate taxing
authority, or other appropriate proof reasonably satisfactory to Tenant, evidencing the payment
of the Taxes.
ARTICLE 6
INSURANCE
6.1 Property Insurance.
(a) The Premises. Tenant shall obtain and continuously maintain in full force and
effect during the Term, at its sole cost and expense, property insurance insuring the Premises for
perils covered by the special perils extended coverage form ("all risk") or comparable broad
form coverage satisfactory to Landlord and in addition, vandalism and malicious mischief,
terrorism, ordinance or law coverage (including demolition cost, increased cost of construction,
and loss to undamaged improvements), and boiler and machinery damages (if applicable) and
insurance providing coverage for loss of Rents for at least 12 months of Rent. Such insurance
shall be written on 100% full replacement cost basis and shall be in such form or with such
endorsements as necessary to prevent the operation of any co-insurance penalty, and with such
further coverages and provisions as may be required by a Mortgagee. The policy shall name
Landlord and Mortgagee (as hereinafter defined) holding a Mortgage (as hereinafter defined)
upon the Premises as loss payees with respect to the Premises. Such property insurance shall be
primary and not contributing to any insurance available to Landlord and Landlord's insurance, if
any, shall be in excess thereto. All insurance proceeds shall in all respects be made available to
repair and restore the Premises in accordance with Article 12. Not more frequently than every
five (5) years, if in the reasonable opinion of the Landlord the amount of Tenant's property
insurance is found to be inadequate, Tenant will increase the insurance amount as reasonably
required by Landlord. The deductible for coverage under this Section shall not exceed $10,000,
or such larger amount as may be allowed by Landlord or any Mortgagee, from time to time. For
purposes of this lease the term (a) "Mortgage" means any first priority mortgage which now or
at any time hereafter may be placed upon the premises, and any replacements, renewals,
amendments, modifications, extensions or refinancing of any of the foregoing, (b) "Mortgagee"
means (i) any person identified as such in writing to Tenant which makes a loan to the Landlord
evidenced by a note and secured in whole or in part by a Mortgage, or (ii) is the holder of a
Mortgage and a note as a result of an assignment or purchase thereof, or (iii) is the trustee acting
on behalf of a Certificate Holder if the loan or interests in the loan are deposited with a trust
which sells certificates to investors, and (c) "Certificate Holder" means the holder of interest
that evidences an ownership interest in the assets of a trust that is holding a loan or interests in a
loan secured by a Mortgage.
(b) Tenant's Property. Tenant shall obtain and continuously maintain in full force
and effect during the Term, at its sole cost and expense, a special perils extended coverage form
("all risk") policy of insurance on all of Tenant's personal property, equipment, furniture,
records, inventory, racking, fixtures, machinery, vehicles, tenant improvements and alterations.
6.2 Liability Insurance.
(a) Tenant. During the Term, Tenant shall also obtain and continuously maintain in
full force and effect, at its sole cost and expense, commercial general liability insurance naming
Landlord and Mortgagee as additional insureds against any and all claims as are customarily
covered under a standard policy form (which must provide for claims to be made on an
occurrence basis) routinely accepted, for bodily injury, death and property damage occurring in,
or about the Premises and adjoining sidewalks arising out of the possession, leasing, condition,
use and occupancy of the Premises. Such insurance shall have a combined single limit of not
less than $1,000,000 per occurrence with $2,000,000 aggregate limit and excess umbrella
liability insurance in the amount of at least $5,000,000, or in such greater amounts as may be
required by any Mortgagee. Such liability insurance shall be primary and not contributing to any
insurance available to Landlord and Landlord's insurance, if any, including that obtain pursuant
to Section 6.2(b), shall be in excess thereto. In no event shall the limits of such insurance be
considered as limiting the liability of Tenant under this Lease. The deductible for coverage
under this Section shall not exceed $10,000.
(b) Landlord. During the Term, Landlord may, at its option, also obtain and maintain
in full force and effect, commercial general liability insurance naming Landlord as insured and
Tenant as additional insured with respect to the Premises, with such limits and coverage as
Landlord reasonably deems appropriate.
6.3 Workers Compensation Insurance. During the Term, Tenant shall obtain and
maintain in full force and effect, at Tenant's sole expense, workers compensation insurance in
accordance with statutory law and employer's liability insurance with a limit of not less than
$100,000 per employee and $500,000 per occurrence.
6.4 Builder's Risk Insurance. During any period of construction on the Premises,
Tenant shall maintain, at Tenant's sole expense, builder's risk insurance insuring perils covered
by the causes of loss -special extended coverage form ("all risk"), non -reporting form. The
Builder's Risk insurance shall be purchased for the value of the alterations and/or additions made
to the Premises when the work is not insured under Tenant's property insurance policy, together
with general liability and worker's compensation insurance covering all persons engaged in such
construction in amounts reasonably required by Landlord and Mortgagee.
6.5 Business Interruption Insurance. During the Term, Tenant shall also obtain and
continuously maintain in full force and effect, at its sole cost and expense, a policy of insurance
against loss or damage to business interruption specifically covering Tenant's obligation to pay
all Rent under this Lease for a period of not less than six (6) months, and containing such other
terms and provisions as may be required by a Mortgagee.
6.6 Requirements. All policies of insurance required by Sections 6.1(a), 6.1(b), 6.2(a)
and 6.4 shall require notice to Landlord and Mortgagee at least 30 days prior to the cancellation
or modification of the policy as a condition to the policy, and in the event any such notice of
cancellation is given, Tenant shall provide Landlord and Mortgagee with a certificate of
insurance evidencing a renewal or replacement policy at least five (5) days prior to the date of
such cancellation. The policies of insurance required under Section 6.1(a) and 6.4 shall name
Landlord and any Mortgagee as loss payee, as their interests may appear. Each policy of
insurance required by Sections 6.1(a) and 6.4 shall contain an endorsement that the coverage
with respect to the Premises afforded under such policy will be extended by the insurer following
the stated expiration date of such policy for a period equal to the lesser of ten (10) days following
the expiration of such policy or the date when a renewal or replacement policy is bound, and
Tenant shall provide Landlord and Mortgagee with a certificate of insurance evidencing such
renewal or replacement policy at least five (5) days prior to the expiration of such ten (10)-day
period. The policies of insurance required under Section 6.2(a) shall name Landlord and
Mortgagee as additional insureds, and evidence of the renewal or replacement policies
reasonably satisfactory to Landlord and Mortgagee shall be delivered to Landlord and Mortgagee
at least ten (10) business days before the expiration thereof. Certificates of insurance with
respect to all policies required under this Lease shall be delivered to Landlord and Mortgagee
upon commencement of the Term, and as promptly as practicable after the expiration of existing
policies and within ten (10) days of written demand by Landlord. Insurers shall be licensed to do
business in the State of Minnesota and either domiciled in the USA or qualified to do business
therein as a foreign corporation. All property insurance policies shall contain a standard, non-
contributory, first mortgagee clause in favor of Mortgagee.
Notwithstanding anything contained herein to the contrary, Landlord retains the right, at
Landlord's option, at any time during the Term, for any reason or for no reason, for Landlord, to
obtain and continuously maintain in full force and effect during the Term, all of the insurance
required under Section 6.1(a) and 6.4 above upon not less than thirty (30) days prior written
notice to Tenant. Thereafter, Tenant will have no obligation to maintain such insurance, under
any of such Section 6.1(a) and 6.4 as elected by Landlord, but Tenant will reimburse Landlord
for all costs, expenses and premiums incurred in obtaining such insurance, within ten (10) days
after Landlord provides Tenant with an invoice for such costs and expenses. Tenant will also
reimburse Landlord for any costs incurred by Landlord for the coverage identified in Section
6.2(b).
6.7 Waiver of Claims; Subrogation. Notwithstanding any other provision of this
Lease to the contrary, whenever (a) any loss, cost, damage or expense, including consequential
damage or expense, resulting from fire, explosion or any other casualty or similar occurrence is
incurred by either of the parties hereto, or anyone claiming by, through, or under it is connection
with the Premises, and (b) such party is then covered in whole or in part by insurance with
respect to such loss, cost, damage or expense or is required under this Lease to be so insured or
self insured, then the party so insured (or so required) hereby waives, releases and discharges any
claims against and releases the other party from any liability said other party may have on
account of such loss, costs, damage or expense, including consequential damage or expense, to
the extent of any amount recovered by reason of such insurance, or the amount which could have
been recovered by reason of such insurance policies if the same had been maintained as required
by the terms of this Lease. The parties agree to furnish to each insurance company which has or
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will issue policies of casualty insurance on the Building, written notice of said waivers and to
have the insurance policies property endorsed, if necessary, to acknowledge such subrogation
waivers.
6.8 Unearned Premiums. Upon expiration of the Term, any unearned premiums upon
any insurance policies or certificates thereof maintained by Tenant shall be paid to Tenant.
6.9 Blanket Policies. Nothing in this Article shall prevent either party from taking out
insurance of the kind and in the amount provided for in this Lease under a blanket insurance
policy or policies which may cover other properties as well as the Premises; provided, however,
that any such policy of blanket insurance of the kind provided for (i) shall specify therein either
the amounts thereof exclusively allocated to the Premises or shall contain a blanket limit equal to
or greater than the replacement value of the Premises, and (ii) shall not contain any clause which
would be contrary to the insurance requirements of this Article.
ARTICLE 7
UTILITIES
7.1 Payment. During the Term, Tenant will pay, when due, all charges of every
nature, kind or description for utilities provided to the Premises, including all charges for water,
sewage, heat, gas, light, garbage, electricity, telephone, steam, power, or other public or private
utility services. Tenant's obligation under this Section 7.1 shall include charges which accrue
during the Term but are payable after the Term, and shall survive expiration of the Term. Any
invoice or billing attributable to utilities provided for a period beyond the Term shall be prorated
such that Tenant has liability only for such utilities provided during the Term.
7.2 Service Installation. Any charges for the underground installation of gas or other
utilities or services, and other charges relating to the extension of or change in the facilities
necessary to provide the Premises with adequate utility services shall be paid by Tenant.
ARTICLE 8
REPAIRS
8.1 Repairs to Building and Premises. Subject to the limitations of Articles 12 and 13
hereof, Tenant shall; at its sole cost and expense throughout the Term, (a) take good care of the
Premises (including any improvements now existing and/or hereafter erected or installed on the
Land); (b) keep the same in order and condition consistent with standards for buildings of
comparable type, quality, age and size in the City; and (c) make and perform all maintenance
thereof and all necessary or appropriate repairs thereto, interior and exterior, structural and
nonstructural (including without limitation to the foundations, HVAC and other systems and the
roof and other structural components of the Building), ordinary and extraordinary, foreseen and
unforeseen, of every nature, kind and description. All of the items referred to in the preceding
sentence are herein referred to as "Repairs", and when used in this Article, "Repairs" shall
include all necessary and appropriate replacements, resurfacing, renewals, alterations, additions
and betterments, whether capital improvements or otherwise, using new materials therefor, but
Tenant shall not be required to make any Repair which would be in excess of those which a
reasonable and prudent owner would make under the circumstances, given the age and condition
11
of the Building and standards of care and maintenance of buildings of comparable type, quality,
age and size in the City. All Repairs made by Tenant shall be, to the extent reasonably possible,
at least equal in quality to the original work performed in constructing the Building, provided
that Tenant shall have the right to repair, replace or restore the Building or portions thereof with
different exterior components, utilities, roofing, elevator systems, structural components and
mechanical, electrical and plumbing systems, so long as the general design and the structural and
functional integrity and value of the Building is maintained. In the event of any Repairs to the
items described in the preceding sentence, Tenant shall first (except in the case of an emergency
and except for routine and ordinary repairs and maintenance the cost of which is $100,000 or less
and for which plans are not customarily prepared) provide Landlord with notice and with
drawings sufficient for Landlord to review and approve the proposed Repairs, which approval
shall not be unreasonably withheld or delayed. All Repairs made by Tenant shall be made in
accordance with all Applicable Laws,
8.2 Land and Appurtenances. During the Term, Tenant, without any cost or expense
to Landlord, shall take good care of and repair and maintain all driveways, sidewalks, curbs,
parking areas, loading areas, landscaped areas, entrances and passageways in good order and
repair, subject to reasonable wear and tear, damage by casualty and condemnation. Tenant shall
promptly remove to customary standards all accumulated snow, ice, excess water and debris
from any and all driveways, roadways, sidewalks, curbs, parking areas, loading areas, entrances
and passageways, and shall keep all portions of the Premises in a clean and orderly condition,
free of snow, ice, dirt, rubbish, excess water, debris and unlawful obstructions.
8.3 No Landlord Maintenance, Repairs or Other Obligations. Landlord shall not be
required to furnish any services or facilities or to make or pay for any Repairs or alterations of
any kind or nature in, about or to the Premises or any improvements now existing or hereafter
erected thereon whatsoever, for any reason during the Tenn. All responsibilities and obligations
which might otherwise be the responsibility of Landlord under any Applicable Laws now or
hereafter existing with respect to the Premises, including any responsibilities and obligations of
Landlord effective after the Commencement Date contained in the Permitted Exceptions, any
development agreements, City agreements, agreements with adjoining property owners, or other
agreements pertaining to such matters, are hereby assigned to and assumed unconditionally by
Tenant for the Term, and Tenant shall fully perform such responsibilities and obligations in
accordance with the terms hereof. Tenant agrees not to amend any of such agreements in any
manner that would (i) apply after the Expiration Date or (ii) materially and adversely affect the
value, utility or useful life of the Premises, in each case without Landlord's prior written consent,
which shall not be unreasonably withheld. During the Term, Landlord shall have no right or
obligation with respect to any matter described in this Article, unless an Event of Default by
Tenant (as described in Article 11 hereof) with respect to such matter has occurred and is
continuing, in which case Landlord shall have the right, but not the obligation, to perform such
responsibilities and obligations, including Repairs not made by Tenant. If Landlord makes such
Repairs in accordance with the preceding sentence, Tenant shall reimburse Landlord therefor
within thirty (30) days after written demand, with interest at the Default Rate from the date
incurred until repaid.
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ARTICLE 9
COMPLIANCE WITH APPLICABLE LAWS
9.1 Tenant Obbizations, Tenant at its sole cost and expense throughout the Term shall
comply or cause compliance with and remove and cure any violation of the Permitted Exceptions
and any and all Applicable Laws. "Applicable Laws" shall mean all applicable laws, rules,
orders, ordinances, regulations and other requirements, present or future, made by any applicable
public authority.
9.2 Contesting Laws. As long as no Event of Default exists, upon prior written notice
to Landlord and any Mortgagee, Tenant, at its sole cost and expense, shall have the right to
contest expeditiously and in good faith the validity or application of any Applicable Laws in the
name of Tenant or Landlord, or any of said parties, by appropriate legal proceedings diligently
conducted, but only (a) if compliance therewith pending the prosecution of any such proceeding
may legally be delayed without exposing the Premises to a material risk of forfeiture, (b) if the
failure to so comply will not subject Landlord, Tenant, or Mortgagee to any liability, civil,
administrative or criminal, for failure to so comply therewith until the final determination of such
proceeding, (c) if Tenant prosecutes the contest with due diligence, in compliance with all
Applicable Laws and in good faith, (d) if Tenant agrees to indemnify, defend and hold harmless
Landlord and the Premises from any charge, liability or expense incurred by them in connection
with such contest, and (e) if Tenant posts a bond or other collateral reasonably acceptable to
Landlord and Mortgagee in the amount of such lien, charge, or liability which shall be applied to
the payment thereof if Tenant has not paid the lien, charge or liability upon the end of the
contest.
If necessary or proper to permit Tenant to so contest the validity or application of any
such Applicable Laws, Landlord shall execute and deliver any appropriate papers or other
documents to join in such contest; provided, however, that Tenant shall reimburse Landlord for
all of Landlord's reasonable out-of-pocket expenses in connection therewith, and provided that
Landlord shall not be required to execute any document or consent to any proceeding which
would result in the imposition of any cost, charge, expense, penalty or liability on Landlord or
Mortgagee or the Premises, except on terms' reasonably acceptable to Landlord.
9.3 City Relationship. The parties agree that due to Tenant's relationship with the
City, the Tenant shall continue to solely maintain the relationship with the City with respect to
the Premises to the fullest extent possible, Accordingly, when Landlord receives any type of
notice from the City relating to the Premises, Landlord shall, use reasonable efforts, within
twenty-four (24) hours thereafter, to transmit a copy of such notice to Tenant. Landlord agrees
it will not communicate with the City regarding any issue relating to the Premises without giving
Tenant (i) at least two (2) business days advance notice and (ii) the opportunity to join with
Landlord in any such communication(s). Landlord agrees it will cooperate with Tenant in any
dealings with the City,
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ARTICLE 10
MECHANIC'S LIENS
10.1 Tenant Obligations. Tenant shall not, directly or indirectly, create or permit to be
created any lien, levy or encumbrance on any of the Premises or on any Rent or any other sums
payable by Tenant under this Lease, other than any mortgage, lien, encumbrance or other charge
created by or resulting solely from any act or omission of Landlord. If any such lien, levy or
encumbrance shall at any time be filed against the Premises, or any portion thereof, Tenant shall,
within thirty (30) days after the date of filing the same, cause such lien, levy or encumbrance to
be (i) discharged of record or (ii) insured or bonded over in a manner which is reasonably
acceptable to Landlord and any Mortgagee. If Tenant shall fail to discharge such lien, levy or
encumbrance or to bond or insure over the same within such period, Landlord shall send Tenant
written notice of such failure, and if Tenant fails to cure such default within ten (10) days after
receipt of such notice, then Landlord may, but shall not be obligated to, discharge the same by
paying to the claimant the amount claimed to be due or by procuring the discharge of such lien as
to the Premises by deposit of a cash sum or a bond or other security, or in such other manner as
is now or may in the future be provided by present or future law for the discharge of such lien as
a lien against the Premises. Any amount paid by Landlord, together with all reasonable costs,
fees and expenses in connection therewith (including reasonable attorneys' fees), together with
interest thereon at the Default Rate, from the date paid by Landlord shall be repaid by Tenant to
Landlord within ten (10) days after written demand therefor. NOTICE IS HEREBY GIVEN
THAT LANDLORD SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR
MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT OR TO ANYONE
HOLDING OR OCCUPYING ANY OF PREMISES THROUGH OR UNDER TENANT, AND
THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND
TO ANY OF THE PREMISES. LANDLORD MAY AT ANY TIME, AND AT LANDLORD'S
REQUEST TENANT SHALL PROMPTLY, POST ANY NOTICES ON THE PREMISES
REGARDING SUCH NON -LIABILITY OF LANDLORD, ADDITIONALLY, LANDLORD
SHALL HAVE THE RIGHT TO RECORD A NOTICE OF NON -RESPONSIBILITY (OR
SUCH OTHER SIMILAR DOCUMENT) IN THE OFFICIAL RECORDS OF THE COUNTY
WHERE THE PREMISES ARE LOCATED, REGARDING LANDLORD'S NON -LIABILITY
FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO
TENANT OR TO ANYONE HOLDING OR OCCUPYING ANY OF THE PREMISES
THROUGH OR UNDER TENANT.
ARTICLE 11
DEFAULTS OF TENANT
11.1 Event of Default. The occurrence of any of the following events shall constitute
an "Event of Default":
(a) Tenant shall fail to make any payment when due of Monthly Rent, Additional
Rent or other sums required to be paid by Tenant hereunder and such failure continues for ten
(10) days after the date such payment was due;
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(b) If default shall be made by Tenant in keeping, observing or performing any of the
terms contained in this Lease, other than those specific obligations referred to in any other
Subsection of this Article 11, and such default shall continue for a period of thirty (30) days after
written notice thereof given by Landlord to Tenant, except in connection with a default which
cannot, with due diligence and in good faith, reasonably be cured within said thirty (30) day
period, the cure period shall be extended for such time as shall reasonably be required for cure so
long as Tenant proceeds with due diligence and in good faith to complete the cure thereof, but in
any event said cure period shall not be extended for a period longer than one hundred eighty
(180) days from the date of Landlord's notice of default;
(c) If (i) Tenant shall make any assignment for the benefit of creditors; (ii) a
voluntary petition is filed by Tenant under any law having for its purpose the adjudication of
Tenant a debtor or bankrupt or insolvent, or Tenant be the subject of an involuntary petition in
bankruptcy (and such involuntary petition is not discharged within sixty (60) days after filing);
(iii) a receiver be appointed (and not discharged, within sixty (60) days after such appointment)
for substantially all of the property of Tenant at the Premises or otherwise; (iv) any department
of the State of Minnesota or the Federal government or court or administrative agency, or any
officer thereof duly authorized, shall take possession of substantially all of the business or
property of Tenant at the Premises or otherwise (and not relinquish to Tenant said possession
within sixty (60) days); or (v) Tenant is, or declares itself to be, unable to pay its debts as they
become due; and/or
(d) If any material warranty or representation of Tenant made in this Lease and/or
any certificate required to be delivered under the Lease shall have been incorrect in a material
respect when made and remains material when discovered, and such incorrectness shall continue
unremedied for thirty (30) business days after receipt by the Tenant of written notice from the
Landlord, which notice describes such incorrectness in reasonable detail, except in the event of
any incorrectness which cannot, with due diligence and in good faith, be remedied within said
thirty (30) day period, the cure period shall be extended for such time as shall reasonably be
required for a cure so long as Tenant proceeds with due diligence and in good faith to complete
the cure thereof, but in any event said cure period shall not be extended for a period longer than
one hundred eighty (180) days from the date of Landlord's notice of default.
11.2 Remedies. If an Event of Default occurs, Landlord shall have the rights and
remedies hereinafter set forth herein, together with all other rights and remedies available at law
or in equity, each of which shall be distinct, separate and cumulative, may be exercised in any
order, and the exercise (or attempt to exercise one remedy) is not a waiver of any other remedy:
(a) Subject to Applicable Laws, Landlord may terminate Tenant's right to possess the
Premises without terminating this Lease by giving written notice to Tenant that Tenant's right of
possession shall end on the date stated in such notice, whereupon Tenant's right to possess the
Premises or any part thereof shall cease on the date stated in such notice. Landlord may, at
Landlord's option, enter into the Premises and take and hold possession thereof, without such
entry into possession terminating this Lease constituting an acceptance of surrender, or releasing
Tenant in whole or in part from Tenant's obligation to pay all amounts hereunder for the full
stated Term. Upon such reentry, Landlord may remove all persons and property from the
Premises and such property may be removed and stored in the manner required by Applicable
15
Laws, at the cost of and for the account of Tenant, without Landlord becoming liable for any loss
or damage which may be occasioned thereby. Such reentry may be conducted in any manner
allowed under Applicable Laws. Upon and after entry into possession without termination of the
Lease, Landlord may, but will not be required to, re -let the Premises, or any part thereof, to
anyone other than the Tenant, for such time and upon such terms as Landlord, will determine.
Whether or not Landlord re enters the Leased Premises, upon the election by Landlord to
terminate Tenant's right to possession, Tenant will be liable to Landlord as follows:
(i) For all attorneys' fees incurred by Landlord by reason of Tenant's Default
or in connection with exercising any remedy hereunder;
(ii) For the unpaid installments of Monthly Rent, Additional Rent, or other
unpaid sums which were due prior to such termination of right to
possession, including interest, which sums will be payable immediately;
(iii) For the installments of Monthly Rent, Additional Rent, and other sums
falling due pursuant to the provisions of this Lease for the periods after
termination of Tenant's right to possession during which the Premises
remain vacant, including interest, which sums will be payable as they
become due hereunder;
(iv) For all expenses incurred in releasing the Premises including, without
limitation, costs for leasing commissions, remodeling and fixturing, which
will be payable by Tenant as they are incurred by Landlord; and
(v) While the Premises are subject to any new lease or leases for the amount
by which the monthly installments payable under such new lease or leases
is less than the Monthly Rent and Additional Rent payable pursuant to this
Lease, which deficiencies will be payable monthly.
(b) Notwithstanding Landlord's initial election to terminate Tenant's right to
possession only, Landlord, at any time thereafter, may elect to terminate this Lease, and
Landlord may, in addition to other remedies available at law or in equity, recover from Tenant,
and Tenant agrees to pay, all direct, indirect and consequential damages suffered or incurred by
Landlord allowed by law by reason of the Event of Default, plus all expenses incurred by
Landlord as a result of the Event of Default including, without limitation, leasing commissions,
Tenant Improvement costs and attorneys' fees. Tenant acknowledges that as part of such claim,
Landlord will seek to recover from Tenant all Rent and other amounts which otherwise would
have been payable from the date of the termination of the Lease through the expiration of the
Tenn, subject to such adjustments and deductions as required by law. Landlord acknowledges
that if Landlord elects to terminate the Lease pursuant to this Section 11.2(b), then Landlord will
be obligated to use reasonable efforts to mitigate any damages suffered by Landlord which result
from the Event of Default.
Such amounts will be due to Landlord at the time Landlord makes said election.
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(c) Landlord may terminate this Lease with respect to any or all of the Premises, and
no agreement accepting a surrender of any or all of the Premises shall be valid unless the same
be made in writing and executed by Landlord.
(d) Landlord may enforce the provisions of this Lease and may enforce and protect
the rights of Landlord hereunder by a suit or suits in equity or at law for the specific performance
of any covenant or agreement contained herein, and for the enforcement of any other appropriate
legal or equitable remedy, including, without limitation, injunctive relief, and for recovery of all
monies due or to become due from Tenant under any of the provisions of this Lease.
(e) Landlord may perform, at Tenant's expense, the covenants of Tenant which have
given rise to the Event of Default.
(f) Landlord may demand that Tenant, and Tenant shall upon the written demand of
Landlord, return the Premises promptly to Landlord in the manner and condition required by this
Lease, and Landlord shall not be liable for the reimbursement of Tenant for any costs and
expenses incurred by Tenant in connection therewith.
(g) Landlord may exercise any other right or remedy that may be available to it under
Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to
enforce the terms hereof or to recover damages for the breach hereof. Separate suits may be
brought to collect any such damages for any period or periods with respect to which Monthly
Rent shall have accrued, and such suits shall not in any manner prejudice Landlord's right to
collect any such damages for any subsequent period, or Landlord may defer any such suit until
after the expiration of the Term or any extension or renewal thereof, in which event such suit
shall be deemed not to have accrued until the expiration of the Term, as extended or renewed.
(h) Except as specifically provided herein, Tenant shall be liable for any and all
unpaid Rent due hereunder before, after or during the exercise of any of the foregoing remedies,
including all reasonable legal fees and other costs and expenses incurred by Landlord and
Mortgagee by reason of the occurrence of any Event of Default or the exercise of Landlord's
remedies with respect thereto, and including all costs and expenses incurred in connection with
the return of the Premises in the manner and condition required by this Lease.
11.3 Remedies Cumulative: No Waiver: Consents. To the extent permitted by, and
subject to the mandatory requirements of, Applicable Laws, each and every right, power and
remedy herein specifically granted to Landlord in this Lease shall be cumulative and shall be in
addition to every other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute, and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to time and as often
and in such order as may be deemed expedient by Landlord, and the exercise or the beginning of
the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise
at the same time or thereafter any right, power or remedy. No delay or omission by Landlord in
the exercise of any right, power or remedy or in the pursuit of any remedy shall impair any such
right, power or remedy or be construed to be a waiver of any default on the part of Tenant or to
be an acquiescence therein. Landlord's consent to any request made by Tenant shall not be
deemed to constitute or preclude the necessity for obtaining Landlord's consent, in the future, to
17
all similar requests. No express or implied waiver by Landlord of any Event of Default shall in
any way be, or be construed to be, a waiver of any future or subsequent Event of Default.
11.4 Tenant's Liability. If Landlord terminates Tenant's right to possess the Premises,
such termination of possession shall not release Tenant, in whole or in part, from Tenant's
obligation to pay the Rent and other amounts due hereunder for the full Term, as and when the
same becomes due and payable, and Landlord shall have the right, from time to time, to recover
from Tenant, and Tenant shall remain liable for, all Rent and any other sums due and payable to
Landlord during the period from the date of such notice of termination of possession to the stated
end of the Term, together with Landlord's reasonable attorneys' fees in enforcing Tenant's
obligations and Landlord's rights under this Lease. Also, in any such case, Landlord may
decorate and make repairs, alterations and additions in or to the Premises to the extent
reasonably' necessary, and in connection therewith, to the extent allowed by Applicable Laws,
Landlord may change the locks to the Premises and Tenant shall, within 30 days after written
demand, pay the cost thereof together with Landlord's reasonable expenses of reletting, together
with interest thereon calculated at the Default Rate accruing from the date the same is payable
until the same is paid. Landlord shall collect the rents from any such reletting and apply the
same first to the payment of the expense of re-entry, repair and alterations and the expenses of
reletting; including broker's commissions paid to unaffiliated third parties, and second to the
payment of Rent and other charges herein provided to be paid by Tenant, and any excess or
residue shall operate only as an offsetting credit against the total amount of Rent due and owing
from Tenant, but the use of such offsetting credit to reduce the amount of Rent due Landlord, if
any, shall not be deemed to give Tenant any right, title or interest in or to such excess or residue
and any such excess or residue shall belong to Landlord solely. In no event shall Tenant be
entitled to a credit on its indebtedness to Landlord in excess of the aggregate which would have
been paid by Tenant for the period for which the credit to Tenant is being determined had no
Event of Default occurred. No such re-entry, repossession, decorations, repairs, alterations,
additions or reletting shall be construed as an eviction or ouster of Tenant or as an election on
Landlord's part to terminate this Lease, unless a written notice of such intention is given to
Tenant, nor shall same operate to release Tenant, in whole or in part, from any of Tenant's
obligations hereunder, and Landlord may, at any time and from time to time, sue and recover
judgment for any deficiencies from time to time remaining after the application from time to
time of the proceeds of any such reletting. In no event shall Landlord be entitled to collect Rent
or other charges from Tenant prior to the date the same is due and payable under the terms of this
Lease.
11.5 Bankrn�tcy.
(a) In the event a petition is filed by or against Tenant under the federal bankruptcy
laws now in effect or as amended from time to time (the "Bankruptcy Code"), Tenant, as
debtor or debtor in possession, and any trustee who may be appointed (for purposes of this
Section, collectively "Tenant"), agrees to adequately protect the Landlord's interest in the
Premises by doing each of the following after the order for relief'. to timely perform each and
every obligation of Tenant under this Lease until such time as this Lease is either rejected or
assumed; (ii) to determine within sixty (60) days after filing of such petition, or within such
additional time as the bankruptcy court fixes, whether to assume or reject this Lease; (iii) to give
Landlord at least thirty (30) days prior written notice, unless a shorter notice period is agreed to
18
in writing by the parties, of any proceeding relating to any assumption or rejection of this Lease,
and (iv) to do all things of benefit to Landlord otherwise required by the Bankruptcy Code.
(b) If Tenant elects to reject this Lease subsequent to the filing of a petition under the
Bankruptcy Code, or if this Lease is otherwise rejected, Tenant shall immediately vacate and
surrender possession of the Premises.
(c) If Tenant elects to assume this Lease subsequent to the filing of a petition under
the Bankruptcy Code, Tenant agrees as follows unless the prior written consent of Landlord is
obtained: to cure each and every default for which cure is required for assumption under the
Bankruptcy Code within not more than ninety (90) days of assumption of this Lease; (ii) to
compensate Landlord for any loss resulting from any existing breach, including without
limitation, Landlord's reasonable costs, expenses and attorneys' fees incurred as a result of the
breach (but excluding any consequential damages), as determined by a court of competent
Jurisdiction, within ninety (90) days of assumption of this Lease; (iii) in the event of an existing
breach, to provide adequate assurance of Tenant's future performance, including without
limitation: the production to Landlord and Mortgagee of written documentation establishing to
the reasonable satisfaction of Landlord and any Mortgagee that Tenant has sufficient present and
anticipated financial ability to perform each and every obligation of Tenant under this Lease and
assurances, in form reasonably acceptable to Landlord, as may be required under any applicable
provisions of the Bankruptcy Code; (iv) the assumption will not breach any provision of this
Lease; and the assumption will be subject to all of the provisions of this Lease.
(d) If Tenant proposes to assume and assign this Lease pursuant to the provisions of
the Bankruptcy Code to any person or entity who shall have made a bona fide offer to accept an
assignment of this Lease on terms acceptable to Tenant ("Assignment Offer"), no later than
thirty (30) days after receipt by Tenant of the Assignment Offer, but in any event no later than
ten (10) days prior to the date that Tenant shall move for authority and approval to assume and
assign this Lease, Tenant shall provide Landlord with notice of such proposed assignment,
setting forth
(i) the name and address of the proposed assignee;
(ii) all the terms and conditions of such offer; and
(iii) adequate assurance to be provided to Landlord to assure the proposed
assignee's future performance under this Lease, including, without
limitation, the assurances referred to in any applicable provision of the
Bankruptcy Code,
whereupon, Landlord shall have the right and option, at any time prior to the entry of an order by
the Bankruptcy Court approving such proposed assignment, to give Tenant written notice of
Landlord's intent to accept an assignment of this Lease upon the same terms and conditions and
for the same consideration, if any, as the Assignment Offer, and upon the exercise of such
option, Tenant shall withdraw its motion to assume and assign and move to assume and assign
this Lease to the person or entity designated by Landlord.
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(e) If Tenant proposes to assume and assign this Lease pursuant to the provisions of
the Bankruptcy Code, the adequate assurance to be provided Landlord to assure the assignee's
future performance under this Lease shall include, without limitation:
(i) that assignee's use of the Premises will be in compliance with the terms of
this Lease; and
assurances, in form reasonably acceptable to Landlord, as to all matters
identified in any applicable provision of the Bankruptcy Code.
ARTICLE 12
DESTRUCTION AND RESTORATION
12.1 Restoration. Except as set forth in Section 12.2, Tenant covenants and agrees that
in case of damage to or destruction of the Building occurring during the Term by fire or
otherwise, Tenant shall promptly notify Landlord and Mortgagee and promptly restore, repair,
replace and rebuild the Building as nearly as possible to its condition immediately prior to such
damage or destruction and to the standards of first class manufacturing and warehouse buildings
of then equivalent class and age in the City, using new materials, with any Tenant requested
changes or alterations (subject to Article 18 hereof) or changes required by Applicable Laws.
Such restoration, repairs, replacements, rebuilding, changes and alterations, including the cost of
temporary repairs for the protection of the Building, or any portion thereof, pending completion
thereof are sometimes hereinafter referred to as the "Restoration". The Restoration shall be
carried on and completed in accordance with the provisions and conditions of this Section 12,1,
Article 18 hereof and all Applicable Laws. All insurance monies payable on account of such
damage or destruction shall be paid to Tenant to complete the Restoration, through a
commercially reasonable escrow arrangement by which the funds will be paid and disbursed by a
title insurance company. Notwithstanding anything to the contrary herein contained, if the
insurance monies shall be insufficient to pay the entire costs of the Restoration, Tenant shall pay
any deficiency equal to the reasonable estimate of the amount necessary to complete the
Restoration less the amount of the available insurance monies, including the amount of any
deductible. Tenant's rights to said insurance monies shall survive expiration of the Tenn.
12.2 Substantial Damage. Notwithstanding the provisions of Section 12.1, above:
(a) In the event of "Substantial Damage" (as herein defined and as determined
under paragraph of this Section) which occurs during the Term, Tenant shall have the options set
forth in Section 12.2.
(b) For purposes of this Lease, "Substantial Damage" shall mean destruction of the
Building or damage to the Building, or any portion or portions thereof, by fire or other casualty,
that is (i) of such a nature that the cost to complete the Restoration is reasonably estimated to
exceed 25% of the fair market value of the Building (assuming that the Building was in the
condition in which it is required to be maintained pursuant to this Lease) prior to the damage or
destruction ("Fair Market Value"), and (ii) in the reasonable good faith opinion of the Tenant,
the damage makes the Building unfit for Tenant's use and cannot be restored with due diligence
within one hundred eighty (180) days from the date of the casualty loss. Tenant will select an
20
architect/engineer reasonably acceptable to Landlord and Mortgagee, to determine within sixty
(60) days after the casualty loss, a reasonable estimate of the time to restore the damage and
whether the damage is Substantial Damage. If the architect/engineer makes a reasonable good
faith determination that in its opinion Substantial Damage to the Building has occurred, then
Tenant shall, within thirty (30) days after the architect/engineer provides notice of its
determination that Substantial Damage has occurred, give written notice to Landlord and
Mortgagee that Tenant has elected to either;
(i) Offer to purchase the Premises for a purchase price (the "Purchase
Price") equal to the sum of: (i) the Termination Value, as set forth on
Exhibit E attached hereto and made a part hereof, (ii) all unpaid Rent and
any other amounts owing under this Lease as of the date of such purchase,
and (iii) any prepayment penalty incurred by Landlord with respect to
prepayment of the Mortgage pursuant to the terms thereof; or
(ii) Cause Restoration of the Premises so that the Premises has a value, utility,
and remaining useful life as nearly as reasonably practicable equal to the
value, utility, and remaining useful life of the Premises immediately prior
to the occurrence of the Substantial Damage (assuming that the Premises
were in the condition in which they were required to be maintained
pursuant to this Lease). Such Restoration will be performed in accordance
with plans and specifications and by a contractor reasonably acceptable to
Landlord and will be completed, subject to force majeure, within 24
months from the date of the damage, or 6 months prior to expiration of the
Term, whichever is earlier. If Restoration may not reasonably be expected
to be completed within such time frame, Tenant may not elect this option.
(c) If Tenant fails to make an election under Section 12.2(b) in the manner set forth
above, such failure shall be deemed Tenant's election to restore the Premises pursuant to
Section 12.2(b)(ii). If Tenant elects to offer to purchase the Premises for the Purchase Price
pursuant to Section 12.2(b)(i) above, then Landlord may accept such offer or reject such offer
(with Mortgagee's prior written approval). Landlord shall exercise this right, if at all, within
ninety (90) days from the date Landlord receives notice of Tenant's election to purchase. If
Landlord rejects Tenant's offer, Tenant may, within thirty (30) days after Landlord rejects the
offer, elect the option set forth in Section 12.2(b)(ii) above and in such case Tenant's offer to
purchase the Premises for the Purchase Price shall be deemed withdrawn and of no further force
and effect. If Tenant does not elect the option set forth in Section 12.2(b)(ii) within such thirty
(30)-day period, then this Lease shall terminate on the first day of the next month which is at
least thirty (30) days after Landlord rejects the offer and Tenant shall vacate the Premises, and
return it in the condition required by the Lease, subject to the casualty, by said date. If Landlord
rejects Tenant's offer to purchase pursuant to this Section 12.2(c), and Tenant elects to terminate
this Lease pursuant to this Section 12.2(c), then, notwithstanding any provision of this Lease to
the contrary, all insurance proceeds payable due to the Substantial Damage (plus the amount of
any deductible which will be payable by Tenant), shall be paid to Mortgagee and Landlord, in
that order. If this Lease is so terminated, Tenant shall pay to Landlord all Rent due as of the date
that the termination is effective, plus any prepayment penalty incurred by Landlord with respect
to prepayment of the Mortgage pursuant to the terms thereof. If Tenant's offer to purchase is
W
accepted, closing will be on a date selected by Landlord no less than thirty (30) days or more
than sixty (60) days from Landlord's acceptance. The purchase by Tenant shall be closed in
accordance with the purchase procedure set forth in Article 21. Notwithstanding the foregoing,
no rejection of Tenant's offer (or deemed offer) to purchase the Premises shall be effective
unless such offer shall also be rejected by Mortgagee. If Landlord has not rejected or accepted
Tenant's offer by the eightieth (80th) day after Tenant's offer, Tenant may submit a second
notice to Landlord and Mortgagee specifying, in bold face, that Landlord's silence at the end of
the ninety (90) day period shall be deemed to be acceptance of Tenant's offer.
12.3 Abatement of Rent. Rent for the portion of the Premises rendered untenantable
by casualty shall be abated on a reasonable basis from the date of casualty until the completion
of the Restoration, but only to the extent that, and for the period that Landlord is paid an amount
equal to the Monthly Rent and Additional Rent otherwise payable hereunder by Tenant's "Loss
of Rents Insurance" maintained as provided in Section 6.] (a) above. If any portion of the
Monthly Rent or Additional Rent required by the terms of this Lease is not paid by such Loss of
Rents Insurance, then Tenant will remain liable and obligated to make such payments to
Landlord, notwithstanding the damage, destruction or construction of the Restoration.
12.4 Negotiations. In the event of casualty, damage or destruction to the Premises
during the Term, Landlord and its Mortgagee shall control all negotiations with such insurance
carrier at Landlord's sole cost and expense; provided, however, that Tenant may participate in all
such negotiations, including being present at all meetings and participating in any conference
calls. The parties will keep each other fully advised from time to time, and upon such party's
request, of the status of such negotiations. In the event an Event of Default exists, or events exist
that would constitute an Event of Default with notice, the passage of time or both, Tenant shall
have no rights under this paragraph.
ARTICLE 13
CONDEMNATION
13.1 Restoration.
(a) Except in the case of a Substantial Taking as set forth in Section 13.2, Tenant
covenants and agrees that in the case of a portion of the Premises being taken or condemned as
the result of the exercise of the power of eminent domain or by purchase in lieu of the exercise of
the power of eminent domain ("Taking") occurring after the Commencement Date and before
the Expiration Date, Tenant shall restore, repair, replace and rebuild the Premises as nearly as
possible to its condition immediately prior to such Taking to the standards of equivalent
buildings in the City, with such Tenant requested changes or alterations (made in conformity
with Article 18 hereof) as may be reasonably acceptable to Landlord (to the extent that Landlord
is entitled to approve such changes or alterations) or required by Applicable Laws. Such
Restoration, as defined in Section 12.1, including the cost of temporary repairs for the protection
of the Premises, or any portion thereof, shall be carried on and completed in accordance with the
provisions and conditions of this Section and Article 18 hereof and Applicable Laws. The
Condemnation Award shall be paid to Landlord or, if required by the Mortgagee, to the
Mortgagee, to be held in accordance with the terms of the Mortgage. Provided no Event of
Default exists, the Condemnation Award shall be released by the Landlord or Mortgagee, as
22
applicable, and applied to the payment of the cost of the Restoration, in accordance with the
terms of Exhibit C attached hereto and incorporated herein (which may not be modified or
amended without the prior written consent of Tenant).
(b) Notwithstanding anything to the contrary herein contained, if the condemnation
proceeds shall be insufficient to pay the entire cost of the Restoration, Tenant shall pay any
deficiency. Upon completion of the Restoration, so long as this Lease has not been terminated
by Tenant pursuant to Section 13.2, then Tenant shall be entitled to that portion of the proceeds
from a Taking representing loss of use of the Property for the balance of the Term. Any other
remaining proceeds from a Taking shall belong to Landlord. In the event of a Restoration by
Tenant, Tenant's rights to said condemnation proceeds shall survive expiration of the Term.
(c) Tenant shall have the limited right to seek in the Taking proceedings, and to
receive, any award which may be made for damages to or compensation for Tenant's trade
fixtures, equipment, personal property (none of which are a part of the Premises covered by this
Lease) and for Tenant's relocation costs in connection therewith.
(d) Tenant's right of possession under this Lease shall, upon taking of possession by
the condemning authority, terminate as to the portion of the Premises so taken, but there shall be
no diminution or abatement in Monthly Rent or in Tenant's other obligations hereunder unless
Landlord receives such Rent from rent -loss insurance purchased by Tenant.
13.2 Substantial Taking. Notwithstanding the provisions of Section 13.1, above:
(a) In the event of a "Substantial Taking" (as herein defined and as determined
under paragraph of this Section) which occurs during the Term, Tenant shall have the options set
forth in Section 13.2.
(b) For purposes of this Lease, "Substantial Taking" shall mean a Taking that is at
least 25% of the fair market value of the Premises prior to the Taking (assuming that the
Premises were in the condition in which they were required to be maintained pursuant to this
Lease), and that, in the reasonable good faith opinion of the Tenant, makes the Premises unfit for
Tenant's use and cannot be restored with due diligence within one hundred eighty (180) days
from the date of the architect/engineer's determination, as set forth below. Tenant will select an
architect/engineer reasonably acceptable to Landlord and Mortgagee to determine within sixty
(60) days after the Taking a reasonable estimate of the time to restore the Taking and whether the
Taking is a Substantial Taking. If the architect/engineer makes a reasonable good faith
determination that in its opinion a Substantial Taking of the Premises has occurred, then Tenant
shall within thirty (30) days after the architect/engineer provides notice of its determination that a
Substantial Taking has occurred, give written notice to Landlord and Mortgagee that Tenant has
elected to either:
(i) Offer to purchase the Premises for a purchase price (the "Purchase
Price") equal to the sum of: (i) the Termination Value, as set forth on
Exhibit E attached hereto and made a part hereof, (ii) all unpaid Rent and
any other amounts owing under this Lease as of the date of such purchase,
23
and (iii) any prepayment penalty incurred by Landlord with respect to
prepayment of the Mortgage pursuant to the terms thereof, or
(ii) Cause Restoration of the Premises so that the Premises has a value, utility,
and remaining useful life as nearly as reasonably practicable equal to the
value, utility, and remaining useful life of the Premises immediately prior
to the occurrence of the Substantial Taking (assuming that the Premises
were in the condition in which they were required to be maintained
pursuant to this Lease). Such Restoration will be performed in accordance
with plans and specifications and a contractor reasonably acceptable to
Landlord and will be completed, subject to force majeure, within 24
months from the date of condemnation, or 6 months prior to expiration of
the Term, whichever is earlier. If Restoration may not reasonably be
expected to be completed within such time frame, Tenant may not elect
this option.
(c) If Tenant fails to make an election under Section 112(b)(ii) in the manner set
forth above, such failure shall be deemed Tenant's election to restore the Premises pursuant to
Section 13.2(b)(ii). If Tenant elects to offer to purchase the Premises pursuant to
Section 13.2(b)(i) above, then Landlord may accept such offer or reject such offer (with
Mortgagee's prior written approval). Landlord shall exercise this right, if at all, within ninety
(90) days from the date Landlord receives notice of Tenant's election to purchase. If Landlord
rejects Tenant's offer, Tenant may, within thirty (30) days after Landlord rejects the offer, elect
the option set forth in Section 13.2(b)(ii) above and in such case Tenant's offer to purchase the
Premises for the Purchase Price shall be deemed withdrawn and of no further force or effect. If
Tenant does not elect the option set forth in Section 13.2(b)(ii) within such thirty (30)-day
period, then this Lease shall terminate on the first day of the next month which is at least thirty
(30) days after Landlord rejects the offer and Tenant shall vacate the Premises, and return it in
the condition required by the Lease, subject to the Taking, by said date. If Landlord rejects
Tenant's offer to purchase pursuant to this Section 13.2(c), and Tenant elects to terminate this
Lease pursuant to this Section 13.2(c), then, notwithstanding any provision of this Lease to the
contrary, all condemnation proceeds payable due to the Substantial Taking shall be paid to
Mortgagee and Landlord, in that order. If this Lease is so terminated, Tenant shall pay to
Landlord all Rent due as of the date that the termination is effective, plus any prepayment
penalty incurred by Landlord with respect to prepayment of the Mortgage pursuant to the terms
thereof. If Tenant's offer to purchase is accepted, closing will be on a date selected by Landlord
no less than thirty (30) days or more than sixty (60) days from Landlord's acceptance. The
purchase by Tenant shall be closed in accordance with the purchase procedure set forth in Article
21. Notwithstanding the foregoing, no rejection of Tenant's offer (or deemed offer) to purchase
the Premises shall be effective unless such offer shall also be rejected by Mortgagee. If Landlord
has not rejected or accepted Tenant's offer by the eightieth (80th) day after Tenant's offer,
Tenant may submit a second notice to Landlord and Mortgagee specifying, in bold face, that
Landlord's silence at the end of the 90 day period shall be deemed to be acceptance of Tenant's
offer.
(d) Tenant shall have the limited right to seek in the Taking proceedings, and to
receive, any award which may be made for damages to or compensation for Tenant's trade
24
fixtures, equipment and personal property (which is not a pant of the Premises covered by this
Lease) and for Tenant's relocation costs in connection therewith.
(e) This Lease shall terminate upon taking of possession by the condemning authority
with respect to the portion of the Premises taken, and the Monthly Rent shall be equitably
adjusted based on the portion of the Premises taken. The parties agree to negotiate in good faith
regarding such adjustment.
13.3 Abatement of Rent. Rent shall be abated on a reasonable basis as to that portion
of the Premises rendered untenantable by a Taking.
13.4 Negotiations. In the event of a Taking, Landlord and its Mortgagee shall control
all negotiations with the condemning authority at Landlord's sole cost and expense; provided,
however, that Tenant may participate in all such negotiations, including being present at all
meetings and participating in any conference calls. The parties will keep each other fully
advised from time to time, and upon such party's request, of the status of such negotiations. In
the event an Event of Default exists, or events exist that would constitute an Event of Default
with notice, the passage of time or both, Tenant shall have no rights under this paragraph.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 Assignment and Subletting. Provided no Event of Default exists, Tenant, at any
time and from time to time during the Term, may: (i) assign this Lease to any affiliate or
successor by merger to Tenant with the consent of Landlord, which shall not be unreasonably
withheld, conditioned or delayed; or (ii) sublet the Premises or any part thereof for a period
which does extend beyond the date one day prior to the Expiration Date with the prior written
consent of Landlord, which consent will not be unreasonably withheld, conditioned or delayed.
Provided, however, that none of the foregoing nor the assumption of this Lease under Section
14.2 shall relieve Tenant from liability for performance of any covenant or obligation hereunder,
Tenant hereby confirming that it shall remain unconditionally and primarily liable of all of its
obligations hereunder, and provided further that Tenant shall provide Landlord and Mortgagee
with an executed copy of such documents effecting such assignment and subletting within thirty
(30) days thereafter, and that, in the case of a sublease, that any sublease will be subordinate to
this Lease. Notwithstanding the foregoing, Tenant shall not assign or sublet Tenant's interest in
this Lease to any entity or person which has ever filed and has pending a petition for bankruptcy
protection. Upon and during an Event of Default Landlord may collect rents directly from any
sublessee, which rents are irrevocably assigned to Landlord.
14.2 Assumption by Assignee, If Tenant shall assign this Lease or any interest under
it, the assignee shall expressly assume in writing by instrument reasonably satisfactory to
Landlord, all of the obligations of Tenant under this Lease. Any Assignee shall attorn to the
Landlord and to any New Landlord (as defined below), as provided in Article 15.
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ARTICLE 15
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
15.1 Subordination and Nondisturbance. This Lease is and shall be subject and
subordinate to the lien of any first priority Mortgage which now or at any time hereafter may be
placed upon the Premises, or any portion thereof or interest therein., and to any replacements,
renewals, amendments, modifications, extensions, assignments or refinancing of any of the
foregoing, and to each and every advance made under any Mortgage, unless the Mortgagee
requires in writing that this Lease be superior thereto. Tenant agrees at any time hereafter, and
from time to time within thirty (30) days after written demand of Landlord, to execute and
deliver to Landlord commercially reasonable documentation that may be reasonably required to
effect or confirm the subordination or superiority of this Lease to the lien of any such Mortgage.
It is agreed, nevertheless, that, so long as no Event of Default has occurred and is continuing,
neither Tenant's right to quiet enjoyment under this Lease, nor the right of Tenant to continue to
occupy the Premises and all portions thereof, and to conduct its business thereon in accordance
with the covenants, conditions, provisions, terms and agreements of this Lease, nor any other
rights of Tenant pursuant to this Lease, including without limitation, its rights to acquire the
Premises as provided in Article 21, its rights regarding insurance proceeds and condemnation
awards as provided in Articles 12 and 13, shall be interfered with or disturbed by Landlord or a
Mortgagee or anyone claiming by, through or under Landlord or a Mortgagee, and none of such
rights shall be terminated or otherwise affected by a foreclosure of a Mortgage. Any
subordination agreement or similar instrument, release or document shall expressly provide
language of nondisturbance so as to effectuate the provisions of this Section and the protection of
the aforesaid rights of Tenant. In addition, Landlord shall cause any Mortgagee currently
holding a Mortgage which is superior to this Lease, to agree in writing in a manner reasonably
satisfactory to Tenant not to interfere with or disturb Tenant's rights as aforesaid so long as no
Event of Default pursuant to which Landlord has rights to terminate this Lease or Tenant's
possession of the Premises is continuing. Any subordination agreement or similar instrument,
release or document shall also expressly include language whereby such Mortgagee, for itself
and its successors and assigns, and for any purchaser at a foreclosure sale under the Mortgage or
any transferee who acquires Landlord's interest in the Premises by deed in lieu of foreclosure or
otherwise (Mortgagee or such other transferee being termed herein the `New Landlord")
covenants that in the event such New Landlord succeeds to Landlord's interest in the Premises
provided no Event of Default exists, then this Lease shall continue in full force and effect, and
such New Landlord shall recognize this Lease and Tenant's rights hereunder, binding such New
Landlord to the performance of Landlord's obligations under this Lease based on occurrences
arising from and after the date such New Landlord becomes the Landlord under this Lease,
subject, however, to all limitation of the liability of the Landlord under this Lease and Tenant
shall attorn to Landlord in accordance with Section 15.2. The lien of any Mortgage shall not
cover Tenant's trade fixtures, equipment or other personal property of Tenant located in or on the
Premises. At Tenant's request, Landlord agrees to execute and deliver to Tenant's lender, from
time to time, a landlord's waiver, in form and substance reasonably acceptable to Landlord,
confirming that Landlord claims no lien, on Tenant's trade fixtures, equipment or personal
property.
15.2 Attornment. If a New Landlord shall succeed to the rights of Landlord under this
Lease or to ownership of the Premises, whether through foreclosure, or the delivery of a deed in
In
lieu thereof, then such New Landlord shall be bound by, and shall be deemed to have assumed,
all of Landlord's obligations hereunder based upon occurrences arising after said assumption and
Tenant shall attorn to and recognize such New Landlord as Tenant's landlord under this Lease.
Tenant shall execute and deliver a commercially reasonable instrument that such New Landlord
may reasonably request to evidence such attornment. Such New Landlord shall execute and
deliver any instrument that Tenant may reasonably request to evidence such assumption, subject
to all limitations of the Landlord's liability as set forth in Section 15.1 and elsewhere in this
Lease. Subject to the terms of Article 21 hereof, in the event of any other transfer of Landlord's
interest hereunder arising after said assumption, upon the written request of the transferee and
Landlord, such transferee shall be bound by, and shall be deemed to have assumed, all of
Landlord's obligations hereunder, and Tenant shall attom to and recognize such transferee as
Tenant's landlord under this Lease. Tenant shall execute and deliver any instrument that such
transferee and Landlord may reasonably request to evidence such attornment.
15.3 Landlord Financing; During Term. Tenant hereby consents to the mortgage lien
imposed against the Premises pursuant to the Mortgage. With respect to any refinancing of the
Mortgage or additional Landlord financing during the Term and any renewal thereof, Landlord
shall be free to encumber the Premises; provided that no Landlord financing adversely affects the
rights and privileges of Tenant under this Lease, or increases the nature, scope, or amount of any
obligations or liabilities (including any contingent liabilities) of Tenant in excess of those
existing on the date hereof. Tenant shall have no obligation to amend this Lease to facilitate
such financing (except, subject to the proviso in the immediately preceding sentence, to amend
the definitions of "Mortgage" and "Mortgagee" in the Lease to mean the documents
evidencing the new indebtedness and the holder of such indebtedness, respectively, and, in the
case of the Mortgage, to refer to sections therein); but shall execute and deliver a subordination
and attornment agreement to any lender and to Landlord if such lender and Landlord shall in turn
deliver a nondisturbance agreement to Tenant, in each case on commercially reasonable terms
and consistent with the provisions of this Article 15.
ARTICLE 16
SIGNS AND BUILDING IDENTIFICATION
16.1 Signs. Tenant may erect any signs on the exterior or interior of the Building or
elsewhere on the Premises, provided that such sign or signs (i) do not cause any structural
damage to the Building; (ii) have been approved by Landlord, such approval not to be
unreasonably withheld, conditioned or delayed, and (iii) do not violate Applicable Laws.
Landlord shall have no right to install, construct or place any signs on any portion of the
Premises; provided, however, that Landlord may place commercially reasonable "for sale" or
"for rent" signs on the Premises during the last six (6) months of the Term, so long as such signs
comply with Applicable Laws. On the Expiration Date, Tenant will, at Tenant's sole cost,
remove all of its signs from the Premises. Tenant shall repair any damage to the Premises caused
by removal of the signs, and restore the portion of the Premises affected by the removal of the
signs to a condition required by Landlord.
16.2 Premises Designations. From and after the date hereof until the designation
provisions of this Article are terminated as provided below, Landlord shall identify the Building
and the Premises as reasonably required by Tenant from time to time. Said identifications are
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referred to herein as the "Tenant Designations". If an Event of Default exists, then Tenant shall
have no right to new Tenant Designations. In the event of any claim by any third party against
the Landlord of infringement or similar improper use of the Tenant Designations, Tenant shall
indemnify, defend and hold the Landlord, harmless from and against any and all such claims
(except to the extent arising out of the negligence or willful misconduct of the Landlord).
Nothing herein shall require the Landlord to incur any expense or obligation in identifying the
Building and the Premises, and such expenses and obligations shall be the responsibility of
Tenant.
16.3 Discontinuance of Designations. Tenant may at any time during or after the Term
for any reason within its sole discretion require Landlord to discontinue the Tenant Designations
by giving written notice to Landlord requiring discontinuance of the Tenant Designations as of a
specified date, which date may not be less than ninety (90) days after the date of Tenant's notice.
16.4 Tenant Trade Name. Landlord acknowledges that no ownership or similar
interest, whether legal, beneficial or equitable, has been transferred to it with respect to the name
"Sportech, Inc.", the Tenant Designations, or any variations thereof.
ARTICLE 17
LANDLORD'S ACCESS
17.1 EntLy After Notice. Tenant agrees to permit Landlord to enter upon and inspect
the Premises at reasonable times during ordinary business hours, and upon not less than two
business days' prior notice. The aforesaid prior notice and time of entry shall not apply in the
event that, in Landlord's reasonable determination, an emergency condition exists at the
Premises which threatens immediately to create personal injury, criminal violation of law, or
property damage. Landlord may retain a set of keys for its use in entering into the Building in
the event of an emergency condition at the Premises. In all cases, the provisions of Section 17.3
shall apply.
17.2 Exhibiting the Premises. Landlord is hereby also given the right at reasonable
times during ordinary business hours, and upon prior notice of not less than one (1) business day,
to enter upon the Premises and to exhibit the same for the purpose of mortgaging, reletting
(during the last 12 months of the Term) or selling the same.
17.3 Accompanied by Tenant. In exercising its rights hereunder, Landlord shall refrain
from any acts which may materially and unreasonably interfere with Tenant's use or occupancy
of the Premises. Without limiting the generality of the foregoing, Landlord acknowledges that it
is necessary for Tenant to control access to the Premises in order to avoid unauthorized persons
from viewing Tenant's trade secrets, proprietary products, technology and/or processes.
Accordingly, except under emergency conditions while within the Premises, Landlord and its
representatives shall at all times be accompanied by a representative of Tenant, if Tenant makes
such representative available and shall comply with reasonable directions of such representative
relative to safety, security and protection of Tenant's trade secrets and other proprietary
information.
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17.4 Vacant Premises. The requirements set forth in this Article 17 that Landlord
notify Tenant in advance of its intentions to enter upon the Premises and, after such notification,
to enter upon the Premises only during ordinary business hours, shall not apply if Tenant has
vacated or abandoned the entire Premises leased by Tenant.
17.5 Right of Examination of Records. Upon reasonable request and with reasonable
written notice to Tenant, Landlord or Mortgagee shall have the right to examine Tenant's books
and records relating to the use, ownership (or former ownership) and/or operation and
management of the Premises. Such examination shall not unreasonably disturb Tenant's
operations in the Premises and shall include, without limitation, review of all building plans and
specifications, construction drawings (including site, architectural, structural, HVAC, plumbing
and electrical), general contractor disbursement request packages and schedule of values for all
trades, owner purchased items to be capitalized, fees, permit costs, and depreciation schedules,
all to the extent in Tenant's possession.
IT6 Tenant's Financial Statements. Tenant will provide Landlord a copy of Tenant's
annual financial statements for the immediately preceding year within thirty (30) days following
Landlord's request. If Tenant has otherwise had audited financial statements prepared for the
year in question, Landlord will be provided with a copy of the audited financial statements;
however, if Tenant has not caused its financial statements to be audited, the financial statements
will be certified as true and correct in all material respects by the Chief Financial Officer of
Tenant. Landlord will maintain all such financial statements on a confidential basis, and will not
release or disclose such financial statements, or the information contained therein, to any third
parties without Tenant's prior written approval; provided, however, that Landlord may disclose
such financial statements or the information contained therein in any proceeding seeking to
enforce the terms of this Lease, or to the Mortgagee, or to Landlord's lenders, prospective
purchasers, accountants and attorneys.
ARTICLE 18
CHANGES AND ALTERATIONS
18.1 Tenant Alterations Permitted. As long as no Event of Default has occurred and is
continuing, at its sole cost and expense, Tenant shall have the right from time to time to make
such changes and alterations, structural or otherwise, to the Land and Building as Tenant shall
deem necessary or desirable, including without limitation Building expansions, which changes
and alterations shall be made in all cases subject to the following conditions, which Tenant
covenants to observe and perform:
(a) No change or alteration shall be undertaken until Tenant shall have procured and
paid for all required permits and authorizations of the various govermnental bodies and
departments having jurisdiction of the Premises.
(b) No change or alteration shall be made, without Landlord's and Mortgagee's prior
written approval, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Tenant shall submit the construction drawings and all other plans and
specifications reasonably requested by Landlord for same to Landlord and Mortgagee. In all
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cases, Tenant will provide Landlord with copies of any field drawings for such alterations, as
well as any as -built final and completed plans certified by the inspecting architect upon
completion of the work.
(d) For any change or alteration costing less than $100,000, Landlord and Mortgagee
approval is not required, but Tenant will provide Landlord notice of such change or alteration.
(e) Tenant may not demolish any structural portion of the Building without the prior
approval of Landlord and Mortgagee.
(f) All work done in connection with any change or alteration shall be done with due
diligence in a good and workmanlike manner by reputable contractors in compliance with
Article 8 regarding repairs, Article 10 regarding mechanics' liens, and all Applicable Laws.
(g) Except for Tenant's personal property and trade fixtures, unless the same are
removed by Tenant at its sole cost and expense and any damage resulting to the Premises from
such installation and removal is corrected, shall at the expiration of the Term, become the
property of Landlord without payment therefor by Landlord, and shall be surrendered to
Landlord on the expiration of the Term. Nothing herein shall be construed to prohibit Tenant
from removing from the Premises, at the expiration of the Term, all of Tenant's personal
property, inventory, equipment and trade fixtures, at Tenant's sole expense, provided Tenant
repairs any damage to Premises caused by such removal.
(h) Wherever in this Article 18 Landlord is authorized to approve changes or
alterations, Landlord shall notify Tenant in writing, within thirty (30) days after the giving by
Tenant to Landlord of a request in writing that Landlord approve one or more changes or
alteration (which request shall be accompanied by schematic drawings or such other information
as shall be necessary or as required hereby in order for Landlord to determine the acceptability of
such request), of Landlord's approval or disapproval of the requested change or alteration. In the
event no such notice of approval or disapproval is given by Landlord within said thirty (30)-day
period, then Landlord shall be deemed to have approved said changes or alterations (and
Landlord shall obtain similar deemed approval rights from Mortgagee in the Mortgage loan
documents). In the event of Landlord's disapproval of the request, Landlord shall specify in its
notification the reasons for withholding its approval.
ARTICLE 19
SURRENDER
19,1 Surrender. Upon the termination of this Lease, whether by forfeiture, lapse of
time or otherwise, or upon termination of Tenant's right to possession of the Premises, Tenant
will at once surrender and deliver up the Premises, together with all improvements thereon
(excluding such improvements as may, pursuant to Section 18.1 hereof or other provisions of this
Lease, be removed from the Premises), to Landlord, in compliance with all Applicable Laws, and
in good condition and repair, except for reasonable wear and tear and except for damage by
casualty and condemnation, as may be expressly permitted if Landlord (with Mortgagee's prior
written approval) rejects an offer to purchase from Tenant, in accordance with Articles 12 and 13
hereof. Except to the extent permitted to be removed by Tenant under Article 18, all alterations,
MEO
additions and improvements, temporary or permanent, made in or upon the Premises by Tenant
shall become Landlord's, property, and shall become subject to the Mortgage, and shall remain
upon the Premises on any such termination without compensation, allowance or credit to Tenant.
Landlord shall have no right to require Tenant to remove any alterations, additions and
improvements, or to restore the Premises to their condition prior to the making of such
alterations, additions and improvements, except to the extent that Landlord acting in accordance
with Article 18 shall require such removal as a condition to its approval, or to the extent Tenant
has failed to get required approval from Landlord under Article 18,
19.2 Removal of Tenant's Property. Upon the termination of this Lease, whether by
forfeiture, lapse of time or otherwise, or upon termination of Tenant's right to possession of the
Premises, Tenant shall remove Tenant's personal property, moveable trade fixtures and
equipment; provided, however, that Tenant shall repair all injury or damage to the Premises
(such as damage to carpet, walls, elevators, and other items) damaged as a result of removing
and moving furniture, fixtures and equipment. Tenant shall have no obligation to repair or
restore conditions which result from normal wear and use, such as discoloration of walls where
pictures or other items are removed (excluding signs), minor holes in walls from the careful and
prudent removal of shelves or other customary office furnishings or equipment, or for similar
conditions resulting from normal wear and use. If Tenant does not remove Tenant's personal
property, moveable trade fixtures and equipment from the Premises prior to the expiration or
earlier termination of the Term, Landlord, may, at its option and at its cost, remove the same
(and repair any damage occasioned thereby) and dispose of the same in accordance with
Applicable Law.
19.3 Holding Over. If Tenant or any party claiming by, through or under Tenant has
not surrendered the Premises after the expiration or earlier termination of the Term as required
under this Lease, the same shall constitute a tenancy from month -to -month upon the same terms
as in this Lease (other than Monthly Rent requirements), and Tenant or anyone claiming through
or under Tenant shall pay a monthly amount as a charge for such occupancy equal to 125% of
the Rent payable by Tenant upon the Expiration Date. This Section 19.3 shall survive
termination or expiration of this Lease until the Premises have been surrendered in accordance
with Article 19.
ARTICLE 20
HAZARDOUS MATERIALS
20.1 Defined Terms:
(a) The following capitalized terms shall have the meanings set forth thereafter. The
term "Claim" shall mean and include any demand, cause of action, proceeding or suit (i)
resulting from a violation of Environmental Laws or for damages, losses, liabilities, injuries to
person or property, damages to natural resources, fines, penalties, interest, assessments,
disbursements or contributions under any Environmental Law; (ii) for the costs of site
investigations, feasibility studies, information requests, health or risk assessments or Response
actions required under any Environmental Law; (iii) resulting from the presence or Release of
Hazardous Materials on or affecting all or any portion of the Premises; (iv) resulting from
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Tenant's failure to comply fully with terms and conditions of this Article 20; or (v) for enforcing
this Article 20.
(b) "Environmental Law" shall mean and include all Federal, state and local
statutes, ordinances, regulations and rules relating to environmental quality or regulation, natural
resources, health, safety, contamination and cleanup, including, but not limited to: (i) the Federal
Water Pollution Control Act (33 U.S.C. Section 1317) as amended; (ii) the Federal Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) as amended; (iii) the
Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. Section
9601 et seq.) as amended; (iv) the Toxic Substance Control Act (15 U.S.C. Section 2601) as
amended; and (v) the Clean Air Act (42 U.S.C. Section 7401), as amended.
(c) "Hazardous Materials" shall mean and include the following, including
mixtures thereof: any hazardous or toxic or harmful or flammable substance, pollutant,
contaminant, waste, material, byproduct or chemical regulated under CERCLA or any other
Environmental Law; oil and petroleum products and natural gas, natural gas liquids, liquefied
natural gas and synthetic gas usable for fuel; pesticides regulated under F1FRA or any other
Environmental Law; asbestos and asbestos -containing materials, PCBs and other substances
regulated under TSCA or any other Environmental Law; source material, special nuclear
material, byproduct material and any other radioactive materials or radioactive wastes; and
chemicals subject to the OSHA Hazard Communication Standard, 29 C.F.R. 1910.1200 et seq.
(d) "Manage" or "Management" means to generate, manufacture, process, treat,
store, use, reuse, refine, recycle, reclaim, blend or burn for energy recovery, incinerate,
accumulate speculatively, transport, transfer, dispose of or abandon Hazardous Materials which
Management is regulated under Environmental Laws.
(e) "Release" or "Released" shall mean any actual or threatened spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing of Hazardous Materials into the environment, as "environment" is defined in
CERCLA, which Release is regulated under Environmental Laws.
(f) "Response" or "Respond" shall mean action required under and taken in
compliance with Environmental Laws to correct, remove, remediate, cleanup, prevent, mitigate,
monitor, evaluate, investigate, assess or abate the Release of a Hazardous Material.
20.2 Hazardous Materials. During the Term, Tenant shall (a) at its sole cost and
expense, comply and cause the Premises to comply with all Environmental Laws applicable to
Tenant and/or the Premises; (b) not conduct the Management of Hazardous Materials on the
Premises except in de minimus amounts relating to the customary operation and management of
office buildings, in compliance with Environmental Laws; (c) not cause or permit the Release of
any Hazardous Materials on, to or from the Premises except in de minimus amounts relating to
the customary operation and management of office buildings, in compliance with Environmental
Laws; and (d) at its sole cost and expense, arrange for the lawful transportation and disposal of
all Hazardous Materials from the Premises.
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20.3 Indemnification by Tenant. Tenant shall defend, indemnify and hold the
Landlord (and its members, managers, governors, employees, successors and assigns) harmless
from and against any and all losses, damages, costs, liabilities, expenses, attorneys fees, expert
costs, engineering costs, remediation costs or fines arising from or in any manner, directly or
indirectly, related to any breach by Tenant of any of its warranties, representations, covenants,
agreements or obligations set forth in this Article 20. The provisions of this Section 20.3 shall
survive termination or expiration of this Lease.
20.4 No Landlord Representations. Landlord makes no representations or warranties
with respect to the condition of the Land or the Premises, and Tenant hereby accepts the Land
and the Premises on an "as -is" basis, without any obligation of Landlord to take any action with
respect to compliance with Environmental Laws or Hazardous Materials, or Claims with respect
to the Land or the Premises.
20.5 Condition of Premises. The Premises is demised and let by Landlord "AS IS" in
(a) its present condition, subject to the rights of any parties in possession thereof (other than
rights, if any, granted by Landlord), the state of the title thereto existing at the time of the
commencement of the Term (other than defects in, or exceptions to, title, if any, created by
Landlord), any state of facts which an accurate surveyor physical inspection might show, all
Applicable Laws, any violations of Applicable Laws which may exist at the commencement of
the Term and the presence of any Hazardous Materials at or under the Premises or at or under
any property in the vicinity of the Premises. Tenant has occupied the Premises as owner
immediately prior to entering into this Lease, has inspected the Premises, is satisfied with the
results of its inspections of the Premises and is entering into this Lease solely on the basis of the
results of its own inspections and all risks incident to the matters discussed in the preceding
sentence.
ARTICLE 21
INTENTIONALLY DELETED
ARTICLE 22
MISCELLANEOUS PROVISIONS
22.1 Indemnification. Except if and to the extent that such party is released from
liability to the other party hereto pursuant to any waiver of claims or waiver of subrogation
contained in this Lease,
(a) Tenant hereby agrees to indemnify and hold Landlord harmless from and against
any and all costs, damages, claims, liabilities and expenses (including reasonable attorneys fees)
suffered by or claimed against Landlord, based on, or arising out of, or resulting from: (i)
Tenant's use and occupancy of the Premises or the business conducted by Tenant therein, (ii) any
negligent act or omission by Tenant or its employees, agents, or invitees, or (iii) any breach or
default by Tenant in the performance or observance of its covenants or obligations under this
Lease.
The indemnities set forth herein shall also inure to the benefit of Landlord and its
employees, agents, invitees, successors and assigns.
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22.2 Notices. Any notice, demand, consent, approval, request or other communication
or document to be provided hereunder to a party hereto shall be (a) in writing, and (b) deemed to
have been provided (i) (1) forty-eight (48) hours after being sent as certified or registered mail in
the United States mails, postage prepaid, return receipt requested, or (2) the next business day
after having been deposited (in time for delivery by such service on such business day) with
Federal Express or another reputable national courier service, or (3) upon having been sent by
email, so long as an original copy is also sent for next business day delivery pursuant to clause
(b)(i)(2) above, in each case to the address of such party set forth hereinbelow or to such other
address in the United States of America as such party may designate from time to time by notice
to each other party hereto, or (ii) upon being given by hand or other actual delivery to such party.
If this Lease provides for notices to the Tenant to be sent to more than one address, no such
notice shall be effective unless and until it is sent to each such address. The initial addresses of
the parties shall be as follows:
Landlord: Meritex-Elk River, LLC
Attn: Daniel K. Williams & Keith W. Baker
24 University Avenue NE, Suite 200
Minneapolis, MN 55413
Email: dwilliams@meritex.com & kbaker@meritex.com
With a copy to: David E. Kirkman
Ravich Meyer Kirkman McGrath Nauman & Tansey, P.A.
4545 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Email: dekirkman@ravichme, er.com
Tenant: Sportech, Inc.
10800 175`h Avenue NW
Elk River, MN 55330
Attn: Eric Stack, CFO
Email: estack@sportechinc.om
With a copy to: Jeffrey W. Jones
Fabyanske, Westra, Hart & Thomson, P.A.
333 South Seventh Street
Suite 2600
Minneapolis, MN 55402
Email: jjones@fwhtlaw.com
Each party shall have the right to provide a new or different addresses for notice or to change its
address and/or facsimile number to any other address and/or facsimile number within the United
States of America pursuant to notice given as set forth above.
22.3 Quiet Enjoyment. Landlord covenants and agrees that Tenant, upon paying the
Rent, and upon observing and keeping all of the material covenants, agreements and conditions
34
of this Lease on its part to be kept, observed and performed, shall lawfully and quietly hold,
occupy and enjoy the Premises (subject to the provisions of this Lease) during the Term without
hindrance or molestation from Landlord as long as no Event of Default exists.
22.4 Landlord Obligations.
(a) The term "Landlord", as used in this Lease, so far as covenants or obligations on
the part of Landlord are concerned, shall be limited to mean and include only the owner or
owners at the time in question of the Premises, and in the event of any transfer or conveyance of
the Premises in which the transferee/grantee agrees to assume and be liable for all obligations of
"Landlord" under this Lease, the then transferor/grantor shall be automatically freed and
relieved from and after the date of such transfer or conveyance of all liability as respects the
performance of any covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed, but the transferor/grantor shall remain liable for any obligations under
this Lease arising during such time such transferor/grantor held any interest in the Premises and
for any liabilities arising out of the acts or omissions of the transferor/grantor prior to such
transfer or conveyance. Such transferor/grantor shall be relieved of liability for any funds in
which Tenant has an interest which are in the hands of such transferor/grantor at the time of such
transfer if and to the extent said funds shall be turned over to the transferee/grantee, and any
amount then due and payable to Tenant by transferor/grantor under any provision of this Lease
shall be paid to Tenant as a condition to the transferor/grantor being relieved of liability for such
amount. It is intended that the covenants and obligations contained in this Lease on the part of
Landlord shall, subject to the aforesaid, be binding on Landlord, its successors and assigns, only
during and in respect of their respective successive periods of ownership, and such
transferee/grantee shall, by virtue of such transfer or conveyance, be deemed to have fully
assumed all responsibility and liability of Landlord as respects the performance of all covenants
and obligations on the part of Landlord contained in this Lease thereafter to be performed.
(b) Notwithstanding anything to the contrary contained in this Lease, it is expressly
understood and agreed by and between the parties hereto that the recourse of Tenant or its
successors or assigns against Landlord with respect to the alleged breach by, or on the part of,
Landlord of any representation, warranty, covenant, undertaking or agreement contained in this
Lease (collectively, "Landlord's Obligations") shall not extend to any partner, shareholder,
member, governor, manager, director, officer, member, or employee of Landlord or any of the
assets of any such persons or to any Mortgagee; and (ii) without limitation of the foregoing, no
personal liability or personal responsibility of any sort with respect to any of Landlord's
Obligations is assumed by, or shall at any time be asserted or enforceable against, any of said
persons or any of the assets of any of said persons, and Landlord's liability is limited to its
interest in the Premises (and the proceeds thereof); provided, however, notwithstanding anything
to the contrary set forth herein, any owner of any portion of the Premises shall be personally
liable for any obligations under this Lease arising during such transferor/grantor's period of
ownership and for any liabilities arising out of the acts or omissions of the transferor/grantor
prior to such transfer or conveyance up to the amount of the fair market value of the Premises at
the time of such transfer.
22.5 Estoppel Certificates. Tenant and Landlord shall, each without charge at any time
and from time to time, within twenty (20) days after written request by the other party, certify all
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of the following by written instrument, duly executed, acknowledged and delivered to any
Mortgagee, assignee of a Mortgagee, proposed Mortgagee, or to any purchaser or proposed
purchaser of the Premises, the Landlord entity, the Tenant entity, or any portion thereof or
interest therein, or to any proposed assignee of Tenant's interests hereunder, or any proposed
subtenant (all pursuant to this Lease):
(a) That this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect, as modified, and stating the
modifications).
(b) The dates to which the Monthly Rent has been paid in advance, if any.
(c) Whether or not there are then existing any breaches or defaults by such party or
the other party known by such party under any of the covenants, conditions, provisions, terms or
agreements of this Lease, and specifying such breach or default, if any, or any claims and set-
offs or defenses against the enforcement of any covenant, condition, provision, term or
agreement of this Lease upon the part of Landlord or Tenant, as the case may be, to be performed
or complied with (and, if so, specifying the same and the steps being taken to remedy the same).
(d) That Tenant has accepted the Premises and is in full and complete possession
thereof (in the case of Tenant).
(e) Such other statements or certificates as reasonably requested.
22.6 Memorandum of Lease. Upon the execution and delivery of this Lease, but
subject to the conditions below, the parties hereto agree to execute and deliver to each other a
memorandum of lease, in recordable form, setting forth the following:
(a) The date of this Lease.
(b) The parties to this Lease.
(c) The Term.
(d) The legal description of the Premises.
(e) Such other matters reasonably requested by Landlord or Tenant to be stated
therein, as required by law.
Notwithstanding the foregoing, Landlord will not be obligated to execute or record a
Memorandum of Lease unless and until Tenant: (i) duly executes and acknowledges a
Termination of the Memorandum of Lease, in recordable form, duly terminating and releasing
the Memorandum of Lease; and (ii) deposits the Termination with a title insurance company
designated by Landlord pursuant to the terms of a separate Escrow Instruction Letter in a form
reasonably acceptable to Landlord, which requires the title company to automatically release and
record the Termination within two (2) business days after being advised by Landlord that the
Lease has been terminated or the Term has expired.
36
In addition, upon the expiration, termination or cancellation of this Lease, by any means
whatsoever, Landlord may unilaterally execute and record a Termination of the Memorandum of
the Lease, which Termination will be effective immediately upon recording. Tenant hereby
grants Landlord authority to unilaterally execute such Termination if the Lease has been
terminated or expired.
22.7 Survival of Provisions. If any covenant, condition, provision, term or agreement
of this Lease shall, to any extent, be held invalid or unenforceable, the remaining covenants,
conditions, provisions, terms and agreements of this Lease shall not be affected thereby, but each
covenant, condition, provision, term or agreement of this Lease shall be valid and in force to the
fullest extent permitted by law.
22.8 Successors and Assigns. The covenants and agreements herein contained shall
bind and inure to the benefit of Landlord and its successors and assigns, and Tenant and its
permitted successors and assigns.
22.9 Captions. The caption of each article of this Lease is for convenience and
reference only and in no way defines, limits or describes the scope or intent of such article or of
this Lease.
22.10 Relationship of Parties. This Lease does not create the relationship of principal
and agent, or of lender and borrower, or of debtor and creditor, or of mortgagor and mortgagee,
or of partnership, joint venture, or of any association or relationship between Landlord and
Tenant, the sole relationship between Landlord and Tenant being that of landlord and tenant.
22.11 Agreements Between the Parties: Incorporation. All preliminary and
contemporaneous negotiations relating to this Lease are merged into and incorporated in this
Lease. This Lease shall not be modified or amended in any manner except by an instrument in
writing executed by the parties hereto.
22.12 Merger of Interests. There shall be no merger of this Lease or this leasehold
estate created by this Lease with any other estate or interest in the Premises or the Premises by
reason of the fact that the same person, firm, corporation or other entity may acquire, hold or
own directly or indirectly, this Lease or this Leasehold interest created by this Lease or any
interest therein, and any such other estate or interest in the Premises or any portion thereof. No
such merger shall occur unless and until all persons, firms, companies, corporations, partnerships
or other entities having an interest (including a security interest) in (1) this Lease or this
leasehold estate created hereby, including any Mortgagee, and (2) any such other estate or
interest in the Premises or any portion thereof, shall join in a written instrument expressly
effecting such merger and shall duly record the same.
22.13 Time of the Essence. Time is of the essence of this Lease, and all provisions
herein relating thereto shall be strictly construed.
22.14 Indemnity and Counsel. To the extent either party indemnifies and agrees to
defend the other under the terms of this Lease, the indemnifying party shall have the right to
37
select counsel to undertake such defense, which counsel shall be reasonably acceptable to the
indemnified party.
22.15 Counterparts. This Lease may be executed in counterparts, each of which when
taken together shall constitute one instrument.
22.16 Waivers. No waiver of any obligation or covenant contained in this Lease shall
be implied by any neglect of Landlord or Tenant to enforce any right, power, or remedy on
account of the violation of such condition, whether or not such violation be continued or repeated
subsequently, and no express waiver shall affect any condition other than the one specified in
such waiver and that one only for the time and in the manner specifically stated. Without
limiting the provisions of this Subsection, it is agreed that no receipt of monies by Landlord from
Tenant after the termination in any way of the Term or of Tenant's right of possession hereunder,
or after the giving of any notice, shall reinstate, continue or extend the Term or affect any notice
given to Tenant prior to the receipt of such monies.
22.17 Attorneys' Fees. Notwithstanding anything to the contrary contained in this
Lease, a party successful in establishing a breach by the other party or defending against an
alleged breach, whether in arbitration or litigation, shall be entitled to recover its reasonable legal
fees and costs and witness fees and costs.
22.18 Authority. Each party represents that all necessary action has been taken to
authorize and empower the individual(s) executing this Lease on such party's behalf to do so and
each party agrees, upon request of the other party, to provide evidence of such authority.
22.19 Commissions. Each party hereto hereby represents and warrants to the other that
in conmection with the leasing of the Premises hereunder, neither Tenant nor Landlord has been
represented by a broker, other than Judd Welliver of CBRE, who was retained and will be paid in
full by Tenant ("Tenant's Broker"). Landlord hereby agrees to indemnify and hold Tenant
harmless from and against any and all costs, expenses and liabilities for commissions and other
compensation claimed by any broker or agent retained by Landlord or its affiliates in connection
herewith. Tenant hereby agrees to indemnify and hold Landlord harmless from and against any
and all costs, expenses and liabilities for commissions and other compensation owed to Tenant's
Broker or claimed by any broker or agent retained by Tenant or its affiliates in connection
herewith.
22.20 Amendment. No modification, waiver or amendment of this Lease or of any of its
conditions or provisions shall be binding upon Landlord or Tenant unless in writing signed by
such party.
22.21 Delay in Performance. If any provision of this Lease requires a party to perform
an obligation within a specified period of time, or constitutes a default if not performed within a
specified period of time, and if said period of time may be extended if the obligation cannot with
due diligence and in good faith be performed within said period of time, such right to an
extended period of time shall not apply to any obligation to pay money or to any obligation
which is delayed by the failure to pay money.
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22.22 Governing Law. This Lease shall be governed by and construed in accordance
with the internal laws of the State of Minnesota.
ARTICLE 23
INTENTIONALLY DELETED
ARTICLE 24
LANDLORD DEFAULT AND BANKRUPTCY
24.1 Default by Landlord. If the Landlord fails to perform any of its obligations under
the provisions of the Lease, it shall be deemed to be a "Landlord Default". On the occurrence
of such Landlord Default, the Tenant shall not be entitled to exercise any right or remedy on
account thereof as hereinafter provided or which it may have under applicable law unless and
until the Tenant has given written notice thereof to the Landlord and the Landlord has failed
within thirty (30) days thereafter to cure such default; provided, however, that if such default is
not reasonably capable of being cured within such thirty (30) day period, it shall not be a
Landlord Default under the Lease if, within such thirty (30) day period, the Landlord commences
cure of such default and proceeds diligently thereafter to prosecute such cure, notwithstanding
that the completion thereof may require in excess of thirty (30) days. Anything contained in the
provisions of this Lease notwithstanding, no notice shall be required to be given, and the
Landlord shall not be entitled to any grace period in the case of any Landlord Default consisting
of the failure to pay any monetary obligation of the Landlord hereunder or under the Lease.
On the occurrence of any Landlord Default, the Tenant may, subject to the limitations in
Sections 2.4 and 2.5 above, do the following: (a) cure the Landlord Default and present to
Landlord for reimbursement invoices and other evidence of costs incurred by Tenant in
connection with such cure (which reimbursement shall be made by Landlord within ten (10) days
of said transmittal by Tenant), and (b) seek the judicial remedy of specific performance.
Notwithstanding the foregoing provisions of this Section 24.1, Tenant shall have no right to
offset or abate the Rent payable thereunder as a result of or relating to any such Landlord
Default. In no event will Landlord be liable to Tenant for any special or consequential damages,
nor for punitive damages, and Tenant waives and releases all claims to recover any such
damages.
24.2 Landlord acknowledges and irrevocably agrees that upon the filing by or against
Landlord of a petition under the Bankruptcy Code naming Landlord as debtor, Tenant shall be
entitled to all rights afforded a lessee under the Bankruptcy Code, including but not limited to
those rights set forth in Section 365(h) therein, and that in the event of such a bankruptcy filing,
this Lease shall constitute an "unexpired lease of real property", and all rights under this Lease of
any nature whatsoever shall be deemed to be and are, without limitation, "in or appurtenant to
the real property" as both such terms are used in Section 365(h) of the Bankruptcy Code.
ARTICLE 25
OPTIONS TO EXTEND
25.1 Extension Periods. Subject to the provisions hereinafter set forth in this Article
25 and provided no Event of Default exists, Landlord hereby grants Tenant the options to extend
the Term of the Lease with regard to all or any portion of the Building on the same terms,
conditions and provisions as contained herein, except as otherwise provided herein, (the
"Extension Options", or individually, an "Extension Option") for two (2) consecutive periods
of five (5) years each (collectively, the "Extension Periods", or individually, an "Extension
Period"). Tenant shall be under no obligation to extend the Term on all or any portion of the
Premises for any of the Extension Periods, The Term may not be extended for all or any portion
of the Premises for any Extension Period unless the Term had been so extended for the
immediately preceding Extension Period, if any. The first Extension Period shall commence on
the first day following the Expiration Date of the initial Term, and each subsequent Extension
Period shall commence on the first day following the Expiration Date of the previous Extension
Period.
25.2 Monthly Rent During: Extension Period.
(a) The Monthly Rent to be paid by Tenant during each Extension Period shall be
"Market Monthly Rent" (as defined below). Payment of all Additional Rent and other charges
required to be made by Tenant as provided in this Lease shall continue to be made during each
Extension Period. As used in this Lease, the term "Market Monthly Rent" means the greater of
either: (i) the Monthly Rent payable pursuant to this Lease for the last month of the original ten
(10) year Term, or the last month of the First Extension Period (as applicable); or (ii) annual net
rental rate per rentable square foot of the Premises that a willing tenant would pay, and a willing
landlord would accept in arms -length bona fide negotiations, for similar lease renewal space in
the Building or in comparable buildings located in the greater northwest Minneapolis, Minnesota
market area, if the same were leased to a single tenant for such Extension Period, taking into
account all pertinent factors.
(b) If Landlord and Tenant are unable to agree upon the Market Monthly Rent within
thirty (30) days following Tenant's Extension Notice, then the dispute shall proceed to
arbitration. The arbitration procedure shall commence when either party notifies the other party
of its election to submit the matter to arbitration. Not later than ten (10) days after the arbitration
procedure has commenced, each party shall submit to the other party a written statement of its
final position on the Market Monthly Rent for such Extension Period (the "Final Offers").
Within ten (10) days after the submission of the Final Offers, the parties shall jointly select as an
arbitrator a licensed real estate broker, who is an individual of substantial experience with
respect to office building ownership, leasing, management and marketing in the greater
northwest Minneapolis market area, which person shall not be regularly employed or have been
retained during the last two (2) years as a consultant by either party. If the parties cannot agree
on the arbitrator, the chief judge of the Sherburne County District Court shall, upon application
by either party, select an arbitrator having the above qualifications. Both parties shall have the
right to submit proposed names and criteria for the arbitrator to the chief judge. Neither party
may consult directly or indirectly with any arbitrator regarding the Market Monthly Rent prior to
appointment, or after appointment, outside the presence of the other party. The arbitrator
selected shall determine Market Monthly Rent pursuant to the criteria contained in this paragraph
and all relevant market factors. The decision of the arbitrator shall be final and binding on the
parties and may be entered in any court having jurisdiction thereof. The party whose Final Offer
was not selected by the arbitrator shall pay all costs of the arbitration.
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25.3 Exercise of Options. Each Extension Option shall each be exercisable in the
following manner: Tenant shall give Landlord written notice ("Tenant's Extension Notice") of
its intention to extend the Term for all or a specified portion of the Building ("Extension
Premises") no later than six (6) months prior to the applicable Expiration Date. If Tenant's
Extension Notice is not given within the time provided as aforesaid, the current Extension
Option and all subsequent Extension Options shall be deemed to have expired and been waived
by Tenant.
25.4 Improvements. Subject to Article 26, Landlord shall not be obligated to provide
any improvements to the Extension Premises or allowances to Tenant for any improvements to
the Extension Premises during any Extension Period. The provisions of this Lease shall govern
entirely any Extension Period, except the Monthly Rent shall be as set forth above.
25.5 Existing Default. Tenant may exercise Extension Options, and an exercise
thereof shall be effective, only if, at the times of Tenant's Extension Notice, and on the
commencement date of the applicable Extension Period, this Lease to Tenant is in full force and
effect and no Event of Default is then continuing.
25.6 Documentation. At the request of either party, Landlord and Tenant will execute
and deliver a reasonably appropriate document covering extension of the Term and the new
Monthly Rent.
25.7 No Separate Interest. The rights of Tenant under this Article 25 shall not be
severed from this Lease or separately sold, assigned or transferred, and shall expire on the
expiration or earlier termination of this Lease.
ARTICLE 26
OPTION TO EXPAND
26.1 Expansion Option. Subject to the provisions hereinafter set forth in this Article
26 and provided no Event of Default exists, Landlord hereby grants Tenant the one-time option
(the "Expansion Option") to expand the Building (and the Premises) by an additional area of up
to approximately 40,000 square feet (collectively, the "Expansion Area") on the Land (it being
understood and agreed that the actual size of the Expansion Area shall be subject to and
determined in accordance with any and all Applicable Laws). Tenant may exercise the
Expansion Option during the Term and any Extension Period by giving Landlord written notice
("Tenant's Expansion Notice") of its intention to expand the Premises no later than thirty-six
(36) months prior to the applicable Expiration Date.
26.2 Expansion Plans and Improvements; Landlord's Construction.
(a) In the event Tenant exercises its Expansion Option hereunder, Landlord shall
prepare or cause to be prepared, at Landlord's sole cost and expense, preliminary construction
drawings and specifications, including an estimated construction cost breakdown (which shall
include so-called "soft costs") and a proposed construction schedule (collectively, the
"Preliminary Expansion Plans") showing any and all improvements proposed to be constructed
with respect to the Expansion Area (the "Expansion Improvements"). Tenant and Landlord
will, in good faith, cooperate with each other in the preparation of the Preliminary Expansion
41
Plans and shall provide the other party with such additional information as may be requested in
order to prepare the Preliminary Expansion Plans in a manner which will be consistent with the
intended use by Tenant of the Expansion Improvements. The Preliminary Expansion Plans shall
be submitted to Tenant within sixty (60) days following the Tenant's Expansion Notice for
Tenant's review and approval. Tenant shall, within fifteen (15) days after receipt thereof, either
approve the Preliminary Expansion Plans or disapprove the same, advising Landlord for the
reason for such disapproval (and setting forth the aspects of the Preliminary Expansion Plans
which are not acceptable to Tenant). In the event Tenant disapproves such Preliminary
Expansion Plans, Landlord shall modify the same, taking into account the reasons given by
Tenant for such disapproval, and shall submit the revised Preliminary Expansion Plans to Tenant
within ten (10) days after receipt of Tenant's initial disapproval. In the event Tenant disapproves
of the revised Preliminary Expansion Plans, Tenant may proceed pursuant to the terms of Section
26.4.
(b) If Tenant approves the revised Preliminary Expansion Plans by written notice
thereof to Landlord, Landlord will, based on the approved Preliminary Expansion Plans, cause to
be prepared and delivered to Tenant within sixty (60) days, at Landlord's sole cost and expense,
proposed architectural and engineering plans and specifications for the Expansion Improvements
(collectively, the "Proposed Expansion Plans"). Tenant and Landlord will, in good faith,
cooperate with each other in the preparation of the Proposed Expansion Plans and shall provide
the other party with such additional information as may be requested in order to prepare the
Proposed Expansion Plans in a manner which will be consistent with the intended use by Tenant
of the Expansion Improvements. Tenant shall, within ten (10) days after receipt thereof, either
approve the Proposed Expansion Plans by written notice thereof to Landlord or disapprove the
same, advising Landlord of the reasons for any such disapproval (and setting forth the aspects of
the Proposed Expansion Plans which are not acceptable to Tenant). In the event Tenant
disapproves such Proposed Expansion Plans, Landlord shall modify the same, taking into
account the reasons given by Tenant for such disapproval, and shall submit the revised Proposed
Expansion Plans to Tenant within ten (10) days after receipt of Tenant's initial disapproval. In
the event Tenant disapproves of the revised Proposed Expansion Plans, Tenant may proceed
pursuant to the terms of Section 26.4.
(c) If Tenant approves the Proposed Expansion Plans by written notice thereof to
Landlord, the Proposed Expansion Plans, as so approved by Tenant, shall become the "Final
Expansion Plans". With Final Expansion Plans, Landlord shall thereafter (i) cause the
Expansion Improvements as set forth on the Final Expansion Plans to be competitively bid to at
least three (3) licensed and bonded general contractors (the "Competitive Bids"), and (ii) use
commercially reasonable efforts to obtain (or cause the general contractor to obtain) approval of
the Final Expansion Plans by all governmental authorities having jurisdiction, including any
required permits. Promptly following Landlord's receipt of such Competitive Bids, Landlord
shall provide copies of the same to Tenant for Tenant's review and approval. In the event Tenant
does not approve of the Competitive Bids, Tenant may proceed pursuant to the terms of Section
26A.
(d) If Tenant approves of the Competitive Bids by written notice thereof to Landlord,
Landlord and Tenant shall proceed to calculate and determine Monthly Rent for the Expansion
Area by using a mutually agreed upon formula based on the then -applicable Monthly Rent under
42
the Lease and the Competitive Bids. If Landlord and Tenant are unable to reach an agreement on
the determination of the amount of Monthly Rent that will be payable for the Expansion Area,
Tenant may proceed pursuant to the terms of Section 26.4.
(e) Subject to the foregoing, if Landlord and Tenant reach an agreement on the
determination of the amount of Monthly Rent for the Expansion Area, Landlord shall proceed,
following receipt of any and all required approvals and permits and at Landlord's sole cost and
expense (except as hereinafter provided), with construction of the Expansion Improvements with
reasonable diligence and with at least substantially the same or a comparable quality of materials
and workmanship with which the Building was constructed), and otherwise in accordance with
this Lease and Applicable Laws. In connection with the construction of the Expansion
Improvements, Landlord and its contractors shall use commercially reasonable efforts to
undertake such steps as may be practicable to prevent interference with Tenant's use and
enjoyment of the Building. Landlord shall pay for any and all costs of the Expansion
Improvements, including, without limitation, the Preliminary Expansion Plans, the Proposed
Expansion Plans, the Final Expansion Plans and related construction costs, all of which will be
used as a basis in determining the amount of Monthly Rent to be payable for the Expansion Area
as provided above.
(f) The Expansion Improvements shall be deemed to be substantially complete on the
date on which the Expansion Improvements are sufficiently completed such that Tenant can take
occupancy of the Expansion Area and a certificate of occupancy or any other required
governmental approval is issued in connection therewith ("Substantial Completion"). Upon
Substantial Completion of the Expansion Area, a representative of Landlord and a representative
of Tenant shall together inspect the Expansion Area and generate a punchlist of defective or
uncompleted items relating to the completion of construction of the Expansion Improvements
(the "Punchlist"). Landlord shall, within a reasonable time after the Punchlist is prepared,
complete such incomplete work and remedy such defective work as is set forth on the Punchlist.
(g) Tenant shall have the right, prior to commencement of construction of the
Expansion Improvements, to propose or request changes in the Final Expansion Plans subject to
Landlord's approval, which approval will not be unreasonably withheld (an "Expansion Change
Order"); provided that Tenant shall not request any change that would materially alter the scope
of the Expansion Improvements or result in a delay in excess of sixty (60) calendar days in the
occurrence of Substantial Completion of the Expansion Improvements. All Expansion Change
Orders will be performed at the cost and expense of Tenant.
26.3 Expansion Area as Premises. Upon the Substantial Completion, the Expansion
Improvements shall become part of the Premises, shall automatically be governed by all of the
terms and provisions of this Lease and shall be deemed to be included in the definition of
"Premises" for all purposes, with the following exceptions and modifications:
(a) The Building shall be deemed to include the Expansion Improvements and shall
be increased by the rentable square feet of the Expansion Improvements;
(b) The term of the demise covering the Expansion Area shall be commensurate with
the then -applicable Term of the Lease, including the Extension Periods, if applicable;
43
(e) Monthly Rent for the Expansion Area shall be as determined by Landlord and
Tenant pursuant to Section 26.2(d) above;
(d) In addition to the Monthly Rent applicable thereto, Tenant shall pay Additional
Rent and other charges in connection with the Expansion Area; and
(e) Tenant's obligation to pay Monthly Rent, Additional Rent and other sums with
respect to the Expansion Area in accordance with the Lease shall commence on Substantial
Completion of the Expansion Improvements.
26A Tenant's Right to Construct Expansion Area Improvements; Expansion Area Rent
Treatment.
(a) Notwithstanding any provision in the Lease to the contrary, in the event any
condition in Section 26.2 above is not satisfied (for example, if Tenant and Landlord are unable
to agree on Preliminary Expansion Plans in accordance with Section 26.2(a)) so that Landlord
elects not to construct the Expansion Area, and Tenant desires to nonetheless proceed with
constructing the Expansion Improvements or other improvements for the Expansion Area, then
Tenant may, at Tenant's sole cost and expense, proceed with constructing the Expansion
Improvements or other improvements for the Expansion Area by:
(i) preparing or causing to be prepared preliminary design plans and/or
architectural and engineering plans for the improvements that Tenant
desires to construct for the Expansion Area (which improvements must be
for office, warehouse and manufacturing use with 32 foot clear ceilings,
must be constructed with substantially the same or a comparable quality
and style of materials with which the Building was constructed and may
not adversely affect the appearance, use or functionality of the Building).
Such plans must be approved by Landlord and Mortgagee, which approval
will not be unreasonably withheld, conditioned or delayed. If Landlord or
Mortgagee object to the plans, Landlord or Mortgagee will provide written
notice of such objection to Tenant within ten (10) business days after
receipt of the plans, or the plans will be deemed approved. If Landlord or
Mortgagee should timely provide written objections to the plans, the
parties agree to negotiate in good faith for a period of not less than thirty
(30) days to attempt to resolve the objections. If the parties are unable to
resolve the objections within such thirty (30) day period, then a
deterinination of the final version of the plans will be made by an
arbitrator pursuant to Section 26.4(c) below, initiated by written notice by
either party to the other. However, the arbitrator will not be authorized or
empowered to approve any plans calling for improvements which are not
for office, warehouse and manufacturing use with 32 foot clear ceilings,
constructed with substantially the same or comparable quality and style of
materials with which the Building was constructed, or which adversely
affect the appearance, use or functionality of the Building;
44
(ii) hiring a licensed and bonded general contractor to construct the
improvements in the Expansion Area; and
(iii) constructing or cause to be constructed the improvements for the
Expansion Area.
If Tenant undertakes any item related to (i) through (iii) above, then, in addition to any other
applicable requirements in the Lease, Tenant shall comply, at Tenant's sole cost, with the
following requirements:
(iv) Tenant's plans and all design and construction of improvements for the
Expansion Area shall comply with all Applicable Laws;
(v) Tenant shall obtain all required building permits and occupancy permits;
(vi) Tenant's contractors shall be licensed contractors capable of performing
qualify workmanship;
(vii) all Expansion Area work shall be done in a good and workmanlike
manner;
(viii) in addition to any insurance which may be required under the Lease,
Tenant shall secure, pay for and maintain or cause Tenant's contractors to
secure, pay for and maintain during the continuance of construction and
fixturing work within the Building, insurance in the following minimum
coverages and the following minimum limits of liability: Worker's
Compensation and Employer's Liability Insurance with limits of not less
than $500,000,00, or such higher amounts as may be required from time to
time by any employee benefit acts or other statutes applicable to the
Expansion Area work, and in any event sufficient to protect Tenant's
contractors from liability under the aforementioned acts; Comprehensive
General Liability Insurance (including Contractors' Protective Liability) in
an amount not less than $1,000,000.00 per occurrence, whether involving
bodily injury liability (or death resulting therefrom) or property damage
liability or a combination thereof with a minimum aggregate limit of
1,000,000.00 and with umbrella coverage with limits not less than
$5,000,000.00, and such insurance shall provide for explosion and
collapse, completed operations coverage and broad form blanket
contractual liability coverage and shall insure Tenant's contractors against
any and all claims for bodily injury, including death resulting therefrom,
and damage to the property of others and arising from its operations under
the contracts whether such operations are performed by Tenant's
contractors or by anyone directly or indirectly employed by any of them;
Comprehensive Automobile Liability Insurance, including the ownership,
maintenance and operation of any automotive equipment, owned, hired, or
non -owned in an amount not less than $500,000.00 for each person in one
accident, and $1,000,000.00 for injuries sustained by two or more persons
M
in any one accident and property damage liability in an amount not less
than $1,000,000.00 for each accident, and such insurance shall insure
Tenant's contractors against any and all claims for bodily injury, including
death resulting therefrom, and damage to the property of others arising
from its operations under the contracts, whether such operations are
performed by Tenant's contractors, or by anyone directly or indirectly
employed by any of them; and "all-risk" builder's risk insurance upon the
entire Expansion Area improvements to the full insurable value thereof,
which shall include the interests of Landlord and Tenant (and their
respective contractors and subcontractors of any tier to the extent of any
insurable interest therein) in the Expansion Area work and shall insure
against the perils of fire and extended coverage and shall include "all-risk"
builder's insurance for physical loss or damage including, without
duplication of coverage, vandalism and malicious mischief, and if portions
of the Expansion Area work are stored off the site of the Building or in
transit to said site and are not covered under said "all-risk" builder's risk
insurance, then Tenant shall effect and maintain similar property insurance
on such portions of the Expansion Area work. Any loss insured under said
"all-risk" builder's risk insurance is to be adjusted with Landlord and
Tenant and made payable to Landlord, as trustee for the insureds, as their
interests may appear;
(ix) Without limiting of the indemnification provisions contained in the Lease,
Tenant shall indemnify, protect, defend and hold harmless Landlord, the
parties listed, or required by, the Lease to be named as additional insureds,
and their respective beneficiaries, partners, directors, officers, employees
and agents, from and against all claims, liabilities, losses, damages and
expenses of whatever nature arising out of or in connection with the
Expansion Area work or the entry of Tenant or Tenant's contractors into
the Building and the Premises, including without limitation, mechanic's
liens, the cost of any repairs to the Premises or Building necessitated by
activities of Tenant or Tenant's contractors, bodily injury to persons
(including, to the maximum extent provided by law, claims arising under
the Minnesota Structural Act) or damage to the property of Tenant, its
employees, agents, invitees, licensees or others. It is understood and
agreed that the foregoing indemnity shall be in addition to the insurance
requirements set forth above and shall not be in discharge of or in
substitution for same or any other indemnity or insurance provision of the
Lease.
(x) Notwithstanding anything to the contrary provided in this Section 26.4,
Tenant may not commence any construction or other on -site activities with
respect to the Expansion Improvements or other improvements unless and
until Tenant has obtained from Landlord and Mortgagee, the Landlord's
and Mortgagee's written approval of Tenant's proposed means of
financing all of the costs to be incurred by Tenant in connection with the
construction of the Expansion Improvements or other improvements under
46
this Section 26.4. Such approval will not be unreasonably withheld,
delayed or conditioned. Tenant will provide Landlord and Mortgagee
with written evidence of Tenant's financial ability to pay for the such
improvements in such form and containing such detail as is reasonably
acceptable to Landlord and Mortgagee. Such evidence may include,
without limitation, evidence of accounts containing available cash, letters
of credit, escrow accounts, binding financing commitments from third -
party lenders or guaranties of completion and payment from financially
responsible third parties.
(b) Notwithstanding any provision in the Lease to the contrary, in the event Tenant
proceeds under this Section 26.4 and completes construction of improvements in the Expansion
Area in accordance with the terins of this Section 26.4 (as evidenced by the issuance of a
certificate of occupancy for the Expansion Area improvements), Tenant shall have no obligations
to pay Monthly Rent, Additional Rent or any other charges whatsoever for the Expansion Area
for the remaining Term of the Lease, including any Extension Periods. The parties agree that the
foregoing provision relating to the waiver of rent payment for the Expansion Area upon Tenant's
construction of Expansion Area improvements is a material inducement for Tenant to enter into
this Lease.
(c) If any controversy or dispute between the parties hereto arises under Section
26.4(a)(i), either party may submit such controversy or dispute for arbitration to, and in
accordance with the Rules of the American Arbitration Association. All arbitration hearings will
be held in front of a single Arbitrator in Minneapolis, Minnesota. The Arbitrator must be an
architect or engineer, but may not be an affiliate of Landlord, Tenant or Mortgagee. The
Arbitrator will have the power to determine the form and content of the final plans as
contemplated under Section 26.4; provided, however, that the Arbitrator may not approve any
plans unless such plans call for the construction of office, warehouse and manufacturing space
with 32 foot clear ceilings, constructed with substantially the same or comparable quality and
style of materials with which the Building was constructed and which does not adversely affect
the appearance, use or functionality of the Building. The Arbitrator will prepare a written
decision within thirty (30) calendar days after the hearing. The decision and the findings of the
Arbitrator will be final, conclusive and binding upon the parties, and judgment upon the award
and enforcement of any other decision granted by the Arbitrator may be entered or obtained in
any court of competent jurisdiction upon the application of any party. The Arbitrator may also
elect to award attorneys' fees to the prevailing party in the arbitration, which the non -prevailing
party agrees to pay.
ARTICLE 27
CONSENT TO JURISDICTION
LANDLORD AND TENANT HEREBY SUBMIT TO EXCLUSIVE PERSONAL
JURISDICTION IN THE STATE OF MINNESOTA AND THE FEDERAL COURTS OF THE
UNITED STATES OF AMERICA LOCATED IN THE STATE OF MINNESOTA (AND ANY
APPELLATE COURTS TAKING APPEALS THEREFROM) WITH RESPECT TO ANY AND
ALL DISPUTES ARISING OUT OF OR RELATING TO THIS LEASE AND WAIVE ANY
AND ALL RIGHTS UNDER THE LAW TO OBJECT TO JURISDICTION WITHIN SUCH
47
STATE FOR THE PURPOSES OF SUCH ACTION, SUIT, PROCEEDING OR LITIGATION
WITH RESPECT TO SUCH DISPUTES. LANDLORD AND TENANT HEREBY WAIVE
AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS LEASE THAT IT IS NOT
SUBJECT TO SUCH JURISDICTION OR THAT SUCH ACTION, SUIT OR PROCEEDING
MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT IT
IS EXEMPT OR IMMUNE FROM EXECUTION, THAT THE ACTION, SUIT OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF THE ACTION,. SUIT OR PROCEEDING IS IMPROPER. IN THE EVENT ANY SUCH
ACTION, SUIT, PROCEEDING OR LITIGATION IS COMMENCED, LANDLORD AND
TENANT AGREE THAT SERVICE OF PROCESS MAYBE MADE, AND PERSONAL
JURISDICTION OVER SUCH LANDLORD AND TENANT OBTAINED, BY SERVICE OF
A COPY OF THE SUMMONS, COMPLAINT AND OTHER PLEADINGS REQUIRED TO
COMMENCE SUCH LITIGATION BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED UPON SUCH LANDLORD AND TENANT AT THE ADDRESS FOR NOTICE
TO SUCH PERSON IN THIS LEASE.
[SIGNATURE PAGE FOLLOWS]
48
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease to be duly
executed as of the day and year first above written.
LANDLORD:
MERITEX-ELK RIVER, LLC,
r""
TENANT:
SPORTECH, INC.,
a Minnesota corporation
By:
Name:
Its:
(00286926 ) 49
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease to be duly
executed as of the day and year first above written.
LANDLORD:
MERITEX-ELK RIVER, LLC,
a Delaware limited liability company
By: Meritex Industrial Investments III, LLC
Its: Manager
By: Meritex Industrial Management, LLC
Its: Manager
By:
Daniel K. Williams
Its: Chief Investment Officer
TENANT:
SPORTECH, INC.,
a Minnesota corporation
By:
Name: d%dt�� S ��12GSQN
Its: N�7i
W.
EXHIBIT A
Legal Description
LOTS I & 2, BLOCK 2, NATURES EDGE BUSINESS CENTER SECOND ADDITION,
SlIERBURNE COUNTY, MINNESOTA
Exhibit A-1
EXHIBIT B
Permitted Exceptions
1. Real estate taxes and special assessments payable in the year 2016 and in subsequent
years.
2. Easements for drainage and utility purposes dedicated on the recorded plat of Natures
Edge Business Center Second Addition.
The drainage and utility easement along the boundary line between Lots 1 and 2 was
vacated by Order Granting Drainage and Utility Vacation dated July 20, 2015, recorded
August 21, 2015, as Document No. 808616.
3. Electric Transmission Line Easement in favor of United Power Association recorded as
Document No. 218302.
4. Declaration of Restrictions and Covenants dated May 9, 2002, recorded January 9, 2003,
as Document No. 492130.
5. Temporary easement for construction proposes in favor of the City of Elk River, as
contained in Grant of Easement for Temporary Street Purposes dated December 17, 2014,
recorded January 8, 2015, as Document No. 797928.
Exhibit B-1
EXHIBIT C
Intentionally Deleted
Exhibit C-1
EXHIBIT D
Intentionally Deleted
Exhibit D-1
EXHIBIT E
Termination Value
For purposes of Section 12.2(b) and Section 13.2(b), the "Termination Value" will mean
the GREATER of the following:
a. The sum of the following: (i) $7,777,000.00, which is the Purchase Price
paid by Landlord to purchase and acquire the Land, Building and Premises on the
Commencement Date; (ii) all amounts paid by Landlord (if any) in connection with the
construction of the Expansion Area pursuant to Section 26.2 of the Lease; and (iii) all
unpaid Rent, costs, expenses, interest, late fees, legal fees and other amounts due from
Tenant under the Lease as of the date of the applicable election by Tenant; OR
b. The "Fair Market Value" of the Land, Building and Premises as of the
date of Tenant's exercise of the relevant option under Sections 12.2(b) or 13.2(b), as
applicable, which fair market value will be determined as follows: Each party will
appoint an appraiser within fifteen (15) days after written request. If either party fails to
appoint an appraiser within this fifteen (15) day period, the sole appointed appraiser will
unilaterally establish the Fair Market Value by a written appraisal. If both parties appoint
an appraiser within this fifteen (15) day period, each appraiser so appointed by a written
appraisal will determine the Fair Market Value. If the separate Fair Market Values
determined by each appraiser are equal, then the Fair Market Value will equal such
amount. If the difference (Appraisal Difference) between the Fair Market Value
determined by each such appraiser does not exceed ten percent (10%) of the higher of the
two values, then the Fair Market Value will equal the average of such two values. If the
Appraisal Difference exceeds ten percent (10%) of the higher of such two values, such
two appraisers will together appoint a third appraiser, who will determine the Fair Market
Value by a written appraisal. All appraisals required by this Section will be prepared and
submitted to each party within thirty (30) days after the appraiser is engaged. The
average of the two (2) Fair Market Values closest in value will govern. All appraisers
appointed will be members of the American Institute of Real Estate Appraisers with MAI
designations and will have not less than ten (10) years experience appraising industrial/
warehouse commercial properties in the Minneapolis/St. Paul metropolitan area. No
person who has acted in any capacity for either party or their affiliates may be appointed
as the third appraiser. The fees and other costs of each of the first two appraisers will be
borne by the party appointing each such appraiser, with the fees and other costs of the
third appraiser being shared equally by the parties. The Fair Market Value will be
determined according to all relevant facts and circumstances, and is defined to mean the
amount at which Premises would change hands between a willing seller and a willing
buyer where neither is acting under compulsion and when both have a reasonable
knowledge of the relevant facts, and assuming that the Premises on the effective date of
the appraisal is in the condition existing immediately prior to the casualty or
Exhibit E-1
condemnation (as applicable), and further assuming that this Lease will remain in full
force and effect pursuant to its terms through the end of the Term.
Exhibit E-2
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease (this "Amendment") is made and entered into as of
, 2021, by and between Meritex Elk River, LLC, a Delaware limited liability
company ("Landlord"), and Sportech, LLC, a Minnesota limited liability company ("Tenant").
Background
A. Landlord and Tenant are the current lessor and lessee, respectively, under that certain
Lease dated April 8, 2016, as amended by that certain First Amendment to Lease dated May 26, 2020 (as
amended, the "Lease"), pursuant to which Tenant presently leases from Landlord a parcel of land
improved with an approximately 105,000 square foot building (the "Original Building") located at
10752 168`" Circle NW, Elk River, Minnesota, as more fully described in the Lease (the "Premises").
B. Tenant desires to expand the Original Building on the Premises by approximately 91,050
square feet as generally depicted on Exhibit A (the `Building Addition"), and accordingly Landlord and
Tenant desire to amend the Lease as provided in this Agreement.
For valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and
Tenant agree the Lease is amended as follows, effective immediately:
1. Defined Terms. All words and phrases with their initial letters capitalized will have the
meaning ascribed to such words and phrases as provided in the Lease.
2. Building Addition. Landlord shall complete the Building Addition Work (as defined in
Exhibit B) in accordance with Exhibit B attached hereto. Effective as of the Completion Date (as defined
in Exhibit B), the Lease is amended to provide that the Building shall mean the Original Building together
with the Building Addition.
3. Term. The Term of the Lease is hereby extended to expire on the last day of the calendar
month occurring one hundred and forty-four (144) months following the later of (a) October 1, 2021 or
(b) the Completion Date (the `Building Addition Commencement Date"). The Expiration Date under
the Lease is amended to be the last day of the calendar month occurring one hundred and forty-four (144)
months following the Building Addition Commencement Date. Promptly following the Building Addition
Commencement Date, upon request of Landlord, Tenant shall execute a reasonable memorandum
memorializing the Building Addition Commencement Date, the Expiration Date, the total rentable square
footage of the Building, and the dates for payment of Monthly Rent set forth in the rent table in Section 5
below.
4. Termination of Options to Extend. Article 25 of the Lease is hereby deleted and
rendered void and of no further force or effect. Accordingly, Tenant has no rights to renew or extend the
Term.
5. Rent. Tenant shall continue to pay all Monthly Rent and Additional Rent as provided in
the Lease through the day prior to the Building Addition Commencement Date. On and following the
Building Addition Commencement Date, the Monthly Rent for the Premises shall be as follows:
Months
of Term
Rentable
Square
Footage of
Building
Annual
Rent Per
Square
Foot
Annual
Rent
Monthly
Rent
From (measured
from Building
Addition
Commencement
Date)
Through (months
following
Building
Addition
Commencement
Date)
Building
Addition
Commencement
Date
12
196,050
$5.75
$1,127,287.50
$93,940.63
13
24
196,050
$5.87
$1,150,813.50
$95,901.13
25
36
196,050
$5.98
$1,172,379.00
$97,698.25
37
48
196,050
$6.10
$1,195,905.00
$99,658.75
49
60
196,050
$6.22
$1,219,431.00
$101,619.25
61
72
196,050
$6.35
$1,244,917.50
$103,743.13
73
84
196,050
$6.48
$1,270,404.00
$105,867.00
85
96
196,050
$6.60
$1,293,930.00
$107,827.50
97
108
196,050
$6.74
$1,321,377.00
$110,114.75
109
120
196,050
$6.87
$1,346,863.50
$112,238.63
121
132
196,050
$7.01
$1,374,310.50
$114,525.88
133
144
196,050
$7.15
$1,401,757.50
$116,813.13
6. Taxes; Insurance. For avoidance of doubt, during the Term, Tenant shall be responsible
for the payment of any additional assessments and increases in Taxes resulting from the Building
Addition. Further, from and after the Building Addition Commencement Date, Tenant shall ensure that all
insurance required under Article 6 of the Lease and that is maintained by Tenant (rather than Landlord)
shall reflect the Building as so expanded, including the increased full replacement cost thereof. As of the
date of this Amendment, Landlord and Tenant acknowledge that Landlord is maintaining the insurance
under Section 6.1(a) of the Lease, and that pursuant to Section 6.6 of the Lease, Tenant is required to
reimburse Landlord for the cost thereof, including any increase as a result of the Building Addition.
Security Deposit [To be determined]
8. Repairs to Building and Premises. Section 8.1 of the Original Lease is hereby amended
and restated as follows:
"Subject to the limitations of Articles 12 and 13 hereof, Tenant shall, at its sole cost and
expense throughout the Term, (a) take good care of the Premises (including any
improvements now existing, the Building Addition and those constructed in the future on
the Land), (b) keep the same in order and condition consistent with the standards for
buildings of comparable type, quality, age and size in the City, and (c) make and perform
all maintenance thereof and all necessary or appropriate repairs thereto, interior and
exterior, structural and nonstructural (including, without limitation, to the foundations,
HVAC and other systems, the roof and other structural components of the Building),
ordinary and extraordinary, foreseen and unforeseen, of every nature, kind and
description. All of the items referred to in the preceding sentence are herein referred to as
"Repairs" and when used in this Article, "Repairs" shall include all necessary and
appropriate replacements, resurfacing, renewals, alterations, additions and betterments,
whether capital improvements or otherwise, using new materials therefor, but Tenant
shall not be required to make any Repair which would be in excess of those which a
reasonable and prudent owner would make under the circumstances, in light of
investments made in and construction of the Building Addition and the care and
maintenance of buildings of comparable type, quality, age and size in the City. All
Repairs made by Tenant shall be, to the extent reasonably possible, at least equal in
quality to the original work performed in constructing the Building and/or the Building
Addition, as the case may be. In the event of any Repairs, Tenant shall first provide
Landlord with notice and with drawings sufficient for Landlord to review and approve
the proposed Repairs, which approval shall not be unreasonably withheld or delayed;
provided, however, no approval by Landlord is required for routine and ordinary Repairs
and maintenance the cost of which is $100,000 or less, for which plans are not
customarily prepared, which is not structural in nature and which is not visible from the
exterior of the Premises. Further, no prior approval of Landlord is required for any
emergency Repairs (but telephonic or email notice to Landlord's Regional Manager shall
be made as soon as is practical). For all Repairs and all changes and alterations under
Article 18, following substantial completion and upon request of Landlord, (1) Tenant, at
Tenant's cost, shall ensure that all available warranties are partially assigned to Landlord,
(ii) Tenant must provide Landlord with full and final lien waivers from all contractors
and material suppliers, and (iii) Landlord may inspect the Repair, alteration or change to
ensure it was made consistent with this Lease (and may also do so during construction
and execution of the Repair, change or alteration). All Repairs made by Tenant shall be
made in accordance with all Applicable Laws."
9. Condemnation/Casu
a. Notwithstanding anything in the Lease to the contrary, in the event of a Substantial
Casualty or Substantial Taking affecting the Original Building prior to the Building
Addition Commencement Date, Tenant shall be required to cause the Restoration of
the Premises in accordance with Sections 12.2(b)(11) and 13.2(b)(11), respectively, to
the condition required under the Lease, as modified by the Final Plans described in
Exhibit B to accommodate the Building Addition Work.
b. In the event of casualty or condemnation affecting the Building Addition prior to the
Building Addition Commencement Date, Landlord shall cause the Building Addition
to be restored and substantially completed pursuant to the Final Plans and in
accordance with Exhibit B. The amount of any insurance deductible in connection
with such Restoration shall be paid from the Tenant Allowance or from the Over -
Allowance Amount, and to the extent the cost of such Restoration exceeds available
insurance proceeds, Tenant shall pay such amount to Landlord within ten (10) days
of written demand therefor.
c. Section (a)(ii) of Exhibit E to the Lease is hereby amended and restated as follows:
"(ii) all amounts paid by, incurred by or owing to Landlord in connection with the
construction of the Building Addition pursuant to the Second Amendment to Lease,
including, without limitation, the Tenant Allowance;"
10. Changes and Alterations. Section 18.1(d) of the Lease is hereby amended and restated
as follows:
3
"For any change or alteration costing less than $100,000, for which plans are not customarily
prepared, which is not structural in nature and which is not visible from the exterior of the
Premises, Landlord and Mortgagee approval is not required, but Tenant will provide Landlord
notice of such change or alteration."
II. Option to Expand. The Building Addition is in lieu of constructing the Expansion
pursuant to Article 26 of the Lease. Accordingly, Article 26 of the Lease is hereby deleted and rendered
void and of no further force or effect.
12. Miscellaneous. This Amendment may be executed in multiple counterparts, each of
which shall be effective upon delivery. This Amendment may be transmitted by electronic mail in
portable document format ("pdf') and signatures appearing on electronic mail instruments shall be treated
as original signatures. In the event of any conflict between the Lease and this Amendment, the terms of
this Amendment shall control. Except as expressly amended, supplemented or modified by this
Amendment, the Lease shall continue in full force and effect.
LANDLORD:
TENANT:
MERITEX ELK RIVER, LLC SPORTECH, LLC
Name: Arvid A. Povilaitis Name:
Its: Chief Operating Officer Its:
4
EXHIBIT A
Building Addition
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EXHIBIT B
Work Letter
Definitions. The following defined terms used in this Work Letter have the meanings set
forth below:
(a) "Building Addition Work" means the work to construct the Building Addition,
including the structure, foundation, Building Systems, roof and interior structure and finishes of
the Building Addition, as well as associated exterior work including an expansion of the parking
field, sidewalks and landscaping, in accordance with the Final Plans.
(b) "Building Systems" means the Building Addition's HVAC, mechanical,
electrical, plumbing, and fire and life safety systems and equipment (including, but not limited to,
the fire alarm and fire sprinklers).
(c) "Completion Date" means the date on which Substantial Completion occurs.
(d) "Contractor" means RJ Ryan Construction.
(e) "Cost Proposal" is defined in Section 4(a) hereof.
(f) "Days" means, unless otherwise indicated, calendar days. In all instances where
Tenant is required to approve or deliver an item, if no written notice of approval is given or the
item is not delivered within the stated time period, at Landlord's sole option, at the end of such
period the item shall automatically be deemed approved or delivered by Tenant and the next
succeeding time period shall commence.
(g) "Delivery Conditions" means the Building Addition Work is substantially
complete and all Building Systems serving the Building Addition are in good working order and
condition and comply with all Applicable Laws.
(h) "Final Plans" is defined in Section 2(b).
(1) "Force Majeure" means, for purposes of this Work Letter, failure or delay
caused by or resulting from acts beyond Landlord's reasonable control, including, without
limitation, acts of God; flood, fire, earthquake, pandemics or explosion; war, invasion,
hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest;
government order, law, or actions; embargoes or blockades; national or regional emergency;
strikes, labor stoppages or slowdowns, or other industrial disturbances; and other similar
events beyond the reasonable control of Landlord.
(j) "Landlord's Representative" means Landlord's Chief Operating Officer Arvid
Povilaitis and Regional Manager Ben Lieser as the only persons authorized to act for Landlord
pursuant to this Work Letter, independently or together. Tenant shall not be obligated to respond
to or act upon any request, approval, inquiry or other communication from or on behalf of
Landlord in connection with this Work Letter unless such communication is in writing from a
Landlord's Representative. Landlord may change the Landlord's Representative at any time.
(k) "Over -Allowance Amount" is defined in Section 4(d) hereof.
(1) "Permits" is defined in Section 5(a).
(m) "Preliminary Addition Plans" is defined in Section 2(a).
(n) "Punch List Work" means those minor corrections of construction or decoration
details, and minor mechanical adjustments, that are required to cause any applicable portion of
the Building Addition Work as constructed to conform to the Final Plans in all material respects
and that do not materially interfere with Tenant's use or occupancy of the Building and the
Premises.
(o) "Substantial Completion" of the Building Addition Work shall be deemed to
have occurred on the date that: (1) Landlord has satisfied the Delivery Conditions; (ii) all Building
Addition Work has been performed in accordance with the terms of this Work Letter, other than
any Punch List Work; and (iii) Landlord has obtained and delivered to Tenant a permanent or
temporary certificate of occupancy with respect to the Building Addition, except to the extent the
same cannot be obtained by reason of the incompletion of installations or other work that is the
responsibility of Tenant (such as, but not limited to, the installation and making operational of
Tenant's systems and telecommunications equipment), in which case Landlord shall obtain the
same within a reasonable time after the same can be obtained.
(p) "Tenant Allowance" shall be up to $5,963,775.00.
(q) "Tenant Delay" means a delay caused by any of the following:
(1) Tenant's failure to timely approve the Preliminary Addition Plans or any
other matter requiring Tenant's approval;
(ii) a breach by Tenant of the terms of this Work Letter or the Lease;
(iii) Tenant's request for changes in any of the Preliminary Addition Plans,
but only if such a request actually causes a delay to Substantial Completion of the
Premises;
(iv) Tenant's requirement for: (A) materials, components, finishes, or
improvements which are different from, or not included in, Landlord's standard tenant
improvement items for the Building; or (B) materials that are not available in a
commercially reasonable time given the estimated date of Substantial Completion of the
Premises; or
(v) any other acts or omissions of Tenant, or of any of the Tenant
Contractors, their agents, or employees that continue more than three (3) days after
written notice thereof by Landlord.
(r) "Tenant's Representative" means as the only person authorized
to act for Tenant pursuant to this Work Letter. Landlord shall not be obligated to respond to or act
upon any request, approval, inquiry, or other communication from or on behalf of Tenant in
connection with this Work Letter unless such communication is in writing from Tenant's
Representative. Tenant may change the Tenant's Representative[s] at any time upon advance
written notice to Landlord.
2. Plan Approval.
(a) Within 30 days following this Amendment, Landlord shall cause to be prepared,
at Landlord's sole cost and expense, architectural, engineering and construction drawings and
specifications, including an estimated construction cost breakdown (including hard and soft costs)
and a proposed construction schedule (collectively, the "Preliminary Addition Plans").
Landlord and Tenant will, in good faith, cooperate with each other in the preparation of the
Preliminary Addition Plans and shall provide the other parry with such additional information as
may be requested in order to prepare the Preliminary Addition Plans in a manner which will be
consistent with the intended use by Tenant of the Building Addition.
(b) Tenant shall approve or disapprove the Preliminary Addition Plans within five
(5) business days after receipt. If Tenant disapproves the Preliminary Addition Plans, (1) Tenant
shall advise Landlord for the reason for such disapproval and shall detail the aspects of the
Preliminary Addition Plans which are not acceptable to Tenant, and (ii) Landlord shall modify the
Preliminary Addition Plans, taking into account the reasons given by Tenant for such disapproval,
and shall submit revised Preliminary Addition Plans to Tenant within ten (10) days of receipt of
Tenant's disapproval for Tenant's review. Tenant and Landlord shall continue pursuant to this
Section 2(b) until Tenant has approved the as -revised Preliminary Addition Plans, which once
approved, shall be the "Final Plans". To the extent required by Applicable Law, Landlord shall
use commercially reasonable efforts to obtain (or cause Contractor to obtain) approval of the
Final Plans by the City of Elk River and to obtain any necessary permits for the Building
Addition Work.
3. Construction Contracts. Landlord shall enter into a construction contract for the
performance of the Building Addition Work with Contractor. Landlord shall use commercially reasonable
efforts to obtain at least three (3) bids from each trade.
4. Cost Estimate.
(a) Landlord shall provide Tenant with a cost proposal (the "Cost Proposal") in
accordance with the Final Plans, showing all anticipated hard and soft costs of the Building
Addition Work, all architectural, structure, civil design, geotech, environmental, development and
permitting fees and costs and a management fee payable to Landlord in the amount of 4% of the
cost of the Building Addition Work (the "Construction Management Fee").
(b) Within ten (10) days of the receipt of the same, Tenant shall either: (1) approve
the Cost Proposal; or (ii) have a one-time right to propose modifications to the Preliminary
Addition Plans in order to reduce the cost. Any proposed changes to the Preliminary Addition
Plans shall be subject to Landlord's approval, which approval shall not be unreasonably withheld,
conditioned, or delayed. If Landlord approves the proposed revisions: (A) Landlord shall have the
Preliminary Addition Plans revised in accordance with the approved revisions; and (B) Landlord
shall submit a revised Cost Proposal to Tenant. Tenant shall notify Landlord in writing within
five (5) days whether it desires to proceed with such revisions. If Tenant fails to approve such
revisions and revised Cost Proposal within such five (5) day period, such failure shall be deemed
to be a Tenant Delay. Any delays arising from further changes to the Preliminary Addition Plans
requested by Tenant shall be deemed to be Tenant Delays.
(c) Tenant's final approval of the Cost Proposal and the Final Plans shall be
authorization by Tenant for Landlord to purchase all materials set forth in the Cost Proposal and
to promptly commence the construction of the Building Addition Work in accordance with the
Final Plans.
(d) To the extent the Cost Proposal exceeds the Tenant Allowance, then within ten
(10) days of final approval of the Cost Proposal, Tenant shall deliver to Landlord by wire transfer
of immediately available funds the amount of such excess and a Construction Management Fee
(the "Over -Allowance Amount"). Landlord shall hold the Over -Allowance Amount and apply
the same to costs and expenses in connection with the Building Addition Work, including draw
requests from Contractor and the Construction Management Fee, at such time as the Tenant
Allowance has been exhausted. In the event Force Majeure, Tenant Delay, the items listed in
subsection (e) below or other unanticipated matters arise that result in costs of the Building
Addition Work exceeding the Tenant Allowance and amounts previously deposited by Tenant for
initial calculations of the Over -Allowance Amount, Tenant shall pay such additional amounts to
Landlord within ten (10) days following receipt of an invoice therefor. Change Orders are dealt
with in Section 6 below.
(e) Tenant acknowledges that the Tenant Allowance does not account for the
following items which, if necessary, required or requested by Tenant, will require additional
amounts be included in the Over -Allowance Amount: (1) winter conditions; (ii) equipment wiring
work for installation of furniture, fixtures or equipment, (iii) soil correction work and/or
remediation of hazardous materials, (iv) warehousing exhaust systems, and (v) exterior signage.
Performance of the Building Addition Work.
(a) Subject to Force Majeure, Tenant Delay and provided there is no Event of
Default under the Lease by Tenant:
(1) Landlord shall cause the Contractor to obtain all applicable building
permits for construction of the Building Addition Work (collectively, the "Permits"),
and to perform the Building Addition Work;
(ii) Landlord shall ensure the Building Addition Work is performed in in a
good and workmanlike manner and in compliance with the Permits and all Applicable
Laws in effect at the time of construction;
(iii) Landlord shall use commercially reasonable efforts to cause the Building
Addition Work to be Substantially Completed on or before the later of (1) October 1,
2021, or (ii) 180 days after receipt of all permits and approvals required from the City of
Elk River to commence construction.
(b) If any local governmental agency requires revisions to the Final Plans, Tenant
shall be deemed to have approved any adjustments to the Final Plans and the Cost Proposal
resulting therefrom.
(c) Except as provided in Section 8 below, Tenant shall not have access to the area
of the Premises on which Building Addition Work is being completed. Tenant acknowledges that
the Building Addition Work may from time to time disrupt certain operations in the remainder of
the Premises, may cause noise, vibrations, smells and other interference, may require temporary
relocation of equipment, fixtures and personal property, and may require a reduction in or
temporary closure of parking areas and access drives. Tenant acknowledges that the Building
Addition Work requires relocating the precast end wall located on the Eastern side of the Original
Building, building a temporary wall separating the Original Building from the Building Addition,
and then demolishing and removing said temporary wall. Landlord shall use reasonable efforts to
minimize any such disruption, interference, limitation or closure or to communicate the schedule
for such matters in advance. In no event shall any such disruption, interference, limitation or
closure constitute a constructive eviction or permit Tenant to offset or abate rent. Tenant shall at
all times reasonably cooperate with Landlord's construction of the Building Addition Work.
6. Chan2e Requests. No changes to the Final Plans or the agreed Cost Proposal may be
made without the prior written consent of Landlord, which consent may be withheld in Landlord's sole
discretion. If Tenant requests a change that would directly or indirectly delay the Substantial Completion
of the Building Addition Work, Landlord shall not be obligated to make such change unless Tenant
agrees in writing that such delay (in the amount reasonably determined by Landlord) is a Tenant Delay. If
Tenant requests a change to the Final Plans that increases the agreed Cost Proposal, Landlord shall not be
obligated to make such change unless Tenant agrees in writing that such increase in costs is included in
the Over -Allowance Amount and Tenant pays such increase to Landlord within ten (10) days.
7. Substantial Completion. When Landlord's architect certifies that the Building Addition
Work is Substantially Complete, Landlord shall notify Tenant thereof in writing. Tenant's Representative
and Landlord's Representative shall at a mutually convenient date and time conduct a joint walk-through
of the Building Addition in order to review the Building Addition Work. Based upon said walk-through,
Landlord's Representative and Tenant's Representative shall prepare a list of Punch List Work and,
subject to Force Majeure, Tenant Delays and other causes beyond Landlord's reasonable control,
Landlord shall use commercially reasonable efforts to complete the Punch List Work items within 30
days after such joint walk-through. In the event of any dispute as to whether or not Landlord has
Substantially Completed the Building Addition Work, the decision of Landlord's architect shall be final
and binding on the parties. Tenant agrees that, at the request of Landlord from time to time after the initial
inspection, Tenant shall initial such punch list or execute revised lists of Punch List Work to reflect
completion or partial completion of prior Punch List Work.
8. Early Entry by Tenant. Subject to the terms hereof and provided that Tenant and its
agents do not interfere with the Contractor's work, Landlord shall allow access to the Building Addition
within a reasonable time as determined by Landlord prior to the Substantial Completion of the Building
Addition Work for the purpose of installing equipment and/or fixtures (including Tenant's data and
telephone equipment) and Tenant's furniture in the Building Addition. Prior to Tenant's entry, Tenant
shall submit a schedule to Landlord and the Contractor, for their approval, which schedule shall detail any
of Tenant's contractors, employees or agents accessing the Building Addition and the timing and purpose
of such entry. In connection with any such entry, Tenant acknowledges and agrees that all Tenant's
contractors, employees or agents shall fully cooperate, work in harmony with and not, in any manner,
materially interfere with Landlord or Landlord's contractors (including the Contractor), agents, or
representatives in performing work in the Building, Building Addition and the Premises, or in performing
any inspections, or interfere with the general operation of the Building, Building Addition and the
Premises.
Cost Allocation.
(a) Landlord shall pay the costs of the Building Addition Work in an amount up to,
but not exceeding, the Tenant Allowance. Landlord shall deduct the Construction Management
Fee from the Tenant Allowance.
(b) In no event shall Landlord be obligated to pay for, nor shall the Tenant
Allowance be used to pay for, the costs of any of Tenant's furniture, fixtures, computer systems,
telephone systems, equipment, or other personal property (whether or not such items may be
depicted on the Final Plans), and the cost of such items shall be paid for by Tenant from Tenant's
own funds.
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(c) Tenant shall not be entitled to receive (in cash or as a credit against any rental or
otherwise) any portion of the Tenant Allowance; any unspent amounts will revert to Landlord.
Landlord shall refund to Tenant any unspent Over -Allowance Amounts within a reasonable time
following completion of Punch List Work.
10. Miscellaneous.
(a) All Building Addition Work to be performed by Landlord shall use Building -
standard specifications, materials, finishes, and supplies, unless otherwise specified in the Final
Plans. Landlord, in its sole discretion, may substitute items, materials, or finishes with other
items, materials, or finishes of comparable kind and quality. Landlord, at its sole option, may also
change mechanical plans and specifications where necessary for the installation or modification
of the Building Systems, provided that any such changes may not materially and adversely affect
Tenant's use and occupancy of the Building for the uses permitted in Article 3 of the Lease.
(b) Tenant acknowledges that the timely completion of the Building Addition Work
is of the utmost importance to Landlord and Tenant. Accordingly, Tenant hereby agrees to fully
and diligently cooperate with all reasonable requests by Landlord in connection with or related to
the design and construction of the Building Addition Work and the completion of the permitting
process and, in connection therewith, Tenant shall respond to Landlord's requests for information
and/or approvals, except as specifically set forth herein to the contrary, within two (2) days
following request by Landlord. Landlord and Tenant, and such other parties as may be useful or
appropriate, shall meet on a scheduled basis to be determined by Landlord's Representative and
Tenant's Representative, to discuss progress in connection with the same.
(c) If at any time on or before the Substantial Completion of the Landlord Work,
Tenant is in default under this Work Letter or under the Lease, which default remains uncured
after the expiration of applicable notice and cure periods or ten (10) days, whichever is sooner, or
Landlord reasonably determines that Tenant is unwilling or unable to perform its obligations
under the Lease or this Work Letter and Tenant is unable to provide Landlord with reasonable
assurances to the contrary within five (5) days of request, then: (1) in addition to all other rights
and remedies granted to Landlord pursuant to the Lease, Landlord shall have the right to instruct
the Contractor to cease the construction of the Building Addition Work (in which case, Tenant
shall be responsible for the Tenant Delay caused by such work stoppage); and (ii) all other
obligations of Landlord under the terms of this Work Letter shall be suspended until such time as
such default is fully and finally cured. In the event of the foregoing, or an Event of Default under
the Lease prior to the Building Addition Commencement Date, then in addition to other damages
that Landlord may be entitled to under the Lease, at law or in equity, Tenant shall immediately
pay to Landlord upon demand all amounts, costs, fees, penalties, liabilities and expenses in any
way incurred by Landlord in connection with ceasing or completing the Building Addition Work,
in Landlord's discretion, including costs to cease and demolish any and all improvements, costs
and penalties under the Construction Contract and other contracts, the Tenant Allowance, the
Over Allowance Amount, attorneys' fees, consultants fees, court costs, permitting costs, and any
other costs, fees, penalties, liabilities and expenses to either terminate and demolish the Building
Addition or to Substantially Complete the same.
(d) Effective as of the Completion Date, Landlord hereby assigns to Tenant all
warranties by Contractor relating to the Building Addition Work, which assignment shall be on a
non-exclusive basis such that the warranties may be enforced by Landlord and/or Tenant.
(e) Notwithstanding Section 6.4 of the Lease, Landlord shall require Contractor
maintain adequate builder's risk insurance for at least the value of the Building Addition and all
sums expended therefor, and any increased costs associated therewith will be included in the Cost
Proposal. Landlord reserves the right, in its sole discretion, to instead carry adequate Builder's
Risk insurance with respect to the Building Addition and all sums expended therefor and net the
cost, expense and premiums from the Tenant Allowance.
(f) If it is determined by Landlord and Tenant that the Building Addition Work will
not receive required City permits and approvals, then Tenant must immediately reimburse
Landlord for all of Landlord's out of pocket costs incurred as of such time for the Building
Addition Work, including the cost of the Preliminary Addition Plans, Final Plans, Cost Estimate,
contract termination fees and costs to apply for any permits and approvals.
Description of Business, ownership, history, product and services
Description of Project
Sportech, Inc. is an innovation -driven plastics thermoformer specializing in the design,
development and production of quality products and accessories for the recreational and utility
product industry that began in 1994. The first product was the Indy Lightshield, which
eliminates snow from covering the headlights of snowmobiles. This product is recognized today
as one of the most innovative and best-selling accessories ever introduced to the snowmobile
market. Since then, Sportech has continued to evolve and grow, through their development of
numerous ground -breaking aftermarket snowmobile products and significant company growth.
As a Tier-1 supplier to OEMs, they design and manufacture windshields, body panels and
screen printed parts for motorcycles, snowmobiles, scooters, ATVs, UTVs and more.
Originally a home based business in the Carlson garage, the company moved to a 10,000
square foot facility in 1998, and built a brand new 96,000 sq. ft. facility (Building 1) in Elk River
in 2008. In 2012, an additional 55,000 square foot facility (Building 2) was added in Elk River
for warehouse and assembly productions. In 2015, they purchased 14 acres from the City of
Elk River, and built a 105,000 sq. ft. facility and moved into it in early 2016 (removing previous
Building 2), bringing their total square footage to 201,000 sq. ft. The building was purchased by
Meritex, a private real estate investment and management company in May 2016, and the
business (Sportech) was purchased by Off Road Acquisition Co., LLC (becoming a wholly
owned subsidiary) in December of 2019.
Continuing to see exponential growth under new ownership, the company has now grown by
over 100 employees in the past five years. Sportech currently employs a total of 322 FT
employees company wide, 171 total FT employees in Building 2.
Sportech's continued growth has resulted in the company rapidly outgrowing its current physical
plant size, as well as production capacity. This project will strengthen the local economy
through increased tax base, the retention of 323 well -paying jobs, and the creation of a
minimum of 85 new FTE within three years of proposed JCF project completion at the JCF
project site.
The new expansion would retain 171 employees (132 FTE), plus will create an additional 85 full-
time employees created by the proposed project. Average base wage of B2 employees is
$17.92/hr (excluding benefits), $22.76 (including benefits). Average wage of jobs to be created
at the expanded site is $18.20/hr, (excluding benefits), $23.04 (including benefits).
Currently, Sportech contributes approximately $360,000 annually in property taxes between the
two buildings (132 project site contributes $196,000/yr). Preliminary tax estimates anticipate the
new facility will generate an additional $99,405/yr.
This project will keep a MN based company in Minnesota; with over 25 years in Elk River, MN,
the company would like to continue to grow, create jobs, and contribute to the local economy.
Sportech prides themselves in diligently working to diversify their workforce. With employees
speaking a total of four different languages (several of employees are native to Mexico and
Liberia), 24.1 % of employees are minorities. Sportech employees also regularly frequent local
eating establishments and partner with local organizations to strengthen the local economy.
Ownership description below.
• Meritex (the real estate entity, landlord)
• Sportech, Inc. (the business entity), wholly owned subsidiary of Off -Road Acquisition.
B. Financial Statements for the past two years (P&L, Balance Sheet)
C. Current Financial statements (P&L to date, Balance Sheet to date)
D. Two -Year Financial Projections
E. Personal Financial Statements & Current Tax Return of all Major Shareholders
Sportech is owned 100% by Off -Road Acquisition Co., LLC
F. Letter of Commitment from Application Pledging to Complete
G. Letter of Commitment from Other Sources of Financing
See attached, draft lease agreement.
H. Application deposit of $10,000
Construction Plans and Itemized Construction Statement
a
MERI a [EX
COMPANY
E6'Pa 1916
December 22, 2020
Mr. Mike Merrill
Sportech
10800 1751h Ave NW
Elk River, MN 55330
mmerrill(rsportechinc.com
RE: Sportech Expansion Proposal
107521681 Circle NW, Elk River, MN
Dear Mike:
Thank you for the opportunity to present this proposal expanding Sportech within
the Meritex portfolio. Sportech has been an excellent client and we look forward
to continuing the relationship.
Expansion Premises: Approximately 91,050 square feet
Commencement: October 1, 2021
Lease Term: Twelve (12) years from October 1, 2021, which
includes the existing 105,000 square foot premises.
Net Rental Rate: $5.75 per square foot with 2% annual increases.
Operating & CAM Tenant's proportionate share shall include the
Expense and Taxes: expansion square footage
Shell Improvements: Landlord shall provide up to $65.50/SF to expand the
building.
Shell Improvements to be further defined in the
lease document and final construction plans.
General clarifications below:
• Shell Building which includes painted walls,
painted columns up to 12' A.F.F., caulked joints in
expansion warehouse floor and (6) LED high bay
light fixtures per bay in the warehouse
• Extend Truck dock the full length and extend car
parking as shown on the preliminary plan dated
12/11/20
• Building was set up for future expansion so
precast end wall will be picked up and relocated,
temp wall built prior
• Utilize existing 3,000amp electrical service. We'll
have to validate their existing actual peak usage
with the power company to confirm existing
service size is sufficient
• Utilize existing fire pump & extend fire sprinkler
service
• Gas fired unit heaters in the warehouse to
temper space
• Add (15) new dock doors/mechanical
levelers/seals on South wall and 1 drive-in door
• Replicate fagade on all sides of the building
• Includes architectural, structural, civil design,
development fees and 3rd party construction
management fees
• Approximately 10,000 square feet of office space
assuming an allowance of $70/SF
• Items not included:
o Winter Conditions
o FF&E, including equipment wiring
o Soil Corrections
o Warehouse exhaust
o Signage
Financials: This proposal is contingent on Landlord's review and
acceptance of Tenants most recent financials.
Additional security enhancements may be required.
Furthermore, this proposal assumes Sportech will
have equal to, or better than financials at the time
construction commences in 2021.
Brokerage: Proposal is based on Landlord not paying a broker fee.
Non -Binding: This Proposal is intended to be a general outline of
deal terms to expand the building and shall not be
binding upon either party until a lease agreement is
fully executed. This proposal expires December 29,
2020.
Best Regards,
Ben Lieser
Regional Manager
651-855-9672
blieser(rmeritex.com