EXHIBIT 10.14
LEASE
10.22.97 (7) MERIDIAN CROSSINGS I
THIS INDENTURE OF LEASE dated November 12, 1997, by and between MERIDIAN
CROSSINGS LLC, a Minnesota limited liability company (d/b/a TOLD Development
Company) ("Landlord"), and FOURTH SHIFT CORPORATION, a Minnesota corporation
("Tenant").
WITNESSETH:
FOR AND IN CONSIDERATION of the rents and covenants hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
DATA SHEET
The following terms shall have the meanings set forth in this section,
unless otherwise specifically modified by provisions of this Lease:
(a) "FACILITY" OR "PROJECT": The Building and the Property including
all appurtenant easements and personal property used in connection with the
Building or Property located therein and thereon.
(b) "BUILDING": The approximately 184,718 rentable square foot
building which is located on the Property, the floor plan of which is
attached hereto as Exhibit A.
(c) "PROPERTY": The real property, known as Meridian Crossings I, ▇▇▇▇
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Exhibit "B".
(d) "PREMISES": The areas outlined on Exhibit A. For purposes of this
Lease, Landlord and Tenant agree that the Premises shall be deemed to contain
approximately 57,000 rentable square feet of space located as follows:
23,303 rentable square feet on Floor 5;
23,303 rentable square feet on Floor 4; and
10,394 rentable square feet located on Floor 3.
Landlord and Tenant agree that upon completion by Tenant of its space
planning, Landlord's architect will reasonably determine and certify the
actual area of the Premises, pursuant to the standard set forth in Article
XXXIV hereto and it shall be deemed the area of the Premises.
(e) "COMMENCEMENT DATE": November 1, 1998, subject to Article IV.
(f) "EXPIRATION DATE": October 31, 2008, or (10) full years from the
Commencement Date.
(g) "TERM": Ten (10) full years.
(h) "BASE RENT":
With respect to the follow- Annual Base Rent shall Payable in advance in equal
ing years of the Term: be as follows: monthly installments as follows:
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Years 1 - 5 $14.50 per rentable square
foot of Premises
Years 5 - 10 $15.95 per rentable square
foot of Premises
(i) "ADDITIONAL RENT": Tenant's Share of Operating Expenses, Tenant's
Share of Taxes, Service Charges and other payments to be made by Tenant to
Landlord pursuant to this Lease.
(j) "TENANT'S PERCENTAGE": Thirty-two and forty-eight hundredths
percent (32.48%). Tenant's Percentage shall be adjusted in the event of a
change in the number of rentable square feet of space in the Building or
Premises and as set forth in Article 2 herein.
(k) "GUARANTOR": Not applicable.
(l) "SECURITY DEPOSIT": $500,000.00 Letter of credit.
(m) "PERMITTED USE": For general office and related purposes
(including, for purposes of illustration and not limitation, vending machines
for non-public use, employee lunchroom (with microwave oven) and a computer
room and for no other purpose.
(n) NOTICE AND PAYMENT ADDRESSES:
Landlord: Meridian Crossings LLC
c/o TOLD Development Company
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Ph: #(612)420-9000
Attn: Law Department
Tenant:
PRIOR TO COMMENCEMENT DATE: Fourth Shift Corporation
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Attn: Chief Financial Officer
w/ a copy to: Fourth Shift Corporation
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Attn:
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AFTER COMMENCEMENT DATE: Fourth Shift Corporation
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Attn: Chief Financial Officer
w/ a copy to: Fourth Shift Corporation
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Attn:
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(o) "LEASE YEAR": The twelve-month period commencing January 1 and
ending December 31, adjusted for partial Lease Years during which the Term
commences and terminates.
(p) "LANDLORD'S IMPROVEMENTS": Improvements to the Premises to be
performed by Landlord as set forth in Exhibit D.
(q) "BROKER OR TENANT REPRESENTATIVE": Welsh Companies and CB
Commercial.
(r) EXHIBITS: the following exhibits are attached to this Lease and
are incorporated herein by reference:
Rider to Lease
Exhibit A - Premises Exhibit D - Landlord's Improvements
Exhibit B - Legal Description & Exhibit E - Services
Site Plan Exhibit E-1 - Janitorial Specifications
Exhibit C - Rules and Regulations Exhibit F - Reserved Parking License
Exhibit G - Estoppel Certificate
Exhibit H - Letter of Credit Form
Exhibit I - Open Stairwell
ARTICLE I
BASE RENT
1.01 Rent Reserved and Monthly Payments. In consideration of the
leasing of the Premises, Tenant agrees to pay to Landlord without setoff,
deduction or demand, unless specifically provided for herein, at the address
set forth in the Data Sheet, or at such other place as Landlord from time to
time may designate in writing, Base Rent as set forth in Article 2,
commencing on the Commencement Date and continuing on the first day of each
and every month thereafter for the next succeeding months during the balance
of the Term. If the Term commences on a date other than the first day of a
calendar month or ends on a date other than on the last day of a calendar
month, monthly rent for such partial month, as the case may be, shall be
obtained by multiplying the number of days in the term within such month by a
fraction, the numerator of which is the annual Base Rent and the denominator
of which is 365.
ARTICLE II
ADDITIONAL RENT
2.01 Additions to Base Rent. In addition to the Base Rent payable by
Tenant under the provisions of Article 1 hereof, Tenant shall pay to Landlord
"Additional Rent" as hereinafter provided.
2.02 Definitions. For purposes of this Article 2, the parties hereto
agree upon the following definitions:
A. The term "Taxes" shall mean and include all personal property
taxes of Landlord relating to Landlord's personal property located in
the Facility and used or useful in connection with the operation and
maintenance thereof, real estate taxes and installments of special
assessments, including interest thereon (excluding penalties or penalty
interest except to the extent resulting from late payments of Tenant),
relating to the Property and Facility, and all other governmental
charges, general and special, ordinary and extraordinary, foreseen as
well as unforeseen, of any kind and nature whatsoever, or other tax,
however described, that is levied or assessed by the United States of
America or the state in which the Facility is located or any political
subdivision thereof, against Landlord or all or any part of the Facility
as a result of Landlord's ownership of the Property or Facility, and due
and payable during the respective Lease Year. It shall not include any
gross receipts or income tax, estate tax, capital gains, or inheritance
tax of Landlord.
B. (1) The term "Operating Expenses" shall mean and include all
expenses incurred with respect to the maintenance and operation of the
Property and Facility, including without limitation the parking areas
and parking structures, as reasonably determined by Landlord's
accountant in accordance with generally accepted accounting principles
consistently followed, including, but not limited to, insurance
premiums, maintenance and repair costs, steam, electricity, water,
sewer, gas, and other utility charges; fuel, lighting,
window washing, janitorial services, trash and rubbish removal; wages
payable to employees of Landlord whose duties are related directly to the
operation and maintenance of the Property and Facility pro rated for
time actually spent at the Property and excluding any personnel above
the rank of building superintendent; amounts paid to contractors or
subcontractors for work or services performed related directly to the
operation and maintenance of the Property and Facility; all costs of
uniforms, supplies and materials used in direct support of the operation
and maintenance of the Property and Facility; all payroll taxes,
unemployment insurance costs, vacation allowances, and the cost of
providing disability insurance or benefits, pensions, profit sharing
benefits, hospitalization, retirement or other so-called fringe
benefits; and any other expense imposed on Landlord, pursuant to law or
pursuant to any collective bargaining agreement covering such employees;
reasonable attorney's fees, and costs in connection with appeal or
contest of real estate taxes or valuation or other taxes or levies, and
such other expenses as may be ordinarily incurred in the operation and
maintenance of an office complex, including reasonable management fees
not to exceed three percent (3%) of gross rental income from the
Facility (for the purpose of this calculation, any free or abated rent
shall be included as if rent was being paid at the amount due
immediately after expiration of said free rent period), the cost of a
management office, and assessments reasonably attributable to the
Facility on account of costs incurred by any business park association
for the business park in which the Facility is located. Operating
Expenses shall also be deemed to include expenses incurred by Landlord
in connection with city sidewalks adjacent to the Property or other
public facility to which Landlord or the Facility is from time to time
subject in connection with operations of the Property and Facility.
(2) The term "Operating Expenses" shall not include any capital
improvement to the Facility, nor shall it include repairs, restoration
or other work occasioned by fire, windstorm or other insured casualty,
expenses incurred in leasing to or procuring tenants, costs that are
separately billed to tenants or any other expenses for which Landlord
receives reimbursement, leasing commissions, expenses for renovating
space for new tenants, legal expenses incident to enforcement by
Landlord of the terms of any lease, interest or principal payments on
any mortgage or other indebtedness, depreciation allowance or expense
other than depreciation on Building equipment to the extent expressly
permitted in paragraph 2.02(B)(3) of this Lease.
(3) Notwithstanding the foregoing, in the event Landlord installs
equipment in or makes improvements or alterations to the Facility that
are for the purpose of reducing energy costs, maintenance costs or other
Operating Expenses or that are required under any governmental laws,
regulations, or ordinances which were not required at the date of
commencement of the term of this Lease, Landlord may include in
Operating Expenses reasonable charges for interest on such investment
and reasonable charges for depreciation on the same so as to amortize
such investment over the reasonable life of such equipment, improvement
or alteration on a straight line basis provided, however, the annual
amount added to Operating Expenses for
equipment, improvements or alterations ("Equipment") for the purpose of
reducing energy costs, maintenance costs or other Operating Expenses
shall not exceed Landlord's reasonable estimate (at the time of
installation, improvement, or alteration) of the annual savings
resulting from such Equipment.
C. The terms "Tenant's Share of Taxes" and "Tenant's Share of
Operating Expenses", unless specifically otherwise defined herein, shall
each mean the percentage that the rentable area of Tenant's Premises is
of the total rentable area in the Facility, subject to adjustment as set
forth in Paragraph D. If said percentage shall change during a Lease
Year, it shall be averaged by applicable days, and the average shall be
Tenant's Share for that year.
D. Notwithstanding anything herein to the contrary, it is agreed
that (i) in the event the Facility is not fully occupied during any
Lease Year, a reasonable and equitable adjustment shall be made by
Landlord to those charges only which vary with the occupancy of the
Facility in computing the Operating Expenses for such year so that the
Operating Expenses shall be adjusted to the amount that would have been
incurred had the Facility been fully occupied during such year, and (ii)
Tenant's share shall be amended for each Lease Year to the percentage
that the average rentable area of the Premises bears to the greater of
(y) ninety-five percent (95%) of the total rentable area of the Facility
for such Lease Year, or (z) to the total average rentable area leased
(pursuant to leases under which the term has commenced) in the Facility
for such Lease Year.
E. The term "Service Charge" shall mean any fee or other charge
for service specified in this Lease as payable by Tenant.
2.03 Additional Rent Estimates: As to each Lease Year after the
initial Lease Year, Landlord shall estimate for each such Lease Year (i) the
total amount of Taxes; (ii) the total amount of Operating Expenses; (iii)
Tenant's Share of Taxes; (iv) Tenant's Share of Operating Expenses; (v) the
computation of the annual and monthly rental payable during such Lease Year
as a result of increases or decreases in Tenant's Share of Taxes and Tenant's
Share of Operating Expenses. Said estimate shall be in writing and Landlord
shall use reasonable efforts to deliver or mail same to Tenant at the
Premises within ninety (90) days of the close of each Lease Year. Landlord
may adjust such estimates from time to time during the Lease Year.
2.04 Payment of Additional Rent Estimates. Tenant shall pay the
Additional Rent so estimated, in equal monthly installments, in advance, on
the first day of each month during each applicable Lease Year. In the event
that said estimate is delivered to Tenant after the first day of January of
the applicable Lease Year, said amount, so estimated, shall be payable as
Additional Rent, in equal monthly installments, in advance, on the first day
of each month over the balance of such Lease Year, with the number of
installments being equal to the number of full calendar months remaining in
such Lease Year.
2.05 Annual Determination of Additional Rent. Upon completion of each
Lease Year, Landlord shall determine the actual amount of Taxes and Operating
Expenses for such Lease Year and Tenant's Share thereof and deliver a
written, itemized certification of the amounts thereof to Tenant. If Tenant
has paid less than its Share of Taxes or its Share of Operating Expenses for
any Lease Year, Tenant shall pay the balance of its Share of the same within
twenty (20) days after the receipt of such statement. If Tenant has paid
more than its Share of Taxes or its share of Operating Expenses for any Lease
Year, Landlord shall, at Tenant's option, either (i) promptly refund such
excess, or (ii) credit such excess against the most current monthly
installment or installments due Landlord for Base Rent and Additional Rent
estimates. A pro rata adjustment shall be made for a fractional Lease Year
occurring during the term of this Lease or any renewal or extension thereof
based upon the number of days of the term of this Lease during said Lease
Year as compared to three hundred sixty-five (365) days and all additional
sums payable by Tenant or credits due Tenant as a result of the provisions of
this Article 2 shall be adjusted accordingly.
2.06 Rental Taxes. Further, Tenant shall pay, also as Additional Rent,
any tax or excise on rents, gross receipts tax, or other tax, however
described, which is levied or assessed by the United States of America or the
state in which the Facility is located or any political subdivision
thereafter, against Landlord in respect to the Base Rent, Additional Rent, or
other charges reserved under this Lease or as a result of Landlord's receipt
of such rents or other charges accruing under this Lease, all of which shall
herein be termed "Rental Taxes"; provided, however, Tenant shall have no
obligation to pay income or capital gains taxes of Landlord.
2.07 Tenant's Taxes. Tenant shall pay, prior to delinquency, all taxes
assessed or levied upon its occupancy of the Premises, or upon the trade
fixtures, furnishings, equipment and all other personal property of Tenant
located in the Premises, and when possible, Tenant shall cause such trade
fixtures, furnishing, equipment and other personal property to be assessed
and billed separately from the property of Landlord. In the event any or all
of Tenant's trade fixtures, furnishings, equipment or other personal
property, or Tenant's occupancy of the Premises, shall be assessed and taxed
with the property of Landlord, Tenant shall pay to Landlord its share of such
taxes within ten (10) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's personal property.
ARTICLE III
OVERDUE AMOUNTS; RENT INDEPENDENT
3.01 Payment of Rent. Any installment of Base Rent, Additional Rent,
or any other charges to be paid by Tenant accruing under the provisions of
this Lease that shall not be paid when due, shall bear interest at the rate
of two (2) points over the quoted prime rate of interest charged by Norwest
Bank Minnesota, N.A. (or its successor) per annum from the date when the same
is due until the same shall be paid, but if such rate exceeds the maximum
interest rate permitted by law, such rate shall be reduced to the highest
rate allowed by law under the circumstances. Landlord agrees that it will
waive the initial twenty (20) days interest accrued in any twelve (12)
consecutive month period. Tenant's covenants to pay the Base Rent and the
Additional Rent are independent of any other covenant, condition, provision
or agreement herein contained.
3.02 No Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the Base Rent, Additional Rent, Service
Charge or other charges ("Rent") stipulated herein shall be deemed to be
other than on account of the earliest stipulated Rent, nor shall any
endorsement or statement on any check or letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord shall
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Rent or pursue any other remedy in this Lease.
ARTICLE IV
TERM AND COMMENCEMENT
4.01 Demise. Landlord hereby demises and leases to Tenant and Tenant
hereby rents and takes from Landlord the Premises for the Term and subject to
and with the benefit of the terms, covenants and conditions of this Lease to
be occupied and used by Tenant solely for the purposes stated on the Data
Sheet and for no other purpose. Landlord shall have the right to grant
exclusive rights to parties in the Facility to conduct service businesses
serving the Property but in no event shall this conflict with Tenant's use as
set forth on the Data Sheet.
4.02 Commencement Date. Tenant shall have and hold the same Premises,
without any liability or obligation on the part of Landlord to make any
alterations, improvements or repairs of any kind in or about the Premises,
except as expressly provided herein, for the Term set forth on the Data
Sheet, unless sooner terminated in the manner provided herein. The Term
hereof shall commence on the Commencement Date. Except as specifically set
forth in Section 27.2 hereinafter, if Landlord is unable to give possession
of the Premises on the Commencement Date because the construction of the
Facility or the completion of the Premises has not been sufficiently
completed to make the Premises ready for occupancy, or for any reason,
Landlord shall not be subject to any claims, damages or liabilities for the
failure to give possession on
said date. Substantial completion of the Premises shall be evidenced by the
issuance of a certificate of occupancy (whether full or partial, temporary or
permanent) for the Premises, provided, however this provision shall not limit
Tenant's right to require Landlord to correct incomplete or defective work
pursuant to Section 4.03, in the Building or Premises. Under said
circumstances, the Rent reserved and covenant to pay same shall not commence
until possession of the Premises is given and the Premises are ready for
occupancy, whichever is earlier, and failure to give possession on the
Commencement Date shall in no way affect the validity of this Lease or the
obligations of Tenant hereunder, except that Tenant's obligation to make
rental and other required payments (other than pursuant to Article XXIII
herein) shall be deferred and there shall be a corresponding extension of the
Expiration Date.
4.03 Acceptance of Premises. The acceptance of possession by Tenant
shall be deemed conclusively to establish that the Premises and all other
improvements of the Facility required to be constructed by Landlord for use
thereof by Tenant have been completed unless Tenant notifies Landlord in
writing within thirty (30) days after commencement of the term as to any
items not completed. Tenant waives any claim as to matters not listed in
said notice other than latent defects for which Tenant provides Landlord
notice within twelve (12) months from substantial completion of the Premises.
ARTICLE V
SERVICES
5.01 Landlord's Services. Subject to including the cost thereof in
Article 2, Landlord shall provide services as stated in Exhibit "E", without
further charge except as expressly stated otherwise.
5.02 Interruption of Services. No interruption in, or temporary
stoppage of, any of the aforesaid services caused by repairs, renewals,
improvements, alterations, strikes, lockouts, labor controversy, accidents,
inability to obtain fuel or supplies or other causes shall be deemed an
eviction or disturbance of Tenant's use and possession, or render Landlord
liable for damages, by abatement of rent or otherwise or relieve Tenant from
any obligation herein set forth. In no event shall Landlord be required to
provide any heat, air conditioning, electricity or other service in excess of
that permitted by involuntary guidelines or laws, ordinances or regulations
of governmental authority.
5.03 Anything in this Lease to the contrary notwithstanding, Landlord
shall have the right to specially assess Tenant a Service Charge for
additional services specially requested by Tenant or other items of Operating
Expenses (and shall reduce the total of Operating Expenses accordingly) to
the extent Landlord can reasonably demonstrate Tenant's use or consumption
thereof due to hours of operation, equipment operated from the Premises, or
other reasons, warrant such assessment.
ARTICLE VI
INSURANCE
6.01 Landlord's Insurance.
A. Landlord's Casualty Insurance. Landlord shall, as a portion of
Operating Expenses, keep the Facility insured for the benefit of Landlord in
an amount equivalent to the full replacement value thereof (excluding
foundation, grading and excavation costs) against (a) loss or damage by fire;
and (b) such other risk or risks of a similar or dissimilar nature as are
now, or may in the future be, customarily covered with respect to buildings
and improvements similar in construction, general location, use, occupancy
and design to the Facility, including, but without limiting, the generality
of the foregoing, windstorms, hail, explosions, vandalism, theft, malicious
mischief, civil commotion, law and ordinance, and such other coverage as may
be deemed necessary by Landlord, provided such additional coverage is
obtainable and provided such additional coverage is such as is customarily
carried with respect to buildings and improvements similar in construction,
general location, use, occupancy and design to the Facility.
B. Landlord's Liability Insurance. Landlord shall, as a portion of
the Operating Expenses, maintain, for its benefit and the benefit of its
managing agent and lender, commercial general liability insurance against
claims for personal injury, death or property damage occurring upon, in or
about the Facility.
These insurance provisions shall in no way limit or modify any of the
obligations of Tenant under any provision of this Lease.
6.02 Tenant's Insurance.
(a) Tenant's Casualty Insurance. Tenant shall keep all of its
machinery, equipment, furniture, fixtures, personal property (including also
property under the care, custody, or control of Tenant) and business
interests that may be located in, upon, or about the Premises insured for the
benefit of Tenant in an amount equivalent to the full replacement value or
insurable value thereof against (a) loss or damage by fire; and (b) such
other risk or risks of a similar or dissimilar nature as are now, or may in
the future be, customarily covered with respect to a tenant's machinery,
equipment, furniture, fixtures, personal property and business located in a
building similar in construction, general location, use, occupancy and design
to the Facility, including, but without limiting the generality of the
foregoing, windstorms, hail, explosions, vandalism, theft, malicious
mischief, civil commotion, and such other coverage as Tenant may deem
appropriate or necessary. Tenant shall have the right to provide this
coverage by means of blanket coverage.
(b) Tenant's Liability Insurance. Tenant shall, at Tenant's sole cost
and expense maintain commercial general liability insurance against claims
for bodily and personal injury, death or property damage occurring upon, in
or about the Premises, such insurance to afford protection to the limit of
not less than One Million and No/100 Dollars ($1,000,000.00) per each
occurrence, and to the amount of not less than Two Million and No/100 Dollars
($2,000,000.00) in general aggregate. Such policies of insurance shall be
written in companies reasonably satisfactory to Landlord, naming Landlord,
its lender and Landlord's managing agent as additional insureds thereunder,
and certificate of such insurance shall be delivered to Landlord by the
company or agency issuing the same. Tenant agrees to include in such policy
contractual liability coverage insuring Tenant's indemnification obligations
provided for herein. Tenant shall have the right to provide this coverage by
means of blanket coverage.
6.03 Releases and Indemnity.
(a) Tenant's Indemnification. Tenant agrees to indemnify and save
Landlord and its managing agent harmless against and from any and all claims,
loss, damage and expense by or on behalf of any person or persons, firm or
firms, corporation or corporations, arising from any breach or default on the
part of Tenant in the performance of any covenant or agreement on the part of
Tenant to be performed, pursuant to the terms of this Lease, or arising from
any act or negligence on the part of Tenant or its agents, contractors,
servants, employees or licensees, or arising from any accident, injury or
damage to the extent caused by Tenant, its agents, and employees to any
person, firm or corporation occurring during the term of this Lease or any
renewal thereof, in or about the Premises and Project, and from and against
all costs, reasonable counsel fees, expenses and liabilities incurred in or
about any such claim or action or proceeding which may be brought thereon;
and in case any action or proceeding be brought against Landlord or its
managing agent by reason of any such claim, Tenant, upon notice from
Landlord, covenants to resist or defend such action or proceeding by counsel
reasonably satisfactory to Landlord.
(b) Landlord's Indemnification. Landlord agrees to indemnify and save
Tenant harmless against and from any and all claims, loss, damage and expense
by or on behalf of any person or persons, firm or firms, corporation or
corporations, arising from any breach or default on the part of Landlord in
the performance of any covenant or agreement on the part of Landlord to be
performed, pursuant to the terms of this Lease, or arising from any act or
negligence on the part of Landlord or its agents, contractors, servants,
employees or licensees, or arising from any accident, injury or damage to the
extent caused by Landlord, its agents, and employees to any person, firm or
corporation occurring during the term of this Lease or any renewal thereof,
in or about the Premises and Project, and from and against all costs,
reasonable counsel fees, expenses and liabilities incurred in or about any
such claims, actions or proceeding brought thereon; and in case any action or
proceeding is brought against Tenant by reason of any such
claim, Landlord, upon notice from Tenant, covenants to resist or defend such
action or proceeding by counsel reasonably satisfactory to Tenant.
(c) Tenant's Waiver. Tenant agrees, to the extent not expressly
prohibited by law, that Landlord, its agents, employees and servants shall
not be liable, and Tenant waives all claims for damage to property and
business sustained during the term of this Lease by Tenant occurring in or
about the Facility, resulting directly or indirectly from any existing or
future condition, defect, matter or thing in the Premises, the Facility, or
any part thereof, or from equipment or appurtenances becoming out of repair
or from accident, or from any occurrence or act or omission of Landlord, its
agents, employees or servants, or any tenant or occupant of the Building or
any other person unless caused by the negligence or intentional act of
Landlord, its agents or employees. This paragraph shall apply especially,
but not exclusively, to damage caused as aforesaid or by the flooding of
basements or other subsurface areas, or by refrigerators, sprinkling devices,
air conditioning apparatus, water, snow, frost, steam, excessive heat or
cold, falling plaster, broken glass, sewage, gas, odors or noise, or the
bursting or leaking of pipes or plumbing fixtures, and shall apply equally,
whether any such damage results from the act or omission of other tenants or
occupants in the Facility or any other persons, and whether such damage be
caused by or result from any of the aforesaid, or shall be caused by or
result from other circumstances of a similar or dissimilar nature.
(d) Tenant's Liability. All property in the Facility or on the
Premises belonging to Tenant, its agents, employees, invitees or otherwise
located at the Premises, shall be at the risk of Tenant only, and Landlord
shall not be liable for damage thereto or theft, misappropriation or loss
thereof unless caused by the gross negligence or willful misconduct of
Landlord, it agents, or employees and Tenant agrees to defend and hold
Landlord, its agents, employees and servants harmless and indemnify them
against claims and liability for injuries to such property other than that
caused by the gross negligence or willful misconduct of Landlord, its agents,
or employees.
(e) Releases. Landlord and Tenant each agree that such policy or
policies of insurance for loss or damage by fire or other risks shall permit
releases of liability as herein provided and include a waiver of subrogation
clause as to Tenant and Landlord respectively. Each party hereto waives,
releases and discharges the other party from all claims or demands whatsoever
which the waiving party may have arising out of damage to or destruction of
the waiving party's property or loss of use thereof occasioned by fire of
other casualty, which such claim or demand may arise because of the
negligence or fault of the other party, its agents, employees, customers or
business invitees, or otherwise and the waiving party agrees to look to its
insurance coverage only in the event of such loss.
ARTICLE VII
CERTAIN RIGHTS RESERVED BY LANDLORD
7.01 Rights Reserved. Landlord reserves the following rights
exercisable without notice unless otherwise noted and without liability to
Tenant and without affecting an eviction, constructive or actual, or
disturbance of Tenant's use of possession, or giving rise to any claim for
setoff or abatement of rent:
A. To control, install, affix and maintain any and all signs on
the Property, or on the exterior of the Facility and in the corridors, entrances
and other common areas thereof, except as provided in Article XXX hereof, and
except those signs within the Premises not visible from outside the Premises.
B. To reasonably designate, limit, restrict and control any service
in or to the Facility, including but not limited to the designation of sources
from which Tenant may obtain sign painting and lettering. Any restriction,
designation, limitation or control imposed by reason of this subparagraph shall
be imposed uniformly on Tenant and other tenants in the Facility.
C. To retain at all times and to use in appropriate instances, keys
or other means of access to all doors within and into the Premises. No locks
shall be changed without prior written consent of Landlord. This provision
shall not apply to Tenant's safes, or other areas maintained by Tenant for the
safety and security of monies, securities, negotiable instruments or like items.
D. To make repairs, alterations, additions, or improvements, whether
structural or otherwise, in and about the Facility, or any part thereof, and for
such purposes to enter upon the Premises, and during the continuation of any of
said work, to temporarily close doors, entryways, public spaces, and corridors
in the Facility and to temporarily interrupt or temporarily suspend services and
facilities.
E. To restrict or prohibit vending or dispensing machines of any
kind in or about the Premises for use by the general public (as opposed to
Tenant's employees and business invitees).
F. To approve the weight, size and location of safes and other heavy
equipment and articles in and about the Premises and the Facility and to require
all such items to be moved into and out of the Facility and the Premises only at
such times and in such manner as Landlord shall direct in writing.
ARTICLE VIII
ALTERATIONS AND IMPROVEMENTS
8.01 Alterations. Tenant shall not make any improvements, alterations,
additions or installations in or to the Premises (hereinafter referred to as
the "Work") without Landlord's prior written consent, which consent shall not
be unreasonably withheld, conditioned or delayed. Along with any request for
Landlord's consent and before commencement of the Work or delivery of any
materials to be used in the Work to the Premises or into the Facility, Tenant
shall furnish Landlord with plans and specifications, names and addresses of
contractors, copies of contracts, necessary permits and licenses, and except
when Landlord, its agent or affiliate is contractor, an indemnification in
such form and amount as may be reasonably satisfactory to Landlord. Tenant
agree to defend and hold Landlord harmless from any and all claims and
liabilities of any kind and description that may arise out of or be connected
in any way with said improvements, alterations, additions or installations.
All work done by Tenant, its agents, employees, or contractors shall be done
in such a manner as to avoid labor disputes. Tenant shall pay the cost of
all such improvements, alterations, additions or installations, and also the
cost of painting, restoring, or repairing the Premises and the Facility
occasioned by such improvements, alterations, additions or installations.
Upon completion of the Work, Tenant shall furnish Landlord with contractor's
sworn affidavits and full and final waivers of liens, or receipted bills
covering all labor and materials expended and used. The Work shall comply
with all insurance requirements and all laws, ordinances, rules and
regulations of all governmental authorities and shall be constructed in a
good and workmanlike manner. Tenant shall permit Landlord to inspect
construction operations in connection with the Work. Tenant shall not be
allowed, without Landlord's reasonable approval, to perform such Work if such
action results or would result in a labor dispute or otherwise would
materially interfere with Landlord's operation of the Facility.
ARTICLE IX
REPAIRS
9.01 Tenant's Duty of Repair. Tenant shall, during the term of this
Lease, at Tenant's expense, keep the Premises in as good order, condition and
repair as they were at the time Tenant took possession of the same,
reasonable wear and tear and damage from fire and other casualties excepted.
Tenant shall keep the Premises in a neat and sanitary condition and shall not
commit any nuisance or waste on the Premises or in, on, or about the
Facility, throw foreign substances in the plumbing facilities, or waste any
of the utilities furnished by the Landlord. All uninsured damage or injury
to the Premises, or to the Facility caused by Tenant moving furniture,
fixtures, equipment, or other devices in or out of the Premises or Facility
or by installation or removal of furniture, fixtures, equipment, devices or
other property of Tenant, its agents, contractors, servants or employees, due
to carelessness, omission, neglect, improper conduct, or other cause of
Tenant, its servants, employees, agents, visitors, or licensees, shall be
repaired, restored and replaced promptly by Tenant at its sole cost and
expense to the reasonable satisfaction of Landlord. All repairs, restorations
and replacements shall be in quality and class equal to the original work.
9.02 Right of Entry. Landlord or its employees or agents shall have
the right to enter the Premises at any reasonable time or times for the
purpose of inspection, cleaning, repairs, altering, or improving the same but
nothing contained herein shall be construed as imposing any obligation on
Landlord to
make any repairs, alterations or improvements that are the obligation of
Tenant. See Rider Article XXXI.
ARTICLE X
ASSIGNMENT AND SUBLETTING
10.01 Assignment by Tenant. Tenant shall not, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld
delayed or conditioned, (i) transfer, pledge, mortgage or assign this Lease
or any interest hereunder; (ii) permit any assignment of this Lease by
voluntary act, operation of law or otherwise; (iii) sublet the Premises or
any part thereof; or (iv) permit the regular use of the Premise by any
parties other than Tenant, its agents and employees. Tenant shall seek such
written consent of Landlord by a written request therefore, setting forth
such information as Landlord may reasonably deem necessary. Tenant shall, by
notice in writing, advise Landlord of its intention from, on and after a
stated date which shall not be less than thirty (30) days after date of
Tenant's notice, to assign this Lease or sublet any part or all of the
Premises for the balance of the Term. Tenant's notice shall state the name
and address of the proposed assignee or subtenant and a true and complete
copy of the proposed assignment or sublease shall be delivered to Landlord
with Tenant's notice along with any consideration therefor. Landlord will not
unreasonably withhold, delay, or condition its consent to Tenant's assignment
of the Lease or subletting of such space and incidental rights to the party
identified in Tenant's notice.
10.02 Payment to Landlord.
A. Landlord will not unreasonably withhold, delay, or condition its
consent to Tenant's assignment of the Lease or subletting of such space and
incidental rights to the party identified in Tenant's notice, provided, however,
that in the event Landlord consents to any such assignment or subletting, and as
a condition thereto, Tenant shall pay to Landlord, fifty percent (50%) of all
net profit derived by Tenant from such assignment or subletting other than to
affiliates of Tenant. For purposes of the foregoing, net profit shall be deemed
to include, but not be limited to, the amount of all rent payable by such
assignee or sublessee in excess of the Base Rent and rent adjustments payable by
Tenant under this Lease, net of all reasonable expenses (including new tenant
improvements, commissions, rent abatement and similar costs of subleasing)
incurred by Tenant in obtaining said assignee or sublessee.
If a part of the consideration for such assignment or subletting
shall be payable other than in cash, the payment to Landlord shall be in cash
for its share of any non-cash consideration based upon the fair market value
thereof.
B. Tenant shall furnish to Landlord upon request a complete
statement, certified by an independent certified public accountant, setting
forth in
detail the computation of all profit, pursuant to generally accepted accounting
principles. Tenant agrees that Landlord shall have the right to review its
books and records used to determine profit for the assignment or sublease. Any
profit shall be paid to Landlord within fifteen (15) days of receipt by Tenant
of all payments made from time to time by such assignee or sublessee to Tenant.
10.03 Terms of Sublease. Any subletting or assignment hereunder
shall not release or discharge Tenant of or from any liability, whether past,
present or future, under this Lease, and Tenant shall continue fully liable
thereunder unless Landlord shall agree otherwise in writing. The subtenant
or assignee shall agree in a form satisfactory to Landlord to comply with and
be bound by all of the terms, covenants, conditions, provisions and
agreements of this Lease to the extent of the space sublet or assigned, and
Tenant shall deliver to Landlord promptly after execution an executed copy of
each such sublease or assignment and an agreement of compliance by each such
subtenant or assignee. Consent by Landlord to any assignment of this Lease or
to any subletting of the Premises shall not be a waiver of Landlord's rights
under this Article as to any subsequent assignment or subletting.
10.04 As long as Tenant remains a publicly-held corporation, a transfer
of any shares in Tenant shall not be deemed an assignment under this Lease.
10.05 Miscellaneous. Any sale, assignment, mortgage, transfer, or
subletting of this Lease which is not in compliance with the provisions of
this Article 10 shall be of no effect and void. Landlord's right to assign
its interest in this Lease shall remain unqualified.
ARTICLE XI
DAMAGE BY FIRE OR OTHER CASUALTY
11.01 Premises Destruction. If fire or other casualty shall render the
whole or any material portion of the Premises untenantable, then:
A. If the Premises can reasonably be expected to be made tenantable
within two hundred ten (210) days from the date of such event, Landlord shall
repair and restore the Premises and the Facility to as near their condition
prior to the fire or other casualty as is reasonably possible within such two
hundred ten (210) day period (subject to delays for causes beyond Landlord's
reasonable control) and notify Tenant that it will be doing so, such notice to
be mailed within thirty (30) days from the date of such damage or destruction,
and this Lease shall remain in full force and effect, but the Rent for the
period during which the Premises are untenantable shall be abated pro rata
(based upon the portion of the Premises which is untenantable).
B. If the Premises cannot reasonably be expected to be made
tenantable within two hundred ten (210) days from the date of such event, either
Landlord or Tenant by notice in writing to the other mailed within forty-five
(45) days from the date of such damage or destruction, may terminate this Lease
effective upon a date within thirty (30) days from the date of such notice.
11.02 Complex Destruction. In the event that more than fifty
percent (50%) of the value of the Facility is damaged or destroyed by fire or
other casualty, and irrespective of whether damage or destruction can be made
tenantable within two hundred ten (210) days thereafter, then at Landlord's
option, by written notice to Tenant, mailed within thirty (30) days from the
date of such damage or destruction, Landlord may terminate this Lease
effective upon a date within ninety (90) days from the date of such notice to
Tenant. In the event of a termination of this Lease pursuant to this Article
11, Rent shall be apportioned on a per diem basis to the date of the fire or
casualty. If fifty percent (50%) or more of the value of the Facility is
damaged and destroyed by fire or other casualty during the last year of the
Lease Term and Tenant's Premises are substantially damaged and made
untenantable, Tenant may, upon thirty (30) days written notice to Landlord
mailed within thirty (30) days from the date of such damage or destruction,
terminate this Lease effective upon the date of notice.
11.03 Duty to Repair; Rent Abatement. If fire or other casualty shall
render the whole or any part of the Premises untenantable and the Premises
cannot reasonably be expected to be made tenantable within two hundred ten
(210) days from the date of such event and neither Landlord nor Tenant
terminates this Lease pursuant to its right herein; or in the event that more
than fifty percent (50%) of the value of the Facility is damaged or destroyed
by fire or other casualty, and neither party hereto terminates this Lease
pursuant to the options granted herein, or in the event that fifty percent
(50%) or less of the value of the Facility is damaged or destroyed by fire or
other casualty and neither the whole nor any material portion of the Premises
is rendered untenantable, then Landlord shall repair and restore the Premises
and the Facility to as near their condition prior to the fire or other
casualty as is reasonably possible, the work to be commenced and prosecuted
with all due diligence and speed (subject to delays for causes beyond
Landlord's reasonable control), and the Rent for the period during which the
Premises are untenantable shall be abated pro rata (based upon the portion of
the Premises that is untenantable). In no event shall Landlord be obligated
to repair or restore any special equipment or improvements installed by
Tenant at Tenant's expense.
ARTICLE XII
EMINENT DOMAIN
12.01 Public Taking. If the whole of or any substantial part of the
Premises is taken by any public authority under the power of eminent domain,
or taken in any manner for any public or quasi-public use, so as to render
(in Tenant's reasonable judgment) the remaining portion of the Premises
unsuitable
for the purposes intended hereunder, then the term of this Lease shall cease
as of the day possession shall be taken by such public authority and Landlord
shall make a pro rata refund of any prepaid Rent. All damages awarded for
such taking under the power of eminent domain or any like proceedings shall
belong to and be the property of Landlord, Tenant hereby assigning to
Landlord its interest, if any, in said award. In the event that fifty
percent (50%) or more of the building area or fifty percent (50%) or more of
the value of the Facility is taken by public authority under the power of
eminent domain, then, at Landlord's option, by written notice to Tenant,
mailed within sixty (60) days from the date possession shall be taken by such
public authority, Landlord may terminate this Lease effective upon a date
within ninety (90) days from the date of such notice to Tenant.
12.02 Tenant's Election. Further, if the whole or any material part
of the Premises is taken by public authority under the power of eminent
domain, or taken in any manner for any public or quasi-public use, so as to
render the remaining portion of the Premises unsuitable in Tenant's
reasonable opinion, for the purposes intended hereunder, upon delivery of
possession to the condemning authority pursuant to the proceedings, Tenant
may, at its option, terminate this Lease as to the remainder of the Premises
by written notice to Landlord, such notice to be given to Landlord within
sixty (60) days after Tenant receives notice of the taking. Tenant shall not
have the right to terminate this Lease pursuant to the preceding sentence
unless (i) the business of Tenant conducted in the portion of the Premises
taken cannot, in Tenant's reasonable judgment, be carried on with
substantially the same utility and efficiency in the remainder of the
Premises [or any substitute space securable by Tenant pursuant to clause (ii)
hereof]; and (ii) Tenant cannot secure substantially similar (in Tenant's
reasonable judgment) alternate space upon the same terms and conditions as set
forth in this Lease (including rental) from Landlord in the Facility. Any
notice of termination shall specify a date no more than one hundred sixty (160)
days after the giving of such notice as the date for such termination.
12.03 Tenant's Damages. Anything in this Article 12 to the contrary
notwithstanding, Tenant shall have the right to prove in any condemnation
proceedings and to receive any separate award which may be made for damages
to or condemnation of Tenant's movable trade fixtures and equipment and for
moving expenses; provided, however, Tenant shall in no event have any right
to receive any award for its interest in this Lease or for loss of leasehold.
12.04 Restoration and Rent. Anything in this Article 12 to the
contrary notwithstanding, in the event of a partial condemnation of the
Facility or the Premises and this Lease is not terminated, Landlord shall, at
its sole cost and expense, expeditiously restore the Premises and Facility to
a complete architectural unit and the Base Rent provided for herein during
the period from and after the date of delivery of possession pursuant to such
proceedings to the termination of this Lease shall be reduced to a sum equal
to the product of the
Base Rent provided for herein multiplied by the area of the Premises restored
after the condemnation.
ARTICLE XIII
SURRENDER OF PREMISES
13.01 Surrender by Tenant. On the last day of this Lease, or on the
sooner termination thereof, Tenant shall peaceably surrender the Premises in
good condition and repair consistent with Tenant's duty to make repairs as
herein provided. On or before the last day of the term of this Lease, or the
date of sooner termination thereof, Tenant shall, at its sole cost and
expense, remove all of its property and trade fixtures and equipment from the
Premises, and all property not removed shall be deemed abandoned. Tenant
hereby appoints Landlord its agent to remove all property of Tenant from the
Premises upon termination of this Lease and to cause its transportation and
storage for Tenant's benefit, all at the sole cost and risk of Tenant, and
Landlord shall not be liable for damage, theft, misappropriation or loss
thereof, and Landlord shall not be liable in any manner in respect thereto.
Tenant shall pay all costs and expenses of such removal, transportation and
storage. Tenant shall leave the Premises in good order, condition and
repair, reasonable wear and tear and damage from fire and other casualty
excepted. Tenant shall reimburse Landlord upon demand for any expenses
incurred by Landlord with respect to removal, transportation, or storage of
abandoned property and with respect to restoring said Premises to good order,
condition and repair. All alterations, additions and fixtures, other than
Tenant's trade fixtures and equipment, that have been made or installed by
either Landlord or Tenant upon the Premises, shall remain the property of
Landlord and shall be surrendered with the Premises as a part thereof.
Tenant shall promptly surrender all keys for the Premises to Landlord at the
place then fixed for the payment of Rent and shall inform Landlord of
combinations on any vaults, locks and safes left on the Premises.
13.02 Holding Over. In the event Tenant remains in possession of
the Premises after expiration of this Lease, and without the execution of a
new lease, but with Landlord's written consent, it shall be deemed to be
occupying the Premises as a tenant from month-to-month, subject to all the
provisions, conditions and obligations of this Lease insofar as the same can
be applicable to a month-to-month tenancy, except that the Base Rent shall be
escalated to Landlord's then current Base Rent for the Premises according to
Landlord's then current rental rate schedule for prospective tenants. In the
event Tenant remains in possession of the Premises after expiration of this
Lease and without the execution of a new lease and without Landlord's written
consent, Tenant shall be deemed to be occupying the Premises without claim of
right and Tenant shall pay a charge for each day of occupancy an amount equal
to one hundred fifty percent (150%) of the Base Rent and Additional Rent (on
a daily basis) then currently being charged by Landlord on new leases in the
Facility for space similar to the Premises.
ARTICLE XIV
DEFAULT
14.01 Remedies Cumulative. All rights and remedies of Landlord herein
enumerated shall be cumulative and are not intended to be exclusive of any
other remedies or means of redress to which Landlord may lawfully be entitled
in case of any breach or threatened breach of Tenant of any provision of this
Lease. The failure of Landlord to insist in any one or more cases upon the
strict performance of any of the covenants of this Lease or to exercise any
option herein contained shall not be construed as a waiver or relinquishment
for the future of such covenant or option. A receipt by Landlord of Rent
with knowledge of the breach of any covenant hereof (other than breach of the
obligation to pay the portion of such Rent paid) shall not be deemed a waiver
of such breach, and no waiver by Landlord or Tenant of any provisions of this
Lease shall be deemed to have been made unless expressed in writing and
signed by Landlord or Tenant, as the case may be. In addition to the other
remedies in this Lease provided, Landlord or Tenant shall be entitled to the
restraint by injunction of the violation or attempted or threatened violation
of the covenants, conditions and provisions of this Lease.
14.02 Tenant Change in Status. If, during the term of this Lease or
any renewal term, (i) Tenant shall make an assignment for the benefit of
creditors, or (ii) a voluntary petition be filed by Tenant under any law
having for its purpose the adjudication of Tenant a bankrupt, or Tenant be
adjudged a bankrupt pursuant to an involuntary petition in bankruptcy and the
same not be dismissed or stayed within sixty (60) days of its filing, or
(iii) a receiver be appointed for the property of Tenant by reason of the
insolvency of Tenant, or (iv) any department of the state or federal
government, or any officer thereof, duly authorized, shall take possession of
the business or property of Tenant by reason of the insolvency of Tenant and
such action not be stayed or terminated within sixty (60) days thereafter,
then, the occurrence of any of such contingencies shall be deemed a breach of
this Lease and this Lease shall ipso facto upon the happening of any of said
contingencies be terminated and the same shall expire as fully and completely
as if the day fixed for the expiration of the initial term of this Lease or
any renewal term, as the case may be, had occurred, and Tenant will then quit
and surrender the Premises, but Tenant shall remain liable as hereinafter
provided. As used in this paragraph, the term "Tenant" shall also mean any
guarantor of Tenant's obligations under this Lease.
14.03 Tenant Breach. If, during the initial term of this Lease or any
renewal term, (i) Tenant defaults in any payment of the Rent expressly
reserved hereunder for ten (10) days after receipt of written notice thereof,
or any part of the same; (ii) Tenant shall default in fulfilling any of the
covenants, obligations, or agreements of this Lease (other than the covenants
for the payment of Rent
payable by Tenant hereunder), or (iii) this Lease, without the prior written
consent of Landlord or except as expressly permitted, shall be assigned,
pledged, mortgaged, transferred, or sublet in any manner, and such default in
(ii) shall continue for thirty (30) days after service of notice of the
default by Landlord, or in the event of a default or contingency set forth in
(ii) hereinabove cannot with due diligence be cured within a period of thirty
(30) days, if Tenant fails to proceed promptly after the service of said
notice and with all due diligence to commence to cure the same and thereafter
to prosecute the curing of such default with all due diligence [it being
intended that in connection with a default not susceptible of being cured
with diligence within thirty (30) days, the time within which Tenant is to
cure the same shall be extended for such period as may be reasonably necessary
to complete the same with all due diligence], Landlord, at its option, may
pursue the remedies as set forth hereinafter.
14.04 Remedies upon Default. In the event of a default by Tenant as
set forth hereinabove, Landlord, at its option, may (i) terminate this Lease
and upon such termination Tenant will quit and surrender the Premises to
Landlord but Tenant shall remain liable as hereinafter provided, or (ii)
without terminating the Lease, Landlord or Landlord's agent or servant may
re-enter the Premises and remove all persons and all or any property
therefrom, either by summary dispossession proceedings or otherwise, without
being liable to indictment, prosecution, or damage therefore and repossess
and enjoy the Premises, together with all additions, alterations and
improvements, without such re-entry and repossession working a forfeiture or
waiver of the Rents to be paid and the covenants to be performed by Tenant
during the full term of this Lease.
A. Reletting.
(1) Upon termination of this Lease or expiration of Tenant's right to
occupy the Premises by reason of the happening of any of the foregoing
events, or in any other manner or circumstances whatsoever, whether
with or without legal proceedings, by reason of or based upon or
arising out of a default or breach of this Lease on the part of
Tenant, Landlord may, at its option, at any time and from time to time
relet the Premises or any part or parts thereof, for the account of
Tenant or otherwise, and receive and collect the rent therefore,
applying the same first to the payment of such expenses as Landlord
may have incurred in recovering possession of the Premises, including
the attorney's fees and expenses for putting the same into good order
and condition or preparing or altering the same for re-rental to the
extent Landlord deems necessary or desirable and all other
commercially reasonable expenses, commissions and charges paid,
assumed or incurred by Landlord in or about reletting the Premises and
then to the fulfillment of the covenants of Tenant hereunder. Any
such reletting herein provided for may be for the remainder of the
initial term or any renewal term of this Lease, as originally granted,
or for a longer or shorter period;
Landlord shall have the right to change the character and use made
of the Premises, and Landlord shall not be required to accept any
substitute tenant offered by Tenant or to observe any instructions
given by Tenant about reletting.
(2) In any such case, and whether or not the Premises or any part
thereof be relet, Tenant shall pay to Landlord the Base Rent and
all Additional Rent and other charges required to be paid by Tenant
up to the later of the time of such termination of the Lease or of
such recovery of possession of the Premises by Landlord, as the
case may be, and thereafter, except in a case in which liability of
Tenant (as hereinafter provided), arises by reason of the happening
of the insolvency of Tenant, Tenant covenants and agrees, if
required by Landlord, to pay to Landlord until the end of the
initial term of this Lease, or any renewal term, as the case may
be, the equivalent of the amount of all Rent reserved hereunder,
and all other charges required to be paid by Tenant, less the net
proceeds of reletting, if any. Landlord shall have the election in
place of holding Tenant so liable forthwith to recover against
Tenant as damages for loss of the bargain and not as a penalty, an
aggregate sum which at the time of such termination of this Lease
or of such recovery of possession of the Premises by Landlord, as
the case may be, represents the then present worth of the excess,
if any, of the aggregate of the Rent and all other charges payable
by Tenant hereunder that would have accrued for the balance of the
initial term, or any renewal term, as the case may be, over the
then present worth of the fair market rents and all other charges
for the Premises for the balance of such term.
14.05 Remedies Upon Insolvency. If this Lease shall terminate by
reason of the bankruptcy or insolvency of Tenant, as above set forth,
Landlord shall be entitled, notwithstanding any other provisions of this
Lease or any present or future law, to recover from Tenant or Tenant's estate
(in lieu or the equivalent of the amount of all rent unpaid at the time of
such termination) as damages for loss of the bargain, and not as a penalty,
an aggregate sum which, at the time of such termination of this Lease,
represents the excess, if any, of the then present worth of the aggregate of
the Rent and other charges payable by Tenant hereunder that would have
accrued for the balance of the initial term and/or renewal term, as the case
may be, over the then present worth of the fair market rents and all other
charges for the Premises for the balance of the initial term or any renewal
term, as the case may be, unless any statute or rule of law governing the
proceedings in which such damages are to be proved shall limit the amount of
such claim capable of being so proved. In such case, Landlord shall be
entitled to prove, as damages by reason of such breach and termination, the
maximum amount allowed by law or statute. Nothing herein contained shall
limit or prejudice Landlord's right to prove and obtain as liquidated damages
arising out of such breach or termination the maximum
amount allowed by any such statute or rule of law which may govern the
proceedings in which such damages are to be proved whether or not such amount
be greater, equal to, or less than the amount of the excess of the then
present worth of the rent and all other charges reserved herein over the then
present worth of the fair market rents and all other charges, referred to
above.
14.06 Fees and Expenses. Tenant shall pay, upon demand, all of
Landlord's costs, charges and expenses, including reasonable attorney's fees
and fees of agents and others retained by Landlord, for the enforcement of
Tenant's obligations hereunder or incurred by Landlord in any litigation,
negotiation or transaction in which Tenant causes Landlord without Landlord's
fault to become involved or concerned. The prevailing party in any
litigation concerning this Lease shall recover all reasonable attorney's fees
and other expenses in addition to costs taxable at law.
ARTICLE XV
SUBORDINATION AND ESTOPPEL
15.01 Subordination of Lease. This Lease shall be subject and
subordinate to any mortgage, deed of trust or ground lease now or hereafter
placed upon the Premises, the Facility, the Property, or any portion thereof
by Landlord, its successors or assigns, and to amendments, replacements,
renewals and extensions thereof, provided that any holder of any mortgage or
deed of trust shall, as a condition for such subordination, agree not to
disturb Tenant's Lease or occupancy of the premises provided Tenant is not in
default beyond the period allowed for cure hereunder.
A. Subject to the foregoing provision of this Section 15.01,
Tenant agrees at any time hereafter, upon demand, to execute and deliver any
instruments, releases, or other documents reasonably acceptable to Tenant
that may reasonably be required for the purpose of subjecting and
subordinating this Lease, as above provided, to the lien of any such
mortgage, deed of trust or ground lease. The above subordination shall be
effective without the necessity of the execution and delivery of any further
instruments on the part of Tenant to effectuate such subordination.
Notwithstanding anything hereinabove contained in this Article 15, in the
event the holder of any mortgage, deed of trust or ground lease, shall so
elect, then, and in such event, upon any such holder or landlord notifying
Tenant to that effect in writing, this lease shall be deemed prior and
superior in lien to such mortgage, deed of trust, ground lease, whether this
Lease is dated prior to or subsequent to the date of such mortgage, deed of
trust or ground lease and Tenant shall execute such attornment agreement as
may be reasonably requested by said holder.
B. Provided that the mortgagee, ground lessor or trust deed
holder under any first mortgage, ground lease, first deed of trust or other
security instrument shall have notified Tenant in writing (by the way of a
notice of
assignment of lease or otherwise) of its address, Tenant shall give
such mortgagee, ground lessor or trust deed holder, or other secured
party ("Mortgagee"), simultaneously with delivery of notice to Landlord,
by registered or certified mail, a copy of any such notice of default
served upon Landlord. Tenant further agrees that said Mortgagee shall
have the right to cure any alleged default during the same period that
Landlord has to cure such default.
C. Tenant agrees from time to time upon not less than ten (10)
days prior written request by Landlord to deliver to Landlord a
statement in writing certifying in the form set forth on Exhibit "G"
attached hereto and made a part hereof by reference (i) this Lease is
unmodified and in full force and effect (or if there have been
modifications, that the Lease as modified is in full force and effect
and stating the modifications); (ii) the dates to which the rent and
other charges have been paid; (iii) Landlord is not default in any
provision of this Lease or, if in default, the nature thereof specified
in detail; (iv) the amount of monthly rental currently payable by
Tenant; (v) the amount of any prepaid rent, and (vi) such other matters
as may reasonably be requested by Landlord or any Mortgagee or
prospective purchaser of the Facility.
ARTICLE XVI
HAZARDOUS MATERIALS
16.01 Landlord warrants and represents to Tenant, that, to the best
of Landlord's knowledge and after reasonable inquiry, the Premises and
Landlord's Improvements will be in compliance with all applicable
environmental laws, rules, requirements, orders, directives, ordinances and
regulations of the United States of America or any state, city or municipal
government or lawful authority having jurisdiction or affecting the Premises
(collectively "Environmental Laws") and that none of the insulation materials
or any other materials within the Premises are or contain asbestos, or any
other known Regulated Material as defined below. Except as set forth in
Sections 16.03 and 16.05, Landlord shall, at its expense, take all action
necessary to ensure that the Facility complies with all Environmental Laws
and that the Facility is, and remains at all times, safe for use and
occupancy.
16.02 Except as set forth in Sections 16.03 and 16.05, Landlord
shall defend, indemnify and save Tenant, its officers, directors, agents and
employees, harmless from and against all claims, obligations, demands,
actions, proceedings and judgments, loss, damage, liability and expense
(including reasonable attorneys' fees and expenses) which any one or more of
them may sustain in connection with any non-compliance with any environmental
condition affecting the Facility resulting from violation of environmental
laws which are not caused by or resulting from Tenant's use and occupancy of
the Premises or Facility. This indemnity shall not apply to Landlord's
Mortgagee, successors-in-interest to Mortgagee or anyone acquiring the
Premises through Landlord's Mortgagee.
16.03 Tenant shall at Tenant's own cost and expense, timely comply with
all applicable, rules, requirements, orders, directives, ordinances and
regulations arising from Tenant's use and occupancy of the Premises,
including but not limited to the Environmental Laws, and shall indemnify,
defend, save and hold harmless Landlord, its directors, officers, agents and
employees from and against any and all claims, demands, losses and
liabilities (including reasonable attorneys' fees) resulting from any
violation of the Environmental Laws when caused by or results from Tenant's
use and occupancy of the Premises.
16.04 The provisions of this Article 16 shall survive the expiration or
earlier termination of this Lease.
16.05 A. The following terms and conditions regarding environmental
matters and the Premises are included in this Lease:
(1) For the purpose of this Lease, the phrase "Regulated
Materials" shall include, but shall not be limited to, those
materials or substances defined as "hazardous substances",
"hazardous materials", "hazardous waste", "toxic substances",
"toxic pollutant" or other similar designations under the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. 9601, ET SEQ., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901, ET
SEQ., the Hazardous Materials Transportation Act, 49 U.S. C.
1801, ET SEQ., or regulations promulgated pursuant thereto
(herein "Environmental Laws"). "Tenant's Regulated Materials"
shall mean those Regulated Materials, brought onto, created,
stored at, handled, or generated at the Premises by or on behalf
of Tenant, its agents, employees, contractors (other than
Landlord), subtenants, assignees, suppliers or other invitees.
"Landlord's Regulated Materials" shall mean all other "Regulated
Materials" including those brought onto, created, stored at,
handled or generated at the Premises by Landlord, its agents,
employees, contractors, subtenants, assignees, suppliers or other
invitees. Also the phrase "Governmental Agency or Agencies"
means any federal, state, local or foreign government, political
subdivision, court, agency or other entity, body, organization or
group exercising any executive, legislative, judicial,
quasi-judicial, regulatory or administrative function of
government.
B. Tenant hereby covenants to Landlord and its Mortgagee that:
(1) Except for the obligations of Landlord pursuant to Section
16.01 and 16.02, Tenant shall (x) comply and shall instruct
all occupants of the Premises to comply with all federal, state
and local laws, rules, regulations and orders with respect to
the discharge, generation, removal, transportation, storage and
handling of Tenant's Regulated Materials, (y) remove any Tenant's
Regulated Materials immediately upon discovery of the same, and
(z) pay or cause to be paid all costs associated with such
removal;
(2) Tenant shall keep the Premises free of any lien imposed
pursuant to any state or federal law, rule regulation or order in
connection with the existence of Tenant's Regulated Materials on
the Premises;
(3) Tenant shall not install or permit to be installed on the
Premises any Tenant's Regulated Material including, but not
limited to, asbestos, asbestos-containing materials, urea
formaldehyde insulation or any other chemical or substance which
has been determined to be a hazard to health and environment
other than supplies and materials used in the ordinary course of
its business and for which use all applicable laws, ordinances,
rules and regulations are complied with;
(4) Tenant shall not cause or permit to exist as a result of an
intentional or unintentional act or omission on the part of
Tenant or any occupant of the Premises, a releasing, spilling,
leaking, pumping, emitting, poring, emptying or dumping of any
Tenant's Regulated Materials onto the Premises or into
surrounding waters or other lands; and
(5) Tenant shall promptly provide a copy of any summons,
citation, directive, letter or other communication which it
receives from any Government Agency or Agencies concerning any
Regulated Matters on the Premises.
C. It shall constitute a Default hereunder and either party shall
be entitled to exercise all remedies available to it hereunder if:
(1) Tenant or Landlord shall fail to comply with the
covenants contained in this Article 16 within thirty (30) days
after notice or fails to commence such compliance within such
time and diligently continues such compliance to completion;
(2) any Tenant's or Landlord's Regulated Materials
are hereafter found to exist on the Premises or in its soil or
groundwater and such Regulated Materials come to be on the
Premises because of the act, omission or breach of this Lease
by Landlord or Tenant, or any of their agents, employees,
contractors, subtenants or assignees, as to Tenant, on or
after the date Tenant takes possession or enters the Premises
to commence work, and either party shall fail within
seventy-five (75) days after notice thereof, to commence and
diligently pursue such actions as are necessary to remove the
same from the Premises or Facility or obtain any and all
necessary no action or no association letters for the Premises
or Facility and Landlord or Tenant such that no further action
need be taken to satisfy the applicable environmental agency;
or
(3) any summons, citation, directive, letter or other
communication, written or oral, shall be issued by any
Governmental Agency or Agencies concerning the matters
described in Subparagraph 16.05A(1) above and Landlord or
Tenant fail to cure the condition occasioning the same within
the time limit set forth in this Section 16.05C.
In the event Landlord or Tenant fails to comply with the terms of
this Article 16, each party hereby grants the other and its employees and
agents an irrevocable and non-exclusive license to enter the Premises in
order to inspect, conduct testing and remove Tenant or Landlord's Regulated
Materials. All costs of such inspection, testing and removal related to
Tenant's Regulated Materials shall be due and payable from Tenant as
Additional Rent hereunder upon demand, and all costs relating to Landlord's
Regulated Materials incurred by Tenant shall be paid by Landlord to Tenant
upon demand.
16.06 The representations, covenants and indemnifications given by
Tenant to Landlord and Landlord to Tenant in this Article 16 shall be a
separate agreement between the parties, and shall survive any termination of
the Lease.
16.07 Landlord warrants and represents that it is not otherwise aware
of any violation of the statutes, rules and regulations set forth in Section
16.05A(i) above as it relates to the Premises or Facility except, however,
that Landlord has received an off-site source and no association letter from
the Minnesota Pollution Control Agency dealing with apparent groundwater
contamination affecting the Facility resulting from dry-cleaning solvent
released by a former dry-cleaning operation previously located adjacent to
the Facility.
16.08 Landlord hereby covenants to Tenant that Landlord shall comply
with all federal, state and local laws, rules, regulations and orders with
respect to the discharge, generation, removal, transportation, storage and
handling of Landlord's Regulated Materials, (y) remove any Landlord's
Regulated Materials
required by said laws to be removed immediately upon discovery thereof; and
(z) pay or cause to be paid all costs associated with such removal. It shall
constitute a default by Landlord if Landlord fails to comply with this
covenant within seventy-five (75) days after Tenant mails notice to Landlord
hereof or fails to commence such compliance within such time and diligently
continue such compliance to completion.
ARTICLE XVII
MISCELLANEOUS
17.01 Further Terms. The parties also agree:
A. Tenant represents that Tenant has dealt directly with and
only with the broker or tenant representative set forth on the Data Sheet, in
connection with this Lease and that insofar as Tenant knows, no other broker
or tenant representative negotiated or participated in negotiations of this
Lease or submitted or showed the Premises or is entitled to any commission in
connection therewith. Landlord shall be responsible for payment of Welsh
Companies and CB Commercial arising from this Lease.
B. All notices, demands and requests shall be in writing, and
shall be effectively served by forwarding such notice, demand or request by
certified or registered mail, postage prepaid, addressed to the respective
party at the address set forth on the Data Sheet, or at such other address as
such party may hereafter designate by written notice to the other party, in
which case said notice shall be effective at the time of mailing such notice.
C. All rights and remedies of Landlord under this Lease or that
may be provided by law may be executed by Landlord in its own name,
individually, or by its agent of whose appointment Tenant shall have written
notice in the name of Landlord, and all legal proceedings for the enforcement
of any such rights or remedies, including those set forth in Article 14, may
be commenced and prosecuted to final judgment and execution by Landlord or
its agent.
D. Landlord covenants and agrees that Tenant, upon paying the
Base Rent, Additional Rent and other charges herein provided for and
observing and keeping the covenants, agreements and conditions of this Lease
on its part to be kept and performed, shall lawfully and quietly hold, occupy
and enjoy the Premises during the term of this Lease.
E. The covenants and agreements herein contained shall bind
and inure to the benefit of the Landlord, its successors and assigns, and
Tenant and its permitted successors and assigns.
F. If any term or provision of this Lease shall to any extent
be held invalid or unenforceable, the remaining terms and provisions of this
Lease shall not be affected thereby, but each term and provisions of this
Lease shall not be affected thereby, but each term and provision of this
Lease shall be valid and enforced to the fullest extent permitted by law.
This Lease shall be construed and enforced in accordance with the laws of the
state in which the Premises are located.
G. (1) Subsequent to the Commencement Date and payment by
Landlord of the allowances set forth in Section 22.0 (a) and (b) and any
signage allowance (as opposed to the refurbishment allowance) due to Tenant
under Section 22.0(c) for exterior Building signage initially installed by
Tenant, 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 of the Facility at the time in question,
and in the event of any transfer or transfers or conveyances in which the
transferee assumes all obligations of Landlord under the Lease accruing after
said transfer, the then grantor shall be automatically freed and released
from all personal liability accruing from and after the date of such transfer
or conveyance as respects the performance of any conveyance or obligation on
the part of Landlord contained in this Lease to be performed, it being
intended hereby that the covenants and obligations contained in this Lease on
the part of Landlord shall be binding on the Landlord, its successors and
assigns, only during and in respect to their respective successive periods of
ownership.
(2) In the event of a sale or conveyance by Landlord of the
Facility or any part of the Facility, the same shall operate to release
Landlord from any future liability upon any of the covenants or conditions
herein contained and in such event Tenant agrees to look solely to the
responsibility of the successor in interest of Landlord in and to this Lease.
This Lease shall not be affected by any such sale or conveyance, and Tenant
agrees to attorn to the purchaser or grantee, which shall be personally
obligated on this Lease only so long as it is the owner of Landlord's
interest in and to this Lease.
H. The marginal or topical headings of the several Articles and
sections are for convenience only and do not define, limit or construe the
contents of said Articles and sections.
I. All preliminary negotiations and written commitments are
merged into and incorporated in this Lease, except for written collateral
agreements executed contemporaneously herewith.
J. This Lease can only be modified or amended by an agreement
in writing signed by the parties hereto. No receipt of money by Landlord
from Tenant or any other person after termination of this Lease or after the
service of any notice or after the commencement of any suit, or after final
judgment for
possession of the Premises shall reinstate, continue or extend the term of
this Lease or affect any such notice, demand or suit, or imply consent for
any action for which Landlord's consent is required, unless specifically
agreed to in writing by Landlord. Any amounts received by Landlord may be
allocated to any specific amounts due from Tenant to Landlord as Landlord
determines.
K. Landlord shall have the right to close any portion of the
building area or land area to the extent as may, in Landlord's reasonable
opinion, be necessary to prevent a dedication thereof or the accrual of any
rights to any person or the public therein. Landlord shall at all times have
full control, management and direction of the Facility, subject to the rights
of Tenant in the Premises, and Landlord reserves the right at any time and
from time to time to reduce, increase, enclose or otherwise change the size,
number and location of buildings, layout and nature of the Facility and the
other tenancies, premises and buildings included in the Facility, to
construct additional buildings and additions to any building, and to create
additional rentable areas through use and/or enclosure of common areas, or
otherwise, and to place signs on the Facility, and upon reasonable advance
written notice to Tenant to change the name, address, number or designation
by which the Facility is commonly known. In the event the notice of name
change is less than nine (9) months in advance of the effective date,
Landlord shall pay the reasonable costs of replacement stationery, business
cards and similar items on which the name of the Building is utilized.
Landlord will not name the Building after a direct competitor of Tenant. No
implied easements are granted by this Lease. Tenant shall have the
nonexclusive right in common with Landlord and tenants and occupants of the
Facility, to ingress and egress to and through the common areas of the
Facility.
L. Tenant shall permit Landlord (or its designees) to erect,
use, maintain, replace and repair pipes, cables, conduits, plumbing, vents,
and telephone, and other wires or other items, in, to and through the
Premises in chases, floors or above the dropped ceiling, as and to the extent
that Landlord may now or hereafter deem necessary or appropriate for the
proper operation and maintenance of the Facility.
M. Employees or agents of Landlord have no authority to make or
agree to make a lease or other agreement or undertaking in connection
herewith. The submission of this document for examination does not
constitute an offer to lease, or a reservation of, or option for, the
Premises. This document becomes effective and binding only upon execution
and delivery hereof by the proper officers of Landlord and by Tenant. Tenant
confirms that Landlord and its agents have made no representations or
promises with respect to the Premises or the making of or entry into this
Lease except as in this Lease expressly set forth, and agrees that no claim
or liability shall be asserted by Tenant against Landlord for, and Landlord
shall not be liable by reason of, breach of any representations or promises
not expressly stated in this Lease. This Lease, except for the Building
Rules and Regulations, in respect to which subparagraph
"P" of this Article shall prevail, can be modified or altered only by
agreement in writing between Landlord and Tenant, and no act or omission of
any employee or agent of Landlord shall alter, change or modify any of the
provisions hereof.
N. Tenant shall perform, observe and comply with the Building
Rules and Regulations of the Facility, as set forth in Exhibit C attached
hereto, with respect to the safety, care and cleanliness of the Premises and
the Facility, and the preservation of good order thereon, and, upon written
notice thereof to Tenant, Tenant shall perform, observe, and comply with any
reasonable changes, amendments or additions thereto consistent with Tenant's
rights under this Lease as from time to time shall be established and deemed
advisable by Landlord for tenants of the Facility. Landlord shall not be
liable to Tenant for any failure of any other tenant or tenants of the
Facility to comply with such Building Rules and Regulations.
O. All rights and occupancy of Tenant herein shall be subject
to all governmental laws, ordinances and regulations, and Tenant shall comply
with the same.
P. All obligations of Tenant hereunder not fully performed as
of the expiration or earlier termination of the term of this Lease shall
survive the expiration or earlier termination of the term hereof, including,
without limitation, all payment obligations with respect to Operating
Expenses and Real Estate Taxes and all obligations concerning the condition
of the Premises.
Q. Subsequent to delivering occupancy of the Premises to Tenant
substantially completed and all improvements paid in full including payment
to Tenant by Landlord of the allowances set forth in Section 22.0 (a) and (b)
hereof, and any signage allowance (as opposed to the refurbishment allowance)
due to Tenant under Section 22.0(c) for exterior Building signage initially
installed by Tenant, Tenant agrees to look solely to Landlord's interest in
the Facility for the recovery of any judgment from Landlord, it being agreed
that Landlord, or if Landlord is a partnership, its partners whether general
or limited, or if Landlord is a corporation, its directors, officers or
shareholders, shall never be personally liable for any such judgment.
R. The Tenant, if any, shall furnish to Landlord promptly upon
demand, a corporate resolution, proof of due authorization of partners, or
other appropriate documentation reasonably requested by Landlord evidencing
the due authorization of Tenant to enter into this Lease.
ARTICLE XVIII
OTHER PROVISIONS
18.01 Addenda. The provisions set forth in the Exhibits attached to
this Lease are hereby incorporated by reference.
IN WITNESS WHEREOF, the parties hereto have executed this Lease to be
effective on the day and year first above written.
LANDLORD: MERIDIAN CROSSINGS LLC, A MINNESOTA
LIMITED LIABILITY COMPANY
By: Meridian Properties Real Estate
Development LLC, a Minnesota limited
liability company, its manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Manager
TENANT: FOURTH SHIFT CORPORATION, A MINNESOTA
CORPORATION
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Its: VP & CFO
ACKNOWLEDGMENT: Meridian Properties Real Estate
Development LLC has executed the Lease
solely for purposes of Section 27.2 of the
Lease and for no other purpose.
MERIDIAN PROPERTIES REAL ESTATE
DEVELOPMENT LLC, a Minnesota limited
liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Manager
RIDER TO LEASE
ARTICLE XIX
OPTION TO RENEW
Section 19.0 Tenant shall have the right, subject to the provisions
hereinafter provided, to extend the term of this Lease for one (1) period of
five (5) each on the terms and provisions of this Article provided hereafter,
such five (5) year renewal period being sometimes herein referred to as a
"Renewal Term". The conditions to such renewal shall be as follows:
(a) That this Lease is in full force and effect and Tenant is not in
default in the performance of any of the terms, covenants and
conditions herein contained, in respect to which notice of default has
been given hereunder which has not been or is not being remedied in
the time limited in this Lease, at the time of exercise of the right
of renewal, but Landlord shall have the right at its sole discretion
to waive the non-default conditions herein;
(b) That such Renewal Term shall be on the same terms, covenants and
conditions as in this Lease provided; provided, however, that annual
Base Rent for each such renewal space on the date such renewal term
shall commence in relation to comparable (in quality and location)
office space located in the relevant market area which shall be deemed
to be the Southwest Minneapolis 494 corridor. The fair market Base
Rent of the Premises shall be determined as of the date six (6) months
prior to commencement of the Renewal Term. Provided Tenant has
properly elected to renew the term of this Lease, and if Landlord and
Tenant fail to agree at least eleven (11) months prior to commencement
of the applicable Renewal Term upon the fair market Base Rent of the
Premises, the amount of the fair market Base Rent of the Premises
shall be determined by arbitration in accordance with the provisions
of Article 20 hereof. The fair market Base Rent of the Premises shall
be based upon the highest and best use of the Premises and shall be
determined separately on a per square foot basis for the initial
Premises and each separate additional space added to the Premises, if
any, pursuant to Tenant's options to expand herein. In no event shall
the Base Rent of the Premises for the Renewal Term be less than the
Base Rent payable by Tenant under the terms of this Lease immediately
prior to commencement of such applicable Renewal Term.
(c) That Tenant shall exercise its right to a Renewal Term provided
herein, if at all, by notifying Landlord in writing of its election to
exercise the right to renew the term of this Lease no later than the
date two hundred seventy (270) days prior to the date of commencement
of the applicable Renewal Term. Upon notification with respect to
such renewal, and for a period of thirty (30) days thereafter, the
parties hereto shall make a good faith effort to agree upon the fair
market Base Rent of the Premises for such renewal term. Any agreement
reached by the parties hereto with respect to such fair market Base
Rent of the Premises for such renewal term shall be expressed in
writing and shall be executed by the parties hereto, and a copy
thereof delivered to each of the parties. In the event that
Landlord and Tenant fail to agree within the thirty (30) day time
prior set forth in this subparagraph (c), the fair market Base Rent
for the Premises for such Renewal Term shall be determined by
arbitration in the manner set forth in Article 20 ("Arbitration")
hereof. However, such arbitrators shall be directed to determine the
fair market Base Rent for the Premises as above provided and in
determining same said appraisers shall be instructed to make said
appraisal independently, without consulting with each other. Upon
established date at an established time all three (3) arbitrators
shall simultaneously submit their determinations as to fair market
Base Rent, such determinations to be submitted in sealed envelopes
and to be opened jointly by Landlord and Tenant. The fair market
Base Rent for the Renewal Term shall be determined by averaging
the two (2) arbitrators' fair market Base Rent determinations
which are closets in amount to each other (or if one appraisal is
less than one of the other appraisals and more than the other
appraisal by the same amount, all three appraisals shall be
averaged).
ARTICLE XX
ARBITRATION
Section 20.0 Any disagreement, dispute or determination required by or
arising under the provisions of Article XIX ("Option to Renew"), of this
Lease requiring arbitration shall be carried on and concluded in accordance
with the provisions of paragraphs (a) and (b) hereof:
(a) In each case where it shall become necessary to resort to arbitration,
and the subject of the arbitration is to determine fair market Base
Rent, all arbitrators appointed by or on behalf of either party or
appointed pursuant to the provisions hereof shall be MAI members of
the American Institute of Real Estate Appraisers with not less than
ten (10) years of experience in the appraisal of improved commercial
and industrial real estate in the Minneapolis, Minnesota metropolitan
area and be devoting substantially all of their time to professional
appraisal work at the time of appointment and be in all respects
impartial and disinterested. In determining fair market Base Rent the
arbitrators shall consider the status of tenant improvements in the
Premises in comparison to leasehold improvements in market comparables
and shall take into consideration that no leasing commission is
payable in respect to any leasing by Tenant or Landlord as compared to
market comparables where such commissions may be payable.
(b) The party desiring such arbitration shall give written notice to that
effect to the other party, specifying in such notice the name, address
and professional qualifications of the person designated to act as
arbitrator on its behalf. Within twenty (20) days after service of
such notice, the other party shall give written notice to the party
desiring such arbitration specifying the name, address and
professional qualifications of the person designated to act as
arbitrator on its behalf. If the two (2) arbitrators so selected
cannot agree within fifteen (15) days after the appointment of the
second arbitrator, the two (2) arbitrators shall, within ten (10) days
thereafter, select a third arbitrator. The decision of the
arbitrators so
chosen shall be given within a period of thirty (30) days after the
appointment of such third arbitrator. Each party shall pay the
fees and expenses of the arbitrator appointed by or on behalf of
such party and the fees and expenses of the third arbitrator shall
be borne equally by both parties. If the party receiving a request
for arbitration fails to appoint its arbitrator within the time
above specified, or if the two (2) arbitrators so selected cannot
agree on the selection of the third arbitrator within the time
above specified, then either party, on behalf of both parties, may
request such appointment of such second or third arbitrator within
the time above specified, as the case may be, by application to any
Judge of the District Court of the County of Hennepin, State of
Minnesota, upon ten (10) days prior written notice to the other
party of such intent. The arbitrators so selected shall have all
rights and powers conferred on them by the Uniform Arbitration Act
of the state in which the Premises are situated, and except as
otherwise provided for herein, the arbitration proceedings shall
be carried on and governed by such Act.
ARTICLE XXI
RIGHT OF NOTICE
Section 21.0 Landlord agrees, from time to time, upon written request of
Tenant to advise Tenant as to space available on the third floor of the
Facility ("Notice Space"), provided Tenant treats such information as
confidential and does not disclose said information. If during the initial
or any renewal term of this Lease any occupied area on the third (3rd) floor
of the Facility is vacated or to be vacated by the present tenant, its
successors and assigns, and Landlord desires to lease any of such space
(subject to the terms of Article XXV herein), Landlord shall deliver a notice
of such intent to lease in writing to Tenant offering to lease such space to
Tenant upon the terms and conditions (including rent) as set forth in the
Lease for the Premises initially demised except that (i) if the space was
previously unimproved Tenant shall receive an "Allowance" per rentable square
foot of the as leased Notice Space (as determined as set forth below) for
tenant improvements pro rated for the number of years remaining in the
initial Term from the date the term commences on the Notice Space so leased,
and (ii) if the space was previously improved, the Tenant shall accept the
Premises in "as-is" condition without contribution from Landlord for tenant
improvements. For purposes of this Section 21.0, "Allowance" shall be
determined as follows:
Upon completion of Landlord's Improvements, Landlord shall determine an
"Allowance" number to be used for purposes of Section 21.0 hereof based
upon the cost to Landlord of all Landlord's Improvements to the Premises
below the finished ceiling, specifically excluding from such costs (i) any
amounts reimbursed by Tenant, and (ii) the amount of the Construction
Allowance set forth in Section 23.1; and including an amount equal to the
upgrade cost set forth in Section 23.1 (b)(8) for the executive offices, if
any, added in the to be leased Notice Space. Said net amount shall be
divided by the rentable area of the Premises and said amount shall be the
Allowance per rentable square foot utilized in this Section 21.0. Landlord
shall provide reasonable evidence documenting said costs if requested by
Tenant. In addition to the Allowance, the allowance described in Section
22.0(b) shall be
provided to Tenant for each rentable square foot of space so taken under
this Section 21.0.
Tenant shall have ten (10) business days from receipt of such notice to
deliver Landlord notice that Tenant desires to execute the lease amendment
with Landlord for such proposed space upon the conforming terms and
conditions specified in Landlord's notice. If Tenant fails to deliver such
notice to Landlord within such ten (10) business day period or fails to
execute an amendment as above provided within an additional ten (10) business
day period, Landlord may lease such space to a third party. These rights of
Tenant herein shall become inoperative as to any space in respect to which
the Tenant does not exercise its rights to lease as set forth herein or in
respect to space for which Tenant does not execute the lease amendment within
the above required ten (10) day period. The Term shall commence on the Notice
Space to be leased the first date that said space is available for Tenant to
take possession, if the space has previously been fit-up or thirty (30) days
after the space is made available to Tenant if said space has not previously
been improved.
Landlord agrees, that Tenant shall have the right, until December 10, 1997 to
expand the Premises initially demised by up to 5,000 rentable square feet and
Landlord agrees that it will retain at a minimum approximately 5,000 rentable
square feet adjacent to the Premises (in a location acceptable to Landlord
which results in a readily leasable configuration for the balance of the
third floor not leased to Tenant). Said space shall be leased to Tenant upon
all of the terms, conditions and rent set forth herein for the Premises
initially intended to be demised hereunder, except that there shall be no
Section 23.1 Construction Allowance other than for item (b)(8), to the
extent executive offices are included in such additional space and there
shall be included the Space Planning Allowance set forth in Section 22.0(b).
Section 21.1 Landlord agrees that all office space on the third floor of
the Building shall be subject to the provisions of this Article 21.1.
Landlord agrees that without the written consent of Tenant it will not
initially lease any office space on the third floor of the Building either
(i) that is larger than 5,000 rentable square feet, or (ii) for a term that
terminates after November 1, 2003 (including all options to renew or extend
the term of said lease) or in the alternative does not allow Landlord to
relocate said premises. The term "initially lease" refers to the first lease
of said space to a tenant.
ARTICLE XXII
TENANT ALLOWANCES
Section 22.0 Provided Tenant is not in default under the terms of the
Lease, has taken possession of the Premises and paid the Base Rent due for
the initial one (1) month of the Term, Landlord shall provide and pay to
Tenant the following allowances:
(a) Moving Allowance: Three Hundred Thousand dollars ($300,000.00),
payable thirty (30) days after the Commencement Date, irrespective of
actual moving costs.
(b) Space Planning Allowance: Eighty-five cents ($ .85) per rentable
square foot of Premises initially demised for space planning performed
by Tenant's space planner and all costs associated with Tenant's jet
plan previously completed by Tenant's architect, irrespective of the
actual costs of said space planning.
(c) Signage and Refurbishment Allowance: Collectively in the amount of
One Hundred Fifty Thousand and NO/100 Dollars ($150,000.00). Tenant
shall have the right to utilize said allowance for the actual,
demonstrable costs of designing, manufacturing, and installing the
exterior building sign more particularly described in Article XXX
hereof. Any amount used for said signage shall be deducted from the
One Hundred Fifty Thousand and NO/100 Dollars ($150,000.00) and the
balance shall be utilized by Tenant for refurbishment of the Premises
and be due and payable to Tenant at the end of the fifth full year of
the Lease Term.
ARTICLE XXIII
LANDLORD'S IMPROVEMENTS
Section 23.0 Landlord, in addition to the payment of the allowance set
forth in Section 23.1, and Section 22.0, at its sole cost and expense, shall
construct and improve the Building and Premises in accordance with the
outline plans and specifications which are indicated and specified on Exhibit
"D" attached hereto and incorporated herein by reference ("Outline Plans and
Specifications"). Prior to or simultaneously with the execution and delivery
of this Lease, Landlord has furnished Tenant, for information purposes only,
with copies of all available plans and specifications for the Base Building
requested by Tenant. Thereafter, Landlord agrees upon request to provide from
time to time, any plan or specification modifications which affect Tenant's
Premises. Tenant shall provide, at its sole cost and expense, complete
construction plans and specifications ("Construction Documents") for all
improvements to the Premises based on the Outline Plans and Specifications on
or before February 15, 1998. Upon receipt of said Construction Documents,
Landlord shall submit same to its contractor for development of mechanical
electrical and plumbing ("MEP") plans and specifications based upon said
Construction Documents. Landlord shall have ten (10) business days to review
the Construction Documents and provide Tenant with detailed comments and
recommendations. Upon receipt of the MEP plans and specifications, Landlord
shall provide copies of same to Tenant for Tenant's review and comment, which
shall occur within ten (10) business days of said delivery. In the event
Landlord and Tenant are unable to agree as to the final Construction
Documents (including MEP plans and specifications) on or before February 25,
1998, either party, upon ten (10) days' written notice to the other, may
request arbitration of said dispute. If arbitration is requested, the
procedure described in Article XIX (c) and Article XX shall be utilized,
except the arbitrators shall be design professionals (architects or
engineers) with at least ten (10) years experience in design and construction
of office buildings in the Minneapolis-St. ▇▇▇▇ metropolitan area, all
licensed to do business in Minnesota. Landlord shall not be required to
install any improvements to the Premises except those specified on Exhibit
"D" or such changes required by the municipalities in its review and approval
of the
Construction Documents as to their compliance with local building codes
unless the timing, price and all other matters relating to such other
improvements have been agreed upon in writing between Landlord and Tenant.
Anything herein to the contrary notwithstanding, in the event Tenant desires
any improvements in excess of those set forth on Exhibit "D" or any change
orders after final approval of Construction Documents, Landlord shall provide
same [not to exceed the final amount of (i) the Construction Allowance
described below, and (ii) the Moving Allowance set forth in Article XXII
hereof], and the costs of such excess improvements shall be charged against
Tenant by reducing the Construction Allowance and Moving Allowance amounts
provided for in Article XXII herein on a "dollar-for-dollar" basis. Landlord
will agree to additional improvements costing in excess of the Construction
Allowance and Moving Allowing provided Tenant shall be responsible for timely
payment of Landlord's increased costs therefor pursuant to a standard
construction draw process (monthly). Landlord agrees that the charge to
Tenant for change orders shall be a direct pass through of the cost charged
Landlord by its General Contractor. Further, and anything herein to the
contrary notwithstanding, in the event of a delay in delivery to Landlord of
complete Construction Documents for the improvements in the Premises in
accordance herewith, which results in delay in construction of the Landlord's
Improvements due to Tenant's failure to deliver its Construction Documents
complete in all manners (including selection of all finishes) in accordance
with the above requirements, the Lease shall in any event commence on
November 1, 1998, subject to extension for any portion of such delay not
caused by such delay by Tenant. Tenant shall, in any event, be responsible
at its sole costs and expense to provide all cabling, wiring and furniture
and equipment necessary for its business, provided any cabling and wiring in
the Building or Premises shall be removed by Tenant at its sole cost and
expense upon expiration of the Term or earlier termination of the Lease.
Tenant's rights to enter the Premises are as set forth in Article XXVI. In
the event of a delay in delivery of the Premises after November 1, 1998, any
portion of the delay caused independently by Landlord (not resulting from a
delay caused by Tenant) shall not act to excuse Landlord for the penalties
set forth in Section 27.2 hereof and Landlord shall be excused from such
penalties only to the extent the delay was the result of the action or
inaction of Tenant.
Section 23.1 Construction Allowance. Landlord shall provide to Tenant a
Construction Allowance of Sixty Thousand and NO/100 Dollars ($60,000.00) to
be used by Tenant solely for the purpose of providing upgrades to Landlord's
Improvements from those specified on Exhibit "D" in the following areas:
(a) WOOD AND PLASTIC -
2. Reception desk;
3. Boardroom A\V cabinets; and
4. CIM Center.
(b) FINISHES -
6. Upgrade specialty carpet in reception, elevators, lobby, CIM
Center and Boardroom;
7. Stone or wood accent flooring in elevator lobby and reception;
8. Upgrade carpet in executive offices;
9. EDS floor in computer room; and
10. Upgrade ceiling tile in CIM Center and Boardroom.
(c) ELECTRICAL -
3. Upgrade lighting in lobby, reception, CIM Center, Boardroom,
Training Rooms and Customer Conference Rooms.
Landlord's contractor shall provide all such upgraded finishes as
selected by Tenant, subject to the Sixty Thousand and NO/100 Dollars
($60,000.00) allowance limitation. Tenant may elect to exceed any allowance
amount at its sole cost and expense provided that no delays result in
Landlord's construction and Tenant provides Landlord with acceptable means of
payment for said excess improvements. Any improvements to be paid by Tenant
by utilization of an allowance or otherwise, shall be performed on an open
book basis and to the extent feasible considering schedule, market conditions
and construction coordination, bid out to the trades by Landlord's general
contractor; Landlord's general contractor shall use reasonable efforts under
the circumstances described above to bid all material portions of the job to
three (3) separate, responsible bidders. Tenant may add subcontractors to
the bid list, if done in a timely, responsible manner. Said improvements
shall be performed by Landlord's general contractor at cost plus five percent
(5%) without any additional upcharge by Landlord.
ARTICLE XXIV
PARKING RIGHTS OF TENANT
Section 24.0 Facility Parking. Tenant shall have the right in common with
other tenants to have the use for its employees and invitees of the common
parking facilities at the Facility, such use to be in common with the other
tenants in the Facility. Landlord reserves the right to designate and
redesignate areas of the appurtenant common parking facilities where Tenant,
its agents, employees and invitees shall park and may exclude Tenant, its
agents, employees and invitees from parking in other areas as designated and
redesignated by Landlord; provided, however, Landlord shall not be liable to
Tenant for the failure of any tenant, its invitees, employees, agents and
customers to abide by Landlord's designations or restrictions. Landlord
shall have the right to designate, and Tenant shall thereupon have the right
to use as the exclusive parking spaces to be used by Tenant, its agents,
employees and invitees, only that percentage that the rentable office area of
the Premises bears to the rentable office area of the Facility. Tenant, its
agents, employees and invitees shall not use more (in absolute numbers) of
the common parking facilities at the Facility (exclusive of the underground
garage) than Tenant could use if Landlord made the designations permitted
herein. Anything in this Lease to the contrary notwithstanding, all costs
and expenses of such special parking control, signs in connection therewith,
and costs of any enforcement shall be an Operating Expense pursuant to the
provisions of Article II G hereof.
Section 24.1 Reserved Parking. In addition thereto, Landlord hereby rents to
Tenant and Tenant leases from Landlord three (3) contract executive reserved
parking stalls on the lower level of the Facility for the Term of this Lease.
Tenant agrees to execute the reserved stall parking lease attached hereto as
Exhibit "F" upon execution of this Lease.
The rental for said reserved stalls shall be $95.00 per stall per month
during the initial ten (10) year Term of this Lease. Tenant, upon request,
may license up to seven (7) additional stalls at the same initial rate, and
Landlord shall provide same if available at the time of request.
ARTICLE XXV
INITIAL EXPANSION RIGHT
Section 25.0 On or before December 10, 1997, Tenant shall have the right to
increase the area of the Premises by 5,700 rentable square feet upon written
notice to Landlord, said additional area to be located on the third floor of
the Building.
ARTICLE XXVI
INSTALLATION OF TENANT'S TRADE FIXTURES
Section 26.0 Tenant shall be allowed to install its fixtures and furniture
and equipment in the Premises during the final sixty (60) days of
construction of Landlord's Improvements provided that Tenant does not thereby
interfere with the completion of Landlord's Improvements or occasion any
labor dispute as a result of such installation and provided further that
Tenant does hereby agree to assume all risk of loss or damage to such
property and other personal property of Tenant, and to indemnify, defend and
hold harmless Landlord from any loss or damage to such property and other
personal property of Tenant, and to indemnify, defend and hold harmless
Landlord from any loss or damage to such trade fixtures and improvements and
property, and from all liability, loss or damage arising from any injury to
the property of Landlord, or its contractors, subcontractors or material men
and any death or personal injury to any person or persons arising out of such
installations. Tenant shall be responsible for loss or damage (including
loss of rents from Tenant) arising out of delays caused by interference with
Landlord's Improvements.
ARTICLE XXVII
LANDLORD'S RIGHT TO RELOCATE TENANT
Section 27.0 Landlord may, by providing notice to Tenant on or before
January 1, 1998, relocate the Premises from the third, fourth and fifth
floors of Phase I, Meridian Crossings to the sixth, seventh and eighth floors
of Phase II of Meridian Crossings located immediately adjacent to the north
of the Phase I Building. Said Phase II Building is to be constructed
utilizing the same Base Building Plans and Specifications (allowing minor
deviation in design-build portions of the Base Building) as were utilized in
the construction of Phase I, except that a link may be designed at the first
level to connect to Phase I. In such event, the Lease would be assigned to
the Landlord controlled entity which will own Phase II and Tenant agrees, to
the extent required, to reaffirm the Lease. The Commencement Date and all
other terms and conditions set forth in this Lease shall remain in full force
and effect except that the Premises will be located in a different building,
on different floors as stated above.
Section 27.1 Landlord agrees that any additional reasonable third party,
out-of-pocket costs incurred by Tenant in conforming (as opposed to
redesigning) the Construction Documents prepared for Phase I to Phase II
shall be paid for by Landlord.
Section 27.2 Landlord agrees that in the event Landlord exercises its right
to relocate Tenant into Phase II, in such event if Landlord fails to deliver
possession of the Premises substantially completed and ready for Tenant's
occupancy (other than for delays resulting from the failure of Tenant to
perform its covenants and obligations under this Lease within the timetable
required herein) on or before November 1, 1998, Landlord shall be responsible
to reimburse Tenant for all costs and damages resulting from Landlord's
failure to deliver possession of the Premises to Tenant on or before November
1, 1998 including but not limited to holdover rent and other lease charges
and liabilities in excess of the amount due from Tenant under its existing
lease immediately prior to November 1, 1998 ("Holdover Costs"). Failure to
give possession of the Premises on or before November 1, 1998 shall in no way
affect the validity of this Lease or the obligations of Tenant hereunder.
Tenant agrees to use all reasonable efforts to minimize and mitigate the
Holdover Costs. Meridian Properties Real Estate Development LLC acknowledges
that it shall be liable to Tenant for any costs, damages or liabilities
arising under this Section 27.2 hereof.
Landlord agrees that it can not unilaterally require Tenant to relocate to
Phase II if the footings and foundations of the building for Phase II are not
substantially completed on or before January 1, 1998. If, said footings and
foundations are not substantially completed by January 1, 1998, Tenant shall
have the right to approve such transfer and shall not unreasonably withhold
its consent if Landlord can reasonably demonstrate assurance of its ability
to meet the November 1, 1998 Commencement Date.
ARTICLE XXVIII
REAL ESTATE TAX REBATE
Section 28.0 During the initial ten (10) year Term of the Lease only,
provided Tenant is not in default beyond the notice and cure period set
forth herein, Landlord agrees to pay and rebate to Tenant two (2) times per
Lease Year (approximately in April and November), ten percent (10%) of the
amount of real estate taxes only (excluding special assessments included
within the real estate tax ▇▇▇▇ issued by the taxing authority and paid or
payable by Tenant) actually paid by Tenant to Landlord pursuant to Article II
hereof. The initial payment would occur in 1999. And except that the
parties shall enter into an amendment to this lease giving both parties
equivalent rights in the Phase II building, including without limitation,
equivalent expansion rights under Article XXI and XXV hereof, and including
appropriate modification of the design schedule.
ARTICLE XXIX
SECURITY DEPOSIT
Section 29.0 Within ten (10) business days of full execution hereof, Tenant
shall deposit with Landlord the sum of Two Hundred Fifty Thousand Dollars
($250,000.00) in the form of an irrevocable sight draft Letter of Credit in
form attached hereto as Exhibit "H", and issued by a Silicon Valley Bank as
and for a security deposit for the full and faithful performance by Tenant of
each and every term, provision, covenant and condition of this Lease. Said
Letter of Credit shall be automatically increased to the sum of Five Hundred
Thousand Dollars ($500,000.00) upon the date thirty (30) days prior to the
scheduled commencement of tenant improvement work in the Premises by
Landlord. Such Letter of Credit shall be issued in the name of Landlord in
the form attached hereto as Exhibit "H" shall be held by Landlord. In the
event that Tenant defaults in respect to any of the terms, provisions,
covenants and conditions of this Lease, including, but not limited to, the
payment of any rentals or other charges or items to be paid or provided for
by Tenant, Landlord may use, apply or retain the whole or any part of the
security so deposited for the payment of any such rentals in default or for
any other sum which Landlord may expend or be required to expend by reason of
Tenant's default, including, but not limited to, any damages or deficiency in
the reletting of the Premises, whether such damages or deficiency may accrue
before or after re-entry by Landlord. It is expressly understood and agreed
that such deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default. Upon application of any part
of the deposit by Landlord as provided herein, Tenant shall pay to Landlord
on demand the amount so applied in order to restore the security deposit to
its original amount. Any application of the deposit by Landlord shall not be
deemed to have cured Tenant's default except to the extent of payment
resulting from such application provided the security deposit is immediately
restored to the full amount held prior to said application. Landlord agrees,
for the period prior to November 1, 1998, to provide Tenant with an
allowance, to be paid upon the Commencement Date, equal to one-half (1/2) of
the fee charged by the Bank for issuance of the Letter of Credit. Tenant
shall provide Landlord with evidence of the fee charged by the issuing bank,
and Tenant agrees it will negotiate the best available fee from said bank for
issuance.
In the event of a bona fide sale of the Building of which the Premises
are a part, Landlord shall have the right to transfer the security deposit to
its vendee for the benefit of Tenant, and thereafter Landlord shall be
released of all liability for the return of such deposit and Tenant agrees to
look to said vendee for the return of its security deposit. Upon request,
Tenant will re-issue the Letter of Credit in the name of vendee, subject to
payment by Landlord of reasonable administrative and legal costs of
reissuance. It is agreed that this Article XXIX shall apply to every
transfer or assignment made of the security deposit to any new landlord.
This security deposit shall not be assigned or encumbered by Tenant. It
is expressly understood that the re-entry of the Premises by Landlord for any
default on the part of Tenant prior to the expiration of the term of this
Lease shall not be deemed a termination of this Lease so as to entitle Tenant
to recover the security deposit, and the
security deposit shall be retained and remain in the possession of Landlord
until the end of the term of this Lease, except as set forth below.
Actions by Landlord against Tenant for breach of this Lease shall in no
way be limited or restricted by the amount of this security deposit and
resort to such deposit shall not waive any other rights or constitute an
election of remedies which Landlord may have.
Notwithstanding the foregoing provisions, if , as of November 1, 1999,
there have been no uncured defaults by Tenant under this Lease, and the Lease
is then in full force and effect, the amount of the security deposit held by
Landlord shall be reduced to Four Hundred Thousand and NO/100 Dollars
($400,000.00) and a replacement Letter of Credit supplied evidencing the new
amount shall be substituted for the above Letter of Credit; and, if, as of
November 1, 2000, there have been no uncured defaults by Tenant under this
Lease, and the Lease is then in full force and effect, the amount of the
security deposit held by Landlord shall be reduced to Three Hundred Thousand
and NO/100 Dollars ($300,000.00) and a replacement Letter of Credit supplied
evidencing the new amount shall be substituted for the above Letter of
Credit; and, if, as of November 1, 2001, there have been no uncured defaults
by Tenant under this Lease, and the Lease is then in full force and effect,
the amount of the security deposit shall be reduced to Two Hundred Thousand
and NO/100 Dollars ($200,000.00) and a replacement Letter of Credit supplied
evidencing the new amount shall be substituted for the above Letter of
Credit; and, if, as of November 1, 2002 there have been no uncured defaults
by Tenant and the Lease remains in full force and effect, the amount of the
security deposit shall be reduced to One Hundred Thousand and NO/100 Dollars
($100,000.00) and a replacement Letter of Credit supplied evidencing the new
amount shall be substituted for the above Letter of Credit; and, if, as of
November 1, 2003 there have been no uncured defaults by Tenant under this
Lease and the Lease is then in full force and effect, the requirement for a
security deposit hereunder shall be terminated, and the security deposit then
held by Landlord shall be returned to Tenant.
ARTICLE XXX
EXTERIOR BUILDING SIGNAGE
Section 30.0 Landlord shall allow Tenant the non-exclusive right to erect a
sign on the exterior of the Facility, which sign shall be Tenant's name
and/or "logo", all at Tenant's sole cost and expense. Tenant shall pay all
costs of maintenance thereof and shall keep same in good condition, order and
repair at its sole cost and expense and shall remove same prior to
termination of the Term of this Lease and shall repair and restore any damage
to the Facility caused by such installation and/or removal. Any such sign
shall be subject to the terms of any restrictive covenants recorded in
connection with the Property and all applicable laws, ordinances and
regulations. Landlord (at its cost) has designed the Building such that the
brackets and connectors, including electric feeds, are existing in the
curtain wall and curtain wall system to support exterior signage.
ARTICLE XXXI
NOTICE UPON ENTRY
Section 31.0 Anything in this Lease to the contrary notwithstanding,
Landlord shall give Tenant reasonable notice, written or oral, in the event
Landlord intends to enter the Premises for purposes of inspection, repair,
maintenance or alterations of the Facility or Premises, but in no event shall
more than twenty-four (24) hours notice be required and no notice shall be
required in the event of routine janitorial services or an emergency.
Landlord shall perform its repair or other operations in the Premises with
all due diligence and care and, in connection therewith, shall interfere with
the business of Tenant as little as reasonably possible under the
circumstances; provided, however, nothing herein shall require Landlord to
perform any necessary work during other than normal business hours.
ARTICLE XXXII
INTERRUPTION OF SERVICE
Section 33.0 Interruption of Services. No interruption in, or temporary
stoppage of, any of the aforesaid services caused by repairs, renewals,
improvements, alterations, strikes, lockouts, labor controversy, accidents,
inability to obtain fuel or supplies or other causes beyond Landlord's
reasonable control shall be deemed an eviction or disturbance of Tenant's use
and possession, or render Landlord liable for damages, by abatement of rent
or otherwise or relieve Tenant from any obligation herein set forth. In no
event shall Landlord be required to provide any heat, air conditioning,
electricity or other service in excess of that permitted by voluntary or
involuntary guidelines or laws, ordinances or regulations of governmental
authority.
ARTICLE XXXIII
COMMUNICATION ANTENNA
Section 33.0 Landlord licenses Tenant to use up to 100 square feet of the
rooftop area of the Facility in a location reasonably designated by Landlord
for the purpose of installing an antenna (if such dish is not larger than
ten feet (10') in diameter and the top of such dish is not more than six feet
(6') above the roof) and for the use and operation of that antenna and the
area reasonably necessary to connect the antenna by cable to the Premises.
Said installation shall be in accordance with plans and specifications
approved by Landlord (which approval shall not unreasonably be withheld) to
include the means of attaching the portion of such equipment to the roof of
the Facility or improvements located thereon and to include painting or
screening reasonably acceptable to Landlord. Tenant shall have the
responsibility to secure all necessary approvals from State, Federal and
other governmental authorities to construct, operate and maintain such
equipment. All such equipment shall be operated, constructed and maintained
by Tenant in accordance with applicable laws, ordinances, rules and
regulations in compliance with the requirements of the insurers of the
Facility and in accordance with reasonable rules and regulations of Landlord
relating to use of the roof. Tenant shall indemnify and defend Landlord from
and against all loss, claim damage and expense arising out of the
construction, maintenance and operation of such equipment. Said antenna may
be used
solely for internal business purposes of Tenant and shall in no event be used
for any commercial purpose. All work in connection with such equipment shall
be done by Tenant as an alteration or improvement under Article VIII hereof;
provided, no such action shall materially interfere with work being performed
by Landlord or cause a labor dispute. Tenant shall give to Landlord notice
of any notices which Tenant receives from third parties that any of the
equipment is or may be in violation of any law, ordinance, or regulation.
Tenant shall pay all taxes of any kind or nature whatsoever levied upon said
equipment and all licensing fees, franchise taxes and other charges, expenses
and other costs of any nature whatsoever relating to the construction,
ownership, maintenance and operation of said equipment. Landlord shall
provide reasonable access for Tenant to the roof. Tenant agrees to refrain
from interference with the operation of radio, television or other
electromagnetic radiation and reception facilities or AM or FM broadcasting
and two-way radio and microwave transmission in and around the Facility which
comply with U.S. Government regulations. Nothing herein shall prevent
Landlord from licensing others to use the roof in other areas of the Facility
for development, installation and operation of electromagnetic radiation and
reception facilities or FM broadcasting and two-way radio and microwave
transmission. Landlord agrees that in any other leases or licenses of
antenna on the Facility roof, that such leases and licenses will contain
similar language prohibiting interference with other rooftop antenna as is
contained herein.
ARTICLE XXXIV
MEASUREMENT OF RENTABLE AREA
Section 34.0 In respect to measurement of rentable area of the Building or
Premises or any expansion area added to the Premises, if any, pursuant to the
terms of this Lease, Landlord shall first determine the useable area and
rentable area of each floor (using the BOMA measurement standard ANSI-BOMA
265.1 - 1996). The Landlord shall add the (i) total rentable area of the
Building, and (ii) the total useable area as determined for each floor
measured using the aforementioned standard and then divide (i) by (ii) to
determine the building rentable/useable factor ("Factor"). Finally, for each
floor of the Premises, Landlord shall multiply Tenant's useable area by the
Factor to determine Tenant's rentable square foot area for each floor. The
total of said rentable square foot area for each floor of the Premises shall
be deemed to be the rentable square foot area of the Premises, subject to
change pursuant to Section 2.02 D herein. The same methodology shall be
utilized to determine and/or adjust the total Building rentable area and
usable area.
EXHIBIT "A"
PREMISES
EXHIBIT "B"
LEGAL DESCRIPTION
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ Addition, according to the recorded plat thereof,
and situate in Hennepin County, Minnesota.
In the event Landlord exercises its right to relocate the Tenant Premises
into the Phase II Building. The legal description shall be replaced with the
following:
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ Addition, according to the recorded plat thereof,
and situate in Hennepin County, Minnesota.
Landlord shall have the right to replat or otherwise modify the plat of Block
3 Cloverleaf Addition necessary in its reasonable discretion to develop ▇▇▇
▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇ "▇"
SITE PLAN
EXHIBIT C
BUILDING RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement installed on
or in any part of the Premises and visible from the exterior of the Facility,
or visible from the exterior of the Premises, shall be installed at Tenant's
sole cost and expense, and in such manner, character and style as Landlord
may approve in writing. Anything herein to the contrary notwithstanding,
approval as to signs shall be subject to Landlord's approval which may be
withheld in Landlord's sole discretion. In the event of a violation of the
foregoing by Tenant, Landlord may remove the same without any liability and
may charge the expense incurred by such removal to Tenant. See Article XXX
as to Tenant's exterior Building signage.
2. No awning or other projection shall be attached to the outside
walls of the Facility. No curtains, blinds, shades or screens visible from
the exterior of the Facility or visible from the exterior of the Premises
shall be attached to or hung in, or used in connection with any window or
door of the Premises without the prior written consent of Landlord. Such
curtains, blinds, shades, screens or other fixtures must be of a quality,
type, design and color, and attached in the manner approved by Landlord.
3. Tenant, its servants, employees, customers, invitees and guests
shall not obstruct sidewalks, entrances, passages, corridors, vestibules,
halls, or stairways in and about the Facility which are used in common with
other tenants and their servants, employees, customers, guests and invitees,
and which are not a part of the Premises of Tenant. Tenant shall not place
objects against glass partitions or doors or windows which would be unsightly
from the Facility corridors or from the exterior of the Facility and will
promptly remove any such objects upon notice from Landlord.
4. Tenant shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that emit
excessive sound or other waves or disturbances or create obnoxious odors, any
of which may be offensive to the other tenants and occupants of the Facility,
or that would interfere with the operation of any device, equipment, radio,
television broadcasting or reception from or within the Facility or elsewhere
and shall not place or install any projections, antennas, aerials or similar
devices inside or outside of the Premises or on the Facility. SEE RIDER
ARTICLE XXXIII.
5. Tenant shall not waste electricity, water or air conditioning
furnished by Landlord, if any, and shall cooperate fully with Landlord to
insure the most effective operation of the Facility's heating and air
conditioning systems.
6. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured after normal business hours.
7. In no event shall Tenant bring into the Facility inflammables, such
as gasoline, kerosene, naphtha and benzine, or explosives or any other
article of intrinsically dangerous nature. If, by reason of the failure of
Tenant to comply with the provisions of this subparagraph, any insurance
premium for all or any part of the Facility shall at any time be increased,
Tenant shall make immediate Payment of the whole of the increased insurance
premium, without waiver of any of Landlord's other rights at law or in equity
for Tenant's breach of this Lease.
8. Tenant shall comply with all applicable federal, state and
municipal laws, ordinances and regulations, and building rules and shall not
directly or indirectly make any use of the Premises which may be prohibited
by any of the foregoing or which may be dangerous to persons or property or
may increase the cost of insurance or require additional insurance coverage.
Exhibit C - Page 1 of 3
9. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's reasonable opinion tends to impair the reputation of the
Facility, and upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising. SEE ARTICLE XXX AS TO TENANT'S SIGNAGE.
10. The Premises shall not be used for lodging, sleeping or for any
immoral or illegal purpose.
11. Tenant and Tenant's servants, employees, agents, visitors and
licensees shall observe faithfully and comply strictly with the foregoing
rules and regulations and such other and further reasonable and appropriate
rules and regulations consistent with the provisions of this Lease as
Landlord or Landlord's agent may from time to time adopt. Reasonable notice
of any additional rules and regulations shall be given in such manner as
Landlord may reasonably elect.
12. Unless expressly permitted by the Landlord, no additional locks or
similar devices shall be attached to any door or window and no keys other
than those provided by the Landlord shall be made for any door. If more than
two keys for one lock are desired by the Tenant, the Landlord may provide the
same upon payment by the Tenant. Upon termination of this Lease or of the
Tenant's possession, the Tenant shall surrender all keys of the Premises and
shall explain to the Landlord all combination locks on safes, cabinets and
vaults.
13. Any carpeting cemented down by Tenant shall be installed with a
releasable adhesive. In the event of a violation of the foregoing by Tenant,
Landlord may charge the expense incurred by such removal to Tenant.
14. The water and wash closets, drinking fountains and other plumbing
fixtures shall not be used for any purpose other than those for which they
were constructed, and no sweepings, rubbish, rags, coffee grounds or other
substances shall be thrown therein. All damages resulting from any misuse of
the fixtures shall be borne by the Tenant who, or whose servants, employees,
agents, visitors or licensees, shall have caused the same. No person shall
waste water by interfering or tampering with the faucets or otherwise.
15. No pipe, conduit, cable, line or the like for water, gas, sewage,
drainage, steam, electricity, or any other energy or service shall be
installed or maintained on the Premises, except with the prior written
permission of Landlord. Tenant shall not overload any utilities serving the
Premises.
16. No dog or other animal shall be allowed in the Facility.
17. All loading, unloading, receiving or delivery of goods, supplies or
disposal of garbage or refuse shall be made only through entryway provided
for such purposes. Tenant shall be responsible for any damage to the
Facility or the property of its employees or others and injuries sustained by
any person whomsoever resulting from the use or moving of such articles in or
out of the Premises, and shall make all repairs and improvements required by
Landlord or governmental authorities in connection with the use or moving of
such articles.
18. All safes, equipment or other heavy articles shall be carried in or
out of the Premises only in such manner as shall be prescribed in writing by
Landlord, and Landlord shall in all cases have the right to specify the
proper position of any such safe, equipment or other heavy article, which
shall only be used by Tenant in a manner which will not interfere with or
cause damage to the Premises or the Facility in which they are located, or to
the other tenants or occupants of said Facility. Tenant shall be responsible
for any damage to the Facility or the property of its employees or others and
injuries sustained by any person whomsoever resulting from the use or moving
of such articles in or out of the Premises, and shall make all repairs and
improvements required by Landlord or governmental authorities in connection
with the use or moving of such articles.
Exhibit C - Page 2 of 3
19. Canvassing, soliciting, and peddling in or about the Facility is
prohibited and each Tenant shall cooperate to prevent the same.
20. Tenant shall not use, generate, transport, store, treat or dispose
of any hazardous substances, toxic chemical, pollutant or other material
regulated by the Comprehensive Environmental Response, Compensation and
Liability Act of 1985 or in the so-called Minnesota Superfund ▇▇▇▇ or any
similar law or regulation without Landlord's written approval of each such
substance. Landlord shall not unreasonably withhold its approval of use by
Tenant of such substances needed in Tenant's business operations so long as
Landlord is satisfied that Tenant will use appropriate measures to avoid
release thereof.
21. No on-street parking shall be allowed anywhere on the Premises,
either on public streets or private roads. No overnight parking of trucks or
cars shall be permitted anywhere on the Premises, unless such trucks or cars
are parked inside buildings. Tenant shall have the right on a temporary
basis, from time to time, to park employee vehicles overnight in the parking
areas of the Project.
22. The Premises shall not be used for any of the following purposes:
full service laundry; taxidermy; mobile home and prefabricated home sales and
rentals; the sales, repair and servicing of motor vehicles, construction
equipment and farm equipment; clubs, lodges and/or community halls; sawmills;
storage of school or recreational vehicles; truck terminals, moving and
storage establishments; drive-in theaters; golf driving ranges; asphalt or
asphalt products manufacture; automobile, truck, construction equipment or
farm equipment assembly plants; coal storage, milling and processing; and
kennels and animal hospitals (commercial and noncommercial); heavy machinery
manufacture and repair; livestock slaughtering or preparation for packing;
manufacturing of metal alloys or foils; and railroad manufacture and repair.
23. Tenant shall maintain the Premises in a safe, clean, neat and
sanitary condition and in a first-class commercial manner.
24. Wherever in these Building Rules and Regulations the word "Tenant"
occurs, it is understood and agreed that it shall mean Tenant's associates,
employees, agents, clerks, servants, invitees and visitors. Wherever the
word "Landlord" occurs, it is understood and agreed that it shall mean
Landlord's assigns, agents, clerks, servants, and visitors.
25. Landlord shall have the right to enter upon the Premises at all
reasonable hours upon reasonable notice to Tenant except in case of
emergency, for the purpose of inspecting the same.
26. Landlord shall have the right to enter the Premises upon reasonable
notice to Tenant except in case of emergency, at hours convenient to the
Tenant for the purpose of exhibiting the same to prospective tenants within
the one hundred twenty (120) day period prior to the expiration of this
Lease, and may place signs advertising the Premises for rent on the exterior
of said Premises at any time within said one hundred twenty (120) day period.
SEE RIDER ARTICLE XXXI.
27. Tenant, its servants, employees, customers, invitee and guests
shall, when using the common parking facilities, if any, in and around the
Facility, observe and obey all signs regarding fire lanes and no parking
zones, and when parking always park between the designated lines. Landlord
reserves the right to tow away, at the expense of the owner, any vehicle
which is improperly parked or parked in a no parking zone. All vehicles
shall be parked at the sole risk of the owner, and Landlord assumes no
responsibility for any damage to or loss of vehicles.
28. In case of invasion, mob, riot, public excitement, or other
commotion, Landlord reserves the right to prevent access to the Facility
during the continuance of the same by closing the doors or otherwise, for the
safety of the tenants or the protection of the Facility and the property
therein.
Exhibit C - Page 3 of 3
Landlord shall in no case be liable for damages for any error or other action
taken with regard to the admission to or exclusion from the Facility of any
person.
29. All entrance doors to the Premises shall be locked when the
Premises are not in use. All common corridor doors, if any, shall also be
closed during times when the air conditioning equipment in the Facility is
operating so as to prevent overload thereon.
30. Landlord reserves the right at any time and from time to time to
reasonably rescind, alter or waive, in whole or in part, any of these Rules
and Regulations when it is deemed necessary, desirable, or proper, in
Landlord's judgment, for its best interest or for the best interest of the
tenants of the Facility provided any such changes are consistent with and do
not conflict with the Lease terms.
Exhibit C - Page 4 of 3
EXHIBIT D
ADDITIONAL LEASEHOLD IMPROVEMENT SPECIFICATIONS
In addition to the preliminary plan, Landlord will incorporate the following
items into its turnkey proposal.
CONCRETE
1. An open stair from floors 2 and 4 and an enclosed stair from floors
4-5. The design of the open stairs is subject to Landlord's
reasonable approval (see Exhibit "I").
WOOD AND PLASTIC
1. Upper and lower cabinets in all coffee stations and break room area.
FINISHES
1. Acoustical insulation at interior partitions of executive offices and
internal conference rooms.
2. Slab to slab partitions (CIM Center, Boardroom, training rooms, large
conference room, computer rooms).
3. Fabric wallcovering at reception, elevator lobby, CIM Center, and
Boardroom.
4. Vinyl wall covering providing on 25% of the walls within the space.
5. Upgrade upon area carpet quality over building standard (28 to 30
ounce level loop, not to exceed 25% of the space).
10. Drywall ceiling in upgrade areas in reception area, elevator lobby and
stairs.
MECHANICAL
1. Separate mechanical zones in computer areas, large conference rooms,
and training rooms.
2. Water taps at coffee bars.
3. Sink at seven (7) coffee locations.
ELECTRICAL
1. Additional capacity on electrical panels and supply for load.
2. Electrical outlets and wiring per plan dated April 2, 1997.
EXHIBIT "E"
OFFICE SERVICES
A. Landlord Services:
1. Landlord, subject to including the costs thereof in Article II, shall
provide the following services during the term of this lease:
(a) Air conditioning and heating service for normal purposes shall be
provided in Landlord's good business judgment for
comfortable occupancy Monday through Friday during the hours
of 7:00 a.m. through 6:00 p.m., and on Saturday during the
hours of 8:00 a.m. through 1:00 a.m., except recognized
holidays. Tenant agrees not to use any apparatus or device,
in or upon or about the Premises which in any way may
increase the amount of such service usually consumed therein
when the Premises are occupied, and will not connect any
apparatus or device to the cooling or heating system of the
Building for the purpose of using additional or unusual
amounts of such services, without written consent of
Landlord, which consent may be conditioned upon payment of
additional charges by Tenant. The HVAC shall be designed to
meet the following criteria and Landlord shall use all
reasonable efforts to operate the HVAC to meet said design
criteria:
(1) Summer - Outdoor conditions 92 DEG. Fahrenheit
dry bulb, 75 DEG. Fahrenheit wet bulb (2 1/2"
coincidence); indoor conditions 75 DEG. Fahrenheit
dry bulb, 50% relative humidity maximum.
(2) Winter - Outdoor conditions minimum 19 DEG. Fahrenheit
dry bulb; 72 DEG. Fahrenheit dry bulb, inside, minimum
relative humidity 20%. Landlord will take appropriate
corrective action using existing Building equipment
and prudent operating standards should minimum
relative humidity drop below 20%.
(b) Electricity only for building standard lighting, typewriters,
adding machines, calculators, personal computers, small
reproduction machines and other similar small office
equipment, it being expressly understood that to the extent
the electricity is used for any other purpose or if Tenant's
use shall exceed normal and customary usage levels for
office purposes, additional charges shall be payable by
Tenant to Landlord in such amounts as Landlord may
reasonably determine necessary to cover the costs of such
increased use, or, at Landlord's option, Landlord may
require Tenant to install a separate electrical meter at
Landlord's sole expense. Any separate computer room will be
separately metered and such costs shall be a Service Charge
to Tenant.
(c) Water for drinking, lavatory and toilet purposes from the regular
Building supply (at the prevailing temperature) through
fixtures installed by Landlord (or by Tenant with Landlord's
written consent).
(d) Standard interior janitorial and cleaning services in the common
areas of the Building and the Premises five (5) days per
week pursuant to the janitorial specifications attached as
Exhibit E-1. Tenant shall not procure any janitorial or
cleaning services for the Premises without Landlord's prior
written consent and then only subject to supervision by
Landlord and by janitorial or cleaning contractors or
employees at all times reasonably satisfactory to Landlord.
(e) Window washing of all windows in the premises, both inside and
out, at such times as Landlord shall deem necessary, but in
no event less than twice per year.
(f) Lawn and shrub care, snow plowing and removal, maintenance of the
structure, roof, mechanical and electrical equipment of the
Building, excluding those items specifically excepted
elsewhere in this Lease.
(g) Passenger elevator service will be provided 24 hours per day,
seven days per week, in common with other tenants by
operatorless automatic elevators. During Tenant move-in,
the freight elevator shall be available for Tenant's
exclusive use. After business hours, additional elevator(s)
will be made available for Tenant's exclusive use during
move-in. Landlord shall have the right to restrict the
number of elevators to be in operation during evenings,
Saturdays, Sundays and holidays.
(h) Landlord shall initially supply card keys for access to the
Facility at no cost; replacements for lost or damaged card
keys shall be made available at reasonable cost to Tenant.
The card keys will access the main doors to the Building and
the elevators. Landlord will use all reasonable efforts to
allow Tenant to utilize Landlord's card keys to access the
Premises provided any such Tenant Premises' system shall be
provided and installed by Tenant at its sole cost and
expense.
(i) Landlord shall provide a building directory in the lobby of the
Building. Tenant may list its name and suite numbers in
said directory. In the elevator lobbies on full floors
occupied by Tenant, Tenant may place identification signage,
subject to approval of design, location and attachment
method by Landlord.
EXHIBIT "F"
RESERVED PARKING LICENSE
RESERVED SPACE
PARKING GARAGE LICENSE
THIS LICENSE, made this 12 day of November, 1997, between MERIDIAN
CROSSINGS LLC, A MINNESOTA LIMITED LIABILITY COMPANY, Licensor, and FOURTH
SHIFT CORPORATION, A MINNESOTA CORPORATION, Licensee, whose address is ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. Licensor hereby licenses Licensee the right to park three (3)
automobile(s) in the lower level Parking Garage at the Facility known and
described as Meridian Crossings I, located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ for a ten (10) year term beginning on the Rental
Commencement Date, as hereinafter described, and ending October 31, 2008.
2. Anything herein to the contrary notwithstanding, this License shall
in any event terminate no earlier or later than the date of termination of
the term (including any renewal terms or extensions) of the Lease between
Landlord as, Licensor and Licensee, as Tenant, for space in said Facility,
such Lease dated NOVEMBER 12, 1997. Upon a breach of this Agreement notice
given in accordance with the terms of such Lease and failure of the breaching
party to cure within thirty (30) days of such notice, the non-breaching party
shall have all remedies available herein and under the Lease.
3. Licensee agrees to pay as a monthly fee for such License the sum of
Two Hundred and Eighty-five Dollars and NO/100 ($285.00) for the total of
three (3) stalls licensed payable on or before the first day of each month in
advance. The monthly fee may be changed by Licensor as of the first day of
the Renewal Term by giving not less than thirty (30) days advance written
notice thereof to Licensee. In the event Licensee objects to the revised fee
as established by Licensor, it may cancel this License effective upon the
adjustment date, as to all or any portion of the spaces licensed hereunder,
by written notice to Licensor provided such written notice is given to
Licensor within fifteen (15) days after receipt by Licensee of the notice of
the escalation by Licensor. Licensor agrees to charge Licensee the same fee
charged other Licensees entering into Licenses at or about the same time
period as the revised fee is charged hereunder.
4. In the event any of the fee is not paid when due or Licensee is
otherwise in default hereunder, Licensor may, at its option, cancel this
agreement by written notice to Licensee if Licensee fails to cure such
default within thirty (30) days after written notice by Licensor to Licensee.
5. This License is for the Reserved Parking Space(s) designated as
follows:
Only vehicles designated by Licensee to Licensor may be parked or stored
thereon, provided, however, that Licensee may change its automobile
designation at any time upon written notice to Licensor or for temporary use
upon notification given to the ramp
attendant, if any. No more than one (1) automobile per space licensed
hereunder shall be parked or stored under Licensee's rights hereunder at any
one time.
6. This License is for self-service storage or parking only and does
not include the rights to any additional services, which services may be made
available by Licensor from time to time at an additional charge.
7. Except for same resulting solely from the willful act of Licensor,
it is understood that Licensor and its agent and employees shall not be
liable for loss or damage to any vehicle parked or stored by Licensee or
under Licensee's rights herein and/or to the contents thereof caused by fire,
theft, explosion, freezing of circulation system of any automobile, strikes,
riots, or by any other causes and Licensee (1) waives any claim against
Licensor for and in respect thereto, and (2) hereby agrees to indemnify and
defend Licensor against all claims for any loss or damage to any such vehicle
or its contents from any cause whatsoever, whether or not caused by
Licensor's act or omission. It is further expressly understood that the
relationship between Licensor and Licensee constitutes a License to use said
Parking Garage subject to the terms and conditions herein only and that
neither such relationship nor the storage or parking of any automobile
thereunder shall constitute a bailment nor create the relationship of ▇▇▇▇▇▇
and bailee.
8. Licensee shall not assign any of its rights under this agreement
separately from the Lease in any manner whatsoever without the prior written
consent of Licensor, which shall not unreasonably be withheld provided such
assignment is collateral to an assignment of the Lease referred to in
Paragraph 2 hereof.
9. All notices hereunder shall be given as set forth in the Lease.
The addresses of either party may be changed at any time by written notice by
the party to be notified in the manner above specified.
10. In the event the Parking Ramp above-referenced shall be damaged by
fire or other casualty, rendering the Ramp unusable by Licensee, the fee
provided for herein shall be abated (pro rata based on the portion of
Licensee's stalls which are unusable) from the date the Parking Garage
becomes unusable until it again becomes useable. Further, if all of any part
of the Parking Garage is taken by eminent domain proceedings, Licensor shall
be entitled to all of the award in the proceedings and may terminate this
agreement in the event of a total taking or reduce the number of stalls
licensed hereunder in preparation to the extent of any partial taking upon
written notice to Licensee. If the Parking Garage is damaged by fire or
other casualty, Licensor will cause the it to be repaired with all due
diligence and the fee will ▇▇▇▇▇ until repaired.
11. This License Agreement shall be subject and subordinate to any
mortgage, deed of trust or ground lease now or hereafter placed on the above
described Facility or any portion thereof and to replacements, renewals and
extensions thereof, and Licensee upon request by Licensor shall execute
reasonable instruments (in form reasonably satisfactory to Licensor)
acknowledging such subordination. It is agreed so long as Licensee be not in
default in payment of fee provided for herein and performance of all
covenants, agreements and conditions by it to be performed under this
agreement, such subordination shall not interfere with, hinder or molest
Licensee's rights to continue to license the stalls licensed hereunder in
accordance with the terms of this agreement as against mortgagee, trustee or
ground lessor or their successors or assigns. The mortgagee, trustee or
ground lessor shall, issue its non-disturbance agreement to Licensee.
Further, if any mortgagee shall succeed to the rights of Licensor under this
agreement, or to ownership of the Parking Garage, whether through possession
or foreclosure or the delivery of a deed to the Parking Garage, then, upon
the written request of such mortgagee so succeeding to Licensor's rights
hereunder, Licensee shall attorn to and recognize such mortgagee as
Licensee's licensor under this agreement, and shall promptly execute and
deliver any instrument that such mortgagee may reasonably request to evidence
such attornment (whether before or after making of the mortgage). In the
event of any other transfer of Licensor's interest hereunder, upon the
written request of the transferee and Licensor, Licensee shall attorn to and
recognize such transferee as Licensee's licensor under this agreement and
shall promptly execute and deliver any instrument that such transferee and
Licensor may reasonably request to evidence such attornment.
12. Licensee covenants not to suffer any waste or damage or
disfigurement or injury to the Parking Garage or the Facility.
13. Subject to the abatement provided for in Paragraph 10 hereof,
Licensor shall have the right to temporarily close any portion of the
Parking Garage and deny access thereto in connection with any repairs or in
an emergency, as it may require, without liability, cost, or abatement of
fee, but except for damage, destruction or condemnation, the closure shall
not exceed fourteen (14) consecutive business days.
14. Licensee shall perform, observe and comply with such Parking
Garage rules of the Facility as may be reasonably adopted by Licensor in
respect to the use and operation of said Parking Garage.
15. Licensee shall, when using the parking facilities of said Ramp,
observe and obey all signs regarding fire lanes and no-parking zones, and
when parking always park between designated lines. Licensor reserves the
right to tow away, or otherwise impound, at the expense of the owner or
operator, any vehicle which is improperly parked or parked in a no-parking
zone. Overnight parking shall be allowed only as reasonably acceptable to
Licensor. Licensor agrees to provide, except in the case of an emergency,
ten (10) business days prior written notice, to Licensee prior to any
prohibition on overnight parking.
16. In the event a key or other access device is supplied by Licensor
to Licensee in connection with the rights granted herein, Licensee will
surrender such key or access device to Licensor upon termination of this
agreement.
17. Licensor covenants and agrees that Licensee, upon paying the
charges herein provided for and observing and keeping the covenants,
agreements and conditions of this License Agreement on its part to be kept
and performed, shall lawfully hold, occupy and enjoy all the rights and
privileges granted herein during the term of this agreement without hindrance
or molestation by Licensor, its agents, servants, employees, guests, invitees
or any other persons claiming under Licensor.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
day and year first above written.
MERIDIAN CROSSINGS LLC, A
MINNESOTA LIABILITY COMPANY MINNESOTA CORPORATION
By By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Manager Its VP & CFO
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