Exhibit 10.15
CONSENT OF LANDLORD
(SUBLEASE)
TEACHERS INSURANCE & ANNUITY ASSOCIATION, successor to N.D. PROPERTIES,
INC., successor to MINNESOTA CC PROPERTIES, INC. ("Landlord"), as landlord, and
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA ("Sublessor"), as tenant, currently
are parties to a written Lease dated December 31, 1993 ("Lease") relating to
certain premises ("Premises") in the building commonly described as ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇. Sublessor desires to sublease a portion of
the Premises ("Subleased Premises") to NETWORK MANAGEMENT SERVICES, INC.
("Sublessee") as provided in the First Amendment of Sublease ("Sublease") dated
August 10, 1999, attached hereto as Exhibit A.
Landlord hereby consents to the subletting of the Subleased Premises as
provided in the Sublease, subject to the following:
1. This Consent does not amend or modify any provision of the Lease or
release Sublessor or any guarantor(s) from any obligation, whether past,
present or future, under the Lease. Sublessor and my guarantor(s) shall
remain liable for the payment of all rent (including, without limitation,
Base Rent and Operating Costs) and other sums and the performance of all
other obligations of Sublessor as provided in the Lease. The Sublease is,
and shall be, subject and subordinate to the terms and conditions of the
Lease. Insofar as any terms of the Sublease are in conflict with the terms
of the Lease, the Lease shall govern and control.
2. Without the prior written consent of Landlord (except as otherwise
expressly provided in the Lease), neither Sublessor nor Sublessee shall
sublet all or any portion of the Premises, assign the Lease or Sublease, or
amend or modify the Sublease. No alterations or improvements may be made to
the Premises without the prior written consent of Landlord in accordance
with the Lease.
3. If any default occurs under the Lease, Landlord may, at its option and
in addition to any other available rights and remedies: (a) collect
directly from Sublessee all rents due under the Sublease, and no such
collection shall constitute an acceptance of Sublessee as tenant or a
novation or release of Sublessor from its obligation ▇▇▇▇▇▇ the Lease; or
(b) by written notice to Sublessee, elect to have Sublessee directly bound
to Landlord for the payment of rent and the performance of its other
obligation ▇▇▇▇▇▇ the Sublease, in which case Sublessee will attorn to
Landlord. Landlord shall have a right of entry to the Subleased Premises
int he event of a default by Sublessee in its performance under the
Sublease. Such rights may be exercised without liability for any act or
omission of Sublessor and without waiving any default or any of Landlord's
rights and remedies under the Lease.
4. Notwithstanding anything to the contrary contained in the Sublease,
Landlord shall have no obligation to deliver any notices called for under
the Sublease or the Lease to Sublessee. Landlord shall continue to deliver
notices to Sublessor as provided in the
Lease. Landlord shall have no obligation to accept, consider or respond to
any notice, request or other communication from Sublessee, whether of a
type described in the Sublease or otherwise. Neither this Consent nor the
Sublease shall give Sublessee any rights under the Lease, and Sublessee
shall have no rights being personal to Sublessor. No representations
respecting the Premises, the Building, the Project, the Lease or any other
matter have been made by Landlord to Sublessee.
5. Sublessee agrees at its expense to comply with all insurance requirements
under the Lease and provide certificates of such insurance before taking
possession of the Subleased Premises naming Landlord as an additional
insured, and shall agree to and adopt the provisions of Section 8 of the
Lease with respect to the Subleased Premises as if Sublessee were the
Tenant thereunder.
6. Sublessor hereby confirms to Landlord that there are no existing defenses
or offsets which Sublessor has against enforcement of the Lease; and
Landlord is not currently in default under the Lease.
7. This consent is subject to the condition that Sublessor and Sublessee shall
acknowledge and agree to the above terms and conditions by signing in the
space provided below.
IN WITNESS WHEREOF, the undersigned has executed this Consent as of August
30, 1999.
LANDLORD:
Teachers Insurance & Annuity Association
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
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Title: Asst. Sec.
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ACKNOWLEDGED AND AGREED TO:
SUBLESSOR:
The Prudential Insurance Company of America
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: DIRECTOR, OPERATIONS
CORPORATE REAL ESTATE
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SUBLESSEE:
Network Management Services, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
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EXHIBIT C
LEASEHOLD IMPROVEMENTS
1. Building Shell. The following Building Standard items are deemed to be
part of the Building Shell and are provided at Landlord's expense for unimproved
space in accordance with Landlord's Building Shell specifications:
Parabolic Light Fixtures Not Installed
Ceiling Grid Installed
Ceiling Tile Not Installed
Interior VAV Boxes Not Installed
Exterior VAV Boxes Installed
Exterior VAV Trunk System Installed
Exterior Window Mini-Blinds Installed
Building Shell Sprinkler System Installed
HVAC Diffusers Not Installed
The above Building Shell items are not charged against the Tenant Finish
Allowance, except for the cost of any adjustments or modifications and the cost
of installing items listed as "not installed."
2. Tenant Finish Allowance and Costs. Landlord shall provide an allowance
("Tenant Finish Allowance") not to exceed $14.62 per rentable square foot in the
Premises (total $437,181.86) or the actual cost of such improvements, whichever
is less, to be applied to the total cost of constructing Tenant's leasehold
improvements in the Premises ("Tenant Finish Costs"), including, without
limitation: space planning and design fees; architectural and engineering fees;
required building permits; actual cost of labor, materials, equipment and
services; actual cost of tenant signage; for any unimproved portion of the
Premises, the costs of installing and modifying those Building Shell items
labeled above as "not installed" as well as the costs of modifying those
Building Shell items labeled above as "installed" to accommodate Tenant's space
plan; and the costs of removing, modifying relocating or making additions to any
existing improvements in the Premises to accommodate Tenant's space plan. Tenant
Finish Costs shall exclude expenses in connection with services provided by
Tenant or Tenant's employees; telephone, communications, and computer equipment
and wiring; and personal property items such as decorations, art work,
furniture, equipment, or trade fixtures not permanently attached to the
Premises. Any Tenant Finish Costs in excess of the Tenant Finish Allowance shall
be payable by Tenant to Landlord as Additional Rent within thirty (30) days of
Landlord's invoice for such costs.
3. Landlord's Work. As Landlord's Work, Landlord shall (a) provide any
previously unimproved portion of the Premises in Building Shell condition; and
(b) construct leasehold improvements in the Premises, substantially in
accordance with plans and specifications approved by Tenant and Landlord as
provided in Exhibit C-1, in a total amount not to exceed the Tenant Finish
Allowance. In all other respects, ▇▇▇▇▇▇ agrees to accept the Premises in its
present condition, "as is," with no obligation for Landlord to do or pay for any
improvements or plans. Additional Work, if any, required by Tenant shall be
constructed by Landlord at Tenant's expense as provided in Exhibit C-1.
4. Telephones/Wiring. Tenant shall at its expense (a) install and maintain
all telephone and communications wiring and equipment from the service access
point in the Building to and within the Premises; and (b) arrange directly with
▇▇▇▇▇▇▇▇▇ Communications Services Company or another provider for all service
and connections. Landlord will cooperate with Tenant to permit the installation
of such wiring and equipment at Tenant's expense; provided that all such work
shall be subject to Landlord's prior approval.
5. Space Planning Allowance. In addition to the Tenant Finish Allowance,
Landlord shall provide an allowance ("Space Planning Allowance") not to exceed
$.10 per rentable square foot in the Premises (total
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$2,990.30) or the actual cost of such Services, whichever is less, to be applied
to Tenant's space planning costs. Such allowance shall be paid within thirty
(30) days after Tenant provides an itemized statement of such costs.
C-2
EXHIBIT C-1
TENANT IMPROVEMENT WORK AGREEMENT
1. Landlord's Work. ▇▇▇▇▇▇ agrees to promptly devote such time in
consultation with Landlord and ▇▇▇▇▇▇▇▇'s architect ("Architect") as reasonably
necessary to finalize a space plan for the Premises, and to furnish such
information relative to the Premises as reasonably necessary to enable the
Architect to commence final architectural plans and specifications (the
"Architectural Plans") for improving the Premises with the items described on
Exhibit C attached hereto as "Landlord's work." The information to be furnished
by Tenant to the Architect shall include, without limitation:
(a) Any requirements of the Tenant for the Premises which are in
excess of, or otherwise vary in any respect from, Building standard items.
(b) Special loading, such as the location of and requirements for file
cabinets or special equipment.
(c) Openings in the walls or floors.
(d) Special heating, ventilating, air conditioning, electrical,
sprinkler, lighting, security system, or plumbing work.
(e) Location and dimensions of telephone equipment areas, and location
of telephone and electrical outlets, switches and lights.
(f) Partitions - locations and type, including doors and hardware,
windows, glass partitions and special framing or support.
(g) Special cabinet work and other millwork items.
(h) Variations to standard ceiling heights.
(i) Location and color selection of painted areas.
(j) Location and selection of floor covering and wall coverings.
(k) Location and type of any kitchen equipment.
(l) Such additional information as reasonably specified by Landlord.
Within five (5) business days after the completed Architectural Plans have been
submitted to Tenant, ▇▇▇▇▇▇ agrees to provide the Architect with ▇▇▇▇▇▇'s
written approval (or disapproval with a written explanation of any changes
required in the Plans) of such Architectural Plans and to redeliver the
Architectural Plans to the Architect for submission to Landlord for Landlord's
final approval. Should Tenant fail to promptly furnish the Architect with all
necessary information so that Architect can commence with the Architectural
Plans or should Tenant fail to redeliver the Architectural Plans with Tenant's
approval or disapproval to the Architect within said five (5) day period, Tenant
shall indemnify Landlord against any additional cost in completing Landlord's
work and other damages to Landlord caused thereby.
After final approval of the Architectural Plans by Landlord and
Tenant, Landlord shall cause such Architectural Plans to be reviewed for
final mechanical and electrical plans and specifications (the "Engineering
Plans") for Landlord's Work. Promptly after completion of the Engineering
Plans, Landlord shall obtain a building
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permit and, subject to the other terms and conditions of this Exhibit C-1 and
the Lease, shall proceed diligently to cause Landlord's Work to be substantially
completed before the Commencement Date of the Lease, it being expressly
understood that all work to be done in the Premises shall be subject to approval
of Landlord and that no work shall be undertaken in the Premises until such
approval is given in writing. Except as otherwise provided in Exhibit C, all
costs and expenses relating to the preparation and completion of any space plan
or the Architectural and Engineering Plans for the Premises shall be borne by
Tenant.
For purposes of this Exhibit C-1, "substantial completion" means: (i)
completion of Landlord's Work except for minor finishing and punchlist activity
which does not materially interfere with Tenant's use and occupancy of the
Premises; (ii) issuance of any necessary municipal certificate of occupancy; and
(iii) Tenant, its employees, agents, and invitees have ready and safe access to
the Building and the Premises through the lobby, entrances, elevators, and
hallways. Within thirty (30) days after the Commencement Date of the Lease, the
parties shall inspect the Premises, have all systems demonstrated, and prepare a
punchlist of incomplete or defective details of construction. Landlord will
complete the punchlist items within sixty (60) days after ▇▇▇▇▇▇ provides the
punchlist to Landlord. Upon notice from Landlord that ▇▇▇▇▇▇▇▇'s Work is
complete, ▇▇▇▇▇▇ agrees to confirm acceptance of the Premises in written form
reasonably acceptable to Landlord, unless the completion of Landlord's Work is
disputed. If Tenant disputes Landlord's notice that ▇▇▇▇▇▇▇▇'s work is complete
and such dispute cannot be resolved by ▇▇▇▇▇▇ and Landlord within thirty (30)
days after Landlord has furnished such notice, then such dispute shall be
resolved by a Minnesota licensed architect approved by both Landlord and ▇▇▇▇▇▇,
and the determination of such architect shall be binding upon the parties; and
the fees of such architect shall be shared equally by Landlord and Tenant.
2. Additional Work. Except to the extent described herein, in Exhibit C or
in the Lease, Landlord has no obligation to do or pay for any work to the
Premises (or any plans or specifications relating thereto). If Tenant shall
require other work or materials ("Additional Work") in the Premises in addition
to or in substitution for Landlord's Work, Tenant shall deliver to Landlord for
its approval final Architectural Plans for such Additional Work at or before the
time Tenant is required pursuant to Section 1 hereof to deliver ▇▇▇▇▇▇'s written
approval of the Architectural Plans for Landlord's Work. If Landlord does not
approve of the Architectural Plans for the Additional Work, as delivered by
▇▇▇▇▇▇, Landlord shall advise Tenant generally of the changes required in such
Plans so that they will meet with ▇▇▇▇▇▇▇▇'s approval. Tenant shall cause the
Architectural Plans for the Additional Work to be revised and delivered to
Landlord for its final review and approval within five (5) business days after
▇▇▇▇▇▇'s receipt of such advice or Tenant shall be deemed to have abandoned its
request for such Additional Work. After final approval of the Architectural
Plans for the Additional Work by Landlord, Landlord shall cause the preparation
of final Engineering Plans relating thereto. All Architectural and Engineering
Plans for the Additional Work (together with any changes to the Architectural or
Engineering Plans for the Landlord's Work which may be required as a result
thereof) shall be prepared and completed at Tenant's sole cost and expense.
Landlord shall furnish Tenant with written estimates of the cost of the
Additional Work within fifteen (15) business days after receipt by Landlord of
the Engineering Plans for the Additional Work. If Tenant shall fail to approve
in writing such estimates within seven (7) business days from receipt thereof,
the estimates shall be deemed disapproved in all respects by Tenant; Landlord
shall not be authorized or required to proceed with any Additional Work; and
Tenant shall be deemed to have abandoned its request therefor. If, however,
▇▇▇▇▇▇ approves in writing such estimate as furnished by ▇▇▇▇▇▇▇▇ within said
seven (7) day period, Tenant shall pay Landlord the actual cost of such
Additional Work, as follows:
(a) Unless otherwise agreed by ▇▇▇▇▇▇▇▇, an amount equal to fifty
percent (50%) of the estimated total cost of such Additional Work shall be
paid to Landlord upon receipt and written approval of the estimate, and
(b) An amount equal to the unpaid balance of the total actual cost of
the Additional Work shall be paid to Landlord within thirty (30) days of
Landlord's statement following substantial completion of such Additional
Work;
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and, provided ▇▇▇▇▇▇ makes all payments when required herein and furnishes
reasonable security for the balance of such costs, ▇▇▇▇▇▇▇▇ agrees to cause the
Additional Work to be performed by ▇▇▇▇▇▇▇▇'s contractors.
If Landlord is not required to perform Additional Work as provided in this
Section 2, the alterations and improvements to be made to the Premises prior to
the commencement of the Term of the Lease shall be limited to Landlord's Work
and any additional alterations and improvements to the Premises desired by
Tenant shall be made after the commencement of the Term of the Lease as provided
in Section 5 of the Lease.
3. Commencement of Rent. The Commencement Date of the Lease shall not occur
and ▇▇▇▇▇▇'s obligation to pay rent under the Lease shall not commence until
Landlord has substantially completed all of Landlord's work; provided, however,
that if landlord is delayed in substantially completing Landlord's Work as a
result of any one or more of the following ("Tenant Delay"):
(a) Tenant's failure to devote the time or furnish the information or
approvals required under Section 1 hereof in connection with the space plan
or the Architectural Plans for Landlord's Work; or
(b) Tenant's failure to furnish Architectural Plans for any Additional
Work, or revisions thereto, as required hereby, or Tenant's failure to
approve cost estimates for the Additional Work within the time period
specified in Section 2 hereof; or
(c) Tenant's request for materials, finishes or installations other
than Building standard items; or
(d) ▇▇▇▇▇▇'s changes in the Landlord's Work, in the Architectural or
Engineering Plans relating thereto, or in the Architectural or Engineering
Plans for the Additional Work (notwithstanding Landlord's approval of any
such changes); or
(e) Any other act or omission by Tenant or its employees, contractors,
or agents:
then and in any such event, Landlord shall cause the Architect to certify the
date on which ▇▇▇▇▇▇▇▇'s Work would have been completed but for any Tenant
Delay, and the Commencement Date and Tenant's obligation to pay rent under the
Lease shall occur and commence as of such date, and shall not otherwise be
affected or deferred on account of such delay.
4. Access By Tenant Prior To Commencement Of Term. Landlord, at ▇▇▇▇▇▇▇▇'s
discretion, may permit Tenant and ▇▇▇▇▇▇'s agents to enter the Premises prior to
the Commencement Date of the Lease upon reasonable notice during business hours
in order that Tenant may make the Premises ready for Tenant's use and occupancy.
Any such permission shall constitute a license only and not a lease and such
license shall be conditioned upon: (a) Tenant working in harmony and not
interfering with Landlord and Landlord's agents, contractors, workmen, mechanics
and suppliers in doing Landlord's Work or Additional Work, if any, or other work
in the Building or with other tenants and occupants of the Building; (b) Tenant
obtaining in advance Landlord's approval of the contractors proposed to be used
by Tenant and depositing with Landlord in advance of any work (i) security
reasonably satisfactory to Landlord for the completion thereof, and (ii) general
contractor's affidavit for the proposed work; and (c) Tenant furnishing Landlord
with such insurance and other security as Landlord may reasonably require
against liabilities which may arise out of such entry. Landlord shall have the
right to withdraw such license upon twenty-four (24) hours' written notice to
Tenant for reasonable cause. Tenant agrees that landlord shall not be liable in
any way for any injury, los or damage which may occur to any of Tenant's
property placed or installations made in the Premises prior to the commencement
of the Term of the Lease, the same being at Tenant's sole risk and Tenant agrees
to protect, defend, indemnify and save harmless Landlord from all liabilities,
costs, damages, fees and expenses arising out of or connected with the
activities of Tenant or its agents, contractors, suppliers or workmen in or
about the Premises or the Building. ▇▇▇▇▇▇ further agrees that any entry, work
and
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occupation permitted under this Section shall be governed by Section 5 of the
Lease and all other terms of the Lease.
5. Miscellaneous.
(a) This Exhibit C-1 shall be incorporated in and considered as a part
of Exhibit C to the Lease. Except to the extent otherwise indicated herein,
the initially capitalized terms used in this Exhibit shall have the
meanings assigned to them in the Lease.
(b) The terms and conditions of this Exhibit are intended to
supplement and are specifically subject to all the terms and provisions of
the Lease. This Exhibit may not be amended or modified except in a writing
signed by Landlord and Tenant.
(c) All sums due hereunder from Tenant shall be deemed Additional Rent
for purposes of the Lease. All designs for public areas must conform to
Building standard and be approved by the Landlord.
(d) Whenever the approval or consent of either Landlord or Tenant is
provided for in this Exhibit, the same shall not be unreasonably withheld
or delayed.
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EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, halls, passages, elevators and stairways shall not be
obstructed by Tenant or used for any purpose other than for ingress to and
egress from the Premises. The halls, passages, entrances, elevators, stairways,
balconies and roof are not for the use of the general public, and Landlord shall
in all cases retain the right to control and prevent access thereto of all
persons whose presence in the judgment of Landlord shall be prejudicial to the
safety, character, reputation and interest of the Building and its tenants,
provided, that nothing herein contained shall be construed to prevent such
access to persons with whom Tenant normally deals in the ordinary course of its
business unless such persons are engaged in illegal activities. Tenant and its
employees shall not go upon the roof of the Building without the written consent
of the Landlord.
2. The sashes, sash doors, windows, glass lights, and any lights or
skylights that reflect or admit light into the halls or other places of the
Buildings shall not be covered or obstructed. The toilet rooms, water and wash
closets and other water apparatus shall not be used for any purpose other than
that for which they were constructed, and no foreign substances of any kind
whatsoever shall be thrown therein, and the expense of any breakage, stoppage or
damage, resulting from the violation of this rule shall be borne by the tenant
who, or whose agents, employees, or visitors, shall have caused it.
3. If Landlord, by a notice in writing to Tenant, shall object to any
curtain, blind, shade or screen attached to, or hung in, or used in connection
with, any window or door of the Premises, such use of such curtain, blind, shade
or screen shall be discontinued forthwith by Tenant. No awnings shall be
permitted on any part of the Premises.
4. No safes or other objects heavier than the lift capacity of the freight
elevators of the Building shall be brought into or installed on the Premises.
Tenant shall not place a load upon any floor of the Premises which exceeds the
load per square foot which such floor was designed to carry and which is allowed
by law. The moving of safes shall occur only between such hours as may be
designated by, and only upon previous notice to, the manager of the Building,
and the persons employed to move safes in or out of the Building must be
acceptable to Landlord. No freight, furniture or bulky matter of any description
shall be received into the Building or carried into the elevators except during
hours and in a manner approved by Landlord.
5. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors, and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds (except Seeing Eye Dogs) be brought into or kept in
or about the Building. Tenant shall not place or install any antennae or aerials
or similar devices outside of the Premises.
6. Tenant shall not use or keep in the Building any inflammables, including
but not limited to kerosene, gasoline, naphths and benzine (except cleaning
fluids in small quantities and when in containers approved by the Board of
Underwriters), or explosives or any other articles of intrinsically dangerous
nature, or use any method of heating other than that supplied by Landlord.
7. If Tenant desires telephone or telegraph connections or alarm systems,
Landlord will direct electricians as to where and how the wires are to be
introduced. No boring or cutting for wires or otherwise shall be made without
specific directions from Landlord.
8. Tenant, upon the termination of the tenancy, shall deliver to the
Landlord all the keys of offices, rooms and toilet rooms which shall have been
furnished Tenant or which Tenant shall have had made, and in the event of loss
of any keys to furnished shall pay the Landlord therefor.
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9. Tenant shall not put down any floor covering in the Premises without the
Landlord's prior approval of the manner and method of applying such floor
covering.
10. On Sundays and legal holidays, and on other days between the hours of 6
p.m. and 8 a.m., access to the Building, or to the halls, corridors, elevators
or stairways in the Building, or to the Premises may be refused unless the
persons seeking access is known to the watchman of the Building in charge and
has a pass or is properly identified. Landlord shall in no case be liable for
damages for the admission to or exclusion from the Building of any person whom
the Landlord has the right to exclude under Rule 1 above. In case of invasion,
mob, riot, public excitement, or other commotion, Landlord reserves the right to
prevent access to the Building during the continuance of the same by closing the
doors or otherwise, for the safety of the tenants or Landlord and protection of
property in the Building.
11. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage which includes keeping doors locked and windows and other
means of entry to the Premises closed.
12. Tenant shall not alter any lock or install a new or additional lock or
any bolt on any door of the Premises without prior written consent of Landlord.
If Landlord shall give its consent, Tenant shall in each case furnish Landlord
with a key for any such lock.
13. In advertising or other publicity, without ▇▇▇▇▇▇▇▇'s prior written
consent, Tenant shall not use the name of the Building except as the address of
its business and shall not use pictures of the Building.
14. Tenant shall not make any room to room canvass to solicit business from
other tenants in the Building; and shall not exhibit, sell or offer to sell,
use, rent or exchange in or from the Premises unless ordinarily embraced within
the Tenant's use of the Premises specified herein.
15. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air conditioning, and shall not allow the
adjustment (except by ▇▇▇▇▇▇▇▇'s authorized building personnel) of any controls
other than room thermostats installed for Tenant's use. Tenant shall keep
corridor doors closed and shall not open any windows except that if the air
circulation shall not be in operation, windows which are openable may opened
with Landlord's consent.
16. Tenant shall not do any cooking in the Premises or engage any coffee
cart service.
17. Any wallpaper or vinyl fabric materials which Tenant may install on
painted walls shall be applied with a strippable adhesive. The use of
nonstrippable adhesives will cause damage to the walls when materials are
removed, and repairs made necessary thereby shall be made by Landlord at
Tenant's expense.
18. Tenant shall provide and maintain hard surface protective mats under
all desk chairs which are equipped with casters to avoid excessive wear and tear
to carpeting. If Tenant fails to provide such mats, the cost of carpet repair or
replacement made necessary by such excessive wear and tear shall be charged to
and paid for by Tenant.
19. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service to Tenant, to Landlord for
Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in the
Building including installations of telephones, telegraph equipment, electrical
devices and attachments and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings, equipment or any other physical portion of
the Building.
20. Movement in or out of the Building of furniture, office equipment, or
other bulky materials, or movement through the Building entrances or lobby shall
be restricted to hours designated by Landlord. All such movements shall be under
supervision of Landlord and in the manner agreed between ▇▇▇▇▇▇ and Landlord by
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prearrangement before performance. Such prearrangement initiated by ▇▇▇▇▇▇ will
include determination by Landlord and subject to its decision and control, of
the time, method, and routing of movement, limitations imposed by safety or
other concerns which may prohibit any article, equipment or any other item from
being brought into the Building. Tenant is to assume all risk as to damage to
articles moved and injury to persons or public engaged or not engaged in such
movement, including equipment, property, and personnel of Landlord if damaged or
injured as a result of acts in connection with such service performed for Tenant
and ▇▇▇▇▇▇ hereby agrees to indemnify and hold harmless Landlord from and
against any such damage, injury, or loss, including attorney's fees.
21. No portion of Tenant's area or any other part of the Building shall at
any time be used or occupied as sleeping or lodging quarters.
22. Landlord will not be responsible for lost or stolen personal property,
equipment, money, or jewelry from Tenant's area or any public rooms regardless
of whether such loss occurs when such area is locked against entry or not.
23. Employees of Landlord shall not receive or carry messages for or to any
tenant or other persons, nor contract with or render free or paid services to
any tenant or tenant's employees, or invitees; in the event any of Landlord's
employees perform any such services, such employees shall be deemed the agent of
Tenant regardless of whether or how payment is arranged for services and
Landlord is expressly relieved from any all liability in connection with any
such services and any associated injury or damage to person or property.
24. Tenant and its employees, agents, and invitees shall observe and comply
with the driving and parking signs and markers on the property surrounding the
Building.
25. Tenant shall not place, install, or operate on the Premises or in any
part of the Building, any coffee making device or equipment without the prior
written consent of Landlord.
26. Tenant shall give prompt notice to Landlord of any accidents to or
defects in plumbing, electrical fixtures, or heating apparatus so that such
accidents or defects may be attended to promptly.
27. the directories of the Building shall be used exclusively for the
display of the name and location of the tenants only and will be provided at the
expense of Landlord. Any additional names requested by ▇▇▇▇▇▇ to be displayed in
the directories must be approved by Landlord and, if approved, will be provided
at the sole expense of Tenant.
28. No vending machines of any description shall be installed, maintained
or operated in any part of the Building without the written consent of Landlord.
29. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for the safety,
care and cleanliness of the Building, and for the preservation of good order
therein.
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EXHIBIT E
ADDITIONAL PROVISIONS
This Addendum is made a part of the lease ("Lease") between MINNESOTA CC
PROPERTIES, INC. ("Landlord") and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
("Tenant") dated December 31, 1993, and the following additional terms shall
supersede any contrary terms in the Lease:
27. PREMISES.
A. The Premises shall initially consist of two parts as shown on the
attached Exhibit A: approximately 21,392 rentable square feet on the
fourteenth (14th) floor of the Building ("Fourteenth Floor Space"), and
approximately 8,511 rentable square feet on the twelfth (12th) floor of the
Building ("Twelfth Floor Space"). Effective as of the Commencement Date:
(1) The annual Base Rent for Months 1 through 36 of the Term
shall be $8.50 per rentable square foot, payable on 29,903 rentable
square feet in advance in monthly installments of $21,181.29.
(2) Tenant's Proportionate Share of Operating Costs and Operating
Cost Rent for Months 1 through 36 of the Term shall be determined on
the basis of 29,903 rentable square feet in the Premises. As soon as
reasonably possible in 1994, Landlord shall provide Tenant with a
written estimate of the Operating Costs for the Project for 1994 and
the amount of Tenant's monthly installment of estimated Operating Cost
Rent pursuant to Section 2 of the Lease. The first monthly installment
of Operating Cost Rent shall be payable on or before the date Tenant
takes occupancy of the Premises pursuant to Section 28.
B. Effective as of the first day of Month 37 of the Term, the Twelfth
Floor Space shall be deleted from the Premises, and this Lease shall
continue with respect to the Fourteenth Floor Space for the remaining Term
on all of the terms and conditions of this Lease, except that:
(1) The annual Base Rent for Months 37 through 72 of the Term
shall be $8.50 per rentable square foot, payable on 21,392 rentable
square feet in advance in monthly installments of $15,152.67.
(2) Tenant's Proportionate Share of Operating Costs and Operating
Cost Rent shall be adjusted appropriately based on 21,392 rentable
square feet, and Operating Cost Rent shall thereafter be payable on
the Fourteenth Floor Space as provided in this Lease.
(3) On or before the last day of Month 36 of the Term, Tenant
shall at its expense completely vacate the Twelfth Floor Space and
surrender possession thereof to Landlord in the condition as provided
in Sections 3D, E and F of this Lease.
(4) The term "Premises" shall thereafter be deemed to refer to
and include only the Fourteenth Floor Space, except as expressly
provided otherwise in this Lease.
28. PRE-TERM OCCUPANCY.
A. Landlord shall use reasonable efforts to substantially complete
Landlord's Work in the Premises at least sixty (60) days before the
Commencement Date stated in Section 3 of the Schedule to this Lease. Upon
such substantial completion, Landlord shall permit Tenant to take
possession and occupy the Premises. Any such pre-term occupancy by Tenant
shall be subject to all of the terms and conditions of
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this Lease, except that during the first thirty (30) days after substantial
completion there shall be no charge for Base Rent or Operating Cost Rent,
and during the succeeding thirty (30) days there shall be no charge for
Base Rent but Tenant shall pay Operating Cost Rent as provided in this
Lease.
B. The period of pre-term occupancy shall be reduced by any period of
delay in such substantial completion caused by ▇▇▇▇▇▇ ▇▇▇▇▇ as defined in
Exhibit C-1 or by any delay in the delivery to Landlord of four (4) copies
of this Lease executed by Tenant beyond __________________, 1993, and the
Commencement Date shall not be extended on account of such delay. The
period of pre-term occupancy shall not be reduced by any period of delay in
such substantial completion resulting from Force Majeure or from delays
caused by Landlord; and in such case the Commencement Date shall be delayed
until sixty (60) days after substantial completion of Landlord's Work, and
the Term shall be extended as provided in Section 3B. During such pre-term
occupancy, Tenant shall cooperate to minimize any interference with the
completion of Landlord's Work.
29. RETENTION OPTION. Notwithstanding anything to the contrary contained in
Section 27, Tenant shall have the option ("Retention Option") to retain the
Twelfth Floor Space as part of the Premises during Months 37 through 72 of the
Term, as follows:
A. To exercise the Retention Option, Tenant shall give Landlord
written notice of exercise on or before the last day of Month 24 of the
Term. Within fifteen (15) days thereafter, Landlord shall give written
notice to Tenant of Landlord's initial estimate of the Market Rate for the
Twelfth Floor Space. Tenant's notice of exercise and ▇▇▇▇▇▇▇▇'s initial
estimate of the Market Rate shall be binding and conclusive unless Tenant
gives Landlord written notice on or before the last day of Month 25 of the
Term either (1) withdrawing Tenant's notice of exercise, or (2) confirming
Tenant's notice of exercise but objecting to Landlord's initial estimate of
the Market Rate. Tenant may only exercise the Retention Option as to all of
the Twelfth Floor Space.
B. If Tenant exercises the Retention Option, the Twelfth Floor Space
shall be retained as part of the Premises for Months 37 through 72 of the
Term on all of the terms and conditions of this Lease, except that:
(1) In addition to Base Rent for the Fourteenth Floor Space,
Tenant shall pay Base Rent for the Twelfth Floor Space at a rate equal
to the greater of: (a) ninety percent (90%) of the Market Rate for
such space (as defined and determined under Section 31 if Tenant
timely objects to Landlord's initial estimate of the Market Rate), or
(b) an annual rate of $8.50 per rentable square foot.
(2) Tenant's Proportionate Share of Operating Costs and Operating
Cost Rent shall be adjusted appropriately based on 29,903 rentable
square feet, and Operating Cost Rent shall thereafter be payable on
the Fourteenth Floor Space and the Twelfth Floor Space as provided in
this Lease.
(3) The Twelfth Floor Space shall be provided in an "as is"
condition, with no obligation for Landlord to do or pay for any work
or plans.
(4) The term "Premises" shall thereafter be deemed to refer to
and include the Fourteenth Floor Space and the Twelfth Floor Space,
except as expressly provided otherwise in this Lease.
▇. ▇▇▇▇▇▇'s right to exercise the Retention Option is subject to the
condition that, at the time that ▇▇▇▇▇▇ delivers the Tenant's notice of
exercise, Tenant is not in default under any of the terms or conditions of
this Lease. Further, the Retention Option shall automatically terminate
upon the earliest to
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occur of (1) the expiration or termination of this Lease; (2) the
termination of Tenant's right to possession of the Premises; (3) the
assignment of this Lease by Tenant or the sublease by Tenant of all or any
part of the Premises; or (4) the failure of Tenant to timely or properly
exercise the Retention Option.
D. Within ten (10) days after written request by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
shall execute and deliver an instrument in form reasonably satisfactory to
Landlord confirming the exercise or termination of the Retention Option.
30. RIGHT OF FIRST OFFER. Tenant shall have a right of first offer ("ROFO
Right") on all remaining space on the twelfth (12th) floor of the Building
("ROFO Space"), as follows:
A. Upon written request by ▇▇▇▇▇▇ ("Tenant's ROFO Notice"), Landlord
shall within thirty (30) days thereafter give written notice to Tenant
("Landlord's ROFO Notice") stating: (1) any portion of the ROFO Space
("Subject ROFO Space") which is, or will during the first thirty-six (36)
months of the Term become, available for lease; (2) the estimated date of
availability ("Target Delivery Date"); (3) Landlord's initial estimate of
the Market Rate for the Subject ROFO Space; and (4) the Tenant Finish
Allowance, if any, Landlord will provide for the Subject ROFO Space (which
shall be based on prevailing market conditions as reasonably determined by
Landlord). Before ▇▇▇▇▇▇'s ROFO Notice, if Landlord desires to offer any
portion of the ROFO Space for lease, Landlord shall first deliver a
Landlord's ROFO Notice to Tenant relating to the Subject ROFO Space. Tenant
shall notify Landlord within ten (10) days after Landlord's ROFO Notice is
given whether it desires to exercise its right to lease the Subject ROFO
Space and whether Tenant objects to Landlord's initial estimate of the
Market Rate. Tenant may exercise the ROFO Right only as to all of the
Subject ROFO Space.
Notwithstanding anything to the contrary contained in this Section,
the ROFO Right shall be subject to and shall exclude: (i) all leases,
renewals, extensions, expansions or other rights relating to any part of
the ROFO Space that may previously have been granted by Landlord; and (ii)
any renewals or extensions of any existing leases for any part of the ROFO
Space, whether or not pursuant to an option or right in such lease.
B. If Tenant exercises the ROFO Right with respect to the Subject ROFO
Space, such space shall be added to and become part of the Premises for the
remaining Term of this Lease (including any renewals or extensions) on all
of the terms and conditions of this Lease, except that:
(1) The Subject ROFO Space shall be added to the Premises
effective on the earlier of (the "Delivery Date"): (a) the date Tenant
occupies the Subject ROFO space, or (b) the date on which Landlord
delivers the Subject ROFO Space to Tenant in the condition provided in
this Section (which, without Tenant's consent, shall not be before the
Target Delivery Date).
(2) Effective on the Delivery Date, (a) the Base Rent for the
Subject ROFO Space shall be payable at the greater of (i) Market Rate
for such space (as defined and determined under Section 31 if Tenant
objects in its notice of exercise, to Landlord's initial estimate of
the Market Rate), or (ii) an annual rate of $8.50 per rentable square
foot; and (b) Tenant's Proportionate Share of Operating Costs shall be
adjusted appropriately to take into account the net rentable area in
the Subject ROFO Space, and Operating Cost Rent shall thereafter be
payable at the same rate per rentable square foot as then payable for
the Premises and shall thereafter be subject to the same adjustments
as provided in this Lease.
(3) The Subject ROFO Space shall be delivered in an "as is"
condition and Exhibit C shall not apply; except that Landlord shall
construct leasehold improvements in an amount not to exceed the Tenant
Finish allowance specified in Landlord's ROFO Notice, which shall be
taken into account in determining the Market Rate for the Subject ROFO
Space. The Tenant Finish
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Allowance shall be applied to Tenant Finish Costs relating to the
Subject ROFO Space. No refund or credit shall be made for any unused
portion of the Tenant Finish Allowance. All leasehold improvements
shall be performed as provided in Exhibit C-1.
(4) As of the Delivery Date, the term "Premises" shall be deemed
to refer to and include the Subject ROFO Space, except as expressly
provided otherwise in this Lease.
If Tenant fails to timely exercise the ROFO Right, Tenant shall have no
further rights with respect to the Subject ROFO Space, and Landlord shall
be free to lease such space on any terms. The ROFO right shall only apply
during the first thirty-six (36) months of the Term and, unless previously
exercised or terminated, shall thereupon automatically terminate.
C. Tenant's right to exercise the ROFO Right with respect to any
portion of the ROFO Space is subject to the condition that, at the time
that Tenant delivers its written notice of exercise with respect to such
portion of the ROFO Space, (i) Tenant is not in default under any of the
terms or conditions of this Lease, and (ii) Tenant shall simultaneously
exercise (or shall have previously exercised) the Retention Option as
provided in Section 29. Further, the ROFO Right shall automatically
terminate upon the earliest to occur of (1) the expiration or termination
of this Lease; (2) the termination of Tenant's right to possession of the
Premises; (3) the assignment of this Lease by Tenant or the sublease by
Tenant of all or any part of the Premises; or (4) the expiration or
termination of the Retention Option as provided in Section 29.
D. Within ten (10) days after written request by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
shall execute and deliver an instrument in form reasonably satisfactory to
Landlord confirming any exercise or termination of the ROFO Right.
31. MARKET RATE. Whenever this Lease provides that the Market Rate for
space is to be determined pursuant to this Section, the following shall apply:
A. As used herein, "Market Rate" shall mean the net market rental rate
for the applicable space (determined by reference to the annual rental
rates for comparable space in the Project, primarily, and in comparable
suburban office buildings within a five-mile radius of the Project,
secondarily) that would be payable by a willing tenant to a willing
landlord in arms-length bona fide negotiations, neither being under any
compulsion to act, in equal monthly payments during a term equal to the
applicable term and commencing on the first day thereof (taking into
consideration all pertinent factors, including, without limitation, the
length of the term, use, quality of services provided, size of space,
location of the space within the building and/or floor level, definition of
net rentable area, existing leasehold improvements, leasehold improvements
provided (whether directly or by allowance), quality, age, and location of
the applicable building, tenant clientele of the building, financial
strength of the applicable tenant, any applicable reductions arising from
rental concessions and abatements, method for computing and the amount of
operating costs, taxes, and other expenses payable by tenants, parking and
other amenities provided (and any charge therefor), and the time the
particular rate under consideration becomes effective, all to the same
extent and in the same manner as the rental marketplace takes such factors
into account).
B. If Tenant does not timely object to Landlord's initial estimate of
the Market Rate, such estimate shall constitute the Market Rate. If Tenant
timely objects to such estimate, the Market Rate for the Premises shall be
determined as follows:
(1) Promptly after Tenant gives Landlord notice of its objection,
Landlord and Tenant shall commence negotiations to agree upon the
Market Rate for the applicable space. If Landlord and Tenant are
unable to reach agreement on the Market Rate within fifteen (15) days
after Tenant gives Landlord notice of its objection, then within seven
(7) days thereafter, Landlord and Tenant
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shall each simultaneously submit to the other in a sealed envelope its
good faith estimate of the Market Rate. If the higher of such
estimates is not more than one hundred five percent (105%) of the
lower of such estimates, then the Market Rate shall be the average of
the two (2) estimates. Otherwise, the Market Rate shall be determined
by arbitration as provided in the following Subsection (2).
(2) If the Market Rate is not determined as provided in the
preceding Subsection (1), then within seven (7) days after the
exchange of good faith estimates the parties shall select, as an
arbitrator, a mutually acceptable independent MAI appraiser with
experience in real estate activities, including at least five (5)
years experience in appraising office space in the Minneapolis-St.
▇▇▇▇ metropolitan area and no direct or indirect financial or other
business interest in or in common with Landlord or Tenant or any
affiliate of either (a "Qualified Appraiser"). If the parties cannot
agree on a Qualified Appraiser, then within seven (7) days thereafter,
each party shall select a Qualified Appraiser and within seven (7)
days thereafter the two appointed Qualified Appraisers shall select a
third Qualified Appraiser and the third Qualified Appraiser shall be
the arbitrator and shall determine the Market Rate. If one party shall
fail to make such appointment within said seven (7) day period, then
the Qualified Appraiser chosen by the other party shall be the sole
arbitrator. Once the arbitrator has been selected, then, as soon
thereafter as practicable but in any case within fifteen (15) days,
the arbitrator shall select one of the two estimates of Market Rate
submitted by Landlord and Tenant, which shall be the one that is
closer to the Market Rate independently determined by the arbitrator.
The value so selected shall be the Market Rate. The decision of the
arbitrator as to the Market shall be submitted in writing to, and be
final and binding on, Landlord and Tenant. If the arbitrator believes
that expert advice would be of material assistance, the arbitrator may
retain one or more qualified persons, including, without limitation,
legal counsel, brokers, architects, or engineers. The party whose
estimate is not chosen by the arbitrator shall pay the costs of the
arbitrator and of any experts retained by the arbitrator. Any fees of
any counsel or experts engaged directly by Landlord or Tenant,
however, shall be borne by the party obtaining such counsel or expert.
If the foregoing process is not completed by the date the Market Rate
is to become effective, Tenant shall pay rent for the applicable space
at the rental rate then or most recently in effect for the Premises,
which will be adjusted retroactively at the time the foregoing process
is completed to reflect any difference in the rent.
32. SECTION 2C(2). ADD THE FOLLOWING:
▇▇▇▇▇▇▇▇'s current fiscal year is a calendar year. If Landlord changes its
fiscal year at any time, appropriate adjustments shall be made so that no
Operating Costs are charged to tenants in excess of 100% of the actual amount.
33. SECTION 2D(2). ADD THE FOLLOWING:
Notwithstanding anything to the contrary contained in Section 2D(2), on the
first occasion during any calendar year of the Term that Tenant defaults in the
payment of any Rent, Landlord shall not charge any late fee or interest with
respect to such default unless such default is not remedied within ten (10) days
after written notice thereof by Landlord to Tenant.
34. SECTION 3C. ADD THE FOLLOWING:
At the end of the first sentence of Section 3C, add the words:
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". . . except (1) punchlist items relating to Landlord's Work as provided in
Exhibit C, and (2) latent defects relating to ▇▇▇▇▇▇▇▇'s work of which Tenant
notifies Landlord within one (1) year following the Commencement Date."
35. SECTION 4A(1). ADD THE FOLLOWING:
Landlord shall furnish heat and air conditioning in a manner consistent
with prevailing practices for similar first-class suburban office buildings in
the Minneapolis-St. ▇▇▇▇ metropolitan area. For purposes of this Lease, the
following dates (or the dates on which the holidays are designated for
observance) shall constitute "holidays": New Year's Day, Memorial Day, July
Fourth, Labor Day, Thanksgiving Day, and Christmas Day.
36. SECTION 4C. ADD THE FOLLOWING:
Notwithstanding anything to the contrary contained in Section 4C, if (1)
Landlord ceases to furnish any service in the Building, and Tenant notifies
Landlord of such cessation, (2) such cessation is within Landlord's reasonable
control (that is, is not caused by force Majeure as defined in Section 18), (3)
such cessation does not arise as a result of an act or omission of Tenant, and
(4) as a result of such cessation, the Premises or a material portion thereof
are rendered untenantable (meaning that Tenant is unable to use such space in
the normal course of its business), then Tenant's exclusive remedy for such
cessation shall be as follows: beginning on the third business day after the
affected space becomes untenantable and Tenant so notifies Landlord in writing
thereof, the Rent and other charges payable hereunder shall be equitably abated
based on the percentage of the space in the Premises so rendered untenantable,
and such abatement shall continue until the date the Premises become tenantable
again.
37. SECTION 10A. ADD THE FOLLOWING:
Provided, that Landlord shall pay Tenant's reasonable out-of-pocket
expenses for replacing or modifying reasonable quantities of stationery and
business materials if a change of street address is (1) made on less than
forty-five (45) days prior written notice, and (2) not required by governmental
authority or the United States Post Office.
38. SECTION 11A(3). ADD THE FOLLOWING:
(1) Notwithstanding anything contained in Section 11A(3) to the
contrary, the original Tenant named in this Lease or an Affiliate shall not
be in default under such Section so long as (a) the Premises are kept in a
clean and orderly condition; (b) Tenant pays its Base Rent and Operating
Cost Rent by the due date; and (c) Tenant gives Landlord ten (10) days
prior written notice of its intent to vacate the Premises.
(2) If Tenant vacates the Premises during the Term for a continuous
period of more than ninety (90) days, Landlord shall have the option
("Cancellation Option") to cancel this Lease at any time thereafter upon
thirty (30) days written notice to Tenant. If Landlord exercises the
Cancellation Option, this Lease shall be deemed to have lapsed on the
cancellation date specified in Landlord's notice, and neither Landlord nor
Tenant shall have any obligations thereunder accruing under this Lease,
except the following obligations of Tenant shall survive: (a) Tenant's
obligations for the payment to Landlord of all rent and the performance of
all other obligations under the Lease which accrue on or before the
Cancellation Date; (b) any rights and liabilities which by the terms of
this Lease expressly survive the termination of this Lease; and (c) if
Tenant fails to completely vacate the Premises and surrender possession
thereof on or before the cancellation date in compliance with the Lease,
such failure shall be treated as a holding over by Tenant and Landlord
shall be entitled to exercise all of its remedies against Tenant under this
Lease.
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39. SECTION 11A(1). ADD THE FOLLOWING:
Notwithstanding anything to the contrary contained in Section 11A(1), on
the first two (2) occasions during any calendar year of the Term that Tenant
defaults in payment of Base Rent or Operating Cost Rent, Landlord shall not be
entitled to exercise its remedies set forth in this Lease or at law or in equity
with respect to such default unless such default is not remedied within ten (10)
days after written notice thereof by Landlord to Tenant.
40. SECTION 8C. ADD THE FOLLOWING:
Notwithstanding anything to the contrary contained in this Lease, Tenant is
self-insured against the risks of general public liability and property damage,
and Landlord hereby waives Tenant's requirement to provide the insurance
coverages specified in Section 8C. Upon ten (10) days written request by
Landlord, Tenant shall provide reasonable financial information so that Landlord
can evaluate the continued self-insurance by Tenant; and Landlord may require
Tenant to provide the insurance specified in Section 8C upon thirty (30) days
written notice if Landlord reasonably determines that such insurance would be
required by a prudent landlord of a comparable building based on Tenant's
financial circumstances. Landlord may also require such insurance to be provided
if Tenant assigns this Lease or subleases all or any part of the Premises.
Without limiting any indemnity stated in Section 8, ▇▇▇▇▇▇ agrees that it will
indemnify and save harmless Landlord from any all liability for bodily injury,
death and property damage to the same extent that would be available if Tenant
were to provide insurance with the coverage and the amounts as specified in
Section 8C.
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