Exhibit 99.1
▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER
OFFICE LEASE
dated
MARCH 3, 1998,
between
▇▇▇▇ 800, LLC,
as Landlord,
and
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC.,
as Tenant
Portions of this document have been redacted pursuant to a Request for
Confidential Treatment filed with the Securities and Exchange Commission
pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
Redacted portions are indicated with the notation "[***]".
Certain signatures in this document are marked as illegible. This
information is not known or reasonably available to Registrant as it would
involve unreasonable expense or effort. In accordance with Rule 12b-21 under
the Securities Exchange Act of 1934, as amended, such information has not
been included.
OFFICE LEASE
between
▇▇▇▇ 800, LLC,
as Landlord,
and
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC.,
as Tenant
DATED: March 3, 1998
TABLE OF CONTENTS
1. Certain Definitions.........................................................................1
2. Premises...................................................................................11
2.1 Grant...............................................................................11
2.1.1 Initial Premises............................................................11
2.1.2 Additional Initial Premises.................................................11
2.1.3 Initial Retail Premises.....................................................12
2.1.4. Excess Space...............................................................12
2.1.5 Relationship Between Additional Premises and Excess Space...................13
2.1.6 Lease Amendment.............................................................13
2.2 Measurement Standards...............................................................13
2.2.1 Certain Defined Terms.......................................................13
2.2.2 Rentable Area; Usable Area..................................................14
2.2.3 Determination...............................................................14
2.2.4 Adjustment..................................................................15
2.3 Floor Plans.........................................................................15
2.4 Common Areas........................................................................15
2.4.1 Use by Tenant...............................................................15
2.4.2 Special Events..............................................................15
2.4.3 Landlord's Reserved Rights in Common Areas..................................16
2.4.4 Skyway and Other Appurtenant Agreements.....................................17
3. Use........................................................................................17
3.1 General.............................................................................17
3.2 Legal Use and Violations of Insurance Coverage......................................17
3.3 Laws and Regulations................................................................18
3.4 Rules of Building...................................................................18
3.5 Nuisance............................................................................18
3.6 Other Building Occupants............................................................18
4. Term; Extension Terms......................................................................19
4.1 Initial Term........................................................................19
4.2 Memorandum..........................................................................19
4.3 Extension Terms.....................................................................19
4.3.1. Grant of Options...........................................................19
4.3.2 Premises For Extension Terms................................................19
4.3.3 Exercise of Extension Options...............................................19
4.3.4 Terms and Conditions of Extension Terms.....................................20
5. Construction of the Building and Leasehold Improvements....................................21
5.1 Base Building Work..................................................................21
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5.1.1 Landlord's Obligations......................................................21
5.1.2 Tenant's Remedies...........................................................21
5.1.3 LaSalle Passageway..........................................................24
5.2 Construction of Leasehold Improvements..............................................25
5.2.1 Tenant Work.................................................................25
5.2.2 Occupancy Before Commencement Date..........................................26
6. Base Rental................................................................................26
6.1 Amounts.............................................................................26
6.1.1 Initial Term................................................................26
6.1.2 Extension Term..............................................................27
6.1.3 Retail Premises.............................................................27
6.1.4 Expansion Space.............................................................28
6.1.5 First Offer Space...........................................................28
6.2 Place and Manner of Payment.........................................................29
6.3 Allocation of Base Rental for Income Tax Purposes...................................29
7. Additional Rent............................................................................30
7.1 Tenant's Operating Expense Contribution.............................................30
7.2 Operating Expenses..................................................................30
7.2.1 Definition..................................................................30
7.2.2 Exclusions from Operating Expenses..........................................31
7.2.3 Further Reductions..........................................................35
7.2.4 Limited Gross-Up............................................................36
7.2.5 Disproportionate Services...................................................36
7.2.6 Obligation to Reduce Operating Expenses.....................................36
7.2.7 General.....................................................................36
7.3 Estimate and Adjustment of Operating Expenses; Payment of Tenant's Operating
Expense Contribution....................................................................36
7.3.1 Statement of Estimated Operating Expenses...................................36
7.3.2 Payment by Tenant; Revision of Estimate.....................................37
7.3.3 Adjustment Based on Actual Operating Expenses...............................38
7.3.4 Monthly Statements; Reports and Studies.....................................38
7.3.5 Forms of Statement..........................................................39
7.3.6 Disputes....................................................................39
7.4 Tenant's Tax Contribution...........................................................39
7.5 Real Property Taxes.................................................................40
7.6 Payment of Tenant's Tax Contribution................................................40
7.7 Contest of Real Property Taxes......................................................41
7.8 No Assessment Agreements............................................................41
7.9 Audit; Books and Records............................................................41
7.10 List of Landlord's Affiliates......................................................42
7.11 Cooperation and Budgeting..........................................................42
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8. Expansion Options..........................................................................42
8.1 Grant...............................................................................42
8.2 Exercise............................................................................43
8.3 Contiguous Space; Relationship to First Offer Right.................................43
8.4 Term; Rental........................................................................44
8.5 Condition of Expansion Space........................................................44
8.5.1 Unimproved Space............................................................44
8.5.2 Damaged Space...............................................................44
8.6 Failure to Deliver Possession.......................................................45
8.7 Lease Amendment.....................................................................45
8.8 Transfer............................................................................45
9. Right of First Offer.......................................................................45
9.1 Grant; Landlord's Notice............................................................45
9.2 Superior Rights.....................................................................46
9.3 Exercise............................................................................46
9.3.1 Tenant's Notice.............................................................46
9.3.2 Tenant's Failure to Elect...................................................47
9.3.3 Term; Rental................................................................47
9.4 Condition of First Offer Space......................................................47
9.4.1 Unimproved Space............................................................47
9.4.2 Damaged Space...............................................................48
9.5 Failure to Deliver Possession.......................................................48
9.6 Lease Amendment.....................................................................48
9.7 Transfer............................................................................49
10. Right to Reduce Space.....................................................................49
10.1 Reduction Options..................................................................49
10.1.1 First Reduction Option.....................................................49
10.1.2 Second Reduction Option....................................................49
10.1.3 Third Reduction Option.....................................................49
10.1.4 Fourth Reduction Option....................................................49
10.2 Reduction Space....................................................................49
10.3 Exercise...........................................................................50
10.4 Unamortized Costs of Tenant Work...................................................50
10.5 Surrender..........................................................................50
10.6 Relation to First Offer Rights.....................................................51
10.7 Lease Amendment....................................................................51
10.8 Transfer...........................................................................51
11. Parking Rights............................................................................51
11.1 Parking Rights.....................................................................51
11.2 Adjustment; Allocated Spaces.......................................................51
11.3 Surrender; Additional Spaces.......................................................52
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11.4 Reserved Spaces....................................................................52
11.5 Fees...............................................................................52
11.6 Operating Costs....................................................................53
11.7 After Hours Parking................................................................53
11.8 Secure Parking Area................................................................54
11.9 Permits Independent of Lease.......................................................54
11.10 Transfer..........................................................................54
11.11 Subleasing........................................................................54
12. Storage Space.............................................................................54
12.1 Storage Rights.....................................................................54
12.2 Adjustment; Allocated Storage Space................................................55
12.3 Surrender; Additional Storage Space................................................55
12.4 First Offer Right..................................................................55
12.5 Rent...............................................................................55
12.6 Size; Condition....................................................................56
12.7 Incorporation of Waiver............................................................56
12.8 Auxiliary Rooms....................................................................56
12.9 Transfer...........................................................................57
13. Services..................................................................................57
13.1 General Services...................................................................57
13.2 Services to the Building and the Office Space......................................57
13.2.1 Heating, Ventilating and Air Conditioning..................................58
13.2.2 Elevators..................................................................58
13.2.3 Light Bulbs................................................................58
13.2.4 Building Security..........................................................58
13.2.5 Cleaning Services; Tenant Right to Provide Own Cleaning Services;
Recycling.........................................................................59
13.2.6 General Maintenance........................................................60
13.2.7 Skyways....................................................................60
13.2.8 Electrical Facilities......................................................60
13.2.9 Directory..................................................................60
13.2.10 Shuttle Service...........................................................60
13.2.11 Exhaust Duct..............................................................60
13.2.12 Building Risers...........................................................60
13.2.13 Water.....................................................................60
13.2.14 Other Common Areas........................................................60
13.2.15 Other Services............................................................61
13.3 Interruption in Services...........................................................61
13.4 Access, Keys and Locks.............................................................62
13.5 Graphics...........................................................................62
14. Condition of Premises.....................................................................62
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15. Alterations; Removal of Trade Fixtures....................................................62
15.1 Alterations, Additions, Modifications..............................................62
15.1.1 Costs Over $50,000.........................................................62
15.1.2 Plans and Specifications...................................................63
15.1.3 Effect on Exterior Appearance of Building..................................63
15.1.4 Effect on Structure, Building Systems......................................63
15.2 General Provisions.................................................................63
15.2.1 Manner of Work.............................................................63
15.2.2 Indemnification............................................................64
15.2.3 Insurance..................................................................64
15.3 Title at End of Lease Term.........................................................64
15.4 Surrender of Premises..............................................................64
15.4.1 Condition..................................................................64
15.4.2 Condition of Premises Upon Expiration of Lease.............................65
15.4.3 Removal of Trade Fixtures, Equipment, etc. ................................65
16. Repairs...................................................................................65
16.1 Repairs by Landlord................................................................65
16.2 Repairs by Tenant..................................................................66
16.3 Failure by Landlord or Tenant to Repair............................................66
16.4 Standards/Code Compliance..........................................................66
16.5 Electro-Magnetic Fields............................................................66
17. Tenant's Personal Property Taxes and Rent Taxes...........................................67
17.1 Payment of Personal Property Taxes.................................................67
17.2 Rent Taxes.........................................................................67
17.3 Exclusion from Real Property Taxes.................................................67
18. Entry for Repairs and Inspection..........................................................67
19. Insurance; Indemnification; Release.......................................................68
19.1 Property Insurance.................................................................68
19.2 Liability Insurance................................................................68
19.3 Policy Requirements................................................................69
19.4 Waiver of Liability and Subrogation Rights.........................................69
19.5 Hold Harmless......................................................................70
20. Damage or Destruction.....................................................................70
20.1 Damage; Determination of Repair Time...............................................70
20.2 Obligation to Repair...............................................................71
20.3 Options to Terminate...............................................................71
20.3.1 Initial Termination Rights.................................................71
20.3.2 Additional Tenant Termination Rights.......................................72
20.3.3 Damage at End of Term......................................................72
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20.4 Business Unit Vacation.............................................................72
20.5 Abatement..........................................................................73
20.6 Lease Termination; Proration of Rent...............................................73
20.7 Limited Continuation of Lease......................................................73
20.8 Base Building Work.................................................................74
21. Eminent Domain............................................................................74
21.1 Termination........................................................................74
21.1.1 Appropriation of Entire Premises...........................................74
21.1.2 Partial Appropriation......................................................74
21.2 Termination as to Premises Appropriated............................................75
21.3 Restoration........................................................................75
21.4 Award..............................................................................75
21.5 Rent Abatement.....................................................................75
21.6 Temporary Appropriation............................................................75
22. Assignment and Subletting by Tenant.......................................................76
23. Transfer of Landlord's Interest; Management...............................................76
23.1 Transfer by Landlord...............................................................76
23.2 Management.........................................................................77
23.3 Limitation of Liability............................................................77
24. Default by Landlord or Tenant.............................................................77
24.1 Events of Default..................................................................77
24.1.1 Monetary Default...........................................................77
24.1.2 Nonmonetary Defaults.......................................................77
24.2 Landlord's Remedies................................................................77
24.2.1 Termination................................................................77
24.2.2 Repossession...............................................................78
24.2.3 Remedies at Law............................................................78
24.2.4 Mitigation.................................................................78
24.2.5 Tenant Dispute.............................................................79
24.2.6 Agreements Regarding Minn. Stat. Chapter 566 and Section 504.02............79
24.2.7 Non-Curable Defaults.......................................................79
24.3 Landlord's Right to Perform........................................................79
24.4 Exercise of Rights While in Default................................................80
24.5 Landlord's Default.................................................................80
24.6 Non Waiver.........................................................................80
24.7 Attorney's Fees....................................................................81
24.8 Interest on Late Payments..........................................................81
25. Subordination and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇..........................................................▇▇
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▇▇. Estoppel Certificate......................................................................82
27. Arbitration...............................................................................82
27.1 General............................................................................82
27.2 Arbitrators........................................................................82
27.3 Procedures.........................................................................83
28. No Merger.................................................................................83
29. Holding Over..............................................................................83
30. Quiet Enjoyment...........................................................................84
31. No Operating Covenant.....................................................................84
32. Broker....................................................................................84
33. Hazardous Materials.......................................................................84
33.1 Landlord...........................................................................84
33.2 Tenant.............................................................................85
34. Changes in Building.......................................................................85
34.1 Construction of Building...........................................................85
34.2 Changes in Building................................................................85
35. Name and Address of Building..............................................................86
35.1 Building Name......................................................................86
35.2 Building Address...................................................................86
36. Building Signage..........................................................................86
36.1 Tenant's Signage...................................................................86
36.2 Signage of Other Building Occupants................................................87
37. Building Directories......................................................................87
38. Building Occupants........................................................................88
38.1 Competitive Business...............................................................88
38.2 Retail Tenants.....................................................................88
38.3 Leases.............................................................................88
39. Microwave Dishes, Satellite Dishes and Antennas...........................................88
39.1 Grant..............................................................................88
39.2 Installation; Maintenance; Taxes...................................................89
39.3 Transfer...........................................................................89
39.4 Other Uses.........................................................................89
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40. Electronic Financial Services Equipment...................................................89
40.1 Grant..............................................................................89
40.2 Exercise...........................................................................89
41. General Provisions........................................................................90
41.1 No Waiver..........................................................................90
41.2 Terms; Headings....................................................................90
41.3 Amendment..........................................................................90
41.4 Successors and Assigns.............................................................90
41.5 Notices............................................................................91
41.6 Severability.......................................................................91
41.7 Time of Essence....................................................................92
41.8 Governing Law......................................................................92
41.9 Interpretation.....................................................................92
41.10 Force Majeure.....................................................................92
41.11 Memorandum of Lease...............................................................92
41.12 Recordable Termination............................................................92
41.13 Approvals and Consents............................................................92
EXHIBITS
EXHIBIT A - LEGAL DESCRIPTION OF LAND
EXHIBIT B - FLOOR PLANS
EXHIBIT C - MEMORANDUM OF COMMENCEMENT DATE
EXHIBIT D - LANDLORD'S WORK LETTER
EXHIBIT E - PERMITTED EXCEPTIONS
EXHIBIT F - RULES AND REGULATIONS OF THE BUILDING
EXHIBIT G - HVAC STANDARDS
EXHIBIT H - JANITORIAL SPECIFICATIONS
EXHIBIT I - LETTER OF CREDIT
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LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into as of March 3, 1998, by
and between ▇▇▇▇ 800, LLC, a
Minnesota limited liability company ("Landlord"),
and ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware corporation ("Tenant").
Landlord and Tenant agree as follows:
1. CERTAIN DEFINITIONS
1.1 "Additional Initial Premises" shall have the meaning set forth
in Section 2.1.2.
1.2 "Additional Rent" shall mean Tenant's Operating Expense
Contribution and Tenant's Tax Contribution.
1.3 "Additional Skyway Construction Costs" shall have the meaning
set forth in EXHIBIT D
1.4 "Affiliate(s)" shall mean any entity controlled by, controlling
or under common control with the named entity, with "control" meaning ownership
of stock or other beneficial interest controlling more than one-half (1/2) of
the aggregate voting rights of the owners of the entity in question.
1.5 "Agreed Interest Rate" shall mean the lesser of (a) two (2)
percentage points per annum over the Prime Rate of Interest, or (b) the maximum
rate permitted under Legal Requirements.
1.6 "Amortization Interest Rate" shall mean the sum of (a) two (2)
percentage points per annum, plus (b) the yield per annum of actively traded
U.S. Government Treasury Securities having a maturity date of the tenth (10th)
anniversary of the date Amortization Interest Rate is determined for a
particular purpose under this Lease published as "Treasury Constant Maturities"
in Federal Reserve Statistical Release Document H.15 (519) Selected Interest
Rates, Yields in Percentage Per Annum for the week preceding the date of
determination. If for any reason such index is no longer published, Amortization
Interest Rate shall be based on the yields reported in another publication of
comparable reliability and institutional acceptance which most closely
approximates yields in percent per annum of selected U.S. Treasury securities of
varying maturities. If no Treasury Constant Maturities are published for such
ten (10) year period, the index to be utilized shall be the weighted average of
the Treasury Constant Maturities published for the two (2) periods most nearly
corresponding to such ten (10) year period. In the event Landlord and Tenant do
not agree on the calculation of Amortization Interest Rate for a particular
purpose, the dispute shall be resolved by Arbitration.
1.7 "Approved Base Building Plans and Specifications" shall have the
meaning set forth in EXHIBIT D.
1.8 "Approved Tenant Work Plans and Specifications" shall have the
meaning set forth in EXHIBIT D.
1.9 "Arbitration" shall mean dispute resolution and arbitration
conducted in accordance with Article 27.
1.10 "Base Building Completion Date" shall have the meaning set forth
in EXHIBIT D.
1.11 "Base Building Construction Schedule" shall have the meaning set
forth in EXHIBIT D.
1.12 "Base Building Shell Condition Requirements" shall have the
meaning set forth in EXHIBIT D.
1.13 "Base Building Work" shall have the meaning set forth in
EXHIBIT D.
1.14 "Base Rental" shall mean the annual base rental specified in
Section 6.1, subject to adjustment under the terms of this Lease.
1.15 "Building" shall mean the thirty-one (31) Floor office building,
associated Parking Garage and all Skyways and other improvements of Landlord
hereafter constructed on the Land, except improvements which space tenants may
remove therefrom pursuant to the terms of their respective leases.
1.16 "Building Occupant" shall mean any tenant of the Building and
any affiliate of such tenant that occupies any portion of such tenant's premises
within the Building, and any subtenant of any such tenant or affiliate.
1.17 "Building Systems" shall mean the systems of the Building,
including the Building's electrical, mechanical, structural, plumbing, HVAC,
elevator, escalator, communication, security and life safety systems.
1.18 "Commencement Date" shall mean the first date when:
(a) the Base Building Completion Date has occurred; and
(b) each Floor of the Initial Premises (other than those
Floors containing only all or portions of the Second Additional Initial
Premises or the Initial Retail Premises) and the services described in
Section 3.4 of EXHIBIT D with respect thereto
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shall have been continuously available and operating in the condition
required pursuant to EXHIBIT D for a period of time not shorter than the
Tenant Finish Period with respect to such Floor.
1.19 "Common Areas" shall mean all common areas of the Building,
including to the extent that the following exist from time to time, the lobbies,
Skyways (subject to the terms of skyway agreements), elevators, escalators,
stairways and accessways, common restrooms, loading docks, ramps, drives,
walkways, plaza, the common pipes, conduits, wires and appurtenant equipment
necessary to service the Premises, and the corridors on any multi-tenant Floors.
1.20. "Constant Dollars" means the present value of the dollars to
which such term refers. An adjustment shall occur on January 1 of the calendar
year following the fifth (5th) anniversary of the Commencement Date, and
thereafter at five (5) year intervals. Constant Dollars shall be determined by
multiplying the dollar amount to be adjusted by a fraction, the numerator of
which is the Current Index Number and the denominator of which is the Base Index
Number. The "Base Index Number" shall be the level of the Index for the month as
of which this Lease is dated; the "Current Index Number" shall be the level of
the Index for the month of September of the year preceding the adjustment year;
the "Index" shall be the Consumer Price Index for All Urban Consumers, U.S. City
Average, All Items published by the United States Department of Labor, Bureau of
Labor Statistics (base year 1982-1984=100), or any successor index thereto as
hereinafter provided. If publication of the Index is discontinued, or if the
basis of calculating the Index is materially changed, Landlord, with the
reasonable approval of Tenant, shall substitute for the Index comparable
statistics as computed by an agency of the United States Government or, if none
is available, by a substantial and responsible periodical or publication of
recognized authority most closely approximating the result which would have been
achieved by the Index.
1.21 "Delivery Date" shall have the meaning set forth in EXHIBIT D.
1.22 "Event of Default" shall have the meaning set forth in
Section 24.1.
1.23 "Excess Space" shall have the meaning set forth in
Section 2.1.4.
1.24 "Existing Lease" shall mean Tenant's lease, as the same may be
amended from time to time, of space in the project located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ in Minneapolis,
Minnesota, commonly known as of the date of this Lease as
the "▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower".
1.25 "Existing Project Tax Liability Payment" shall mean any payment
owing by ▇▇▇▇ Companies US, Inc. to Tenant pursuant to that certain Tax
Reimbursement Agreement of even date herewith between ▇▇▇▇ Companies US, Inc.
and Tenant.
1.26 "Expansion Option(s)" shall have the meaning set forth in
Section 8.1.
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1.27 "Expansion Space(s)" shall have the meaning set forth in
Section 8.1.
1.28 "Extension Option(s)" shall have the meaning set forth in
Section 4.3.1.
1.29 "Extension Term(s)" shall have the meaning set forth in
Section 4.3.1.
1.30 "Financial Services Business" shall mean any business or other
operation engaged in banking, insurance or securities brokerage, trading or
marketing, financial or investment planning or counseling, venture capital or
other financial services, including any bank, savings and loan association,
credit union, insurance company, trust company, stock broker, financial planner
or investment advisor.
1.31 "First Additional Initial Premises" shall have the meaning set
forth in Section 2.1.2.
1.32 "First Offer Right" shall have the meaning set forth in
Section 9.1.
1.33 "First Offer Space" shall have the meaning set forth in Section
9.1.
1.34 "Floor(s)" shall mean floor(s) of the Building at ground level
or above, unless specifically provided to the contrary, with the ground level
Floor designated as Floor One (1).
1.35 "Full Floor Rate" shall have the meaning set forth in Section
6.1.2.
1.36 "Hazardous Material" means any hazardous or toxic substance,
material or waste which is or becomes regulated by any local governmental
authority, the State of
Minnesota or the United States Government. The term
"Hazardous Material" includes, without limitation, any material or substance
which is (a) listed or defined as a "hazardous waste," "extremely hazardous
waste," "restricted hazardous waste," "hazardous substance" or "toxic substance"
under any Legal Requirements, (b) petroleum, (c) asbestos, (d) polychlorinated
biphenyl, (e) designated as a "hazardous substance" pursuant to Section 311 of
the Federal Water Pollution Control Act (33 U.S.C. Section 1317), (f) defined as
a "hazardous waste" pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section
6903), (g) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq. (42 U.S.C. Section 9601), (h) defined as a toxic substance
in the Toxic Substances Control Act (15 U.S.C. 2601 et. seq.) or (i) any
substance which contaminates soil or ground water and causes degradation of the
soil and/or water to the extent that mitigation methods are needed to restore
the soil or water to its natural state.
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1.37 "Holidays" shall mean New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day, Christmas Day and such other holidays as are
from time to time recognized as holidays by the New York Stock Exchange.
1.38 "HVAC" shall mean heating, ventilation and air conditioning.
1.39 "Initial Premises" shall mean the initial space Tenant leases
under Section 2.1.1, together with any Additional Initial Premises and Initial
Retail Premises, if any, less any Excess Space.
1.40 "Initial Retail Premises" shall have the meaning set forth in
Section 2.1.3.
1.41 "Initial Term" shall mean the initial fourteen (14) year term of
this Lease specified in Section 4.1.
1.42 "Land" shall mean the land located in Minneapolis,
Minnesota,
legally described on EXHIBIT A attached hereto.
1.43 "Landlord" shall mean ▇▇▇▇ 800, LLC, and its successors and
assigns as landlord under this Lease.
1.44 "Landlord Delay" shall have the meaning set forth in EXHIBIT D.
1.45 "Landlord Delay Costs" shall mean any and all losses, damages,
liabilities, costs and expenses suffered, sustained, incurred or paid by Tenant
which result from or arise in connection with (a) any Landlord Delay, (b) any
failure by Landlord to satisfy the requirements of Section 5.1.2(a) within the
period required thereunder, (c) any other failure by Landlord to deliver the
Premises or any portion thereof as and when required by the terms of this Lease
(including Articles 8 and 9), or (d) any election by Tenant to terminate this
Lease based upon any of the foregoing with resulting loss of the benefit of this
Lease, whether such losses, damages, liabilities, costs and expenses are
suffered, sustained, incurred or paid by Tenant upon or following the occurrence
of any of the applicable events described in clause (a), (b), (c) or (d) above
or in anticipation that Landlord Delay may occur, including,(t) all cancellation
charges or penalties, or increased costs, imposed or incurred in connection with
the cancellation or postponement of contracts or agreements made by Tenant in
anticipation of the scheduled delivery date, (u) all moving, storage and
insurance costs incurred in connection with storing materials, goods, fixtures,
equipment or other items, (v) all rents or other costs associated with extending
the Existing Lease or leasing any space (including any doubled-up, overlapping
or expansion space) in another facility for any period determined necessary by
Tenant in its good faith business judgment and which period may exceed the
length of the period of such Landlord Delay or failure in performance of
Landlord's obligations, if applicable (provided, however, with respect to the
period occurring prior to the date Tenant's obligations to pay Rent commenced
with respect to the subject space not timely
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delivered, the amounts payable by Landlord shall be limited to the amount by
which such costs or rents exceed the Rent payable under this Lease with respect
to the subject space), (w) all costs of performing any leasehold improvements
associated with any alternative space described in clause (v) above, (x) all
relocation costs, including those associated with any "double-move", (y) all
brokers' commissions, professional fees (including attorneys' fees) and
consulting fees, and (z) all other costs and expenses incurred by Tenant by
reason of or in anticipation of any such Landlord Delay or failure.
1.46 "Landlord's Architect" shall have the meaning set forth in
EXHIBIT D.
1.47 "LaSalle Passageway" shall have the meaning set forth in Section
5.1.3.
1.48 "Lease" shall mean this Lease Agreement and the Exhibits which
are attached hereto and made a part hereof.
1.49 "Legal Requirements" shall mean all applicable federal, state,
county municipal, local or other laws, statutes, ordinances, codes, rules and
regulations, collectively.
1.50 "Marker Base Rental Rate" shall mean the net market rental rate
(i.e., comparable to Base Rental during the Initial Term) per rentable square
foot per year for the Premises or portion thereof as to which the Market Base
Rental Rate is being determined, and for the time period as to which such rate
is being determined, that a willing tenant would pay, and a willing landlord
would accept, in arm's length bona fide negotiations, if the same were leased to
a single tenant under a lease pursuant to which such tenant were not to receive
any rental concession (such as rental abatements or "free rent" periods or
rental assumption), tenant inducement (such as signing bonuses, equity
participation, tax benefits or other participation in ownership) or any
leasehold improvement allowance, and otherwise taking into account all pertinent
factors, including a lease containing all the terms and conditions of this
Lease, provided that (a) in any case the Market Base Rental Rate shall not be
increased to take into account (i) the value of those provisions of this Lease
which provide that the Base Rental shall be only ninety percent (90%) of the
Market Base Rental Rate, or the Full Floor Rate, or which otherwise provide for
a reduced or discounted Base Rental (including the provisions of clause (b)
below), or (ii) that the management fee payable by Tenant described in clause
(b) of Section 7.1 may be lower than management fees payable under a typical
lease, and (b) the Market Base Rental Rate for Expansion Space and any First
Offer Space (i) shall not be increased due to any term or condition of this
Lease which is more favorable to Tenant than a typical lease with typical
provisions for the space in question, and (ii) shall take into account the
potential period of non-accrual of Rent pursuant to Sections 8.4 and 9.3.3,
respectively. In the event the portion of the Premises as to which the Market
Base Rental Rate is being determined consists of both Retail Premises and
non-Retail Premises, Market Base Rental Rate shall be determined separately for
the Retail Premises and for all other portions of the Premises in question.
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1.51 "Mechanical Floor" shall mean a Floor which, by reason of the
size and/or number of vertical penetrations (other than elevator machine rooms
and elevator shafts) thereon, has a Rentable Area which is materially less than
a typical Floor.
1.52 "Minimum Building Standards" shall mean the standards of
operation, maintenance and repair consistent with the requirements of this
Lease, the Base Building Shell Condition Requirements and all Legal
Requirements, and commensurate with the highest operational and maintenance
standards from time to time observed by the highest class of high rise office
buildings in downtown Minneapolis,
Minnesota.
1.53 "Mortgage" shall have the meaning set forth in Article 25.
1.54 "Normal Business Hours" shall mean the periods from 6:00 a.m. to
6:00 p.m., Monday through Friday, and 6:00 a.m. to 1:00 p.m. Saturday, except
Holidays.
1.55 "Operating Expenses" shall have the meaning set forth in Section
7.2.
1.56 "Parking Garage" shall mean only the parking areas and drives
located in the parking garage included in the Building, together with all
elevators, escalators, stairways, and other access thereto from the Building and
public streets.
1.57 "Permitted Exceptions" shall mean the matters set forth on
EXHIBIT E.
1.58 "Permitted Physical Limitations" shall mean physical limitations
in the design and construction of the Building, other than such limitations
which (a) result from the Base Building not being designed and constructed in
accordance with the requirements of EXHIBIT D (including the Base Building Shell
Condition Requirements and the Approved Base Building Plans and Specifications),
(b) are not in compliance with Legal Requirements or the other requirements of
this Lease, or (c) are not of the type or character which have been or are from
time to time corrected or mitigated by the owners of first class high rise
office buildings of similar age and construction in downtown Minneapolis,
Minnesota.
1.59 "Premises" shall mean the Initial Premises, as adjusted pursuant
to Section 4.3, Articles 8, 9 and 10 and any other applicable provision of this
Lease, including all Retail Premises.
1.60 "Prime Rate of Interest" shall mean the published annual prime
rate or other equivalent annual reference rate of interest announced as such by
U.S. Bancorp's main office, or if U.S. Bancorp discontinues announcing such a
rate, the prime rate or other equivalent reference rate of interest of a major
commercial bank reasonably designated by Landlord and acceptable to Tenant.
1.61 "Punch List Items" shall have the meaning set forth in
EXHIBIT D.
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1.62 "Qualified Capital Improvement" shall mean any equipment, device
or other improvement acquired or made subsequent to the Base Building Completion
Date which (a) is capitalized on the books of Landlord in accordance with
generally accepted accounting practices consistently applied, irrespective of
the amount thereof, (b) is not the result of any inadequacy or defect in the
design, maintenance or operation of the Building, and (c) is either (i)
reasonably likely to achieve material annual savings in the operation,
maintenance or repair of the Building in an amount at least equal to the
Qualified Capital Improvement Amortization attributable thereto (exclusive of
any improvement which achieves its cost savings through the alteration, repairs,
or replacement of any item which has outlived its useful life (e.g., a roof or
item of equipment which would be replaced rather than repaired by a prudent
building owner)), or (ii) made to comply with any Legal Requirement with respect
to the Building or any other portion of the Building (including fire, health,
safety or construction requirements) first enacted after the Commencement Date.
1.63 "Qualified Capital Improvement Amortization" shall mean the
amount determined by multiplying (a) the actual, documented out-of-pocket cost
of making any Qualified Capital Improvement (net of any savings or net salvage
value), by (b) the constant annual percentage required to fully amortize on a
level payment basis such cost, together with interest at the Amortization
Interest Rate at such time over the reasonably estimated practical useful life
of the Qualified Capital Improvement. With respect to any Qualified Capital
Improvement described in clause (c)(i) of the definition thereof, the Qualified
Capital Improvement Amortization shall not exceed the actual annual cost savings
actually achieved by Landlord as a result of such Qualified Capital Improvement.
1.64 "Rent" shall mean Base Rental, Additional Rent and all other
payments by Tenant to Landlord under this Lease, including pursuant to Articles
11 and 12.
1.65 "Rent Commencement Date" shall mean the date when Tenant's
obligations to pay Base Rental and Additional Rent shall commence with respect
to the Initial Premises (other than the Second Additional Initial Premises and
the Initial Retail Premises) and which date shall be the later of (a) the
Commencement Date, or (b) the earlier of (i) June 1, 2000, or (ii) the date on
which Tenant's obligation under the Existing Lease for rent, operating and other
recurring charges terminates.
1.66 "Rent Determination Date" shall mean the date as of which a
Market Base Rental Rate is to be determined for purposes of establishing the
Market Base Rental Rate for each Extension Term and for Expansion Space and
First Offer Space, as applicable, and which date shall be:
(a) In the case of any Extension Term, the date two (2)
years prior to the commencement of such Extension Term;
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(b) In the case of any Expansion Space, the date one (1)
year prior to the scheduled delivery date for such Expansion Space as
provided in Section 8.1; and
(c) In the case of any First Offer Space, the date on which
such First Offer Space is anticipated to be delivered to Tenant as
specified in the notice given by Landlord pursuant to Section 9.1.
1.67 "Rentable Area" shall have the meaning set forth in Section
2.2.2.
1.68 "Retail Premises" shall mean the Initial Retail Premises, as
adjusted pursuant to Article 9 and 10 and any other applicable provisions of
this Lease where space on Floor One (1) or Floor Two (2) of the Building is
added to the Premises.
1.69 "Second Additional Initial Premises" shall have the meaning set
forth in Section 2.1.2.
1.70 "Services" shall mean the services described in Section 13.2.
1.71 "Skyways" shall mean (a) the skyway across Eighth Street
connecting the Building directly with the building known on the date of this
Lease as "▇▇▇▇▇▇ ▇▇▇▇▇▇ Department Store", (b) the Floor One (1) passageway
connecting the Building directly with the building known on the date of this
Lease as "LaSalle Court", and (c) all other skyways, skywalks, tunnels and
passageways from time to time connecting the Building to other buildings
(including the LaSalle Passageway, the Additional Skyway (as defined in EXHIBIT
D) and/or the Alternative Skyway (as defined in EXHIBIT D), subject to Section
5.1.3 or Section 2.10 of EXHIBIT D, as applicable.
1.72 "Subtenant" shall mean any party or entity occupying or
subletting the Premises, or any portion thereof, whether directly or indirectly,
voluntarily or by operation of law.
1.73 "Superior Rights" shall have the meaning set forth in Section
9.2.
1.74 "Tenant" shall mean ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc., and its
successors and assigns as tenant under this Lease.
1.75 "Tenant Delay" shall have the meaning set forth in EXHIBIT D.
1.76 "Tenant Finish Period" shall mean with respect to each Floor of
the Premises the period commencing on the Delivery Date with respect to such
Floor and continuing for a period equal to (a) one hundred ninety-six (196)
days, plus (b) the number of days Tenant is delayed in performing the Tenant
Work by any Unavoidable Delay, plus (c) the number of days Tenant is delayed in
performing the Tenant Work by any Landlord Delay, less (d) the
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number of days of Tenant Delay; provided, however, in no event shall the Tenant
Finish Period be extended solely under clause (b) for any days that Tenant
actually occupies the entire Premises for the operation of Tenant's business.
1.77 "Tenant Work" shall have the meaning set forth in EXHIBIT D.
1.78 "Tenant Work Plans and Specifications" shall have the meaning
set forth in EXHIBIT D.
1.79 "Tenant's Operating Expense Contribution" shall have meaning set
forth in Section 7.1.
1.80 "Tenant's Pro Rata Share" shall mean the percentage obtained by
dividing (a) the Rentable Area of the Premises, by (b) the Rentable Area of the
Building, as such Rentable Areas may be adjusted from time to time in accordance
with this Lease.
1.81 "Tenant's Tax Contribution" shall have the meaning set forth in
Section 7.4.
1.82 "Term" shall mean the Initial Term, together with all exercised
Extension Terms at the time in question.
1.83 "Trade Fixtures" shall mean those items of personal property,
equipment and fixtures in the Premises, and whether or however attached to the
Building, at any time which are necessary, incidental or convenient to the
business from time to time conducted at the Premises, including secretarial
stations, portable or movable partitions, receptionist desks, trading desks and
stations, millwork, credenzas, computer installations (including computers,
computer hardware, raised flooring, freestanding supplemental air conditioning
or cooling systems therefor), communications systems and equipment, financial
services equipment (such as ATM's), safes, safe doors, bulletin boards, book
shelves and file cabinets, but excluding walls (other than demountable walls or
partitions), doors, trim, floor and wall coverings, ceiling lights and tile,
window shades and the like.
1.84 "Unavoidable Delay" shall mean delay caused by fire, explosion
and other casualties; war, invasion, insurrection, riot, civil commotion;
sabotage, and malicious mischief; strikes, work stoppages or slowdowns and
lockouts; condemnation; future governmental restrictions and unforseeable
interpretation of existing governmental restrictions; unforseeable impossibility
of or delay in obtaining materials for which there is no reasonable substitute
for reasons other than unavailability of funds; contractor defaults (except in
the case of the Base Building Work); adverse weather conditions (except in the
case of the Base Building Work); or any other unforseeable cause, the occurrence
of which, or the extent and duration of the occurrence of which, is not within
the reasonable control of the party in question other than delay caused by lack
of funds.
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1.85 "Usable Area" shall have the meaning set forth in Section 2.2.2.
2. PREMISES
2.1 GRANT.
2.1.1 INITIAL PREMISES. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, subject to the provisions of this
Lease, those certain premises in the Building to be constructed on the
Land, said premises consisting of all of the Rentable Area on Floors
Four (4) through Thirteen (13), inclusive, of the Building, consisting
of approximately Three Hundred Ninety-Three Thousand Five Hundred
Fifty-Eight (393,558) square feet of Rentable Area.
2.1.2 ADDITIONAL INITIAL PREMISES. Tenant may elect to
increase the Rentable Area of the Initial Premises as determined under
this Section 2.1 as follows:
(a) By up to the entire Rentable Area of Floor Three
(3) by notice given to Landlord not later than July 1, 1998; and
(b) By up to the Rentable Area contained in three
(3) full Floors by notice given to Landlord not later than June
1, 1999.
Any such area added to the Initial Premises shall hereinafter sometimes
be referred to as the "Additional Initial Premises", while the initial
two (2) Floors so added (other than any area so added on Floor Three
(3)) shall hereinafter sometimes be referred to as the "First Additional
Initial Premises", and any additional area so added (including any area
so added on Floor Three (3)) shall hereinafter sometimes be referred to
as the "Second Additional Initial Premises". The size (except as
provided above), location and configuration of the Additional Initial
Premises shall be determined by Tenant in its sole discretion, except
that (x) the Additional Initial Premises described in clause (a) above
shall be located on Floor Three (3), (y) the other Additional Initial
Premises shall, if the uppermost or lowermost Floor of the Initial
Premises (other than Floors Two (2), Three (3) or any Mechanical Floor)
does not include all of the Rentable Area on such Floor, consist of the
remaining Rentable Area on such Floor, and then the remainder of the
Additional Initial Premises shall be located on the Floors contiguous to
the uppermost and/or lowermost Floor of the Initial Premises, and the
uppermost and lowermost Floor of the Initial Premises (other than Floors
Two (2), Three (3) or any Mechanical Floor), as so adjusted, shall
consist of either one-half (1/2) or the entire Rentable Area of such
Floors, and (z) the space not leased by Tenant of any partial Floor
shall be capable of being configured so as to make the same reasonably
leasable. Notwithstanding the foregoing requirements, no Additional
Initial Premises shall be located on any Mechanical Floor unless Tenant
shall otherwise elect in its sole discretion. All Additional Initial
Premises shall be deemed to be part of the Initial
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Premises for all purposes of this Lease (including Article 5 and EXHIBIT
D (including the Base Building Construction Schedule)), except that Rent
for the Second Additional Initial Premises shall commence to accrue on a
Floor by Floor basis from and after the later of (y) the Rent
Commencement Date, or (z) the earlier of (i) the first date when the
applicable Floor containing any portion of the Second Additional Initial
Premises and the services described in Section 3.4 of Exhibit D with
respect thereto shall have been continuously available and operating in
the condition required pursuant to EXHIBIT D for a period of time not
shorter than the Tenant Finish Period with respect to such Floor, or
(ii) the first date when Tenant shall have commenced its business
operations in the portion of the Second Additional Premises located on
such Floor..
2.1.3 INITIAL RETAIL PREMISES. Tenant also may elect to
increase the Rentable Area of the Initial Premises as determined under
this Section 2.1 by up to the entire Rentable Area of Floor Two (2) by
notice given to Landlord not later than September I, 1998. Any such area
added to the Initial Premises shall hereinafter sometimes be referred to
as the "Initial Retail Premises". The size (except as provided above),
location and configuration of the Initial Retail Premises shall be
determined by Tenant in its sole discretion, except that (a) the Initial
Retail Premises shall be located on Floor Two (2), and (b) the space not
leased by Tenant on Floor Two (2) shall be capable of being configured
so as to make the same reasonably leasable. All Initial Retail Premises
shall be deemed to be part of the Initial Premises for all purposes of
this Lease (including Article 5 and EXHIBIT D (including the Base
Building Construction Schedule)), except that Rent for the Initial
Retail Premises shall commence to accrue from and after the later of (y)
the Rent Commencement Date, or (z) the earlier of (i) the first date
when the Initial Retail Premises and the services described in Section
3.4 of EXHIBIT D with respect thereto shall have been continuously
available and operating in the condition required pursuant to EXHIBIT D
for a period of time not shorter than the Tenant Finish Period with
respect to such Floor, or (ii) the first date when Tenant shall have
commenced its business operations in the Initial Retail Premises.
2.1.4. EXCESS SPACE. Tenant shall have the following rights to
decrease the Rentable Area of the Initial Premises as determined under
this Section 2.1 as follows:
(a) By up to Rentable Area contained in three (3) full
Floors, by notice given to Landlord not later than July 1, 1998;
and
(b) By up to the Rentable Area contained in one (1)
full Floor, by notice given to Landlord not later than February
1, 1999;
provided that the aggregate Rentable Area deleted from the Initial
Premises pursuant to clauses (a) and (b) shall not exceed three (3)
full Floors. Any such area deleted from the Premises shall hereinafter
be referred to as "Excess Space". The size,
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location and configuration of the Excess Space shall otherwise be
determined by Tenant in its sole discretion, except that (x) the Excess
Space shall not consist of any portion of Floors Eleven (11) through
Thirteen (13), (y) the Excess Space located on Floors other than Floors
Two (2) or Three (3) or any Mechanical Floor, shall, if the uppermost or
lowermost Floor of the Initial Premises (other than Floors Two (2),
Three (3) or any Mechanical Floor) does not include all of the Rentable
Area in such Floor, consist of the remaining Rentable Area on such
Floor, and then the remainder of such Excess Space shall be located on
the uppermost and/or lowermost Floor of the Initial Premises, and the
uppermost and lowermost Floor of the Initial Premises (other than Floors
Two (2), Three (3) or any Mechanical Floor), as so adjusted, shall
consist of either one-half (1/2) or the entire Rentable Area on such
Floor, and (z) the space not leased by Tenant on any partial Floor shall
be capable of being configured so as to make the same reasonably
leasable. Notwithstanding the foregoing, Tenant in its sole discretion
may elect to have any or all of the Excess Space located on Floor Two
(2) or Three (3) or on any Mechanical Floor.
2.1.5 RELATIONSHIP BETWEEN ADDITIONAL PREMISES AND EXCESS
SPACE. Tenant's rights under Sections 2.1.2, 2.1.3 and 2.1.4 are
independent, and no exercise by Tenant of any of its rights under such
provisions shall limit or have any effect on Tenant's later exercise of
any of its rights under such provisions.
2.1.6 LEASE AMENDMENT. Upon any designation of Additional
Initial Premises, Initial Retail Premises or Excess Space, the parties
shall amend this Lease to incorporate such changes to the Initial
Premises, but failure to do so shall not affect the validity of any such
changes.
2.2 MEASUREMENT STANDARDS. The measurement of space in the Building
shall be governed by the following standards:
2.2.1 CERTAIN DEFINED TERMS. For purposes of this Section 2.2,
the following terms shall be defined as follows:
(a) "finished surface" shall mean a wall, ceiling or
floor surface, including glass, as prepared for tenant use,
excluding the thickness of any special surfacing materials such
as paneling, furring strips and carpeting.
(b) "dominant portion" shall mean the portion of
the inside finished surface of the permanent outer building wall
which is fifty (50%) or more of the vertical floor-to-ceiling
dimension measured at the dominant portion. If there is no
dominant portion, or if the dominant portion is not vertical,
the measurement for area shall be to the inside finished surface
of the permanent outer Building wall where it intersects the
finished floor.
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(c) "vertical penetrations" shall mean stairs,
elevator shafts, flues, pipe shafts, vertical ducts and the
like, and their enclosing walls, and electrical, mechanical,
water/fire pump and other utility or equipment rooms, which,
regardless of size, serve more than one (1) Floor, but shall not
include stairs, dumbwaiters, lifts, and the like, exclusively
serving a tenant occupying offices on more than one (1) Floor,
other than any shuttle or additional stairs or elevators serving
the Premises which are constructed as a part of the Base
Building Work and any enlarged or additional stairs serving the
Premises required pursuant to applicable codes and ordinances
based upon the population densities provided in Section 2.2.1 of
EXHIBIT D, which elevators and stairs shall be excluded from
Rentable Area and Usable Area in any event.
(d) "office" shall mean the premises leased to a
tenant for which a measurement is to be computed.
2.2.2 RENTABLE AREA; USABLE AREA. "Rentable Area", as used in
this Lease (a) in the case of a single tenancy Floor, shall be computed
by measuring to the inside finished surface of the dominant portion of
the permanent outer Building walls, excluding any vertical penetrations
of the Floor, and (b) in the case of a multi-tenancy Floor, shall be
computed by multiplying the Usable Area of an office by a fraction, the
numerator of which is the Rentable Area of the Floor and the denominator
of which is the Usable Area of the Floor. The "Usable Area" of an office
shall be computed by measuring to the finished surface of the office
side of corridor and other permanent walls, to the center of partitions
that separate the office from adjoining Usable Areas, and to the inside
finished surface of the dominant portion of the permanent outer Building
walls. The Usable Area of a Floor shall be equal to the sum of all
Usable Areas on that Floor. No deductions shall be made for columns and
projections necessary to the Building. The Rentable Area of the Building
shall be the sum of the Rentable Areas of all space in the Building
which is leased, held or designed for lease or occupancy, other than any
below-grade (i.e. basement) storage space areas. In determining the
Rentable Area of the Building, the Rentable Area of the space on Floors
One (1) and Two (2) which is leased, held or designed for lease or
occupancy for retail sales and services shall, in the aggregate, equal
the "Usable Area" of such space plus (y) the area of the public
corridors or walkways adjacent to the store fronts of such spaces (but
with the width of such corridors and walkways deemed to not exceed eight
(8) feet), plus (z) all corridors and walkways used for service,
delivery or exiting purposes for such retail space.
2.2.3 DETERMINATION. The Approved Base Building Plans and
Specifications shall include a calculation of the designed Rentable
Area of each Floor of the Building and the entire Building. In addition,
Landlord shall deliver to Tenant on or before the Base Building
Completion Date a calculation of the Rentable Area, as constructed, of
each Floor (or portion thereof) included in the Premises and the entire
Premises and
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the Building. Tenant shall have the right at its expense to have the
Landlord's Architect or an independent architect of Tenant's selection
recalculate the number of square feet of Rentable Area within the
Premises and the Building on the basis of the foregoing definition upon
the following terms and conditions: (a) Tenant shall cause such
recalculation to be made and deliver to Landlord a notice of the results
thereof no later than the Rent Commencement Date, failing which Tenant
shall be deemed to have approved Landlord's calculation; and (b) if
Landlord shall disagree with the results of said recalculation, it shall
so notify Tenant and the calculations shall be determined by
Arbitration. Upon final determination of the number of square feet of
Rentable Area within the Premises and the Building, Landlord and Tenant
shall execute an amendment to this Lease memorializing such final
determination and, if such determination differs from the determination
set forth in the supplement provided for in Section 2.3, substitute
floor plans to conform to such final determination, but the failure to
do so shall have not affect the validity of any provision of this Lease.
2.2.4 ADJUSTMENT. The Rentable Area and Usable Area, as
applicable, for any Premises added to or eliminated from this Lease
shall be determined and agreed upon in a like manner to that provided in
Section 2.2.3. In no event shall the Rentable Area of any portion of
the Premises be increased (unless the area is added to the Premises
pursuant to the other terms and conditions of this Lease (such as
Articles 8, 9 and 10)) or the Rentable Area or Usable Area of any
portion of the Building be materially decreased, without Tenant's prior
approval.
2.3 FLOOR PLANS. The parties shall execute a supplement to Lease to
include a copy of the floor plan for each Floor of the Premises setting forth
the Rentable Area of each Floor of the Premises (together therewith a summary
of the Rentable Area of the entire Premises and Building) as soon as
practicable after completion of the Approved Base Building Plans and
Specifications for the Building, which floor plans, including any substitute
floor plans as contemplated by Section 2.2.3, shall constitute EXHIBIT B to this
Lease.
2.4 COMMON AREAS.
2.4.1 USE BY TENANT. Tenant and its agents, employees,
customers and invitees shall have the non-exclusive right, in common
with Landlord and other Building Occupants, at no additional charge to
use all Common Areas.
2.4.2 SPECIAL EVENTS. Landlord may from time to time arrange
for civic or cultural events in the Floor One (1) and Floor Two (2)
lobbies of the Building and may grant similar rights to other Building
Occupants, subject to Tenant's prior written approval, which will not be
unreasonably withheld or delayed, except that Tenant may withhold its
approval in its sole discretion if such event (a) would conflict with an
event Tenant has scheduled or proposed to schedule, or (b) is sponsored
by, advertises in any manner or gives any attribution whatsoever to any
Financial Services Business.
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In the event Landlord or any other Building Occupant shall desire to
schedule any such use, Landlord shall give Tenant not less than thirty
(30) days' prior notice thereof, which notice shall include reasonable
detail as to the date, time, place and subject matter of such use and in
any event shall not schedule any such use more than nine (9) months in
advance or for a duration of greater than one (1) week. Subject to (y)
not less than thirty (30) days' prior notice to Landlord, and (z) usual
pedestrian use by other Building Occupants and the general public in
reasonable locations, Tenant shall have the use of lobbies and other
common areas on Floor One (1) and Floor Two (2) for the purposes of
staging or promoting events of a cultural or civic nature or occasional
business events or occasional entertainment events related to a business
function. If the notice in clause (y) is not given within fifteen (15)
days after Landlord's notice, then Tenant may not use such common areas
during the use so scheduled by Landlord in such notice (and which is
otherwise approved by Tenant as provided above) in a manner which would
conflict with such use. All such Tenant events will be conducted or
sponsored by Tenant at its sole expense, but without any charge by
Landlord for such use, except that Landlord may charge Tenant and any
other Building Occupants making such use for any extraordinary costs
reasonably incurred by Landlord as a result of such use, including
additional janitorial and security expenses. If there is a conflict
between Tenant and another Building Occupant or Landlord as to use of
the Floor One (1) and Floor Two (2) lobbies of the Building on a date
for an event hereunder, Tenant shall have first priority as to date,
time and place. Tenant and any other Building Occupants using the Floor
One (1) and Floor Two (2) lobbies of the Building in such manner shall
obtain all appropriate insurance with respect to such events and shall
provide Landlord with certificates evidencing all such insurance before
any such event.
2.4.3 LANDLORD'S RESERVED RIGHTS IN COMMON AREAS. Subject to
the limitations provided in Article 34, Landlord reserves the right from
time to time without unreasonable interruption or interference with
Building Systems or Services (including jeopardizing Building security)
or Tenant's business or use to: (a) install, use, maintain, repair and
replace pipes, ducts, conduits, wires and appurtenant meters and
equipment relating to Building Systems or Building structure above the
ceiling surfaces, below the floor surfaces, within the walls and in the
central core areas of the Common Areas; (b) close temporarily any of the
Common Areas for maintenance purposes; and (c) use the Common Areas
while engaged in making additional improvements, repairs or alterations
to the Building or any portion thereof. If such activities may interfere
with Tenant's use or enjoyment of the Premises or the Common Areas, then
to the extent possible, Landlord shall confine such activities to
periods other than Normal Business Hours. Without limitation to the
foregoing, Landlord shall confine any movement of freight, equipment or
other deliveries and materials through the Floor One (1) and Floor Two
(2) lobbies of the Building to other than Normal Business Hours.
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2.4.4 SKYWAY AND OTHER APPURTENANT AGREEMENTS. Landlord shall
not modify, amend or terminate, or consent (actively or passively) to
any such modification, amendment or termination of any of the agreements
described on EXHIBIT A (the "Appurtenant Agreements") without Tenant's
prior consent. In the event any Appurtenant Agreement is terminated,
Landlord shall use diligent efforts to cause (a) the terminated
agreement to be replaced with a comparable replacement agreement
similarly benefiting the Building, and (b) any skywalks or other
improvements associated therewith to be replaced or reconfigured as
necessary to provide reasonable comparable service and benefit to the
Building. In the event Landlord shall perform the Work described in
clause (b) above solely by reason of Tenant's written requirement to do
the same, such work shall constitute a Qualified Capital Improvement.
Landlord shall use reasonable efforts to enforce the Appurtenant
Agreements against all other parties from time to time bound thereby.
3. USE
3.1 GENERAL. Tenant shall have the right to use the Premises for (a)
general office, retail and/or Financial Services Business purposes, (b) any
business being conducted by ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc. or any corporate or
business successor thereof, or any Affiliate thereof at any time during the
Term, and/or (c) any use permitted under Legal Requirements which is not
incompatible with a first class office building in downtown Minneapolis,
Minnesota, together with any uses which are incidental or ancillary to any such
use or uses. Without limiting the generality of the foregoing, Tenant may
install kitchens, lunchrooms and other amenities, whether for employees or with
public or limited accessibility thereto. Notwithstanding the foregoing, in the
event Tenant shall have previously approved or been deemed to have approved
pursuant to Section 38.2 any specific exclusive retail use (other than any use
associated with any Financial Services Business) granted to a particular retail
tenant of Floor One (1) or Floor Two (2) pursuant to a notice given to Tenant
pursuant to Section 38.2, Tenant shall not thereafter use the Retail Premises or
any portion thereof for such specific exclusive retail use during such period of
the term of the lease held by such particular retail tenant as such tenant shall
be engaged in such exclusive retail use.
3.2 LEGAL USE AND VIOLATIONS OF INSURANCE COVERAGE. Tenant shall not
occupy or use, or permit any portion of the Premises to be occupied or used, for
any business or purpose which would subject Landlord to any civil or criminal
penalty or which is reasonably determined by Landlord's insurer to be
extra-hazardous on account of fire or other hazards. If Tenant uses or permits
any use (other than Tenant's use as permitted in Section 3.1(a)) which would in
any way increase the rate of fire or liability or any other insurance coverage
maintained by Landlord on the Building and/or its contents, Tenant shall pay to
Landlord, from time to time within thirty (30) days after demand, said increased
insurance costs to the extent Landlord can reasonably demonstrate the same, but
in no event for any longer period than Tenant continues such inconsistent use.
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3.3 LAWS AND REGULATIONS. Tenant shall not occupy or use the
Premises or any part thereof for any business or purpose which is unlawful, and
Tenant shall substantially comply at its expense with all applicable present and
future Legal Requirements which relate directly to the specific nature of
Tenant's use or occupancy of the Premises, provided that Landlord, not Tenant,
shall be required to make any alterations or improvements to the Premises and
the Building, including the Base Building Work, which are applicable to office
use (which, for such purpose, shall be deemed to be open as a public
accommodation) generally, save and except any such required alterations and
improvements to (a) the Tenant Work, (b) Tenant's Trade Fixtures, (c) any
alterations, additions or modifications to the Premises made by Tenant after the
Commencement Date except those made to the Base Building Work or any other
portion of the Premises or Building required to be repaired by Landlord pursuant
to Section 16.1, and (d) any element of the Base Building Work or any other
portion of the Premises or Building required to be repaired by Landlord pursuant
to Section 16.1 which, but for any alterations, additions and modifications
thereto made by Tenant after the Commencement Date, would not be required under
Legal Requirements. Landlord at its expense, shall comply with all present and
future Legal Requirements which relate to the use, condition or occupancy of
the Building and the Land, including those requiring physical changes to any
portion of the Premises for which Tenant is not responsible pursuant to the
preceding sentence, including those required by the Americans with Disabilities
Act.
3.4 RULES OF BUILDING. Tenant shall comply with rules of the
Building attached as EXHIBIT F. Except to the extent inconsistent with the terms
of this Lease, and subject to Tenant's consent, which consent shall not be
unreasonably withheld, Landlord may supplement or amend such rules from time to
time after thirty (30) days' written notice from Landlord to Tenant for the
safety, care and cleanliness of the Premises and Building and for preservation
of good order therein. Said rules or any amendments thereto shall not
discriminate against Tenant, either as written or applied. In case of any
conflict or inconsistency between said rules or amendments and any of the other
terms and conditions of this Lease, the other terms and conditions of this Lease
shall control.
3.5 NUISANCE. Tenant shall conduct its business and shall use
reasonable efforts to control its agents, contractors, employees, invitees, and
visitors in such manner as not to create any nuisance, or unreasonably interfere
with, annoy or disturb any other Building Occupant or Landlord in its operation
of the Building.
3.6 OTHER BUILDING OCCUPANTS. Landlord shall use reasonable efforts
to enforce against all other Building Occupants the terms, covenants, conditions
and restrictions provided in Sections 3.2, 3.3, 3.4 and 3.5 and will include
similar provisions in all leases and other occupancy agreements with any
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
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▇. ▇▇▇▇; EXTENSION TERMS
4.1 INITIAL TERM. The Term of this Lease shall commence on the
Commencement Date and shall end on the day prior to the fourteenth (14th)
anniversary of the Commencement Date.
4.2 MEMORANDUM. Promptly following the Commencement Date, Landlord
and Tenant shall execute and deliver a memorandum of commencement date in the
form attached hereto as EXHIBIT C which sets forth the Commencement Date and the
expiration date of the Initial Term of this Lease. The memorandum of
commencement date may be recorded at the request of either party and at the
expense of the party making such request, but the failure to execute such
memorandum shall not affect the validity of any provision of this Lease.
4.3 EXTENSION TERMS.
4.3.1 GRANT OF OPTIONS. Tenant is hereby granted the options
(each, an "Extension Option") to extend the Term of this Lease for three
(3) successive periods (each, an "Extension Term"), the first Extension
Term being for a period of six (6) years and the second and third
Extension Terms being for periods of five (5) years each, each such
period to commence at the expiration of the Initial Term or immediately
preceding Extension Term, as the case may be.
4.3.2 PREMISES FOR EXTENSION TERMS. The size, configuration
and location of the portions of the Premises leased by Tenant for an
Extension Term shall be determined by Tenant in its sole discretion at
the time of exercise of the subject Extension Option, provided that the
Premises leased by Tenant for any Extension Term may include any space
on any number of Floors of the Premises, whether or not contiguous,
provided that (a) to the extent Tenant leases the entire Rentable Area
on a particular Floor (other than Floor Two (2)), and Tenant elects to
continue to lease any space on such Floor, then Tenant shall lease the
entire Rentable Area on such Floor, (b) Tenant may exercise the subject
Extension Option, if at all, as to all or any portion of the Retail
Premises then-leased, provided the part of the Retail Premises not
leased for the subject Extension Term shall be capable of being
configured so as to make the same reasonably leasable, and (c) to the
extent Tenant leases less than the entire Rentable Area on a particular
Floor, Tenant may exercise the subject Extension Option, if at all, as
to all or any portion of the Premises then-located on such Floor,
provided the part of such portion of the Premises not leased for the
subject Extension Term shall be capable of being configured so as to
make the same reasonably usable.
4.3.3 EXERCISE OF EXTENSION OPTIONS. Tenant shall exercise an
Extension Option, if at all, as follows: At least thirty (30), but not
more than thirty-two (32), months prior to the expiration of the Initial
Term or previous Extension Term, as the case may be, Landlord shall
deliver to Tenant notice of (a) the date upon which
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Tenant's right to exercise the subject Extension Option shall expire,
(b) Landlord's best estimate of what the Full Floor Rate and the Market
Base Rental Rate with respect to both the Retail Premises and all other
portions of the Premises will be at the Rent Determination Date, and (c)
Landlord's best estimate of the market rate management fee as described
in Section 7.1(b). On or before the later of (y) sixty (60) days after
Landlord gives the notice in accordance with the preceding sentence, and
(z) twenty-four (24) months prior to the expiration of the Initial Term
or the then-current Extension Term, as the case may be, Tenant may give
Landlord notice (x) that Tenant elects to exercise the subject Extension
Option, (y) subject to the limitations in Section 4.3.2, specifying the
portion or portions of the Premises which Tenant will lease for the
subject Extension Term, and (z) whether Tenant agrees with Landlord's
estimates of the Market Base Rental Rates, the Full Floor Rate or such
market rate management fee. Failure to give such notice shall constitute
a waiver of the subject Extension Option and failure to agree as
provided above shall constitute rejection of Landlord's estimates with
which Tenant did not expressly agree. If Tenant's notice includes
disagreement with any of Landlord's estimate of the Market Base Rental
Rate, the Full Floor Rate or such market rate management fee in its
extension notice or shall be deemed to have rejected the same, as above
provided, such rates with which Tenant disagrees or is deemed to have
rejected shall be determined by Arbitration. Tenant shall have the right
to terminate this Lease by giving notice thereof to Landlord within
forty-five (45) days after the determination of the Market Base Rental
Rate and the Full Floor Rate, which termination shall be effective as of
the later of (a) the date elected by Tenant which is at least
twenty-four (24) months after such termination notice is given by
Tenant, or (b) the scheduled expiration of the Term without giving
effect to the Extension Term in question. If Tenant so terminates this
Lease pursuant to the preceding sentence, the Base Rental applicable to
that portion, if any, of the Extension Term in question which precedes
the effective date of such termination shall be the Base Rental
determined in accordance with Section 6.1.2.
4.3.4 TERMS AND CONDITIONS OF EXTENSION TERMS. Any renewal for
an Extension Term shall operate as an extension of the Term hereof, so
that this Lease and each and every covenant, agreement and provision
thereof shall be and remain in full force and effect during the Term
hereof as extended and with the same force and effect as if the Term of
this Lease were originally for such Extension Term, except (a) the
Premises shall be as determined by Tenant pursuant to Section 4.3.2, (b)
the Base Rental during each Extension Term shall be as set forth in
Section 6.1.2, (c) Tenant shall have no option to extend the Term of
this Lease beyond the expiration of the Extension Terms herein expressly
provided for, and (d) Landlord shall not be obligated to provide any new
or additional leasehold improvements to Tenant in connection with any
such extension.
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5. CONSTRUCTION OF THE BUILDING AND LEASEHOLD IMPROVEMENTS
5.1 BASE BUILDING WORK.
5.1.1 LANDLORD'S OBLIGATIONS. The work letter attached hereto
as EXHIBIT D shall govern the design, planning and construction of the
Building. Without limitation to the foregoing, Landlord at its sole cost
and expense shall perform and provide all of the Base Building Work in
accordance with EXHIBIT D. Landlord represents and warrants to Tenant
that Landlord has obtained all governmental, quasi-governmental and
third party agreements, approvals, licenses, permits, variances,
determinations and other authorizations to demolish the existing
improvements on the Land and to construct (in accordance with EXHIBIT
D), occupy and operate the Building (exclusive of Skyways other than
those described in clauses (a) and (b) of the definition thereof),
provided that such authorizations do not include a building permit (but
do include all required demolition permits) or certificate of occupancy.
5.1.2 TENANT'S REMEDIES. Tenant shall have the following
rights and remedies with respect to the acquisition of the Land and the
performance of the Base Building Work by Landlord:
(a) In the event Landlord does not deliver to Tenant
on or before May 4, 1998 a binding and enforceable commitment to
provide construction financing sufficient to complete the Base
Building Work and fund the costs to be paid by Landlord pursuant
to Section 3.6 of Exhibit D in form, substance and amounts
reasonably acceptable to Tenant (including without further
leasing requirements, commitment for permanent financing, or any
other conditions other than routine disbursement conditions)
then, whether or not this Lease may be terminated pursuant to
clause (b) below, Landlord shall reimburse Tenant for any and
all Landlord Delay Costs incurred by Tenant from time to time in
connection with or resulting from such failure, or from any
election by Tenant to terminate this Lease as a result of such
failure, within twenty (20) days after demand made by Tenant
from time to time, which demand shall describe in reasonable
detail the Landlord Delay Costs for which reimbursement is being
sought. In the event Landlord shall fail to so reimburse Tenant
within such twenty (20) day period, Tenant thereafter from time
to time may draw upon the Five Million Dollar ($5,000,000)
letter of credit issued by U.S. Bank National Association in
favor of Tenant (a copy of which is attached hereto as EXHIBIT
I) to obtain reimbursement of the Landlord Delay Costs so
demanded which remain unpaid, regardless of any dispute with
respect thereto. Tenant also may draw the entire amount of such
letter of credit if at least thirty (30) days prior to the
expiration date thereof, Lender has not either (i) extended such
letter of credit for a period of at least one (1) year from the
then-current expiration date, or (ii) Lender or another issuer
acceptable to Tenant in its sole discretion has
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not issued to Tenant a replacement letter of credit with an
expiration date of at least one (1) year from the expiration
date of the then-current letter of credit and otherwise
acceptable to Tenant. Upon delivery to Tenant, on or before June
15, 1998, of the commitment described above, Tenant shall
thereafter take no action which would result in additional
Landlord Delay Costs solely relating to the failure to deliver
such commitment by May 4, 1998; and upon reimbursement by
Landlord of (or by drawing upon such letter of credit for) any
Landlord Delay Costs for which Landlord is responsible pursuant
to this clause (a), Tenant shall deliver such letter of credit
to Landlord, together with such acknowledgment of its
cancellation as Landlord shall reasonably request.
(b) Without limitation to clause (a) above, in the
event that Landlord does not deliver to Tenant on or before June
15, 1998 the commitment described in clause (a) above, then
Tenant may terminate this Lease by giving notice to Landlord at
any time on or before July 15, 1998.
(c) In the event that Landlord fails for any reason
(including Unavoidable Delay) to complete demolition of all
existing improvements on the Land on or before September 1,
1998, then Tenant may terminate this Lease by giving written
notice to Landlord at any time on or after such date and before
such demolition is completed.
(d) In the event that Landlord fails for any reason
(including Unavoidable Delay) to commence construction of the
Base Building Work as required by Section 2.4.1 of EXHIBIT D on
or before October 1, 1998, then Tenant may terminate this Lease
by giving written notice to Landlord at any time on or after
such date and before such construction commences. For purposes
hereof, construction shall be deemed to have commenced only when
demolition of all existing improvements on the Land has been
completed, and the Building footing and foundation work has
begun.
(e) In the event that any item of Landlord Delay
equals or exceeds one (1) year in length, then Tenant may
terminate this Lease by giving notice to Landlord at any time
after such date and before the applicable items of the Base
Building Construction Schedule are completed.
(f) Without limitation to clause (e) above, in the
event that the Base Building Completion Date does not occur on
or before the date which is the first (1st) anniversary of the
date specified therefor in the Base Building Construction
Schedule for any reason (including Unavoidable Delays), plus the
number of days in which such Base Building Completion Date is
not achieved solely as a result of Tenant Delay, then Tenant may
terminate this Lease by
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giving notice to Landlord at any time after such date and before
the Base Building Completion Date.
(g) Landlord shall indemnify Tenant against, and
shall pay to Tenant, in cash, within twenty (20) days after
demand made by Tenant from time to time, all Landlord Delay
Costs incurred by Tenant from time to time as a result of or in
connection with any Landlord Delay, which demand shall describe
in reasonable detail the Landlord Delay Costs for which
reimbursement is being sought; provided, however, Tenant must
make any such demand on or before the third anniversary of the
Rent Commencement Date, or, in the event Tenant terminates this
Lease pursuant to this Section 5.1.2, the third anniversary of
such termination. No termination of, or election not to
terminate, this Lease pursuant to any of the provisions of this
Section 5.1.2 shall release Landlord from its obligations to pay
to Tenant pursuant to this clause (g) all Landlord Delay Costs
suffered, sustained, incurred or paid by Tenant as a result of
or in connection with the Landlord Delay associated with the
event giving rise to such termination. Although Tenant in its
discretion may incur Landlord Delay Costs in anticipation that a
Landlord Delay may occur (in addition to upon or following the
occurrence thereof), Landlord shall not be obligated to
reimburse Tenant pursuant to this clause (g) for such Landlord
Delay Costs unless such Landlord Delay shall actually occur.
(h) Landlord acknowledges that in the event Landlord
shall fail to achieve any Delivery Date provided in the Base
Building Construction Schedule, Tenant would suffer considerable
business interruptions, losses and damages, in addition to
Landlord Delay Costs, which would be extremely difficult, if not
impossible to measure. Accordingly, in addition to the Landlord
Delay Costs which are reimbursable under clause (g) above,
Landlord shall pay to Tenant in cash, and without notice or
demand by Tenant, for each day of Landlord Delay in meeting any
Delivery Date on the Base Building Construction Schedule, as
liquidated damages for damages other than those included in
Landlord Delay Costs (and not as a penalty) for such delay, the
sum of Ten Thousand Dollars ($10,000) per day for each missed
Delivery Date on a cumulative basis (i.e., each Delivery Date
shall continue to accrue the per diem amount until the
occurrence of such Delivery Date, notwithstanding that the per
diem amount continues or ceases to accrue for any other prior or
subsequent Delivery Date).
(i) Without limitation to the foregoing or any other
guaranty or agreement in favor of or benefiting Tenant,
Landlord's construction obligations under this Lease and payment
of all Landlord Delay Costs and liquidated damages described in
clauses (g) and (h) above, respectively, have been jointly and
severally guaranteed by ▇▇▇▇ Properties, Inc. and ▇▇▇▇ Companies
U.S.,
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Inc. pursuant to a Completion Guaranty of even date herewith by
such parties to and for the benefit of Tenant.
(j) Each right or remedy conferred upon the Tenant
under this Section 5.1.2 and under such letter of credit,
Completion Guaranty and any other guaranty, security or other
financial or performance assurances, shall be cumulative and
shall be in addition to every other right or remedy, express or
implied, now or hereafter arising, available to Tenant, at law,
in equity, or under any other contract or agreement, and each
and every right and remedy herein set forth or otherwise so
existing may be exercised from time to time as often and in such
order as may be deemed expedient by the Tenant and shall not be
a waiver of the right to exercise at any time thereafter any
other right or remedy. No delay or omission by the Tenant in the
exercise of any right or remedy arising under this Section 5.1.2
(subject to the time limitations in clause (g) above) or under
such letter of credit, Completion Guaranty or other guaranty,
security or other financial or performance assurances, or
arising otherwise, shall impair any such right or remedy or the
right of Tenant to resort thereto at a later date or be
construed to be a waiver of any such right, power or remedy or
as an election of remedies. In the event Tenant shall have
proceeded to invoke any right or remedy permitted under this
Section 5.1.2 or under such letter of credit, Completion
Guaranty or other guaranty, security or other financial or
performance assurances, and shall thereafter elect to
discontinue or abandon the same for any reason and to resort to
any other right or remedy, Tenant shall have the unqualified
right to do so. No termination of this Lease by Tenant pursuant
to this Section 5.1.2 shall be deemed to be an election of
remedies by Tenant, shall limit any other right, power or
remedy, express or implied, now or hereafter arising, available
to Tenant, at law, in equity, or under any other contract or
agreement, or shall operate to release Landlord from its
obligation to pay all Landlord Delay Costs suffered, sustained,
incurred or paid by Tenant as a result of or in connection with
the Landlord Delay giving rise to any such termination or the
election by Tenant to terminate this Lease, or from any other
damages which may be available to Tenant at law, in equity or
under any other contract or agreement, whether the Landlord
Delay Costs or other damages suffered, sustained, incurred or
paid by Tenant before, on or after such termination, all of
which obligations of Landlord shall survive any such
termination.
5.1.3 LASALLE PASSAGEWAY. Landlord and Tenant acknowledge and
agree that (a) in the event a reasonably direct Skyway level connection
between Floor Two (2) of the Building and the second level passageways
(and therefore to the broader downtown Minneapolis skyway system
connecting thereto) of the building known on the date of this Lease as
"LaSalle Court" is not completed as a part of the Base Building Work,
the value of Tenant's leasehold estate created by this Lease will be
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materially and substantially diminished, and (b) as of the date of this
Lease, Landlord has been unable to obtain the rights to such a
connection on terms satisfactory to Landlord. Accordingly, Landlord
shall do one (1) of the following: (x) pay to Tenant on or before the
Rent Commencement Date in cash or certified funds the sum of One Million
and No/100 Dollars ($1,000,000.00); (y) provide as a part of the Base
Building Work a passageway connecting Floor Two (2) of the Building to
the second level passageways of the LaSalle Court building through the
building known on the date of this Agreement as the "Lakewood Building";
or (z) provide as a part of the Base Building Work a passageway
connecting Floor Two (2) of the Building directly to the second level
passageways of the LaSalle Court building. In the event Landlord elects
either option (y) or (z) above, then (a) the passageway Landlord so
elects to construct shall hereinafter sometimes be referred to as the
"LaSalle Passageway", and (b) Landlord at its sole cost and expense
shall (i) deliver to Tenant along with its notice of election binding
and enforceable agreements benefiting the Building and all Building
Occupants acquiring and providing for appropriate easements and for the
design, construction, operation and maintenance of the LaSalle
Passageway and for the use by all Building Occupants of the first and
second level passageways and associated elevators, escalators and
stairways of such LaSalle Court building and, in the case of option (y)
above, the Lakewood Building, which agreements shall provide, without
limitation, minimum hours of operation for the LaSalle Passageway and
such passageways, elevators, escalators and stairways consistent with
the minimum hours specified in Section 13.2.7, (ii) cause such
agreements to be recorded in the appropriate Hennepin County,
Minnesota
real estate records, (iii) cause Old Republic National Title Insurance
Company to issue an endorsement to Tenant's title insurance policy with
respect to this Lease insuring such agreements as an appurtenance to the
Land in a form and manner reasonably satisfactory to Tenant, and (iv)
construct the LaSalle Passageway as a part of the Base Building Work in
accordance with the terms and conditions of EXHIBIT D, including the
Minimum Building Standards (except that passageway described in option
(z) above may have a clear ceiling height of not less than seven feet
(7')), the Base Building Construction Schedule and the design and
approval procedure contained in EXHIBIT D. In the event Landlord elects
option (x) above but fails to make the One Million and No/100 Dollar
payment required thereunder on or before the Rent Commencement Date,
then Tenant may deduct such amount, together with interest thereon at
the Agreed Interest Rate, from the Rent and any other sums payable by
Tenant to Landlord under this Lease.
5.2 CONSTRUCTION OF LEASEHOLD IMPROVEMENTS.
5.2.1 TENANT WORK. Subject to the provisions of EXHIBIT D,
Tenant at its option may cause to be performed, and Landlord shall pay
certain costs associated with, any Tenant Work in the manner provided in
EXHIBIT D.
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5.2.2 OCCUPANCY BEFORE COMMENCEMENT DATE. Tenant shall have
the right from and after the Delivery Date with respect to each Floor to
use and occupy such Floor for any purpose permitted by this Lease
(including for the performance of the Tenant Work, installation of
Tenant's furniture, Trade Fixtures and personal property, and operation
of Tenant's business therein). Any such access shall be subject to all
of the terms and conditions of this Lease (including the parties'
obligations and agreements under Article 19), except that Tenant's
obligations to pay Rent and other charges under this Lease, which shall
not commence until the Rent Commencement Date, irrespective of whether
Tenant has commenced or completed any improvement work, occupancy or
business operations in any portion of the Premises; provided, however,
Tenant shall pay with respect to any period prior to Rent Commencement
Date during which Tenant occupies any portion of the Premises for
Tenant's normal business purposes, the reasonable out-of-pocket costs
incurred by Landlord in providing electricity and janitorial services to
such portion of the Premises.
6. BASE RENTAL.
6.1 AMOUNTS. Tenant shall pay from, after and including the Rent
Commencement Date and thereafter during the Term a base annual rental with
respect to the Premises and this Lease ("Base Rental") in the amounts provided
in this Section 6.1.
6.1.1 INITIAL TERM. Base Rental during the Initial Term for
the entire Initial Premises (other than any Initial Retail Premises)
shall be in accordance with the following payment schedule:
(a) From the Rent Commencement Date through the day
prior to the eighth (8th) anniversary of the Commencement Date,
[***] per square foot of Rentable Area included in such Initial
Premises per year; and
(b) From the eighth (8th) anniversary of the
Commencement Date through the remainder of Initial Term,
[***] per square foot of Rentable Area included in such Initial
Premises per year.
If, at the written request of Tenant the Additional Skyway is timely
constructed and completed in the manner provided in Section 2.10 of
EXHIBIT D, the monthly Base Rental payable pursuant to the above payment
schedule for the Initial Term shall be increased by an amount calculated
by multiplying (y) the Additional Skyway Construction Costs by (z)
Tenant's Pro Rata Share, and amortizing on a level monthly payment basis
with payments made in advance the resulting product over the period of
the Term commencing with the first month following the date the amount
of the Additional Skyway Construction Costs and Tenant's Pro Rata Share
thereof are finally
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determined pursuant to this paragraph and ending with the last month of
the original Term provided in Section 4.1 at an assumed interest rate of
nine percent (9%) per annum. Following such completion of construction,
Landlord shall submit to Tenant its calculation of the Additional Skyway
Construction Costs and the corresponding adjustment to the monthly Base
Rental payment schedule described above, together with such supporting
documentation as Tenant shall reasonably request. If Tenant disputes
Landlord's calculations and the parties are unable to resolve such
dispute within ten (10) days after notice thereof from Tenant, the
disputed amounts and calculations shall be determined by Arbitration.
The parties shall amend this Lease to incorporate such adjustment to the
monthly Base Rental payment schedule as soon as practicable after the
Additional Skyway Contribution Costs and such adjustment is determined.
6.1.2 EXTENSION TERM. During the first twelve (12) months of
the first Extension Term, the Base Rental for the Initial Premises
(other than any Initial Retail Premises) shall be in the amount of
[***] per square foot of Rentable Area per year and the Base Rental for
any Retail Premises, Expansion Space or First Offer Space then included
in the Premises shall continue at the same rate as in effect at the end
of the Initial Term. During the remainder of such first Extension Term
and during each subsequent Extension Term, (a) the Base Rental for the
Premises (including any Expansion Space and First Offer Space which is
included in the Premises as of the first day of the Extension Term in
question, but excluding any Retail Premises) shall be at a per annum
rate equal to the lesser of (i) the product obtained by multiplying
(A) the Market Base Rental Rate as of the Rent Determination Date for
the Premises in question considered as an aggregate block of space
leased to a single tenant by (B) ninety percent (90%), or (ii) the
product obtained by multiplying (A) the Market Base Rental Rate as of
the Rent Determination Date for a single tenant leasing one (1) full
Floor of the size and design of Floor Six and located on the elevator
bank on which Floor Six is located (the "Full Floor Rate") by (B) ninety
percent (90%), and (b) the Base Rental for the Retail Premises shall be
at the per annum rate equal to the product obtained by multiplying
(i) the Market Base Rental Rate as of the Rent Determination Date for
the Retail Premises in question, by (ii) ninety percent (90%).
6.1.3 RETAIL PREMISES. The Base Rental during the Initial Term
for the Initial Retail Premises, if any, included in the Premises shall
be in accordance with the following payment schedule:
(a) From the date Tenant's obligation to pay Rent
with respect to the Initial Retail Premises commences pursuant
to Section 2.1.3 through the day prior to the eighth (8th)
anniversary of the Commencement Date, the lesser of (i)
[***] per square foot of Rentable Area
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included in the Initial Retail Premises per year, or (ii) the
Market Base Rental Rate as of such rent commencement date for
the Initial Retail Premises; and
(b) From the eighth (8th) anniversary of the
Commencement Date through the remainder of the Initial Term, the
lesser of (i) [***] per square foot of Rentable Area included in
the Initial Retail Premises per year, or (ii) the Market Base
Rental Rate as of such eighth (8th) anniversary for the Initial
Retail Premises.
Not later than sixty (60) days prior to both the Rent Commencement Date
and the eighth (8th) anniversary of the Commencement Date, Landlord
shall notify Tenant of Landlord's best estimate of what the Market Base
Rental Rate will be for the Initial Retail Premises at the commencement
of periods described in clauses (a) or (b), as the case may be. On or
before thirty (30) days after Landlord gives such notice, Tenant may
give Landlord notice of whether Tenant agrees with an estimate by
Landlord of the Market Base Rental Rate. Failure to expressly agree with
Landlord's' estimate shall constitute rejection thereof. If Tenant shall
give notice of disagreement with an estimate by Landlord of the Market
Base Rental Rate or shall be deemed to have rejected the same, as
provided above, Market Base Rental Rate shall be determined by
Arbitration.
6.1.4 EXPANSION SPACE. The Base Rental for Expansion Space
leased by Tenant pursuant to the Expansion Options shall be at a per
annum rate equal to the product obtained by multiplying (a) the Market
Base Rental Rate as of the Rent Determination Date for the Expansion
Space in question by (b) ninety percent (90%). Such rate shall apply
until the Base Rental rate for such space is determined and becomes
effective pursuant to Section 6.1.2 in connection with the next
occurring Extension Term, if any. In determining Market Base Rental Rate
for any Expansion Space applicable to the period, if any, from the
commencement of accrual of Base Rental for such Expansion Space to the
commencement of the next occurring Extension Term, if any, the following
adjustments shall be made: the time period that such rate applies shall
be deemed to be five (5) years for unencumbered space (that is, not
subject to any expansion, first offer, first refusal or similar rights).
If Landlord and Tenant do not agree on the Market Base Rental Rate for
any Expansion Space, then Market Base Rental Rate shall be determined by
Arbitration.
6.1.5 FIRST OFFER SPACE. The Base Rental for First Offer Space
leased by Tenant pursuant to the First Offer Right shall be at a per
annum rate equal to the product obtained by multiplying (a) the Market
Base Rental Rate as of the Rent Determination Date for the First Offer
Space in question by (b) ninety percent (90%). Such rate shall apply
until the Base Rental rate for such space is determined and becomes
effective pursuant to Section 6.1.2 in connection with the next
occurring Extension Term, if any. In determining the Market Base Rental
for any First Offer
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Space applicable to the period, if any, from the commencement of accrual
of Base Rental for such First Offer Space to the commencement of the
next occurring Extension Term, if any, the following adjustments shall
be made; (y) if the time period that such rate applies is less than five
(5) years, such time period shall be deemed to be five (5) years; and
(z) there shall be taken into consideration the effect on the Market
Base Rental Rate of any Superior Rights, if any, applicable to such
space, including the Expansion Options, if any, held by Tenant with
respect to such space which have a scheduled delivery date under Section
8.1 either prior to the commencement of the next Extension Term or
within any deemed five (5) year time period as provided in clause (y)
above and, if the Market Base Rental Rate is reduced by any such
Expansion Option held by Tenant, then the amount of such reduction shall
also be determined and such Market Base Rental Rate shall be increased
by the amount of such reduction for the period after the scheduled
delivery date for such space under such Expansion Option, whether or not
such Expansion Option is exercised. If Landlord and Tenant do not agree
on the Market Base Rental Rate for any First Offer Space, then the
Market Base Rental Rate shall be determined by Arbitration.
6.2 PLACE AND MANNER OF PAYMENT. Base Rental shall be due and
payable in advance in twelve (12) equal installments on or before the first
(1st) day of each calendar month during the Term and at that rate payable in
advance for any fractional month at the beginning or end of the Term. Tenant
hereby agrees to so pay such rent to Landlord at Landlord's address as provided
herein (or such other address in the continental United States as may be
designated by Landlord from time to time), without demand, abatement,
counterclaim or setoff, except as expressly provided in this Lease to the
contrary. Installments of Base Rental shall be deemed to be paid by Tenant upon
deposit of the same in the United States Mail or dispatch of the same in any
other manner permitted for notices under Section 41.5 (other than a facsimile),
provided such Base Rental is actually later received by Landlord. In the event
the applicable Rent Commencement Date is on other than the first day of a
calendar month or year, then Base Rental and Additional Rent for such periods
shall be prorated based upon the number of days in said month or year.
6.3 ALLOCATION OF BASE RENTAL FOR INCOME TAX PURPOSES.
Notwithstanding the payment schedules for Base Rental provided in Section 6.1,
Tenant's obligations for and Landlord's rights to Base Rental during the Initial
Term shall be allocated as follows:
(a) For any fiscal year preceding the first Payment Tax Year
(defined below), if any, the Base Rental allocation shall equal the Base
Rental payments under Section 6.1.
(b) For any fiscal year of Tenant (a "Payment Tax Year") as
to which ▇▇▇▇ Companies US, Inc. shall be obligated to make any Existing
Project Tax Liability Payment to Tenant, (i) the Base Rental allocation
as otherwise calculated pursuant to this Section 6.3 for such Payment
Tax Year hereunder shall be increased by the
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Existing Project Tax Liability Payment attributable to such Payment Tax
Year, and (ii) the Base Rental allocation as otherwise calculated
pursuant to this Section 6.3 for each year during the remainder of the
Initial Term shall be reduced by an amount equal to the quotient
determined by dividing such Existing Project Tax Liability Payment by
the total number of years remaining in the Initial Term.
In no event shall any such Base Rental allocation adjustments alter or amend the
amount or timing of the payment of Base Rental, as to which Section 6.1.1 shall
govern absolutely. Landlord and Tenant intend that allocations of rent be
respected for federal tax purposes under Section 467 of the Internal Revenue
Code.
7. ADDITIONAL RENT
7.1 TENANT'S OPERATING EXPENSE CONTRIBUTION. For purposes of this
Lease, "Tenant's Operating Expense Contribution" shall mean for each full or
partial calendar year during the Term an amount equal to the sum of:
(a) The total amount of Operating Expenses for the Building
for such year (or portion thereof) multiplied by Tenant's Pro Rata
Share; plus
(b) A management fee contribution calculated by multiplying
(i) the Rentable Area of the Premises, by (ii) either (A) during the
Initial Term, [***], or (B) during any Extension Term, the annual market
rate per square foot of Rentable Area for such services as provided to
anchor tenants of similar stature in buildings of similar stature in
downtown Minneapolis,
Minnesota.
Tenant's Operating Expense contribution shall be prorated on a daily basis for
any partial calendar year at the beginning (as of the Rent Commencement Date)
and end of the Term, and shall be adjusted and prorated on a daily basis as of
the date Operating Expenses commence to accrue with respect to any space that is
added to or deleted from the Premises in accordance with this Lease.
7.2 OPERATING EXPENSES.
7.2.1 DEFINITION. "Operating Expenses" shall mean all actual
expenses, costs, and disbursements reasonably incurred by Landlord in
connection with the ordinary course of operating and maintenance of the
Building and shall include, without limitation, the following (except to
the extent excluded or limited by the other terms and conditions of this
Lease):
(a) the cost of fire, extended coverage, "all risk",
boiler, sprinkler, apparatus, public liability, property damage,
rent loss, and other insurance generally required by
institutional lenders with respect to other buildings or
projects in the central business district of Minneapolis,
Minnesota;
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(b) any Qualified Capital Improvement Amortization;
(c) the cost of air-conditioning, electricity,
steam, heating, mechanical, ventilation, escalator and elevator
systems and all other utilities and the cost of supplies and
equipment and maintenance and service contracts in connection
therewith;
(d) costs associated with any shuttle or additional
stairs or elevators serving the Premises (but excluding any
internal private elevators or stairwells for the convenience of
Tenant or any other Building Occupant), which are constructed as
a part of Base Building Work and any additional or enlarged
stairwells serving the Premises required pursuant to applicable
codes and ordinances based upon the population densities
provided in Section 2.2.1 of EXHIBIT D;
(e) operating costs relating to the Skyways,
excluding any costs (i) attributable to the interior of
buildings connected to the Building through such Skyways, (ii)
attributable to the Skyways described in clause (b) of the
definition thereof or the LaSalle Passageway, and (iii) in
excess of fifty percent (50%) of the costs of operating and
maintaining any Skyway (other than the Additional Skyway, as
defined in EXHIBIT D), with such excess payable by Landlord
without contribution from Tenant;
(f) the cost of repairs, general maintenance,
cleaning, trash removal, janitorial service, light bulb and tube
replacement, supplies, security and other Services required to
be performed by Landlord under this Lease;
(g) a reasonable allocation of the rent, calculated
based upon the reasonable rental rate for the space in question,
of the Building manager's offices in the Building attributable
to the use of such offices for the management, operation,
maintenance or repair of the Building, but excluding any portion
reasonably allocable to leasing or other functions (the costs
associated with which may not be included in Operating
Expenses); and
(h) wages, salaries and other labor costs including
taxes, insurance, retirement, medical and other employee
benefits, to the extent relating to persons not above the level
of the on-site Building manager who perform duties connected
with the operation and maintenance of the Building (but only for
the portion of their time allocable to work related to the
Building).
7.2.2 EXCLUSIONS FROM OPERATING EXPENSES. Notwithstanding
anything contained in this Section 7.2, and without in any way implying
that the following
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would be included in Operating Expenses if not specifically excluded
hereinafter, the following shall be excluded from Operating Expenses and
Landlord shall be solely responsible for the payment thereof:
(a) costs directly or indirectly resulting from or
relating to (including repairs, restoration, security measures,
emergency or temporary services, inspection and, during the
period of such repair or restoration, any increase in operating
expenses resulting from) fire, windstorm or other casualty or
damage or destruction from any other cause, whether or not
insured or insurable;
(b) costs directly or indirectly resulting from or
relating to (including repairs, restoration, security measures,
emergency or temporary services, inspection and, during the
period of such repair or restoration, any increase in operating
expenses resulting from) exercise of rights of eminent domain,
regardless of whether paid for by condemnation proceeds;
(c) costs of correcting any violations of any Legal
Requirements, except to the extent of what would have been the
cost of compliance in the first instance if such compliance
would have been properly included in Operating Expenses under
Section 7.2.1;
(d) leasing commissions, costs and disbursements and
any other cost or expense incurred in connection with
negotiations or disputes with Building Occupants, or prospective
occupants of the Building;
(e) legal fees, costs and disbursements;
(f) costs incurred in renovating or otherwise
improving or decorating or redecorating space for Building
Occupants or vacant space leased or held or designated for lease
in the Building or costs related thereto, including any
alterations to the Building in connection with, or which are
required by reason of, any lease or agreement with any Building
Occupant;
(g) costs of correcting defects in, or inadequacy
of, the design or construction of the Building or the materials
used in the construction of the Building (including defects in
the Building or the inadequacy of design of the Building
pursuant to Sections 2.6, 2.7, 2.8 or 2.9 of EXHIBIT D, or
otherwise) or in the Building equipment or appurtenances
thereto, except that, for the purposes of this paragraph (g),
conditions (not occasioned by or related to design, materials or
construction defects or inadequacies) resulting from ordinary
wear and tear and use shall not be deemed defects;
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(h) costs of electricity and other services sold to
Building Occupants or others for which Landlord is entitled to
be reimbursed (whether or not actually collected by Landlord) as
a separate additional charge or rental;
(i) depreciation and amortization, except the
Qualified Capital Improvement Amortization;
(j) costs (and reserves therefor) of a capital
nature irrespective of the amount thereof, including capital
improvements, capital repairs and replacements and capital
equipment, except the Qualified Capital Improvement
Amortization; provided, that, without limitation to the
foregoing, (i) no costs will be expensed based primarily on the
amount thereof, unless such amount is less than One Thousand and
No/100 Dollars ($1,000.00) in Constant Dollars, and (ii) the
amount of any monthly or other fee or charge payable under any
maintenance, service or other contract (other than a so-called
"full service" elevator maintenance contract generally
maintained with respect to high rise office buildings in
downtown Minneapolis, Minnesota) which is allocable to capital
repairs and replacements shall be excluded from Operating
Expenses;
(k) costs in connection with services or other
benefits of a type which are not, or which are provided at
higher levels or greater amounts than, or to a degree which is
higher than furnished to Tenant, but which are provided to other
Building Occupants;
(l) except as specifically provided in Sections
7.1(b), 7.2.1(g) and 7.2.1(h), fees or costs for management of
the Building, including any property management fee paid to a
property management company for the Building, or any fees, costs
or expenses associated with any accounting, ▇▇▇▇-paying or
management activities;
(m) amounts which would otherwise be included in
Operating Expenses which are payable to Affiliates of Landlord,
for services on or to the Building or the Land to the extent
that the costs of such services exceed average competitive costs
for such services rendered by persons or entities of similar
skill, competence and experience, other than an Affiliate of
Landlord;
(n) financing and refinancing costs, interest on
debt or amortization payments on any mortgage or mortgages, and
rental under any ground or underlying leases or lease, together
with all costs incidental to the items mentioned in this
paragraph (n);
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(o) costs of Landlord's general corporate overhead
and general administrative expenses (including costs and
expenses paid to third parties to collect rents, prepare tax
returns and accounting reports and obtain financing);
(p) rentals and other related costs, if any,
incurred in leasing air conditioning, security, or other
building operation or management systems, elevators or other
equipment or facilities which, if purchased and owned by
Landlord, would ordinarily be considered to be of a capital
nature;
(q) costs associated with items and services for
which Tenant reimburses Landlord (other than through Tenant
paying Tenant's Additional Rent) or for which Tenant pays third
persons;
(r) costs of entertaining current or prospective
Building Occupants, and costs incurred in advertising in respect
of or for the Building or other marketing or promotional
activity;
(s) costs incurred in respect of, or properly
allocable to, the operation and maintenance and any other aspect
of the parking and storage facilities located within the
Building, including the Parking Garage;
(t) costs resulting from the negligence or
misconduct of Landlord or its employees, agents or contractors;
(u) bad debt expenses or bad debt reserves, whether
for rent or otherwise, or any fees or penalties charged to
Landlord as a result of not paying any amount constituting costs
or expenses when due;
(v) costs incurred in connection with or related to
the construction of the Building including pursuant to EXHIBIT
D;
(w) costs of any repair or damage caused by or
resulting from the negligence or wrongful act or omission of
Tenant or any other Building Occupant;
(x) costs which are paid or payable by third parties
other than other Building Occupants through their contribution
to Operating Expenses;
(y) costs in any manner associated with Hazardous
Materials, except that routine fees for disposal of building
standard fluorescent lamps and similar items may be included in
Operating Expenses;
(z) capital costs for sculpture, paintings or other
art objects;
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(aa) contributions to any organizations, whether
professional, political, civic or charitable;
(bb) costs incurred in connection with any special
events held in the Common Areas, regardless of whether such
events are held for profit other than those of a seasonal nature
or associated with holidays which are conducted by Landlord in
accordance with Section 2.4.2 for the general benefit of all
tenants of the Building;
(cc) premiums paid to perform work after hours,
unless required by the terms of this Lease to be performed after
hours or unless approved in advance in writing by Tenant (except
as necessary in an emergency);
(dd) travel, entertainment and related expenses
incurred by Landlord or its personnel; and
(ee) accountant and auditor's fees and expenses.
7.2.3 FURTHER REDUCTIONS. To the extent the corresponding
expense is not already excluded from Operating Expenses under Section
7.2.2, Operating Expenses shall be further reduced by (a) any
consideration received by Landlord for the special use by Tenant or
other Building Occupant of the Common Areas of the Building in excess of
Landlord's actual out-of-pocket expenses incurred in connection with
such use, (b) insurance proceeds or other awards and settlements
received by Landlord (after deduction of the reasonable costs of
securing the same) representing reimbursement of Operating Expenses
incurred by Landlord, (c) the amount of any other refund or discount
Landlord receives in connection with any costs or expenditures otherwise
included in Operating Expenses, Landlord hereby agreeing to make
payments on account of Operating Expenses in such manner as to maximize
the amount of such refunds and discounts, (d) the amount of Qualified
Capital Improvement Amortization allocable to (i) any portion of an
Extension Term unless the related Qualified Capital Improvement was
first placed in service or installed subsequent to the Rent
Determination Date of such Extension Term, and (ii) any Expansion Space
or First Offer Space unless the related Qualified Capital Improvement
was first placed in service or installed after the Rent Determination
Date for such space, and (e) any Operating Expenses incurred by reason
of any retail space being located in the Building which are in excess of
those which would be incurred if such space were used for general office
purposes. In determining what is included and excluded as Operating
Expenses, in calculation of Tenant's Estimated Operating Expenses
Contribution (as defined in Section 7.3.1(a)) and Tenant's Operating
Expense Contribution and the determination of time of payments therefor,
Landlord shall not treat Tenant any less favorably than other Building
Occupants generally,
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except with respect to items of Operating Expenses specifically included
in Operating Expenses under Sections 7.1(b) or 7.2.1.
7.2.4 LIMITED GROSS-UP. For any period of the Term that less
than ninety-five percent (95%) of the Rentable Area of the Building is
occupied, Operating Expenses attributable to janitorial services and
utilities, and only such expenses, shall be adjusted upward (or
downward) to the amount that Landlord demonstrates would have been
incurred for such services (taking into account, without limitation, any
volume related or other discounts) if ninety-five percent (95%) of the
Rentable Area of the Building had been occupied during such period. In
no event shall Landlord be entitled to collect a management fee on any
amount of Operating Expenses increased pursuant to this Section 7.2.4.
7.2.5 DISPROPORTIONATE SERVICES. In the event any Service is
provided disproportionately either to the Premises or to any other
premises in the Building, then an increase or decrease, as the case may
be, shall be made in the Tenant's Estimated Operating Expense
Contribution and Tenant's Operating Expense Contribution to reflect the
increase or decrease, as the case may be, in Operating Expenses as a
result of such disproportionate provision.
7.2.6 OBLIGATION TO REDUCE OPERATING EXPENSES. Landlord shall
use reasonable efforts to reduce and keep Operating Expenses to the
minimum which is reasonably possible, commensurate with the Minimum
Building Standards.
7.2.7 GENERAL. Operating Expenses shall be determined on an
accrual basis and, to the extent applicable, in accordance with
generally accepted accounting principles consistently applied.
7.3 ESTIMATE AND ADJUSTMENT OF OPERATING EXPENSES; PAYMENT OF
TENANT'S OPERATING EXPENSE CONTRIBUTION.
7.3.1 STATEMENT OF ESTIMATED OPERATING EXPENSES. On or before
November 1 of each calendar year that falls within the Term (and with
respect to the partial year commencing on the Rent Commencement Date of
this Lease, at least thirty (30) days prior to the Rent Commencement
Date), Landlord shall furnish to Tenant a statement providing:
(a) Landlord's reasonable estimate for such calendar
year (or portion thereof) of Operating Expenses to be in
incurred ("Estimated Operating Expenses") and Tenant's Operating
Expense Contribution with respect thereto ("Tenant's Estimated
Operating Expense Contribution");
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(b) Those Qualified Capital Improvements as to which
Landlord reasonably anticipates expending funds during the
following calendar year, and in the case of a Qualified Capital
Improvement described in Section 1.62(c)(i), Landlord's
reasonable estimate of the annual savings to be obtained by such
Qualified Capital Improvements and the Qualified Capital
Improvement Amortization in respect thereof;
(c) If Landlord seeks an occupancy-based adjustment
pursuant to Section 7.2.4, such statement shall (i) itemize
those Operating Expenses that Landlord believes will vary with
occupancy and which are subject to such adjustment, and (ii)
show the calculation of Landlord's estimate of such costs at
ninety-five percent (95%) occupancy of the Building; and
(d) If a level of Service based adjustment is
appropriate under Section 7.2.5, such statement shall (i)
describe those services provided disproportionately to the
Premises or any other portion of the Building, and (ii) itemize
those Operating Expenses which have been increased or decreased
as a result of such disproportionate Services and the adjustment
in Tenant's Estimated Operating Expense Contribution and
Tenant's Operating Expense Contribution resulting therefrom.
7.3.2 PAYMENT BY TENANT; REVISION OF ESTIMATE. Commencing as
of the first day of the first month following the Rent Commencement Date
and as of the first day of each month thereafter for each calendar year
(or portion thereof) during the Term, Tenant shall pay to Landlord,
without demand, abatement, counterclaim or set off, except as expressly
provided in this Lease to the contrary, at the address provided in
Section 6.2, one-twelfth (1/12th) of the amount of Tenant's Estimated
Operating Expense Contribution for such year (or portion thereof),
prorated for any fractional month at the beginning or end of the Term.
Any such payment shall be deemed to be paid by Tenant upon deposit of
the same in the United States Mail or dispatch of the same in any other
manner permitted for notices under Section 41.5 (other than facsimile),
provided such payment is actually later received by Landlord.
Notwithstanding the foregoing, if for any reason Landlord's statement of
Estimated Operating Expenses is furnished after January 1st of a
calendar year, Tenant shall not be obligated to pay the portion of
Tenant's Estimated Operating Expense Contribution allocable to portions
of such year occurring prior to Tenant's receipt of Landlord's statement
until the first monthly rent payment date after Tenant's receipt of
Landlord's statement. Subject to the provisions of Section 7.11,
Landlord shall have the right to reasonably revise Landlord's estimates
not more than once during each calendar year to reasonably reflect the
then current Estimated Operating Expenses (including adjustments
necessary to account for savings or additional expenditures attributable
to the previous portion of the year as to which Landlord's revised
estimate relates) and Tenant's Estimated Operating Expense Contribution
shall be adjusted in accordance
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with the revised estimate, commencing the first day of the first month
occurring at least thirty (30) days following Tenant's receipt from
Landlord of a statement of such revised estimate.
7.3.3 ADJUSTMENT BASED ON ACTUAL OPERATING EXPENSES. Within
ninety (90) days after the expiration of each calendar year, Landlord
shall furnish to Tenant a statement certified by Landlord and prepared
and certified by Landlord's certified public accountant, which shall be
a nationally or regionally recognized firm of independent certified
public accountants, showing: (a) the actual Operating Expenses incurred
during the previous calendar year or portion thereof ("Actual Operating
Expenses") on a line item basis; (b) the difference, if any, between the
Estimated Operating Expenses and the Actual Operating Expenses on a line
item basis; (c) the net amount of any charge or credit to Tenant
necessary to adjust Tenant's Estimated Operating Expense Contributions
previously paid by Tenant to Tenant's Operating Expense Contribution due
on account of the Actual Operating Expenses; and (d) the information
described in Sections 7.3.1(b) and 7.3.1(c), based on actual experience.
Within thirty (30) days after the receipt of said statement by Tenant,
Tenant shall, in case of a net charge to Tenant, pay to Landlord an
amount equal to such charge, or Landlord shall, in case of a net credit
to Tenant, credit the next monthly rental payment of Tenant with an
amount equal to such credit (or if credit is due after the expiration of
the Term, Landlord shall pay such credit to Tenant in cash
contemporaneously with the delivery of such statement). In the event
Tenant's Estimated Operating Expense Contribution paid for such year
equals or exceeds one hundred five percent (105%) of Tenant's Operating
Expense Contribution due on account of Actual Operating Expenses, such
credit or payment by Landlord to Tenant shall include six (6) months' of
interest on such excess amount at the Agreed Interest Rate. Landlord
shall be bound absolutely to said annual statement, and Tenant shall
have no liability for any understatement of Actual Operating Expenses,
Tenant's Estimated Operating Expense Contribution or Tenant's Operating
Expense Contribution for the calendar year covered by said statement
unless such understatement is expressly reflected and adjustment is
requested in such statement.
7.3.4 MONTHLY STATEMENTS; REPORTS AND STUDIES. On or before
the fifteenth (15th) day of each month during the Term, Landlord shall
furnish to Tenant copies of such statements prepared by or for Landlord
showing, to the extent available, for such month and for the calendar
year to date estimates of the following: (a) the Actual Operating
Expenses incurred; (b) the differences between the Estimated Operating
Expenses and the Actual Operating Expenses; and (c) the aggregate amount
of any overpayment or underpayment by Tenant with respect to Tenant's
Operating Expense Contribution on account of Actual Operating Expenses
incurred to such date. Landlord also shall deliver to Tenant at no
charge to Tenant promptly upon generation or receipt by Landlord or its
Building manager, copies of any deficiency reports, information
regarding permit or other violations of Legal Requirements, tax bills
and
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valuation notices, and any other statements, studies, notices or similar
materials relating to the operation of the Building as Tenant shall from
time to time request, provided that Landlord shall not be required to
include information on the rent payable by the other Building Occupants.
Tenant acknowledges that such information is preliminary and shall not
limit or affect the determination of Operating Expenses or the payment
of Tenant's Operating Expense Contribution. Tenant shall use reasonable
efforts to keep such monthly statements and deliveries confidential;
provided, however, the foregoing shall not limit or restrict Tenant's
right to distribute or disseminate such statements and deliveries (t) if
necessary to comply with any Legal Requirements, (u) in connection with
Tenant's financial or tax reporting, audit or similar requirements or
procedures, (w) to any proposed assignee with respect to this Lease or
Subtenant, (v) in connection with any dispute, litigation or Arbitration
under this Lease, (x) to any Affiliate or proposed Affiliates of Tenant,
(y) to any of Tenant's accountants, auditors, attorneys or other
advisors, and (z) to any of Tenant's agents, employees, shareholders,
members, partners or directors who have a reasonable need to know the
contents thereof.
7.3.5 FORMS OF STATEMENT. Prior to issuance of any statement
described in this Section 7.3 and upon any material changes to the form
of such statement, Landlord shall submit such forms of the Actual
Operating Expenses statement to Tenant for approval, which approval may
not be unreasonably withheld.
7.3.6 DISPUTES. If within thirty (30) days after receipt by
Tenant of a statement described in this Section 7.3 from Landlord,
Tenant gives Landlord notice that Tenant objects to any element or
calculation contained in such statement (including whether any proposed
Qualifying Capital Improvement will result in a material decrease in
Operating Expenses), which notice shall include an explanation of the
basis for such objection, such dispute shall be resolved by Arbitration.
No failure by Tenant to object as provided in this Section 7.3.6 shall
affect any of Tenant's rights or obligations with respect to such
statement, including Tenant's rights under Section 7.9. Pending the
results of such Arbitration, Tenant shall pay its share of Operating
Expenses in accordance with such statement of Tenant's Estimated
Operating Expense Contribution or Actual Operating Expenses, as
applicable.
7.4 TENANT'S TAX CONTRIBUTION. For purposes of this Lease, "Tenant's
Tax Contribution" shall mean an amount equal to the product obtained by
multiplying (a) the amount of Real Property Taxes, by (b) Tenant's Pro Rata
Share (with appropriate adjustment as of the date Rent commences to accrue in
respect of any Rentable Area added to or deleted from the Premises during the
year in question); provided, however, Tenant shall be responsible for paying
Tenant's Tax Contribution only with respect to those Real Property Taxes which
are due and payable during any calendar year included in whole or in part in the
Term, and then only to the extent allocable to the Term based on the number of
days of such calendar year included in the Term (in the case of the first
calendar year, after the Rent
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Commencement Date), regardless of the date on which any such Taxes accrue or are
assessed or levied.
7.5 REAL PROPERTY TAXES. "Real Property Taxes" shall mean all ad
valorem taxes, assessments (special or otherwise) and other governmental imposts
payable with respect to the Land or the Building, which are levied or assessed
by the United States of America or the State of Minnesota or any political
subdivision thereof and are due and payable during any calendar year included in
whole or in part in the Term. Real Property Taxes shall also include reasonable
legal fees, costs and disbursements incurred in connection with proceedings to
contest, determine or reduce Real Property Taxes, but shall exclude (a) any item
included in Operating Expenses; (b) any taxes of the nature payable by Tenant
under Article 17 hereof; (c) any net income tax, estate tax, gift tax, transfer
tax, or inheritance tax; (d) a reasonable allocation of such taxes, assessments
and imposts to the Parking Garage (based upon the relative values of (i) the
Parking Garage, to (ii) the entire Building, including the Parking Garage); (e)
any increased amounts of such taxes, assessments or imposts resulting from any
agreement with any governmental authority or unit setting a minimum assessed
value for the Building or Land, or otherwise fixing the amount of Real Property
Taxes payable with respect thereto, except as expressly provided under Section
7.9; (f) any ad valorem taxes allocable to the improvements existing on the Land
as of the date of this Lease; (g) any taxes, assessments or imposts levied,
pending or constituting a lien against the Building or Land as of the date of
this Lease; and (h) assessments (including special assessments), whenever
levied, arising out of or in respect of any capital improvement necessary to, or
required by any state or local governmental unit, agency or taxing authority in
connection with the initial development or construction of the Building
(including any amounts associated with any condemnation proceeding used to
obtain control of the Land), or any expansion or enlargement thereof. In the
case of Real Property Taxes, such as special assessments, where Landlord has an
election, Landlord shall exercise any election available to it to pay the same
over the longest period available, in which event only the installment of such
Real Property Tax due and payable in any year shall be included in Real Property
Taxes for such year, with the installments due and payable in the year the Term
commences or ends prorated on a daily basis, provided that in the case of
special or area assessments for capital improvements where there is no such
election available to Landlord, Tenant may at its election require the same to
be treated as if there were such assessment, together with interest thereon at
the Amortization Interest Rate, to be amortized on a level payment basis over a
period equal to the lesser of (y) twenty (20) years, or (z) the reasonably
estimated practical useful life of the improvement.
7.6 PAYMENT OF TENANT'S TAX CONTRIBUTION. Commencing on the Rent
Commencement Date, Tenant shall pay Tenant's Tax Contribution for each calendar
year during the Term as follows: whenever Landlord shall receive an invoice from
the applicable governmental authority for an item that constitutes Real Property
Taxes for which Tenant is responsible (including receipt of such invoice after
the end of or prior to the beginning of the Term), Landlord shall send Tenant a
copy of such invoice and a statement and detailed calculation setting forth
Tenant's Tax Contribution with respect to such items. Tenant shall
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pay the same to Landlord, without demand, abatement, counterclaim or setoff,
except as otherwise expressly provided in this Lease to the contrary, at the
address provided in Section 6.2, on or before the later of (a) ten (10) days
after receipt of such invoice, or (b) ten (10) days prior to the date such Taxes
are due without penalty, provided that if any penalty or interest is imposed or
payable on any Real Property Tax solely by reason of Tenant's failure to pay
Tenant's Tax Contribution within the time required, Tenant shall upon demand
reimburse Landlord for such penalty or interest to the extent allocable to
Tenant's Tax Contribution. Such payments shall be deemed to be paid by Tenant
upon deposit of the same in the United States Mail or dispatch of the same in
any other manner permitted for notices under Section 41.5 (other than
facsimile).
7.7 CONTEST OF REAL PROPERTY TAXES. If Tenant in the exercise of its
reasonable judgment believes that Real Property Taxes are excessive because of
improper valuations, tax rates or special assessments and should be contested.
Tenant shall have the right to contest with reasonable diligence the Real
Property Taxes (including an appeal from an initial tax contest determination)
and, except as provided below, to deduct all reasonable costs relating to the
contest from any refund obtained from such contest or, if no refund is obtained,
from payments of Tenant's Tax Contribution. If either Landlord or Tenant
contests the Real Property Taxes and receives a refund, Tenant's Tax
Contribution will be adjusted accordingly. Landlord shall refund to Tenant
Tenant's Pro Rata Share of any refund or rebate received by Landlord with
respect to Real Property Taxes for which Tenant made a Tenant Tax Contribution.
Landlord or Tenant, as the case may be, shall use reasonable diligence in
pursuing any such tax contest, including any settlement thereof; provided,
however, (a) Landlord and Tenant agree to consult with the other prior to
commencing any such tax contest; and (b) neither Landlord nor Tenant shall
settle any such tax contest without the approval of the other, which may be
given or withheld in the approving party's sole discretion. No party other than
Landlord and Tenant shall be allowed to contest Real Property Taxes. Landlord
shall include such a prohibition in all leases and other occupancy agreements
with other Building Occupants.
7.8 NO ASSESSMENT AGREEMENTS. Landlord hereby represents, warrants,
agrees and covenants that it has not entered, and will not at any time during
the Term enter, into any agreement with the City of Minneapolis or any other
governmental authority or unit setting a minimum assessed value for the Building
or Land, or otherwise fixing the amount of Real Property Taxes payable with
respect thereto, except for real estate tax contests and settlements thereof
which have been approved by Tenant in its sole discretion.
7.9 AUDIT; BOOKS AND RECORDS. Tenant and its agents, employees,
auditors and consultants, at Tenant's expense, shall have the right at all
reasonable times within four (4) years after Tenant's receipt of the annual
statement described in Section 7.3.3 to inspect, copy and audit Landlord's books
and records relating to Operating Expenses, Real Property Taxes and other
matters arising under this Lease for any calendar year or years (or portions
thereof) covered by such statement. While Tenant shall bear the cost of any
audit conducted for or by
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it, Landlord shall reimburse Tenant for such cost, together with interest
thereon at the Agreed Interest Rate, if such audit shall establish that either
Actual Operating Expenses or Real Property Taxes for any year within the period
of time covered by such audit have been overstated by three percent (3%) or
more. Tenant may not request such an audit more than once in any twelve (12)
month period. Landlord shall have no liability for any overstatement of
Operating Expenses for any calendar year unless Tenant notifies Landlord thereof
within fifty (50) months after Tenant's receipt of the annual statement with
respect to such calendar year described in Section 7.3.3, which notice shall
describe such overstatement in reasonable detail. Landlord shall keep and
maintain true, correct and complete books and records with respect to the
operation of the Building and the Land or otherwise related to Operating
Expenses and Real Property Taxes and shall retain such books and records at
Landlord's office in Minneapolis for a period of fifty (50) months after the
calendar year in which they accrue. The provision of this Section 7.9 shall
survive termination or expiration of this Lease.
7.10 LIST OF LANDLORD'S AFFILIATES. Upon request of Tenant, Landlord
shall furnish to Tenant a list of Affiliates of Landlord who are providing
Services to the Building and, if requested, such other information reasonably
required for Tenant to examine the appropriateness of those Operating Expenses
attributable to Affiliates of Landlord.
7.11 COOPERATION AND BUDGETING. Landlord agrees to afford Tenant such
participation as Tenant shall reasonably request in all aspects of the process
involved in the determination of Operating Expenses and Real Property Taxes
including the budgeting process, the determination of the level of Services
provided to the Building or the Premises under this Lease, the making of any
capital improvements, and the preparation of the statements described in Section
7.3.
8. EXPANSION OPTIONS
8.1 GRANT. Subject to the terms and conditions of this Article 8,
Landlord hereby grants to Tenant the options (the "Expansion Option(s)") to add
the following expansion space (the "Expansion Space") to the Premises:
(a) Approximately fifty-seven thousand five hundred (57,500)
square feet of Rentable Area (or such amount as shall be equal in area
to two (2) full Floors) which shall consist of two (2) full, contiguous
Floors to be delivered by Landlord on the third (3rd) anniversary of the
Commencement Date (the "First Expansion Option");
(b) Approximately fifty-seven thousand five hundred (57,500)
square feet of Rentable Area (or such amount as shall be equal in area
to two (2) full Floors) which shall consist of two (2) full, contiguous
Floors to be delivered by Landlord on the sixth (6th) anniversary of the
Commencement Date (the "Second Expansion Option"); and
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(c) Approximately seventy-eight thousand (78,000) square
feet of Rentable Area (or such amount as shall be equal in area to three
(3) full Floors) which shall consist of three (3) full, contiguous
Floors to be delivered by Landlord on the ninth (9th) anniversary of the
Commencement Date (the "Third Expansion Option").
8.2 EXERCISE. Tenant may, with respect to each of its Expansion
Options, exercise such option with respect to any or all of the applicable
Expansion Space, provided that if Tenant shall elect to lease any Expansion
Space on a particular Floor, Tenant shall lease either one-half (1/2) or the
entire Rentable Area on that Floor or that portion of such Floor which will,
when combined with any space already part of the Premises, constitute either
one-half (1/2) or the entire Rentable Area on that Floor. Tenant shall exercise
an Expansion Option, if at all, as follows: At least eighteen (18), but not more
than twenty (20), months prior to the scheduled delivery date of the Expansion
Space in question, Landlord shall deliver to Tenant notice of (a) the date upon
which Tenant's right to exercise the subject Expansion Option shall expire, and
(b) Landlord's best estimate of what the Market Base Rental Rate will be at the
Rent Determination Date. On or before the later of (y) sixty (60) days after
Landlord gives the notice in accordance with the preceding sentence, or (z)
twelve (12) months prior to the scheduled delivery date of such Expansion Space,
as the case may be, Tenant may give Landlord notice (i) that Tenant elects to
exercise the subject Expansion Option, (ii) subject to the other limitations of
this Section 8.2, the portion or portions of the Expansion Space as to which
Tenant is exercising its Expansion Option, and (iii) whether Tenant agrees with
Landlord's estimate of the Market Base Rental Rate. Failure to give such notice
shall constitute a waiver of the subject Expansion Option and failure to
expressly agree with Landlord's estimate shall constitute rejection thereof. If
Tenant shall give notice of disagreement with Landlord's estimate of Market Base
Rental Rate in its extension notice or shall be deemed to have rejected the
same, as above provided, such rates shall be determined by Arbitration. Tenant
shall have the right to rescind its exercise of the previously exercised subject
Expansion Option by giving notice thereof to Landlord within thirty (30) days
after the determination of the Market Base Rental Rate therefor.
8.3 CONTIGUOUS SPACE; RELATIONSHIP TO FIRST OFFER RIGHT. The
Expansion Space shall be located on the Floor(s) contiguous to the then-existing
Initial Premises, whether or not any Expansion Space may have been previously
leased by Tenant under Article 9. Notwithstanding the preceding sentence, (a) no
Expansion Space shall be located on Floors One (1) or Two (2) or on any
Mechanical Floor unless Tenant shall otherwise elect in its sole discretion, and
(b) if Tenant does not exercise an Expansion Option as to the entire Expansion
Space covered thereby, then the Expansion Space under subsequent Expansion
Options need not be located on Floor(s) contiguous to the then-existing
Premises, but shall be located contiguous to the most recently offered Expansion
Space with respect to which Tenant did not exercise its Expansion Option. Any
failure to duly and timely exercise an Expansion Option shall not otherwise
limit subsequent Expansion Options. The Expansion Options are independent of the
First Offer Right and shall apply notwithstanding that Tenant at any time
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has elected to exercise or has elected not to exercise its First Offer Right
with respect to any Expansion Space.
8.4 TERM; RENTAL. The Term as applicable to Expansion Space shall
commence on the date of delivery of such space to Tenant and shall expire on the
same date as the expiration or earlier termination of this Lease. Base Rental
with respect to any Expansion Space shall be at the rate provided in Section
6.1.4. All Rent for any Expansion Space shall commence to accrue from and after
the earlier of (a) the date occurring one hundred twenty (120) days after the
date Landlord delivers such Expansion Space in the condition required pursuant
to Section 8.5, and (b) the date Tenant actually occupies the Expansion Space
for the operation of Tenant's business.
8.5 CONDITION OF EXPANSION SPACE. In the event Tenant exercises an
Expansion Option pursuant to the terms hereof, Tenant shall take all leasehold
improvements located within such Expansion Space on an "as is" basis as of the
date Tenant exercised such Expansion Option, reasonable wear and tear occurring
after exercise excepted, and subject to the existing tenant's rights to remove
any personal property and trade fixtures from the Expansion Space (provided that
all damage resulting from such removal has been properly repaired prior to the
delivery thereof to Tenant), provided that:
8.5.1 UNIMPROVED SPACE. If and to the extent that such
Expansion Space has not been improved to at least the Base Building
Shell Condition Requirements, Landlord shall pay Tenant, on the date
Rent commences to accrue with respect to the Expansion Space, a sum
equal to the cost to Tenant of completing such portions of the Floor
which have not been improved to the Base Building Shell Condition
Requirements.
8.5.2 DAMAGED SPACE. If, at any time prior to delivery of the
Expansion Space, the Expansion Space or any part thereof has been
materially damaged or destroyed by fire or other casualty or cause,
Landlord, at its expense, shall repair and restore the portion so
damaged or destroyed to its condition immediately prior thereto and in
compliance with the Base Building Shell Condition Requirements and all
Legal Requirements, with such alterations as Tenant may elect, provided
that (a) if any such alterations increase the cost of repairing and
restoring the Expansion Space, such excess cost shall be paid by Tenant,
and (b) all Rent for such Expansion Space shall ▇▇▇▇▇ until the earlier
of (i) the date provided in Section 8.4, or (ii) in the event such
alterations increase the period necessary to repair and restore the
Expansion Space by one hundred twenty (120) days or more, the date such
repair and restoration work would have been completed but for such
alterations. In the event Landlord and Tenant do not agree on the cost
or excess time necessary to perform such alterations, the dispute shall
be resolved by Arbitration.
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8.6 FAILURE TO DELIVER POSSESSION.
8.6.1 Landlord shall indemnify and hold harmless Tenant from
and against any and all Landlord Delay Costs which result from or arise
in connection with the failure to deliver any Expansion Space on the
scheduled delivery date therefor in accordance with the requirements of
this Lease, except to the extent such failure is the result of fire or
other casualty; provided, however, in the case of such a failure, Tenant
shall not incur any of the Landlord Delay Costs described in the clauses
(v) and (w) of the definition thereof unless such failure shall continue
for sixty (60) days or more from the schedule delivery date therefor. In
addition, in the event Landlord does not, for any reason, including
Unavoidable Delay, deliver the Expansion Space within ninety (90) days
after the scheduled delivery date therefor, Tenant may, but shall have
no obligation to, rescind its exercise of said option by delivering
notice thereof to Landlord at any time after the expiration of said
ninety (90) day period and prior to the actual delivery of the Expansion
Space in the condition required by this Lease.
8.6.2 Landlord covenants and agrees that it will use best
efforts (including, if requested by Tenant, litigation) to deliver
possession of all portions of each Expansion Space to Tenant upon the
scheduled delivery date therefor, or, if such is not possible, as soon
thereafter as is reasonably possible.
8.7 LEASE AMENDMENT. Upon exercise of an Expansion Option by
Tenant pursuant to the terms hereof and delivery by Landlord of the applicable
Expansion Space, Landlord and Tenant shall amend this Lease to confirm the
addition of the Expansion Space added to this Lease thereby, the date such
Expansion Space was added to this Lease, and the Base Rental rate applicable
thereto, but failure to execute such amendment shall not affect the validity of
such leasing of the Expansion Space.
8.8 TRANSFER. All of Tenant's rights under this Article
shall apply notwithstanding any assignment of all or any portion of Tenant's
interest in this Lease or any sublease of all or any portion of the Premises,
including any Expansion Space.
9. RIGHT OF FIRST OFFER
9.1 GRANT: LANDLORD'S NOTICE. Subject to the terms and conditions
of this Article 9 and the limitations in Section 10.6, Tenant shall have a right
of first offer (the "First Offer Right") with respect to any space in the
Building which is or shall become available for leasing after the third (3rd)
anniversary of the Commencement Date. On or before the third (3rd) anniversary
of the Commencement Date, and each subsequent anniversary thereof (but not more
than thirty (30) days prior to any such anniversary), Landlord shall notify
Tenant of all rentable spaces within the Building which are not leased or which
Landlord reasonably anticipates may become not leased within the following
eighteen (18) month period, irrespective of whether any such space was
previously offered or available to Tenant as
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Expansion Space or First Offer Space (any of such Space being "First Offer
Space"), which notice shall include on a space by space basis (with no space
greater than one (1) Floor): (a) the identity of the First Offer Space, (b) all
Superior Rights as to such First Offer Space, if any, (c) Landlord's best
estimate of the Market Base Rental Rate for the First Offer Space, and (d) the
date on which Landlord will deliver such First Offer Space to Tenant. In
addition, Landlord shall have a continuing obligation to give Tenant prompt
notice containing the information described above of any and all space that was
not included in the most recent annual notice but which has become available
thereafter (including by re-acquisition through subleasing), which space shall
also constitute First Offer Space. If requested by Tenant, Landlord shall advise
Tenant of the expiration date of any Superior Rights to such First Offer Space
and the provisions of the Superior Leases (defined below), relating to Superior
Rights, and shall provide to Tenant copies of all lease provisions relevant
thereto.
9.2 SUPERIOR RIGHTS. Tenant's First Offer Right shall be subject and
subordinate only to the Superior Rights of other Building Occupants. "Superior
Rights" shall mean all renewal and extension options and expansion options (but
not rights of refusal or offer or similar rights) hereafter granted to any
Building Occupant under a lease (a) which constitutes the initial lease made for
the space in question, or (b) as to which Tenant had the right to, but did not,
exercise its First Offer Right (each, a "Superior Lease"). At the time of
executing a Superior Lease, Landlord shall give Tenant notice specifying the
space affected thereby, the tenant, and the dates during which the First Offer
Right may be affected and the Superior Rights granted therein, provided that the
failure to give such notice shall not affect the rights or obligations of
Landlord or Tenant hereunder. The provisions of this Article 9 shall not limit
the parties' rights to expand the Premises from time to time by a mutual
agreement and an amendment to this Lease. Any such agreement and amendment shall
be deemed to be have been leased by Tenant pursuant to the First Offer Right for
purposes of any expansion option, right of first offer, first refusal or similar
right granted to any other Building Occupant.
9.3 EXERCISE. Tenant's right to lease any First Offer Space shall be
on and subject to the following terms and conditions:
9.3.1 TENANT'S NOTICE. On or before thirty (30) days after
Landlord gives a notice in accordance with Section 9.1, Tenant may give
Landlord notice (a) that Tenant elects to exercise the subject First
Offer Right, (b) of the portion or portions of the First Offer Space as
to which Tenant in its sole discretion is exercising its First Offer
Right (provided that any First Offer Space not elected to be leased by
Tenant shall be of a reasonably leasable size and configuration), and
(c) whether Tenant agrees with Landlord's estimate of the Market Base
Rental Rate for any of the First Offer Space elected to be leased.
Failure to give such notice shall constitute a waiver of the subject
First Offer Right and failure to expressly agree with Landlord's
estimate as provided above shall constitute rejection thereof. If Tenant
shall give notice of disagreement with Landlord's estimate of the Market
Base Rental Rate for any of the
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First Offer Space elected to be leased in its exercise notice or shall
be deemed to have rejected the same, as above provided, such rates shall
be determined by Arbitration.
9.3.2 TENANT'S FAILURE TO ELECT. If Tenant fails to elect to
lease any First Offer Space included in any Landlord's notice under
Section 9.1, Landlord may, for a period of six (6) months thereafter,
lease such space to any third party for a base rental rate not more
favorable to the tenant than the Market Base Rental Rate for the space
as estimated by Landlord in its notice to Tenant. In the event Landlord
does not so lease such space during such period, Landlord shall re-offer
all of such space to Tenant in a notice containing the information
described in Section 9.1, but for a lesser estimated Market Base Rental
Rate than in Landlord's previous notice under Section 9.1 and the First
Offer Right shall apply with respect thereto as provided in this Article
9. If any First Offer Space as to which Tenant has previously declined
to exercise its First Offer Right remains or subsequently becomes
available at the time of subsequent Landlord notices, Tenant shall have
a re-occurring First Offer Right with respect to such space under the
terms of this Article 9.
9.3.3 TERM; RENTAL. Subject only to the Superior Rights
specified in Landlord's offering notice under Section 9.1, the Term as
applicable to First Offer Space shall commence on the date of delivery
of such space to Tenant and shall expire on the same date as the
expiration or earlier termination of this Lease. Base Rental with
respect to First Offer Space shall be at the rate provided in Section
6.1.5. All Rent for any First Offer Space shall commence to accrue from
and after the earlier of (a) the date occurring one hundred twenty (120)
days after the date Landlord delivers such First Offer Space in the
condition required pursuant to Section 9.4, and (b) the date Tenant
actually occupies the First Offer Space for the operation of Tenant's
business.
9.4 CONDITION OF FIRST OFFER SPACE. In the event Tenant exercises a
First Offer Right pursuant to the terms hereof, Tenant shall take all leasehold
improvements located within such First Offer Space on an "as is" basis as of the
date Tenant exercised such First Offer Right, reasonable wear and tear occurring
after exercise excepted, and subject to the existing tenant's rights to remove
any personal property and trade fixtures from the First Offer Space (provided
that all damage resulting from such removal has been properly repaired prior to
the delivery thereof to Tenant).
9.4.1 UNIMPROVED SPACE. If and to the extent that such First
Offer Space has not been improved to at least the Base Building Shell
Condition Requirements, Landlord shall pay Tenant, on the date Rent
commences to accrue with respect to the First Offer Space, a sum equal
to the cost to Tenant of completing such portions of the Floor which
have not been improved to the Base Building Shell Condition
Requirements.
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9.4.2 DAMAGED SPACE. If, at any time prior to delivery of the
First Offer Space, the First Offer Space or any part thereof has been
materially damaged or destroyed by fire or other casualty or cause,
Landlord, at its expense, shall repair and restore the portion so
damaged or destroyed to its condition immediately prior thereto and in
compliance with the Base Building Shell Condition Requirements and all
applicable Legal Requirements, with such alterations as Tenant may
elect, provided that (a) if any such alterations increase the cost of
repairing and restoring the First Offer Space, such excess cost shall be
paid by Tenant, and (b) all Rent for such First Offer Space shall ▇▇▇▇▇
until the earlier of (i) the date provided in Section 9.3.3, or (ii) in
the event such alterations increase the period necessary to repair and
restore the First Offer Space by one hundred twenty (120) days or more,
the date such repair and restoration work would have been completed but
for such alterations. In the event Landlord and Tenant do not agree on
the cost or the excess time necessary to perform such alterations, the
dispute shall be resolved by Arbitration.
9.5 FAILURE TO DELIVER POSSESSION.
9.5.1 Landlord shall indemnify and hold harmless Tenant from
and against any and all Landlord Delay Costs which result from or arise
in connection with the failure to deliver any First Offer Space on the
scheduled delivery date therefor in accordance with the requirements of
this Lease, except to the extent such failure is the result of fire or
other casualty; provided, however, in the case of such a failure, Tenant
shall not incur any of the Landlord Delay Costs described in the clauses
(v) and (w) of the definition thereof unless such failure shall continue
for sixty (60) days or more from the schedule delivery date therefor. In
addition, in the event Landlord does not, for any reason, including
Unavoidable Delay, deliver the First Offer Space within ninety (90) days
after the scheduled delivery date therefor, Tenant may, but shall have
no obligation to, rescind its exercise of said option by delivering
notice thereof to Landlord at any time after the expiration of said
ninety (90) day period and prior to actual delivery of the First Offer
Space in the condition required by this Lease.
9.5.2 Landlord covenants and agrees that it will use best
efforts (including, if requested by Tenant, litigation) to deliver
possession of all portions of each First Offer Space upon the scheduled
delivery date therefor, or, if such is not possible, as soon thereafter
as is reasonably possible.
9.6 LEASE AMENDMENT. Upon exercise of a First Offer Right by Tenant
pursuant to the terms hereof and delivery by Landlord of the applicable First
Offer Space, Landlord and Tenant shall amend this Lease to confirm the addition
of the First Offer Space which Tenant has elected to lease, the date such First
Offer Space was added to this Lease, and the Base Rental rate applicable
thereto, but failure to execute such amendment shall not affect the validity of
such leasing of the First Offer Space.
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9.7 TRANSFER. All of Tenant's rights under this Article shall apply
notwithstanding any assignment of all or any portion of Tenant's interest in
this Lease or any sublease of all or any portion of the Premises, including any
First Offer Space.
10. RIGHT TO REDUCE SPACE
10.1 REDUCTION OPTIONS. Subject to the terms and conditions set forth
herein, Landlord hereby grants to Tenant the options (the "Reduction Option(s)")
to reduce from time to time the Rentable Area of the Premises (the amount of
space available for reduction at any time being referred to herein as the
"Reduction Space") as follows:
10.1.1 FIRST REDUCTION OPTION. By up to one hundred thousand
(100,000) square feet of Rentable Area by notice given to Landlord at
any time during the Term on or after the sixth (6th) and prior to the
tenth (10th) anniversary of the Commencement Date (the "First Reduction
Option");
10.1.2 SECOND REDUCTION OPTION. By up to an amount of Rentable
Area equal to the sum of (a) one hundred thousand (100,000) square feet
of Rentable Area, plus (b) any amount (not to exceed fifty thousand
(50,000) square feet of Rentable Area) of the Reduction Space available
under the First Reduction Option which was not exercised by Tenant, by
notice given to Landlord at any time during the Term on or after the
tenth (10th) anniversary of the Commencement Date (the "Second Reduction
Option");
10.1.3 THIRD REDUCTION OPTION. By up to the entire Rentable
Area of the Retail Premises by notice given to Landlord at any time
during the Term on or after the fourth (4th) and prior to the fifth
(5th) anniversary of the Commencement Date (the "Third Reduction
Option"); and
10.1.4 FOURTH REDUCTION OPTION. By up to the entire Rentable
Area of the Retail Premises by notice given to Landlord at any time
during the Term on or after the ninth (9th) and prior to the tenth
(10th) anniversary of the Commencement Date (the "Fourth Reduction
Option").
10.2 REDUCTION SPACE. Tenant may exercise its Reduction Options with
respect to any or all of the Reduction Space in any instance, and may exercise
such options any number of times during the applicable periods. The size,
configuration and location of the portions of the Reduction Space, if any,
surrendered by Tenant shall be determined by Tenant in its sole discretion at
the time of an exercise of the subject Reduction Option. Without limitation to
the foregoing, the Reduction Space surrendered by Tenant may include any space
on a number of Floors of the Premises, whether or not contiguous, provided that
(a) to the extent Tenant occupies the entire Rentable Area on a particular Floor
(other than Floors Two (2), Three (3) or any Mechanical Floor), and Tenant
elects to surrender space on such Floor, then
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Tenant shall surrender all of the Rentable Area on such Floor, and (b) to the
extent (i) Tenant occupies space on Floors Two (2) or Three (3), (ii) Tenant
occupies less than the entire Rentable Area on a particular Floor, or (iii) the
amount of Rentable Area of Reduction Space remaining available under either the
First Reduction Option or the Second Reduction Option is less than the entire
Rentable Area on a particular Floor, Tenant may exercise the subject Reduction
Option, if at all, as to all or any portion of the then-existing Premises
then-located on such Floor, provided that the space not leased by Tenant on any
such partial Floor shall be capable of being configured so as to make the same
reasonably leasable.
10.3 EXERCISE. Tenant may exercise the Reduction Options from time to
time by giving Landlord written notice of its intent to do so, which notice
shall (a) designate the Reduction Space as to which Tenant is exercising its
Reduction Option, and (b) state a date (the "Reduction Date"), not sooner than
twelve (12) months in the case of the First Reduction Option and the Second
Reduction, or eighteen (18) months in the case of the Third Reduction Option and
the Fourth Reduction Option, from the date of the notice, on which Tenant will
surrender such space to Landlord.
10.4 UNAMORTIZED COSTS OF TENANT WORK. If Tenant exercises any
Reduction Option with respect to any portion of the Initial Premises with a
Reduction Date prior to the end of the Initial Term, then Tenant shall pay to
Landlord on or before the Reduction Date an amount equal to the unpaid principal
balance as of the Reduction Date based on the amortization of the amount paid by
Landlord on account of the Tenant Work with respect to the Initial Premises so
included in the Reduction Space pursuant to clause (a) or (b), as applicable, of
the first sentence of Section 3.6 of EXHIBIT D, over the period of the Term
commencing on the date Tenant's obligations to pay Rent with respect to the
subject Reduction Space commences and ending with the last month of the original
Term provided in Section 4.1, together with interest at an assumed rate of nine
percent (9%) per annum, assuming equal monthly installments of principal and
interest payable in advance on the first day of each month commencing with the
month in which such Rent commencement occurs.
10.5 SURRENDER. On the Reduction Date, Tenant shall surrender the
designated Reduction Space to Landlord in the condition required by Section 15.4
of this Lease. In addition, in connection with such surrender Tenant shall (a)
construct any walls necessary to separately demise the Reduction Space from the
remainder of the Premises (provided that such wall at Tenant's option may be
constructed with metal studs with one (1) layer of five-eighths inch (5/8")
gypsum wall board on one (1) side of such wall (facing the Reduction Space) from
the finished floor to the ceiling deck), and (b) cut and cap any portion of the
Building Systems providing Services exclusively to the applicable Floor so as to
physically separate such Building Systems between the Reduction Space and the
remainder of the Premises. Except as may be required under the other terms and
conditions of this Lease, neither Landlord nor Tenant shall be required to
perform any other improvements or work of any kind in connection with such
surrender, including any ceiling or other above-the-ceiling work, and shall not
be required to reconfigure any Building Systems in any other manner,
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including so as to efficiently serve either the Reduction Space or the remainder
of the Premises, or to comply with any Legal Requirements. From and after the
Reduction Date, the designated Reduction Space shall no longer be included in
the Premises, and Tenant shall have no further obligations with respect thereto,
including as to the payment of Rent or other fees, charges or costs with respect
thereto.
10.6 RELATION TO FIRST OFFER RIGHTS. Notwithstanding anything
apparently to the contrary in this Lease, any Reduction Space surrendered by
Tenant pursuant to this Article 10 shall not be considered First Offer Space
under Article 9 for a period of one (1) year after the Reduction Date with
respect to such space. During such one (1) year period Landlord may lease such
space to any party or parties, and on such terms and conditions, as Landlord may
select in its discretion. Except as provided in this Section 10.6, the exercise
of any Reduction Option and the surrender of space pursuant thereto shall not
have any effect on Tenant's rights under this Lease, including the First Offer
Right and the Expansion Option.
10.7 LEASE AMENDMENT. Upon exercise of a Reduction Option by Tenant
pursuant to the terms hereof, Landlord and Tenant shall amend this Lease to
confirm the applicable reduction of the Premises and the date of such reduction,
but failure to execute such amendment shall not affect the rights or obligations
of the parties under this Article 10.
10.8 TRANSFER. All of Tenant's rights under this Article shall apply
notwithstanding any assignment of all or any portion of Tenant's interest in
this Lease or any sublease of all or any portion of the Premises.
11. PARKING RIGHTS
11.1 PARKING RIGHTS. Landlord hereby agrees to make available to
Tenant (or, if Tenant elects, Tenant's designees) from and after the Base
Building Completion Date and thereafter through the Term, parking spaces in the
private parking (as opposed to transient parking) portion of the Parking Garage
upon the terms and conditions provided in this Article 11.
11.2 ADJUSTMENT; ALLOCATED SPACES. The number of parking spaces from
time to time allocated to Tenant shall be the lesser of (a) one (1) parking
space for each two thousand three hundred (2,300) square feet of Rentable Area
from time to time in the Premises, or (b) three hundred (300) parking spaces.
The number of parking spaces so allocated to Tenant shall be adjusted
concurrently with each adjustment to the size of the Premises (including
pursuant to Section 2.1 or Articles 8, 9 or 10), such that any enlargement or
reduction in the size of the Premises shall result in a corresponding increase
or decrease in the number of parking spaces allocated to Tenant, calculated by
applying the ratio set forth in clause (a) of the preceding sentence (i.e., one
space for each two thousand three hundred (2,300) square feet of Rentable Area)
to the number of square feet of Rentable Area in the Premises, as so enlarged or
reduced. Tenant's election to surrender or reduce any parking spaces shall not
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affect its right to obtain additional parking spaces in connection with any
subsequent enlargement of the Premises. Spaces allocated to Tenant pursuant to
this Section 11.2 shall be referred to as "Allocated Spaces". Notwithstanding
anything apparently to the contrary in this Article 11, during the period
occurring between the Base Building Completion Date and the Commencement Date,
Tenant shall be obligated to take and pay for, and Landlord shall make available
to Tenant and its designees upon five (5) days' prior notice from Tenant, only
such portion of the Allocated Spaces (not in excess of the number allocated in
Section 11.1) as Tenant in its sole discretion shall from time to time deem
necessary for its occupancy and use of the Premises during such period,
including in connection with the performance of the Tenant Work. Such
"phased-in" use of the Allocated Spaces shall not limit or affect any of
Tenant's allocation or rights under this Article 11 and shall not be deemed to
be a surrender of any parking spaces.
11.3 SURRENDER; ADDITIONAL SPACES. Notwithstanding the allocations of
Allocated Spaces pursuant to Section 11.2, Tenant shall have the right at any
time and from time to time from and after the Base Building Completion Date upon
not less than thirty (30) days' prior notice to Landlord to surrender its rights
to any parking spaces and to add parking spaces on an "as available" basis. If
no spaces are available at the time of any request for spaces by Tenant, Tenant
shall be placed on a waiting list with other Building Occupants desiring parking
spaces which shall be administered on a "first come, first served" basis; except
that Tenant shall have first priority over any party other than Building
Occupants, and Landlord shall terminate any parking contracts with any such
other parties should Tenant desire to add parking spaces. Spaces taken by Tenant
pursuant to this Section 11.3 shall be referred to as "Additional Spaces".
11.4 RESERVED SPACES. At Tenant's election, up to twenty percent
(20%) of the total of the Allocated Spaces at any time during the Term shall be
reserved and posted for particular users in locations reasonably approved by
Tenant, and Tenant shall have the first priority as to the location and
selection of such reserved spaces. Landlord shall be responsible, at its
expense, for posting such spaces (including changing the names of the posted
users as from time to time requested by Tenant), and shall use all reasonable
efforts to enforce the exclusivity of such spaces (which efforts shall include,
at Tenant's request, moving the offending vehicles without charge to Tenant or
the posted user).
11.5 FEES. Tenant (or the holder of a particular parking permit)
agrees to pay to Landlord on the first day of each calendar month during the
Term a monthly fee for each parking space (including each reserved space): (a)
in the case of Allocated Spaces, in the gross amount of (i) from the Base
Building Completion Date through the day prior to the eighth (8th) anniversary
of the Commencement Date, Two Hundred Twenty-Five Dollars ($225) per month (net
of sales, use or similar taxes); (ii) from the eighth (8th) anniversary of the
Commencement Date through the remainder of the Initial Term, Two Hundred Fifty
Dollars ($250) per month (net of sales, use or similar taxes); and (iii) during
any Extension Term(s), ninety percent (90%) of market rate, and (b) in the case
of Additional Spaces, market
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rate. For purposes of this Article 11, "market rate" shall be the current market
rates charged for similar parking spaces from time to time by the operators of
comparable parking facilities located in the central business district of
Minneapolis, Minnesota, but in no event in excess of the lesser of (a) the
rental rate generally charged on a contract basis to other Building Occupants
(or their designees), or (b) the lowest monthly rate charged to members of the
general public for parking spaces in the Parking Garage. In the event Landlord
and Tenant do not agree on such market rate, such dispute shall be resolved by
Arbitration. Such market rate shall be determined in the manner and in
connection with the determination of Market Base Rental Rate for the subject
Extension Term, Expansion Space or First Offer Space, if applicable.
11.6 OPERATING COSTS. For each full or partial calendar year
occurring during the period of the Term occurring from the fifth (5th)
anniversary of the Commencement Date through the remainder of the Initial Term
(the "Additional Parking Charge Period"), Tenant shall pay to Landlord, in
addition to the monthly fees payable under Section 11.5, a contribution on
account of the excess costs of operating the Parking Garage (the "Additional
Parking Charge") equal to the product obtained by multiplying (a) Landlord's
actual, documented out-of-pocket costs in operating the Parking Garage and the
ad valorem taxes, assessments and other governmental imposts payable with
respect thereto (exclusive of any ▇▇▇▇-up, or any management or other fees or
any item of cost which is of the kind excluded from Operating Expenses or Real
Property Taxes under Sections 7.2.2, 7.2.3 or 7.5)for each such calendar year or
portion thereof (the "Additional Parking Expenses"), to the extent such
Additional Parking Expenses exceed the average total amount of such Additional
Parking Expenses incurred during the periods occurring from the third (3rd)
anniversary through the fourth (4th) anniversary and from the fourth (4th)
anniversary through the fifth (5th) anniversary, by (b) a fraction, the
numerator of which is the average number of Allocated Spaces leased by Tenant
during the applicable calendar year or portion thereof (which shall be
calculated by adding the number of Allocated Spaces leased by Tenant during each
month of such year and dividing the total by twelve(12)) and the denominator of
which is the total number of parking spaces located in the Parking Garage.
Landlord shall deliver Tenant annual statements of Additional Parking Charge for
each such calendar year or portion thereof at the time and in the manner
provided in Section 7.3 with respect to Actual Operating Expenses, and Tenant
shall pay the Additional Parking Charge on an annual basis within thirty (30)
days after receipt of such annual statement. Tenant shall have the same dispute
and audit rights with respect to the Additional Parking Expenses and such
statements of Landlord as provided in Article 7 with respect to Operating
Expenses and Real Estate Taxes.
11.7 AFTER HOURS PARKING. In addition to the Allocated Parking and
the Additional Parking, Landlord shall provide Tenant with the lesser of (a) one
(1) space for each two thousand three hundred (2,300) square feet of Rentable
Area from time to time included in the Premises, or (b) three hundred (300)
parking spaces, for after hours parking at a rate of Two and No/100 Dollars
($2.00) per space per day (net of sales, use or similar taxes) and/or
Twenty-Five and No/100 Dollars ($25.00) per space per month (net of sales, use
or similar
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taxes) during the entire Term. Such after hours parking shall be available from
4:00 p.m. to 6:00 a.m., Monday through Friday, and all day on Saturdays, Sundays
and holidays of the New York Stock Exchange. Tenant shall advise Landlord from
time to time upon not less than one (1) business day telephone notice to
Landlord's property manager of the number of such after hours spaces Tenant
shall desire for a particular after hours period.
11.8 SECURE PARKING AREA. All parking spaces designated for Tenant's
use pursuant to this Article 11 shall be located in a secure area for contract
parkers which is separate from any portions of the Parking Garage which are
available for the use of the general public or otherwise made available on a
transient basis. Access to such area from all areas (including the exterior of
the Building Common Areas and other portions of the Parking Garage) shall be
controlled by a separate card key or a similar access control system acceptable
to Tenant in its discretion.
11.9 PERMITS INDEPENDENT OF LEASE. All permits for parking spaces
issued pursuant to this Article 11, whether issued to Tenant or its designees,
shall constitute an obligation of the holder of each such permit independent of
this Lease, and, subject to Section 19.4 as to which Landlord, Tenant and any
such designee shall have the benefit, no default thereunder by Landlord or the
holder of such permit or liability with respect thereto shall affect this Lease
or any of Landlord's or Tenant's rights or obligations hereunder, provided that
Landlord may terminate any individual permit for default thereunder in
accordance with the provisions thereof, provided that it shall first have given
notice of such default to Tenant and an opportunity to cure the same (but
without obligation to do so) within ten (10) days thereafter. The form of
parking contract, if any, utilized by Landlord with respect to such permits
shall be subject to Tenant's approval, which approval shall not be unreasonably
withheld so long as such form is consistent with this Lease.
11.10 TRANSFER. All of Tenant's rights under this Article at Tenant's
option shall be fully or partially transferable in connection with any
assignment of all or any portion of Tenant's interest in this Lease or any
sublease of all or any portion of the Premises.
11.11 SUBLEASING. Tenant and its designees shall have the right from
time to time to sublease any of its rights to parking spaces on such terms as
Tenant shall desire in its discretion.
12. STORAGE SPACE
12.1 STORAGE RIGHTS. Landlord hereby agrees to make available to
Tenant from and after the Base Building Completion Date, and thereafter through
the Term, five thousand (5,000) square feet of Usable Area of storage space in a
location within the Building reasonably acceptable to Tenant upon the terms and
conditions provided in this Article 12.
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12.2 ADJUSTMENT; ALLOCATED STORAGE SPACE. The amount of storage space
allocated to Tenant shall be adjusted concurrently with each adjustment in size
of the Premises (including pursuant to Section 2.1 or Articles 8, 9 or 10), such
that any enlargement or reduction in the size of the Premises shall result in a
corresponding increase or decrease in the amount of storage area allocated to
Tenant, calculated by applying (a) the ratio of five thousand (5,000) to the
number of square feet of Rentable Area in the Premises on the Commencement Date,
to (b) the number of square feet of Rentable Area by which the Premises were
enlarged or reduced. Tenant's election not to surrender or reduce any storage
space shall not affect its right to obtain additional storage space in
connection with any subsequent enlargement of the Premises. Storage space
allocated to Tenant pursuant to this Section 12.2 shall be referred to as
"Allocated Storage Space". Notwithstanding anything apparently to the contrary
in this Article 12, during the period between the Base Building Completion Date
and the Commencement Date, Tenant shall be obligated to take and pay for, and
Landlord shall make available to Tenant, only such portion of the Allocated
Storage Space (not in excess of the amount provided in Section 12.1) as Tenant
in its sole discretion shall from time to time deem necessary for its use and
occupancy of the Premises during such period, including in connection with the
performance of the Tenant Work. Such "phased-in" use of the Allocated Storage
Space shall not limit or affect any of Tenant's allocation or rights under this
Article 12 and shall not be deemed to be a surrender of any storage space.
12.3 SURRENDER; ADDITIONAL STORAGE SPACE. Notwithstanding the
allocation of storage space pursuant to Section 12.2, Tenant shall have the
right at any time and from time to time from and after the Base Building
Completion Date upon not less than ninety (90) days' prior notice to Landlord to
surrender any portion of the leased storage space and upon not less than thirty
(30) days' notice to add to its then-leased storage space on an "as available"
basis. If no storage space is available at the time of any request for space by
Tenant, Tenant shall be placed on a waiting list which shall be administered on
a "first come, first served" basis. Storage space taken by Tenant pursuant to
this Section shall be referred to as "Additional Storage Space".
12.4 FIRST OFFER RIGHT. Tenant shall have a right of first offer with
respect to storage space in the Building, which shall be administered in
accordance with the provisions of Article 9. Storage space taken by Tenant
pursuant to this Section 12.4 shall be referred to as "First Offer Storage
Space".
12.5 RENT. Tenant shall pay as a gross annual rent for Allocated
Storage Space and Additional Storage Space: (a) from the Base Building
Completion Date through the day prior to the eighth (8th) anniversary of the
Commencement Date, [***] per square foot of Usable Area; (b) from the eighth
(8th) anniversary of the Commencement Date through the remainder of the
Initial Term; [***] per square foot of Usable Area; and (c) during any
Extension Term(s), ninety percent (90%) of the market gross rental rate for
such storage space. Tenant shall pay as gross rental for any First Offer
Storage Space the market rental rate for such space. Such gross annual rent
shall
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be payable in twelve (12) equal monthly installments of one-twelfth (1/12) of
the gross annual amount on the first day of each calendar month during the Term.
For purposes of this Article, "market gross rental rate" shall be determined
under the standards and taking into account the factors to be used in
determining Market Base Rental Rate, but in no event in excess of the gross
rental rate generally charged on a contract basis to other Building Occupants
(or their designees). Such market gross rental rate shall be determined in the
manner and in connection with the determination of Market Base Rental Rate for
the subject Extension Term, if applicable, with any disputes as to such market
gross rental rate being resolved by Arbitration.
12.6 SIZE; CONDITION. Except with respect to First Offer Storage
Space, all storage space shall be provided to Tenant in blocks of not less than
one thousand (1,000) square feet of Usable Area. All storage space shall be
delivered to Tenant with a clear ceiling height of not less than eight feet
(8'), walls consisting of one (1) layer of five-eighths inch (5/8") gypsum board
on each side of metal studs or cement or masonry, one 36" lockable entry door
with lockset and keys for each entry to such storage space, lighting providing
approximately fifty (50) foot candles of illumination throughout the space, and
incidental HVAC service to prevent freezing, moisture or dampness, and, in any
event, all storage space shall be fire-rated and be provided with fire
suppression systems sufficient under Legal Requirements for storage to the
maximum extent permissible under Legal Requirements of records, files, papers,
furniture, equipment and other materials normally associated with general office
use. Landlord shall have no further obligation with respect to the construction
or build out of such space.
12.7 INCORPORATION OF WAIVER. The provisions of Section 19.4 shall
apply with full force and effect to any storage space leased by Tenant.
12.8 AUXILIARY ROOMS. Landlord hereby agrees to make available to
Tenant from and after the Base Building Completion Date, and thereafter through
the Term at no rent, cost or expense to Tenant (except as provided below), rooms
consisting of (a) five hundred (500) square feet of Usable Area on Floor Three
(3) for the location, installation and use of Tenant's stand-by generator, (b)
seven hundred fifty (750) square feet of Usable Area on Floor Parking Level One
(P1) of the Building for the location, installation and use of Tenant's
communications major point of presence, and (c) three hundred twenty-five (325)
square feet of Usable Area on Floor Parking Level One (P1) of the Building for
the location, installation and use of Tenant's communications alternate point of
presence, each in the locations respectively specified in the Approved Base
Building Plans and Specifications. Tenant may also use such rooms for storage
space purposes and/or for such other installations relating to Tenant's use of
the Premises as Tenant shall from time to time desire. The provisions of
Section 12.3 (with respect to surrender only), 12.5 (with respect to the room
described in clause (a) above only), 12.6, 12.7, and 12.9 shall apply to such
auxiliary rooms in the same manner as they apply to Allocated Storage Space.
Without limitation to the other requirements of this Lease, Landlord also shall
provide throughout the Term at no rent, cost
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or expense to Tenant, space for Tenant's fiber optics hub in the communications
major point of presence room for the Building on Floor Parking Level One (P1).
12.9 TRANSFER. All of Tenant's rights under this Article at Tenant's
option shall be fully or partially transferable in connection with any
assignment of all or any portion of Tenant's interest in this Lease or any
sublease of all or any portion of the Premises.
13. SERVICES
13.1 GENERAL SERVICES. Landlord shall cause public utilities or other
entities to furnish the electricity, gas, steam, water and other utilities
utilized in operating any and all Building Systems. In no event shall Landlord
(a) grant to any party the exclusive right to provide any service or utility
(other than steam) to the Building or to Building Occupants, (b) charge any
provider of any service or utility which Landlord is obligated to provide under
this Article 13 any fee or sum whatsoever for access to the Building or any
portion thereof, or (c) impose upon any provider of any service or utility to
the Building or to Building Occupants any other barriers to entry or limitations
on competition (including limitations which are not uniformly imposed upon all
service or utility providers), in any event without Tenant's consent, which may
be given or withheld in Tenant's sole discretion. Tenant shall have the right to
select the providers of any services and utilities (other than steam) to Tenant
or the Premises in its sole discretion. Landlord shall not extend any of the
services described in Section 13.2 to any entities or parties whatsoever other
than Tenant and other Building Occupants without Tenant's consent, which may be
given or withheld in Tenant's sole discretion.
13.2 SERVICES TO THE BUILDING AND THE OFFICE SPACE. Landlord shall at
all times operate, repair, replace and maintain all Building Systems, and shall
provide to the Premises and other portions of the Building during such days and
hours as shall from time to time be commensurate with the Minimum Building
Standards (except as otherwise provided below), at Landlord's expense (subject
to Article 7), the facilities, utilities and services provided in this Section
13.2 (collectively, "the Services"), all in accordance with: (a) the greater
specifications and performance standards provided in the Base Building Shell
Condition Requirements or the Approved Base Building Plans and Specifications,
if applicable, (b) the Minimum Building Standards (subject to Permitted Physical
Limitations), (c) such higher standards and additional hours as Tenant from time
to time shall reasonably require (subject to Permitted Physical Limitations),
and (d) such additional requirements as shall be provided below. In the event
(y) Landlord provides Services to a standard higher than, or during hours in
addition to, those otherwise required by this Section 13.2 solely as a result
and during the continuance of a Tenant requirement under clause (c) above (which
requirement Tenant may withdraw from time to time in its sole discretion), and
(z) such Services are provided either to the Common Areas or are of the nature
that they must be provided to the leased premises of other Building Occupants
without the agreement of such other Building Occupant, then for purposes of
Section 7.2.5 such Services shall be deemed to have been provided
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disproportionately to the Premises and to the premises of any other Building
Occupant who has requested or agreed to receive such disproportionate Services.
13.2.1 HEATING, VENTILATING AND AIR CONDITIONING. HVAC and
related services as follows: central ventilation, heat and air
conditioning in season, at such times, and at temperatures and humidity
and in amounts described in EXHIBIT G and to the standards provided
above (subject, however, to modification in hours of operation,
temperatures or otherwise to the extent required to comply with Legal
Requirements or the mandatory requirements of the applicable public
utility). Landlord shall provide HVAC at times other than Normal
Business Hours on request of Tenant, at rates equivalent to Landlord's
actual, documented out-of-pocket costs of providing such service
(without any ▇▇▇▇-up or management fee). In the event of any
interruption or shortfall in such services, Landlord shall provide the
services to the extent available to the Premises on a first priority
basis.
13.2.2 ELEVATORS. Non-exclusive public elevator service by all
elevators serving the Floors on which any portion of the Premises are
situated during Normal Business Hours (and by at least two (2) passenger
elevators after Normal Business Hours), and freight elevator service by
at least two (2) freight elevators serving all Floors on which any
portion of the Premises are situated during Normal Business Hours (and,
without additional expense to Tenant, after Normal Business Hours if
scheduled with Landlord). Tenant at its request shall have the exclusive
right to use one (1) such freight elevator during Normal Business Hours,
and upon such request Tenant shall confine its freight elevator use to
the freight elevator dedicated to Tenant's use. Upon not less than two
(2) days' notice to Landlord, Tenant also shall have the exclusive right
to use the freight elevators during the hours of 6:00 a.m. to 8:00 p.m.
on any weekends during which Tenant desires to move into or out of the
Premises or any portion thereof; provided, however, after Tenant's
initial occupancy of the entire Premises, any such exclusive use shall
be subject to any other freight elevator uses previously scheduled by
other Building Occupants of which Landlord notifies Tenant promptly
following such notice by Tenant.
13.2.3 LIGHT BULBS. Building standard lamps and ballasts and all
replacements thereto in the Premises, and all lamps and ballasts and
replacements thereof in all portions of the Common Areas (including all
Skyways, elevator lobbies, toilet and restroom areas and stairwells).
All such lamps, ballasts, and replacements at all times shall be owned
by Landlord and shall be in conformance with the Base Building Shell
Condition Requirements.
13.2.4 BUILDING SECURITY. Uniformed guards and/or equipment on a
twenty-four (24) hour-per-day, seven (7) day-per-week basis to maintain
security for the Building to the standards provided above. Building
security staff will provide off-site escort services to all locations
within a reasonable distance of the Building. Landlord
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shall provide as a part of the Base Building Work one (1) common
security desk for the Building, at which Tenant may from time to time
station a security guard or visitor check-in attendant. Without
limitation to Landlord's obligations, Tenant shall have the right at its
expense from time to time (a) to provide its own security personnel
within the Premises or within any elevator bank occupied solely by
Tenant, (b) to connect to the Building's security systems its security
personnel and any security equipment installed by Tenant in connection
with the Tenant Work and, provided there is sufficient capacity, any
additional security equipment installed after the Commencement Date, and
(c) subject to the requirements of Article 15, to install security
equipment and installations in the Common Areas.
13.2.5 CLEANING SERVICES; TENANT RIGHT TO PROVIDE OWN CLEANING
SERVICES; RECYCLING. Janitorial and cleaning services (including garbage
collection and removal, cleaning, and supply of restroom facilities, and
maintenance and cleaning of kitchen areas and break rooms, on each Floor
of the Building on which any part of the Premises is situated and
exterior window washing) in accordance with EXHIBIT H and to the
standards provided above, except in those portions of the Premises, if
any, designated by Tenant from time to time as not requiring janitorial
and cleaning services or as only requiring partial janitorial and
cleaning services. Tenant shall have the right at any time and from time
to time, upon at least sixty (60) days' prior notice to Landlord (or
thirty (30) days' notice if Tenant agrees to pay any reasonable penalty
payable by Landlord to its cleaning contractor which is due and payable
as a result of such notice being less than sixty (60) days) to provide
its own janitorial and cleaning service to all or any part of the
Premises constituting either the entire Rentable Area leased by Tenant
on a particular Floor or an area designated by Tenant as a high security
area, either through its own employees or through independent
contractors of Tenant's selection. Tenant shall have the further right,
upon at least sixty (60) days' prior notice, to require Landlord to
resume providing such service to any part of the portion of the Premises
as to which Tenant is then providing such service, whereupon Landlord
shall resume furnishing janitorial service to said portion of the
Premises. In negotiating with its cleaning contractor Landlord will
endeavor to minimize notice periods and penalties, and in the event the
cleaning contractor is an Affiliate or a subsidiary of Landlord, the
costs for such cleaning services shall be competitive with the then
prevailing rates for services rendered by persons or entities of similar
skill, competence and experience and, in any event, no penalty shall be
payable by Tenant with respect to the election to provide or discontinue
Tenant's own janitorial service. At any time when Tenant is providing
its own janitorial service, an appropriate reduction (based on
Landlord's cost savings) shall be made in Tenant's Estimated Operating
Expense Contribution and Tenant's Operating Expense Contribution.
Landlord shall implement and maintain a recycling program for the
Building and all Building Occupants, which program shall include,
without limitation, providing recycling receptacles for most paper in
all private offices and break, computer, conference, copy and other
service rooms, as well as receptacles for newspapers, glass,
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magazines, plastic and other recyclables in all break rooms and
kitchen areas, and removal and recycling of the same. Tenant shall use
reasonable efforts to cause its employees to cooperate with such
program.
13.2.6 GENERAL MAINTENANCE. Maintenance and cleaning of the
Building, all Common Areas, the Building exterior and landscaped and
other areas in and around the Building; and adequate pest control for
the Building.
13.2.7 SKYWAYS. The Skyways during at least the hours of 6:30
a.m. to 10:00 p.m., Monday through Saturday, and 10:00 a.m. to 6:00 p.m.
on Sundays and Holidays, and during such other times of day and on such
hours as any of the retail business located on Floors One (1) or Two (2)
of the Building are open for business; provided, however, to the extent
(a) any skyway agreement entered into prior to the date of this
Agreement for a particular Skyway (other than with respect to the
LaSalle Passageway) does not require such Skyway to be open to such
extent, and (b) the owner of the other Building connected to such Skyway
does not keep the passageways of its building open to such extent,
Landlord shall be obligated only to keep such Skyway open only to the
greater extent of the agreement described in clause (a) or the hours
observed by such other owner in clause (b).
13.2.8 ELECTRICAL FACILITIES. Electrical capacity (at the risers
in the Building's core) for each Floor within the Premises.
13.2.9 DIRECTORY. The building directories described in Article
37.
13.2.10 SHUTTLE SERVICE. At Tenant's direction and expense, a
shuttle service for the exclusive use of Tenant, its personnel and
employees and other persons designated from time to time by Tenant from
the Building to remote parking ramps and other selected locations in
downtown Minneapolis shall be made available by Landlord in a manner
acceptable to Tenant.
13.2.11 EXHAUST DUCT. The base building general exhaust duct.
13.2.12 BUILDING RISERS. The general utility and service risers
in the Building core and basement levels.
13.2.13 WATER. Water for lavatory and drinking purposes to be
drawn from the public lavatory in the core of each Floor of the Building
on which the Premises are located. Landlord agrees to provide two water
coolers per Floor in the locations specified in the Approved Base
Building Plans and Specifications.
13.2.14 OTHER COMMON AREAS. The other Common Areas from time to
time existing at the Building.
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13.2.15 OTHER SERVICES. Such other facilities, utilities and
services as shall be (a) required by Base Building Shell Condition
Requirements or the other requirements of this Lease, (b) necessary to
meet the Minimum Building Standard (subject to Permitted Physical
Limitations), and (c) reasonably requested by Tenant from time to time
(subject to Permitted Physical Limitations).
The facilities, services and utilities shall be in addition, and not by way of
limitation, to the utilities and services to be provided by Landlord during the
performance of the Tenant Work as provided in EXHIBIT D.
13.3 INTERRUPTION IN SERVICES. Except as expressly provided below or
as otherwise provided in this Lease, failure by Landlord to furnish any of the
facilities, utilities or services required to be provided by Landlord hereunder,
or any cessation in the furnishing of same, shall not render Landlord liable in
any respect for damages, nor be construed as an eviction by Landlord, nor work
an abatement of rent, nor relieve Tenant from fulfillment of any covenant or
agreement hereunder; provided that in any such event Landlord shall exercise
best efforts to remove the cause of the failure or cessation and restore the
service promptly. If for any reason or cause of any kind or nature whatsoever,
other than any governmentally mandated energy or utility conservation program or
any damage to the Premises or the Building or Building Systems caused by Tenant
willfully, the Premises or any part thereof shall become untenantable as a
result of any such failure or cessation and such condition shall continue for at
least three (3) full consecutive business days after Tenant shall notify
Landlord of such condition, then all Rent shall ▇▇▇▇▇ as to such untenantable
portion from, after and including the later of (a) the inception of such
condition, or (b) the date occurring ten (10) days prior to the commencement of
such three (3) day period, until such time as the same becomes tenantable again,
provided that if Tenant shall, or could without unreasonable adverse effect on
Tenant's operations, continue to occupy and use such untenantable portion of the
Premises such Rent shall ▇▇▇▇▇ only to the extent fair and equitable under the
circumstances. In the event that more than one-fourth (1/4) of the Rentable Area
in the Premises is rendered untenantable as a result of any such failure or
cessation and such condition shall continue for more than one hundred eighty
(180) days for any reason other than any governmentally mandated energy or
utility conservation program or damage by fire or other casualty not caused by
Landlord or Tenant willfully, Tenant shall have the right to cancel this Lease
as to either the entire Premises or the portion rendered untenantable provided
notice of such cancellation is given to Landlord prior to the entire Premises
being rendered tenantable. Without limiting the generality of the term
"untenantable," any portion of the Premises (y) which is not in whole or in part
served with any facilities and services which are required to be provided by
Landlord under this Lease and which are reasonably necessary to the operation of
Tenant's business from the Premises, or (z) the practical use and enjoyment of
which by Tenant for the purposes set forth in Section 3.1 shall be materially
adversely effected by reason of or in connection with the interruption or
cessation of any such facilities, utilities,
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or services, shall be deemed to be untenantable regardless of whether Tenant
continues to occupy and use such Floor or any portion thereof.
13.4 ACCESS, KEYS AND LOCKS. Landlord will provide as part of Base
Building Work equipment acceptable to Tenant to limit access to the Building
after Normal Business Hours. Subject to the other terms and conditions of this
Lease, Landlord will provide Tenant with access to the Premises, twenty-four
(24) hours a day, seven (7) days per week. Landlord shall, without cost to
Tenant, also provide to Tenant security cards or other devices necessary to gain
access to the Building, Floors on which the Premises are located, the Parking
Garage and areas of the Building where any storage space is located, in number
not less than the number from time to time of employees of Tenant or its
Affiliates. Any lost, stolen or misplaced cards shall be replaced by Landlord at
Tenant's expense. Tenant may install its own locks on any door of the Premises,
in which event Tenant shall supply Landlord with a complete set of keys to such
locks; provided that with respect to high security areas of the Premises,
Landlord shall not have its own keys but may, in an emergency situation where in
Landlord's good faith judgment immediate entry is required to prevent or
minimize serious personal injury, death or property damage, use force to gain
entry into such areas, and Landlord shall not be liable to Tenant for damages
resulting from such use of force. Upon termination of this Lease, Tenant shall
surrender to Landlord all keys to any locks on doors entering or within the
Premises, and give to Landlord an explanation of the combinations of all locks
for safes, safe cabinets and vault doors in the Premises.
13.5 GRAPHICS. Without limitation to Tenant's rights under Section
36.1, at Tenant's request, Landlord shall provide and install, at Tenant's cost,
all letters (designating the name of Tenant) and/or numerals (designating the
suite number) on entrance doors to the Premises, and all such letters and
numerals shall be in the Building standard graphics.
14. CONDITION OF PREMISES
Tenant acknowledges that, except as provided in this Lease, Landlord and
its agents have made no representation or warranty with respect to the
suitability or fitness of the Premises or the Building for the conduct of
Tenant's business.
15. ALTERATIONS; REMOVAL OF TRADE FIXTURES
15.1 ALTERATIONS, ADDITIONS, MODIFICATIONS. Except as specifically
provided in this Lease (including EXHIBIT D), Tenant may make any alterations,
additions or modifications to the Premises, or its leasehold improvements in the
Premises, deemed appropriate by Tenant without any consent or approval by
Landlord, except that:
15.1.1 COSTS OVER $50,000. For any alterations, additions or
modifications costing on an individual basis in excess of Fifty Thousand
Dollars ($50,000) in Constant Dollars (other than cosmetic changes to
finish work, such as painting, wallpaper, floor coverings and the like),
Tenant shall provide to Landlord a prior
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written notification of the action contemplated by Tenant (provided that
Tenant need not obtain Landlord's consent for such alterations,
additions or modifications unless otherwise required hereunder);
15.1.2 PLANS AND SPECIFICATIONS. For any alteration, addition or
modification to be made pursuant to plans and specifications and for
which Landlord's consent is required, Tenant shall deliver to Landlord
at least fifteen (15) days prior to commencement of construction, copies
of then-current plans and specifications; Tenant shall also deliver
within a reasonable time after a request from Landlord, copies of
then-current plans and specifications of any other alterations,
additions or modifications to the extent the same were prepared and are
available.
15.1.3 EFFECT ON EXTERIOR APPEARANCE OF BUILDING. Except as
otherwise expressly permitted under the terms of this Lease (e.g.,
Section 13.2.4, Articles 5, 36, 37, 39 and 40, and EXHIBIT D), Tenant
shall not make any improvements, alterations or additions which are
visible from the public areas of the Building or alter the exterior
appearance of the Building, without Landlord's prior approval, which
approval shall not be unreasonably withheld; and
15.1.4 EFFECT ON STRUCTURE, BUILDING SYSTEMS. Tenant shall not
make any alterations, additions or modifications to the Premises which
adversely affect the structural integrity of the Building or materially
adversely affect the Building Systems, without the prior written consent
of Landlord, which consent shall not be unreasonably withheld so long as
Tenant shall eliminate or compensate for such adverse effect, at
Tenant's sole cost and expense.
If Landlord fails to disapprove such improvement, addition or alteration within
fifteen (15) days after receipt of such plans and specifications, such
improvement, addition or alteration shall be deemed approved by Landlord.
15.2 GENERAL PROVISIONS. Subject to the provisions of Section 15.1,
the following provisions shall apply with respect to all alterations, additions
or modifications made by Tenant in the Premises or to its leasehold
improvements:
15.2.1 MANNER OF WORK. Such alterations, additions or
modifications shall be constructed and completed in a good and
workmanlike manner and in compliance with all Legal Requirements at
Tenant's sole cost and expense, and shall be made, to the extent
reasonably practicable, in such manner and at such times as not to
materially and unreasonably interfere with the use and enjoyment of
other space in the Building by other Building Occupants, and so as not
to unreasonably interfere with normal Building operations or any work
then being done by Landlord (or its contractors) in or on the Building
or parts thereof.
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15.2.2 INDEMNIFICATION. Subject to Section 19.4, Tenant shall
indemnify, protect, defend and hold Landlord harmless from (a) any
claims, suits, damages, loss, cost or expense, including reasonable
attorneys' fees and costs, incurred by Landlord as a result of any
defects in design, materials or workmanship arising from work performed
by Tenant under this Article 15 (provided, however, that Tenant shall
not be responsible for, and is hereby released from and indemnified
against claims resulting from, the use of Tenant's alterations,
improvements or additions by Landlord or any other Building Occupant
after the expiration or earlier termination of this Lease), and (b) any
mechanic's or materialmen's lien or claim thereof arising out of such
work. All materialmen, contractors, artisans, mechanics, laborers and
other parties hereafter contracting with Tenant for the furnishing of
any labor, services, materials, supplies or equipment with respect to
any portion of the Premises are hereby charged with notice that they
must look solely to Tenant for payment for same. Nothing contained in
this Section 15.2.3 shall preclude Tenant from contesting any lien or
claim mentioned herein, so long as Tenant shall bond against same or
otherwise secure such claim to the reasonable satisfaction of Landlord.
15.2.3 INSURANCE. Tenant will carry and maintain, or cause to be
carried and maintained by contractors performing such work, worker's
compensation and liability insurance policies (in amounts and coverage
required by statute in the case of worker's compensation insurance, and
in the case of liability insurance in amounts not in excess of Five
Million Dollars ($5,000,000) in Constant Dollars (except that no
contractor shall be required to carry more than One Million Dollars
($1,000,000) in Constant Dollars)) naming Landlord as an additional
insured, and certified copies of all such policies or certificates
thereof shall be delivered to Landlord prior to commencement of such
work by the contractor in question. Each such policy shall provide that
the same may not be canceled except upon at least ten (10) days' prior
written notice to Landlord.
15.3 TITLE AT END OF LEASE TERM. Any and all additions, alterations,
or improvements to the Premises shall be and remain the property of Tenant at
all times during the Term of this Lease, provided that any of the same which are
not removed by Tenant shall become the property of Landlord upon the expiration
or earlier termination of this Lease.
15.4 SURRENDER OF PREMISES.
15.4.1 CONDITION. Upon the expiration of the Term of this Lease
or the earlier termination hereof, Tenant shall quit and surrender
possession of the Premises to Landlord in as good order and condition as
the Premises hereafter may be improved by Landlord or Tenant, reasonable
wear and tear, repairs which are Landlord's obligation, and damage or
destruction by fire or other casualty or cause or condemnation excepted.
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15.4.2 CONDITION OF PREMISES UPON EXPIRATION OF LEASE.
Notwithstanding the foregoing but subject to the provisions of Article
19, upon the expiration of this Lease Tenant shall not have any
obligation, notwithstanding Section 15.4.3, to patch, repair or replace
finish work such as wallcoverings, paint, carpeting or to patch, repair
or cover holes in the wall, floor or ceiling left by the removal of
Trade Fixtures or other property of Tenant, provided such removal is
accomplished by reasonable means under the circumstances.
15.4.3 REMOVAL OF TRADE FIXTURES, EQUIPMENT, ETC.
Notwithstanding any provisions of this Lease to the contrary but subject
to Article 19, at any time during the Term of this Lease, Tenant shall
at all times own and retain title to and shall have the right to remove
its movable equipment, furniture, furnishings and personal property
placed upon or in the Premises by Tenant, as well as any Trade Fixtures
(hereinafter defined), provided in each and every case:
(a) Such removal is effected without material damage to
the Base Building and, with respect to the Trade Fixtures within
the Premises, such removal is effected by reasonable means under
the circumstances, failing which Tenant, at its expense,
promptly repairs any such damage caused by such removal; and
(b) Any property not removed by Tenant upon the
expiration or sooner termination of the Term and recovery of
possession by Landlord shall thereupon become the property of
Landlord and its sole responsibility, and Tenant shall have no
further obligation in connection therewith, provided that Tenant
in any event shall remove all of its unattached personal
property from the Premises at the end of the Term.
16. REPAIRS
16.1 REPAIRS BY LANDLORD. Except for Tenant's obligations
specifically set forth in Section 16.2, Landlord shall make all repairs and
replacements to and perform necessary maintenance, repair, refurbishing and
replacement work upon the Premises (including all elevator lobbies, restrooms
and ceiling and above-the-ceiling improvements or work, whether included in the
Tenant Work or the Base Building Work) and the Building and all parts thereof,
including the footings, foundations, walls, floors, Building Systems and other
structures and equipment, Common Areas and facilities, the landscaping and all
other exterior improvements, and all other aspects of the Building included in
the Base Building Work necessary to keep the same in accordance with Minimum
Building Standards (subject to Permitted Physical Limitations). Notwithstanding
the foregoing provisions, but subject to the provisions of Section 19.4 and
Articles 20 and 21 below, Tenant shall reimburse Landlord for the reasonable,
documented out-of-pocket costs incurred by Landlord in making any repairs to the
Building which are required as a result of any misuse or neglect of the same by
Tenant or
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any of its officers, agents, employees, contractors or licensees while in or
about the Premises or any other part of the Building.
16.2 REPAIRS BY TENANT. Tenant shall make all repairs and
replacements to and perform necessary maintenance, repair, refurbishing and
replacement work to the aspects of the Premises included in the Tenant Work or
in any alterations, improvements or additions to the Premises performed by
Tenant (other than any elevator lobbies, restrooms, or ceiling and
above-the-ceiling improvements or work which shall be repaired by Landlord
pursuant to Section 16.1) necessary to keep the same in a first class order,
condition and repair.
16.3 FAILURE BY LANDLORD OR TENANT TO REPAIR. If either Landlord or
Tenant fails or refuses to make repairs or replacements as required under this
Lease within thirty (30) days after notice from the other party (and for such
longer period of time as may be reasonably needed to cure such failure or
refusal as long as the failing or refusing party shall promptly undertake to
cure and shall diligently pursue such cure to completion), then the other party
may, at its option but without any obligation to do so, make such repairs or
replacements. The party so failing or refusing to make such repairs and
replacements shall repay to the other party the reasonable documented
out-of-pocket costs thereof (plus ten percent (10%) thereof to cover overhead,
(which overhead charge, to the extent applicable to repairs and replacements
made by any Building maintenance personnel, if paid by Tenant shall reduce
Operating Expenses under Section 7.2.2)) within ten (10) days after receipt of
detailed invoices therefor. If Landlord shall fail to make such payment, Tenant
shall have the right to deduct such costs and overhead from the Rent coming due
under this Lease, in addition to any other right or remedy.
16.4 STANDARDS/CODE COMPLIANCE. Without limitation to any other
provision of this Lease (but subject to the provisions of Section 3.3), Landlord
shall maintain all components and elements of the Building and Premises over
which Landlord has repair responsibility under Section 16.1 (including (but
subject to the provision of Section 3.3) all public and quasi-public areas) at
all times during the Term in compliance with all Legal Requirements (including
the Americans with Disabilities Act), assuming the anticipated density of
occupation and relative proportion of private offices to open floor plan space
provided in Section 2.2.1 of EXHIBIT D; provided, however, that if any such
Legal Requirement shall require a change, alteration or modification to the
Building, Landlord may take advantage of any applicable "grandfathering" or
similar provision which would allow the Building to operate under the previously
existing standard or which would allow Landlord to delay the timing of its
compliance therewith, provided that such delay shall be without damage or risk
to the person or property of Tenant and consistent with Landlord's requirements
to maintain and operate the Building in a manner consistent with the Minimum
Building Standards.
16.5 ELECTRO-MAGNETIC FIELDS. Landlord shall design, maintain and
operate the Building so as to minimize any damage, interruption or disturbance
to the Building Systems, the Services or to the Tenant Work, Tenant's Trade
Fixtures and Tenant's other equipment as
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a result of any electro-magentic fields generated by or as a result of any cause
other than the Tenant Work, Tenant's alterations or improvements, or Tenant's
operations. In the event of any such damage, interruption or disturbance,
Landlord shall promptly use due diligence (consistent with the Minimum Building
Standards, subject to Permitted Physical Limitations) so as to eliminate such
condition.
17. TENANT'S PERSONAL PROPERTY TAXES AND RENT TAXES
17.1 PAYMENT OF PERSONAL PROPERTY TAXES. At least ten (10) days prior
to delinquency, Tenant shall pay all taxes levied or assessed upon any
equipment, furniture and other personal property owned by Tenant and located in
or about the Premises.
17.2 RENT TAXES. Tenant shall indemnify Landlord for 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, the State of Minnesota or
any political subdivision thereof, against Landlord in respect to the Rent
reserved under this Lease; provided, however, Tenant shall have no obligation to
indemnify Landlord for any items included in or excluded from Real Property
Taxes pursuant to Section 7.5; further provided, however, in the event any such
tax is progressive in nature, Tenant's liability therefor shall be limited to
the amount of such tax which would be imposed on the Rent reserved under this
Lease if the only rent earned or payable to Landlord were the rent generated
from the Building.
17.3 EXCLUSION FROM REAL PROPERTY TAXES. The portion of taxes payable
by Tenant pursuant to Sections 17.1 and 17.2 hereof and by other Building
Occupants pursuant to similar provisions in their leases shall be excluded from
Real Property Taxes for purposes of calculating Operating Expenses pursuant to
Article 7 hereof.
18. ENTRY FOR REPAIRS AND INSPECTION
Tenant shall permit Landlord or its agents or representatives to enter
into and upon any part of the Premises at all reasonable hours after giving
reasonable prior notice to Tenant (considering the circumstances), giving due
attention and consideration to Tenant's security and in such a manner as to
cause as little disturbance as reasonably possible (including to the extent
reasonably possible, limiting such entry to other than during Normal Business
Hours), to inspect the same, clean or make repairs, alterations or additions
thereto or to the Base Building, to show the space to prospective insurers,
mortgagees, purchasers, partners, tenants (during the final twelve (12) months
of the Term only), or appraisers, to repair adjacent tenant space and to cure
defaults of Tenant, as Landlord may deem necessary or desirable, and Tenant
shall not, except as otherwise provided in this Article 18 or elsewhere in this
Lease, be entitled to any abatement or reduction of rent by reason thereof;
provided, however, Landlord shall not interfere with Tenant's use and enjoyment
of the Premises, except to the extent necessary under existing circumstances (in
which event, in the cases of repair, alteration or additions other than those
necessary to cure Tenant's default, Tenant shall be entitled to an
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abatement of rent on a fair and equitable basis if such interference materially
adversely affects Tenant and lasts for more than two (2) consecutive business
days). Tenant shall have the right to have a representative of Tenant accompany
any parties (including Landlord or its agents or representatives) so entering
the Premises. In no event shall Landlord enter into any area of the Premises
designated by Tenant as a high security area unless accompanied by a
representative of Tenant (who shall be reasonably available upon request of
Landlord) or in the event of an emergency in respect of which emergency
situation the provisions of Section 13.4 shall apply.
19. INSURANCE; INDEMNIFICATION; RELEASE
19.1 PROPERTY INSURANCE. Landlord shall at all times from and after
commencement of construction of the Building and thereafter during the Term
maintain "all risk" coverage (which may exclude coverage for earthquake and
flood perils) property insurance on the Building (including the Tenant Work and
any Tenant alterations, improvements or additions), which insurance shall not
exclude coverage for sprinkler damage, vandalism and malicious mischief and
shall include a Building Ordinance endorsement and a demolition endorsement, and
to the extent boilers or pressure vessels are used at the Building, boiler and
pressure vessel explosion coverage. Said insurance shall be maintained with a
responsible insurance company qualified to do business in Minnesota, in an
amount not less than one hundred percent (100%) of their actual replacement cost
from time to time during the Term with a deductible or deductibles which are no
greater than those consistent with the Minimum Building Standards, and at the
expense of Landlord (but with the same to be included as an Operating Expense to
the extent allocable to the period after the Rent Commencement Date), and
payments for losses thereunder shall be made to Landlord, if the loss is under
Two Hundred Fifty Thousand Dollars ($250,000) in Constant Dollars and otherwise
to an insurance trustee or title insurance company reasonably acceptable to
Landlord and Tenant, or to the institutional holder of a Mortgage who agrees in
writing for Tenant's benefit to hold and disburse all such payments in
accordance with this Lease, for disbursement in accordance with and for the
purposes required by this Lease. Said "all risk coverage" insurance policy shall
contain no risk of coinsurance by Landlord by reason of the insured value of the
Project being less than the actual value of the Project. Tenant may at its own
cost and expense, procure and maintain in effect policies of insurance covering
all Trade Fixtures, merchandise and other personal property from time to time
in, on or upon the Premises (excluding the Tenant Work and any Tenant
alterations, improvements or additions). The proceeds of such insurance carried
by Landlord shall be applied in accordance with this Lease for the repair or
replacement of the property so insured.
19.2 LIABILITY INSURANCE. Landlord and Tenant shall each, at their
respective own expense, maintain a policy or policies of commercial general
liability insurance with the premiums thereon fully paid on or before the due
dates, such insurance to afford minimum protection (which may be effected by
primary and/or excess coverage) of not less than, in the case of Landlord, Ten
Million Dollars ($10,000,000) in Constant Dollars in respect of personal injury
or death in respect of any one occurrence, Ten Million Dollars ($10,000,000)
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in Constant Dollars in respect of property damage in any one occurrence, or with
a combined single limit of not less than Ten Million Dollars ($10,000,000) in
Constant Dollars for any occurrence, and, in the case of Tenant, Five Million
Dollars ($5,000,000) in Constant Dollars in respect of personal injury or death
in respect of any one occurrence, One Million Dollars ($1,000,000) in Constant
Dollars in respect of property damage in any one occurrence, or with a combined
single limit of Five Million Dollars ($5,000,000) in Constant Dollars, or such
higher or lower amounts as may be reasonably carried from time to time by
landlords and tenants in the respective positions of Landlord and Tenant.
Landlord shall cause Tenant to be named as an additional insured with respect to
the Building and Land (but not the Premises) and Tenant shall cause Landlord to
be named as an additional insured with respect to the Premises.
19.3 POLICY REQUIREMENTS. All insurance required to be carried by
Landlord or Tenant hereunder shall be issued by responsible insurance companies
rated A:IX or better by Best's Insurance Reports, which may legally issue such a
policy in the State of Minnesota. Certificates evidencing the existence and
amounts of insurance policies required to be carried by Tenant hereunder, or
upon the prior request of Landlord, copies of such policies, shall be delivered
to Landlord by Tenant at least ten (10) days prior to any Delivery Date.
Landlord shall provide Tenant with certificates evidencing the insurance that
Landlord is obligated to maintain under this Lease or upon the prior request of
Tenant, copies of such policies. Each policy of insurance required to be
maintained under this Article 19 shall provide that it shall not be cancellable
or subject to reduction of coverage or otherwise subject to modification except
after thirty (30) days prior written notice to the parties named as insureds or
additional insureds, and with respect to Landlord's property insurance
maintained under Section 19.1, to Tenant. Tenant shall, at least seven (7) days
prior to the expiration of any policy, furnish Landlord with certificates of
renewal or certificates of replacement policies which fully comply with the
requirements of this Lease, or Landlord may order such insurance and charge the
cost thereof to Tenant, which amount shall be payable by Tenant upon demand.
Landlord shall, at least seven (7) days prior to the expiration of Landlord's
property insurance maintained under Section 19.1, furnish Tenant with a
certificate of renewal or certificate of replacement policy. Any policy may be
carried under so-called "blanket coverage" form of insurance policies, provided
any such blanket policy specifically provides that the amount of insurance
coverage required hereunder shall in no way be prejudiced by other losses
covered by the policy.
19.4 WAIVER OF LIABILITY AND SUBROGATION RIGHTS. Anything in this
Lease (including EXHIBIT D and Section 19.5) to the contrary notwithstanding,
Landlord and Tenant each hereby waive any and all rights of recovery, claim,
action or cause of action, against the other, its agents, representatives,
members, directors, officers, shareholders, partners or employees, for any loss
or damage that may occur to the Premises or the Building, or any improvements
thereto, or any personal or other property of such party, by reason of fire, the
elements, or any other cause which could be insured against under the terms of
the fire and "all risk" coverage insurance policies referred to in Section 19.1
hereof, regardless of cause or origin, including
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negligence or intentional acts of the other party hereto, its agents,
representatives, members, directors, officers, shareholders, partners or
employees.
19.5 HOLD HARMLESS. Subject to the express terms of this Lease to the
contrary, (a) Tenant hereby agrees to defend, indemnify and hold harmless
Landlord from any and all claims, liabilities, causes of action or costs
(including reasonable attorneys' fees and costs of suit) to the extent they
arise out of (or are alleged to arise out of) any negligent or otherwise
wrongful act or omission of Tenant or its Affiliates or their officers,
directors, agents, servants, employees, and representatives acting within the
scope of their agency, employment, contract or representation, and (b) Landlord
hereby agrees to defend, indemnify and hold harmless Tenant from any and all
claims, liabilities, causes of action or costs (including reasonable attorneys'
fees and costs of suit) to the extent they arise out of (or are alleged to arise
out of) any negligent or otherwise wrongful act or omission of Landlord or its
Affiliates or their officers, directors, agents, servants, employees, and
representatives acting within the scope of their agency, employment, contract or
representation. Subject to Section 19.4, Landlord hereby agrees to defend,
indemnify and hold harmless Tenant from (y) any and all claims, liabilities,
causes of action or costs (including reasonable attorneys' fees and costs of
suit) incurred by Tenant as a result of any defects in design, materials or
workmanship arising from any repairs, alterations or other work by Landlord in
or to the Premises, the Common Areas or any other portion of the Building or the
Land, and (z) any mechanic's or materialmen's lien or claims thereof arising out
of any such work.
20. DAMAGE OR DESTRUCTION
20.1 DAMAGE; DETERMINATION OF REPAIR TIME. In the event of any damage
to the Premises or any other portion of the Building by fire or other casualty
or any other cause occurring after the Commencement Date ("Damage"), Landlord
and Tenant shall attempt to agree on (a) the estimated period (the "Estimated
Repair Period") it will take to substantially complete the repair of the Damage,
including the Premises and the Common Areas, necessary to restore the Base
Building Work, Tenant Work and Tenant Alterations to the condition in which they
existed immediately prior to the Damage with any changes or modifications as may
be required by Tenant or under Legal Requirements (such work, the "Landlord
Repair Work"), employing normal construction methods without overtime or other
premium and considering, without limitation, the estimated period of time
reasonably necessary for Landlord to obtain any insurance proceeds payable to
Landlord as a result of such Damage (not to exceed in any event thirty (30)
days, regardless of when they may actually be payable), (b) the estimated date
(the "Estimated Repair Completion Date") upon which the Landlord Repair Work can
reasonably be completed, considering such period and circumstances, and (c) if
applicable pursuant to Section 20.3.3, the estimated cost (the "Estimated Repair
Cost") of performing the Landlord Repair Work. If Landlord and Tenant do not
agree for any reason on the Estimated Repair Period, Estimated Repair Completion
Date and Estimated Repair Cost within fifteen (15) days after such Damage, then
Landlord shall, within five (5) days thereafter, select an architect to make
such determinations, failing which Tenant may select an
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architect. Such architect shall be subject to the reasonable approval of Tenant.
The determinations of such architect shall be made within thirty (30) days after
the date of such casualty and shall be binding and conclusive. The date on which
such agreements are reached or such determinations are received by Landlord and
Tenant shall hereafter be referred to as the "Trigger Date". Landlord agrees to
provide to Tenant promptly upon Landlord's receipt copies of any opinions or
reports (including any preliminary or draft reports, whether written or
unwritten summaries of any oral opinions or reports) by its engineers,
architects or contractors regarding the Estimated Repair Period, Estimated
Repair Completion Date and Estimated Repair Cost.
20.2 OBLIGATION TO REPAIR. Unless this Lease is terminated pursuant
to Section 20.3, Landlord shall commence the Landlord Repair Work as soon as
reasonably possible and in any event within ninety (90) days after the date of
the Damage and shall thereafter diligently pursue the Landlord Repair Work to
completion.
20.3 OPTIONS TO TERMINATE.
20.3.1 INITIAL TERMINATION RIGHTS. If (a) it is agreed or
determined pursuant to Section 20.1 that the Estimated Repair Completion
Date occurs more than one (1) year after the date of the Damage, and (b)
the Damage is to all or any portion of the Premises, then either
Landlord or Tenant may terminate this Lease; provided, however, if the
Estimated Repair Period is three (3) years or less, Tenant shall have
the right, exercised by notice to Landlord given within forty-five (45)
days after the Trigger Date to extend such one (1) year period for an
additional period which, together with the unexpired portion of such one
(1) year period, if any, equals or exceeds the Estimated Repair Period,
thereby negating any termination by Landlord. Notwithstanding the
foregoing, if Landlord determines that it can commence and complete the
Landlord Repair Work within the times required by this Lease such that
Tenant would not have a right to terminate this Lease pursuant to any
provision within this Section 20.3.1, then Landlord shall give notice
thereof to Tenant and immediately commence and prosecute the Landlord
Repair Work to completion with all due diligence and in accordance with
all provisions hereof. No such determination by Landlord shall be
binding on Tenant and no such commencement or prosecution of the
Landlord Repair Work shall affect Tenant's rights under this Article 20.
If (a) the Estimated Repair Period is greater than one (1) year, and (b)
such Damage has a material adverse impact on the operation or Tenant's
use of the Common Areas, Parking Garage, or other Building amenities,
Tenant may terminate this Lease. Any such termination shall be exercised
by the terminating party by giving notice to the other party within
thirty (30) days after the Trigger Date, and shall, subject to Section
20.7, be effective not less than thirty (30) nor more than sixty (60)
days after such notice of termination is given. Notwithstanding the
foregoing, Landlord shall not terminate this Lease pursuant to this
Section 20.3.1 unless it also terminates all other leases in the
Building which it has the right to terminate.
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20.3.2 ADDITIONAL TENANT TERMINATION RIGHTS. If Landlord fails
to commence and proceed with the Landlord Repair Work as provided in
Section 20.2, Tenant may give Landlord notice to do so. If Landlord has
not commenced the Landlord Repair Work within fifteen (15) days after
Tenant's notice, Tenant may terminate this Lease (at Tenant's election
as to the entire Premises or the Damaged portion only) by notice given
to Landlord within thirty (30) days after expiration of such fifteen
(15) day period. If Landlord has not substantially completed the
Landlord Repair Work within the time period allowed Landlord to do so
under Section 20.3.1 (with any extension not in excess of one hundred
twenty (120) days, in the aggregate, on account of Unavoidable Delay),
Tenant may terminate this Lease by notice given to Landlord within
thirty (30) days after the expiration of such period. Such termination
shall, subject to Section 20.7, be effective not less than thirty (30)
and nor more than sixty (60) days after such notice of termination is
given.
20.3.3 DAMAGE AT END OF TERM. If (a) the Premises are Damaged
(i) after the last date Tenant may, but did not, exercise an Extension
Option pursuant to Section 4.3.3, or (ii) during the last twenty-four
(24) months of the third Extension Term, and (b) the Estimated Repair
Cost exceeds, if such Damage occurs during the first twelve (12) months
of the last twenty-four (24) months of the Term, fifty percent (50%), or
if such Damage occurs during the last twelve (12) months of the Term,
fifteen percent (15%), of the replacement cost of the Building above
ground level, then either Landlord or Tenant may terminate this Lease by
giving written notice thereof to the other party given within thirty
(30) days after the Trigger Date. Such termination shall, subject to
Section 20.7, be effective not less than thirty (30) nor more than sixty
(60) days after such notice of termination is given.
20.4 BUSINESS UNIT VACATION. If (a) one (1) or more Floors of the
Premises is rendered untenantable by Damage, (b) such Floor or Floors were
occupied at the time of the Damage by a discrete, identified business unit of
Tenant or any Affiliate of Tenant, which business unit also occupied at such
time one (1) or more Floors contiguous with the untenantable Floor or Floors
(such occupied contiguous space, the "Related Space"), (c) Tenant determines in
the exercise of its good faith business judgment that such business unit cannot
practicably operate except in a single, contiguous location and cannot
practicably be consolidated into other portions of the Premises, and (d)
Landlord is obligated under this Article 20 to restore the portion of the
Premises so Damaged and rendered untenantable, then Tenant may elect to vacate
the Related Space regardless of the number of business units or amount of
Related Space affected by the Damage in question. Tenant shall make such
election, if at all, by notice to Landlord given within sixty (60) days after
the date of the Damage. If Tenant so elects to vacate the Related Space it shall
do so within ninety (90) days after it notifies Landlord of such election.
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20.5 ABATEMENT. In the event all or part of the Premises or the
Building is Damaged, the Rent payable by Tenant hereunder shall be abated (a) in
full from the date of such Damage with respect to that portion of the Premises
which are thereby rendered untenantable and in which Tenant no longer operates
Tenant's business, (b) to the extent fair and equitable from the date of such
Damage with respect to that portion of the Premises which are thereby rendered
untenantable but in which Tenant continues to conduct Tenant's business, and (c)
in full from the date Tenant vacates the space with respect to the Related Space
as to which Tenant timely makes the election to vacate pursuant to Section 20.4.
Such abatement shall continue in either case until the earlier of (a) sixty (60)
days after the Landlord Repair Work is completed, or (b) the date Tenant
re-occupies and commences business operations in such portion of the Premises.
Unless prohibited by Legal Requirements and subject to Landlord's reasonable
requirements in connection with performance of the Landlord Repair Work, Tenant
shall have the right to continue to occupy any Damaged portions of the Premises
even though the same may be untenantable. Landlord shall be obligated to repair
or provide services to such Damaged space only to the extent reasonable under
the circumstances. As used in this Article 20, "untenantable" shall include any
material adverse effect on the Premises and Tenant's use thereof or access
thereto, including the inability of Tenant to lawfully occupy or use any part of
the Premises by reason of any order or direction of any governmental authority,
whether or not the Premises or any particular portion thereof are damaged.
20.6 LEASE TERMINATION; PRORATION OF RENT. Any termination of the
Lease by Tenant pursuant to Section 20.3 at Tenant's election, exercised at the
time Tenant gives notice of termination, may be as to all or any portion of the
Premises (whether or not Damaged), provided that after the effective date of any
partial termination the Premises shall contain not less than two hundred
thousand (200,000) square feet of Rentable Area. In the event of a termination
pursuant to Section 20.3, the estate and interest of the Tenant in the portion
of the Premises so terminated shall terminate and expire on the date specified
in the notice of termination and the Rent allocable hereunder shall be prorated
as of such date, subject to abatement of Rent (including refund of any prepaid
Rent) to the extent provided in Section 20.5 and the parties' rights and
obligations under Section 20.7.
20.7 LIMITED CONTINUATION OF LEASE. Notwithstanding any other
provision of this Article 20, if (a) Landlord terminates this Lease in
accordance with Section 20.3, or (b) Tenant terminates this Lease as to all or
any portion of the Premises in accordance with Section 20.3 and, in the case of
termination by Landlord, Tenant elects by notice given to Landlord within twenty
(20) days thereafter, or in the case of termination by Tenant, Tenant in the
notice of termination expressly reserves the right pursuant to this Section
20.7, to remain in the portion of the Premises so terminated (the "Retained
Premises"), then, unless prohibited by Legal Requirements, (w) this Lease shall
continue in effect as to the Retained Premises for a period after the date of
the Damage as determined by Tenant not in excess of (i) two (2) years in the
event the collective Rentable Area of (A) the Retained Premises, and (B) in the
event of a termination by Tenant, the portion of the Premises as to which the
Lease is not
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terminated, is not less than one hundred thousand (100,000) square feet, and
(ii) six (6) months otherwise, (x) Tenant may make such repairs thereto as
Tenant may elect in its discretion to make without contribution from Landlord,
(y) Tenant shall pay all Rent allocable to the undamaged portions of the
Retained Premises for such period without abatement or reduction as a result of
such Damage, and with abatement for any untenantable portions of the Retained
Premises as provided in this Article 20, and (z) Landlord shall be obligated to
perform its obligations under this Lease in respect of the Retained Premises and
the Building only to the extent reasonable under the circumstances. Any such
continued possession may be terminated by Tenant at any time by giving not less
than thirty (30) days' notice to Landlord.
20.8 BASE BUILDING WORK. Nothing in this Article 20 shall in any
manner affect Landlord's obligations or Tenant's rights under Article 5 or
EXHIBIT D.
21. EMINENT DOMAIN
21.1 TERMINATION.
21.1.1 APPROPRIATION OF ENTIRE PREMISES. If all or
substantially all of the Premises and/or the Building are condemned or
taken in any manner for public or quasi-public use under the power of
eminent domain or by conveyance in lieu thereof (an "Appropriation")
before or during the Term, this Lease shall automatically terminate as
of the date the public authority takes possession pursuant to the
Appropriation (the "Appropriation Date").
21.1.2 PARTIAL APPROPRIATION. If during the Term only part of
the Building is Appropriated, then:
(a) If fifty percent (50%) or more of the Rentable Area
of the Building is Appropriated on a permanent basis, whether or
not the Premises are or may be affected, Landlord may terminate
this Lease;
(b) If any such Appropriation materially, permanently or
temporarily (for more than sixty (60) days), and adversely
interferes with Tenant's ability to operate its business in the
Premises (including access thereto), Tenant may terminate this
Lease;
(c) If five percent (5%) or more Rentable Area of the
Premises is Appropriated permanently or temporarily (for more
than sixty (60) days), Tenant may terminate this Lease.
Any such termination shall be exercised during the sixty (60) day period
commencing on the Appropriation Date by giving at least thirty (30) days' notice
to the other party. If either party
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so exercises its right of termination hereunder, this Lease shall terminate on
the date stated in the notice.
21.2 TERMINATION AS TO PREMISES APPROPRIATED. If any part of the
Premises is Appropriated, this Lease shall automatically terminate as to the
portion of the Premises so Appropriated as of the Appropriation Date whether or
not this Lease is terminated pursuant to Section 21.1 above.
21.3 RESTORATION. In the event part of the Building is Appropriated
and this Lease is not thereby terminated, Landlord shall proceed expeditiously
to restore the Building and the Premises, as the case may be, to as near the
condition which existed immediately prior to such Appropriation as is reasonably
possible, provided Tenant shall have the additional right to terminate this
Lease if such restoration has not been substantially completed within twelve
(12) months after such Appropriation by notice given to Landlord within thirty
(30) days after the expiration of such twelve (12) month period.
21.4 AWARD. Landlord shall be entitled to the entire award in any
proceeding for Appropriation of the Premises or any other portion of the
Building, except that Tenant shall be entitled to any award made to Tenant for
its relocation expenses or the taking of personal property or Trade Fixtures
belonging to Tenant.
21.5 RENT ABATEMENT. In the event of a partial Appropriation which
does not result in a termination of this Lease as to the entire Premises, Rent
shall be abated in proportion to the portion of the Premises rendered
untenantable by the Appropriation during the period of such untenantability.
21.6 TEMPORARY APPROPRIATION. Notwithstanding any other provision
hereof, in the event of a temporary Appropriation for a period of less than
sixty (60) days, this Lease shall remain in full force and effect and Tenant
shall continue to perform all of the terms, conditions and covenants of this
Lease, including the payment of Base Rental and all other amounts required
hereunder. Tenant shall be entitled to receive the entire award made in
connection with any temporary Appropriation for a limited period of time of the
Premises attributable to any period within the Term of this Lease. Landlord
shall be entitled to the entire award for any temporary Appropriation of the
Premises which relates to a period after the expiration of the Term of this
Lease, or which is allocable to the cost of restoration of the Premises. If any
such temporary Appropriation terminates prior to the expiration of the Term of
this Lease, Tenant at its option may restore the Premises to its condition prior
to the temporary Appropriation, at Tenant's sole cost and expense, provided
Tenant receives the portion of the award attributable to such restoration.
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22. ASSIGNMENT AND SUBLETTING BY TENANT
Tenant shall have the unconditional right to assign this Lease (including any or
all of the expansion, renewal, space reduction and adjustment options or offer
or refusal rights or other rights provided to Tenant herein (collectively,
"Adjustment Rights")) or to sublease all or any portion of the Premises to any
person without the need for any consent or approval from Landlord or any other
party, provided that no such assignment or sublease shall operate to release
Tenant from any liability hereunder. No compensation shall be payable to
Landlord in connection with any assignment or sublease; all income and profits
arising from any such assignment or sublease shall be retained by Tenant. Tenant
shall give Landlord at least ten (10) days' notice of any such assignment or
sublease and the identity of the assignee or sublessee, but failure to do so
shall not constitute a default under this Lease.
23. TRANSFER OF LANDLORD'S INTEREST; MANAGEMENT
23.1 TRANSFER BY LANDLORD. Landlord may sell, assign, convey or
otherwise transfer, subject to this Lease, Landlord's estate, right, title and
interest hereunder and in the Land and Building or any portion thereof without
the consent of Tenant; provided, however, with the exception of instruments
providing security for the financing of the Building for which Tenant has
received a non-disturbance agreement as described in Article 25, Landlord shall
not sell, assign, convey or otherwise transfer Landlord's right, title and
interest hereunder or in the Land or Building, or any direct or indirect
interest in the entity owning or holding said right, title or interest at any
time prior to the Commencement Date, the completion of all of Landlord's
obligations with respect to the performance of the Base Building Work and the
Tenant Work and the disbursement or application pursuant to Section 3.6 of
EXHIBIT D of the entire amount payable by Landlord pursuant to said Section 3.6.
If, in compliance with the foregoing provisions of this Section 23.1, Landlord
conveys the fee simple title to the Land and the Building and all of its right,
title and interest therein, including this Lease and all other leases and
agreement affecting the Land and the Building, and if the transferee in a
writing for Tenant's benefit expressly and unqualifiedly (x) assumes this Lease,
(y) agrees to pay and perform all obligations of Landlord which arise on and
after the date of such conveyance, and (z) agrees to pay and perform all
obligations of Landlord which arise prior to the date of such conveyance as
shall be in default at the time of conveyance and, if an estoppel certificate is
required of Tenant in connection with such conveyance, shall have been described
in such certificate, then such conveying Landlord shall be released of liability
for any obligations which first arise on or after the date of such conveyance.
Nothing in this Article 23 shall be deemed to limit Tenant's exercise of any of
its abatement, offset, self-help or similar rights or remedies provided in this
Lease, irrespective of whether any circumstances giving rise to exercise of any
such rights or remedies arises or occurs before or after any such conveyance,
provided Tenant describes in any estoppel certificate required of Tenant in
connection with such a conveyance any such circumstances which exist and of
which Tenant has actual knowledge as of the date of such certificate.
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23.2 MANAGEMENT. Tenant shall have the right during the Term to
approve any managing agent and management personnel for the Building, which
approval shall not be unreasonably withheld. Tenant agrees to approve an
Affiliate of Landlord as the initial manager of the Building.
23.3 LIMITATION OF LIABILITY. Except for Landlord's obligations under
Article 5, Section 23.1 and EXHIBIT D, from and after the Commencement Date, the
completion of all of Landlord's obligations with respect to the performance of
the Base Building Work and the Tenant Work and the disbursement or application
pursuant to Section 3.6 of EXHIBIT D of the entire amount payable by Landlord
pursuant to Section 3.6, Tenant shall look solely to the Land and Building,
together with the proceeds of insurance policies required to be or otherwise
maintained by Landlord under Article 19 and the proceeds derived from any sale
or transfer of any of Landlord's interest in the Land and Building, but to no
other assets of the Landlord for satisfaction of any liability pursuant to this
Lease.
24. DEFAULT BY LANDLORD OR TENANT
24.1 EVENTS OF DEFAULT. The following shall constitute an Event of
Default under this Lease:
24.1.1 MONETARY DEFAULT. If default shall be made in the
payment of any sum to be paid by Tenant under this Lease when due and such
default shall continue for ten (10) days after notice thereof to Tenant; or
24.1.2 NONMONETARY DEFAULTS. If default shall be made in the
performance of any of the other covenants or conditions which Tenant is
required to perform under this Lease and such default shall continue for
thirty (30) days after notice thereof to Tenant or, if the default is
not reasonably curable within such thirty (30) day period, for such
longer period of time as may be reasonably needed to cure such default
as long as Tenant shall promptly undertake to cure and shall diligently
pursue such cure to completion.
24.2 LANDLORD'S REMEDIES. Landlord may treat the occurrence of any
Event of Default as a breach of this Lease and thereupon, at Landlord's option
but subject to Sections 24.2.5 and 24.2.7, Landlord shall have any one or more
of the following described remedies:
24.2.1 TERMINATION. Landlord may terminate this Lease and
forthwith repossess the Premises by legal process and be entitled to
recover, after repossession, as damages a sum of money equal to the
total of (a) the cost of recovering the Premises, (b) the unpaid Rent
earned at the time of termination, plus interest thereon at the Agreed
Interest Rate from the due date, (c) as agreed final damages, the net
present value (discounted at the Amortization Interest Rate) of the
balance of all Base Rental
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due for the remainder of the then Term less the net present value
(discounted at the same rate) of the Market Base Rental Rate for the
Premises for said period (but only if the difference is a positive
number), and (d) any other sum of money (other than those described in
(a), (b) or (c) of this Section 24.2.1) owed by Tenant to Landlord.
24.2.2 REPOSSESSION. Landlord may terminate Tenant's right of
possession and may repossess the Premises by legal process without
terminating this Lease, in which event Landlord may relet the same in
Landlord's name but for the account of Tenant for such rent and upon
such terms as shall be satisfactory to Landlord acting reasonably. For
the purpose of such reletting Landlord is authorized to decorate or to
make any repairs, changes, alterations or additions in or to Premises
that may be reasonably necessary to relet the Premises, and (a) if
Landlord shall fail to relet the Premises, or (b) if the same are relet
and a sufficient sum shall not be realized from time to time from such
reletting, after deducting on an amortized basis all of the costs and
expenses reasonably incurred in making such decorations, repairs,
changes, alterations and additions and the expense of such reletting,
including leasing commissions, and of the collection of the rent
accruing therefrom, and after paying the unpaid Base Rental and other
rents due hereunder earned but unpaid at the time of reletting and the
cost of recovering possession to satisfy the rent provided for in this
Lease to be paid, plus interest on all of the same at the Agreed
Interest Rate per annum, then Tenant shall, in the case of clause (a),
pay to Landlord as damages a sum equal to the amount of all unpaid Rent
provided for in this Lease as and when the same would be due and payable
without acceleration and the cost of recovering possession, or in the
case of clause (b), Tenant shall satisfy and pay any such deficiency as
shall have accrued on a cumulative basis from time to time upon demand
therefor from time to time and Tenant agrees that Landlord may file suit
to recover any sums falling due under the terms of this Section 24.2.2
from time to time. No delivery to or recovery by Landlord of any sum due
Landlord hereunder shall be any defense in any action to recover any
amount of money not theretofore recovered by Landlord, nor shall such
reletting be construed as an election on the part of Landlord to
terminate this Lease unless a written notice of such intention be given
to Tenant by Landlord. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach pursuant to Section 24.2.1.
24.2.3 REMEDIES AT LAW. Landlord may exercise any rights and
remedies provided at law or in equity on account of such Event of
Default, other than termination of this Lease or Tenant's right of
possession, or other repossession of the Premises or any portion
thereof.
24.2.4 MITIGATION. In connection with any such default or
Event of Default and the exercise by Landlord of any of its rights or
remedies, Landlord shall use reasonable
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efforts to mitigate damages, but in connection with the leasing of space
in the Building shall not be required to prefer the Premises over any
other space in the Building.
24.2.5 TENANT DISPUTE. Notwithstanding anything to the
contrary provided herein, if Tenant disputes any Event of Default (other
than the payment of Base Rental or Additional Rent) declared by Landlord
pursuant to this Article 24, Tenant may notify Landlord of such dispute
within thirty (30) days after receiving Landlord's initial notice of
default given pursuant to Section 24.1, and in such event Landlord shall
not exercise any of the remedies provided in this Section 24.2 until
Landlord shall have obtained a final, unappealable court judgment
establishing such Event of Default. If such judgment establishes such
Event of Default, then Tenant may nonetheless cure such Event of Default
within the time period provided with respect thereto in Section 24.1
(with the time period for such cure to commence on the date such
judgment is final and unappealable), failing which Landlord in its
discretion thereafter may exercise its remedies under this Section 24.2
with respect thereto.
24.2.6 AGREEMENTS REGARDING MINN. STAT. CHAPTER 566 AND
SECTION 504.02. Landlord and Tenant agree for purposes of applying Minn.
Stat. Chapter 566 and Section 504.02 to this Lease, that "rent" as
defined in such subdivision shall mean all Rent payable under this
Lease. Tenant waives and releases any right or claim to restoration to
the Premises pursuant to Minn. Stat. Section 504.02, Subd. 2(b).
24.2.7 NON-CURABLE DEFAULTS. Notwithstanding any provision of
this Lease, Landlord shall not be entitled to terminate this Lease or
reenter or recover possession of the Premises for any non-monetary
default of Tenant which is not curable.
24.3 LANDLORD'S RIGHT TO PERFORM. Upon any Event of Default,
Landlord may, upon giving notice to Tenant, but without obligation, and without
waiving or releasing Tenant from any default or obligations of Tenant, proceed
in a reasonable manner to make any such payment or perform any such obligation
required by this Lease on Tenant's part to be performed. All sums so reasonably
paid by Landlord and all costs reasonably incurred by Landlord including
reasonable attorneys' fees, together with interest thereon at the Agreed
Interest Rate, shall be payable to Landlord within ten (10) days after written
demand, and Landlord shall have the same rights and remedies in the event of the
nonpayment thereof by Tenant as in the case of default by Tenant in the payment
of Rent. Any such payment or performance by Landlord shall be deemed to be cure
on behalf of Tenant of the applicable Event of Default for all purposes under
this Lease and under all Legal Requirements. Notwithstanding anything in this
Article 24, if Tenant disputes under Section 24.2.5 any Event of Default with
respect to which Landlord has exercised its rights under this Section 24.3,
Landlord shall not be entitled to exercise any of its rights or remedies under
Section 24.2.1 or 24.2.2 with respect to such Event of Default, including for
Tenant's failure or refusal to pay to Landlord the sums described in this
Section 24.3, until (a) Landlord shall have obtained a final, appealable court
judgment establishing such Event of Default and the
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reasonableness of the manner of Landlord's performance and the sums so incurred,
and (b) Tenant thereafter shall have failed to pay such sums within ten (10)
days after the date such judgment is final and unappealable.
24.4 EXERCISE OF RIGHTS WHILE IN DEFAULT. Tenant may exercise and
continue to exercise all of its rights under this Lease upon the occurrence and
during the continuance of any default and Event of Default under this Lease up
to the point of actual repossession of the Premises, including the Expansion
Options, First Offer Right and the Extension Options.
24.5 LANDLORD'S DEFAULT. In addition to and not in limitation of the
provisions of this Lease which grants Tenant an express remedy (including any
right to terminate this Lease which is expressly provided for in this Lease), if
Landlord should fail to perform or observe any covenant, term, provision or
condition of this Lease and such default should continue beyond a period of
twenty (20) business days as to a monetary default or thirty (30) days (or such
longer period as is reasonably necessary to remedy such default, provided
Landlord shall diligently pursue such remedy at all times until such default is
cured) as to a nonmonetary default, after in each instance notice thereof is
given by Tenant to Landlord (with a copy of said notice sent on the same day to
the holders of any Mortgage who has theretofore notified Tenant in writing of
its interest and the address to which notices are to be sent for this purpose)
then, and in any such event Tenant shall have the right (a) to cure such
default, and Landlord shall reimburse Tenant (which reimbursement Tenant may
effect through the withholding of Rent whether or not otherwise entitled to
withhold Rent under this Lease for the item in question) for all sums reasonably
expended or incurred (including all reasonable attorney fees) in so curing or
attempting to cure said default, (b) to commence such actions at law or in
equity to which Tenant may be entitled, and/or (c) in the event such default
materially adversely affects Tenant's use and enjoyment of the Premises for the
purpose of the conduct of Tenant's business therein and the Building and
continues for a period of one hundred eighty (180) days after Tenant's notice,
to terminate this Lease in its entirety or to such portion of the Premises as
Tenant may in its sole discretion elect by giving notice thereof to Landlord at
any time thereafter and prior to such cure, which termination shall be effective
(regardless of any cure made after such notice is given) on such date as Tenant
may select which is not earlier than the date such termination notice is given
and not later than twelve (12) months after such notice of termination is given.
Notwithstanding the foregoing, the provisions of this Section 24.5 shall not,
however, delay or postpone any deadlines or time periods set forth elsewhere in
this Lease or in any way affect Tenant's rights to terminate this Lease.
24.6 NON WAIVER. The acceptance by either party hereto of any
payment from the other party, whether any default by such other party is known
to the party receiving the payment at such time, shall not constitute a waiver
of any default or other obligation under this Lease. Failure of either party to
declare any default immediately upon occurrence thereof, or delay in taking any
action in connection therewith, shall not waive such default or right to
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take such action, but said party shall have the right to declare any such
default or take such action at any time prior to cure.
24.7 ATTORNEY'S FEES. In the event either party defaults in the
performance of any of the terms, conditions, agreements or conditions contained
in this Lease and the other party places the enforcement of this Lease, or any
part thereof, or the collection of any sums due, or to become due, hereunder or
for the delivery or recovery of the possession of the Premises, in the hands of
an attorney who files suit (including Arbitration) upon the same (either by
direct action or counterclaim), and should such nondefaulting party prevail in
such suit, the defaulting party agrees to pay the other party's reasonable
attorney's fees.
24.8 INTEREST ON LATE PAYMENTS. If either Landlord or Tenant shall
fail to make any payment, including any payment of Rent, when due and payable
under this Lease and such failure shall continue for a period of five (5) days
after notice from the other party, such past due amount shall bear interest from
the date due until paid at the Agreed Interest Rate. The assessment or payment
of any such interest, however, shall not excuse or be deemed to cure any default
by the delinquent party.
25. SUBORDINATION AND NONDISTURBANCE
Landlord may, at its election, upon the request of the holder of any
Mortgage, make this Lease superior to such Mortgage by written notice thereof to
Tenant. Tenant agrees that, upon the request of Landlord made in writing, Tenant
will, conditioned upon the continued effectiveness of the non-disturbance
agreement provided for in this Article 25, subordinate this Lease to any
mortgage or deed of trust which may now or hereafter encumber the Building
and/or the Land, and to all renewals, modifications, consolidations,
replacements and extensions thereof (a "Mortgage"); provided, however, that the
holder of any such Mortgage shall enter into a binding non-disturbance agreement
with Tenant providing that (a) Tenant shall not be disturbed in its possession
of the Premises or its rights hereunder terminated or impaired by any mortgagee,
purchaser at foreclosure or other such party, (b) this Lease shall continue in
full force and effect following any foreclosure thereof or any deed given in
lieu thereof (except that this Lease may nonetheless be terminated by mortgagee
as successor landlord pursuant to the provisions of this Lease providing for
such termination), and (c) all insurance proceeds and condemnation awards
payable from time to time in connection with any Damage or Appropriation shall,
unless this Lease is terminated as a result thereof pursuant to Article 20 or
21, as the case may be, be held and disbursed in connection with the repair and
restoration of the Building and Premises as required by Article 20 or 21, as the
case may be. In the event of the enforcement by the trustee or the beneficiary
under any such Mortgage of the remedies provided for by law or by such Mortgage,
Tenant will automatically become the tenant of and shall be deemed to have
attorned to such successor in interest without change in the terms or provisions
of this Lease. Upon written request by such successor in interest, Tenant and
such successor shall execute and deliver an instrument or instruments whereby
Tenant confirms the attornment herein provided for and in which such
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successor shall acknowledge its obligations and responsibilities to Tenant under
the Lease and, with respect thereto, shall recognize this Lease and the tenancy
hereunder of Tenant.
26. ESTOPPEL CERTIFICATE
Within ten (10) days after written request therefor by the other, Tenant
and/or Landlord will execute and deliver an estoppel or other certificate
certifying to such matters as the other party shall reasonably request (if true)
in connection with said party's financings, sales, assignments or sublettings or
other business transactions. The certifying party shall be entitled to revise
said certificates in accordance with appropriate practices of parties similarly
situated, including limitations to actual knowledge where appropriate. Any such
certificate shall act as an estoppel only and shall not constitute an express or
implied representation or warranty.
27. ARBITRATION
27.1 GENERAL. When any provision of this Lease calls for Arbitration,
Landlord and Tenant shall initially meet and attempt to agree upon the matter in
question. If they have been unable to so agree within the time period specified
as to such matter under this Lease, or, if no such time period is specified,
within thirty (30) days, then, at the request of either party the matter will be
determined by an arbitration board as provided in Section 27.3. Except as
provided in Section 27.3, such arbitration will be conducted in accordance with
the Commercial Arbitration Rules of the American Arbitration Association. Within
thirty (30) days after their appointment, the arbitrators so chosen shall hold a
hearing at which each party may submit evidence, be heard and cross-examine
witnesses, with each party having at least ten (10) days' advance notice of the
hearing. The decision of the arbitrators will be final, binding and
non-appealable and judgment thereupon may be rendered and enforced in any court
having jurisdiction thereof. Except where specifically provided otherwise in
this Lease, each party shall bear its own expenses in connection with the
arbitration and the costs of its arbitrator, and the cost of the third
arbitrator shall be shared equally by Landlord and Tenant. The costs of all
counsel, experts and other representatives that are retained by a party will be
paid by such party.
27.2 ARBITRATORS. The arbitration board shall consist of three (3)
reputable real estate professionals with experience with first-class high rise
office buildings in the Minneapolis-St. ▇▇▇▇ metropolitan area and, if the
matter in dispute is the Market Base Rental Rate, each appraiser shall be a
member in good standing of the Appraisal Institute with the designation "MAI".
Each party shall appoint one (1) arbitrator who shall have no material financial
or business interest in common with the party making the selection and shall not
have been employed by such party for a period of three (3) years prior to the
date of selection. If the first two arbitrators are unable to agree on a third
arbitrator within thirty (30) days after the appointment of the second
arbitrator, or if either party refuses or neglects to appoint an arbitrator as
herein provided within twenty (20) days after the appointment of the first
arbitrator, then such third arbitrator or such second arbitrator whose
appointment was not made as aforesaid shall be appointed by the American
Arbitration Association.
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27.3 PROCEDURES. If the matter in question is the determination of
Market Base Rental Rate, the parties will submit to the arbitrators the
definition of Market Base Rental Rate (including the Full Floor Rate) and each
arbitrator shall submit his or her determination in a sealed envelope at the
meeting described below, and any determination not submitted by such time shall
be disregarded. Where applicable, the determination shall include separate
determinations of the Market Base Rental Rate for the entire Premises as a
single block of space and for the Full Floor Rate and, if applicable, for the
Retail Premises. The parties and the arbitrators shall meet on said thirtieth
(30th) day following the hearing provided for in Section 27.1 (or if such
thirtieth (30th) day is not a business day, on the first business day
thereafter) at 11:00 a.m. at the office of Tenant, or such other place as the
parties may agree and the arbitrators shall simultaneously deliver their
determinations. If the determinations of at least two (2) of the arbitrators
shall be identical in amount, such amount shall be deemed the Market Base Rental
Rate. If the determination of the three (3) arbitrators shall be different in
amount, the Market Base Rental Rate shall be determined as follows:
(a) If neither the highest or lowest determination differs from
the middle determination by more than ten (10) percent of such middle
determination, then the Market Base Rental Rate shall be deemed to be
the average of the three (3) determinations; and
(b) If clause (a) does not apply, then the Market Base Rental
Rate shall be deemed to be the average of the middle determination and
the determination closest in amount to such middle determination.
If the matter in question is other than the determination of Market Base Rental
Rate, then the decision of any two (2) of the three (3) arbitrators will
control, and such decision will be made and delivered to Landlord and Tenant by
such arbitrators not later than the thirtieth (30th) day following the hearing
provided for in Section 27.1
28. NO MERGER
This Lease shall not terminate by reason of the common ownership of the
rights of Landlord and Tenant hereunder.
29. HOLDING OVER
In the event Tenant holds over after the expiration of the Term of this
Lease, with the express or implied consent of Landlord, such tenancy shall be
from month-to-month only, and not a renewal hereof or an extension for any
further term, and such month-to-month tenancy shall be subject to each and every
term, covenant and agreement contained herein; provided, however, that Tenant
shall pay as Base Rental during any holding over period an amount equal to one
hundred twenty-five percent (125%) of the Base Rental payable immediately
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preceding the expiration of the Term of this Lease. Nothing in this Article 29
shall be construed as a consent by Landlord to any holding over by Tenant, and
notwithstanding Landlord's acceptance of any payment hereunder, Landlord
expressly reserves the right to require Tenant to surrender possession of the
Premises upon the expiration of the Term of this Lease or upon the earlier
termination hereof and to assert any remedy in law or equity to evict Tenant
and/or collect damages in connection with such holding over.
30. QUIET ENJOYMENT
So long as Tenant performs all of its obligations hereunder, Landlord
covenants that Tenant shall and may quietly and peacefully have, hold, occupy
and enjoy the Premises, and all of its rights and options in this Lease
contained, for the Term of this Lease.
31. NO OPERATING COVENANT
Nothing in this Lease shall impose any obligation upon Tenant to
construct any improvements (including the Tenant Work), occupy or conduct any
business in all or any portion of the Premises or the Building during any period
whatsoever.
32. BROKER
Landlord and Tenant represent and warrant to each other that they have
not had dealings with any real estate broker or agent other than CB Commercial
Real Estate and The Keewaydin Group, Inc. ("Brokers"), (to whom Landlord owes a
commission pursuant to separate agreements with each) in connection with the
negotiation of this Lease, and that they know of no other real estate broker or
agent who is entitled to any commission or finder's fee in connection with this
Lease. Brokers may assign its rights to such commission to Tenant. In the event
Landlord fails to pay such commission as and when required by such agreement,
Tenant shall have the right to pay such commission (including to itself) and
deduct such amounts paid from the Rent payable under this Lease. Landlord and
Tenant agree to indemnify each other and to hold each other harmless against all
claims, damages, costs or expenses of or for any other such fees or commissions
resulting from their actions or agreements regarding the execution or
performance of this Lease, and will pay all costs of defending any action or
lawsuit brought to recover any such fees or commissions incurred by the other
party, including reasonable attorneys' fees.
33. HAZARDOUS MATERIALS
33.1 LANDLORD. Landlord represents and warrants that no Hazardous
Materials will be used in the construction or operation of the Building except
for those contained in construction materials which are customarily incorporated
at the time of installation in or from time to time typically used in the
operation of high rise office buildings in compliance with the Minimum Building
Standards. Landlord shall at all times keep the Building free of such Hazardous
Materials regardless of whether such Hazardous Materials are presently
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recognized as Hazardous Materials, and shall indemnify Tenant against any and
all claims, liabilities, costs and expenses related to the presence of any
Hazardous Materials in, on or about the Building or the Land, except that
Landlord shall not be responsible for Hazardous Materials placed in the Building
by Tenant.
33.2 TENANT. Tenant shall not install or use, or allow any of its
Subtenants to install or use, in the Premises any Hazardous Material except
for (a) Hazardous Materials customarily used in the ordinary course of uses
permitted under Section 3.1 (including reasonable quantities of Hazardous
Materials incidental to a printing or reprographic shop in the Premises) so
long as Tenant uses such Hazardous Materials in accordance with Legal
Requirements, and (b) Hazardous Materials contained in construction materials
which are customarily incorporated at the time of installation in or from
time to time typically used in the operation of first class high rise office
buildings or leased premises in compliance with the Minimum Building
Standards. Except for those Hazardous Materials described in clause (b),
Tenant shall reimburse Landlord upon demand for any costs which Landlord
incurs as a result of Tenant's or any of its Subtenant's installation or use
of any Hazardous Materials and Tenant shall indemnify Landlord against any
and all claims, liabilities, costs and expenses to the extent resulting from
Tenant's or any of its Subtenant's installation or use of any Hazardous
Materials in the Premises.
34. CHANGES IN BUILDING
34.1 CONSTRUCTION OF BUILDING. Landlord covenants and represents that
the Building will be designed and constructed in accordance with the Approved
Base Building Plans and Specifications and EXHIBIT D.
34.2 CHANGES IN BUILDING. Landlord reserves the right in its
discretion at any time after the Base Building Completion Date, to make changes,
alterations, additions, improvements or replacements to the Building and the
Common Areas, fixtures and equipment thereof; provided, however, that (a) no
such changes shall unreasonably interfere with or have any material adverse
impact on the conduct of Tenant's business at the Premises, and (b) any material
changes, alterations, additions, improvements or replacements to the exterior of
the Building, the Skyways, Floor One (1) and Floor Two (2) lobbies, elevators,
escalators and other vertical transportation systems, truck docks and loading
areas, driveways, ramps, entrances, exits, loading and unloading areas, Parking
Garage, or any other Common Areas, Building Systems, or Building amenities, and
any changes, alterations, additions, improvements or replacements which are
reasonably likely to materially increase Operating Expenses, shall be subject to
Tenant's prior written approval, which may be withheld in Tenant's sole
discretion.
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35. NAME AND ADDRESS OF BUILDING
35.1 BUILDING NAME. So long as Tenant and its Affiliates lease
(including pursuant to any sublease of the Premises to Affiliates of Tenant or
any other sublease) not less than two hundred thousand (200,000) square feet of
Rentable Area of the Building, Tenant shall have the right to select and from
time to time change the name of the Building, provided that if Tenant changes
the name of the Building after December 1, 1999, Tenant shall pay all reasonable
costs incurred by Landlord in the removal and replacement of Common Area signs
containing the name of the Building. At such time as Tenant no longer leases
such minimum amount of space, Landlord shall have the right to designate the
name of the Building, provided that in no event shall the name of the Building
be in any manner associated with any Financial Services Business other than
Tenant or any of its Affiliates. Landlord shall have the right to approve any
name selected by Tenant, but such approval shall be deemed given if not denied
in notice to Tenant given within fifteen (15) days after Tenant's request for
approval, provided that no approval is required if the name selected by Tenant
is associated with the Tenant's name, the name of any Affiliate of Tenant, or
marketing strategy of Tenant or any of its Affiliates as determined by Tenant in
its sole discretion. Any disapproval by Landlord must be based solely upon the
fact that such name is inappropriate for use in connection with a first class
office building in Minneapolis, Minnesota. The initial name of the Building
shall be "▇▇▇▇▇ ▇▇▇▇▇▇▇ Center". Any change in the name of the Building by
Tenant shall be made (a) at any time prior to December 1, 1999, upon not less
than five (5) days' prior written notice to Landlord, and (b) thereafter upon
not less than ninety (90) days' notice to Landlord. At any time prior to or
during the Term or after the expiration or termination of this Lease, Tenant
shall have the right in its sole discretion to require Landlord to immediately
cease use of any name associated with Tenant, any of its Affiliates or any
marketing strategy of Tenant or its Affiliates in connection with the Building.
The provisions of this Section 35.1 shall survive such expiration or
termination.
35.2 BUILDING ADDRESS. The official address of the Building will be
the name of the Building, provided that the street address will also be
available for use by Landlord and Building Occupants who so desire or as
required by the U.S. Post Office or other governmental authorities.
36. BUILDING SIGNAGE
36.1 TENANT'S SIGNAGE. Subject only to applicable codes and
ordinances, Tenant shall have the right in its sole discretion to select and
from time to time, at its expense, change all Building exterior and Common Area
signage (which for purposes of this Article 36 shall include all logo signage
and signage on all entrance doors to the Building). The initial signage shall be
designed, constructed and installed by Landlord as a part of the Base Building
Work in accordance with the terms and conditions of EXHIBIT D. Tenant shall have
the right to require Landlord from time to time to change any such signage,
including to conform to any change in Building name pursuant to Section 35.1,
with any such changes
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accomplished at Tenant's reasonable expense. At any time after the expiration or
earlier termination of this Lease, Tenant shall have the right in its sole
discretion to require Landlord to promptly remove any Building or Common Area
signage associated with Tenant, any of its Affiliates or any marketing strategy
of Tenant or its Affiliates, with the reasonable cost of such removal payable by
Tenant. The provisions of this Section 36.1 shall survive such expiration or
termination. Tenant also shall have the right to place anywhere in the Premises
and in the Common Area from time to time such signs, placards, pictures, names,
notes, door lettering or advertisements (collectively, "Advertisements") that
Tenant may from time to time desire. Landlord shall have the right to approve
any such Advertisements, but such approval shall be deemed given if not denied
in notice to Tenant given within fifteen (15) days after Tenant's request for
approval. Any disapproval by Landlord must be based solely upon the fact that
such Advertisements are inappropriate for use in a first class office building
in Minneapolis, Minnesota.
36.2 SIGNAGE OF OTHER BUILDING OCCUPANTS. There will be no exterior
or Common Area signage (which for purposes hereof shall include Advertisements
and any signs visible from the exterior or Common Areas of the Building for any
Building Occupants other than Tenant without Tenant's approval, which shall not
be unreasonably withheld, unless such signage is in any manner associated with
any Financial Services Business, in which event Tenant may withhold its approval
in its sole discretion; provided, however the foregoing shall not limit
Landlord's right to install for other Building Occupants without Tenant's
consent Building standard listings on the common Building directory described in
Section 37 or Building standard entrance door signage on Floors on which no
portion of the Premises is located, provided such signs are not visible from
other portions of the Common Areas or from the exterior of the Building.
37. BUILDING DIRECTORIES
Landlord, as a part of the Base Building Work in accordance with the
terms and conditions of EXHIBIT D and Article 5 (including the Base Building
Construction Schedule), shall install two (2) building directories in each of
the Floor One (1) and Floor Two (2) lobbies of the Building. One such directory
will be for the exclusive use of Tenant for the listing of Tenant's or any of
its Affiliates' or Subtenants' departments, functions and operations, and the
names of any of Tenant's or any of its Affiliates' or Subtenants' executives,
brokers or employees individually. The other such directory on each Floor will
be for the common use of all Building Occupants. At Tenant's request, Landlord
shall include on the common Building directory listings of any Subtenant and the
departments, functions, operations and names of such Subtenants' executives or
employees. Tenant shall reimburse Landlord for the actual, reasonable,
documented out-of-pocket "hard" construction costs (as opposed to architectural,
engineering, design, financing, general conditions or other so-called "soft
costs") actually and properly incurred and paid by Landlord in the fabrication
of Tenant's exclusive directory.
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38. BUILDING OCCUPANTS
38.1 COMPETITIVE BUSINESS. Landlord agrees not to lease space on the
Floors One (1) or Two (2) to any Financial Services Business, or to consent
(actively or passively) to the occupancy of any such space by any Financial
Services Business, without in each instance obtaining the consent of Tenant,
which consent may be withheld in Tenant's sole discretion. Each lease or other
occupancy agreement entered into with a Building Occupant with respect to such
portions of the Building shall contain a prohibition against use of the
applicable premises for any Financial Services Business.
38.2 RETAIL TENANTS. The tenants selling retail goods and services on
Floors One (1) and Two (2) of the Building, as well as all signage and
improvements associated with such tenants which are visible from the exterior of
the Building or from the Common Areas, shall be subject to Tenant's approval,
which shall not be unreasonably withheld or delayed except as otherwise provided
in Sections 36.2 or 38.1. Such approval shall be deemed given if not denied in a
notice to Landlord given within ten (10) days after notice from Landlord
identifying a proposed retail tenant, as well as such retail tenant's proposed
use, any such signage and/or improvements and any exclusive uses or rights
granted to such retail tenant. Any disapproval shall state Tenant's reasons in
reasonable detail.
38.3 LEASES. Each lease or occupancy agreement entered into with any
Building Occupant with respect to all or any portion of Floor One (1) or Two (2)
shall contain the restrictions provided in this Article 38.
39. MICROWAVE DISHES, SATELLITE DISHES AND ANTENNAS
39.1 GRANT. Landlord hereby grants Tenant the right to use the
rooftop area of the Building for the purpose of installing microwave, satellite
and/or vertical dishes, antennae, and other exterior communications equipment,
and associated transmission equipment, ▇▇▇▇▇▇▇ and other equipment and
structures (collectively, "Antennae") and for the use and operation of such
Antennae. The initial location of Tenant's Antennae shall be in areas on such
rooftop reasonably designated by Tenant. Subject to Section 39.4, Tenant shall
have the right from time to time to increase the number, size and/or scope of
Tenant's Antennae, or relocate the same, upon reasonable prior notice to
Landlord. Tenant shall have free and full access to the roof of the Building for
purposes of installing, operating and maintaining said Antennae. Tenant shall
have the right to install cables for such equipment in chases within the
Building, and shall have free and full access to all such chase-ways on each
Floor of the Building. Landlord shall provide, for the exclusive use of Tenant,
a heated and air-conditioned room built in accordance with the Approved Base
Building Plans and Specifications for the housing of electronic equipment
related to such Antennae, which room shall contain not less than three hundred
(300) square feet and shall be located in the area provided in the Approved Base
Building Plans and Specifications. All of Tenant's rights under this Article 39
shall be provided at no additional cost to Tenant.
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39.2 INSTALLATION; MAINTENANCE; TAXES. Tenant shall install such
Antennae in accordance with reasonable construction practices. 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 constructed and maintained by Tenant in
accordance with Legal Requirements and in compliance with the reasonable
requirements of the insurers of the Building.
39.3 TRANSFER. Tenant may extend all or any portion of its rights
hereunder to any Subtenant which subleases not less than twenty thousand
(20,000) square feet of Rentable Area, or to any parent, subsidiary or other
Affiliate of Tenant.
39.4 OTHER USES. No Antennae other than Tenant's Antennae shall be
located on the Building except as provided in this Section 39.4. Any other
Antennae in addition to Tenant's Antennae which Landlord shall desire to locate
on the Building ("Other Antennae") shall be subject to Tenant's approval, which
shall not be unreasonably withheld except as provided in this Section 39.4.
Landlord shall give Tenant not less than thirty (30) days' prior notice of any
such Other Antennae, which notice shall include reasonable detail, plans and
specifications as to such Other Antennae, including the proposed location
thereof. In the event Tenant does not notify Landlord within such thirty (30)
day period that it does not approve such Other Antennae, Landlord may install
such Other Antennae in accordance with such details, plans and specifications.
Tenant may withhold its consent in its discretion if in its good faith judgment
Tenant believes such Other Antennae will interfere in any manner with the
location, use, operation or any other aspect of any of Tenant's Antennae then
located or reasonably anticipated by Tenant in its good faith business judgment
to be located on the roof. In the event any such Other Antennae so interferes
with any of Tenant's Antennae, Landlord shall cause the offending Other Antennae
to be immediately removed or relocated in such manner as to eliminate such
interference. No Antennae or other equipment or constructions shall be located
or maintained on any parapet, roof or other portion of the Building (e.g., the
roof at the point the Building steps back) other than the roof at the top of the
Building.
40. ELECTRONIC FINANCIAL SERVICES EQUIPMENT
40.1 GRANT. Subject to the terms and conditions set forth herein,
Landlord hereby grants to Tenant and its Affiliates the exclusive and continuing
right, at no additional cost, to operate and maintain at locations reasonably
acceptable to Landlord in the Floor One (1) and Floor Two (2) lobbies and common
areas of the Building, such automated teller machines or other electronic
banking or financial services machines and/or outlets (each, an "ATM") as Tenant
or any of its Affiliates shall from time to time in their respective discretion
desire.
40.2 EXERCISE. Not later than March 1, 2000, Tenant shall notify
Landlord whether Tenant or any of its Affiliates, wishes to place one or more
ATMs in the Building as provided in this Article. In the event that Tenant
elects not to do so, Landlord may lease space for
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ATMs to a single third party under a single lease for a term (including any
renewal term) not to exceed five (5) years, provided that no such lease shall
operate to prohibit Tenant from locating any ATMs in the Building as provided in
this Article, and shall expressly exempt Tenant and its Affiliates from any
exclusivity agreement regarding the provision of ATM services. The equipment
used by and location provided to such third party shall be subject to Tenant's
prior written approval, which shall not be unreasonably withheld. In the event
that Tenant or any of its Affiliates later elects to locate any ATMs in the
Building, Landlord shall not, unless otherwise agreed in writing by Tenant,
renew such third party lease, and, except for such lease, Tenant's rights shall
be exclusive as provided in this Section 40.2.
41. GENERAL PROVISIONS
41.1 NO WAIVER. The waiver by either party of any breach of any term,
provision, covenant or condition contained in this Lease, or the failure of a
party to insist on the strict performance by the other, shall not be deemed to
be a waiver of such term, provision, covenant or condition as to any subsequent
breach thereof or of any other term, covenant or condition contained in this
Lease. The acceptance of Rent hereunder by Landlord shall not be deemed to be a
waiver of any breach or default by Tenant of any term, provision, covenant or
condition herein, regardless of Landlord's knowledge of such breach or default
at the time of acceptance of rent.
41.2 TERMS; HEADINGS. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. The words used in
neuter gender include the masculine and feminine genders, and words used in the
masculine or feminine gender include the opposite gender as well as the neuter.
The headings or titles to the Articles or Sections of this Lease are not a part
of this Lease and shall have no effect upon the construction or interpretation
of any part hereof.
41.3 AMENDMENT. This instrument, together with any exhibits and
attachments or other documents affixed hereto, or referred to herein,
constitutes the entire and exclusive agreement between Landlord and Tenant with
respect to the Premises and the estate and interest leased to Tenant hereunder.
This Lease and the exhibits and attachments hereto may be altered, amended,
modified or revoked only by an agreement in writing signed by both Landlord and
Tenant. Landlord and Tenant hereby agree that all prior or contemporaneous oral
understandings, agreements or negotiations relative to the leasing of the
Premises and all prior written agreements relative to the leasing of the
Premises are merged into and revoked by this instrument.
41.4 SUCCESSORS AND ASSIGNS. Subject to the provisions of Article 23,
this Lease is intended to and does inure to the benefit of and bind the heirs,
executors, administrators, successors and assigns of the parties hereto.
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41.5 NOTICES. All notices, consents, approvals, requests, demands and
other communications (collectively "notices") which Landlord or Tenant are
required or desire to serve upon, or deliver to, the other shall be in writing
and mailed postage prepaid by certified or registered mail, return receipt
requested; or deposited in the United States Mail; or sent by reputable
overnight delivery service; or sent by facsimile with a copy deposited in the
United States Mail on the same day; or delivered by personal delivery, to the
appropriate address indicated below, or at such other place or places as either
Landlord or Tenant may, from time to time, respectively, designate in a written
notice given to the other. Notices shall be deemed sufficiently served or given
on the date dispatched in a manner provided above, and periods provided in this
Lease for response to any notice shall be deemed to commence on the date of
actual receipt thereof. Any notice by Tenant to Landlord shall be addressed to
the Landlord at:
▇▇▇▇ 800, LLC
c/o Ryan Properties, Inc.
700 International Centre
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
and, if requested in writing by the Landlord or required under the terms of this
Lease, given or served simultaneously to the Landlord's mortgagee at the address
specified in such request. Any request by Landlord to Tenant shall be addressed
to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Manager, Real Estate and Facilities
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Rejection or other refusal to accept a notice, request, communication or demand
or the inability to deliver the same because of a changed address of which no
notice was given shall be deemed to be receipt of the notice, request,
communication or demand sent. All Rent shall be deemed paid by Tenant upon
deposit of the same in the United States Mail or dispatch of the same in any
other manner permitted for notices under this Section 41.5 (other than
facsimile), provided such Rent is actually later received by Landlord.
41.6 SEVERABILITY. If any term or provision of this Lease or any
application thereof shall be invalid or unenforceable to any extent, the
remainder of this Lease and any other application of such provision shall not be
affected thereby.
-91-
41.7 TIME OF ESSENCE. Time is of the essence in every term of this
Lease, including Article 5 and EXHIBIT D.
41.8 GOVERNING LAW. This Lease shall be interpreted and construed in
accordance with the laws of the State of Minnesota.
41.9 INTERPRETATION. The language in all parts of this Lease shall in
all cases be construed simply according to its generally understood meaning, and
not strictly for or against Landlord or Tenant, irrespective of the parties'
respective efforts in drafting the same. Whether or not expressly provided where
such term appears in this Lease, the term "include" (and any variation thereof)
is not limiting, and the term "in [a party's] sole discretion" means sole,
unqualified and absolute discretion.
41.10 FORCE MAJEURE. Except as otherwise expressly provided in this
Lease, neither Landlord nor Tenant shall be liable to the other for any failure
to comply or delay in complying with its obligations hereunder if and to the
extent such failure or delay is due to an Unavoidable Delay.
41.11 MEMORANDUM OF LEASE. Either party will, upon the written request
of the other party, execute a short form lease ("Short Form Lease") regarding
this Lease, in a form suitable for recording with the Registrar of Titles and/or
the County Recorder for Hennepin County, Minnesota. Such Short Form Lease will
be dated as of the date of this Lease and will disclose the parties, the Term,
descriptions of the Premises, Tenant's extension, expansion, and first offer
rights and such other terms and conditions as the parties agree upon. The party
requesting the execution of such Short Form Lease will bear all costs of the
Short Form Lease, including any recording fees. Upon the execution of an
amendment to this Lease and the written request of either party, the parties
shall execute a corresponding amendment to the Memorandum of Lease, but such
corresponding amendment shall not be a condition of the effectiveness of any
lease amendment.
41.12 RECORDABLE TERMINATION. Either party will, following any
termination of this Lease and upon the written request of the other party,
execute a document setting forth the date of such termination, in a form
suitable for recording with the Registrar of Titles and/or the County Recorder
for Hennepin County, Minnesota. Failure of a party to execute such a document
shall not affect the termination, and in such event the party requesting the
document may execute and file an affidavit setting forth the date of
termination. The party requesting the execution of such document shall bear all
costs thereof, including any recording fees. This Section 41.13 shall survive
expiration or earlier termination of this Lease.
41.13 APPROVALS AND CONSENTS. In any case where a party may not
unreasonably withhold its approval or consent pursuant to the express provisions
of this Lease, such approval or consent shall not (whether or not expressly so
provided) be unreasonably delayed or conditioned.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the date first set forth above.
LANDLORD: ▇▇▇▇ 800, LLC
By /s/ [ILLEGIBLE]
----------------------------------
Its Chief Mgr.
-------------------------------
TENANT: ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC.
By /s/ [ILLEGIBLE]
----------------------------------
Its CFO
----------------------------
-93-
EXHIBIT A
LEGAL DESCRIPTION OF LAND
Tracts A, B and E; That part of Tract G lying Southeasterly of the Northeasterly
extension of the Northwesterly line of said Tract B, Registered Land Survey No.
1625, Files of Registrar of Titles, County of Hennepin, State of Minnesota.
Together with the rights and easements created by the following documents:
(1) Skyway and Tunnel Agreement dated April 4, 1986, filed June 27, 1986 as
Document No. 5124377, as amended by Amendment to Skyway and Tunnel
Agreement dated February 17, 1998, filed ________________, 1998 as
Document No.________________.
(2) Skyway Agreement dated May 31, 1989, filed January 11, 1990, as Document
No. 2066682, as amended by Declaration of Transfer of Rights dated
January 11, 1990, filed January 11, 1990, as Document No. 2066683.
(3) Second Restated Declaration-800 Tower Parcel/LaSalle Parcels dated
October 10, 1997, filed November 21, 1997, as Document No. 2863489.
(4) Restated Loading Dock Easement and Operating Agreement dated October 10,
1997, filed November 21, 1997, as Document No. 2863490.
(5) Restated Lakewood Declaration dated October 10, 1997, filed November 21,
1997, as Document No. 2863491.
(6) Parking Garage Easement Agreement dated October 10, 1997, filed November
21, 1997, as Document No. 2863492.
A-1
EXHIBIT B
FLOOR PLANS
[To be attached pursuant to Section 2.3 upon completion of
the Approved Base Building Plans and Specifications]
B-1
EXHIBIT C
MEMORANDUM OF COMMENCEMENT DATE
THIS MEMORANDUM is entered into as of ______________________, 200__, by
and between ▇▇▇▇ 800, LLC, a Minnesota limited liability company ("Landlord"),
and ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware corporation ("Tenant").
RECITALS
A. Landlord and Tenant are parties to an
Office Lease dated March
_____, 1998 (the "Lease"), covering certain premises more particularly described
in the Lease (the "Premises"), which Premises are a part of the building located
on the property in Minneapolis, Minnesota, legally described on EXHIBIT A
attached hereto. A Short Form of Lease with respect to the Lease was recorded in
the Office of the Registrar of Titles of Hennepin County on March ____, 1998, as
Document No. ______________.
B. Section 4.2 of the Lease provides that promptly following the
Commencement Date (as defined in the Lease), Landlord and Tenant will execute a
memorandum which sets forth the Commencement Date and the date of expiration of
the Term (as defined in the Lease).
C. The Commencement Date has been determined, and Landlord and
Tenant hereby wish to satisfy Section 4.2 of the Lease by execution of this
Memorandum.
ACCORDINGLY, Landlord and Tenant hereby agree as follows:
1. The Commencement Date of the Lease is ______, 200__.
2. The date of the expiration of the Initial Term of the Lease is
_____, 201__.
[Remainder of page intentionally left blank]
C-1
IN WITNESS WHEREOF, the undersigned have executed this Memorandum as of
the day and year first above written.
LANDLORD: ▇▇▇▇ 800, LLC
By
-------------------------------------
Its
---------------------------------
TENANT: ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC.
By
-------------------------------------
Its
---------------------------------
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _____ day of
_____, 200___, by _______, the __________ of ▇▇▇▇ 800, LLC, a Minnesota limited
liability company, on behalf of the company.
-----------------------------
Notary Public
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ____ day of
_________, 200___, by ______________ the ________________ of ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies Inc., a Delaware corporation, on behalf of the corporation.
-----------------------------
Notary public
This Instrument was drafted by:
Faegre & ▇▇▇▇▇▇ LLP (SAA)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
612/336-3000
C-2
EXHIBIT D
WORK LETTER
This Work Letter is an Exhibit to and is incorporated in the
Office
Lease dated as of March _____, 1998 ( the "Lease"), by and between ▇▇▇▇ 800,
LLC, a Minnesota limited liability company, as landlord, and ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES INC., a Delaware corporation, as tenant, covering certain premises
described in the Lease, and sets forth certain obligations of the parties with
respect to construction of the Building and the Tenant Work in the Premises.
The parties hereby agree as follows:
1. CERTAIN DEFINITIONS
Unless specifically defined differently in this Section or elsewhere in
this Work Letter, all words with the initial letter capitalized shall have the
meanings respectively given them in Lease. The following definitions shall apply
specifically to this Work Letter:
ADDITIONAL SKYWAY. The skyway described in Section 2.10.1.
ADDITIONAL SKYWAY CONSTRUCTION COSTS. The following net sum: (a) one
hundred ten percent (110%) of the Hard Construction Costs reasonably estimated
by Landlord to be incurred by Landlord in the construction of the Additional
Skyway and any required modifications to the Midwest Plaza building pursuant to
the procedure provided in Section 2.10.1 as contained in Landlord's statement
described in, or determined by the Approved Arbitrator pursuant to Section
2.10.3, plus (b) any out-of-pocket fees, costs or charges (other than repair,
maintenance or construction costs) payable to the owner of the Midwest Plaza
building on account of the Additional Skyway pursuant to the agreements
described in Section 2.10.2, less (c) any contributions whatsoever received by
any other parties (including the City of Minneapolis, the Minneapolis Community
Development Agency and the owner of the Midwest Plaza building) on account of
the Additional Skyway.
ALTERNATIVE SKYWAYS. As defined in Section 2.10.1.
APPROVED ARBITRATOR(S). C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇, collectively.
APPROVED BASE BUILDING PLANS AND SPECIFICATIONS. The final Base Building
Plans and Specifications as approved or deemed approved by Tenant under Section
2.2.2.
APPROVED TENANT WORK PLANS AND SPECIFICATIONS. The final Tenant Work
Plans and Specifications as approved or deemed approved by Landlord under
Section 3.2.
BASE BUILDING COMPLETION DATE. The first date on which the Base Building
Work shall be complete and operational in accordance with the requirements of
Section 2.3 and the other provisions of this Work Letter, except for Punch List
Items, and, without limitation, each of the following have occurred and be
continuing:
(a) the basic building structure and all exterior work of
the Building, including the roof and the exterior curtain walls
(including windows and entrances which are a part of such curtain walls)
shall be complete, including with the Premises and all Common Areas
watertight and served by HVAC in accordance with Section 13.2 of the
Lease;
(b) all Common Areas (including the Skyways (other than the
Additional Skyway or the Alternative Skyways, as applicable, but
including the LaSalle Passageway if Landlord elects to construct the
same pursuant to Section 5.1.3 of the Lease), the Floor One (1) and
Floor Two (2) elevator lobbies and the general public circulation areas
on Floor One (1) and Floor Two (2) of the Building) shall be complete,
open and available for use to the extent necessary to provide the Tenant
and its employees and invitees clear, safe, presentable and convenient
use and access to and from the Premises;
(c) the Building's life safety, sanitary, electrical, HVAC
and other Building Systems to the extent serving any portion of the
Premises or the Common Areas shall be properly balanced and in good
order and operational and shall be capable of providing the Services;
(d) the truck docks and loading areas of the Building,
including all security devices and controls and access thereto from the
Building and public streets and sidewalks, are complete, open and
available for use to the extent necessary to provide Tenant and its
contractors, employees and invitees clear, safe, convenient and
presentable access to and from the Premises and the Common Areas for all
purposes consistent with the Lease, including installation and delivery
of Tenant's furniture, trade fixtures and personal property;
(e) all toilet rooms in the Premises shall be complete, open
and available for use to the extent necessary to provide Tenant and its
employees and invitees clear, safe, convenient and presentable use and
access thereto;
(f) the Parking Garage, including all security devices and
controls and access thereto from the Building and public streets, shall
be complete, open and
D-2
available for use to the extent necessary to provide Tenant and its
employees and invitees clear, safe, convenient and presentable use and
access thereto;
(g) the Allocated Storage Space with respect to the Initial
Premises shall be complete (including in accordance with Section 12.6 of
the Lease), open and available for use to the extent necessary to
provide Tenant and its employees and invitees clean, safe, convenient
and presentable use and access thereto;
(h) all passenger and freight elevators, escalators,
stairways and other vertical transportation systems serving the Premises
and Common Areas (including the Parking Garage and all truck docks and
loading areas) shall be in good order and operational, capable of
meeting or exceeding their design capacity and the Base Building Shell
Condition Requirements, and shall be complete, open and available for
use to the extent necessary to provide Tenant and its employees and
invitees clear, safe, convenient and presentable use and access to and
from the Premises and the Common Areas;
(i) the escalators serving Floor One (1) and Floor Two (2)
shall be in good order and operational, capable of meeting or exceeding
their design capacity and the Base Building Shell Condition Requirements
and shall be complete, open and available for use to the extent
necessary to provide Tenant and its employees and invitees clear, safe,
convenient and presentable use and access to and from the Premises, the
Common Areas;
(j) there shall be clear, safe, convenient and presentable
pedestrian access to the Building to and from all adjacent public
streets and sidewalks and all Skyways;
(k) the premises fronts and all other portions of all
unoccupied tenant areas on Floor One (1) and Floor Two (2) which are
visible from any portion of the Common Areas or the exterior of the
Building are sheet rocked, taped and temporarily finished or separated
by opaque glass fronts, in either case in a first class and attractive
manner;
(l) the Base Building Work shall have received, and Tenant
shall have received a copy of, all necessary governmental and
quasi-governmental approvals, including a certificate of occupancy or
other governmental authorization shall have been issued for the Building
such that Tenant shall not be precluded, upon completion of the Tenant
Work on a Floor by Floor basis, from receiving a certificate of
occupancy or other permit from the City of Minneapolis or other
governmental authority required for Tenant's use of the Premises by
reason of the failure of Landlord to complete any portion of the Base
Building Work, and, if such certificate is temporary, the conditions to
issuance of the final certificate of occupancy shall be reasonably
acceptable to Tenant;
D-3
(m) the Delivery Date for all Floors in the Initial Premises
shall have occurred;
(n) the clean-up described in Section 2.3.4 shall have been
completed with respect to all of the areas described in items (a)
through (j) above;
(o) Tenant shall have received a certificate from Landlord's
Architect addressed to Tenant stating that each of the items (a) through
(m) described in this Section has been completed; and
(p) the Tenant's Representative, the Project Manager and
Landlord's Architect shall have determined pursuant to Section 2.7 that
each of items (a) through (n) above have been completed and satisfied.
Any dispute as to the occurrence of the Base Building Completion Date or
completion or satisfaction of any of items (a) through (n) above shall be
resolved pursuant to Section 5.
BASE BUILDING CONSTRUCTION SCHEDULE. The schedule for the design,
construction and performance of the Base Building Work attached hereto as
EXHIBIT 5, as the same may be extended by reason of any Tenant Delay pursuant to
Section 2.4.2.
BASE BUILDING PLANS AND SPECIFICATIONS. The Preliminary Base Building
Specifications, and all design development documents and working drawings
further elaborating the design of the Preliminary Base Building Specifications
developed by Landlord's Architect for approval by Tenant under Section 2.2.2
hereof. Upon approval or deemed approval of design documents which supersede
previous documents, "Base Building Plans and Specifications" shall cease to
include the superseded documents.
BASE BUILDING SCOPE DOCUMENTS. The Scope Document, design document list
and Tenant Comment Memoranda attached hereto as EXHIBIT 4.
BASE BUILDING SHELL CONDITION REQUIREMENTS. The minimum shell condition
requirements for the Base Building Work attached hereto as EXHIBIT 1.
BASE BUILDING WORK. The Base Building Work defined in Section 2.1.
DELIVERY DATE. With respect to each Floor of the Premises, the later of
(a) the date occurring fourteen (14) days after the immediately preceding
Delivery Date (which, for purpose of this clause (a), may include pairs of
Floors if so provided in the Base Building Construction Schedule), if any, and
(b) the first date on which each of the following has occurred and be
continuing:
D-4
(i) The Base Building Work shall be complete and operational
in accordance with the requirements of Section 2.3 to the following
extent:
(A) the basic building structure and all exterior
work of the Building, including the roof and the exterior
curtain walls (including windows and entrances which are a part
of such curtain walls) shall be complete and watertight through
the three (3) Floors immediately above the subject Floor;
(B) the mechanical, electrical, plumbing and other
Building System risers, runs and equipment are installed to the
subject Floor and provide service to the subject Floor to the
extent reasonably necessary for performance of the Tenant Work;
(C) the concrete slab for the subject Floor is
complete, level (in accordance with the Approved Base Building
Plans and Specifications), broom clean and ready to receive
Tenant's floorstone, carpet or tile as provided in the Approved
Tenant Work Plans and Specifications;
(D) all Building columns on the subject Floor are
complete;
(E) the interior Building core walls on the subject
Floor are taped and floated;
(F) with respect to the first Delivery Date, the
rooms and space described in Section 12.8 of the Lease shall be
complete and ready to receive Tenant's installations therein;
and
(G) with respect to the last Delivery Date, the
rooms for the housing of electrical equipment related to the
Antennae described in Section 39.1 of the Lease shall be
complete and ready to receive Tenant's installations therein;
(ii) The services described in Section 3.4 shall be available
to Tenant for the performance of the Tenant Work;
(iii) The Building shall otherwise be complete and ready to
the extent necessary for Tenant to construct the Tenant Work on such
Floor to completion without disruption;
(iv) Landlord shall have tendered exclusive possession of the
subject Floor to Tenant, with the clean-up required with respect thereto
in Section 2.3.4 complete with respect to such Floor;
D-5
(v) Tenant shall have received a certificate from Landlord's
Architect addressed to Tenant stating that the items described in (i)
above have been completed to the required extent; and
(vi) The Project Manager, the Tenant's Representative and
Landlord's Architect shall have determined pursuant to Section 2.7 that
each of the items (i) through (iv) above have been completed and
satisfied to the required extent.
Landlord shall cause the Delivery Date to occur in the order and upon the dates
provided in the Base Building Construction Schedule, and shall give Tenant not
less than ten (10) days prior notice of the actual Delivery Date for each Floor
in the Premises. Any disputes as to the occurrence of a Delivery Date or
completion or satisfaction of any of items (i) through (iv) above shall be
resolved pursuant to Section 5.
HARD CONSTRUCTION COSTS. The following reasonable out-of-pocket costs
properly incurred and paid by Landlord for items which are required for the
proper performance of the construction of the subject portion of the Base
Building Work in addition to the costs of performing all other elements or items
of the Base Building Work: Landlord direct costs of materials and equipment
incorporated into such portion of the Base Building Work, including sales tax
and cost of delivery; subcontractor costs; direct job labor costs, including
social security, old age and unemployment insurance and fringe benefits required
by agreement or custom, and workers' compensation insurance; and rental value of
equipment and machinery (not in excess of the cost thereof). In no event shall
Hard Construction Costs include any architectural, engineering, legal, general
condition or "soft" costs, or any fees, profits or overhead payable to any
contractor, subcontractor or any other party. Hard Construction Costs shall be
calculated at rates not higher than those prevailing in the Minneapolis/St. ▇▇▇▇
metropolitan area.
LANDLORD DELAY. Any delay (determined on a daily basis) in the
performance of (a) the Base Building Work which results in Landlord's failure to
achieve any of the milestone dates noted on the Base Building Construction
Schedule (including the Base Building Completion Date or any Delivery Date noted
on the Base Building Construction Schedule) for any reason whatsoever (including
any Unavoidable Delay) less any period of such delay which results solely from a
Tenant Delay, or (b) the Tenant Work by reason of any deficiency in the Base
Building Work or any failure by Landlord to timely and completely perform its
obligations under this Work Letter, including any failure to continuously
provide the services described in Section 3.4 in the manner provided therein
during the entire Tenant Finish Period with respect to each Floor of the Initial
Premises.
LANDLORD'S ARCHITECT. Ellerbe Becket, Inc., or such substitute architect
as Tenant shall approve, which approval shall not be unreasonably withheld or
delayed.
D-6
LANDLORD'S ENGINEER. Lundquist, Killeen, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., or such
substitute engineer as Tenant shall approve, which approval shall not be
unreasonably withheld or delayed.
LONG LEAD TIME ITEM. Any item or element of the Base Building Work
required or requested by Tenant under Section 2.2.2 or 2.2.3(a) which is not
described in, covered by or reasonably inferable from the Preliminary Base
Building Specifications or any previous submission of the Base Building Plans
and Specifications, the procurement or construction of which has a reasonable
probability of causing the Base Building Completion Date or any Delivery Date to
be delayed from the applicable date provided in the Base Building Construction
Schedule solely by reason of limited supplies or suppliers, unusual length of
time to be fabricated, manufactured or delivered, existing or impending labor
problems related to the off-site fabrication, manufacture or delivery of such
items, quantities specified or other similar foreseeable circumstances,
considering, in each such case, the history and current conditions of the
marketplace; provided, however, in no event shall Landlord be entitled to claim
any such item or element is a Long Lead Time Item to the extent the delay with
respect thereto results from any Landlord Delay or to the extent such element
would not have been a Long Lead Time Item had the planning or performance of the
Base Building Work been performed by Landlord in the ordinary course and in
conformance with this Work Letter.
PRELIMINARY BASE BUILDING SPECIFICATIONS. The Base Building Shell
Condition Requirements, the Base Building Scope Documents, the preliminary floor
plates for the Building attached hereto as EXHIBIT 2, and the exterior depiction
of the Building attached hereto as EXHIBIT 3, collectively.
PROJECT. The Base Building Work, the Tenant Work and all other work
performed at the Land or Building, including all work performed by or on behalf
of other Building Occupants.
PROJECT MANAGER. As defined in Section 6.2.
PUNCH LIST ITEMS. Minor details of construction, decoration and
mechanical adjustments which do not materially impair the performance of any
portion of the Tenant Work or the conduct of Tenant's occupancy or the use of
the Premises or any portion thereof, such as paint touch-up, replacement of
damaged ceiling tile and minor HVAC adjustments.
SQUARE FEET. Square feet, square foot, sq. ft. or sf. or similar such
references in this Work Letter shall mean square feet of Rentable Area unless
otherwise expressly provided.
TENANT DELAY. Any actual documented delay (determined on a daily basis)
in the performance of the Base Building Work or in the occurrence of the Base
Building
D-7
Completion Date or any Delivery Date arising from the circumstances giving rise
to a potential Tenant Delay as specifically provided in Sections 2.2.2, 2.2.3(b)
and 2.2.5.
TENANT WORK. As defined in Section 3.1
TENANT WORK PLANS AND SPECIFICATIONS. The plans and specifications for
the Tenant Work described in Section 3.3.
TENANT'S REPRESENTATIVE. As defined in Section 6.1.
WORK LETTER. This Work Letter.
2. BASE BUILDING WORK
2.1 DESCRIPTION. The "Base Building Work" consists of the items of
work identified in the Preliminary Base Building Specifications, all to be
constructed in accordance with the design details contained in the Approved Base
Building Plans and Specifications and the other requirements of this Work
Letter, including Section 2.3. Except as expressly provided in this Work Letter,
all Base Building Work shall be designed, constructed and otherwise performed at
Landlord's sole cost and expense.
2.2 DESIGN
2.2.1 POPULATION DENSITIES. Notwithstanding anything to the
contrary in this Work Letter, all Base Building Work shall be designed
at least to accommodate (a) population densities of (i) one (1) person
per eighty-five (85) square feet of Usable Area in Floors Eleven (11)
through Thirteen (13) of the Premises, (ii) one (1) person per one
hundred seventy-five (175) square feet of Usable Area on the remainder
of the Floors of the Premises, and (iii) with respect to the HVAC system
only, one (1) person per fifteen (15) square feet of Usable Area for any
conference and meeting areas to be included in the Premises as a part of
Tenant Work, as designated on the Tenant Work Plans and Specifications,
and (b) a space layout of the Premises containing up to twenty-five
percent (25%) of the Rentable Area of the Premises as closed offices to
be allocated among the various Floors of the Premises or portions
thereof as Tenant shall direct.
2.2.2 APPROVAL. As of the date hereof, Landlord and Tenant
acknowledge and agree that, subject to the provisions of Section 2.2.3
and 2.2.6, the Preliminary Base Building Specifications have been
mutually approved by Landlord and Tenant. In addition to informal review
of the development of the Base Building Plans and Specifications as a
part of the meetings held under Section 7, Tenant shall have formal
review and approval rights over all aspects of Base Building Work
design, including (a) overall architectural design, (b) materials, color
and all other aesthetic
D-8
specifications relating to all aspects of the Building (including the
curtain wall and skin), (c) the design and specifications relating to
all Common Areas and Building amenities (including all landscaping,
vertical transportation systems and schemes, signage and directory
boards, restrooms, Skyways, truck docks and loading areas, and the
Parking Garage), including the finishes, materials and grade thereof,
and (d) the design and specifications relating to Building Systems.
Tenant's review and approval of the Base Building Plans and
Specifications shall be conducted at the following stages and in
accordance with the Base Building Construction Schedule:
(w) First, Landlord shall furnish Tenant three (3)
complete sets of fifty percent (50%) of Base Building Work
design development documents described on and conforming to the
requirements of EXHIBIT 6;
(x) Second, Landlord shall furnish Tenant three (3)
complete sets of the remaining Base Building Work design
development documents;
(y) Third, Landlord shall furnish Tenant three (3)
complete sets of fifty percent (50%) of the Base Building Work
working drawings described on and conforming to the requirements
of EXHIBIT 6 prepared from the design development documents
approved by Tenant under clauses (w) and (x) above; and
(z) Fourth, Landlord shall furnish Tenant three (3)
complete sets of the remaining Base Building working drawings.
All deliveries of Base Building Plans and Specifications shall be
prepared (or reviewed and approved) by Landlord's Architect or
Landlord's Engineer prior to submission to Tenant. Landlord shall give
Tenant at least ten (10) days advance notice of the submission of each
such delivery. Landlord shall specifically inform Tenant in writing at
the time of any such submission of (a) any deviation contained in any
such submission from the requirements (operational or otherwise) of the
Preliminary Base Building Specifications or any previous submission of
Base Building Plans and Specifications, and (b) any Hazardous Materials
to be incorporated in the Base Building Work covered by such submission.
Landlord shall not be relieved from responsibility for errors or
omissions in the Base Building Plans and Specifications by Tenant's
receipt or approval thereof. Landlord shall direct specific attention,
in writing or noted on resubmitted Base Building Plans and
Specifications or similar submissions, to any revisions contained in any
such submissions other than those requested by Tenant on previous
submissions. Tenant shall have fifteen (15) days after the date of each
such submission to approve or disapprove such submission, which approval
may be withheld in Tenant's sole discretion; provided, however, Tenant
shall not unreasonably withhold its approval to any particular
element(s) of an applicable submission to the extent such element is
covered in reasonable detail by and is
D-9
consistent with the Preliminary Base Building Specifications, all
previous submissions of Base Building Plans and Specifications, and is
consistent with the Minimum Building Standards. Any disapproval by
Tenant shall be specified in reasonable detail. Any failure by Tenant to
deliver written notice of approval or disapproval within such fifteen
(15) day period shall be deemed to be approval of such submission by
Tenant. Promptly after receipt of any disapproval by Tenant or
resolution thereof pursuant to Section 5 (if applicable), Landlord shall
diligently proceed to cause the applicable submission of the Base
Building Plans and Specifications to be revised to address such
disapproval or resolution and re-submit such Base Building Plans and
Specifications to Tenant for its approval pursuant to this Section
2.2.2. Notwithstanding any approval or deemed approval by Tenant,
Landlord shall be responsible for ensuring that all submissions of the
Base Building Plans and Specifications conform to all Legal
Requirements, and receive all approvals necessary under Legal
Requirements as and when necessary to allow the Base Building Work to be
completed in accordance with the Base Building Construction Schedule. If
Tenant gives notice of disapproval under this section 2.2.2, the matter
shall be resolved pursuant to Section 5 (provided that any such
resolution shall be limited to (y) determination of whether any proposed
element of a submission is one as to which Tenant must be reasonable in
its approval pursuant to this Section 2.2.2, and (z) with respect to
elements described in clause(y), whether Tenant's disapproval was
reasonable). At any time between Tenant's notice of disapproval under
this Section 2.2.2. and completion of the dispute resolution pursuant to
Section 5, Landlord shall have the option to proceed to construct any
applicable element of the Base Building Work as to which Tenant may not
unreasonably withhold its consent pursuant to this Section 2.2.2 in
accordance with the Base Building Plans and Specifications or change
disapproved by Tenant. In the event Landlord elects not to so proceed
with construction and the Approved Arbitrator decides in favor of
Landlord, then Tenant's disapproval shall be a circumstance giving rise
to a potential Tenant Delay. In the event Landlord elects not to so
proceed with construction, the Approved Arbitrator decides in favor of
Tenant, and the delay pending arbitration delays a Delivery Date with
respect to any Floor or the Base Building Completion Date, then the
number of days of such actual delay shall constitute Landlord Delay. In
the event Landlord elects to so proceed with construction and the
Approved Arbitrator decides in favor of Tenant, the Landlord shall
reconstruct the item of Base Building Work in accordance with the
Approved Arbitrator's decision, and where such arbitration and
reconstruction causes an actual delay in a Delivery Date with respect to
any Floor, then the number of days of such actual delay shall constitute
Landlord Delay.
2.2.3 CHANGES
(a) TENANT REQUESTS AND APPROVALS. If Tenant shall
request any discretionary change in the Approved Base Building
Plans and Specifications, Tenant shall request such change in
writing to Landlord, which request shall
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include such plans, drawings and/or descriptions as may be
reasonably necessary to describe the requested change. Landlord
shall have ten (10) days, unless such change involves any Long
Lead Time Items, in which case Landlord shall have twenty (20)
days, following Tenant's request to approve or disapprove such
change, which approval shall not be unreasonably withheld. If
Landlord does not disapprove such change within such ten (10) or
twenty (20) day period, as applicable, such change shall be
deemed approved. Any disapproval by Landlord shall be specified
in reasonable detail. Landlord will not withhold or delay its
approval of the requested change provided the change does not
(a) violate any Legal Requirements, (b) materially adversely
affect the exterior appearance of the Building, the Building
Systems, or the Common Areas, or (c) materially change the scope
of the Base Building Work. If Landlord gives notice of
disapproval under this Section 2.2.3(a), the dispute shall be
resolved in accordance with Section 5. In no event shall any
request or requirement by Tenant to correct any incomplete,
inadequate, non-conforming or deficient items or elements of the
Base Building Work be deemed to be a Tenant requested change.
(b) COSTS AND DELAY. Before proceeding with a change
requested by Tenant, Landlord shall submit to Tenant in writing
within ten (10) days after Tenant notifies Landlord of a
requested change, a proposed change order containing a
reasonable estimate of the cost to be incurred by Landlord and
associated with the change, if any, and the additional period of
time, if any, the change will add to the Base Building
Completion Date or any Delivery Date. The cost of such change
(i) shall be limited to only (A) the Hard Construction Costs
incurred in the performance of such change, (B) the actual,
documented, reasonable out-of-pocket engineering and
architectural fees (without any profit, overhead or ▇▇▇▇-up
whatsoever) actually and properly paid by Landlord and incurred
to incorporate such change into the Approved Base Building Plans
and Specifications, and (C) a profit and overhead fee equal to
five percent (5%) of such Hard Construction Costs (and without
any further fee, profit, ▇▇▇▇-up or general conditions costs
whatsoever). When both additions and credits are involved in any
change, the profit and overhead fee described in clause (C)
above shall be calculated on the basis of the net increase, if
any, with respect to that change. In calculating the cost of the
change, all cash discounts, rebates or refunds, all trade
discounts, rebates or refunds, and all proceeds from the return
of surplus materials and equipment shall be deducted therefrom
and shall accrue to the benefit of Tenant. If Tenant fails to
approve such change order within five (5) days following receipt
thereof, the same shall be deemed disapproved and Landlord shall
not proceed with the change. If Tenant gives Landlord notice
within such five (5) day period that Tenant disapproves such
statement, but shall still desire to have such change made, the
dispute shall be resolved in accordance with Section 5, and
pending such resolution, ▇▇▇▇▇▇▇▇
▇-▇▇
shall promptly proceed to make such change. If Tenant approves
said statement within said period, (y) Landlord shall promptly
proceed to make the approved change, and (z) the delay, if any,
specified in the approved statement or determined pursuant to
Section 5 shall be circumstance giving rise to a potential
Tenant Delay. Before Landlord shall be obliged to proceed to
make any change hereunder, Tenant shall agree to pay to Landlord
the lesser of (a) one hundred two percent (102%) of the amount
of such estimated costs contained in Landlord's change order or
as determined by the Approved Arbitrator, or (b) the costs
(limited as provided above) actually incurred on account such
change, which payment shall be made not more frequently than
monthly on a draw request basis as such costs are incurred.
Landlord shall promptly proceed with the change as soon as
reasonably possible after receipt of Tenant's (y) approval of
the change order, and (z) agreement to pay for the costs of such
change in accordance with the preceding sentence.
(c) LANDLORD REQUESTS AND APPROVALS. If Landlord
shall request any change in the Approved Base Building Plans and
Specifications, Landlord shall request such change in writing to
Tenant, which request shall be accompanied by three (3) complete
sets of revised Base Building Plans and Specifications
documenting and drawing specific attention to such proposed
change. Tenant shall have ten (10) days following Landlord's
request to approve or disapprove such change, which approval may
be withheld in Tenant's sole discretion; provided, however,
Tenant shall not unreasonably withhold its approval to any
change which (i) is minor detail or specification of the Base
Building Work, (ii) does not relate to or affect any of the
aspects described in the second sentence of Section 2.2.2 (other
than minor non-aesthetic details or specifications with respect
to the aspects described in clauses (c) or (d) of such sentence,
as to which Tenant shall so be reasonable), (iii) is not
inconsistent with the operational or other aspects of the
Preliminary Base Building Specifications, and (iv) is consistent
with the Minimum Building Specifications. If Tenant does not
disapprove such change within such ten (10) day period, such
change shall be deemed approved. Any disapproval by Tenant shall
be specified in reasonable detail. If Tenant gives notice of
disapproval under this Section 2.2.3(c), the dispute shall be
resolved in accordance with Section 5 (provided that any such
resolution shall be limited to determination of whether (y) a
proposed change is one as to which Tenant must be reasonable in
its approval pursuant to this Section 2.2.3(c), and (z) with
respect to changes described in clause (y), whether Tenant's
disapproval was reasonable). At any time between Tenant's notice
of disapproval, under this Section 2.2.3(c) and completion of
the dispute resolution pursuant to Section 5, Landlord shall
have the option to proceed to construct the applicable element
of the Base Building Work in accordance with any change
disapproved by Tenant as to which Tenant may not unreasonably
withhold its consent pursuant to this
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Section 2.2.3(c). In the event Landlord elects not to so proceed
with construction and the Approved Arbitrator decides in favor
of Landlord, then Tenant's disapproval shall be a circumstance
giving rise to a potential Tenant Delay. In the event Landlord
elects not to so proceed with construction, the Approved
Arbitrator decides in favor of Tenant, and the delay pending
arbitration delays a Delivery Date with respect to any Floor or
the Base Building Completion Date, then the number of days of
such actual delay shall constitute Landlord Delay. In the event
Landlord elects to so proceed with construction and the Approved
Arbitrator decides in favor of Tenant, the Landlord shall
reconstruct the item of Base Building Work in accordance with
the Approved Arbitrator's decision, and where such arbitration
and reconstruction causes an actual delay in a Delivery Date
with respect to any Floor or the Base Building Completion Date,
then the number of days of such actual delay shall constitute
Landlord Delay. No change proposed by Landlord, whether or not
approved or deemed approved by Tenant pursuant to this Section
2.2.3(c), shall impose any costs of Tenant whatsoever or release
Landlord from its obligations to perform and complete the Base
Building Work in strict accordance with the Base Building
Construction Schedule.
2.2.4 LONG LEAD TIME ITEMS. If in connection with (a) Tenant's
review and approval of the Base Building Plans and Specifications
pursuant to Section 2.2.2, or (b) a change requested by Tenant pursuant
to Section 2.2.3(a), Tenant shall request any Long Lead Time Items,
Landlord shall notify Tenant of such item within twenty (20) days after
such request, which notice shall contain (x) any reasonable
substitutions for such Long Lead Time Item of which Landlord is aware,
(y) if Tenant requires such Long Lead Time Item, any reasonably feasible
temporary alternatives, and (z) Landlord's estimate of the Hard
Construction Costs of performing the Base Building Work by the
applicable Delivery Date and Base Building Completion Date with such
temporary alternative and replacing such temporary alternative with the
Long Lead Time Item. If Landlord shall fail to so notify Tenant,
Landlord shall not be entitled to assert any such Long Lead Time Items.
If within fifteen (15) days after Landlord's notice, Tenant does not
elect to make a substitution therefor (either of its own or as suggested
by Landlord as aforesaid) pursuant to this Section 2.2.4, Tenant shall
be deemed to have elected not to make a substitution and to use
Landlord's recommended temporary alternative, if any, and any delay
resulting from the procurement of such Long Lead Time Items shall be a
circumstance giving rise to a potential Tenant Delay. If Tenant elects,
or is deemed to have elected, to not make a substitution for a Long Lead
Time Item, Landlord shall perform the Base Building Work by the
applicable Delivery Date and the Base Building Completion Date with the
temporary alternative, if any, and shall replace the temporary
alternative with the Long Lead Time as soon as reasonably possible, and
Tenant shall pay all incremental Hard Construction Costs incurred by
Landlord and resulting solely from the temporary alternative. Any
dispute as to whether any such item of work constitutes a Long Lead
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Time Item, the reasonableness of any substitutions therefor, the length
of any contemplated or actual delay resulting therefrom, whether any
temporary alternative is feasible, and the costs associated with a
temporary alternative shall be resolved in accordance with Section 5.
2.2.5 RECORD PLANS. Within twenty (20) days after each
Delivery Date, Landlord shall provide Tenant three (3) complete sets of
completed record plans depicting the completed Base Building Work (with
field measurements only as appropriate under the circumstances) for the
applicable Floor(s) of the Premises showing, without limitation, all
changes and/or revisions that have been made subsequent to the approval
of the Approved Tenant Work Plans and Specifications.
2.2.6 BASE BUILDING SHELL CONDITION REQUIREMENTS. Landlord and
Tenant acknowledge and agree that notwithstanding any other provision of
this Work Letter, in no event shall the Base Building Plans and
Specifications or any aspect or requirements thereof (including the
performance standards contained therein) be deemed to be amended,
altered or modified in any manner except by a separate change order
executed by Tenant specifically describing the change and making
reference to the changed provision of the Base Building Shell Condition
Requirements. Without limitation to the foregoing, absent such a
separate change order (a) in the event of any inconsistency between (i)
the Base Building Shell Condition Requirements, and (ii) any of the
other Preliminary Base Building Specifications, Base Building Plans and
Specifications or Approved Base Building Specifications, the higher
specification of the Base Building Shell Condition Requirements or the
applicable item described in clause (ii) shall control, and (b) no
approval or deemed approval by Tenant of any submission of the Base
Building Plans and Specifications or any change with respect thereto
shall be deemed to alter, modify or amend the Base Building Shell
Condition Requirements, and (c) none of the other Preliminary Base
Building Specifications shall be deemed to alter, modify or amend the
Base Building Shell Condition Requirements, in any manner whatsoever.
2.3 CONSTRUCTION
2.3.1 GENERAL. Landlord at its sole cost and expense will
cause the Base Building Work to be furnished, installed, constructed,
completed and operational in a first class and good and workmanlike
manner and in strict accordance with this Work Letter, the Base Building
Construction Schedule (including causing the Delivery Dates with respect
to each Floor of the Premises to occur in the order and upon the dates
provided in the Base Building Construction Schedule), the Preliminary
Base Building Specifications, the Approved Base Building Plans and
Specifications (as the same may be changed pursuant to Section 2.2.3)
and all Legal Requirements (including the Americans with Disabilities
Act), assuming the population densities and proportion of private
offices to open floor plan space specified in Section 2.2.1. Landlord
shall be
D-14
solely responsible at its sole cost and expense for any and all matters
that must be accomplished to design, construct and complete the Base
Building Work, including filing plans and other required documentation
with the proper governmental authorities, securing all necessary
licenses, permits, approvals, inspections and supervising all details of
the Base Building Work. Landlord's Base Building Work responsibilities
shall also include, without limitation, the following with respect to
the Base Building Work: all labor, materials, equipment, tools,
construction equipment and machinery, water, heat, utilities,
transportation and other facilities and services necessary for the
proper execution and completion of the Base Building Work, whether
temporary or permanent and whether or not incorporated or to be
incorporated in the Base Building Work; construction and financing
costs; payments to contractors and subcontractors; coordination of the
Base Building Work with that of all other portions of the Project so as
to allow all work to be completed on schedule; cost of prompt removal of
all mechanics', materialmen's and like liens from the public record by
payment or surety bond or title insurance policy acceptable to Tenant;
costs to repair and restore damaged, lost or destroyed work; costs to
remove debris from the Building and Land caused by Landlord's trades;
Landlord's architects' and engineers' fees; sales, consumer, use and
other similar taxes; real estate taxes, assessments and Landlord's
insurance costs; legal and brokerage fees and expenses; and utility and
building service costs incurred by Landlord's general contractor.
2.3.2 HAZARDOUS MATERIAL. Landlord represents, warrants and
guarantees that no Hazardous Materials will be incorporated or used in
connection with the Base Building Work, except for those contained in
construction materials customarily incorporated in accordance with all
Legal Requirements in the materials described in the Approved Base
Building Plans and Specifications.
2.3.3 CUTTING AND PATCHING OF WORK. Landlord shall be
responsible for all cutting, fitting or patching that may be required to
complete the Base Building Work or to make its several parts fit
together properly. Landlord shall not damage or endanger any portion of
the Base Building Work or the Tenant Work or any separate contractors by
excavation or by cutting, patching or otherwise altering any work.
Landlord shall not cut or otherwise alter the Tenant Work except with
the written consent of Tenant. Cutting shall be accurately located and
neatly done. Unnecessary cutting shall be avoided. Patching shall be
done by skilled mechanics experienced in the particular type of work
involved. Patching work shall conform to the standards of the
specifications where applicable, and where not specified, such work
shall conform to the highest standards of the trade. Finished patching
work shall be acceptable to the contractor whose work has been patched.
Landlord shall leave all open and uncovered holes, chases and other
openings in its construction as required by Tenant for the installation
of the Tenant Work, provided such openings are accurately located by the
party requiring them before the execution of the construction. In no
event shall a Delivery Date be deemed not to have occurred solely by
reason of such holes, chases
D-15
and other openings being left open and uncovered as so directed by
Tenant. Without limitation to the generality of the foregoing, Landlord
shall cause the ceiling and above-the-ceiling portions of the Base
Building Work with respect to each Floor of the Premises to be left open
and uncovered as reasonably directed by Tenant to the extent necessary
to allow the timely and efficient performance of Tenant Work.
Thereafter, Landlord shall cause such ceiling and above-the-ceiling work
to be finally completed as and when reasonably directed by Tenant and in
accordance with the Approved Base Building Plans and Specifications.
2.3.4 CLEANING-UP. Landlord at all times shall keep the
Building and Land free from accumulation of waste materials or rubbish
caused by its operations. Immediately prior to the Base Building
Completion Date, Landlord shall cause the following clean-up work with
respect to the Common Areas to be completed in such manner consistent
with the Minimum Building Standards: (a) removal of all waste materials,
rubbish, tools, construction equipment, machinery and surplus materials,
(b) removal of all protective coatings, temporary work, barriers and
other protective devices, (c) finished spaces shall be cleaned as
necessary to remove all stains, dirt and dust; glass shall be cleaned on
both faces, and carpet shall be vacuumed, (d) unfinished spaces (such as
mechanical and electrical equipment rooms) shall be "broom clean",
(e) mechanical work such as unit heaters, finned tube radiation and its
covers, grilles and registers in finished spaces shall be cleaned as
necessary to remove all stains, dirt and dust; in unfinished spaces,
mechanical work such as equipment, ducts, and pipes shall be "broom
clean", (f) electrical work such as light fixtures shall be cleaned as
necessary to remove all stains, dirt and dust, (g) temporary buildings
or facilities shall be removed, (h) filters in air handling equipment
shall be replaced according to the specifications, and (i) burned out
lamps shall be replaced). Immediately prior to each Delivery Date,
Landlord shall cause the following clean-up work with respect to the
applicable portions of the Premises to be completed in such manner
consistent with the Minimum Building Standards: (y) removal of all waste
materials, rubbish, tools, construction equipment, machinery and surplus
materials, and (z) causing such portions to be "broom clean" with the
interior surfaces of all exterior corridors clean. In addition, promptly
following the performance of the Tenant Work with respect to a Floor of
the Premises and Tenant's request, Landlord shall cause the clean-up
items described in clauses (b) through (i) above to be performed with
respect to the Base Building Work on such Floor. The foregoing
obligations are in addition to and not by way of limitation of
Landlord's obligation to provide the Base Building Work complete in all
respects by the time limits provided in the Base Building Construction
Schedule. If Landlord or any of its contractors or subcontractors fail
to perform the foregoing clean-up obligations, and Landlord does not
correct such failure within twenty-four (24) hours after receipt of
notice thereof from Tenant, Tenant may do so and the cost thereof may be
deducted from any amounts then or thereafter due to Landlord, including
the Rent payable under the Lease.
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2.3.5 ROYALTIES AND PATENTS. Landlord shall pay all royalties
and license fees incurred in connection with the Base Building Work. It
shall defend all suits or claims for infringement of any patent,
trademark, trade secret, copyright or other intellectual property
rights, and shall save Tenant harmless from loss on account thereof.
2.3.6 INDEMNIFICATIONS.
(a) Landlord agrees to assume entire responsibility
and liability to the fullest extent permitted by law, for all
damages or injury (including death) to all persons, whether
employees or otherwise, and to all property (including the Base
Building Work and loss of use), arising out of (in whole or in
part), resulting from, or in any manner connected with the
execution of the Base Building Work (including from the acts and
omissions of Landlord, the Project Manager, Landlord's
contractor, any subcontractor or sub-subcontractor, or any such
party's agent, employees or anyone acting on behalf of any such
party, including design professionals, engineers and
consultants), except as may result solely from the negligence or
intentional acts of Tenant, Tenant's Representative or any agent
or separate contractor of Tenant. Landlord, to the fullest
extent permitted by law, agrees to indemnify and save harmless
Tenant, Tenant's Representative and their respective officers,
directors, and employees from and against any and all claims,
losses, expenses, penalties, costs and other liabilities arising
out of or resulting from or in any manner connected with the
performance of the Base Building Work or this Work Letter
(except those which are attributable solely to the negligence or
intentional acts of Tenant, Tenant's Representative or any agent
or separate contractor of Tenant), and from and against all
losses, costs, penalties, damages (including punitive damages)
or expense, including legal fees and disbursements, related to
such claims or to the enforcement of the provisions of this
Section 2.3.6(a). Landlord further agrees to obtain, maintain,
and pay for such general liability insurance coverage and
endorsements as will insure the provisions of this Section
2.3.6(a). The foregoing indemnity obligations shall not be
construed to negate, abridge or otherwise reduce any other right
or obligation of indemnity which would otherwise exist as to any
party or person described in this Section 2.3.6(a). The
obligations of Landlord under this Section 2.3.6(a) shall
survive the expiration or termination of the Lease and shall
extend to such claims, losses, damages and expenses asserted or
arising after completion of the Base Building Work as well as
during the Base Building Work's progress. In any and all claims
against any of the parties indemnified pursuant to this Section
2.3.6(a) by an employee of Landlord, a contractor, subcontractor
or sub-subcontractor, anyone directly or indirectly employed by
any of them or anyone acting on behalf of any of them, the
indemnification obligation under this Section 2.3.6(a) shall not
be limited in any way by any limitation on the amount or type of
damages, compensation or benefits payable by or for
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Landlord or any contractor, subcontractor or sub-subcontractor
or other party under workers' compensation acts, disability
benefit acts or other employee benefit acts.
(b) Without limiting any other indemnification
obligations, to the extent permitted by law, Landlord shall
indemnify and save harmless Tenant, the Building and the Land
from any liens or security interests filed or threatened by
Landlord or any contractors, subcontractors, sub-subcontractors
of any tier, or material suppliers and from any related costs,
liabilities, judgments, executions, attorneys' fees and
disbursements, except that Landlord need not defend or indemnify
Landlord for mechanics' lien claims arising solely from the
Tenant Work.
2.4 TIMING.
2.4.1 BASE BUILDING CONSTRUCTION SCHEDULE. Landlord and Tenant
agree to conduct the design and construction of the Base Building Work
in strict accordance with the Base Building Construction Schedule
(including, without limitation, Landlord causing the Delivery Dates with
respect to each Floor of the Premises to occur in the order and upon the
dates provided in the Base Building Construction Schedule). Without
limiting the generality of the foregoing, Landlord shall commence
construction of the Base Building Work, shall thereafter diligently
pursue to complete construction of the Base Building Work and shall
cause such construction to proceed and be completed regardless of
Unavoidable Delays and in all circumstances and events in accordance
with the Base Building Construction Schedule. In any event and without
limitation to the foregoing, Landlord shall cause the Delivery Date with
respect to each Floor and the Base Building Completion Date to occur in
accordance with the Base Building Construction Schedule. Time is of the
essence of this Work Letter, including each of the dates set forth on
the Base Building Construction Schedule. Landlord has agreed that it
bears all risk of delay under this Work Letter (including all risk of
increased costs attributable to such delay) that is occasioned by any
delay in the performance or completion of the Base Building Work other
than Tenant Delay, including by reason of any Unavoidable Delays.
Landlord shall employ sufficient forces and take all other steps
necessary to achieve each of the milestones and dates provided in the
Base Building Construction Schedule in strict accordance therewith. The
performance of the Base Building Work in accordance with the Base
Building Construction Schedule shall not be extended or delayed for any
reason whatsoever without Tenant's consent, which may be given or
withheld in Tenant's sole discretion. In the event any delays are
experienced in the performance of the Base Building Work, Landlord shall
accelerate its performance, employ overtime, cause all contractors and
subcontractors to employ overtime, and take such other steps as are
necessary to meet the Base Building Construction Schedule. Landlord
agrees that it shall not be entitled to any payment or compensation of
any kind from Tenant (other
D-18
than through the shortening of the Tenant Finish Period pursuant to the
definition thereof provided in Section 1.76 of the Lease) for any
damages or liabilities which may arise out of or be caused by any delay
from any cause in the progress of the Base Building Work, whether Tenant
Delay, Unavoidable Delay or otherwise, and Landlord waives any right to
claim such damages.
2.4.2 TENANT DELAY. In the event Landlord intends to assert a
Tenant Delay, Landlord shall notify Tenant within ten (10) days after
the occurrence of the circumstances giving rise thereto, or such Tenant
Delay shall be deemed waived. In the event of a Tenant Delay, Tenant
shall have the right to cause Landlord to accelerate its performance to
the extent reasonably practicable to meet the Base Building Construction
Schedule (irrespective of such delay) by notice to Landlord. In such
event, Tenant shall reimburse Landlord not more frequently than monthly
on a draw request basis for the Hard Construction Costs incurred in
doing so. Any disputes as to whether any Tenant Delay has occurred or
the amount of such costs shall be resolved pursuant to Section 5.
2.5 SUPERVISION AND CONSTRUCTION PROCEDURES.
2.5.1 LANDLORD RESPONSIBILITY. Landlord shall have the sole
responsibility for designing, constructing, and completing the Base
Building Work. Construction services shall be performed by qualified
personnel of Landlord's contractor and by qualified subcontractors,
sub-subcontractors and suppliers under the direction and control of
Landlord, and for whom Landlord shall be responsible. Landlord shall
supervise and direct the Base Building Work using its best skill and
attention. It shall be solely responsible for all construction means,
methods, techniques, sequences and procedures and for coordinating all
portions of the Base Building Work pursuant to this Work Letter.
2.5.2 BASE BUILDING CONSTRUCTION CONTRACTS. ▇▇▇▇ Companies US,
Inc. shall be the general contractor for the performance of the Base
Building Work.
2.5.3 AWARD OF CERTAIN SUBCONTRACTS. In the event Tenant
disputes any aspect of a cost or timing of any changed Base Building
Work described in Section 2.2.3(a), any work associated with the
Additional Skyway pursuant to Section 2.10, any Long Lead Time Item
pursuant to Section 2.2.4, or any excess costs pursuant to Section
2.4.2, if reasonable under the circumstances Tenant may require Landlord
to (a) submit to Tenant copies of any bids and other proposals from
potential subcontractors, Landlord proposes to use, and (b) obtain up to
three (3) bids if requested by Tenant for any such work. Tenant may
reasonably designate entities from whom Landlord shall solicit bids.
Landlord shall in all cases submit a recommendation for award, supported
by a comparative bid analysis for all bids taken, and Landlord's
original estimate for the element of the Base Building Work being
D-19
priced to Tenant. To the extent such bids cannot reasonably be obtained
within the initial five (5) day period described in Article 5, such
period of time shall be extended for the period reasonably necessary to
obtain such bids.
2.5.4 MAINTENANCE OF ORDER. Landlord shall at all times
enforce strict discipline and good order among its employees and other
persons performing the Base Building Work and shall not employ or permit
the employment of unfit persons or persons not skilled in the task
assigned to them.
2.5.5 TENANT INSPECTIONS. Landlord shall allow Tenant,
Tenant's Representative and Tenant's agents, contractors and consultants
free access to the Land, Building and the Base Building Work wherever
located at all reasonable times, including for purposes of inspecting or
testing the same. Landlord shall provide facilities for such access.
Landlord shall not be relieved from its obligations to perform the Base
Building Work in accordance with the Contract Documents either by the
activities or duties of the representatives of Tenant, or by
inspections, tests or approvals required or performed by persons other
than Landlord.
2.6 TENANT'S RIGHT TO REJECT THE BASE BUILDING WORK. Tenant will
have the right to reject any Base Building Work which does not conform to the
requirements of this Work Letter, including Section 2.3.1. Tenant shall also
have the right to require inspection or testing of any Base Building Work to
assure such conformance, whether or not such Base Building Work is then
fabricated, installed, or completed; provided, however, to the extent Tenant
requires testing beyond that which is commensurate with the Minimum Building
Standards, such special testing shall be performed at Tenant's reasonable
expense. Neither Tenant's right to act under this Section 2.6 nor any decision
made by it either to exercise or not to exercise such right shall give rise to
any duty or responsibility of Tenant to Landlord or to any other person or
entity.
2.7 INSPECTIONS; PUNCH LIST. Landlord shall provide Tenant and
Tenant's Representative not less than ten (10) days' prior notice of the
anticipated Delivery Date for each Floor of the Premises as well as the
anticipated Base Building Completion Date. On or before such anticipated date,
Tenant's Representative, the Project Manager and Landlord's Architect shall meet
to (a) inspect the Base Building Work performed with respect to the applicable
date to determine whether such Base Building Work is complete and operational in
accordance with the requirements of Section 2.3, and to determine whether the
Delivery Date or Base Building Completion Date, as applicable, has actually
occurred, and (b) prepare a list of incomplete, inadequate, non-conforming and
deficient items or elements of the Base Building Work (including any Punch List
Items). In addition, Tenant may deliver an additional list of incomplete,
inadequate, non-conforming or deficient items or elements of the Base Building
Work which were not readily determinable at the time of preparation of the
initial lists described in the preceding sentence within thirty (30) days after
the final Delivery Date. Subject to the time limitation contained in Section
2.9.2, Tenant shall have the right to
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supplement said lists from time to time. None of the failure of Tenant to
conduct inspections, to include an item on such lists (or the failure of Tenant
to supplement such lists), or to notify Landlord of items not in accordance with
the requirements of this Work Letter, shall relieve Landlord from the
responsibility to complete all Base Building Work in accordance with this Work
Letter. Landlord agrees to use all due diligence to complete the correction of
all incomplete, inadequate, non-conforming and deficient items or elements as
expeditiously as reasonably possible after preparation or receipt of such lists
and, in connection therewith, to minimize any disturbance of or interference
with the performance of the Tenant Work and Tenant's use of or business in the
Premises or any portion thereof. In the event (y) Landlord fails to complete
such corrective work within thirty (30) days after preparation or receipt of
such lists, or (z) Tenant reasonably determines that any such item of corrective
work will materially interfere with the performance of the Tenant Work or
Tenant's use of or business in the Premises or any portion thereof and Tenant
shall have provided Landlord with not less than ten (10) days' notice of such
determination, then such corrective work shall not be deemed to be Punch List
Items for purposes of this Work Letter, and Tenant may perform all or any
portion of such corrective work and Landlord shall reimburse Tenant within
thirty (30) days after invoice for the costs incurred by Tenant in doing so,
together with interest thereon at the Agreed Interest Rate. In the event
Landlord shall fail to so reimburse Tenant, Tenant may deduct such costs and
interest from the Rent coming due under the Lease. In addition, in the event
Landlord fails to complete such corrective work within sixty (60) days after
preparation or receipt of such lists, upon notice to Landlord Tenant shall
thereafter be entitled to ▇▇▇▇▇ all Rent coming due under this Lease until such
corrective work is finally and satisfactorily completed.
2.8 LANDLORD WARRANTY. Landlord warrants to Tenant that (a) all
materials and equipment furnished under this Work Letter with respect to the
Base Building Work will be of good quality and new unless otherwise specified in
the Approved Base Building Plans and Specifications, (b) the Base Building Work
will be free from faults and defects, and (c) the Base Building Work will
conform and be operational in accordance with all Legal Requirements and the
performance standards of the Preliminary Base Building Specifications, the
Approved Base Building Plans and Specifications, the requirements of Section 2.3
and the other requirements of this Work Letter. All aspects of the Base Building
Work not conforming to these requirements (including any changes or
substitutions not properly approved by Tenant pursuant to Section 2.2.3(c)) are
covered by this warranty and shall be considered defective. The foregoing
warranties shall not be restricted by the limitations of any manufacturer's,
contractor's, subcontractor's or supplier's foregoing warranties, and shall not
be affected by the specification of any product or procedure. The warranty set
forth in this Section 2.8, and shall be in addition to and not by way of
limitation to any warranty or remedy required or provided by Legal Requirements.
If required by Tenant, Landlord shall furnish satisfactory evidence as to the
kind and quality of materials and equipment used in connection with the Base
Building Work and such other information as Tenant shall request to verify the
matters covered by the warranties set forth in this Section 2.8. Landlord agrees
to assign to
D-21
Tenant all manufacturers', contractors' subcontractors' and suppliers'
warranties applicable to items for which Tenant has maintenance responsibilities
under this Lease.
2.9 UNCOVERING AND CORRECTION OF WORK.
2.9.1 UNCOVERING OF WORK. If any portion of the Base Building
Work should be covered contrary to (a) Section 2.3.3, (b) Tenant's
written request, or (c) requirements specifically provided in the
Approved Base Building Plans or Specifications, such portion must, if
required in writing by Tenant prior to the Base Building Completion
Date, be uncovered for its observation and shall be replaced at
Landlord's expense. Even if not so requested or expressed, Tenant may
request prior to the Base Building Completion Date to see such Base
Building Work and it shall be uncovered by Landlord. If such Base
Building Work is found to be in accordance with the Base Building
Construction Documents, the cost of uncovering and replacement shall be
paid by Tenant. If such Base Building Work is found not to be in
accordance with the Base Building Construction Documents, Landlord shall
pay such costs.
2.9.2 CORRECTION OF THE BASE BUILDING WORK. Without limitation
to Section 2.8, if, within one (1) year after the Base Building
Completion Date (or such longer period of time as the applicable portion
of Base Building Work is warranted under the construction contract or
any subcontract covering the applicable portion of Base Building Work),
any of the Base Building Work is found to be defective or not in
accordance with the performance standards of the Preliminary Base
Building Specifications, the Approved Base Building Plans and
Specifications, the requirements of Section 2.3 or the other
requirements of this Work Letter, and Tenant notifies Landlord in
writing of such fact within such one (1) year period, Landlord at its
sole cost and expense shall correct it promptly after receipt of notice
from Tenant to do so, irrespective of whether the time necessary to
complete such corrective work extends beyond such one (1) year period.
In the event (a) Landlord fails to complete such corrective work within
thirty (30) days, or such longer period as shall be reasonably necessary
to complete such corrective work, after such notice, or (b) Tenant
reasonably determines that any such item of corrective work will
materially interfere with the performance of the Tenant Work or Tenant's
use of or business in the Premises or any portion thereof and Tenant
shall have provided Landlord with not less than ten (10) days' notice of
such determination, Tenant may perform all or any portion of such
corrective work and Landlord shall reimburse Tenant within thirty (30)
days after invoice for the costs incurred by Tenant in doing so,
together with interest thereon at the Agreed Interest Rate. In the event
Landlord shall fail to so reimburse Tenant, Tenant may deduct such costs
and interest from the Rent coming due under the Lease. Nothing contained
in Section 2.8 or this Section 2.9 shall be construed to establish a
period of limitation with respect to any other obligation which Landlord
might have under this Work Letter, the Lease or Legal Requirements. The
establishment of time
D-22
periods set forth in this Section 2.9 relate only to the specific
obligations of Landlord to correct the Base Building Work and has no
relationship to the time within which its obligation to comply with this
Work Letter and the Lease may be sought to be enforced nor to the time
within which proceedings may be commenced to establish Landlord's
liability with respect to its obligations other than specifically to
correct the Base Building Work. Landlord's obligations under this
Section 2.9 shall survive any acceptance by Tenant of the Base Building
Work and/or the Premises.
2.10 ADDITIONAL SKYWAY
2.10.1 LANDLORD NOTICE; TENANT OPTIONS; CONSTRUCTION.
(a) If on or before June 1, 1999, Landlord has not
delivered to Tenant, each in form and substance satisfactory to
Tenant (i) a written commitment from Landlord to construct
skyways (A) across Ninth Street connecting the Building directly
with the building then-located or to be located at the corner of
Nicollet Mall and Ninth Street, and (B) across Nicollet Mall
connecting such building with the ▇▇▇▇▇-▇▇▇▇▇▇▇ building
(collectively, the "Alternative Skyways"), (ii) binding and
enforceable agreements acquiring and providing for appropriate
easements and for the design, construction, operation and
maintenance of the Alternative Skyways, and (iii) plans and
specifications for the Alternative Skyway described in clause
(A) above, then Tenant shall have the option, exercised by
notice to Landlord given on or before the later of (x) the date
occurring thirty (30) days after receipt of such notice from
Landlord, and (y) August 1, 1999, to require Landlord, subject
to the cooperation and approval of the owner of the Midwest
Plaza building, to construct a skyway across Nicollet Mall
connecting the Building with the Midwest Plaza building (the
"Additional Skyway") as a part of the Base Building Work in
accordance with the terms and conditions of this Work Letter,
including the approval of the design and construction thereof
pursuant to the foregoing provisions of Article 2 of this Work
Letter.
(b) In the event Landlord shall have made the
deliveries described in clause (a) above but shall have failed
to complete construction (in accordance with the plans and
specifications described above) of the Alternative Skyways on or
before June 1, 2000, Tenant shall have the option of requiring
Landlord to construct the Additional Skyway in accordance with
clause (a) above but in accordance with a revised construction
schedule reasonably acceptable to Tenant (considering the
circumstances).
2.10.2 SKYWAY AGREEMENT. In the event Tenant exercises either
option provided in Section 2.10.1, Landlord shall use best efforts to
negotiate and enter into binding and enforceable agreements in form and
substance acceptable to Landlord and
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Tenant, acquiring and providing for appropriate easements and for the
design, construction, operation and maintenance of the Additional
Skyway. Landlord and Tenant anticipate that such agreements shall
provide that the owner of the Midwest Plaza Building will contribute to
the costs of constructing the Additional Skyway, but such contribution
shall not be a condition of the parties' obligations hereunder. If on or
before November 1, 1999 (in the case of Tenant has exercised its option
contained in Section 2.10.1(a) above) or September 1, 2000 (in the case
of Tenant has exercised its option contained in Section 2.10.1(b)
above), Landlord has been unable to enter into such agreements, then
Tenant, as authorized agent of Landlord, for a period of ninety (90)
days thereafter, may attempt to negotiate said agreements, provided (i)
any such agreements negotiated by Tenant shall be subject to Landlord's
reasonable approval, and (ii) all Additional Skyway design and
construction work shall be performed by Landlord as provided in Section
2.10.1.
2.10.3 COSTS; TERMINATION OF OBLIGATIONS. Within a reasonable
time after the negotiation and approval of the agreements described in
Section 2.10.2, Landlord shall submit to Tenant in writing a statement
of a reasonable estimate of the Additional Skyway Construction Costs and
the estimated dates on which the construction work for the Additional
Skyway shall commence and be completed. If Tenant fails to approve such
statement within five (5) days following receipt thereof, the same shall
be deemed disapproved and Landlord shall not proceed with the
construction of the Additional Skyway. If Tenant gives Landlord notice
within such five (5) day period that Tenant disapproves such statement,
but shall still desire to have the Additional Skyway constructed, the
dispute shall be resolved in accordance with Section 5. If Tenant
approves said statement within said period, (a) Landlord shall cause the
Additional Skyway to be designed and constructed in accordance with
Section 2.10.1 and (b) in accordance with such schedule. Notwithstanding
the foregoing, in the event the total amount of the Additional Skyway
Construction Costs as so approved or resolved exceeds One Million and
No/100 Dollars ($1,000,000.00), either Landlord or Tenant may terminate
their respective rights and obligations under this Section 2.10 by
notice to the other party given within thirty (30) days after Tenant's
receipt of such statement.
2.11 LANDLORD'S RECORDS. Landlord shall keep complete and accurate
records with respect to all costs incurred in connection with the Base Building
Work associated with any change pursuant to Section 2.2.3, the construction of
the Additional Skyway pursuant to Section 2.10, any Long Lead Time Items
pursuant to Section 2.2.4, or any excess costs incurred pursuant to 2.4.2. Such
records shall be maintained in a manner reasonably satisfactory to Tenant.
Tenant shall have access at all reasonable times to such records and other
documents of any kind relating to such Base Building Work, including all
subcontracts, purchase orders, receipts, vouchers and correspondence. All of the
foregoing records and other documents shall be preserved by Landlord, and Tenant
shall have access to them, for not less than three (3) years after the
Commencement Date. Tenant may conduct periodic audits
D-24
of Landlord's records and other documents relating to such Base Building Work,
and Landlord shall cooperate with Tenant in conducting such audits.
3 TENANT WORK
3.1 DESCRIPTION. The "Tenant Work" consists of any initial leasehold
improvements to the Premises which Tenant shall desire as described by the
Tenant Work Plans and Specifications, excluding all Base Building Work and any
alterations, additions or improvements Tenant desires to make after the
Commencement Date.
3.2 DESIGN; APPROVAL. Tenant, at its cost and expense shall cause
the Tenant Work Plans and Specifications of reasonable detail to be prepared by
designers, architects and engineers of Tenant's selection, with the costs
thereof being paid as provided in Section 3.6. Tenant from time to time shall
furnish to Landlord for Landlord's approval all or portions of the Tenant Work
Plans and Specifications, as well as any material changes thereto from time to
time desired by Tenant, which approval may be withheld only if (a) the Tenant
Work or any change proposed thereon violates any Legal Requirement, or (b) the
Tenant Work or any change proposed therein will materially adversely affect the
Building Systems or structure. Any disapproval shall specify Landlord's reasons
in reasonable detail. If Landlord fails to deliver written notice of approval or
disapproval of any submission within fifteen (15) days after the date of any
submission by Tenant, such submission of the Tenant Work Plans and
Specifications shall be deemed approved by Landlord. Tenant shall specifically
inform Landlord in writing at the time of any such submission of any Hazardous
Materials to be incorporated in the Tenant Work covered by such submission.
Tenant shall direct specific attention, in writing or noted on resubmitted
Tenant Work Plans and Specifications, to any revision contained in any such
submission other than those requested by Landlord on previous submissions.
Notwithstanding any approval or deemed approval by Landlord, Tenant shall be
responsible for ensuring that all submissions of the Tenant Work Plans and
Specifications conform to all Legal Requirements, and receive all approval as
and when necessary under Legal Requirements. In the course of the approval
process with respect to any submission of the Tenant Work Plans and
Specifications, Landlord may not disapprove a matter previously approved or
reasonably inferred from a matter previously approved, except that if a new
matter not previously approved causes an inconsistency or other problem not
reasonably anticipated with respect to a previously approved matter, then
Landlord may disapprove the previously approved matter but only to the extent of
such inconsistency or problem. If Landlord gives notice of disapproval under
this Section 3.2, the matter shall be resolved pursuant to Section 5. At any
time between Landlord's notice of disapproval and completion of the arbitration;
Tenant shall have the option to proceed to construct the applicable element of
the Tenant Work in accordance with the Tenant Work Plans and Specifications or
change disapproved by Landlord. In the event Tenant elects not to so proceed
with construction and the Approved Arbitrator decides in favor of Tenant, then
the number of days between Landlord's notice of disapproval and the date of the
arbitration decision shall constitute a circumstance giving rise to a potential
Landlord Delay. In the event Tenant elects to proceed
D-25
with construction and the Approved Arbitrator decides in favor of Landlord,
Tenant shall reconstruct the item of Tenant Work in accordance with the Approved
Arbitrator's decision.
3.3 CONSTRUCTION. Except as otherwise provided in this Work Letter,
at any time after the Delivery Date for any Floor, Tenant at its option may
cause the Tenant Work with respect to such Floor to be furnished, installed and
constructed by contractors and subcontractors of its selection in good and
workmanlike manner and in material accordance with the Approved Tenant Work
Plans and Specifications. The costs and expenses of construction and
installation of the Tenant Work shall be paid as provided in Section 3.6. In the
event Tenant shall select Landlord as its general contractor for the performance
of the Tenant Work, Landlord shall limit its construction management and all
other overhead profits, fees and general condition costs to seven and
seven-tenths percent (7.7%) of the Hard Construction Costs of the Tenant Work.
Tenant shall be solely responsible for all matters that must be accomplished to
design, construct and complete the Tenant Work, including filing plans and other
required documentation with the proper governmental authorities, securing all
necessary licenses, permits, approvals and inspections and supervising all
details of the Tenant Work, except to the extent any of the foregoing is
included in, or required in connection with, the Base Building Work. Tenant's
responsibilities for the Tenant Work shall also include, to the extent not
included in the Base Building Work or Landlord's responsibilities with respect
thereto or pursuant to Section 3.4, and subject to Section 3.6, the following
with respect to the Tenant Work: all labor, materials, equipment, tools, and
construction equipment and machinery necessary for the proper execution and
completion of the Tenant Work which are not Landlord's responsibility pursuant
to this Work Letter, construction and financing costs; payments to contractors
and subcontractors; cost of prompt removal of all mechanics', materialmen's and
like liens from the public record by payment or surety bond or title insurance
acceptable to Landlord; costs to remove debris from the Building and Land caused
by Tenant's trades; sales or similar taxes; and designers, architects' and
engineers' fees. Tenant represents, warrants and guarantees that no Hazardous
Materials will be incorporated or used in connection with the Tenant Work,
except for those contained in construction materials customarily incorporated in
accordance with all Legal Requirements in the materials described in the
Approved Tenant Work Plans and Specifications.
3.4 LANDLORD SERVICES DURING CONSTRUCTION. During the entire period
of performance of the Tenant Work (whether or not that period corresponds with
the period of performance of the Base Building Work) Landlord will continuously
provide from 7:00 a.m. to 3:30 p.m., Monday through Friday, except Holidays
("Normal Construction Hours") to the Floors for which the Delivery Date has
occurred at no charge to Tenant (except as otherwise expressly provided in this
Section 3.4) the following services and facilities, all in operational condition
and in good order:
(a) HVAC services sufficient to allow the efficient
performance of the Tenant Work (e.g., to allow efficient curing of sheet
rock, etc.) and electrical and water services;
D-26
(b) access to and use of truck docks and loading and parking
areas;
(c) vertical transportation for passengers for construction
purposes;
(d) direct vertical transportation for freight and
construction materials and tools to all Floors in the Premises, Floor
One (1) and all Floors containing facilities described in (b), (e), (g)
and (h), which shall include, without limitation, two (2) freight
elevators or hoists (with an attendant operator); Tenant shall have the
first priority right to use one (1) such freight elevator or hoist on a
non-exclusive basis during the construction of its tenant improvements,
provided that if Tenant determines in its sole discretion that the
freight elevator service is not adequate for Tenant's purposes, Tenant
shall have the exclusive use of one (1) freight elevator or hoist during
the performance of the Tenant Work; Tenant further shall have the right
to utilize the passenger elevators for freight transportation and
construction materials and tools, provided all elevator surfaces are
properly protected to prevent damage to the finish thereof;
(e) sufficient staging sites and storage space for materials
and tools not on the subject Floor but in the same elevator bank as the
Premises;
(f) an area and, at Tenant's expense, adequate dumpster
service designated for Tenant's exclusive use for rubbish and trash
removal services in the same elevator bank as the Premises;
(g) at Tenant's expense, temporary toilet facilities for the
exclusive use of Tenant's construction personnel in the same elevator
bank as the subject Premises; and
(h) the Project Manager employed full-time and on-site
during the hours specified in Section 6.2.
Such services shall be provided to Tenant in such manner as to allow efficient
performance of the Tenant Work during the Tenant Finish Period, and in any event
to the end that Tenant shall have the opportunity to perform the Tenant Work
during Normal Construction Hours without the need for overtime. To the extent
Tenant requires any of the services described in this Section 3.4 during other
than Normal Construction Hours, Tenant shall reimburse Landlord for the
reasonable incremental out-of-pocket costs incurred by Landlord in providing
site supervision or an elevator or hoist operator, if necessary, during such
period. Tenant also shall reimburse Landlord for the reasonable out-of-pocket
costs incurred by Landlord in providing such services during any period of
Tenant Delay in the construction of the Tenant Work.
D-27
3.5 ACCESS PRIOR TO DELIVERY DATE. Landlord shall provide Tenant and
its designers, architects, engineers, contractors, subcontractors, agents and
representatives with access to any Floor of the Premises prior to the Delivery
Date thereof for inspection purposes, for purposes related to the preparation of
the Tenant Work Plans and Specifications, and for review and approval of any
proposed changes to the Base Building Work or the Tenant Work.
3.6 COSTS OF TENANT WORK. Landlord shall pay all costs and expenses
incurred in connection with the design, construction and performance of the
Tenant Work (the "Tenant Work Costs") up to a maximum amount of (a) Twenty-Five
and 10/100 Dollars ($25.10) times the number of square feet of Rentable Area in
the Initial Retail Premises, plus (b) Thirty and No/100 Dollars ($30.00) times
the number of square feet of Rentable Area in all other portions of the Initial
Premises, plus (c) Fifteen Thousand and No/100 Dollars ($15,000.00). All Tenant
Work Costs in excess of such amount shall be paid by Tenant. Subject to such
maximum amount, Landlord shall pay the Tenant Work Costs as and when directed by
Tenant directly (or, at Landlord's election, through a title company) to
Tenant's contractors, architects, designers, engineers, consultants and
advisors, or on account of any costs, expenses or charges payable by Tenant
under this Work Letter as and when directed by Tenant. All such payments by
Landlord shall be made on or before the fifteenth (15th) day of the month
following the month in which such direction is made (provided, however, in the
event such direction is made after the twenty-fifth (25th) day of a month, such
payment shall be made on or before the fifteenth (15th) day of the second
succeeding calendar month), subject to Landlord's (or, if applicable, the title
company's) receipt of evidence reasonably demonstrating that the amounts
disbursed are for work which has been completed with respect to the design and
construction of the Tenant Work or for any of Tenant's consulting, relocation,
legal or other costs, expenses or charges incurred in connection the Tenant
Work, the Lease (including this Work Letter) or the Building. To the extent the
above-provided maximum amount is in excess of the Tenant Work Costs directed to
be paid by Tenant, at Tenant's option, such excess shall either be paid in cash
directly to Tenant on the Rent Commencement Date or applied to the Rent as
Tenant shall direct. Landlord's election to pay the Tenant Work Costs through a
title company shall not impose any conditions on Tenant or on advances different
from or in addition to conditions which would have been imposed had Landlord
paid the Tenant Work Costs directly to Tenant's contractors architects,
designers, engineers, consultants and advisors. In the event Landlord shall fail
to timely make a payment on account of the Tenant Work Costs as designated by
Tenant pursuant to this Section 3.6, Tenant may make such payment and deduct the
amount thereof, together with interest thereon at the Agreed Interest Rate, from
the Rent coming due under the Lease.
3.7 HVAC BALANCING. Promptly after notice from Tenant that the
Tenant Work with respect to a Floor of the Premises has been completed, Landlord
shall cause the HVAC system servicing such Floor to be properly balanced so as
to cause such services to be provided to the specifications provided in EXHIBIT
G to the Lease.
D-28
3.8 INDEMNIFICATIONS.
3.8.1 Subject to the proviso contained in the parenthetical in
Section 15.2.2 of the Lease, Tenant agrees to assume entire
responsibility and liability to the fullest extent permitted by law, for
all damages or injury (including death) to all persons, whether
employees or otherwise, and to all property (including the Tenant Work
and loss of use), arising or resulting solely from or in connection with
the execution of the Tenant Work (including from the acts and omissions
of Tenant, Tenant's contractor, any subcontractor or sub-subcontractor,
or any such party's agent, employees or anyone acting on behalf of any
such party, including design professionals, engineers and consultants
(other than Landlord's Architect or Landlord's Engineer)), except as may
result from the negligence or intentional acts of Landlord, the Project
Manager or any agent or separate contractor of Landlord. Tenant, to the
fullest extent permitted by law, agrees to indemnify and save harmless
Landlord, the Project Manager and their respective officers, directors,
and employees from and against any and all claims, losses, expenses,
penalties, costs and other liabilities solely arising out of or solely
resulting from the performance of the Tenant Work (except those which
are attributable to the negligence or intentional acts of Landlord, the
Project Manager or any agent or separate contractor of Landlord), and
from and against all losses, costs, penalties, damages (including
punitive damages) or expense, including legal fees and disbursements,
related to such claims or to the enforcement of the provisions of this
Section 3.8.1. Tenant further agrees to obtain, maintain, and pay for
such general liability insurance coverage and endorsements as will
insure the provisions of this Section 3.8.1. The foregoing indemnity
obligations shall not be construed to negate, abridge or otherwise
reduce any other right or obligation of indemnity which would otherwise
exist as to any party or person described in this Section 3.8.1. The
obligations of Tenant under this Section 3.8.1 shall survive the
expiration or termination of the Lease and shall extend to such claims,
losses, damages and expenses asserted or arising after completion of the
Tenant Work as well as during the Tenant Work's progress. In any and all
claims against any of the parties indemnified pursuant to this Section
3.8.1 by an employee of Tenant, a contractor, subcontractor or
sub-subcontractor, anyone directly or indirectly employed by any of them
or anyone acting on behalf of any of them, the indemnification
obligation under this Section 3.8.1 shall not be limited in any way by
any limitation on the amount or type of damages, compensation or
benefits payable by or for Tenant or any contractor, subcontractor or
sub-subcontractor or other party under workers' compensation acts,
disability benefit acts or other employee benefit acts.
3.8.2 Without limiting any other indemnification obligations,
to the extent permitted by law, Tenant shall indemnify and save harmless
Landlord, the Building and the Land from any liens or security interests
filed or threatened by Tenant or any contractors, subcontractors,
sub-subcontractors of any tier, or material suppliers in
D-29
connection with the Tenant Work and from any related costs, liabilities,
judgments, executions, attorneys' fees and disbursements.
4 UNIT PRICING
Landlord and Tenant agree to reasonably cooperate in obtaining unit
prices (including credit unit prices) for the various elements and items of the
Base Building Work and the Tenant Work.
5. DISPUTE RESOLUTION
When any provision of this Work Letter calls for a dispute to be
resolved or determined pursuant to this Section 5, the parties shall endeavor to
resolve the dispute. If the parties fail to do so within five (5) days (subject
to extension as provided in Section 2.5.3) after such dispute arises, either
party may submit the matter to one (1) of the Approved Arbitrators for binding
arbitration under this Section 5. The parties and such Approved Arbitrator shall
hold a hearing (which shall not exceed two (2) days in length) within five (5)
days after the initial submission of the matter to such Approved Arbitrator, and
the decision of the Approved Arbitrator shall be rendered within two (2) days
after such hearing. The Approved Arbitrator shall have the power to equitably
allocate the time for presentation of evidence between the parties. Except as
provided above, the Arbitration shall be conducted in accordance with the "fast
track" Construction Industry Arbitration Rules of the American Arbitration
Association, although the arbitration shall be administered by the Approved
Arbitrator and it shall not be necessary to file such arbitration with the
American Arbitration Association. The arbitrators shall have the right, without
limitation, to order specific performance and injunctive relief, and judgment
upon the decision rendered by the Approved Arbitrator shall be final, binding
and unappealable, and may be rendered and enforced in any court having
jurisdiction thereof.
6. DESIGNATED REPRESENTATIVES
6.1 TENANT REPRESENTATIVE. Tenant hereby designates ▇▇▇▇ ▇▇▇▇▇ as
"Tenant's Representative" for purposes of this Work Letter. Tenant's
instructions to Landlord will be issued through Tenant's Representative. All
submissions of the Tenant Work Plans and Specifications, comments to the Base
Building Plans and Specifications, change orders and other Tenant deliveries
will be forwarded to Landlord by Tenant's Representative. Tenant's
Representative shall, at all times, have access to the Building and the Base
Building Work and Landlord shall provide facilities for such access. Landlord
shall simultaneously forward to Tenant's Representative duplicate copies of all
notices, correspondence, submissions (including all Base Building Plans and
Specifications) and other deliveries made in connection with the Base Building
Work. Tenant's Representative will endeavor to facilitate communication and the
transmission of information between Tenant and Landlord; however, Tenant's
Representative shall have no authority whatsoever to amend, abridge, modify, or
interpret the Lease, this Work Letter, the Preliminary Base Building
Specifications, the Base Building Plans and Specifications or the Tenant Work
Plans and Specifications in any way.
D-30
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ has the authority to make decisions on Tenant's behalf under
this Work Letter. No supervision or inspection by Tenant's Representative, nor
the authority to act nor any other actions taken by Tenant's Representative,
shall relieve Landlord of any of its obligations under this Work Letter nor give
rise to any duty on the part of Tenant. Tenant may change the designation of
Tenant's Representative from time to time to another person upon not less than
seven (7) day's notice to Landlord.
6.2 PROJECT MANAGER. Landlord hereby designates ▇▇▇▇▇▇ ▇▇▇▇ as
"Project Manager" with the authority to make decisions on Landlord's behalf
under this Work Letter. All written communications given to or by the Project
Manager shall be binding upon Landlord. Landlord with Tenant's approval may
change the designation of Project Manager from time to time to another person
acceptable to Tenant. The Project Manager shall be available at the Building
during all Normal Business Hours (other than on Saturdays and prior to 8:00
a.m.) on a full-time basis and shall work only at the Building until the Base
Building Completion Date.
7. COORDINATION MEETINGS; PROGRESS SCHEDULE
During the period commencing upon execution of the Lease and continuing
until the completion of the Tenant Work, Tenant's Representative, the Project
Manager and other interested representatives, contractors and subcontractors of
Landlord and Tenant shall hold meetings not less often than weekly (a) to
discuss the evolution of the Base Building Plans and Specifications and the
Tenant Work Plans and Specifications, (b) to discuss coordination between
Tenant's architect and Landlord's Architect and consistency between the Approved
Base Building Plans and Specifications and the Tenant Work Plans and
Specifications, and (c) for such other construction related purposes as may be
reasonably requested by Landlord or Tenant. In addition, prior to the
commencement of each phase of the Base Building Work or the Tenant Work,
Tenant's Representative, the Project Manager and all contractors and
subcontractors to be employed in such phase shall hold a meeting to discuss the
coordination and the performance of all work to be performed in such phase, as
well as such other related purposes as may be reasonably requested by Landlord
or Tenant. Landlord, along with the assistance of Tenant, shall develop and
maintain a construction progress schedule consistent with meeting the Base
Building Construction Schedule and shall regularly update and distribute such
schedule at each meeting described in this Section 7.
8. OWNERSHIP AND USE OF DOCUMENTS
The Tenant Work Plans and Specifications and all information, reports
and other documents provided by Tenant to Landlord shall be owned by Tenant.
Landlord shall treat all information relating to Tenant's business and all
information supplied to Landlord by Tenant, or any agent for or contractor of
Tenant, as confidential and proprietary information of Tenant, and shall not
permit its release to other parties or make any public announcement or publicity
releases except upon the express written instruction of Tenant; provided,
however,
D-31
that Landlord may, to the extent necessary to enable it to perform its services
under this Work Letter, disclose such information to (a) its accountants,
attorneys, advisers, lenders, subcontractors, suppliers, architects, and
engineers; (b) public officials in connection with obtaining city or other
governmental approvals for the Base Building Work; and (c) any party to whom
Landlord becomes legally compelled to make disclosure by order of a court of
competent jurisdiction. The Base Building Plans and Specifications are the
property of Landlord. Tenant shall be permitted to retain copies, including
reproductive copies and automated drafting disks, of the drawings,
specifications, and other documents for information and reference. Further,
Tenant shall be granted an irrevocable royalty free license to reproduce and use
the drawings, specifications, or other documents, or any part them or any
information contained in them for Tenant's (and any successor tenant under the
Lease) use only and not for sale or other commercial use. Landlord agrees that
it shall not re-use, sell, transfer, give, or assign copies of the drawings,
specifications, and other documents (in their entirety or any substantial or
distinctive portion thereof) to any other party nor itself re-use, reproduce,
and market the Tenant Work Plans and Specifications ( in their entirety or any
substantial or distinctive portion thereof) nor permit or license any third
party to re-use, reproduce, or market the drawings, specifications, and other
documents (in their entirety or any substantial or distinctive portion thereof).
9. NONLIABILITY OF REVIEWING PARTY
Except as otherwise expressly set forth in this Work Letter, the review
by either Landlord or Tenant (as applicable, the "Reviewer") of any plans or
specifications prepared by the other party (the "Preparer") is for the
Reviewer's benefit only, and the Reviewer's approval of any such plans or
specifications shall (a) be as to concept only, (b) not be relied upon by the
Preparer or by any other person or entity, (c) impose no liability on the
Reviewer, (d) not constitute a representation or warranty by the Reviewer,
express or implied, including any representation or warranty that such plans are
complete or accurate, or that such plans comply with zoning or other Legal
Requirements, and (e) not in any way relieve the Preparer of its obligation to
prepare its plans and perform its work in accordance with the requirements of
this Work Letter.
10. PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS. Landlord shall be responsible
for initiating, maintaining and supervising all safety precautions and programs
in connection with the Project, including compliance with the requirements of
OSHA. Landlord shall establish a written safety program for the Project
("Landlord's Written Safety Program") that will, at a minimum, require that all
persons working on the Project comply with all Legal Requirements. Landlord
shall use reasonable efforts to cause all of its employees, agents and
subcontractors performing Work on the Project to comply with Landlord's Written
Safety Program. Tenant in its agreements with any separate contractors shall (a)
obligate such separate contractors (including their employees, agents and
subcontractors) to comply with
D-32
Landlord's Written Safety Program, and (b) provide that such separate
contractors shall be directly answerable and liable to Landlord for any and all
loss, cost, damage, and expense suffered by Landlord as a result of such
separate contractor's failure to abide by Landlord's Written Safety Program.
10.2 SAFETY OF PERSONS AND PROPERTY. Landlord shall take all
reasonable precautions for the safety of, and shall provide all reasonable
protection to prevent damage, injury or loss to:
(a) all employees on the Base Building Work and all other
persons who may be affected thereby;
(b) all of the Base Building Work and all materials and
equipment to be incorporated therein, whether in storage on or off the
site, under the care, custody or control of Landlord or any contractor,
subcontractor or sub-subcontractor; and
(c) other property at the site or adjacent thereto, such as
trees, shrubs, lawns, walks, pavements, roadways, structures and
utilities not designated for removal, relocation or replacement in the
course of construction.
Landlord shall give all notices and comply with all Legal Requirements bearing
on the safety of persons or property or their protection from damage, injury or
loss. Landlord shall erect and maintain, as required by existing conditions and
by performance of this Work Letter, all reasonable safeguards for safety and
protection, including posting danger signs and other warnings against hazards,
promulgating safety regulations and notifying tenants and users of adjacent
utilities. When the use or storage of explosives or other hazardous materials or
equipment or unusual methods are necessary for the execution of the Base
Building Work, Landlord shall exercise the utmost care and shall carry on such
activities under the supervision of properly qualified personnel. Landlord shall
designate a responsible member of its organization at the site whose duty shall
be the prevention of accidents. This person shall be Landlord's Project Manager
unless otherwise designated by Landlord in writing to Tenant. Landlord shall not
load or permit any part of the Base Building Work to be loaded so as to endanger
its safety.
10.3 HAZARD COMMUNICATION PROGRAMS. Landlord shall be responsible in
connection with the Project for coordinating any exchange of material safety
data sheets or other hazard communication information required to be made
available to or exchanged between or among employers at the site in accordance
with the requirements of OSHA and other Legal Requirements. Tenant shall furnish
or cause its contractors to furnish to Landlord such data sheets and information
with respect to the Tenant Work.
D-33
11. RISK OF LOSS: INSURANCE: WAIVER OF LIABILITY AND SUBROGATION RIGHTS
11.1 RISK OF LOSS. Until the Commencement Date, (a) the risk loss for
all portions of the Project (including the Base Building Work, but excluding the
Tenant Work) shall be entirely with Landlord, while the risk of loss for the
Tenant Work shall be entirely with Tenant, and (b) without limitation to the
foregoing, each party shall bear until such date the cost of correcting any
destroyed or damaged construction with respect to the work as to which it bears
the risk of loss, whether completed or partially completed. Landlord at its sole
cost and expense shall promptly remedy all damage or loss to any of the Project
(including the Base Building Work, but excluding the Tenant Work) caused by any
cause whatsoever.
11.2 LIABILITY INSURANCE. Each party shall maintain worker's
compensation insurance, employer's liability insurance, and general and
automobile liability insurance as provided in this Section 11.2. Such insurance
shall be sufficient to protect each party from claims which arise out of, result
from, or are in any manner connected with the execution of the Project (in the
case of Landlord) or the Tenant Work (in the case of Tenant) or the operations
under this Work Letter by the party maintaining the insurance and its
contractors, subcontractors and sub-subcontractors. Such insurance shall include
the minimum coverages and limits of liability set forth below, and such
additional coverages and higher limits as may be specified elsewhere in this
Work Letter or the Lease. The insurance carried by the parties shall include the
following minimum coverages and limits of liability:
11.2.1 EMPLOYER'S LIABILITY INSURANCE. Worker's compensation
and employer's liability insurance:
(a) Worker's compensation insurance as required by
Legal Requirements.
(b) Employer's liability insurance in the amount of
Five Hundred Thousand Dollars ($500,000) each accident for
bodily injury, Five Hundred Thousand Dollars ($500,000) policy
limit for bodily injury by disease and Five Hundred Thousand
Dollars ($500,000) each employee for bodily injury by disease.
11.2.2 GENERAL LIABILITY INSURANCE. Commercial General
Liability insurance covering all operations by or on behalf of such
party, which shall include the following minimum limits of liability and
coverages:
(a) Required coverages:
(i) Premises and Operations,
(ii) Products and Completed Operations,
D-34
(iii) Contractual Liability, insuring the
indemnity obligations assumed by
Landlord under this Work Letter,
(iv) Broad Form Property Damage (including
Completed Operations),
(v) Explosion, Collapse and Underground
Hazards, and
(vi) Personal Injury Liability.
(b) Minimum limits of liability:
(i) One Million Dollars ($1,000,000) each
occurrence (for bodily injury and
property damage),
(ii) One Million Dollars ($1,000,000) for
Personal Injury Liability,
(iii) Two Million Dollars ($2,000,000)
aggregate for Products and Completed
Operations (which shall be maintained
for a three (3) year period following
final completion of the Base Building
Work), and
(iv) Two Million Dollars ($2,000,000) general
aggregate applying separately to the
Building.
11.2.3 AUTOMOBILE LIABILITY INSURANCE. Automobile liability
insurance (bodily injury and property damage liability) including
coverage for owned, hired, and nonowned automobiles. The limits of
liability shall not be less than One Million Dollars ($1,000,000)
combined single limit each accident for bodily injury and property
damage combined. Each party shall also require each of its contractors
and subcontractors to include in their liability insurance policies
coverage for Automobile Contractual Liability.
11.2.4 UMBRELLA/EXCESS LIABILITY INSURANCE. Each party shall
also carry umbrella/excess liability insurance in the amount of Ten
Million Dollars ($10,000,000). If there is no per project aggregate
under the Commercial General Liability policy, the limit shall be Ten
Million Dollars ($10,000,000). Such insurance shall cover all of the
risks described in Sections 11.2.1, 11.2.2 and 11.2.3 immediately upon
any loss or losses exceeding the base limits respectively provided
above.
11.3 PROPERTY INSURANCE. Landlord shall maintain property insurance
on the Project (other than the Tenant Work), and Tenant shall maintain insurance
on the Tenant Work, in both cases which shall: (a) include the interest of
Tenant, Landlord, contractors, subcontractors, suppliers, and any other persons
or entities identified in this Work Letter, each of whom is deemed to have an
insurable interest and shall be listed as an insured or additional insured; (b)
be written on a Builder's Risk-All-Risk or open peril or special causes of loss
policy form that shall at least include insurance for physical loss or damage to
the Project or the Tenant Work, as the case may be, or any portion thereof,
temporary buildings, false work,
D-35
and work in transit with respect thereto, and shall insure against at least the
following perils: fire, lightning, extended coverage, theft, vandalism, and
malicious mischief, earthquake, collapse, debris removal, demolition occasioned
by enforcement of Legal Requirements, water damage, and such other perils as may
be specifically required by this Work Letter; (c) include such boiler and
machinery insurance or additional property insurance as may be required to
protect the Project or the Tenant Work, as the case may be, or otherwise
required by this Work Letter or Legal Requirements; (d) include expenses
incurred in the repair or replacement of any insured property (including fees
and charges of engineers and architects); (e) cover materials and equipment
stored by or on behalf of such party at the Land or Building or at other
location; and (f) be maintained in effect until the Commencement Date, unless
otherwise agreed to in writing by Tenant and Landlord within thirty (30) days'
written notice to each other additional insured to whom a certificate of
insurance has been issued.
11.4 INSURANCE GENERALLY. All liability insurance shall be written on
an occurrence basis and include an endorsement whereby the other party and
Tenant's Representative are named as additional insureds. All insurance required
to be obtained pursuant to this Work Letter shall be with companies satisfactory
to the parties and licensed to do business in the State of Minnesota, rated no
less than A:IX in the current edition of Best's Insurance Reports. Landlord's
insurance shall also include an endorsement providing that there shall be
severability of interests with respect to the additional insureds. All of the
coverage shall be primary and not contributory to any coverage available to the
other party under any other insurance held by Tenant. Prior to commencing the
Base Building Work or the Tenant Work, as the case may be, each party shall
submit to the other party a certificate of insurance evidencing that the
required insurance is in full force and effect. This certificate shall contain
certification by the insurance companies that such insurance may not be
canceled, non-renewed, materially changed or subject to a reduction in limits
without thirty (30) days prior written notification to the other party. Upon
request of a party, the other party shall submit copies of the insurance
policies to the requesting party. The parties intend that they shall provide the
required insurance and that such insurance shall protect the interests of
Landlord and Tenant notwithstanding any assertion or determination that any
indemnity provision of this Work Letter or the Lease is void or unenforceable.
The obligations of the parties under this Work Letter and the Lease with respect
to insurance shall not be waived by a party's failure to request evidence of
insurance or to enforce any of the other provisions of this Work Letter or the
Lease respecting insurance, or by a party's failure to respond to or object to
any submission by the other party respecting insurance.
11.5 WAIVER OF LIABILITY AND SUBROGATION RIGHTS. Anything in this
Work Letter to the contrary notwithstanding, Landlord and Tenant each hereby
waive any and all rights of recovery, claim, action or cause of action, against
the other, its agents, representatives, members, directors, officers,
shareholders, partners or employees, for any loss or damage that may occur to
the Base Building Work, the Tenant Work or any other portion of the Premises or
the Building, or any improvements thereto, or any personal or other property of
such party, by reason of fire, the elements, or any other cause which could be
insured against under the
D-36
terms of the "all risk" coverage insurance policies referred to in Section 11.3,
regardless of cause or origin, including negligence or intentional acts of the
other party hereto, its agents, representatives, members, directors, officers,
shareholders, partners or employees.
12. LABOR ISSUES
Landlord represents and warrants that it has entered into a project
labor (i.e., "no strike") agreement with the AFL-CIO Building Trades Council.
Landlord shall not amend such agreement without Tenant's consent. Neither
Landlord nor Tenant shall employ, nor shall Landlord either actively or
passively allow any other Building Occupant or party to employ, any party in
connection with any portion of the Project which would be in violation of such
agreement. Landlord shall include the foregoing prohibition in all Leases and
other occupancy agreements with any Building Occupant.
13. COOPERATION
Landlord and Tenant (a) acknowledge and agree that in order for the Base
Building Work and the Tenant Work to be performed and completed in accordance
with the Base Building Construction Schedule, such work will need to be
coordinated and performed simultaneously in the Building and in various portions
of the Premises, (b) agree to cooperate in good faith in their respective
performance of the Base Building Work and the Tenant Work so as to allow such
simultaneous performance, and (c) agree to require their respective agents,
employees, contractors and subcontractors to so cooperate.
14. CONSTRUCTION SIGNAGE
During the performance of the Base Building Work, Landlord at its sole
cost and expense shall display at the Land and Building construction signage
with respect thereto, which signage shall be subject to Tenant's reasonable
approval.
15. MISCELLANEOUS
15.1 DEFAULT. Any default by a party under the terms of his Work
Letter beyond any grace periods granted under Section 24 of the Lease as applied
to this Work Letter shall constitute an Event of Default under the Lease, and
shall entitle the other party to exercise all remedies set forth in such Lease.
In no event shall the foregoing limit any of Tenant's remedies with respect to
the performance of the Base Building Work provided in Section 5.1.2 of the
Lease.
15.2 LATE PAYMENT. If any payment required to be made under this Work
Letter is not timely paid, the party to whom such payment is due shall be
entitled to interest on the amount of such payment at the Agreed Interest Rate
from the date due until paid.
D-37
15.3 REASONABLE DILIGENCE. Both Landlord and Tenant agree to
cooperate to the maximum possible extent and to use reasonable diligence in
performing all of their respective obligations and duties under this Work Letter
and in proceeding with the construction and completion of the Base Building Work
and all Tenant Work in the Premises.
15.4 APPLICATION OF LEASE. All of the provisions of the Lease shall
apply to this Work Letter, except when expressly provided otherwise herein.
References to Section numbers in this Work Letter shall be to sections of this
Work Letter, except when expressly provided otherwise herein.
D-38
EXHIBIT E
PERMITTED EXCEPTIONS
1. Real estate taxes for and payable in 1998 and thereafter.
2. Levied and pending assessments hereafter levied.
3. Easement for street purposes (Ninth Street South) over part of premises
granted to the City of Minneapolis as evidenced by Book 174 of
Miscellaneous, page 571, Document No. 886862.
4. Easement for street purposes (Eighth Street South) over part of premises
granted to the City of Minneapolis as evidenced by Book 185 of
Miscellaneous, page 523, Document No. 952734.
5. Terms, conditions, provisions and easements contained in that certain
Skyway Agreement dated May 31, 1989, filed January 11, 1990, as Document
No. 2066682, as amended by Declaration of Transfer of Rights dated
January 11, 1990, filed January 11, 1990, as Document No. 2066683.
6. Terms, conditions, provisions and easements contained in that certain
Deed of Appurtenant Encroachment Easement, dated April 2, 1986, filed
June 27, 1986, as Document No. 5124401 by and between The Conservatory
on Nicollet Limited Partnership, a Minnesota limited partnership, Jodar
Partnership, a Minnesota general partnership; ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ which was filed pursuant to consent filed July 12, 1996,
as Document No. 2723306.
7. Terms, conditions, provisions, restrictions and easements contained in
that certain Second Restated Declaration-800 Tower Parcel/LaSalle
Parcels dated October 10, 1997, filed November 21, 1997, as Document No.
2863489.
8. Terms, conditions, provisions and easements contained in that certain
Restated Loading Dock Easement and Operating Agreement dated October 10,
1997, filed November 21, 1997, as Document No. 2863490.
9. Terms, conditions, provisions and easements contained in that certain
Restated Lakewood Declaration dated October 10, 1997, filed November 21,
1997, as Document No. 2863491.
10. Terms, conditions, provisions and easements contained in that certain
Parking Garage Easement Agreement, dated October 10, 1997, filed
November 21, 1997, as Document No. 2863492.
E-1
11. Terms, conditions, provisions and easements contained in that certain
Skyway and Tunnel Agreement, dated April 4, 1986, filed June 27, 1986,
as Document No 5124377, as amended by Amendment to Skyway and Tunnel
Agreement, dated February 17, 1998, filed _____________, 1998, as
Document No. _________________.
E-2
EXHIBIT F
RULES AND REGULATIONS OF THE PROJECT
Except as otherwise provided in the Lease (including any other exhibits
thereto):
1. No sign, placard, picture, advertisement, name or notice shall
be inscribed, displayed or printed or affixed on or to any part of the outside
or inside of the Building which is visible from the exterior thereof or the
Common Areas without the written consent of Landlord first had and obtained.
Landlord shall have the right to remove any such sign, placard, picture,
advertisement, name or notice, unless Landlord has given written consent,
without notice to and at the expense of Tenant.
2. All approved signs or lettering on doors and walls exterior to
the Premises shall be printed, painted, affixed or inscribed at the expense of
Tenant by a person approved by Landlord in a manner and style acceptable to
Landlord.
3. Tenant shall not use any blinds, shades, awnings, or screens in
connection with any exterior window or door of the Premises unless approved in
writing by Landlord. Tenant shall not use any drape or window covering facing
any exterior glass surface visible from outside of the Building other than the
standard drape or window covering established by Landlord. No bottles, parcels
or other articles may be placed on the windowsills.
4. The common directory of the Building shall be provided
exclusively for the display of the name and location of tenants and their
employees only and Landlord reserves the right to exclude any other names
therefrom and otherwise limit the number of listings thereon.
5. The Common Areas shall not be obstructed by any tenants or used by them
for any purpose other than for ingress to and egress from their respective
premises. The halls, passages, exits, 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 by all persons
whose presence in the reasonable judgment of Landlord shall be prejudicial to
the safety, character, reputation and interests of the Building and its tenants,
provided that nothing herein contained shall be construed to prevent such access
to Tenant's premises by persons with whom Tenant normally deals in the ordinary
course of Tenant's business unless such persons are engaged in illegal
activities. Neither Tenant nor any of its employees shall go upon the roof of
the Building. Tenant shall not throw anything out of the doors or windows or
down the passageways. Landlord shall have the right to control and operate all
Common Areas in the best interests of tenants generally.
F-1
6. Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys of offices, rooms and toilet rooms which shall have been
furnished to Tenant or which Tenant shall have made, and in the event of loss of
any keys so furnished, shall pay Landlord therefor. Tenant shall not alter any
lock or install any new or additional locks or any bolts on any door to or in
unsecured portions of the Premises without providing Landlord with a complete
set of keys to such locks.
7. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they were
constructed and no foreign substance 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 employees or
invitees, shall have caused it.
8. Tenant shall not overload any floor of the Premises.
9. All moving of furniture, bulky packages, supplies, bulk foods,
merchandise, freight or equipment of any kind into or out of the Building shall
be via the Building's freight handling facilities, unless otherwise directed by
Landlord, at such time and in such manner as Landlord shall reasonably
prescribe. No hand trucks or vehicles (other than wheelchairs for individual or
four wheel carts) shall be used in passenger elevators. Any hand trucks
permitted in the Building must be equipped with soft rubber tires and side
guards.
10. Landlord shall have the right to prescribe the weight, size and
position of heavy equipment brought into the Building and also the times and
manner of moving the same in and out of the Building. Safes or other heavy
objects shall, if considered necessary by Landlord, stand on a platform of such
thickness as is necessary to properly distribute the weight. Landlord will not
be responsible for loss of or damage to any such safe or property from any
cause, and all damage done to the Building by moving or maintaining any such
safe or other property shall be repaired at the expense of Tenant.
11. Tenant shall not employ any person or persons other than the
janitor of Landlord for the purpose of cleaning the Premises unless otherwise
agreed to by Landlord. Except with the written consent of Landlord, no person or
persons other than those approved by Landlord shall be permitted to enter the
Building for the purpose of cleaning the same. Landlord shall not be responsible
to any tenant for any loss of property on the Premises, however occurring, or
for any damage done to the effects of any tenant by the janitor or any other
employee or other person.
12. 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 any manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or vibrations, nor
shall any animals (other than as required for persons with disabilities), fish
tanks or aquariums be brought in or kept in or about the
F-2
Premises or other areas of the Building. No bicycles shall be brought into or
kept in or about the Premises or the lobbies located on Floor One (1) or Floor
Two (2) of the Building.
13. Neither Tenant nor any of Tenant's servants, employees, agents,
visitors or licensees shall at any time (i) use or keep in the Premises or other
areas of the Building any Hazardous Materials except normal office products
typically found in a first-class office building or reasonable quantities of
products incidental to a printing and reprographic shop in the Premises,
provided such products are lawfully stored, used and removed from the Premises,
or (ii) use any method of heating or air-conditioning other than that supplied
by Landlord.
14. No boring or cutting for wires or stringing of wires will be
allowed without written consent of Landlord, except as part of permitted Tenant
Work or alterations under the Lease.
15. During other than Normal Business Hours, access to the Building
or to the halls, corridors, elevators or stairways in the Building, or to the
Premises, may be refused unless the person seeking access is known to the person
or employee of the Building in charge or has a pass or is properly identified.
Any person whose presence in the Building at any time shall, in the sole
judgment of Landlord, be prejudicial to the safety, character, reputation and
interests of the Building or its tenants may be denied access to Building or may
be ejected therefrom. Landlord may require any person leaving the Building with
any package or other object to exhibit a pass from the tenant from whose
premises the package or object is being removed, but the establishment and
enforcement of such requirement shall not impose any responsibility on Landlord
for the protection of any tenant against the removal of property from the
premises of the tenant. The Landlord shall in no case be liable to Tenant for
damages for any error with regard to the admission to or exclusion from the
Building of any person. 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 of the doors or otherwise, for the
safety of the tenants and protection of property in the Building.
16. No person shall be allowed to transport or carry any large
quantities of beverages, food, food containers, etc., on any passenger
elevators. The transportation of such items shall be via the service elevators
in such manner as reasonably prescribed by Landlord.
17. Tenant shall use reasonable efforts to see that the exterior
doors of the Premises are closed and securely locked before leaving the
Building, that all water apparatus are entirely shut off before Tenant or
Tenant's employees leave the Building, and that all electric lights are shut off
so as to prevent waste.
18. Tenants shall reasonably cooperate with Landlord in obtaining
maximum effectiveness of the HVAC system by closing the window coverings when
the
F-3
sun's rays fall directly on windows of the Premises. Tenant shall not obstruct,
alter or in any way impair the efficient operation of Landlord's HVAC system.
Tenant shall not tamper with or change the setting of any thermostats or
temperature control valves.
19. Canvassing, soliciting and peddling within the Common Areas are
prohibited.
20. The Premises shall not be used for cooking, manufacturing or the
storage of merchandise except as may be provided in or incidental to the
Permitted Uses, nor shall the Premises be used for washing clothes, for lodging,
or for any improper, objectionable or immoral purpose. Tenant shall not occupy
nor permit any portion of the Premises to be occupied for the manufacture or
sale of narcotics, alcoholic beverages, pornographic materials or tobacco in any
form.
21. Tenant shall not conduct any auction, fire, bankruptcy, going
out of business, liquidation or similar sales.
22. No smoking or other use of tobacco products shall be allowed in
any portion of the Building (including, without limitation, in any Common Areas
or any multi-tenant Floors of the Building), except in an area of the exterior
or the dock area of the Building designated by Landlord and reasonably
acceptable to Tenant.
In the event of any conflict between these rules and regulations and the
other terms and conditions of the Lease, the terms and conditions of the Lease
shall control.
F-4
EXHIBIT G
HVAC STANDARDS
Landlord will supply HVAC during Normal Business Hours to maintain conditions
inside the Premises at the stated outside design conditions:
a) 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.
b) Winter - Outdoor conditions minus 20 DEG. Fahrenheit dry bulb; 72
DEG. Fahrenheit dry bulb inside, minimum relative humidity 25%.
Landlord shall take appropriate corrective action should minimum
relative humidity drop below 25%
c) Landlord shall operate the HVAC system to achieve a space
temperature of 72 DEG. Fahrenheit dry bulb inside whenever possible.
d) Outside ventilation air shall be provided, and all HVAC services
shall be provided, monitored, adjusted and balanced, in accordance
with the higher standard of (i) ASHRE Standard 62-89R (Ventilation
for Acceptable Indoor Air Quality), or (ii) such successor standard
as is in effect on the date hereof. Minimum outside air shall be
actively controlled in accordance with the actual building
population.
The foregoing specifications should be in addition and not by way of limitation
to those provided in the Base Building Shell Condition Requirements, and assume
the population densities and space layout of the Premises provided in Section
2.2.1 of EXHIBIT D and the computer and electrical usages described in Paragraph
10 of the Base Building Shell Condition Requirements.
G-1
EXHIBIT H
JANITORIAL SPECIFICATIONS
A. OFFICE AREAS
1. Hand dust and wipe clean with damp or treated cloth all office
furniture, equipment, tables, fixtures, paneling, window ▇▇▇▇▇ and all
other horizontal surfaces nightly; wash window ▇▇▇▇▇ when necessary.
Desks and other furniture must be reasonably cleared of all items by the
tenant to be eligible hereunder.
2. Damp wipe and polish all glass furniture tops nightly. Furniture must be
reasonably cleared of all items by the tenant to be eligible hereunder.
B. OFFICE AND COMMON AREAS
1. Empty, clean and damp dust all waste receptacles and remove waste paper
and rubbish from the Premises nightly; wash receptacles as necessary.
2. Empty, clean and damp dust all recycling receptacles and remove recycled
materials from the Premises nightly; wash receptacles as necessary.
3. Empty and clean all ash trays, screen all sand urns nightly and supply
and replace sand as necessary.
4. Vacuum all rugs and carpeted areas in offices, lobbies and corridors
nightly.
5. Remove all finger marks and smudges from all vertical surfaces,
including doors, door frames around light switches, private entrance
glass and partitions nightly.
6. Wash clean all water coolers nightly.
7. Sweep all private stairways nightly, vacuum if carpeted.
8. Keep clean all stairwells throughout the entire building daily
9. Damp mop spillage in office and Common Areas as required.
10. Damp dust all telephones as necessary.
11. Damp dust all tenant and other signs and directories.
H-1
C. WASHROOMS
1. Mop, rinse and dry floors nightly.
2. Scrub floors as necessary.
3. Clean all mirrors, bright work and enameled surfaces nightly.
4. Wash and disinfect all basins, urinals and bowls nightly, using scouring
powder to remove stains and clean undersides of rim of urinals and
bowls.
5. Wash both sides of all toilet seats with soap and water and disinfectant
nightly.
6. Damp wipe nightly, wash with disinfectant when necessary, all
partitions, tile walls and outside surface of all dispensers and
receptacles.
7. Empty and sanitize all receptacles and sanitary disposals nightly;
thoroughly clean and wash at least once per week.
8. Fill toilet tissue, soap, towel and sanitary napkin dispensers nightly.
9. Clean flushometers, piping, toilet seat hinges and other metal work
nightly.
10. Wash and polish all walls, partitions, tile walls and enamel surfaces
from trim to floor monthly.
11. Vacuum all louvers, ventilating grilles and dust light fixtures monthly.
NOTE: It is the intention to keep the wash rooms thoroughly cleaned and not
to use a disinfectant or deodorant to kill odor. If a disinfectant is
necessary an odorless product will be used.
D. KITCHEN AREAS AND BREAK ROOMS
1. Mop, rinse and dry floors nightly.
2. Scrub floors as necessary.
3. Clean all mirrors, bright work and enameled surfaces nightly.
4. Wash and disinfect all basins nightly, using scouring powder to remove
stains.
H-2
5. Damp wipe nightly, wash and disinfect when necessary, all partitions,
countertops and fronts, walls, enamel and outside surfaces of all
dispensers, receptacles and equipment (such as soda machines,
dishwashers and ovens).
6. Fill soap and towel dispensers nightly.
7. Wash, disinfect and polish all partitions, countertops and fronts,
walls, enamel and all surfaces of all dispensers, receptacles, and
equipment monthly.
8. Vacuum all louvers, ventilating grilles and dust light fixtures monthly.
NOTE: It is the intention to keep the wash rooms thoroughly cleaned and not
to use a disinfectant or deodorant to kill odor. If a disinfectant is
necessary an odorless product will be used.
E. PARKING GARAGE
1. Remove snow, ice and debris as needed but not less than nightly.
2. Sweep all stairways, dust handrails and lights weekly.
3. Machine sweep all accessible areas and drive lanes as necessary, but not
less frequently than monthly.
4. Apply oil-dry to any car fluid puddles nightly.
5. Clean attendance booth and access controls nightly.
6. Police parking level stairways for debris nightly.
7. Clean mechanical equipment nightly.
8. Wipe fire extinguisher boxes as necessary, but not less frequently than
monthly.
9. Spot all doors nightly.
10. Wash signs as necessary, but not less frequently than monthly.
11. Empty trash nightly.
12. Vacuum all louvers, ventilating grilles and dust light fixtures monthly.
13. Machine scrub floors monthly.
14. Wash walls not less than as necessary, but not less frequently than
annually.
H-3
F. FLOORS
1. Ceramic tile, granite, marble and terrazzo floors to be swept and buffed
nightly and washed or scrubbed as necessary.
2. Vinyl asbestos, asphalt, vinyl, rubber or other composition floors and
bases to be swept nightly using dust down preparation; such floors in
public areas on multiple tenancy floors to be waxed and buffed monthly.
3. Tile floors in office areas will be waxed and buffed monthly.
4. All floors stripped and rewaxed as necessary.
5. All carpeted areas and rugs to be vacuum cleaned nightly.
6. All carpeted areas in Common Areas to be machine shampooed monthly.
7. Carpet shampooing within Premises will be performed at Tenant's request
and billed to Tenant.
G. GLASS
1. Clean glass entrance doors and adjacent glass panels and all Skyway
glass nightly.
2. Clean inside surface of exterior windows at least semi-annually.
3. Clean outside surface of exterior windows and all Skyway glass at least
twice per year, but at least three times per year if reasonably
necessary and requested by Tenant; provided, however, in the event
Landlord cleans more frequently than twice per year the exterior
windows of Floors of the Building located above the leased premises in
such a manner so as to dirty the windows of the leased premises, then
Landlord shall clean the windows of the Premises as frequently as those
located above same.
4. Clean underside of skylights as needed in the judgment of Tenant, but no
more often than once per year.
H. HIGH DUSTING (Quarterly)
1. Dust and wipe clean all closet shelving when empty and carpet sweep or
dry mop all floors in closets if such are empty.
2. Dust all picture frames, charts, graphs and similar wall hangings.
H-4
3. Dust clean all vertical surfaces such as walls, partitions, doors, door
bucks and other surfaces above shoulder height.
4. Damp dust all ceiling air conditioning diffusers, wall grilles,
registers and other ventilating louvers.
5. Dust the exterior surfaces of lighting fixtures, including glass and
plastic enclosures.
I. DAY SERVICE
1. At least once, but not more than twice during the day, check men's
washrooms for soap, towels and toilet tissue replacements.
2. At least once, but not more than twice during the day, check ladies'
washrooms for soap, towels and toilet tissue and sanitary napkin
replacements.
3. As needed, vacuuming of elevator cabs will be performed.
4. There will be a constant surveillance of public areas to insure
cleanliness.
J. GENERAL
1. Wipe all interior metal window frames, mullions, and other unpainted
interior metal surfaces of the perimeter walls of the building each
time the interior of the windows is washed.
2. Keep slopsink rooms, kitchen areas and break rooms in a clean, neat and
orderly condition at all times.
3. Wipe clean and polish all metal hardware fixtures and other bright work
nightly.
4. Dust and/or wash all directory boards as required, remove fingerprints
and smudges nightly.
5. Maintain Skyways, building lobby, corridors and other Common Areas in a
clean condition.
6. Keep all exterior areas and landscaping of the Building free from snow,
ice and debris and in a clean and orderly condition.
7. Landlord shall provide recycling receptacles for waste paper in all
general and private offices and break, computer, conference, copy and
other service rooms, as well as receptacles for newspapers, glass,
magazines, plastic and other recyclables in all break
H-5
rooms and kitchen areas. All such receptacles shall be emptied and
contents recycled on a daily basis.
K. CLEANING SPECIFICATIONS
PRIMARY ITEM ACHIEVEMENT FREQUENCY
A. ENTRANCE
Sidewalks, Steps & Foyer Sweep 5 X week
Door Glass & Frames Clean 5 X week
B. COMMON AREAS
Floors carpet Vacuum & spot clean 5 X week
Floors composition Dust sweep & spot mop 5 X week
Elevators and escalators Vacuum and spot clean 5 X week
Furnishings Dust 5 X week
Ash trays, trash receptacles Empty & damp wipe 5 X week
Drinking fountains Clean & disinfect 5 X week
Walls, doors, frames Spot clean 5 X week
Telephones Damp wipe 5 X week
Stairs Keep Clean 5 X week
Janitor closets Keep Clean 5 X week
Stairs Sweep 1 X week
Metal plates, knobs and surfaces Polish 1 X week
Ledges, ▇▇▇▇▇, rails Dust 1 X week
Security stations Damp wipe and spot clean 1 X week
Stairs, all Dust mop & spot mop 1 X month
Light fixtures Dust or vacuum 1 X month
Floors (including elevators) Machine shampoo 1 X month
Walls Damp wipe 1 X quarter
Window coverings Dust or vacuum 1 X quarter
Metal plates, knobs & surfaces Refinish 1 X quarter
H-6
C. WORK AREAS (General & private offices, computer, copy, service,
conference & sales rooms)
Floors carpet (traffic lanes) Vacuum 5 X week
Floors carpet (all areas) Vacuum 1 X week
Floors carpet (all areas) Machine shampoo Upon Tenant
request
Trash and recycling receptacles Empty & clean 5 X week
Floors composition Dust sweep & spot mop 5 X week
Trash Collect 5 X week
Ash trays Empty & damp wipe 5 X week
Telephones Damp wipe 5 X week
Furnishings (horizontal) Dust 5 X week
Glass desk tops Wash & dry polish 5 X week
Glass partitions Spot clean 1 X week
Doors & frames Dust & spot wash 1 X week
Walls & switchplates Spot clean 1 X week
Furnishings-vertical Dust 1 X month
Low ledges & ▇▇▇▇▇ Dust 1 X month
High ledges & grills Dust 1 X 2 months
Glass partitions Wash 1 X 2 months
Light fixtures Dust or vacuum exterior
surfaces 1 X quarter
D. RESTROOMS, KITCHEN AREAS AND BREAK ROOMS
Floors Mop & disinfect 5 X week
Receptacles Empty & disinfect 5 X week
Fixtures Scour & disinfect 5 X week
Dispensers Refill & clean 5 X week
Mirrors Wash & dry polish 5 X week
Bright Metal Clean & polish 5 X week
Walls, dividers, doors Spot clean or wash 5 X week
Furnishings Dust or vacuum 5 X week
Vents, lights Dust or vacuum 1 X week
Floors Machine scrub as needed
H-7
E. FLOOR MAINTENANCE PROFILE - Top quality, anti-slip floor materials and
finishes will be used. Programmed floor care is:
Main lobby Polish 5 X week
Other lobbies & halls Polish as needed
Lunchrooms & lounges Polish 1 X month
Offices Polish 1 X month
Common Area Carpets Machine shampoo 1 X month
The specifications of this Section E shall be in addition and not by way to
limitation of the other requirements of this EXHIBIT H and the other terms and
conditions of the Lease.
H-8
EXHIBIT I
LETTER OF CREDIT
See Irrevocable Standby Letter of Credit No. 76954, dated March 5, 1998, in the
amount of Five Million Dollars ($5,000,000) issued by U.S. Bank National
Association in favor of Tenant, a copy of which is attached to this EXHIBIT I.
I-1
[U.S. BANK LOGO]
U.S. BANK
U.S. BANK NATIONAL ASSOCIATION International Banking Division, MPFP1007
Minneapolis Office Cable: FIRSTBANK, MPS
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TELEX: 192179 FBNA INTL MPS
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ S.W.I.F.T.: FNBMUS44
▇▇▇ ▇▇▇-▇▇▇▇/0710 Fax: ▇▇▇ ▇▇▇-▇▇▇▇
MARCH 5, 1998
ENCLOSED IS OUR LETTER OF CREDIT NUMBER 76954
BENEFICIARY APPLICANT
----------- ---------
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES, INC. ▇▇▇▇ 800, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
AUTHORIZED SIGNATURE
[U.S. BANK LOGO]
U.S. BANK
U.S. BANK NATIONAL ASSOCIATION International Banking Division, MPFP1007
Minneapolis Office Cable: FIRSTBANK, MPS
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TELEX: 192179 FBNA INTL MPS
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ S.W.I.F.T.: FNBMUS44
▇▇▇ ▇▇▇-▇▇▇▇/0710 Fax: ▇▇▇ ▇▇▇-▇▇▇▇
IRREVOCABLE STANDBY LETTER OF CREDIT
MARCH 5, 1998
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ TOWER, SUITE 1500
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
WE HEREBY ESTABLISH THIS IRREVOCABLE, STANDBY LETTER OF CREDIT NO. 76954 FOR THE
ACCOUNT OF ▇▇▇▇ 800, LLC, 700 INTERNATIONAL CENTRE, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, IN THE AMOUNT OF FIVE MILLION AND NO/100 US
DOLLARS (US$5,000,000.00) AND AUTHORIZE YOU TO DRAW FROM TIME TO TIME AT SIGHT
ON U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS, MINNESOTA.
DRAFTS ON US AT SIGHT MUST BE ACCOMPANIED BY BENEFICIARY'S SIGNED STATEMENT
(PURPORTEDLY SIGNED BY AN AUTHORIZED SIGNER OF BENEFICIARY) AS FOLLOWS:
"REFERENCE IS MADE TO THAT CERTAIN
OFFICE LEASE DATED AS OF MARCH 3,
1998 BETWEEN ▇▇▇▇ 800, LLC AND ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES, INC. WE HEREBY
CERTIFY THAT WE HAVE INCURRED LANDLORD DELAY COSTS (AS SUCH TERM IS
DEFINED IN SAID
OFFICE LEASE) IN THE AMOUNT OF $______, WHICH IS THE
AMOUNT OF THE DRAFT WHICH ACCOMPANIES THIS STATEMENT, AND WE DEMANDED
PAYMENT FROM ▇▇▇▇ 800, LLC OF THESE LANDLORD DELAY COSTS MORE THAN
TWENTY (20) DAYS PRIOR TO THE DATE OF PRESENTATION HEREOF AND SUCH
AMOUNT HAS NOT BEEN PAID TO US"; OR
"WE ARE DRAWING UNDER THIS LETTER OF CREDIT AS IT IS LESS THAN THIRTY
(30) DAYS PRIOR TO THE EXPIRATION DATE OF THIS LETTER OF CREDIT AND THIS
LETTER OF CREDIT HAS NOT (1) BEEN EXTENDED FOR A PERIOD OF ONE (1) YEAR
FROM THE PRESENT OR ANY FUTURE EXPIRATION DATE OR (2) BEEN REPLACED BY A
LETTER OF CREDIT WITH AN EXPIRATION DATE AT LEAST ONE (1) YEAR FROM THE
DATE OF ISSUANCE THEREOF AND OTHERWISE ACCEPTABLE TO US."
THE AMOUNT OF ANY DRAFT(S) DRAWN UNDER THIS CREDIT ARE TO BE ENDORSED ON THE
REVERSE SIDE HEREOF. SUCH DRAFTS MUST BEAR THE STATEMENT "DRAWN UNDER U.S. BANK
NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE CREDIT NO. 76954, DATED MARCH 5, 1998."
THIS CREDIT SHALL EXPIRE AT THE CLOSE OF BUSINESS ON AUGUST 31, 1998
("EXPIRATION DATE").
CONTINUED ON PAGE TWO
[U.S. BANK LOGO]
U.S. BANK
U.S. BANK NATIONAL ASSOCIATION International Banking Division, MPFP1007
Minneapolis Office Cable: FIRSTBANK, MPS
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TELEX: 192179 FBNA INTL MPS
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ S.W.I.F.T.: FNBMUS44
▇▇▇ ▇▇▇-▇▇▇▇/0710 Fax: ▇▇▇ ▇▇▇-▇▇▇▇
LETTER OF CREDIT NO. 76954
MARCH 5, 1998
PAGE TWO
WE HEREBY AGREE THAT DRAFTS AND DOCUMENTS AS SPECIFIED ABOVE WILL BE DULY
HONORED UPON PRESENTATION TO U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇: STANDBY LETTERS OF CREDIT MPFP1007, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, IF PRESENTED ON OR BEFORE THE EXPIRATION DATE. IF A DRAWING IS
SO MADE HEREUNDER AT OR PRIOR TO 12:00 NOON, MINNEAPOLIS TIME, ON A BUSINESS
DAY, PAYMENT WILL BE MADE TO YOU OF THE AMOUNT SPECIFIED, IN IMMEDIATELY
AVAILABLE FUNDS, NOT LATER THAN CLOSE OF BUSINESS, MINNEAPOLIS TIME, ON THE NEXT
BUSINESS DAY. IF A DRAWING IS SO MADE HEREUNDER AFTER 12:00 NOON, MINNEAPOLIS
TIME, ON A BUSINESS DAY, PAYMENT WILL BE MADE TO YOU OF THE AMOUNT SPECIFIED, IN
IMMEDIATELY AVAILABLE FUNDS, NOT LATER THAN CLOSE OF BUSINESS, MINNEAPOLIS TIME,
ON THE SECOND SUCCEEDING BUSINESS DAY. THE TERM "BUSINESS DAY" AS USED HEREIN
SHALL MEAN ANY DAY OTHER THAN A SATURDAY, SUNDAY, LEGAL HOLIDAY OR OTHER DAY ON
WHICH BANKING INSTITUTIONS IN MINNEAPOLIS ARE AUTHORIZED OR REQUIRED BY LAW TO
CLOSE.
THIS CREDIT IS TRANSFERABLE IN ITS ENTIRETY TO ANY TRANSFEREE WHICH HAS
SUCCEEDED YOU AS TENANT UNDER THE ABOVE-REFERENCED
OFFICE LEASE, AND MAY BE
SUCCESSIVELY TRANSFERRED. TRANSFER OF THIS CREDIT TO SUCH TRANSFEREE SHALL BE
EFFECTED BY THE PRESENTATION TO US OF THIS CREDIT ACCOMPANIED BY A COMPLETED AND
SIGNED CERTIFICATE IN THE FORM OF EXHIBIT A ATTACHED HERETO. UPON SUCH
PRESENTATION, WE SHALL ENDORSE THE TRANSFER ON THIS CREDIT AND SUCH TRANSFER
SHALL BECOME EFFECTIVE UPON DELIVERY OF THIS CREDIT BY US TO SUCH TRANSFEREE.
THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION) PUBLISHED BY THE INTERNATIONAL CHAMBER OF COMMERCE
(PUBLICATION NO. 500), OR ANY SUBSEQUENT REVISION THEREOF.
WE HEREBY ACKNOWLEDGE AND AGREE THAT OUR OBLIGATIONS TO YOU UNDER THIS CREDIT
ARE INDEPENDENT OF THOSE OF ▇▇▇▇ 800, LLC TO YOU. NO DEFENSE OR CLAIM OF ▇▇▇▇
800, LLC AGAINST YOU, AND NO BANKRUPTCY OR INSOLVENCY OF ▇▇▇▇ 800, LLC SHALL
IMPAIR OR AFFECT IN ANY WAY OUR OBLIGATION TO HONOR YOUR DRAFT OR DRAFTS
PRESENTED UNDER AND IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS CREDIT.
U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE
/s/ [ILLEGIBLE] /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------- -------------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
EXHIBIT A TO
LETTER OF CREDIT
NO. 76954
TRANSFER CERTIFICATE
Date:___________
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Standby Letter of Credit Department
Re: Irrevocable Transferable Standby Letter of Credit No. ___________
Ladies & Gentlemen:
The undersigned is beneficiary of the above-captioned Irrevocable
Transferable Standby Letter of Credit (the "Credit") and hereby requests that
all rights of the undersigned to draw under the Credit be transferred to:
--------------------------------------------------
Name of Transferee
--------------------------------------------------
Address
The transferee will succeed the undersigned as beneficiary of the rights
and benefits of the undersigned under the Tax Reimbursement Agreement described
in the Credit.
The Credit is submitted herewith for endorsement by you of the transfer
and for delivery of such endorsed Credit to the transferee named above, at which
time the transfer requested hereby shall become effective.
Very truly yours,
-------------------------------------
(Name of Predecessor Beneficiary)
By:
---------------------------------
Its
------------------------------
SHORT FORM LEASE
THIS SHORT FORM LEASE is made as of the 3rd day of March, 1998 by and
between ▇▇▇▇ 800, LLC, a Minnesota limited liability company ("Landlord"), and
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware corporation ("Tenant").
RECITALS:
A. Landlord is the owner of the property in Minneapolis, Minnesota,
legally described on EXHIBIT A attached hereto (the "Land"), upon which Landlord
shall construct a 30 or 31 story office building (the "Building").
B. Tenant desires to lease from Landlord, and Landlord desires to
lease to Tenant, a portion of the Building.
WITNESSETH:
1. That for and in consideration of the covenants and agreements
contained in that certain
Office Lease dated of even date herewith between
Landlord, as landlord, and Tenant, as tenant (the "Lease"), covering certain
premises more particularly described in the Lease (the "Premises"), Landlord
does hereby demise and lease unto Tenant, and Tenant does hereby lease from
Landlord, the Premises, all in accordance with the terms and provisions of the
Lease.
2. TO HAVE AND TO HOLD the Premises for a term of fourteen (14)
years commencing on the Commencement Date. Tenant may, at its election, extend
the term for three (3) successive periods, the first being for a period of six
(6)
years, and the second and third being for periods of five (5) years each, upon
and subject to the terms and conditions contained in the Lease.
3. Tenant shall have the right to use the Premises for (a) general
office and/or Financial Services Business (defined blow) purposes, (b) any
business being conducted by ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc. or any corporate or
business successor thereof, or any Affiliate thereof at any time during the
Term, and/or (c) any use permitted by Legal Requirements which is not
incompatible with a first class office building in Minneapolis, Minnesota,
together with any uses which are incidental or ancillary to any such use or
uses. Without limiting the generality of the foregoing, Tenant may install
kitchens, lunchrooms and other amenities, whether for employees or with public
or limited accessibility thereto.
4. Landlord is obligated to design and construct the Building
subject to Tenant's approval of certain aspects of such design and construction,
upon and subject to the terms and conditions contained in the Lease.
5. Tenant has three (3) options to expand the Rentable Area of the
Premises, the first and second being for up to two (2) Floors of the Building,
and the third being for up to three (3) Floors of the Building, upon and subject
to the terms and conditions contained in the Lease.
6. Tenant has a right of first offer with respect to any space in
the Building which is or shall become available for leasing after the third
(3rd) anniversary of the Commencement Date, upon and subject to the terms and
conditions contained in the Lease.
7. Tenant has two (2) options to reduce the Rentable Area of the
Premises for up to one hundred thousand (100,000) square feet of Rentable Area,
upon and subject to the terms and conditions contained in the Lease.
8. Any civic, cultural or other events held in the Floor One (1) or
Floor Two (2) lobbies of the Building shall be subject to Tenant's approval, and
no such event may be sponsored by, advertise in any manner or give any
attribution whatsoever to any business or other operation engaged in banking
(including, without limitation, retail banking), insurance or securities
brokerage, trading or marketing, financial or investment planning or counseling,
venture capital or other financial services, including, without limitation, any
bank, savings and loan association, credit union, insurance company, trust
company, stock broker, financial planner or investment advisor (a "Financial
Services Business"), all upon and subject to the terms and conditions contained
in the Lease.
-2-
9. Any material changes, alterations, additions, improvements or
replacements to the exterior of the Building, the Skyways, the first and second
Floor lobbies, elevators, escalators and other vertical transportation systems,
truck docks and loading areas, driveways, ramps, entrances, exits, loading and
unloading areas, Parking Garage, or any other Common Areas, Building Systems, or
Building amenities, and any changes, alterations, additions, improvements or
replacements which are reasonably likely to materially increase Operating
Expenses shall be subject to Tenant's approval, upon and subject to the terms
and conditions contained in the Lease.
10. Tenant shall have the right to lease certain storage space in
the Building and shall have a first offer right with respect to any storage
space which shall become available for leasing in the Building, upon and subject
to the terms and conditions contained in the Lease.
11. Tenant shall have the right to select and from time to time
change the name of the Building, upon and subject to the terms and conditions
contained in the Lease. In no event shall the name of the Building be in any
manner associated with any Financial Services Business other than Tenant or any
of its Affiliates.
12. Tenant shall have the right to select and from time to time
change all Building exterior and Common Area signage, upon and subject to the
terms and conditions contained in the Lease. There will be no exterior or Common
Area signage (which for purposes hereof shall include Advertisements and any
signs visible from the exterior or Common Areas of the Building) for any
Building Occupants other than Tenant, or for any Financial Services Business
without Tenant's approval, upon and subject to the terms and conditions
contained in the Lease.
13. Landlord shall not lease space on the Floors One (1) or Two (2)
to any Financial Services Business, or consent (actively or passively) to the
occupancy of any such space by any Financial Services Business, without in each
instance obtaining the consent of Tenant, upon and subject to the terms and
conditions contained in the Lease. The tenants selling retail goods and services
on Floors One (1) and Two (2) of the Building, as well as all signage and
improvements associated with such tenants which are visible from the exterior of
the Building or from the Common Areas, shall be subject to Tenant's approval,
upon and subject to the terms and conditions contained in the Lease.
-3-
14. Tenant shall have the right to use the rooftop area of the
Building for the purpose of installing microwave, satellite and/or vertical
dishes, antennae, or other exterior communications equipment and for the use and
operation of Antennae, and the use of such rooftop area for competing uses and
purposes is limited, all upon and subject to the terms and conditions contained
in the Lease.
15. Tenant and its Affiliates shall have the exclusive right to
operate in the Floor One (1) and Floor Two (2) lobbies and common areas of the
Building, automated teller machines and other electronic banking or financial
services machines and/or outlets, upon and subject to the terms and conditions
contained in the Lease.
16. Landlord and Tenant hereby represent and warrant to the other
the matters respectively represented and warranted in the Lease.
17. Unless otherwise defined herein, all capitalized terms shall
have the meanings set forth in the Lease.
18. The Lease contains other terms, conditions, provisions,
covenants, representations and warranties, all of which are hereby incorporated
in this Short Form Lease by reference as though fully set forth herein, and both
the Lease and this Short Form Lease shall be deemed to constitute a single
instrument. Copies of the Lease are maintained at the offices of Landlord and
Tenant. Nothing contained herein shall be construed to amend, modify, amplify,
interpret or supersede any provision of the Lease, which shall in all things
control.
19. This Short Form Lease may be executed in counterparts, each of
which shall constitute an original and all of which together shall constitute
one and the same instrument.
20. This Short Form Lease shall be binding upon and insure to the
benefit of the parties hereto and their respective successors and assigns.
[Remainder of page intentionally left blank]
-4-
IN WITNESS WHEREOF, the undesigned have executed this Short Form Lease as
of the day and year first above written.
LANDLORD: ▇▇▇▇ 800, LLC
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Its Chief Mgr.
---------------------------
TENANT: ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC.
By ▇▇▇▇▇▇▇ ▇. [ILLEGIBLE]
-------------------------------
Its CFO
---------------------------
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instruments was acknowledged before me this 9th day of
March, 1998, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, the Chief Manager of ▇▇▇▇ 800, LLC, a
Minnesota limited liability company, on behalf of the company.
[SEAL]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NOTARY PUBLIC - MINNESOTA ----------------------------
My Commission Expires Jan. 31, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 9th day of
March, 1998, by ▇▇▇▇▇▇▇ ▇. [ILLEGIBLE], the Chief financial officer of ▇▇▇▇▇
▇▇▇▇▇▇▇ Companies Inc., a Delaware corporation, on behalf of the corporation.
[SEAL]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NOTARY PUBLIC - MINNESOTA ----------------------------
My Commission Expires Jan. 31, 2000 Notary Public
-5-
This Instrument was drafted by:
Faegre & ▇▇▇▇▇▇ LLP (SAA)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
612/336-3000
-6-
EXHIBIT A
Legal Description of Land
Tracts A, B and E; That part of Tract G lying Southeasterly of the Northeasterly
extension of the Northwesterly line of said Tract B, Registered Land Survey No.
1625, Files of Registrar of Titles, County of Hennepin, State of Minnesota.
Together with the rights and easements created by the following documents:
(1) Skyway and Tunnel Agreement dated April 4, 1986, filed June 27, 1986 as
Document No. 5124377, as amended by Amendment to Skyway and Tunnel
Agreement dated ____________, 1998, filed ____________, 1998 as Document
No. ____________.
(2) Skyway Agreement dated May 31, 1989, filed January 11, 1990, as Document
No. 2066682, as amended by Declaration of Transfer of Rights dated
January 11, 1990, filed January 11, 1990, as Document No. 2066683.
(3) Second Restated Declaration-800 Tower Parcel/LaSalle Parcels dated
October 10, 1997, filed November 21, 1997, as Document No. 2863489.
(4) Restated Loading Dock Easement and Operating Agreement dated October 10,
1997, filed November 21, 1997, as Document No. 2863490.
(5) Restated Lakewood Declaration dated October 10, 1997, filed November 21,
1997, as Document No. 2863491.
(6) Parking Garage Easement Agreement dated October 10, 1997, filed November
21, 1997, as Document No. 2863492.
A-1
FIRST AMENDMENT TO SHORT FORM LEASE
THIS AMENDMENT is made as of the 29 day of September, 1999 by and
between ▇▇▇▇ 800, LLC, a Minnesota limited liability company ("Landlord"), and
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware corporation ("Tenant").
RECITALS:
A. Landlord and Tenant entered into that certain Short Form Lease,
dated as of March 3, 1998 and recorded as Document No. 2893787 in Volume 2905,
page 867107, Files of Registrar of Titles, County of Hennepin, State of
Minnesota (the "Short Form Lease").
B. Landlord and Tenant desire to amend the Short Form Lease as
hereinafter provided and agree as follows:
WITNESSETH:
1. The terms used in this Amendment with an initial capital letter
or letters shall have the same meanings in this Amendment as the meanings
ascribed thereto in the Short Form Lease.
2. The Lease, as referred to in the Short Form Lease, has been
amended and supplemented pursuant to that certain First Amendment to Lease,
dated May 18, 1998, Second Amendment to Lease, dated July 30, 1999, and
Supplemental Amendment Regarding Expansion Space, dated September ____, 1999,
(the "Supplemental Amendment").
3. Section 5 of the Short Form Lease is hereby deleted and the
following is inserted in lieu thereof:
"Tenant has five (5) options to expand the Rentable Area of the Premises,
upon and subject to the terms and conditions contained in the Lease."
4. Section 7 of the Short Form Lease is hereby deleted and the
following is inserted in lieu thereof:
"Tenant has one option to reduce the Rentable Area of the Premises for up to
one hundred fifty thousand (150,000) square feet of Rentable Area, upon and
subject to the terms and conditions contained in the Lease. Further, Tenant
has the additional right to reduce the Rentable Area of the Premises by
deleting all or any portion of the Retail Premises, subject to the terms and
conditions contained in the Lease."
5. The Short Form Lease, as amended hereby, is hereby ratified and
confirmed by the parties hereto.
6. The Lease, as amended, contains other terms, conditions,
provisions, covenants, representations, and warranties, all of which are
incorporated into the Short Form Lease, as amended hereby, by reference as
though fully set forth therein. Copies of the Lease, as amended, are maintained
at the offices of Landlord and Tenant. Nothing contained in the Short Form Lease
or this Amendment shall be construed to amend, modify, amplify, interpret or
supersede any provisions of the Lease, as amended, which shall in all things
control.
7. This Amendment may be executed in counterparts, each of which
shall constitute an original and all of which together shall constitute one and
the same instrument.
8. This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
-2-
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the day and year first above written.
LANDLORD: ▇▇▇▇ 800, LLC
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
Its Chief Mgr.
----------------
TENANT: U.S. BANCORP
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Its
----------------
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 29 day of
September, 1999, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, the Chief Manager of ▇▇▇▇ 800, LLC, a
Minnesota limited liability company, on behalf of the company.
[SEAL]
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NOTARY PUBLIC - MINNESOTA ---------------------------------
My Comm. Expires Jan. 31, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 29 day of
September, 1999, by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the Managing Director of U.S. Bancorp ▇▇▇▇▇
▇▇▇▇▇▇▇ Companies Inc., a Delaware corporation, on behalf of the company.
[SEAL]
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NOTARY PUBLIC - MIINNESOTA ---------------------------------
My Commission Expires Jan. 31, 2000 Notary Public
-3-
This Instrument was drafted by:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇ ▇▇▇▇▇▇
404/572-4600
-4-
COMPLETION GUARANTY
THIS COMPLETION GUARANTY is made as of March 3, 1998, by ▇▇▇▇ COMPANIES
US, INC., a Minnesota corporation ("Companies"), and ▇▇▇▇ PROPERTIES, INC., a
Minnesota corporation ("Properties", and together with Companies, "Guarantors"),
to and for the benefit of ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware corporation
("Tenant").
RECITALS
A. Contemporaneously with the execution of this Guaranty, ▇▇▇▇ 800,
LLC, a Minnesota limited liability company ("Landlord"), and Tenant are entering
into an
Office Lease dated as of even date herewith (the "Lease"), covering
certain premises more particularly described in the Lease, which premises are a
part of the building to be constructed by Landlord on the property in
Minneapolis, Minnesota, legally described on EXHIBIT A attached hereto.
B. Properties is a member of Landlord. Companies is an affiliate of
Properties.
C. In order to induce Tenant to enter into the Lease, Guarantors
have agreed to execute and deliver this Guaranty and perform the covenants and
agreements provided herein.
ACCORDINGLY, Landlord and Tenant hereby agree as follows:
1. DEFINITIONS. Unless specifically defined differently in this
Section or elsewhere in this Guaranty, all words with the initial letter
capitalized shall have the meanings respectively given them in Lease.
2. GUARANTY; OBLIGATIONS. Each Guarantor hereby jointly and
severally, absolutely, irrevocably and unconditionally guarantees the following
(collectively, the "Obligations"):
2.1 PERFORMANCE. The full and prompt performance at the
times, in the manner and in accordance with the requirements provided in Section
5.1 of and Exhibit D to the Lease, of the Base Building Work and all of
Landlord's other responsibilities and obligations under said Section and Exhibit
(including, without limitation, (i) the satisfaction and delivery of the matters
required to be satisfied and delivered by Landlord pursuant to clause (a) of
Section 5.1.2 of the Lease, (ii) the demolition and construction obligations at
the times and in the manner provided in clauses (c) and (d), respectively, of
said Section 5.1.2, and (iii) the performance of Landlord's obligations under
Sections 2.7 and 2.8 of Exhibit D to the Lease).
2.2 PAYMENT. The full and prompt payment of (i) the Landlord
Delay Costs payable by Landlord pursuant to clause (g) of Section 5.1.2 of the
Lease at the times and in the manner provided therein, (ii) the liquidated
damages payable by Landlord pursuant to clause (h) of said Section 5.1.2 at the
times and in the manner provided therein, and (iii) all other sums and amounts
payable by the Landlord under Section 5.1 of or Exhibit D to the Lease at the
times and in the manner provided therein.
3. SURVIVAL. The obligations of Guarantors hereunder shall survive,
without limitation, any partial payment or performance of the Obligations, or
any termination of the Lease.
4. INTEREST ON LATE PAYMENTS. Any amount due hereunder to Tenant
and not paid by Guarantors within ten (10) days after written demand therefor
from Tenant (which demand shall include an explanation of the amounts demanded
thereby) shall bear interest at the Interest Rate.
5. NO INQUIRY. Tenant need not inquire into the power of any
Guarantor to enter into this Guaranty.
6. ALTERATION OF OBLIGATIONS. Upon such terms and at such times as
it deems best and without notice to Guarantors, Tenant may (a) alter,
compromise, modify, accelerate, extend or change the time or manner for payment
or performance of any of the Obligations, (b) release or discharge Landlord, as
to all or any portion of the Obligations, and/or (d) release, substitute or add
any one or more guarantors or endorsers, accept additional or substituted
security for payment or performance of any Obligation, or release or subordinate
any security therefor, whether or not Tenant shall have resorted to any property
securing the Obligations or shall have proceeded against Landlord or any party
primarily or secondarily liable for the Obligations. No exercise, delay in
exercise or non-exercise by Tenant of any rights hereby given it, no dealing by
Tenant with Landlord, any guarantor, indemnitor, endorser or other person, no
change, impairment or suspension of any right or remedy of Tenant, and no other
act or thing which but for this provision could act as a release or exoneration
of the liabilities of any of Guarantors hereunder, shall in any way affect,
decrease, diminish or impair any of the obligations of any of Guarantors
hereunder or give any of Guarantors or any other person or entity any recourse
or defense against Tenant.
7. WAIVER. Each Guarantor hereby waives and agrees not to assert to
take advantage of (a) any right to require Tenant to proceed against or exhaust
its recourse against Landlord, any other Guarantor, any other guarantor or
indemnitor or any security or collateral held by Tenant at any time or to pursue
any other remedy in its power before being entitled to payment from Guarantors
of the amounts guaranteed hereunder or before proceeding against Guarantors for
the payment of such amounts; (b) the defense of the statute of limitations in
any action hereunder or for the collection of any amounts guaranteed hereunder,
and/or (c) any defense that may arise by reason of (i) the incapacity, lack of
authority, death or
-2-
disability of Landlord, any of Guarantors or any other or others, (ii) the
revocation or repudiation of the Lease or any other documents or agreements
entered into by Landlord or any other or others, (iii) the failure of Tenant to
file or enforce a claim against the estate (either in administration, bankruptcy
or any other proceeding) of Landlord, any of Guarantors or any other or others,
or (iv) the unenforceability in whole or in part of the Lease, this Guaranty or
any other of such documents or agreements; (d) presentment, demand for payment,
protest, notice of discharge, notice of acceptance of this Guaranty, and
indulgences and notices of any other kind whatsoever; (e) any defense based upon
an election of remedies (including an election to proceed by non-judicial
foreclosure) by Tenant which destroys any claimed subrogation rights of any of
Guarantors or the right of any of Guarantors to proceed against Landlord or any
other party for reimbursement, or both; (f) any rights or defenses created by
any anti-deficiency statutes of the State of Minnesota; (g) any defense based
upon any taking, modification or release of any collateral or guarantees for any
obligations of Landlord to Tenant, or any failure to perfect any security
interest in, or the taking of or failure to take any other action with respect
to any collateral securing payment or performance of the Obligations; (h) any
rights or defenses based upon an offset by any of Guarantors against any
obligation now or hereafter owed to any of Guarantors by Landlord; (i) any
rights or defenses based upon any amendment or modification to the Lease; or (j)
any other act, omission or thing which might otherwise act as a legal or
equitable discharge of any of Guarantors.
8. SUBORDINATION OF SUBROGATION RIGHTS. No payment by any of
Guarantors pursuant to any provisions hereof shall entitle any of Guarantors, by
subrogation to the rights of the Tenant or otherwise, to any payment by the
Landlord or any other Guarantor or out of the property of the Landlord or any
other Guarantor until the Obligations and all costs, expenses and attorneys'
fees paid or incurred by the Tenant in endeavoring to collect the Obligations
and enforcing this Guaranty have been fully paid, and all obligations of
Guarantors hereunder have been discharged in full. Guarantors will not exercise
or enforce any right of contribution, reimbursement, recourse or subrogation
available to any of Guarantors as to any payments made hereunder, or against any
person liable therefor, or as to any collateral security therefor, unless and
until all obligations of Guarantors hereunder have been fully satisfied, the
Obligations shall have been fully paid and discharged, and all obligations of
Guarantors hereunder have been discharged in full.
9. CONDITION OF LANDLORD. Guarantors are fully aware of the
financial condition of Landlord and are executing and delivering this Guaranty
based solely upon Guarantors' own independent investigation of all matters
pertinent hereto and are not relying in any manner upon any representation or
statement of Tenant. Guarantors represent and warrant that Guarantors are in a
position to obtain, and Guarantors hereby assume full responsibility for
obtaining, any additional information concerning Landlord's financial condition
and any other matter pertinent hereto as Guarantors may desire, and Guarantors
are not relying upon or expecting Tenant to furnish to Guarantors any
information now or hereafter in Tenant's possession concerning the same or any
other matter. By executing this Guaranty, Guarantors knowingly accept the full
range of risks encompassed within a contract of this type, which
-3-
risks Guarantors acknowledge. Guarantors shall have no right to require Tenant
to obtain or disclose any information with respect to the Obligations, the
financial condition or character of Landlord or Landlord's ability to pay and
perform the Obligations, the existence of any collateral or security for any or
all of the Obligations, the existence or non-existence of any other guaranties
of all or any part of the Obligations, any action or non-action on the part of
Tenant, Landlord or any other person, or any other matter, fact or occurrence
whatsoever.
10. REMEDIES CUMULATIVE. The amount and/or extent of liability of
Guarantors, and all rights, powers and remedies of Tenant hereunder and under
any other agreement now or at any time hereafter in force between Tenant and
Guarantors, shall be cumulative and not alternative and such rights, powers and
remedies shall be in addition to all rights, powers and remedies given to Tenant
by law. The obligations of each Guarantor hereunder shall be joint and several
and unconditional.
11. SUCCESSIVE ACTIONS OR EXERCISE OF RIGHTS; COUNTERPARTS. In the
event of any default hereunder, a separate action or actions may be brought and
prosecuted against each Guarantor whether or not Landlord or any other Guarantor
is joined therein or a separate action or actions are brought against such
parties. Tenant may maintain successive actions for other defaults. Tenant's
rights hereunder shall not be exhausted by the exercise of any rights or
remedies or by any such action or by any number of successive actions. This
Guaranty may be executed in counterparts, and each such counterpart for all
purposes shall be deemed an original and all such counterparts together shall
constitute but one and the same agreement.
12. SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the benefit
of Tenant, its successors and assigns, including any assignee or sublessee of
Tenant with respect to the Lease, and shall bind the heirs, executors,
administrators, successors and assigns of each Guarantor. This Guaranty is
assignable by Tenant, and when so assigned, Guarantors shall be liable to the
assignees of this Guaranty without in any manner affecting the liability of any
Guarantor hereunder. Each reference herein to powers or rights of Tenant shall
also be deemed a reference to the same power or right of such assignees, to the
extent of the interest assigned to them.
13. BANKRUPTCY. So long as any Obligations shall be unperformed or
owing to Tenant, Guarantors shall not, as creditors, without the prior written
consent of Tenant, commence or join with any other person in commencing any
bankruptcy, reorganization or insolvency proceedings of or against Landlord. The
obligations of Guarantors under this Guaranty shall not be altered, limited or
affected by any proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of Landlord
or by any defense which Landlord may have by reason of the order, decree or
decision of any court or administrative body resulting from any such proceeding.
In the event that any obligation covered by this Guaranty is paid or performed
by Landlord, the obligations of Guarantors hereunder shall continue and remain
in full force and effect in the event that all
-4-
or any part of such payment(s) or performance(s) is avoided or recovered
directly or indirectly from Tenant as a preference, fraudulent transfer or
otherwise in such proceeding.
14. EXPENSES. Each Guarantor jointly and severally agrees that if a
default occurs hereunder, Guarantors will reimburse Tenant for all costs and
expenses (including, without limitation, reasonable attorneys' fees) incurred by
Tenant, whether or not suit is instituted, in enforcing or exercising any
rights, powers, privileges or remedies granted to Tenant under this Guaranty and
for all costs and expenses of Tenant incurred in connection with the
administration and enforcement of this Guaranty, together, in each case, with
interest thereon at the Interest Rate.
15. GENERAL PROVISIONS.
15.1 TERMS; HEADINGS. The words "Guarantor" and "Tenant" as
used herein shall include the plural as well as the singular. The words used in
neuter gender include the masculine and feminine genders, and words used in the
masculine or feminine gender include the opposite gender as well as the neuter.
The headings or titles to the Articles or Sections of this Guaranty are not a
part of this Guaranty and shall have no effect upon the construction or
interpretation of any part hereof.
15.2 AMENDMENT. Except as provided in any written agreement
now or at any time hereafter in force between Tenant and Guarantors, this
instrument along with any exhibits and attachments or other documents affixed
hereto, or referred to herein, or executed in connection herewith, constitutes
the entire agreement between Guarantors and Tenant with respect to the subject
matter covered hereby. This Guaranty and the exhibits and attachments hereto may
be altered, amended, modified or revised only by an agreement in writing signed
by both Tenant and Guarantors.
15.3 NO WAIVER. No provision of this Guaranty or right of
Tenant hereunder can be waived nor can any Guarantor be released or exonerated
from its obligations hereunder except by a writing duly executed by an
authorized officer of Tenant. No such waiver shall be applicable except in the
specific instance for which given.
15.4 NOTICES. All notices or other communications required or
permitted to be given pursuant to the provisions of this Guaranty shall be in
writing and mailed postage prepaid by certified or registered mail, return
receipt requested; or deposited in the United States Mail; or sent by reputable
overnight delivery service; or sent by facsimile with a copy deposited in the
United States Mail; or delivered by personal delivery, to the appropriate
address indicated below, or at such other place or places as either a Guarantor
or Tenant may, from time to time, respectively, designate in a written notice
given to the other. Notices shall be deemed sufficiently served or given on the
date dispatched in a manner provided above, and periods provided in this
Guaranty for response to any notice shall be deemed to commence on the date of
actual receipt thereof. For purposes of notice, the address of Tenant
-5-
shall be the address at the time provided for notice to Tenant under the Lease
and the address of Guarantors shall be:
c/o Ryan Companies US, Inc.
700 International Centre
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Rejection or other refusal to accept a notice, request,
communication or demand or the inability to deliver the same because of a
changed address of which no notice was given shall be deemed to be receipt of
the notice, request, communication or demand sent.
15.5 TRIAL BY JURY. GUARANTORS HEREBY WAIVE ANY RIGHT WHICH
HE, SHE OR IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION RELATING TO THIS
GUARANTY.
15.6 SEVERABILITY. If any term or provision of this Guaranty,
the deletion of which would not adversely affect the receipt of any material
benefit by either party hereunder, shall be held invalid or unenforceable to any
extent, the remaining terms, conditions and covenants of this Guaranty shall not
be affected thereby, and each of said terms, covenants and conditions shall be
valid and enforceable to the fullest extent permitted by law.
15.7 TIME OF ESSENCE. Time is of the essence in every term of
this Guaranty.
15.8 GOVERNING LAW. This Guaranty shall be interpreted and
construed in accordance with the laws of the State of Minnesota.
15.9 INTERPRETATION. The language in all parts of this
Guaranty shall in all cases be construed simply according to its generally
understood meaning, and not strictly for or against Guarantors or Tenant.
16. APPLICATION OF PAYMENTS. If at any time there are due and
payable to Tenant from Landlord sums which are secured by this Guaranty and sums
which are not secured by this Guaranty, and Tenant receives payments which are
not adequate to pay all of said sums, payments from Guarantors specifically for
application to amounts owing under this Guaranty shall be applied to sums
secured hereby, but all other payments, whether voluntary or involuntary, shall,
for purposes of applying this Guaranty, be deemed to be first applied to sums
not secured hereby.
[Remainder of page intentionally left blank]
-6-
IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the day
and year first above written.
GUARANTORS: ▇▇▇▇ COMPANIES US, INC., a
Minnesota corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Its: V - Pres
--------------------------
▇▇▇▇ PROPERTIES, INC., a
Minnesota corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Its: V - Pres
---------------------------
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 4th day of
March, 1998, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, the Vice President of ▇▇▇▇ Companies US, Inc.,
a Minnesota corporation, on behalf of the corporation.
[SEAL]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NOTARY PUBLIC - MINNESOTA ---------------------------------
My Commission Expires Jan. 31, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 4th day of
March, 1998, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, the Vice President of ▇▇▇▇ Properties, Inc., a
Minnesota corporation, on behalf of the corporation.
[SEAL]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NOTARY PUBLIC - MINNESOTA ---------------------------------
My Commission Expires Jan. 31, 2000 Notary Public
-7-
EXHIBIT A
LEGAL DESCRIPTION OF LAND
Tracts A, B and E; That part of Tract G lying Southeasterly of the Northeasterly
extension of the Northwesterly line of said Tract B, Registered Land Survey No.
1625, Files of Registrar of Titles, County of Hennepin, State of Minnesota.
Together with the rights and easements created by the following documents:
(1) Skyway and Tunnel Agreement dated April 4, 1986, filed June 27, 1986 as
Document No. 5124377, as amended by Amendment to Skyway and Tunnel
Agreement dated ____________, 1998, filed ________________, 1998 as
Document No. ________________.
(2) Skyway Agreement dated May 31, 1989, filed January 11, 1990, as Document
No. 2066682, as amended by Declaration of Transfer of Rights dated
January 11, 1990, filed January 11, 1990, as Document No. 2066683.
(3) Second Restated Declaration-800 Tower Parcel/LaSalle Parcels dated
October 10, 1997, filed November 21, 1997, as Document No. 2863489.
(4) Restated Loading Dock Easement and Operating Agreement dated October 10,
1997, filed November 21, 1997, as Document No. 2863490.
(5) Restated Lakewood Declaration dated October 10, 1997, filed November 21,
1997, as Document No. 2863491.
(6) Parking Garage Easement Agreement dated October 10, 1997, filed November
21, 1997, as Document No. 2863492.
A-1
COMPLETION GUARANTY
THIS COMPLETION GUARANTY is made as of March 3, 1998, by ▇▇▇▇▇ ▇. ▇▇▇▇,
an individual, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, an individual (collectively, "Guarantors"),
to and for the benefit of ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware corporation
("Tenant").
RECITALS
A. Contemporaneously with the execution of this Guaranty, ▇▇▇▇ 800,
LLC, a Minnesota limited liability company ("Landlord"), and Tenant are entering
into an
Office Lease dated as of even date herewith (the "Lease"), covering
certain premises more particularly described in the Lease, which premises are a
part of the building to be constructed by Landlord on the property in
Minneapolis, Minnesota, legally described on EXHIBIT A attached hereto.
B. Guarantors are the CEO and President, respectively, of ▇▇▇▇
Properties, Inc., a member of Landlord.
C. In order to induce Tenant to enter into the Lease, Guarantors
have agreed to execute and deliver this Guaranty and perform the covenants and
agreements provided herein.
ACCORDINGLY, Landlord and Tenant hereby agree as follows:
1. DEFINITIONS. Unless specifically defined differently in this
Section or elsewhere in this Guaranty, all words with the initial letter
capitalized shall have the meanings respectively given them in Lease.
2. GUARANTY; OBLIGATIONS. Each Guarantor hereby jointly and
severally, absolutely, irrevocably and unconditionally guarantees the following
(collectively, the "Obligations"):
2.1 PERFORMANCE. The full and prompt performance at the
times, in the manner and in accordance with the requirements provided in Section
5.1 of and Exhibit D to the Lease, of the Base Building Work and all of
Landlord's other responsibilities and obligations under said Section and Exhibit
(including, without limitation, (i) the satisfaction and delivery of the matters
required to be satisfied and delivered by Landlord pursuant to clause (a) of
Section 5.1.2 of the Lease, and (ii) the demolition and construction obligations
at the times and in the manner provided in clauses (c) and (d), respectively, of
said Section 5.1.2), but excluding the performance of Landlord's obligations
under Sections 2.8 and 2.9 of Exhibit D to the Lease).
2.2 PAYMENT. The full and prompt payment of (i) the Landlord
Delay Costs payable by Landlord pursuant to clause (g) of Section 5.1.2 of the
Lease at the times and in the manner provided therein, (ii) the liquidated
damages payable by Landlord pursuant to clause (h) of said Section 5.1.2 at the
times and in the manner provided therein, and (iii) all other sums and amounts
payable by the Landlord under Section 5.1 of or Exhibit D to the Lease at the
times and in the manner provided therein, but excluding any costs and damages
arising under Sections 2.8 or 2.9 of Exhibit D to the Lease.
3. SURVIVAL. The obligations of Guarantors hereunder shall survive,
without limitation, any partial payment or performance of the Obligations, or
any termination of the Lease; provided, however, (a) no obligations of
Guarantors under Section 2.1 shall arise subsequent to the Base Building
Completion Date, and (b) no liability of Guarantors under Section 2.2 shall
accrue with respect to circumstances occurring after the date Tenant's
obligations to pay Rent with respect to the entire Initial Premises commences to
accrue.
4. INTEREST ON LATE PAYMENTS. Any amount due hereunder to Tenant
and not paid by Guarantors within ten (10) days after written demand therefor
from Tenant (which demand shall include an explanation of the amounts demanded
thereby) shall bear interest at the Interest Rate.
5. NO INQUIRY. Tenant need not inquire into the power of any
Guarantor to enter into this Guaranty.
6. ALTERATION OF OBLIGATIONS. Upon such terms and at such times as
it deems best and without notice to Guarantors, Tenant may (a) alter,
compromise, modify, accelerate, extend or change the time or manner for payment
or performance of any of the Obligations, (b) release or discharge Landlord, as
to all or any portion of the Obligations, and/or (d) release, substitute or add
any one or more guarantors or endorsers, accept additional or substituted
security for payment or performance of any Obligation, or release or subordinate
any security therefor, whether or not Tenant shall have resorted to any property
securing the Obligations or shall have proceeded against Landlord or any party
primarily or secondarily liable for the Obligations. No exercise, delay in
exercise or non-exercise by Tenant of any rights hereby given it, no dealing by
Tenant with Landlord, any guarantor, indemnitor, endorser or other person, no
change, impairment or suspension of any right or remedy of Tenant, and no other
act or thing which but for this provision could act as a release or exoneration
of the liabilities of any of Guarantors hereunder, shall in any way affect,
decrease, diminish or impair any of the obligations of any of Guarantors
hereunder or give any of Guarantors or any other person or entity any recourse
or defense against Tenant.
7. WAIVER. Each Guarantor hereby waives and agrees not to assert to
take advantage of (a) any right to require Tenant to proceed against or exhaust
its recourse against Landlord, any other Guarantor, any other guarantor or
indemnitor or any security or collateral held by Tenant at any time or to pursue
any other remedy in its power before being entitled to
-2-
payment from Guarantors of the amounts guaranteed hereunder or before proceeding
against Guarantors for the payment of such amounts; (b) the defense of the
statute of limitations in any action hereunder or for the collection of any
amounts guaranteed hereunder; and/or (c) any defense that may arise by reason of
(i) the incapacity, lack of authority, death or disability of Landlord, any of
Guarantors or any other or others, (ii) the revocation or repudiation of the
Lease or any other documents or agreements entered into by Landlord or any other
or others, (iii) the failure of Tenant to file or enforce a claim against the
estate (either in administration, bankruptcy or any other proceeding) of
Landlord, any of Guarantors or any other or others, or (iv) the unenforceability
in whole or in part of the Lease, this Guaranty or any other of such documents
or agreements; (d) presentment, demand for payment, protest, notice of
discharge, notice of acceptance of this Guaranty, and indulgences and notices of
any other kind whatsoever; (e) any defense based upon an election of remedies
(including an election to proceed by non-judicial foreclosure) by Tenant which
destroys any claimed subrogation rights of any of Guarantors or the right of any
of Guarantors to proceed against Landlord or any other party for reimbursement,
or both; (f) any rights or defenses created by any anti-deficiency statutes of
the State of Minnesota; (g) any defense based upon any taking, modification or
release of any collateral or guarantees for any obligations of Landlord to
Tenant, or any failure to perfect any security interest in, or the taking of or
failure to take any other action with respect to any collateral securing payment
or performance of the Obligations; (h) any rights or defenses based upon an
offset by any of Guarantors against any obligation now or hereafter owed to any
of Guarantors by Landlord; (i) any rights or defenses based upon any amendment
or modification to the Lease; or (j) any other act, omission or thing which
might otherwise act as a legal or equitable discharge of any of Guarantors.
8. SUBORDINATION OF SUBROGATION RIGHTS. No payment by any of
Guarantors pursuant to any provisions hereof shall entitle any of Guarantors, by
subrogation to the rights of the Tenant or otherwise, to any payment by the
Landlord or any other Guarantor or out of the property of the Landlord or any
other Guarantor until the Obligations and all costs, expenses and attorneys'
fees paid or incurred by the Tenant in endeavoring to collect the Obligations
and enforcing this Guaranty have been fully paid, and all obligations of
Guarantors hereunder have been discharged in full. Guarantors will not exercise
or enforce any right of contribution, reimbursement, recourse or subrogation
available to any of Guarantors as to any payments made hereunder, or against any
person liable therefor, or as to any collateral security therefor, unless and
until all obligations of Guarantors hereunder have been fully satisfied, the
Obligations shall have been fully paid and discharged, and all obligations of
Guarantors hereunder have been discharged in full.
9. CONDITION OF LANDLORD. Guarantors are fully aware of the
financial condition of Landlord and are executing and delivering this Guaranty
based solely upon Guarantors' own independent investigation of all matters
pertinent hereto and are not relying in any manner upon any representation or
statement of Tenant. Guarantors represent and warrant that Guarantors are in a
position to obtain, and Guarantors hereby assume full responsibility for
obtaining, any additional information concerning Landlord's financial condition
and any other
-3-
matter pertinent hereto as Guarantors may desire, and Guarantors are not relying
upon or expecting Tenant to furnish to Guarantors any information now or
hereafter in Tenant's possession concerning the same or any other matter. By
executing this Guaranty, Guarantors knowingly accept the full range of risks
encompassed within a contract of this type, which risks Guarantors acknowledge.
Guarantors shall have no right to require Tenant to obtain or disclose any
information with respect to the Obligations, the financial condition or
character of Landlord or Landlord's ability to pay and perform the Obligations,
the existence of any collateral or security for any or all of the Obligations,
the existence or non-existence of any other guaranties of all or any part of the
Obligations, any action or non-action on the part of Tenant, Landlord or any
other person, or any other matter, fact or occurrence whatsoever.
10. REMEDIES CUMULATIVE. The amount and/or extent of liability of
Guarantors, and all rights, powers and remedies of Tenant hereunder and under
any other agreement now or at any time hereafter in force between Tenant and
Guarantors, shall be cumulative and not alternative and such rights, powers and
remedies shall be in addition to all rights, powers and remedies given to Tenant
by law. The obligations of each Guarantor hereunder shall be joint and several
and unconditional.
11. SUCCESSIVE ACTIONS OR EXERCISE OF RIGHTS; COUNTERPARTS. In the
event of any default hereunder, a separate action or actions may be brought and
prosecuted against each Guarantor whether or not Landlord or any other Guarantor
is joined therein or a separate action or actions are brought against such
parties. Tenant may maintain successive actions for other defaults. Tenant's
rights hereunder shall not be exhausted by the exercise of any rights or
remedies or by any such action or by any number of successive actions. This
Guaranty may be executed in counterparts, and each such counterpart for all
purposes shall be deemed an original and all such counterparts together shall
constitute but one and the same agreement.
12. SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the benefit
of Tenant, its successors and assigns, including any assignee or sublessee of
Tenant with respect to the Lease, and shall bind the heirs, executors,
administrators, successors and assigns of each Guarantor. This Guaranty is
assignable by Tenant, and when so assigned, Guarantors shall be liable to the
assignees of this Guaranty without in any manner affecting the liability of any
Guarantor hereunder. Each reference herein to powers or rights of Tenant shall
also be deemed a reference to the same power or right of such assignees, to the
extent of the interest assigned to them.
13. BANKRUPTCY. So long as any Obligations shall be unperformed or
owing to Tenant, Guarantors shall not, as creditors, without the prior written
consent of Tenant, commence or join with any other person in commencing any
bankruptcy, reorganization or insolvency proceedings of or against Landlord. The
obligations of Guarantors under this Guaranty shall not be altered, limited or
affected by any proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of Landlord
or by any defense which Landlord may have by reason of the order, decree or
-4-
decision of any court or administrative body resulting from any such proceeding.
In the event that any obligation covered by this Guaranty is paid or performed
by Landlord, the obligations of Guarantors hereunder shall continue and remain
in full force and effect in the event that all or any part of such payment(s) or
performance(s) is avoided or recovered directly or indirectly from Tenant as a
preference, fraudulent transfer or otherwise in such proceeding.
14. EXPENSES. Each Guarantor jointly and severally agrees that if a
default occurs hereunder, Guarantors will reimburse Tenant for all costs and
expenses (including, without limitation, reasonable attorneys' fees) incurred by
Tenant, whether or not suit is instituted, in enforcing or exercising any
rights, powers, privileges or remedies granted to Tenant under this Guaranty and
for all costs and expenses of Tenant incurred in connection with the
administration and enforcement of this Guaranty, together, in each case, with
interest thereon at the Interest Rate.
15. GENERAL PROVISIONS.
15.1 TERMS; HEADINGS. The words "Guarantor" and "Tenant" as
used herein shall include the plural as well as the singular. The word used in
neuter gender include the masculine and feminine genders, and words used in the
masculine or feminine gender include the opposite gender as well as the neuter.
The headings or titles to the Articles or Sections of this Guaranty are not a
part of this Guaranty and shall have no effect upon the construction or
interpretation of any part hereof.
15.2 AMENDMENT. Except as provided in any written agreement
now or at any time hereafter in force between Tenant and Guarantors, this
instrument along with any exhibits and attachments or other documents affixed
hereto, or referred to herein, or executed in connection herewith, constitutes
the entire agreement between Guarantors and Tenant with respect to the subject
matter covered hereby. This Guaranty and the exhibits and attachments hereto may
be altered, amended, modified or revised only by an agreement in writing signed
by both Tenant and Guarantors.
15.3 NO WAIVER. No provision of this Guaranty or right of
Tenant hereunder can be waived nor can any Guarantor be released or exonerated
from its obligations hereunder except by a writing duly executed by an
authorized officer of Tenant. No such waiver shall be applicable except in the
specific instance for which given.
15.4 NOTICES. All notices or other communications required or
permitted to be given pursuant to the provisions of this Guaranty shall be in
writing and mailed postage prepaid by certified or registered mail, return
receipt requested; or deposited in the United States Mail; or sent by reputable
overnight delivery service; or sent by facsimile with a copy deposited in the
United States Mail; or delivered by personal delivery, to the appropriate
address indicated below, or at such other place or places as either a Guarantor
or Tenant may, from time to time, respectively, designate in a written notice
given to the other. Notices shall
-5-
be deemed sufficiently served or given on the date dispatched in a manner
provided above, and periods provided in this Guaranty for response to any notice
shall be deemed to commence on the date of actual receipt thereof. For purposes
of notice, the address of Tenant shall be the address at the time provided for
notice to Tenant under the Lease and the address of Guarantors shall be:
c/o Ryan Companies US, Inc.
700 International Centre
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Rejection or other refusal to accept a notice, request, communication or
demand or the inability to deliver the same because of a changed address of
which no notice was given shall be deemed to be receipt of the notice, request,
communication or demand sent.
15.5 TRIAL BY JURY. GUARANTORS HEREBY WAIVE ANY RIGHT WHICH
HE, SHE OR IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION RELATING TO THIS
GUARANTY.
15.6 SEVERABILITY. If any term or provision of this Guaranty,
the deletion of which would not adversely affect the receipt of any material
benefit by either party hereunder, shall be held invalid or unenforceable to any
extent, the remaining terms, conditions and covenants of this Guaranty shall not
be affected thereby, and each of said terms, covenants and conditions shall be
valid and enforceable to the fullest extent permitted by law.
15.7 TIME OF ESSENCE. Time is of the essence in every term of
this Guaranty.
15.8 GOVERNING LAW. This Guaranty shall be interpreted and
construed in accordance with the laws of the State of Minnesota.
15.9 INTERPRETATION. The language in all parts of this
Guaranty shall in all cases be construed simply according to its generally
understood meaning, and not strictly for or against Guarantors or Tenant.
16. APPLICATION OF PAYMENTS. If at any time there are due and
payable to Tenant from Landlord sums which are secured by this Guaranty and sums
which are not secured by this Guaranty, and Tenant receives payments which are
not adequate to pay all of said sums, payments from Guarantors specifically for
application to amounts owing under this Guaranty shall be applied to sums
secured hereby, but all other payments, whether voluntary or involuntary, shall,
for purposes of applying this Guaranty, be deemed to be first applied to sums
not secured hereby.
-6-
IN WITNESS WHEREOF, Guarantors have executed this Guaranty as of the day
and year first above written.
GUARANTORS: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 4th day of
March, 1998, by ▇▇▇▇▇ ▇. ▇▇▇▇, an individual.
[SEAL]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NOTARY PUBLIC - MINNESOTA ---------------------------------
My Commission Expires Jan. 31, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 4th day of
March, 1998, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, an individual.
[SEAL]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NOTARY PUBLIC - MINNESOTA ---------------------------------
My Commission Expires Jan. 31, 2000 Notary Public
-7-
EXHIBIT A
LEGAL DESCRIPTION OF LAND
Tracts A, B and E; That part of Tract G lying Southeasterly of the Northeasterly
extension of the Northwesterly line of said Tract B, Registered Land Survey No.
1625, Files of Registrar of Titles. County of Hennepin, State of Minnesota.
Together with the rights and easements created by the following documents:
(1) Skyway and Tunnel Agreement dated April 4, 1986, filed June 27, 1986 as
Document No.5124377, as amended by Amendment to Skyway and Tunnel
Agreement dated ______________, 1998, filed ______________, 1998 as
Document No.______________.
(2) Skyway Agreement dated May 31, 1989, filed January 11, 1990, as Document
No.2066682, as amended by Declaration of Transfer of Rights dated
January 11, 1990, filed January 11, 1990, as Document No. 2066683.
(3) Second Restated Declaration-800 Tower Parcel/LaSalle Parcels dated
October 10, 1997, filed November 21, 1997, as Document No.2863489.
(4) Restated Loading Dock Easement and Operating Agreement dated October 10,
1997, filed November 21, 1997, as Document No. 2863490.
(5) Restated Lakewood Declaration dated October 10, 1997, filed November 21,
1997, as Document No. 2863491.
(6) Parking Garage Easement Agreement dated October 10, 1997, filed November
21, 1997, as Document No. 2863492.
A-1
TAX REIMBURSEMENT AGREEMENT
THIS AGREEMENT is entered into as of March 3, 1998, by and between ▇▇▇▇
COMPANIES US, INC., a Minnesota corporation ("▇▇▇▇"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES INC., a Delaware corporation ("Tenant").
RECITALS
A. Contemporaneously with the execution of this Agreement, ▇▇▇▇
800, LLC and Tenant are entering into an Office Lease dated as of even date
herewith (the "Lease"), covering certain premises more particularly described in
the Lease, which premises are a part of the building to be constructed on the
property in Minneapolis, Minnesota, legally described on EXHIBIT A attached
hereto.
B. In order to induce Tenant to enter into the Lease, ▇▇▇▇ has
agreed to execute and deliver this Agreement and perform the covenants and
agreements provided herein.
ACCORDINGLY, ▇▇▇▇ and Tenant hereby agree as follows:
1. DEFINITIONS. Unless specifically defined differently in this
Section or elsewhere in this Agreement, all words with the initial letter
capitalized shall have the meanings respectively given them in the Lease. The
following definitions shall apply specifically to this Agreement:
"Cash Receipts" for any period shall mean the aggregate amount
of cash received by the Tenant during such period from (i) the Existing
Project Partnership other than amounts attributable to ground rent
payable by the Existing Project Partnership to Tenant, or (ii) any other
person as a result of the sale or other disposition of the Tenant's
interest in the Existing Project Partnership.
"Existing Project" shall mean the project located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ in Minneapolis, Minnesota, commonly known as of the date of
this Agreement as the "▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower".
"Existing Project Fiscal Year" shall mean a fiscal year of the
Existing Project Partnership.
"Existing Project Partnership" shall mean ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Limited Partnership, a Minnesota limited partnership of which Tenant is
a limited partner.
"Existing Project Reimbursable Tax Liability" shall mean, with
respect to any fiscal year of Tenant, (a) the total amount of income, if
any, recognized by Tenant for
federal and state income tax purposes as a result of (i) the sale or
other disposition of its interest in the Existing Project Partnership,
(ii) the sale or other disposition by the Existing Project Partnership
of its interest in the Existing Project (including, without limitation,
any disposition resulting from a foreclosure (or conveyance in lieu
thereof) of the Partnership Debt), or (iii) any full or partial
cancellation or forgiveness of the Partnership Debt (the events
described in clauses (i), (ii) and (iii) being referred to individually
as a "Triggering Event"), multiplied by (b) the Marginal Tax Rate.
"Marginal Tax Rate" means a percentage representing the combined
maximum marginal federal and Minnesota corporate income tax rates in
effect during such fiscal year of Tenant, computed without regard to the
phaseout of certain tax benefits such as the phaseouts currently
provided in the flush language of Section 11(b) of the Internal Revenue
Code. For example, as of the date of this Agreement such marginal
federal and Minnesota tax rates are 35% and 9.8%, respectively, and
produce a Marginal Tax Rate of 41.37%.
"Partnership Debt" shall mean the Existing Project Partnership's
mortgage indebtedness from time to time with respect to the Existing
Project.
2. TAX LIABILITY REIMBURSEMENT. In the event Tenant seeks
reimbursement pursuant to this Agreement of any Existing Project Reimbursable
Tax Liability, Tenant shall deliver to ▇▇▇▇ from time to time a written notice
describing the relevant Triggering Event and a reasonable calculation of the
amount of the Existing Project Tax Liability Payment estimated to be due in
connection therewith; provided, however, Tenant must so notify ▇▇▇▇ of any
Existing Project Reimbursable Tax Liability for which Tenant seeks payment
before 5:00 p.m. Minneapolis time on the first January 15th occurring after the
fifth (5th) anniversary of the Rent Commencement Date (the "Final Notice Date").
Tenant further agrees to deliver to ▇▇▇▇ such additional substantiation of the
Existing Project Reimbursable Tax Liability as ▇▇▇▇ ▇▇▇ reasonably request to
confirm the same. Within twenty (20) days after the later to occur of (y) the
date Tenant delivers to ▇▇▇▇ such substantiation of the Existing Project
Reimbursable Tax Liability as ▇▇▇▇ ▇▇▇ reasonably request, including, if
appropriate, a copy of Tenant's Form 1065, Schedule K-1 for the Existing Project
Partnership disclosing income includable in the Tenant's income for the fiscal
year of Tenant for which Tenant seeks reimbursement, or (z) the end of such
fiscal year of Tenant, ▇▇▇▇ shall pay to Tenant at the address provided in
Section 5.5 of this Agreement an amount (the "Existing Project Tax Liability
Payment") equal to the Existing Project Reimbursable Tax Liability for any
Existing Project Fiscal Year ending on or within such fiscal year of Tenant;
provided, however, that to the extent not previously accounted for in any prior
calculation of any previous Existing Project Tax Liability Payment, each
Existing Project Tax Liability Payment shall be reduced by the excess, if any,
of (a) the cumulative Cash Receipts received by the Tenant after the date of
this Agreement, over (b) the product of the Marginal Tax Rate times the total
cumulative amount of net income or gains, if any, previously recognized by
Tenant for federal and state income tax purposes as a result of Tenant's
interest in or the Existing Project Partnership for
-2-
all Existing Project Fiscal Years ending after the date of this Agreement
(regardless whether such net income or gains are generated from a Triggering
Event, but excluding any net income or gains to be recognized by Tenant as a
result of the Triggering Event for which the calculation hereunder is being
made); and provided further, in no event shall the cumulative amount payable by
▇▇▇▇ to Tenant pursuant to this Section 2 exceed Seven Million and No/100
Dollars ($7,000,000.00).
3. TENANT'S TAX SITUATION. ▇▇▇▇ acknowledges and agrees that Tenant
shall have no obligation or duty to ▇▇▇▇ to minimize or decrease the amount of
the Existing Project Reimbursable Tax Liability for any Existing Project Fiscal
Year, and Tenant shall have no liability to ▇▇▇▇ with respect to any action or
inaction by Tenant which may increase the amount thereof, but Tenant instead is
authorized to act in its sole best interest without regard to the effect on
either ▇▇▇▇ or Tenant under this Agreement.
4. LETTER OF CREDIT. Ryan's obligations with respect to amounts
that may be paid to Tenant pursuant to this Agreement is secured by a $7,000,000
letter of credit issued by U.S. Bank National Association ("Lender"), a copy of
which is attached hereto as EXHIBIT B. Tenant may (a) draw upon such letter of
credit from time to time to pay any amounts payable by ▇▇▇▇ under Agreement
which are not paid by ▇▇▇▇ within twenty (20) days after demand therefor, and/or
(b) draw the entire amount of such letter of credit if at least thirty (30) days
prior to the expiration date of the then current letter of credit either (i)
Lender has not extended the current letter of credit for a period of at least
one (1) year from the then current expiration date, or (ii) Lender or another
issuer acceptable to Tenant in its sole discretion has not issued to Tenant a
replacement letter of credit with an expiration date at least one (1) year from
the expiration date of the then current letter of credit and otherwise
acceptable to Tenant. In the event Tenant draws upon such letter of credit
pursuant to clause (b) above, Tenant shall reimburse to ▇▇▇▇ any amounts not
applied by Tenant to any payments due under this Agreement, such reimbursement
to be made within ninety (90) days after the earlier to occur of (y) such date
as ▇▇▇▇ shall furnish to Tenant a substitute letter of credit from Lender or
another issuer acceptable to Tenant in its sole discretion with an expiration
date at least one (1) year from the date of issuance thereof and otherwise
acceptable to Tenant, or (z) the Final Notice Date.
5. GENERAL PROVISIONS.
5.1 NO WAIVER. The waiver by either party of any breach of
any term, provision, covenant or condition contained in this Agreement, or the
failure of a party to insist on the strict performance by the other, shall not
be deemed to be a waiver of such term, provision, covenant or condition as to
any subsequent breach thereof or of any other term, covenant or condition
contained in this Agreement.
5.2 TERMS; HEADINGS. The words "▇▇▇▇" and "Tenant" as used
herein shall include the plural as well as the singular. The words used in
neuter gender include the
-3-
masculine and feminine genders, and words used in the masculine or feminine
gender include the opposite gender as well as the neuter. The headings or titles
to the Articles or Sections of this Agreement are not a part of this Agreement
and shall have no effect upon the construction or interpretation of any part
hereof.
5.3 AMENDMENT. Except as provided in any written agreement
now or at any time hereafter in force between ▇▇▇▇ and Tenant, this instrument
along with any exhibits and attachments or other documents affixed hereto, or
referred to herein, or executed in connection herewith, constitutes the entire
agreement between ▇▇▇▇ and Tenant with respect to the subject matter covered
hereby. This Agreement and the exhibits and attachments hereto may be altered,
amended, modified or revoked only by an agreement in writing signed by both ▇▇▇▇
and Tenant
5.4 SUCCESSORS AND ASSIGNS. This Agreement is intended to
and does bind the heirs, executors, administrators, successors and assigns of
any and all-of the parties hereto.
5.5 NOTICES. All notices, consents, approvals, requests,
demands and other communications (collectively "notices") which ▇▇▇▇ or Tenant
are required or desire to serve upon, or deliver to, the other shall be in
writing and mailed postage prepaid by certified or registered mail, return
receipt requested; or deposited in the United States Mail; or sent by reputable
overnight delivery service; or sent by facsimile with a copy deposited in the
United States Mail; or delivered by personal delivery, to the appropriate
address indicated below, or at such other place or places as either ▇▇▇▇ or
Tenant may, from time to time, respectively, designate in a written notice given
to the other. Notices shall be deemed sufficiently served or given on the date
dispatched in a manner provided above, and periods provided in this Agreement
for response to any notice shall be deemed to commence on the date of actual
receipt thereof. Any notice by Tenant to ▇▇▇▇ shall be addressed to ▇▇▇▇ at:
▇▇▇▇ Companies US, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Any request by ▇▇▇▇ to Tenant shall be addressed to:
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▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc.
1500 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Rejection or other refusal to accept a notice, request, communication or demand
or the inability to deliver the same because of a changed address of which no
notice was given shall be deemed to be receipt of the notice, request,
communication or demand sent.
5.6 SEVERABILITY. If any term or provision of this
Agreement, the deletion of which would not adversely affect the receipt of any
material benefit by either party hereunder, shall be held invalid or
unenforceable to any extent, the remaining terms, conditions and covenants of
this Agreement shall not be affected thereby, and each of said terms, covenants
and conditions shall be valid and enforceable to the fullest extent permitted by
law.
5.7 TIME OF ESSENCE. Time is of the essence in every term of
this Agreement.
5.8 GOVERNING LAW. This Agreement shall be interpreted and
construed in accordance with the laws of the State of Minnesota.
5.9 ATTORNEY'S FEES. If any action or proceeding is brought
by ▇▇▇▇ or Tenant to interpret the provisions hereof or to enforce either
party's respective rights under this Agreement, the prevailing party shall be
entitled to recover from the unsuccessful party therein, in addition to all
other remedies, all costs incurred by the prevailing party in such action or
proceeding, including reasonable attorneys' fees to be fixed by the court having
jurisdiction thereof.
5.10 INTERPRETATION. The language in all parts of this
Agreement shall in all cases be construed simply according to its generally
understood meaning, and not strictly for or against ▇▇▇▇ or Tenant.
[Remainder of page intentionally left blank]
-5-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
▇▇▇▇: ▇▇▇▇ COMPANIES US, INC
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Its Vice President
------------------------------
TENANT: ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC
By /s/ ▇▇▇▇▇▇▇ ▇.
----------------------------------
Its CFO
------------------------------
-6-
EXHIBIT A
LEGAL DESCRIPTION OF LAND
Tracts A, B and E; That part of Tract G lying Southeasterly of the Northeasterly
extension of the Northwesterly line of said Tract B, Registered Land Survey No.
1625, Files of Registrar of Titles, County of Hennepin, State of Minnesota.
Together with the rights and easements created by the following documents:
(1) Skyway and Tunnel Agreement dated April 4, 1986, filed June 27, 1986 as
Document No. 5124377, as amended by Amendment to Skyway and Tunnel
Agreement dated __________, 1998, filed ________________, 1998 as
Document No. ______________.
(2) Skyway Agreement dated May 31, 1989, filed January 11, 1990, as Document
No. 2066682, as amended by Declaration of Transfer of Rights dated
January 11, 1990, filed January 11, 1990, as Document No. 2066683.
(3) Second Restated Declaration-800 Tower Parcel/LaSalle Parcels dated
October 10, 1997, filed November 21, 1997, as Document No. 2863489.
(4) Restated Loading Dock Easement and Operating Agreement dated October 10,
1997, filed November 21, 1997, as Document No. 2863490.
(5) Restated Lakewood Declaration dated October 10, 1997, filed November 21,
1997, as Document No. 2863491.
(6) Parking Garage Easement Agreement dated October 10, 1997, filed November
21, 1997, as Document No. 2863492.
A-1
[U.S. BANK LOGO]
U.S. BANK
EXHIBIT B
U.S. BANK NATIONAL ASSOCIATION International Banking Division, MPFP1007
Minneapolis Office Cable: FIRSTBANK, MPS
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TELEX: 192179 FBNA INTL MPS
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ S.W.I.F.T.: FNBMUS44
▇▇▇ ▇▇▇-▇▇▇▇/0710 Fax: ▇▇▇ ▇▇▇-▇▇▇▇
MARCH 5, 1998
ENCLOSED IS OUR LETTER OF CREDIT NUMBER 76951
BENEFICIARY APPLICANT
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES, INC. ▇▇▇▇ 800, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
AUTHORIZED SIGNATURE
B-1
[U.S. BANK LOGO]
U.S. BANK
U.S. BANK NATIONAL ASSOCIATION International Banking Division, MPFP1007
Minneapolis Office Cable: FIRSTBANK, MPS
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TELEX: 192179 FBNA INTL MPS
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ S.W.I.F.T.: FNBMUS44
▇▇▇ ▇▇▇-▇▇▇▇/0710 Fax: ▇▇▇ ▇▇▇-▇▇▇▇
IRREVOCABLE STANDBY LETTER OF CREDIT
MARCH 5, 1998
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ TOWER, SUITE 1500
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
WE HEREBY ESTABLISH THIS IRREVOCABLE, STANDBY LETTER OF CREDIT NO. 76951 FOR THE
ACCOUNT OF ▇▇▇▇ 800, LLC, 700 INTERNATIONAL CENTRE, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, IN THE AMOUNT OF SEVEN MILLION AND NO/100 US
DOLLARS (US$7,000,000.00) AND AUTHORIZE YOU TO DRAW FROM TIME TO TIME AT SIGHT
ON U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS, MINNESOTA.
DRAFTS ON US AT SIGHT MUST BE ACCOMPANIED BY BENEFICIARY'S SIGNED STATEMENT
(PURPORTEDLY SIGNED BY AN AUTHORIZED SIGNER OF BENEFICIARY) AS FOLLOWS:
"REFERENCE IS MADE TO THAT CERTAIN TAX REIMBURSEMENT AGREEMENT DATED AS
OF MARCH 3, 1998 BETWEEN ▇▇▇▇ COMPANIES US, INC. ("▇▇▇▇") AND ▇▇▇▇▇
▇▇▇▇▇▇▇ COMPANIES, INC. WE HEREBY CERTIFY THAT (1) PURSUANT TO SAID TAX
REIMBURSEMENT AGREEMENT, ▇▇▇▇ OWES TO US AN EXISTING PROJECT TAX
LIABILITY PAYMENT IN THE AMOUNT OF $________, WHICH IS THE AMOUNT OF THE
DRAFT WHICH ACCOMPANIES THIS STATEMENT, AND (2) WE DEMANDED PAYMENT FROM
▇▇▇▇ OF SUCH EXISTING PROJECT TAX LIABILITY PAYMENT MORE THAN TWENTY
(20) DAYS PRIOR TO THE DATE OF PRESENTATION HEREOF AND SUCH AMOUNT HAS
NOT BEEN PAID TO US,"; OR
"WE ARE DRAWING UNDER THIS LETTER OF CREDIT AS IT IS LESS THAN THIRTY
(30) DAYS PRIOR TO THE EXPIRATION DATE OF THIS LETTER OF CREDIT AND THIS
LETTER OF CREDIT HAS NOT (1) BEEN EXTENDED FOR A PERIOD OF ONE YEAR FROM
THE PRESENT OR ANY FUTURE EXPIRATION DATE OR (2) BEEN REPLACED BY A
LETTER OF CREDIT WITH AN EXPIRATION DATE AT LEAST ONE (1) YEAR FROM THE
DATE OF ISSUANCE THEREOF AND OTHERWISE ACCEPTABLE TO US."
THE AMOUNT OF ANY DRAFT(S) DRAWN UNDER THIS CREDIT ARE TO BE ENDORSED ON THE
REVERSE SIDE HEREOF. SUCH DRAFTS MUST BEAR THE STATEMENT "DRAWN UNDER U.S. BANK
NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE CREDIT NO. 76951, DATED MARCH 5, 1998."
THIS CREDIT SHALL EXPIRE AT THE CLOSE OF BUSINESS ON AUGUST 31, 1998
("EXPIRATION DATE").
CONTINUED ON PAGE TWO
B-2
[U.S. BANK LOGO]
U.S. BANK
U.S. BANK NATIONAL ASSOCIATION International Banking Division, MPFP1007
Minneapolis Office Cable: FIRSTBANK, MPS
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TELEX: 192179 FBNA INTL MPS
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ S.W.I.F.T.: FNBMUS44
▇▇▇ ▇▇▇-▇▇▇▇/0710 Fax: ▇▇▇ ▇▇▇-▇▇▇▇
LETTER OF CREDIT NO. 76951
MARCH 5, 1998
PAGE TWO
WE HEREBY AGREE THAT DRAFTS AND DOCUMENTS AS SPECIFIED ABOVE WILL BE DULY
HONORED UPON PRESENTATION TO U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇: STANDBY LETTERS OF CREDIT MPFP1007, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, IF PRESENTED ON OR BEFORE THE EXPIRATION DATE. IF A DRAWING IS
SO MADE HEREUNDER AT OR PRIOR TO 12:00 NOON, MINNEAPOLIS TIME, ON A BUSINESS
DAY, PAYMENT WILL BE MADE TO YOU OF THE AMOUNT SPECIFIED, IN IMMEDIATELY
AVAILABLE FUNDS, NOT LATER THAN CLOSE OF BUSINESS, MINNEAPOLIS TIME, ON THE NEXT
BUSINESS DAY. IF A DRAWING IS SO MADE HEREUNDER AFTER 12:00 NOON, MINNEAPOLIS
TIME, ON A BUSINESS DAY, PAYMENT WILL BE MADE TO YOU OF THE AMOUNT SPECIFIED, IN
IMMEDIATELY AVAILABLE FUNDS, NOT LATER THAN CLOSE OF BUSINESS, MINNEAPOLIS TIME,
ON THE SECOND SUCCEEDING BUSINESS DAY. THE TERM "BUSINESS DAY" AS USED HEREIN
SHALL MEAN ANY DAY OTHER THAN A SATURDAY, SUNDAY, LEGAL HOLIDAY OR OTHER DAY ON
WHICH BANKING INSTITUTIONS IN MINNEAPOLIS ARE AUTHORIZED OR REQUIRED BY LAW TO
CLOSE.
THIS CREDIT IS TRANSFERABLE IN ITS ENTIRETY TO ANY TRANSFEREE WHICH HAS
SUCCEEDED YOU UNDER THE ABOVE-REFERENCED TAX REIMBURSEMENT AGREEMENT, AND MAY BE
SUCCESSIVELY TRANSFERRED. TRANSFER OF THIS CREDIT TO SUCH TRANSFEREE SHALL BE
EFFECTED BY THE PRESENTATION TO US OF THIS CREDIT ACCOMPANIED BY A COMPLETED AND
SIGNED CERTIFICATE IN THE FORM OF EXHIBIT A ATTACHED HERETO. UPON SUCH
PRESENTATION, WE SHALL ENDORSE THE TRANSFER ON THIS CREDIT AND SUCH TRANSFER
SHALL BECOME EFFECTIVE UPON DELIVERY OF THIS CREDIT BY US TO SUCH TRANSFEREE.
THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION) PUBLISHED BY THE INTERNATIONAL CHAMBER OF COMMERCE
(PUBLICATION NO. 500), OR ANY SUBSEQUENT REVISION THEREOF.
WE HEREBY ACKNOWLEDGE AND AGREE THAT OUR OBLIGATIONS TO YOU UNDER THIS CREDIT
ARE INDEPENDENT OF THOSE OF ▇▇▇▇ 800, LLC OR ▇▇▇▇ COMPANIES US, INC. TO YOU. NO
DEFENSE OR CLAIM OF ▇▇▇▇ 800, LLC OR ▇▇▇▇ COMPANIES US, INC. AGAINST YOU, AND NO
BANKRUPTCY OR INSOLVENCY OF ▇▇▇▇ 800, LLC OR ▇▇▇▇ COMPANIES US, INC. SHALL
IMPAIR OR AFFECT IN ANY WAY OUR OBLIGATION TO HONOR YOUR DRAFT OR DRAFTS
PRESENTED UNDER AND IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS CREDIT.
U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE
/s/ [ILLEGIBLE] /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------- ---------------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
B-3
EXHIBIT A TO
LETTER OF CREDIT
NO. 76951
TRANSFER CERTIFICATE
Date:___________
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Standby Letter of Credit Department
Re: Irrevocable Transferable Standby Letter of Credit No.________
Ladies & Gentlemen:
The undersigned is beneficiary of the above-captioned Irrevocable
Transferable Standby Letter of Credit (the "Credit") and hereby requests that
all rights of the undersigned to draw under the Credit be transferred to:
-----------------------------------------------
Name of Transferee
-----------------------------------------------
Address
The transferee will succeed the undersigned as beneficiary of the rights
and benefits of the undersigned under the Tax Reimbursement Agreement described
in the Credit.
The Credit is submitted herewith for endorsement by you of the transfer
and for delivery of such endorsed Credit to the transferee named above, at which
time the transfer requested hereby shall become effective.
Very truly yours,
------------------------------------
(Name of Predecessor Beneficiary)
By:
---------------------------------
Its
------------------------------
B-4
[▇▇▇▇ LETTERHEAD]
March 3, 1998
▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Manager, Real Estate and Facilities
RE: ▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER
To Whom It May Concern:
Reference is made to that certain Office Lease dated March 3, 1998 (the
"Lease"), between the undersigned, as landlord, and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies
Inc., as tenant, relating to the above-referenced project (the "Project").
The undersigned, as landlord under the Lease, at the request of U.S. Bank
National Association, the proposed holder of the purchase money mortgage and
related security instruments with respect to the Project, hereby makes the Lease
superior to such mortgage and all related security instruments pursuant to
Section 25 of the Lease. The Short Form Lease with respect to the Lease shall be
recorded prior to said mortgage and security instruments.
▇▇▇▇ 800, LLC
By: [ILLEGIBLE]
-----------------------------------
Its: Chief Manager
------------------------------
EXHIBIT 1
BASE BUILDING SHELL CONDITION REQUIREMENTS
1. FLOOR FINISHES. Concrete slab cleaned and leveled to 1/4"
tolerance within a 10'0" X 10'0" given area (tolerances are not cumulative,
elevator ▇▇▇▇▇ are to be established elevation 0'0"). Areas leveled subsequent
to initial pouring of slab to be sealed after setting. Finished surfaces to be
ready to receive carpet, ceramic tile, resilient tile, wood parquet or stone
flooring without additional preparation other than cleaning.
2. FLOOR LOADING. Floor loads shall be per applicable codes and
base building standards throughout but not less than 50 pounds per square foot
dead load plus 20 pounds per square foot for partitions. All areas within the
core perimeter should accommodate 150 pounds per square foot of dead load and
the area immediately adjacent to the core perimeter should accommodate 100
pounds per square foot live load.
3. TRADING FLOORS: WALL, COLUMN AND PERIMETER BULKHEAD
CONSTRUCTION. All perimeter walls, core walls, freestanding and engaged columns
and perimeter top and bottom bulkheads to be insulated, furred, drywalled,
taped, floated, sanded, and ready to receive final Tenant finishes.
The Building shall be designed to provide a column free space for a
trading room of approximately 13,209 usable square feet. The entire floor on
which the main trading room is located shall be approximately 40,000 gross
square feet.
In addition, the Building design shall provide two additional trading
floors of approximately 40,000 gross square feet each. Column configuration
shall be consistent with that provided on the primary trading floor with the
same configuration for the columns.
The primary trading floor shall be designed to provide for a six (6)
inch (clear) recessed access floor and shall have a clear ceiling height of
twelve (12) feet from the finished access floor. The two secondary trading
floors shall be designed to provide for a six (6) inch (clear) recessed access
floor and each floor shall have a clear ceiling height of ten (10) feet from the
finished access floor. Recessed floors shall be set so as to be at the same
level as core floors with no ramps to elevator lobbies or restrooms.
Tenant will furnish and install on all three trading floors, Tec-Crete
concrete access flooring system by Interface AR or other access floor. At
Tenant's request, Landlord shall furnish and install, Tec-Crete concrete access
flooring system by Interface AR or equivalent for $5.50/SF in the common areas
and $6.00/SF at the raised/tiered areas. Holes will be cut for $30/hole. Final
carpet tile furnish and installation over the access floors shall be by Tenant.
D-1-1
4. OTHER PERIMETER FINISHES. Building perimeters shall be fully
finished with respect to insulation, waterproofing, caulking, glazing and metal
finishing including all required glass replacement (in the event of defects or
cracked or broken panes), glass cleaning on interior and exterior, metal touch
up and cleaning and any other actions required to render the perimeters to a
tenant-ready condition. Building standard window coverings shall be provided and
installed by Landlord just before occupancy.
5. OTHER CORE FINISHES. The following shall be required to be
completed and installed at agreeable locations:
(a) Women's and men's restrooms. Restrooms should be
designed to provide flexibility in distribution of stalls between men's
and women's, and at a minimum shall provide code required stalls plus 1
for men and women on each floor other than the floor on which the
trading room is located. Each restroom shall have double entry. Toilets
on the trading floor should also be sized based on a density of one
person per 70 usable square feet. Tenant will require a combined
capacity (men's and women's) of 1 stall per 1500 square feet of trading
area. Accessible restrooms shall be provided on each floor (or as
required by the city);
(b) Telephone closets shall be completed with 3/4" plywood
walls to a height of eight feet. If exposed steel columns with
fireproofing material are present, sheetrock or plywood ceilings shall
be installed;
(c) Janitor closets;
(d) Electrical closets with service and distribution
panelboards and transformers 480/277V, 120/208V, (See Paragraph 9
below);
(e) Core walls, columns and perimeter bulkhead completed
with finished drywall ready for paint;
(f) Water coolers shall be provide at a rate of one per
10,000 usable square feet except in the trading area where they should
be provided at a rate of one per 5,000 feet;
(g) Fire sprinklers as required by code, based on Tenant's
plans;
(h) Exit signs as required per code, based on Tenant's
plans;
(i) Passenger elevator lobby complete in all respects except
finishes, including flat sheetrock ceiling, lighting, HVAC, sprinklers,
alarms/detectors, call buttons and lanterns, etc.
D-1-2
(j) Core corridor doors primed and ready to receive Tenant's
finish;
(k) Stairwell doors primed and ready to receive Tenant's
finish;
(l) Stairwells between floors serving Tenant shall have
walls and railings finish painted one-half floor above top Tenant floor,
and one-half floor below lowest Tenant floor. Such stairwells shall be
lighted to 50 foot candles minimum;
(m) Locking devices and closers for all exit, stairwell, and
electrical/telephone doors, and women's/men's toilets. Stairwell doors
shall have locking and unlocking devices controlled by Landlord's
building management system. Landlord shall also provide an electronic
card access security system as approved by Tenant on all stairwell doors
on each of Tenant's floors;
Landlord will provide card readers at select perimeter building
entry points, service elevators, low-rise elevator cabs and contacts at
all stairwell doors, service elevator vestibules, along with additional
capacity for five (5) control points on each floor for Tenant's use.
(n) All ceiling space sufficiently clear of all pipes,
ductwork, etc., to provide for a minimum finished ceiling height of ten
feet (except as otherwise required in the trading area). All base
building systems shall be coordinated such that the intersection of the
building structural system, medium pressure ductwork, the fire
protection system and the base building light fixture will all fit
within the interstitial cavity. Indicated heights shall include room to
place conventional florescent light fixtures at any (and every) place on
the floor;
(o) All pipe sleeves in beams and walls shall be packed
airtight and complete;
(p) Domestic cold water, valved and capped at one location
for each 10,000 usable square feet;
(q) Landlord shall provide for all Fire and Life Safety
requirements per City and State codes, including installation of all
required annunciators, strobes and other warning devices;
A complete code complying fully addressable fire alarm system
which complies with ADA and other Legal Requirements will be provided.
The system shall include at least the following:
D-1-3
1. Manual pull stations.
2. Speaker horns and visual strobes (ADA approved). Devices
for minimum coverage in open tenant spaces will be wired
and left coiled up in the ceiling plenum area for
installation during tenant improvement.
3. Water flow alarms and tamper switch monitoring
coordinated with the fire protection system.
4. Smoke detectors at the elevator lobbies which interface
with the elevator control system.
5. Smoke detectors at air handling units.
6. Additional monitoring and indicating devices as required
by local codes.
7. Fireman's telephone system utilizing two-way permanent
phones and phone jacks.
(r) All code required general exhaust requirements shall be
provided. In addition, Landlord shall provide a supplemental general
exhaust duct riser capable of handling 500 CFM per 25,000 feet of usable
area. Landlord must also provide additional capacity in the toilet
exhaust duct riser and fan to permit Tenant to add an additional 100 CFM
of toilet exhaust per 25,000 square feet of usable area (to accommodate
additional toilet rooms);
(s) Certificate of Occupancy shall be obtained by Landlord.
(t) The building and all public or quasi-public areas within
the building (including toilets serving Tenant's space) shall, at
Landlord's cost at the time of base building permitting, comply with all
Legal Requirements, including, without limitation, all requirements of
the Americans with Disabilities Act.
(u) Landlord represents that no asbestos, urea formaldehyde
or other materials known to be a hazardous substance will be present in
the base building construction materials at the time of base building
permitting. The representation excludes those hazardous materials which
occur naturally in non-manmade materials and the use of asbestos in
elevator brake linings.
(v) A "secured entry area" for Tenant employees will be
addressed during design development (see section 19).
6. SPRINKLER SYSTEM. Sprinkler piping shall be provided to include
main runs with crosses to achieve, at a minimum, a 15' X 15' grid. Landlord
shall provide branch piping and semi-recessed heads as necessary to meet code to
be located, at Landlord's expense, in the suspended acoustical tiles per
Tenant's final plans. Sprinkler heads shall be nominally centered (uniform grid
pattern) in the ceiling tiles. Landlord shall provide for concealed
D-1-4
heads in 5% of the space and provide a unit price for adds and deducts on a
single unit basis for more or less concealed heads.
7. CEILINGS. Complete and laser-leveled grid suspension system
capable of receiving 2'0" X 2'0" exposed t-bar acoustic tile installation.
Ceiling tile must be 2' X 2' lay-in regular edge regressed, noncombustible
mineral, foil-backed, fissured, acoustical tile, with a minimum thickness of
3/4", an NRC rating of .55 to .65, an STC rating of 35 to 39, and a light
reflectance rating of LR1. Alternative lay-in ceiling systems shall be
considered provided they meet the above standards.
8. LIGHT FIXTURES.
(a) Landlord shall provide 2' X 4' parabolic light fixtures
with a minimum louver depth of 4 inches, electronic ballasts and 10'
plug-in pigtails (manufactured wiring system). Light fixtures shall be
Optimax 2 X 4 - 3 lamp fixtures or equal alternative approved by Tenant.
Fixtures shall be provided at a rate of one per 75 rentable square feet.
Two tube fixtures will not be acceptable. Bulbs shall be T-8 (FO32/830)
energy saving lamps, or an energy efficient alternative approved by
Tenant. Provide unit cost for adds and deducts of lighting fixtures.
(b) The light fixture louver shall create a low level of
ceiling brightness and comply with the requirements of ANSI/IES RP-1
1993.
(c) Fixtures shall be provided in a quantity sufficient to
achieve a minimum of 50 foot candles of maintained light at the desktop
in all areas although it is generally assumed that the above standard
will require more fixtures. Tenant expects that the higher standard of
the two will be met. Landlord shall provide electrical distribution from
panel boards to junction boxes in the ceiling to accommodate plug-in
pigtails (manufactured wiring system). Junction boxes shall be located
on a grid with boxes located at 4000 square foot spacing. Each junction
box will contain one (1) additional "hot" conductor for future
distribution (total of three circuits/junction box).
(d) Tenant will consider an alternative in which there is
no ceiling distribution or junction boxes. Please specify the difference
in cost for this alternative.
(e) Lighting shall be controlled by a building computerized
control system as well as local controls.
9. ELECTRICAL DISTRIBUTION AND SERVICE. As part of the Base
Building Work, Landlord shall provide an electrical distribution and service
system as follows:
(a) All lighting and 480/120/208 volt power shall be
provided to Tenant's initial space by a dedicated, separately metered
switchboard with surge suppression.
D-1-5
(b) Basic electrical service of 480/277 volts, 3 phase, 4
wire, 60 cycles through a grounded switchboard suitable for such
service. The electrical service conductor and switchboard shall be
oversized 20% to anticipate possible growth in future requirements.
Switchboard devices shall be selectively coordinated with a ground fault
protection system.
(c) Distribution voltages shall be 480/277 volts, 4 wire, 3
phase for fluorescent lighting and integral horsepower motors; and
120/208 volts, 4 wire, 3 phase for receptacle circuits, small motors and
incandescent lighting.
(d) The electrical service provided by the electrical user
system shall provide a minimum of six ▇▇▇▇▇ per rentable square foot for
Tenant's lighting and receptacles in all areas (other than the trading
area and the computer room), excluding HVAC equipment, special systems,
miscellaneous electrical loads and elevator equipment requirements.
Landlord shall provide a total of 20 ▇▇▇▇▇ per square foot to
the trading floors and a total of 40 ▇▇▇▇▇ per square foot to the
computer area. It should be noted that the above power requirements for
the trading floors and the computer room do not include the power
required for the mechanical system to cool such spaces. The indicated
requirements are for lighting and equipment power only.
(e) Power distribution throughout the building shall be via
a plug-in bus duct. Busways shall be of the low impedance type and
totally enclosed. Fire-stops or barriers shall be included as an
integral part of each length and fitting of duct where required and at
each floor. Power which serves HVAC equipment, special systems,
miscellaneous electrical loads and electrical equipment must be a
separate distribution riser which is not part of the lighting and
receptacle bus duct.
(f) Distribution shall be to two electrical rooms on each
floor. Electrical rooms must be stacked directly above each other. Each
of the two rooms on each floor must be fed by its own vertical plug-in
bus duct. Each electrical room must be provided with an exhaust system.
(g) Circuit breaker panelboards shall be located on in each
electrical room on each floor to serve electrical loads and the portion
of the Premises on the floor as follows:
(1) Provide one 480/277 volt panelboard in each electrical
room. Panelboard shall have 100 amp main breaker and
provision for 42 one pole bolt on breakers. Panelboard
shall include at least one 20 amp circuit breaker per
500 square feet of usable space (exclusive of the 20%
D-1-6
growth requirement). Panelboards shall include 20% spare
breakers at move in on each floor. Distribution of 20%
spare breakers shall be uniform in the closets.
(2) In each electrical room provide two 480/120/208 volt
panelboards with a 75 KVA - K13 dry type transformer fed
from the plug-in bus duct, with 200% neutral. Each
panelboard shall have a 225 amp main breaker and
provisions for 42 one pole bolt-on breakers. Panelboards
shall include at least one 20 amp circuit breaker per
250 square feet of usable space. Each panel shall have
its own main breaker. Panels shall be electronic grade
with metal oxide varistors. Each 120/208 panel shall be
equipped with a 200% neutral, ground and isolated ground
bus. Panelboards shall include 20% spare breakers at
move in on each floor. Distribution of 20% spare
breakers shall be uniform in the closets.
(3) Panelboards and cabinets shall contain space for 20%
additional circuit breakers at each floor for future
requirements. Distribution of the 20% spare breakers
shall be uniform in the closets. At the three trading
floors, one 480/277 volt electronic panelboard, two
480/120/208 volt electronic panelboards and one 75
KVA-K13 dry type transformer will be provided in each
electrical room. Additional panelboards and
transformers, if required, will be provided by Tenant.
(h) The Building shall have an emergency power back-up
system for elevators, emergency lighting and emergency communication. In
addition, Landlord shall provide building and/or pad space for Tenant's
generator, fuel system and UPS. Landlord shall also provide space to
accommodate sound attenuation, and shall provide large openings to the
outside for air requirement. Landlord should design the building to
provide a connection from the backup power location to Tenant's
electrical closets.
The Building shall be designed and constructed to provide
incoming power from Northern States Power's downtown electrical grid.
This grid system is backed up by a minimum of two separate and
independent utility transformers. Power from the utilities grid capable
of providing adequate power to support Tenant's trading, computer and
telecommunications functions.
(i) If required to maintain utility billing power factor of
0.90, Landlord shall provide power factor correction capacitors
appropriately sized. Capacitors shall be non-PCB filled complete units
with current limiting indicating fuses and dust-tight enclosures.
D-1-7
(j) The entire electrical system and equipment shall be
grounded in accordance with the National Electrical Code. In addition,
ground counterpoise shall be a 350 MCM ground conductor installed around
the perimeter of the building and connected to building steel. Tenant's
switchboard shall be connected to this ground and a 350 MCM riser run
through each Tenant electrical and telephone and data room. Provide in
each electrical, telephone and data room a 1/4" X 2" X 24" ground bus
connected to the 350 MCM ground riser.
(k) The Building shall have lightning protection which shall
have a master label and be tied to the building grounding system.
10. MECHANICAL - HEATING, VENTILATION AND AIR-CONDITIONING. Landlord
acknowledges that according to the requirements of Section 10, Heating,
Ventilation and Air-Conditioning, Item (e), the air-conditioning system has been
designed based upon an average population density of one person per 125 usable
square feet throughout the office areas, trading areas, meeting and conference
areas.
Landlord shall include a complete "above ceiling" mechanical system.
This work includes the furnishing and installation of the VAV boxes, run-out
ducts, spin-ins, flex ducts, grilles and diffusers. Tenant's interior layout
shall be provided at the appropriate time during the shell building construction
phase to allow for the layout and construction of the mechanical distribution
system.
Landlord acknowledges that design of the HVAC system provides cooling
capacity to be based upon five (5) ▇▇▇▇▇ of electrical usage per square foot of
normally occupied area throughout the Tenant office space. Cooling for the
trading floors and computer room usage's is based upon 20 ▇▇▇▇▇ per square feet
on all three trading floors and 40 ▇▇▇▇▇ per square foot in the computer room.
Landlord confirms that the air handling units are sized to provide an
excess capacity of 5% beyond the design requirements. Landlord shall cause its
mechanical and electrical engineers to prepare the plans for the HVAC
distribution system for the leased premises, which plans shall be subject to the
review and approval of Tenant and shall meet the following criteria:
(a) The system shall include the following features:
(1) Outside air economizer, enthalpy-controlled, capable of
100% outside air.
(2) Minimum outside air provision shall be based on the
higher standard of ASHRE Standard 62-89 (Ventilation for
Acceptable Indoor Air Quality) or the successor to such
standard which is currently being written.
D-1-8
Ideally minimum outside air is actively controlled in
accordance with the actual building population.
(3) Means to provide humidification as required herein.
Humidification levels will be maintained between limits
specified. No humidification control is required or
provided.
(4) The building shall include its own cooling towers,
chillers and chilled water. The chilled water system
shall be designed to provide a minimum of two chillers,
one of which is capable of providing approximately 70%
of the overall capacity and one which is capable of
providing approximately 30% of the overall capacity. It
should be anticipated that the final ratio of chiller
capacities should be decided from load profiles, and
that each of two chillers must have the capacity to
service the trading room and the computer room.
In addition, the system shall be designed and Tenant
shall have first priority rights to chilled water in the
event of failure of one of the chillers.
Central plant electric drive chillers at approximately
0.60 to 0.70 kW/ton at ARI conditions will be provided
using a 40 DEG. F supply temperature and an 16 DEG. F
rise. Central plant chillers using HFC-134a and HCFC-123
will be considered. Each chiller will be equipped with a
low emissions refrigerant management system. Life cycle
cost analysis will be performed to determine the
appropriate chiller efficiency.
(b) Landlord shall provide a system of variable volume air
handling units with series fan-powered variable air volume boxes of
double wall construction with internal acoustical attenuation as
required to maintain the specified NC35 level in the occupied tenant
space with no internal acoustical lining in the secondary downstream
ductwork. Maximum fan CFM for FPTU's shall be 1,600 cfm for interior
zones and 1,300 cfm for perimeter zones. The fan powered terminal units
serving perimeter zones and interior zones below the roof will be
equipped with hot water heating coils on the discharge of the FPTU.
Internal zones shall be served by FPTU's. Life cycle costing analysis
will be performed to determine the heating method. Fan modulation shall
be by variable frequency drive (VFD). Landlord shall provide,
distribution ducts, supply registers and diffusers, return grills and
associated fixtures and equipment designed and installed on each floor
of the leased premises to provide control of cooling, dehumidification,
ventilation and heating in each zone of the leased premises, as defined
below. All diffusers, return air grills and distribution ductwork, shall
be designed to provide acoustical separation at all perimeter office
walls. Perimeter slot type diffusers with downblow center sections and
integral returns will be used for
D-1-9
overhead heating together with Low "E" double pane glass, thermally broken
mullions and an energy efficient curtain wall with low infiltration air leakage.
Each perimeter VAV box will be equipped with an integral flow sensor for
accurate balancing. Interior zone air distribution will be via panel face supply
type diffusers. All floor variable air volume air handling units will be
designed to address indoor air quality issues as set forth in the ASHRAE 62-89R
Standards. The following will be provided:
(1) Double wall construction.
(2) Stainless steel cooling coil drain pans, which
are internally sloped to drain dry upon unit
shutdown. Coils shall have a maximum of 8 rows
and be selected at a maximum face velocity of
500 fpm.
(3) Air handling units will be fully accessible for
cleaning and maintenance following ASHRAE 62-89R
Standards.
(4) Stainless steel cooling coil frames.
(5) AHU's capable of delivering 55 DEG. F supply air
at peak cooling load conditions to occupied
space.
(6) Air filters shall have an efficiency of 60% at 3
microns according to ASHRAE 62-89R Standards.
(c) The system, including exhaust fans, shall be designed to
conform to Tenant's plans and to operate so that sound transmission
levels do not exceed NC35. Landlord shall be required to take
appropriate corrective measures to eliminate any disturbing noise or
vibration of any mechanical equipment or system furnished and installed
by Landlord.
(d) The system shall be designed with no more than 50 lineal
feet per zone for perimeter enclosed offices on a single exposure, with
an average of not less than one zone per 900 square feet of usable area
in the premises. In addition, all conference rooms shall be separately
zoned and all building corners shall be separately zoned if they contain
a private office. Any exterior offices which have two or more exposed
glass walls or windows as to which the interior angle of intersection of
any two exterior walls is less than 135 degrees shall be separately
zoned and such zones shall be in addition to the one zone per 900 square
feet described above.
(e) The design of the air-conditioning system shall take
into account the following occupancy schedule:
D-1-10
General Offices - One person per 125 usable square feet and one
personal computer per person assuming each personal computer generates
1,000 BTU's, unless the following requirement is more stringent:
Lighting at typical office space: 1.5 ▇▇▇▇▇/sq. ft.
Tenant equipment power - to meet specified equipment load (3.5
▇▇▇▇▇/sq.ft.)
Meeting and Conference Rooms - One person per 15 usable square
feet.
(f) The occupancy schedule of particular areas shown on
Tenant's plans may vary between one person per 50 usable square feet and
one person per 200 usable square feet, provided that the entire floor
division of the leased premises does not assume more than one person per
125 usable square feet and that such variances are reasonably
distributed. The heating, ventilating and air-conditioning system shall
meet the following design conditions, at the stated outside design
conditions:
(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 minus 20 DEG.
Fahrenheit dry bulb; 72 DEG. Fahrenheit dry
bulb, inside, minimum relative humidity 25%.
Landlord shall take appropriate corrective
action should minimum relative humidity drop
below 25%.
(3) Regardless of the design standards, Landlord
shall operate the HVAC system to achieve a space
temperature of 72 DEG. Fahrenheit dry bulb
inside whenever possible.
(4) The variable air volume air handling unit and
distribution system shall have a minimum
capacity of one cubic foot per square foot of
usable area (at design conditions), and not less
than six complete air changes per hour.
(5) Provide supplemental chilled water capacity for
tenant use on a year round 24-hour basis. Floor
takeoffs should be valved and capped. Sizing
shall be based on one ton per 1,500 usable
square feet.
(6) Additional capacity shall be available at the
major air handling units and main ductwork to
provide conditioned air in an amount
D-1-11
equal to of 5% above that which is required to
meet the design conditions.
(g) All interior areas shall be suitably zoned, with
independent zone controls. No interior zone shall exceed 1,200 square
feet.
(h) Supply outlets shall be selected for minimum drafts and
noiseless air distribution.
(i) The type and size of the diffusers shall be determined
by Landlord's engineer after consultation with Tenant's architect or
engineer.
(j) All supply and/or return ducts shall be equipped with
fusible link dampers as prescribed by applicable laws, if any.
(k) Tenant intends to have lunch rooms, photocopy rooms,
meeting rooms and conference rooms. The Building shall provide an
adequate quantity of chilled water and VAV boxes to provide separate
heating and cooling zones for each such room. The heating and cooling of
each room will be controlled by a separate thermostat. All food areas
(if any) will have a recirculating air filter (provided by Tenant as
part of the tenant improvements) to remove cooking odors.
(l) Exhaust fans shall be exhausted to the return air
plenum. Electrical closets shall be equipped with exhaust fans.
(m) Supply air to the occupied tenant spaces shall be
filtered with replaceable media type filters in accordance with ASHRAE
62-89R Standards with an average efficiency of 60% based on ASHRAE Test
Standard 52.1-92.
(n) A direct digital control system (energy management
system) shall be provided with the features listed below as a minimum:
(1) Stage chillers, pumps and cooling towers to
maintain occupancy comfort at minimum energy
use.
(2) Provide run time status of HVAC equipment.
(3) Control each zone to maintain set-point
temperature. The set-point temperatures shall be
adjustable third system software.
(4) Provide alarms indicating equipment failure,
zone high/low temperatures, etc.
D-1-12
(5) Provide chilled water during winter months for
Tenant HVAC equipment in computer room,
telephone switch rooms, network and
communication closets.
(6) The building control system will be full
state-of-art DDC microprocessor based, PC
driven, with stand alone remote field panels and
peer-to-peer communication over a high speed
network to all terminal equipment. All software
and custom graphics will be included. Minimum
network communication speed will be
approximately 100K BAUD panel to panel and 9600
BAUD panel to terminal device controllers.
Pneumatic actuators in the central plant may be
considered. Temperature sensors and wiring will
be left coiled and in ceiling plenum for
installation during tenant improvement.
(o) The air velocity in riser (shaft) shall not exceed 3000
FPM, primary ductwork shall not exceed 2400 FPM, 1,500 FPM in secondary
and branch ducts. Ductwork construction shall be according to SMACNA
Standard (First Edition 1995).
(p) All supply air ductwork shall be sealed in accordance
with SMACNA standards for Seal Class "A." Ductwork insulated with
external glass fiber insulation.
(q) All HVAC hydronic systems shall be variable flow with
two-way throttling valves.
(r) Cooling towers shall be of fiberglass (FRP) or stainless
steel construction with bolted stainless steel or fiberglass (FRP)
basins, induced draft, cross-flow or counter flow design.
(s) Outside ventilation air will be flow monitored and
adjustable through the building control and management system according
to ASHRAE 62-89R Standards.
(t) Both condenser and chilled water systems will be
thoroughly chemically cleaned (internally) and flushed. Systems then
will be circulated through cartridge type filtering devices until clean.
Both condenser water and chilled water systems will be hydrostatically
tested and proved leak tight prior to insulation. All condenser and
chilled water systems will be balanced to design flow rates and
documented. All air distribution will be balanced and documented
according to ASHRAE 62-89R Standards.
(u) A smoke management system including pressurized
stairways will be provided as required by code.
D-1-13
(v) Landlord will balance the system and submit balancing
reports prepared by an independent engineer to Tenant prior to
completion of the space.
11. MECHANICAL - PLUMBING.
(a) Building water service entrance will be complete for
fire protection and domestic water. All connections between the domestic
water system and process uses will be protected by reduced pressure type
back flow preventer.
(b) A complete plumbing system will be provided, including
all underground piping to public mains, consisting of sanitary waste
piping, sanitary vent piping, domestic hot and cold water piping, and
storm sewer piping installed to all facilities and in accordance with
all applicable codes.
(c) Internal downspouts with overflow drains shall be
provided for all roof areas and will discharge to the storm sewer
system. All horizontal downspout lines in the ceiling space shall be
insulated.
(d) All plumbing fixtures shall be vitreous china,
commercial quality. Water closets and urinals shall be flush valve type,
siphon jet, and wall hung. Lavatories shall be integral bowl, furnished
with the vanity tops. Lavatory trim shall meet ADA requirements.
(e) Water coolers shall be self-contained electric,
stainless steel, meeting ADA requirements.
(f) Domestic hot and cold water shall be provided to base
building restroom facilities. All hot water piping will be insulated
except for branch piping within the toilet room chases. Valved cold and
hot water stub-outs will be provided at each toilet room for tenant use.
(g) Two 4" drain columns, waste and vent will be provided on
each floor for future connection of tenant fixtures. One tenant drain
located at the core and one at a remote location will be provided.
(h) Hose bibs will be provided in major mechanical rooms,
the loading dock, and under the counter in all restrooms. A freeze-proof
wall hydrant will be provided on each exterior face of the building.
(i) Local electric water heaters in closets and/or under
counter types will be provided, sized to provide hot water for the
toilet rooms.
D-1-14
12. MECHANICAL - FIRE PROTECTION. See paragraph 6.
13. TELEPHONE AND DATA.
(a) Tenant will construct telephone and data rooms within or
adjacent to the building core as part of its tenant improvement package.
(b) Landlord shall provide one dedicated 750 square foot
main point of presence (MPOP) room for Tenant's telephone and data
service entry into the building. This room shall be used exclusively by
Tenant.
(c) Landlord shall also construct one dedicated alternate
point of presence (APOP) room for alternate telephone and data service
entry into the building.
(d) Landlord shall provide one non-exclusive 500 square foot
fiber optic hub room for telephone and data service into the building.
The MPOP, APOP and fiber rooms are not alternates, all will be required.
(e) Landlord shall provide dedicated empty conduits from the
outside of the building near available services to Tenant's MPOP, APOP
and fiber hub rooms. Secure empty conduits must be provided from the
MPOP and APOP to each of the Tenant telephone and data rooms within its
space and to its expansion space. Landlord must provide such conduits to
serve two locations on each floor of the building occupied by Tenant and
conduits must be provided between each of the two locations.
(f) Landlord shall provide an adequately sized empty conduit
between the MPOP and the APOP.
14. ACOUSTICAL ATTENUATION. Acoustical attenuation shall be designed
within walls separating elevators, toilet rooms, fan rooms, and switchgear from
occupied Tenant spaces and five specified rooms within Tenant's space. The
system design criteria for ambient noise level in the Tenant's space, when
unoccupied, shall meet NC35 standards when all building systems are operating
and standard floor and ceiling finishes are installed.
15. ELEVATORS AND ESCALATORS. Elevators must be designed to assume a
density of one person per 85 usable square feet on the "trading floors" of the
leased premises and one person per 175 usable square feet on the remainder of
the floors. The design shall also include a handling capacity (the percentage of
building capacity that can be accommodated within five minutes) of 17% or
greater, average interval times of under 25 seconds and round trip elevator
times of less than two minutes. The Building shall be designed with two
dedicated freight elevators serving all floors, one of which, at Tenant's
request, shall be reserved for the exclusive use of Tenant during normal
business hours; with a minimum capacity of 4,000 lbs,
D-1-15
and an oversized cab. All elevators shall be tied to Tenant's card access system
for after-hours use.
16. LOADING DOCK. At a minimum, a loading dock must be provided
which is capable of accommodating over-the-road semi-trailer trucks. Such
loading dock must be covered and equipped with dock levelers, seals and exterior
lights.
17. MAIL CONVEYOR SYSTEM. The building core, at Tenant's request,
shall be designed to accommodate a mail conveyor system with a 6' X 6' shaft for
the initial premises or for the entire building and shall include wall
penetrations on each floor; provided, however, such penetrations shall be
secured so as to prohibit entry from any floor or area not lease from time to
time by Tenant. If Tenant requires such design, it shall pay the costs of
installing the equipment only for such mail conveyor and shall pay rent on the
Rentable Area permanently devoted to such facilities.
18. COMPUTER ROOM. A 12,000-15,000 square foot computer room
including structural, mechanical, electrical and access flooring necessary to
accomplish the construction of this facility. The finished ceiling height will
be ten feet (10') above the finished access flooring elevations. The area under
the access flooring shall be 12 inches (12") clear. Access flooring to be
provided by Tenant.
19. SECURITY. At Tenant's direction, ▇▇▇▇ will incorporate a secured
area (e.g. glass doors on a low rise elevator bank) into the design of the main
elevator lobby of the building, with Tenant paying the construction costs
thereof, and, if designed into the base building security stations; provided
that Tenant acknowledges that in the event Tenant does not lease all of the
Rentable Area on the Floors served by the low rise elevator bank, any Building
Occupants from time to time leasing any portion of such Rentable Area shall be
permitted to access such secured area for purposes of accessing their leased
premises. Card readers will be provided on select exterior doors and in the
garage for after hours elevator operation. Stairwell exit doors lock
electronically. The Tenant access control system, as defined in the RFP outline
specification, will be incorporated into the base building system.
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ PLATES
See pages D-2-2 through D-2-19 of this EXHIBIT 2, inclusive, subject to the
comments, questions and other matters outlined in the Tenant Comment Memoranda
(as defined in EXHIBIT 4).
▇-▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ DEPICTION
See pages D-3-2 through D-3-6 of this EXHIBIT 3, inclusive.
D-3-1
EXHIBIT 4
BASE BUILDING SCOPE DOCUMENTS
See, collectively, (a) Scope Document for the Design and Construction of the 800
Tower, a Multi-Story Office Building (▇▇▇▇▇ ▇▇▇▇▇▇▇ Tenant) in Minneapolis,
Minnesota, prepared by ▇▇▇▇ Companies US, Inc., dated February 27, 1997 and last
revised February 26, 1998, and consisting of thirty-six (36) pages, and (b)
Design Document List dated March 2, 1998 consisting of one (1) page, but subject
to (c) the comments, questions and other matters outlined in the following
memoranda from ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ to ▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
(collectively, and together with all attachments thereto, the "Tenant Comment
Memoranda"): (i) Memorandum dated February 12, 1998, revised February 23, 1998
and consisting of four (4) pages, (ii) Memorandum dated February 12, 1998,
revised February 27, 1998 and consisting of five (5) pages, (iii) Memorandum
dated February 23, 1998 consisting of three (3) pages, and (iv) ▇▇▇▇▇ ▇▇▇▇▇▇▇
Center Architectural Schematic Design Document Review consisting of three (3)
pages. Copies of each of the foregoing are attached to this EXHIBIT 4.
D-4-1
SCOPE DOCUMENT FOR
THE DESIGN AND CONSTRUCTION OF THE
800 TOWER
A MULTI-STORY OFFICE BUILDING
▇▇▇▇▇ ▇▇▇▇▇▇▇ TENANT
IN MINNEAPOLIS, MINNESOTA
PREPARED BY:
▇▇▇▇ COMPANIES US, INC.
FEBRUARY 27, 1997
REVISED: SEPTEMBER 24, 1997
REVISED: OCTOBER 3, 1997
REVISED: JANUARY 30, 1998
REVISED: FEBRUARY 6, 1998
REVISED: FEBRUARY 12, 1998
REVISED: FEBRUARY 18, 1998
REVISED: FEBRUARY 26, 1998
TABLE OF CONTENTS
01000 GENERAL CONDITIONS ......................................................2
02000 SITEWORK ................................................................6
03000 CONCRETE ................................................................9
03400 EXTERIOR PRECAST AND STONE : ............................................9
04000 MASONRY ................................................................10
05000 METALS .................................................................10
06000 CARPENTRY AND MILLWORK .................................................11
07000 THERMAL AND MOISTURE PROTECTION ........................................12
08000 DOORS AND WINDOWS ......................................................13
09000 FINISHES ...............................................................15
10000 SPECIALTIES ............................................................20
11000 EQUIPMENT ..............................................................20
14000 CONVEYING SYSTEMS ......................................................21
15000 MECHANICAL .............................................................22
16000 ELECTRICAL .............................................................30
18000 SPECIALTY SPACES .......................................................34
TENANT IMPROVEMENTS ..........................................................36
Page 1
EXHIBIT 5
BASE BUILDING CONSTRUCTION SCHEDULE
*Submission of 50% Design Development to ▇▇▇▇▇ ▇▇▇▇▇▇▇ 3/20/98
*Submission of 100% Design Development to ▇▇▇▇▇ ▇▇▇▇▇▇▇ 4/13/98
Complete Demolition of existing improvements 5/01/98
*(milestone date for completion of demolition) 9/01/98
*Submission of 50% Construction Documents to ▇▇▇▇▇ ▇▇▇▇▇▇▇ 5/26/98
Start Footings/Foundation 8/10/98
*(milestone date for start of footings/foundation) 10/01/98
*Submission of 100% Construction Documents to ▇▇▇▇▇ ▇▇▇▇▇▇▇ 7/13/98
Pour Core Walls Floor One (1) (Start) 10/13/98
Complete Building Core Shell Permits (City) 8/13/98
Pour Floor Two (2) (Start) 1/6/99
Electrical/Plumbing OH Rough Floor Three (3) (Start) 3/03/99
Pour Core Walls Floor Fourteen (14) (Start) 3/09/98
Sprinkler Floor Three (3) (Start) 3/12/99
Pre-cast Floor Three (3) (Start) 3/30/99
Erect Steel Flour Fourteen (14) and Fifteen (15) (Start) 4/23/99
Pour Floor Fourteen (14) (Start) 5/27/99
Street Level Finishes (Start) 10/15/99
Mechanical OH Rough Floor Thirteen (13) (Start) 6/06/99
Electrical/Plumbing OH Rough Floor Fourteen (14) (Start) 6/25/99
Sprinkler Floor Fourteen (14) (Start) 7/16/99
Pre-cast Floor Fourteen (14) (Start) 7/20/99
Plaza and Site (Start) 8/15/99
Skyway Level Finishes (Start) 10/15/99
Pour Core Walls Penthouse (Start) 8/03/99
*Submission of Tenant Work Plans and Specifications 6/01/99
(for ceiling and HVAC)
Mechanical/Electrical Wall Rough Floor Thirteen (13) (Start) 8/13/99
Window Glazing Floor Fourteen (14) (Start) 8/31/99
Erect Steel Penthouse (Start) 9/20/99
Pour Penthouse Floor (Start) 10/12/99
Roofing (14) 8/23/99
Roofing (Penthouse Level) 12/27/99
Vertical Transportation Available
a) Hoist and One (1) Elevator Car (Low Rise) 9/01/99
b) Two (2) Additional Elevator Cars (Low Rise) 10/01/99
*Delivery Date for Floors Four (4) and Five (5) 9/17/99
*Delivery Date for Floors Six (6) and Seven (7) 10/01/99
D-5-1
*Delivery Date for Floors Eight (8) and Nine (9) 10/15/99
*Delivery Date for Floors Ten (10) and Eleven (11) 10/29/99
*Delivery Date for Floors Twelve (12) and Thirteen (13) 11/14/99
*Delivery Date for first two Floors of First Additional Initial
Premises 11/29/99
*Delivery Date for remaining Floors of Second Additional
Initial Premises and Retail Premises 12/13/99
Building Test/Balance (Start) 2/17/00
*Base Building Completion Date 3/31/00
Only the items designated with an * constitute milestone dates for purposes of
Landlord Delay in Article 1 of the Work Letter. Items not designated with an *
are shown for informational purposes only and are subject to change based upon
Landlord's progress in performance in the Base Building Work.
In the event Tenant exercises its rights to delete Excess Space from the
Premises, any full Floor of space so deleted shall also be deleted from the
applicable Delivery Date provided above, and all Floors to be delivered
subsequent to such Delivery Date shall be accelerated so each of the Delivery
Dates for the Initial Premises (other than the Additional Initial Premises)
shall be delivered in pairs of Floors as provided above (e.g., if Floor Four (4)
is deleted as Excess Space, the Delivery Date for Floors Five (5) and Six (6)
shall be 9/17/99, the Delivery Date for Floors Seven (7) and Eight (8) shall be
10/1/99, etc.).
D-5-2
EXHIBIT 6
BASE BUILDING PLANS AND SPECIFICATIONS SUBMISSION GUIDELINES
SITE - Site Survey
- Site Plan
- Civil Plan
- Landscape Plan
ARCHITECTURAL - Architectural Floor Plans (1/16 Scale)
- Dimensioned Floor Plan (1/8 Scale)
- Details (including but not limited to curtain
wall, wall type, lobbies, elevator cabs, all
public spaces, etc.)
- Elevations (interior/exterior)
- Door/Frame/Hardware Schedule
- Reflected Ceiling Plan (typical)
- Core Plan (1/8 or 1/4 scale)
- Enlarged lobby/skyway plans
- Wall Sections
- Toilet Room Plans, Elevations, Details
- Window Types
- Interior Finish Details
MECHANICAL - Final systems narrative
- Heating/cooling load calculations
- Specifications:
-Plumbing/Fire Protection
-HVAC
-Piping
-Controls/TAB
- Drawings:
-Site systems
-Plumbing systems
-Fire protection systems
-Heating systems
-Ventilating systems
-Cooling systems
-Special systems
-Schedules
-Details
-System schematics
-Plumbing isometrics
D-6-1
ELECTRICAL - Systems narrative
- Heating/cooling load calculations
- Specifications:
-Fire alarm system
-Switchgear
-Special system
- Drawings:
-Site systems
-Lighting plans - layouts, notes,
circuiting, controls
-Power plans - devices, panels, notes,
circuiting
-System plans - devices, notes
-Details
-Equipment schedules/notes-mechanical,
Owner, building
- Panel schedules
- Riser diagram - feeder schedule, transformer
schedule
STRUCTURAL - Foundation sections/detail
- Foundation Plan
- Structural: Parking Levels
- Structural: Typical Details
- Framing Plan (floor)
- Skyway Level Training Plan
- Structural: Mechanical Room, Penthouse and
Roof
- Column Schedule and Details
GENERAL - Other documents from subcontractors including
but not limited to Gage Brothers, ▇▇▇▇▇▇
Contract, ▇▇▇▇▇▇▇▇ Mechanical, etc.
- Specifications
D-6-2
05/15/98
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made and entered into as of May 18,
1998, by and between ▇▇▇▇ 800, LLC, a Minnesota limited liability company
("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware
corporation ("Tenant").
RECITALS
A. Landlord, as landlord, and Tenant, as tenant, entered into that
certain Lease Agreement dated as of March 3, 1998 (collectively the "Lease"),
relating to certain leased premises in the building to be constructed by
Landlord in the City of Minneapolis, Hennepin County, Minnesota, on land legally
described on Exhibit A to the Lease.
B. Landlord and Tenant now desire to amend the Lease in certain
respects as more specifically provided in this First Amendment.
Accordingly, Landlord and Tenant agree as follows:
1. ADDITIONAL INITIAL PREMISES. Landlord and Tenant acknowledge and
agree that Tenant in its sole discretion may, but shall not be obligated to,
include in the Additional Initial Premises described in clause (b) of Section
2.1.2 of the Lease all or any portion of the Rentable Area of Floor Three (3)
which is not leased by Tenant pursuant to clause (a) of Section 2.1.2 of the
Lease.
2. EXCESS SPACE. Section 2.1.4 of the Lease is hereby amended and
restated in its entirety as follows:
"2.1.4 EXCESS SPACE. Tenant shall have the following rights to
decrease the Rentable Area of the Initial Premises as determined under
this Section 2.1 as follows:
(a) By up to the greater of (i) eighty thousand (80,000)
square feet of Rentable Area, or (ii) the Rentable Area
contained in two (2) full Floors with Rentable Areas
equivalent to that of Floor Six (6), by notice given to
Landlord not later than July 1, 1998; and
(b) By up to the greater of (i) forty thousand (40,000)
square feet of Rentable Area, or (ii) the Rentable Area
contained in one (1) full Floor with a Rentable Area
equivalent to
that of Floor Six (6), by notice given to Landlord not
later than February 1, 1999;
provided that the aggregate Rentable Area deleted from the Initial
Premises pursuant to clauses (a) and (b) shall not exceed the greater of
(i) eighty thousand (80,000) square feet of Rentable Area, or (ii) the
Rentable Area contained in two (2) full Floors with Rentable Areas
equivalent to that of Floor Six (6). Any such area deleted from the
Premises shall hereinafter be referred to as "Excess Space". The size,
location and configuration of the Excess Space shall otherwise be
determined by Tenant in its sole discretion, except that (x) the Excess
Space shall not consist of any portion of Floors Eleven (11) through
Thirteen (13), (y) the Excess Space located on Floors other than Floors
Two (2) or Three (3) or any Mechanical Floor, shall, if the uppermost or
lowermost Floor of the Initial Premises (other than Floors Two (2),
Three (3) or any Mechanical Floor) does not include all of the Rentable
Area on such Floor, consist of all or any portion of the then-existing
Initial Premises then-located on such Floor, and then the remainder of
such Excess Space shall be located on the uppermost and/or lowermost
Floor of the Initial Premises, and the uppermost and lowermost Floor of
the Initial Premises (other than Floors Two (2), Three (3) or any
Mechanical Floor), as so adjusted, shall consist of either one-half
(1/2) or the entire Rentable Area on such Floor except to the extent the
remaining Excess Space available under either clause (a) or clause (b)
above does not equal either one-half (1/2) or the entire Rentable Area
of a particular Floor, in which case and subject to the total area
limitations provided in clause (a) and clause (b) above, the Excess
Space on such Floor may consist of all or any portion of the
then-existing Initial Premises then-located on such Floor, and (z) the
space not leased by Tenant on any partial Floor shall be capable of
being configured so as to make the same reasonably leasable.
Notwithstanding the foregoing, Tenant in its sole discretion may elect
to have any or all of the Excess Space located on Floor Two (2) or Three
(3) or on any Mechanical Floor."
3. USE: GENERAL. Section 3.1 of the Lease is hereby amended by
adding the following as the final sentence thereof:
"Further notwithstanding the foregoing, (x) no portion of the Premises
other than the Retail Premises shall be used for any retail uses which
are not associated with a Financial Services Business, (y) in the event
any Subtenant or assignee of Tenant's interest in this Lease is a
governmental agency or governmental entity, such agency or entity shall
not use any portion of the Premises for other than general office
purposes, and such office use shall comply with the requirements of
clause (c) above and shall be subject to Landlord's prior approval,
which approval shall not be unreasonably withheld or delayed, and (z) no
portion of the Premises shall be used as a school or educational center
or facility; provided,
2
however, nothing in this Section 3.1 shall limit Tenant's right to
sublease or allow the use or occupancy of any portion of the Premises
for a postal or delivery service center serving the Premises and/or the
Building, or for a day care center, school or educational center or
facility primarily benefiting Tenant and/or any of its Affiliates or
Subtenants, the officers, directors, agents, servants, employees and/or
representatives of any thereof, or the families, dependants or wards of
any such parties."
4. SERVICES: HEATING VENTILATION AND AIR CONDITIONING.
Section 13.2.1 of the Lease is hereby amended by amending and restating the last
sentence thereof in its entirety as follows:
"In the event of any interruption or shortfall in such services,
Landlord shall provide such services to the extent available to the
Premises on a first priority basis, provided that Landlord may
temporarily allocate such services to the critical areas of other
Building Occupants so long as Tenant's use of the Premises is not
materially adversely affected by such temporary allocation."
5. SERVICES: BUILDING SECURITY. Section 13.2.4 of the Lease is
hereby amended by adding the following at the conclusion thereof:
"To the extent Tenant and its Affiliates do not lease (including
pursuant to any sublease of the Premises to Affiliates of Tenant or any
other sublease) all of the Rentable Area of the Building served by a
particular elevator bank of the Building, Tenant shall cause the
additional security measures described in clauses (a), (b) and (c) above
to be operated in such manner as to not unreasonably limit the ability
of any other Building Occupant leasing all or any portion of the
Rentable Area not leased by Tenant and served by such elevator bank, as
well as such Building Occupant's employees and invitees, to access such
Building Occupant's leased premises. Landlord and Tenant acknowledge and
agree that the preceding sentence shall require the removal or
modification of installations or equipment installed by Tenant pursuant
to clause (c) above if and to the extent the same (y) consist of
equipment, such as turnstiles, which unreasonably restrict the flow of
persons to and from such elevator bank in a manner inconsistent with
first class office buildings in Minneapolis, Minnesota, and (z) were not
confirmed or deemed confirmed by Landlord as not requiring removal, if
Tenant requested such confirmation, pursuant to the following provisions
of this Section 13.2.4. At such time as Tenant shall desire to install
any such installations and equipment, Tenant at its option may request
confirmation that the installations and equipment Tenant desires to
install are not of the type which would require removal or modification
pursuant to the preceding sentence. Landlord shall not withhold such
confirmation to the extent such installations and equipment do not
unreasonably restrict the flow of persons to and from such elevator bank
in a
3
manner inconsistent with first class office buildings in Minneapolis,
Minnesota. Such confirmation shall be deemed to be given if not denied
in a notice to Tenant given within fifteen (15) days after notice from
Tenant describing in reasonable detail Tenant's desired installations
and equipment."
6. ALTERATIONS: EFFECT ON EXTERIOR APPEARANCE OF BUILDING.
Section 15.1.3 of the Lease is hereby amended and restated in its entirety as
follows:
"15.1.3 EFFECT ON EXTERIOR APPEARANCE OF BUILDING. Except as
otherwise expressly permitted under the terms of this Lease (e.g.,
Section 13.2.4, Articles 5, 36, 37, 39 and 40, and EXHIBIT D), Tenant
shall not make any improvements, alterations or additions which are
visible from the public areas of the Building without Landlord's prior
approval, which approval shall not be unreasonably withheld, or alter
the exterior appearance of the Building without Landlord's prior
approval."
7. ALTERATIONS: EFFECT ON BUILDING STRUCTURE, BUILDING SYSTEMS.
Section 15.1.4 of the Lease is hereby amended and restated in its entirety as
follows:
"15.1.4 EFFECT ON STRUCTURE, BUILDING SYSTEMS. Tenant shall not
make any alterations, additions or modifications to the Premises which
adversely affect the structural integrity of the Building or adversely
affect the performance of the Building Systems with respect to space
other than the Premises, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld."
8. MANAGEMENT. Section 23.2 of the Lease is hereby amended by
amending and restating the last sentence thereof in its entirety as follows:
"Tenant further agrees to approve an Affiliate of Landlord as the
manager of the Building, provided such Affiliate has considerable
experience in the management of first class high rise office buildings
such as the Building and has a reputation in the real estate industry
for performing such management in a manner consistent with the Minimum
Building Standards."
9. HAZARDOUS MATERIALS. Section 33.1 of the Lease is hereby amended
and restated in its entirety as follows:
"33.1 LANDLORD. Landlord shall not install or use, or allow
any Building Occupant to install or use, in or about the Building or the
Land any Hazardous Material except for Hazardous Materials contained in
construction materials which are customarily incorporated in accordance
with Legal Requirements at the time of installation in, or from time to
time typically used in the operation of, first class high rise office
buildings in compliance with the Minimum Building
4
Standards and in accordance with Legal Requirements. Landlord shall
reimburse Tenant upon demand for any costs which Tenant incurs as a
result of, and Landlord shall indemnify Tenant against, any and all
claims, liabilities, costs and expenses related to the presence of any
Hazardous Materials in, on or about the Building or the Land, except
that Landlord shall not be responsible for Hazardous Materials placed in
the Building by Tenant or any of its Subtenants."
10. CHANGES IN BUILDING. Section 34.2 of the Lease is hereby amended
and restated in its entirety as follows:
"34.2 CHANGES IN BUILDING. Landlord reserves the right in its
discretion at any time after the Base Building Completion Date, to make
changes, alterations, additions, improvements or replacements to the
Building and the Common Areas, fixtures and equipment thereof; provided,
however, (a) that (i) any change, alteration, addition, improvement or
replacement which shall unreasonably interfere with or have any material
adverse impact on the conduct of Tenant's business at the Premises, (ii)
any change, alteration, addition, improvement or replacement which is
reasonably likely to materially increase Tenant's Operating Expenses
Contribution, and (iii) any material change, alteration, addition,
improvement or replacement to or affecting (A) the exterior of the
Building or any exterior Building amenities or features, the Skyways, or
the Floor One (1) and Floor Two (2) lobbies (including the escalators,
elevator lobbies, entrances and exits thereof), (B) the Building Systems
serving any portion of the Premises or the Floor One (1) and Floor Two
(2) lobbies, or (C) any Common Areas located on a Floor occupied in
whole or in part by Tenant (other than reconfiguration of Building
Occupant access corridors which are not utilized by Tenant to access any
portion of the Premises or any Building amenities or other Common
Areas), shall be subject to Tenant's prior written approval, which may
be withheld in Tenant's sole discretion, and (b) that, except with
respect to the changes, alterations, additions, improvements or
replacements described in clause (a) above, any material change,
alteration, addition, improvement or replacement to the truck docks and
loading areas, driveways, ramps, entrances, exits, loading and unloading
areas, Parking Garage, or any other Common Areas, Building Systems, or
Building amenities, shall be subject to Tenant's prior written approval,
which approval shall not be unreasonably withheld or delayed. Such
approval shall be deemed to be given if not denied in a notice to
Landlord given within fifteen (15) days after notice from Landlord
describing in reasonable detail the proposed change, alteration,
addition, improvement or replacement."
11. BUILDING NAME. Section 35.1 of the Lease is hereby amended by
amending and restating the last sentence thereof in its entirety as follows:
5
"The provisions of the immediately preceding sentence shall survive such
expiration or termination."
12. BUILDING OCCUPANTS. The Lease is hereby amended by adding the
following as Section 38.4 thereof:
"38.4 PROHIBITED OCCUPANTS. Landlord agrees not to lease space
in the Building to, or to consent (actively or passively) to the
occupancy of any portion of the Building by, any governmental agency or
governmental entity for any use other than general office purposes,
without in each instance obtaining the consent of Tenant, which consent
may be withheld in Tenant's sole discretion. Each lease or other
occupancy agreement entered into with any such governmental Building
Occupant with respect to any portion of the Building shall contain a
prohibition against any use other than general office purposes (which
office use shall comply with the requirements of clause (c) of Section
3.1 and shall be subject to Tenant's prior approval, which approval
shall not be unreasonably withheld or delayed) by any such governmental
Building Occupant."
13. MICROWAVE DISHES, SATELLITE DISHES AND ANTENNAS: GRANT.
Section 39.1 of the Lease is hereby amended by amending and restating the first
sentence thereof in its entirety as follows:
"Landlord hereby grants Tenant the right to use the rooftop area of the
Building for the purpose of installing, maintaining and replacing
microwave, satellite and/or vertical dishes, antennae, and other
exterior communications equipment, and associated transmission
equipment, ▇▇▇▇▇▇▇ and other equipment and structures (collectively,
"Antennae") and for the use and operation of such Antennae in connection
with the business or operation of Tenant and/or any of its Affiliates or
Subtenants."
14. MICROWAVE DISHES, SATELLITE DISHES AND ANTENNAS: INSTALLATION.
Section 39.2 of the Lease is hereby amended by amending and restating the last
sentence thereof in its entirety as follows:
"All such equipment shall be constructed and maintained by Tenant in
accordance with Legal Requirements, in compliance with the reasonable
requirements of the insurers of the Building, and shall be of a size and
appearance which is not inappropriate for use in connection with a first
class office building in Minneapolis, Minnesota.
15. MICROWAVE DISHES, SATELLITE DISHES AND ANTENNAS: TRANSFER.
Section 39.3 of the Lease is hereby amended and restated in its entirety as
follows:
6
"39.3 TRANSFER. Tenant may extend all or any portion of it
rights hereunder to any parent, subsidiary or other Affiliate of Tenant,
and to any other Subtenant which subleases not less than twenty thousand
(20,000) square feet of Rentable Area; provided, however, to the extent
any such Subtenant is engaged in the business of renting or managing
rooftops, such Subtenant shall be entitled to Tenant's rights under this
Article 39 only to the extent necessary to serve its business operations
at the Premises other than renting or managing rooftops."
16. MICROWAVE DISHES, SATELLITE DISHES AND ANTENNAS: OTHER USES.
Section 39.4 of the Lease is hereby amended by amending and restating the
penultimate sentence thereof in its entirety as follows:
"In the event any such Other Antennae so interferes with any of Tenant's
Antennae which have theretofore been installed at the Building, Landlord
shall cause the offending Other Antennae to be immediately removed or
relocated in such manner as to eliminate such interference."
17. APPLICATION OF LEASE TERMS. Except to the extent inconsistent
with this First Amendment and except to the extent that the specific terms of
this First Amendment specifically address a topic, the terms and conditions of
the Lease shall apply to the Lease and the leased premises as amended by this
First Amendment. This First Amendment shall be binding upon and inure to the
benefit of Landlord, Tenant and their respective successors and assigns.
18. REAFFIRMATION OF LEASE. Except as specifically amended herein,
the terms and conditions of the Lease remain unchanged and in full force and
effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First
Amendment as of the date first set forth above.
LANDLORD: ▇▇▇▇ 800, LLC
By /s/ [ILLEGIBLE]
-------------------------------------
Its Chief Mgr.
---------------------------------
7
TENANT: U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES INC.
By [ILLEGIBLE]
-------------------------------------
Its CFO
---------------------------------
8
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE is made and entered into as of July 29,
1999, by and between ▇▇▇▇ 800, LLC, a Minnesota limited liability company
("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware
corporation ("Tenant").
RECITALS
A. Landlord, as landlord, and Tenant, as tenant, entered into that
certain Lease Agreement dated as of March 3, 1998, as amended by a First
Amendment to Lease dated as of May 18, 1998 (collectively, the "Lease"),
relating to certain leased premises in the building to be constructed by
Landlord on Nicollet Avenue in the City of Minneapolis, Hennepin County,
Minnesota, on land legally described on Exhibit A to the Lease.
B. Landlord and Tenant now desire to further amend the Lease in
certain respects as more specifically provided in this Second Amendment.
AGREEMENT
Accordingly, Landlord and Tenant agree as follows:
1. DELIVERY DATE. The definition of the term "Delivery Date" in
Exhibit D of the Lease is hereby amended by (a) deleting therefrom the following
words:
"later of (a) the date occurring fourteen (14) days after the
immediately preceding Delivery Date (which, for purpose of this
clause (a), may include pairs of Floors, if so provided in the
Base Building Construction Schedule), if any, and (b) the";
and (b) deleting clause (iv) thereof in its entirety.
2. BASE BUILDING CONSTRUCTION SCHEDULE. The Base Building
Construction Schedule which is Exhibit 5 to Exhibit D of the Lease is hereby
amended by (a) changing the specified date for "*Submission of Tenant Work Plans
and Specifications (for ceiling and HVAC)" from 6/01/99 to 7/09/99; and (b)
changing the Delivery Date for all Floors of the Initial Premises, other than
the Initial Retail Premises, to December 31, 1999.
3. APPLICATION OF LEASE TERMS. Except to the extent inconsistent
with this Second Amendment and except to the extent that the specific terms of
this Second Amendment specifically address a topic, the terms and conditions of
the Lease shall apply to the Lease and the leased premises as amended by this
Second Amendment. This Second Amendment shall be binding upon and inure to the
benefit of Landlord, Tenant and their respective successors and assigns.
4. REAFFIRMATION OF LEASE. Except as specifically amended herein,
the terms and conditions of the Lease remain unchanged and in full force and
effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Second
Amendment as of the date first set forth above.
LANDLORD: ▇▇▇▇ 800, LLC
By /s/ [ILLEGIBLE]
-------------------------------
Its Chief Mgr.
---------------------------
TENANT: U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES INC.
By /s/ [ILLEGIBLE]
-------------------------------
Its PRESIDENT
---------------------------
2
CONSENT
The undersigned, as holder of that certain Combination Mortgage,
Security Agreement and Fixture Financing Statement dated March 3, 1998 by and
between ▇▇▇▇ 800, LLC, Minnesota limited liability company ("Lessor"), and the
undersigned, filed on March 5, 1998 as Document No. 2893788 in the Office of the
Registrar of Titles, Hennepin County, Minnesota, as amended by that certain
Amended and Restated Combination Mortgage, Security Agreement, and Fixture
Financing Statement-Bridge Loan dated July 22, 1998, by and between Lessor and
the undersigned, filed on July 29, 1998 as Document No. 3050505 in the Office of
the Registrar of Titles, Hennepin County, Minnesota (collectively, the
"Mortgage"), encumbering the Land and the Building (as defined in the Lease)
hereby consents to the terms and conditions of the attached Second Amendment to
Lease (the "Amendment") and gives all necessary approvals to the Amendment
required by and under the Mortgage and that certain Subordination,
Non-Disturbance and Attornment Agreement (Office Loan) dated as of July 22,
1998, by and among the undersigned, Lessor and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies Inc.
U.S. BANK NATIONAL ASSOCIATION
By /s/ [ILLEGIBLE]
---------------------------
Its VP
-----------------------
CONSENT
The undersigned, as holder of that certain Combination Mortgage,
Security Agreement and Fixture Financing Statement dated March 3, 1998 by and
between ▇▇▇▇ 800, LLC, Minnesota limited liability company ("Lessor"), and the
undersigned, filed on March 5, 1998 as Document No. 2893790 in the Office of the
Registrar of Titles, Hennepin County, Minnesota, as amended by that certain
Amended and Restated Combination Mortgage, Security Agreement, and Fixture
Financing Statement-Bridge Loan dated July 22, 1998, by and between Lessor and
the undersigned, filed on July 29, 1998, as Document No. 3050507 in the Office
of the Registrar of Titles, Hennepin County, Minnesota (collectively, the
"Mortgage"), encumbering the Land and the Building (as defined in the Lease)
hereby consents to the terms and conditions of the attached Second Amendment to
Lease (the "Amendment") and gives all necessary approvals to the Amendment
required by and under the Mortgage and that certain Subordination,
Non-Disturbance and Attornment Agreement (Bridge Loan) dated as of July 22,
1998, by and among the undersigned, Lessor and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies Inc.
U.S. BANK NATIONAL ASSOCIATION
By /s/ [ILLEGIBLE]
---------------------------
Its VP
-----------------------
LEASE AMENDMENT, INDEMNIFICATION AND
JOINT DEFENSE AGREEMENT
THIS AGREEMENT, made and entered into this 29th day of September, 1999,
by and between ▇▇▇▇ 800, LLC, a Minnesota limited liability company
("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware
corporation ("Tenant")
W I T N E S S E T H, that:
WHEREAS, Landlord and Tenant entered into that certain Office Lease,
dated March 3, 1998, as amended by that certain First Amendment to Lease, dated
May 18, 1998 and by that certain Second Amendment to Lease dated July 30, 1999
(collectively, the "Lease"); and
WHEREAS, Landlord and Tenant are concurrently herewith entering into
that certain Supplemental Amendment Regarding Expansion Space (the "Supplemental
Amendment") regarding the leasing of the Initial Expansion Space described
therein pursuant to the exercise of said expansion rights; and
WHEREAS, on information and belief, the Hennepin County Attorney is
likely to take positions on tax issues that serve to maximize revenue to the
County and that may differ from the positions of the Landlord and Tenant, even
though the positions of Landlord and Tenant reflect the soundest reading of law
and fact; and
WHEREAS, Landlord and Tenant believe that there exist substantially
common interests between them with regard to defining and defending sound
positions with respect to the tax treatment of their interests in the leased
property, and with regard to allocating the risk that, as reasonably anticipated
by the parties, the Hennepin County Attorney will nonetheless disagree with same
so as to maximize revenue or for other reasons and place the issue in
litigation, the results of which are inherently unpredictable; and
WHEREAS, Landlord and Tenant individually may in the future undertake,
factual and legal research and each is of the opinion that it would be in their
best interests to exchange certain information, pool certain of its individual
work product, and cooperate in the defense of their tax positions with respect
to their relative interests in the leased property; and
WHEREAS, Landlord and Tenant believe that all information, documents,
and other materials related to their joint defense efforts are confidential and
privileged and should be kept confidential; and
WHEREAS, Landlord and Tenant acknowledge that this Agreement does not
mean and is not evidence that either has engaged in any wrongful conduct or that
their tax positions are anything other than sound; and
WHEREAS, Landlord and Tenant intend that any such joint defense efforts
shall not constitute nor be construed as a waiver of any attorney/client, work
product or other privileges; and
WHEREAS, the specific terms of this Agreement are confidential and
privileged and shall not be disclosed to third persons absent stipulation of
both Landlord and Tenant or absent Court order;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Supplemental Amendment, and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. DEFINED TERMS. All terms used herein with an initial capital letter or
letters and not otherwise defined herein shall have the meanings
ascribed thereto in the Lease and Supplemental Amendment. Landlord and
Tenant are sometimes referred to in this Agreement as the "Parties" and
individually as a "Party".
2. LEGAL SUMMARY. The Building presently qualifies for the transit zone
reduced class rate (the "Transit Zone Reduced Class Rate") set forth in
Minn. Stat. 273.13, Subd. 24(c)(1), and satisfies the additional
requirements imposed by Minnesota Laws 1999, Chapter 243, the 1999
Omnibus Tax ▇▇▇▇ (the "1999 Tax ▇▇▇▇") which, in part, added Minn.,
Stat. 273.13, Subd. 24(c)(2). The 1999 Tax ▇▇▇▇ also established a new
personal property tax imposed on the leasehold of a tenant of certain
structures qualifying for the Transit Zone Reduced Class Rate. The 1999
Tax ▇▇▇▇ was revised in a Revisor's ▇▇▇▇ which, in, part, amended
certain provisions applicable to the new personal property tax. (See
subdivision 24a, Minn. Stat. 273.13.) The new personal property tax
would not apply to the Lease, as supplemented and amended by the
Supplemental Amendment, pursuant to the exception set forth in Minn.
Stat. 273.13, subdivision 24a. paragraph (c), as added by the 1999 Tax
▇▇▇▇. (This is the case, inter alia, since (i) the Lease was executed
before May 1, 1999 and (ii) the Supplemental Amendment is a lease
entered into under an expansion option (i.e., the Expansion Options and
First Offer Right) contained in the Lease.) Notwithstanding anything
apparently to the contrary in this Agreement, this paragraph 2 is merely
a statement of the parties good faith interpretation of the applicable
statutes and nothing herein shall be referred to be a representation,
warranty or estoppel, or in any manner limit or modify the parties
rights or obligations under this Agreement.
3. ADDITIONAL REAL PROPERTY TAXES - INITIAL EXPANSION SPACE. The term
"Tenant's Pro Rata Share for the Initial Expansion Space" shall mean the
percentage obtained by dividing (i) the Rentable Area of the Initial
Expansion Space only, by (ii) the Rentable Area of the Building, as such
Rentable Areas may be adjusted from time to time in accordance with the
Lease and the Supplemental Amendment. Except as provided below in
Paragraph 6 and subject to the other provisions of this Paragraph 3, if
the Building does not qualify for the Transit Zone Reduced Class Rate,
then Tenant shall not be required to pay (through
2
Tenant's Tax Contribution or otherwise), and Landlord shall be
responsible for the payment of, an amount equal to the product of (x)
Tenant's Pro Rata Share for the Initial Expansion Space multiplied by
(y) any additional Real Property Taxes imposed, payable, levied or
assessed against the Building solely as a direct result of the Building
not so qualifying for the Transit Zone Reduced Class Rate.
4. ADDITIONAL REAL PROPERTY TAXES - ORIGINAL PREMISES. The term "Original
Premises" means the Initial Premises leased by Landlord to Tenant
pursuant to the Lease, excluding the Initial Expansion Space and any
Expansion Space, First Offer Space, and other space in the Building
leased by Landlord to Tenant after the date hereof. The term "Tenant's
Pro Rata Share for the Original Premises" shall mean the percentage
obtained by dividing the Rentable Area of the Original Premises only, by
(ii) the Rentable Area of the Building, as such Rentable Areas may be
adjusted from time in accordance with the Lease and Supplemental
Amendment. Except as provided below in Paragraph 6 and subject to the
other provisions of this Paragraph 4, if the Building would otherwise
qualify for the Transit Zone Reduced Class Rate, but the Building does
not qualify for the Transit Zone Reduced Class Rate solely as a direct
result of the leasing of the Initial Expansion Space, then Tenant shall
not be required to pay (through Tenant's Tax Contribution or otherwise),
and Landlord shall be responsible for the payment of, an amount equal to
the product of (x) Tenant's Pro Rata Share for the Original Premises
multiplied by (y) any additional Real Property Taxes imposed, payable,
levied or assessed against the Building solely as a direct result of the
Building not so qualifying for the Transit Zone Reduced Class Rate.
5. NEW PERSONAL PROPERTY TAX. Except as provided below in Paragraph 6 and
subject to the other provisions of this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ shall
reimburse Tenant for any personal property tax imposed on Tenant
relating to its leasehold interest in the Initial Expansion Space only
pursuant to the Supplemental Amendment and resulting solely from Minn.
Stat. 273.13, Subd. 24a. In addition, if a personal property tax is
imposed, payable, levied or assessed on Tenant relating to its leasehold
interest in the Original Premises pursuant to Minn. Stat. 273.13, Subd.
24a and such personal property tax resulted solely from Tenant's leasing
of the Initial Expansion Space and would not have been otherwise imposed
on Tenant's leasehold interest in the Original Premises in the absence
of the Supplemental Amendment, then Landlord shall reimburse Tenant for
such personal property tax imposed on Tenant relating to its leasehold
interest in the Original Premises. Notwithstanding anything contained in
this Paragraph 5 to the contrary, Landlord shall have no liability to
reimburse Tenant for any such personal property taxes to the extent such
personal property taxes are imposed solely as a consequence of the
assignment of the Lease or the sublease of any portion of the Premises
to any party other than an Affiliate. Tenant shall, if any such personal
property tax is so imposed or assessed against the Premises, apply for
an exemption therefrom and use its reasonable best efforts and
reasonably cooperate with Landlord (i) to obtain such an exemption and
(ii) to reasonably contest the imposition or assessment of such personal
property tax, provided Landlord shall have the right to approve and,
subject to Tenant's approval not to be
3
unreasonably withheld or delayed, direct any such action to be taken by
Tenant. Landlord shall reimburse Tenant for all reasonable costs and
expenses (including court costs and attorney's fees) incurred by Tenant
in connection with pursuing such exemption or contesting such personal
property tax and such reimbursements by Landlord to Tenant shall not be
included in Operating Expenses. Without limitation to the foregoing,
such personal property tax in all events shall be excluded from Real
Property Taxes under the Lease.
6. CHANGES IN LAW
6.1 Notwithstanding anything contained in Paragraphs 3 and 4 above,
if the Building does not qualify for the Transit Zone Reduced
Class Rate as a result of any new legislation or changes in the
applicable laws enacted after the date of this Agreement and the
Building previously qualified for the Transit Zone Reduced Class
Rate, then Landlord and Tenant shall split equally the liability
for the share (Tenant's Pro Rata share for the Initial Expansion
Space and Tenant's Pro Rata Share for the Original Premises, as
the case may be) of any additional Real Property Taxes imposed,
payable, levied or assessed against the Building solely as a
direct result of the Building not so qualifying for the Transit
Zone Reduced Class Rate. In such event, Tenant's one-half (1/2)
share of such liability shall be borne by increasing Tenant's
Tax Contribution by an appropriate amount to reflect such
additional Real Property Taxes.
6.2 Notwithstanding anything contained in Paragraph 5 above, if
Landlord is required to reimburse Tenant for any new personal
property taxes imposed on Tenant's leasehold interest in the
Initial Expansion Space or the Original Premises as provided in
said Paragraph 5, and if such personal property taxes so imposed
on Tenant's leasehold interest in the Initial Expansion Space or
the Original Premises result from any new legislation or changes
in the applicable laws enacted after the date of this Agreement
and were not previously imposed on Tenant's leasehold interest
in the Initial Expansion Space or the Original Premises, then
Landlord and Tenant shall split equally such liability and
Landlord shall only be required to reimburse Tenant for one-half
of such personal property taxes.
6.3 If the Building qualifies for the Transit Zone Reduced Class
Rate, but the method for calculating the Transit Zone Reduced
Class Rate changes as a result of any new legislation or changes
in the applicable laws enacted after the date of this Agreement
and, as a direct result, the Real Property Taxes applicable to
the Building increase, then Tenant's Tax Contribution shall not
include an amount equal to one-half (1/2) of the product of (x)
Tenant's Pro-Rata Share for the Initial Expansion Space
multiplied by (y) such increase in Real Property Taxes.
Notwithstanding the foregoing to the contrary, nothing contained
in this Agreement shall be deemed or construed to amend or
modify the calculation of Tenant's Tax Contribution set forth in
the Lease with respect to the entire
4
Premises if the assessed value of the Building increases or
there is otherwise an increase in the tax rate generally
applicable to other property, including property located outside
the transit zone.
6.4 If the Building qualifies for the Transit Zone Reduced Class
Rate and if, after the date of this Agreement, new legislation
or changes in the applicable laws are enacted to impose on
Tenant a personal property tax or other tax or assessment
(whether or not such is in lieu of or in addition to the
personal property tax described in Minn. Stat. 273.13, Subd.
24a), and such personal property or other taxes or assessments
are imposed only on tenants within structures qualifying for the
Transit Zone Reduced Class Rate, then Landlord shall reimburse
Tenant for one-half (1/2) of the such personal property tax or
other tax or assessment applicable to Tenant's leasehold
interest in the Initial Expansion Space only, and Landlord shall
have no liability to reimburse Tenant for any other amount of
such personal property or other taxes or assessments.
7. COOPERATION AND DEFENSE. Tenant shall use its reasonable best efforts
and reasonably cooperate with Landlord to reasonably challenge or
contest (i) any positions asserted by the applicable authorities
contrary to the positions and interests of Landlord and/or Tenant set
forth herein and (ii) any new legislation or changes in the applicable
laws described in this Paragraph 6, provided Landlord shall have the
right to approve and, subject to Tenant's approval not to be
unreasonably withheld or delayed, direct any such action to be taken by
Tenant. Landlord shall reimburse Tenant for all reasonable costs and
expenses (including court costs and attorney's fees) incurred by Tenant
in connection with such challenge or contest, provided any such
reimbursement by Landlord to Tenant shall not be included in Operating
Expenses.
8. ACKNOWLEDGMENT OF JOINT DEFENSE EFFORTS. Each Party affirms that the
joint efforts undertaken by the Parties in connection with anticipated
tax proceedings by virtue of their purpose, operation and use are
attorney work product and will require the exchange of information,
documents and other materials subject to the attorney/client, work
product, joint defense, and other privileges.
9. CONFIDENTIALITY OF DOCUMENTS AND INFORMATION EXCHANGED IN JOINT DEFENSE
EFFORTS.
9.1 To ensure the protection of the mental impressions, conclusions,
opinions, legal theories and other work product of counsel and
their agents, as well as client confidences and other
information, each Party agrees that all information, documents,
and other materials that it receives from another Party in
connection with any joint defense efforts in the anticipated tax
proceedings, and all information, documents, and other materials
directly or indirectly derived therefrom (all of the foregoing
are referred to collectively as "Confidential Materials"), shall
be deemed subject to the terms of this Agreement.
5
9.2 Each Party agrees that all Confidential Materials that have been
or will be exchanged between the Parties pursuant to their joint
defense efforts will be exchanged in confidence; that all such
Confidential Materials are subject to the attorney/client, work
product, joint defense and other privileges; and that such
privileges may not be waived by any Party without the prior
written consent of the Party or Parties that produced such
Confidential Materials.
9.3 Each Party agrees that Confidential Materials shall not be
given, shown, made available, communicated, or disclosed in any
way to anyone other than: (i) the Parties (including, without
limitation, any in-house counsel); (ii) the attorneys for the
Parties and their partners, associated attorneys and paralegals
working on the anticipated tax proceedings; (iii) independent
consultants and/or experts retained by any Party or Parties
working on the anticipated tax proceedings; (iv) such person or
persons as the Parties mutually consent to in writing prior to
the proposed disclosure; and (v) in connection with any action
or proceeding between the Parties specifically relating to any
dispute regarding the enforcement of this Agreement or a related
provision of the Lease.
9.4 No Confidential Materials shall be given, shown, made available,
communicated, or disclosed in any way to any person to whom such
disclosure is authorized by Paragraph 9.3 of this Agreement
unless such person shall have read a copy of this Agreement and
agreed in writing to abide by the same.
10. CONFIDENTIAL MATERIALS SHALL BE USED ONLY IN JOINT DEFENSE EFFORTS.
10.1 Each Party agrees that all Confidential Materials received from
any other Party or Parties shall be used only in connection with
the defense of the anticipated tax proceedings or in connection
with any action or proceeding between the Parties specifically
relating to any dispute regarding this Agreement or a related
provision of the Lease, and shall not be used for any other
purpose without the prior written consent of both Parties.
10.2 The existence of this Agreement or of joint efforts in any tax
proceedings shall not be used offensively or defensively in any
legal proceeding involving the issue of contribution or
indemnification, not shall any Party claim that any counsel is
disqualified in such proceeding by reason of the joint efforts
contemplated by this Agreement; provided, however, that this
Agreement may be used in an action to enforce its terms.
11. PAYMENTS; REMEDY FOR BREACH OF AGREEMENT. All amounts payable by
Landlord under this Agreement shall be paid within thirty (30) days of
the written request therefore (such request shall be accompanied by
reasonable substantiation of the amounts for which reimbursement is
being sought. In addition, late payments shall bear interest as provided
in Section 24.8 of the Lease). Each Party acknowledges that a breach of
this Agreement will cause irreparable injury for which there is not
adequate remedy at law, and therefore
6
agrees that injunctive relief is the appropriate remedy and may be
sought by any Part for any breach or threatened breach of this
Agreement. In addition, as provided in Section 9 of the Supplemental
Amendment, Tenant has the right to set off and deduct from the Rent owed
by Tenant to Landlord under the Lease any amount owed by Landlord to
Tenant under this Agreement, subject to the terms and conditions set
forth in said Section 9 of the Supplemental Amendment.
12. SCOPE OF AGREEMENT. This Agreement applies to any investigation or tax
proceeding with respect to the tax treatment of each Party's respective
interests in the leased property that trigger the allocation of defense
costs and tax liabilities effected by Paragraphs 3, 4, 5 and 6 above.
13. LEASE INCORPORATION. This Agreement and the provisions hereof shall be
deemed to be a part of and an amendment to the Lease, as amended by the
Supplemental Amendment, and incorporated therein and shall run with and
bind and inure to the benefit of Landlord and Tenant and their
respective permitted successors and assigns under the Lease. Except as
set forth herein and in the Supplemental Amendment, the Lease shall
otherwise remain in full force and effect, the parties hereto ratifying
and confirming the Lease and the Supplemental Amendment. To the extent
of any inconsistency between this Agreement and the Lease or the
Supplemental Amendment, the terms of this Agreement shall control. This
Agreement is not assignable by Landlord or Tenant except in connection
with an assignment of the Lease permitted under the terms of the Lease.
In the event Landlord assigns its interest under the Lease, then
Landlord shall also assign its interest under this Agreement, the
assignee shall assume the obligations of Landlord under this Agreement,
and Landlord shall only be released from any obligations under this
Agreement accruing after such written assignment and assumption, all in
accordance with the procedures provided in Section 23.1 of the Lease in
connection with the assignment of the Lease.
14. GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the Sate of Minnesota. The parties agree that exclusive
forum for any dispute related to this Agreement shall be the state or
federal courts in the State of Minnesota.
IN WITNESS WHEREOF, the undersigned Parties have duly executed this
Agreement as of the day and year first above written.
LANDLORD:
▇▇▇▇ 800, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Title: Chief Mgr.
------------------------
7
TENANT:
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES
INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: MANAGING DIRECTOR
---------------------------
8
CONSENT
The undersigned, as holder of that certain Combination Mortgage, Security
Agreement and Fixture Financing Statement dated March 3, 1998 by and between
▇▇▇▇ 800, LLC, Minnesota limited liability company ("Lessor"), and the
undersigned, filed on March 5, 1998 as Document No. 2893790 in the Office of the
Registrar of Titles, Hennepin County, Minnesota, as amended by that certain
Amended and Restated Combination Mortgage, Security Agreement, and Fixture
Financing Statement-Bridge Loan dated July 22, 1998, by and between Lessor and
undersigned, filed on July 29, 1998 as Document No. 3050507 in the Office of the
Registrar of Titles, Hennepin County, Minnesota (collectively, the "Mortgage"),
encumbering the Land and the Building (as defined in the Lease) hereby consents
to the terms and conditions of the attached Lease Amendment, Indemnification and
Joint Defense Agreement (the "Amendment") and gives all necessary approvals to
the Amendment required by and under the Mortgage and that certain Subordination,
Non-Disturbance and Attornment Agreement (Bridge Loan) dated as of July 22,
1998, by and among the undersigned. Lessor and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies Inc.
U.S. BANK NATIONAL ASSOCIATION
By /s/ [ILLEGIBLE]
---------------------------------
Its VP
--------------------------
CONSENT
The undersigned, as holder of that certain Combination Mortgage, Security
Agreement and Fixture Financing Statement dated March 3, 1998 by and between
▇▇▇▇ 800, LLC, Minnesota limited liability company ("Lessor"), and the
undersigned, filed on March 5, 1998 as Document No. 2893788 in the Office of the
Registrar of Titles, Hennepin County, Minnesota, as amended by that certain
Amended and Restated Combination Mortgage, Security Agreement, and Fixture
Financing Statement-Bridge Loan dated July 22, 1998, by and between Lessor and
undersigned, filed on July 29, 1998 as Document No. 3050505 in the Office of the
Registrar of Titles, Hennepin County, Minnesota (collectively, the "Mortgage"),
encumbering the Land and the Building (as defined in the Lease) hereby consents
to the terms and conditions of the attached Lease Amendment, Indemnification and
Joint Defense Agreement (the "Amendment") and gives all necessary approvals to
the Amendment required by and under the Mortgage and that certain Subordination,
Non-Disturbance and Attornment Agreement (Office Loan) dated as of July 22,
1998, by and among the undersigned, Lessor and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies Inc.
U.S. BANK NATIONAL ASSOCIATION
By /s/ [ILLEGIBLE]
---------------------------------
Its VP
--------------------------
CONFIRMATION OF GUARANTY
AND CONSENT OF GUARANTORS
The undersigned Guarantors pursuant to a Completion Guaranty dated ▇▇▇▇▇ ▇,
▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇"), in favor of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies, Inc., a
Delaware corporation formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies, Inc. ("Tenant")
with respect to an Office Lease dated March 3, 1998, by and between ▇▇▇▇ 800,
LLC, a Minnesota corporation ("Landlord"), as landlord, and Tenant, as tenant,
as amended by that certain First Amendment to Lease dated May 18, 1998 and that
certain Second Amendment to Lease dated July 30, 1999 (collectively, the
"Lease"), hereby consent to the attached Lease Amendment, Indemnification and
Joint Defense Agreement (the "Agreement"), by and among Landlord and Tenant,
(ii) confirm and agree that the Guaranty continues to be valid and binding
obligation of the undersigned Guarantors pursuant to its terms guaranteeing the
Obligations (as defined in the Guaranty) as the same may be modified by the
Agreement, (iii) affirm and ratify in full the Lease and Guaranty, and (iv)
agree that they have executed and delivered this Confirmation and Consent
although it is not required under Paragraph 7 of the Guaranty and such execution
and delivery does not modify said Paragraph 7 and at Tenant's option no
confirmation or consent will be required for any other amendments or
modifications of the Lease.
IN WITNESS WHEREOF, the undersigned have executed this confirmation of
Guaranty and Consent of Guarantors this 29 day of September, 1999.
GUARANTORS: ▇▇▇▇ COMPANIES US, INC., a
Minnesota corporation
By: /s/ [ILLEGIBLE]
----------------------
Its: [ILLEGIBLE]
---------------
▇▇▇▇ COMPANIES, INC., a
Minnesota corporation
By: /s/ [ILLEGIBLE]
----------------------
Its: [ILLEGIBLE]
---------------
1
THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE (this "Amendment"), made and entered into as
of the 22nd day of November, 1999, by and between ▇▇▇▇ 800, LLC, a Minnesota
limited liability company ("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES
INC., a Delaware corporation ("Tenant");
W I T N E S S E T H T H A T:
WHEREAS, Landlord and Tenant entered into that certain Office Lease dated
March 3, 1998, as amended by that certain First Amendment to Lease dated May 18,
1998, Second Amendment to Lease dated July 29, 1999, Supplemental Amendment
Regarding Expansion Space dated September 29, 1999, and Lease Amendment,
Indemnification and Joint Defense Agreement dated September 29, 1999
(collectively, the "Lease") for certain premises (the "Premises") in the
building to be constructed by Landlord in the City of Minneapolis, Hennepin
County, Minnesota (the "Building"); and
WHEREAS, Landlord and Tenant desire to supplement and amend the Lease in
certain respects as set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, the Lease is hereby supplemented and amended
and the parties hereto do hereby agree as follows:
1. In addition to the terms defined in this Agreement, the terms used
in this Amendment with an initial capital letter or letters shall
have the same meanings in this Amendment as the meanings ascribed
thereto in the Lease.
2. Landlord has agreed to add certain exterior and interior landscape
and hardscape improvements to the Building in accordance with the
Minneapolis Beautiful Program, as generally described in SCHEDULE A
and depicted on SCHEDULE A-1 attached hereto and incorporated herein
and particularly described in the Approved Base Building Plans and
Specifications. Tenant agrees to pay $250,000 to be applied toward
the cost of such improvements, which payment shall be made by Tenant
by reducing the maximum amount payable by Landlord for Tenant Work
Costs, as provided in Section 3.6 of the Work Letter attached as
Exhibit D to the Lease (the "Work Letter"), by $250,000.
3. Tenant requested certain changes to the Base Building Work described
in SCHEDULE B, attached hereto and incorporated herein (the "Tenant
Base Building Change Orders"), which have been approved and
incorporated into the Approved Base Building Plans and
Specifications pursuant to the Work Letter. The total additional
cost of the Tenant Base Building Change Orders is $2,561,323, and
such amount shall be paid by Tenant by further reducing the maximum
amount
payable by Landlord for Tenant Work Costs, as provided in
Section 3.6 of the Work Letter, by $2,561,323.
4. During the Term of the Lease, Tenant shall have the right to use
approximately 500 square feet of space located on Floor 1 in the
area shown cross-hatched on SCHEDULE C-1 attached hereto and
incorporated herein (which is in lieu of the space referred to in
clause (a) of Section 12.8 of the Lease and as to which the
provisions of Section 12.5 of the Lease shall not be applicable),
and the approximately 800 square feet of space located on Floor 2 in
the area shown cross-hatched on SCHEDULE C-2 attached hereto and
incorporated herein (the "Generator Spaces"). The Generator Spaces
shall be used solely for the purpose of installing and operating
emergency generators serving the Premises and for no other purpose.
During the Term of the Lease, Tenant shall also have the right to
use approximately 1,400 square feet of space located on Floor P-2 in
the area shown cross-hatched on SCHEDULE C-3 attached hereto and
incorporated herein (the "UPS Space"). The UPS Space shall be used
solely for the purpose of installing and operating uninterrupted
power source equipment serving the Premises and for no other
purpose. The UPS Space is being made available to Tenant pursuant to
paragraph 9(h) of Exhibit 1 to the Work Letter. Tenant shall pay to
Landlord a one-time payment of [***] for the use of the Generator
Spaces throughout the entire Term, which amount shall be paid by
Tenant by further reducing the maximum amount payable by Landlord
for Tenant Work Costs, as provided in Section 3.6 of the Work
Letter, by [***]. The use of the Generator Spaces and the UPS Space
shall be subject to the terms and conditions of the Lease, except
(a) the area of the Generator Spaces and the UPS Space shall
not be included in the Rentable Area or Usable Area of the Premises;
(b) no Base Rental shall be calculated or due with respect to the
Generator Spaces or the UPS Space; (c) Tenant's Pro Rata Share for
purposes of determining Tenant's Operating Expense Contribution
shall not be calculated with the addition of the area of the
Generator Spaces or the UPS Space; (d) the Rentable Area of the
Premises shall not include the Generator Spaces or the UPS Space for
purposes of determining the Allocated Spaces for parking pursuant to
Section 11.2 of the Lease; (e) Landlord shall not be required to
construct or install any improvements to or in the Generator Spaces
or the UPS Space, and any such improvements shall be made by Tenant
as part of the Tenant Work described in the Work Letter; and (f) the
area of the Generator Spaces and the UPS Space shall not be included
in the Rentable Area of the Premises for purposes of determining the
maximum amount of Tenant Work Costs to be paid by Landlord as
provided in Section 3.6 of the Work Letter, and no Tenant
improvement allowance or amount shall be paid by Landlord with
respect to the Generator Spaces or the UPS Space.
5. The spaces on Floor P-1 referred to in clauses (b) and (c) of the
first sentence of Section 12.8 of the Lease for the location,
installation and use of Tenant's communication major and alternate
point of presence have been combined to the space shown
cross-hatched on SCHEDULE C-4 attached hereto and incorporated
herein. The space for Tenant's fiber optics hub referred to in the
last sentence of Section 12.8 of the Lease has been relocated to the
separate space on Floor P-1 which is shown cross-hatched on SCHEDULE
C-5 attached hereto and incorporated herein. It is acknowledged and
agreed that, as provided in Section 12.8 of the Lease, the spaces
described in this paragraph 5 shall be provided at no rent, cost or
expense to Tenant.
6. The Supplemental Amendment Regarding Expansion Space is amended by
substituting for Exhibit B thereto the description of the Approved
Base Building Plans and Specifications which is attached hereto as
SCHEDULE D and incorporated herein.
EXCEPT AS expressly amended and modified hereby, the Lease shall otherwise
remain in full force and effect, the parties hereto hereby ratifying and
confirming the same. To the extent of any inconsistency between the Lease and
this Amendment, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Amendment as of the day and year first above written.
TENANT: LANDLORD:
U.S. BANCORP PIPER ▇▇▇▇▇▇▇ ▇▇▇▇ 800, LLC
COMPANIES INC.
By: /s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------ --------------------------------
Name: [ILLEGIBLE] Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------ --------------------------
Its: SVP Its: [ILLEGIBLE]
------------------- ---------------------
CONSENT BY LENDER
The undersigned, as holder of the mortgages covering the Land and Building
referred to in the Lease, hereby consents to the foregoing Third Amendment to
Lease.
U.S. BANK NATIONAL ASSOCIATION
By: /s/ [ILLEGIBLE]
--------------------------------
Its: VP
----------------------------
CONFIRMATION OF GUARANTY
AND CONSENT OF GUARANTORS
The undersigned Guarantors pursuant to a Completion Guaranty dated ▇▇▇▇▇ ▇,
▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇"), in favor of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies, Inc., a
Delaware corporation formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies, Inc. ("Tenant")
with respect to an Office Lease dated March 3, 1998, by and between ▇▇▇▇ 800,
LLC, a Minnesota corporation ("Landlord"), as landlord, and Tenant, as tenant,
as amended by that certain First Amendment to Lease dated May 18, 1998, and that
certain Second Amendment to Lease dated July 29, 1999, and that certain
Supplemental Amendment Regarding Expansion Space dated September 29, 1999
(collectively, the "Lease"), hereby consent to the foregoing Third Amendment to
Lease (the "Third Amendment") by and among Landlord and Tenant, (ii) confirm and
agree that the Guaranty continues to be a valid and binding obligation of the
undersigned Guarantors pursuant to its terms guaranteeing the Obligations (as
defined in the Guaranty) as the same may be modified by the Third Amendment,
(iii) affirm and ratify in full the Lease and Guaranty, and (iv) agree that they
have executed and delivered this Confirmation and Consent although it is not
required under Paragraph 7 of the Guaranty and such execution and delivery does
not modify said Paragraph 7 and at Tenant's option no confirmation or consent
will be required for any other amendments or modifications of the Lease.
IN WITNESS WHEREOF, the undersigned have executed this Confirmation of
Guaranty and Consent of Guarantors this 22 day of November, 1999.
GUARANTORS: ▇▇▇▇ COMPANIES US, INC., a
Minnesota corporation
By: /s/ [ILLEGIBLE]
-----------------------
Its: [ILLEGIBLE]
------------------
▇▇▇▇ PROPERTIES, INC., a
Minnesota corporation
By: /s/ [ILLEGIBLE]
-----------------------
Its: [ILLEGIBLE]
------------------
SCHEDULE A
US BANCORP PIPER JAFRAY CENTER 9/15/99
MINNEAPOLIS BEAUTIFUL PROPOSAL ESTI.
Granite Pavers Paver Material Cold Spring 8327 sf
Paver Install Twin City Tile 8327 sf
Paver sub-base-Class 5 Vail 8327 ls
Concrete sub-slab ▇▇▇▇▇▇▇ 8327 sf
Patch Existing Paver Areas Twin City Tile
Sidewalks at 8th and ▇▇▇ ▇▇▇▇▇▇▇ Poured concrete ▇▇▇▇▇▇▇ 2700 lf
Landscaping/Irrigation Maple/Ameuancher/Grasses Artaka ls
Lights and Traffic Signals Replace City of Mpls
Bus Shelter and Kiosk Granite Base (material only) Cold Spring 72 lf
Footings/Foundations ▇▇▇▇ ▇▇
Refurbish and reinstall CD Systems ls
Banner Poles New granite base veneor Cold Spring 72 sf
Planter/Seating 24" wide Granite-Charcoal Black (matl only) Cold Spring 285 lf
Planter/Seating Sub-structure Remove pavers ▇▇▇▇ ▇▇
Remove sub-slab ▇▇▇▇ ▇▇
Thickened edge/slab bottom ▇▇▇▇ ▇▇
Twin City Tile
Re-install Granite Pavers at Planters
Seating Elements 24" wide Granite - Charcoal Black (matl only) Cold Spring 26 lf
Boulders Granite - Charcoal Black (matl only) Cold Spring 3 ea
Boulders with emerging forms Granite - Charcoal Black (matl only) Cold Spring 6 ea
Monolithic Element Granite veneer (CB) on sub frame Cold Spring 1 ea
Sub frame ▇▇▇▇▇▇▇▇ Iron 1 ea
AV Equipment
Exterior Monoliths Granite - Charcoal Black (matl only) Cold Spring 3 ea
Foundation for Exterior Monoliths Footings/Foundations ▇▇▇▇ ▇▇
Install Granite Elements Twin City Tile
Terrazzo New pattern
Consultant ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Granite Pavers $ 17.83 $ 146,780.00
$ 18.00/sf $ 133,232.00
$ 9,000.00
$ 2.50/sf $ 20,818.00
------------
$ 309,830.00
Patch Existing Paver Areas allowance $ 100,000.00 $ 100,000.00
Sidewalks at 8th and 9th streets $ 4.50/sf $ 12,150.00 $ 12,150.00
Landscaping/Irrigation $ 21,000.00 $ 21,000.00
Lights and Traffic Signals $ 10,500.00 $ 10,500.00
Bus Shelter and Kiosk $ 182/lf $ 13,104.00
$ 8,500.00
$ 68,825.00
------------
$ 90,429.00
Banner Poles $ 1,500.00 $ 1,500.00
Planter/Seating 24" wide $ 161/lf $ 45,885.00
Planter/Seating Sub-structure $ 14,500.00
$ 16,000.00
$ 27,600.00
allowance $ 22,000.00
------------
Re-install Granite Pavers at Planters $ 125,985.00
Seating Elements 24" wide $ 182/lf $ 5,096.00 $ 5,096.00
Boulders $ 10,000/ea $ 30,000.00 $ 30,000.00
Boulders with emerging forms $ 12,500/ea $ 75,000.00 $ 75,000.00
Monolithic Element $ 10,000 $ 10,000.00
3200/ea $ 3,200.00
allowance $ 25,000.00
------------
$ 38,200.00
Exterior Monoliths $ 50,000/ea $ 150,000.00
Foundation for Exterior Monoliths $ 7,800.00
------------
$ 167,800.00
Install Granite Elements allowance $ 70,000.00 $ 70,000.00
Terrazzo allowance $ 20,000.00 $ 20,000.00
Consultant $ 150,000.00
--------------
Total $ 1,217,490.00
SCHEDULE A-1
[GRAPHIC]
SCHEDULE B
U S BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER 10/3/99
Costs Allocated from Piper Tenant Improvement Allowance
AMOUNT
PIPER TENANT IMPROVEMENT ALLOWANCE:
319,584 sf @ $30.00/s.f. $ 9,587,520.00 $ 9,587,520.00
PIPER COSTS FOR BASE BUILDING MODIFICATIONS (TO BE
FUNDED FROM T.I. ALLOWANCE)
P2 Move main trading floor from 13 to 12 -
P4A 9' ceilings at standard floors in lieu of 10' $ 261,528.00
P7C Add water closets and lavs at Piper floors ($37,295.00)
P8A Add one additional primary trading floor ($84,881.00)
P9B Additional lavatories at 13th floor ($38,888.00)
P12D Additional elevator openings at trading bank on 1 floor ($26,488.00)
P12E Move elevator openings to 6, 7, 9, 10 from 5, 6, 9, 10 ($5,140.00)
P21A Prep trading floor elev cabs for future floors ($2,940.00)
P32B Decrease equip load at trading floors $ 160,900.00
P33A Decrease equip load at data center $ 41,000.00
P36C Change semi-recessed heads to concealed at Piper areas ($18,572.00) -
P38A Credit for elevator lobby ceiling & lighting work $ 44,460.00
P39 Move stair C door on 12 & 13 -
P50 Eliminate drinking fountains at west core on 11, 12, 13 2,400.00
--------------
Subtotal $ 296,084.00
COSTS ASSOCIATED WITH NER/UPS
P28B Furnish and install two generators ($963,787.00)
P29B Furnish and install two UPS modules ($528,375.00)
P30A Redundant mechanical systems at trading floor ($252,365.00)
P31A Provide peak shaving ($126,103.00)
P56A MCE 6/199 design requirements for NER/UPS ($810,203.00)
NER/UPS Acceleration ($90,000.00)
Subtotal ($2,770,833.00)
COST TO FURNISH AND INSTALL CABLE TRAY AND ASSOCIATED WORK
P40B Work around cable tray with low pressure duct on 6-10 ($23,074.00)
P41B Furnish & Install cable tray on floors 6-10 ($61,359.00)
P46 Sleeves in Comm rooms ($2,141.00)
--------------
Subtotal ($86,574.00)
Total ($2,561,323.00)
REVISED PIPER TENANT IMPROVEMENT ALLOWANCE $ 7,026,197.00
1
SCHEDULE C-1
[GRAPHIC]
SCHEDULE C-2
[GRAPHIC]
SCHEDULE C-3
[GRAPHIC]
SCHEDULE C-4
[GRAPHIC]
SCHEDULE C-5
[GRAPHIC]
SCHEDULE D
================================================================================
PROJECT MANUAL
FOR
▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
Project No. ▇▇▇▇-▇▇▇
▇▇▇▇▇:
▇▇▇▇ 800, LLC.
ARCHITECT:
Ellerbe Becket, Inc.
CIVIL ENGINEER:
Progressive Consulting Engineers, Inc.
STRUCTURAL ENGINEER:
▇▇▇▇▇▇▇▇ ▇▇▇▇ & Associates
MECHANICAL ENGINEER:
▇▇▇▇▇▇▇, Inc.
ELECTRICAL ENGINEER:
▇▇▇▇ Electric Corporation
DESIGN/BUILDER:
▇▇▇▇ Companies US, Inc.
================================================================================
800 NICOLLET - ▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER
MINNEAPOLIS, MN
TABLE OF CONTENTS
INTRODUCTORY INFORMATION
Document 00000 Title Page
Document 00010 Project Manual Table of Contents
Document 00015 List of Drawings
Document 00200 Subcontract Agreement Forms
Standard Subcontract Agreement - Labor & Material
Standard Subcontract Agreement - Material Only
Insurance Certificate / Requirements
Change Order Form
Application for Payment
Application for Payment - Sample
Document 00300 Project Documents
Construction Schedule
Geotechnical Data - ▇▇▇▇▇ Intertec and GME Consultants
Project Labor Agreement
Document 00700 General Conditions of Subcontract
Document 00850 Safety Policies, Programs, and Procedures
Document 00851 Job Hazard Analysis Form
Document 00852 Supervisor's Accident/Minor Injury Report
Document 00853 Safety Violation Notice
Document 00854 Job Hazard Analysis Form
DIVISION 1 - GENERAL REQUIREMENTS
Section 01160 Coordination and Meetings
Section 01270 Unit Prices
Section 01290 Payment Procedures
Section 01300 Submittals
Section 01310 Progress Schedules
Section 01400 Quality Requirements
Section 01500 Temporary Facilities and Controls
Section 01600 Product Requirements
Section 01735 Cutting, Patching and Removals
Section 01738 Selective Demolition
Section 01750 Starting of Systems
Section 01770 Subcontract Closeout
DIVISION 2 - SITE CONSTRUCTION
Section 02110 Erosion Control - PCE
Section 02140 Dewatering - PCE
Section 02220 Excavation, Backfilling and Compacting - PCE
Section 02230 Aggregate Base - PCE
Section 02300 Earthwork and Aggregates - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Asphaltic Concrete Paving - PCE
Section 02514 Site Work Concrete - PCE
Section 02668 Water Mains - PCE
Section 02721 Storm Sewage Systems - PCE
Section 02722 Sanitary Sewage Systems - PCE
Section 02768 Pavement Marking - Ellerbe Becket
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11.17.99
------------------------------- --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11/16/99
------------------------------- --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
▇▇▇▇ COMPANIES US, INC. DOCUMENT 00010
7/15/98 TABLE OF CONTENTS
800 NICOLLET - ▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER
MINNEAPOLIS, MN
DIVISION 3 - CONCRETE
Section 03050 Concrete Materials
Section 03100 Concrete Formwork
Section 03200 Concrete Reinforcement
Section 03210 Post Tensioning Materials
Section 03220 Post Tensioning Material Insulation
Section 03305 Cast-In-Place Concrete Placement
Section 03310 Concrete Slab on Grade Placement
Section 03371 Interior Walks, Equipment Curbs, Pads, and Bases - Ellerbe Becket
Section 03430 Architectural Precast Concrete
Section 03600 Grout
DIVISION 4 - MASONRY
Section 04200 Unit Masonry - Ellerbe Becket
Section 04420 Cut ▇▇▇▇▇ - ▇▇▇▇▇▇▇ Becket - Bulletin No. 7
DIVISION 5 - METALS
Section 05120 Structural Steel
Section 05126 Steel Erection
Section 05312 Steel Floor Deck
Section 05400 Cold Formed Metal Framing - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Metal Fabrications - Ellerbe Becket
Section 05515 Pre-Engineered Metal Stairs - Ellerbe Becket
Section 05700 Ornamental Metal - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Ornamental Glass Railing System - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Expansion Joint Cover Assembiies - Ellerbe Becket
DIVISION 6 - WOOD AND PLASTICS
Section 06100 Rough Carpentry - Ellerbe Becket
Section 06230 Interior Finish Carpentry - Ellerbe Becket
Section 06420 Panelwork - Ellerbe Becket
Section 06625 Cast Plastic Fabrications - Ellerbe Becket
DIVISION 7 - THERMAL AND MOISTURE PROTECTION
Section 07110 Bituminous Dampproofing - Ellerbe Becket
Section 07130 Butyl Sheet Waterproofing - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Composite Sheet Membrane Waterproofing - Ellerbe Becket
Section 07170 Bentonite Waterproofing - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Vehicular Traffic Coating - Ellerbe Becket
Section 07200 Thermal Protection - Ellerbe Becket - Bulletin No. 7
Section 07210 Building Insulation - Ellerbe Becket
Section 07240 Exterior Insulation and Finish System - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Manufactured Wall Panels - Ellerbe Becket
Section 07430 Composite Metal Panels - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Built-up Bituminous Roofing - Ellerbe Becket - Bulletin No. 6
Section 07600 Flashing and Sheet Metal - Ellerbe Becket
Section 07620 Sheet Metal Flashing - Ellerbe Becket - Bulletin No. 6
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11.17.99
------------------------------- --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11/16/99
------------------------------- --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
▇▇▇▇ COMPANIES US, INC. DOCUMENT 00010
7/15/98 TABLE OF CONTENTS
800 NICOLLET - ▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Roof Accessories - Ellerbe Becket
Section 07818 Mineral Fiber Sprayed Fireproofing - Ellerbe Becket - Bulletin ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ Becket
Section 07920 Joint Sealants - Ellerbe Becket
DIVISION 8 - DOORS AND WINDOWS
Section 08110 Steel Doors and Frames - Ellerbe Becket
Section 08120 Aluminum Doors - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Stainless Steel Doors & Frames - Ellerbe Becket - Bulletin No. 2
Section 08210 Wood Doors - Ellerbe Becket - Bulletin No. 2
Section 08310 Access Doors and Panels - Ellerbe Becket
Section 08332 Overhead Coiling Doors - Ellerbe Becket
Section 08360 Sectional Overhead Doors - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Folding Traffic Doors - Ellerbe Becket
Section 08421 Interior Aluminum Framed Storefront - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Automatic Sliding Glass Entrance - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Revolving Entrance Doors - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Sliding Window Assembly - Ellerbe Becket
Section 08710 Finish Hardware - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Glass and Glazing - Ellerbe Becket - Bulletin No. 6
DIVISION 9 - FINISHES
Section 09220 Portland Cement ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ Becket
Section 09260 Gypsum Board Systems - Ellerbe Becket - Bulletin No. 2
Section 09270 Gypsum Board Shaft Wall Systems - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Ceramic Tile - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Plastic Matrix Terrazzo - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Acoustical Ceilings - Ellerbe Becket - Bulletin ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ Becket
Section 09650 Resilient Flooring - Ellerbe Becket - Bulletin No. 6
Section 09680 Carpet - Ellerbe Becket - Bulletin ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ Becket
Section 09720 Wall Coverings - Ellerbe Becket - Bulletin No. 8
Section 09900 Painting - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Decorative Polychromatic Part. Coating - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Elastomeric Coatings - Ellerbe Becket
DIVISION 10 - SPECIALTIES
Section 10155 Toilet Partitions - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Metal Wall Louvers - Ellerbe Becket
Section 10500 Metal Lockers - Ellerbe Becket
Section 10520 Fire Protection Specialties - Ellerbe Becket
Section 10550 Postal Specialties - Ellerbe Becket - ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone Specialties - Ellerbe Becket
Section 10810 Toilet and Bath Accessories - Ellerbe Becket - Bulletin No. 2
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11.17.99
------------------------------- --------
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11/16/99
------------------------------- --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
▇▇▇▇ COMPANIES US, INC. DOCUMENT 00010
7/15/98 TABLE OF CONTENTS
800 NICOLLET - ▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER
MINNEAPOLIS, MN
DIVISION 11 - EQUIPMENT
Section 11014 Window Washing System - Ellerbe Becket
Section 11160 Loading Dock Equipment - Ellerbe Becket
DIVISION 12 - FURNISHINGS
Section 12492 Horizontal Louver Blinds - Ellerbe Becket
DIVISION 13 - NOT USED
DIVISION 14 - ELEVATORS
Section 14200 Vertical Transportation Equipment - ▇▇▇▇ Elevator
Section 14270 Elevator Cab Finishes - Ellerbe Becket
DIVISION 15 - MECHANICAL
Section 15010 General Requirements - ▇▇▇▇▇▇▇
Section 15110 Pipe and Valve Fittings - ▇▇▇▇▇▇▇
Section 15120 Valves - ▇▇▇▇▇▇▇
Section 15135 Meters and Gauges - ▇▇▇▇▇▇▇
Section 15140 Supports, Anchors and Sleeves - ▇▇▇▇▇▇▇
Section 15150 Motors - ▇▇▇▇▇▇▇
Section 15160 Identification - ▇▇▇▇▇▇▇
Section 15170 Vibration Isolation - ▇▇▇▇▇▇▇
Section 15180 Ductwork Systems - ▇▇▇▇▇▇▇
Section 15190 Ductwork Accessories - ▇▇▇▇▇▇▇
Section 15200 Mechanical Insulation - ▇▇▇▇▇▇▇
Section 15400 Domestic Water Equipment - ▇▇▇▇▇▇▇
Section 15420 Waste and Vent Components - ▇▇▇▇▇▇▇
Section 15440 Storm Drainage Components - ▇▇▇▇▇▇▇
Section 15480 Plumbing Fixtures and Trim - ▇▇▇▇▇▇▇
Section 15500 Chemical Treatment - ▇▇▇▇▇▇▇
Section 15510 Steam Specialties - ▇▇▇▇▇▇▇
Section 15550 Heat Exchanges - ▇▇▇▇▇▇▇
Section 15600 Pumps - ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇
Section 15615 Finned Tube Radiation - ▇▇▇▇▇▇▇
Section 15620 Water Cooled Chillers - ▇▇▇▇▇▇▇
Section 15630 Cooling ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇
Section 15650 Humidifiers - ▇▇▇▇▇▇▇
Section 15660 Fan Coil ▇▇▇▇▇ - ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Computer Room Units - ▇▇▇▇▇▇▇
Section 15700 Coils - ▇▇▇▇▇▇▇
Section 15710 Fans - ▇▇▇▇▇▇▇
Section 15720 High Performance Vane Axial Fan System - ▇▇▇▇▇▇▇
Section 15730 Filters - ▇▇▇▇▇▇▇
Section 15740 Air Terminals - ▇▇▇▇▇▇▇
Section 15750 Diffusers, Registers and Grilles - ▇▇▇▇▇▇▇
Section 15760 Roof Mounted Air Intakes and Outlets
Section 15800 Testing, Adjusting and Balancing- ▇▇▇▇▇▇▇
Section 15900 Building Control Sequences - ▇▇▇▇▇▇▇
Section 15910 Automatic Control Sequences - ▇▇▇▇▇▇▇
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11.17.99
------------------------------- --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11/16/99
------------------------------- --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
▇▇▇▇ COMPANIES US, INC. DOCUMENT 00010
7/15/98 TABLE OF CONTENTS
800 NICOLLET - ▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER
MINNEAPOLIS, MN
DIVISION 16 - ELECTRICAL
Section 16010 Electrical - Supplementary General Requirements - ▇▇▇▇ Electric
Section 16050 Basic Electrical - ▇▇▇▇ Electric
Section 16060 Equipment Support and Concrete Work - ▇▇▇▇ Electric
Section 16110 Raceways and Fittings - ▇▇▇▇ Electric
Section 16112 Cable Support System - ▇▇▇▇ Electric
Section 16120 600 Volt Wire - ▇▇▇▇ Electric
Section 16130 Electrical Boxes and Fittings - ▇▇▇▇ Electric
Section 16140 Wiring Devices - ▇▇▇▇ Electric
Section 16141 Surface Raceways (MOA) - ▇▇▇▇ Electric
Section 16195 Electrical Identification - ▇▇▇▇ Electric
Section 16425 Switchboards - ▇▇▇▇ Electric
Section 16427 Transient Voltage Surge Suppression - ▇▇▇▇ Electric
Section 16440 Disconnect Switches (Safety Switches) - ▇▇▇▇ Electric
Section 16450 Grounding - ▇▇▇▇ Electric
Section 16460 Dry Type Transformers - ▇▇▇▇ Electric
Section 16465 Busway (600 Volt and Less) - ▇▇▇▇ Electric
Section 16472 Panelboards - ▇▇▇▇ Electric
Section 16478 Fuses (600 Volt and Less) - ▇▇▇▇ Electric
Section 16481 Motor Starters - ▇▇▇▇ Electric
Section 16483 Motor Control Centers - ▇▇▇▇ Electric
Section 16485 Contactors and Relays - ▇▇▇▇ Electric
Section 16490 Transfer Switches - ▇▇▇▇ Electric
Section 16501 Lamps - ▇▇▇▇ Electric
Section 16502 Luminaire Accessories - ▇▇▇▇ Electric
Section 16510 Interior Luminaires - ▇▇▇▇ Electric
Section 16520 Exterior Luminaires - ▇▇▇▇ Electric
Section 16535 Emergency Lighting - ▇▇▇▇ Electric
Section 16620 Emergency Engine Generators (Diesel) - ▇▇▇▇ Electric
Section 16670 Lighting Protection System - ▇▇▇▇ Electric
Section 16723 Fire Alarm System - ▇▇▇▇ Electric
Section 16740 Telephone Raceway System - ▇▇▇▇ Electric
Section 16921 Occupancy and Photocell Sensors - ▇▇▇▇ Electric
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11.17.99
------------------------------- --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11/16/99
------------------------------- --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
▇▇▇▇ COMPANIES US, INC. DOCUMENT 00010
7/15/98 TABLE OF CONTENTS
Exhibit 'B'
DESIGN DOCUMENT LIST
Through Bulletin No. 8 11/16/99
And
Change Order No. 5
800 Nicollet - ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center
Job #1013-000
PROJECT DRAWINGS
[Illegible] Description Doc Date
-------------------------------------------------------------------------------------------
SITE/CIVIL
1 of 4 As-Built Survey 1/13/98
C101 Demolition, Excavation & Retention Plan 12/31/97
C201 Site & Grading Plan 5/18/98
C202 Utility Plan 5/18/98
C203 Utility Profiles 5/18/98
C204 Details 5/18/98
C205 Erosion Control Plan 5/18/98
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ Title & Index to Drawings & Symbols and General Information 3/8/99
AT02 General Information/Symbols Sheet 10/14/98
A0P3 Parking ▇▇▇▇▇ ▇ - Fire Rated Partition Plan 3/8/99
A0P2 Parking ▇▇▇▇▇ ▇ - Fire Rated Partition Plan 3/8/99
A0P1 Parking ▇▇▇▇▇ ▇ - Fire Rated Partition Plan 3/8/99
A001 1st Floor - Fire Rated Partition Plan 3/8/99
A002 2nd Floor - Fire Rated Partition Plan 6/23/99
A003 3rd Floor - Fire Rated Partition Plan 3/8/99
A004 4th Floor - Fire Rated Partition Plan 3/8/99
A005 5th Floor -10th Floor - Fire Rated Partition Plan 3/8/99
A011 11th Floor - Fire Rated Partition Plan 3/8/99
A012 12th Floor - Fire Rated Partition Plan 3/8/99
A013 13th Floor - Fire Rated Partition Plan 3/8/99
A014 14th Floor - Fire Rated Partition Plan 3/8/99
A015 15th Floor - Fire Rated Partition Plan 3/8/99
▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ - Fire Rated Partition Plan 3/8/99
A023 23rd Floor - Fire Rated Partition Plan 3/8/99
A024 24th Floor - Fire Rated Partition Plan 3/8/99
A025 25th - 29th Floor - Fire Rated Partition Plan 3/8/99
A029 29th Floor - Fire Rated Partition Plan 3/8/99
A030 30th Floor - Fire Rated Partition Plan 3/8/99
A031 Penthouse & Mezzanine Level - Fire Rated Partition Plan 3/8/99
A1P3A Parking ▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇ ▇) ▇/▇/▇▇
▇▇▇▇▇ Parking ▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇ ▇) ▇/▇/▇▇
▇▇▇▇▇ Parking ▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇ ▇) ▇/▇▇/▇▇
▇▇▇▇▇ Parking ▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇ ▇) ▇/▇▇/▇▇
▇▇▇▇▇ Parking ▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇ ▇) ▇/▇/▇▇
▇▇▇▇▇ Parking Level 2 - Floor Plan (area B) 6/23/99
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇ ▇) 6/23/99
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇ (Area B) 3/8/99
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇ ▇) 6/23/99
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇ (Area B) 6/23/99
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Plan 6/23/99
A104 4th Floor Plan 3/8/99
A105 5th Floor Plan 3/8/99
A106 6th Floor Plan 3/8/99
A107 7th Floor Plan 3/8/99
A108 8th Floor Plan 3/8/99
A109 9th Floor Plan 3/8/99
A110 10th Floor Plan 3/8/99
A111 11th Floor Plan 3/8/99
A112 12th Floor Plan 4/26/99
A113 13th Floor Plan 4/26/99
A114 14th Floor Plan 6/23/99
A115 15th Floor Plan 3/8/99
A116 16th Floor Plan 3/8/99
A117 17th Floor Plan 3/8/99
A118 18th Floor Plan 3/8/99
A119 19th Floor Plan 3/8/99
A120 20th Floor Plan 3/8/99
A121 21st Floor Plan 3/8/99
A122 22nd Floor Plan 3/8/99
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11.17.99
----------------------------- --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11/16/99
----------------------------- --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
[Illegible stamp]
Page 1
Exhibit 'B'
DESIGN DOCUMENT LIST
Through Bulletin No. 8 11/16/99
And
Change Order ▇▇. ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Plan 3/8/99
A124 24th Floor Plan 3/8/99
A125 25th Floor Plan 3/8/99
A126 26th Floor Plan 3/8/99
A127 27th Floor Plan 3/8/99
A128 28th Floor Plan 3/8/99
A129 29th Floor Plan 3/8/99
A130 30th Floor Plan 3/8/99
A131 Penthouse and Mezzanine Level Plan 4/26/99
A132 Roof Plan 3/8/99
A133 Roof Details 3/8/99
A134 Roof Details 3/8/99
A135 Roof Details 3/8/99
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 6/23/99
A201B ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 3/8/99
A202A Second Floor Reflected Ceiling Plan - Area A 6/23/99
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 6/23/99
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Reflected Ceiling Plan 10/14/98
A204 4th Floor Reflected Ceiling Plan 10/14/98
▇▇▇▇ ▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ Reflected Ceiling Plan 3/8/99
A211 11th Floor Reflected Ceiling Plan 3/8/99
A212 12th Floor Reflected Ceiling Plan 4/26/99
A213 13th Floor Reflected Ceiling Plan 3/8/99
A214 14th Floor Reflected Ceiling Plan 3/8/99
A215 15th Floor Reflected Ceiling Plan 10/14/98
▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ Reflected Ceiling Plan 3/8/99
A223 23rd Floor Reflected Ceiling Plan 3/8/99
A224 24th Floor Reflected Ceiling Plan 3/8/99
▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ Reflected Ceiling Plan 3/8/99
A226 26th - 29th Reflected Ceiling Plan 3/8/99
A230 30th Floor Reflected Ceiling Plan 3/8/99
A231 Penthouse Level Reflected Ceiling Plan 3/8/99
A300 East Elevation - LaSalle Court Parking Ramp 3/8/99
A301 Exterior Elevations - East 8/17/98
A302 Exterior Elevation - North 3/8/99
A303 Exterior Elevations - West 3/8/99
A304 Exterior Elevation - South 3/8/99
A305 Enlarged Exterior Elevations 3/8/99
A306 Enlarged Exterior Elevations 3/8/99
A307 Enlarged Exterior Elevations 10/14/98
A308 Enlarged Exterior Elevations 8/17/98
A309 Enlarged Exterior Elevations 8/17/98
A310 Enlarged Exterior Elevations 3/8/99
A311 Enlarged Exterior Elevations 11/18/98
A312 Enlarged Exterior Elevations 3/8/99
A313 Enlarged Exterior Elevations 8/17/98
A314 Enlarged Exterior Elevations 11/18/98
A315 Enlarged Exterior Elevations 3/8/99
A400 Schematic Building Cross Section 11/18/98
A401 Building Cross Section 3/8/99
A403 Exterior Wall Sections 3/8/99
A404 Exterior Wall Sections 8/17/98
A405 Exterior Wall Sections 3/8/99
A406 Exterior Wall Sections 3/8/99
A407 Exterior Wall Sections 8/17/98
A408 Sections and Elevations 8/17/98
A409 Sections and Elevations 8/17/98
A410 Sections and Elevations 8/17/98
A411 Exterior Wall Sections 8/17/98
A412 Exterior Wall Sections 8/17/98
A413 Exterior Wall Sections 10/14/98
A414 Exterior Wall Sections 8/17/98
A420 Exterior Wall Sections 11/18/98
A421 Exterior Wall Sections (Vertical) 11/18/98
A422 Exterior Wall Sections (Vertical) 11/18/98
A423 Exterior Wall Sections (Vertical) 11/18/98
A424 Exterior Wall Sections (Vertical) 11/18/98
A425 Exterior Wall Sections (Vertical) 3/8/99
A426 Exterior Wall Sections (Vertical) 3/8/99
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11.17.99
----------------------------- --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11/16/99
----------------------------- --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
[Illegible stamp]
Page 2
Exhibit 'B'
DESIGN DOCUMENT LIST
Through Bulletin No. 8 11/16/99
And
Change Order No.5
A430 Exterior Wall Sections (horizontal) 3/8/99
A431 Exterior Wall Sections (horizontal) 11/18/98
A432 Exterior Wall Sections (horizontal) 3/8/99
A433 Exterior Wall Sections (horizontal) 11/18/98
A434 Exterior Wall Sections (horizontal) 11/18/98
A435 Exterior Wall Sections (horizontal) 3/8/99
A436 Exterior Wall Sections (horizontal) 11/18/98
A437 Exterior Wall Sections (horizontal) 8/17/98
A438 Exterior Wall Sections (horizontal) 10/14/98
A450 Parking Level Ramp Elevations 10/14/98
A451 Parking Level Ramp Sections 10/14/98
A501 Exterior Details 3/8/99
A502 Exterior Details 3/8/99
A503 Exterior Details 3/8/99
A504 Exterior Details 8/17/98
A505 Exterior Details 3/8/99
A506 Exterior Details 3/8/99
A509 Kneewall Area A 3/8/99
A510 Kneewall Area B 3/8/99
A511 Louver Elevations 6/23/99
A512 Miscellaneous Exterior Details 11/18/98
A601 Stair Sections 3/8/99
A602 Elevator and Stair Plans, Details & Sections 11/18/98
A603 Elevator, Stair plans, Details & Sections 3/8/99
A605 Skyway Plan & Sections 6/23/99
A606 Skyway Plan & Section 6/23/99
A607 Skyway Plan & Section 6/23/99
A701 Enlarged Core Plans - Levels 3-11 3/8/99
A702 Enlarged Core Plans - Levels 12, 13, 14 4/26/99
A703 Enlarged Core Plans - Levels 15-24 3/8/99
A704 Enlarged Core Plans - Levels 25-Penthouse Mezzanine 3/8/99
A715 Enlarged Toilet Plans 6/23/99
A716 Enlarged Toilet Plans 6/23/99
A717 Enlarged Toilet Plans & Elevations 3/8/99
A718 Toilet Details 6/23/99
A719 Room Finish Plans - Toilets 6/23/99
A720 Room Finish Plans - Toilets 6/23/99
A721 Enlarged Reflected Ceiling Plans - Toilets 3/8/99
A722 Enlarged Reflected Ceiling Plans - Toilets 4/26/99
A723 Enlarged Area Plans - 1st and 2nd floors 3/8/99
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ 6/23/99
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ Finish Pattern 11/18/98
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ Finish Pattern 11/18/98
A810 Interior Lobby Elevations 6/23/99
A811 Interior Lobby Elevations 3/8/99
A812 Tenant Elevator Lobby Details 10/14/98
A813 Tenant Elevator Lobby Details 8/17/98
A814 Interior Lobby Elevations 3/8/99
A815 Skyway Level Lobby Details 3/8/99
A816 1st Floor elevator Lobby Details 3/8/99
A817 Interior Lobby Elevations 3/8/99
A818 Interior Lobby Details 3/8/99
A901 Partition Types and Door Details 6/23/99
A902 Misc. Interior Details 6/23/99
A903 Misc. Interior Details 6/23/99
A904 Interior Sections and Details 6/23/99
STRUCTURAL
S001 General Structural Notes 2/26/99
S002 Typical Details 2/26/99
S003 Typical Details 2/26/99
S010 Footing and Concrete Column Schedules 2/26/99
S020 Steel Column Schedule Low-Rise (1st-14th floor) 2/26/99
S021 Steel Column Schedule High-Rise (1st-14th floor) 2/26/99
S022 Steel Column Schedule High-Rise (15th-PH roof) 2/26/99
S030 Typical Post-tension Details 2/26/99
S040 Post-tension/Conventional Concrete Beam Reinforcing 2/26/99
S050 Two-way Flat Slab Schedule and Details 2/26/99
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11-17-99
------------------------ --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11-16-99
------------------------ --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
[Illegible stamp]
Page 3
Exhibit 'B'
DESIGN DOCUMENT LIST
Through Bulletin No. 8 11/16/99
And
Change Order ▇▇.▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
S102B Parking ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
S103B Parking ▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
S150 Foundation Sections & Details 2/26/99
S151 Foundation Sections & Details 2/26/99
S152 Foundation Sections & Details 2/26/99
S153 Foundation Sections & Details 2/26/99
S170 Sections and Details 2/26/99
S171 Sections and Details 2/26/99
S172 Sections and Details 2/26/99
S174 Sections and Details 2/26/99
S175 Sections and Details 2/26/99
S180 Sections and Details 2/26/99
S181 Sections and Details 2/26/99
S182 Sections and Details 2/26/99
S183 Sections and Detail 2/26/99
S184 Sections and Detail 2/26/99
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇) - ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇) - ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
S201C Loading Dock Framing Plan 2/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇) - ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇) - ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
S204A 4th Level Floor/Mech Roof Framing Plan - Area A 2/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ A 2/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇ 2/26/99
S215 15th Level Floor Framing Plan 2/26/99
S216 16th thru 22nd Floor Framing Plan 2/26/99
S223 23rd Level Floor Framing Plan 2/26/99
S224 24th Level Floor Framing Plan 2/26/99
S225 25th Level Floor Framing Plan 2/26/99
S226 26th thru 29th Floor Framing Plan 2/26/99
S230 30th Level Floor Framing Plan 2/26/99
S231 Upper Penthouse Floor Framing Plan 2/26/99
S232 Mezzanine Floor Framing Plan 2/26/99
S233 Roof Framing Plan 2/26/99
S234 Partial Framing Plan 2/26/99
S235 Partial Framing Plans 2/26/99
S236 High Rise Canopy Plan and Details 2/26/99
S300 South Core Wall Reinforcing Elevations 2/26/99
S301 North Core Wall Reinforcing Elevations 2/26/99
S302 East Core Wall Reinforcing Elevations 2/26/99
S303 West Core Wall Reinforcing Elevations 2/26/99
S304 Interior Core Wall Reinforcing Elevations 2/26/99
S305 Interior Core Wall Reinforcing Elevations 2/26/99
S400 Floor Framing Section and Details 2/26/99
S401 Floor Framing Section and Details 2/26/99
S402 Elevator Divider Beams Elevation 2/26/99
S403 Floor Framing Sections and Details 2/26/99
S404 Floor Framing Sections and Details 2/26/99
S405 Floor Framing Sections and Details 2/26/99
S406 Floor Framing Sections and Details 2/26/99
S407 Floor Framing Sections and Details 2/26/99
S408 Floor Framing Sections and Details 2/26/99
S409 Floor Framing Sections and Details 2/26/99
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11-17-99
------------------------ --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11-16-99
------------------------ --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
[Illegible stamp]
Page 4
Exhibit 'B'
DESIGN DOCUMENT LIST
Through Bulletin No. 8 11/16/99
And
Change Order No.5
S410 Floor/Roof Framing Sections and Details 2/26/99
S500 Skyway Bridge Plans and Details 2/26/99
8 1/2 X 11 SHEETS
B4-TS1 Optional cont. footing @ non-load big masonry wall 11/18/98
B4-TS2 CMU wall reinforcing grouting diagram 11/18/98
B4-TS3 Typ lintel schedule 11/18/98
B4-TS4 Partial P-1 level plan 11/18/98
B4-TS5 Core bank elevator pit service level (EL 131'-5") 11/18/98
B4-TS6 Section @ concrete stair 11/18/98
B4-TS7 Partial loading dock framing plan 11/18/98
B4-TS8 Partial 2nd floor framing plan 11/18/98
B4-TS9 Partial 3rd floor framing plan 11/18/98
B4-TS10 Partial 3rd floor framing plan 11/18/98
B4-TS11 Partial 12th floor framing plan 11/18/98
B4-TS12 Partial 13th floor framing plan 11/18/98
B4-TS13 Partial penthouse floor framing plan 11/18/98
B4-TS14 Partial penthouse floor framing plan 11/18/98
B4-TS15 2nd floor machine room framing plan 11/18/98
B4-TS16 24th floor machine room framing plan 11/18/98
B4-TS17 32nd floor machine room framing plan 11/18/98
B4-TS18 Typical slab edge detail 11/18/98
B4-TS19 Typical add'l reinf. req'd at comp/formdeck slab openings 11/18/98
B4-TS20 Section @ level 2 exit ramp lintel 11/18/98
B4-TS21 Section @ level 2 bridge 11/18/98
B4-TS22 Section @ level 2 garage elevator machine-room 11/18/98
B4-TS23 Section @ level 2 11/18/98
B4-TS24 Section @ level 2 11/18/98
B4-TS25 Section @ level 2 11/18/98
B4-TS26 Section @ tie back 11/18/98
B4-TS27 Section @ davit support @ BM 11/18/98
B4-TS28 Section @ davit support @ col 11/18/98
B4-TS29 Typ sect @ cooling tower raised framing 11/18/98
B4-TS30 Partial 1st level (street) framing plan 11/18/98
B4-TS31 Partial 2nd floor framing plan 11/18/98
B4-TS32 Section @ WF post 11/18/98
MECHANICAL (▇▇▇▇▇▇▇, INC.)
P000 Cover Sheet 3/8/99
P001 Level One Parking 3/8/99
P002 Level Two Parking 6/23/99
P002A Level Two Steam Room 4/26/99
P003 Level Three Parking 6/23/99
P101 Floor One 3/8/99
P102 Floor Two 6/23/99
P102A Skyway Piping 3/8/99
P103 Floor Three 4/26/99
P104 Floor Four 3/8/99
P105 Floor Five 9/13/99
P106 Floor Six 9/13/99
P107 Floor Seven 9/13/99
P108 Floor Eight 9/13/99
P109 Floor Nine 9/13/99
P110 Floor Ten 9/13/99
P111 Floor Eleven 9/13/99
P112 Floor Twelve 9/13/99
P113 Floor Thirteen 9/13/99
P114 Floor Fourteen 6/23/99
P115 Floor Fifteen 3/8/99
P116 Floor Sixteen 3/8/99
P117 Floor Seventeen 4/26/99
P118 Floor Eighteen 3/8/99
P119 Floor Nineteen 3/8/99
P120 Floor Twenty 3/8/99
P121 Floor Twenty-One 3/8/99
P122 Floor Twenty-Two 3/8/99
P123 Floor Twenty-Three 4/26/99
P124 Floor Twenty-Four 3/8/99
P125 Floor Twenty-Five 3/8/99
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11-17-99
------------------------ --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11-16-99
------------------------ --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
[ILLEGIBLE]
Date Revised: August 28, 1995
Page 5
Exhibit 'B'
DESIGN DOCUMENT LIST
Through Bulletin No. 8 11/16/99
And
Change Order ▇▇. ▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇ ▇/▇/▇▇
▇▇▇▇ ▇▇▇▇▇ Twenty-Seven 3/8/99
P128 Floor Twenty-Eight 3/8/99
P129 Floor Twenty-Nine 3/8/99
P130 Floor Thirty 3/8/99
P131 Floor Thirty-One 4/26/99
P132 Floor Thirty-One Chiller Room 4/26/99
P200 Waste, Vent, and Water Risers 3/8/99
P201 Storm, Heating, Cooling, and Steam Risers 3/8/99
P202 Heating/Cooling Isometrics 3/8/99
P203 Details 3/8/99
P204 Schedules 3/8/99
MECHANICAL (MASTER MECHANICAL)
V001 Specifications Symbols Abbreviation and Sheet Index 10/26/99
V1P3A Parking Level Three - Area 'A' HVAC Plan 3/8/99
V1P3B Parking Level Three - Area 'B' HVAC Plan 3/8/99
V1P2A Parking ▇▇▇▇▇ ▇▇▇ - ▇▇▇▇ '▇' ▇▇▇▇ ▇▇▇▇ ▇/▇/▇▇
▇▇▇▇▇ Parking Level Two - Area 'B' HVAC Plan 3/8/99
V1P1A Parking ▇▇▇▇▇ ▇▇▇ - ▇▇▇▇ '▇' ▇▇▇▇ ▇▇▇▇ ▇/▇/▇▇
▇▇▇▇▇ Parking Level One - Area 'B' HVAC Plan 3/8/99
V1P1C Parking Level One (LaSalle) - Area 'C' HVAC Plan 3/8/99
V1P1D Parking Level One (LaSalle) - Area 'D' HVAC Plan 3/8/99
V101A 1st Floor Area 'A' HVAC Plan 3/8/99
V101B 1st Floor Area 'B' HVAC Plan 3/8/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 6/23/99
V102B 2nd Floor Area 'B' HVAC Plan 6/23/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 3/8/99
V103B 3rd Floor Area 'B' HVAC Plan 3/8/99
V104A 4th Floor Area 'A' HVAC Plan 7/29/99
V104B 4th Floor Area 'B' HVAC Plan 7/29/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 7/29/99
V105B 5th Floor Area 'B' HVAC Plan 7/29/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 10/26/99
V106B 6th Floor Area 'B' HVAC Plan 10/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 10/26/99
V107B 7th Floor Area 'B' HVAC Plan 10/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 10/26/99
V108B 8th Floor Area 'B' HVAC Plan 10/26/99
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 10/26/99
V109B 9th Floor Area 'B' HVAC Plan 10/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 10/26/99
V110B 10th Floor Area 'B' HVAC Plan 8/13/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 10/26/99
V111B 11th Floor Area 'B' HVAC Plan 10/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 8/13/99
V112B 12th Floor Area 'B' HVAC Plan 10/26/99
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 'A' HVAC Plan 8/13/99
V113B 13th Floor Area 'B' HVAC Plan 10/26/99
V114 14th Floor Mechanical Room Plan 4/26/99
V115 15th Floor HVAC Plan 3/8/99
V116 16th Floor HVAC Plan 3/8/99
V117 17th Floor HVAC Plan 3/8/99
V118 18th Floor HVAC Plan 3/8/99
V119 19th Floor HVAC Plan 3/8/99
V120 20th Floor HVAC Plan 3/8/99
V121 21st Floor HVAC Plan 3/8/99
V122 22nd Floor HVAC Plan 3/8/99
V123 23rd Floor HVAC Plan 3/8/99
V124 24th Floor HVAC Plan 3/8/99
V125 25th Floor HVAC Plan 3/8/99
V126 26th Floor HVAC Plan 3/8/99
V127 27th Floor HVAC Plan 3/8/99
V128 28th Floor HVAC Plan 3/8/99
V129 29th Floor HVAC Plan 3/8/99
V130 30th Floor HVAC Plan 3/8/99
V131 Penthouse HVAC Plan 3/8/99
V132 Penthouse Mezzanine HVAC Plan 3/8/99
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11-17-99
------------------------ --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11-16-99
------------------------ --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
[ILLEGIBLE]
Date Revised: August 28, 1995
Page 6
Exhibit 'B'
DESIGN DOCUMENT LIST
Through Bulletin No. 8 11/16/99
And
Change Order ▇▇. ▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇. Elevations 3/8/99
V202 14th Floor Mechanical Elevations 4/26/99
V203 14th Floor AHU-1,2,3,4 Weights & Locations 3/8/99
V301 Toilet and General Exhaust Risers Plan 3/8/99
V302 Toilet and General Exhaust Risers Plan 3/8/99
V303 AHU-3 Supply Riser 2nd-10th Floors 3/8/99
V304 AHU-2 Supply Riser 14th-30th Floors 4/26/99
V305 AHU-1 Supply Riser Plan 14th-30th Floors 4/26/99
V306 AHU-4, 3 Supply Riser Plan 3rd-14th Floors 3/8/99
V321 Pressurization Stair 'A' Plan 3/8/99
V322 Pressurization Stair 'B' Plan 3/8/99
V323 Pressurization Stair 'C','D','E' Plan 3/8/99
V401 Mechanical HVAC Details 3/8/99
V402 Smoke Control Diagrams 3/8/99
V403 Stair Press & Elevator Relief Diagrams 3/8/99
V404 Life Safety Damper Schedules & Sequence 3/8/99
V501 Mechanical Equipment Schedules 8/13/99
V502 Fan Powered VAV Schedules 10/26/99
V503 Cooling Only VAV Schedules 3/8/99
8 1/2 X 11 SHEETS
SS.V1P2A.1 Parking level 2 - area A - HVAC plan 11/18/98
SS.V102A.1 2nd floor - area A - HVAC plan 11/18/98
SS.V105A.1 5th floor - area A - HVAC plan 11/18/98
SS.V107A.1 7th floor - area A - HVAC plan 11/18/98
SS.V110A.1 10th floor - area A - HVAC plan 11/18/98
SS.V111A.1 11th floor - area A - HVAC plan 11/18/98
SS.V112A.1 12th floor - area A - HVAC plan 11/18/98
SS.V112B.1 12th floor - area B - HVAC plan 11/18/98
SS.V113A.1 13th floor - area A - HVAC plan 11/18/98
SS.V323.1 Pressurization stair C Plan 11/18/98
ELECTRICAL (▇▇▇▇ ELECTRIC)
E00 Cover Sheet 3/8/99
EP3SLP Part. Parking Level 3 Floor Plan - Lighting, Power, Signal 4/26/99
EP3NLP Part. Parking Level 3 Floor Plan - Lighting, Power, Signal 6/23/99
EP2SLP Part. Parking Level 2 Floor Plan - Lighting, Power, Signal 6/23/99
EP2NLP Part. Parking Level 2 Floor Plan - Lighting, Power, Signal 3/8/99
EP1SL Part. Parking ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇ ▇/▇/▇▇
▇▇▇▇▇ Part. Parking ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇ ▇/▇/▇▇
▇▇▇▇▇ ▇▇▇▇. Parking ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇, ▇▇▇▇▇▇ ▇/▇▇/▇▇
▇▇▇▇▇ Part. Parking ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇, ▇▇▇▇▇▇ ▇/▇▇/▇▇
▇▇▇▇▇▇ Miscellaneous Details - Power, Signal 4/26/99
E1SL ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇ ▇/▇▇/▇▇
▇▇▇▇ Parking Street Level 1 Floor Plan - Lighting 6/23/99
E1SP Part. Street Level Floor Plan - Power, Signal 6/23/99
E1NP Part. Street Level Floor Plan - Power, Signal 3/8/99
E2SL Part. Skyway Level Floor Plan - Lighting 3/8/99
E2NL Part. Skyway Level Floor Plan - Lighting 6/23/99
E2SP Part. Skyway Level Floor Plan - Power, Signal 6/23/99
E2NP Part. Skyway Level Floor Plan - Power, Signal 6/23/99
E3LP 3rd Level Floor Plan - Lighting, Power, Signal 4/26/99
E4LP 4th Level Floor Plan - Lighting, Power, Signal 3/8/99
E5LP 5th Level Floor Plan - Lighting, Power, Signal 3/8/99
E6LP 6th Level Floor Plan - Lighting, Power, Signal 3/8/99
E7LP 7th Level Floor Plan - Lighting, Power, Signal 3/8/99
E8LP 8th Level Floor Plan - Lighting, Power, Signal 3/8/99
E9LP 9th Level Floor Plan - Lighting, Power, Signal 3/8/99
E10LP 10th Level Floor Plan - Lighting, Power, Signal 3/8/99
E11LP 11th Level Floor Plan - Lighting, Power, Signal 3/8/99
E12LP 12th Level Floor Plan - Lighting, Power, Signal 6/23/99
E13LP 13th Level Floor Plan - Lighting, Power, Signal 4/26/99
E14LP 14th Level Floor Plan - Lighting, Power, Signal 6/23/99
E15LP 15th Level Floor Plan - Lighting, Power, Signal 3/8/99
E16LP 16th Level Floor Plan - Lighting, Power, Signal 3/8/99
E17LP 17th Level Floor Plan - Lighting, Power, Signal 3/8/99
E18LP 18th Level Floor Plan - Lighting, Power, Signal 3/8/99
E19LP 19th Level Floor Plan - Lighting, Power, Signal 3/8/99
E20LP 20th Level Floor Plan - Lighting, Power, Signal 3/8/99
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11-17-99
------------------------ --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11-16-99
------------------------ --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
[ILLEGIBLE]
Date Revised: August 28, 1995
Page 7
Exhibit 'B'
DESIGN DOCUMENT LIST
Through Bulletin No. 8 11/16/99
And
Change Order ▇▇.▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Signal 3/8/99
E22LP 22nd Level Floor Plan - Lighting, Power, Signal 3/8/99
E23LP 23rd Level Floor Plan - Lighting, Power, Signal 3/8/99
E24LP 24th Level Floor Plan - Lighting, Power, Signal 3/8/99
E25LP 25th Level Floor Plan - Lighting, Power, Signal 3/8/99
E26LP 26th Level Floor Plan - Lighting, Power, Signal 3/8/99
E27LP 27th Level Floor Plan - Lighting, Power, Signal 3/8/99
E28LP 28th Level Floor Plan - Lighting, Power, Signal 3/8/99
E29LP 29th Level Floor Plan - Lighting, Power, Signal 6/23/99
E30LP 30th Level Floor Plan - Lighting, Power, Signal 3/8/99
EPHLP Upper Penthouse Level Floor Plan - Lighting, Power, Signal 4/26/99
EPHMLP Penthouse Mezzanine Level Floor Plan - Lighting, Power,
Signal 3/8/99
E31 Light Fixture Schedule 6/23/99
E32 Service and Feeder Riser 4/26/99
E33 Secondary Main Switchboard/Panelboard Schedules 4/26/99
E34 Panelboard Schedules 3/8/99
E35 Panelboard Schedules 3/8/99
E36 Power and Distribution Schedules 3/8/99
E37 Motor Control Center Schedules 3/8/99
E38 Motor & Equipment Schedule 3/8/99
E39 Lighting Protection System 10/14/98
EP3FA Parking Level 3 - Floor Plan - Fire Alarm 10/14/98
EP2FA Parking Level 2 - Floor Plan - Fire Alarm 10/14/98
EP1FA Parking ▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ ▇/▇▇/▇▇
▇▇▇▇ Street Level 1 - Floor Plan - Fire Alarm 10/14/98
E2FA Skyway Level - Floor Plan - Fire Alarm 10/14/98
E3FA 3rd Level - Floor Plan - Fire Alarm 10/14/98
E4FA 4th Level - Floor Plan - Fire Alarm 10/14/98
E5FA 5th Level - Floor Plan - Fire Alarm 10/14/98
E6FA 6th Level - Floor Plan - Fire Alarm 10/14/98
E7FA 7th Level - Floor Plan - Fire Alarm 10/14/98
E8FA 8th Level - Floor Plan - Fire Alarm 10/14/98
E9FA 9th Level - Floor Plan - Fire Alarm 10/14/98
E10FA 10th Level - Floor Plan - Fire Alarm 10/14/98
E11FA 11th Level - Floor Plan - Fire Alarm 10/14/98
E12FA 12th Level - Floor Plan - Fire Alarm 10/14/98
E13FA 13th Level - Floor Plan - Fire Alarm 10/14/98
E14FA 14th Level - Floor Plan - Fire Alarm 10/14/98
E15FA 15th Level - Floor Plan - Fire Alarm 10/14/98
E16FA 16th Level - Floor Plan - Fire Alarm 10/14/98
E17FA 17th Level - Floor Plan - Fire Alarm 10/14/98
E18FA 18th Level - Floor Plan - Fire Alarm 10/14/98
E19FA 19th Level - Floor Plan - Fire Alarm 10/14/98
E20FA 20th Level - Floor Plan - Fire Alarm 10/14/98
E21FA 21st Level - Floor Plan - Fire Alarm 10/14/98
E22FA 22nd Level - Floor Plan - Fire Alarm 10/14/98
E23FA 23rd Level - Floor Plan - Fire Alarm 10/14/98
E24FA 24th Level - Floor Plan - Fire Alarm 10/14/98
E25FA 25th Level - Floor Plan - Fire Alarm 10/14/98
E26FA 26th Level - Floor Plan - Fire Alarm 10/14/98
E27FA 27th Level - Floor Plan - Fire Alarm 10/14/98
E28FA 28th Level - Floor Plan - Fire Alarm 10/14/98
E29FA 29th Level - Floor Plan - Fire Alarm 6/23/99
E30FA 30th Level - Floor Plan - Fire Alarm 10/14/98
EPHFA Upper Penthouse Level - Floor Plan - Fire Alarm 10/14/98
EPHMFA Penthouse Mezzanine Level - Floor Plan - Fire Alarm 10/14/98
EFAD1 Fire Alarm - System Details 10/14/98
UPS & NER DRAWINGS - MICHAUD, COOLEY, ▇▇▇▇▇▇▇▇
M.0 Mechanical symbols & drawing index - MCE 6/1/99
M2.1 Parking level P2 plumbing & fire protection partial plan - MCE 6/1/99
M2.2 8th floor plumbing & fire protection partial plan - MCE 7/26/99
M3.1 Parking level P2 HVAC partial plan - MCE 6/1/99
M3.2 8th floor HVAC partial plan - MCE 7/26/99
M4.1 Mechanical details & schedules - MCE 6/1/99
E.0 Electrical symbols, drawing index & schedules - MCE 6/1/99
Illegible Partial parking level P2 lighting plan - MCE 6/1/99
Illegible Partial level 8 lighting plan - MCE 8/3/99
Illegible Partial parking level P2 power & systems plan - MCE 6/1/99
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11-17-99
------------------------ --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11-16-99
------------------------ --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
[ILLEGIBLE]
Date Revised: August 28, 1995
Page 8
Exhibit 'B'
DESIGN DOCUMENT LIST
Through Bulletin No. 8 11/16/99
And
Change Order No. 5
E2.2 Partial parking P1 level power & systems plan 6/1/99
E2.3 Partial parking street level power & systems plan 6/1/99
E2.4 Partial parking skyway level power & systems plan 6/1/99
E2.5 Partial level 8 power & systems plan 7/21/99
E2.5r Partial level 8 power & systems plan 6/1/99
E2.6 Partial level 8 power & systems plan 8/3/99
E2.7 Grid gounding diagram 6/1/99
E3.1 Electrical diagrams 7/9/99
E4.1 Schedules 6/1/99
E4.2 PDU schedules 6/1/99
E5.1 One line diagram 8/3/99
ELEVATOR DRAWINGS (▇▇▇▇▇ ▇▇▇▇▇ NORTH AMERICA, INC.)
VT1 General Elevator & Escalator information 4/25/98
VT2 Plans and Section Trading Floor Elevators 1-4 4/25/98
VT3 Plans and Sections Low Rise Elevators 5-12 4/25/98
VT4 Hoistway, Pit, Machine Room Plans Mid-rise Elevators 13-18 4/25/98
VT4A Buffer Access Plan and Section Mid-rise Elevators 13-18 4/25/98
VT5 Plans and Section High Rise Elevators 19-23 4/25/98
VT5A Buffer Access Level Plan and Section High Rise Elevators
19-23 4/25/98
VT6 Plans and Section Parking/Shuttle Elevators 24 and 25 4/25/98
VT7 Plans and Section Service Elevators 25 and 27 4/25/98
VT8 Plans and Sections Escalators 1 and 2, and Elevator 28 4/25/98
VT9 Weilway plan and section - Escalators 1 and 2 4/25/98
WINDOW WASHING EQUIPMENT (SPIDER STAGING)
700338 MS PDE; 5"; with base & slots - galv. 10/10/97
6894B1 Roof plan widow washing equipment (1 of 3) 1/21/99
6894B1 Roof plan widow washing equipment (2 of 3) 1/20/99
6894B1 Roof plan widow washing equipment (3 of 3) 1/20/99
700368 Tieback assembly; single w/base 5/15/94
4119 Davit erection winch 11/3/98
6894K2 Trolley davil assembly 1/21/99
700425 Davit assembly; 5"; 1000# Illegible Trol 9/16/96
Illegible 0875 Mobile Socket assembly; 5"; 1000# 9/27/96
Illegible1790 A-01 Penthouse floor plan - BMU working positions 1/15/99
W11790 A Power operated platform 1/15/99
A131 Penthouse and Mezzanine Level Plan 7/13/98
A301 Exterior Elevations - East (drawing edited by Spider) 7/13/98
A302 Exterior Elevation - North (drawing edited by Spider) 7/13/98
A303 Exterior Elevations - West (drawing edited by Spider) 7/13/98
A304 Exterior Elevations - South (drawing edited by Spider) 7/13/98
PARKING EQUIPMENT - (▇▇▇▇▇▇ ASSOCIATES)
794-01 Entrance / ramp layout 7/30/98
794-02 Exit layout 7/30/98
794-03 Conduit layout 7/30/98
LASALLE COURT PARKING RAMP
SD100 Notes & plans for new ramp @ LaSalle Court parking 3/11/98
SD101 Sections for new ramp @ LaSalle Court parking 3/11/98
P1 Lower level parking - mechanical (▇▇▇▇▇▇▇) 3/11/98
E1 Parking ramp annex - electrical (▇▇▇▇) 2/25/98
E2 Entry ramp lighting plan (▇▇▇▇) 2/25/98
AD100A Parking level 1 - exit plan 3/12/98
AD101A Street level - exit plan 3/12/98
▇▇▇▇▇▇ ▇▇▇▇▇▇ level - exit plan 3/12/98
AD100 Level 1 parking study 1/5/98
AD101 LaSalle Court egress plan 2/24/98
AD102 LaSalle Court egress plan 2/24/98
AD103 New ramp for LaSalle Court parking 1/5/98
E1 Egress plan - LaSalle Court (▇▇▇▇ Electric) 1/21/98
E2 Egress plan - LaSalle Court (▇▇▇▇ Electric) 1/21/98
AP100 LaSalle Court parking - floor plan 4/22/98
A300 LaSalle Court elevation 4/16/98
Sign Off By:
Cornerstone Properties, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ 11-17-99
------------------------ --------
▇▇▇▇▇ ▇▇▇▇▇▇ Date
▇▇▇▇ Companies US, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 11-16-99
------------------------ --------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
[ILLEGIBLE]
Date Revised: August 28, 1995
Page 9
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (this "Amendment"), made and entered into as
of the 24th day of November, 1999, by and between ▇▇▇▇ 800, LLC, a Minnesota
limited liability company ("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES
INC., a Delaware corporation ("Tenant");
WHEREAS, Landlord and Tenant entered into that certain Office Lease dated
March 3, 1998, as amended by that certain First Amendment to Lease dated May 18,
1998, Second Amendment to Lease dated on or about July 29, 1999, Third Amendment
to Lease dated November 22 1999 and Supplemental Amendment Regarding Expansion
Space dated September 24, 1999 (collectively, the "Lease") for certain premises
(the "Premises") in the building to be constructed by Landlord in the City of
Minneapolis, Hennepin County, Minnesota (the "Building"); and
WHEREAS, Landlord and Tenant desire to supplement and amend the Lease in
certain respects as set forth herein;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, the Lease is hereby supplemented and amended
and the parties hereto do hereby agree as follows:
1. In addition to the terms defined in this Agreement, the terms used in
this Amendment with an initial capital letter or letters shall have
the same meanings in this Amendment as the meanings ascribed thereto
in the Lease.
2. Landlord and Tenant agree and understand that Landlord may lease
floors 16, 17 and 18 of the Initial Expansion Space (the "Retek
Premises") to RETEK, INC. ("Retek") provided that: (i) the term of the
lease to Retek shall end on or before December 31, 2001; (ii) Landlord
shall deliver possession of the Retek Premises with all of the Base
Building Work with respect to such Retek Premises completed,
consistent and in full compliance with the terms of the Lease to
Tenant on or before February 28, 2002 in a condition ready for Tenant
to begin Tenant's work; (iii) Landlord shall indemnify Tenant to the
full extent and in the manner provided for in Section 5.1.2 of the
Lease against all costs, expenses and fees incurred by Tenant which
result from, either directly or indirectly, (a) Retek's use and
occupancy of the Retek Premises, or (b) delivery of the Retek Premises
to Tenant in the condition set forth in romenett (ii) above after
February 28, 2002.
EXCEPT AS expressly amended and modified hereby, the Lease shall
otherwise remain in full force and effect, the parties hereto hereby ratifying
and
confirming the same. To the extent of any inconsistency between the Lease and
this Amendment, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Amendment as of the day and year first above written.
TENANT: LANDLORD:
U.S. BANCORP PIPER ▇▇▇▇▇▇▇ ▇▇▇▇ 800, LLC
COMPANIES INC.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
-------------------------------- ------------------------------
Name: [ILLEGIBLE] Name: [ILLEGIBLE]
----------------------- ---------------------
Its: VICE PRESIDENT Its: [ILLEGIBLE]
------------------------ ----------------------
CONSENT BY LENDER
The undersigned, as holder of the mortgages covering the Land and Building
referred to in the Lease, hereby consents to the foregoing Fourth Amendment to
Lease.
U.S. BANK NATIONAL ASSOCIATION
ADMINISTRATIVE BANK
By: /s/ [ILLEGIBLE]
---------------------------
Name:
-------------------
Its:
--------------------
CONFIRMATION OF GUARANTY
AND CONSENT OF GUARANTORS
The undersigned Guarantors pursuant to a Completion Guaranty dated ▇▇▇▇▇ ▇,
▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇"), in favor of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies, Inc., a
Delaware corporation formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies, Inc. ("Tenant")
with respect to an Office Lease dated March 3, 1998, by and between ▇▇▇▇ 800,
LLC, a Minnesota corporation ("Landlord"), as landlord, and Tenant, as tenant,
as amended by that certain First Amendment to Lease dated May 18, 1998 and that
certain Second Amendment to Lease dated July 30, 1999 (collectively, the
"Lease"), hereby consent to the attached Lease Amendment, Indemnification and
Joint Defense Agreement (the "Agreement"), by and among Landlord and Tenant,
(ii) confirm and agree that the Guaranty continues to be valid and binding
obligation of the undersigned Guarantors pursuant to its terms guaranteeing the
Obligations (as defined in the Guaranty) as the same may be modified by the
Agreement, (iii) affirm and ratify in full the Lease and Guaranty, and (iv)
agree that they have executed and delivered this Confirmation and Consent
although it is not required under Paragraph 7 of the Guaranty and such execution
and delivery does not modify said Paragraph 7 and at Tenant's option no
confirmation or consent will be required for any other amendments or
modifications of the Lease.
IN WITNESS WHEREOF, the undersigned have executed this confirmation of
Guaranty and Consent of Guarantors this 24th day of November 1999.
GUARANTORS: ▇▇▇▇ COMPANIES US, INC., a
Minnesota corporation
By: /s/ [ILLEGIBLE]
-----------------------
Its: [ILLEGIBLE]
----------------
▇▇▇▇ COMPANIES, INC., a
Minnesota corporation
By: /s/ [ILLEGIBLE]
-----------------------
Its: [ILLEGIBLE]
----------------
[SEAL]
▇▇▇▇▇ ▇▇▇▇▇▇▇
STATE OF MINNESOTA ) NOTARY PUBLIC - MINNESOTA
) ss. HENNEPIN COUNTY
COUNTY OF HENNEPIN ) My Commission Expires Jan 31, 2000
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
The foregoing instrument was acknowledged before me this 24 day of
November, 1999 by ▇▇▇▇▇▇▇ ▇▇▇▇, the Vice Pres. of ▇▇▇▇ Companies US, Inc., a
Minnesota corporation, on behalf of the corporation.
[SEAL]
▇▇▇▇▇ ▇▇▇▇▇▇▇
STATE OF MINNESOTA ) NOTARY PUBLIC - MINNESOTA
) ss. HENNEPIN COUNTY
COUNTY OF HENNEPIN ) My Commission Expires Jan 31, 2000
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
The foregoing instrument was acknowledged before me this 24 day of
November, 1999 by ▇▇▇▇▇▇▇ ▇▇▇▇, the Vice Pres. of ▇▇▇▇ Companies, Inc., a
Minnesota corporation, on behalf of the corporation.
4
Tenant Expansion Amendment
Improvement Allowance
FIFTH AMENDMENT
THIS FIFTH AMENDMENT (the "Amendment") is made and entered into as of the 8
day of May, 2001, by and between EOP-NICOLLET MALL, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a
DELAWARE CORPORATION ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor in interest to ▇▇▇▇ 800, LLC, a Minnesota
limited liability company) and Tenant (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies Inc.) are parties to that certain lease dated the 3rd day of
March, 1998, for space which contains, or shall contain pursuant to the
terms of the Lease (as hereinafter defined), approximately 705,513 square
feet of the Rentable Area (the "Original Premises") on the second (2nd)
through thirteenth (13th) and fifteenth (15th) through twenty-fourth (24th)
Floors of the building commonly known as the U.S. Bancorp Center and the
address of which is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the
"Building"), a Floor by Floor breakdown of such Rentable Area of the
Original Premises being outlined on EXHIBIT A hereto, which lease has been
previously amended or assigned by instruments (including, without
limitation, letters exercising expansion rights) dated May 18, 1998, July
29, 1999, September 1, 1998, September 29, 1999, November 22, 1999,
November 24, 1999 and March 31, 2000 (collectively, the "Lease"); and
B. WHEREAS, Tenant has requested that (i) additional space containing
approximately 5,929 square feet of Rentable Area on the second (2nd) Floor
of the Building shown on EXHIBIT B hereto (the "Additional Retail
Premises") be added to the Original Premises, (ii) additional space
containing approximately 199 square feet of Rentable Area on the first
(1st) Floor of the Building shown on EXHIBIT C hereto (the "Additional ATM
Premises") be added to the Original Premises and (iii) the Base Rental and
Tenant improvement allowance be modified with respect to the Initial Retail
Premises (which Initial Retail Premises are stipulated to contain 4,000
square feet of Rentable Area) and, with respect to the foregoing, that the
Lease be appropriately amended, and Landlord is willing to do the same on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. EXPANSION, EARLY COMMENCEMENT AND EFFECTIVE DATES.
A. Effective as of the earlier of (i) June 1, 2001 and (ii) the date Tenant
takes occupancy of the Additional Retail Premises (the "Additional Retail
Effective Date"), the Premises, as defined in the Lease, is increased by
5,929 square feet of Rentable Area through the addition of the Additional
Retail Premises (and Tenant's Pro Rata Share is likewise increased), and
from and after the Additional Retail Effective Date, the Premises and the
Additional Retail Premises, collectively, shall be deemed the Premises, as
defined in the Lease. The term for the Additional Retail Premises shall
commence on the Additional Retail Effective Date and end on the last day of
the Term. The Additional Retail Premises is subject to all the terms and
conditions of the Lease except as expressly modified herein and except that
Tenant shall not be entitled to receive any allowances, abatements or other
financial concessions granted with respect to the Original Premises unless
such concessions are expressly provided for herein.
B. Effective as of June 1, 2000 (the "Additional ATM Effective Date"), the
Premises, as defined in the Lease, is increased by 199 square feet of
Rentable Area through the addition of the Additional ATM Premises (and
Tenant's Pro Rata Share is likewise increased), and from and after the
Additional ATM Effective Date, the Premises and the Additional ATM
Premises, collectively, shall be deemed the Premises, as defined in the
Lease. The term for the Additional ATM Premises shall commence on the
Additional ATM Effective Date and end on the last day of the Term. The
Additional ATM Premises is subject to all the terms and conditions of the
Lease except as expressly modified herein.
1
II. MONTHLY BASE RENTAL.
A. In addition to Tenant's obligation to pay Base Rental for the Original
Premises, Tenant shall pay Landlord Base Rental for the Additional Retail
Premises in monthly installments as follows:
(i) [***] per installment payable on or before the Additional Retail
Effective Date and on or before the first day of each month
thereafter during the period beginning on the Additional Retail
Effective Date and ending on May 31, 2007.
(ii) Eighty-four (84) equal installments of [***] each payable on
or before the first day of each month during the period beginning
June 1, 2007 and ending May 31, 2014.
B. In addition to Tenant's obligation to pay Base Rental for the Original
Premises and the Additional Retail Premises, Tenant shall pay Landlord Base
Rental for the Additional ATM Premises in monthly installments as follows:
(i) Eighty-four (84) equal installments of [***] each payable on or
before the first day of each month during the period beginning on
June 1, 2000 and ending May 31, 2007.
(ii) Eighty-four (84) equal installments of [***] each payable on or
before the first day of each month during the period beginning
June 1, 2007 and ending May 31, 2014.
C. In addition to Tenant's obligation to pay Base Rental for the Original
Premises (other than the Initial Retail Premises), the Additional Retail
Premises and the Additional ATM Premises, Tenant shall pay Landlord Base
Rental with respect to the Initial Retail Premises (which shall be in lieu
of the Base Rental set forth in the Lease with respect to the Initial
Retail Premises) in monthly installments as follows:
(i) Eighty-four (84) equal installments of [***] each payable on or
before the first day of each month during the period beginning
June 1, 2000 and ending May 31, 2007.
(ii) Eighty-four (84) equal installments of [***] each payable on or
before the first day of each month during the period beginning
June 1, 2007 and ending May 31, 2014.
All such Base Rental shall be payable by Tenant in accordance with the
terms of Article 6 of the Lease. In the event that the Additional Retail
Effective Date is on other than the first day of a calendar month, then
Base Rental with respect to the Additional Retail Premises for the month in
which the Additional Retail Effective Date occurs shall be prorated based
upon the number of days in such month.
III. IMPROVEMENTS TO ADDITIONAL RETAIL PREMISES, ADDITIONAL ATM PREMISES AND
INITIAL RETAIL PREMISES.
A. CONDITION OF ADDITIONAL RETAIL PREMISES, ADDITIONAL ATM PREMISES AND
INITIAL RETAIL PREMISES. Tenant has inspected the Additional Retail
Premises, the Additional ATM Premises and the Initial Retail Premises and
agrees to accept the same "as is" without any agreements, representations,
understandings or obligations on the part of Landlord to perform any
alterations, repairs or improvements, except as may be expressly provided
otherwise in the Lease or this Amendment.
B. COST OF IMPROVEMENTS TO ADDITIONAL RETAIL PREMISES, ADDITIONAL ATM PREMISES
AND INITIAL RETAIL PREMISES.
(i) Provided Tenant is not in default, Tenant shall be entitled to
receive an improvement allowance (the "Additional Retail Improvement
Allowance") in an amount not to exceed Two Hundred Seven Thousand
Five Hundred Fifteen and No/100 Dollars ($207,515.00) (i.e., $35.00
per square foot of Rentable Area of the Additional Retail Premises)
to be applied toward the cost of performing initial construction,
alteration or improvement of the Additional Retail Premises,
including but not limited to the cost of space planning, design and
related architectural and
2
engineering services. In the event the total cost of the initial
improvements to the Additional Retail Premises exceeds the
Additional Retail Improvement Allowance, Tenant shall pay for such
excess upon demand. The entire unused balance of the Additional
Retail Improvement Allowance, if any, shall accrue to the sole
benefit of Landlord. In accordance with the Payment Procedures (as
hereinafter defined), Landlord shall pay such Additional Retail
Improvement Allowance directly to the contractors, architects,
designers, engineers and consultants retained to perform the
construction, design or related improvement work to the Additional
Retail Premises.
(ii) Provided Tenant is not in default, Tenant shall be entitled to
receive an improvement allowance (the "Additional ATM Improvement
Allowance") in an amount not to exceed Six Thousand Nine Hundred
Sixty Five and No/100 Dollars ($6,965.00) (i.e., $35.00 per square
foot of Rentable Area of the Additional ATM Premises) to be applied
toward the cost of performing initial construction, alteration or
improvement of the Additional ATM Premises, including but not
limited to the cost of space planning, design and related
architectural and engineering services. In the event the total cost
of the initial improvements to the Additional ATM Premises exceeds
the Additional ATM Improvement Allowance, Tenant shall pay for such
excess upon demand. The entire unused balance of the Additional ATM
Improvement Allowance, if any, shall accrue to the sole benefit of
Landlord. In accordance with the Payment Procedures (as hereinafter
defined), Landlord shall pay such Additional ATM Improvement
Allowance directly to the contractors, architects, designers,
engineers and consultants retained to perform the construction,
design or related improvement work to the Additional ATM Premises.
(iii) Provided Tenant is not in default, then, in addition to the $25.10
per square foot of Rentable Area allowance to be provided by
Landlord with respect to the Initial Retail Premises (the "Initial
Retail Allowance") pursuant to Section 3.6 of the Work Letter
attached to the Lease as Exhibit D (the "Work Letter"), Tenant shall
be entitled to receive an improvement allowance (the "Initial Retail
Additional Allowance") in an amount not to exceed Seventy Three
Thousand Six Hundred and No/100 Dollars ($73,600.00) (i.e., $18.40
per square foot of Rentable Area of the Initial Retail Premises) to
be applied toward the cost of performing initial construction,
alteration or improvement of the Initial Retail Premises, including
but not limited to the cost of space planning, design and related
architectural and engineering services (i.e., Tenant's total
allowance package with respect to the Initial Retail Premises is
equal to $43.50 per square foot of Rentable Area of the Initial
Retail Premises). In the event the total cost of the initial
improvements to the Initial Retail Premises exceeds the sum of the
Initial Retail Allowance and the Initial Retail Additional
Allowance, Tenant shall pay for such excess upon demand. The entire
unused balance of the Initial Retail Additional Allowance, if any,
shall accrue to the sole benefit of Landlord. In accordance with the
Payment Procedures (as hereinafter defined), Landlord shall pay such
Initial Retail Additional Allowance directly to the contractors,
architects, designers, engineers and consultants retained to perform
the construction, design or related improvement work to the Initial
Retail Premises. It is further understood and agreed by Landlord and
Tenant that (A) Landlord has not constructed, and shall have no
obligation to construct, certain portions of the Base Building Work
to the Initial Retail Premises (the "Initial Retail Premises
Excluded Work") and (B) in consideration for Landlord not having to
perform or construct the Initial Retail Premises Excluded Work,
$34,000.00 (i.e. $8.50 per square foot of Rentable Area of the
Initial Retail Premises) of the Initial Retail Additional Allowance
is being provided to Tenant (i.e. Landlord would not have provided
Tenant such $34,000.00 as part of the Initial Retail Additional
Allowance if Landlord had constructed the Initial Retail Premises
Excluded Work). Furthermore, Tenant has inspected the Initial Retail
Premises and agrees that Landlord has performed all portions of the
Base Building Work that Landlord is obligated to perform pursuant to
the terms of the Lease.
(iv) For purposes hereof, the "Payment Procedures" shall mean that the
payment of the Additional Retail Improvement Allowance, the
Additional ATM Improvement Allowance and the Initial Retail
Additional Allowance by Landlord shall be made on or before the
fifteenth (15th) day of the month following the month in which
Tenant directs Landlord to make the given payment (provided,
however, in the event such direction is made after the twenty-fifth
[25th] day of a month, such payment shall be
3
made on or before the fifteenth [15th] day of the second succeeding
calendar month), subject to Landlord's receipt of evidence
reasonably demonstrating that the amount to be disbursed is for work
which has been completed with respect to the design and construction
of the Additional Retail Premises, the Additional ATM Premises or
the Initial Retail Premises, as applicable.
C. RESPONSIBILITY FOR IMPROVEMENTS TO ADDITIONAL RETAIL PREMISES,
ADDITIONAL ATM PREMISES AND INITIAL RETAIL PREMISES. Any
construction, alterations or improvements to the Additional Retail
Premises, the Additional ATM Premises and the Initial Retail
Premises shall be performed by Tenant using contractors selected by
Tenant and reasonably approved by Landlord and shall be governed in
all respects by the provisions of Article 15 of the Lease.
IV. EARLY ACCESS TO ADDITIONAL RETAIL PREMISES. Upon full execution and
delivery of this Amendment by Landlord and Tenant, Tenant shall be
permitted to enter the Additional Retail Premises to perform alterations or
improvements to the Additional Retail Premises; it being further agreed
that in connection with such early access to the Additional Retail
Premises, Tenant shall comply with all terms and provisions of the Lease,
except those provisions requiring payment of Base Rental or Additional
Rent as to the Additional Retail Premises. However, if Tenant takes
possession of the Additional Retail Premises prior to the Additional
Retail Effective Date for any reason whatsoever (other than the
performance of work in such space), such possession shall be subject to
all the terms and conditions of the Lease and this Amendment, and Tenant
shall pay Base and Additional Rent (i.e. Tenant's Pro Rata Share shall be
appropriately increased to account for the same) as applicable to the
Additional Retail Premises to Landlord on a per diem basis for each day of
occupancy prior to the Additional Retail Effective Date.
V. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that, effective as of
the date hereof (unless different effective date(s) is/are specifically
referenced in this Section), the Lease shall be amended in the following
additional respects:
A. NOTICE ADDRESSES FOR LANDLORD: The notice address for Landlord shall
be deleted from Section 41.5, and the following addresses shall be
substituted into Section 41.5 as the addresses to which notices and
payments of Rent shall be sent to Landlord:
Landlord:
EOP-Nicollet Mall, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Property Manager
With a copy to:
Equity Office Properties
Two ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chicago Regional Counsel
Rent (defined in Section 1.64 of the Lease) is payable to the
order of EQUITY OFFICE PROPERTIES at the following address:
EOP Operating Limited Partnership
As agent for EOP - Nicollet Mall, L.L.C.
File #▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
B. The Second Reduction Option, the Third Reduction Option and the
Fourth Reduction Option shall not be applicable to the Additional
Retail Premises or the Additional ATM Premises.
C. For purposes of the Lease, Landlord and Tenant stipulate and agree
that this Amendment accurately sets forth the Rentable Area of the
Original Premises, the
4
Additional Retail Premises and the Additional ATM Premises, which,
in the aggregate, totals 711,641 square feet of Rentable Area.
VI. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the parties
with respect to the matters set forth herein. There have been no
additional oral or written representations or agreements. Under no
circumstances shall Tenant be entitled to any Rent abatement,
improvement allowance, leasehold improvements, or other work to the
Premises, or any similar economic incentives that may have been
provided Tenant in connection with entering into the Lease, unless
specifically set forth in the Lease or this Amendment.
B. Except as herein modified or amended, the provisions, conditions and
terms of the Lease shall remain unchanged and in full force and
effect.
C. In the case of any inconsistency between the provisions of the Lease
and this Amendment, the provisions of this Amendment shall govern
and control.
D. Submission of this Amendment by Landlord is not an offer to enter
into this Amendment but rather is a solicitation for such an offer
by Tenant. Neither Landlord nor Tenant shall not be bound by this
Amendment until both Landlord and Tenant have executed and delivered
the same to the other party.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with no
broker in connection with this Amendment other than United
Properties and ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ (collectively the "Brokers").
Tenant agrees to indemnify and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective principals and members
of any such agents (collectively, the "Landlord Related Parties")
harmless from all claims of any brokers claiming to have represented
Tenant (other than the Brokers) in connection with this Amendment.
Landlord hereby represents to Tenant that Landlord has dealt with no
broker in connection with this Amendment (other than the Brokers).
Landlord agrees to indemnify and hold Tenant, its members,
principals, beneficiaries, partners, officers, directors, employees,
and agents, and the respective principals and members of any such
agents (collectively, the "Tenant Related Parties") harmless from
all claims of any brokers claiming to have represented Landlord
(including the Brokers) in connection with this Amendment; it being
understood that Landlord shall be solely responsible for payment of
all brokerage commissions due to the Brokers with respect to this
Amendment pursuant to separate written agreements.
G. This Amendment shall be of no force and effect unless and until
accepted by any guarantors of the Lease, who by signing below shall
agree that their guarantee shall apply to the Lease as amended
herein, unless such requirement is waived by Landlord in writing.
5
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment
as of the day and year first above written.
LANDLORD:
EOP-NICOLLET MALL, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: EOP OPERATING LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP,
ITS SOLE MEMBER
By: EQUITY OFFICE PROPERTIES TRUST,
A MARYLAND REAL ESTATE INVESTMENT TRUST,
ITS GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: VICE PRESIDENT LEASING
TENANT:
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC.,
A DELAWARE CORPORATION
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: SR. VICE PRESIDENT
-----------------------------
GUARANTOR:
U.S. BANCORP
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: SR. VICE PRESIDENT
-----------------------------
6
EXHIBIT A
Breakdown of Rentable Area of Original Premises
FLOOR SQUARE FEET
--------------------------------
24 13,448
--------------------------------
23 27,432
--------------------------------
22 27,526
--------------------------------
21 27,526
--------------------------------
20 27,526
--------------------------------
19 27,526
--------------------------------
18 27,526
--------------------------------
17 27,565
--------------------------------
16 27,526
--------------------------------
15 26,382
--------------------------------
14 Mechanical
--------------------------------
13 39,781
--------------------------------
12 39,799
--------------------------------
11 39,799
--------------------------------
10 40,041
--------------------------------
9 40,041
--------------------------------
8 40,041
--------------------------------
7 40,041
--------------------------------
6 40,041
--------------------------------
5 41,294
--------------------------------
4 41,315
--------------------------------
3 39,337
--------------------------------
2 4,000
--------------------------------
1
--------------------------------
TOTAL 705,513
EXHIBIT B
Depiction of Additional Retail Premises
[GRAPHIC]
EXHIBIT C
Depiction of Additional ATM Premises
[GRAPHIC]
SIXTH AMENDMENT
THIS SIXTH AMENDMENT (the "Amendment") is made and entered into as of the 8
day of August, 2001, by and between EOP-NICOLLET MALL, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY ("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES
INC., A DELAWARE CORPORATION ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor in interest to ▇▇▇▇ 800, LLC, a Minnesota
limited liability company) and Tenant (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies Inc.) are parties to that certain lease dated the 3rd day of
March, 1998, for space which contains, or shall contain pursuant to the
terms of the Lease (as hereinafter defined), approximately 711,641 square
feet of the Rentable Area (the "Original Premises") on the first (1st)
through thirteenth (13th) and fifteenth (15th) through twenty-fourth (24th)
Floors of the building commonly known as the U.S. Bancorp Center and the
address of which is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the
"Building"), which lease has been previously amended or assigned by
instruments (including, without limitation, letters exercising expansion
rights) dated May 18, 1998, July 29, 1999, September 1, 1998 September 29,
1999, November 22, 1999, November 24, 1999, March 31, 2000 and May 8, 2001
(collectively, the "Lease"); and
B. WHEREAS, Tenant has requested that the Commencement Date be accelerated
solely with respect to (i) the portion of the Initial Expansion Space
located on Floor five (5) containing approximately 41,294 square feet of
Rentable Area (the "First Early Initial Expansion Space") and (ii) the
portion of the Initial Expansion Space located on Floors eighteen (18) and
nineteen (19) containing approximately 55,052 square feet of Rentable Area
(the "Second Early Initial Expansion Space"; the First Early Initial
Expansion Space and the Second Early Initial Expansion Space are sometimes
collectively referred to herein as the "Early Initial Expansion Space"),
and, with respect to the foregoing, that the Lease be appropriately
amended, and Landlord is willing to do the same on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. EXPANSION, EARLY COMMENCEMENT AND EFFECTIVE DATES.
A. Effective as of October 1, 2001 (the "First Early Initial Expansion
Effective Date"), the Premises, as defined in the Lease, is increased by
41,294 square feet of Rentable Area through the addition of the First Early
Initial Expansion Space (and Tenant's Pro Rata Share is likewise
increased), and from and after the First Early Initial Expansion Effective
Date, the Premises and the First Early Initial Expansion Space,
collectively, shall be deemed the Premises, as defined in the Lease. The
term for the First Early Initial Expansion Space shall commence on the
First Early Initial Expansion Effective Date and end on the last day of the
Term. The First Early Initial Expansion Space is subject to all the terms
and conditions of the Lease except as expressly modified herein.
Notwithstanding the foregoing but subject to the provisions of Section IV
of this Amendment hereinbelow, at any time following the completion of
Tenant's build-out of the same, Tenant may take early occupancy of the
First Early Initial Expansion Space. The First Early Initial Expansion
Effective Date shall be delayed to the extent that Landlord fails for any
reason to deliver possession of the First Early Initial Expansion Space
within the timeframe set forth in Section IV below, including, but not
limited to, Unavoidable Delay. Any such delay in the First Early Initial
Expansion Effective Date by reason of Unavoidable Delay shall not subject
Landlord to any liability for any loss or damage resulting therefrom. If
the First Early Initial Expansion Effective Date is delayed, the expiration
date under the Lease shall not be similarly extended.
B. Effective as of November 1, 2001 (the "Second Early Initial Expansion
Effective Date"), the Premises, as defined in the Lease, is increased by
55,052 square feet of Rentable Area through the addition of the Second
Early Initial Expansion Space (and Tenant's Pro Rata Share is likewise
increased), and from and after the Second Early Initial Expansion Effective
Date, the Premises and the Second Early Initial Expansion Space,
collectively, shall be deemed the Premises, as defined in the Lease. The
term for the Second Early Initial Expansion Space shall commence on the
Second Early Initial Expansion Effective
Date and end on the last day of the Term. The Second Early Initial
Expansion Space is subject to all the terms and conditions of the Lease
except as expressly modified herein. Notwithstanding the foregoing but
subject to the provisions of Section IV of this Amendment hereinbelow, at
any time following the completion of Tenant's build-out of the same, Tenant
may take early occupancy of one or more of the Floors comprising the Second
Early Initial Expansion Space. The Second Early Initial Expansion Effective
Date shall be delayed to the extent that Landlord fails for any reason to
deliver possession of the Second Early Initial Expansion Space within the
timeframe set forth in Section IV below, including, but not limited to,
Unavoidable Delay. Any such delay in the Second Early Initial Expansion
Effective Date by reason of Unavoidable Delay shall not subject Landlord to
any liability for any loss or damage resulting therefrom. If the Second
Early Initial Expansion Effective Date is delayed, the expiration date
under the Lease shall not be similarly extended.
C. The First Early Initial Expansion Effective Date and the Second Early
Initial Expansion Effective Date are each sometimes referred to herein
singularly as an "Effective Date."
II. MONTHLY BASE RENTAL.
A. In addition to Tenant's obligation to pay Base Rental for the Original
Premises (other than the First Early Initial Expansion Space), Tenant shall
pay Landlord Base Rental with respect to the First Early Initial Expansion
Space (which shall be in lieu of the Base Rental set forth in the Lease
with respect to the First Early Initial Expansion Space) in monthly
installments as follows:
(i) Twelve (12) equal installments of [***] each payable on or before
the first day of each month during the period beginning October 1,
2001 and ending September 30, 2002.
(ii) One Hundred Forty (140) equal installments of [***] each payable on
or before the first day of each month during the period beginning
October 1, 2002 and ending May 31, 2014.
B. In addition to Tenant's obligation to pay Base Rental for the Original
Premises (other than the Second Early Initial Expansion Space), Tenant
shall pay Landlord Base Rental with respect to the Second Early Initial
Expansion Space (which shall be in lieu of the Base Rental set forth in the
Lease with respect to the Second Early Initial Expansion Space) in monthly
installments as follows:
(i) Eleven (11) equal installments of [***] each payable on or before
the first (1st) day of each month during the period beginning
November 1, 2001 and ending September 30, 2002; provided, however,
that, so long as Tenant is not then in default under the terms and
provisions of the Lease, Tenant shall have the right to defer
payment of Base Rental and Tenant's Estimated Operating Expense
Contribution solely with respect to the Second Early Initial
Expansion Space for the months of November 2001 and December 2001
until January 1, 2002 (i.e. Tenant may pay Base Rental and Tenant's
Estimated Operating Expense Contribution with respect to the Second
Early Initial Expansion Space for the months of November 2001 and
December 2001 at the same time that it pays the same for the month
of January 2002).
(ii) One Hundred Forty (140) equal installments of [***] each payable
on or before the first day of each month during the period beginning
October 1, 2002 and ending May 31, 2014.
All such Base Rental shall be payable by Tenant in accordance with the
terms of Article 6 of the Lease.
III. IMPROVEMENTS TO EARLY INITIAL EXPANSION SPACE.
A. CONDITION OF EARLY INITIAL EXPANSION SPACE. Tenant has inspected the Early
Initial Expansion Space and agrees to accept the same "as is" without any
agreements, representations, understandings or obligations on the part of
Landlord to perform any
alterations, repairs or improvements, except as may be expressly provided
otherwise in the Lease or this Amendment.
B. COST OF IMPROVEMENTS TO EARLY INITIAL EXPANSION SPACE. Landlord and Tenant
acknowledge and confirm that, subject to the terms and conditions of the
Lease, Tenant is entitled to an improvement allowance with respect to the
Early Initial Expansion Space, which allowance is part of the overall
allowance set forth in Section 3.6 of the Work Letter.
C. RESPONSIBILITY FOR IMPROVEMENTS TO EARLY INITIAL EXPANSION SPACE. Any
construction, alterations or improvements to the Early Initial Expansion
Space shall be performed by Tenant using contractors selected by Tenant and
reasonably approved by Landlord and shall be governed in all respects by
the provisions of Article 15 of the Lease.
IV. EARLY ACCESS TO EARLY INITIAL EXPANSION SPACE. Landlord shall deliver the
Early Initial Expansion Space to Tenant on the first business day following
full and final execution of this Amendment by Landlord and Tenant, so that
Tenant may perform alterations and improvements thereto. In connection with
any entry by Tenant to any portion of the Early Initial Expansion Space
prior to the pertinent Effective Date (e.g., to perform alterations or
improvements, if any), Tenant shall comply with all terms and provisions of
the Lease, except those provisions requiring payment of Base Rental or
Additional Rent as to the First Early Initial Expansion Space or the Second
Early Initial Expansion Space, as the case may be. If Tenant takes
possession of any portion of the Early Initial Expansion Space prior to the
pertinent Effective Date for any reason whatsoever (other than the
performance of work in such space), such possession, on a Floor by Floor
basis as space is occupied by Tenant, shall be subject to all the terms and
conditions of the Lease and this Amendment, and Tenant shall pay Base
Rental and Additional Rent (i.e. Tenant's Pro Rata Share shall be
appropriately increased to account for the same) as applicable to the
pertinent Floor or Floors of the First Early Initial Expansion Space or the
Second Early Initial Expansion Space, as the case may be, to Landlord on a
per diem basis for each day of occupancy prior to the pertinent Effective
Date.
V. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that, effective as
of the date hereof (unless different effective date(s) is/are specifically
referenced in this Section), the Lease shall be amended in the following
additional respects:
A. TEMPORARY PREMISES. During the period beginning on the first
business day after full and final execution of this Amendment by
Landlord and Tenant and ending on the Second Early Initial Expansion
Effective Date or, if Tenant exercises its option pursuant to
Section V.B below, the Third Early Initial Expansion Effective Date
(as hereinafter defined) (the "Temporary Premises Term"), Landlord
shall allow Tenant to use the rentable area of the fourth (4th)
Floor (the "Temporary Premises") solely as a staging area in
connection with Tenant's build-out of the Early Initial Expansion
Space or the Third Early Initial Expansion Effective Date, if
applicable, and for no other purpose. Such Temporary Premises shall
be accepted by Tenant in its as-is condition and configuration, it
being agreed that Landlord shall be under no obligation to perform
any work in the Temporary Premises or to incur any costs in
connection with Tenant move in, move out or use of the Temporary
Premises. All costs in connection with making the Temporary Premises
ready for use by Tenant shall be the sole responsibility of Tenant.
Tenant's right to use the Temporary Premises shall be subject to all
of the terms and conditions of the Lease, provided that Tenant shall
not be required to pay Base Rental or Additional Rental for the
Temporary Premises during the Temporary Space Term.
B. ACCELERATION OF EXPANSION SPACE COMMENCEMENT DATE. Tenant shall have
the option to accelerate the Commencement Date solely with respect
to the entire portion of Initial Expansion Space located on the
sixteenth (16th) Floor containing approximately 27,526 square feet
of Rentable Area and/or the seventeenth (17th) Floor containing
approximately 27,565 square feet of Rentable Area (the "Third Early
Initial Expansion Space") to the Third Early Initial Expansion
Effective Date (as hereinafter defined) by notifying Landlord of the
same (which notice shall specify whether the Third Early Initial
Expansion Space is comprised of the entire 16th Floor, the 17th
Floor or both) on or prior to September 15, 2001 (the "Acceleration
Option"), time being of the essence. If Tenant timely exercises the
Acceleration Option, (i) all of the terms and provisions with
respect to the Initial Expansion Space set forth in the Lease shall
apply to the Third Early Initial
Expansion Space from and after the Third Early Initial Expansion
Effective Date, including, without limitation, the obligation to pay
Base Rental and Additional Rental with respect to the Third Early
Initial Expansion Space at the same rates provided for in the Lease
(except that [a] Base Rental shall be calculated at the rate of
[***] per square foot of Rentable Area of the Third Early Initial
Expansion Space for the period from and after the Third Early
Initial Expansion Effective Date through and including September 30,
2002 and [b] Tenant shall accept the Third Early Initial Space in
its then "as is" condition as of the Third Early Initial Expansion
Effective Date) and (iii) Landlord shall prepare an amendment (the
"Acceleration Amendment") to reflect the Third Early Initial
Expansion Effective Date and the changes in Base Rental, Rentable
Area of the Premises, Tenant's Pro Rata Share and other appropriate
terms. A copy of the Acceleration Amendment shall be (i) sent to
Tenant within a reasonable time after Tenant exercises the
Acceleration Option and (ii) if reasonably approved by Tenant,
executed by Tenant and returned to Landlord within fifteen (15) days
thereafter, but an otherwise valid exercise of the Acceleration
Option shall be fully effective whether or not the Acceleration
Amendment is executed. The Third Early Initial Expansion Effective
Date shall be delayed to the extent that Landlord fails for any
reason to deliver possession of the Third Early Initial Expansion
Space by the "target" Third Early Initial Expansion Effective Date,
including, but not limited to, Unavoidable Delay. Any such delay in
the Third Early Initial Expansion Effective Date by reason of
Unavoidable Delay shall not subject Landlord to any liability for
any loss or damage resulting therefrom. If the Third Early Initial
Expansion Effective Date is delayed, the expiration date under the
Lease shall not be similarly extended. For purposes hereof, "Third
Early Initial Expansion Effective Date" shall mean the earlier of
(i) February 1, 2002 and (ii) the date falling fourteen (14) days
after Tenant notifies Landlord that it desires to take occupancy of
the Third Early Initial Expansion Space (however, any such notice
pursuant to this clause [ii] may not be given by Tenant to Landlord
until after Landlord has notified Tenant that Floors sixteen (16)
and/or seventeen (17) are available for occupancy by Tenant).
C. STIPULATED BASE RENTAL FOR EARLY OCCUPANCY OF OTHER INITIAL
EXPANSION SPACE. If Landlord and Tenant mutually agree to accelerate
the Commencement Date with respect to any portion of the Initial
Expansion Space (other than the First Initial Expansion Space,
Second Early Initial Expansion Space or the Third Early Initial
Expansion Space) to a date between January 1, 2002 and September 30,
2002, the parties hereby stipulate that the rate of Base Rental for
the given portion of the Initial Expansion Space for the period from
the accelerated Commencement Date through and including September
30, 2002, shall be in accordance with the following schedule:
MONTH IN WHICH ACCELERATED
COMMENCEMENT DATE OCCURS BASE RENT
---------------------------------------------------------------
January [***]
---------------------------------------------------------------
February [***]
---------------------------------------------------------------
March [***]
---------------------------------------------------------------
April [***]
---------------------------------------------------------------
May [***]
---------------------------------------------------------------
June [***]
---------------------------------------------------------------
July - September [***]
---------------------------------------------------------------
D. RETAIL LEASE APPROVAL. So long as (i) the build-out of the Men's
Wearhouse space is similar in design to the photographs of the Men's
Wearhouse prototype store given by Landlord to Tenant and (ii) the layout
of such Men's Wearhouse space in the Building does not (a) require Tenant
to move any of Tenant's existing ATM machines in the Building or (b)
materially and adversely affect access to or visibility of such ATM
machines, Tenant agrees that within fifteen (15) days following full and
final execution of this Amendment, Tenant shall provide Landlord with
approval in writing of Landlord's right to lease space on the first (1st)
Floor of the Building to the Men's Wearhouse.
VI. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the parties
with respect to the matters set forth herein. There have been no
additional oral or written representations or agreements. Under no
circumstances shall Tenant be entitled to any Rent abatement,
improvement allowance, leasehold improvements, or other work to the
Premises, or any similar economic incentives that may have been
provided Tenant in connection with entering into the Lease, unless
specifically set forth in the Lease or this Amendment.
B. Except as herein modified or amended, the provision, conditions and
terms of the Lease shall remain unchanged and in full force and
effect.
C. In the case of any inconsistency between the provisions of the Lease
and this Amendment, the provisions of this Amendment shall govern
and control.
D. Submission of this Amendment by Landlord is not an offer to enter
into this Amendment but rather is a solicitation for such an offer
by Tenant. Neither Landlord nor Tenant shall not be bound by this
Amendment until both Landlord and Tenant have executed and delivered
the same to the other party.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with no
broker in connection with this Amendment other than Nelson Tietz &
Hoye (the "Broker"). Tenant agrees to indemnify and hold Landlord,
its members, principals, beneficiaries, partners, officers,
directors, employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"Landlord Related Parties") harmless from all claims of any brokers
claiming to have represented Tenant (other than the Broker) in
connection with this Amendment. Landlord hereby represents to Tenant
that Landlord has dealt with no broker in connection with this
Amendment (other than the Broker). Landlord agrees to indemnify and
hold Tenant, its members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and the respective
principals and members of any such agents (collectively, the "Tenant
Related Parties") harmless from all claims of any brokers claiming
to have represented Landlord (including the Broker) in connection
with this Amendment; it being understood that Landlord shall be
solely responsible for payment of all brokerage commissions due to
the Broker with respect to this Amendment pursuant to separate
written agreements.
G. This Amendment shall be of no force and effect unless and until
accepted by any guarantors of the Lease, who by signing below shall
agree that their guarantee shall apply to the Lease as amended
herein, unless such requirement is waived by Landlord in writing.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
EOP-NICOLLET MALL, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: EOP OPERATING LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP,
ITS SOLE MEMBER
By: EQUITY OFFICE PROPERTIES TRUST,
A MARYLAND REAL ESTATE INVESTMENT TRUST,
ITS GENERAL PARTNER
By: /s/ Arvid Povilaitis
--------------------------------
Name: Arvid Povilaitis
Title: Senior Vice President - Chicago
Region
TENANT:
U.S. BANCORP
PIPER JAFFRAY COMPANIES INC.,
A DELAWARE CORPORATION
By: /s/ David R. Wright
-----------------------------
Name: DAVID R. WRIGHT
-----------------------------
Title: VICE PRESIDENT
-----------------------------
GUARANTOR:
U.S. BANCORP
By: /s/ Bradley J. Schmidt
-----------------------------
Name: Bradley J. Schmidt
-----------------------------
Title: SR VICE PRESIDENT
-----------------------------
SEVENTH AMENDMENT
THIS SEVENTH AMENDMENT (the "Amendment") is made and entered into as of
the 28 day of MAY, 2002, by and between EOP-NICOLLET MALL, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY ("Landlord"), and U.S. BANCORP
PIPER JAFFRAY COMPANIES
INC., A DELAWARE CORPORATION ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor in interest to Ryan 800, LLC, a
Minnesota limited liability company) and Tenant (formerly known as
Piper
Jaffray Companies Inc.) are parties to that certain lease dated the 3rd
day of March, 1998, for space which contains, or shall contain pursuant
to the terms of the Lease (as hereinafter defined), approximately
711,641 square feet of the Rentable Area (the "Original Premises") on
the first (1st) through thirteenth (13th) and fifteenth (15th) through
twenty-fourth (24th) Floors of the building commonly known as the U.S.
Bancorp Center and the address of which is 800 Nicollet Mall,
Minneapolis, Minnesota (the "Building"), which lease has been previously
amended or assigned by instruments (including, without limitation,
letters exercising expansion rights) dated May 18, 1998, July 29, 1999,
September 1, 1998, September 29, 1999, November 22, 1999, November 24,
1999, March 31, 2000, May 8, 2001 and August 8, 2001 (collectively, the
"Lease"); and
B. WHEREAS, Tenant has requested that the Commencement Date be accelerated
solely with respect to (i) the portion of the Initial Expansion Space
located on Floor sixteen (16) containing approximately 27,526 square
feet of Rentable Area and (ii) the portion of the Initial Expansion
Space located on Floor seventeen (17) containing approximately 27,565
square feet of Rentable Area (together, the "Third Early Initial
Expansion Space"), and, with respect to the foregoing, that the Lease be
appropriately amended, and Landlord is willing to do the same on the
terms and conditions hereinafter set forth; and
C. WHEREAS, Tenant has requested that additional space containing
approximately 1,615 square feet of Rentable Area on the first (1st)
Floor of the Building shown on EXHIBIT A hereto (the "Second Additional
Retail Premises") be added to the Original Premises, and, with respect
to the foregoing, that the Lease be appropriately amended, and Landlord
is willing to do the same on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. EXPANSION, EARLY COMMENCEMENT AND EFFECTIVE DATES.
A. Effective as of February 1, 2002 (the "Third Early Initial
Expansion Effective Date"), the Premises, as defined in the
Lease, is increased by 55,091 square feet of Rentable Area
through the addition of the Third Early Initial Expansion Space
(and Tenant's Pro Rata Share is likewise increased), and from
and after the Third Early Initial Expansion Effective Date, the
Premises and the Third Early Initial Expansion Space,
collectively, shall be deemed the Premises, as defined in the
Lease. The term for the Third Early Initial Expansion Space
shall commence on the Third Early Initial Expansion Effective
Date and end on the last day of the Term. The Third Early
Initial Expansion Space is subject to all the terms and
conditions of the Lease except as expressly modified herein. The
Third Early Initial Expansion Effective Date shall be delayed to
the extent that Landlord fails for any reason to deliver
possession of the Third Early Initial Expansion Space within the
timeframe set forth in Section IV below, including, but not
limited to, Unavoidable Delay. Any such delay in the Third Early
Initial Expansion Effective Date by reason of Unavoidable Delay
shall not subject Landlord to any liability for any loss or
damage resulting therefrom. If the Third Early Initial Expansion
Effective Date is delayed, the expiration date under the Lease
shall not be similarly extended.
B. Effective as of June 1, 2002 (the "Second Additional Retail
Effective Date"), the Premises, as defined in the Lease, is
increased by 1,615 square feet of Rentable Area through the
addition of the Second Additional Retail Premises (and Tenant's
Pro Rata Share is likewise increased), and from and after the
Second Additional Retail Effective Date, the Premises and the
Second Additional Retail Premises, collectively, shall be deemed
the Premises, as defined in the Lease. The term for
the Second Additional Retail Premises shall commence on the
Second Additional Retail Effective Date and end on the last day
of the Term. The Second Additional Retail Premises is subject to
all the terms and conditions of the Lease except as expressly
modified herein and except that Tenant shall not be entitled to
receive any allowances, abatements or other financial
concessions granted with respect to the Original Premises unless
such concessions are expressly provided for herein.
II. MONTHLY BASE RENTAL.
A. In addition to Tenant's obligation to pay Base Rental for the
Original Premises (other than the Third Early Initial Expansion
Space), Tenant shall pay Landlord Base Rental with respect to
the Third Early Initial Expansion Space (which shall be in lieu
of the Base Rental set forth in the Lease with respect to the
Third Early Initial Expansion Space) in monthly installments as
follows:
(i) Eight (8) equal installments of [***] each payable on
or before the first day of each month during the period
beginning February 1, 2002 and ending September 30,
2002.
(ii) One Hundred Forty (140) equal installments of [***]
each payable on or before the first day of each month
during the period beginning October 1, 2002 and ending
May 31, 2014.
B. In addition to Tenant's obligation to pay Base Rental for the
Original Premises, Tenant shall pay Landlord Base Rental for the
Second Additional Retail Premises in monthly installments as
follows:
(i) [***] per installment payable on or before the Second
Additional Retail Effective Date and on or before
the first day of each month thereafter during the period
beginning on the Second Additional Retail Effective Date
and ending on May 31, 2007.
(ii) [***] each payable on or before the first day of each
month during the period beginning June 1, 2007 and
ending May 31, 2014.
All such Base Rental shall be payable by Tenant in accordance
with the terms of Article 6 of the Lease.
III. IMPROVEMENTS TO THIRD EARLY INITIAL EXPANSION SPACE AND SECOND
ADDITIONAL RETAIL PREMISES.
A. CONDITION OF THIRD EARLY INITIAL EXPANSION SPACE AND SECOND
ADDITIONAL RETAIL PREMISES. Tenant has inspected the Third Early
Initial Expansion Space and the Second Additional Retail
Premises and agrees to accept the same "as is" without any
agreements, representations, understandings or obligations on
the part of Landlord to perform any alterations, repairs or
improvements.
B. COST OF IMPROVEMENTS TO THIRD EARLY INITIAL EXPANSION SPACE AND
SECOND ADDITIONAL RETAIL PREMISES.
(i) Landlord and Tenant acknowledge and confirm that,
subject to the terms and conditions of the Lease, Tenant
is entitled to an improvement allowance with respect to
the Third Early Initial Expansion Space, which allowance
is part of the overall allowance set forth in Section
3.6 of the Work Letter.
(ii) Provided Tenant is not in default, Tenant shall be
entitled to receive an improvement allowance (the
"Second Additional Retail Improvement Allowance") in an
amount not to exceed Thirty Seven Thousand One Hundred
Forty Five and No/100 Dollars ($37,145.00) (i.e., $23.00
per square foot of Rentable Area of the Second
Additional Retail Premises) to be applied toward the
cost of performing initial construction, alteration or
2
improvement of the Second Additional Retail Premises,
including but not limited to the cost of space planning,
design and related architectural and engineering
services. In the event the total cost of the initial
improvements to the Second Additional Retail Premises
exceeds the Second Additional Retail Improvement
Allowance, Tenant shall pay for such excess upon demand.
The entire unused balance of the Second Additional
Retail Improvement Allowance, if any, shall accrue to
the sole benefit of Landlord. In accordance with the
Payment Procedures (as defined in the Fifth Amendment to
the Lease dated May 8, 2001), Landlord shall pay such
Second Additional Retail Improvement Allowance directly
to the contractors, architects, designers, engineers and
consultants retained to perform the construction, design
or related improvement work to the Second Additional
Retail Premises.
C. RESPONSIBILITY FOR IMPROVEMENTS TO THIRD EARLY INITIAL EXPANSION
SPACE AND SECOND ADDITIONAL RETAIL PREMISES. Any construction,
alterations or improvements to the Third Early Initial Expansion
Space shall be performed by Tenant using contractors selected by
Tenant and reasonably approved by Landlord and shall be governed
in all respects by the provisions of Article 15 of the Lease.
Landlord acknowledges that Tenant is leasing the Second
Additional Retail Premises for purposes of installing and
operating a bank vault (the "Vault"). Notwithstanding anything
contained in the Lease to the contrary, Landlord and Tenant
agree that (i) the plans and specifications for the Vault and
storefront design for the Second Additional Retail Premises
shall be subject to Landlord's prior written approval, (ii)
Tenant shall remove the Vault prior to the expiration or earlier
termination of the Term and shall repair any damage caused by
installation or removal of the Vault and (iii) if the
installation or removal of the Vault requires the temporary
closure of any parking spaces in the Building's parking garage
and such closure exceeds 7 days in the aggregate, Tenant shall
pay Landlord $9.50 per day per space as additional rent for each
day that such space(s) are closed as a result of such
installation or removal of the Vault.
IV. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There have
been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically set
forth in the Lease or this Amendment.
B. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force
and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for such
an offer by Tenant. Neither Landlord nor Tenant shall not be
bound by this Amendment until both Landlord and Tenant have
executed and delivered the same to the other party.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with
no broker in connection with this Amendment other than Nelson
Tietz & Hoye (the "Broker"). Tenant agrees to indemnify and hold
Landlord, its members, principals, beneficiaries, partners,
officers, directors, employees, mortgagee(s) and agents, and the
respective principals and members of any such agents harmless
from all claims of any brokers claiming to have represented
Tenant (other than the Broker) in connection with this
Amendment. Landlord hereby represents to Tenant that Landlord
has dealt with no broker in connection with this Amendment
(other than the Broker). Landlord agrees to indemnify and hold
Tenant, its members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and
3
the respective principals and members of any such agents
harmless from all claims of any brokers claiming to have
represented Landlord (including the Broker) in connection with
this Amendment; it being understood that Landlord shall be
solely responsible for payment of all brokerage commissions due
to the Broker with respect to this Amendment pursuant to
separate written agreements.
G. This Amendment shall be of no force and effect unless and until
accepted by any guarantors of the Lease, who by signing below
shall agree that their guarantee shall apply to the Lease as
amended herein, unless such requirement is waived by Landlord in
writing.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
EOP-NICOLLET MALL, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: EOP OPERATING LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP,
ITS SOLE MEMBER
By: EQUITY OFFICE PROPERTIES TRUST,
A MARYLAND REAL ESTATE INVESTMENT TRUST,
ITS GENERAL PARTNER
By: /s/ Arvid Povilaitis
--------------------------------------
Name: ARVID POVILAITIS
--------------------------------------
Title: SENIOR VICE PRESIDENT
-------------------------------------
TENANT:
U.S. BANCORP
PIPER JAFFRAY COMPANIES INC.,
A DELAWARE CORPORATION
By: /s/ Bradley J. Schmidt
--------------------------------
Name: Bradley J. Schmidt
--------------------------------
Title: SR VICE PRESIDENT
--------------------------------
/s/ David R. Wright
DAVID R. WRIGHT
VICE PRESIDENT
GUARANTOR:
U.S. BANCORP
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
4
EXHIBIT A
Depiction of Second Additional Retail Premises
[GRAPHIC]
EIGHTH AMENDMENT
THIS EIGHTH AMENDMENT (the "Amendment") is made and entered into as of
the 30th day of December, 2002, by and between EOP-NICOLLET MALL, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY ("Landlord"), and U.S. BANCORP
PIPER JAFFRAY
COMPANIES INC., A DELAWARE CORPORATION ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor in interest to Ryan 800, LLC, a
Minnesota limited liability company) and Tenant (formerly known as
Piper
Jaffray Companies Inc.) are parties to that certain lease dated the 3rd
day of March, 1998, for space which contains, or shall contain pursuant
to the terms of the Lease (as hereinafter defined), approximately
711,641 square feet of the Rentable Area (the "Original Premises") on
the first (1st) through thirteenth (13th) and fifteenth (15th) through
twenty-fourth (24th) Floors of the building commonly known as the U.S.
Bancorp Center and the address of which is 800 Nicollet Mall,
Minneapolis, Minnesota (the "Building"), which lease has been previously
amended or assigned by instruments (including, without limitation,
letters exercising expansion rights) dated May 18, 1998, July 29, 1999,
September 1, 1998, September 29, 1999, November 22, 1999, November 24,
1999, March 31, 2000, May 8, 2001, August 8, 2001 and May 28, 2002
(collectively, the "Lease"); and
B. WHEREAS, Tenant has requested that the Commencement Date be accelerated
solely with respect to (i) the portion of the Initial Expansion Space
located on Floor twenty-four (24) containing approximately 2,915 square
feet of Rentable Area (the "Fourth Early Initial Expansion Space") to be
known as Suite 2430 and as depicted on EXHIBIT A attached hereto, and
(ii) the portion of the Initial Expansion Space located on Floor
twenty-four (24) containing approximately 1,821 square feet of Rentable
Area (the "Fifth Early Initial Expansion Space") to be known as Suite
2440 and as depicted on EXHIBIT B attached hereto, and, with respect to
the foregoing, that the Lease be appropriately amended, and Landlord is
willing to do the same on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. EXPANSION, EARLY COMMENCEMENT AND EFFECTIVE DATES.
A. Effective as of sixty (60) days after the date this Amendment is
fully executed and delivered by Landlord and Tenant(1) (the
"Fourth Early Initial Expansion Effective Date"), the Premises,
as defined in the Lease, is increased by 2,915 square feet of
Rentable Area through the addition of the Fourth Early Initial
Expansion Space (and Tenant's Pro Rata Share is likewise
increased), and from and after the Fourth Early Initial
Expansion Effective Date, the Premises and the Fourth Early
Initial Expansion Space, collectively, shall be deemed the
Premises, as defined in the Lease. The term for the Fourth Early
Initial Expansion Space shall commence on the Fourth Early
Initial Expansion Effective Date and end on the last day of the
Term. The Fourth Early Initial Expansion Space is subject to all
the terms and conditions of the Lease except as expressly
modified herein. The Fourth Early Initial Expansion Effective
Date shall be delayed to the extent that Landlord fails for any
reason to deliver possession of the Fourth Early Initial
Expansion Space within the timeframe set forth in Section IV
below, including, but not limited to, Unavoidable Delay. Any
such delay in the Fourth Early Initial Expansion Effective Date
by reason of Unavoidable Delay shall not subject Landlord to any
liability for any loss or damage resulting therefrom. If the
Fourth Early Initial Expansion Effective Date is delayed, the
expiration date under the Lease shall not be similarly extended.
B. Effective as of the earlier of (i) August 1, 2003, or (ii) 60
days after the Early Delivery Date (as defined in Section IV.B.
below) (the "Fifth Early Initial Expansion Effective Date"), the
Premises, as defined in the Lease, is increased by 1,821 square
feet of Rentable Area through the addition of the Fifth Early
Initial Expansion Space (and Tenant's Pro Rata Share is likewise
increased), and from and after the Fifth Early Initial Expansion
Effective Date, the Premises and the Fifth Early Initial
Expansion Space, collectively, shall be deemed the Premises, as
defined in the Lease. The term for the Fifth Early Initial
Expansion Space shall
commence on the Fifth Early Initial Expansion Effective Date and
end on the last day of the Term. The Fifth Early Initial
Expansion Space is subject to all the terms and conditions of
the Lease except as expressly modified herein. The Fifth Early
Initial Expansion Effective Date shall be delayed to the extent
that Landlord fails for any reason to deliver possession of the
Fifth Early Initial Expansion Space within the timeframe set
forth in Section IV below, including, but not limited to,
Unavoidable Delay. Any such delay in the Fifth Early Initial
Expansion Effective Date by reason of Unavoidable Delay shall
not subject Landlord to any liability for any loss or damage
resulting therefrom. If the Fifth Early Initial Expansion
Effective Date is delayed, the expiration date under the Lease
shall not be similarly extended.
II. MONTHLY BASE RENTAL.
A. In addition to Tenant's obligation to pay Base Rental for the
Original Premises (other than the Fourth Early Initial Expansion
Space), Tenant shall pay Landlord Base Rental with respect to
the Fourth Early Initial Expansion Space (which shall be in lieu
of the Base Rental set forth in the Lease with respect to the
Fourth Early Initial Expansion Space) in monthly installments as
follows:
(i) Equal installments of [***] each payable on or
before the first day of each month during the period
beginning on the Fourth Early Expansion Date and ending
December 31, 2007.
(ii) Sixty (60) equal installments of [***] each payable on
or before the first day of each month during the period
beginning January 1, 2008 and ending December 31, 2012.
(iii) Seventeen (17) equal installments of [***] each
payable on or before the first day of each month during
the period beginning January 1, 2013 and ending May 31,
2014.
B. In addition to Tenant's obligation to pay Base Rental for the
Original Premises (other than the Fifth Early Initial Expansion
Space), Tenant shall pay Landlord Base Rental with respect to
the Fifth Early Initial Expansion Space (which shall be in lieu
of the Base Rental set forth in the Lease with respect to the
Fifth Early Initial Expansion Space) in monthly installments as
follows:
(i) Equal installments of [***] each payable on or before
the first day of each month during the period beginning
on the Fifth Early Expansion Date and ending
December 31, 2007.
(ii) Sixty (60) equal installments of [***] each payable on
or before the first day of each month during the period
beginning January 1, 2008 and ending December 31, 2012.
(iii) Seventeen (17) equal installments of [***] each
payable on or before the first day of each month during
the period beginning January 1, 2013 and ending May 31,
2014.
All such Base Rental shall be payable by Tenant in accordance
with the terms of Article 6 of the Lease.
III. IMPROVEMENTS TO FOURTH EARLY INITIAL EXPANSION SPACE AND FIFTH EARLY
INITIAL EXPANSION SPACE.
A. CONDITION OF FOURTH EARLY INITIAL EXPANSION SPACE AND FIFTH
EARLY INITIAL EXPANSION SPACE. Tenant has inspected the Fourth
Early Initial Expansion Space and the Fifth Early Initial
Expansion Space and agrees to accept the same "as is" without
any agreements, representations, understandings or obligations
on the part of Landlord to perform any alterations, repairs or
improvements, except that
2
Landlord shall deliver the Fourth Early Initial Expansion Space
and the Fifth Early Initial Expansion Space to Tenant in broom
clean condition.
B. COST OF IMPROVEMENTS TO FOURTH EARLY INITIAL EXPANSION SPACE AND
FIFTH EARLY INITIAL EXPANSION SPACE.
(i) Notwithstanding anything to the contrary set forth in
the Lease, including the provisions of Section 3.6 of
the Work Letter attached thereto, and provided Tenant is
not in default, Tenant shall be entitled to receive an
improvement allowance (the "Fourth Early Initial
Expansion Space Improvement Allowance") in an amount not
to exceed Fifty Two Thousand Four Hundred Seventy and
No/100 Dollars ($57,270.00) (i.e., $18.00 per square
foot of Rentable Area of the Fourth Early Initial
Expansion Space) to be applied toward the cost of
performing initial construction, alteration or
improvement of the Fourth Early Initial Expansion Space,
including but not limited to the cost of space planning,
design and related architectural and engineering
services. In the event the total cost of the initial
improvements to the Fourth Early Initial Expansion Space
exceeds the Fourth Early Initial Expansion Space
Improvement Allowance, Tenant shall pay for such excess
upon demand. The entire unused balance of the Fourth
Early Initial Expansion Space Improvement Allowance, if
any, shall accrue to the sole benefit of Landlord. In
accordance with the Payment Procedures (as defined in
the Fifth Amendment to the Lease dated May 8, 2001),
Landlord shall pay such Fourth Early Initial Expansion
Space Improvement Allowance directly to the contractors,
architects, designers, engineers and consultants
retained to perform the construction, design or related
improvement work to the Fourth Early Initial Expansion
Space.
(ii) Notwithstanding anything to the contrary set forth in
the Lease, including the provisions of Section 3.6 of
the Work Letter attached thereto, and provided Tenant is
not in default, Tenant shall be entitled to receive an
improvement allowance (the "Fifth Early Initial
Expansion Space Improvement Allowance") in an amount not
to exceed Thirty Two Thousand Seven Hundred Seventy
Eight and No/100 Dollars ($32,778.00) (i.e., $18.00 per
square foot of Rentable Area of the Fifth Early Initial
Expansion Space) to be applied toward the cost of
performing initial construction, alteration or
improvement of the Fifth Early Initial Expansion Space,
including but not limited to the cost of space planning,
design and related architectural and engineering
services. In the event the total cost of the initial
improvements to the Fifth Early Initial Expansion Space
exceeds the Fifth Early Initial Expansion Space
Improvement Allowance, Tenant shall pay for such excess
upon demand. The entire unused balance of the Fifth
Early Initial Expansion Space Improvement Allowance, if
any, shall accrue to the sole benefit of Landlord. In
accordance with the Payment Procedures (as defined in
the Fifth Amendment to the Lease dated May 8, 2001),
Landlord shall pay such Fifth Early Initial Expansion
Space Improvement Allowance directly to the contractors,
architects, designers, engineers and consultants
retained to perform the construction, design or related
improvement work to the Fifth Early Initial Expansion
Space.
C. RESPONSIBILITY FOR IMPROVEMENTS TO FOURTH EARLY INITIAL
EXPANSION SPACE AND FIFTH EARLY INITIAL EXPANSION SPACE. Any
construction, alterations or improvements to the Fourth Early
Initial Expansion Space and/or the Fifth Early Initial Expansion
Space shall be performed by Tenant using contractors selected by
Tenant and reasonably approved by Landlord and shall be governed
in all respects by the provisions of Article 15 of the Lease.
IV. EARLY ACCESS TO FOURTH EARLY INITIAL EXPANSION SPACE AND FIFTH EARLY
INITIAL EXPANSION SPACE.
A. Tenant shall be permitted to enter the Fourth Early Initial
Expansion Space upon full execution and delivery of this
Amendment by Landlord and Tenant to perform alterations or
improvements to the Fourth Early Initial Expansion Space; it
being further agreed that in connection with such early access
to the Fourth Early Initial Expansion Space, Tenant shall comply
with all terms and provisions of the Lease
3
except those provisions requiring payment of Base Rental or
Additional Rent as to the Fourth Early Initial Expansion Space.
However, if Tenant takes possession of the Fourth Early Initial
Expansion Space prior to the Fourth Early Initial Expansion
Effective Date for any reason whatsoever (other than the
performance of work in such space), such possession shall be
subject to all the terms and conditions of the Lease and this
Amendment, and Tenant shall pay Base Rental and Additional Rent
(i.e. Tenant's Pro Rata Share shall be appropriately increased
to account for the same) as applicable to the Fourth Early
Initial Expansion Space to Landlord on a per diem basis for each
day of occupancy prior to the Fourth Early Initial Expansion
Effective Date.
B. Tenant shall be permitted to enter the Fifth Early Initial
Expansion Space on or after the earlier of June 1, 2003 or the
Early Delivery Date (as defined below) to perform alterations or
improvements to the Fifth Early Initial Expansion Space; it
being further agreed that in connection with such early access
to the Fifth Early Initial Expansion Space, Tenant shall comply
with all terms and provisions of the Lease except those
provisions requiring payment of Base Rental or Additional Rent
as to the Fifth Early Initial Expansion Space. However, if
Tenant takes possession of the Fifth Early Initial Expansion
Space prior to the Fifth Early Initial Expansion Effective Date
for any reason whatsoever (other than the performance of work in
such space), such possession shall be subject to all the terms
and conditions of the Lease and this Amendment, and Tenant shall
pay Base Rental and Additional Rent (i.e. Tenant's Pro Rata
Share shall be appropriately increased to account for the same)
as applicable to the Fifth Early Initial Expansion Space to
Landlord on a per diem basis for each day of occupancy prior to
the Fifth Early Initial Expansion Effective Date. While the
Fifth Early Initial Expansion Space is currently under lease to
another tenant and such other tenant's occupancy and possession
of the Fifth Early Initial Expansion Space is expected to last
until May 31, 2003, if for any reason the Fifth Early Initial
Expansion Space is surrendered to Landlord prior to May 31, 2003
(i) within 48 hours of such date of surrender (the "Early
Delivery Date"), Landlord shall make the Fifth Early Initial
Expansion Space available to Tenant pursuant to the terms and
conditions of this Section, and (ii) Landlord shall use
commercially reasonable efforts to notify Tenant of the
anticipated Early Delivery Date at least 30 days in advance.
V. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There have
been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically set
forth in the Lease or this Amendment.
B. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force
and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for such
an offer by Tenant. Neither Landlord nor Tenant shall not be
bound by this Amendment until both Landlord and Tenant have
executed and delivered the same to the other party.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with
no broker in connection with this Amendment other than Nelson
Tietz & Hoye ("Broker"). Tenant agrees to indemnify and hold
Landlord, its members, principals, beneficiaries, partners,
officers, directors, employees, mortgagee(s) and agents, and the
respective principals and members of any such agents harmless
from all claims of any brokers claiming to have represented
Tenant (other than Broker) in connection with this Amendment.
Landlord hereby represents to Tenant that
4
Landlord has dealt with no broker in connection with this
Amendment (other than Broker). Landlord agrees to indemnify and
hold Tenant, its members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and the respective
principals and members of any such agents harmless from all
claims of any brokers claiming to have represented Landlord
(including Broker) in connection with this Amendment; it being
understood that Landlord shall be solely responsible for payment
of all brokerage commissions due to Broker with respect to this
Amendment pursuant to separate written agreements.
G. This Amendment shall be of no force and effect unless and until
accepted by any guarantors of the Lease, who by signing below
shall agree that their guarantee shall apply to the Lease as
amended herein, unless such requirement is waived by Landlord in
writing.
SIGNATURES ARE SET FORTH ON THE FOLLOWING PAGE
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
EOP-NICOLLET MALL, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: EOP OPERATING LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP,
ITS SOLE MEMBER
By: EQUITY OFFICE PROPERTIES TRUST,
A MARYLAND REAL ESTATE INVESTMENT TRUST,
ITS GENERAL PARTNER
By: /s/ Kim J. Koehn
------------------------------------
Name: Kim J. Koehn
------------------------------------
Title: Senior Vice President-Denver Region
------------------------------------
TENANT:
U.S. BANCORP
PIPER JAFFRAY COMPANIES INC.,
A DELAWARE CORPORATION
By: /s/ Bradley J Schmidt
--------------------------------
Name: Bradley J Schmidt
--------------------------------
Title: Sr Vice President
--------------------------------
GUARANTOR:
U.S. BANCORP
By: /s/ David R. Wright
--------------------------------
Name: DAVID R. WRIGHT
--------------------------------
Title: VICE PRESIDENT
--------------------------------
5
EXHIBIT A
Depiction of Fourth Early Initial Expansion Space
[GRAPHIC]
6
EXHIBIT B
Depiction of Fifth Early Initial Expansion Space
[GRAPHIC]
7
NINTH AMENDMENT
THIS NINTH AMENDMENT (the "Amendment") is made and entered into as of
the 27th day of March, 2003, by and between MN - NICOLLET MALL, L.L.C., a
Delaware limited liability company ("Landlord"), and U.S. BANCORP
PIPER JAFFRAY
COMPANIES INC., a Delaware corporation ("Tenant").
RECITALS
A. Landlord (as successor in interest to EOP - Nicollet Mall, L.L.C., a
Delaware limited liability company, successor in interest to Ryan 800,
LLC, a Minnesota limited liability company) and Tenant (formerly known
as
Piper Jaffray Companies Inc.) are parties to that certain lease dated
March 3, 1998, for space which contains, or shall contain pursuant to
the terms of the Lease (as hereinafter defined), approximately 711,641
square feet of the Rentable Area (the "Original Premises") on the first
(1st) through thirteenth (13th) and the fifteenth (15th) through
twenty-fourth (24th) Floors of the building commonly known as the U.S.
Bancorp Center and the address of which is 800 Nicollet Mall,
Minneapolis, Minnesota (the "Building"), which lease has been previously
amended or assigned by instruments (including, without limitation,
letters exercising expansion rights) dated May 18, 1998, July 29, 1999,
September 1,1998, September 29, 1999, November 22, 1999, November 24,
1999, March 31, 2000, May 8, 2001, August 8, 2001, May 28, 2002, and
December 30, 2002 (collectively, the "Lease").
B. In addition to the Original Premises, pursuant to Section 12.8 of the
Lease, Tenant has possession of 350 square feet of Usable Area on Floor
Parking Level One (P1) of the Building for the location and use of
Tenant's communications major point of presence (the "MPOP Space").
Landlord has requested, and Tenant has agreed to, surrender 77 square
feet of Usable Area of the MPOP (the "MPOP Reduction Space") to
accommodate Landlord's expansion of the parking facilities appurtenant
to the Building on the following terms and conditions. The MPOP
Reduction Space is shown on EXHIBIT A hereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. REDUCTION.
A. Tenant shall vacate the MPOP Reduction Space in accordance with
the terms of the Lease on or prior to January 31, 2003, which is
the date immediately preceding the Reduction Effective Date
(defined in I.B. below) and Tenant shall fully comply with all
obligations under the Lease respecting the MPOP Reduction Space
up to the Reduction Effective Date.
B. Effective as of February 1, 2003 (the "Reduction Effective
Date"), the MPOP Space is decreased from 350 square feet of
Usable Space on Floor P1 of the Building to 273 square feet of
Usable Space on Floor P1 of the Building by the elimination of
the MPOP Reduction Space. As of the Reduction Effective Date,
the MPOP Reduction Space shall be deemed surrendered by Tenant
to Landlord, the Lease shall be deemed terminated with respect
to the MPOP Reduction Space, and Landlord's obligation under the
Lease with respect to paragraph (b) of Section 12.8 shall be
deemed to mean the MPOP Space less the MPOP Reduction Space.
II. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There have
been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically set
forth in this Amendment.
B. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force
and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control.
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D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for such
an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same to
Tenant.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with
no broker in connection with this Amendment. Tenant agrees to
indemnify and hold Landlord, its members, principals,
beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective principals and
members of any such agents, harmless from all claims of any
brokers claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that
Landlord has dealt with no broker in connection with this
Amendment. Landlord agrees to indemnify and hold Tenant, its
members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and the respective principals
and members of any such agents, harmless from all claims of any
brokers claiming to have represented Landlord in connection with
this Amendment.
G. At Landlord's option, this Amendment shall be of no force and
effect unless and until accepted by any guarantors of the Lease,
who by signing below shall agree that their guaranty shall apply
to the Lease as amended herein, unless such requirement is
waived by Landlord in writing.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
MN - NICOLLET MALL, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: EQUITY OFFICE MANAGEMENT, L.L.C., A
DELAWARE LIMITED LIABILITY COMPANY,
ITS NON-MEMBER MANAGER
By: /s/ Kim J. Koehn
-----------------------------------
Name: Kim J. Koehn
-----------------------------------
Title: Senior Vice President Denver-Region
-----------------------------------
TENANT:
U.S. BANCORP
PIPER JAFFRAY COMPANIES INC.,
A DELAWARE CORPORATION
By: /s/ David R. Wright
-----------------------------------
Name: DAVID R. WRIGHT
-----------------------------------
Title: VICE PRESIDENT
-----------------------------------
GURANTOR:
U.S. BANCORP
By: /s/ Bradley J. Schmidt
-----------------------------------
Name: Bradley J. Schmidt
-----------------------------------
Title: Sr Vice President
-----------------------------------
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EXHIBIT A
OUTLINE AND LOCATION OF MPOP REDUCTION SPACE
[GRAPHIC]
3
SUPPLEMENTAL AMENDMENT REGARDING EXPANSION SPACE
THIS SUPPLEMENTAL AMENDMENT REGARDING EXPANSION SPACE (this
"Amendment"), made and entered into as of the 29th day of September, 1999, by
and between RYAN 800, LLC, a Minnesota limited liability company ("Landlord")
and U.S. BANCORP PIPER JAFFRAY COMPANIES INC, a Delaware corporation ("Tenant");
W I T N E S S E T H T H A T:
WHEREAS, Landlord and Tenant entered into that certain Office Lease
dated March 3, 1998, as amended by that certain First Amendment to Lease dated
May 18, 1998 and by that certain Second Amendment to Lease dated July 30, 1999
(collectively, the "Lease") for certain premises (the "Premises") in the
building to be constructed by Landlord in the City of Minneapolis, Hennepin
County, Minnesota (the "Building");
WHEREAS, Tenant previously exercised its right to exclude Floors four
(4) and five (5) from the Initial Premises pursuant to the terms of the Lease;
WHEREAS, prior to the execution of this Amendment, the Premises
consisted of Floors Six (6) through Thirteen (13), inclusive, and the Initial
Retail Premises, containing approximately 319,584 square feet of Rentable Area;
WHEREAS, the Lease contains certain expansion rights in favor of Tenant
including, without limitation, the expansion options and rights of first offer
pursuant to Sections 8 and 9, respectively, of the Lease;
WHEREAS, Tenant has exercised its expansion right to lease additional
premises in the Building pursuant to its rights under Sections 8 and 9 of the
Lease; and
WHEREAS, Landlord and Tenant desire to evidence such expansion of the
Premises and to amend certain other terms and conditions of the Lease and
evidence their agreements and other matters by means of this Amendment;
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Lease is hereby amended and
the parties hereto do hereby agree as follows:
1. Landlord hereby agrees to lease to Tenant and Tenant shall lease
from Landlord approximately 350,000 square feet of Rentable Area
consisting of the space on Floors Three (3) through Five (5)
inclusive, Floors Fifteen (15) through Twenty-Two (22)
inclusive, and approximately 10,261 rentable square feet on
Floor Twenty-Three (23), all as shown on EXHIBIT A attached
hereto and by this reference made a part hereof (the "Initial
Expansion Space"), increasing the total Rentable Area leased
pursuant to the Lease to approximately 669,584 square feet.
Landlord and Tenant acknowledge and agree that the foregoing
expansion is pursuant to an exercise by Tenant of certain of its
first offer and expansion rights in Sections 8 and 9 of the
Lease.
Tenant may elect, by written notice given to Landlord not later
than April 1, 2000, to increase or decrease the Rentable Area of
the Initial Expansion Space pursuant to one of the following
four options: (i) Tenant may elect to increase the Rentable Area
of the Initial Expansion Space to add the remainder of the space
on Floor 23 ("Option 1"); (ii) Tenant may elect to increase the
Rentable Area of the Initial Expansion Space to add (x) the
remainder of the space on Floor 23 and (y) one-half (1/2) of the
space on Floor 24, with the location and configuration of such
one-half (1/2) of the space on Floor 24 to be determined by
Tenant in its sole discretion, provided the space not leased by
Tenant on Floor 24 shall be capable of being configured so as to
make the same reasonably leaseable ("Option 2"); (iii) Tenant
may elect to decrease the Rentable Area of the Initial Expansion
Space to delete all of the space on Floor 23 consisting of
approximately 10,261 square feet of Rentable Area ("Option 3");
and (iv) Tenant may elect to decrease the Rentable Area of the
Initial Expansion Space to delete (x) all of said space on Floor
23 and (y) one-half (1/2) of the space on Floor 22, with the
location and configuration of such one-half (1/2) of the space
on Floor 22 to be determined by Tenant in its sole discretion,
provided the space not leased by Tenant on Floor 22 shall be
capable of being configured so as to make the same reasonably
leaseable ("Option 4"). Any such space added to the Initial
Expansion Space pursuant to either Option 1 or Option 2 above
shall hereinafter sometimes be referred to as the "Additional
Initial Expansion Space". All Additional Initial Expansion Space
shall be deemed to be part of the Initial Expansion Space for
all purposes of this Amendment. Any such area deleted from the
Initial Expansion Space pursuant to either Option 3 or Option 4
above shall hereinafter be referred to as "Excess Expansion
Space".
2. The Lease is hereby amended by adding the Initial Expansion
Space as part of the Premises, subject to the following terms
and conditions:
a. The Initial Expansion Space shall be added as part of
the Initial Premises for all purposes, except as set
forth in this Amendment.
b. The Commencement Date of the Initial Expansion Space
(which shall also be the date for the commencement of
the payment of Base Rental and other Rent with respect
to the Initial Expansion Space) shall be determined in
accordance with the terms and conditions of the Lease as
if the Initial Expansion Space constituted a portion of
the Initial Premises including, without limitation, the
terms and conditions of Section 5.2.2, except as
follows: (i) except as otherwise provided in this clause
(i), the Commencement Date for the Initial Expansion
Space only shall not begin before October 1, 2002;
provided, however, if Tenant commences use of all or any
part of the Initial Expansion Space for its business
purposes (as opposed to for performance of the Tenant
Work or installation of Tenant's furniture, Trade
Fixtures and personal property) prior to October 1,
2002, then the Commencement Date with respect to the
portion of the Initial
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Expansion Space which Tenant uses shall be the date
which Tenant takes beneficial occupancy of the same.
Notwithstanding the foregoing, Tenant shall have the
right to take occupancy of all or a portion of the
Initial Expansion Space for any purpose (including,
without limitation, for business purposes) on or after
July 1, 2002 without triggering the Commencement Date
for the Initial Expansion Space (which shall be October
1, 2002 in such event); (ii) Tenant shall only have the
right to commence early occupancy of the Initial
Expansion Space for its business purpose in full Floor
increments (except with respect to any partial Floor of
the Initial Expansion Space); and (iii) the Commencement
Date for the original Initial Premises, being Floors six
(6) through thirteen (13), inclusive, and the Retail
Premises (the "Original Initial Premises"), shall not be
affected by the foregoing provisions or the addition of
the Initial Expansion Space. The Initial Term of the
Lease for the entire Premises (which includes the
Original Initial Premises and the Initial Expansion
Space) shall expire on the same date on the fourteenth
(14th) anniversary of the Commencement Date for the
Original Initial Premises.
c. Base Rental with respect to the Initial Expansion Space
during the Initial Term shall be [***] per square foot
of the Rentable Area of the Initial Expansion Space, as
determined in accordance with the terms and conditions
of Section 5 of this Amendment, and shall be due and
payable, together with any other Rent payments for the
Initial Expansion Space, on the Commencement Date for
the Initial Expansion Space or portion thereof (as
described in Section 2b above).
d. The provisions of EXHIBIT D (Work Letter) to the Lease
apply to the Original Initial Premises and the Initial
Expansion Space, subject to the amendments hereinafter
provided. Said EXHIBIT D (Work Letter) to the Lease is
hereby amended as follows:
(i) The following is added at the end of the definition of
"Approved Base Building Plans and Specifications" on page 1:
"Landlord and Tenant acknowledge and agree that the Approved
Base Building Plans and Specifications are described on EXHIBIT
B attached to the Supplemental Amendment Regarding Expansion
Space executed by Landlord and Tenant (the "Supplemental
Amendment") and incorporated herein by this reference and
reflect change orders approved by Landlord and Tenant through
Bulletin 8. The Base Building Work to be performed by Landlord
in the Initial Expansion Space is described in the Building
Shell Condition Requirements for the Initial Expansion Space
attached to the Supplemental Amendment as EXHIBIT 1-1 and
incorporated herein by this reference, and the Approved Base
Building Plans and Specifications shall be revised, if
necessary, to reflect the Base Building Work to the Initial
Expansion Space described in said EXHIBIT 1-1, subject, however,
to the upgrades on Floors
3
3,4 and 5 described in EXHIBIT C attached to the Supplemental
Amendment and incorporated herein by this reference."
(ii) The Base Building Construction Schedule attached as
EXHIBIT 5 to the Work Letter is hereby deleted and the Base
Building Construction Schedule attached to this Amendment as
EXHIBIT 5 is substituted in lieu thereof.
(iii) The following is added at the end of the definition of
"Base Building Scope Documents" on page 4 of the Work Letter: ";
provided, however, the Base Building Scope Documents applicable
to the Initial Expansion Space are attached to the Supplemental
Amendment as EXHIBIT 4-1 and incorporated herein by this
reference and such Base Building Scope Documents described in
EXHIBIT 4-1 (and not EXHIBIT 4) shall relate to the Base
Building Work to the Initial Expansion Space; further provided,
however, Floors 3, 4 and 5 shall be upgraded as described in
EXHIBIT C attached to the Supplemental Amendment."
(iv) The following is added at the end of the definition of
"Base Building Shell Condition Requirements" on page 4 of the
Work Letter:"; provided, however, the Base Building Shell
Condition Requirements applicable to the Initial Expansion Space
are attached to the Supplemental Amendment as EXHIBIT 1-1 and
incorporated herein and such Base Building Shell Condition
Requirements described in EXHIBIT 1-1 (and not EXHIBIT 1) shall
govern the Base Building Work to the Initial Expansion Space;
further provided, however, Floors 3, 4 and 5 shall be upgraded
as described in EXHIBIT C attached to the Supplemental
Amendment.
(v) The existing provisions of Section 2.2.1 of the Work
Letter shall apply only to the Original Initial Premises.
Therefore, all references to the "Premises" in said Section
2.2.1 shall refer only to the Original Initial Premises. In
addition, the following is added at the end of said Section
2.2.1: "Notwithstanding anything to the contrary in this Work
Letter, all Base Building Work for the Initial Expansion Space
shall be designed at least to accommodate population densities
of one (1) person per one hundred forty-four (144) square feet
of Usable Area on the Floors of the Initial Expansion Space."
(vi) Notwithstanding anything contained in the Lease or the
Work Letter to the contrary, Tenant shall have no right to
require Landlord to construct or serve as the general contractor
for the Tenant Work, and Landlord shall not have any obligation
or liability for the construction of the Tenant Work, except for
the payment of Tenant Work Costs up to the amounts described in
Section 3.6 of the Work Letter. Notwithstanding the foregoing to
the contrary, Tenant may engage Ryan Companies US, Inc., an
affiliate of Ryan 800, LLC, the current Landlord, to serve as
the general contractor for the Tenant Work in the Original
Initial Premises and the Initial Expansion Space pursuant to
separate agreements between such parties, and in no way shall
Landlord have any liability under such agreements or with
respect to the construction of the Tenant Work pursuant
4
thereto. Therefore, the third sentence of Section 3.3 of the
Work Letter is hereby deleted.
(vii) Notwithstanding anything contained in Section 3.4 of the
Work Letter to the contrary, the provisions set forth in clauses
(a) through (h) of said Section 3.4 regarding Landlord's
services during construction shall apply only during the period
of the performance of the Tenant Work until the Base Building
Completion Date, and after the Base Building Completion Date and
during the remainder of the period for the performance of the
Tenant Work, Landlord shall not be required to provide the
services described in clauses (a) through (h) of said Section
3.4, but shall provide the following services and facilities,
all in operational condition and in good order and in accordance
with the other requirements of said Section 3.4:
(a) HVAC services sufficient to allow the
efficient performance of the Tenant Work (e.g., to allow
efficient curing of sheet rock, etc.) and electrical and
water services;
(b) access to and use of truck docks;
(c) vertical transportation for passengers
and construction purposes;
(d) direct vertical transportation for
freight and construction materials and tools to all
Floors in the Premises, Floor One (1) and all Floors
containing facilities described in (b) and (f) hereof,
which shall include, without limitation, one (1) freight
elevator;
(e) an area and, at Tenant's expense,
adequate dumpster service designated for Tenant's
exclusive use for rubbish and trash removal services in
the same elevator bank as the Premises; and
(f) at Tenant's expense, temporary toilet
facilities for the exclusive use of Tenant's
construction personnel in the same elevator bank as the
subject Premises.
(viii) Landlord shall pay all costs and expenses incurred in
connection with the design, construction and performance of the
Tenant Work for the Initial Expansion Space up to a maximum
amount of Thirty and no/100 Dollars ($30.00) times the number of
square feet or Rentable Area in the Initial Expansion Space.
Therefore, the following is added after "Initial Premises" in
line six (6) of Section 3.6 of the Work Letter: "(including the
Initial Expansion Space)".
(ix) Notwithstanding the provisions of Section 3.7 of the
Work Letter to the contrary, the work to be performed by
Landlord described in said Section 3.7 to balance the HVAC
systems servicing the Initial Expansion Space shall be performed
by Landlord, provided the reasonable costs and expenses of such
work
5
for the Initial Expansion Space shall be paid by Tenant.
Therefore, the following is added at the end of said Section
3.7: "provided, however, Tenant shall pay the reasonable costs
and expense of such work for the HVAC systems servicing the
Initial Expansion Space."
(x) Section 4 of the Work Letter is hereby amended by
deleting the words "and the Tenant Work" appearing at the end of
said Section 4.
(xi) The following provisions shall govern and control in the
event of any conflict among the Approved Base Building Plans and
Specifications, Base Building Scope Documents and Base Building
Shell Condition Requirements: (a) in the event of any conflict
relating to the Original Initial Premises, the Approved Base
Building Plans and Specifications shall control; and (b) in the
event of any conflict relating to the Initial Expansion Space,
the Base Building Scope Documents for the Initial Expansion
Space attached to this Amendment as EXHIBIT 4-1 and the Base
Building Shell Condition Requirements for the Initial Expansion
Space attached to this Amendment as EXHIBIT 1-1 shall control.
3. Section 1.76 of the Lease setting forth the definition of
"Tenant Finish Period" is hereby amended by deleting the number
"one hundred ninety-six (196)" appearing in line three (3)
thereof and substituting the number "one hundred fifty-two
(152)" in lieu thereof.
4. Section 1.50 of the Lease is hereby amended by inserting: (a)
the following provision after the phrase "all pertinent factors"
in the tenth (10th) line thereof: "(including, without
limitation, the net effective rental rates for space then being
leased in the Building under leases recently executed and any
and all other factors that the parties, in their sole
discretion, shall deem relevant); and (b) inserting the
following provision after the phrase "ninety percent (90%)" in
the fourteenth (14th) and fifteenth (15th) lines thereof: "or
ninety-five percent (95%)."
5. Section 2.2 of the Lease entitled "Measurement Standards" shall
not be applicable to the Initial Expansion Space or to any other
space added to the Premises (whether the addition of such space
to the Premises is made pursuant to a right contained in the
Lease or otherwise), and Landlord and Tenant agree that the
standards set forth in Sections 2.2.1 and 2.2.2 shall be
inapplicable to such space. The Rentable Area of the Initial
Expansion Space and any other space added to the Premises
including, without limitation, any space added pursuant to any
Expansion Options or First Offer Rights shall be established
pursuant to the terms of Section 2.2.3 and 2.2.4, but utilizing
the standards hereinafter set forth. The standards set forth in
Sections 2.2.1 and 2.2.2 shall continue to be applicable in all
respects to the Original Initial Premises. The Rentable Area and
Usable Area of the Initial Expansion Space or any other space
added to the Premises including, without limitation, any space
added pursuant to any Expansion Options or First Offer Rights
shall be determined in accordance with "Standard Method for
Measuring Floor Area in Office Buildings," published by the
Secretariat,
6
Buildings Owners and Managers Association International
(ANSI/BOMA Z65.1-1996), approved June 7, 1996.
6 Section 5.1.3 of the Lease entitled "LaSalle Passageway" is
hereby amended by reducing the dollar amount set forth on the
eleventh (11th) line and thirty eighth (38th) line from One
Million and No/100 Dollars ($1,000,000.00) to Five Hundred
Thousand and No/100 Dollars ($500,000.00).
7. Section 6.1.2 of the Lease entitled "Extension Term" is hereby
deleted and the following provision inserted in lieu thereof:
"EXTENSION TERM. During the first twelve (12) months of the
first Extension Term (a) the Base Rental for the Original
Initial Premises (other than the Initial Retail Premises) shall
be in the amount of [***] per square foot of Rentable Area per
year, (b) the Base Rental for any Retail Premises then included
in the Premises shall continue at the same rate as in effect at
the end of the Initial Term and (c) the Base Rental for the
"Initial Expansion Space" (as defined in the Supplemental
Amendment), any Expansion Space or any First Offer Space then
included in the Premises shall be as set forth below. During the
remainder of the first Extension Term (and as to the Initial
Expansion Space, any Expansion Space or any First Offer Space
during the entire first Extension Term) and during each
subsequent Extension Term, (a) the Base Rental solely with
respect to the Original Initial Premises shall be at a per annum
rate equal to the lesser of (x) the product of multiplying
(A) the Market Base Rental Rate as of the Rent Determination
Date for the Premises in question considered as an aggregate
block of space leased to a single tenant by (B) ninety percent
(90%), or (y) the product obtained by multiplying (A) the Market
Base Rental Rate as of the Rent Determination Date for a single
tenant leasing one (1) full floor of the size and design of
Floor Six and located on the elevator bank on which Floor Six is
located (the "Full Floor Rate") by ninety percent (90%), (b) the
Base Rental for the remainder of the Premises (including the
Initial Expansion Space, any Expansion Space and any First Offer
Space which is included in the Premises as of the first day of
the Extension Term in question, but excluding the Original
Initial Premises and any Retail Premises) shall be at a per
annum rate equal to the lesser of (i) the product obtained by
multiplying (A) the Market Base Rental Rate as of the Rent
Determination Date for the Premises in question considered as
an aggregate block of space leased to a single tenant by
(B) ninety five percent (95%), or (ii) the product obtained by
multiplying (A) the Full Floor Rate as of the Rent Determination
Date by (B) ninety five percent (95%), and (c) the Base Rental
Rate for the Retail Premises shall be at the per annum rate
equal to the product obtained by multiplying (i) the Market Base
Rental Rate as of the Rent Determination Date for the Retail
Premises in question, by (ii) ninety percent (90%)."
7
8. Section 6.1.4 of the Lease entitled "Expansion Space" is hereby
amended by deleting the words "ninety percent (90%)" in the
fourth (4th) line thereof and inserting in lieu thereof the
words "ninety-five percent (95%)".
9. Section 6.1.5 of the Lease entitled "First Offer Space" is
hereby amended by deleting the words "ninety percent (90%)" in
the fourth (4th) line thereof and inserting in lieu thereof the
words "ninety-five percent (95%)".
10. Landlord and Tenant acknowledge and agree that (a) the parties
have executed simultaneously with the execution of this
Amendment, a Lease Amendment, Indemnification and Joint Defense
Agreement with respect to certain tax issues (the "Tax
Agreement"), (b) the Tax Agreement shall operate as an amendment
to the Lease and in the event of an assignment of the Lease by
either Landlord or Tenant or both, said Tax Agreement will be
assigned to such parties' assignee and such assignee will
expressly assume all of such parties' obligations and
liabilities under the Tax Agreement, (c) in the event that
Landlord fails to pay timely any sum to Tenant due and owing
under the Tax Agreement, Tenant shall have the right to offset
such amount against the Rent due under the Lease until Tenant is
fully reimbursed pursuant to the procedures set forth in Section
24.5 of the Lease, but without regard to any cap on offset
rights set forth in the Lease with respect to the collection of
such amount, and (d) no sum payable by Landlord under the Tax
Agreement (or offset by Tenant under this Amendment) shall be
considered Real Property Taxes or Operating Expenses under the
Lease.
11. Landlord and Tenant acknowledge and agree that Tenant's exercise
of its expansion rights with respect to the Initial Expansion
Space which is evidenced by this Amendment constitutes both an
exercise by Tenant of a First Offer Right and its Expansion
Options described in Sections 8 and 9, respectively, of the
Lease. Landlord and Tenant acknowledge and agree that Tenant
retains its First Offer Rights set forth in Section 9 of the
Lease. However, Section 8.1 of the Lease entitled "Grant" is
hereby deleted in its entirety and the following inserted in
lieu thereof:
"8.1 GRANT. Subject to the terms and conditions of this Article
8, Landlord hereby grants to Tenant the options (the "Expansion
Options") to add the following expansion space (the "Expansion
Space") to the Premises:
(i) Attached to the Supplemental Amendment as
EXHIBIT D and incorporated herein is a description of the five
(5) Expansion Options. The space to be leased under the five (5)
Expansion Options (the "Expansion Space") will depend on whether
Tenant elects, on or before April 1, 2000, to increase or
decrease the Initial Expansion Space pursuant to Option 1,
Option 2, Option 3, or Option 4 described in Section 1 of the
Supplemental Amendment. The Expansion Space applicable to each
of the five (5) Expansion Options shall be determined on April
1, 2000 depending on which, if any, of said Option 1, Option 2,
Option 3, or
8
Option 4 Tenant exercises and shall be the corresponding
Expansion Space descried in EXHIBIT D under the appropriate
column relating thereto.
(a) The first Expansion Option (the "First
Expansion Option") shall be effective as of October 1,
2004 and shall relate to the Expansion Space described
in said EXHIBIT D (the "First Expansion Space").
(b) The second Expansion Option (the "Second
Expansion Option") shall be effective as of October 1,
2006 and shall relate to the Expansion Space described
in said EXHIBIT D (the "Second Expansion Space").
(c) The third Expansion Option (the "Third
Expansion Option") shall be effective as of October 1,
2008 and shall relate to the Expansion Space described
in said EXHIBIT D (the "Third Expansion Space").
(d) The fourth Expansion Option (the "Fourth
Expansion Option") shall be effective as of October 1,
2010 and shall relate to the Expansion Space described
in said EXHIBIT D (the "Fourth Expansion Space").
(e) The fifth Expansion Option (the "Fifth
Expansion Option" shall be effective as of October 1,
2012 and shall relate to the Expansion Space described
in said EXHIBIT D (the "Fifth Expansion Option").
12. Section 8.2 of the Lease entitled "Exercise" is hereby amended
by deleting the first sentence thereof. Said Section 8.2 of the
Lease is hereby further amended by deleting from lines 14-16
thereof the phrase "(ii) subject to the other limitations of
this Section 8.2, the portion or portions of the Expansion Space
as to which Tenant is exercising its Expansion Option".
13. Section 8.3 of the Lease entitled "Contiguous Space;
Relationship to First Offer Right" is hereby deleted and the
following provision inserted in lieu thereof:
"8.3 INDEPENDENT RIGHTS; RELATIONSHIP TO FIRST OFFER RIGHT. Any
failure to duly and timely exercise an Expansion Option shall
not otherwise limit subsequent Expansion Options. If Tenant has
previously leased any Expansion Space pursuant to the exercise
of a First Offer Right, but subject to any Superior Rights as
provided in Section 9 hereof, then the Expansion Option with
respect to such Expansion Space shall be deemed independent of
the First Offer Right and shall apply and may be exercised
notwithstanding that Tenant exercised a First Offer
9
Right with respect to such Expansion Space. If Tenant has
previously leased any Expansion Space pursuant to the exercise
of a First Offer Right, but such exercise was not subject to any
Superior Rights as provided in Section 9 hereof, then Tenant
shall not have the right to exercise an Expansion Option with
respect to such Expansion Space (and will continue to lease such
Expansion Space pursuant to the exercise of the First Offer
Right), but the Expansion Option shall apply to any remaining
portion of the Expansion Space. If Tenant at any time elects to
exercise its Expansion Option with respect to any First Offer
Space, then Tenant's First Offer Right with respect to such
space shall immediately terminate and be of no further force and
effect. Notwithstanding anything contained in this Section 8.3
to the contrary, if Tenant exercises a renewal of this Lease for
an Extension Term as provided in Section 4.3 hereof for less
than the entire Premises but for at least three hundred
twenty-five thousand (325,000) square feet of Rentable Area,
then Tenant's First Offer Right described in Section 9 hereof
shall continue to apply during the Extension Term and shall
relate to any space in the Building which is or shall become
available for leasing, including, without limitation, any such
space which was originally part of the Premises but not leased
by Tenant during such Extension Term, but only to the extent
such space is or shall become available for leasing. If Tenant
exercises such a renewal of this Lease for an Extension Term for
less than three hundred twenty-five thousand (325,000) square
feet of Rentable Area, then Tenant shall no longer have the
First Offer Right described in Section 9 hereof during the
Extension Term."
14. Section 10.1.1 of the Lease entitled "First Reduction Option" is
hereby deleted from the Lease and shall be void and of no
further force or effect as if such provision had not been
included in the original Lease.
15. Sections 10.1.2, 10.1.3 and 10.1.4 of the Lease entitled "Second
Reduction Option", "Third Reduction Option" and "Fourth
Reduction Option", respectively, are hereby deleted and the
following provisions inserted in lieu thereof:
"10.1.2. SECOND REDUCTION OPTION. By up to amount of Rentable
Area equal to one hundred fifty thousand (150,000) square feet
of Rentable Area by notice given to Landlord at any time during
the Term on or after the tenth (10th) anniversary of the
Commencement Date for such portion of the Premises (the "Second
Reduction Option");
"10.1.3 THIRD REDUCTION OPTION. All or any portion of the Retail
Premises by notice to Landlord at any time during the Term on or
after the fourth (4th) and prior to the fifth (5th) anniversary
of the Commencement Date for the Retail Premises (the "Third
Reduction Option"); and
10.1.4 FOURTH REDUCTION OPTION. All or any portion of the Retail
Premises by notice to Landlord at any time during the Term on or
after the ninth (9th) and prior to the tenth (10th) anniversary
of the Commencement Date for the Retail Premises (the "Fourth
Reduction Option")."
10
16. Section 11.2 of the Lease entitled "Adjustment; Allocated
Spaces" is hereby amended by deleting the first two sentences
thereof and inserting in lieu thereof the following:
"The number of parking spaces allocated to Tenant (the
"Allocated Spaces") from time to time with respect to the
Premises shall equal the following: (i) if the Rentable Area of
the Premises is between (x) five hundred seventy-five thousand
(575,000) square feet and (y) the Rentable Area within the
Original Initial Premises and the Initial Expansion Space
(before the exercise of Option 1, Option 2, Option 3 or Option 4
as described in Section 1 of the Supplemental Amendment
Regarding Expansion Space), which is approximately 669,584
square feet (the "Initial Rentable Area"), then the Allocated
Spaces shall be two hundred fifty (250) parking spaces; (ii) if
the Rentable Area of the Premises is greater than the Initial
Rentable Area, then the Allocated Spaces shall be the sum of (x)
two hundred fifty (250) parking spaces plus (y) one (1) parking
space for each three thousand five hundred forty-seven (3,547)
square feet of Rentable Area in excess of the Initial Rentable
Area; and (iii) if the Rentable Area of the Premises is less
than five hundred seventy-five thousand (575,000) square feet,
then the Allocated Spaces shall be (x) two hundred fifty (250)
parking spaces less (y) one (1) parking space for each two
thousand three hundred (2,300) square feet of Rentable Area less
than five hundred seventy-five thousand (575,000) square feet.
The Rentable Area of the Premises referred to in (i) through
(iii) above shall be the Rentable Area of the Premises from time
to time as the same may have been increased or decreased
pursuant to (1) any of said Option 1, Option 2, Option 3 or
Option 4; (2) any Reduction Option described in Section 10
hereof; (3) any Expansion Option described in Section 8 hereof;
(4) any First Offer Right described in Section 9 hereof; or (5)
any other provision of this Lease."
17. Section 11.7 of the Lease entitled "After Hours Parking" is
hereby amended by deleting the first sentence thereof and
inserting in lieu thereof the following: "In addition to the
Allocated Parking and the Additional Parking, Landlord shall
provide Tenant with as many parking spaces as then available
from time to time in the Parking Garage, for after hours parking
at a rate of Two and No/100 Dollars ($2.00) per space per day
(net of sales, use or similar taxes) and/or Twenty-five and
No/100 Dollars ($25.00) per space per month (net of sales, use
or similar taxes) during the entire Term."
18. Section 12.2 of the Lease entitled "Adjustment; Allocated
Storage Space" is hereby amended by deleting the first three
sentences thereof and inserting in lieu thereof the following
sentence: "Storage Space allocated to Tenant pursuant to Section
12.1 shall be referred to as 'Allocated Storage Space'."
19. Section 22 of the Lease is hereby deleted and the following
provision inserted in lieu thereof:
11
"22. ASSIGNMENT AND SUBLETTING BY TENANT. Except as expressly
provided herein, Tenant shall not, by operation of law or
otherwise, (a) assign, transfer, mortgage, pledge, hypothecate
or otherwise encumber the Lease, the Premises or any part of or
interest in the Lease or the Premises, (b) sublet all or any
part of the Premises or any right or privilege appurtenant to
the Premises, or (c) permit any other party to occupy or use all
or any part of the Premises (collectively, a "Transfer"),
without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed.
Further, Tenant hereby agrees that Tenant shall not sublease any
portion of the Premises (excluding the Original Initial
Premises) to another tenant in the Building.
Notwithstanding any provision to the contrary, Tenant may assign
this Lease or sublet the Premises without Landlord's consent (i)
to any corporation or other entity that controls, is controlled
by or is under common control with Tenant; (ii) to any
corporation or other entity resulting from a merger,
acquisition, consolidation or reorganization of or with Tenant;
(iii) in connection with the sale of all or substantially all of
the assets of Tenant; (iv) in connection with a sublease which
has a term (including any renewal, option or extension term(s))
of less than eighteen (18) months; (v) in connection with a
sublease of less than twenty-five thousand (25,000) square feet
of Rentable Area to an entity with whom Tenant has a contractual
relationship such that the sublease is for the convenience of
Tenant's business operations in the Premises; or (vi) in
connection with a sublease to an entity to whom Tenant has sold
a discrete, identified business unit of Tenant or an Affiliate
of Tenant. If Tenant elects to so sublease or assign this Lease,
Tenant shall notify Landlord in writing within fifteen (15) days
after Tenant's transfer and shall provide to Landlord evidence
in writing that such assignment or sublease complies with one or
more of the criteria set forth above. Any assignment of this
Lease or sublease pursuant to terms of clauses (i), (ii) or
(iii) above only, but not (iv), (v) or (vi) above, shall be
hereafter known as an "Affiliated Transfer" and any assignment
of this Lease or sublease pursuant to the terms of any of the
provisions of (i), (ii), (iii), (iv), (v) or (vi) above in this
paragraph shall be hereafter known as a "Permitted Transfer". No
such assignment, sublease or transfer, however, shall release
Tenant from any covenant, liability or obligation under this
Lease. In the event Landlord shall not withhold its approval of
the proposed transfer in writing and with specific reasons for
said withholding of approval within fifteen (15) days after
receipt of Tenant's written request, including receipt of all
information required to be furnished by Tenant hereunder, such
approval shall be deemed to be given.
Notwithstanding anything to the contrary, Landlord agrees and
acknowledges that Tenant may, from time to time, sublease
various portions of the Premises to U.S. Bank National
Association and/or U.S. Bancorp and that any and all such
subleases shall be deemed an Affiliated Transfer for purposes of
this Lease.
12
If Tenant requests Landlord's consent to any Transfer, then
Tenant shall provide Landlord with a written description of all
terms and conditions of the proposed Transfer, copies of the
proposed documentation, and the following information about the
proposed transferee: name and address; its proposed use of the
Premises if other than general office use; a copy of the
proposed sublease or assignment agreement; if the transferee is
a privately held corporation, then any financial information for
such transferee obtained by Tenant (which shall be kept
confidential by Landlord and only used for the purpose of
evaluating such proposed sublease or assignment and the action
to be taken by Landlord hereunder); and in the event of an
assignment, the proposed change in the name of the Building (if
any) that such transferee may elect pursuant to the terms and
conditions of Section 35.1 of this Lease. Landlord's consent to
a Transfer shall not release Tenant from performing its
obligations under the Lease, but rather Tenant's transferee
shall assume all of Tenant's obligations under the Lease in a
writing reasonably satisfactory to Landlord, and Tenant and its
transferee shall be jointly and severally liable therefor.
Landlord's consent to any Transfer shall not waive Landlord's or
Tenant's rights as to any subsequent Transfer.
Notwithstanding anything to the contrary, with respect to any
proposed sublease of one (1) Floor or more of the Premises and
which has a term of all or substantially all of the then
applicable Term of this Lease and to which Landlord's prior
consent is required (the portion of the Premises to be subleased
is hereinafter known as the "Sublet Space"), Landlord shall also
have the option (i) to sublet the entire Sublet Space from
Tenant at the same Base Rental as Tenant is required to pay to
Landlord under this Lease for the Sublet Space, or (ii) to
terminate this Lease as to the Sublet Space as provided below;
provided, however, Landlord's right in this paragraph to so
sublet or transfer shall not apply to a Permitted Transfer and
shall not apply to the Original Initial Premises, but Landlord's
right shall apply to the Initial Expansion Space and all other
space thereafter leased to Tenant. For purposes of this
paragraph, the term "all or substantially all of the then
applicable Term" shall mean any sublease which has a term in
excess of three (3) years and which will expire within one (1)
year of the expiration of the then applicable Term. Landlord's
option to sublet or to terminate, as the case may be, shall be
exercisable by Landlord in writing within a period of fifteen
(15) calendar days after receipt of Tenant's notice of its
intent to sublease. In the event Landlord exercises the option
to sublet the Sublet Space pursuant to Landlord's option set
forth above, the term of the subletting from the Tenant to
Landlord shall be the term prescribed in the third party
sublease (which shall not be longer than the then current Term
of this Lease) and shall be on such terms and conditions as are
contained in this Lease (including the Base Rental applicable to
the Sublet Space as described in this Lease), except that
Landlord shall have the right to further sublet the Sublet Space
freely and without any consent or approval from Tenant and for
such rent as Landlord shall agree upon in its sole and absolute
discretion subject to the following restrictions. If Landlord
exercises the option to sublease the Sublet Space or to
terminate this Lease as to the Sublet
13
Space, then (a) Landlord shall not sublease or lease to or allow
the occupancy of any portion of Floors 1 and 2 only by any
Financial Services Business as described in Section 38.1, but
the foregoing restriction shall not apply to any other space in
the Premises, and (b) such Sublet Space may be leased or further
sublet by Landlord only for a use permitted under Legal
Requirements which is not incompatible with a first class office
building in downtown Minneapolis, Minnesota. If Landlord elects
to terminate this Lease pursuant to Landlord's option set forth
above, then this Lease shall terminate as to the Sublet Space on
the date set forth in said third party sublease for
commencement. If Landlord exercises its option to terminate this
Lease with respect to the Sublet Space, as to that portion of
the Premises which is not part of the Sublet Space, this Lease
shall remain in full force and effect and the Base Rental for
the remaining portion of the Premises which is not a part of the
Sublet Space shall continue to be determined and paid in the
manner provided in this Lease for such space.
Landlord shall also have the right in connection with all
subleases (other than an Affiliated Transfer or a sublease of a
portion of the Original Initial Premises) to share in any profit
from such subleases as hereinafter provided in this paragraph.
In the event of such a sublease and (i) if Landlord does not
elect to exercise either the option to sublease or to terminate
as described in the preceding paragraph (if available to
Landlord) and (ii) the aggregate rental or other consideration
paid by a transferee with respect to any sublease space (except
as provided below) exceeds the sum of (y) Tenant's Rent to be
paid to Landlord for such sublease space during such period and
(z) an amount equal to the amortized amount of Tenant's
reasonable costs and expenses actually incurred in connection
with such Transfer, including reasonable attorneys fees,
brokerage fees, reasonable costs of finishing or renovating the
space affected and reasonable cash rental concessions, which
costs and expenses shall be amortized over the original term of
such sublease at an interest rate equal to eight percent (8%)
per annum, then seventy-five percent (75%) of such excess shall
be paid to Landlord within fifteen (15) days after such amount
is paid to Tenant. The terms of this paragraph and Landlord's
right to receive such excess rent shall not, however, apply to
an Affiliated Transfer and shall not apply to the sublease of a
portion of the Original Initial Premises. Tenant authorizes its
transferees to make payments of rent and any other sums due and
payable, directly to Landlord upon an Event of Default by Tenant
under this Lease. Landlord shall have the right, at Landlord's
expense, to audit Tenant's books and records relating to each
such sublease, provided such information shall be kept
confidential. Any attempted Transfer by Tenant in violation of
the terms and covenants of this Section 22 shall be void and
shall constitute a default by Tenant under the Lease."
20. Section 24.5 of the Lease entitled "Landlord's Default" is
hereby amended by inserting the following phrase after the word
"default" in the fifteenth (15th) line of said Section:
"(provided, however, in no event shall Tenant have the right to
offset or deduct any amount in excess of fifteen percent (15%)
of all Rent due
14
under this Lease during the next twelve (12) month period and
any excess owed to Tenant remaining after such offset will be
carried forward to (and, subject to the limitations set forth
above, available for offset in) the next succeeding twelve (12)
month period(s))."
21. Section 35.1 of the Lease entitled "Building Name" is hereby
deleted and the following provision inserted in lieu thereof:
"35.1 BUILDING NAME. So long as Tenant and its Affiliates lease
(including pursuant to any sublease of the Premises to
Affiliates of Tenant or which qualify as an Affiliated Transfer)
not less than three hundred twenty-five thousand (325,000)
square feet of Rentable Area of the Building, Tenant shall have
the right to select and from time to time change the name of the
Building, provided that if Tenant changes the name of the
Building after October 1, 1999, Tenant shall pay all reasonable
costs incurred by Landlord in the removal and replacement of all
common area signs containing the name of the Building. At such
time as Tenant no longer leases such minimum amount of space,
Landlord shall have the right to designate the name of the
Building, provided that in no event shall the name of the
Building be in any manner associated with any Financial Services
Business other than Tenant or any of its Affiliates so long as
Tenant (or its Affiliates) lease and occupy all or any portion
of the then existing Premises. Landlord shall have the right to
approve any name selected by Tenant, but such approval shall be
deemed given if not denied in notice to Tenant given within
fifteen (15) days after Tenant's request for approval, provided
that no approval is required if the name selected by Tenant is
associated with the Tenant's name, the name of any Affiliate of
Tenant, or marketing strategy of Tenant or any of its Affiliates
as determined by Tenant in its sole discretion. Any disapproval
by Landlord must be based solely upon the fact that such name is
inappropriate for use in connection with a first class office
building in Minneapolis, Minnesota. The initial name of the
Building shall be "U.S. Bancorp Center". Any change in the name
of the Building by Tenant shall be made (a) at any time prior to
October 1, 1999, upon not less than five (5) days' prior written
notice to Landlord, and (b) thereafter upon not less than ninety
(90) days' notice to Landlord. At any time prior to or during
the Term or after the expiration or termination of this Lease,
Tenant shall have the right in its sole discretion to require
Landlord to immediately cease use of any name associated with
Tenant, any of its Affiliates or any marketing strategy of
Tenant or its Affiliates in connection with the Building. The
provisions of the immediately preceding sentence shall survive
such expiration or termination."
22. Tenant represents and warrants to Landlord that neither it nor
its officers or agents nor anyone acting on its behalf has dealt
with any real estate broker other than CB Commercial Real Estate
who represented Landlord and Nelson, Tietz & Hoye who
represented Tenant in the negotiating or making of this
Amendment. Landlord shall be solely responsible for payment of
all brokerage commissions
15
due to CB Commercial Real Estate and Nelson, Tietz & Hoye
pursuant to separate written agreements.
23. All capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Lease.
24. Landlord and Tenant covenant and agree to keep the terms and
conditions of this Amendment confidential at all times and
neither this Lease nor any of the terms and conditions herein
may be given, shown, made available, communicated or disclosed
in any way to anyone other than the parties' attorneys, tax
advisors or consultants and real estate agents, and such other
persons as the parties hereto mutually consent to in writing.
Further, any disclosure or dissemination of this Amendment or
the terms and conditions hereof shall be made subject to the
foregoing covenant regarding confidentiality. Neither party
hereto will issue any press release or make any other public
announcement relating to the transactions contemplated by the
Lease, as amended by this Amendment, without the prior consent
of the other party and Cornerstone Properties Inc. It is
anticipated that Landlord, Tenant and Cornerstone Properties
Inc. will issue a jointly approved press release.
25. Except as set forth in the Lease, this Amendment represents the
entire agreement between the parties hereto and Landlord and
Tenant agree that there are no collateral or oral agreements or
understandings between them with respect to the Premises or the
Building. This Amendment supersedes all prior negotiations,
agreements, letters or other statements with respect to Tenant's
expansion of the Premises.
26. This Amendment is expressly conditioned upon U.S. Bancorp, as
guarantor, executing a Lease Guaranty with respect to the Lease
in the form attached hereto as EXHIBIT E and by this reference
made a part hereof.
27. Landlord and Tenant executed and delivered the notice letter
regarding the exercise of Expansion Options and First Offer
Right dated July 19, 1999. The date "August 23, 1999" for the
execution of this Amendment set forth in Paragraph 7 of said
notice letter is hereby extended through the date of this
Amendment.
16
EXCEPT AS expressly amended and modified hereby, the Lease shall
otherwise remain in full force and effect, the parties hereto hereby ratifying
and confirming the same. To the extent of any inconsistency between the Lease
and this Amendment, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Amendment as of the day and year first above written.
TENANT: LANDLORD:
U.S. BANCORP PIPER JAFFRAY RYAN 800, LLC
COMPANIES INC.
By: /s/ Susan E. Lester By: /s/ Timothy M. Gray
--------------------------- ---------------------------------
Name: SUSAN E. LESTER Name: TIMOTHY M. GRAY
--------------------- --------------------------
Its: MANAGING DIRECTOR Its: CHIEF MANAGER
---------------------- ---------------------------
17
CONFIRMATION OF GUARANTY
AND CONSENT OF GUARANTORS
The undersigned Guarantors pursuant to a Completion Guaranty dated March
3, 1998 (the "Guaranty"), in favor of U.S. Bancorp Piper Jaffray Companies,
Inc., a Delaware corporation formerly known as Piper Jaffray Companies, Inc.
("Tenant") with respect to an Office Lease dated March 3, 1998, by and between
Ryan 800, LLC, a Minnesota corporation ("Landlord"), as landlord, and Tenant, as
tenant, as amended by that certain First Amendment to Lease dated May 18, 1998
and that certain Second Amendment to Lease dated July 30, 1999 (collectively,
the "Lease"), hereby consent to the attached Supplemental Amendment Regarding
Expansion Space (the "Agreement"), by and among Landlord and Tenant, (ii)
confirm and agree that the Guaranty continues to be valid and binding obligation
of the undersigned Guarantors pursuant to its terms guaranteeing the Obligations
(as defined in the Guaranty) as the same may be modified by the Agreement, (iii)
affirm and ratify in full the Lease and Guaranty, and (iv) agree that they have
executed and delivered this Confirmation and Consent although it is not required
under Paragraph 7 of the Guaranty and such execution and delivery does not
modify said Paragraph 7 and at Tenant's option no confirmation or consent will
be required for any other amendments or modifications of the Lease.
IN WITNESS WHEREOF, the undersigned have executed this confirmation of
Guaranty and Consent of Guarantors this 29 day of September, 1999.
GUARANTORS: RYAN COMPANIES US, INC., a
Minnesota corporation
By: /s/ Timothy M. Gray
------------------------------
Its: Vice President
-----------------------
RYAN COMPANIES, INC., a
Minnesota corporation
By: /s/ Timothy M. Gray
------------------------------
Its: Vice President
-----------------------
1
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 29 day of
September, 1999 by Timothy M. Gray, the Vice President of Ryan Companies US,
Inc., a Minnesota corporation, on behalf of the corporation.
[SEAL]
PAMELA K. SHIVES
NOTARY PUBLIC - MINNESOTA
My Comm. Expires Jan. 31. 2000
/s/ Pamela K. Shives
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 29 day of
September, 1999 by Timothy M. Gray, the Vice President of Ryan Companies US,
Inc., a Minnesota corporation, on behalf of the corporation.
[SEAL]
PAMELA K. SHIVES
NOTARY PUBLIC - MINNESOTA
My Comm. Expires Jan. 31. 2000
/s/ Pamela K. Shives
2
CONSENT
The undersigned, as holder of that certain Combination Mortgage,
Security Agreement and Fixture Financing Statement dated March 3, 1998 by and
between Ryan 800, LLC, Minnesota limited liability company ("Lessor"), and the
undersigned, filed on March 5, 1998 as Document No. 2893790 in the Office of the
Registrar of Titles, Hennepin County, Minnesota, as amended by that certain
Amended and Restated Combination Mortgage, Security Agreement, and Fixture
Financing Statement-Bridge Loan dated July 22, 1998, by and between Lessor and
undersigned, filed on July 29, 1998 as Document No. 3050507 in the Office of the
Registrar of Titles, Hennepin County, Minnesota (collectively, the "Mortgage"),
encumbering the Land and the Building (as defined in the Lease) hereby consents
to the terms and conditions of the attached Supplemental Amendment Regarding
Expansion Space (the "Amendment") and gives all necessary approvals to the
Amendment required by and under the Mortgage and that certain Subordination,
Non-Disturbance and Attornment Agreement (Office Loan) dated as of July 22,
1998, by and among the undersigned, Lessor and U.S. Bancorp Piper Jaffray
Companies Inc.
U.S. BANK NATIONAL ASSOCIATION
By [ILLEGIBLE]
--------------------------
Its Vice President
-----------------
CONSENT
The undersigned, as holder of that certain Combination Mortgage,
Security Agreement and Fixture Financing Statement dated March 3, 1998 by and
between Ryan 800, LLC, Minnesota limited liability company ("Lessor"), and the
undersigned, filed on March 5, 1998 as Document No. 2893788 in the Office of the
Registrar of Titles, Hennepin County, Minnesota, as amended by that certain
Amended and Restated Combination Mortgage, Security Agreement, and Fixture
Financing Statement-Bridge Loan dated July 22, 1998, by and between Lessor and
undersigned, filed on July 29, 1998 as Document No. 3050505 in the Office of the
Registrar of Titles, Hennepin County, Minnesota (collectively, the "Mortgage"),
encumbering the Land and the Building (as defined in the Lease) hereby consents
to the terms and conditions of the attached Supplemental Amendment Regarding
Expansion Space (the "Amendment") and gives all necessary approvals to the
Amendment required by and under the Mortgage and that certain Subordination,
Non-Disturbance and Attornment Agreement (Bridge Loan) dated as of July 22,
1998, by and among the undersigned, Lessor and U.S. Bancorp Piper Jaffray
Companies Inc.
U.S. BANK NATIONAL ASSOCIATION
By [ILLEGIBLE]
--------------------------
Its Vice President
-----------------
EXHIBITS
EXHIBIT A - Floor Plans for Initial Expansion Space
EXHIBIT B - Description of Approved Base Building Plans and Specifications
EXHIBIT C - Upgrades to Floors 3, 4 and 5
EXHIBIT D - Description of Expansion Options
EXHIBIT E - Guaranty
EXHIBIT 1-1 - Building Shell Condition Requirements for Initial Expansion
Space
EXHIBIT 4-1 - Base Building Scope Documents for Initial Expansion Space
EXHIBIT 5 - Revised Construction Schedule
Exhibit 'B' DESIGN DOCUMENT LIST 8/26/99
EXHIBIT B
800 Nicollet - Piper Jaffray Center
JCD # 1013-000
PROJECT DRAWINGS
Dr.# Description Doc.Date
---------------------------------------------------------------------------------------------
SITE/CIVIL
1 of 4 As-Built Survey 1/13/98
C101 Demolition Excavation & Retention Plan 12/31/97
C201 Site & Grading Plan 5/18/98
C202 Utility Plan 5/18/98
C203 Utility Profiles 5/18/98
C204 Details 5/18/98
C205 Erosion Control Plan 5/18/98
ARCHITECTURAL
AT01 Title & Index to Drawings & Symbols and General Information 3/8/99
AT02 General Information/Symbols Sheet 3/8/99
A0P3 Parking Level 3 - Fire Rated Partition Plan 3/8/99
A0P2 Parking Level 2 - Fire Rated Partition Plan 3/8/99
A0P1 Parking Level 1 - Fire Rated Partition Plan 3/8/99
A001 1st Floor - Fire Rated Partition Plan 3/8/99
A002 2nd Floor - Fire Rated Partition Plan 6/23/99
A003 3rd Floor - Fire Rated Partition Plan 3/8/99
A004 4th Floor - Fire Rated Partition Plan 3/8/99
A005 5th Floor - 10th Floor - Fire Rated Partition Plan 3/8/99
A011 11th Floor - Fire Rated Partition Plan 3/8/99
A012 12th Floor - Fire Rated Partition Plan 3/8/99
A013 13th Floor - Fire Rated Partition Plan 3/8/99
A014 14th Floor - Fire Rated Partition Plan 3/8/99
A015 15th Floor - Fire Rated Partition Plan 3/8/99
A016 16th - 22nd Floor - Fire Rated Partition Plan 3/8/99
A023 23rd Floor - Fire Rated Partition Plan 3/8/99
A024 24th Floor - Fire Rated Partition Plan 3/8/99
A025 25th - 29th Floor - Fire Rated Partition Plan 3/8/99
A029 29th Floor - Fire Rated Partition Plan 3/8/99
A030 30th Floor - Fire Rated Partition Plan 3/8/99
A031 Penthouse & Mezzanine Level - Fire Rated Partition Plan 3/8/99
A1P3A Parking Level 3 - Floor Plan (area A) 3/8/99
A1P3B Parking Level 3 - Floor Plan (area B) 3/8/99
A1P2A Parking Level 2 - Floor Plan (area A) 6/23/99
A1P2B Parking Level 2 - Floor Plan (area B) 6/23/99
A1P1A Parking Level 1 - Floor Plan (area A) 3/8/99
A1P1B Parking Level 2 - Floor Plan (area B) 6/23/99
A101A First Floor - Floor Plan (Area A) 6/23/99
A101B First Floor - Floor Plan (Area B) 3/8/99
A102A Second Floor - Floor Plan (Area A) 6/23/99
A102B Second Floor - Floor Plan (Area B) 6/23/99
A103 3rd Floor Plan 6/23/99
A104 4th Floor Plan 3/8/99
A105 5th Floor Plan 3/8/99
A106 6th Floor Plan 3/8/99
A107 7th Floor Plan 3/8/99
A108 8th Floor Plan 3/8/99
A109 9th Floor Plan 3/8/99
A110 10th Floor Plan 3/8/99
A111 11th Floor Plan 3/8/99
A112 12th Floor Plan 4/26/99
A113 13th Floor Plan 4/26/99
A114 14th Floor Plan 6/23/99
A115 15th Floor Plan 3/8/99
A116 16th Floor Plan 3/8/99
A117 17th Floor Plan 3/8/99
A118 18th Floor Plan 3/8/99
A119 19th Floor Plan 3/8/99
A120 20th Floor Plan 3/8/99
A121 21st Floor Plan 3/8/99
A122 22nd Floor Plan 3/8/99
Page 1
Exhibit 'B' DESIGN DOCUMENT LIST 8/26/99
A123 23th Floor Plan 3/8/99
A124 24th Floor Plan 3/8/99
A125 25th Floor Plan 3/8/99
A126 26th Floor Plan 3/8/99
A127 27th Floor Plan 3/8/99
A128 28th Floor Plan 3/8/99
A129 29th Floor Plan 3/8/99
A130 30th Floor Plan 3/8/99
A131 Penthouse and Mezzanine Level Plan 4/26/99
A132 Roof Plan 3/8/99
A133 Roof Details 3/8/99
A134 Roof Details 3/8/99
A135 Roof Details 3/8/99
A201A First Floor Reflected Ceiling Plan - Area A 6/23/99
A201B First Floor Reflected Ceiling Plan - Area B 3/8/99
A202A Second Floor Reflected Ceiling Plan - Area A 6/23/99
A202B Second Floor Reflected Ceiling Plan - Area B 6/23/99
A203 3rd Floor Reflected Ceiling Plan 3/8/99
A204 4th Floor Reflected Ceiling Plan 3/8/99
A205 5th - 10th Floor Reflected Ceiling Plan 3/8/99
A211 11th Floor Reflected Ceiling Plan 3/8/99
A212 12th Floor Reflected Ceiling Plan 4/26/99
A213 13th Floor Reflected Ceiling Plan 3/8/99
A214 14th Floor Reflected Ceiling Plan 3/8/99
A215 15th Floor Reflected Ceiling Plan 3/8/99
A216 16th - 22nd Floor Reflected Ceiling Plan 3/8/99
A223 23rd Floor Reflected Ceiling Plan 3/8/99
A224 24th Floor Reflected Ceiling Plan 3/8/99
A225 25th - 29th Floor Reflected Ceiling Plan 3/8/99
A226 26th - 29th Reflected Ceiling Plan 3/8/99
A230 30th Floor Reflected Ceiling Plan 3/8/99
A231 Penthouse Level Reflected Ceiling Plan 3/8/99
A300 East Elevation - LaSalle Court Parking Ramp 3/8/99
A301 Exterior Elevations - East 3/8/99
A302 Exterior Elevation - North 3/8/99
A303 Exterior Elevations - West 3/8/99
A304 Exterior Elevation - South 3/8/99
A305 Enlarged Exterior Elevations 3/8/99
A306 Enlarged Exterior Elevations 3/8/99
A307 Enlarged Exterior Elevations 3/8/99
A308 Enlarged Exterior Elevations 3/8/99
A309 Enlarged Exterior Elevations 3/8/99
A310 Enlarged Exterior Elevations 3/8/99
A311 Enlarged Exterior Elevations 3/8/99
A312 Enlarged Exterior Elevations 3/8/99
A313 Enlarged Exterior Elevations 3/8/99
A314 Enlarged Exterior Elevations 3/8/99
A315 Enlarged Exterior Elevations 3/8/99
A400 Schematic Building Cross Section 3/8/99
A401 Building Cross Section 3/8/99
A403 Exterior Wall Sections 3/8/99
A404 Exterior Wall Sections 3/8/99
A405 Exterior Wall Sections 3/8/99
A406 Exterior Wall Sections 3/8/99
A407 Exterior Wall Sections 3/8/99
A408 Sections and Elevations 3/8/99
A409 Sections and Elevations 3/8/99
A410 Sections and Elevations 3/8/99
A411 Exterior Wall Sections 3/8/99
A412 Exterior Wall Sections 3/8/99
A413 Exterior Wall Sections 3/8/99
A414 Exterior Wall Sections 3/8/99
A420 Exterior Wall Sections 3/8/99
A421 Exterior Wall Sections (vertical) 3/8/99
A422 Exterior Wall Sections (vertical) 3/8/99
A423 Exterior Wall Sections (vertical) 3/8/99
A424 Exterior Wall Sections (vertical) 3/8/99
A425 Exterior Wall Sections (vertical) 3/8/99
A426 Exterior Wall Sections (vertical) 3/8/99
Page 2
Exhibit 'B' DESIGN DOCUMENT LIST 8/26/99
A430 Exterior Wall Sections (horizontal) 3/8/99
A431 Exterior Wall Sections (horizontal) 3/8/99
A432 Exterior Wall Sections (horizontal) 3/8/99
A433 Exterior Wall Sections (horizontal) 3/8/99
A434 Exterior Wall Sections (horizontal) 3/8/99
A435 Exterior Wall Sections (horizontal) 3/8/99
A436 Exterior Wall Sections (horizontal) 3/8/99
A437 Exterior Wall Sections (horizontal) 3/8/99
A438 Exterior Wall Sections (horizontal) 3/8/99
A450 Parking Level Ramp Elevators 3/8/99
A451 Parking Level Ramp Sections 3/8/99
A501 Exterior Details 3/8/99
A502 Exterior Details 3/8/99
A503 Exterior Details 3/8/99
A504 Exterior Details 3/8/99
A505 Exterior Details 3/8/99
A506 Exterior Details 3/8/99
A509 Kneewall Area A 3/8/99
A510 Kneewall Area B 3/8/99
A511 Louver Elevations 6/23/99
A512 Miscellaneous Exterior Details 3/8/99
A601 Stair Sections 3/8/99
A602 Elevator and Stair Plans. Details & Sections 3/8/99
A603 Elevator Stair plans. Details & Sections 3/8/99
A605 Skyway Plan & Sections 6/23/99
A606 Skyway Plan & Section 6/23/99
A607 Skyway Plan & Section 6/23/99
A701 Enlarged Core Plans - Levels 3-11 3/8/99
A702 Enlarged Core Plans - Levels 12, 13, 14 4/26/99
A703 Enlarged Core Plans - Levels 15-24 3/8/99
A704 Enlarged Core Plans - Levels 25 - Penthouse Mezzanine 3/8/99
A715 Enlarged Toilet Plans 6/23/99
A716 Enlarged Toilet Plans 6/23/99
A717 Enlarged Toilet Plans & Elevations 3/8/99
A718 Toilet Details 6/23/99
A719 Room Finish Plans - Toilets 6/23/99
A720 Room Finish Plans - Toilets 6/23/99
A721 Enlarged Reflected Ceiling Plans - Toilets 3/8/99
A722 Enlarged Reflected Ceiling Plans - Toilets 4/26/99
A723 Enlarged Area Plans - 1st and 2nd floors 3/8/99
A724 Enlarged Floor Plan - 14th floor 6/23/99
A801 First Floor- Floor Finish Pattern 3/8/99
A802 Second Floor - Floor Finish Pattern 3/8/99
A810 Interior Lobby Elevations 6/23/99
A811 Interior Lobby Elevations 3/8/99
A812 Tenant Elevator Lobby Details 3/8/99
A813 Tenant Elevator Lobby Details 3/8/99
A814 Interior Lobby Elevations 3/8/99
A815 Skyway Level Lobby Details 3/8/99
A816 1st Floor, elevator Lobby Details 3/8/99
A817 Interior Lobby Elevations 3/8/99
A818 Interior Lobby Details 3/8/99
A901 Partition Types and Door Details 6/23/99
A902 Misc. Interior Details 6/23/99
A903 Misc. Interior Details 6/23/99
A904 Interior Sections and Details 6/23/99
STRUCTURAL
S001 General Structural Notes 2/26/99
S002 Typical Details 2/26/99
S003 Typical Details 2/26/99
S010 Footing and Concrete Column Schedules 2/26/99
S020 Steel Column Schedule Low-Rise (1st-14th floor) 2/26/99
S021 Steel Column Schedule High-Rise (1st-14th floor) 2/26/99
S022 Steel Column Schedule High-Rise (15th-PH roof) 2/26/99
S030 Typical Post-tension Details 2/26/99
S040 Post-tension/Conventional Concrete Beam Reinforcing 2/26/99
S050 Two-way Flat Slab Schedule and Details 2/26/99
S101A Parking Level 3 - Framing Plan - Area A 2/26/99
Page 3
Exhibit 'B' DESIGN DOCUMENT LIST 8/26/99
S101B Parking Level 3 - Framing Plan - Area B 2/26/99
S102A Parking Level 2 - Framing Plan - Area A 2/26/99
S102B Parking Level 2 - Framing Plan - Area B 2/26/99
S103A Parking Level 1 - Framing Plan - Area A 2/26/99
S103B Parking Level 1 - Framing Plan - Area B 2/26/99
S150 Foundation Sections & Details 2/26/99
S151 Foundation Sections & Details 2/26/99
S152 Foundation Sections & Details 2/26/99
S153 Foundation Sections & Details 2/26/99
S170 Sections and Details 2/26/99
S171 Sections and Details 2/26/99
S172 Sections and Details 2/26/99
S174 Sections and Details 2/26/99
S175 Sections and Details 2/26/99
S180 Sections and Details 2/26/99
S181 Sections and Details 2/26/99
S182 Sections and Details 2/26/99
S183 Sections and Detail 2/26/99
S184 Sections and Detail 2/26/99
S201A First Level (Street) - Framing Plan - Area A 2/26/99
S201B First Level (Street) - Framing Plan - Area B 2/26/99
S201C Loading Dock Framing Plan 2/26/99
S202A 2nd Level (Skyway) - Framing Plan - Area A 2/26/99
S202B 2nd Level (Skyway) - Framing Plan - Area B 2/26/99
S203A 3rd Level Floor Framing Plan - Area A 2/26/99
S203B 3rd Level Floor/Roof Framing Plan - Area B 2/26/99
S204A 4th Level Floor/Mech Roof Framing Plan - Area A 2/26/99
S204B 4th Level Floor/Mech Roof Framing Plan - Area B 2/26/99
S205A 5th Level Floor Framing Plan - Area A 2/26/99
S205B 5th Level Floor Framing Plan - Area B 2/26/99
S206A 6th Level Floor Framing Plan - Area A 2/26/99
S206B 6th Level Floor Framing Plan - Area B 2/26/99
S211A 11th Level Floor Framing Plan - Area A 2/26/99
S211B 11th Level Floor Framing Plan - Area B 2/26/99
S212A 12th Level Floor Framing Plan - Area A 2/26/99
S212B 12th Level Floor Framing Plan - Area B 2/26/99
S213A 13th Level Floor Framing Plan - Area A 2/26/99
S213B 13th Level Floor Framing Plan - Area B 2/26/99
S214A 14th Level Floor Framing Plan - Area A 2/26/99
S214B 14th Level Floor Framing Plan - Area B 2/26/99
S215 15th Level Floor Framing Plan 2/26/99
S216 16th thru 22nd Floor Framing Plan 2/26/99
S223 23rd Level Floor Framing Plan 2/26/99
S224 24th Level Floor Framing Plan 2/26/99
S225 25th Level Floor Framing Plan 2/26/99
S226 26th thru 29th Floor Framing Plan 2/26/99
S230 30th Level Floor Framing Plan 2/26/99
S231 Upper Penthouse Floor Framing Plan 2/26/99
S232 Mezzanine Floor Framing Plan 2/26/99
S233 Roof Framing Plan 2/26/99
S234 Partial Framing Plan 2/26/99
S235 Partial Framing Plans 2/26/99
S236 High Rise Canopy Plan and Details 2/26/99
S300 South Core Wall Reinforcing Elevations 2/26/99
S301 North Core Wall Reinforcing Elevations 2/26/99
S302 East Core Wall Reinforcing Elevations 2/26/99
S303 West Core Wall Reinforcing Elevations 2/26/99
S304 Interior Core Wall Reinforcing Elevations 2/26/99
S305 Interior Core Wall Reinforcing Elevations 2/26/99
S400 Floor Framing Section and Details 2/26/99
S401 Floor Framing Section and Details 2/26/99
S402 Elevator Divider Beams Elevation 2/26/99
S403 Floor Framing Sections and Details 2/26/99
S404 Floor Framing Sections and Details 2/26/99
S405 Floor Framing Sections and Details 2/26/99
S406 Floor Framing Sections and Details 2/26/99
S407 Floor Framing Sections and Details 2/26/99
S408 Floor Framing Sections and Details 2/26/99
S409 Floor Framing Sections and Details 2/26/99
Page 4
Exhibit 'B' DESIGN DOCUMENT LIST 8/26/99
S410 Floor/Roof Framing Sections and Details 2/26/99
S500 Skyway Bridge Plans and Details 2/26/99
B 1/2 X 11 SHEETS
B4-TS1 Optional cont footing @ non-load brg masonry wall 11/18/98
B4-TS2 CMU Wall reinforcing grouting diagram 11/18/98
B4-TS3 Typ lintel schedule 11/18/98
B4-TS4 Partial P-1 level plan 11/18/98
B4-TS5 Core bank elevator pit service level (EL 131'-5") 11/18/98
B4-TS6 Section @ concrete stair 11/18/98
B4-TS7 Partial loading dock framing plan 11/18/98
B4-TS8 Partial 2nd floor framing plan 11/18/98
B4-TS9 Partial 3rd floor framing plan 11/18/98
B4-TS10 Partial 3rd floor framing plan 11/18/98
B4-TS11 Partial 12th floor framing plan 11/18/98
B4-TS12 Partial 13th floor framing plan 11/18/98
B4-TS13 Partial penthouse floor framing plan 11/18/98
B4-TS14 Partial penthouse floor framing plan 11/18/98
B4-TS15 2nd floor machine room framing plan 11/18/98
B4-TS16 24th floor machine room framing plan 11/18/98
B4-TS17 32nd floor machine room framing plan 11/18/98
B4-TS18 Typical slab edge detail 11/18/98
B4-TS19 Typical add'l reinf. req'd at comp/formdeck slab openings 11/18/98
B4-TS20 Section @ level 2 exit ramp lintel 11/18/98
B4-TS21 Section @ level 2 bridge 11/18/98
B4-TS22 Section @ level 2 garage elevator machine room 11/18/98
B4-TS23 Section @ level 2 11/18/98
B4-TS24 Section @ level 2 11/18/98
B4-TS25 Section @ level 2 11/18/98
B4-TS26 Section @ tie back 11/18/98
B4-TS27 Section @ davit support @ BM 11/18/98
B4-TS28 Section @ davit support @ col 11/18/98
B4-TS29 Typ sect @ cooling tower raised framing 11/18/98
B4-TS30 Partial 1st level (street) framing plan 11/18/98
B4-TS31 Partial 2nd floor framing plan 11/18/98
B4-TS32 Section @ WF pest 11/18/98
MECHANICAL (HORWITZ, INC.)
P000 Cover Sheet 3/8/99
P001 Level One Parking 3/8/99
P002 Level Two Parking 6/23/99
P002A Level Two Steam Room 4/26/99
P003 Level Three Parking 6/23/99
P101 Floor One 3/8/99
P102 Floor Two 6/23/99
P102A Skyway Piping 3/8/99
P103 Floor Three 4/26/99
P104 Floor Four 3/8/99
P105 Floor Five 4/26/99
P106 Floor Six 3/8/99
P107 Floor Seven 4/26/99
P108 Floor Eight 3/8/99
P109 Floor Nine 4/26/99
P110 Floor Ten 3/8/99
P111 Floor Eleven 4/26/99
P112 Floor Twelve 6/23/99
P113 Floor Thirteen 6/23/99
P114 Floor Fourteen 6/23/99
P115 Floor Fifteen 3/8/99
P116 Floor Sixteen 3/8/99
P117 Floor Seventeen 4/26/99
P118 Floor Eighteen 3/8/99
P119 Floor Nineteen 3/8/99
P120 Floor Twenty 3/8/99
P121 Floor Twenty-One 3/8/99
P122 Floor Twenty-Two 3/8/99
P123 Floor Twenty-Three 4/26/99
P124 Floor Twenty-Four 3/8/99
P125 Floor Twenty-Five 3/8/99
Page 5
Exhibit 'B' DESIGN DOCUMENT LIST 8/26/99
P126 Floor Twenty-Six 3/8/99
P127 Floor Twenty-Seven 3/8/99
P128 Floor Twenty-Eight 3/8/99
P129 Floor Twenty-Nine 3/8/99
P130 Floor Thirty 3/8/99
P131 Floor Thirty-One 4/26/99
P132 Floor Thirty-One Chiller Room 4/26/99
P200 Waste Vent. and Water Risers 3/8/99
P201 Storm Heating. Cooling and Steam Risers 3/8/99
P202 Heating/Cooling isometrics 3/8/99
P203 Details 3/8/99
P204 Schedules 3/8/99
MECHANICAL (MASTER MECHANICAL)
V001 Specifications Symbols Abbreviations and Sheet Index 8/13/99
V1P3A Parking Level Three - Area 'A' HVAC Plan 3/8/99
V1P3B Parking Level Three - Area 'B' HVAC Plan 3/8/99
V1P2A Parking Level Two - Area 'A' HVAC Plan 3/8/99
V1P2B Parking Level Two - Area 'B' HVAC Plan 3/8/99
V1P1A Parking Level One - Area 'A' HVAC Plan 3/8/99
V1P1B Parking Level One - Area 'B' HVAC Plan 3/8/99
V1P1C Parking Level One (LaSalle) - Area 'C' HVAC Plan 3/8/99
V1P1D Parking Level One (LaSalle) - Area 'D' HVAC Plan 3/8/99
V101A 1st Floor Area 'A' HVAC Plan 3/8/99
V101B 1st Floor Area 'B' HVAC Plan 3/8/99
V102A 2nd Floor Area 'A' HVAC Plan 6/23/99
V102B 2nd Floor Area 'B' HVAC Plan 6/23/99
V103A 3rd Floor Area 'A' HVAC Plan 3/8/99
V103B 3rd Floor Area 'B' HVAC Plan 3/8/99
V104A 4th Floor Area 'A' HVAC Plan 8/13/99
V104B 4th Floor Area 'B' HVAC Plan 8/13/99
V105A 5th Floor Area 'A' HVAC Plan 8/13/99
V105B 5th Floor Area 'B' HVAC Plan 8/13/99
V106A 6th Floor Area 'A' HVAC Plan 8/13/99
V106B 6th Floor Area 'B' HVAC Plan 8/13/99
V107A 7th Floor Area 'A' HVAC Plan 8/13/99
V107B 7th Floor Area 'B' HVAC Plan 8/13/99
V108A 8th Floor Area 'A' HVAC Plan 8/13/99
V108B 8th Floor Area 'B' HVAC Plan 8/13/99
V109A 9th Floor Area 'A' HVAC Plan 8/13/99
V109B 9th Floor Area 'B' HVAC Plan 8/13/99
V110A 10th Floor Area 'A' HVAC Plan 8/13/99
V110B 10th Floor Area 'B' HVAC Plan 8/13/99
V111A 11th Floor Area 'A' HVAC Plan 8/13/99
V111B 11th Floor Area 'B' HVAC Plan 8/13/99
V112A 12th Floor Area 'A' HVAC Plan 8/13/99
V112B 12th Floor Area 'B' HVAC Plan 8/13/99
V113A 13th Floor Area 'A' HVAC Plan 8/13/99
V113B 13th Floor Area 'B' HVAC Plan 8/13/99
V114 14th Floor Mechanical Room Plan 4/26/99
V115 15th Floor HVAC Plan 3/8/99
V116 16th Floor HVAC Plan 3/8/99
V117 17th Floor HVAC Plan 3/8/99
V118 18th Floor HVAC Plan 3/8/99
V119 19th Floor HVAC Plan 3/8/99
V120 20th Floor HVAC Plan 3/8/99
V121 21st Floor HVAC Plan 3/8/99
V122 22nd Floor HVAC Plan 3/8/99
V123 23rd Floor HVAC Plan 3/8/99
V124 24th Floor HVAC Plan 3/8/99
V125 25th Floor HVAC Plan 3/8/99
V126 26th Floor HVAC Plan 3/8/99
V127 27th Floor HVAC Plan 3/8/99
V128 28th Floor HVAC Plan 3/8/99
V129 29th Floor HVAC Plan 3/8/99
V130 30th Floor HVAC Plan 3/8/99
V131 Penthouse HVAC Plan 3/8/99
V132 Penthouse Mezzanine HVAC Plan 3/8/99
Page 6
Exhibit 'B' DESIGN DOCUMENT LIST 8/26/99
V201 3rd Floor Mechanical Room & Garage Exh. Elevations 3/8/99
V202 14th Floor Mechanical Elevations 4/26/99
V203 14th Floor AHU-t 2 3. 4 Weights & Locations 3/8/99
V301 Toilet and General Exhaust Risers Plan 3/8/99
V302 Toilet and General Exhaust Risers Plan 3/8/99
V303 AHU-3 Supply Riser 2nd-10th Floors 3/8/99
V304 AHU-2 Supply Riser 14th-30th Floors 4/26/99
V305 AHU-1 Supply Riser Plan 14th-30th Floors 4/26/99
V306 AHU-4.3 Supply Riser Plan 3rd-14th Floors 3/8/99
V321 Pressurization Stair 'A' Plan 3/8/99
V322 Pressurization Stair 'B' Plan 3/8/99
V323 Pressurization Stair 'C','D','E' Plan 3/8/99
V401 Mechanical HVAC Details 3/8/99
V402 Smoke Control Diagrams 3/8/99
V403 Stair Press & Elevator Relief Diagrams 3/8/99
V404 Life Safety Damper Schedules & Sequence 3/8/99
V501 Mechanical Equipment Schedules 8/13/99
V502 Fan Powered VAV Schedules 8/13/99
V503 Cooling Only VAV Schedules 8/13/99
8 1/2 X 11 SHEETS
SS V1P2A.1 Parking level 2 - area A - HVAC plan 11/18/98
SS V102A.1 2nd floor - area A - HVAC plan 11/18/98
SS V105A.1 5th floor - area A - HVAC plan 11/18/98
SS V107A.1 7th floor - area A - HVAC plan 11/18/98
SS V110A.1 10th floor - area A - HVAC plan 11/18/98
SS V111A.1 11th floor - area A - HVAC plan 11/18/98
SS V112A.1 12th floor - area A - HVAC plan 11/18/98
SS V112B.1 12th floor - area A - HVAC plan 11/18/98
SS V113A.1 13th floor - area A - HVAC plan 11/18/98
SS V323.1 Pressurization stair C plan 11/18/98
ELECTRICAL (HUNT ELECTRIC)
E00 Cover Sheet 3/8/99
EP3SLP Part. Parking Level 3 Floor Plan - Lighting, Power, Signal 4/26/99
EP3NLP Part. Parking Level 3 Floor Plan - Lighting, Power, Signal 6/23/99
EP2SLP Part. Parking Level 2 Floor Plan - Lighting, Power, Signal 6/23/99
EP2NLP Part. Parking Level 2 Floor Plan - Lighting, Power, Signal 3/8/99
EP1SL Part. Parking Level 1 Floor Plan - Lighting 3/8/99
EP1NL Part. Parking Level 1 Floor Plan - Lighting 3/8/99
EP1SP Part. Parking Level 1 Floor Plan - Power, Signal 6/23/99
EP1NP Part. Parking Level 1 Floor Plan - Power, Signal 4/26/99
EP1NPD Miscellaneous Details - Power, Signal 4/26/99
E1SL Parking Street Level 1 Floor Plan - Lighting 6/23/99
E1NL Parking Street Level 1 Floor Plan - Lighting 6/23/99
E1SP Part. Street Level Floor Plan - Power, Signal 6/23/99
E1NP Part. Street Level Floor Plan - Power, Signal 3/8/99
E2SL Part. Skyway Level Floor Plan - Lighting 6/23/99
E2NL Part. Skyway Level Floor Plan - Lighting 6/23/99
E2SP Part. Skyway Level Floor Plan - Power, Signal 6/23/99
E2NP Part. Skyway Level Floor Plan - Power, Signal 6/23/99
E3LP 3rd Level Floor Plan - Lighting, Power, Signal 4/26/99
E4LP 4th Level Floor Plan - Lighting, Power, Signal 3/8/99
E5LP 5th Level Floor Plan - Lighting, Power, Signal 3/8/99
E6LP 6th Level Floor Plan - Lighting, Power, Signal 3/8/99
E7LP 7th Level Floor Plan - Lighting, Power, Signal 3/8/99
E8LP 8th Level Floor Plan - Lighting, Power, Signal 3/8/99
E9LP 9th Level Floor Plan - Lighting, Power, Signal 3/8/99
E10LP 10th Level Floor Plan - Lighting, Power, Signal 3/8/99
E11LP 11th Level Floor Plan - Lighting, Power, Signal 3/8/99
E12LP 12th Level Floor Plan - Lighting, Power, Signal 6/23/99
E13LP 13th Level Floor Plan - Lighting, Power, Signal 4/26/99
E14LP 14th Level Floor Plan - Lighting, Power, Signal 5/23/99
E15LP 15th Level Floor Plan - Lighting, Power, Signal 3/8/99
E16LP 16th Level Floor Plan - Lighting, Power, Signal 3/8/99
E17LP 17th Level Floor Plan - Lighting, Power, Signal 3/8/99
E18LP 18th Level Floor Plan - Lighting, Power, Signal 3/8/99
E19LP 19th Level Floor Plan - Lighting, Power, Signal 3/8/99
E20LP 20th Level Floor Plan - Lighting, Power, Signal 3/8/99
Page 7
Exhibit 'B' DESIGN DOCUMENT LIST 8/26/99
E21LP 21st Level Floor Plan - Lighting, Power, Signal 3/8/99
E22LP 22nd Level Floor Plan - Lighting, Power, Signal 3/8/99
E23LP 23rd Level Floor Plan - Lighting, Power, Signal 3/8/99
E24LP 24th Level Floor Plan - Lighting, Power, Signal 3/8/99
E25LP 25th Level Floor Plan - Lighting, Power, Signal 3/8/99
E26LP 26th Level Floor Plan - Lighting, Power, Signal 3/8/99
E27LP 27th Level Floor Plan - Lighting, Power, Signal 3/8/99
E28LP 28th Level Floor Plan - Lighting, Power, Signal 3/8/99
E29LP 29th Level Floor Plan - Lighting, Power, Signal 6/23/99
E30LP 30th Level Floor Plan - Lighting, Power, Signal 3/8/99
EPHLP Upper Penthouse Level Floor Plan - Lighting, Power, Signal 4/26/99
EPHMLP Penthouse Mezzanine Level Floor Plan - Lighting, Power, Signal 3/8/99
E31 Light Fixture Schedule 6/23/99
E32 Service and Feeder 4/25/99
E33 Secondary Main Switchboard/Panelboard Schedules 4/26/99
E34 Panelboard Schedules 3/8/99
E35 Panelboard Schedules 3/8/99
E36 Power and Distribution Schedules 3/8/99
E37 Motor Control Center Schedules 3/8/99
E38 Motor & Equipment Schedule 5/23/99
E39 Lightning Protection System 10/14/98
EP3FA Parking Level 3 - Floor Plan - Fire Alarm 10/14/98
EP2FA Parking Level 2 - Floor Plan - Fire Alarm 6/23/99
EP1FA Parking Level 1 - Floor Plan - Fire Alarm 6/23/99
E1FA Street Level 1 - Floor Plan - Fire Alarm 10/14/98
E2FA Skyway Level - Floor Plan - Fire Alarm 10/14/98
E3FA 3rd Level - Floor Plan - Fire Alarm 10/14/98
E4FA 4th Level - Floor Plan - Fire Alarm 10/14/98
E5FA 5th Level - Floor Plan - Fire Alarm 10/14/98
E6FA 6th Level - Floor Plan - Fire Alarm 10/14/98
E7FA 7th Level - Floor Plan - Fire Alarm 10/14/98
E8FA 8th Level - Floor Plan - Fire Alarm 10/14/98
E9FA 9th Level - Floor Plan - Fire Alarm 10/14/98
E10FA 10th Level - Floor Plan - Fire Alarm 10/14/98
E11FA 11th Level - Floor Plan - Fire Alarm 10/14/98
E12FA 12th Level - Floor Plan - Fire Alarm 10/14/98
E13FA 13th Level - Floor Plan - Fire Alarm 10/14/98
E14FA 14th Level - Floor Plan - Fire Alarm 10/14/98
E15FA 15th Level - Floor Plan - Fire Alarm 10/14/98
E16FA 16th Level - Floor Plan - Fire Alarm 10/14/98
E17FA 17th Level - Floor Plan - Fire Alarm 10/14/98
E18FA 18th Level - Floor Plan - Fire Alarm 10/14/98
E19FA 19th Level - Floor Plan - Fire Alarm 10/14/98
E20FA 20th Level - Floor Plan - Fire Alarm 10/14/98
E21FA 21st Level - Floor Plan - Fire Alarm 10/14/98
E22FA 22nd Level - Floor Plan - Fire Alarm 10/14/98
E23FA 23rd Level - Floor Plan - Fire Alarm 10/14/98
E24FA 24th Level - Floor Plan - Fire Alarm 10/14/98
E25FA 25th Level - Floor Plan - Fire Alarm 10/14/98
E26FA 26th Level - Floor Plan - Fire Alarm 10/14/98
E27FA 27th Level - Floor Plan - Fire Alarm 10/14/98
E28FA 28th Level - Floor Plan - Fire Alarm 10/14/98
E29FA 29th Level - Floor Plan - Fire Alarm 6/23/99
E30FA 30th Level - Floor Plan - Fire Alarm 10/14/98
EPHFA Upper Penthouse Level - Floor Plan - Fire Alarm 10/14/98
EPHMFA Penthouse Mezzanine Level - Floor Plan - Fire Alarm 10/14/98
EFAD1 Fire Alarm - System Details 10/14/98
UP5 & NER DRAWINGS - MICHAUD COOLEY ERICKSON
M.0 Mechanical symbols & drawing index - MCE 6/1/99
M2.1 Parking Level P2 plumbing & fire protection partial plan - MCE 6/1/99
M2.2 8th floor plumbing & fire protection partial plan - MCE 7/26/99
M3.1 Parking level P2 HVAC partial plan - MCE 6/1/99
M3.2 8th floor HVAC partial plan - MCE 7/26/99
M4.1 Mechanical details & schedules - MCE 6/1/99
E.0 Electrical symbols drawing index & schedules - MCE 6/1/99
E1.1 Partial parking level P2 lighting plan - MCE 6/1/99
E1.2 Partial level B lighting plan - MCE 8/3/99
E2.1 Partial parking level P2 power & systems plan - MCE 8/1/99
Page 8
Exhibit 'B' DESIGN DOCUMENT LIST 8/26/99
E2.2 Partial parking P1 level power & systems plan 6/1/99
E2.3 Partial parking street level power & systems plan 6/1/99
E2.4 Partial parking skyway level power & systems plan 6/1/99
E2.5 Partial level 8 power & systems plan 7/21/99
E2.6 Partial level 8 power & systems plan 8/3/99
E2.7 God gounding diagram 6/1/99
E3.1 Electrical diagrams 7/19/99
E4.1 Schedules 5/1/99
E4.2 PDU schedules 6/1/99
E5.1 One line diagram 8/3/99
ELEVATOR DRAWINGS (LERCH BATES NORTH AMERICA INC)
VT1 General Elevator & Escalator Information 3/16/98
VT2 Plans and Section Trading Floor Elevators 1-4 3/16/98
VT3 Plans and Sections Low Rise Elevators 5-12 3/16/98
VT4 Hoistway. Pit. Machine Room Plans Mid-rise Elevators 13-18 3/16/98
VT4A Buffer access Plan and Section mid-rise Elevators 13-18 3/16/98
VT5 Plans and Section High Rise elevators 19-23 3/16/98
VT5A Buffer Access Level Plan and Section High Rise Elevators 19-23 3/16/98
VT6 Plans and Section Parking/Shuttle Elevators 24 and 25 3/16/98
VT7 Plans and Section Service Elevators 26 and 27 3/16/98
VT8 Plans and Section Escalators 1 and 2 and Elevator 28 3/16/98
Page 9
EXHIBIT C
U.S. BANCORP PIPER JAFFRAY CENTER
EXISTING UPGRADES INSTALLED THIRD, FOURTH AND FIFTH FLOORS
FLOORS
3 4 5
-----------------------------
General Exhaust Capacity to add 500 CFM per 25,000 USF Yes Yes Yes
Toilet Exhaust Capacity to add 100 CFM per 25,000 USF Yes Yes Yes
Lighting and Separately Metered Switchboard No Yes Yes
Convenience Surge Suppression Yes Yes Yes
Power -
Two Electrical (1) 480/227 panelboard in each Yes Yes Yes
Closets (2) 480/120/208 panelboards in each Yes Yes Yes
Electronic grade 225 amp - 42 circuit Yes Yes Yes
breakers
Humidification Up to 25% Yes Yes Yes
Fan Powered Perimeter Yes Yes Yes
Thermal Units Interior No Yes Yes
HVAC Sized per (1) person per ▇▇▇ ▇▇▇; 5%
excess capacity -- Yes Yes
Sized per (1) person per 144 USF; no
excess capacity Yes -- --
NOTE: THE THIRD FLOOR STANDARD CAN BE INCREASED TO THE 125 USF/5% EXCESS
CAPACITY AT THE TENANT'S COST; HOWEVER THE 144 USF NO EXCESS CAPACITY STANDARD
IS THE MAXIMUM IN FLOORS 15 THRU 30
Plumbing fixtures Code plus 1 Yes Yes Yes
(men and woman)
Elevatoring 17% Handling Capacity Yes Yes Yes
EXHIBIT D
The First Expansion Space, Second Expansion Space, Third Expansion Space, Fourth
Expansion Space and Fifth Expansion Space are described in the chart below for
the respective Expansion Options. As provided in Section 1 of this Amendment,
Tenant may elect, on or before April 1, 2000, to increase or decrease the
Initial Expansion Space pursuant to Option 1, Option 2, Option 3 or Option 4
described therein. The Expansion Space applicable to each Expansion Option shall
be determined on April 1, 2000 depending on which, if any, of said four options
Tenant exercises and shall be the Expansion Space described below under the
column relating thereto.
EXPANSION SPACE
No Option Exercised Tenant Exercises Tenant Exercises
(Initial Expansion Option 1 (Add Option 2 (Add balance Tenant Exercises Tenant Exercises Option 4
Space does not balance on Floor on Floor 23 and 1/2 of Option 3 (Delete (Delete Space on Floor 23)
change) 23) Floor 24) space on Floor 23) and 1/2 of Floor 22)
---------------------------------------------------------------------------------------------------------------------------------
First Expansion Remainder of Entire Floor 24 Remainder of Floor 24 Entire Floor 23 Reminder of Floor 22
Option Floor 23
October 1, 2004
Second Expansion Entire Floor 24 Entire Floor 25 Entire Floor 25 Entire Floor 24 Entire Floor 23
Option
October 1, 2006
Third Expansion Entire floors Entire Floor 26 Entire Floor 26 Entire Floors Entire Floors
Option 25 and 26 25 and 26 24 and 25
October 1, 2008
Fourth Expansion Entire Floors Entire Floors Entire Floors Entire Floors Entire Floors
Option 27 and 28 27 and 28 27 and 28 27 and 28 26 and 27
October 1, 2010
Fifth Expansion Entire Floors Entire Floors Entire Floors 29 Entire Floors 29 Entire Floors 28
Option 29 and 30 29 and 30 and 30 and 30 and 29
October 1, 2012
EXHIBIT E
LEASE GUARANTY
WHEREAS, ▇▇▇▇ 800, LLC, Minnesota limited liability company, hereinafter
referred to as "Landlord" and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES, INC., a
Delaware corporation, hereinafter referred to as "Tenant" have simultaneously
executed that certain Supplemental Amendment Regarding Expansion Space for
additional premises at a building to be constructed in Minneapolis, Minnesota,
(the "Amendment") which amends and supplements that certain Office Lease dated
March 3, 1998, as previously amended (said Office Lease, as previously amended,
together with the Amendment is herein collectively referred to as the "Lease")
WHEREAS, U.S. Bancorp, hereinafter referred to as "Guarantor", is the
parent company of and has a financial interest in Tenant;
WHEREAS, Landlord would not enter into the Amendment with Tenant if
Guarantor did not execute and deliver to Landlord this Lease Guaranty (this
"GUARANTY"), and
WHEREAS, this Guaranty is being executed and delivered simultaneously
with the execution and delivery of the Amendment;
NOW THEREFORE, for and in consideration of the execution of the
foregoing Amendment by Landlord and as a material inducement to Landlord to
execute the Amendment, Guarantor hereby jointly, severally, unconditionally and
irrevocably guarantees the prompt payment by Tenant of all rentals and all other
sums payable by Tenant under the Lease and the faithful and prompt performance
by Tenant of each and every one of the terms, conditions and covenants of the
Lease to be kept and performed by Tenant as such as defined in the Lease. The
reduction of or limitation on any liabilities of Tenant under the Lease pursuant
to any federal or state bankruptcy or insolvency proceeding shall not cause a
reduction in or otherwise affect the liabilities or obligations of Guarantor
under this Guaranty.
It is specifically agreed and understood that the terms of the foregoing
Lease may be altered, affected, modified or changed by agreement between
Landlord and Tenant, or by a course of conduct, and the Lease may be assigned by
Landlord or any assignee of Landlord pursuant to the Lease without consent or
notice to Guarantor and that this Guaranty shall thereupon and thereafter
guarantee the performance of the Lease as so changed, modified, altered or
assigned.
This Guaranty shall not be released, modified or affected by failure or
delay on the part of Landlord to enforce any of the rights or remedies of the
Landlord under the Lease, whether pursuant to the terms thereof or at law or in
equity. No notice of default need be given to Guarantor, it being specifically
agreed and understood that the guarantee of the undersigned is a continuing
guarantee under which Landlord may proceed forthwith and immediately against
E-1
Tenant or against Guarantor following any Event of Default by Tenant or for the
enforcement of any rights which Landlord may have as against Tenant after an
Event of Default pursuant to or under the terms of the Lease or at a law or in
equity.
Landlord shall have the right to proceed against Guarantor hereunder
following any Event of Default by Tenant without first proceeding against Tenant
and without previous notice to or demand upon either Tenant or Guarantor.
Guarantor hereby waives (a) notice of acceptance of this Guaranty, (b)
demand of payment, presentation and protest, (c) all right to assert or plead
any statute of limitations as to or relating to this Guaranty and the Lease,
provided such waiver shall not affect any right which Tenant may have, (d) any
right to require the Landlord to proceed against the Tenant or any other
Guarantor or any other person or entity liable to Landlord, (e) any right to
require Landlord to apply to any default any security deposit or other security
it may hold under the Lease, (f) any right to require Landlord to proceed under
any other remedy Landlord may have before proceeding against Guarantor and (g)
any right of subrogation.
The term "Landlord" whenever used in this Guaranty refers to and means
the Landlord specifically named in the Lease and also any assignee of the
Landlord, whether by outright assignment or by assignment for security, and also
any successor to the interest of said Landlord or of any assignee in the Lease
or any part thereof pursuant to the Lease, whether by assignment or otherwise.
So long as the Landlord's interest in or to the Premises or the rents, issues
and profits therefrom, or in, to or under the said lease, are subject to any
mortgage or deed of trust or assignment for security, no acquisition by
Guarantor of the Landlord's interest in the Premises or under the Lease shall
affect the continuing obligation of Guarantor under this Guaranty, which shall
nevertheless continue in full force and effect for the benefit of the mortgagee,
beneficiary, trustee or assignee under such mortgage, deed of trust or
assignment, of any purchase at sale by judicial foreclosure or under private
power of sale, and of the successors and assigns of any such mortgagee,
beneficiary, trustee, assignee or purchaser. The term "Tenant" whenever used in
this Guaranty refers to and means the Tenant specifically named in the Lease and
also any assignee or sublessee of the Lease and also any successor to the
interests of the Tenant, assignee or sublessee of the Lease or any part thereof,
whether by assignment, sublease or otherwise.
The obligations of the Guarantor hereunder shall include payment to
Landlord of all reasonable costs of any successful legal action by Landlord
against Guarantor, including reasonable attorneys' fees.
This Guaranty, all acts and transactions hereunder and the rights and
obligations of the parties hereto shall be governed by and construed and
enforced in accordance with the laws of the State of Minnesota. As part of the
consideration for Landlord's entering into the Lease which this Guaranty is a
part, the Guarantor hereby agrees that all actions or proceedings arising
directly or indirectly hereunder may, at the option of Landlord, be litigated in
courts having situs within the State of Minnesota, and the Guarantor hereby
expressly consents to the jurisdiction of any such local, state or federal
court, and consents that any service of process in such action or proceeding may
be made by personal service upon the Guarantor wherever the Guarantor may
E-2
then be located, or by certified or registered mail directed to such Guarantor
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel.
IN WITNESS WHEREOF, the Guarantor has executed this Lease Guaranty under
seal as of this ________ day of ____________, 1999.
U.S. BANCORP
By:
---------------------------------
Title:
------------------------------
[CORPORATE SEAL]
E-3
EXHIBIT A
(TO EXHIBIT 1-1)
VAV BOXES
FLOOR TOTAL QTY. VAV BOXES QUANTITY STOCKPILED (QTY) @ SIZES
15 16 16 (1) 8", (3) 12", (12) 14"
16 16 16 (1) 8", (3) 12", (12) 14"
17 16 16 (1) 8", (3) 12", (12) 14"
18 16 16 (1) 8", (3) 12", (12) 14"
19 16 16 (1) 8", (3) 12", (12) 14"
20 16 16 (1) 8", (3) 12", (12) 14"
21 16 16 (1) 8", (3) 12", (12) 14"
22 16 16 (1) 8", (3) 12", (12) 14"
23 16 16 (1) 8", (3) 12", (12) 14"
24 16 16 (1) 8", (3) 12", (12) 14"
25 16 16 (1) 8", (3) 12", (12) 14"
26 16 16 (1) 8", (2) 12", (1) 10", (12) 14"
27 16 16 (1) 8", (2) 12", (1) 10", (12) 14"
28 16 16 (1) 8", (2) 12", (1) 10", (12) 14"
29 16 16 (1) 8", (3) 12", (12) 14"
30 16 16 (1) 8", (2) 12", (1) 10", (12) 14"
Notes:
1. A controller is mounted on each VAV box.
2. Thermostats and thermostat wiring are not included
EXHIBIT 1-1
BASE BUILDING SHELL CONDITION REQUIREMENTS FOR INITIAL EXPANSION SPACE
1. FLOOR FINISHES. Concrete slab cleaned and leveled to 1/4"
tolerance within a 10'0" x 10'0" given area (tolerances are not cumulative,
elevator ▇▇▇▇▇ are to be established elevation 0'0"). Areas leveled subsequent
to initial pouring of slab to be sealed after setting. Finished surfaces to be
ready to receive carpet, ceramic tile, resilient tile, wood parquet or stone
flooring without additional preparation other than cleaning.
2. FLOOR LOADING. Floor loads shall be per applicable codes and
base building standards throughout but not less than 50 pounds per square foot
dead load plus 20 pounds per square foot for partitions. All areas within the
core perimeter should accommodate 150 pounds per square foot of dead load and
the Area immediately adjacent to the core perimeter should accommodate 100
pounds per square foot live load.
3. OTHER PERIMETER FINISHES. Building perimeters shall be fully
finished with respect to insulation, waterproofing, caulking, glazing and metal
finishing including all required glass replacement (in the event defects or
cracked or broken panes), glass cleaning on interior and exterior, metal touch
up and cleaning and any other actions required to render the perimeters to a
tenant-ready condition. Building standard window coverings shall be provided and
installed by Landlord just before occupancy.
4. OTHER CORE FINISHES. The following shall be required to be
completed and installed at agreeable locations:
(a) Women's and men's restrooms. Restrooms should be
designed to provide flexibility in distribution of stalls between men's
and women's, and at a minimum shall provide code required stalls plus 1
for men and women on each floor. At floors 15 through 22, the women's
bathroom is provided with only code required stalls. Accessible
restrooms shall be provided on each floor (or as required by the city);
(b) If telephone closets have exposed steel columns with
fireproofing material present, acoustical ceilings shall be installed.
Plywood on walls shall be installed, as required, by Tenant;
(c) Electrical closets with service and distribution
panelboards and transformers 480/277V, 120/208V, (See Paragraph 9
below);
(d) Core walls, columns and perimeter bulkhead completed
with finished drywall ready for paint;
(e) Water coolers shall be provided at a rate of one per
10,000 usable square feet at floors 3, 4, and 5 and one per 14,000
usable square feet at floors 15 through 30;
(f) Fire sprinklers as required by code, based on 100% open
office;
(g) Exit signs as required per code, based on 100% open
office; and capacity in electrical system to connect emergency egress
lighting.
(h) Passenger elevator lobby complete in all respects except
finishes, including flat sheetrock ceiling, lighting, HVAC, sprinklers,
alarms/detectors, call buttons and lanterns, etc.
(i) Core corridor doors primed and ready to receive Tenant's
finish;
(j) Stairwell doors primed and ready to receive Tenant's
finish;
(k) Stairwells between floors serving Tenant shall have
walls and railings finish painted one-half floor above top Tenant floor,
and one-half floor below lowest Tenant floor. Such stairwells shall have
lights at each floor landing;
(l) Locking devices and closers for all exit, stairwell, and
electrical/telephone doors. Stairwell doors shall have locking and
unlocking devices;
(m) Landlord will provide card readers at select perimeter
building entry points, service elevators, low-rise elevator cabs and
contacts at all stairwell doors, service elevator vestibules.
(n) All ceiling space sufficiently clear of all pipes,
ductwork, etc., to provide for a minimum finished ceiling height of nine
feet. All base building systems shall be coordinated such that the
intersection of the building structural system, medium pressure
ductwork, the fire protection system and the base building light fixture
will all fit within the interstitial cavity. Indicated heights shall
include room to place conventional florescent light fixtures at any (and
every) place on the floor;
(o) All pipe sleeves in beams and walls shall be packed
airtight and complete;
(p) Domestic cold water, valved and capped at two (2)
locations per floor;
(q) Landlord shall provide for all Fire and Life Safety
requirements per City and State codes, including installation of all
required annunciators, strobes and other warning devices. Such systems
shall be installed to code for
2
Base Building Work. Additional work required as a result of tenant
improvements by Tenant shall be part of the Tenant Work and not included
the Base Building Work;
A complete code complying fully addressable fire alarm system
which complies with ADA and other Legal Requirements will be provided.
The system shall include at least the following:
1. Speaker horns and visual strobes (ADA approved). Devices
for minimum coverage in open tenant spaces will be wired
and left coiled up in the ceiling plenum area for
installation during tenant improvement.
2. Water flow alarms and tamper switch monitoring
coordinated with the fire protection system.
3. Smoke detectors at the elevator lobbies which interface
with the elevator control system.
4. Smoke detectors at air handling units.
5. Additional monitoring and indicating devices as required
by local codes.
6. Fireman's telephone system utilizing two-way permanent
phones and phone jacks.
(r) All code required general exhaust requirements shall be
provided. In addition, Landlord shall provide a supplemental general
exhaust duct riser capable of handling 500 CFM per floor. Landlord must
also provide additional capacity in the toilet exhaust duct riser and
fan to permit Tenant to add and an additional 100 CFM of toilet exhaust
per floor (to accommodate additional toilet rooms);
(s) Certificate of Occupancy shall be obtained by Landlord.
(t) The building and all public or quasi-public areas within
the building (including toilets serving Tenant's space) shall, at
Landlord's cost at the time of base building permitting, comply with all
Legal Requirements, including, without limitation, all requirements of
the Americans with Disabilities Act.
(u) Landlord represents that no asbestos, urea formaldehyde
or other materials known to be a hazardous substance will be present in
the base building construction materials at the time of base building
permitting. The representation excludes those hazardous materials which
occur naturally in non-manmade materials and the use of asbestos in
elevator brake linings.
3
5. SPRINKLER SYSTEM. Sprinkler piping shall be provided to include
main runs with crosses to achieve, at a minimum, a 15' x 15' grid. Landlord
shall provide branch piping and semi-recessed heads based on 100% open office.
Sprinkler heads shall be nominally centered (uniform grid pattern) in the
ceiling tiles.
6. CEILINGS. Ceiling grid will be installed in a 4'0" x 4'0" grid.
Remaining ceiling grid components and the ceiling tile will be stockpiled on the
floor. Ceiling tile must be 2' x 2' lay-in beveled edge, noncombustible mineral,
foil-backed, fissured, acoustical tile, with a minimum thickness of 3/4", an NRC
rating of .55 to .65, an STC rating of 35 to 39, and a light reflectance rating
of LR1.
7. LIGHT FIXTURES.
(a) Landlord shall provide 2' x 4' parabolic light fixtures
with a minimum louver depth of 3 inches, electronic ballasts and 10'
plug-in pigtails (manufactured wiring system). Fixtures shall be
provided at a rate of one per 75 rentable square feet. Two tube fixtures
will not be acceptable. Bulbs shall be T-8 (3000K) energy saving lamps,
or an energy efficient alternative approved by Tenant. Provide unit cost
for adds and deducts of lighting fixtures. Light fixtures will be
stockpiled on the floor.
(b) Fixtures shall be provided in a quantity sufficient to
achieve a minimum of 50 foot candles of maintained light at the desktop
in all areas although it is generally assumed that the above standard
will require more fixtures. Tenant expects that the higher standard of
the two will be met.
(c) Landlord shall provide electrical distribution from
panel boards to junction boxes in the ceiling to accommodate plug in
pigtails (manufactured wiring system). Junction boxes shall be located
on a grid with boxes located at 4000 square foot spacing. Each junction
box will contain one (1) additional "hot" conductor for future
distribution (total of three circuits/junction box).
(d) Per Tenant's improvement design, lighting shall be
controlled by a building computerized control system. Any local controls
shall be at Tenant's expense.
8. ELECTRICAL DISTRIBUTION AND SERVICE. As part of the Base
Building Work, Landlord shall provide an electrical distribution and
service system as follows:
(a) All lighting and 480/120/208 volt power shall be
provided to Tenant's initial space by a switchboard with surge
suppression.
(b) Basic electrical service of 480/277 volts, 3 phase,
4 wire, 60 cycles through a grounded switchboard suitable for such
service. The electrical service conductor and switchboard shall be
oversized 20% to anticipate possible growth
4
in future requirements. Switchboard devices shall be selectively
coordinated with a ground fault protection system.
(c) Distribution voltages shall be 480/277 volts, 4 wire, 3
phase for fluorescent lighting and integral horsepower motors; and
120/208 volts, 4 wire, 3 phase for receptacle circuits, small motors and
incandescent lighting.
(d) The electrical service provided by the electrical user
system shall provide a minimum of six ▇▇▇▇▇ per rentable square foot for
Tenant's lighting and receptacles in all areas (other than the trading
area and the computer room), excluding HVAC equipment, special systems,
miscellaneous electrical loads and elevator equipment requirements.
(e) Power distribution throughout the building shall be via
a plug-in bus duct. Busways shall be of the low impedance type and
totally enclosed. Fire-stops or barriers shall be included as an
integral part of each length and fitting of duct where required and at
each floor. Power which serves HVAC equipment, special systems,
miscellaneous electrical loads and electrical equipment is on a separate
distribution riser which is not part of the lighting and receptacle bus
duct on floors 3, 4 and 5. On floors 15 through 30 the lights and VAV
boxes are supplied from the 277 volt electrical panel. The receptacles
and convenience power are served by the 120/208 volt electrical panels.
Both panels will be electronic grade.
(f) Distribution shall be to two electrical rooms on each
floor on floors 3, 4 and 5 and one electrical room per floor on floors
15 through 30. Electrical rooms must be stacked directly above each
other. Each of the rooms on each floor must be fed by its own vertical
plug-in bus duct. Each electrical room must be provided with an exhaust
system.
(g) Circuit breaker panelboards shall be located on in each
electrical room on each floor to serve electrical loads and the portion
of the Premises on the floor as follows:
(1) Provide one 480/277 volt panelboard in each electrical
room. Panelboard shall have 100 amp main breaker and 42 one pole
bolt on breakers.
(2) In each electrical room provide two 480/120/208 volt
panelboards with a 75 KVA - K13 dry type transformer fed from
the plug-in bus duct, with 200% neutral. Each panelboard shall
have a 225 amp main breaker and 42 one pole bolt-on breakers.
Each panel shall have its own main breaker. Panels shall be
electronic grade with metal oxide varistors. Each 120/208 panel
shall be equipped with a 200% neutral, ground and isolated
ground bus.
5
(h) The Building shall have an emergency power back-up
system for elevators, emergency lighting to meet code and emergency
communication.
The Building shall be designed and constructed to provide
incoming power from Northern States Power's downtown electrical grid.
This grid system is backed up by a minimum of two separate and
independent utility transformers. Power from the utilities grid capable
of providing adequate power to support Tenant's trading, computer and
telecommunications functions.
(i) If required to maintain utility billing power factor of
0.90, Landlord shall provide power factor correction capacitors
appropriately sized. Capacitors shall be non-PCB filled complete units
with current limiting indicating fuses and dust-tight enclosures.
(j) The entire electrical system and equipment shall be
grounded in accordance with the National Electrical Code. In addition,
ground counterpoise shall be a 350 MCM ground conductor installed around
the perimeter of the building and connected to building steel. Tenant's
switchboard shall be connected to this ground and a 350 MCM riser run
through each Tenant electrical and telephone and data room. Provide in
each electrical, telephone and data room a 1/4" x 2" x 24" ground bus
connected to the 350 MCM ground riser.
(k) The Building shall have lightning protection which shall
have a master label and be tied to the building grounding system.
(l) The ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies emergency ▇▇▇▇ located in
the south electrical closet can be transitioned to the north electrical
closet to allow expansion of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ emergency power to the
15th floor and above at Tenant's expense
9. MECHANICAL - HEATING, VENTILATION AND AIR-CONDITIONING. Landlord
acknowledges that according to the requirements of Section 10, Heating,
Ventilation and Air-Conditioning, Item (e), the air-conditioning system
has been designed based upon an average population density of one person
per 144 usable square feet throughout the office areas, meeting and
conference areas.
Installation of the VAV boxes, run-out ducts, spin-ins, flex ducts,
grilles and diffusers shall be by Tenant as part of the Tenant Work. Six
(6) perimeter fan powered VAV boxes will be installed with duct work to
distribute minimum air on floor. Additional VAV boxes will be provided
as outlined in Exhibit A.
Landlord acknowledges that design of the HVAC system provides cooling
capacity to be based upon five (5) ▇▇▇▇▇ of electrical usage per square
foot of normally occupied area throughout the Tenant office space.
6
Landlord shall cause its mechanical and electrical engineers to prepare
the plans for the HVAC distribution system for the base building per the
following criteria:
(a) The system shall include the following features:
(1) Outside air economizer, enthalpy-controlled,
capable of 100% outside air.
(2) Minimum outside air provision shall be based on
ASHRE Standard 62-89 (Ventilation for Acceptable
Indoor Air Quality). Ideally minimum outside air
is actively controlled in accordance with the
actual building population. Minimum outside air
requirements shall be measured through air flow
measuring stations. Outside air is measured on
20CFM per person based on an average population
density of one person per 144 useable square
feet.
(3) Humidification can be added by extending the
steam line to the air handling units and
installing the required humidification
equipment. The steam line extension and
humidification equipment is at Tenant's expense.
No local humidification control is required or
provided.
(4) The building shall include its own cooling
towers, chillers and chilled water. The chilled
water system shall be designed to provide a
minimum of two chillers, one of which is capable
of providing approximately 70% of the overall
capacity and one which is capable of providing
approximately 30% of the overall capacity.
Central plant electric drive chillers at
approximately 0.60 to 0.70 kW/ton at ARI
conditions will be provided using a 40 DEG.F
supply temperature and an 16 DEG.F rise. Central
plant chillers using HFC-134a and HCFC-123 will
be considered. Each chiller will be equipped
with a low emissions refrigerant management
system.
(b) Landlord shall provide a system of variable volume air
handling units with series fan-powered variable air volume boxes with
internal acoustical attenuation as required to maintain the specified
NC35 level in occupied tenant space with no internal acoustical lining
in the secondary downstream ductwork. Maximum fan CFM for FPTU's shall
be 1,600 cfm for interior zones and 1,300 cfm for perimeter zones. The
fan powered terminal units serving perimeter zones will be equipped with
hot water heating coils on the discharge of the FPTU. Internal zones
shall be served by pinch-down type terminal units. Fan
7
modulation shall be by variable frequency drive (VFD). Tenant, as part
of the Tenant Work, shall provide distribution ducts, supply registers
and diffusers, return grills and associated fixtures and equipment
designed and installed on each floor of the leased premises to provide
control of cooling, ventilation and heating in each zone of the leased
premises, as defined below. All diffusers, return air grills and
distribution ductwork, shall be designed by Tenant. Perimeter slot type
diffusers with downblow center sections and integral returns will be
used for overhead heating together with Low "E" double pane glass,
thermally improved mullions and an energy efficient perimeter wall with
low infiltration air leakage per Tenant's design, provided by Tenant.
Each fan powered VAV box will be equipped with an integral flow sensor
for accurate balancing. Interior zone air distribution will be via panel
face supply type diffusers. The Base Building variable air volume air
handling units will be designed to address indoor air quality issues as
set forth in the ASHRAE 62-89 Standards. The following will be provided:
(1) Stainless steel cooling coil drain pans, which
are internally sloped to drain dry upon unit
shutdown. Coils shall have a maximum of 8 rows
and be selected at a maximum face velocity of
500 fpm.
(2) Air handling units will be fully accessible for
cleaning and maintenance following ASHRAE 62-89
Standards.
(3) Galvanized steel cooling coil frames.
(4) AHU's capable of delivering 55 DEG.F supply air
at peak cooling load conditions to occupied
space.
(5) Air filters shall have an efficiency of 60% at 3
microns according to ASHRAE 62-89 Standards.
(c) The Base Building System shall be designed to conform to
operate so that sound transmission levels do not exceed NC 35. Landlord
shall be required to take appropriate corrective measures to eliminate
any disturbing noise or vibration of any mechanical equipment or system
furnished and installed by Landlord that exceeds NC 35.
(d) The design of the air-conditioning system shall take
into account the following occupancy schedule:
General Offices - One person per 144 usable square feet and one
personal computer per person assuming each personal computer generates
1,000 BTU's, unless the following requirement is more stringent:
Lighting at typical office space: 1.5 ▇▇▇▇▇/sq.ft.
8
Tenant equipment power - to meet specified equipment load (3.5
▇▇▇▇▇/sq.ft.)
Meeting and Conference Rooms - One person per 15 usable square
feet.
(e) The occupancy schedule of particular areas shown on
Tenant's plans may vary between one person per 50 usable square feet and
one person per 200 usable square feet, provided that the entire floor
division of the leased premises does not assume more than one person per
150 usable square feet and that such variances are reasonably
distributed. The heating, ventilating and air-conditioning system shall
meet the following design conditions, at the stated outside design
conditions:
(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 minus 20 DEG. Fahrenheit
dry bulb; 72 DEG. Fahrenheit dry bulb, inside.
(3) Landlord shall operate the HVAC system to achieve a
space temperature of 72 DEG. Fahrenheit dry bulb
inside whenever possible subject to night setbacks.
(4) The variable air volume air handling unit and
distribution system shall have a minimum capacity of
one cubic foot per square foot of usable area (at
design conditions), and six complete air changes per
hour.
(5) Provide supplemental chilled water capacity for
tenant use on a year round 24-hour basis. Floor
takeoffs should be valved and capped. Sizing shall
be based on one ton per 1,500 usable square feet.
(f) The type and size of the diffusers shall be determined
by Tenant.
(g) All supply and/or return ducts shall be equipped with
fusible link dampers as prescribed by applicable laws, if any. Dampers
required for base building conditions by Landlord. Dampers required as a
result of the tenant's improvements by Tenant as part of the Tenant
Work.
(h) All food areas (if any) will have a recirculating air
filter (provided by Tenant as part of the tenant improvements) to remove
cooking odors.
(i) Landlord shall provide electrical closets with exhaust
fans.
9
(j) Supply air to the occupied tenant spaces shall be
filtered with replaceable media type filters in accordance with
ASHRAE 62-89 Standards with an average efficiency of 60% based on ASHRAE
Test Standard 52.1-92.
(k) A direct digital control system (energy management
system) shall be provided with the features listed below as a minimum:
(1) Stage chillers, pumps and cooling towers to
maintain occupancy comfort at minimum energy
use.
(2) Provide run time status of HVAC equipment.
(3) Control each zone to maintain set-point
temperature. The set-point temperatures shall be
adjustable third system software.
(4) Provide alarms indicating equipment failure,
zone high/low temperatures, etc.
(5) Provide chilled water during winter months for
Tenant HVAC equipment in computer room,
telephone switch rooms, network and
communications closets.
(6) The building control system will be full
state-of-art DDC microprocessor based, PC
driven, with stand alone remote field panels and
peer-to-peer communication over a high speed
network to all terminal equipment. All software
and custom graphics will be included. Minimum
network communication speed will be
approximately 100K BAUD panel to panel and 9600
BAUD panel to terminal device controllers.
Pneumatic actuators in the central plant may be
considered. Temperature sensors and wiring will
be left coiled and in ceiling plenum for
installation during tenant improvement.
(l) The air velocity in riser (shaft) shall not exceed 3000
FPM, primary ductwork shall not exceed 2400 FPM, 1,500 FPM in secondary
and branch ducts. Ductwork construction shall be according to SMACNA
Standard (First Edition 1995).
(m) All supply air ductwork shall be sealed in accordance
with SMACNA standards for Seal Class "A." Ductwork insulated with
external glass fiber insulation.
10
(p) All HVAC hydronic systems shall be variable flow with
two-way throttling valves.
(q) Cooling towers shall be of fiberglass (FRP) or stainless
steel construction with bolted stainless steel or fiberglass (FRP)
basins, induced draft, cross-flow or counter flow design.
(r) Outside ventilation air will be flow monitored and
adjustable through the building control and management system according
to ASHRAE 62-89 Standards.
(s) Both condenser and chilled water systems will be
thoroughly chemically cleaned (internally) and flushed. Systems then
will be circulated through cartridge type filtering devices until clean.
Both condenser water and chilled water systems will be hydrostatically
tested and proved leak tight prior to insulation. All condenser and
chilled water systems will be balanced to design flow rates and
documented. All air distribution will be balanced and documented
according to ASHRAE 62-89 Standards.
(t) A smoke management system including pressurized
stairways will be provided as required by code.
(u) Landlord will balance the system and submit balancing
reports prepared by an independent engineer to Tenant prior to
completion of the space at Tenant's expense. Landlord will provide
initial balancing of the system as part of Base Building Completion. All
balancing as part of Tenant buildout will be at Tenant's expense.
10. MECHANICAL - PLUMBING.
(a) Building water service entrance will be complete for
fire protection and domestic water. All connections between the domestic
water system and process uses will be protected by reduced pressure type
back flow preventer.
(b) A complete plumbing system will be provided, including
all underground piping to public mains, consisting of sanitary waste
piping, sanitary vent piping, domestic hot and cold water piping, and
storm sewer piping installed to all facilities and in accordance with
all applicable codes.
(c) Internal downspouts with overflow drains shall be
provided for all roof areas and will discharge to the storm sewer
system. All horizontal downspout lines in the ceiling space shall be
insulated.
(d) All plumbing fixtures shall be vitreous china,
commercial quality. Water closets and urinals shall be flush valve type,
siphon jet, and wall hung. Lavatories shall be undermount bowl,
furnished with the vanity tops. Lavatory trim shall meet ADA
requirements.
11
(e) Water coolers shall be self-contained electric,
stainless steel, meeting ADA requirements.
(f) Domestic hot and cold water shall be provided to base
building restroom facilities. All hot water piping will be insulated
except for branch piping within the toilet room chases. Valved cold and
hot water stub-outs will be provided at each toilet room for tenant use.
(g) Two 4" drain columns, waste and vent will be provided on
each floor for future connection of tenant fixtures. One tenant drain
located at the core and one at a remote location will be provided.
(h) Hose bibs will be provided in major mechanical rooms,
the loading dock, and under the counter in all restrooms. A freeze-proof
wall hydrant will be provided on each exterior face of the building.
(i) Local electric water heaters in closets and/or under
counter types will be provided, sized to provide hot water for the
toilet rooms.
11. MECHANICAL - FIRE PROTECTION. See paragraph 6.
12. TELEPHONE AND DATA.
(a) Tenant will construct telephone and data rooms within or
adjacent to the building core as part of its tenant improvement package.
(b) Landlord shall provide dedicated space within the main
point of presence (MPOP) room for Tenant's telephone and data service
entry into the building.
(c) Landlord shall provided dedicated empty conduits from
the outside of the building near available services to the Base Building
MPOP
(d) The extension of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies
communication riser from the 13th floor south communication room through
the 14th floor mechanical room can be accommodated at Tenant's expense.
13. ACOUSTICAL ATTENUATION. Acoustical attenuation shall be designed
within walls separating elevators, toilet rooms, fan rooms, and switchgear from
occupied Tenant spaces and five specified rooms within Tenant's space. The
system design criteria for ambient noise level in the Tenant's space, when
unoccupied, shall meet NC35 standards when all building systems are operating
and standard floor and ceiling finishes are installed.
12
14. ELEVATORS AND ESCALATORS. Elevators must be designed to assume a
density of one person per 200 usable square feet. The design shall also include
a handling capacity (the percentage of building capacity that can be
accommodated within five minutes) of 16%, average interval times of under 25
seconds and round trip elevator times of less than two minutes. The Building
shall be designed with two freight elevators serving all floors with a minimum
capacity of 4,000 lbs., and an oversized cab. The service elevators and two
passenger elevators in each of the low, mid and high-rise elevator banks shall
be tied to Landlord's card access system for after-hours use.
15. LOADING DOCK. At a minimum, a loading dock must be provided
which is capable of accommodating over-the-road semi-trailer trucks. Such
loading dock must be covered and equipped with dock levelers.
16. SECURITY. Card readers will be provided on select exterior doors
and in the garage for after hours elevator operation. Stairwell exit doors will
be locked. The stairwell exit doors will be tied to the fire alarm system and
will open on building alarm.
13
EXHIBIT 4-1
INITIAL EXPANSION SPACE
SCOPE DOCUMENT FOR
THE DESIGN AND CONSTRUCTION OF THE
US BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
PREPARED BY:
▇▇▇▇ COMPANIES US, INC.
REVISED: AUGUST 25, 1999
REVISED: SEPTEMBER 2, 1999
TABLE OF CONTENTS
PROJECT DESCRIPTION............................................................2
02000 SITEWORK.................................................................3
03000 CONCRETE.................................................................6
03400 EXTERIOR PRECAST AND STONE:..............................................6
04000 MASONRY..................................................................7
05000 METALS...................................................................7
06000 CARPENTRY AND MILLWORK...................................................8
07000 THERMAL AND MOISTURE PROTECTION..........................................9
08000 DOORS AND WINDOWS.......................................................10
09000 FINISHES................................................................12
10000 SPECIALTIES.............................................................16
11000 EQUIPMENT...............................................................16
14000 CONVEYING SYSTEMS.......................................................17
15000 MECHANICAL..............................................................18
16000 ELECTRICAL..............................................................24
18000 SPECIALTY SPACES........................................................28
Page 1
GENERAL
PROJECT DESCRIPTION
A. OFFICE TOWER (BUILDING SHELL): A 878,000 square foot(approximate
rentable area,) 28 level (Floors 3 - 30) office tower complete
with associated public spaces, mechanical rooms and building
service areas. Basic building shell construction and building
systems shall be completed as defined herein, with office tenant
build-out completed under separate agreement.
B. RETAIL LEVELS (BUILDING SHELL): A 49,000 square foot(approximate
rentable area) two level (street and skyway) retail facility,
public areas, truck docks and service area.
C. PARKING STRUCTURE: A below grade structure of three (3) levels
(P1 - P3) providing parking for approximately 323 vehicles.
D. STORAGE: ▇▇,▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇)
throughout the three underground levels (P1 - P3) and the roof
penthouse level.
Page 2
EXHIBIT 5
(Revised)
BASE BUILDING CONSTRUCTION SCHEDULE
*Submission of 50% Design Development to ▇▇▇▇▇ ▇▇▇▇▇▇▇ 3/20/98
---------------------------------------------------------------------------------------------------
*Submission of 100% Design Development to ▇▇▇▇▇ ▇▇▇▇▇▇▇ 4/13/98
---------------------------------------------------------------------------------------------------
Complete Demolition of existing improvements 5/01/98
*(milestone date for completion of demolition) 9/01/98
---------------------------------------------------------------------------------------------------
*Submission of 50% Construction Documents to ▇▇▇▇▇ ▇▇▇▇▇▇▇ 5/26/98
---------------------------------------------------------------------------------------------------
Start Footings/Foundation 8/10/98
*(milestone date for start of footings/foundation) 10/01/98
---------------------------------------------------------------------------------------------------
*Submission of 100% Construction Documents to ▇▇▇▇▇ ▇▇▇▇▇▇▇ 7/13/98
---------------------------------------------------------------------------------------------------
Pour Core Walls Floor One (1)(Start) 10/13/98
---------------------------------------------------------------------------------------------------
Complete Building Core Shell Permits (City) 8/13/98
---------------------------------------------------------------------------------------------------
Pour Floor Two (2)(Start) 1/6/99
---------------------------------------------------------------------------------------------------
Electrical/Plumbing OH Rough Floor Three (3)(Start) 3/03/99
---------------------------------------------------------------------------------------------------
Pour Core Walls Floor Fourteen (14) (Start) 3/09/99
---------------------------------------------------------------------------------------------------
Sprinkler Floor Three (3)(Start) 3/12/99
---------------------------------------------------------------------------------------------------
Pre-cast Floor Three (3)(Start) 3/30/99
---------------------------------------------------------------------------------------------------
Erect Steel Floor Fourteen (14) and Fifteen (15) (Start) 4/23/99
---------------------------------------------------------------------------------------------------
Pour Floor Fourteen (14)(Start) 5/27/99
---------------------------------------------------------------------------------------------------
Street Level Finishes (Start) 10/15/99
---------------------------------------------------------------------------------------------------
Mechanical OH Rough Floor Thirteen (13)(Start) 6/06/99
---------------------------------------------------------------------------------------------------
Electrical/Plumbing OH Rough Floor Fourteen (14)(Start) 6/25/99
---------------------------------------------------------------------------------------------------
Sprinkler Floor Fourteen (14)(Start) 7/16/99
---------------------------------------------------------------------------------------------------
Pre-cast Floor Fourteen (14)(Start) 7/20/99
---------------------------------------------------------------------------------------------------
Plaza and Site (Start) 8/15/99
---------------------------------------------------------------------------------------------------
Skyway Level Finishes (Start) 10/15/99
---------------------------------------------------------------------------------------------------
Pour Core Walls Penthouse (Start) 8/03/99
---------------------------------------------------------------------------------------------------
*Submission of Tenant Work Plans And Specifications for Original Initial Premises
(for ceiling and HVAC) 7/09/99
---------------------------------------------------------------------------------------------------
Mechanical/Electrical Wall Rough Floor Thirteen(13)(Start) 8/13/99
---------------------------------------------------------------------------------------------------
Window Glazing Floor Fourteen (14)(Start) 8/31/99
---------------------------------------------------------------------------------------------------
Erect Steel Penthouse (Start) 9/20/99
---------------------------------------------------------------------------------------------------
Pour Penthouse Floor (Start) 10/12/99
---------------------------------------------------------------------------------------------------
Roofing (14) 8/23/99
---------------------------------------------------------------------------------------------------
Roofing (Penthouse Level) 12/27/99
---------------------------------------------------------------------------------------------------
Vertical Transportation Available
---------------------------------------------------------------------------------------------------
a) Hoist and One (1) Elevator Car (Low Rise) 9/01/99
---------------------------------------------------------------------------------------------------
b) Two (2) Additional Elevator Cars (Low Rise) 10/01/99
---------------------------------------------------------------------------------------------------
Exhibit 5 - 1
*Delivery Date for Original Initial Premises (being Floors Six (6) through Thirteen
(13), inclusive, and Initial Retail Premises 12/31/99
---------------------------------------------------------------------------------------------------
Building Test/Balance (Start) 2/17/00
---------------------------------------------------------------------------------------------------
*Delivery Date for Initial Expansion Space Floors (being Floors Three (3) through
Five (5), inclusive, Floors Fifteen (15) through Twenty-Two (22), inclusive,
and Floor 23) 3/31/00
---------------------------------------------------------------------------------------------------
*Delivery Date For Additional Initial Expansion Space Floors (being Floors 23 and 24) 3/31/00
---------------------------------------------------------------------------------------------------
*Base Building Completion Date 3/31/00
---------------------------------------------------------------------------------------------------
Only the items designated with an * constitute milestone dates for purposes of
Landlord Delay in Article 1 of the Work Letter. Items not designated with an *
are shown for informational purposes only and are subject to change based upon
Landlord's progress in performance in the Base Building Work.
Exhibit 5-2
TENTH AMENDMENT
THIS TENTH AMENDMENT (the "Amendment") is made and entered into as of
the 14TH day of APRIL, 2003, by and between MN-NICOLLET MALL, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY ("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES
INC., A DELAWARE CORPORATION ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (formerly known as EOP-Nicollet Mall, L.L.C., as
successor in interest to ▇▇▇▇ 800, LLC, a Minnesota limited liability
company) and Tenant (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc.) are
parties to that certain lease (collectively with the amendments
hereafter described, the "Lease") dated the 3rd day of March, 1998, for
space which contains approximately 716,171 square feet of the Rentable
Area (the "Original Premises") on the first (1st) through thirteenth
(13th) and fifteenth (15th) through twenty-fourth (24th) Floors of the
building commonly known as the U.S. Bancorp Center and the address of
which is ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Building"),
which lease has been previously amended or assigned by instruments
(including, without limitation, letters exercising expansion rights)
dated May 18, 1998, July 29, 1999, September 1, 1998 (exercise letter),
September 29, 1999, September 29, 1999, November 22, 1999,
November 24, 1999, March 31, 2000, May 8, 2001, August 8, 2001, May 28,
2002, December 30, 2002 (the "Eighth Amendment"), and March 27, 2003.
B. WHEREAS, pursuant to the Eighth Amendment, the Commencement Date with
respect to space therein referred to as the Fourth Early Initial
Expansion Space and the Fifth Early Initial Expansion Space (as defined
in the Eighth Amendment) was accelerated; and
C. WHEREAS, Landlord and Tenant have determined that the space demised as
the Fourth Early Initial Expansion Space and the Fifth Early Initial
Expansion Space was inaccurately described as Initial Expansion Space
(as defined in the Lease) and should have within the Eighth Amendment
been referred to as additional expansion space and, therefore, no
"acceleration" of the Commencement Date was appropriate, but rather the
Commencement Date for the Fourth Early Initial Expansion Space and the
Fifth Early Initial Expansion Space should have been the dates
determined by the parties absent any acceleration; and
D. WHEREAS, Tenant has requested a further modification to the Commencement
Date for the Fifth Early Initial Expansion Space, and Landlord is
willing to do the same on the terms and conditions hereinafter set
forth; and
E. WHEREAS, for clarification purposes, Landlord and Tenant desire to amend
and restate the Eighth Amendment to accurately describe the expansion
space demised therein and to restate the commencement date for the Fifth
Early Initial Expansion Space, as such space is re-described herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. RESTATEMENT. This Amendment is a restatement of the Eighth Amendment.
The Eighth Amendment is hereby deleted in its entirety and the terms and
conditions of this Amendment substituted in lieu thereof.
II. REDEFINITION. For purposes of this Amendment and the Lease, (a) the
portion of the Building located on Floor twenty-four containing
approximately 2,915 square feet of Rentable Area to be known as Suite
2430 and depicted on EXHIBIT A attached hereto shall hereinafter be
referred to as the "First Additional Expansion Space", and (b) the
portion of the Building located on Floor twenty-four containing
approximately 1,821 square feet of Rentable Area to be known as Suite
2440 and depicted on EXHIBIT B attached hereto shall hereinafter be
referred to as the "Second Additional Expansion Space."
III. EXPANSION AND EFFECTIVE DATE.
A. Effective as of April 1, 2003 (the "First Additional Expansion
Effective Date"), the Premises, as defined in the Lease, is
increased by the addition of the First Additional Expansion
Space (and Tenant's Pro Rata Share is likewise increased), and
from and after the First Additional Expansion Space,
collectively, shall be deemed the Premises, as defined in the
Lease. The Term for the First Additional Expansion Space shall
commence on the First Additional Expansion Effective Date and
end on the last day of the Term, which, unless sooner terminated
in accordance with the Lease, shall mean May 31, 2014 (such
date, for purposes of this Amendment and the Lease, is referred
to as the "Termination Date"). The First Additional Expansion
Space is subject to all the terms and conditions of the Lease
except as expressly modified herein and except that Tenant shall
not be entitled to receive any allowances, abatements or other
financial concessions granted with respect to the Original
Premises unless such concessions are expressly provided for
herein with respect to the First Additional Expansion Space. The
First Additional Expansion Effective Date shall be delayed to
the extent that Landlord fails for any reason to deliver
possession of the First Additional Expansion Space on or before
April 1, 2003, for any reason, including but not limited to,
Unavoidable Delay. Any such delay in the First Additional
Expansion Effective Date shall not subject Landlord to any
liability for any loss or damage resulting therefrom. If the
First Additional Expansion Effective Date is delayed, the
Termination Date under the Lease shall not be similarly
extended.
B. Effective as of October 1, 2004 (the "Second Additional
Expansion Effective Date"), the Premises, as defined in the
Lease, is increased by the addition of the Second Additional
Expansion Space (and Tenant's Pro Rata Share is likewise
increased), and from and after the Second Additional Expansion
Effective Date, the Original Premises (as previously increased
by the First Additional Expansion Space) and the Second
Additional Expansion Space, collectively, shall be deemed the
Premises, as defined in the Lease. The Term for the Second
Additional Expansion Space shall commence on the Second
Additional Expansion Effective Date and end on the Termination
Date. The Second Additional Expansion Space is subject to all
the terms and conditions of the Lease except as expressly
modified herein and except that Tenant shall not be entitled to
receive any allowances, abatements or other financial
concessions granted with respect to the Original Premises unless
such concessions are expressly provided for herein with respect
to the Second Additional Expansion Space. The Second Additional
Expansion Effective Date shall be delayed to the extent that
Landlord fails for any reason to deliver possession of the
Second Additional Expansion Space for any reason on or before
October 1, 2004, including but not limited to, Unavoidable
Delay. Any such delay in the Second Additional Expansion
Effective Date shall not subject Landlord to any liability for
any loss or damage resulting therefrom. If the Second Additional
Expansion Effective Date is delayed, the Termination Date under
the Lease shall not be similarly extended.
IV. MONTHLY BASE RENTAL.
A. In addition to Tenant's obligation to pay Base Rental for the
Original Premises, Tenant shall pay Landlord Base Rental with
respect to the First Additional Expansion Space in monthly
installments as follows:
(i) Equal installments of [***] each payable on or
before the first day of each month during the period
beginning on the First Additional Expansion Effective
Date and ending December 31, 2007.
(ii) Sixty (60) equal installments of [***] each payable on
or before the first day of each month during the period
beginning January 1, 2008 and ending December 31, 2012.
(iii) Seventeen (17) equal installments of [***] each
payable on or before the first day of each month during
the period beginning January 1, 2013 and ending May 31,
2014.
2
B. In addition to Tenant's obligation to pay Base Rental for the
Original Premises, Tenant shall pay Landlord Base Rental with
respect to the Second Additional Expansion Space in monthly
installments as follows:
(i) Equal installments of [***] each payable on or before
the first day of each month during the period beginning
on the Second Additional Expansion Effective Date and
ending December 31, 2007.
(ii) Sixty (60) equal installments of [***] each payable on
or before the first day of each month during the period
beginning January 1, 2008 and ending December 31, 2012.
(iii) Seventeen (17) equal installments of [***] each
payable on or before the first day of each month during
the period beginning January 1, 2013 and ending May 31,
2014.
All such Base Rental shall be payable by Tenant in accordance with the terms of
Article 6 of the Lease.
V. IMPROVEMENTS TO FIRST ADDITIONAL EXPANSION SPACE AND SECOND ADDITIONAL
EXPANSION SPACE.
A. CONDITION OF FIRST ADDITIONAL EXPANSION SPACE AND SECOND
ADDITIONAL EXPANSION SPACE. Tenant has inspected the First
Additional Expansion Space and the Second Additional Expansion
Space and agrees to accept the same "as is" without any
agreements, representations, understandings or obligations on
the part of Landlord to perform any alterations, repairs or
improvements, except that Landlord shall deliver the First
Additional Expansion Space and the Second Additional Expansion
Space to Tenant in broom clean condition.
B. COST OF IMPROVEMENTS TO FIRST ADDITIONAL EXPANSION SPACE AND
SECOND ADDITIONAL EXPANSION SPACE.
(i) Provided Tenant is not in default, Tenant shall be
entitled to receive an improvement allowance (the "First
Additional Expansion Space Improvement Allowance") in an
amount not to exceed Fifty Two Thousand Four Hundred
Seventy and No/100 Dollars ($52,470.00) (i.e., $18.00
per square foot of Rentable Area of the First Additional
Expansion Space) to be applied toward the cost of
performing initial construction, alteration or
improvement of the First Additional Expansion Space,
including but not limited to the cost of space planning,
design and related architectural and engineering
services. In the event the total cost of the initial
improvements to the First Additional Expansion Space
exceeds the First Additional Expansion Space Improvement
Allowance, Tenant shall pay for such excess upon demand.
The entire unused balance of the First Additional
Expansion Space Improvement Allowance, if any, shall
accrue to the sole benefit of Landlord. In accordance
with the Payment Procedures (as defined in the Fifth
Amendment to the Lease dated May 8, 2001). Landlord
shall pay such First Additional Expansion Space
Improvement Allowance directly to the contractors,
architects, designers, engineers and consultants
retained to perform the construction, design or related
improvement work to the First Additional Expansion
Space.
(ii) Provided Tenant is not in default, Tenant shall be
entitled to receive an improvement allowance (the
"Second Additional Expansion Space Improvement
Allowance") in an amount not to exceed Thirty Two
Thousand Seven Hundred Seventy Eight and No/100 Dollars
($32,778.00) (i.e., $18.00 per square foot of Rentable
Area of the Second Additional Expansion Space) to be
applied toward the cost of performing initial
construction, alteration or improvement of the Second
Additional Expansion Space, including but not limited to
the cost of space planning, design and related
architectural and engineering services. In the event the
total cost of the initial improvements to the Second
Additional Expansion Space exceeds the Second Additional
Expansion Space
3
Improvement Allowance, Tenant shall pay for such excess
upon demand. The entire unused balance of the Second
Additional Expansion Space Improvement Allowance, if
any, shall accrue to the sole benefit of Landlord. In
accordance with the Payment Procedures (as defined in
the Fifth Amendment to the Lease dated May 8, 2001),
Landlord shall pay such Second Additional Expansion
Space Improvement Allowance directly to the contractors,
architects, designers, engineers and consultants
retained to perform the construction, design or related
improvement work to the Second Additional Expansion
Space.
C. RESPONSIBILITY FOR IMPROVEMENTS TO FIRST ADDITIONAL EXPANSION
SPACE AND SECOND ADDITIONAL EXPANSION SPACE. Any construction,
alterations or improvements to the First Additional Expansion
Space and/or the Second Additional Expansion Space shall be
performed by Tenant using contractors selected by Tenant and
reasonably approved by Landlord and shall be governed in all
respects by the provisions of Article 15 of the Lease.
VI. EARLY ACCESS TO FIRST ADDITIONAL EXPANSION SPACE AND SECOND ADDITIONAL
EXPANSION SPACE. During any period that Tenant shall be permitted to
enter the First Additional Expansion Space or Second Additional
Expansion Space prior to the applicable First Additional Expansion
Effective Date or Second Additional Expansion Effective Date (e.g., to
perform alterations or improvements, if any), Tenant shall comply with
all terms and provisions of the Lease, except those provisions requiring
payment of Base Rental or Additional Rent as to such space. If Tenant
takes possession of the First Additional Expansion Space or the Second
Additional Expansion Space prior to the First Additional Expansion
Effective Date or Second Additional Expansion Effective Date, as
applicable, for any reason whatsoever (other than the performance of
work in such space), such possession shall be subject to all the terms
and conditions of the Lease and this Amendment, and Tenant shall pay
Base Rental and Additional Rent (i.e. Tenant's Pro Rata Share shall be
appropriately increased to account for the same) as applicable to the
First Additional Expansion Space or Second Additional Expansion Space,
as applicable, to Landlord on a per diem basis for each day of occupancy
prior to the applicable First Additional Expansion Effective Date or
Second Additional Expansion Effective Date.
VII. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There have
been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically set
forth in the Lease or this Amendment.
B. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force
and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for such
an offer by Tenant. Neither Landlord nor Tenant shall not be
bound by this Amendment until both Landlord and Tenant have
executed and delivered the same to the other party.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with
no broker in connection with this Amendment other than ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ ("Broker"). Tenant agrees to indemnify and hold
Landlord, its members, principals, beneficiaries, partners,
officers, directors, employees, mortgagee(s) and agents, and the
respective principals and members of any such agents harmless
from all claims of any brokers claiming to have represented
Tenant (other than Broker) in connection with this Amendment.
Landlord hereby represents to Tenant that Landlord has dealt
with no broker in connection with this Amendment (other than
4
Broker). Landlord agrees to indemnify and hold Tenant, its
members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and the respective principals
and members of any such agents harmless from all claims of any
brokers claiming to have represented Landlord (including Broker)
in connection with this Amendment; it being understood that
Landlord shall be solely responsible for payment of all
brokerage commissions due to Broker with respect to this
Amendment pursuant to separate written agreements.
G. This Amendment shall be of no force and effect unless and until
accepted by any guarantors of the Lease, who by signing below
shall agree that their guarantee shall apply to the Lease as
amended herein, unless such requirement is waived by Landlord in
writing.
IN WITNESS WHEREOF, Landlord, Tenant and Guarantor have duly executed
this Amendment as of the day and year first above written.
LANDLORD:
MN-NICOLLET MALL, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: EQUITY OFFICE MANAGEMENT, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY,
ITS NON-MEMBER MANAGER
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Senior Vice President-Denver Region
--------------------------------------
TENANT:
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: VICE PRESIDENT
------------------------------------------
GUARANTOR:
U.S. BANCORP
By: /s/ [ILLEGIBLE]
------------------------------------------
Name: [ILLEGIBLE]
------------------------------------------
Title: [ILLEGIBLE]
------------------------------------------
5
EXHIBIT A
OUTLINE AND LOCATION OF FIRST ADDITIONAL EXPANSION SPACE
[GRAPHIC]
6
EXHIBIT B
OUTLINE AND LOCATION OF SECOND ADDITIONAL EXPANSION SPACE
[GRAPHIC]
7
STORAGE SPACE LEASE AGREEMENT
THIS STORAGE SPACE LEASE AGREEMENT ("Lease") is made and entered into as
of this 23rd day of March, 2001, by and between the Landlord and Tenant
hereinafter named.
1. DEFINITIONS AND BASIC PROVISIONS.
The following are some of the basic lease information and defined terms
used in this Lease:
(a) "Landlord": EOP-NICOLLET MALL, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY.
(b) "Landlord Address": c/o EQUITY OFFICE PROPERTIES TRUST, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with
a copy of all notices to Equity Office Properties Trust, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel for Property Operations.
(c) "Tenants": U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES, INC., a
Delaware corporation.
(d) "Tenant Address": ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(e) "Premises": approximately 2,697 rentable square feet on floor 4
in the building known as U.S. Bancorp Center located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Building"), such Premises being shown and
outlined on the plan attached hereto as EXHIBIT A.
(f) "Lease Term" shall have the meaning set forth in Subsection
1(f)(i):
(i) "Lease Term" shall mean a period of one month,
commencing on September 1, 2000 (the "Commencement
Date"). The Lease Term shall automatically renew for
consecutive periods of one (1) month each until
terminated by either party with thirty (30) days prior
written notice of termination delivered to the other
party. Any such termination shall be effective as of the
last day of the first full month following the date
written notice of termination is delivered to the other
party by the terminating party.
(g) "Base Monthly Rent": the sum of [***] due and payable
on or before the first day of each calendar month at the office
of Landlord during the Lease Term without prior demand, subject
to adjustment as hereinafter provided, provided that the Base
Monthly Rent for the first full calendar month of the Lease Term
and any partial calendar month at the beginning of the Lease
Term shall be payable upon the execution of this Lease by
Tenant. Base Monthly Rent for any partial month shall be
prorated.
(h) "Security Deposit": INTENTIONALLY DELETED.
(i) "Permitted Use": The storage of equipment, inventory or other
non-perishable items normally used in Tenant's business and for
no other purpose whatsoever.
(j) "Utilities Charge": INTENTIONALLY DELETED.
(k) All Base Monthly Rent, additional rent and other charges due
hereunder shall be made payable to the order of Equity Office
Properties, or such other party as Landlord may direct.
2. GRANTING CLAUSE. Subject to and upon the terms herein set forth,
Landlord leases to Tenant and Tenant leases from Landlord the Premises,
together with the right, in common with others, to use the common areas
of the Building.
3. SERVICES BY LANDLORD. Landlord shall not supply air-cooling, heat,
water, janitorial service, cleaning, standard passenger or freight
elevator service (it being understood that if standard elevator service
is not supplied, non-standard elevator service will be supplied) window
washing or electricity (for purposes other than lighting) to the
Premises. Tenant shall be responsible for all such services. Failure to
furnish or stoppage of any services that Landlord is obligated to
supply, if any, shall not render Landlord liable in any respect for
damages to person, property or business. Any such failure or stoppage
shall not be construed as constructive eviction of Tenant, grounds for
an abatement of rent, or relieve Tenant from the fulfillment of any
term, covenant, or agreement under this Lease.
4. PAYMENTS.
(a) Tenant shall pay to Landlord all rents and other sums required
to be paid under this Lease without demand, setoff or deduction
whatsoever at the times and in the manner provided. The
obligation of Tenant to pay Rent is an independent covenant, and
no act or circumstance, whether constituting breach of any
covenant by Landlord or not, shall release Tenant of this
obligation.
(b) Tenant shall pay to Landlord, as additional rent, all charges
for any miscellaneous services, goods, or materials furnished by
Landlord at Tenant's request which are not required to be
furnished by Landlord under this Lease.
(c) If applicable, Tenant shall pay to Landlord, as additional rent,
the Utilities Charge described in Section 1 above.
(d) Tenant shall pay to Landlord, as additional rent, any rent,
sales or use tax or other similar taxes, if any, levied or
imposed by any city, state, county or other governmental body as
a result of Tenant's occupancy, lease or use of the Premises but
such taxes shall not include any income, capital levy,
franchise, capital stock, gift, estate or inheritance tax
imposed on Landlord.
1
(e) In the event that payment of any amount required to be paid by
Tenant pursuant to this Lease is not made within five (5)
calendar days of the date it is due, a service fee of five
percent (5%) of the delinquent amount will be due and payable
immediately to Landlord as additional rent, plus interest from
the date such payment is due at the lesser of (i) the greatest
per annum rate of interest permitted from time to time under
applicable law (the "Maximum Rate") and (ii) the per annum
interest rate publicly announced by The First National Bank of
Chicago, or any successor thereof, from time to time (whether or
not charged in each instance) as the prime or base rate in
Chicago, Illinois (the "Prime Rate") plus five percent(5%).
(f) All payments required from Tenant (except Base Monthly Rent)
shall be deemed additional rent hereunder. The Base Monthly Rent
and additional rent hereinafter is referred to, collectively, as
"Rent".
5. TRANSFER OF LANDLORD'S RIGHTS. Landlord shall have the right to transfer
and assign, in whole or in part, all of its interests, rights, and
obligations hereunder and in the Building and the real estate associated
therewith. Such transfers or assignments, howsoever made, are to be
fully respected and recognized by Tenant. Any such transfer shall
operate to release Landlord from liability under this Lease from and
after the effective date thereof, except as it may relate to the period
prior to such effective date. This lease shall inure to the benefit of
the Landlord and its successors and assigns; and with the written
consent of Landlord first had, to the benefit of the heirs, executors
and/or administrators, successors and assigns of Tenant.
6. POSSESSION. If for any reason the Premises shall not be ready for
occupancy by Tenant at the time of commencement of this Lease, this
Lease shall not be affected thereby and Tenant waives and releases all
claims for damages arising out of any such delay. No Rent shall be
payable for the period during which the Premises shall not be ready for
occupancy unless such delay is caused by Tenant. By moving into the
Premises or taking possession thereof, Tenant is deemed to have accepted
the Premises and agreed that the Premises is in good order and
satisfactory condition, with no representation or warranty by Landlord
as to the condition of the Premises or the Building or the suitability
thereof for Tenant's use. Tenant by said act waives any and all defects
therein.
7. INDEMNITY, LIABILITY AND LOSS OR DAMAGE. Landlord shall not be liable to
Tenant or Tenant's agents, employees, guests, invitees, or to any person
claiming by, through or under Tenant for any injury to person, loss or
damage to property, or for loss or damage to business, occasioned by or
through the acts or omissions of Landlord or any other person, or by any
other cause whatsoever except for Landlord's gross negligence or willful
misconduct. To the extent Landlord is not prevented by law from
contracting against such liability, Tenant shall indemnify Landlord, its
principals, partners, members, agents, beneficiaries, and employees and
save them harmless from all suits, actions, damages, liabilities, and
expenses relating to the loss of life, bodily or personal injury, or
property damage arising from or out of any occurrence in, upon, at, or
from the Premises (unless caused by the sole active negligence or
willful misconduct of Landlord, its employees or agents) or Tenant's use
and occupancy thereof. If Landlord shall, without fault on its part,
be made a party to any action commenced by or against Tenant, Tenant
shall protect and hold Landlord harmless and shall pay all of
Landlord's costs and expenses associated therewith, including, without
limitations, reasonable attorney's fees. If the Building shall be so
damaged by fire or other casualty that, in Landlord's reasonable
judgment, substantial alteration or reconstruction of the Building shall
be required, or if the Premises has been damaged, Landlord may, at its
option, terminate this Lease by notifying Tenant in writing of such
termination within thirty (30) days after the date of such casualty.
Such termination shall be effective (i) as of the date of fire or
casualty with respect to any portion of the Premises that was rendered
untenantable, and (ii) as of the effective date of termination specified
in Landlord's notice with respect to any portion of the Premises that
remain tenantable. If this Lease is not so terminated by Landlord,
Landlord shall proceed with reasonable diligence to restore the Premises
and the Building, and Tenant shall receive an appropriate diminution of
Rent for that portion of the Premises which is untenantable.
8. LEGAL USE. Tenant will not occupy or use, nor permit any portion of the
Premises to be occupied or used for any purpose other than the Permitted
Use specified in the Definitions and Basic Provisions portion of this
Lease, nor for any business or purpose which is unlawful in part or in
whole or deemed to be disreputable or hazardous in any manner.
9. INSURANCE. During the Lease Term and any extension thereof, Tenant at
its own cost and expense, shall maintain and provide Commercial General
Liability insurance coverage for the benefit and protection of Landlord
and Tenant, naming both as insureds in an amount not less than
$2,000,000 Combined Single Limit per occurrence with an aggregate of
$2,000,000. Tenant shall also carry "all risk" physical loss insurance
coverage for the full replacement cost of all items of Tenant's personal
property in, on or about the Premises. All insurance provided hereunder
shall be secured from responsible companies acceptable to Landlord and
qualified to do business in the state where the Premises are located.
Prior to the Commencement Date of the Lease Term, Tenant shall furnish
Landlord with certificates evidencing such coverage and stating that
such coverage may not be changed or canceled by the insurer or Tenant
without at least thirty (30) days prior written notice to Landlord.
10. WAIVER OF SUBROGATION. The parties hereby intend that the risks of loss,
damage, and injury in connection with this Lease, Landlord's ownership
and operation of the Building, and Tenant's leasing and occupancy of the
Premises are to be allocated as far as possible to insurance. Therefore,
Landlord and Tenant each hereby waive all claims, actions, and demands
against each other, and each hereby releases the other from all
liability, to the maximum extent permitted by law, for any loss, damage
or injury to business, persons or property of any kind or nature, to the
extent such loss, damage, or injury is compensated by insurance or
required to be insured hereunder. The foregoing waivers shall not apply
to the extent such waivers would operate to invalidate or preclude
recovery under any policies of insurance or where endorsements to such
insurance policies recognizing such waivers are not available at
reasonable cost.
11. ALTERATIONS, ADDITIONS,IMPROVEMENTS. Tenant shall not make alterations
in or additions or improvements to the Premises without Landlord's prior
written consent, which consent will not be unreasonably withheld. All
such work shall: (a) be at Tenant's expense; (b) comply with all
insurance requirements and with all applicable ordinances, regulations,
and statutes of the jurisdictions in which the Premises are located; (c)
in Landlord's reasonable judgment, be performed in a good and
workmanlike manner, in accordance with sound building practices; and (d)
not interfere with other tenants' use of their premises within the
Building. All required working
2
drawings and specifications shall be prepared at Tenant's expense by an
architect, space planner, or engineer approved by Landlord. Tenant shall
pay any increase in taxes resulting from such improvements. Before
undertaking any alterations or construction, Tenant shall pay for and
deliver to Landlord a public liability policy insuring Landlord and
Tenant against any liability which may arise on account of such proposed
alterations or construction work in a form and amounts reasonably
acceptable to Landlord. All such alterations, additions or improvements
installed by Tenant on the Premises shall be performed using new or
completely reconditioned materials and, except as otherwise provided
herein, shall remain the property of Landlord.
12. LANDLORD RIGHTS. This Lease does not grant any rights to light or air
over or about the Building. Landlord shall have the right at any time to
alter, repair, or improve any portion of the Premises and the Building.
Tenant will permit Landlord, its respective officers, agents and
representatives to enter into and upon all parts of the Premises, at all
reasonable hours, to inspect, clean, repair, make alterations and
additions as Landlord may deem necessary, and for any other valid
business reason. Except in emergencies, Landlord shall provide Tenant
with reasonable prior notice of entry into the Premises, which may be
given orally. Landlord and its representatives for any such purpose may
enter on and about the Premises or the Building with building materials,
and erect scaffolding and all other necessary structures. Tenant shall
not be entitled to any abatement or reduction of Rent by reason thereof
and Tenant waives any claim for any damage or inconvenience which may
thereby arise. Notwithstanding the foregoing, except in emergency
situations as determined by Landlord, Landlord shall exercise reasonable
efforts to perform any entry into the Premises in a manner that is
reasonably designed to minimize interference with the operation of
Tenant's business in the Premises.
13. LIENS BY TENANT. Tenant shall keep the Premises, the Building and the
real estate of which the Building forms a part free from any liens
arising out of any work performed by, materials furnished to, or
obligations incurred by Tenant. In the event any such lien is imposed
against the Premises or Building and if Tenant does not cause the lien
to be released within thirty (30) days following the imposition of any
such lien, Landlord may cause the same to be released by such means as
it shall deem proper. All sums paid by Landlord and all expenses
incurred by it in connection therewith shall automatically create an
obligation of Tenant to pay, within five (5) days after demand, an
equivalent amount. No work which Landlord permits Tenant to perform
shall be deemed to be for the immediate use and benefit of Landlord, and
no mechanic's or other lien shall be allowed against the estate of
Landlord by reason of its consent to such work.
14. REPAIRS AND RE-ENTRY; SURRENDER. Tenant will, at Tenant's own cost and
expense, keep the Premises in sound condition and good repair, and shall
repair or replace any damage or injury done to the Building or any part
thereof by Tenant or Tenant's employees, servants, agents, contractors
or invitees. If Tenant fails to make such repairs or replacements within
fifteen (15) days of occurrence, Landlord may, at its option, make such
repairs or replacements, and Tenant shall repay all costs thereof, plus
a ten percent (10%) administrative fee, to Landlord on demand. Tenant
will not commit or allow any waste or damage to be committed on any
portion of the Premises. Tenant shall at termination of this Lease, by
lapse of time or otherwise, deliver up said Premises to Landlord in as
good condition as it was as of the date of possession (ordinary wear and
tear excepted) and Landlord shall have the right to re-enter and resume
possession of the Premises whether or not the Premises have been vacated
by Tenant.
15. SIGNAGE. Tenant will not place, suffer to be placed, or maintain on any
exterior door, wall, or window of the Premises or the Building any sign,
awning, canopy, advertising matter, or any other thing of any kind
without first obtaining Landlord's written approval, which may be
withheld in Landlord's sole and unfettered discretion. If such approval
is granted by Landlord, Tenant shall maintain such item(s) in good
condition at all times.
16. ATTORNEY'S FEES. In case Tenant defaults in the performance of any of
the terms, covenants, agreements, or conditions contained in this Lease,
and Landlord places the enforcement of this Lease, or any part thereof,
in the hands of an attorney or files suit upon the same, Tenant agrees
to pay any and all of Landlord's costs and expenses associated
therewith, including, without limitation, reasonable attorney's fees.
17. LIEN FOR RENT. INTENTIONALLY DELETED.
18. SECURITY DEPOSIT. INTENTIONALLY DELETED.
19. LIMITATION OF LANDLORD'S LIABILITY. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY
SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL BE LIMITED TO THE INTEREST
OF LANDLORD IN THE BUILDING, AND TENANT AGREES TO LOOK SOLELY TO
LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY JUDGMENT OR
AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER LANDLORD NOR
ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR OR
BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY
SUIT FOR AN ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE
LANDLORD AND ALL MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
OR DEED OF TRUST LIENS ON THE PROPERTY, BUILDING OR PREMISES NOTICE AND
REASONABLE TIME TO CURE SUCH ALLEGED DEFAULT BY LANDLORD.
20. NOTICES. Any notice required or permitted to be given hereunder by one
party to the other shall be deemed to be given when personally
delivered, or mailed by registered or certified mail with return receipt
requested, or sent by a national overnight courier service to the
respective party to whom notice is intended to be given at the
appropriate address provided in Section 1. Any notice under this Lease
delivered by registered or certified mail shall be deemed to have been
given, delivered and effective on the earlier of (a) the third day
following the day on which the same shall have been mailed with
sufficient postage prepaid or (b) the delivery date or refusal date
indicated on the return receipt. Notice sent by overnight courier
service shall be deemed given, delivered and effective upon the day
after such notice is delivered to or picked up by the overnight courier
service. Notice sent by personal delivery shall be deemed given,
delivered and effective upon the date actually delivered or refused.
21. BROKERS. Tenant represents and warrants to Landlord that neither it, its
officers, or agents, nor anyone on its behalf has dealt with any real
estate broker in the negotiation or making of this Lease. Tenant agrees
to
3
indemnify and hold Landlord harmless from the claim or claims of any
broker or brokers claiming to have interested Tenant in the Building or
Premises or claiming to have caused Tenant to enter into this Lease.
22. RULES OF THE BUILDING. Tenant agrees to keep the Premises in a neat and
orderly fashion and to keep all stored items in cartons, file cabinets
or other suitable containers. Landlord shall have the right to designate
the location within the Premises of any items to be placed therein. All
items stored in the Premises shall be elevated at least six inches above
the floor on wooden pallets, and shall be at least eighteen inches below
the bottom of all sprinklers located in the ceiling of the Premises, if
any. Tenant shall not store anything in the Premises which is unsafe or
which otherwise may create a hazardous condition, or which may increase
Landlord's insurance rates, or cause a cancellation or modification of
Landlord's insurance coverage. Without limitation, Tenant shall not
store any flammable, combustible or explosive fluid, chemical or
substance nor any perishable food or beverage products, except with
Landlord's prior written approval. Tenant, Tenant's agents, employees,
and invitees will comply fully with the rules and regulations of the
Building either attached hereto or delivered to Tenant by Landlord.
Landlord shall at all times have the right to change such rules and
regulations in such reasonable manner as may be deemed advisable for the
safety, care, and cleanliness of the Building, its tenanted areas, and
the preservation of good order therein. All such changes will be
forwarded to Tenant in writing and shall be carried out and observed by
Tenant.
23. ABANDONMENT. If the Premises are abandoned or vacated by Tenant,
Landlord shall have the right, but not the obligation, to: (a) provide
for the storage of any personal property remaining in the Premises
without liability of any kind or nature for the cost of storage or the
return of the personal property to Tenant, and/or (b) take title to the
abandoned personal property, which title shall pass to Landlord under
this Lease as a ▇▇▇▇ of Sale, without additional payments or credit from
Landlord or Tenant.
24. RELOCATION. INTENTIONALLY DELETED.
25. HOLDING OVER. In the event of holding over by Tenant after expiration or
other termination of this Lease, occupancy of the Premises subsequent to
such termination or expiration shall be that of a tenancy at sufferance
and in no event for month-to-month or year-to-year, but Tenant shall,
throughout the entire holdover period, be subject to all the terms and
provisions of this Lease and shall pay for its use and occupancy an
amount (on a per month basis without reduction for any partial months
during any such holdover) equal to twice the sum of the Base Monthly
Rent and additional rent due for the period immediately preceding such
holding over, provided that in no event shall Base Monthly Rent and
additional rent during the holdover period be less than the fair market
rental for the Premises. No holding over by Tenant or payments of money
by Tenant to Landlord after the expiration of the Lease Term shall be
construed to extend the Lease Term or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or
otherwise. In addition to the obligation to pay the amounts set forth
above during any such holdover period, Tenant also shall be liable to
Landlord for all damage, including any consequential damage, which
Landlord may suffer by reason of any holding over by Tenant, and Tenant
shall indemnify Landlord against any and all claims made by any other
tenant or prospective tenant against Landlord for delay by Landlord in
delivering possession of the Premises to such other tenant or
prospective tenant.
26. DEFAULTS AND REMEDIES. If: (a) Tenant fails to comply with any term,
provision, condition, or covenant of this Lease or any of the rules and
regulations now or hereafter established for the Building by Landlord;
or (b) Tenant abandons the Premises; or (c) any petition is filed by or
against Tenant under any section or chapter of the Federal Bankruptcy
Act, as amended, or under any similar law or statute of the United
States or of any state thereof; or (d) Tenant becomes insolvent or makes
a transfer in fraud of creditors; or (e) Tenant makes an assignment for
benefit of creditors; or (f) a receiver is appointed for Tenant or any
of the assets of Tenant, Landlord shall have the option to do any one or
more of the following without notice in addition to and not in
limitation of any other remedy permitted by law or by this Lease;
(i) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant shall fail to do
so, Landlord may, without notice or prejudice to any other
remedy Landlord may have for possession and/or for arrearage in
Rent, enter upon and take possession of the Premises and expel
or remove Tenant and its effects, without being liable for
prosecution or any claim for damages. Tenant agrees to indemnify
Landlord for all loss, damage, and expense, including any
reasonable attorney's fees which Landlord may incur by reason of
such termination.
(ii) Declare the entire amount of all Rent which would have become
due and payable during the remainder of the Lease Term (which
declaration may not however include Rent for any calendar month
more than one month after the calendar month in which such
declaration is made), due and payable immediately, in which
event Tenant agrees to pay the same at once to Landlord. Such
payments shall not constitute a penalty, a forfeiture, or
liquidated damages, but shall merely constitute payment in
advance of the Rent for the remainder of the Lease Term. The
acceptance of such payment by Landlord shall not constitute a
waiver of any failure of Tenant to comply with any term,
provision, condition, or covenant of this Lease.
(iii) Enter upon and take possession of the Premises, without
terminating this Lease and without being liable for prosecution
or any claim for damages. Landlord may relet the Premises as the
agent of the Tenant and receive the rent therefor. The failure
or refusal of Landlord to relet the Premises shall not release
or affect Tenant's liability for all Rent or for any and all
such damages involved.
(iv) Enforce Tenant's specific performance of each and every
provision of this Lease.
Landlord may, as agent of Tenant, do whatever Tenant is obligated to do
by the provisions of this Lease and may enter the Premises without being
liable for prosecution or any claim for damages therefor, in order to
accomplish this purpose. Tenant agrees to reimburse Landlord immediately
upon demand for any expenses and costs, including, without limitation,
reasonable attorney's fees, which Landlord may incur in effecting
compliance with this Lease on behalf of Tenant. Tenant further agrees
that Landlord shall not be liable for any damages resulting to Tenant
from such action, whether caused by the negligence of Landlord or
otherwise.
4
If Tenant or Tenant's subsidiary or affiliate shall have other leases
for other premises in the Building, any default by Tenant under any such
other leases shall be deemed to be a default herein, and Landlord shall
be entitled to enforce all rights and remedies as provided for a default
herein.
Failure by Landlord to declare any default immediately upon occurrence
thereof, or delay in taking any action in connection therewith, shall
not waive such default, but Landlord shall have the right to declare any
such default at any time and take action as might be lawful or
authorized hereunder, either in law or in equity. Pursuit of any of the
foregoing remedies shall not preclude pursuit of any of the other
remedies.
27. NO WAIVER. No act or thing done by Landlord or its agents during the
Lease Term shall be deemed an acceptance of a surrender of the Premises.
The acceptance of Rent by Landlord with knowledge of the breach of any
covenant contained in this Lease and/or the failure of Landlord to
enforce any of the rules and regulations against Tenant (or any other
tenant) shall not be deemed a waiver. Any agreement to accept a
surrender of the Premises or accept a waiver of said covenants, rules
and regulations by Landlord shall not be valid unless made in writing
and signed by Landlord. Similarly, the payment of Rent by Tenant with
knowledge of the breach of any covenant contained in this Lease by
Landlord shall not be deemed a waiver. Any agreement to accept a waiver
of any said covenant by Tenant shall not be valid unless made in writing
and signed by Tenant. The mention in this Lease or the pursuit of any
particular remedy shall not preclude Landlord or Tenant from any other
remedy such party might have, either in law or in equity.
28. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE. Tenant accepts this
Lease subject and subordinate to any mortgage, deed of trust, ground
lease or other lien presently existing or hereafter arising upon the
Premises or upon the Building and to any renewals, modifications,
refinancings and extensions thereof (any such mortgage, deed of trust,
lease or other lien being hereinafter referred to as a "Mortgage", and
the person or entity having the benefit of same being referred to
hereinafter as a "Mortgage"), but Tenant agrees that any such Mortgagee
shall have the right at any time to subordinate such Mortgage to this
Lease on such terms and subject to such conditions as such Mortgagee may
deem appropriate in its discretion. This clause shall be self-operative
and no further instrument of subordination shall be required. However,
Landlord is hereby irrevocably vested with full power and authority to
subordinate this Lease to any Mortgage, and Tenant agrees upon demand to
execute such further instruments subordinating this Lease, acknowledging
the subordination of this Lease or attorning to the holder of any such
Mortgage as Landlord may request. The terms of this Lease are subject to
approval by the Landlord's existing lender(s) and any lender(s) who, at
the time of the execution of this Lease, have committed or are
considering committing to Landlord to make a loan secured by all or any
portion of the Building or the underlying real estate and such approval
is a condition precedent to Landlord's obligations hereunder. If any
person shall succeed to all or part of Landlord's interest in the
Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of Lease or otherwise, then if and as so
requested or required by such successor-in-interest, Tenant shall,
without charge, attorn to such successor-in-interest. Tenant agrees that
it will from time to time upon request by Landlord and, within ten (10)
days of the date of such request, execute and deliver to such persons as
Landlord shall request an estoppel certificate or other similar
statement in recordable form certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that
the same is in full force and effect as so modified), stating the dates
to which Rent and other charges payable under this Lease have been paid,
stating that Landlord is not in default hereunder (or if Tenant alleges
a default, stating the nature of such alleged default) and further
stating such other matters as Landlord shall reasonably require.
29. MISCELLANEOUS.
(a) If any term or provision of this Lease shall, to any extent, be
invalid or unenforceable, the remainder of this Lease shall not
be affected thereby, and each term and provision of this Lease
shall be valid and enforced to the fullest extent permitted by
law.
(b) Tenant agrees not to record this Lease or any memorandum hereof.
(c) This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with
the laws of the state in which the Building is located.
(d) If there is more than one Tenant, or if the Tenant is comprised
of more than one person or entity, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of
all such parties. All notices, payments, and agreements given or
made by, with or to any one of such persons or entities shall be
deemed to have been given or made by, with or to all of them.
(e) In the event Tenant is a corporation (including any form of
professional association), partnership (general or limited), or
other form of organization other than an individual (each such
entity is individually referred to herein as an "Organizational
Entity"), then each individual executing or attesting this Lease
on behalf of Tenant hereby covenants, warrants and represents:
(1) that such individual is duly authorized to execute or attest
and deliver this Lease on behalf of Tenant in accordance with
the organizational documents of Tenant; (2) that this Lease is
binding upon Tenant; and (3) that Tenant is duly organized and
legally existing in the state of its organization, and is
qualified to do business in the state in which the Premises is
located.
(f) Except as expressly otherwise herein provided, with respect to
all required acts of Tenant, time is of the essence of this
Lease. This Lease shall create the relationship of Landlord and
Tenant between the parties hereto. In the event the Building is
located in the state of Georgia, no estate shall pass out of
Landlord and Tenant shall have only a usufruct, not subject to
purchase or sale, which may not be assigned by Tenant except as
expressly provided in this Lease.
(g) Notwithstanding anything to the contrary contained in this
Lease, the expiration of the Lease Term, whether by lapse of
time or otherwise, shall not relieve Tenant from Tenant's
obligations accruing prior to the expiration of the Lease Term,
and such obligations shall survive any such expiration or other
termination of the Lease Term.
(h) The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no effect upon the construction
or interpretation of any part hereof.
5
(i) LANDLORD HAS DELIVERED A COPY OF THIS LEASE TO TENANT FOR
TENANT'S REVIEW ONLY, AND THE DELIVERY HEREOF DOES NOT
CONSTITUTE AN OFFER TO TENANT OR OPTION. THIS LEASE SHALL NOT BE
EFFECTIVE UNTIL AN ORIGINAL OF THIS LEASE EXECUTED BY BOTH
LANDLORD AND TENANT AND AN ORIGINAL GUARANTY, IF ANY, EXECUTED
BY EACH GUARANTOR IS DELIVERED TO AND ACCEPTED BY LANDLORD, AND
THIS LEASE HAS BEEN APPROVED BY LANDLORD'S MORTGAGEES, IF
REQUIRED.
30. ENTIRE AGREEMENT. This Lease agreement, including the following
Exhibits:
EXHIBIT A -Outline and Location of Premises
constitutes the entire agreement between the parties hereto with
respect to the subject matter of this Lease and supersedes all
prior agreements and understandings between the parties related
to the Premises, including all lease proposals, letters of
intent and similar documents. TENANT EXPRESSLY ACKNOWLEDGES AND
AGREES THAT LANDLORD HAS NOT MADE AND IS NOT MAKING, AND TENANT,
IN EXECUTING AND DELIVERING THIS LEASE, IS NOT RELYING UPON, ANY
WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPT TO
THE EXTENT THAT THE SAME ARE EXPRESSLY SET FORTH IN THIS LEASE.
ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN THE
PARTIES ARE MERGED IN THIS LEASE WHICH ALONE FULLY AND
COMPLETELY EXPRESSES THE AGREEMENT OF THE PARTIES, NEITHER PARTY
RELYING UPON ANY STATEMENT OR REPRESENTATION NOT EMBODIED IN
THIS LEASE. THIS LEASE MAY BE MODIFIED ONLY BY A WRITTEN
AGREEMENT SIGNED BY LANDLORD AND TENANT. LANDLORD AND TENANT
EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED
WARRANTIES OF MERCHANTABILITY, HABITABILITY, SUITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING
OUT OF THIS LEASE, ALL OF WHICH ARE HEREBY WAIVED BY TENANT, AND
THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY
SET FORTH IN THIS LEASE.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed as
of the day and year first above written.
WITNESS; ATTESTATION LANDLORD: EOP-NICOLLET MALL, L.L.C.,
a Delaware limited liability company,
BY: EOP Operating Limited Partnership, a
Delaware limited partnership, its managing
member
BY: Equity Office Properties Trust, a
Maryland real estate investment trust, its
managing partner
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TITLE: Property Manager
TENANT: U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES, INC., a Minnesota
Corporation
BY: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
---------------------------------------------
NAME: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-------------------------------------------
TITLE: MANAGING DIRECTOR
------------------------------------------
6
EXHIBIT A
OUTLINE OF PREMISES
This Exhibit is attached to and made a part of the Agreement dated,
March 23, 2001, by and between, EOP-NICOLLET MALL, L.L.C., a Delaware limited
liability company ("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇, INC., a
Minnesota corporation ("Tenant") for space in the Building located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
[GRAPHIC]
STORAGE SPACE LEASE AGREEMENT
THIS STORAGE SPACE LEASE AGREEMENT ("Lease") is made and entered into as
of this 23rd day of Feb, 2001, by and between the Landlord and Tenant
hereinafter named.
1. DEFINITIONS AND BASIC PROVISIONS.
The following are some of the basic lease information and defined terms
used in this Lease:
(a) "Landlord": EOP-NICOLLET MALL, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY.
(b) "Landlord Address": C/O EQUITY OFFICE PROPERTIES TRUST, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with
a copy of all notices to Equity Office Properties Trust, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel for Property Operations.
(c) "Tenant": U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES, INC., a Delaware
corporation.
(d) "Tenant Address": ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(e) "Premises": approximately 1,089 rentable square feet on floor P3
in the building known as U.S. Bancorp Center located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Building"), such Premises being shown and
outlined on the plan attached hereto as EXHIBIT A.
(f) "Lease Term" shall have the meaning set forth in Subsection
1(f)(i):
(i) "Lease Term" shall mean a period of one month,
commencing on February 20, 2001 (the "Commencement
Date"). The Lease Term shall automatically renew for
consecutive periods of one (1) month each until
terminated by either party with thirty (30) days prior
written notice of termination delivered to the other
party. Any such termination shall be effective as of the
last day of the first full month following the date
written notice of termination is delivered to the other
party by the terminating party.
(g) "Base Monthly Rent": the sum of [***] due and payable on or
before the first day of each calendar month at the office of
Landlord during the Lease Term without prior demand, subject to
adjustment as hereinafter provided, provided that the Base
Monthly Rent for the first full calendar month of the Lease Term
and any partial calendar month at the beginning of the Lease
Term shall be payable upon the execution of this Lease by
Tenant. Base Monthly Rent for any partial month shall be
prorated.
(h) "Security Deposit": INTENTIONALLY DELETED.
(i) "Permitted Use": The storage of equipment, inventory or other
non-perishable items normally used in Tenant's business and for
no other purpose whatsoever.
(j) "Utilities Charge": INTENTIONALLY DELETED.
(k) All Base Monthly Rent, additional rent and other charges due
hereunder shall be made payable to the order of Equity Office
Properties, or such other party as Landlord may direct.
2. GRANTING CLAUSE. Subject to and upon the terms herein set forth,
Landlord leases to Tenant and Tenant leases from Landlord the Premises,
together with the right, in common with others, to use the common areas
of the Building.
3. SERVICES BY LANDLORD. Landlord shall not supply air-cooling, heat,
water, janitorial service, cleaning, standard passenger or freight
elevator service (it being understood that if standard elevator service
is not supplied, non-standard elevator service will be supplied) window
washing or electricity (for purposes other than lighting) to the
Premises. Tenant shall be responsible for all such services. Failure to
furnish or stoppage of any services that Landlord is obligated to
supply, if any, shall not render Landlord liable in any respect for
damages to person, property or business. Any such failure or stoppage
shall not be construed as constructive eviction of Tenant, grounds for
an abatement of rent, or relieve Tenant from the fulfillment of any
term, covenant, or agreement under this Lease.
4. PAYMENTS.
(a) Tenant shall pay to Landlord all rents and other sums required
to be paid under this Lease without demand, setoff or deduction
whatsoever at the times and in the manner provided. The
obligation of Tenant to pay Rent is an independent covenant, and
no act or circumstance, whether constituting breach of any
covenant by Landlord or not, shall release Tenant of this
obligation.
(b) Tenant shall pay to Landlord, as additional rent, all charges
for any miscellaneous services, goods, or materials furnished by
Landlord at Tenant's request which are not required to be
furnished by Landlord under this Lease.
(c) If applicable, Tenant shall pay to Landlord, as additional rent,
the Utilities Charge described in Section 1 above.
(d) Tenant shall pay to Landlord, as additional rent, any rent,
sales or use tax or other similar taxes, if any, levied or
imposed by any city, state, county or other governmental body as
a result of Tenant's occupancy, lease or use of the Premises but
such taxes shall not include any income, capital levy,
franchise, capital stock, gift, estate or inheritance tax
imposed on Landlord.
1
(e) In the event that payment of any amount required to be paid by
Tenant pursuant to this Lease is not made within five (5)
calendar days of the date it is due, a service fee of five
percent (5%) of the delinquent amount will be due and payable
immediately to Landlord as additional rent, plus interest from
the date such payment is due at the lesser of (i) the greatest
per annum rate of interest permitted from time to time under
applicable law (the "Maximum Rate") and (ii) the per annum
interest rate publicly announced by The First National Bank of
Chicago, or any successor thereof, from time to time (whether or
not charged in each instance) as the prime or base rate in
Chicago, Illinois (the "Prime Rate") plus five percent (5%).
(f) All payments required from Tenant (except Base Monthly Rent)
shall be deemed additional rent hereunder. The Base Monthly Rent
and additional rent hereinafter is referred to, collectively, as
"Rent".
5. TRANSFER OF LANDLORD'S RIGHTS. Landlord shall have the right to transfer
and assign, in whole or in part, all of its interests, rights, and
obligations hereunder and in the Building and the real estate associated
therewith. Such transfers or assignments, howsoever made, are to be
fully respected and recognized by Tenant. Any such transfer shall
operate to release Landlord from liability under this Lease from and
after the effective date thereof, except as it may relate to the period
prior to such effective date. This Lease shall inure to the benefit of
the Landlord and its successors and assigns; and with the written
consent of Landlord first had, to the benefit of the heirs, executors
and/or administrators, successors and assigns of Tenant.
6. POSSESSION. If for any reason the Premises shall not be ready for
occupancy by Tenant at the time of commencement of this Lease, this
Lease shall not be affected thereby and Tenant waives and releases all
claims for damages arising out of any such delay. No Rent shall be
payable for the period during which the premises shall not be ready for
occupancy unless such delay is caused by Tenant. By moving into the
Premises or taking possession thereof, Tenant is deemed to have accepted
the Premises and agreed that the Premises is in good order and
satisfactory condition, with no representation or warranty by Landlord
as to the condition of the Premises or the Building or the suitability
thereof for Tenant's use. Tenant by said act waives any and all defects
therein.
7. INDEMNITY, LIABILITY AND LOSS OR DAMAGE. Landlord shall not be liable to
Tenant or Tenant's agents, employees, guests, invitees, or to any person
claiming by, through or under Tenant for any injury to person, loss or
damage to property, or for loss or damage to business, occasioned by or
through the acts or omissions of Landlord or any other person, or by any
other cause whatsoever except for Landlord's gross negligence or willful
misconduct. To the extent Landlord is not prevented by law from
contracting against such liability, Tenant shall indemnify Landlord, its
principals, partners, members, agents, beneficiaries, and employees and
save them harmless from all suits, actions, damages, liabilities, and
expenses relating to the loss of life, bodily or personal injury, or
property damage arising from or out of any occurrence in, upon, at, or
from the Premises (unless caused by the sole active negligence or
willful misconduct of Landlord, its employees or agents) or Tenant's use
and occupancy thereof. If Landlord shall, without fault on its part, be
made a party to any action commenced by or against Tenant, Tenant shall
protect and hold Landlord harmless and shall pay all of Landlord's costs
and expenses associated therewith, including, without limitations,
reasonable attorney's fees. If the Building shall be so damaged by fire
or other casualty that, in Landlord's reasonable judgment, substantial
alteration or reconstruction of the Building shall be required, or if
the Premises has been damaged, Landlord may, at its option, terminate
this Lease by notifying Tenant in writing of such termination within
thirty (30) days after the date of such casualty. Such termination shall
be effective (i) as of the date of fire or casualty with respect to any
portion of the Premises that was rendered untenantable, and (ii) as of
the effective date of termination specified in Landlord's notice with
respect to any portion of the Premises that remain tenantable. If this
Lease is not so terminated by Landlord, Landlord shall proceed with
reasonable diligence to restore the Premises and the Building, and
Tenant shall receive an appropriate diminution of Rent for that portion
of the Premises which is untenantable.
8. LEGAL USE. Tenant will not occupy or use, nor permit any portion of the
Premises to be occupied or used for any purpose other than the Permitted
Use specified in the Definitions and Basic Provisions portion of this
Lease, nor for any business or purpose which is unlawful in part or in
whole or deemed to be disreputable or hazardous in any manner.
9. INSURANCE. During the Lease Term and any extension thereof, Tenant at
its own cost and expense, shall maintain and provide Commercial General
Liability insurance coverage for the benefit and protection of Landlord
and Tenant, naming both as insureds in an amount not less than
$2,000,000 Combined Single Limit per occurrence with an aggregate of
$2,000,000. Tenant shall also carry "all risk" physical loss insurance
coverage for the full replacement cost of all items of Tenant's personal
property in, on or about the Premises. All insurance provided hereunder
shall be secured from responsible companies acceptable to Landlord and
qualified to do business in the state where the Premises are located.
Prior to the Commencement Date of the Lease Term, Tenant shall furnish
Landlord with certificates evidencing such coverage and stating that
such coverage may not be changed or canceled by the insurer or Tenant
without at least thirty (30) days prior written notice to Landlord.
10. WAIVER OF SUBROGATION. The parties hereby intend that the risks of loss,
damage, and injury in connection with this Lease, Landlord's ownership
and operation of the Building, and Tenant's leasing and occupancy of the
Premises are to be allocated as far as possible to insurance. Therefore,
Landlord and Tenant each hereby waive all claims, actions, and demands
against each other, and each hereby releases the other from all
liability, to the maximum extent permitted by law, for any loss, damage
or injury to business, persons or property of any kind or nature, to the
extent such loss, damage, or injury is compensated by insurance or
required to be insured hereunder. The foregoing waivers shall not apply
to the extent such waivers would operate to invalidate or preclude
recovery under any policies of insurance or where endorsements to such
insurance policies recognizing such waivers are not available at
reasonable cost.
11. ALTERATIONS, ADDITIONS,IMPROVEMENTS. Tenant shall not make alterations
in or additions or improvements to the Premises without Landlord's prior
written consent, which consent will not be unreasonably withheld. All
such work shall: (a) be at Tenant's expense; (b) comply with all
insurance requirements and with all applicable ordinances, regulations,
and statutes of the jurisdictions in which the Premises are located; (c)
in Landlord's reasonable judgment, be performed in a good and
workmanlike manner, in accordance with sound building practices; and (d)
not interfere with other tenants' use of their premises within the
Building. All required working
2
drawings and specifications shall be prepared at Tenant's expense by an
architect, space planner, or engineer approved by Landlord. Tenant shall
pay any increase in taxes resulting from such improvements. Before
undertaking any alterations or construction, Tenant shall pay for and
deliver to Landlord a public liability policy insuring Landlord and
Tenant against any liability which may arise on account of such proposed
alterations or construction work in a form and amounts reasonably
acceptable to Landlord. All such alterations, additions or improvements
installed by Tenant on the Premises shall be performed using new or
completely reconditioned materials and, except as otherwise provided
herein, shall remain the property of Landlord.
12. LANDLORD RIGHTS. This Lease does not grant any rights to light or air
over or about the Building. Landlord shall have the right at any time to
alter, repair, or improve any portion of the Premises and the Building.
Tenant will permit Landlord, its respective officers, agents and
representatives to enter into and upon all parts of the Premises, at all
reasonable hours, to inspect, clean, repair, make alterations and
additions as Landlord may deem necessary, and for any other valid
business reason. Except in emergencies, Landlord shall provide Tenant
with reasonable prior notice of entry into the Premises, which may be
given orally. Landlord and its representatives for any such purpose may
enter on and about the Premises or the Building with building materials,
and erect scaffolding and all other necessary structures. Tenant shall
not be entitled to any abatement or reduction of Rent by reason thereof
and Tenant waives any claim for any damage or inconvenience which may
thereby arise. Notwithstanding the foregoing, except in emergency
situations as determined by Landlord, Landlord shall exercise reasonable
efforts to perform any entry into the Premises in a manner that is
reasonably designed to minimize interference with the operation of
Tenant's business in the Premises.
13. LIENS BY TENANT. Tenant shall keep the Premises, the Building and the
real estate of which the Building forms a part free from any liens
arising out of any work performed by, materials furnished to, or
obligations incurred by Tenant. In the event any such lien is imposed
against the Premises or Building and if Tenant does not cause the lien
to be released within thirty (30) days following the imposition of any
such lien, Landlord may cause the same to be released by such means as
it shall deem proper. All sums paid by Landlord and all expenses
incurred by it in connection therewith shall automatically create an
obligation of Tenant to pay, within five (5) days after demand, an
equivalent amount. No work which Landlord permits Tenant to perform
shall be deemed to be for the immediate use and benefit of Landlord, and
no mechanic's or other lien shall be allowed against the estate of
Landlord by reason of its consent to such work.
14. REPAIRS AND RE-ENTRY; SURRENDER. Tenant will, at Tenant's own cost and
expense, keep the Premises in sound condition and good repair, and shall
repair or replace any damage or injury done to the Building or any part
thereof by Tenant or Tenant's employees, servants, agents, contractors
or invitees. If Tenant fails to make such repairs or replacements within
fifteen (15) days of occurrence, Landlord may, at its option, make such
repairs or replacements, and Tenant shall repay all costs thereof, plus
a ten percent (10%) administrative fee, to Landlord on demand. Tenant
will not commit or allow any waste or damage to be committed on any
portion of the Premises. Tenant shall at termination of this Lease, by
lapse of time or otherwise, deliver up said Premises to Landlord in as
good condition as it was as of the date of possession (ordinary wear and
tear excepted) and Landlord shall have the right to re-enter and resume
possession of the Premises whether or not the Premises have been vacated
by Tenant.
15. SIGNAGE. Tenant will not place, suffer to be placed, or maintain on any
exterior door, wall, or window of the Premises or the Building any sign,
awning, canopy, advertising matter, or any other thing of any kind
without first obtaining Landlord's written approval, which may be
withheld in Landlord's sole and unfettered discretion. If such approval
is granted by Landlord, Tenant shall maintain such item(s) in good
condition at all times.
16. ATTORNEY'S FEES. In case Tenant defaults in the performance of any of
the terms, covenants, agreements, or conditions contained in this Lease,
and Landlord places the enforcement of this Lease, or any part thereof,
in the hands of an attorney or files suit upon the same, Tenant agrees
to pay any and all of Landlord's costs and expenses associated
therewith, including, without limitation, reasonable attorney's fees.
17. LIEN FOR RENT. INTENTIONALLY DELETED.
18. SECURITY DEPOSIT. INTENTIONALLY DELETED.
19. LIMITATION OF LANDLORD'S LIABILITY. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY
SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL BE LIMITED TO THE INTEREST
OF LANDLORD IN THE BUILDING, AND TENANT AGREES TO LOOK SOLELY TO
LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY JUDGMENT OR
AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER LANDLORD NOR
ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR OR
BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY
SUIT FOR AN ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE
LANDLORD AND ALL MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
OR DEED OF TRUST LIENS ON THE PROPERTY, BUILDING OR PREMISES NOTICE AND
REASONABLE TIME TO CURE SUCH ALLEGED DEFAULT BY LANDLORD.
20. NOTICES. Any notice required or permitted to be given hereunder by one
party to the other shall be deemed to be given when personally
delivered, or mailed by registered or certified mail with return receipt
requested, or sent by a national overnight courier service to the
respective party to whom notice is intended to be given at the
appropriate address provided in Section 1. Any notice under this Lease
delivered by registered or certified mail shall be deemed to have been
given, delivered and effective on the earlier of (a) the third day
following the day on which the same shall have been mailed with
sufficient postage prepaid or (b) the delivery date or refusal date
indicated on the return receipt. Notice sent by overnight courier
service shall be deemed given, delivered and effective upon the day
after such notice is delivered to or picked up by the overnight courier
service. Notice sent by personal delivery shall be deemed given,
delivered and effective upon the date actually delivered or refused.
21. BROKERS. Tenant represents and warrants to Landlord that neither it, its
officers, or agents, nor anyone on its behalf has dealt with any real
estate broker in the negotiation or making of this Lease. Tenant agrees
to
3
indemnify and hold Landlord harmless from the claim or claims of any
broker or brokers claiming to have interested Tenant in the Building or
Premises or claiming to have caused Tenant to enter into this Lease.
22. RULES OF THE BUILDING. Tenant agrees to keep the Premises in a neat and
orderly fashion and to keep all stored items in cartons, file cabinets
or other suitable containers. Landlord shall have the right to designate
the location within the Premises of any items to be placed therein. All
items stored in the Premises shall be elevated at least six inches above
the floor on wooden pallets, and shall be at least eighteen inches below
the bottom of all sprinklers located in the ceiling of the Premises, if
any. Tenant shall not store anything in the Premises which is unsafe or
which otherwise may create a hazardous condition, or which may increase
Landlord's insurance rates, or cause a cancellation or modification of
Landlord's insurance coverage. Without limitation, Tenant shall not
store any flammable, combustible or explosive fluid, chemical or
substance nor any perishable food or beverage products, except with
Landlord's prior written approval. Tenant, Tenant's agents, employees,
and invitees will comply fully with the rules and regulations of the
Building either attached hereto or delivered to Tenant by Landlord.
Landlord shall at all times have the right to change such rules and
regulations in such reasonable manner as may be deemed advisable for the
safety, care, and cleanliness of the Building, its tenanted areas, and
the preservation of good order therein. All such changes will be
forwarded to Tenant in writing and shall be carried out and observed by
Tenant.
23. ABANDONMENT. If the Premises are abandoned or vacated by Tenant,
Landlord shall have the right, but not the obligation, to: (a) provide
for the storage of any personal property remaining in the Premises
without liability of any kind or nature for the cost of storage or the
return of the personal property to Tenant, and/or (b) take title to the
abandoned personal property, which title shall pass to Landlord under
this Lease as a ▇▇▇▇ of Sale, without additional payments or credit from
Landlord or Tenant.
24. RELOCATION. INTENTIONALLY DELETED.
25. HOLDING OVER. In the event of holding over by Tenant after expiration or
other termination of this Lease, occupancy of the Premises subsequent to
such termination or expiration shall be that of a tenancy at sufferance
and in no event for month-to-month or year-to-year, but Tenant shall,
throughout the entire holdover period, be subject to all the terms and
provisions of this Lease and shall pay for its use and occupancy an
amount (on a per month basis without reduction for any partial months
during any such holdover) equal to twice the sum of the Base Monthly
Rent and additional rent due for the period immediately preceding such
holding over, provided that in no event shall Base Monthly Rent and
additional rent during the holdover period be less than the fair market
rental for the Premises. No holding over by Tenant or payments of money
by Tenant to Landlord after the expiration of the Lease Term shall be
construed to extend the Lease Term or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or
otherwise. In addition to the obligation to pay the amounts set forth
above during any such holdover period, Tenant also shall be liable to
Landlord for all damage, including any consequential damage, which
Landlord may suffer by reason of any holding over by Tenant, and Tenant
shall indemnify Landlord against any and all claims made by any other
tenant or prospective tenant against Landlord for delay by Landlord in
delivering possession of the Premises to such other tenant or
prospective tenant.
26. DEFAULTS AND REMEDIES. If: (a) Tenant fails to comply with any term,
provision, condition, or covenant of this Lease or any of the rules and
regulations now or hereafter established for the Building by Landlord;
or (b) Tenant abandons the Premises; or (c) any petition is filed by or
against Tenant under any section or chapter of the Federal Bankruptcy
Act, as amended, or under any similar law or statute of the United
States or of any state thereof; or (d) Tenant becomes insolvent or makes
a transfer in fraud of creditors; or (e) Tenant makes an assignment for
benefit of creditors; or (f) a receiver is appointed for Tenant or any
of the assets of Tenant, Landlord shall have the option to do any one or
more of the following without notice in addition to and not in
limitation of any other remedy permitted by law or by this Lease;
(i) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant shall fail to do
so, Landlord may, without notice or prejudice to any other
remedy Landlord may have for possession and/or for arrearage in
Rent, enter upon and take possession of the Premises and expel
or remove Tenant and its effects, without being liable for
prosecution or any claim for damages. Tenant agrees to indemnify
Landlord for all loss, damage, and expense, including any
reasonable attorney's fees which Landlord may incur by reason of
such termination.
(ii) Declare the entire amount of all Rent which would have become
due and payable during the remainder of the Lease Term (which
declaration may not however include Rent for any calendar month
more than one month after the calendar month in which such
declaration is made), due and payable immediately, in which
event Tenant agrees to pay the same at once to Landlord. Such
payments shall not constitute a penalty, a forfeiture, or
liquidated damages, but shall merely constitute payment in
advance of the Rent for the remainder of the Lease Term. The
acceptance of such payment by Landlord shall not constitute a
waiver of any failure of Tenant to comply with any term,
provision, condition, or covenant of this Lease.
(iii) Enter upon and take possession of the Premises, without
terminating this Lease and without being liable for prosecution
or any claim for damages. Landlord may relet the Premises as the
agent of the Tenant and receive the rent therefor. The failure
or refusal of Landlord to relet the Premises shall not release
or affect Tenant's liability for all Rent or for any and all
such damages involved.
(iv) Enforce Tenant's specific performance of each and every
provision of this Lease.
Landlord may, as agent of Tenant, do whatever Tenant is obligated to do
by the provisions of this Lease and may enter the Premises without being
liable for prosecution or any claim for damages therefor, in order to
accomplish this purpose. Tenant agrees to reimburse Landlord immediately
upon demand for any expenses and costs, including, without limitation,
reasonable attorney's fees, which Landlord may incur in effecting
compliance with this Lease on behalf of Tenant. Tenant further agrees
that Landlord shall not be liable for any damages resulting to Tenant
from such action, whether caused by the negligence of Landlord or
otherwise.
4
If Tenant or Tenant's subsidiary or affiliate shall have other leases
for other premises in the Building, any default by Tenant under any such
other leases shall be deemed to be a default herein, and Landlord shall
be entitled to enforce all rights and remedies as provided for a default
herein.
Failure by Landlord to declare any default immediately upon occurrence
thereof, or delay in taking any action in connection therewith, shall
not waive such default, but Landlord shall have the right to declare any
such default at any time and take action as might be lawful or
authorized hereunder, either in law or in equity. Pursuit of any of the
foregoing remedies shall not preclude pursuit of any of the other
remedies.
27. NO WAIVER. No act or thing done by Landlord or its agents during the
Lease Term shall be deemed an acceptance of a surrender of the Premises.
The acceptance of Rent by Landlord with knowledge of the breach of any
covenant contained in this Lease and/or the failure of Landlord to
enforce any of the rules and regulations against Tenant (or any other
tenant) shall not be deemed a waiver. Any agreement to accept a
surrender of the Premises or accept a waiver of said covenants, rules
and regulations by Landlord shall not be valid unless made in writing
and signed by Landlord. Similarly, the payment of Rent by Tenant with
knowledge of the breach of any covenant contained in this Lease by
Landlord shall not be deemed a waiver. Any agreement to accept a waiver
of any said covenant by Tenant shall not be valid unless made in writing
and signed by Tenant. The mention in this Lease or the pursuit of any
particular remedy shall not preclude Landlord or Tenant from any other
remedy such party might have, either in law or in equity.
28. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE. Tenant accepts this
Lease subject and subordinate to any mortgage, deed of trust, ground
lease or other lien presently existing or hereafter arising upon the
Premises or upon the Building and to any renewals, modifications,
refinancings and extensions thereof (any such mortgage, deed of trust,
lease or other lien being hereinafter referred to as a "Mortgage", and
the person or entity having the benefit of same being referred to
hereinafter as a "Mortgagee"), but Tenant agrees that any such Mortgagee
shall have the right at any time to subordinate such Mortgage to this
Lease on such terms and subject to such conditions as such Mortgagee may
deem appropriate in its discretion. This clause shall be self-operative
and no further instrument of subordination shall be required. However,
Landlord is hereby irrevocably vested with full power and authority to
subordinate this Lease to any Mortgage, and Tenant agrees upon demand to
execute such further instruments subordinating this Lease, acknowledging
the subordination of this Lease or attorning to the holder of any such
Mortgage as Landlord may request. The terms of this Lease are subject to
approval by the Landlord's existing lender(s) and any lender(s) who, at
the time of the execution of this Lease, have committed or are
considering committing to Landlord to make a loan secured by all or any
portion of the Building or the underlying real estate and such approval
is a condition precedent to Landlord's obligations hereunder. If any
person shall succeed to all or part of Landlord's interest in the
Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of Lease or otherwise, then if and as so
requested or required by such successor-in-interest, Tenant shall,
without charge, attorn to such successor-in-interest. Tenant agrees that
it will from time to time upon request by Landlord and, within ten (10)
days of the date of such request, execute and deliver to such persons as
Landlord shall request an estoppel certificate or other similar
statement in recordable form certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that
the same is in full force and effect as so modified), stating the dates
to which Rent and other charges payable under this Lease have been paid,
stating that Landlord is not in default hereunder (or if Tenant alleges
a default, stating the nature of such alleged default) and further
stating such other matters as Landlord shall reasonably require.
29. MISCELLANEOUS.
(a) If any term or provision of this Lease shall, to any extent, be
invalid or unenforceable, the remainder of this Lease shall not
be affected thereby, and each term and provision of this Lease
shall be valid and enforced to the fullest extent permitted by
law.
(b) Tenant agrees not to record this Lease or any memorandum hereof.
(c) This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced in accordance with
the laws of the state in which the Building is located.
(d) If there is more than one Tenant, or if the Tenant is comprised
of more than one person or entity, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of
all such parties. All notices, payments, and agreements given or
made by, with or to any one of such persons or entities shall be
deemed to have been given or made by, with or to all of them.
(e) In the event Tenant is a corporation (including any form of
professional association), partnership (general or limited), or
other form of organization other than an individual (each such
entity is individually referred to herein as an "Organizational
Entity"), then each individual executing or attesting this Lease
on behalf of Tenant hereby covenants, warrants and represents:
(1) that such individual is duly authorized to execute or attest
and deliver this Lease on behalf of Tenant in accordance with
the organizational documents of Tenant; (2) that this Lease is
binding upon Tenant; and (3) that Tenant is duly organized and
legally existing in the state of its organization, and is
qualified to do business in the state in which the Premises is
located.
(f) Except as expressly otherwise herein provided, with respect to
all required acts of Tenant, time is of the essence of this
Lease. This Lease shall create the relationship of Landlord and
Tenant between the parties hereto. In the event the Building is
located in the state of Georgia, no estate shall pass out of
Landlord and Tenant shall have only a usufruct, not subject to
purchase or sale, which may not be assigned by Tenant except as
expressly provided in this Lease.
(g) Notwithstanding anything to the contrary contained in this
Lease, the expiration of the Lease Term, whether by lapse of
time or otherwise, shall not relieve Tenant from Tenant's
obligations accruing prior to the expiration of the Lease Term,
and such obligations shall survive any such expiration or other
termination of the Lease Term.
(h) The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no effect upon the construction
or interpretation of any part hereof.
5
(i) LANDLORD HAS DELIVERED A COPY OF THIS LEASE TO TENANT FOR
TENANT'S REVIEW ONLY, AND THE DELIVERY HEREOF DOES NOT
CONSTITUTE AN OFFER TO TENANT OR OPTION. THIS LEASE SHALL NOT BE
EFFECTIVE UNTIL AN ORIGINAL OF THIS LEASE EXECUTED BY BOTH
LANDLORD AND TENANT AND AN ORIGINAL GUARANTY, IF ANY, EXECUTED
BY EACH GUARANTOR IS DELIVERED TO AND ACCEPTED BY LANDLORD, AND
THIS LEASE HAS BEEN APPROVED BY LANDLORD'S MORTGAGEES, IF
REQUIRED.
30. ENTIRE AGREEMENT. This Lease agreement, including the following
Exhibits:
EXHIBIT A - Outline and Location of Premises
constitutes the entire agreement between the parties hereto with
respect to the subject matter of this Lease and supersedes all
prior agreements and understandings between the parties related
to the Premises, including all lease proposals, letters of
intent and similar documents. TENANT EXPRESSLY ACKNOWLEDGES AND
AGREES THAT LANDLORD HAS NOT MADE AND IS NOT MAKING, AND TENANT,
IN EXECUTING AND DELIVERING THIS LEASE, IS NOT RELYING UPON, ANY
WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPT TO
THE EXTENT THAT THE SAME ARE EXPRESSLY SET FORTH IN THIS LEASE.
ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN THE
PARTIES ARE MERGED IN THIS LEASE WHICH ALONE FULLY AND
COMPLETELY EXPRESSES THE AGREEMENT OF THE PARTIES, NEITHER PARTY
RELYING UPON ANY STATEMENT OR REPRESENTATION NOT EMBODIED IN
THIS LEASE. THIS LEASE MAY BE MODIFIED ONLY BY A WRITTEN
AGREEMENT SIGNED BY LANDLORD AND TENANT. LANDLORD AND TENANT
EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED
WARRANTIES OF MERCHANTABILITY, HABITABILITY, SUITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING
OUT OF THIS LEASE, ALL OF WHICH ARE HEREBY WAIVED BY TENANT, AND
THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY
SET FORTH IN THIS LEASE.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed as
of the day and year first above written.
WITNESS; ATTESTATION LANDLORD: EOP-NICOLLET MALL, L.L.C.,
a Delaware limited liability company,
BY: EOP Operating Limited Partnership, a
Delaware limited partnership, its managing
member
BY: Equity Office Properties Trust, a
Maryland real estate investment trust, its
managing partner
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TITLE: Property Manager
TENANT: U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES, INC., A MINNESOTA
CORPORATION
BY: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
----------------------------------------------
NAME: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
--------------------------------------------
TITLE: MANAGING DIRECTOR
-------------------------------------------
6
EXHIBIT A
OUTLINE OF PREMISES
This Exhibit is attached to and made a part of the Agreement dated,
_________, 2001, by and between, EOP-NICOLLET MALL, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇, INC., a
Minnesota corporation ("Tenant") for space in the Building located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
[GRAPHIC]
STORAGE SPACE LEASE AGREEMENT
THIS STORAGE SPACE LEASE AGREEMENT ("Lease") is made and entered into as
of this 9 day of JULY, 2002, by and between the Landlord and Tenant hereinafter
named.
1. DEFINITIONS AND BASIC PROVISIONS.
The following are some of the basic lease information and defined terms
used in this Lease:
(a) "Landlord": EOP-NICOLLET MALL, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY.
(b) "Landlord Address": FOR NOTICES: C/O EQUITY OFFICE PROPERTIES
TRUST, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Property Management, with a copy of all
notices to Equity Office Properties Trust, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chicago
Regional Counsel. FOR RENT PAYMENT: EOP Operating Limited
Partnership, as Agent for EOP - Nicollet Mall, L.L.C., File
#▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
(c) "Tenant": U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware
corporation.
(d) "Tenant Address": ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with copies to Legal Department, U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ____,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, and US
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
(e) "Premises": approximately 1,000 rentable square feet on floor 31
in the building known as U.S. Bancorp Center located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Building"), such Premises being shown and
outlined on the plan attached hereto as EXHIBIT A.
(f) The "Lease Term" shall commence on June 1, 2002 (the
"Commencement Date") and, unless terminated early in accordance
with this Lease, end on May 31, 2014, unless the Office Lease
(as defined in Section 31 below), or Tenant's right to
possession of the premises demised by the Office Lease,
terminates sooner, in which case the Termination Date shall be
such earlier termination date. Notwithstanding the foregoing,
either party shall have the right to accelerate the Termination
Date of this Lease by giving at least sixty (60) days prior
written notice of termination to the other party. Any such
termination shall be effective as of the last day of the second
full month following the date written notice of termination is
delivered to the other party by the terminating party.
(g) "Base Monthly Rent": the schedule of Base Monthly Rent payable
with respect to the Premises is as follows:
Annual Rate per rentable
square
Period foot Base Annual Base Monthly Rent
--------------------------------------------------------------------------------
Commencement Date -
5/31/08 [***] [***] [***]
--------------------------------------------------------------------------------
6/1/08 - 5/31/14 [***] [***] [***]
--------------------------------------------------------------------------------
which Base Monthly Rent is due and payable on or before the
first day of each calendar month at the office of Landlord
during the Lease Term without prior demand, subject to
adjustment as hereinafter provided, provided that the Base
Monthly Rent for the first full calendar month of the Lease Term
and any partial calendar month at the beginning of the Lease
Term shall be payable upon the execution of this Lease by
Tenant. Base Monthly Rent for any partial month shall be
prorated.
(h) "Security Deposit": INTENTIONALLY DELETED.
(i) "Permitted Use": The storage of equipment, inventory or other
non-perishable items normally used in Tenant's business and for
no other purpose whatsoever.
(j) "Utilities Charge": INTENTIONALLY DELETED.
(k) All Base Monthly Rent, additional rent and other charges due
hereunder shall be made payable to the order of Equity Office
Properties, or such other party as Landlord may direct.
2. GRANTING CLAUSE. Subject to and upon the terms herein set forth,
Landlord leases to Tenant and Tenant leases from Landlord the Premises,
together with the right, in common with others, to use the common areas
of the Building.
3. SERVICES BY LANDLORD. Landlord shall not supply air-cooling, heat,
water, janitorial service, cleaning, standard passenger or freight
elevator service (it being understood that if standard elevator service
is not supplied, non-standard elevator service will be supplied) window
washing or electricity (for purposes other than lighting) to the
Premises. Tenant shall be responsible for all such services. Failure to
furnish or stoppage of any services that Landlord is obligated to
supply, if any, shall not render Landlord liable in any respect for
damages to person, property or business. Any such failure or stoppage
shall not be construed as constructive eviction of Tenant, grounds for
an abatement of rent, or relieve Tenant from the fulfillment of any
term, covenant, or agreement under this Lease.
1
4. PAYMENTS.
(a) Tenant shall pay to Landlord all rents and other sums required
to be paid under this Lease without demand, setoff or deduction
whatsoever at the times and in the manner provided. The
obligation of Tenant to pay Rent is an independent covenant, and
no act or circumstance, whether constituting breach of any
covenant by Landlord or not, shall release Tenant of this
obligation.
(b) Tenant shall pay to Landlord, as additional rent, all charges
for any miscellaneous services, goods, or materials furnished by
Landlord at Tenant's request which are not required to be
furnished by Landlord under this Lease.
(c) If applicable, Tenant shall pay to Landlord, as additional rent,
the Utilities Charge described in Section 1 above.
(d) Tenant shall pay to Landlord, as additional rent, any rent,
sales or use tax or other similar taxes, if any, levied or
imposed by any city, state, county or other governmental body as
a result of Tenant's occupancy, lease or use of the Premises but
such taxes shall not include any income, capital levy,
franchise, capital stock, gift, estate or inheritance tax
imposed on Landlord.
(e) In the event that payment of any amount required to be paid by
Tenant pursuant to this Lease is not made within five (5)
calendar days of the date it is due, a service fee of five
percent (5%) of the delinquent amount will be due and payable
immediately to Landlord as additional rent, plus interest from
the date such payment is due at the lesser of (i) the greatest
per annum rate of interest permitted from time to time under
applicable law (the "Maximum Rate") and (ii) the per annum
interest rate publicly announced by U.S. Bank National
Association, or any successor thereof, from time to time
(whether or not charged in each instance) as the prime or base
rate in Minneapolis, Minnesota (the "Prime Rate") plus two
percent (2%).
(f) All payments required from Tenant (except Base Monthly Rent)
shall be deemed additional rent hereunder. The Base Monthly
Rent and additional rent hereinafter is referred to,
collectively, as "Rent".
5. TRANSFER OF LANDLORD'S RIGHTS. Landlord shall have the right to transfer
and assign, in whole or in part, all of its interests, rights, and
obligations hereunder and in the Building and the real estate associated
therewith. Such transfers or assignments, howsoever made, are to be
fully respected and recognized by Tenant. Any such transfer shall
operate to release Landlord from liability under this Lease from and
after the effective date thereof, except as it may relate to the period
prior to such effective date. This Lease shall inure to the benefit of
the Landlord and its successors and assigns; and with the written
consent of Landlord first had, to the benefit of the heirs, executors
and/or administrators, successors and assigns of Tenant.
6. POSSESSION. If for any reason the Premises shall not be ready for
occupancy by Tenant at the time of commencement of this Lease, this
Lease shall not be affected thereby and Tenant waives and releases all
claims for damages arising out of any such delay. No Rent shall be
payable for the period during which the Premises shall not be ready for
occupancy unless such delay is caused by Tenant. By moving into the
Premises or taking possession thereof, Tenant is deemed to have accepted
the Premises and agreed that the Premises is in good order and
satisfactory condition, with no representation or warranty by Landlord
as to the condition of the Premises or the Building or the suitability
thereof for Tenant's use. Tenant by said act waives any and all defects
therein.
7. INDEMNITY, LIABILITY AND LOSS OR DAMAGE. Landlord shall not be liable to
Tenant or Tenant's agents, employees, guests, invitees, or to any person
claiming by, through or under Tenant for any injury to person, loss or
damage to property, or for loss or damage to business, occasioned by or
through the acts or omissions of Landlord or any other person, or by any
other cause whatsoever except for Landlord's gross negligence or willful
misconduct. To the extent Landlord is not prevented by law from
contracting against such liability, Tenant shall indemnify Landlord, its
principals, partners, members, agents, beneficiaries, and employees and
save them harmless from all suits, actions, damages, liabilities, and
expenses relating to the loss of life, bodily or personal injury, or
property damage arising from or out of any occurrence in, upon, at, or
from the Premises (unless caused by the sole active negligence or
willful misconduct of Landlord, its employees or agents) or Tenant's use
and occupancy thereof. If Landlord shall, without fault on its part, be
made a party to any action commenced by or against Tenant, Tenant shall
protect and hold Landlord harmless and shall pay all of Landlord's costs
and expenses associated therewith, including, without limitations,
reasonable attorney's fees. If the Building shall be so damaged by fire
or other casualty that, in Landlord's reasonable judgment, substantial
alteration or reconstruction of the Building shall be required, or if
the Premises has been damaged, Landlord may, at its option, terminate
this Lease by notifying Tenant in writing of such termination within
thirty (30) days after the date of such casualty. Such termination
shall be effective (i) as of the date of fire or casualty with respect
to any portion of the Premises that was rendered untenantable, and (ii)
as of the effective date of termination specified in Landlord's notice
with respect to any portion of the Premises that remain tenantable. If
this Lease is not so terminated by Landlord, Landlord shall proceed with
reasonable diligence to restore the Premises and the Building, and
Tenant shall receive an appropriate diminution of Rent for that portion
of the Premises which is untenantable.
8. LEGAL USE. Tenant will not occupy or use, nor permit any portion of the
Premises to be occupied or used for any purpose other than the Permitted
Use specified in the Definitions and Basic Provisions portion of this
Lease, nor for any business or purpose which is unlawful in part or in
whole or deemed to be disreputable or hazardous in any manner.
9. INSURANCE. During the Lease Term and any extension thereof, Tenant at
its own cost and expense, shall maintain and provide Commercial General
Liability insurance coverage for the benefit and protection of Landlord
and Tenant, naming both as insureds in an amount not less than
$ 2,000,000 Combined Single Limit per occurrence with an aggregate of
$ 2,000,000. Tenant shall also carry "all risk" physical loss insurance
coverage for the full replacement cost of all items of Tenant's personal
property in, on or about the Premises. All insurance provided hereunder
shall be secured from responsible companies acceptable to Landlord and
qualified to do business in the state where the Premises are located.
Prior to the Commencement Date of the
2
Lease Term, Tenant shall furnish Landlord with certificates evidencing
such coverage. Tenant shall have the right to self insure for its
personal property insurance obligations hereunder.
10. WAIVER OF SUBROGATION. The parties hereby intend that the risks of loss,
damage, and injury in connection with this Lease, Landlord's ownership
and operation of the Building, and Tenant's leasing and occupancy of the
Premises are to be allocated as far as possible to insurance. Therefore,
Landlord and Tenant each hereby waive all claims, actions, and demands
against each other, and each hereby releases the other from all
liability, to the maximum extent permitted by law, for any loss, damage
or injury to business, persons or property of any kind or nature, to the
extent such loss, damage, or injury is compensated by insurance or
required to be insured hereunder. The foregoing waivers shall not apply
to the extent such waivers would operate to invalidate or preclude
recovery under any policies of insurance or where endorsements to such
insurance policies recognizing such waivers are not available at
reasonable cost.
11. ALTERATIONS, ADDITIONS, IMPROVEMENTS. Tenant shall not make alterations
in or additions or improvements to the Premises without Landlord's prior
written consent, which consent will not be unreasonably withheld. All
such work shall: (a) be at Tenant's expense; (b) comply with all
insurance requirements and with all applicable ordinances, regulations,
and statutes of the jurisdictions in which the Premises are located; (c)
in Landlord's reasonable judgment, be performed in a good and
workmanlike manner, in accordance with sound building practices; and (d)
not interfere with other tenants' use of their premises within the
Building. All required working drawings and specifications shall be
prepared at Tenant's expense by an architect, space planner, or engineer
approved by Landlord. Tenant shall pay any increase in taxes resulting
from such improvements. Before undertaking any alterations or
construction, Tenant shall pay for and deliver to Landlord a public
liability policy insuring Landlord and Tenant against any liability
which may arise on account of such proposed alterations or construction
work in a form and amounts reasonably acceptable to Landlord. All such
alterations, additions or improvements installed by Tenant on the
Premises shall be performed using new or completely reconditioned
materials and, except as otherwise provided herein, shall remain the
property of Landlord.
12. LANDLORD RIGHTS. This Lease does not grant any rights to light or air
over or about the Building. Landlord shall have the right at any time to
alter, repair, or improve any portion of the Premises and the Building.
Tenant will permit Landlord, its respective officers, agents and
representatives to enter into and upon all parts of the Premises, at all
reasonable hours, to inspect, clean, repair, make alterations and
additions as Landlord may deem necessary, and for any other valid
business reason. Except in emergencies, Landlord shall provide Tenant
with reasonable prior notice of entry into the Premises, which may be
given orally and Tenant shall have the right to have a representative
present during such entry. Landlord and its representatives for any such
purpose may enter on and about the Premises or the Building with
building materials, and erect scaffolding and all other necessary
structures. Tenant shall not be entitled to any abatement or reduction
of Rent by reason thereof and Tenant waives any claim for any damage or
inconvenience which may thereby arise. Notwithstanding the foregoing,
except in emergency situations as reasonably determined by Landlord,
Landlord shall exercise reasonable efforts to perform any entry into the
Premises in a manner that is reasonably designed to minimize
interference with the operation of Tenant's business in the Premises.
13. LIENS BY TENANT. Tenant shall keep the Premises, the Building and the
real estate of which the Building forms a part free from any liens
arising out of any work performed by, materials furnished to, or
obligations incurred by Tenant. In the event any such lien is imposed
against the Premises or Building and if Tenant does not cause the lien
to be released within thirty (30) days following the imposition of any
such lien, Landlord may cause the same to be released by such means as
it shall deem proper after five (5) days prior written notice to Tenant.
All sums paid by Landlord and all expenses incurred by it in connection
therewith shall automatically create an obligation of Tenant to pay,
within ten (10) days after demand, an equivalent amount. No work which
Landlord permits Tenant to perform shall be deemed to be for the
immediate use and benefit of Landlord, and no mechanic's or other lien
shall be allowed against the estate of Landlord by reason of its consent
to such work.
14. REPAIRS AND RE-ENTRY; SURRENDER. Tenant will, at Tenant's own cost and
expense, keep the Premises in sound condition and good repair, and shall
repair or replace any damage or injury done to the Building or any part
thereof by Tenant or Tenant's employees, servants, agents, contractors
or invitees. If Tenant fails to make such repairs or replacements within
fifteen (15) days after written notice of an occurrence, Landlord may,
at its option, make such repairs or replacements, and Tenant shall repay
all costs thereof to Landlord within ten (10) days after written demand.
Tenant will not commit or allow any waste or damage to be committed on
any portion of the Premises. Tenant shall at termination of this Lease,
by lapse of time or otherwise, deliver up said Premises to Landlord in
as good condition as it was as of the date of possession (ordinary wear
and tear excepted) and Landlord shall have the right to re-enter and
resume possession of the Premises whether or not the Premises have been
vacated by Tenant.
15. SIGNAGE. Tenant will not place, suffer to be placed, or maintain on any
exterior door, wall, or window of the Premises or the Building any sign,
awning, canopy, advertising matter, or any other thing of any kind
without first obtaining Landlord's written approval, which may be
withheld in Landlord's sole and unfettered discretion. If such approval
is granted by Landlord, Tenant shall maintain such item(s) in good
condition at all times.
16. ATTORNEY'S FEES. INTENTIONALLY DELETED.
17. LIEN FOR RENT. INTENTIONALLY DELETED.
18. SECURITY DEPOSIT. INTENTIONALLY DELETED.
19. LIMITATION OF LANDLORD'S LIABILITY. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY
SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL BE LIMITED TO THE INTEREST
OF LANDLORD IN THE BUILDING, AND TENANT AGREES TO LOOK SOLELY TO
LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY JUDGMENT OR
AWARD AGAINST THE LANDLORD, IT BEING INTENDED THAT NEITHER LANDLORD NOR
ANY MEMBER, PRINCIPAL, PARTNER, SHAREHOLDER, OFFICER, DIRECTOR OR
BENEFICIARY OF LANDLORD SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY
SUIT FOR AN ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE
LANDLORD AND ALL
3
MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST
LIENS ON THE PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME
(BUT NOT TO EXCEED 60 DAYS) TO CURE SUCH ALLEGED DEFAULT BY LANDLORD.
20. NOTICES. Any notice required or permitted to be given hereunder by one
party to the other shall be deemed to be given when personally
delivered, or mailed by registered or certified mail with return receipt
requested, or sent by a national overnight courier service to the
respective party to whom notice is intended to be given at the
appropriate address provided in Section 1. Any notice under this Lease
delivered by registered or certified mail shall be deemed to have been
given, delivered and effective on the earlier of (a) the third day
following the day on which the same shall have been mailed with
sufficient postage prepaid or (b) the delivery date or refusal date
indicated on the return receipt. Notice sent by overnight courier
service shall be deemed given, delivered and effective upon the day
after such notice is delivered to or picked up by the overnight courier
service. Notice sent by personal delivery shall be deemed given,
delivered and effective upon the date actually delivered or refused.
21. BROKERS. Tenant represents and warrants to Landlord that neither it, its
officers, or agents, nor anyone on its behalf has dealt with any real
estate broker in the negotiation or making of this Lease. Tenant agrees
to indemnify and hold Landlord harmless from the claim or claims of any
broker or brokers claiming to have interested Tenant in the Building or
Premises or claiming to have caused Tenant to enter into this Lease.
22. RULES OF THE BUILDING. Tenant agrees to keep the Premises in a neat and
orderly fashion and to keep all stored items in cartons, file cabinets
or other suitable containers. All items stored in the Premises shall be
at least eighteen inches below the bottom of all sprinklers located in
the ceiling of the Premises, if any. Tenant shall not store anything in
the Premises which is unsafe or which otherwise may create a hazardous
condition, or which may increase Landlord's insurance rates, or cause a
cancellation or modification of Landlord's insurance coverage. Without
limitation, Tenant shall not store any flammable, combustible or
explosive fluid, chemical or substance nor any perishable food or
beverage products, except with Landlord's prior written approval, but
Tenant shall be allowed to store records, files and paper. Tenant,
Tenant's agents, employees, and invitees will comply fully with the
rules and regulations of the Building either attached hereto or
delivered to Tenant by Landlord. Landlord shall at all times have the
right to change such rules and regulations in such reasonable manner as
may be deemed advisable for the safety, care, and cleanliness of the
Building, its tenanted areas, and the preservation of good order
therein. All such changes will be forwarded to Tenant in writing and
shall be carried out and observed by Tenant.
23. ABANDONMENT. If the Premises are abandoned by Tenant, Landlord shall
have the right, but not the obligation, to: (a) provide for the storage
of any personal property remaining in the Premises without liability of
any kind or nature for the cost of storage or the return of the personal
property to Tenant, and/or (b) take title to the abandoned personal
property, which title shall pass to Landlord under this Lease as a ▇▇▇▇
of Sale, without additional payments or credit from Landlord or Tenant.
24. RELOCATION. INTENTIONALLY DELETED.
25. HOLDING OVER. In the event of holding over by Tenant after expiration or
other termination of this Lease, occupancy of the Premises subsequent to
such termination or expiration shall be that of a tenancy at sufferance
and in no event for month-to-month or year-to-year, but Tenant shall,
throughout the entire holdover period, be subject to all the terms and
provisions of this Lease and shall pay for its use and occupancy an
amount (on a per month basis without reduction for any partial months
during any such holdover) equal to one hundred twenty five percent
(125%) the sum of the Base Monthly Rent and one hundred percent (100%)
of the additional rent due for the period immediately preceding such
holding over, No holding over by Tenant or payments of money by Tenant
to Landlord after the expiration of the Lease Term shall be construed to
extend the Lease Term or prevent Landlord from recovery of immediate
possession of the Premises by summary proceedings or otherwise. In
addition to the obligation to pay the amounts set forth above during any
such holdover period, Tenant also shall be liable to Landlord for all
damage, including any consequential damage, which Landlord may suffer by
reason of any holding over by Tenant, and Tenant shall indemnify
Landlord against any and all claims made by any other tenant or
prospective tenant against Landlord for delay by Landlord in delivering
possession of the Premises to such other tenant or prospective tenant.
26. DEFAULTS AND REMEDIES. If: (a) Tenant fails to comply with any term,
provision, condition, or covenant of this Lease or any of the rules and
regulations now or hereafter established for the Building by Landlord;
or (b) Tenant abandons the Premises; or (c) any petition is filed by or
against Tenant under any section or chapter of the Federal Bankruptcy
Act, as amended, or under any similar law or statute of the United
States or of any state thereof; or (d) Tenant becomes insolvent or makes
a transfer in fraud of creditors; or (e) Tenant makes an assignment for
benefit of creditors; or (f) a receiver is appointed for Tenant or any
of the assets of Tenant, and in each case such default is not cured by
Tenant within ten (10) days with respect to any monetary default or
thirty (30) days with respect to any non-monetary default after Tenant
receives written notice of the same from Landlord and in the event such
default is not to be cured in such thirty (30) day period, and Tenant is
not diligently pursuing to cure the same. Landlord shall have the option
to do any one or more of the following without notice in addition to and
not in limitation of any other remedy permitted by law or by this Lease;
(i) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant shall fail to do
so, Landlord may, without notice or prejudice to any other
remedy Landlord may have for possession and/or for arrearage in
Rent, enter upon and take possession of the Premises and expel
or remove Tenant and its effects, without being liable for
prosecution or any claim for damages. Tenant agrees to indemnify
Landlord for all loss, damage, and expense, including any
reasonable attorney's fees which Landlord may incur by reason of
such termination.
(ii) Declare the entire amount of all Rent which would have become
due and payable during the next sixty (60) days of the Lease
Term due and payable immediately, in which event Tenant agrees
to pay the same at once to Landlord. Such payments shall not
constitute a penalty, a forfeiture, or liquidated damages, but
shall merely constitute payment in advance of the Rent for the
remainder of the Lease Term. The acceptance of such payment by
Landlord shall not constitute a waiver of any failure of Tenant
to comply with any term, provision, condition, or covenant of
this Lease.
4
(iii) Enter upon and take possession of the Premises, without
terminating this Lease and without being liable for prosecution
or any claim for damages. Landlord may relet the Premises as the
agent of the Tenant and receive the rent therefor. The failure
or refusal of Landlord to relet the Premises shall not release
or affect Tenant's liability for all Rent or for any and all
such damages involved.
(iv) Enforce Tenant's specific performance of each and every
provision of this Lease.
Failure by Landlord to declare any default immediately upon occurrence
thereof, or delay in taking any action in connection therewith, shall
not waive such default, but Landlord shall have the right to declare any
such default at any time and take action as might be lawful or
authorized hereunder, either in law or in equity. Pursuit of any of the
foregoing remedies shall not preclude pursuit of any of the other
remedies.
27. NO WAIVER. No act or thing done by Landlord or its agents during the
Lease Term shall be deemed an acceptance of a surrender of the Premises.
The acceptance of Rent by Landlord with knowledge of the breach of any
covenant contained in this Lease and/or the failure of Landlord to
enforce any of the rules and regulations against Tenant (or any other
tenant) shall not be deemed a waiver. Any agreement to accept a
surrender of the Premises or accept a waiver of said covenants, rules
and regulations by Landlord shall not be valid unless made in writing
and signed by Landlord. Similarly, the payment of Rent by Tenant with
knowledge of the breach of any covenant contained in this Lease by
Landlord shall not be deemed a waiver. Any agreement to accept a waiver
of any said covenant by Tenant shall not be valid unless made in writing
and signed by Tenant. The mention in this Lease or the pursuit of any
particular remedy shall not preclude Landlord or Tenant from any other
remedy such party might have, either in law or in equity.
28. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE. Tenant accepts this
Lease subject and subordinate to any mortgage, deed of trust, ground
lease or other lien presently existing or hereafter arising upon the
Premises or upon the Building and to any renewals, modifications,
refinancings and extensions thereof (any such mortgage, deed of trust,
lease or other lien being hereinafter referred to as a "Mortgage", and
the person or entity having the benefit of same being referred to
hereinafter as a "Mortgagee"), but Tenant agrees that any such Mortgagee
shall have the right at any time to subordinate such Mortgage to this
Lease on such terms and subject to such conditions as such Mortgagee may
deem reasonably appropriate in its discretion. This clause shall be
self-operative and no further instrument of subordination shall be
required. Tenant agrees upon demand to execute such further instruments
subordinating this Lease, acknowledging the subordination of this Lease
or attorning to the holder of any such Mortgage as Landlord may
reasonably request provided such documents include a non-disturbance
clause in favor of Tenant. The terms of this Lease are subject to
approval by the Landlord's existing lender(s) and any lender(s) who, at
the time of the execution of this Lease, have committed or are
considering committing to Landlord to make a loan secured by all or any
portion of the Building or the underlying real estate and such approval
is a condition precedent to Landlord's obligations hereunder. If any
person shall succeed to all or part of Landlord's interest in the
Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of lease or otherwise, then if and as so
requested or required by such successor-in-interest, Tenant shall,
without charge, attorn to such successor-in-interest. Tenant agrees that
it will from time to time upon request by Landlord and, within ten (10)
days of the date of such request, execute and deliver to such persons as
Landlord shall request an estoppel certificate or other similar
statement in recordable from certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that
the same is in full force and effect as so modified), stating the dates
to which Rent and other charges payable under this Lease have been paid,
stating that Landlord is not in default hereunder (or if Tenant alleges
a default, stating the nature of such alleged default) and further
stating such other matters as Landlord shall reasonably require.
29. MISCELLANEOUS.
(a) If any term or provision of this Lease shall, to any extent, be
invalid or unenforceable, the remainder of this Lease shall not
be affected thereby, and each term and provision of this Lease
shall be valid and enforced to the fullest extent permitted by
law.
(b) Tenant agrees not to record this Lease or any memorandum hereof.
(c) This Lease and the rights and obligations of the parties hereto
shall be interpreted, construed, and enforced, in accordance
with the laws of the state in which the Building is located.
(d) If there is more than one Tenant, or if the Tenant is comprised
of more than one person or entity, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of
all such parties. All notices, payments, and agreements given or
made by, with or to any one of such persons or entities shall be
deemed to have been given or made by, with or to all of them.
(e) In the event Tenant is a corporation (including any form of
professional association), partnership (general or limited), or
other form of organization other than an individual (each such
entity is individually referred to herein as an "Organizational
Entity"), then each individual executing or attesting this Lease
on behalf of Tenant hereby covenants, warrants and represents:
(1) that such individual is duly authorized to execute or attest
and deliver this Lease on behalf of Tenant in accordance with
the organizational documents of Tenant; (2) that this Lease is
binding upon Tenant; and (3) that Tenant is duly organized and
legally existing in the state of its organization, and is
qualified to do business in the state in which the Premises is
located.
(f) Except as expressly otherwise herein provided, with respect to
all required acts of Tenant, time is of the essence of this
Lease. This Lease shall create the relationship of Landlord and
Tenant between the parties hereto. In the event the Building is
located in the state of Georgia, no estate shall pass out of
Landlord and Tenant shall have only a usufruct, not subject to
purchase or sale, which may not be assigned by Tenant except as
expressly provided in this Lease.
(g) Notwithstanding anything to the contrary contained in this
Lease, the expiration of the Lease Term, whether by lapse of
time or otherwise, shall not relieve Tenant from Tenant's
obligations accruing prior to the expiration of the Lease Term,
and such obligations shall survive any such expiration or other
termination of the Lease Term.
5
(h) The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no effect upon the construction
or interpretation of any part hereof.
(i) Landlord has delivered a copy of this Lease to Tenant for
Tenant's review only, and the delivery hereof does not
constitute an offer to Tenant or option. This Lease shall not be
effective until an original of this Lease executed by both
Landlord and Tenant and an original guaranty, if any, executed
by each guarantor is delivered to and accepted by Landlord, and
this Lease has been approved by Landlord's mortgagees, if
required.
30. ENTIRE AGREEMENT. This Lease, including the following Exhibits:
EXHIBIT A - Outline and Location of Premises
constitutes the entire agreement between the parties hereto with respect
to the subject matter of this Lease and supersedes all prior agreements
and understandings between the parties related to the Premises,
including all lease proposals, letters of intent and similar documents.
TENANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT LANDLORD HAS NOT MADE AND
IS NOT MAKING, AND TENANT, IN EXECUTING AND DELIVERING THIS LEASE, IS
NOT RELYING UPON, ANY WARRANTIES, REPRESENTATIONS, PROMISES OR
STATEMENTS, EXCEPT TO THE EXTENT THAT THE SAME ARE EXPRESSLY SET FORTH
IN THIS LEASE. ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN
THE PARTIES ARE MERGED IN THIS LEASE WHICH ALONE FULLY AND COMPLETELY
EXPRESSES THE AGREEMENT OF THE PARTIES, NEITHER PARTY RELYING UPON ANY
STATEMENT OR REPRESENTATION NOT EMBODIED IN THIS LEASE. THIS LEASE MAY
BE MODIFIED ONLY BY A WRITTEN AGREEMENT SIGNED BY LANDLORD AND TENANT.
LANDLORD AND TENANT EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO
IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, SUITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF
THIS LEASE, ALL OF WHICH ARE HEREBY WAIVED BY TENANT, AND THAT THERE ARE
NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS
LEASE.
31. ALLOCATED STORAGE SPACE. The Premises leased herein constitute a portion
of the "Allocated Storage Space," as such term is defined in Section
12.2 of that certain lease dated March 3, 1998, between Landlord (as
successor in interest to ▇▇▇▇ 800, LLC, a Minnesota limited liability
company) and Tenant (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc.), as
the same has been amended (the "Office Lease").
IN WITNESS WHEREOF, the parties have caused this Lease to be executed as
of the day and year first above written.
LANDLORD: EOP-NICOLLET MALL, L.L.C.,
a Delaware limited liability company,
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its general partner
▇▇▇▇▇▇ ▇▇▇▇ By: /s/ [ILLEGIBLE]
VICE PRESIDENT LEASING ------------------------------------
TENANT: U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., A
DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: SR VICE PRESIDENT
--------------------------------------
6
EXHIBIT A
OUTLINE OF PREMISES
This Exhibit is attached to and made a part of the Storage Space Lease
Agreement by and between, EOP-NICOLLET MALL, L.L.C., a Delaware limited
liability company ("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC., a Delaware
corporation ("Tenant") for space in the Building located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
[GRAPHIC]
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FIRST AMENDMENT
THIS FIRST AMENDMENT (the "Amendment") is made and entered into as of
the 4TH day of DECEMBER, 2002, by and between EOP - NICOLLET MALL, L.L.C., a
Delaware limited liability company ("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES INC., a Delaware corporation ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain storage space lease
dated July 19, 2002 (the "Lease"). Pursuant to the Lease, Landlord has
leased to Tenant space currently containing approximately 1,000 rentable
square feet (the "Original Premises") on the 31st floor of the building
commonly known as U.S. Bancorp Center located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Building").
B. Tenant has requested that additional space containing approximately
1,000 rentable square feet on the 31st floor of the Building shown on
EXHIBIT A hereto (the "Expansion Space") be added to the Original
Premises and that the Lease be appropriately amended and Landlord is
willing to do the same on the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. EXPANSION AND EFFECTIVE DATE.
A. Effective as of October 1, 2002 (the "Expansion Effective
Date"), the Premises, as defined in the Lease, is increased from
1,000 rentable square feet on the 31st floor to 2,000 rentable
square feet on the 31st floor by the addition of the Expansion
Space, and from and after the Expansion Effective Date, the
Original Premises and the Expansion Space, collectively, shall
be deemed the Premises, as defined in the Lease. The Lease Term
for the Expansion Space shall commence on the Expansion
Effective Date and end on the Termination Date (i.e., May 31,
2014). The Expansion Space is subject to all the terms and
conditions of the Lease except as expressly modified herein and
except the Tenant shall not be entitled to receive any
allowances, abatements or other financial concessions granted
with respect to the Original Premises unless such concessions
are expressly provided for herein with respect to the Expansion
Space.
B. The Expansion Effective Date shall be delayed to the extent that
Landlord fails to deliver possession of the Expansion Space for
any reason, including but not limited to, holding over by prior
occupants. Any such delay in the Expansion Effective Date shall
not subject Landlord to any liability for any loss or damage
resulting therefrom. If the Expansion Effective Date is delayed,
the Termination Date under the Lease shall not be similarly
extended.
II. BASE MONTHLY RENT. In addition to Tenant's obligation to pay Base
Monthly Rent for the Original Premises, Tenant shall pay Landlord Base
Monthly Rent for the Expansion Space as follows:
ANNUAL RATE PER BASE ANNUAL BASE
PERIOD RENTABLE SQUARE FOOT RENT MONTHLY RENT
------------------------------------------------------------------------------
Expansion Effective Date
- 5/31/08 [***] [***] [***]
------------------------------------------------------------------------------
6/1/08 - 5/31/14 [***] [***] [***]
------------------------------------------------------------------------------
All such Base Monthly Rent shall be payable by Tenant in accordance with
the terms of the Lease.
III. SECURITY DEPOSIT. No security deposit shall be required in connection
with this Amendment.
IV. IMPROVEMENTS TO EXPANSION SPACE. Tenant has inspected the Expansion
Space and agrees to accept the same "as is" without any agreements,
representations,
understandings or obligations on the part of Landlord to perform any
alterations, repairs or improvements.
V. ALLOCATED STORAGE SPACE. The Expansion Space leased herein constitute a
portion of the "Allocated Storage Space," as such term is defined in
Section 12.2 of that certain lease dated March 3, 1998, between Landlord
(as successor in interest to ▇▇▇▇ 800, LLC, a Minnesota limited
liability company) and Tenant (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies
Inc.), as the same has been amended (the "Office Lease").
VI. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There have
been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Expansion Space or the
Premises, or any similar economic incentives that may have been
provided Tenant in connection with entering into the Lease,
unless specifically set forth in this Amendment.
B. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force
and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for such
an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same to
Tenant.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with
no broker in connection with this Amendment. Tenant agrees to
indemnify and hold Landlord, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective principals and
members of any such agents harmless from all claims of any
brokers claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that
Landlord has dealt with no broker in connection with this
Amendment. Landlord agrees to indemnify and hold Tenant, its
trustees, members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and the respective
principals and members of any such agents harmless from all
claims of any brokers claiming to have represented Landlord in
connection with this Amendment.
[SIGNATURES ARE ON FOLLOWING PAGE]
2
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD: EOP-NICOLLET MALL, L.L.C.,
a Delaware limited liability company,
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its general
partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President-Denver Region
TENANT: U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES
INC., A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: SVP
------------------------------------
3
EXHIBIT A
OUTLINE AND LOCATION OF EXPANSION SPACE
[GRAPHIC]
4
SECOND AMENDMENT
THIS SECOND AMENDMENT (the "Amendment") is made and entered into as of
the ______ day of December, 2002, by and between EOP - NICOLLET MALL, L.L.C.,
a Delaware limited liability company ("Landlord"), and U.S. BANCORP ▇▇▇▇▇
▇▇▇▇▇▇▇ COMPANIES INC., a Delaware corporation ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain storage space lease
dated July 19, 2002, which lease was amended pursuant to instrument
dated December 4, 2002 (together, the "Lease"). Pursuant to the Lease,
Landlord has leased to Tenant space currently containing approximately
2,000 rentable square feet (the "Current Premises") on the 31st floor of
the building commonly known as U.S. Bancorp Center located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Building").
B. Tenant has requested that additional space containing approximately 196
rentable square feet designated as Space B-16 on level P-2 of the
Building shown on EXHIBIT A hereto (the "Second Expansion Space") be
added to the Current Premises and that the Lease be appropriately
amended and Landlord is willing to do the same on the following terms
and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. EXPANSION AND EFFECTIVE DATE.
A. Effective as of December 1, 2002 (the "Second Expansion
Effective Date"), the Premises, as defined in the Lease, is
increased from 2,000 rentable square feet on the 31st floor to
2,196 rentable square feet on the 31st floor and level P-2 by
the addition of the Second Expansion Space, and from and after
the Second Expansion Effective Date, the Current Premises and
the Second Expansion Space, collectively, shall be deemed the
Premises, as defined in the Lease. The Lease Term for the Second
Expansion Space shall commence on the Second Expansion Effective
Date and end on the Termination Date (i.e., May 31, 2014). The
Second Expansion Space is subject to all the terms and
conditions of the Lease except as expressly modified herein and
except that Tenant shall not be entitled to receive any
allowances, abatements or other financial concessions granted
with respect to the Current Premises unless such concessions are
expressly provided for herein with respect to the Second
Expansion Space.
B. The Second Expansion Effective Date shall be delayed to the
extent that Landlord fails to deliver possession of the Second
Expansion Space for any reason, including but not limited to,
holding over by prior occupants. Any such delay in the Second
Expansion Effective Date shall not subject Landlord to any
liability for any loss or damage resulting therefrom. If the
Second Expansion Effective Date is delayed, the Termination Date
under the Lease shall not be similarly extended.
II. BASE MONTHLY RENT. In addition to Tenant's obligation to pay Base
Monthly Rent for the Current Premises, Tenant shall pay Landlord Base
Monthly Rent for the Second Expansion Space as follows:
ANNUAL RATE PER BASE ANNUAL BASE
PERIOD RENTABLE SQUARE FOOT RENT MONTHLY RENT
--------------------------------------------------------------------------------
Second Expansion [***] [***] [***]
Effective Date - 5/31/08
--------------------------------------------------------------------------------
6/1/08 - 5/31/14 [***] [***] [***]
--------------------------------------------------------------------------------
All such Base Monthly Rent shall be payable by Tenant in accordance with
the terms of the Lease.
III. SECURITY DEPOSIT. No security deposit shall be required in connection
with this Amendment.
IV. IMPROVEMENTS TO SECOND EXPANSION SPACE. Tenant has inspected the Second
Expansion Space and agrees to accept the same "as is" without any
agreements, representations, understandings or obligations on the part
of Landlord to perform any alterations, repairs or improvements.
V. ALLOCATED STORAGE SPACE. The Second Expansion Space leased herein
constitute a portion of the "Allocated Storage Space," as such term is
defined in Section 12.2 of that certain lease dated March 3, 1998,
between Landlord (as successor in interest to ▇▇▇▇ 800, LLC, a Minnesota
limited liability company) and Tenant (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies Inc.), as the same has been amended (the "Office Lease").
VI. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There have
been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Second Expansion Space or the
Premises, or any similar economic incentives that may have been
provided Tenant in connection with entering into the Lease,
unless specifically set forth in this Amendment.
B. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force
and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for such
an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same to
Tenant.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with
no broker in connection with this Amendment. Tenant agrees to
indemnify and hold Landlord, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective principals and
members of any such agents harmless from all claims of any
brokers claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that
Landlord has dealt with no broker in connection with this
Amendment. Landlord agrees to indemnify and hold Tenant, its
trustees, members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and the respective
principals and members of any such agents harmless from all
claims of any brokers claiming to have represented Landlord in
connection with this Amendment.
[SIGNATURES ARE ON FOLLOWING PAGE]
2
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD: EOP-NICOLLET MALL, L.L.C.,
a Delaware limited liability company,
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
Member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its general
partner
By:
--------------------------------------
TENANT: U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES
INC., A DELAWARE CORPORATION
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
3
EXHIBIT A
OUTLINE AND LOCATION OF SECOND EXPANSION SPACE
[GRAPHIC]
4
SECOND AMENDMENT
THIS SECOND AMENDMENT (the "Amendment") is made and entered into as of
the 27th day of March, 2003 by and between MN - NICOLLET MALL, L.L.C., a
Delaware limited liability company ("Landlord"), and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES INC., a Delaware corporation ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain storage space lease
dated July 19, 2002, which lease was amended pursuant to instrument
dated December 4, 2002 (together, the "Lease"). Pursuant to the Lease,
Landlord has leased to Tenant space currently containing approximately
2,000 rentable square feet (the "Current Premises") on the 31st floor of
the building commonly known as U.S. Bancorp Center located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Building").
B. Tenant has requested that additional space containing approximately 196
rentable square feet designated as Space B-16 on level P-2 of the
Building shown on EXHIBIT A hereto (the "Second Expansion Space") be
added to the Current Premises and that the Lease be appropriately
amended and Landlord is willing to do the same on the following terms
and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. EXPANSION AND EFFECTIVE DATE.
A. Effective as of December 1, 2002 (the "Second Expansion
Effective Date"), the Premises, as defined in the Lease, is
increased from 2,000 rentable square feet on the 31st floor to
2,196 rentable square feet on the 31st floor and level P-2 by
the addition of the Second Expansion Space, and from and after
the Second Expansion Effective Date, the Current Premises and
the Second Expansion Space, collectively, shall be deemed the
Premises, as defined in the Lease. The Lease Term for the Second
Expansion Space shall commence on the Second Expansion Effective
Date and end on the Termination Date (i.e., May 31, 2014). The
Second Expansion Space is subject to all the terms and
conditions of the Lease except as expressly modified herein and
except that Tenant shall not be entitled to receive any
allowances, abatements or other financial concessions granted
with respect to the Current Premises unless such concessions are
expressly provided for herein with respect to the Second
Expansion Space.
B. The Second Expansion Effective Date shall be delayed to the
extent that Landlord fails to deliver possession of the Second
Expansion Space for any reason, including but not limited to,
holding over by prior occupants. Any such delay in the Second
Expansion Effective Date shall not subject Landlord to any
liability for any loss or damage resulting therefrom. If the
Second Expansion Effective Date is delayed, the Termination Date
under the Lease shall not be similarly extended.
II. BASE MONTHLY RENT. In addition to Tenant's obligation to pay Base
Monthly Rent for the Current Premises, Tenant shall pay Landlord Base
Monthly Rent for the Second Expansion Space as follows:
ANNUAL RATE PER BASE ANNUAL BASE
PERIOD RENTABLE SQUARE FOOT RENT MONTHLY RENT
--------------------------------------------------------------------------------
Second Expansion [***] [***] [***]
Effective Date - 5/31/08
--------------------------------------------------------------------------------
6/1/08 - 5/31/14 [***] [***] [***]
--------------------------------------------------------------------------------
All such Base Monthly Rent shall be payable by Tenant in accordance with
the terms of the Lease.
III. SECURITY DEPOSIT. No security deposit shall be required in connection
with this Amendment.
IV. IMPROVEMENTS TO SECOND EXPANSION SPACE. Tenant has inspected the Second
Expansion Space and agrees to accept the same "as is" without any
agreements, representations, understandings or obligations on the part
of Landlord to perform any alterations, repairs or improvements.
V. ALLOCATED STORAGE SPACE. The Second Expansion Space leased herein
constitute a portion of the "Allocated Storage Space," as such term is
defined in Section 12.2 of that certain lease dated March 3, 1998,
between Landlord (as successor in interest to ▇▇▇▇ 800, LLC, a
Minnesota limited liability company) and Tenant (formerly known as ▇▇▇▇▇
▇▇▇▇▇▇▇ Companies Inc.), as the same has been amended (the "Office
Lease").
VI. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There have
been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Second Expansion Space or the
Premises, or any similar economic incentives that may have been
provided Tenant in connection with entering into the Lease,
unless specifically set forth in this Amendment.
B. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force
and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for such
an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same to
Tenant.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with
no broker in connection with this Amendment. Tenant agrees to
indemnify and hold Landlord, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective principals and
members of any such agents harmless from all claims of any
brokers claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that
Landlord has dealt with no broker in connection with this
Amendment. Landlord agrees to indemnify and hold Tenant, its
trustees, members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and the respective
principals and members of any such agents harmless from all
claims of any brokers claiming to have represented Landlord in
connection with this Amendment.
[SIGNATURES ARE ON FOLLOWING PAGE]
2
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
By:
--------------------------------------
TENANT: U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES
INC., A DELAWARE CORPORATION
By: /s/
--------------------------------
Name:
------------------------------
Title: Sr. Vice President
-----------------------------
3
EXHIBIT A
OUTLINE AND LOCATION OF SECOND EXPANSION SPACE
MN-NICOLLET MALL, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
By: Equity Office Management, L.L.C., a Delaware limited liability company,
its non-member manager
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. Vice President - Denver Region
ASSIGNMENT & ASSUMPTION OF
U.S. BANCORP LEASE AND RELATED DOCUMENTS
THIS AGREEMENT is made and entered into as of May 25, 2000, by and
between ▇▇▇▇ 800, LLC, a Minnesota limited liability company ("Assignor"), and
CPP 800 NICOLLET MALL LLC, a Delaware limited liability company ("Assignee").
RECITALS
A. Assignor, or ▇▇▇▇ Companies US, Inc. ("▇▇▇▇"), has entered into
the Office Lease and related agreements described on Exhibit A attached hereto
(the "U.S. Bancorp Agreements"), all of which relate to the leasing by U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc. (formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies
Inc.) ("Tenant") of space in the U.S. Bancorp Center at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ in
Minneapolis, Minnesota.
B. Assignor has this date conveyed said U.S. Bancorp Center to
Assignee.
C. Assignor desires to assign all of its right, title and interest
under the U.S. Bancorp Agreements to Assignee, and Assignee desires to accept
the assignment thereof and assume and agree to perform all obligations of
Assignor and ▇▇▇▇ accruing under the U.S. Bancorp Agreements from and after the
date hereof in accordance with their terms.
AGREEMENT
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor hereby transfers, assigns and conveys to Assignee, and
its successors and assigns, all of Assignor's right, title and interest in, to
and under the U.S. Bancorp Agreements and all rents and other charges payable
thereunder from and after the date hereof. Assignor warrants and represents that
it is the owner of the U.S. Bancorp Agreements and has full right, power and
authority to assign the same as herein provided, and that the U.S. Bancorp
Agreements are in full force and effect and have not been modified or amended,
except as set forth on Exhibit A; that there are no other agreements affecting
the rights and obligations of the parties under the U.S. Bancorp Agreements; and
that there are, to the best of Assignor's knowledge, no defaults under the U.S.
Bancorp Agreements or facts or circumstances which with the passing of time or
giving of notice would constitute a default.
2. Assignee, for the benefit of Assignor, ▇▇▇▇ and Tenant, hereby
accepts the assignment of the Assignor's interest under the U.S. Bancorp
Agreements, and hereby assumes all of the obligations and liabilities of
Assignor and ▇▇▇▇ under the U.S. Bancorp Agreements accruing from and after the
date hereof (the "Assumed Obligations"), and agrees to perform, observe, keep
and comply with all the terms, covenants, conditions, provisions and agreements
contained in the U.S. Bancorp Agreements on the part of Assignor or ▇▇▇▇ to be
performed, observed, kept and complied with which accrue from and after the date
hereof.
3. Assignor agrees to indemnify and hold Assignee harmless with
respect to the obligations under the U.S. Bancorp Agreements, except for the
Assumed Obligations. Assignee agrees to indemnify and hold Assignor and ▇▇▇▇
harmless with respect to the Assumed Obligations.
4. Notwithstanding the foregoing, Assignor will perform all of the
landlord's initial construction obligations under the U.S. Bancorp Agreements
which remain to be performed, including but not limited to completing those
items set forth in the Punch List attached hereto as Exhibit B. Assignor will
perform for Assignee any obligations of Assignor which may arise under paragraph
3 (b) of the First Amendment to Agreement for Sale and Purchase of Realty
between Assignee and Cornerstone Properties Inc. dated November 30, 1999.
5. Assignee agrees to pay when due the second fifty percent (50%)
of the commission payable to ▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇, Inc. ("Broker") pursuant to
Section 2 of the Commission Agreement among Assignor, Broker and U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies, Inc. dated September 29, 1999, and shall indemnify and
hold Assignor harmless with respect to any claims therefor. Such remaining
commission is to be paid directly to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies, Inc.
rather than to Broker. Assignee also agrees to pay when due all additional fees
payable to The Keewaydin Group, Inc. ("Keewaydin") pursuant to Section 3 of the
Brokerage Agreement between Assignor and Keewaydin dated March 1, 1998, as
amended by the First Amendment to Brokerage Agreement between Assignor and
Keewaydin dated September 29, 1999, and shall indemnify and hold Assignor
harmless with respect to any claims therefor. True and complete copies of such
Commission Agreement and said Brokerage Agreement, as amended, are attached
hereto as Exhibit C and made a part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date stated above.
ASSIGNOR:
▇▇▇▇ 800, LLC
By /s/ [ILLEGIBLE]
-----------------------------
Its Chief Manager
ASSIGNEE:
CPP 800 NICOLLET MALL LLC
By: Cornerstone Properties Limited Partnership,
Its Sole Member
By: Cornerstone Properties Inc.,
Its General Partner
By: /s/ [ILLEGIBLE]
------------------------------------
Its: EXECUTIVE VICE PRESIDENT
-------------------------------
EXHIBIT A
U.S. Bancorp Agreements
1. Office Lease between ▇▇▇▇ 800, LLC, as Landlord, and ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies Inc., as Tenant, dated March 3, 1998.
2. Tax Reimbursement Agreement between ▇▇▇▇ Companies US, Inc. and ▇▇▇▇▇
▇▇▇▇▇▇▇ Companies Inc. dated March 3, 1998.
3. First Amendment to Lease between ▇▇▇▇ 800, LLC, as Landlord, and U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc., as Tenant, dated May 18, 1998.
4. Second Amendment to Lease between ▇▇▇▇ 800, LLC, as Landlord, and U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc., as Tenant, dated July 29, 1999.
5. Supplemental Amendment Regarding Expansion Space between ▇▇▇▇ 800, LLC,
as Landlord, and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc., as Tenant,
dated September 29, 1999.
6. Lease Guaranty by U.S. Bancorp dated September 29, 1999.
7. Lease Amendment, Indemnification and Joint Defense Agreement between
▇▇▇▇ 800, LLC, as Landlord, as U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies
Inc., as Tenant, dated September 29, 1999.
8. Third Amendment to Lease between ▇▇▇▇ 800, LLC, as Landlord, and U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc., as Tenant, dated November 22,
1999.
9. Fourth Amendment to Lease between ▇▇▇▇ 800, LLC, as Landlord, and U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc., as Tenant, dated November 24,
1999.
EXHIBIT B
The Punchlist Work
WOZGROUP LETTER OF TRANSMITTAL
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: [719] ▇▇▇-▇▇▇▇ - fax: [719] ▇▇▇-▇▇▇▇
mail: ▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
To: ▇▇. ▇▇▇ ▇▇▇ Fax: [212] ▇▇▇-▇▇▇▇ Date: 5/23/00
▇▇. ▇▇▇▇▇ Roagan Fax: [650] ▇▇▇-▇▇▇▇
----------------------------------------------- ---------------
Co: CORNERSTONE PROPERTIES/▇▇▇▇▇▇ CORNERSTONE Proj. Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------- ---------------
Proj. No: 9727
----------------------------------------------- ---------------
Corres. No: 067
----------------------------------------------- ---------------
Re: PUNCHLIST HOLDBACK MEMO/UPDATED PUNCHLIST EVALUATION
FROM: PURPOSE: SENT VIA:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ For approval X Fax to: See above Total Pages: 12
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X ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ For your use Hard copy to follow: / / Yes /X/ No
---------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. Maikh As requested USPS
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ X For review/comment Federal Express
---------------------------------------------------------------------------------------------------
Hand Delivery
Gentlemen:
See the marked-up punchlist attached dated 05/22/00.
Value: $ 232,000
Other Items
- Replace window washing basket $ 42,000
- BAS Graphics & Programming $ 5,000
- Chiller insulation (mats on-site) $ 2,000
- Condensate pan piping insulation (on-site) $ 2,000
- Exterior Thermography $ 2,000
- Final hardware - complete/need backcheck $ 2,000
- Air balancing |by floor - unoccupied/in-progress
complete backcheck $ 2,000
- NSP transformer/lights dim issue $ 5,000
- Cornerstone Skyway finishes
- Difference being discussed
- Extent at storefront owed?
Total: $ 62,000
---------
Value without multiple: $ 294,000
Hold back recommended x 1.5: $ 531,000
(Industry Standard multiple) 441,000
Lobby monolith (unresolved) $ 38,000 (?)
60,000
Sincerely,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, AIA
WozGroup
Copy to: Mr. ▇▇▇ ▇▇▇▇, via Fax: (▇▇▇) ▇▇▇-▇▇▇▇
NOTICE OF CONFIDENTIALITY
The information transmitted with this fax is confidential, and is intended only
for use by the addresees designated above. Please notify us immediately by
telephone if you have received this fax in error.
The Woziwodaki Group
Professional Corporation
▇▇▇▇ COMPANIES US, INC./▇▇▇▇▇ ▇▇▇▇▇▇▇ CENTER JOBSITE
--------------------------------------------------------------------------------
[▇▇▇▇ LOGO]
BUILDING LASTING RELATIONSHIPS
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612/▇▇▇-▇▇▇▇ phone
612/▇▇▇-▇▇▇▇ fax
FACSIMILE TRANSMISSION INFORMATION SHEET
DATE: May 22, 2000 NUMBER OF PAGES INCLUDING COVER SHEET: 11
TO: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FROM: ▇▇▇ ▇▇▇▇
COMPANY NAME: WOZGROUP
FAX NUMBER: ▇▇▇-▇▇▇-▇▇▇▇ ORIGINAL TO FOLLOW BY MAIL: / / YES /X/ NO
COMMENTS: CURRENT PUNCHLIST AS OF 05/22/00
[SEAL]
PROJECT NAME ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center - (800 Nicollet) PROJECT NUMBER: 1013-000
If you have any problems receiving this transmission, please call ▇▇▇▇▇ at:
(▇▇▇) ▇▇▇-▇▇▇▇
[▇▇▇▇ LOGO]
PUNCHLIST - ITEMS NOT COMPLETED Date Printed: 5/15/00 As of 5/22/00 verified
with ▇▇▇ ▇▇▇▇ 2 More thought to be
finished but not backchecked
Job #: ▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇: Resp1/2/3 = All
Job Name: US Bancorp/▇▇▇▇▇ ▇▇▇▇▇▇▇ Center Date Compl = Null
Compl? Resp1 / Resp2 / Resp3
------------------------------------------------------------------------------------------------------------------
2ND FLOOR
_____2468. Phone booth east end fixwood scratches ▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇ /
_____2486. Different baths in cans ▇▇▇▇ / ▇▇▇▇ /
_____2515. Trading Lobby-reattach the chrome bar on the light southside ▇▇▇▇ / ▇▇▇▇ / ?
_____2524. High Rise Lobby-fix trim on upper sconce light ▇▇▇▇ / ▇▇▇▇ / ?
_____2527. Midrise panel to south neveer lose ▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇ /
_____2580. L3M23 not working in west hallway (FIRE MODULE) ? ▇▇▇▇ / ▇▇▇▇ / LVC
_____2581. Loose wires at L3M23 west hallway (FIRE MODULE) ? ▇▇▇▇ / ▇▇▇▇ / LVC
2ND FLOOR 02B132
_____2491. L3M29 not working (FIRE MODULE) ? ▇▇▇▇ / ▇▇▇▇ / LVC
2ND FLOOR N
_____2472. Clean can lites inside ▇▇▇▇ / ABM /
_____2474. Black paint in reveal above phone ▇▇▇▇▇ ▇▇▇▇ / ▇▇▇▇ /
2ND FLOOR N ELECTRIC ROOM
_____2489. Complete covers ▇▇▇▇ / ▇▇▇▇ /
2ND FLOOR N, COMM ROOM
_____2482. Open boxes need to be closed up. ▇▇▇▇ / ▇▇▇▇ / LVC
2ND FLOOR SKYWAY
_____2461. Replace shutter glass scratches and clean slider unit ▇▇▇▇ / ▇▇▇▇ / ▇▇▇ C
3RD FLOOR (ROOM 3-15)
TO BE
DONE: WEEK OF JUNE 2ND
UNLESS OTHER WISE NOTED
PUNCHLIST - ITEMS NOT COMPLETED
Compl? 1013-000 US Bancorp / ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center Resp1 / Resp2 / Resp3
------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
ELEVATOR
_____2612. Install VCT in Cars 27, 26, 28* and 30* SK PL-FRI.
*(IN PROGRESS) DONE TODAY ▇▇▇▇ / Resource /
_____2613. Install Carpet in Cars 29, 23, and 22 -3WKS - 9 JUNE 00 ▇▇▇▇ / Resource /
ELEVATOR 30 HYDRO
_____2433. Remove unused 1/2" electrical runs for ▇▇ ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2435. Install permanent signs for location of car lite in MR ? ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2445. Install additional rails at top of hoistway (LAKEWOOD) ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2449. Need wiring to Machine Run for Fire Phone ▇▇▇▇,
Speakers and Card Readers for Cabs ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
LAKEWOOD / SECURITY
ELEVATOR GARAGE CAR
_____2359. Grills on ▇▇ ▇▇▇▇ / ▇▇▇▇▇▇▇ / Master 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
ELEVATOR HIGH RISE
_____2260. Gaurds on door of cars 1-30 HPDM ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2270. Fix trauler put in duct ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2282. Label disconnect Mach Room ▇▇ ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2290. Safety plank data plate #19 ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2305. Fire rate edges/ plat forms ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2306. Add 2 recepticles/ secondary recepticles machines ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2307. Lights over 20 and 21 controllers ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2308. Guard pipes ▇▇ ▇▇▇▇ room ▇▇▇▇ / ▇▇▇▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2313. Door restrictions 2 cars ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2321. Move pit light switches out of tape 1st floor ▇▇▇▇ / ▇▇▇▇ / 3WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2324. Check pitrun by 36" problem signs? ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2326. Test security overide fire service ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2332. UL labels lobby panels ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2361. The room outside pits needs motion demotor ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2539. Detail instruction at bottom removal all lobbies ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
2
PUNCHLIST - ITEMS NOT COMPLETED
Compl? 1013-000 US Bancorp / ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center Resp1 / Resp2 / Resp3
------------------------------------------------------------------------------------------------------------------
ELEVATOR LOW RISE MACHINE ROOM
_____19. Put a shroud around pipe for FCU to protect in case of leak- Water ▇▇▇▇ / ▇▇▇▇▇▇▇ / 3 WKS 9 JUNE 00
should be directed down stairwell (3 WKS) W / 6 NAN CREW $ 30,000.00
_____20. Pipe that goes over the top of ▇▇▇▇ duct needs to be rerouted
to go underneath duct ▇▇▇▇ / ▇▇▇▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____23. Label disconnect for FCU ▇▇ ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2540. Hoistway miss label MD-9 & MD-8 ▇▇▇▇ / ▇▇▇▇ / LVC 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2562. 12th floor lobby lights not working. ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2570. Add Two Outlets ▇▇. ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
ELEVATOR MID RISE
_____2216. Labe AC disconnect ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2217. Finish cable guards ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2222. Relocate elec. Box over stairs #16 ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2224. Secondary lights and recepticles ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2226. Move pit light switches out of tape 1st Floor ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
_____2250. 3 way switch or light on at all times pit room's/motions ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
detector?? (3 WKS) W / 6 NAN CREW $ 30,000.00
_____2257. EM power strip switch inst. ▇▇▇▇ / ▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
ELEVATOR MIDRISE MACHINE ROOM
_____3201. Install grills on FCU ▇▇▇▇ / ▇▇▇▇▇▇▇ / 3 WKS 9 JUNE 00
(3 WKS) W / 6 NAN CREW $ 30,000.00
ELEVATOR SERVICE CAR MACHINE ROOM
_____2369. Label disconnect for ▇▇ ▇▇▇▇ / ▇▇▇▇ /
EXTERIOR OF BUILDING
_____2573. Wire bus stop speakers (PAGODA) ▇▇▇▇ / ▇▇▇▇ / +/-2500.00 FREE STANDING (PARTS ?)
_____2574. Install bus stop space heaters ▇▇▇▇ / ▇▇▇▇ /
_____2575. Install new Can Lights at bus stop ▇▇▇▇ / ▇▇▇▇ /
_____2576. Complete bus stop wiring ▇▇▇▇ / ▇▇▇▇ /
_____2577. Sparkel wash clean sidewalk ▇▇▇▇ / ▇▇▇▇ / ▇▇▇ ▇▇▇▇
_____2607. 8" X 8" floor cover in bus stop ▇▇▇▇ / ▇▇▇▇ /
_____2618. Clean windows ▇▇▇▇ / ▇▇▇▇ / Columbia $ 25,000
TEMP. MG. REQD 60,000
_____2622. Patch Precast ▇▇▇▇ / ▇▇▇▇ / ▇▇▇▇ Bros
LAKEWOOD
_____2619. Demo ▇▇▇▇ Construction Office ▇▇▇▇ / ▇▇▇▇ / GC FRI:
MECH 14-06
_____2150. Sprinkler support needed partially supported. ▇▇▇▇ / ▇▇▇▇▇▇▇▇ /
3
PUNCHLIST - ITEMS NOT COMPLETED
Compl? 1013-000 US Bancorp / ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center Resp1 / Resp2 / Resp3
------------------------------------------------------------------------------------------------------------------
MECH 14-07
MECH 14-12
_____2156. Support for sprinklers needed at duct not completed. ▇▇▇▇ / ▇▇▇▇▇▇▇▇ /
IN PROGRESS NEEDS BACKCHECK
MECH 14-13
_____2152. Support sprinkler pipes partially ▇▇▇▇ / ▇▇▇▇▇▇▇▇ /
IN PROGRESS NEEDS BACKCHECK
MECH 14-24
_____2135. Support sprinklers/more needed. ▇▇▇▇ / ▇▇▇▇▇▇▇▇ /
IN PROGRESS NEEDS BACKCHECK
MECH 14-28
_____1004. Fix vinyl base northeast corner ▇▇▇▇ / Resource /
IN PROGRESS NEEDS BACKCHECK
MECH 31
_____1014. Pop rivet top of all louver fin splices. ▇▇▇▇ / ▇▇▇▇ / Armetex
? COME BACK $ 500
MECH 31-01
_____2589. A Coil of white wire at door... what is it? ▇▇▇▇ / ▇▇▇▇▇▇▇ / ▇▇▇▇▇▇▇ Control
MECH 31-TRACK
_____1018. Patch pre cost concrete ▇▇▇▇ / ▇▇▇▇ / ▇▇▇▇ Bros (SEE 2622)
MECH 32-10
_____2584. Open Junction Boxes ▇▇▇▇ / ▇▇▇▇ / LVC
MECH 4TH FLOOR - ROOF ABOVE MECHANICAL ROOM
MECH COOLING TOWER
MISC ROOF 'LIGHTENING'
_____2616. Lighting protection on ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ? "NOT ON ROOF" ▇▇▇▇ ▇▇▇▇ / ▇▇▇▇ / ?
_____2617. Lighting protection on ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ? "NOT ON ROOF" ▇▇▇▇ ▇▇▇▇ / ▇▇▇▇ / ?
P1 GENERAL
_____2420. Open 3 gang box stair D Ryan / ▇▇▇▇ /
P1 SERVICE ELEVATOR LOBBY P1B-09
P1A08
P1A10
4
Punchlist - Items Not Completed
Compl? 1013-000 US Bancorp / ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center Resp1 / Resp2 / Resp3
------------------------------------------------------------------------------------------------------------------
P1A12
_____2593. Install cadolidec converter EMERG GENSET? ▇▇▇▇ / ▇▇▇▇▇▇▇ / SHOPS ONLY 6-8 WEEKS
+/- $ 33,000.00
P1B01
_____1328. Light bulb is out ▇▇▇▇ / ▇▇▇▇ /
P1B02
_____1331. Seal fire penetrated around bus doct ▇▇▇▇ / ▇▇▇▇ /
P1B03
_____2605. Leak in Valving Room '[ILLEGIBLE]WATER' ▇▇▇▇ / ▇▇▇▇▇▇▇▇ / $ 5000 IN PROGRESS
_____2615. Fan not working cashier toilet ▇▇▇▇ / ▇▇▇▇ /
P1B08
_____2424. Blue wires hanging ▇▇▇▇ / ▇▇▇▇ / LVC
P1B12
_____2605. Need Power to ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ / ▇▇▇▇ /
▇▇▇▇▇
_____2624. Fire pump room tamper not wired ▇▇▇▇ / ▇▇▇▇ / LVC
P1B22
_____2594. Booster Pump Kicking out... Why?? ? ▇▇▇▇ / ▇▇▇▇▇▇▇ / $ 5000 IN PROGRESS
P1(UPS ROOM)
_____1408. Install tamper and flow switch covers. ▇▇▇▇ / ▇▇▇▇ / LVC
P3 GENERAL
_____1475. Light grid C3 and 10 or 11 is hung 1" low on west side of
core 1-2" low ▇▇▇▇ / ▇▇▇▇ /
P3A011
_____1490. Replace flourescent bulb ▇▇▇▇ / ▇▇▇▇ /
P3B03-1
_____2582. Remove temporary box and conduit ▇▇▇▇ / ▇▇▇▇ /
P3B06-1
ROOM 01A12
_____2592. Install cadolidec converter EMERG. GENSET? ▇▇▇▇ / ▇▇▇▇▇▇▇ / 'DO' +/- 33,000
ROOM 01B01 TRADING
_____1159. Call button needs to be shimmed out. ▇▇▇▇ / ▇▇▇▇ /
5
Punchlist - Items Not Completed
Compl? 1013-000 US Bancorp / ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center Resp1 / Resp2 / Resp3
------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
_____1176. Scratches in a number of sconces between fire
command door and car #22. ▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇ /
▇▇▇▇ ▇▇▇▇▇
_____2610. Highrise lobby more high spots WENS. ▇▇▇▇ / Advanced Terrazzo /
_____2611. Terrazzo scratches in Black WENS. ▇▇▇▇ / Advanced Terrazzo /
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
_____1180. Ease ceiling; light is out. ▇▇▇▇ / ▇▇▇▇ /
ROOM 01B08
_____2585. Fire Command, Instruction for Car Selector ▇▇▇▇ / ▇▇▇▇ /
_____2586. Fire Command Need Elevator Manual ▇▇▇▇ / ▇▇▇▇ / ?
_____2587. Fire Command Reroute cables at PC ▇▇▇▇ / ▇▇▇▇ /
_____2588. Fire Command Lable for car selector ▇▇▇▇ / ▇▇▇▇ /
_____2606. Drill hole in counter top for ▇▇▇▇, ▇▇▇▇ and LVC ▇▇▇▇ / ▇▇▇▇ /
ROOM 01B12
_____1202. North corridor exit sign on east side can not be seen;
one should be added in lower ceiling. ▇▇▇▇ / ▇▇▇▇ / NEW LOCATION
ROOM 01B18
_____2609. Add Counter Top Dock Office (ADDED) ▇▇▇▇ / ▇▇▇▇ $ 75.00
▇▇▇▇ ▇▇▇▇▇
_____2604. Grount Joint in Base near ▇▇▇▇ Officer ▇▇▇▇ / Twin City Tile /
ROOM 02A12
_____2591. Install cadolidec converter ? EMERG GEN ▇▇▇▇ / ▇▇▇▇▇▇▇ / +/- 33,000
ROOM 02B08
_____1254. Between cars 24 & 25 metal to be installed. ▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇ /
_____1258. Behind mid rise elevator modules to be finished. ▇▇▇▇ / ▇▇▇▇ / LVC SUB / SUB
_____1262. Behind mid rise elevator DUCT SMOKE DETECTOR NOT WIRED. ▇▇▇▇ / ▇▇▇▇ / LVC
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
_____2621. "huge" crack in floor at north end ? (SKIP BAY) ACCIDENT ?
[ILLEGIBLE] STOP ▇▇▇▇ / ▇▇▇▇ / ? $ 5000
ROOM 03-35
_____1276. Light to be replaced for RE-1 on the metor control center. ▇▇▇▇ / ▇▇▇▇ /
_____1277. Sprinkler heads to be supported. ▇▇▇▇ / ▇▇▇▇▇▇▇▇ /
_____1278. Sprinkler head is dripping text to RE-1. ▇▇▇▇ / ▇▇▇▇▇▇▇▇ /
ROOM 0310
_____771. boxes need to be closed ▇▇▇▇ / ▇▇▇▇ / LVC
6
Punchlist - Items Not Completed
Compl? 1013-000 US Bancorp / ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center Resp1 / Resp2 / Resp3
------------------------------------------------------------------------------------------------------------------
_____776. Remove wire at south wall-why is it there? ▇▇▇▇ / ▇▇▇▇ / LVC
ROOM 0311
_____811. Lighting doesn't work ▇▇▇▇ / ▇▇▇▇ /
ROOM 0503 PIPER COM.
_____819. Conduit on north and south walls need to be fire stopped ▇▇▇▇ / ▇▇▇▇ /
ROOM 0503 PIPER COMM.
_____818. Cover places on outlets at south ▇▇▇▇ ▇▇▇▇ / ▇▇▇▇ /
ROOM 0514
_____816. Close up J boxes ▇▇▇▇ / ▇▇▇▇ / LVC
ROOM 0603
ROOM 0703
ROOM 08 NER ROOM
_____2208. Fix vibrating air scoop on Heburts in NE corner of room ▇▇▇▇ / ▇▇▇▇▇▇▇ /
ROOM 0803
ROOM 0903
ROOM 1003
ROOM 1103
ROOM 1203
ROOM 1303
ROOM 2007
_____723. Install light ▇▇▇▇ / ▇▇▇▇ /
ROOM 2204
_____2347. Needs lights recepticles completed ▇▇▇▇ / ▇▇▇▇ IN PROGRESS
(BACKCHECK) REQ'D
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
_____2567. Set lights and life safety device into grid. ▇▇▇▇ / ▇▇▇▇ / LVC
7
Punchlist - Items Not Completed
Compl? 1013-000 US Bancorp / ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center Resp1 / Resp2 / Resp3
------------------------------------------------------------------------------------------------------------------
ROOM [ILLEGIBLE]
_____2345. Need lights ▇▇▇▇ / ▇▇▇▇ /
ROOM [ILLEGIBLE] HIGH RISE LOBBY
_____686. Install notifier in ceiling ▇▇▇▇ / ▇▇▇▇ / LVC
ROOM[ILLEGIBLE]
_____2350. Replace ceiling tile at sprinkler remove head ▇▇▇▇ / ▇▇▇▇▇▇▇▇ /
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
_____906. Install heat collectors ▇▇▇▇ / ▇▇▇▇▇▇▇▇ /
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
_____2543. Open box @ 29-SC-SI ▇▇▇▇ / ▇▇▇▇ / LVC
ROOM 2907
_____898. Complete Elevator 28 - ? ▇▇▇▇ / ▇▇▇▇ / 'IN PROGRESS'
STAIR A 0?
_____1971. Need blank cover plate over opening ▇▇▇▇ / ▇▇▇▇ / IN PROGRESS(TYP)
_____1976. Replace missing screw in electric lock hinges ▇▇▇▇ / ▇▇▇▇ / LVC (NEEDS VERIFICATION)
STAIR A 0?
_____1989. Need blank cover plate over opening ▇▇▇▇ / ▇▇▇▇ / (NEEDS VERIFICATION)
STAIR A 11
_____2385. Light not working ▇▇▇▇ / ▇▇▇▇ / (NEEDS VERIFICATION)
STAIR A 12
_____1637. Light not working ▇▇▇▇ / ▇▇▇▇ / (NEEDS VERIFICATION)
_____1642. Replace screws in electric lock hinges ▇▇▇▇ / ▇▇▇▇ / LVC (NEEDS VERIFICATION)
STAIR A 14
_____2623. Door not locking ▇▇▇▇ / ▇▇▇▇ / (NEEDS VERIFICATION)
STAIR A 15
_____1700. Fire ceulk at sprinkler pipe-▇▇▇▇ pipe ▇▇▇▇ / ▇▇▇▇ / LVC (NEEDS VERIFICATION)
STAIR A 19
_____1756. Doors not locked/Black Wire Off inside Door ▇▇▇▇ / ▇▇▇▇ / LVC (NEEDS VERIFICATION)
_____1758. Fire ▇▇▇▇ is missing screw ▇▇▇▇ / ▇▇▇▇ / LVC (NEEDS VERIFICATION)
STAIR B 03
_____2397. Remove stains from floor ▇▇▇▇ / ABM / (NEEDS VERIFICATION)
STAIR B 04 -
_____2398. Blank cover needed at door over opening ▇▇▇▇ / ▇▇▇▇ / (NEEDS VERIFICATION)
8
Punchlist - Items Not Completed
Compl? 1013-000 US Bancorp / ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center Resp1 / Resp2 / Resp3
------------------------------------------------------------------------------------------------------------------
STAIR B 05 CHEED
_____1996. Blank cover needed at door over opening ▇▇▇▇ / ▇▇▇▇ /
STAIR C 01
_____1579. Fire caulk speaker box, why is box on top of box? ▇▇▇▇ / ▇▇▇▇ / LVC
_____1581. Install door connect magnet -- SECURITY 'OPEN' ▇▇▇▇ / ▇▇▇▇ / LVC
STAIR C 02
_____1780. Check on magnet for door contact ▇▇▇▇ / ▇▇▇▇ / LVC
STAIR C 03
_____1919. Speaker at 3 1/2 needs to be installed ▇▇▇▇ / ▇▇▇▇ /
_____1921. Adjust sweep on door ▇▇▇▇ / ▇▇▇▇ /
_____1923. Check on magnet for door contact -- SECURITY ▇▇▇▇ / ▇▇▇▇ / LVC
STAIR C 04
_____1982. Need blank cover plate over opening ▇▇▇▇ / ▇▇▇▇ /
_____1984. Need light cover ▇▇▇▇ / ▇▇▇▇ /
_____198?. Check on magnet for door contact ▇▇▇▇ / ▇▇▇▇ / LVC
STAIR C 05
_____2003. Need light covers -- (7) LENS (FINAL FIXTURES COMING) ▇▇▇▇ / ▇▇▇▇ /
_____2004. Check on magnet for door contact ▇▇▇▇ / ▇▇▇▇ / LVC
STAIR C 06
_____2024. Need light covers ▇▇▇▇ / ▇▇▇▇ /
STAIR C 08
_____2061. Need light cover...Closer Cover also? ▇▇▇▇ / ▇▇▇▇ /
STAIR C 10
_____1612. Need light covers ▇▇▇▇ / ▇▇▇▇ /
STAIR C 11
_____1633. Light covers ▇▇▇▇ / ▇▇▇▇ /
STAIR C 12
_____1651. Need light covers ▇▇▇▇ / ▇▇▇▇ /
STAIR C 13
_____1675. Need light covers ▇▇▇▇ / ▇▇▇▇ /
STAIR D 01
_____1585. Get fireproofing off deck ▇▇▇▇ / ▇▇▇▇ /
_____2204. Open J boxes ▇▇▇▇ / ▇▇▇▇ /
9
Punchlist - Items Not Completed
Compl? ▇▇▇▇-▇▇▇ ▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇▇▇▇ / ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇ ▇
▇▇▇▇▇ ▇▇ ▇
_____2106. Cover electrical box ▇▇▇▇ / ▇▇▇▇ /
STORAGE ROOM
_____2483. Door cover closer plate ▇▇▇▇ / ▇▇▇▇ /
TOILET 0405 M
_____2549. Light out ▇▇▇▇ / ▇▇▇▇ /
TOILET 0806 W
_____114. There is a light out in the middle of the room ▇▇▇▇ / ▇▇▇▇ /
TOILET 1106 W
_____159. Light fixture by entrance put in crooked ▇▇▇▇ / ▇▇▇▇ /
_____619. Need 1 soap dispenser bottle ▇▇▇▇ / Interco /
TOILET 1205 M
_____615. Complete install of pilaster on toilet stall east of urinal ▇▇▇▇ / Interco /
TOILET 1306 M
_____184. Complete electrical ▇▇▇▇ / ▇▇▇▇ /
TOILET 1508 M
_____211. Random stains on floor ▇▇▇▇ / ABM /
TOILET 1706 W
_____574. Large see through gap at handicap partition - gap too wide ▇▇▇▇ / Interco /
TOILET 2106 W
_____319. Handicap partition door paint is chipped. ▇▇▇▇ / Interco /
_____2372. Fix make shift partition - poor workmanship. ▇▇▇▇ / Interco /
TOILET 2108 M
_____565. Fill / Replace ceiling tile at handicap pilaster ▇▇▇▇ / Interco /
TOILET 3001 M
_____481. Set vertical trim on mirrors to be stronger - more silicon? ▇▇▇▇ / ▇▇▇▇ / Mpls Glass
TOILET P2B06
_____1403. Replace tiles with broken corners or holes in sides
[ILLEGIBLE] ▇▇▇▇ / ▇▇▇▇ / Twin City Accousti
TOILET P2B23-1
_____1464. Grout all ceramic base and complete remaining installation ▇▇▇▇ / Twin City Tile /
_____2561. Missing/damaged base 10 ▇▇▇▇ / Twin City Tile /
IN GENERAL: SAY $300,000.00 IN INDIVIDUAL ITEMS $232,075.00
10
EXHIBIT C
Agreements with Brokers
COMMISSION AGREEMENT
THIS COMMISSION AGREEMENT (this "Agreement"), made and entered into
this 29th day of September, 1999, by and between ▇▇▇▇ 800, LLC, a Minnesota
limited liability company ("Landlord"), ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, INC.("Broker"),
and U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES, INC.("Tenant")
W I T N E S S E T H T H A T:
WHEREAS, Landlord and Tenant have entered into that certain Supplemental
Amendment Regarding Expansion Space dated September 29, 1999 ( the "Amendment")
with respect to that certain Office Lease dated March 3, 1998, as previously
amended ( the "Lease") for space on Floors three (3) through five (5) inclusive,
Floors fifteen (15) through twenty two (22) inclusive, and approximately 10,261
rentable square feet of space on Floor twenty three (23) of the building known
as the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center located in the City of Minneapolis, Hennepin County,
Minnesota (the "Building"), consisting of approximately 350,000 rentable square
feet of space ( the "Initial Expansion Space");
WHEREAS, Landlord, Broker and Tenant are desirous of entering into this
Agreement to set forth the terms and conditions upon which Landlord shall
compensate Broker or Tenant for Broker's services in procuring the Amendment;
NOW, THEREFORE, for and in consideration of the services rendered by
Broker in regard to the Amendment, the mutual promises contained herein, TEN AND
NO/100 DOLLARS ($10.00) in hand paid each to the other, and other good and
valuable consideration, the receipt and sufficiency of which being hereby
acknowledged, Landlord, Tenant and Broker hereby covenant and agree as follows:
SECTION 1. DEFINITIONS.
The words and phrases used in this Agreement with an initial capital
letter shall have the same meanings as ascribed thereto in the Amendment unless
a new definition is expressly provided in this Agreement.
SECTION 2. COMPENSATION.
Subject to the terms and conditions of this Agreement including, without
limitation, Section 3 below, if Landlord and Tenant execute and deliver the
Amendment, Landlord agrees to pay Broker the following amounts as Broker's sole
and exclusive compensation with respect to the Initial Expansion Space and the
Amendment:
2.1 PROCUREMENT FEE AND COMMISSION. Broker, shall be paid a
commission in the amount of Three and no/100 Dollars ($3.00) per rentable square
foot of the total Rentable Area of the Initial Expansion Space (the
"Commission"). Broker shall not be paid any commission with respect to the
Original Initial Premises consisting of approximately 319,584 square feet of
Rentable Area previously leased by Landlord to Tenant pursuant to the Lease.
Broker shall be paid fifty percent (50%) of the Commission within thirty (30)
days after execution and delivery of the Amendment and the
remaining fifty percent (50%) of the Commission shall be paid to Broker from
time to time upon commencement of Tenant's payment of Base Rental with respect
to portions of the Initial Expansion Space as they are occupied by Tenant, with
such payments to be in proportion to the Initial Expansion Space so occupied
(which may not occur until October 1, 2002). Notwithstanding the foregoing, the
Commission due and payable hereunder shall be adjusted to reflect the actual
amount of Rentable Area in the Initial Expansion Space, as adjusted on or before
April 1, 2000 pursuant to the exercise by Tenant of either Option 1, Option 2,
Option 3, or Option 4, as described in Section 1 of the Amendment.
SECTION 3. CONDITIONS AND LIMITATIONS.
Broker expressly acknowledges and agrees that the compensation in
Section 2 is the sole and exclusive compensation payable to Broker by Landlord
with respect to the Initial Expansion Space, the Amendment, the Lease, or any
services rendered to Landlord or Tenant in connection therewith or with respect
to any lease of space by Tenant in the Building. Without limiting the generality
of the foregoing, Broker shall not be entitled to any other or further
Commission or compensation as a result of any payment of contributions to
operating costs or other charges under the Lease, any other expansion of the
Premises or renewal of the Lease, except that the Commission due and payable
hereunder shall be based on the final actual square footage of the Initial
Expansion Space as adjusted on or before April 1, 2000, as described in Section
2 above. Upon payment to Broker of the compensation described in Section 2 in
the manner expressly authorized therein, Landlord shall have no further
obligation or liability to Broker with respect to the Lease and the Amendment,
Tenant, or any other lease between Tenant and Landlord. At the written direction
of Broker and Tenant, Landlord shall pay any portion of the Commission due to
Broker hereunder to Tenant directly.
SECTION 4. MISCELLANEOUS.
4.1 BINDING EFFECT. This Agreement shall be binding upon and
shall inure to the benefit of Landlord Broker and Tenant and their respective
heirs, successors and assigns.
4.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of Landlord, Broker and Tenant regarding the payment of commission for
brokerage services in connection with the Amendment and no representations,
inducements, promises or agreements, oral or written, between such parties not
embodied herein with regard to the Lease and Amendments or Tenant shall be of
any force or effect. No modification or amendment of this Agreement shall be
binding upon the parties unless such modification or amendment is in writing and
signed by Landlord, Broker and Tenant.
4.3 MINNESOTA LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota.
4.4 MUTUAL INDEMNITY. Landlord, Broker and Tenant represent and
warrant each to the other that they have not discussed the Amendment or the
subject matter thereof with any real estate broker, agent or salesperson (other
than CB Commercial Real Estate), so as to create any legal right in any such
broker, agent or salesperson to claim a real estate commission or similar fee
with respect to the Amendment. Landlord, Broker and Tenant each hereby agrees to
indemnify and hold the others harmless against any liability or claim (and all
expenses, including reasonable attorneys' fees incurred in defending any such
claim or enforcing this indemnity) for a real estate brokerage commission or
2
similar fee or compensation arising out of or in any way connected with any
claim of agency or cooperative relationship with the indemnitor and relating to
the Lease and Amendment, other than the compensation to Broker set forth herein.
4.5 BROKER'S LIEN WAIVER. Simultaneously with Tenant's or
Broker's receipt of each payment of the Commission Tenant or Broker shall
promptly execute and deliver to Landlord an Affidavit, Waiver and Receipt
confirming and evidencing said parties receipt of such Commission and that such
Commission, due and payable upon such payment date, has been paid in full
hereunder with respect to the Lease and the Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal as of the day and year first above written.
LANDLORD:
▇▇▇▇ 800, LLC
By: /s/ [ILLEGIBLE]
-----------------------------
Its: [ILLEGIBLE]
-----------------------------
BROKER:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, INC
By: /s/ [ILLEGIBLE]
-----------------------------
Its: [ILLEGIBLE]
-----------------------------
TENANT:
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES
INC.
By: /s/ [ILLEGIBLE]
-----------------------------
Its: [ILLEGIBLE]
-----------------------------
3
[▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LOGO]
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
612/344.1500 [GRAPHIC]
612/344.1540 fax
November 3, 1999
▇▇▇▇ 800, LLC
C/o Ryan Properties, Inc.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇:
In accordance with Paragraph 3 of the Commission Agreement between ▇▇▇▇ 800,
LLC; ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇; and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies, Inc.,
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇ directs ▇▇▇▇ 800, LLC to pay the first half of the
Commission, due upon lease signing, directly to ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, in
accordance with the attached invoice.
The balance of the commission payments payable under the Commission Agreement,
due either to a change in square footage, or associated with occupancy of the
space, should be paid directly to the Tenant, U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Companies, Inc.
If you have any questions, please do not hesitate to call.
Sincerely,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Cc: U.S. Bancorp
▇▇▇▇ ▇▇▇▇▇▇
[▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LOGO]
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
612/344.1500 [GRAPHIC]
612/344.1540 fax
▇▇▇▇ COMPANIES
NOV 08 1999
MPLS OFFICE
INVOICE
November 3, 1999
▇▇▇▇ 800 LLC
c/o Ryan Properties Inc.
700 International Centre
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
In accordance with the Commission Agreement between ▇▇▇▇ 800, LLC, ▇▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇, and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies, Inc. the following commission
is due at signing:
Total Area Leased in ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center 350,000
Commission per Square Foot of Space $ 3.00
Total Commission $ 1,050,000
-------------
50% COMMISSION DUE AT AMENDMENT EXECUTION $ 525,000
cc: ▇▇▇▇▇ ▇▇▇▇▇▇, U.S. Bank
Please submit payments to ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Federal i.d. number is ▇▇-▇▇▇▇▇▇▇.
[US BANCORP. LOGO]
U.S. Bancorp ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
U.S. Bank Place Corporate Counsel
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Direct: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ COMPANIES
NOV 08 1999
MPLS OFFICE
November 4, 1999
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ 800, LLC
c/o Ryan Properties, Inc.
700 International Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Collin:
Enclosed please find a letter and Invoice from ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇ relating to
the first half of the Commission due upon the signing of the Lease Amendment
between U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ 800, LLC. This letter shall confirm
U.S. Bancorp's approval to pay the first half of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇ and the second half, when due, to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Should you have any questions, please contact me at the direct dial phone number
listed above.
Sincerely,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
JWS/tjl
cc: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
THE KEEWAYDIN GROUP, INC.
BROKERAGE AGREEMENT
This agreement dated March 1, 1998, between The Keewaydin Group, Inc.
("Keewaydin") and ▇▇▇▇ 800, LLC ("Landlord") confirms and acknowledges that
Keewaydin is the exclusive broker for ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc. ("Piper") who
is leasing space from Landlord in the building to be know as the ▇▇▇▇▇ ▇▇▇▇▇▇▇
Center.
Whereas, Landlord and Piper are negotiating the lease of approximately 400,000
square feet of space in the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Center, and
Whereas, Keewaydin has been assisting and representing Piper in that process,
and
Whereas, Landlord has agreed to pay Keewaydin a real estate brokerage commission
as hereinafter provided.
The parties agree as follows:
1. INITIAL COMMISSION. In the event that Landlord shall be successful in
executing a lease of at least 300,000 Square Feet with Piper, Landlord agrees to
pay to Keewaydin a brokerage commission determined as follows:
a. $700,000, plus
b. $3 per Square Foot for all space taken by Piper, in excess of
300,000 Square Feet including the initial space and space
adjustments, all expansion space or any other space including space
initially leased by Piper and subject to all adjustments thereto,
which space is leased or occupied prior to a date which is 60 full
months after the commencement date of the lease.
c. In the event that the Piper lease has a provision permitting
Piper to reduce its Square Feet prior to occupancy, the first one
payment shall be calculated based upon the minimum Square Feet. If
the time to reduce such Square Feet shall subsequently expire or if
Piper shall, at any time waive its rights to reduce such space the
commission payable shall be adjusted accordingly and the first
payment of the adjustment amount shall be payable on the date or
dates that such space reduction right shall expire or be waived.
d. "Square Feet" or "Square Foot" shall be defined to include the
number of rentable square feet of office space, plus the number of
square feet of retail space. If retail space is leased on a rentable
square foot basis, the number of rentable square feet of retail space
shall be included in the number of Square Feet. If, however, retail
space is leased on a usable square foot basis, the number of usable
square feet of space shall be included in the number of Square Feet
without any add on or multiplier.
Page 1
2. TIMING OF PAYMENT. The commission for the initial space shall be paid in two
installments.
a. The first installment shall be in an amount equal to $250,000
plus $1.50 times the number of Square Feet of the initial premises in
excess of 300,000. Such amount shall be payable within 10 days of the
date of the signing of the lease agreement.
b. In the event Piper has a right to reduce space as described in
Section 1.c. above, Landlord shall make an adjustment to the first
installment (at a rate of $1.50 per Square Foot) within 10 days of
the date or dates on which such space reduction right shall expire or
be waived.
c. A second installment shall be payable on the date rent commences
with respect to initial premises. The amount of the payment shall be
equal to the sum of $700,000 plus $3 times the number of Square Feet
of space in the entire premises in excess of 300,000, as adjusted
prior to occupancy, less the payments made to Keewaydin under
Sections 2.a. and 2.b.above.
3. ADDITIONAL SPACE. Keewaydin shall receive an additional fee of $3 per Square
Foot for any additional space leased by Piper prior to the date which is the
five year anniversary of the rent commencement date under the lease. Said
amounts shall be payable in their entirety at the time a lease (or amendment to
lease) is signed if Piper is occupying such space at the time the lease is
signed. If the space is not occupied, 1/2 of the fee shall be payable when the
lease is signed and the remaining 1/2 shall be payable on the earlier to occur
of i) rent commencement or ii) occupancy.
4. SHORT TERM OCCUPANCY WITHOUT LEASE OR MONTH TO MONTH LEASES. Subject to the
provisions of paragraph 5, in the event that Piper shall take additional space,
and pay rent on such additional space, from time to time without executing a
lease, or pursuant to a month-to-month lease, Landlord shall pay to Keewaydin a
commission on all such spaces occupied by Piper prior to the fifth anniversary
of the rent commencement date, which amount shall be paid as follows:
a. Landlord shall provide an accounting to Keewaydin at the end of each
calendar year as to the amount of occupancy during such calendar year.
b. At the time of such accounting, Landlord shall pay to Keewaydin an
amount equal to $.0833 per Square Foot per month of all such leases or
uses during such time period. Occupancy during any partial month shall
be prorated for the purposes of this calculation.
5. ACCRUAL OF FEES. Except as otherwise expressly provided herein, all fees
shall be earned, due and payable upon the earlier of
Page 2
a. signing a lease, addendum, or expansion agreement, or
b. occupancy by Piper.
In the event the square footage leased or occupied shall be adjustable,
fees relating to the minimum amount provided in the lease shall be
payable upon execution of the lease and the balance shall be payable
upon the date the amount of space is finalized.
6. INTEREST ON PAST DUE PAYMENTS. In the event that any amounts due hereunder
are not paid when otherwise due, all such payments shall accrue interest at a
rate equal 200 basis points above the annual prime rate or the annual reference
rate announced by the main office of U.S. Bancorp, or if US Bancorp discontinues
announcing such rate, the prime rate or other equivalent reference rate of
interest of a major commercial bank reasonably designated by Keewaydin.
7. OFF-SET RIGHT. LANDLORD'S OBLIGATIONS. Under the terms of the lease agreement
referenced herein, the Tenant has the right, in the event of non-payment of the
amounts due hereunder to pay such amounts to Keewaydin and off-set such amounts
against payments due under the lease. In the event that Piper, or any successor
in interest, elects to do so, such offset shall satisfy the obligations
hereunder only to the extent of the amount off-set.
The Keewaydin Group, Inc. ▇▇▇▇ 800 LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By /s/ [ILLEGIBLE]
---------------------------- ------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Printed Name [ILLEGIBLE]
--------------
Its President Its Partner
----------------------
Date: March 3, 1998
------------------------
Page 3
FIRST AMENDMENT TO BROKERAGE AGREEMENT
THIS FIRST AMENDMENT TO BROKERAGE AGREEMENT (this "Amendment"), made and
entered into as of the 29 day of SEPT, 1999, by and between THE KEEWAYDIN GROUP,
INC., as broker ("Broker"), and ▇▇▇▇ 800, LLC, as landlord ("Landlord");
W I T N E S S E T H T H A T:
WHEREAS, Broker and Landlord entered into that certain Brokerage
Agreement dated March 1, 1998 (the "Brokerage Agreement") regarding that certain
Office Lease dated March 3, 1999 (the "Lease") by and between Landlord and U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc., formerly known as ▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies
Inc. ("Tenant"), as amended, regarding approximately 319,584 square feet of
space (the "Premises") in a building to be constructed and known as the ▇▇▇▇▇
▇▇▇▇▇▇▇ Center;
WHEREAS, Landlord and Tenant have executed or will execute a
Supplemental Amendment Regarding Expansion Space (the "Amendment") to evidence
the expansion of the Premises to lease an additional 350,000 square feet of
space in the building (the "Initial Expansion Space");
WHEREAS, Tenant is represented in such expansion by ▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇;
WHEREAS, Landlord and Broker desire to amend certain terms and
conditions of the Brokerage Agreement and evidence their agreements and other
matters by means of this Amendment;
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the Brokerage Agreement is hereby
amended and the parties hereto do hereby agree as follows:
1. Landlord agrees that the Brokerage Agreement, except as modified hereby,
shall continue to apply to the Lease.
2. Broker hereby disclaims and waives any rights Broker may have to claim
any commission, broker's fee, compensation, payment or similar fee
pursuant to the Brokerage Agreement (including, without limitation,
Sections 1b, 2, 3 or 4 of the Brokerage Agreement) or otherwise in
connection with the expansion of the Premises to include the Initial
Expansion Space, as contemplated by the Amendment, and no such
commission, broker's fee or similar fee, compensation or payment
whatsoever shall be due or payable to Broker in connection with the
leasing by Tenant of the Initial Expansion Space pursuant to the
Amendment. Broker hereby agrees to execute and deliver to Landlord, at
Landlord's request, such additional reasonable documentation evidencing
such disclaimer and waiver by Broker.
-1-
EXCEPT AS expressly amended and modified hereby, the Brokerage Agreement shall
otherwise remain in full force and effect, the parties hereto hereby ratifying
and confirming the same. To the extent of any inconsistency between the
Brokerage Agreement and this Amendment, the terms of this Amendment shall
control.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Amendment as of the day and year first above written.
BROKER:
THE KEEWAYDIN GROUP, INC.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: PRESIDENT
--------------------------
LANDLORD:
▇▇▇▇ 800, LLC,
a Minnesota limited liability company
By: /s/ [ILLEGIBLE]
--------------------------
Name: [ILLEGIBLE]
--------------------------
Title: Chief [ILLEGIBLE]
--------------------------
-3-
ASSIGNMENT, ASSUMPTION & RELEASE AGREEMENT
THIS AGREEMENT is made and entered into as of the 25 day of May, 2000,
by and among ▇▇▇▇ COMPANIES US, INC., a Minnesota corporation ("▇▇▇▇"), CPP 800
NICOLLET MALL LLC, a Delaware limited liability company ("CPP 800"), and U.S.
BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware corporation, formerly known as
▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc. ("Tenant").
RECITALS
▇. ▇▇▇▇ and Tenant have previously entered into a Tax Reimbursement
Agreement dated as of March 3, 1998, a true and complete copy of which is
attached hereto as Exhibit A and made a part hereof (the "Tax Reimbursement
Agreement").
▇. ▇▇▇▇ 800, LLC, an affiliate of ▇▇▇▇, has this date assigned to
CPP 800 the Lease to Tenant referred to in the Tax Reimbursement Agreement.
C. CPP 800 is willing to assume the obligations of ▇▇▇▇ under the
Tax Reimbursement Agreement, and Tenant is willing to release ▇▇▇▇ from further
liability thereunder.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. ASSIGNMENT BY ▇▇▇▇. ▇▇▇▇ hereby transfers and assigns to CPP 800
all rights and interests of ▇▇▇▇ under the Tax Reimbursement Agreement.
2. ASSUMPTION BY CPP 800. CPP 800 hereby assumes and agrees to pay
and perform all of the obligations of ▇▇▇▇ under the Tax Reimbursement Agreement
accruing from and after the date hereof.
3. RELEASE BY TENANT. Tenant hereby releases and discharges ▇▇▇▇
from all further liabilities and obligations under the Tax Reimbursement
Agreement.
4. LETTER OF CREDIT. The letter of credit described in Section 4 of
the Tax Reimbursement Agreement shall hereafter mean and refer to the
Irrevocable Standby Letter of Credit No. S-13420 issued by Bankers Trust Company
in favor of Tenant in the amount of $7,000,000.00; provided, however, on or
before June 30, 2000, CPP 800 shall substitute a replacement letter of credit in
the same form as the letter of credit issued by Bankers Trust Company but issued
by Lender or another issuer acceptable to Tenant in its sole discretion pursuant
to Section 4 of the Tax Reimbursement Agreement.
5. MISCELLANEOUS. Tenant warrants and represents that (i) the Tax
Reimbursement Agreement has not been modified or amended, (ii) it has not
transferred or assigned its rights and interests under the Tax Reimbursement
Agreement, and (iii) to date, it has not delivered to ▇▇▇▇ any notice pursuant
to the first sentence of Section 2 of the Tax Reimbursement Agreement. The
address for notices to CPP 800, as successor to ▇▇▇▇, under Section 5.5 of the
Tax Reimbursement Agreement shall be as follows:
CPP ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLC
c/o Cornerstone Properties Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IN TESTIMONY WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
▇▇▇▇ COMPANIES US, INC.
By: /s/ [ILLEGIBLE]
--------------------------------------
Its Vice President
CPP ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLC
By: Cornerstone Properties Limited
Partnership, Its Sole Member
By: Cornerstone Properties Inc.,
Its General Partner
By: /s/ [ILLEGIBLE]
------------------------------
Its: EXECUTIVE VICE PRESIDENT
-------------------------
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES INC.
By:
--------------------------------------
Its:
---------------------------------
5. MISCELLANEOUS. Tenant warrants and represents that (i) the Tax
Reimbursement Agreement has not been modified or amended, (ii) it has not
transferred or assigned its rights and interests under the Tax Reimbursement
Agreement, and (iii) to date, it has not delivered to ▇▇▇▇ any notice pursuant
to the first sentence of Section 2 of the Tax Reimbursement Agreement. The
address for notices to CPP 800, as successor to ▇▇▇▇, under Section 5.5 of the
Tax Reimbursement Agreement shall be as follows:
CPP ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLC
c/o Cornerstone Properties Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IN TESTIMONY WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
▇▇▇▇ COMPANIES US, INC.
By:
--------------------------------------
Its Vice President
CPP ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLC
By: Cornerstone Properties Limited
Partnership, Its Sole Member
By: Cornerstone Properties Inc.,
Its General Partner
By:
------------------------------
Its:
-------------------------
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES INC.
By: /s/ [ILLEGIBLE]
--------------------------------------
Its: PRESIDENT
---------------------------------
EXHIBIT A
TAX REIMBURSEMENT AGREEMENT
THIS AGREEMENT is entered into as of March 3, 1998, by and between ▇▇▇▇
COMPANIES US, INC., a Minnesota corporation ("▇▇▇▇"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPANIES INC., a Delaware corporation ("Tenant").
RECITALS
A. Contemporaneously with the execution of this Agreement,
▇▇▇▇ 800, LLC and Tenant are entering into an Office Lease dated as of even date
herewith (the "Lease"), covering certain premises more particularly described in
the Lease, which premises are a part of the building to be constructed on the
property in Minneapolis, Minnesota, legally described on EXHIBIT A attached
hereto.
B. In order to induce Tenant to enter into the Lease, ▇▇▇▇ has
agreed to execute and deliver this Agreement and perform the covenants and
agreements provided herein.
ACCORDINGLY, ▇▇▇▇ and Tenant hereby agree as follows:
1. DEFINITIONS. Unless specifically defined differently in this
Section or elsewhere in this Agreement, all words with the initial letter
capitalized shall have the meanings respectively given them in the Lease. The
following definitions shall apply specifically to this Agreement:
"Cash Receipts" for any period shall mean the aggregate amount
of cash received by the Tenant during such period from (i) the Existing
Project Partnership other than amounts attributable to ground rent
payable by the Existing Project Partnership to Tenant, or (ii) any other
person as a result of the sale or other disposition of the Tenant's
interest in the Existing Project Partnership.
"Existing Project" shall mean the project located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ in Minneapolis, Minnesota, commonly known as of the date of
this Agreement as the "▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower".
"Existing Project Fiscal Year" shall mean a fiscal year of the
Existing Project Partnership.
"Existing Project Partnership" shall mean ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Limited Partnership, a Minnesota limited partnership of which Tenant is
a limited partner.
"Existing Project Reimbursable Tax Liability" shall mean, with
respect to any fiscal year of Tenant, (a) the total amount of income, if
any, recognized by Tenant for
federal and state income tax purposes as a result of (i) the sale or
other disposition of its interest in the Existing Project Partnership,
(ii) the sale or other disposition by the Existing Project Partnership
of its interest in the Existing Project (including, without limitation,
any disposition resulting from a foreclosure (or conveyance in lieu
thereof) of the Partnership Debt), or (iii) any full or partial
cancellation or forgiveness of the Partnership Debt (the events
described in clauses (i), (ii) and (iii) being referred to individually
as a "Triggering Event"), multiplied by (b) the Marginal Tax Rate.
"Marginal Tax Rate" means a percentage representing the combined
maximum marginal federal and Minnesota corporate income tax rates in
effect during such fiscal year of Tenant, computed without regard to the
phaseout of certain tax benefits such as the phaseouts currently
provided in the flush language of Section 11(b) of the Internal Revenue
Code. For example, as of the date of this Agreement such marginal
federal and Minnesota tax rates are 35% and 9.8%, respectively, and
produce a Marginal Tax Rate of 41.37%.
"Partnership Debt" shall mean the Existing Project Partnership's
mortgage indebtedness from time to time with respect to the Existing
Project.
2. TAX LIABILITY REIMBURSEMENT. In the event Tenant seeks
reimbursement pursuant to this Agreement of any Existing Project Reimbursable
Tax Liability, Tenant shall deliver to ▇▇▇▇ from time to time a written notice
describing the relevant Triggering Event and a reasonable calculation of the
amount of the Existing Project Tax Liability Payment estimated to be due in
connection therewith; provided, however, Tenant must so notify ▇▇▇▇ of any
Existing Project Reimbursable Tax Liability for which Tenant seeks payment
before 5:00 p.m. Minneapolis time on the first January 15th occurring after the
fifth (5th) anniversary of the Rent Commencement Date (the "Final Notice Date").
Tenant further agrees to deliver to ▇▇▇▇ such additional substantiation of the
Existing Project Reimbursable Tax Liability as ▇▇▇▇ ▇▇▇ reasonably request to
confirm the same. Within twenty (20) days after the later to occur of (y) the
date Tenant delivers to ▇▇▇▇ such substantiation of the Existing Project
Reimbursable Tax Liability as ▇▇▇▇ ▇▇▇ reasonably request, including, if
appropriate, a copy of Tenant's Form 1065, Schedule K-1 for the Existing Project
Partnership disclosing income includable in the Tenant's income for the fiscal
year of Tenant for which Tenant seeks reimbursement, or (z) the end of such
fiscal year of Tenant, ▇▇▇▇ shall pay to Tenant at the address provided in
Section 5.5 of this Agreement an amount (the "Existing Project Tax Liability
Payment") equal to the Existing Project Reimbursable Tax Liability for any
Existing Project Fiscal Year ending on or within such fiscal year of Tenant;
provided, however, that to the extent not previously accounted for in any prior
calculation of any previous Existing Project Tax Liability Payment, each
Existing Project Tax Liability Payment shall be reduced by the excess, if any,
of (a) the cumulative Cash Receipts received by the Tenant after the date of
this Agreement, over (b) the product of the Marginal Tax Rate times the total
cumulative amount of net income or gains, if any, previously recognized by
Tenant for federal and state income tax purposes as a result of Tenant's
interest in or the Existing Project Partnership for
-2-
all Existing Project Fiscal Years ending after the date of this Agreement
(regardless whether such net income or gains are generated from a Triggering
Event, but excluding any net income or gains to be recognized by Tenant as a
result of the Triggering Event for which the calculation hereunder is being
made); and provided further, in no event shall the cumulative amount payable by
▇▇▇▇ to Tenant pursuant to this Section 2 exceed Seven Million and No/100
Dollars ($7,000,000.00).
3. TENANT'S TAX SITUATION. ▇▇▇▇ acknowledges and agrees that Tenant
shall have no obligation or duty to ▇▇▇▇ to minimize or decrease the amount of
the Existing Project Reimbursable Tax Liability for any Existing Project Fiscal
Year, and Tenant shall have no liability to ▇▇▇▇ with respect to any action or
inaction by Tenant which may increase the amount thereof, but Tenant instead is
authorized to act in its sole best interest without regard to the effect on
either ▇▇▇▇ or Tenant under this Agreement.
4. LETTER OF CREDIT. Ryan's obligations with respect to amounts
that may be paid to Tenant pursuant to this Agreement is secured by a
$7,000,000 letter of credit issued by U.S. Bank National Association ("Lender"),
a copy of which is attached hereto as EXHIBIT B. Tenant may (a) draw upon such
letter of credit from time to time to pay any amounts payable by ▇▇▇▇ under
Agreement which are not paid by ▇▇▇▇ within twenty (20) days after demand
therefor, and/or (b) draw the entire amount of such letter of credit if at
least thirty (30) days prior to the expiration date of the then current letter
of credit either (i) Lender has not extended the current letter of credit for a
period of at least one (1) year from the then current expiration date, or (ii)
Lender or another issuer acceptable to Tenant in its sole discretion has not
issued to Tenant a replacement letter of credit with an expiration date at least
one (1) year from the expiration date of the then current letter of credit and
otherwise acceptable to Tenant. In the event Tenant draws upon such letter of
credit pursuant to clause (b) above, Tenant shall reimburse to ▇▇▇▇ any amounts
not applied by Tenant to any payments due under this Agreement, such
reimbursement to be made within ninety (90) days after the earlier to occur of
(y) such date as ▇▇▇▇ shall furnish to Tenant a substitute letter of credit from
Lender or another issuer acceptable to Tenant in its sole discretion with an
expiration date at least one (1) year from the date of issuance thereof and
otherwise acceptable to Tenant, or (z) the Final Notice Date.
5. GENERAL PROVISIONS.
5.1 NO WAIVER. The waiver by either party of any breach of any
term, provision, covenant or condition contained in this Agreement, or the
failure of a party to insist on the strict performance by the other, shall not
be deemed to be a waiver of such term, provision, covenant or condition as to
any subsequent breach thereof or of any other term, covenant or condition
contained in this Agreement.
5.2 TERMS; HEADINGS. The words "▇▇▇▇" and "Tenant" as used
herein shall include the plural as well as the singular. The words used in
neuter gender include the
-3-
masculine and feminine genders, and words used in the masculine or feminine
gender include the opposite gender as well as the neuter. The headings or titles
to the Articles or Sections of this Agreement are not a part of this Agreement
and shall have no effect upon the construction or interpretation of any part
hereof.
5.3 AMENDMENT. Except as provided in any written agreement now
or at any time hereafter in force between ▇▇▇▇ and Tenant, this instrument along
with any exhibits and attachments or other documents affixed hereto, or referred
to herein, or executed in connection herewith, constitutes the entire agreement
between ▇▇▇▇ and Tenant with respect to the subject matter covered hereby. This
Agreement and the exhibits and attachments hereto may be altered, amended,
modified or revoked only by an agreement in writing signed by both ▇▇▇▇ and
Tenant.
5.4 SUCCESSORS AND ASSIGNS. This Agreement is intended to and
does bind the heirs, executors, administrators, successors and assigns of any
and all-of the parties hereto.
5.5 NOTICES. All notices, consents, approvals, requests,
demands and other communications (collectively "notices") which ▇▇▇▇ or Tenant
are required or desire to serve upon, or deliver to, the other shall be in
writing and mailed postage prepaid by certified or registered mail, return
receipt requested; or deposited in the United States Mail; or sent by reputable
overnight delivery service; or sent by facsimile with a copy deposited in the
United States Mail; or delivered by personal delivery, to the appropriate
address indicated below, or at such other place or places as either ▇▇▇▇ or
Tenant may, from time to time, respectively, designate in a written notice given
to the other. Notices shall be deemed sufficiently served or given on the date
dispatched in a manner provided above, and periods provided in this Agreement
for response to any notice shall be deemed to commence on the date of actual
receipt thereof. Any notice by Tenant to ▇▇▇▇ shall be addressed to ▇▇▇▇ at:
▇▇▇▇ Companies US, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Any request by ▇▇▇▇ to Tenant shall be addressed to:
-4-
▇▇▇▇▇ ▇▇▇▇▇▇▇ Companies Inc.
1500 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Rejection or other refusal to accept a notice, request, communication or demand
or the inability to deliver the same because of a changed address of which no
notice was given shall be deemed to be receipt of the notice, request,
communication or demand sent.
5.6 SEVERABILITY. If any term or provision of this Agreement,
the deletion of which would not adversely affect the receipt of any material
benefit by either party hereunder, shall be held invalid or unenforceable to any
extent, the remaining terms, conditions and covenants of this Agreement shall
not be affected thereby, and each of said terms, covenants and conditions shall
be valid and enforceable to the fullest extent permitted by law.
5.7 TIME OF ESSENCE. Time is of the essence in every term of
this Agreement.
5.8 GOVERNING LAW. This Agreement shall be interpreted and
construed in accordance with the laws of the State of Minnesota.
5.9 ATTORNEYS' FEES. If any action or proceeding is brought by
▇▇▇▇ or Tenant to interpret the provisions hereof or to enforce either party's
respective rights under this Agreement, the prevailing party shall be entitled
to recover from the unsuccessful party therein, in addition to all other
remedies, all costs incurred by the prevailing party in such action or
proceeding, including reasonable attorneys' fees to be fixed by the court having
jurisdiction thereof.
5.10 INTERPRETATION. The language in all parts of this
Agreement shall in all cases be construed simply according to its generally
understood meaning, and not strictly for or against ▇▇▇▇ or Tenant.
[Remainder of page intentionally left blank]
-5-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
▇▇▇▇: ▇▇▇▇ COMPANIES US, INC.
By /s/ [ILLEGIBLE]
-----------------------------
Its Vice President
-------------------------
TENANT: ▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES INC.
By /s/ [ILLEGIBLE]
-----------------------------
Its CFO
-------------------------
-6-
EXHIBIT A
LEGAL DESCRIPTION OF LAND
Tracts A, B and E; That part of Tract G lying Southeasterly of the Northeasterly
extension of the Northwesterly line of said Tract B, Registered Land Survey No.
1625, Files of Registrar of Titles, County of Hennepin, State of Minnesota.
Together with the rights and easements created by the following documents:
(1) Skyway and Tunnel Agreement dated April 4, 1986, filed June 27, 1986 as
Document No. 5124377, as amended by Amendment to Skyway and Tunnel
Agreement dated __________, 1998, filed __________, 1998 as Document No.
__________.
(2) Skyway Agreement dated May 31, 1989, filed January 11, 1990, as Document
No. 2066682, as amended by Declaration of Transfer of Rights dated
January 11, 1990, filed January 11, 1990, as Document No. 2066683.
(3) Second Restated Declaration-800 Tower Parcel/LaSalle Parcels dated
October 10, 1997, filed November 21, 1997, as Document No. 2863489.
(4) Restated Loading Dock Easement and Operating Agreement dated October 10,
1997, filed November 21, 1997, as Document No. 2863490.
(5) Restated Lakewood Declaration dated October 10, 1997, filed November 21,
1997, as Document No. 2863491.
(6) Parking Garage Easement Agreement dated October 10, 1997, filed November
21, 1997, as Document No. 2863492.
A-1
[U.S. BANK LOGO]
U.S. BANK
EXHIBIT B
U.S. BANK NATIONAL ASSOCIATION International Banking Division, MPFP1007
Minneapolis Office Cable: FIRSTBANK, MPS
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TELEX: 192179 FBNA INTL MPS
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ S.W.I.F.T.: FNBMUS44
▇▇▇ ▇▇▇-▇▇▇▇/0710 Fax: ▇▇▇ ▇▇▇-▇▇▇▇
MARCH 5, 1998
ENCLOSED IS OUR LETTER OF CREDIT NUMBER 76951
BENEFICIARY APPLICANT
▇▇▇▇▇ ▇▇▇▇▇▇▇ COMPANIES, INC. ▇▇▇▇ 800, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
AUTHORIZED SIGNATURE
B-1
[U.S. BANK LOGO]
U.S. BANK
U.S. BANK NATIONAL ASSOCIATION International Banking Division, MPFP1007
Minneapolis Office Cable: FIRSTBANK, MPS
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ TELEX: 192179 FBNA INTL MPS
Minneapolis, Minnesota 55402-4302 S.W.I.F.T.: FNBMUS44
612 973-0736/0710 Fax: 612 973-0838
IRREVOCABLE STANDBY LETTER OF CREDIT
MARCH 5, 1998
PIPER JAFFRAY COMPANIES, INC.
PIPER JAFFRAY TOWER, SUITE 1500
222 SOUTH NINTH STREET
MINNEAPOLIS, MINNESOTA 55402
WE HEREBY ESTABLISH THIS IRREVOCABLE, STANDBY LETTER OF CREDIT NO. 76951 FOR THE
ACCOUNT OF RYAN 800, LLC, 700 INTERNATIONAL CENTRE, 900 SECOND AVENUE SOUTH,
MINNEAPOLIS, MINNESOTA 55402, IN THE AMOUNT OF SEVEN MILLION AND NO/100 US
DOLLARS (US$7,000,000.00) AND AUTHORIZE YOU TO DRAW FROM TIME TO TIME AT SIGHT
ON U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS, MINNESOTA.
DRAFTS ON US AT SIGHT MUST BE ACCOMPANIED BY BENEFICIARY'S SIGNED STATEMENT
(PURPORTEDLY SIGNED BY AN AUTHORIZED SIGNER OF BENEFICIARY) AS FOLLOWS:
"REFERENCE IS MADE TO THAT CERTAIN TAX REIMBURSEMENT AGREEMENT DATED AS
OF MARCH 3, 1998 BETWEEN RYAN COMPANIES US, INC. ("RYAN") AND PIPER
JAFFRAY COMPANIES, INC. WE HEREBY CERTIFY THAT (1) PURSUANT TO SAID TAX
REIMBURSEMENT AGREEMENT, RYAN OWES TO US AN EXISTING PROJECT TAX
LIABILITY PAYMENT IN THE AMOUNT OF $____, WHICH IS THE AMOUNT OF THE
DRAFT WHICH ACCOMPANIES THIS STATEMENT, AND (2) WE DEMANDED PAYMENT FROM
RYAN OF SUCH EXISTING PROJECT TAX LIABILITY PAYMENT MORE THAN TWENTY
(20) DAYS PRIOR TO THE DATE OF PRESENTATION HEREOF AND SUCH AMOUNT HAS
NOT BEEN PAID TO US."; OR
"WE ARE DRAWING UNDER THIS LETTER OF CREDIT AS IT IS LESS THAN THIRTY
(30) DAYS PRIOR TO THE EXPIRATION DATE OF THIS LETTER OF CREDIT AND THIS
LETTER OF CREDIT HAS NOT (1) BEEN EXTENDED FOR A PERIOD OF ONE YEAR FROM
THE PRESENT OR ANY FUTURE EXPIRATION DATE OR (2) BEEN REPLACED BY A
LETTER OF CREDIT WITH AN EXPIRATION DATE AT LEAST ONE (1) YEAR FROM THE
DATE OF ISSUANCE THEREOF AND OTHERWISE ACCEPTABLE TO US."
THE AMOUNT OF ANY DRAFT(S) DRAWN UNDER THIS CREDIT ARE TO BE ENDORSED ON THE
REVERSE SIDE HEREOF. SUCH DRAFTS MUST BEAR THE STATEMENT "DRAWN UNDER U.S. BANK
NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE CREDIT NO. 76951, DATED MARCH 5, 1998."
THIS CREDIT SHALL EXPIRE AT THE CLOSE OF BUSINESS ON AUGUST 31, 1998
("EXPIRATION DATE").
CONTINUED ON PAGE TWO
B-2
[U.S. BANK LOGO]
U.S. BANK
U.S. BANK NATIONAL ASSOCIATION International Banking Division, MPFP1007
Minneapolis Office Cable: FIRSTBANK, MPS
601 Second Avenue South TELEX: 192179 FBNA INTL MPS
Minneapolis, Minnesota 55402-4302 S.W.I.F.T.: FNBMUS44
612 973-0736/0710 Fax: 612 973-0838
LETTER OF CREDIT NO.76951
MARCH 5, 1998
PAGE TWO
WE HEREBY AGREE THAT DRAFTS AND DOCUMENTS AS SPECIFIED ABOVE WILL BE DULY
HONORED UPON PRESENTATION TO U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE,
601 SECOND AVENUE SOUTH, ATTN: STANDBY LETTERS OF CREDIT MPFP1007. MINNEAPOLIS,
MINNESOTA 55402, IF PRESENTED ON OR BEFORE THE EXPIRATION DATE. IF A DRAWING IS
SO MADE HEREUNDER AT OR PRIOR TO 12:00 NOON, MINNEAPOLIS TIME, ON A BUSINESS
DAY, PAYMENT WILL BE MADE TO YOU OF THE AMOUNT SPECIFIED, IN IMMEDIATELY
AVAILABLE FUNDS, NOT LATER THAN CLOSE OF BUSINESS, MINNEAPOLIS TIME, ON THE NEXT
BUSINESS DAY. IF A DRAWING IS SO MADE HEREUNDER AFTER 12:00 NOON, MINNEAPOLIS
TIME, ON A BUSINESS DAY, PAYMENT WILL BE MADE TO YOU OF THE AMOUNT SPECIFIED, IN
IMMEDIATELY AVAILABLE FUNDS, NOT LATER THAN CLOSE OF BUSINESS, MINNEAPOLIS TIME,
ON THE SECOND SUCCEEDING BUSINESS DAY. THE TERM "BUSINESS DAY" AS USED HEREIN
SHALL MEAN ANY DAY OTHER THAN A SATURDAY, SUNDAY, LEGAL HOLIDAY OR OTHER DAY ON
WHICH BANKING INSTITUTIONS IN MINNEAPOLIS ARE AUTHORIZED OR REQUIRED BY LAW TO
CLOSE.
THIS CREDIT IS TRANSFERABLE IN ITS ENTIRETY TO ANY TRANSFEREE WHICH HAS
SUCCEEDED YOU UNDER THE ABOVE-REFERENCED TAX REIMBURSEMENT AGREEMENT, AND MAY BE
SUCCESSIVELY TRANSFERRED. TRANSFER OF THIS CREDIT TO SUCH TRANSFEREE SHALL BE
EFFECTED BY THE PRESENTATION TO US OF THIS CREDIT ACCOMPANIED BY A COMPLETED AND
SIGNED CERTIFICATE IN THE FORM OF EXHIBIT A ATTACHED HERETO. UPON SUCH
PRESENTATION, WE SHALL ENDORSE THE TRANSFER ON THIS CREDIT AND SUCH TRANSFER
SHALL BECOME EFFECTIVE UPON DELIVERY OF THIS CREDIT BY US TO SUCH TRANSFEREE.
THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION) PUBLISHED BY THE INTERNATIONAL CHAMBER OF COMMERCE
(PUBLICATION NO. 500), OR ANY SUBSEQUENT REVISION THEREOF.
WE HEREBY ACKNOWLEDGE AND AGREE THAT OUR OBLIGATIONS TO YOU UNDER THIS CREDIT
ARE INDEPENDENT OF THOSE OF RYAN 800, LLC OR RYAN COMPANIES US, INC. TO YOU. NO
DEFENSE OR CLAIM OF RYAN 800, LLC OR RYAN COMPANIES US, INC. AGAINST YOU, AND NO
BANKRUPTCY OR INSOLVENCY OF RYAN 800, LLC OR RYAN COMPANIES US, INC. SHALL
IMPAIR OR AFFECT IN ANY WAY OUR OBLIGATION TO HONOR YOUR DRAFT OR DRAFTS
PRESENTED UNDER AND IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS CREDIT.
U.S. BANK NATIONAL ASSOCIATION, MINNEAPOLIS OFFICE
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
-------------------------- --------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
B-3
EXHIBIT A TO
LETTER OF CREDIT
NO. 76951
TRANSFER CERTIFICATE
DATE: ___________
U.S. Bank National Association
601 Second Avenue South
Minneapolis, Minnesota 55402
Attention: Standby Letter of Credit Department
Re: Irrevocable Transferable Standby Letter of Credit No.________
Ladies & Gentlemen:
The undersigned is beneficiary of the above-captioned Irrevocable
Transferable Standby Letter of Credit (the "Credit") and hereby requests that
all rights of the undersigned to draw under the Credit be transferred to:
--------------------------------------
Name of Transferee
--------------------------------------
Address
The transferee will succeed the undersigned as beneficiary of the rights
and benefits of the undersigned under the Tax Reimbursement Agreement described
in the Credit.
The Credit is submitted herewith for endorsement by you of the transfer
and for delivery of such endorsed Credit to the transferee named above, at which
time the transfer requested hereby shall become effective.
Very truly yours,
----------------------------------
(Name of Predecessor Beneficiary)
By:
-----------------------------
Its
-------------------------
B-4
LEASE GUARANTY
WHEREAS, RYAN 800, LLC, Minnesota limited liability company, hereinafter
referred to as "Landlord" and U.S. BANCORP PIPER JAFFRAY COMPANIES, INC., a
Delaware corporation, hereinafter referred to as "Tenant", have simultaneously
executed that certain Supplemental Amendment Regarding Expansion Space for
additional premises at a building to be constructed in Minneapolis, Minnesota,
(the "Amendment") which amends and supplements that certain Office Lease dated
March 3, 1998, as previously amended (said Office Lease, as previously amended,
together with the Amendment is herein collectively referred to as the "Lease").
WHEREAS, U.S. Bancorp, hereinafter referred to as "Guarantor", is the
parent company of and has a financial interest in Tenant;
WHEREAS, Landlord would not enter into the Amendment with Tenant if
Guarantor did not execute and deliver to Landlord this Lease Guaranty (this
"GUARANTY") and
WHEREAS, this Guaranty is being executed and delivered simultaneously
with the execution and delivery of the Amendment;
NOW THEREFORE, for and in consideration of the execution of the
foregoing Amendment by Landlord and as a material inducement to Landlord to
execute the Amendment, Guarantor hereby jointly, severally, unconditionally and
irrevocably guarantees the prompt payment by Tenant of all rentals and all other
sums payable by Tenant under the Lease and the faithful and prompt performance
by Tenant of each and every one of the terms, conditions and covenants of the
Lease to be kept and performed by Tenant as such are defined in the Lease. The
reduction of or limitation on any liabilities of Tenant under the Lease pursuant
to any federal or state bankruptcy or insolvency proceeding shall not cause a
reduction in or otherwise affect the liabilities or obligations of Guarantor
under this Guaranty.
It is specifically agreed and understood that the terms of the foregoing
Lease may be altered, affected, modified or changed by agreement between
Landlord and Tenant, or by a course of conduct, and the Lease may be assigned by
Landlord or any assignee of Landlord pursuant to the Lease without consent or
notice to Guarantor and that this Guaranty shall thereupon and thereafter
guarantee the performance of the Lease as so changed, modified, altered or
assigned.
This Guaranty shall not be released, modified or affected by failure or
delay on the part of Landlord to enforce any of the rights or remedies of the
Landlord under the Lease, whether pursuant to the terms thereof or at law or in
equity. No notice of default need be given to Guarantor, it being specifically
agreed and understood that the guarantee of the undersigned is a continuing
guarantee under which Landlord may proceed forthwith and immediately against
Tenant or against Guarantor following any Event of Default by Tenant or for the
enforcement of any rights which Landlord may have as against Tenant after an
Event of Default pursuant to or under the terms of the Lease or at law or in
equity.
Landlord shall have the right to proceed against Guarantor hereunder
following any Event of Default by Tenant without first proceeding against Tenant
and without previous notice to or demand upon either Tenant or Guarantor.
Guarantor hereby waives (a) notice of acceptance of this Guaranty, (b)
demand of payment, presentation and protest, (c) all right to assert or plead
any statute of limitations as to or relating to this Guaranty and the Lease,
provided such waiver shall not affect any right which Tenant may have, (d) any
right to require the Landlord to proceed against the Tenant or any other
Guarantor or any other person or entity liable to Landlord, (e) any right to
require Landlord to apply to any default any security deposit or other security
it may hold under the Lease, (f) any right to require Landlord to proceed under
any other remedy Landlord may have before proceeding against Guarantor and (g)
any right of subrogation.
The term "Landlord" whenever used in this Guaranty refers to and means
the Landlord specifically named in the Lease and also any assignee of the
Landlord, whether by outright assignment or by assignment for security, and also
any successor to the interest of said Landlord or of any assignee in the Lease
or any part thereof pursuant to the Lease, whether by assignment or otherwise.
So long as the Landlord's interest in or to the Premises or the rents, issues
and profits therefrom, or in, to or under the said lease, are subject to any
mortgage or deed of trust or assignment for security, no acquisition by
Guarantor of the Landlord's interest in the Premises or under the Lease shall
affect the continuing obligation of Guarantor under this Guaranty, which shall
nevertheless continue in full force and effect for the benefit of the mortgagee,
beneficiary, trustee or assignee under such mortgage, deed of trust or
assignment, of any purchase at sale by judicial foreclosure or under private
power of sale, and of the successors and assigns of any such mortgagee,
beneficiary, trustee, assignee or purchaser. The term "Tenant" whenever used in
this Guaranty refers to and means the Tenant specifically named in the Lease and
also any assignee or sublessee of the Lease and also any successor to the
interests of the Tenant, assignee or sublessee of the Lease or any part thereof,
whether by assignment, sublease or otherwise.
The obligations of the Guarantor hereunder shall include payment to
Landlord of all reasonable costs of any successful legal action by Landlord
against Guarantor, including reasonable attorneys' fees.
This Guaranty, all acts and transactions hereunder and the rights and
obligations of the parties hereto shall be governed by and construed and
enforced in accordance with the laws of the State of Minnesota. As part of the
consideration for Landlord's entering into the Lease which this Guaranty is a
part, the Guarantor hereby agrees that all actions or proceedings arising
directly or indirectly hereunder may, at the option of Landlord, be litigated in
courts having situs within the State of Minnesota, and the Guarantor hereby
expressly consents to the jurisdiction of any such local, state or federal
court, and consents that any service of process in such action or proceeding may
be made by personal service upon the Guarantor wherever the Guarantor may then
be located, or by certified or registered mail directed to such Guarantor at 601
Second South, Minneapolis, Minnesota 55402, Attention: General Counsel.
2
IN WITNESS WHEREOF, the Guarantor has executed this Lease Guaranty under
seal as of this 29th day of September, 1999.
U.S. BANCORP
By: /s/ [ILLEGIBLE]
-----------------------------
Title: EXECUTIVE VICE PRESIDENT
--------------------------
3