EXHIBIT 10.1
AT&T TOWER
LEASE AGREEMENT
This LEASE AGREEMENT ("LEASE"), made as of this 17th day of January, 2003
between International Centre Limited Partnership, a Minnesota limited
partnership ("Landlord"), and Fair ▇▇▇▇▇ and Company, Incorporated, a Delaware
corporation ("Tenant");
RECITALS
A. Landlord is the owner of the Project (defined below).
B. Pursuant to that certain Lease Agreement dated as of October 23, 2000,
as amended by that certain First Amendment to Lease dated as of July 30, 2001
(as amended, the "Prime Lease") Landlord leases to Utility Engineering
Corporation, a Texas corporation ("UEC") certain space located on the 30th (such
space being referred to herein as the "Sublease 30"), 31st, 32nd and 33rd floors
of the Project (collectively referred to herein as the "Sublease Premises"), as
more particularly set forth therein.
C. Simultaneously with the execution and delivery of this Lease, UEC is
subleasing the Sublease Premises to Tenant pursuant to that certain Sublease
Agreement of even date herewith between UEC and Tenant.
D. Tenant desires to lease from Landlord directly the Sublease Premises,
together with the approximately 8,753 square feet of rentable area on the 30th
floor of the Project (as designated on the floor plan attached hereto as Exhibit
A and referred to herein as the "Direct 30") upon the terms and conditions set
forth in this Lease.
E. The Sublease Premises and the Direct 30 are collectively referred to
herein as the "Premises".
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1.1 PREMISES: Landlord, subject to the terms and conditions hereof, hereby
leases to Tenant and Tenant hereby leases from Landlord the Premises, which are
shown crosshatched on the floor plans attached hereto as Exhibit A, containing
approximately 71,474 square feet of net rentable area, as determined in
accordance with BOMA, located in the building situated at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Building"), which is constructed on land (the
"Land") legally described on attached Exhibit B. The Building, the Common Areas
and the Land are collectively referred to in this Lease as the "Project",
together with the right, in common with others, to use the Common Areas. "BOMA"
shall mean the "Standard Method for Measuring Floor Area in Office Buildings",
(American National Standard ANSI Z65.1-1996), Approved June 7, 1996 by American
National Standards Institute, Inc.) prepared for the Building Owners and
Managers Association International. "Common Areas" shall mean that part of the
Building which includes any atriums, hallways for use by more than
one tenant, the Building's electrical and mechanical space, loading docks,
elevators and elevator lobbies, and restrooms which are outside the premises of
any tenant, and that part of the Land which is outside the perimeter of the
Building including any parking facilities.
1.2. RIGHT OF FIRST OFFER: Landlord grants to Tenant the option ("RIGHT OF
FIRST OFFER") to add to the Premises any portion of the 26th, 27th, 28th and
29th floors ("RIGHT OF FIRST OFFER SPACE") which Landlord elects to offer to a
third party.
Landlord shall notify Tenant in writing of its intent to offer the
Right of First Offer Space to the public. Landlord's notice shall include the
material terms on which Landlord intends to lease the Right of First Offer
Space, including Base Rent, Term, Landlord's contribution to Tenant Improvements
and the approximate date possession is to be delivered. Tenant shall have ten
(10) business days from receipt of Landlord's notice to Tenant to advise
Landlord, in writing, that Tenant accepts the Right of First Offer Space,
subject to the terms of Landlord's Notice.
Prior to delivery of possession, Tenant shall execute an amendment
to this Lease reflecting the addition to the Premises, the additional Base Rent,
the change in ratio of the Premises to the Building area and any other revisions
necessary because of the Right of First Offer Space being added to the original
Premises. All other terms and conditions of this Lease shall apply to the
additional premises.
If at the time of the exercise or at any time thereafter until the
commencement of the Term as to the Right of First Offer Space, there exists a
Tenant Default (as defined in Section 14.1), Tenant will have no right to
exercise its option as to the relevant Right of First Offer Space and/or to
lease such Right of First Offer Space.
Tenant's rights as of the date hereof, under this section 1.2 as it
relates to the 26th through 29th floors shall at all times be subordinate to the
rights of AT&T Corp. and NRG Energy, Inc.
1.3 EXPANSION OPTION: Tenant is hereby granted the right (the "Expansion
Right") to expand the Premises to incorporate the 29th floor of the Project
(approximately _________ square feet of rentable area) (the "Expansion Space")
into the Premises in accordance with the provisions set forth in this Section
1.3.
EXERCISING RIGHTS AND LANDLORD'S NOTICE: If Tenant desires to
exercise the Expansion Right Tenant must give Landlord written notice thereof on
or before September 1, 2005, and if Tenant does not deliver its written notice
to Landlord on or before such date, Tenant will have waived its right to acquire
the Expansion Space pursuant to the Expansion Right. Landlord will deliver the
Expansion Space on June 1, 2006 and immediately upon such delivery, the
Expansion Space will become a part of the Premises, and shall thereafter be
subject to the same terms and conditions of the Lease as if the Expansion Space
had originally been part of the Premises. Tenant's obligation to pay Base Rent
for the Expansion Space will commence on the earlier of (a) 90 days after the
date on which Landlord delivers the Expansion Space to Tenant in the condition
required by this Lease, or (b) the date on which Tenant commences conducting its
business operations in the Expansion Space. Upon the request of either party,
Landlord shall prepare an amendment, in form and substance reasonably acceptable
to Tenant, evidencing the addition of the Expansion Space to the Premises.
BASE RENT, ACCEPTANCE AND EXPANSION ALLOWANCE: Tenant shall accept
the Expansion Space in "as is" condition. Base Rent for the Expansion Space will
be
equal to FAIR MARKET RENT as defined in Section 37.3. Tenant will be permitted
to gain access to the respective Expansion Space on June 1, 2006 for the purpose
of constructing Tenant Improvements therein. Landlord will not be entitled to
any fees for reviewing Tenant's plans or supervising Tenant's construction of
the improvements to the Expansion Space.
2. TERM: The term of this lease (the "Term") shall commence on February 1,
2003 and continue thereafter until August 31, 2014.
2.1 RENEWAL TERM: Tenant shall have two (2) options to extend the Term
("Renewal Term") for periods of five (5) years each. Tenant shall provide
Landlord written notice to exercise each option not less than eighteen months in
advance of the expiration of the then existing Term. Base Rent during each
Renewal Term shall be Fair Market Rent, as defined in Section 37 of this Lease.
3. ANNUAL BASE RENT: Tenant agrees to pay to Landlord during the Term an
annual Base Rent (the "Base Rent") as follows:
Annual Rent per Square Foot of
Portion of Premises Period Rentable Area
------------------- ------ ------------------------------
Floors 31, 32, 33 2/1/03-8/31/11 $10.70
9/1/11-8/31/14 Fair Market Rent
Sublease 30 2/1/03-6/30/07 $10.70
7/1/07-8/31/14 Fair Market Rent
Direct 30 2/1/03-6/30/07 $7.50
7/1/07-8/31/14 Fair Market Rent
payable on the first day of each month in advance, without deduction or setoff
of any kind, to Landlord and delivered to Landlord's managing agent, ▇▇▇▇
Properties, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
or at such other place as may from time to time be designated by Landlord.
Notwithstanding anything in this Section 3 to the contrary, Tenant's payment of
the rent payable by Tenant with respect to the Sublease Premises pursuant to the
Sublease shall be deemed to be payment in full of the Base Rent and Operating
Costs with respect to the Sublease Premises under this Lease.
In each case where Base Rent is to be "Fair Market Rent", Landlord and Tenant
shall endeavor to agree upon Fair Market Rent at least twelve (12) months prior
to date on which such adjustment is to occur (it being agreed that both Landlord
and Tenant will be reasonable in their attempt to determine Fair Market Rent).
In the event the parties are unable to agree on the Fair Market Rent by such
time, either party may provide written notice to the other party requesting
arbitration (Arbitration Request) as outlined in Section 37.
4. USE: Tenant shall only use the Premises for general office purposes and
all legal uses incidental thereto and for no other purpose without Landlord's
prior written consent.
5. OPERATING COSTS: Subject to Section 3 above, Tenant shall pay to
Landlord as an item of Additional Rent, without any setoff or deduction
therefrom except as permitted by
this Lease, Tenant's Proportionate Share of Operating Costs incurred by Landlord
with respect to the Building. Tenant's Proportionate Share being the decimal
equivalent of a fraction, the numerator of which is 71,474 and the denominator
of which is 610,154 (i.e., 11.7140%).
5.1 DEFINITION OF OPERATING COSTS: "Operating Costs" include all
reasonable expenses and reasonable costs (but not specific costs which are
separately billed to and paid by individual tenants) of every kind and nature
which Landlord pays or becomes obligated to pay because of, or in connection
with, the operation or maintenance of the Project and supporting facilities of
the Project, including but not limited to all real estate taxes and annual
installments of special assessments which are assessed, levied, charged,
confirmed or imposed by any public authority (excluding any interest or penalty
for late payment) upon the Project, its operations or the Rent provided for in
this Lease (provided, however, that real estate taxes and special assessments
attributable to the Building's parking structure will be excluded from Operating
Costs), reasonable costs of any contest of such taxes, including reasonable
attorneys' fees, to the extent taxes are reduced as a result of contest;
management fees not in excess of four percent (4%) of gross Building rental
amounts, insurance premiums (provided, however, that liability insurance
premiums attributable to the Building's parking structure will be excluded from
Operating Costs), the cost of supplying electricity to the Building's parking
structure, and utility costs, janitorial costs, Building security costs, costs
of wages (including, without limitation, the reasonable cost of overtime wages
necessary to perform those items of maintenance and repair work generally
performed by other landlords in the Minneapolis downtown office district on an
overtime basis in order to minimize inconvenience to tenants), Project repair
and maintenance costs, including those which incidentally benefit the Building's
parking structure (such as sump pump maintenance and maintenance of the
ventilation system serving the parking structure); and all other reasonable
costs of any nature whatsoever which for federal tax purposes may be expensed
rather than capitalized. Tenant shall not be responsible for any increase in
real estate taxes which results solely from the creation of additional rentable
area on the Land or in the Building or from improvements or alterations made by
Landlord or other tenants unless Tenant's Proportionate Share shall be adjusted
accordingly. Costs which would under generally accepted accounting principles be
deemed capital costs or capital expenditures may be included in the definition
of "Operating Costs" only to the extent that such cost: (i) relates to an
expenditure which is required to comply with changes in Legal Requirements, as
defined in Section 32, which occur after the Commencement Date but then only to
the extent in any one year of the amount equal to the total expenditure divided
by the useful life of the improvement which requires such cost, or (ii) relates
to an expenditure which is incurred based upon a reasonable forecast that such
expenditure will reduce in future years another cost which would be deemed an
Operating Cost but then only to the extent in any one year of the originally
estimated amount of savings for the year it is charged.
5.2 EXCLUSIONS FROM OPERATING COSTS: Operating Costs shall exclude
the following:
A. With respect to employees primarily engaged in the development,
marketing, leasing or collection of debts related to the Project, no
portion of those employees' wages, benefits, or taxes allocable to time
spent on those activities will be included in Operating Costs;
B. Depreciation or amortization of the Building or its contents or
components;
C. Expenses for the preparation of space or other work which Landlord
performs for any other tenant or prospective tenant of the Building;
D. Expenses for repairs or other work which is caused by fire, windstorm,
casualty or any other insurable occurrence (except costs up to $25,000
which are subject to Landlord's insurance deductible), and any cost for
any commercial general liability insurance coverage with minimum limits in
excess of those generally maintained by other landlords of similar
buildings located in the Minneapolis downtown office district;
E. Expenses incurred in leasing or obtaining new tenants or retaining
existing tenants, including leasing commissions, legal expenses,
advertising or promotion;
F. Legal expenses incurred in enforcing the terms of any lease;
G. Interest, amortization or other costs, including legal fees, associated
with any mortgage, loan or refinancing of all or any part of the Project
or sale of all or any part of the Project;
H. Expenses incurred for any necessary replacement of any item to the
extent that it is covered under warranty;
I. The cost of any item or service for which Tenant separately reimburses
Landlord or pays to third parties, or that Landlord provides selectively
to one or more tenants of the Building whether or not Landlord is
reimbursed by such other tenant(s). This category shall include the actual
cost of any special electrical, heating, ventilation or air conditioning
(the heating, ventilation and air conditioning systems are referred to as
"HVAC") required by any tenant that exceeds normal building standards or
is required during times other than the Business Hours, as defined in
Section 7(B), and the cost of any special purpose HVAC supplied to any
tenant. This category shall also include the cost of light tubes, bulbs,
fixtures and ballasts supplied to tenants if the same are not supplied to
all tenants on a no additional cost basis;
J. Accounting and legal fees relating to the ownership, construction,
leasing or sale of the Project; and accounting and legal fees paid or
imputed to full time employees of Landlord or any management agent;
K. Any interest or penalty incurred due to Landlord's late payment of any
Operating Cost;
L. Any amount paid to an entity or individual related to Landlord which
exceeds the amount which would be paid for similar goods or services on an
arms-length basis between unrelated parties;
M. The cost of correcting defects in the construction of the Building;
N. The initial cost or the replacement cost of any permanent landscaping,
greater than that in place on the Commencement Date;
O. Any ground rent, air space rent or other rent incurred for the Land;
P. The cost of correcting any applicable building or fire code
violation(s) or violation(s) of any other applicable law relating to the
Building in effect on the Commencement Date;
Q. Any costs incurred to test, survey, cleanup, contain, ▇▇▇▇▇, remove or
otherwise remedy Hazardous Substances, as defined in Section 29, from the
Project which were present at the Project prior to the Commencement Date
or brought onto the Project after the Commencement Date, including any
damages or future claims asserted against Landlord in connection with the
same; provided, however, that Landlord's routine costs incurred in
cleaning up and disposing of materials which are used in the ordinary
operation of the Project, such as copier toner or fluorescent light bulbs
and which may be classified as Hazardous Substances, may be included as
Operating Costs;
R. Any personal property taxes of Landlord for equipment or items not used
directly in the operation or maintenance of the Project;
S. Rentals and other related expenses, if any, incurred in leasing items
to the extent that the cost of the purchase of that item would not be
included as a permitted capital expenditure hereunder; provided, however,
that Landlord may include the cost of leasing items which are used solely
in connection with the Project and typically leased and not purchased by
landlords of similar buildings located in the Minneapolis downtown office
district;
T. Any costs or expenses for sculpture, paintings, or other works of art,
including costs incurred with respect to the purchase, ownership, leasing,
repair and/or maintenance of such works of art; provided, however, that
Landlord may include as an Operating Cost its routine and ordinary
cleaning of these items but that cleaning does not include any
restoration, special preservation, special maintenance, or similar
activities;
U. Contributions to Operating Cost reserves if such reserves will not be
used during the calendar year in which such reserve is created;
V. Overtime or other extraordinary labor expenses except as permitted by
Section 5.1;
W. All expenses directly resulting from the negligence or willful
misconduct or omissions of Landlord, its agents, servants or other
employees;
X. All bad debt loss, rent loss or reserve for bad debt or rent loss;
Y. Any other cost or expense which, under generally accepted accounting
principles consistently applied, would not be considered to be an
operating cost of the Project;
Z. Any additional costs incurred to operate or maintain the Building, or
costs directly incurred by Landlord, for tenants operating food service,
child care or retail businesses in the Building;
AA. Real estate taxes and special assessments and liability insurance
premiums attributable to the Building's parking structure; and
BB. If Landlord at any time self-manages the Building's parking structure,
the cost of the Building parking structure maintenance which is, as of the
Effective Date, performed by, or paid for by, Allied Parking, Inc. and not
Landlord.
5.3 ESTIMATION AND RECONCILIATION OF OPERATING COSTS: As soon as
reasonably practicable prior to the commencement of each calendar year during
the Term, Landlord shall furnish to Tenant an estimate of Operating Costs for
the ensuing calendar year and Tenant's Proportionate Share thereof. Tenant shall
pay, as Additional Rent hereunder, together with each installment of Base Rent,
one-twelfth (1/12th) of its estimated annual Proportionate Share of Operating
Costs. As soon as reasonably practicable after the end of each calendar year
during the Term but in no event later than 120 days after the end of each
calendar year during the Term, Landlord shall furnish to Tenant a statement of
the actual Operating Costs for the previous calendar year, including Tenant's
Proportionate Share of Operating Costs, and within 30 days thereafter Tenant
shall pay to Landlord, or Landlord shall credit to the next Rent payments due
Landlord from Tenant, as the case may be, any difference between the actual
Operating Costs and the estimated Operating Costs paid by Tenant. Within 30 days
after the expiration or earlier termination of the Term, Tenant shall pay to
Landlord, or Landlord shall pay to Tenant, any difference between the actual
Operating Costs and the estimated Operating Costs paid by Tenant for the last
year of the Term. Tenant's Proportionate Share of Operating Costs for the years
in which this Lease commences and terminates shall be prorated by multiplying
the actual Operating Costs by a fraction the numerator of which is the number of
days of that year of the Term and the denominator of which is 365.
Notwithstanding any other provision herein to the contrary, it is agreed that in
the event that the Building is not fully occupied at any time during the Term,
an adjustment shall be made in computing those Operating Costs which fluctuate
due to Building occupancy for such year so that the Operating Costs will be
computed for such year as though the Building had been fully occupied during
that year. The Operating Costs and the books and records of Landlord may, on
reasonable prior notice to Landlord, be audited by Tenant or Tenant's
independent public accounting firm during Business Hours. Tenant will not
compensate its independent public accounting firm for these audits on a
contingent fee basis. If Tenant challenges Landlord's computations of the
Operating Costs or Additional Rent, Tenant shall give Landlord notice stating
Tenant's objections. Any such objection shall be made within one year after
receipt of Landlord's statement pursuant to this Section 5.3 or be deemed
waived; provided, however, that if Tenant's audit discloses that Tenant was
overcharged for Additional Rent three percent (3%) or more of the amount Tenant
should have paid, Tenant may, upon written notice (the "Additional Audit
Notice") given to Landlord within 60 days after Tenant's receipt of the final
audit results for the present audit, audit the Operating Costs and the books and
records of Landlord for the two calendar years prior to the year for which
Tenant conducted the present audit. If Tenant fails to give the Additional Audit
Notice within the 60-day period, Tenant will be deemed to have waived its
additional audit rights with respect to such two calendar years. If Tenant's
audit of the Operating Costs or Additional Rent indicates that Tenant was
overcharged for Additional Rent, Landlord shall, subject to Landlord's right to
submit the matter to arbitration under Section 52, promptly repay all such
overpayment to Tenant and adjust Tenant's estimated payments of Operating Costs
if necessary. In event of any such arbitration, any over-payment shall be repaid
to Tenant within 10 days after such arbitration is completed. If Tenant's audit
of the Operating Costs for any year indicates that Tenant was overcharged for
Additional Rent three percent (3%) or more of the amount Tenant should have
paid, Landlord shall promptly reimburse Tenant for Tenant's reasonable expenses
and fees incurred for the audit. Should Landlord dispute Tenant's or Tenant's
auditors' determination, the dispute shall be resolved by arbitration in
accordance with Section 37.
5.4 REAL ESTATE TAX CONTESTS: Landlord shall, after written notice
from Tenant, contest any real estate tax assessment for any year during the
Term. If Landlord shall fail or refuse to contest a real estate tax assessment
requested by Tenant, then Tenant may bring appropriate proceedings in Landlord's
and/or Tenant's name for contesting any assessment for any tax year during the
Term. The net amount of real estate taxes recovered as a result of such
proceedings, whether commenced or paid for by Landlord or Tenant (e.g., the
amount recovered after payment of all sums necessary to attain such recovery),
will be shared between Landlord and Tenant with Tenant receiving Tenant's
Proportionate Share thereof. If Tenant contests any real estate tax assessment,
it will reimburse Landlord for Landlord's reasonable costs incurred in
connection with Tenant's contest, including any increase in the Project's real
estate taxes. Landlord and Tenant shall cooperate with each other with respect
to the proceedings so far as is reasonably necessary.
6. ADDITIONAL TAXES: Tenant shall pay as additional rent to Landlord,
together with each installment of Base Rent, the amount of any gross receipts
tax, sales tax or similar tax, or any tax imposed in lieu of real property taxes
(but excluding therefrom any income tax), or arising out of ownership, payable
or which will be payable by Landlord, by reason of the receipt of the Base Rent
and adjustments thereto.
7. LANDLORD'S SERVICES: So long as Tenant performs each and every covenant
to be performed by Tenant hereunder, Landlord agrees that Tenant may quietly
enjoy the Premises in accord with the provisions hereof and that Landlord shall
provide the following services ("Landlord's Services"):
A. HVAC. Furnish HVAC services in accordance with the criteria set forth
on attached Exhibit E during Business Hours. If heat generating machines
or equipment are used in the Premises which affect the temperature
otherwise maintained by the air conditioning system, Landlord, at the
request of Tenant, shall install supplementary air conditioning equipment
in the Premises, if such installation is deemed practical in the sole
judgment of Landlord, and the cost of any such equipment, together with
the cost of installation, operation and maintenance thereof (including all
utility costs incurred in connection therewith) shall be paid by Tenant to
Landlord as Additional Rent, together with each monthly installment of
Base Rent, at such rates as are reasonably determined by Landlord. Any
such equipment may be removed by Tenant upon the expiration or earlier
termination of this Lease and, if requested by Landlord in writing, will
be removed by Tenant upon the expiration or earlier termination of this
Lease.
B. Elevators. Provide passenger elevator service in common with others at
all times. Further, to provide freight elevator service in common with
others Monday through Friday from 8:00 A.M. to 6:00 P.M., and Saturday
from 8:00 A.M. to 1:30 P.M., Minnesota and Federally recognized holidays
excepted (the "Business Hours").
C. Janitorial. Provide the janitorial services identified on attached
Exhibit H on a daily basis in and about the Premises in a manner which is
reasonably acceptable to Tenant.
D. Maintenance, Repair and Replacement. Maintain, repair, replace and keep
in good repair, ordinary wear and tear excepted, the Building's
foundations, electrical, mechanical and HVAC systems, exterior walls,
Common Areas and roof, including roof membrane; provided, however, if the
need for repairs is directly or indirectly attributable to, or results
from, any Tenant activity being conducted within the Premises, Tenant
agrees to reimburse Landlord for all reasonable costs and expenses
incurred by Landlord with respect to those repairs except to the extent
covered by insurance. Landlord shall commence, and diligently pursue until
completion, any repairs it is required to do hereunder within a reasonable
period of time after receiving written notice from Tenant of the necessity
for such repairs. Landlord's obligations hereunder shall be subject to the
provisions of Sections 10 and 11.
E. Water. Provide water for drinking, lavatory and toilet purposes drawn
through fixtures installed by Landlord at such points of supply provided
for general use of other tenants in the Building.
F. Electricity. Provide electricity to the Premises for normal lighting
and operation of small business office equipment (but not equipment using
amounts of power in excess of that for which the Premises are presently
designed and rated). In the event that additional utilities are required
by Tenant, all actual costs for those additional utilities, including
additional conduits, separate meters and service, will be paid by Tenant.
Tenant shall use its best efforts to conserve electricity.
G. Window Coverings. Provide interior window coverings, at Landlord's own
expense, of a venetian or similar type blind for exterior windows. Tenant,
with Landlord's prior written consent and so long as such drapes or
coverings are in harmony with the exterior and interior appearance of the
Building and create no unreasonable safety or fire hazard, may install
drapes or other window coverings to the inside of said blinds at Tenant's
own expense (and if installed shall maintain them in an attractive and
safe condition).
H. Premises Keys. Furnish Tenant with two keys for each corridor door
entering the Premises, and, upon Tenant's request and at Landlord's actual
cost, additional Premises' keys. All such keys will remain the property of
Landlord. Except for Tenant's security system discussed below, no
additional locks will be allowed on any door of the Premises without
Landlord's written consent, and Tenant shall not make or permit to be made
any duplicate keys. Tenant may, at Tenant's sole expense and upon notice
to, but without the consent of, Landlord, install an electronic security
card lock system within the Premises. Tenant will deliver a reasonable
number of key cards to Landlord so that Landlord may gain access to the
Premises as permitted by Section 8(B). Tenant will be permitted to change
the security card codes on this system at any time and from time to time
and Tenant will, as soon as reasonably possible after a change, deliver
replacement key cards to Landlord. Upon the expiration or earlier
termination of this Lease, Tenant shall surrender to Landlord at the
address then provided for the payment of Rent all access cards and keys to
the Premises, and give to Landlord the combination of all locks for safes,
safe cabinets and vault doors, if any, in the Premises.
I. Building Monitoring. At least one employee or agent of Landlord will be
present, subject to temporary absence for the purpose of inspecting the
Project or responding to calls, in the first floor lobby 24 hours per day,
seven days per week, for the purpose of monitoring the Project and access
thereto.
J. Access. Access to and egress from the Building, the Premises and the
Common Areas, twenty four (24) hours per day, seven (7) days per week.
Notwithstanding the immediately preceding sentence to the contrary,
Landlord may temporarily restrict access to (i) the Building, the Premises
and the Common Areas in the event of an emergency but only for so long as
the emergency exists, and (ii) upon reasonable prior written notice to
Tenant, the Common Areas of the Building for planned tenant events, such
as holiday parties, but such restriction will not unreasonably interfere
with Tenant's access to and egress from the Premises, other Common Areas
or the other portions of the Building.
K. Landlord's Insurance. Landlord shall maintain in full force and effect
during the Term (i) "all risk" commercial property insurance coverage
(including coverage for Initial Alterations) in the amount of the full
replacement value thereof, as the value may exist from time to time; (ii)
boiler and machinery insurance; (iii) commercial general liability
insurance, including contractual liability, on an occurrence basis with
minimum limits of not less than $5,000,000.00 per occurrence and in the
aggregate for injuries, losses, claims or damages to persons or property
and contractual liabilities occurring in or on the Building and the Land,
and due to the negligence of Landlord and its employees; and (iv) worker's
compensation and employer's liability for all of Landlord's employees.
Landlord's insurance shall be issued by insurance companies qualified to
do business in the State of Minnesota, with a general policyholder rating
of at least A- and a financial rating of at least VIII as noted in the
most current Best's Insurance Guide and Key Ratings, (or an equivalent
rating by another widely recognized insurance rating agency of similar
standing.) Landlord's liability insurance shall name Tenant as an
Additional Insured and shall provide for a waiver of subrogation in favor
of Tenant. Prior to the Commencement Date and throughout the Term,
Landlord shall provide Tenant with certificate(s) of insurance evidencing
the amounts and types of coverage described above with a 30 day (10 day
for premium non-payment) notice of cancellation to Tenant. The limits of
coverages required in (iii) and for employer's liability may be provided
in combination with umbrella coverage. Evidence of such policies of
insurance may be in the form of an ISO ▇▇▇▇▇ form Certificate of
Insurance, or its equivalent, filed with Landlord prior to Tenant's
occupancy of the Premises and at all times thereafter during the Term. In
addition, Landlord will cause its contractors to maintain in full force
and effect commercial general liability coverage, worker's compensation
and employer's liability, with minimum limits acceptable to Landlord; such
coverages shall be written by insurance companies qualified to do business
in the State of Minnesota with a minimum rating of A- and VIII according
to Best's Insurance Report.
L. Fire, Life, Safety. Landlord shall maintain the life safety and
security systems and shall comply with all applicable requirements of all
governmental authorities having or claiming jurisdiction over the Project,
including, without limitation, the Minneapolis Fire Department. Landlord
shall, upon Tenant's written request, provide Tenant a written emergency
evacuation plan for the Building complying with the requirements of all
governmental authorities having or claiming jurisdiction over the Project,
including, without limitation, the Minneapolis Fire Department.
7.1 REQUEST FOR ADDITIONAL LANDLORD'S SERVICES: Tenant shall have
the right to request any or all of the Landlord's Services outside of Business
Hours, and the same shall be supplied on advance notice. If more than one tenant
requests these services and directly benefits from these services, then the cost
of providing the Landlord's Services during non-Business Hours shall be
allocated proportionately between or among the benefiting tenants based on the
amount of time each
tenant benefits and the square footage of each tenant's premises. The cost for
these additional services shall, in no event, exceed Landlord's actual costs.
After hour HVAC costs will be computed in accordance with the formula set forth
on attached Exhibit E.
7.2 INTERRUPTION OF LANDLORD'S SERVICES: Rent is based in part on
the Landlord's Services. If, for any reason, Landlord does not provide any
Landlord's Services in the manner described in this Lease for more than three
business days following notice from Tenant of a failure, interruption or
reduction, all Rent shall be abated on a per diem basis for the period of
interruption beginning with the date the failure, interruption or reduction in
those Landlord's Services began and ending when those Landlord's Services are
fully restored; provided, however, if Tenant is, or reasonably could be,
conducting business in all or any part of the Premises during the period of the
failure, interruption, or reduction the Rent will ▇▇▇▇▇ pro rata based upon the
amount of space and the level at which Tenant is, or reasonably could be,
conducting business. If those Landlord's Services are not provided for more than
30 consecutive days, Tenant will have the right, after an additional 10 days'
notice to Landlord during which Landlord does not restore those Landlord's
Services, to take such actions as Tenant may reasonably deem necessary to
restore those Landlord's Services and charge the cost thereof to Landlord. If
Landlord fails to pay, within 30 days after receipt of Tenant's invoice for
those costs, the amount due, Tenant may offset the amount set forth on the
invoice against installments of Rent due hereunder. If those Landlord's Services
are not provided for more than 60 consecutive days and such interruption in
Landlord's Services is not caused by a fire or other casualty subject to the
provisions of Section 10, then Tenant may by notice to Landlord terminate this
Lease.
8. COVENANTS OF TENANT: Tenant agrees that it shall:
A. Laws. To the extent not Landlord's responsibility under this Lease,
observe and comply in all material respects with all governmental
ordinances, laws and regulations and the Rules and Regulations attached
hereto as Exhibit I, and all reasonable and nondiscriminatory
modifications thereof as from time to time may be put in effect by
Landlord, or Landlord's designated managing agent, for the general safety,
comfort, and convenience of Landlord, occupants and tenants of the
Building, including, without limitation, use of Common Areas and other
Building areas, security measures, and similar matters.
B. Landlord's Access. Give Landlord and Landlord's managing agent access
to the Premises, at any time during emergencies and at all reasonable
times upon 24 hours prior notice and, at Tenant's election, with an escort
identified by Tenant, without charge or diminution of Rent, to enable
Landlord to examine or exhibit the same and to make such inspections and
repairs as Landlord deems necessary, or to make such inspections, repairs,
alterations or additions as may be required to be made by Landlord under
this Lease or by law. If Tenant desires that an escort accompany Landlord
or its agent during any such entry, Tenant will make an escort available
to Landlord. Landlord will be permitted to enter the Premises
unaccompanied by an escort if Tenant is unable to make an escort available
after receipt of Landlord's notice required under this Section 8(B).
Landlord will comply with reasonable directions or rules communicated by
Tenant from time to time to assure the confidentiality of Tenant's and
Tenant's customer's data and materials on the Premises.
C. Good Condition and Repair. To the extent not Landlord's responsibility
under this Lease, keep the Premises in good order and condition; Tenant
shall be responsible for payment of all costs incurred by Landlord in
replacing all glass broken by Tenant with glass of the same quality, and
Tenant shall commit no waste on the Premises.
D. Lamps and Ballasts. Pay for all replacement electric lamps and ballasts
in the Premises.
E. Surrender of Premises. Upon the expiration or earlier termination of
this Lease, remove Tenant's personal property and those of any other
person claiming under Tenant, and quit and deliver up the Premises to
Landlord peaceably and quietly in as good order and condition as the same
are in on the Commencement Date or thereafter were put in by Landlord or
Tenant, reasonable use, wear and damage by casualty excepted. Personal
property not removed by Tenant at the expiration or earlier termination of
this Lease will be considered abandoned, and Landlord may dispose of the
same as it deems expedient at Tenant's expense. Tenant shall be
responsible for payment of all reasonable costs incurred by Landlord for
any restoration of the Premises needed by virtue of the removal of
Tenant's personal property whether removed by Tenant or Landlord.
F. Voice/Data Lines. Remove any or all voice/data lines installed by or
for Tenant within or serving the Premises, including riser closet, upon
the termination of this Lease, provided Landlord gives Tenant notice prior
to, or within thirty (30) days following such termination
G. Assignment and Subletting. Tenant, on notice to Landlord (but without
Landlord's consent), may assign this Lease or sublet all or part of the
Premises to any of Tenant's Affiliates. "Tenant's Affiliates" means any
company controlling, controlled by or under common control with Tenant, as
well as any entity acquiring all or substantially all of Tenant's assets
or common stock. In no circumstances shall the original Tenant be released
from its obligations under this Lease. A transfer of an ownership interest
in Tenant is not an assignment of this Lease, but Tenant shall give
Landlord notice of any such transfer which results in a change in control
of Tenant. Tenant shall not otherwise assign this Lease or sublet all or
any part of the Premises voluntarily, involuntarily or by operation of
law, without first obtaining Landlord's written consent thereto, which
consent shall not be unreasonably withheld, delayed or conditioned and
will be deemed granted unless denied in writing by Landlord within 10 days
after Tenant's delivery of its consent request to Landlord. Any such
assignee or sublessee shall assume in writing the performance of the
covenants and obligations of Tenant hereunder. Tenant shall deliver to
Landlord a fully executed copy of any assignment or sublease. No
assignment or sublease will release Tenant from the payment and
performance of any of its obligations under this Lease. Notwithstanding
any other provision of this Section 8(F), so long as AT&T Communications,
Inc. or any entity controlling, controlled by or under common control with
AT&T Communications, Inc. (collectively, "AT&T") is a tenant in the
Building, Tenant will not, without the prior written consent of Landlord,
sublease the Premises or assign this Lease to any party that Landlord
reasonably determines to be in direct competition with AT&T. For purposes
of the immediately preceding sentence, the "primary business" of AT&T is
the manufacture and sale of telecommunications equipment and data
processing and typewriting equipment and interexchange telecommunications
services.
H. Increase Risk. Not overload, damage or deface the Premises, the
Building or the Project or do any act which may make void or voidable any
insurance on the Premises, the Building or the Project, or which may
render an increased or extra premium payable for insurance. Landlord
represents and warrants that Tenant's use of the Premises for general
office purposes and legal uses incidental thereto will not void or make
voidable any insurance on the Premises, the Building or the Project, or
result in an increased or extra insurance premium for the Premises, the
Building or the Project.
I. ACM. Not install asbestos or any asbestos containing material within
the Premises or the Building.
J. Mechanic's Liens. Keep the Premises and the Building free from any
mechanics', materialmen's, contractors' or other liens arising from, or
any claims for damages growing out of, any work performed, materials
furnished or obligations incurred by or on behalf of Tenant. If a lien is
claimed, Tenant shall either cause it to be removed or contested within 30
days after notice from Landlord to do so. If Tenant fails to remove or
contest the lien within the 30-day period, Landlord may take such action
as it deems necessary to remove the lien, and the entire cost to Landlord
in removing the lien will immediately be due and payable by Tenant to
Landlord. If Tenant contests the lien, it will do so at its expense and
will indemnify Landlord against any claim, loss, demand and reasonable
legal expense relating to any labor or material furnished to the Premises
at the request or direction of Tenant. If Tenant elects to contest the
lien, it must promptly notify Landlord and Landlord may elect by written
notice to Tenant to require Tenant to either (a) post a bond or a letter
of credit for the benefit of Landlord, the form and issuer of which bond
or letter of credit will be subject to the reasonable approval of Landlord
and the amount of which bond or letter of credit will equal not less than
110% of the amount of the lien, or (b) provide Landlord with such other
reasonable assurances or security as may be required by Landlord, in its
sole discretion, to protect Landlord against the loss of any interest in
the Project. If required under any mortgage on the Land, or in connection
with any prospective mortgage or sale of the Land, Tenant will at
Landlord's request either remove the lien or make arrangements reasonably
satisfactory to the mortgagee or prospective mortgagee or purchaser to
insure the removal of the lien. If the lien is reduced to final judgment,
Tenant will discharge the judgment.
K. Tenant's Insurance. Maintain at Tenant's expense at all times during
the Term (i) a policy or policies of public liability insurance with
respect to the Premises and the business of Tenant, with limits of not
less than $5,000,000 combined single limit; and (ii) a policy or policies
of all risk insurance insuring Tenant's leasehold improvements, trade
fixtures and other personal property for the full insurable value thereof.
All such insurance policies shall be placed with companies authorized to
do business in the State of Minnesota, provide for at least 30 days' (10
days' for premium non-payment) prior written notice to Landlord before
cancellation or amendment, name Landlord as an Additional Insured thereon
and provide for a waiver of subrogation in favor of Landlord. Evidence of
such policies of insurance may be in the form of an ISO ▇▇▇▇▇ form
Certificate of Insurance, or its equivalent, filed with Landlord prior to
Tenant's occupancy of the Premises and at all times thereafter during the
Term. Tenant's insurance shall be issued by insurance companies authorized
to do business in the State of Minnesota, with a general policyholder
rating of at least A- and a financial rating of at least VIII as noted in
the most current Best's Insurance Guide and Key Ratings (or an equivalent
rating by another widely recognized insurance rating agency of similar
standing).
Tenant's obligations under this Section 8 to do or not to do a specified
act shall extend to and include Tenant's obligation for all conduct of
Tenant's employees, agents and invitees.
9. TENANT'S ALTERATIONS: Tenant may, without Landlord's consent, make
improvements, additions, installations, decorations and changes to the Premises
which do not adversely affect structural components or the HVAC system in a
material manner, the cost of any one of which shall not exceed $10,000.00 and
all of which in any twelve-month period shall not exceed $100,000.00 ("Permitted
Alterations"). Tenant may make any other alterations to the Premises, including
internal stairwells between the floors occupied by Tenant, with Landlord's prior
written consent, which will be deemed granted unless Landlord objects to that
alteration within 10 days after Tenant delivers Tenant's request for Landlord's
consent. Tenant agrees to retain an engineer reasonably approved by Landlord to
review any Premises stairwell designs. All improvements, additions,
installations, decorations, and changes will become Landlord's property on
completion and Tenant will not be required to, but Tenant may, remove any
improvements, additions, installations, decorations, or changes prior to, or
upon, the expiration or earlier termination of this Lease.
10. CASUALTY LOSS: If the Premises or the Building are totally destroyed
by fire or any other casualty, this Lease shall automatically terminate as of
the date of such destruction. If the Building, the Common Areas or the Premises
are damaged to the extent that the same are untenantable, as mutually agreed to
by Landlord and by Tenant, and cannot, in the opinion of a licensed architect
selected by Landlord, be repaired within 270 days after that casualty, either
Landlord or Tenant may terminate this Lease as of the date of that casualty by
notice to the other within 30 days after that casualty. If the Building, Common
Areas or Premises are damaged by a casualty and this Lease is not terminated as
aforesaid, the damage shall be promptly repaired by, and at the sole cost of,
Landlord. If Landlord shall be obligated to repair, but repair is not be
completed within 300 days after the casualty, subject to Force Majeure, Tenant
will again have the right to terminate this Lease if Landlord fails to complete
those repairs within 30 days after notice from Tenant given after that 300-day
period. Until those repairs and restorations are completed, all Rent shall be
abated in proportion to the portion of the Premises or the Common Areas which
are untenantable or inaccessible by Tenant in the conduct of its business by
virtue of the casualty. If any such damage causes any portion of the Premises or
the Common Areas to become unusable or inaccessible by Tenant in the conduct of
its business during the last six months of this Lease, either Landlord or Tenant
may, on 30 days' written notice to the other, terminate this Lease.
11. CONDEMNATION: If the entire Premises or the Project are taken under
power of eminent domain (which shall include the exercise of any similar
governmental power or any purchase or other acquisition in lieu thereof), this
Lease shall automatically terminate as of the date of taking, which shall be the
date Tenant is required to yield possession thereof to the condemning authority.
If a substantial portion of the Land, the Building, the Premises or the Common
Areas is taken under power by eminent domain, Landlord or Tenant may terminate
this Lease as of the date of taking by giving written notice thereof to the
other within 30 days after the date of that taking. If neither party elects to
terminate this Lease, Landlord shall, at its expense, restore or cause to be
restored the Project, exclusive of any improvements or other changes made
therein by Tenant other than the Initial Alterations, to as near the condition
which existed immediately prior to the date of taking as reasonably possible,
and to the extent that the Premises are rendered untenantable, the Rent shall
proportionately ▇▇▇▇▇. All damages awarded for a taking under the power of
eminent domain shall belong to and be the exclusive
property of Landlord, whether such damages be awarded as compensation for
diminution in value of the leasehold estate hereby created or to the fee of the
Premises; provided, however, that nothing shall restrict or limit Tenant from
asserting a separate claim, which will not diminish Landlord's award, for
damages resulting from the taking, including those related to any unamortized
leasehold improvements paid for by Tenant, the interruption of Tenant's
business, Tenant's moving expenses or Tenant's trade fixtures and equipment
12. DELAY IN POSSESSION: If the Premises shall on the scheduled date of
commencement of the Term not be ready for occupancy by the Tenant due to the
possession or occupancy thereof by any person not lawfully entitled thereto, or
because construction has not yet been completed, or by reason of any building
operations, repair or remodeling to be done by Landlord, Landlord shall use due
diligence to complete such construction, building operations, repair or
remodeling and to deliver possession of the Premises to Tenant. Landlord, using
such due diligence, except as expressly provided for in this Section, shall not
in any way be liable for failure to obtain possession of the Premises for Tenant
or to timely complete such construction, building operations, repair or
remodeling, but the Base Rent and Additional Rent (as defined in Section 31
below) payable by Tenant hereunder shall ▇▇▇▇▇ until the Premises shall, on
Landlord's part, be ready for the occupancy of Tenant, this Lease remaining in
all other respects in full force and effect and the Term not thereby extended.
13. LIABILITY AND INDEMNITY: Except for Landlord's negligence, Landlord
shall not be responsible or liable to Tenant for any loss or damage (i) that may
be occasioned by or through the acts or omissions of persons occupying any part
of the Building or any persons transacting any business in or about the Building
or persons present in or about the Building for any other purpose or (ii) for
any loss or damage resulting to Tenant or its property from burst, stopping or
leaking water, sewer, sprinkler or steam pipes or plumbing fixtures or from any
failure of or defect in any electric line, circuit or facility. Tenant shall
defend, indemnify and save Landlord harmless from and against all liabilities,
damages, claims, costs, charges, judgments and expenses, including, but not
limited to, reasonable attorneys' fees, which may be imposed upon or incurred or
paid by or asserted against Landlord, the Premises or any interest therein or in
the Building by reason of or in connection with any Tenant use, non-use,
possession or operation of the Premises, or any part thereof, any negligence or
TORTUOUS act on the part of Tenant or any of its agents, contractors, servants,
employees, licensees or invitees, any accident, injury, death or damage to any
person or property occurring in, on or about the Premises or any part thereof,
and any failure on the part of Tenant to perform any of the terms or conditions
of this Lease provided, however, that nothing contained in this section shall be
deemed to require Tenant to indemnify Landlord with respect to any negligence or
tortuous act committed by Landlord or to any extent prohibited by law. Landlord
hereby agrees to indemnify and hold Tenant, its contractors, agents, employees,
officers, partners and shareholders harmless from and against any and all costs,
damages, claims, liabilities and expenses (including reasonable attorneys' fees)
suffered by or claimed against Tenant, resulting from any negligence or tortuous
act of Landlord's, or its employees or contractors, in the Project, or any
failure of Landlord to comply with the terms of this Lease.
14. DEFAULT
14.1 TENANT DEFAULT: For purposes hereof, Tenant Default means: (i)
Tenant fails to pay the Rent within five days after Tenant receives notice from
Landlord that the Rent was not received when due; (ii) Tenant fails to perform
any of its other obligations under this Lease within 30 days after receiving
notice from Landlord specifying the nature and extent of the Tenant Default;
provided, however, if the obligation shall not be reasonably curable
within such 30 day period, the time for cure shall be extended so long as Tenant
shall continue to use reasonable efforts to effect a cure; or (iii) a petition
in bankruptcy shall be filed by or against Tenant and if filed against Tenant is
not discharged within 90 days after filing. In the event of a Tenant Default,
Landlord, in addition to all other rights and remedies available to Landlord, by
law or by other provisions hereof, may, with or without process of law, re-enter
immediately into the Premises and remove all persons and property therefrom,
and, at Landlord's option, annul and cancel this Lease as to all future rights
of Tenant, and Tenant hereby expressly waives the service of any notice in
writing of intention to re-enter as aforesaid. Tenant further agrees that in
case of any such termination or re-entry the obligations of Landlord hereunder
shall cease but the obligation of Tenant to pay Rent will continue for the then
unexpired portion of the Term, and that Tenant will indemnify Landlord against
all loss of Rents and other damage which Landlord incurs by reason of such
termination or re-entry, including, but not limited to, reasonable costs of
restoring and repairing the Premises and putting the same into rentable
condition, reasonable costs, but not in excess of Tenant's remaining Base Rent
obligations under the Lease as of the date of such termination, of renting the
Premises to another tenant, actual loss or diminution of rents and other damage
which Landlord incurs by reason of such termination or re-entry, and all
reasonable attorneys' fees and expenses incurred in enforcing any of the terms
of this Lease. Neither acceptance of Rent by Landlord, with or without knowledge
of breach, nor failure of Landlord to take action on account of any breach
hereof or to enforce its rights hereunder shall be deemed a waiver of any
breach, and absent written notice or consent, said breach shall be a continuing
one.
14.2 LANDLORD DEFAULT: For purposes hereof, "Landlord Default" means
Landlord's failure to perform any of its obligations under this Lease within 30
days after receiving notice from Tenant specifying the nature and extent of such
failure; provided, however, if the obligation is not reasonably curable within
such 30 day period, the time for cure will be extended so long as Landlord
continues to use reasonable efforts to effect a cure.
14.2.1 UNDISPUTED LANDLORD DEFAULT: If a Landlord Default has
occurred and Landlord does not dispute the default under Section 14.2.2, then,
in addition to all rights, powers or remedies permitted by law or in equity,
Tenant may cure such Landlord Default and charge the cost thereof to Landlord,
or ▇▇▇ for specific performance or ▇▇▇ for damages. Landlord will be liable for
and will pay to Tenant within 30 days after receiving Tenant's invoice, all
reasonable attorneys' fees and other costs incurred by Tenant as a result of a
Landlord Default. If Landlord fails to pay within such 30 day period the amount
due, Tenant will have the right to offset such amounts against the installments
of Rent next coming due hereunder.
14.2.2 DISPUTED LANDLORD DEFAULT: If Landlord disputes that a
Landlord Default exists, Landlord must notify Tenant in writing within five
business days after Landlord receives Tenant's default notice under Section 14.2
or Landlord's right to dispute the default will be waived and Tenant will have
the rights set forth in Section 14.2.1. If Landlord disputes a Landlord Default
under this Section 14.2.2, the dispute in question will be submitted to
arbitration in accordance with Section 37. Pending resolution of the dispute,
Tenant may cure the default and, instead of offsetting the cost of that cure,
including reasonable attorneys' fees and other costs incurred by Tenant as a
result of the default, against the installments of Rent next coming due
hereunder, Tenant shall deposit that amount in an escrow account with an escrow
agent mutually acceptable to both Landlord and Tenant. If Landlord and Tenant
are unable to agree upon a mutually acceptable escrow agent, the arbitrator or
arbitrators resolving the dispute will select the escrow agent. Upon the
arbitrator or arbitrators' resolution of the
dispute, the escrowed amount will be paid to either Landlord or Tenant in
accordance with the ruling of the arbitrator or arbitrators.
15. NOTICES: All bills, statements, notices or communications which
Landlord may desire or be required to give to Tenant shall be deemed
sufficiently given or rendered if in writing and sent by registered or certified
mail, return receipt requested, addressed to Tenant at the Building with a copy
to: Fair ▇▇▇▇▇ and Company, Incorporated.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
and the time of rendition thereof of the giving of such notice or communication
shall be deemed to be the time when the same is personally delivered to Tenant
or deposited in the mail as herein provided. Any notice or the return of any
access cards, keys or otherwise to be given from Tenant to Landlord must be
similarly delivered to Landlord's managing agent personally or sent by
registered or certified mail, return receipt requested, addressed to Landlord at
the address where the last previous rental hereunder was payable, or in ease of
subsequent change upon notice given, to the latest address furnished.
16. HOLDING OVER: If Tenant continues to occupy the Premises after
expiration or earlier termination of the Lease for any reason, Tenant's hold
over tenancy will be from month to month and in no event from year to year or
for any longer term. Tenant's hold over tenancy will be subject to all of the
terms and conditions of this Lease except that Base Rent will equal one hundred
twenty-five percent (125%) of the Base Rent payable at the time of such
expiration or earlier termination. Tenant shall also pay its Proportionate Share
of Operating Costs during that holding over tenancy. Nothing in this Section 16,
however, will prevent Landlord from removing Tenant from the Premises pursuant
to applicable law and, except to the extent limited by this Lease, seeking all
remedies available to Landlord in law or equity.
17. SUBORDINATION: Landlord represents and warrants to Tenant that there
is no mortgage, deed of trust or ground lease on the Project that has not been
brought to Tenant's attention by Landlord in writing. Tenant agrees to
subordinate this Lease to a future fee or leasehold mortgage affecting the
Project if the holder of such mortgage executes an agreement substantially in
the form of attached Exhibit F (an "SNDA"). Concurrent with the execution of
this Lease, Landlord has delivered to Tenant SNDAs from all parties having an
interest in the Premises which may be superior to Tenant's rights in the
Premises under this Lease.
18. ESTOPPEL CERTIFICATE: Either party (the "Executing Party") shall, at
any time and from time to time, within 10 business days after written request by
the other party (the "Requesting Party"), execute, acknowledge and deliver to
the Requesting Party and any other parties designated by the Requesting Party, a
certificate, in such reasonable form as the Requesting Party provides, ratifying
this Lease and certifying (a) that this Lease is in full force and effect and
has not been assigned, modified or amended in any way (or, if there has been any
assignment, modification or amendment, identifying the same); (b) the
Commencement Date and the Expiration Date, and the date to which the Base Rent
and Additional Rent have been paid in advance, if any; and (c) that there are,
to the Executing Party's knowledge, no uncured defaults on the part of the
Requesting Party or any defenses or offsets against the enforcement of this
Lease by the Requesting Party (or specifying each default, defense or offset if
any are claimed). Any such statement may be furnished to and relied upon by the
Requesting Party and any party identified by the Requesting Party.
19. BINDING EFFECT: The word "Tenant", wherever used in this Lease, shall
be construed to mean tenants in all cases where there is more than one tenant,
and the necessary grammatical changes required to make the provisions hereof
apply to corporations, partnerships or individuals, men or women, shall in all
cases be assumed as though in each case fully expressed. Each provision hereof
shall extend to and shall, as the case may require, bind and inure to the
benefit of Landlord and Tenant and their respective heirs, legal
representatives, successors and assigns, provided that his Lease shall not inure
to the benefit of any assignee, heir, legal representative, transferee or
successor of Tenant except upon the express written consent or election of
Landlord.
20. TRANSFER OF LANDLORD'S INTEREST: In the event of any transfer or
transfers of Landlord's interest in the Premises or the Building, other than a
transfer for security purposes only, the transferor shall not be relieved of any
and all obligations and liabilities on the part of Landlord accruing from and
after the date of such transfer.
21. INTEREST: Any Rent which is not paid when due, shall bear interest per
annum at the lesser of (i) the highest legal rate or (ii) two percent (2%) plus
the Reference Rate as published by U. S. Bank National Association from time to
time, from the date due until the date on which the past due amount is paid;
provided, however, the payment of such interest shall not excuse or cure the
default upon which such interest accrued.
22. EXPENSE OF ENFORCEMENT: If either party hereto be made or become a
party to any litigation commenced by or against the other party involving the
enforcement of any of the rights and remedies of such party, or arising on
account of the default of the other party in the performance of such party's
obligations hereunder, then the prevailing party in any such litigation (or the
party becoming involved in such litigation because of a claim against such other
party, as the case may be) shall receive from the other party all costs and
reasonable attorney's fees incurred by it in relation to such litigation.
23 ACCESS; CHANGES IN BUILDING FACILITIES; NAME: All portions of the
Building except the inside surfaces of all walls and doors bounding the
Premises, and any space in or adjacent to the Premises used for shafts, stacks,
pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities, and the use thereof, as well as access thereto through the
Premises for the purposes of operation, maintenance, decoration and repair, are
reserved to Landlord and Landlord's managing agent. Landlord reserves the right,
at any time, without incurring any liability to Tenant therefor, to make such
changes in or to the Building and the fixtures and equipment thereof, as well as
in or to the street entrances, halls, passages, concourse, elevators,
escalators, stairways and other improvements thereof, as it may deem necessary
or desirable. Landlord may adopt any name for the Building and Landlord reserves
the right to change the name and/or address of the Building at any time.
24. RIGHT OF LANDLORD TO PERFORM: If Tenant shall fail to pay any sum of
money, other than rent, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder, Landlord may, but
shall not be obligated, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such other act on
Tenant's part to be made or performed hereunder. Tenant shall, promptly and upon
demand therefore by Landlord, reimburse Landlord for all sums so paid by
Landlord and all necessary incidental costs, together with interest thereon at
the rate specified in Section 21 hereof from the date of such payment by
Landlord, and Landlord shall have the same rights and remedies in the event of
the failure by tenant to pay such amounts as Landlord would have in the event of
a default by Tenant in the payment of rent.
25. BROKERS: Unless otherwise agreed in writing, if Tenant has dealt with
any person or real estate broker in respect to leasing or renting space in the
Building, excepting the exclusive leasing agent for the Building and ▇▇▇▇▇▇▇
Companies, Tenant shall be solely responsible for the payment of any fee due
said person or firm and Tenant shall hold Landlord free and harmless from and
against any liability in respect thereto.
26. MODIFICATIONS FOR LENDER: If, in connection with obtaining financing
for the Building or the Premises, any lender shall request modifications in this
Lease as a condition to such financing, Tenant shall promptly execute any
instrument submitted to Tenant by Landlord containing such modifications;
provided, however, that such modifications do not increase the obligations of
Tenant hereunder or materially adversely affect the leasehold interest hereby
created.
27. SECURITY DEPOSIT: Intentionally Deleted
28. LIMITATION OF LIABILITY: In the event that Landlord is ever adjudged
by any court to be liable to Tenant in damages, Tenant specifically agrees to
look solely to Landlord's interest in the Building for the recovery of any
judgment from Landlord, it being agreed that Landlord, or if Landlord is a
partnership, its partners whether general or limited, or if Landlord is a
corporation, its directors, officers, or shareholders, shall never be personally
liable for any such judgment. The provision contained in the foregoing sentence
is not intended to, and shall not, limit any right that tenant might otherwise
have to obtain injunctive relief against Landlord or Landlord's successor in
interest, or to maintain any other action not involving the personal liability
of Landlord (or if Landlord is a partnership, its partners whether general or
limited, or if Landlord is a corporation, requiring it directors, officers or
shareholders to respond in monetary damages from assets other then Landlord's
interest in the Building), or to maintain any suit or action in connection with
enforcement or collection of amounts which may become owing or payable under or
on account of insurance maintained by Landlord.
29. ENVIRONMENTAL: Landlord has initialed and provided to Tenant a copy of
Landlord's most recent Phase I environmental assessment report for the Project
("Environmental Report"). Except as disclosed in the Environmental Report,
Landlord has no knowledge of any Hazardous Substance, as defined below, or
violations of Environmental Laws, as defined below, within the Project, and
represents and warrants that, to the best of its knowledge, the Premises are in
compliance with Environmental Laws. Landlord shall indemnify, defend, and hold
harmless Tenant, its officers, directors, beneficiaries, shareholders, partners,
agents, and employees from all fines, suits, procedures, claims, and actions of
every kind, and all reasonable costs associated therewith (including reasonable
attorneys' and reasonable consultants' fees) arising out of or in any way
connected with Landlord's breach of the representations and warranties set forth
in this Section 29. Except to the extent of Tenant's responsibility under this
Section 29, Landlord shall clean up and mitigate the effect of any Hazardous
Substance or violations of Environmental Laws which shall have entered the
Project or occurred after the Commencement Date and indemnify Tenant from all
liability resulting therefrom. Tenant shall not cause or permit to occur, and
shall indemnify, defend and hold harmless Landlord from all fines, suits,
procedures, claims and actions of every kind, and all reasonable costs
associated therewith (including reasonable attorneys' fees and reasonable
consultants' fees) arising out of or in anyway connected with: (a) any material
violation of any Environmental Law on, under, or about the Premises, and arising
from Tenant's use or occupancy of the Premises, including, but not limited to,
soil and ground water conditions; or (b) the use, generation, release,
manufacture, refining, production, processing, storage, or disposal
of any Hazardous Substance on, under, or about the Premises, or the
transportation to or from the Premises of any Hazardous Substance by Tenant or
its employees, agents or contractors; provided, however, that the foregoing does
not prohibit Tenant from using and storing normal products used in the operation
of a business office so long as those products are used and stored in compliance
with applicable laws. "Hazardous Substance", as used in this Lease, includes,
without limitation, flammables, explosives, radioactive materials, asbestos,
polychlorinated biphenyls (PCBs), chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic
substances or related materials, petroleum and petroleum products, and
substances including, without limitation, freon or other chlorofluorocarbons
declared to be hazardous or toxic or regulated or banned under any law or
regulation now or hereafter enacted or promulgated by any government authority.
Tenant shall, at Tenant's own expense, comply in all material respects with all
federal, state and local laws regulating the use, generation, storage,
transportation, or disposal of Hazardous Substances ("Environmental Laws"). To
the extent required by the Authorities, Tenant shall, at Tenant's own expense,
make all submissions to, provide all information required by, and comply in all
material respects with all requirements of all governmental authorities (the
"Authorities") under the Environmental Laws. If any Authority or any third party
demand that an investigation be performed, or a cleanup plan be prepared by
Tenant and that a cleanup be undertaken, because of any Tenant deposit, spill,
discharge, or other release of Hazardous Substances that occurs during the Term,
at or from the Premises, or which arises at any time from Tenant's use or
occupancy of the Premises, then Tenant shall, at Tenant's own expense, perform
the investigation and prepare and submit the required plans and all related
bonds and other financial assurances, and Tenant shall carry out all such
cleanup plans. Tenant shall promptly provide all information regarding the use,
generation, storage, transportation, or disposal of Hazardous Substances that is
reasonably requested by Landlord. If Tenant fails to fulfill any duty imposed
under this section within a reasonable time, Landlord may do so, and in such
case, Tenant shall cooperate with Landlord in order to prepare all documents
Landlord reasonably deems necessary or appropriate to determine the
applicability of the Environmental Laws to the Premises and Tenant's use
thereof, and for compliance therewith, and Tenant shall execute all reasonable
documents promptly upon Landlord's request. No such action by Landlord and no
attempt made by Landlord to mitigate damages under any Law shall constitute a
waiver of any of Tenant's obligations under this section. Tenant will, at and to
the extent required by Environmental Laws and upon written request of Landlord,
remove from the Premises at the end of the Term, at Tenant's expense and in
accordance with any applicable laws or regulations, equipment (including
refrigeration equipment and enhancements to the Building's standard HVAC systems
installed by Tenant) that contains, uses or generates freon or any other
chlorofluorocarbons. Tenant's obligations and liabilities under this section
shall survive the expiration of this Lease. Tenant shall indemnify, defend, and
hold harmless Landlord, the manager of the property, and their respective
officers, directors, beneficiaries shareholders, partners, agents, and employees
from all fines, suits, procedures, claims, and actions of every kind, and all
reasonable costs associated therewith (including reasonable attorneys' and
reasonable consultants' fees) arising out of or in any way connected with any
Tenant deposit, spill, discharge, or other release of Hazardous Substances that
occurs during the term of this Lease, at or from the Premises, and which arises
at any time from Tenant's use or occupancy of the Premises, or from Tenant's
failure to provide all information, make all submissions, and take all steps
required by all Authorities under the Environmental Laws. Tenant's obligations
and liabilities under this section shall survive the expiration of this Lease.
30. WAIVER OF SUBROGATION: Each of Landlord and Tenant hereby releases the
other from any and all liability or responsibility to the other or anyone
claiming through or under them by way of subrogation or otherwise for any loss
or damage to property caused by
fire or any of the extended coverage casualties, even if such fire or other
casualty shall have been caused by the fault or negligence of the other party,
or anyone for whom such party may be responsible.
31. ADDITIONAL RENT AMOUNTS: Any amounts in addition to Base Rent payable
to Landlord by Tenant hereunder, including without limitation amounts payable
pursuant to Sections 5, 6, 7A, 7D, 7F, 8C, 8D, 8F, 8j, 12,13, 20, 21, 24, 27 and
Exhibit C, and any such costs set forth in Exhibit E, hereof (the "Additional
Rent") shall be an obligation of Tenant hereunder and all such Additional Rent
shall be due and payable upon demand.
32 REQUIREMENTS OF LAW
32.1 LANDLORD'S OBLIGATIONS: Except to the extent affected by
Tenant's particular use of the Premises (as opposed to mere use of the Premises
for general office purposes), Landlord shall be responsible for compliance with
all federal, state, local and municipal laws, statutes, rules, regulations,
orders, ordinances and codes, including, without limitation, the Americans with
Disabilities Act and the Minnesota Accessibility Code (collectively, the "Legal
Requirements"), which are applicable to all or any part of the physical
condition and occupancy of the Building, the Common Areas or the Land or the
physical condition or occupancy thereof. To Landlord's knowledge the Building,
the Common Areas, the Premises and the Land are or shall be in material
compliance with the Legal Requirements as of the Commencement Date. Landlord
hereby agrees to indemnify, defend and hold Tenant harmless from any and all
loss, cost, liability or expense, including, without limitation, reasonable
attorneys' fees, resulting from Landlord's failure to comply with all Legal
Requirements relating to the Premises, the Building, the Land and the Common
Areas. Without limiting the generality of the foregoing, Landlord shall make, at
its sole cost, any renovations, alterations or improvements to the Premises'
restrooms required to be made by the Legal Requirements, including the Americans
with Disabilities Act and the Minnesota Accessibility Code; provided, however,
that Landlord's obligation to renovate, alter or improve the Premises' restrooms
may be satisfied by the construction of a "unisex" bathroom if permitted by the
Americans with Disabilities Act and the Minnesota Accessibility Code. The costs
incurred in making such restroom renovations, alterations and improvements will
not be Operating Costs.
32.2 TENANT'S OBLIGATIONS: Tenant shall be responsible for
compliance with all Legal Requirements which are applicable to Tenant's
particular use and manner of use of the Premises (as opposed to mere use of the
Premises for general office purposes) excluding, however, restrooms which are
Landlord's responsibility. If Tenant's particular use or manner of use of the
Premises violates any Legal Requirements, Tenant shall bear all expense and
liability for compliance with such Legal Requirements. Tenant hereby agrees to
indemnify, defend and hold Landlord harmless from any and all loss, liability or
expense, including, without limitation, reasonable attorneys' fees, resulting
from Tenant's failure to comply with the Legal Requirements relating to its
particular use and manner of use of the Premises.
33. INCORPORATION OF EXHIBITS: The following exhibits to this Lease are
hereby incorporated by reference for all purposes as fully as if set forth at
length herein:
EXHIBIT A Floor Plans of Premises
EXHIBIT B Property Description
EXHIBIT C Additional Terms and Conditions
EXHIBIT D Estoppel Certificate
EXHIBIT E HVAC Criteria and Overtime HVAC Charges
EXHIBIT F Subordination, Non-Disturbance & Attornment Agreement
EXHIBIT G Janitorial Services
EXHIBIT H Rules & Regulations
34. FORCE MAJEURE: All of the obligations of Landlord and of Tenant under
this Lease are subject to and shall be postponed for a period equal to any delay
or suspension resulting from fires, strikes, acts of God, and other causes
beyond the control of the party delayed in its performance hereunder, this Lease
remaining in all other respects in full force and effect and the Term not
thereby extended. Provided nevertheless, the unavailability of funds for payment
or performance of Tenant's obligations hereunder shall not give rise to any
postponement or delay in such payment or performance of Tenant's obligations
hereunder.
35. GENERAL: The submission of this Lease for examination does not
constitute the reservation of or an option for the Premises, and this Lease
becomes effective only upon execution and delivery hereof by Landlord and
Tenant. This Lease does not create the relationship of principal and agent or of
partnership, joint venture or any association between Landlord and Tenant, the
sole relationship between Landlord and Tenant being that of lessor and lessee.
No waiver of any default of Tenant hereunder shall be implied from any omission
by Landlord to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. Each term and each provision of this Lease
performable by Tenant shall be construed to be both a covenant and a condition.
The topical headings of the several paragraphs and clauses are for convenience
only and do not define, limit or construe the contents of such paragraphs or
clauses. All preliminary negotiations are merged into and incorporated in this
Lease. This Lease can only be modified or amended by an Agreement in writing
signed by the parties hereto, their successors or assigns. All provisions hereof
shall be binding upon the heirs, successors and assigns of each party hereto.
36. SEVERABILITY: The invalidity of any provision, clause or phrase herein
contained shall not serve to render the balance of this Lease ineffective or
void and the same shall be construed as if such had not been herein set forth.
37. ARBITRATION.
37.1 REQUEST AND SELECTION OF ARBITRATORS: The parties to this Lease
will initially attempt to agree upon the matter in question. If they have been
unable to so agree within the period that they are required to, or may, agree as
to such matter under this Lease, if any, then either party may request by
written notice to the other party ("Arbitration Request") that the matter be
determined by an arbitration board consisting of three reputable real estate
professionals who are recognized experts regarding similar leases in the
Minneapolis downtown office district. One arbitrator will be appointed by each
party, and the two arbitrators so appointed shall appoint the third arbitrator,
and each such arbitrator will have no material financial or other business
interest in common with the party selecting such arbitrator. If a party fails to
appoint an arbitrator and notify the other party of such appointment within 30
days after the Arbitration Request is made, then the arbitrator that was
appointed by such other party within such 30 day period will be the sole
arbitrator. If two arbitrators are properly appointed and such first two
arbitrators are unable to agree on a third arbitrator within 30 days after the
appointment of the second arbitrator, then such third arbitrator will be
appointed by the presiding judge of the Hennepin County District Court, or by
any person to
whom such presiding judge formally delegates the matter, or, if such methods of
appointment fail, by the American Arbitration Association.
37.2 DETERMINATION OF FAIR MARKET RENT: If the matter in question is
the determination of Fair Market Rent, the parties will submit a copy of this
Lease to the sole arbitrator or the three arbitrators, as the case may be. If
the arbitration is conducted by a sole arbitrator, such sole arbitrator will
render his or her determination of Fair Market Rent applicable during the period
in question to the parties by the 60th day after the Arbitration Request was
made. If the arbitration is conducted by three arbitrators, each arbitrator will
submit his or her determination(s) of Fair Market Rent applicable during the
period in question in a sealed envelope by the 30th day following appointment of
the last arbitrator, and any determinations not submitted by such time shall be
disregarded. In such cases, the parties will meet on such 30th day (or if it is
not a business day, on the first business day thereafter) at 11:00 a.m. at the
office of Landlord, or such other place as the parties may agree, and
simultaneously deliver the determinations. If the determinations of at least two
of the arbitrators are identical in amount, such amount will be deemed the
decision of the arbitrators. If the determination of the three arbitrators are
different in amount, the decision as to Fair Market Rent will be independently
determined as follows:
(a) If neither the highest nor lowest determination differs
from the middle determination by more than ten percent (10%) of such
middle determination, then the decision will be deemed to be the
average of the three determinations; and
(b) If clause (a) does not apply, then the decision will be
deemed to be the average of the middle determination and the
determination closest in amount to such middle determination.
37.3 FACTORS INFLUENCING FAIR MARKET RENT: "Fair Market Rent" will
be determined based upon the annual rental rates then being charged in the
Minneapolis downtown office district for comparable space for leases commencing
on or about the date of the commencement of the Extension Term taking into
consideration use, location and floor level of the Building, the location,
quality and age of the Building, leasehold improvements or allowances provided,
rental concessions (such as abatements, lease assumptions or takeovers and
moving expenses), the date that the particular rate under consideration became
or becomes effective, the term of the Lease, the extent of services provided
thereunder, applicable distinctions between "gross" leases and "net" leases,
base year figures and base years for escalation purposes, the creditworthiness
and quality of Tenant, leasing commissions and costs of the Lease and other
adjustments to the Base Rent and any other relevant term or condition in making
such evaluation, including the benefit to Landlord of having the Premises
immediately producing rent at the commencement of the Extension Term.
37.4 OTHER MATTERS: If the matter in question is a matter other than
the determination of Fair Market Rent, then the decision of the sole arbitrator
or the decision of any two of the three arbitrators will control, and such
decision will be made and delivered to Landlord and Tenant by such arbitrator or
arbitrators not later than the date 60 days after the Arbitration Request was
made (in the case of an arbitration conducted by a sole arbitrator) or the 30th
day following the appointment of the last arbitrator (in the case of an
arbitration conducted by three arbitrators). An arbitration of any matter other
than Fair Market Rent will be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. Each party will pay
the fees and expenses of the arbitrator it selected, and the
parties will each pay one-half (1/2) of the fees and expenses of the third
arbitrator, if any, selected by the other two arbitrators or appointed by the
court. The costs of all counsel, experts and other representatives that are
retained by a party will be paid by such party.
37.5 DECISIONS: The decision of the arbitrators, determined as above
set forth, will be final and non-appealable.
37.6 CONTINUING PERFORMANCE: During the period of time that any
arbitration is pending under this Lease, the parties to this Lease will continue
to comply with all those terms and provisions that are not the subject of the
arbitration.
38. CERTAIN PROVISIONS REGARDING THE SUBLEASE PREMISES.
Landlord and Tenant acknowledge that with respect to the Sublease
Premises, the term of this Lease runs concurrently with the terms of the Prime
Lease and the Sublease for the period commencing as of the date of this Lease
and ending August 31, 2011 or the earlier termination of the Prime Lease or the
Sublease (the "Interim Period"), and that Tenant is entitled to possession of
the Sublease Premises under both this Lease and the Sublease. With respect to
the Sublease Premises only, (a) this Lease shall be subject and subordinate to
the Prime Lease in effect on the date of this Lease, and (b) to the extent of
any conflict between the Prime Lease during the term hereof and this Lease, the
terms of the Prime Lease shall govern as between Landlord and Tenant. Any and
all new obligations imposed upon and any representations and warranties made by
either Landlord or Tenant pursuant to this Lease, to the extent the same does
not conflict with the terms of the Prime Lease, shall be effective, binding and
enforceable upon Landlord or Tenant, as appropriate, from and after the date of
this Lease. After the expiration of the Interim Period, the terms and conditions
of this Lease solely shall govern Tenant's possession of the Premises,
including, without limitation, the Sublease Premises.
IN WITNESS WHEREOF, the respective parties hereto have caused this Lease
to be executed as of the day and year first above written.
LANDLORD: TENANT:
INTERNATIONAL CENTER LIMITED FAIR ▇▇▇▇▇ AND COMPANY,
PARTNERSHIP INCORPORATED
By International Centre III Limited BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Partnership Its: Chief Financial Officer
By ▇▇▇▇ Properties, Inc.
Its General Partner
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its: EVP
EXHIBIT A
FLOOR PLANS OF PREMISES
EXHIBIT B
PROPERTY DESCRIPTION
Lots 1, 2, 3, 4, 5 and 6, ▇▇▇▇'▇ Subdivision of Part of Block 4, ▇▇▇▇▇ and
Jackin's Addition to Minneapolis, according to the recorded plat thereof, and
situate in Hennepin County, Minnesota.
and
The Southeasterly 1/2 of Lot 9, Block 4, ▇▇▇▇▇ and Jackin's Addition to
Minneapolis, according to the recorded plat thereof, and situate in Hennepin
County, Minnesota.
and
Lots 7 and 8, ▇▇▇▇'▇ Subdivision of Part of Block 4, ▇▇▇▇▇ and Jackin's Addition
to Minneapolis, according to the recorded plat thereof, and situate in Hennepin
County, Minnesota.
EXHIBIT C
ADDITIONAL TERMS & CONDITIONS
1. PARKING:
Tenant may, and thereafter from time to time, with sixty days written
notice , hire from Landlord, at market rates reasonably determined by
Landlord and pursuant to a separate written agreement, the right to park
up to fifteen vehicles in the Building's parking structure, including one
reserved stall.
2. LEASING COMMISSION:
Tenant has been represented in this transaction by ▇▇▇▇▇▇▇ Companies.
Landlord shall pay a fee to ▇▇▇▇▇▇▇ Companies equal to $2.00 per square
foot of rentable area, such fee to be payable upon execution of this
Lease.
3. TENANT IMPROVEMENT ALLOWANCE:
Landlord shall contribute up to $300,000.00 ("Landlord's Contribution")
toward the cost of design, construction and installation of Tenant
Improvements, including telecommunications and data wiring, relocation
costs and furniture, in Tenant's discretion. This amount shall be paid to
Tenant within ten (10) days after submission of lien waivers.
The total amount of the Landlord's contribution shall be amortized at 8%
interest over a term of eleven (11) years four (4) months and shall be
paid to Landlord as Additional Rent.
4. CONDITION OF THE PREMISES:
Tenant hereby accepts the Premises in its "as is" condition.
5. INITIAL ALTERATIONS:
Tenant shall be responsible for the construction of the initial
alterations (the "Initial Alterations") within the Premises in accordance
with the construction documents prepared by Tenant's architect, subject to
Landlord's reasonable approval of such construction documents and the
selection of Tenant's contractor, not to be unreasonably withheld.
Landlord acknowledges that it will not be entitled to receive any fee or
profit in connection with the Initial Alterations. Tenant may obtain all
necessary permits and licenses required in connection with the
construction of the Initial Alterations and shall cause the Initial
Alterations to be completed in accordance with all Legal Requirements
affecting the Premises. Tenant shall pay all costs of the Initial
Alterations. The Commencement Date will not be delayed, nor the Expiration
Date extended, if Tenant fails to complete the Initial Alterations on or
before the Commencement Date.
6. ROOF RIGHTS:
At any time during the Term, at no additional cost, Tenant shall have the
non-exclusive right to install, operate and maintain a satellite-earth
communications antenna on the roof of the Building, subject to Landlord's
reasonable approval of the location and appearance of, and plans and
specifications for such equipment. Landlord shall not permit any other
equipment to be installed on the roof whose operation may
interfere with Tenant's equipment after installation of Tenant's
equipment. The equipment will be connected, at Tenant's cost, to
communications equipment located within the Premises via cable and
Landlord shall without charge assist Tenant in obtaining reasonable access
to install such cables. Landlord will cooperate with Tenant regarding the
installation, maintenance, repair and removal of such equipment by Tenant,
but all costs therefor shall be paid by Tenant.
7. SIGNAGE:
Tenant shall have the right to install suite signage. Tenant shall also
have its name listed in the building directories at the Landlord's cost.
Any changes after the initial installation will be at the Tenant's
expense.
EXHIBIT D
STATEMENT OF TENANT IN RE: LEASE
Teachers Insurance Annuity
Association of America
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ RE: ▇▇▇▇ ▇▇▇▇. # ▇▇-▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ TIAA Mtge.# 000457600
AT&T Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Floors: ____________
Ladies & Gentlemen:
It is our understanding that you have committed to place a mortgage upon
the subject premises and as a condition precedent thereof have required this
certification of the undersigned.
The undersigned, as lessee, under that certain lease dated __________,
2000, made with International Centre Limited Partnership, as lessor, hereby
ratifies said lease and certifies that:
1. the "Commencement Date" of said lease is __________________; and
2. the undersigned is presently solvent and free from reorganization
and/or bankruptcy and is in occupancy, open, and conducting business with the
public in the premises; and
3 the operation and use of the premises do not involve the generation,
treatment, storage, disposal or release of a hazardous substance or a solid
waste into the environment other than to the extent necessary to conduct its
ordinary course of business in the premises and in accordance with all
applicable environmental laws, and that the premises are being operated in
accordance with all applicable environmental laws, zoning ordinances and
building codes; and
4. the current base rent payable pursuant to the terms of said lease is
$_________________per month; and further, additional rent pursuant to said lease
is payable as follows:_______________________________________; and
5. said lease is in full force and effect and has not been assigned,
modified, supplemented or amended in anyway (except by agreement (s) dated
________), and to the knowledge of the undersigned, neither party thereto is in
default thereunder; and
6. the lease described above represents the entire agreement between the
parties as to the leasing of the premises; and
7. the term of said lease expires on ___________________; and
8. all conditions under said lease to be performed by the lessor have been
satisfied, including, without limitation, all co-tenancy requirements
thereunder, if any; and
9. all required contributions by lessor to lessee on account of lessee's
improvements have been received; and
10. on this date to the knowledge of the undersigned, there are no
existing defenses or offsets, claims or counterclaims which the undersigned has
against the enforcement of said lease by the lessor; and
11. no rental has been paid in advance and no security (except for the
security deposit in amount of $0.00) has been deposited with lessor; and
12. lessee's floor area is ___________ rentable square feet; and
13. the most recent payment of current basic rental was for the payment
due on ________________________, and all basic rental and additional rental
payable pursuant to the terms of the lease have been paid up to said date; and
14. the undersigned acknowledges notice that lessor's interest under the
lease and the rent and all other sums due thereunder will be assigned to you as
part of the security for a mortgage loan by you to lessor. In the event that
Teacher's Insurance and Annuity Association of America, as lender, notifies the
undersigned of a default under the mortgage and demands that the undersigned pay
its rent and all other sums due under the lease to lender, lessee agrees that it
shall pay its rent and all such other sums to lender. Landlord, by its signature
below, acknowledges that Tenant has agreed to the foregoing as an accommodation
to the Landlord; that upon notice from Teacher's Insurance and Annuity
Association of America, as lender, Tenant is authorized and directed by Landlord
to pay its rent and all other sums to lender, without the necessity of a
determination or inquiry by Tenant that a default by Landlord has occurred under
any agreements between it and Teacher's Insurance and Annuity Association of
America. Tenant shall have no liability to Landlord in connection with or as a
result of the exercise by Teacher's Insurance and Annuity Association of
America, as lender, of any rights or remedies under its agreements with Landlord
or as recognized in this Statement of Tenant Re: Lease.
Very truly yours,
___________________________
___________________________
By: ______________________
Its: _____________________
International Centre Limited Partnership,
a Minnesota limited partnership
By:___________________________
Its:___________________________
EXHIBIT E
HVAC CRITERIA AND OVERTIME HVAC CHARGES
1. CRITERIA: The HVAC system shall maintain the temperature in the
Premises at not less than 72(degrees) F based upon a "dry-bulb" measurement (and
55(degrees) F based upon a "wet-bulb" measurement) in the winter and not more
than 76(degrees) F based upon a "dry-bulb" measurement (and 60(degrees) F based
upon a "wet-bulb" measurement) in the summer.
2. OVERTIME CHARGES: Landlord will charge Tenant $15 per hour per Premises
floor, or portion thereof, which amount is approximately $.30 per hour per ton,
for those periods in which any heating, ventilating or air conditioning shall be
operated at the request of Tenant after Business Hours. Effective as of the
first anniversary of the Term, Landlord may increase the amount set forth for
Overtime HVAC cost on not less than thirty (30) days' written notice to Tenant.
Any such increase shall be based upon Landlord's actual cost (without profit) of
operating the HVAC systems including electrical costs, employee costs and a
reasonable amount for maintenance and depreciation. Landlord shall, prior to
implementing any change in Overtime HVAC Cost, advise Tenant of Landlord's
analysis of the reasons for such increase which analysis shall be subject to
confirmation by Tenant.
To be modified to cover both the lease and sublease agreement
EXHIBIT F
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made by and between TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA, a New York corporation with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Lender") and _______________________________with its principal
place of business at _______________________________________________("Tenant").
RECITALS:
A. Lender has made or is about to make a loan (together with all advances
and increases, the "Loan") to INTERNATIONAL CENTRE LIMITED PARTNERSHIP, A
MINNESOTA CORPORATION ("Borrower").
B. Borrower or its predecessor in interest, International Centre III
Limited Partnership, as landlord, and Tenant have entered into a lease dated
_______________, (the "Lease"), which leased to Tenant Suite No. _____________
(the "Leased Space") located in the Property (defined below).
C. The Loan is or will be secured by the Mortgage, Assignment of Lease and
Rents, Fixture Filing Statement and Security Agreement recorded or to be
recorded in the official records of the County of Hennepin, State of Minnesota
(together with all advances, increases, amendments or consolidations, the
"Mortgage") and the Assignment of Leases and Rents recorded or to be recorded in
such official records (together with all amendments or consolidations, the
"Assignment"), assigning to Lender the Lease and all rent, additional rent and
other sums payable by Tenant under the Lease (the "Rent").
D. The Mortgage encumbers the real property, improvements, and fixtures
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in the City of MINNEAPOLIS, County of HENNEPIN,
State of MINNESOTA, commonly known as AT&T TOWER, and described on Exhibit "A"
(the "Property").
IN CONSIDERATION of the mutual agreements contained in this Agreement,
Lender and Tenant agree as follows:
1. The Lease and all of Tenant's rights under the Lease are and will
remain subject and subordinate to the lien of the Mortgage and all of Lender's
rights under the Mortgage and Tenant will not subordinate the Lease to any other
lien against the Property without Lender's prior consent.
2. This Agreement constitutes notice to Tenant of the Mortgage and
the Assignment and, upon receipt of notice from Lender, Tenant will pay the Rent
as and when due under the Lease to Lender and the payments will be credited
against the Rent due under the Lease.
3. Tenant does not have and will not acquire any right or option to
purchase any portion of or interest of the Property.
4. Tenant and Lender agree that if Lender exercises its remedies
under the Mortgage or the Assignment and if Tenant is not then in default under
this Agreement and if Tenant is not then in default beyond any applicable grace
and cure periods under the Lease:
(a) Lender will not name Tenant as a party to any judicial or
non-judicial foreclosure or other proceeding to enforce the Mortgage
unless joinder is required under applicable law but in such case Lender
will not seek affirmative relief against Tenant, the Lease will not be
terminated and Tenant's possession of the Leased Space will not be
disturbed;
(b) If Lender or any other entity (a "Successor Landlord") acquires
the Property through foreclosure, by other proceeding to enforce the
Mortgage or by deed-in-lieu of foreclosure (a "Foreclosure"), Tenant's
possession of the Leased Space will not be disturbed and the Lease will
continue in full force and effect between Successor Landlord and Tenant,
and
(c) If, notwithstanding the foregoing, the Lease is terminated as a
result of a Foreclosure, a lease between Successor Landlord and Tenant
will be deemed created, with no further instrument required, on the same
terms as the Lease except that the term of the replacement lease will be
the then unexpired term of the Lease. Successor Landlord and Tenant will
execute a replacement lease at the request of either.
5. Upon Foreclosure, Tenant will recognize and attorn to Successor
Landlord as the landlord under the Lease for the balance of the term. Tenant's
attornment will be self-operative with no further instrument required to
effectuate the attornment except that at Successor Landlord's request, Tenant
will execute instruments reasonably satisfactory to Successor Landlord
confirming the attornment.
6. Successor Landlord will not be:
(a) liable for any act or omission of any prior landlord under the
Lease occurring before the date of the Foreclosure except for repair and
maintenance obligations of a continuing nature imposed on the landlord
under the Lease;
(b) required to credit Tenant with any Rent paid more than one month
in advance or for any security deposit unless such Rent or security
deposit has been received by Successor Landlord;
(c) bound by any amendment, renewal or extension of the Lease that
is inconsistent with the terms of this Agreement or is not in writing and
signed by both Tenant and landlord;
(d) bound by any reduction of the Rent unless the reduction is in
connection with an extension or renewal of the Lease at prevailing market
terms or was made with Lender's prior consent;
(e) bound by any reduction of the term 1 of the Lease or any
termination, cancellation or surrender of the Lease unless the reduction,
termination, cancellation or surrender occurred during the last 6 months
of the term or was made with Lender's prior consent;
(f) bound by any amendment, renewal or extension of the Lease
entered into without Lender's prior consent if the Leased Space represents
50% or more of the net rentable area of the building in which the Leased
Space is located;
(g) subject to any credits, offsets, claims, counterclaims or
defenses that Tenant may have that arose prior to the date of the
Foreclosure or liable for any damages Tenant may suffer as a result of any
misrepresentation, breach of warranty or any act of or failure to act by
any party other than Successor Landlord;
(h) bound by any obligation to make improvements to the Property,
including the Leased Space, to make any payment or give any credit or
allowance to Tenant provided for in the Lease or to pay any leasing
commission arising out of the Lease, except that Successor Landlord will
be:
(i) bound by any such obligations provided for in the
Lender-approved form lease;
(ii) bound by any such obligations if the overall economic
terms of the Lease (including the economic terms of any renewal
options) represented market terms for similar space in properties
comparable to the Property when the Lease was executed; and
(iii) bound to comply with the casualty and condemnation
restoration provisions included in the Lease provided that Successor
Landlord receives the insurance or condemnation proceeds; or
(iv) liable for obligations under the Lease with respect to
any off-site property or facilities for the use of Tenant (such as
off-site leased space or parking) unless Successor Landlord acquires
in the Foreclosure the right, title or interest to the off-site
property.
For purposes of this subparagraph "the term of the Lease" includes any renewal
term after the right to renew has been exercised.
7. Lender will have the right, but not the obligation, to cure any
default by Borrower, as landlord, under the Lease. Tenant will notify Lender of
any default that would entitle Tenant to terminate the Lease or ▇▇▇▇▇ the Rent
and any notice of termination or abatement will not be effective unless Tenant
has so notified Lender of the default and Lender has had a 30-day cure period
(or such longer period as may be necessary if the default is not susceptible to
cure within 30 days) commencing on the latest to occur of the date on which (i)
the cure period under the Lease expires; (ii) Lender receives the notice
required by this paragraph; and (iii) Successor Landlord obtains possession of
the Property if the default is not susceptible to cure without possession.
8. All notices, requests or consents required or permitted to be
given under this Agreement must be in writing and sent by certified mail, return
receipt requested or by
nationally recognized overnight delivery service providing evidence of the date
of delivery, with all charges prepaid, addressed to the appropriate party at the
address set forth above.
9. Any claim by Tenant against Successor Landlord under the Lease or
this Agreement will be satisfied solely out of Successor Landlord's interest in
the Property and Tenant will not seek recovery against or out of any other
assets of Successor Landlord. Successor Landlord will have no liability or
responsibility for any obligations under the Lease that arise subsequent to any
transfer of the Property by Successor Landlord.
10. This Agreement is governed by and will be construed in
accordance with the laws of the state in which the Property is located.
11. Lender and Tenant waive trial by jury in any proceeding brought
by, or counterclaim asserted by, Lender or Tenant relating to this Agreement.
12. If there is a conflict between the terms of the Lease and this
Agreement, the terms of this Agreement will prevail as between Successor
Landlord and Tenant.
13. This Agreement binds and inures to the benefit of Lender and
Tenant and their respective successors, assigns, heirs, administrators,
executors, agents and representatives.
14. This Agreement contains the entire agreement between Lender and
Tenant with respect to the subject matter of this Agreement, may be executed in
counterparts that together constitute a single document and may be amended only
by a writing signed by Lender and Tenant.
15. Tenant certifies that: the Lease represents the entire agreement
between the landlord under the Lease and Tenant regarding the Leased Space; the
Lease is in full force and effect; neither party is in default under the Lease
beyond any applicable grace and cure periods and no event has occurred which
with the giving of notice or passage of time would constitute a default under
the Lease; Tenant has entered into occupancy and is open and conducting business
in the Leased Space; and all conditions to be performed to date by the landlord
under the Lease have been satisfied.
IN WITNESS WHEREOF, Lender and Tenant have executed and delivered this Agreement
as of _____________________, 2000.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York corporation
By: _________________________________________
Name: _______________________________
Title: ______________________________
_______________________ (TENANT)
By: _________________________________________
Name: _______________________________
Title: ______________________________
ACKNOWLEDGMENT
State of ______________________
County of ____________________
On this the ______ day of _________________, 2000, before me, the
undersigned officer, personally appeared _____________________________ who
acknowledged himself/herself to be the ___________________________ of
___________________, a corporation, and that he/she, as
such____________________________ being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the corporation by himself/herself as ________________________________.
In witness whereof I hereunto set my hand and official seal.
_____________________________
_____________________________
Title of Officer
EXHIBIT G
JANITORIAL SERVICES
Based on five (5) days per week service (Monday - Friday) with all work to
commence after 5:00 p.m.
TENANT AREA - DAILY CLEANING
1. Empty all wastebaskets, waste receptacles, and place for disposal.
2. Empty and wash all ashtrays.
3. Dust mop tile floor surfaces.
4. Spot clean nightly - damp mop weekly.
5. Spot vacuum carpet nightly - vacuum thoroughly once a week.
6. Spot clean carpet spots and spillage upon request.
7. Dust desks, tables, counters, file cabinets, and other furniture or
fixtures.
8. Dust all ledges and other flat surfaces within reach.
9. Properly arrange furniture.
10. Spot clean door and partition glass.
11. Spot clean light switches and adjacent wall area. These areas are to
be free of fingerprints, marks and soils.
12. Wash cafeteria table tops.
13. Keep all building vacancies in a clean, presentable condition at all
times.
14. All doors are to be locked upon completion of work.
15. Leave only designated lights on.
TENANT AREA - WEEKLY CLEANING
1. Dust high partition ledges and moldings.
2. Clean and polish door push plates, kickplates, and thresholds
3. Spray buff all tile areas.
4. Wash all cafeteria waste receptacles.
5. Vacuum thoroughly.
TENANT AREA - QUARTERLY CLEANING
1. Strip, seal, and refinish all tile floor surfaces.
2. Dust venetian blinds.
ELEVATORS - DAILY CLEANING
1. Vacuum clean carpeting.
2. All areas are to be free of visible dust.
3. Clean and polish walls and doors.
4. Clean and polish all stainless steel.
5. Spot clean carpet spots and spillage.
ELEVATORS - MONTHLY CLEANING
1. Cleaning ceiling light diffusers
2. Dust high ledges and moldings.
3. Shampoo carpeting as required.
STAIRWAYS - DAILY CLEANING
1. Police and spot clean.
STAIRWAYS - WEEKLY CLEANING
1. Damp wipe handrails
2. Dust all ledges, moldings and pipes.
3. Wet mop steps and landings.
4. Sweep steps and landings.
RESTROOMS - DAILY CLEANING
1. Empty waste containers and replace plastic liners from customers
stock.
2. Damp wipe and polish exterior of all waste containers.
3. Dust mop floor surfaces.
4. Wet mop all floor surfaces using a disinfectant solution. Corners,
edges, baseboard grout are to be uniform in appearance.
5. Dust all ledges and other flat surfaces within reach.
6. Clean and polish all chrome hardware.
7. Clean and sanitize sinks, toilets, seats and urinals.
8. Clean and polish mirrors and frames.
9. Remove any soap scum or residue left from soap dispenser.
10. Wash walls and partitions adjacent to urinals, bowls, sinks. They
are to be free of soil and marks and uniform in appearance.
11. Clean and polish dispensers, and refill from customer's stock.
12. Report any fixtures nor working properly to building office.
RESTROOM - WEEKLY CLEANING
1. Wash interior of all waste containers.
2. Dust high ledges and moldings.
RESTROOMS - MONTHLY CLEANING
1. Scrub floor surfaces.
2. Vacuum or dust ceiling vents.
RESTROOMS - QUARTERLY CLEANING
1. Wash all walls, doors, and partitions.
ENTRANCE, LOBBY AND CORRIDORS - DAILY CLEANING
1. Empty and wash all ashtrays.
2. Empty all debris from sand urns, smooth sand. Replace sand as needed
and polish chrome.
3. Empty waste receptacles and place for disposal.
4. All areas to be free of visible dust.
5. Walls and doors to be free of marks and soil.
6. Clean and polish drinking fountains and adjacent wall area.
7. Clean and polish public telephone and adjacent wall area.
8. All entrance glass to be free of streaks and smudges.
9. Wash all entrance door glass inside and out, and clean metal.
10. Clean and polish door kickplates, push plates, thresholds, and other
chromes and stainless steel.
11. Dust mop tile floor surfaces.
12. Wet mop tile floor surfaces.
13. Vacuum clean all carpeted areas.
14. Spot clean carpet spots and spillage.
15. Clean and polish building directory board.
16. Clean all entry and walk-way mats.
ENTRANCE, LOBBY, AND CORRIDORS - WEEKLY CLEANING
1. Dust high ledges and moldings.
2. Wash entrance side plates inside and outside.
3. Wash doors and first floor side plates inside and outside.
4. Spray buff lobby tile.
ENTRANCE, LOBBY, AND CORRIDORS - QUARTERLY CLEANING
1. Shampoo all carpeted areas.
2. Strip, seal and recoat tile floor surfaces.
3. Wash all entrance glass, inside and outside.
EXHIBIT H
RULES AND REGULATIONS
AT&T TOWER
TENANT, AGREES TO OBSERVE FOR ITSELF, ITS EMPLOYEES, CLIENTS, CUSTOMERS,
INVITEES AND GUESTS, TO COMPLY WITH THE FOLLOWING RULES AND REGULATIONS AND WITH
SUCH REASONABLE AND NONDISCRIMINATORY MODIFICATIONS THEREOF AND ADDITIONS
THERETO AS LANDLORD MAY MAKE FOR THE PROJECT:
1. In advertising or other publicity, without Landlord's prior written
consent, Tenant shall use neither the name of the Building, except
as the address of its business, nor use pictures of the Building.
2. Tenant, its customers, invitees, licensees, and guests, shall not
loiter, congregate, or obstruct sidewalks, entrances, passages,
corridors, vestibules, halls, elevators and stairways in and about
the Project. Tenant shall not place objects against glass partitions
or doors or windows, which would be unsightly from the Building
corridor, or from the exterior of the Building, and will promptly,
remove same upon notice from Landlord.
3. Tenant shall not make noises, cause disturbances, or vibrations or
use or operate electrical or electronic devices or other devices
that emit sound or other waves or disturbances, or create odors, any
of which may be offensive to other tenants and occupants of the
Building or that would unreasonably interfere with the operation of
any device or equipment initially installed after the Effective Date
or radio or television broadcasting or reception from or within the
Project, and shall not place or install any projections, antenna,
aerials or similar devices inside or outside the Premises. The
provisions of this Section 3 will not alter or limit Tenant's rights
under Section 42 of the Lease.
4. Tenant shall not waste electricity or water and agrees to cooperate
fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and shall refrain from
attempting to adjust any controls other than room thermostats
installed for Tenant's use. Tenant shall observe Landlord's
regulations regarding use and operation of window sun shading system
and shall keep public corridor doors closed.
5. Door keys for doors in the Premises will be furnished at the
commencement of the Term by Landlord. Tenant shall not affix
additional locks on doors, without Landlord's consent, and shall
purchase duplicate keys only from Landlord. When the Lease is
terminated, Tenant shall return all keys to Landlord and will
disclose to Landlord the combination of, and provide any keys
relating to, any safes, cabinets or vaults left in the Premises. The
provisions of this Section 5 will not alter or limit Tenant's rights
under Section 7(H) of the Lease.
6. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed and secured.
7. Peddlers and solicitors shall be reported to the Building office or
as Landlord otherwise requests.
8. Tenant shall not install and operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of
the Premises without the written consent of Landlord.
9. No person or contractor not employed by Landlord shall be used to
perform window washing, cleaning, decorating, repair or other work
in the Premises without Landlord's advance consent.
10. Tenant, its associates or employees, shall not make or commit any
indecent or improper acts or noises in the Building, or unreasonably
interfere in any way with the other Tenants or those having business
with them. Nothing shall be thrown by Tenant, its associates, or
employees out of the windows or doors. Tenant agrees that no part of
the Premises shall be used for sleeping purposes or any other
undesirable use.
11. All safes, merchandise, furniture, equipment and other bulky
articles shall be carried up or into the Premises at such times and
in such manner as shall be specified by Landlord; Landlord shall in
all cases retain the power to prescribe the proper position of such
safes and to control the weight of same, and any damage done to the
Building by taking in or putting out a safe, or from overloading the
floor with any safe, shall be paid by Tenant causing it.
12. No bicycle or other vehicle, and no dogs, birds or other animals,
except those animals assisting an individual with a disability,
shall be allowed in the offices, halls, corridors or any other parts
of the Building.
13. Tenant shall not ▇▇▇▇ in the Building without Landlord's advance
consent.
14. Capitalized terms used in these Rules and Regulations but not
defined herein have the meaning ascribed to them in the Lease.
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease"), is made and entered into
effective the 17th day of January, 2003, by and between Utility Engineering
Corporation, a Texas corporation, as sublessor ( "Sublessor"), and Fair, ▇▇▇▇▇
and Company, Incorporated, a Delaware corporation, as sublessee ("Sublessee").
W I T N E S S E T H :
WHEREAS, Sublessor is the tenant under that Lease Agreement dated October
23, 2000 (the "Initial Lease") by and between International Centre Limited
Partnership, a Minnesota limited partnership, as landlord ("Landlord") and
Sublessor. The Initial Lease was subsequently amended by a First Amendment To
Lease dated July 30, 2001 (the "First Amendment"). For purposes of this Sublease
Agreement, the Initial Lease and the First Amendment, shall be referred to
collectively as the "Master Lease";
WHEREAS, the Master Lease demises to Sublessor certain premises (the
"Premises") in that building commonly known as The AT&T Tower located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Building"), and
WHEREAS, attached hereto as Exhibit A is a true and correct copy of the
Master Lease; and
WHEREAS, the Sublessee desires to lease all of the Premises from the
Sublessor, subject to the Landlord's consent, for the term and upon the
conditions contained in this Sublease and Sublessor is willing to sublet the
Premises upon such terms; and
WHEREAS, simultaneously with the execution and delivery of this Sublease,
Sublessee is entering into a separate Lease directly with Landlord of even date
herewith (the "Direct Lease"), leasing the Premises and certain additional space
in the Building to Sublessee, as more particularly set forth therein; and
WHEREAS, to the extent applicable to the Premises, the Direct Lease is
subordinate to this Sublease; and
WHEREAS, capitalized terms not otherwise defined in this Sublease shall
have the meaning set forth in the Master Lease.
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NOW THEREFORE, in consideration of the agreements and covenants contained
herein, and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Sublessor and Sublessee hereby agree as follows:
1. PREMISES. Sublessor hereby leases to Sublessee, and Sublessee hereby
leases from Sublessor the Premises for the term and for the rent and on
all other terms and conditions set forth herein. The Premises consist of
all of the rentable area on the 33rd, 32nd and 31st floors of the
Building, together with a portion of the 30th floor of the Building as
generally depicted in Exhibit B attached hereto. The Premises are deemed
to contain 62,721 square feet of rentable area. The Premises do not
contain the storage space leased pursuant to Exhibit C, paragraph 11 of
the Master Lease, or the parking spaces to which Sublessor has rights
pursuant to the Master Lease.
2. USE. Sublessee shall use the Premises only for general office purposes and
such other uses as are permitted by the Master Lease, and for no other
purposes.
3. TERM. The term of this Sublease (the "Sublease Term") shall commence on
February 1, 2003 (the "Sublease Commencement Date") and shall continue
until June 30, 2007, with respect to that portion of the Premises located
on the 30th floor only, and until August 31, 2011 with respect to the
remainder of the Premises, unless earlier terminated in accordance with
the terms of this Sublease.
4. BASE RENT. Commencing on the Sublease Commencement Date, Sublessee shall
pay to Sublessor a base rent for the Premises equal to Ten Dollars and
Seventy Cents ($10.70) per square foot of rentable area per year (the
"Sublease Base Rent") throughout the Sublease Term. Sublessee shall pay
Sublease Base Rent in equal monthly installments of $55,926.23. All
Sublease Base Rent is payable in advance and without notice demand,
deduction or offset. Sublease Base Rent for any partial months shall be
prorated on a per diem basis.
5. BASE RENT ABATEMENT. Sublease Base Rent payable by Sublessee for the first
two full months of the Sublease Term shall be abated with respect to
40,000 square feet of rentable area, such that Sublessee shall pay
Sublease Base Rent with respect to only 22,721 square feet of rentable
area for each of the first two full months of the Sublease Term, and such
that each of the first two installments of Sublease Base Rent due from
Sublessee shall be in the amount of $20,259.56.
6. OPERATING COSTS. In addition to Base Rent, Sublessee shall pay to
Sublessor throughout the Sublease Term "Operating Costs" payable by
Sublessor as tenant under the Master Lease. Sublessee shall make payment
to Sublessor as and when
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such payments are due from Sublessor to Landlord under the terms of the
Master Lease.
7. ADDITIONAL TAXES. Sublessee shall pay to Sublessor, as additional rent,
any "additional taxes" payable by Sublessor as tenant under the Master
Lease pursuant to Section 6 thereof as and when such payments are due from
Sublessor to Landlord under the terms of the Master Lease. To the extent
any of the taxes described in Section 6 of the Master Lease are payable by
Sublessor by reason of the receipt of Sublease Base Rent, Sublessee shall
pay such taxes, as additional rent, to Sublessor in the manner set forth
therein.
8. ADDITIONAL SERVICES AND UTILITIES. Sublessee shall be solely responsible
for any additional services as described in Section 7.1 of the Master
Lease and shall arrange with Landlord to have any invoice for such
additional service sent directly to Sublessee. Sublessee shall pay
Landlord therefor as and when provided in the Master Lease.
9. PAYMENT OF RENT. All amounts payable by Sublessee under this Sublease,
including the Sublease Base Rent, Sublessee's share of Operating Costs and
additional taxes, if any, shall be deemed "Rent."
10. CONDITION OF SUBLEASE PREMISES. Sublessor shall deliver the Premises to
Sublessee "broom clean" and in "as-is" condition except that Sublessor
shall repair any significant damage to walls or carpet. Sublessor's
furniture and furniture systems on the 33rd and 32nd floors together with
the phone and data cabling shall remain the property of Sublessor during
the Sublease Term, but may be used by Sublessee during the entire Sublease
Term without charge. Upon the expiration or earlier termination of the
Sublease Term, and provided there then exists no Sublease Default (defined
below), Sublessee shall have the right to purchase the furniture and
furniture systems from Sublessor for a price of $1.00 and shall be deemed
the owner of the phone and data cabling. A list of the furniture and
furniture systems is attached as Exhibit D. EXCEPT AS STATED ABOVE IN THIS
SECTION 10. SUBLESSEE ACKNOWLEDGES THAT THE PREMISES WILL OTHERWISE BE
DELIVERED TO SUBLESSEE IN THEIR "AS-IS" CONDITION, WITH ALL FAULTS, AND
SUBLESSOR SHALL HAVE NO LIABILITY TO SUBLESSEE AS TO THE CONDITION OF THE
PREMISES OR OBLIGATION FOR THE PERFORMANCE OF ANY REPAIR OR MAINTENANCE
THERETO. THE TAKING OF POSSESSION OF THE PREMISES BY SUBLESSEE SHALL BE
DEEMED ACCEPTANCE BY SUBLESSEE OF THE PREMISES AND ACKNOWLEDGMENT THAT THE
PREMISES ARE IN SATISFACTORY CONDITION ON THE DATE OF SUCH TAKING OF
POSSESSION.
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11. NO EXTENSION OR EXPANSION RIGHTS. Sublessee acknowledges that,
notwithstanding any rights set forth in the Master Lease that would permit
the Sublessor, as tenant, to extend the term of the Master Lease or to
expand the area of the Premises, Sublessee shall have no right to extend
the Sublease Term or to expand the area of the Premises. However, nothing
herein shall preclude Sublessee from negotiating directly with the
Landlord for additional space in the Building or for continued occupancy
of the Sublease Premises after the Expiration Date, and to the extent
Sublessee desires to exercise any expansion, renewal or other options with
respect to the Premises or this Sublease, it shall do so pursuant to the
Direct Lease. In addition, Sublessor hereby covenants that it will not
exercise any options that it may have as tenant under the Master Lease to
expand the Premises, to extend the term of the Master Lease, or to
otherwise alter the terms of the Master Lease as they exist as of the date
of this Sublease.
12. MASTER LEASE. This Sublease is subject and subordinate to the Master
Lease. It is the intent of Sublessee and Sublessor to incorporate the
Master Lease into this Sublease by reference except as otherwise
specifically provided herein. Sublessee shall pay all sums due to Landlord
pursuant to the Master Lease to the extent such sums are applicable to the
Premises or Sublessee's use of any portion of the Building. Except as
otherwise expressly provided by the terms of this Sublease, Sublessee
agrees to be bound by and perform all the terms, provisions and conditions
to be performed by or applicable to Sublessor under the Master Lease to
the extent the same are applicable to the Premises or Sublessee's use of
any portion of the Building, and for purposes of said limited
incorporation by reference of the Master Lease, any references therein to
"Tenant" shall be deemed references to Sublessee. Sublessor shall have the
benefit of all rights and remedies available to Landlord under the Prime
Master Lease, including, but not limited to the right of re-entry. Except
as expressly provided by the term of this Sublease or as superseded by the
specific provisions hereof, all rights of Sublessor and obligations of
Landlord under the Master Lease shall inure to the benefit of Sublessee
herein, and for purposes of said limited incorporation by reference of the
Master Lease, notwithstanding the foregoing, references to Landlord in the
Master Lease shall be deemed to continue to be references to Landlord.
Sublessor shall have no liability to Sublessee for Landlord's defaults,
provided that at Sublessee's request Sublessor shall demand that Landlord
cure any default by Landlord. Sublessor represents and warrants that as of
the date of this Sublease, the Lease is in full force and effect and to
the best of Sublessor's actual knowledge there is no default by Landlord
or Sublessor under the Master Lease. During the Sublease Term, Sublessor
shall not surrender, cancel or terminate the Lease in any manner that
would materially affect Sublessee's rights hereunder.
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13. SUBLEASE DEFAULT. The occurrence of any one or more of the following shall
constitute a "Sublease Default":
(a) Sublessee shall fail to pay any monthly installment of Rent within
five days after Sublessee receives notice from Sublessor that the Rent was
not received when due, or fails to make timely payment of any other
amounts due and owing from Sublessee to Sublessor or to Landlord;
(b) Sublessee shall create or suffer a default under the Master Lease
under any provision of the Master Lease applicable to Sublessee or the
Premises, and Sublessee shall not cure such default at least five days
prior to the expiration of any applicable cure period with respect to such
default under the Master Lease.
Upon the occurrence of a Sublease Default, the Sublessor shall have all of
the rights and remedies relative to the Sublessee as exist in favor of the
Landlord upon default by the Tenant under the Master Lease. Sublessee
acknowledges that the remedies available to Sublessor for default include,
without limitation, the right to terminate the Sublease and to assert a
claim for damages against Sublessee or to repossess the Sublease Premises
without terminating the Sublease, all as more fully set forth in Section
14 of the Master Lease.
14. SUBLESSOR CURE OF SUBLESSEE DEFAULT. If Sublessee defaults in the making
of any payment, or in the doing of any act herein required to be done by
Sublessee or commits any act prohibited herein, Sublessor may, but shall
not be required to, make such payment or do such act, or correct any
damage caused by such prohibited act and to enter the Premises as
appropriate in connection therewith, and the amount of the expense
incurred by Sublessor, with interest thereon at the lesser of the highest
lawful rate or twelve percent (12%) per annum from the date paid by
Sublessor, shall be paid by Sublessee to Sublessor and shall constitute
Rent hereunder due and payable with the next monthly installment of
Sublease Base Rent. Sublessee hereby acknowledges and agrees that the
making of such payment or the performance of such act by Sublessor shall
not operate to cure such default or prevent Sublessor from the pursuit of
any remedy to which Sublessor would otherwise be entitled. If any
installment of Sublease Base Rent is not paid by Sublessee within five (5)
business days of the due date, Sublessee shall also be obligated to pay:
(i) a one-time late charge of two and one-half percent (2 1/2%) of the
amount due as a reasonable reimbursement of administrative costs incurred
by Sublessor; and (ii) interest on the unpaid balance at the lesser of the
highest lawful rate or twelve percent (12%) per annum and such late charge
and interest shall constitute Rent hereunder which shall be immediately
due and payable.
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15. ALTERATIONS BY SUBLESSEE. Sublessor is delivering the Sublease Premises to
Sublessee in its "as-is" condition. Sublessor shall make the Sublease
Premises reasonably accessible to Sublessee following execution of this
Sublease and the obtaining of Landlord's consent for purposes of planning
Sublessee improvements (subject to compliance with Sublessor's and
Landlord's reasonable security and notice requirements with regard to such
access). Sublessee shall also have access to the Premises no later than
January 18, 2003 for the purpose of installing telephone and data lines
within the Premises, subject to compliance with Building rules and
regulations applicable to such installation. Sublessee shall have the
right to make alterations to the Premises to the extent Sublessor has such
rights as tenant under the Master Lease, as set forth in Section 9 of the
Master Lease. Any fixtures, furnishings or equipment attached to the
Premises by Sublessee (except trade fixtures or trade equipment) shall
become the property of the Landlord, or be otherwise disposed of, as
provided in the Master Lease upon the termination of this Sublease, to the
extent not removed by Sublessee from the Premises prior to the termination
date. Sublessee shall be required to repair any damage caused to the
Premises by removal of fixtures, furnishings, or equipment attached to the
Premises by Sublessee and subsequently removed to the extent required by
the Master Lease. Upon the expiration or earlier termination of this
Sublease, if Sublessee will not be continuing its occupancy of the
Sublease Premises at that time under the Direct Lease, Sublessee shall
deliver the Premises to Sublessor in the condition required by the Master
Lease. If required by Landlord pursuant to the Master Lease (either
directly or by Landlord's direction to Sublessor), Sublessee shall remove
any alterations or improvements to the Premises, including cabling,
installed by Sublessee, at Sublessee's expense, and such work shall be
completed prior to the expiration of the Sublease Term. Any signage shall
be installed at the expense of Sublessee with the consent of Landlord.
Sublessor shall reasonably cooperate with Sublessee with regard to
procuring a Building directory listing for Sublessee. Sublessee shall also
be permitted to begin its move-in of furniture, fixtures and equipment on
January 21, 2003 or any time thereafter.
16. MAINTENANCE. Sublessee shall be responsible for maintaining and repairing
the Premises in the condition required by the Master Lease. Sublessee
shall also promptly repair any and all damage to the Premises and perform
ordinary and necessary maintenance, to the extent required by the Master
Lease.
17. INDEMNIFICATION AND INSURANCE.
A. Sublessee agrees to indemnify, hold harmless and defend Sublessor, and
its officers, directors, employees, agents, successors and assigns, from
and
6
against claims, losses, damages, liabilities, causes of action, suits,
judgments and expenses, including but not limited to reasonable attorney's
fees, for bodily or personal injury, or death to any persons including,
but not limited to, employees of Sublessee, and for any loss of, damage
to, or destruction of any property, including loss of use thereof, in any
way related to Sublessee's use and occupancy of the Premises.
B. Sublessee agrees to purchase and to carry in full force all insurance
required by the Master Lease to be carried by Sublessor. Sublessee shall
name Sublessor as an additional insured on all liability insurance
policies and as loss payee on its property damage insurance and shall
provide Sublessor with reasonable evidence of such insurance.
C. Prior to the Sublease Commencement Date, certificates of insurance
shall be delivered by Sublessee to Sublessor evidencing compliance with
the insurance terms of this Sublease.
D. The indemnity and insurance provisions contained herein shall remain in
effect and shall survive the termination of this Sublease with respect to
any occurrence or claim arising during the Sublease Term of or in
connection with this Sublease or occupancy of the Premises.
18. NOTICES. All notices to be given hereunder shall be in writing and shall
be deemed given the earlier of receipt or three (3) business days after
deposit in the United States mail, postage prepaid, addressed as follows
(or to such address as from time to time may be designated by any party by
written notice to the other parties):
7
SUBLESSEE: LANDLORD:
Fair, ▇▇▇▇▇ and Company, Incorporated International Centre Limited Partnership
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President c/o Ryan Properties
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇
CC: ▇▇▇▇▇▇ ▇▇▇▇, Vice President,
Secretary and General Counsel
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SUBLESSOR:
Utility Engineering Corporation
Amarillo National's Plaza Two
500 South ▇▇▇▇▇▇ Lobby ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
CC: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any notice received by either Sublessor or Sublessee from Landlord shall
be delivered to the other party within five (5) business days of receipt
and shall be effective, under the terms of this Sublease, on the business
day following receipt of such copy by the party to be notified.
19. ASSIGNMENT AND SUBLEASING. Subject to the approval of Landlord to the
extent required under the Master Lease, Sublessee on notice to Sublessor
(but without Sublessor's consent), may assign this Lease or sublet all or
part of the Premises to any of Sublessee's Affiliates. "Sublessee's
Affiliates" means any company controlling, controlled by or under common
control with Sublessee, as well as any entity acquiring all or
substantially all of Sublessee's assets or common stock. In no
circumstances shall the original Sublessee be released from its
obligations under this Sublease. A transfer of an ownership interest in
Sublessee is not an assignment of this Sublease, but Sublessee shall give
Sublessor notice of any such transfer which
8
results in a change in control of Sublessee. Sublessee shall not otherwise
assign this Sublease or sublet all or any part of the Premises
voluntarily, involuntarily or by operation of law, without first obtaining
Sublessor's written consent thereto, which consent shall not be
unreasonably withheld, delayed or conditioned and will be deemed granted
unless denied in writing by Sublessor within 10 days after Sublessee's
delivery of its consent request to Sublessor. Any such assignee or
sublessee shall assume in writing the performance of the covenants and
obligations of Sublessee hereunder. Sublessee shall deliver to Sublessor a
fully executed copy of any assignment or sublease. Any assignment or
subletting by Sublessee not in compliance with the Master Lease and this
Sublease shall permit Sublessor to exercise against Sublessee the rights
granted to the Landlord against the Tenant under the Master Lease.
20. LIENS AND TAXES. Sublessee shall promptly pay, and shall hold Sublessor
and Landlord harmless from:
A. All taxes assessed against and levied upon any trade fixtures,
furnishings, equipment and all other personal property of Sublessee
in the Premises.
B. All levies, liens and encumbrances which arise from any act or
omission of Sublessee, including any work performed in the Premises
by or under the direction of Sublessee.
21. PERFORMANCE UNDER LEASE. Sublessee acknowledges that Sublessor does not
control the performance by Landlord under the Master Lease, including the
providing of services to the Sublease Premises. Sublessee hereby agrees
that Sublessor shall have no liability to Sublessee of any kind arising
out of such non-performance or non-delivery of services, except the
obligation to use reasonable efforts to request Landlord to perform under
the Master Lease and/or provide the required services. Sublessor hereby
assigns to Sublessee the right of Sublessor to pursue enforcement of the
Master Lease against Landlord as to such non-performance.
22. APPLICABLE LAW. This Sublease shall be governed by and construed in
accordance with the laws of the State of Minnesota.
23. QUIET ENJOYMENT. So long as Sublessee is not in default under any of the
covenants, agreements, terms and conditions hereof, on the part of
Sublessee to be performed and observed, Sublessor covenants that Sublessee
shall peacefully have and enjoy the Premises without hindrance or
molestation by Sublessor.
9
24. BROKER COMMISSION. Sublessor has disclosed to Sublessee that it is
represented by The Staubach Company (the "Sublessor Broker") with regard
to this Sublease. Sublessee has disclosed to Sublessor that it is
represented by ▇▇▇▇▇▇▇ Companies with regard to this Sublease (the
"Sublessee Broker"). Sublessor has agreed to pay Sublessor Broker a
brokerage fee pursuant to a separate written commission agreement, and
Sublessor Broker shall also be responsible for payment of a brokerage fee
owing to Sublessee Broker out of Sublessor Broker's commission when
Sublessor pays Sublessor Broker. Each of the parties represents to the
other that such party has not incurred any brokerage commission or
finder's fee as a result of this Sublease other than as set forth in this
Section 24, and each party agrees to hold the other harmless from all
liabilities incurred by the other relating to such brokerage commission or
finder's fee incurred as a result of the actions of such party. The
provisions of this Section shall survive termination of this Sublease.
25. LANDLORD CONSENT. Sublessee acknowledges that Sublessor is requesting
Landlord's consent as to the Sublease and that this Sublease shall not be
binding upon the parties until the Landlord has provided its written
consent. The form of consent requested by Sublessor and Sublessee is
attached is hereto as Exhibit C.
26. BUILDING SERVICES. From and after the Sublease Commencement Date,
Sublessee shall have access to the Building, the Premises, and the Common
Areas twenty-four (24) hours per day, seven (7) days per week subject to
exceptions set forth in the Master Lease.
Except as otherwise provided in Section 8 of this Sublease, from and after
the Sublease Commencement Date, Building standard janitorial services
shall be provided to the Premises at no cost to Sublessee and Sublessee
shall cooperate in using trash and recycling facilities provided in
conjunction with such services.
Sublessee shall not be obligated for payment of utility costs with regard
to the Premises unless Landlord imposes an excess utility charge on
Sublessor as a result of Sublessee's particular use of the Premises (i.e.,
related to excessive utility use, excessive cooling requirements, etc.).
In such event, Sublessor shall submit the invoices for such excess charges
to Sublessee and Sublessee shall promptly pay said charges to Landlord.
27. COUNTERPART SIGNATURES. This Sublease may be executed in counterparts,
each of which when appended with the signatures of the parties, shall
constitute an original Sublease.
10
28. SATELLITE DISH. Sublessee shall have the right to install and operate a
rooftop satellite-earth communications antenna, at no cost to Sublessor,
to the extent such rights are granted to Sublessor as tenant under the
Master Lease.
IN WITNESS WHEREOF, the parties have executed this Sublease Agreement
effective the date and year first above written.
SUBLESSEE:
FAIR, ▇▇▇▇▇ AND COMPANY, INC.
A DELAWARE CORPORATION
DATED: January 17, 2003 BY /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
ITS CHIEF FINANCIAL OFFICER
SUBLESSOR:
UTILITY ENGINEERING CORPORATION,
A TEXAS CORPORATION
DATED: January 17, 2003 BY /s/ [SIGNATURE ILLEGIBLE]
ITS Vice President, Corporate
Strategy & Services
11
EXHIBIT A
COPY OF LEASE
1
EXHIBIT B
DEPICTION OF SUBLEASE PREMISES
1
EXHIBIT C
CONSENT TO SUBLEASE
Reference is made to that certain Lease Agreement dated October 23, 2000
(the "Initial Lease"), by and between International Centre Limited Partnership,
as landlord (the "Initial Landlord") and Utility Engineering Corporation, as
tenant (the "Tenant"), as amended by a First Amendment to Lease dated July 30,
2001 (the "First Amendment"), which Initial Lease and First Amendment to Lease
shall be referred to collectively herein as the "Lease."
Subject to the terms and conditions of this Consent to Sublease, Landlord
hereby consents to the sublease by Sublessor of the Premises to Fair, ▇▇▇▇▇ and
Company, Incorporated ("Sublessee") pursuant to the terms of that certain
Sublease Agreement dated effective __________________, 2003, by and between
Sublessor and Sublessee (the "Sublease"). For purposes of this Consent,
"Premises" shall mean those premises described in the Sublease and generally
depicted in Exhibit B thereto.
Sublessor and Sublessee each represent and warrant that the Sublease sets
forth the entire transaction between Sublessor and Sublessee relating to the
Premises. Sublessee represents that all disclosures made by Sublessee to the
Landlord in connection with this Consent to Sublease (if any) are true in all
material respects and do not omit any materially relevant information.
The Landlord's consent to the Sublease shall not constitute approval of
the form or terms and conditions of the Sublease. The Sublease, notwithstanding
any term or provision thereof to the contrary, shall not amend, modify, or in
any way affect the Lease or the rights and obligations of the parties
thereunder. The Sublease shall not create in or grant to Sublessee any direct
rights or remedies against Landlord under the Sublease. To the extent that any
provision of the Sublease is inconsistent with this Consent to Sublease, that
provision shall be void and of no force and effect.
Notwithstanding anything which may be apparently to the contrary in the
Sublease, Sublessee hereby agrees to observe fully all covenants and conditions
of the Lease as applicable to the Premises. Landlord's consent hereunder shall
not be deemed in any manner to be a consent to a use not permitted pursuant to
Section 4 of the Lease or a consent to any other sublease or assignment. Any
proposed sublease or assignment by Sublessee shall be subject to the provisions
of Section 8(G) of the Lease. The terms and conditions of the Lease shall be
fully enforceable against Sublessee, and nothing in this Consent to Sublease or
in the Sublease shall be construed to modify the Lease or Landlord's rights and
remedies
1
thereunder. Nothing in this Consent to Sublease shall in any manner be construed
to be an agreement by Landlord not to disturb Sublessee in the event of any
default under the Lease by Sublessor which is not cured by Sublessor within the
cure period, if any, provided under the Lease.
Notwithstanding the Sublease, Sublessor shall remain liable to Landlord
under the Lease. Sublessor hereby ratifies and confirms its obligations under
the Lease and acknowledges that, to the best of its actual knowledge, (i)
Landlord is not in default under the Lease, (ii) no event has occurred that,
with the passage of time or notice, would constitute a default under the
Sublease, and (iii) Sublessor has no existing claim against Landlord or right of
offset or defense against enforcement by the Landlord of the obligations of the
Sublessor under the Lease.
Landlord agrees that, so long as Sublessee has procured and maintains the
insurance required under Section 17(B) of the Sublease, Sublessor shall be
relieved of its obligation to maintain insurance under Section 8(K) of the
Lease.
This Consent to Sublease, the Sublease Agreement and the Direct Lease
(referenced in the Recitals to this Sublease contains the entire agreement of
the parties hereto with respect to the subject matter hereof. This Consent to
Sublease shall be binding on and inure to the benefit of Landlord, Sublessor and
Sublessee and their respective successors and assigns.
LANDLORD: International Centre Limited Partnership
By International Centre III Limited Partnership
By ▇▇▇▇ Properties, Inc.
Dated: January 17, 2003
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Its EVP
Dated: January 17, 2003 SUBLESSOR: Utility Engineering Corporation
By [SIGNATURE ILLEGIBLE]
Its Vice President, Corporate
Strategy & Services
Dated: January 17, 2003 SUBLESSEE: Fair, ▇▇▇▇▇ and Company, Inc.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its Chief Financial Officer
2
EXHIBIT D
Schedule of Furniture and Built-In Furniture Systems
1