OFFICE/WAREHOUSE LEASE
This Indenture of lease, dated this 6th day of April, 1990, by and
between First Wisconsin National Bank of Milwaukee, Wisconsin hereinafter
referred to as "Lessor"', and Amcom Corporation (a Minnesota Corporation)
hereinafter referred to as "Lessee".
DEFINITIONS
"Premises" -- That certain real property located in the City of Eden
Prairie, County of Hennepin and State of Minnesota and legally described on
Exhibit "A" attached hereto and made a part hereof, including all buildings and
site improvements located thereon.
"Building" -- That certain office/warehouse building containing
approximately 50,020 square feet located upon the Premises and commonly
described as ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
"Demised Premises" -- that certain portion of the Building located at
▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and designated as Bays __ through __, consisting of
approximately 19,117 square feet (7,608 square feet of office space, and 8,264
square feet of warehouse space), as measured from the outside walls of the
Demised Premises to the center of the partition wall, as shown on the floor plan
attached hereto as Exhibit "B" and made a part hereof. The Demised Premises
include a non-exclusive easement for access to common areas, as hereinafter
defined, and all licenses and easements appurtenant to the Demised Premises.
"Common Areas" -- The term "common area" means the entire areas to be
used for the non-exclusive use by Lessee and other lessees in the Building,
including, but not limited to corridors, lavatories, driveways, truck docks,
parking lots and landscaped areas. Subject to reasonable rules and regulations
to be promulgated by Lessor, the common areas are hereby made available to
Lessee and its employees, agents, customers, and invitees for reasonable use in
common with other lessees, their employees, agents, customers and invitees.
WITNESSETH:
TERM: See Articles 43 & 45
1. For and in consideration of the rents, additional rents, terms,
provisions and covenants herein contained, Lessor hereby lets, leases and
demises to Lessee the Demised Premises for the term of 60 months commencing on
the first day of August, 1990 (sometimes called "the Commencement Date") and
expiring the last day of July, 1995 (sometimes called "Expiration Date", unless
sooner terminated as hereinafter provided.
BASE RENT: See Articles 42, 43 & 45
2. Lessor reserves and Lessee shall pay Lessor a total rental of _____
Dollars (See Article 42) , payable in advance, in equal monthly installments of
______ Dollars (See Article 42),
commencing on the Commencement Date and continuing on the first day of each and
every month thereafter for the next succeeding months during the balance of the
term (sometimes called "Base Rent"). In the event the Commencement Date falls on
a date other than the first of a month the rental for that month shall be
prorated and adjusted accordingly.
ADDITIONAL RENT:
3. Lessee shall pay to Lessor throughout the term of this Lease the
folIowing:
a. Lessee shall pay a sum equal to Thirty-Eight and 22/100 percent
(38.22%) of the Real Estate taxes. The term "Real Estate Taxes" shall mean all
real estate taxes, all assessments and any taxes in lieu thereof which may be
levied upon or assessed against the Premises of which the Demised Premises are a
part. Lessee, in addition to all other payments to Lessor by Lessee required
hereunder shall pay to Lessor, in each year during the term of this Lease and
any extension or renewal thereof, Lessee's proportionate share of such real
estate taxes and assessments paid in the first instance by Lessor.
Any tax year commencing during any lease year shall be deemed to
correspond to such lease year. In the event the taxing authorities include in
such real estate taxes and assessments the value of any improvements made by
Lessee, or of machinery, equipment, fixtures, inventory or other personal
property or assets of Lessee, then Lessee shall pay all the taxes attributable
to such items in addition to its proportionate share of said aforementioned real
estate taxes and assessments. A photostatic copy of the tax statement submitted
by Lessor to Lessee shall be sufficient evidence of the amount of taxes and
assessments assessed or levied against the Premises of which the Demised
Premises are a part, as well as the items taxed.
b. A sum equal to Thirty-Eight and 22/100 percent (38.22%) of the
annual aggregate operating expenses incurred by Lessor in the operation,
maintenance, and repair of the Premises. The term "Operating Expenses" shall
include but not be limited to maintenance, repair, replacement and care of all
common area lighting, common area plumbing and roofs, parking and landscaped
areas, signs, snow removal, non-structural repair and maintenance of the
exterior of the Building, insurance premiums, management fee, wages and fringe
benefits of personnel employed for such work, costs of equipment purchased and
used for such purposes, and the cost or portion thereof properly allocable to
the Premises (amortized over such reasonable period as Lessor shall determine
together with the interest at the rate of 12% per annum on the unamortized
balance) of any capital improvements made to the Building by Lessor after the
Base Year which result in a reduction of Operating Expenses or made to the
Building by Lessor after the date of this Lease that are required for any
governmental law or regulation that was not applicable to the Building at the
time it was constructed.
c. In no event shall the total adjusted monthly rent be less than ____
Dollars (See Article 42) per month during the term of this Lease.
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The payment of the sums set forth in this Article 3 shall be in
addition to the Base Rent payable pursuant to Article 2 of this Lease. All sums
due hereunder shall be due and payable within thirty (30) days of delivery of
written certification by Lessor setting forth the computation of the amount due
from Lessee. In the event the lease term shall begin or expire at any time
during the calendar year, the Lessee shall be responsible for his pro rata share
of Additional Rent under subdivisions a. and b. during the Lease and/or
occupancy time.
Prior to commencement of this Lease, and prior to the commencement of
each calendar year thereafter commencing during the term of this Lease or any
renewal or extension thereof, Lessor may estimate for each calendar year (i) the
total amount of Real Estate Taxes; (ii) the total amount of Operating Expenses;
(iii) Lessee's share of Real Estate Taxes for such calendar year; (iv) Lessee's
share of Operating Expenses for such calendar year; and (v) the computation of
the annual and monthly rental payable during such calendar year as a result of
increases or decreases in Lessee's share of Real Estate Taxes, and Operating
Expenses. Said estimates will be in writing and will be delivered or mailed to
Lessee at the Premises.
The amount of Lessee's share of Real Estate Taxes, and Operating
Expenses for each calendar year, so estimated, shall be payable as Additional
Rent, in equal monthly installments, in advance, on the first day of each month
during such calendar year at the option of Lessor. In the event that such
estimate is delivered to Lessee before the first day of January of such calendar
year, said amount, so estimated, shall be payable as additional rent in equal
monthly installments, in advance, on the first day of each month during such
calendar year. In the event that such estimate is delivered to Lessee after the
first day of January of such calendar year, said amount, so estimated, shall be
payable as additional rent in equal monthly installments, in advance, on the
first day of each month over the balance of such calendar year, with the number
of installments being equal to the number of full calendar months remaining in
such calendar year.
Upon completion of each calendar year during the term of this Lease or
any renewal or extension thereof, Lessor shall cause its accountants to
determine the actual amount of the Real Estate Taxes, and Operating Expenses
payable in such calendar year and Lessees share thereof and deliver a written
certification of the amounts thereof to Lessee. If Lessee has underpaid its
share of Real Estate Taxes, or Operating Expenses for such calendar year, Lessee
shall pay the balance of its share of same within ten (10) days after the
receipt of such statement. If Lessee has overpaid its share of Real Estate
Taxes, or Operating Expenses for such calendar year, Lessor shall either (i)
refund such excess, or (ii) credit such excess against the current monthly
installment or installments due Lessor for its estimate of Lessee's share of
Real Estate Taxes, and Operating Expenses for the next following calendar year.
A prorata adjustment shall be made for a fractional calendar year occurring
during the term of this Lease or any renewal or extension thereof based upon the
number of days of the term of the Lease during said calendar year as compared to
three hundred sixty-five (365) days and all additional sums payable by Lessee or
credit; due Lessee as a result of the provisions of this Article 3 shall be
adjusted accordingly.
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COVENANT TO PAY RENT:
4. The covenants of Lessee to pay the Base Rent and the Additional Rent
are each independent of any other covenant, condition, provision or agreement
contained in this Lease. All rents are payable to Lessor at Welsh Companies.
Inc., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
UTILITIES:
5. Lessor shall provide mains and conduits to supply water, gas,
electricity and sanitary sewage o the Premises. Lessee shall pay, when due, all
charges for sewer usage or rental, garbage, disposal, refuse removal, water,
electricity, gas, fuel oil, L.P. gas, telephone and/or other utility services or
energy source furnished to the Demised Premises during the term of this Lease,
or any renewal or extension thereof. If Lessor elects to furnish any of the
foregoing utility services or other services furnished or caused to be furnished
to Lessee then the rate charged by Lessor shall not exceed the rate Lessee would
be required to pay to a utility company or service company furnishing any of the
foregoing utilities or services. The charges thereof shall be deemed additional
rent in accordance with Article 3.
CARE AND REPAIR OF DEMISED PREMISES:
6. Lessee shall, at all times throughout the term of this Lease,
including renewals and extension, and at its sole expense, keep and maintain the
Demised Premises in a clean, safe, sanitary and first class condition and in
compliance with all applicable laws, codes, ordinances, rules and regulations.
Lessee's obligations hereunder shall include but not be limited to the
maintenance, repair and replacement, if necessary, of heating, air conditioning
fixtures, equipment, and systems, all lighting and plumbing fixtures and
equipment, fixtures, motors and machinery, all interior walls, partitions, doors
and windows, including the regular painting thereof, all exterior entrances
windows, doors and docks and the replacement of all broken glass. When used in
this provision, the term "repairs" shall include replacements or renewals when
necessary, and all such repairs made by the Lessee shall be equal in quality and
class to the original work. The Lessee shall keep and maintain all portions of
the Demised Premises and the sidewalk and areas adjoining the same in a clean
and orderly condition, free of accumulation of dirt, rubbish, snow and ice.
If Lessee fails, refuses or neglects to maintain or repair the Demised
Premises as required in this Lease after notice shall have been given Lessee, in
accordance with Article 33 of this Lease, Lessor may make such repairs without
liability to Lessee for any loss or damage that may accrue to Lessee's
merchandise, fixtures or other property or to Lessee's business by reason
thereof, and upon completion thereof, Lessee shall pay to Lessor all costs plus
15% for overhead incurred by Lessor in making such repairs upon presentation to
Lessee of ▇▇▇▇ therefor.
Lessor shall repair, at it expense, the structural portions of the
Building, provided however where structural repairs are required to be made by
reason of the acts of Lessee, the costs thereof shall be borne by Lessee and
payable by Lessee to Lessor upon demand.
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The Lessor shall be responsible for all outside maintenance of the
Demised Premises, including grounds and parking areas. All such maintenance
which is the responsibility of the Lessor shall be provided as reasonably
necessary to the comfortable use and occupancy of Demised Premises during
business hours, except Saturdays. Sundays and holidays, upon the condition that
the Lessor shall not be liable for damages for failure to do so due to causes
beyond its control.
SIGNS:
7. Any sign, lettering, picture, notice or advertisement installed on
or in any part of the Premises and visible from the exterior of the Building, or
visible from the exterior of the Demised Premises, shall be approved and
installed by Lessor at Lessee's expense. In the event of a violation of the
foregoing by Lessee, Lessor may remove the same without any liability and may
charge the expense incurred by such removal to Lessee.
ALTERATIONS, INSTALLATION, FIXTURES:
8. Except as hereinafter provided, Lessee shall not make any
alteration, additions, or improvements in excess of $2,000.00 each occurrence,
in or to the Demised Premises or add, disturb, or in any way change any plumbing
or wiring therein without the prior written consent of the Lessor, such consent
not to be unreasonably withheld. In the event alterations are required by any
governmental agency by reason of the use and occupancy of the Demised Premises
by Lessee, Lessee shall make such alterations at its cost and expense after
first obtaining Lessor's approval of plans and specifications therefor and
furnishing such indemnification as Lessor may reasonably require against liens,
costs, damages and expenses arising out of such alterations. Alterations or
additions by Lessee must be built in compliance with all laws, ordinances and
governmental regulations affecting the Premises and Lessee shall warrant to
Lessor that all such alterations, additions, or improvements shall be in strict
compliance with all relevant laws, ordinances, governmental regulations, and
insurance requirements. Construction of such alterations or additions shall
commence only upon Lessee obtaining and exhibiting to Lessor the requisite
approvals, licenses and permits and indemnification against liens. All
alterations, installations, physical additions or improvements to the Demised
Premises made by Lessee shall at once become the property of Lessor and shall be
surrendered to Lessor upon the termination of this Lease; provided, however,
this clause shall not apply to movable equipment or furniture owned by Lessee
which may be removed by Lessee at the end of the term of this Lease if Lessee is
not then in default.
POSSESSION:
9. Except as hereinafter provided Lessor shall deliver possession of
the Demised Premises to Lessee in the condition required by this Lease on or
before the Commencement Date, but delivery of possession prior to or later than
such Commencement Date shall not affect the expiration date of this Lease. The
rentals herein reserved shall commence on the date when possession of the
Demised Premises is delivered by Lessor to Lessee. Any occupancy by Lessee
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prior to the beginning of the term shall in all respects be the same as that of
a Lessee under this Lease. Lessor shall have no responsibility or liability for
loss or damage to fixtures, facilities or equipment installed or left on the
Demised Premises. If Demised Premises are not ready for occupancy by
Commencement Date and possession is later than Commencement Date, rent shall
begin on date of possession.
SECURITY AND DAMAGE DEPOSIT:
10. Lessee contemporaneously with the execution of this Lease, has
deposited with Lessor the sum of Ten Thousand Five Hundred Sixteen and 00/100
Dollars ($10,516.00), receipt of which is acknowledged hereby by Lessor, which
deposit is to be held by Lessor, without liability for interest, as a security
and damage deposit for the faithful performance by Lessee during the term hereof
or any extension hereof. Prior to the time when Lessee shall be entitled to the
return of this security deposit, Lessor may comingle such deposit with Lessor's
own funds and to use such security deposit for such purpose as Lessor may
determine. In the event of the failure of Lessee to keep and perform any of the
terms, covenants and conditions of this Lease to be kept and performed by Lessee
during the term hereof or any extension hereof, then Lessor, either with or
without terminating this Lease, may (but shall not be required to) apply such
portion of said deposit as may be necessary to compensate or repay Lessor for
all losses or damages sustained or to be sustained by Lessor due to such breach
on the part of Lessee, including, but not limited to overdue and unpaid rent,
any other sum payable by Lessee to Lessor pursuant to the provisions of this
Lease, damages or deficiencies in the reletting of Demised Premises, and
reasonable attorney's fees incurred by Lessor. Should the entire deposit or any
portion thereof, be appropriated and applied by Lessor, in accordance with the
provisions of this paragraph, Lessee upon written demand by Lessor, shall remit
forthwith to Lessor a sufficient amount of cash to restore said security deposit
to the original sum deposited, and Lessee's failure to do so within five (5)
days after receipt of such demand shall constitute a breach of this Lease. Said
security deposit shall be returned to Lessee, less any depletion thereof as the
result of the provisions of this paragraph, at the end of the term of this Lease
or any renewal thereof, or upon the earlier termination of this Lease. Lessee
shall have no right to anticipate return of said deposit by withholding any
amount required to be paid pursuant to the provision of this Lease or otherwise.
In the event Lessor shall sell the Premises, or shall otherwise convey
or dispose of its interest in this Lease, Lessor may assign said security
deposit or any balance thereof to Lessor's assignee, whereupon Lessor shall be
released from all liability for the return or repayment of such security deposit
and Lessee shall look solely to the said assignee for the return and repayment
of said security deposit. Said security deposit shall not be assigned or
encumbered by Lessee without such consent of Lessor, and any assignment or
encumbrance without such consent shall not bind Lessor. In the event of any
rightful and permitted assignment or this Lease by Lessee, said security deposit
shall be deemed to be held by Lessor as a deposit made by the assignee, and
Lessor shall have no further liability with respect to the return of said
security deposit to the Lessee. Providing Lessee is not in default of this
agreement, Lessor will return 50% of the security deposit to Lessee on the 24th
month and the remaining 50% on the 36th month.
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USE:
11. The Demised Premises shall be used and occupied by Lessee solely
for the purposes of office/tech/warehouse for Lessee's legal business so long as
such use is in compliance with all applicable laws, ordinances and governmental
regulations affecting the Building and Premises. The Demised Premises shall not
be used in such manner that, in accordance with any requirement of law or of any
public authority, Lessor shall be obliged on account of the purpose or manner of
said use to make any addition or alteration to or in the Building. The Demised
Premises shall not be used in any manner which will increase the rates required
to be paid for public liability or for fire and extended coverage insurance
covering the Premises. Lessee shall occupy the Demised Premises conduct its
business and control its agents, employees, invitees and visitors in such a way
as is lawful, and reputable and will not permit or create any nuisance, noise,
odor, or otherwise interfere with, annoy or disturb any other Lessee in the
Building in its normal business operations or Lessor in its management of the
Building. Lessee's use of the Demised Premises shall conform to all the Lessor's
rules and regulations relating to the use of the Premises. Outside storage on
the Premises of any type of equipment, property or materials owned or used on
the Premise by Lessee or its customers and suppliers shall not be permitted.
ACCESS TO DEMISED PREMlSES:
12. The Lessee agrees to permit the Lessor and the authorized
representatives of the Lessor to enter the Demised Premises at all times during
usual business hours, with prior notice by Lessor, for the purpose of inspecting
the same and making any necessary repairs to the Demised Premises and performing
any work therein that may be necessary to comply with any laws, ordinances,
rules, regulations or requirements of any pubic authority or of the Board of
Fire Underwriters or any similar body or that the Lessor may deem necessary to
prevent waste or deterioration in connection with the Demised Premises. Nothing
herein shall imply any duty upon the part of the Lessor to do any such work
which, under any provision of this Lease, the Lessee may be required to perform
and the performance thereof by the Lessor shall not constitute a waiver of the
Lessee's default in failing to perform the same. The Lessor may, during the
progress of any work in the Demised Premises, keep and store upon the Demised
Premises all necessary materials, tools and equipment. The Lessor shall not in
any event be liable for inconvenience, annoyance, disturbance, loss of business,
or other damage of the Lessee by reason of making repairs or the performance or
any work in the Demised Premises, or on account of bringing materials, supplies
and equipment into or through the Demised Premises during the course thereof and
the obligations of the Lessee under this Lease shall not thereby be affected in
any manner whatsoever.
Lessor reserves the right to enter upon the Demised Premises at any
time in the event of an emergency and at reasonable hours to exhibit the Demised
Premises to prospective purchasers or others; and to exhibit the Demised
Premises to prospective Lessees and to the display "For Rent" or similar signs
on windows or doors in the Demised Premises during the last ninety (90) days of
the term of this Lease, ail without hindrance or molestation by Lessee.
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EMINENT DOMAIN:
13. In the event of any eminent domain or condemnation proceeding or
private sale in lieu thereof in respect to the Premises during the term thereof,
the following provision shall apply:
a. If the whole of the Premises shall be acquired or condemned by
eminent domain for any public or quasipublic use or purpose, then the term of
this Lease shall cease and terminate as of the date possession shall be taken in
such proceeding and all rentals shall be paid up to that date.
b. If any part constituting less than the whole of he Premises
shall be acquired or condemned as aforesaid, and in the event that such partial
taking or condemnation shall materially affect the Demised Premises so as to
render the Demised Premises unsuitable for the business of the Lessee, in the
reasonable opinion of Lessor, then the term of this Lease shall cease and
terminate as of the date possession shall be taken by the condemning authority
and rent shall be paid to the date of such termination.
In the event of a partial taking or condemnation of the Premises which
shall not materially affect the Demised Premises so as to render the Demised
Premises unsuitable for the business of the Lessee, in the reasonable opinion of
the Lessor, this Lease shall continue in full force and effect but with a
proportionate abatement of the Base Rent and Additional Rent based on the
portion, if any, of the Demised Premises taken. Lessor reserves the right, at
its option, to restore the Building and the Demised Premises to substantially
the same condition as they were prior to such condemnation. In such event,
Lessor shall give written notice to Lessee, within thirty (30) days following
the date possession shall be taken by the condemning authority, of Lessor's
intention to restore. Upon Lessor's notice of election to restore, Lessor shall
commence restoration and shall restore the Building and the Demised Premises
with reasonable promptness, subject to delays beyond Lessor's control and delays
in the making of condemnation or sale proceeds adjustments by Lessor; and Lessee
shall have no right to terminate this Lease except as herein provided. Upon
completion of such restoration, the rent shall be adjusted based upon the
portion, if any, of the Demised Premises restored.
c. In the event of any condemnation or taking as aforesaid, whether
whole or partial, the Lessee shall not be entitled to any part of the award paid
for such condemnation and Lessor is to receive the full amount of such award,
the Lessee hereby expressly waiving any right to claim to any part thereof.
d. Although all damages in the event of any condemnation shall
belong to the Lessor whether such damages are awarded as compensation for
diminution in value of the leasehold or to the fee of the Demised Premises,
Lessee shall have the right to claim and recover from the condemning authority,
but not from Lessor, such compensation as may be separately awarded or
recoverable by Lessee in Lessee's own right on account of any and all damage to
Lessee's business by reason of the condemnation and for or on account of any
cost or loss to which Lessee might be put in removing Lessee's merchandise,
furniture, fixtures, leasehold improvements
8
and equipment. However, Lessee shall have no claim against Lessor or make any
claim with the condemning authority for the loss of its leasehold estate, any
unexpired term or loss of any possible renewal or extension of said lease or
loss of any possible value of said lease, any unexpired term, renewal or
extension of said Lease.
DAMAGE OR DESTRUCTION:
14. In the event of any damage or destruction to the Premises by fire
or other cause during the term hereof, the following provisions shall apply:
a. If the Building is damaged by fire or any other cause to such
extent that the cost of restoration, as reasonably estimated by Lessor, will
equal or exceed thirty percent (30%) of the replacement value of the Building
(exclusive of foundations) just prior to the occurrence of the damage then
Lessor may, no later than the sixtieth (60th) day following the damage, give
Lessee written notice of Lessor's election to terminate this Lease.
b. If the cost of restoration as estimated by Lessor will equal or
exceed fifty percent (50%) of said replacement value of the Building and if the
Demised Premises are not suitable as a result of said damage for the purposes
for which they are demised hereunder, in the reasonable opinion of Lessee, then
Lessee may, no later than the sixtieth (60th) day following the damage, give
Lessor a written notice of election to terminate this Lease.
c. If the cost of restoration as estimated by Lessor shall amount
to less than thirty percent (30%) of said replacement value of the Building, or
if despite the cost, Lessor does not elect to terminate this Lease, Lessor shall
restore the Building and the Demised Premises with reasonable promptness,
subject to delays beyond Lessor's control and delays in the making of insurance
adjustments by Lessor; and Lessee shall have no right to terminate this Lease
except as herein provided. Lessor shall not be responsible for restoring or
repairing leasehold improvements of the Lessee.
d. In the event of either of the elections to terminate, this Lease
shall be deemed to terminate on the date of the receipt of the notice of
election and all rentals shall be paid up to that date. Lessee shall have no
claim against Lessor for the value of any unexpired term of this Lease.
e. In any case where damage to the Building shall materially affect
the Demised Premises so as to render them unsuitable in whole or in part for the
purposes for which they are demised hereunder, then, unless such destruction was
wholly or partially caused by the negligence or breach of the terms of this
Lease by Lessee, its employees, contractors or licensees, a portion of the rent
based upon the amount of the extent to which the Demised Premises are rendered
unsuitable shall be abated until repaired or restored. If the destruction or
damage was wholly or partially caused by negligence or breach of the terms of
this Lease by Lessee as aforesaid and if Lessor shall elect to rebuild, the rent
shall not ▇▇▇▇▇ and the Lessee shall remain liable for the same, unless such
damage is caused by the direct negligence of Lessor.
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CASUALTY INSURANCE:
15. a. Lessor shall at all times during the term of this Lease, at its
expense, maintain a policy or policies of insurance with premiums paid in
advance issued by an insurance company licensed to do business in the State of
Minnesota insuring the Building against loss or damage by fire, explosion or
other insurable hazards and contingencies for the full replacement value,
provided that Lessor shall not be obligated to insure any furniture, equipment,
machinery, goods or supplies not covered by this Lease which Lessee may bring
upon the Demised Premises or any additional improvements which Lessee may
construct or install on, the Demised Premises.
b. Lessee shall not carry any stock of goods or do anything in or
about the Demised Premises which will in any way impair or invalidate the
obligation of the insurer under any policy of insurance required by this Lease.
▇. ▇▇▇▇▇▇ hereby waives and releases all claims, liabilities and
causes of action against Lessee and its agents, servants and employees for loss
or damage to, or destruction of, the Premises or any portion thereof, including
the buildings and other improvements situated thereon, resulting from fire,
explosion and other perils included in standard extended coverage insurance,
whether caused by the negligence of any of said persons or otherwise. Likewise,
Lessee hereby waives and releases all claims, liabilities and causes of action
against Lessor and its agents, servants and employees for loss or damage to, or
destruction of, any of the improvements, fixtures, equipment, supplies,
merchandise and other property, whether that of Lessee or of others in, upon or
about the Premises resulting from fire, explosion or the other perils included
in standard extended coverage insurance, whether caused by the negligence of any
of said persons or otherwise. The waiver shall remain in force whether or not
Lessee's insurer shall consent thereto.
d. In the event that the use of the Demised Premises by Lessee
increases the premium rate for insurance carried by Lessor on the improvements
of which the Demised Premises are a part, Lessee shall pay Lessor, upon demand,
the amount of such premium increase. If Lessee installs any electrical equipment
that overloads the power lines to the building or its wiring, Lessee shall, at
its own expense, make whatever changes are necessary to comply with the
requirements of the insurance underwriter, insurance rating bureau and
governmental authorities having jurisdiction.
PUBLIC LIABILITY INSURANCE:
16. Lessee shall during the term hereof keep in full force and effect
at its expense a policy or policies of public liability insurance with respect
to the Demised Premises and the business of Lessee, on terms with companies
approved in writing by Lessor, in which both Lessee and Lessor shall be covered
by being named as insured parties under reasonable limits of liability not less
than: $500,000 for injury/death to any one person; $1,000,000 for injury/death
to more than one person, and $500,000 with respect to damage to property. Such
policy or policies shall provide that ten (10) days written notice must be given
to Lessor prior to cancellation thereof. Lessee shall
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furnish evidence satisfactory to Lessor at the time this Lease is executed that
such coverage is in full force and effect.
DEFAULT OF LESSEE:
17. a. In the event of any failure of Lessee to pay any rental due
hereunder within ten (10) days after the same shall be due, or any failure to
perform any other of the terms, conditions or covenants of this Lease to be
observed or performed by Lessee for more than thirty (30) days after written
notice of such failure shall have been given to Lessee, or if Lessee or an agent
of Lessee shall falsify any report required to be furnished to Lessor pursuant
to the terms of this Lease, or if Lessee or any guarantor of this Lease shall
become bankrupt or insolvent, or file any debtor proceedings or any person shall
take or have against Lessee or any guarantor of this Lease in any court pursuant
to any statute either of the United States or of any state a petition in
bankruptcy or insolvency or for reorganization or for the appointment of a
receiver or trustee of all or a portion of Lessee's or any such guarantor's
property, or if Lessee or any such guarantor makes an assignment for the benefit
of creditors or petitions for or enters into an arrangement or if Lessee shall
abandon the Demised Premises or suffer this Lease to be taken under any writ of
execution, then in any such event Lessee shall be in default hereunder and
Lessor, in addition to other rights of remedies it may have, shall have the
immediate right of re-entry and may remove all persons and property from the
Demised Premises and such property may be removed and stored in a public
warehouse or elsewhere at the cost of, and for the account of Lessee, all
without service of notice or resort to legal process and without being guilty of
trespass, or becoming liable for any loss or damage which may be occasioned
thereby.
b. Should Lessor elect to reenter the Demised Premises, as
herein provided, or should it take possession of the Demised Premises pursuant
to legal proceedings or pursuant to any notice provided for by law, it may
either terminate this Lease or it may from time to time, without terminating
this Lease, make such alterations and repairs as may be necessary in order to
relet the Demised Premises, and relet the Demised Premises or any part thereof
such term or terms (which may be for a term extending beyond the term of this
Lease) and at such rental or rentals and upon such other terms and conditions as
Lessor in its sole discretion may deem advisable. Upon each such subletting all
rentals received by the Lessor from such reletting shall be applied first to the
payment of any indebtedness other than rent due hereunder from Lessee to Lessor;
second, to the payment of any costs and expenses of such reletting, including
brokerage fees and attorney's fees and costs of such alterations and repairs;
third, to the payment of the rent due and upon payment of future rent as the
same may become due and payable hereunder. If such rentals received from such
reletting during any month be less than that to be paid during that month by
Lessee hereunder, Lessee upon demand shall pay any such deficiency to Lessor. No
such re-entry or taking possession of the Demised Premises by Lessor shall be
construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Lessee or unless the termination thereof be
decreed by a court of competent jurisdiction. Notwithstanding any such reletting
without termination, Lessor may at any time after such re-entry and reletting
elect to terminate this Lease for any such breach in addition to any other
remedies it may have, it may recover from Lessee all damaged it may incur by
reason of such breach, including the cost of recovering the Demised
11
Premises, reasonable attorney's fees, and including the worth at the time of
such termination of the excess, if any, of the amount of rent and charges
equivalent to ) rent reserved in this Lease for the remainder of the stated term
over the then reasonable rental value of the Demised Premises for the remainder
of the stated term, all of which amounts shall be immediately due and payable
from Lessee to Lessor.
▇. ▇▇▇▇▇▇ may, at its option, instead of exercising any other
rights or remedies available to it in this Lease or otherwise by law, statute or
equity, spend such money as is reasonably necessary to cure any default of
Lessee herein and the amount so spent and costs incurred including attorney's
fees in curing such default, shall be paid by Lessee, as additional rent upon
demand.
d. In the event suit shall be brought for recovery of possession of the
Demised Premises, for the recovery of rent or any other amount due under the
provisions of this Lease, or because of the breach of any other covenant herein
contained on the part of Lessee to be kept or performed and a breach shall be
established, Lessee shall pay to Lessor all expenses incurred therefor including
a reasonable attorney's fee, together with interest on all such expenses at the
rate of twelve percent (12%) per annum from the date of such breach of the
covenants of this Lease.
e. Lessee hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Lessee being
evicted or dispossessed for any cause, or in the event of Lessor obtaining
possession of the Demised Premises, by reason of the violation by Lessee of any
of the covenants or conditions of this Lease, or otherwise. Lessee also waives
any demand for possession of the Demised Premises, and any demand for payment of
rent and any notice of intent to, re-enter the Demised Premises, or of intent to
terminate this Lease, other than the notices above provided in this Article, and
waives any and every other notice or demand prescribed by any applicable
statutes or laws.
f. No remedy herein or elsewhere in this Lease or otherwise by law,
statute or equity, conferred upon or reserved to Lessor or Lessee shall be
exclusive of any other remedy, but shall be cumulative, and may be exercised
from time to time and as often as the occasion may arise.
COVENANTS TO HOLD HARMLESS:
18. Unless the liability for damage or loss is caused by the negligence
of Lessor, its agents or employees, Lessee shall hold harmless Lessor from any
liability for damages to any person or property in or upon the Demised Premises
and the Premises, including the person and the property of Lessee and its
employees and all persons in the Building at its or their invitation or
sufferance, and from all damages resulting from Lessee's failure to perform the
covenants of this Lease. All property kept, maintained or stored on the Demised
Premises shall be so kept, maintained or stored at the sole risk of Lessee.
Lessee agrees to pay all sums of money in respect of any labor, service,
materials, supplies or equipment furnished or alleged to have been furnished to
Lessee in or about the Premises, and not furnished on order of Lessor, which may
be secured by any Mechanic's, Materialmen's or other lien to be discharged at
the time performance of any
12
obligation secured thereby matures, provided that Lessee may contest such lien,
but if such lien is reduced to final judgment and if such judgment or process
thereon is not stayed, or if stayed and said stay expires, then and in each such
event, Lessee shall forthwith pay and discharge said judgment. Lessor shall have
the right to post and maintain on the Demised Premises, notices of
non-responsibility under the laws of the State of Minnesota.
NON-LIABILITY:
19. Subject to the terms and conditions of Article 14 hereof, Lessor
shall not be liable for damage to any property of Lessee or of others located on
the Premises, nor for the loss of or damage to any property of Lessee or of
others by theft or otherwise. Lessor shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain or snow or leaks from any part of the
Premises or from the pipes, appliances, or plumbing works or from the roof,
street or subsurface or from any other place or by dampness or by any other
cause of whatsoever nature. Lessor shall not be liable for any such damage
caused by other Lessees or persons in the Premises, occupants of adjacent
property, of the buildings, or the public or caused by operations in
construction of any private, public or quasi-public work. Lessor shall not be
liable for any latent defect in the Demised Premises. All property of Lessee
kept or stored on the Demised Premises shall be so kept or stored at the risk of
Lessee only and Lessee shall hold Lessor harmless from any claims arising out of
damage to the same, including subrogation claims by Lessee's insurance carrier.
SUBORDINATION:
20. This Lease shall be subordinated to any mortgages that may now
exist or that may hereafter be placed upon the Demised Premises and to any and
all advances made thereunder, and to the interest upon the indebtedness
evidenced by such mortgages, and to all renewals, replacements and extensions
thereof. In the event of execution by Lessor after the date of this Lease of any
such mortgage, renewal, replacement or extension, Lessee agrees to execute a
subordination agreement with the holder thereof which agreement shall provide
that:
a. Such holder shall not disturb the possession and other rights of
Lessee under this Lease so long as Lessee is not in default hereunder.
b. In the event of acquisition of title to the Demised Premises by
such holder, such holder shall accept the Lessee as Lessee of the Demised
Premises under the terms and conditions of this Lease and shall perform the
obligations of Lessor hereunder, and
c. The Lessee shall recognize such holder as Lessor hereunder.
Lessee shall, upon receipt of a request from Lessor therefor, execute
and deliver to Lessor or to any proposed holder of a mortgage or trust deed or
to any proposed purchaser of the Premises, a certificate in recordable form,
certifying that this Lease is in full force and effect, and that there
13
are no offsets against rent nor defenses to Lessee's performance under this
Lease, or setting forth any such offsets or defenses claimed by Lessee, as the
case may be.
ASSIGNMENT OR SUBLETTING:
1. Lessee agrees to use and occupy the Demised Premises throughout the
entire term hereof for the purpose of purposes herein specified and for no other
purposes, in the manner and to substantially the extent now intended and not to
transfer or assign this Lease or sublet said Demised Premises, or any part
thereof, whether by voluntary act, operation of law, or otherwise, without
obtaining the prior consent of Lessor in each instance. Lessee shall seek such
consent of Lessor by a written request therefor setting forth such information
as Lessor may deem necessary. Lessor agrees not to withhold consent
unreasonably. Consent by Lessor to any assignment of this Lease or to any
subletting of the Demised Premises shall not be a waiver of Lessor's rights
under this Article as to any subsequent assignment or subletting. Lessor's
rights to assign this Lease are and shall remain unqualified. No such assignment
or subleasing shall relieve the Lessee from any of Lessee's obligations in this
Lease contained, nor shall any assignment or sublease or other transfer of this
Lease be effective unless the assignee, sublessee or transferee shall at the
time of such assignment, sublease or transfer, assume in writing for the benefit
of Lessor, its successors or assigns, all of the terms, covenants and conditions
of this Lease thereafter to be performed by Lessee and shall agree in writing to
be bound thereby. Should Lessee sublease in accordance with the terms of this
Lease. fifty percent (50%) of any increase in rental received by Lessee over the
per square foot rental rate which is being paid by Lessee shall be forwarded to
and retained by Lessor, which increase shall be in addition to the Base Rent and
Additional Rent due Lessor under this Lease.
ATTORNMENT:
22. In the event of a sale or assignment of Lessor's interest, in the
Premises, or the Building in which the Demised Premises are located, or this
Lease, or if the Premises come into custody or possession of a mortgagee or any
other party whether because of a mortgage foreclosure, or otherwise, Lessee
shall attorn to such assignee or other party and recognize such party as Lessor
hereunder; provided, however, Lessee's peaceable possession will not be
disturbed so long as Lessee faithfully performs its obligations under this
Lease. Lessee shall execute, on demand, any attornment agreement required by any
such party to be executed, containing such provisions and such other provisions
as such party may require.
NOVATION IN THE EVENT OF SALE:
23. In the event of the sale of the Demised Premises, Lessor shall be
and hereby is relieved of all of the covenants and obligations created hereby
accruing from and after the date of sale, and such sale shall result
automatically in the purchaser assuming and agreeing to carry out all the
covenants and obligations of Lessor herein. Notwithstanding the foregoing
provisions of this Article, Lessor, in the event of a sale of the Demised
Premises, shall cause to be included in this agreement of sale and purchase a
covenant whereby the purchaser of the Demised Premises assumes and agrees to
carry out all of the covenants and obligations of Lessor herein.
14
The Lessee agrees at any time and from time to time upon not less than
ten (10) days prior written request by the Lessor to execute, acknowledge and
deliver to the Lessor a statement in writing certifying that this Lease is
unmodified and in full force and effect as modified and stating the
modifications, and the dates to which the basic rent and other charges have been
paid in advance, if any, it being intended that any such statement delivered
pursuant to this paragraph may be relied upon by any prospective purchaser of
the fee or mortgagee or assignee of any mortgage upon the fee of the Demised
Premises.
SUCCESSORS AND ASSIGNS:
24. The terms, covenants and conditions hereof shall be binding upon
and inure to the successors and assigns of the parties hereto.
REMOVAL OF FIXTURES:
25. Notwithstanding anything contained in Article 8, 29 or elsewhere in
this Lease, if Lessor requests then Lessee will promptly remove at the sole cost
and expense of Lessee all fixtures, equipment and alterations made by Lessee
simultaneously with vacating the Demised Premises and Lessee will promptly
restore said Demised Premises to the condition that existed immediately prior to
said fixtures, equipment and alterations having been made all at the sole cost
and expense of Lessee.
QUIET ENJOYMENT:
26. Lessor warrants that it has full right to execute and to perform
this Lease and to grant the estate demised, and that Lessee, upon payment of the
rents and other amounts due and the performance of all the terms, conditions,
covenants and agreements on Lessees part to be observed and performed under this
Lease, may peaceably and quietly enjoy the Demised Premises for the business
uses permitted hereunder, subject, nevertheless, to the terms and conditions of
this Lease.
RECORDING:
27. Lessee shall not record this Lease without the written consent of
Lessor. However, upon the request of either party hereto, the other party shall
join in the execution of the Memorandum lease for the purposes of recordation.
Said Memorandum lease shall describe the parties, the Demised Premises and the
term of the Lease and shall incorporate this Lease by reference. This Article 27
shall not be construed to limit Lessor's right to file this Lease under Article
22 of this Lease.
OVERDUE PAYMENTS:
28. All monies due under this Lease from Lessee to Lessor shall be due
on demand, unless otherwise specified and if not paid when due, shall result in
the imposition of a service
15
charge for such late payment in the amount of ten percent (10%) of the amount
due. Lessor will provide Lessee with written notice as to late payment prior to
any assessment of late charges.
SURRENDER:
29. On the Expiration Date or upon the termination hereof upon a day
other than the Expiration Date, Lessee shall peaceably surrender the Demised
Premises broom-clean in good order, condition and repair, reasonable wear and
tear only excepted. On or before the Expiration Date or upon termination of this
Lease on a day other than the Expiration Date, Lessee shall, at its expense,
remove all trade fixtures, personal property and equipment and signs from the
Demised Premises and any property not removed shall be deemed to have been
abandoned. Any damage caused in the removal of such items shall be repaired by
Lessee and at its expense. All alterations, additions, improvements and fixtures
(other than trade fixtures) which shall have been made or installed by Lessor or
Lessee upon the Demised Premises and all floor covering so installed shall
remain upon and be surrendered with the Demised Premises as a part thereof,
without disturbance, molestation or injury, and without charge, at the
expiration or termination of this Lease. If the Demised Premises are not
surrendered on the Expiration Date or the date of termination, Lessee shall
indemnify Lessor against loss or liability, claims, without limitation, made by
any succeeding Lessee founded on such delay. Lessee shall promptly surrender all
keys for the Demised Premises to Lessor at the place then fixed for payment of
rent and shall inform Lessor of combinations of any locks and safes on the
Demised Premises.
HOLDING OVER:
30. In the event of a holding over by Lessee after expiration or
termination of this Lease without the consent in writing of Lessor, Lessee shall
be deemed a lessee at sufferance and shall pay rent for such occupancy at the
rate of 1 1/2 times the last current aggregate Base and Additional Rent,
prorated for the entire holdover period, plus all attorney's fees and expenses
incurred by Lessor in enforcing its rights hereunder, plus any other damages
occasioned by such holding over. Except as otherwise agreed, any holding over
with the written consent of Lessor shall constitute Lessee a month-to-month
lessee.
ABANDONMENT:
31. In the event Lessee shall remove its fixtures, equipment or
machinery or shall vacate the Demised Premises or any part thereof prior to the
Expiration Date of this Lease, or shall discontinue or suspend the operation of
its business conducted on the Demised Premises for a period of more than thirty
(30) consecutive days (except during any time when the Demised Premises may be
rendered untenantable by reason of fire or other casualty), then in any such
event Lessee shall be deemed to have abandoned the Demised Premises and Lessee
shall be in default under the terms of this Lease.
16
CONSENTS BY LESSOR:
32. Whenever provision is made under this Lease for Lessee securing the
consent or approval by Lessor, such consent or approval shall only be in
writing.
NOTICES:
33. Any notice required or permitted under this Lease shall be deemed
sufficiently given or secured if sent by registered or certified return receipt
mail to Lessee at ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and to
Lessor at the address then fixed for the payment of rent as provided in Article
4 of this Lease, and either party may by like written notice at any time
designate a different address to which notices shall subsequently be sent or
rent to be paid.
RULES AND REGULATIONS:
34. Lessee shall observe and comply with the rules and regulations
hereinafter set forth in "Exhibit C", and with such further reasonable rules and
regulations as Lessor may prescribe, on written notice to Lessee for the safety,
care and cleanliness of the Building.
INTENT OF PARTIES:
35. Except as otherwise provided herein, the Lessee covenants and
agrees that if it shall any time fail to pay any such cost or expense, or fail
to take out, pay for, maintain or deliver any of the insurance policies above
required, or fail to make any other payment or perform any other act on its part
to be made or performed as in this Lease provided, then the Lessor may, but
shall not be obligated so to do, and without notice to or demand upon the Lessee
and without waiving or releasing the Lessee from any obligations of the Lessee
in this Lease contained, pay any such cost or expense, effect any such insurance
coverage and pay premiums therefor, and may make any other payment or perform
any other act on the part of the Lessee to be made and performed as in this
Lease provided, in such manner and to such extent as the Lessor may deem
desirable, and in exercising any such right, to also pay all necessary and
incidental costs and expenses, employ counsel and incur and pay reasonable
attorneys' fees. All sums so paid by Lessor and all necessary and incidental
costs and expenses in connection with the performance of any such act by the
Lessor, together with interest thereon at the rate of twelve percent (12%) per
annum from the date of making of such expenditure, by Lessor, shall be deemed
additional rent hereunder, and shall be payable to Lessor on demand. Lessee
covenants to pay any such sum or sums with interest as aforesaid and the Lessor
shall have the same rights and remedies in the event of the non-payment thereof
by Lessee as in the case of default by Lessee in the payment of the Base Rent
payable under this Lease.
17
GENERAL:
36. The Lease does not create the relationship of principal and agent
or of partnership or of joint venture or of any association between Lessor and
Lessee, the sole relationship between the parties hereto being that of Lessor
and Lessee.
No waiver of any default of Lessee hereunder shall be implied from any
omission by Lessor 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. One or more waivers by Lessor shall not then be
construed as a waiver of a subsequent breach of the same covenant, term of
condition. The consent to or approval by Lessor of any act by Lessee requiring
Lessor's consent or approval shall not waive or render unnecessary Lessor's
consent to or approval of any subsequent similar act by Lessee shall be
construed to be both a covenant and a condition. No action required or permitted
to be taken by or on behalf of Lessor under the terms or provisions of this
Lease shall be deemed to constitute an eviction or disturbance of Lessee's
possession of the Demised Premises. All preliminary negotiations are merged into
and incorporated in this Lease. The laws of the State of Minnesota shall govern
the validity, performance and enforcement of this Lease.
a. This Lease and the exhibits, if any, attached hereto and
forming a part hereof, constitute the entire agreement between Lessor and Lessee
affecting the Demised Premises and there are no other agreements, either oral or
written, between them other than are herein set forth. No subsequent alteration,
amendment, change or addition to this Lease shall be binding upon Lessor or
Lessee unless reduced to writing and executed in the same form and manner in
which this Lease is executed.
b. If any agreement, covenant or condition of this Lease or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such agreement, covenant or condition to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and each agreement, covenant or condition of this Lease shall be valid
and be enforced to the fullest extent permitted by law.
HAZARDOUS MATERIAL:
37. a. The Premises hereby leased shall be used by and/or at the
sufferance of Lessee only for the purpose set forth in Article 11 above and for
no other purposes. Lessee shall not use or permit the use of the Premises in any
manner that will tend to create waste or a nuisance, or will tend to
unreasonably disturb other Lessees in the Building or the Project. Lessee, its
employees and all persons visiting or doing business with Lessee in the Premises
shall be bound by and shall observe the Building Rules and Regulations attached
to this Lease as Exhibit "C", and such further and other reasonable rules and
regulations made hereafter by Lessor relating to the Premises, the
18
Building or the Project of which notice in writing shall be given to the Lessee,
and all such rules and regulations shall be deemed to be incorporated into and
form a part of this Lease.
b. Lessee covenants throughout the Lease Term, at Lessee's
sole cost and expense, promptly to comply with all laws and ordinances and the
orders, rules and regulations and requirements of all federal, state and
municipal governments and appropriate departments, commissions, boards, and
officers thereof, and the orders, rules and regulations of the Board of Fire
Underwriters where the Premises are situated, or any other body now or hereafter
well as extraordinary, and whether or not the same require structural repairs or
alterations, which may be applicable to the Premises, or the use or manner of
use of the Premises. Lessee will likewise observe and comply with the
requirements of all policies of public liability, fire and all other policies of
insurance at any time in force with respect to the buildings and improvements on
the Premises and the equipment thereof.
c. In the event any Hazardous Material (hereinafter defined)
is brought or caused to be brought into or onto the Premises, the Building or
the Project by Lessee, Lessee shall handle any such material in compliance with
all applicable federal, state and/or local regulations. For purposes of this
Article, "Hazardous Material" means and includes any hazardous, toxic or
dangerous waste, substance or material defined as such in (or for purposes of)
the Comprehensive Environmental Response, Compensation, and Liability Act any
so-called "Superfund" or "Superlien" la, or any federal, state or local statute,
law, ordinance, code, rule, regulation, order decree regulating, relating to, or
imposing liability or standards of conduct concerning, any hazardous, toxic, or
dangerous waste, substance or material, as now or at any time hereafter in
effect. Lessee shall submit to Lessor on an annual basis copies of its approved
hazardous materials communications plan, OSHA monitoring plan, and permits
required by the Resource Recovery and Conservation Act of 1976, if Lessee is
required to prepare, file or obtain any such plans or permits. Lessee will
indemnify and hold harmless Lessor from any losses, liabilities, damages, costs
or expenses (including reasonable attorneys' fees) which Lessor may suffer or
incur as a result of Lessee's introduction into or onto the Premises of any
Hazardous Material. This Article shall survive the expiration or sooner
termination of this Lease.
CAPTIONS:
38. The captions are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of this Lease nor
the intent or any provision thereof.
EXHIBITS:
39. Reference is made to Exhibits A, B, D and E inclusive, which
Exhibits are attached hereto and made a part hereof.
19
Exhibit Description
Exhibit A Legal Description
Exhibit B Demised Premises
Exhibit D Improvements
Exhibit E Space Plan
40. Submission of this instrument to Lessee or proposed Lessee or his
agents or attorneys for examination, review, consideration or signature does not
constitute or imply an offer to lease, reservation of space, or option to lease,
and this instrument shall have no binding legal effect until execution hereof by
both Lessor/Owner and Lessee or its agents.
41. It is agreed and understood that ▇▇▇▇ ▇▇▇▇▇▇▇, agent or broker with
Welsh Companies, Inc., is representing First Wisconsin National Bank of
Milwaukee, Wisconsin, Lessor, and ▇▇▇ ▇▇▇▇▇▇▇, agent or broker with Welsh
Companies, Inc., is representing Amcom Corporation, Lessee.
[SEE ALSO THE RIDER ATTACHED HERETO AND MADE A PART HEREOF, AND
CONTAINING ARTICLES 42 THROUGH 46, INCLUSIVE]
IN WITNESS WHEREOF, the Lessor and Lessee have caused these presents to
be executed in form and manner sufficient to bind them at law, as of the day and
year first above written.
Lessee: Lessor:
AMCOM CORPORATION FIRST WISCONSIN NATIONAL BANK
(A Minnesota Corporation) OF MILWAUKEE, WISCONSIN
/s/ Del ▇. ▇▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇▇ Price
------------------------------- -------------------------------
By: Del ▇. ▇▇▇▇▇▇▇ By: ▇. ▇▇▇▇▇▇▇ Price
Its: CEO Its: Its Assistant Vice President
20
RIDER TO LEASE DATED APRIL 6, 1990
BY AND BETWEEN
FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE,
WISCONSIN, AS LESSOR
AND
AMCOM CORPORATION (A MINNESOTA CORPORATION),
AS LESSEE
42. The following is hereby added to and made a part of Article 2, Base
Rent, and Article 3, Additional Rent of this Lease:
Period Monthly Base Rent Total Period Base Rent
August 1, 1990 through and
including July 31, 1991 $ 0.00 $ 0.00
August 1, 1991 through and
including July 31, 1993 $10,516.00 $252,384.00
August 1, 1993 through and
including July 31, 1995 $12,619.00 $302,856.00
-----------
Total $555,240.00
All other terms and conditions of this Lease, including Additional Rent
shall be in full force and effect August 1, 1990.
43. Option to Extend Lease Term:
A. Provided Lessee is not in default hereunder and has performed all of
its covenants and obligations hereunder, Lessee shall have the option
to extend the Term of this Lease (hereinafter, the "Option") for two
distinct periods. The first option period is for one consecutive period
of two (2) years upon the same terms and conditions, except for Base
Rent, which shall be at the prevailing market rates for comparable
buildings at the time and upon the following further terms and
conditions outlined in B, C, and D. The second option period is for one
consecutive period of two (2) years and may be exercised only after the
first two (2) year option has been exercised. This two year option
shall be based upon the same terms and conditions, except for Base
Rent, which shall be at the prevailing market rates for comparable
buildings at the time and upon the following further terms and
conditions.
B. Lessee shall exercise said Option only by giving written notice to
Lessor not later than One Hundred Eighty (180) Days prior to the Lease
expiration date. Thereafter, Lessor shall advise the Lessee within 10
business days, of the Base Rent for the Option Period, and Lessee shall
then have 10 business days within which to revoke in writing its
exercise of the Option.
21
C. It is understood and agreed that this Option is personal to Amcom
Corporation and is not transferable; in the event of any assignment or
subleasing of any or all of the Demised Premises said Option shall be
null and void.
44. Moving Allowance:
To help defray the costs of Lessee's move into the Demised Premises,
Lessor agrees to make available to Lessee a moving allowance of
$19,117.00. Said moving allowance shall be payable to Lessee upon
Lessee's occupancy of the Demised Premises and Lease Commencement.
45. First Opportunity to Lease Additional Space:
A. Provided Lessee is not in default and has performed all of its
obligations hereunder, Lessee shall have the first opportunity to lease
such other [contiguous] space in the Building as it becomes available
for leasing during the Term (the "First Opportunity") for a term
coterminous with this Lease and, at the rental rates and upon such
other terms and conditions, other than rent-free periods, as are then
being offered by Lessor to the general public for such space
B. Upon notification in writing by Lessor that such space is available,
Lessee shall have ten business days in which to elect in writing so to
lease such space, in which event the lease for same shall commence not
more than thirty days after such space becomes vacant and shall be
coterminous with this Lease.
C. It is understood that this First Opportunity shall not be construed
to prevent any tenant in the Building from extending or renewing its
lease.
D. The First Opportunity hereby granted is personal to Amcom
Corporation and is not transferable; in the event of any assignment or
subletting under this Lease, this first opportunity shall automatically
terminate and shall thereafter be null and void.
46. Submission of this instrument to Lessee or proposed Lessee or his
agents or attorneys for examination, review, consideration or signature
does not constitute or imply an offer to lease, reservation of space,
or option to lease, and this instrument shall have no binding legal
effect until execution hereof by both Lessor/Owner and Lessee or its
agents.
LESSEE: LESSOR:
AMCOM CORPORATION FIRST WISCONSIN NATIONAL OF
(A MINNESOTA CORPORATION) OF MILWAUKEE, WISCONSIN
BY: _____________________________ BY: _____________________________
ITS: ____________________________ ITS: ____________________________
DATE: ___________________________ DATE: ___________________________
22
EXHIBIT A
▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇ (▇), ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------------------------------------------------
EXHIBIT B
FLOOR PLAN
--------------------------------------------------------------------------------
EXHIBIT D
LEASEHOLD IMPROVEMENTS
Lessor will provide Lessee, at its sole cost and expense, the Leasehold
Improvements as referenced in EXHIBIT E, Plans and Specifications Approved and
signed by Lessee.
23
1994 LEASE AMENDMENT #1
PROPERTY: WESTWOOD BUSINESS CENTER
EDEN PRAIRIE, MN
LANDLORD: 600 PROPERTIES, a Minnesota general partnership
(Successor to First Wisconsin National Bank of Milwaukee}
TENANT: AMCOM CORPORATION (a Minnesota corporation)
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a Lease dated April 6, 1990,
which Lease was amended on August 28, 1990, and March 14, 1991, copies of which
are attached hereto and made a part hereof, and WHEREAS, Landlord and Tenant
desire to further amend the Lease, the parties agree as follows:
1. Tenant agrees to lease an additional 3,173 square feet, located
adjacent to and south of the existing premises, known as ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, further described on Exhibit A, attached hereto.
2. The term for this space shall begin April 1, 1994, and end July 31,
1999.
3. The additional Base Rent shall be at the rate of $6.00 per square foot
per year, equal to $1,586.50 per month. The additional operating
expense rent shall be added pro rata on a per square foot basis,
according to the Lease.
4. Tenant agrees to take the premises "as is" and shall perform any work
required by it for its occupancy.
5. All the other terms and conditions of the Lease shall remain in full
force and effect, as applicable.
TENANT: LANDLORD:
AMCOM CORPORATION 600 PROPERTIES
By /s/ Del ▇. ▇▇▇▇▇▇▇ By /s/ C. ▇▇▇ ▇▇▇▇
---------------------------------- ----------------------------------
Del ▇. ▇▇▇▇▇▇▇ C. ▇▇▇ ▇▇▇▇
Its Chief Executive Officer Its Partner
Dated: March 30, 1994 Dated: March 30, 1994
1994 LEASE AMENDMENT #1
PROPERTY: WESTWOOD BUSINESS CENTER
EDEN PRAIRIE, MN
LANDLORD: 600 PROPERTIES, a Minnesota general partnership
(Successor to First Wisconsin National Bank of Milwaukee}
TENANT: AMCOM CORPORATION (a Minnesota corporation)
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a Lease dated April 6, 1990,
which Lease was amended on August 28, 1990, and March 14, 1991, copies of which
are attached hereto and made a part hereof, and WHEREAS, Landlord and Tenant
desire to further amend the Lease, the parties agree as follows:
1. Tenant agrees to lease an additional 3,173 square feet, located
adjacent to and south of the existing premises, known as ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, further described on Exhibit A, attached hereto.
2. The term for this space shall begin April 1, 1994, and end July 31,
1999.
3. The additional Base Rent shall be at the rate of $6.00 per square foot
per year, equal to $1,586.50 per month. The additional operating
expense rent shall be added pro rata on a per square foot basis,
according to the Lease.
4. Tenant agrees to take the premises "as is" and shall perform any work
required by it for its occupancy.
5. All the other terms and conditions of the Lease shall remain in full
force and effect, as applicable.
TENANT: LANDLORD:
AMCOM CORPORATION 600 PROPERTIES
By /s/ Del ▇. ▇▇▇▇▇▇▇ By /s/ C. ▇▇▇ ▇▇▇▇
---------------------------------- ----------------------------------
Del ▇. ▇▇▇▇▇▇▇ C. ▇▇▇ ▇▇▇▇
Its Chief Executive Officer Its Partner
Dated: March 30, 1994 Dated: March 30, 1994
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease, dated March 5, 1991, between Amcom
Corporation (a Minnesota Corporation) (as Lessee), and First Wisconsin National
Bank of Milwaukee (as Lessor).
On April 6, 1990, Lessee and First Wisconsin National Bank of Milwaukee
entered into a Lease Agreement for approximately 19,117 square feet at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
The Lessee hereby wants to expand this space, and Lessor agrees to
lease such additional space, subject to the following terms and conditions:
1. Lessor agrees to lease and Lessee does lease and take from Lessor
approximately 3,354 additional square feet located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. The term for this expansion space shall begin March 1, 1991 and shall
continue through July 31, 1995.
3. The base monthly rental rate for this expansion space will be:
March 1, 1991 - December 31, 1991 $0.00
January 1, 1992 - December 31, 1992 $838.50 or 3.00 psf
January 1, 1993 - December 31, 1993 $922.35 or 3.50 psf
January 1, 1994 - December 31, 1994 $1118.00 or 4.00 psf
January 1, 1995 - July 31, 1995 $l537.25 or 5.50 psf
Common Area Maintenance, taxes and insurance will be based on your
pro-rata share of the building, and are due upon commencement date of
this expansion.
4. Lessor will contribute $1,000.00 to tenant improvements and
construction costs. All other improvement costs will be at Lessee's
sole expense.
5. Unless specifically provided for in this Second Amendment to Lease, all
terms and conditions of the Lease shall apply to the original Lease and
shall remain in full force and effect.
AMCOM Corporation First Wisconsin National of
(a Minnesota Corporation) of Milwaukee, Wisconsin
By: _____________________________ By: _____________________________
Its: ____________________________ Its: ____________________________
Date: ___________________________ Date: ___________________________
AMENDMENT # 1
TO LEASE DATED April 6, 1990 BY AND BETWEEN
First Wisconsin National Bank of Milwaukee, AS LESSOR
AND Amcom Corporation (a Minnesota Corporation), AS LESSEE
THIS AMENDMENT TO LEASE, entered into and made as of the 13th day of
August, 1990, by and between First Wisconsin National Bank of Milwaukee, as
Lessor and Amcom Corporation (a Minnesota Corporation), as Lessee.
WITNESSETH:
WHEREAS, Lessor and Lessee have heretofore entered into a certain
lease, dated April 6, 1990 (the "Lease"), of a certain space at ▇▇▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Premises"), upon terms and conditions
described in said Lease; and
WHEREAS, Lessor and Lessee desire to amend said lease as described
below:
NOW THEREFORE, in consideration of the rents reserved and of the
covenants and agreements herein set forth, it is agreed that the Lease be hereby
amended from and after the date hereof as follows:
Term: The Term of the Lease shall be changed from 60 months to 59
months and 15 days; the Commencement Date shall be changed from August 1, 1990,
to August 17, 1990.
Except as is hereinabove set forth, all terms, provisions and covenants
of the Lease shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date and year first above written.
LESSEE: LESSOR:
AMCOM CORPORATION FIRST WISCONSIN NATIONAL OF
(A MINNESOTA CORPORATION) OF MILWAUKEE, WISCONSIN
BY: _____________________________ BY: _____________________________
ITS: ____________________________ ITS: ____________________________
DATE: ___________________________ DATE: ___________________________
1994 LEASE AMENDMENT #2
PROPERTY: WESTWOOD BUSINESS CENTER, EDEN PRAIRIE, MN
LANDLORD: 600 PROPERTIES, a Minnesota general partnership
(Successor to First Wisconsin National Bank of Milwaukee)
TENANT: AMCOM CORPORATION (a Minnesota corporation)
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a Lease dated April 6, 1990,
which Lease was amended on August 28, 1990, March 14, 1991, and March 30, 1994,
copies of which are attached hereto and made a part hereof, and WHEREAS,
Landlord and tenant desire to further amend the Lease, the parties agree as
follows:
1. Landlord and Tenant agree to extend the Term of the Lease for 4 years, from
July 31, 1995, to July 31, 1999. (Total area consists of 22,471 square feet
leased prior to 1994, plus the 3,173 square feet added by the 1994 LEASE
AMENDMENT #1, for a total area of 25,644 square feet.)
2. New Base Rent, commencing August 1, 1995, shall be as follows:
----------------- --------------- ---------------- --------------- ---------------- ---------------
Rate PSF Monthly Monthly TOTAL
on 22,472 Base Rent Base Rent MONTHLY
Starting Through sq. ft. 22,471 sq. ft. 3,173 sq. ft. BASE RENT
----------------- --------------- ---------------- --------------- ---------------- ---------------
8/1/95 7/31/96 $5.45 $10,205.58 $1,586,50 $11,792.08
8/1/96 7/31/97 $5.65 $10,580.10 $1,586.50 $12,166.60
8/1/97 7/31/98 $5,85 $10,954.61 $1,586.50 $12,541.11
8/1/98 7/31/99 $6.05 $11,329.13 $1,586.50 $12,915.63
----------------- --------------- ---------------- --------------- ---------------- ---------------
3. Paragraph 43 of the Rider To Lease (relating to an option to extend) shall be
deleted. Tenant, provided it is not in default, shall have an OPTION TO EXTEND
the lease for 2 additional periods of 2 years each, upon at least 6 months'
prior written notice to Landlord. This option is personal to Amcom, and is not
transferable to any assignee or subtenant. Base Rent during the option periods
shall be as follows:
Lease year Starting Base Rent Per Square Foot
1 8/1/99 $6.30 times applicable square feet
2 8/1/00 $6.50 "
1 8/1/01 $6.70 "
2 8/1/02 $6.90 "
4. All the other terms and conditions of the Lease shall remain in full
force and effect, as applicable.
TENANT: AMCOM CORPORATION LANDLORD: 600 PROPERTIES
By /s/ Del ▇. ▇▇▇▇▇▇▇ By /s/ C. ▇▇▇ ▇▇▇▇
---------------------------------- ----------------------------------
Del ▇. ▇▇▇▇▇▇▇, Chief Executive Officer C. ▇▇▇ ▇▇▇▇, Partner
Dated: March 30, 1994 Dated: March 30, 1994
1994 LEASE AMENDMENT #3
PROPERTY: WESTWOOD BUSINESS CENTER
EDEN PRAIRIE, MN
LANDLORD: 600 PROPERTIES, a Minnesota general partnership
(Successor to First Wisconsin National Bank of Milwaukee)
TENANT: AMCOM CORPORATION (a Minnesota corporation)
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a Lease dated April 6, 1990,
which Lease was amended on August 28, 1990, March 14, 1991, March 30, 1994, and
March 30, 1994, copies of which are attached hereto and made a part hereof, and
WHEREAS, Landlord and Tenant desire to further amend the Lease, the parties
agree as follows:
1. When, as and if it becomes available, during the term of Tenant's Lease,
Tenant agrees to lease as additional space the approximately 9,286 square feet
of space adjacent to and south of the existing premises, known as ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, further described on Exhibit A attached hereto.
2. Depending on when such space becomes available, the additional Base
Rent shall apply as follows:
----------------------------- ----------------------------- ---------------------------- ----------------------------
Rate PSF on TOTAL MONTHLY
Starting Through 9,286 sq. ft. BASE RENT
----------------------------- ----------------------------- ---------------------------- ----------------------------
Now 7/31/96 $5.50 $4,256.08
8/1/96 7/31/97 5.70 4,410.85
8/1/97 7/31/98 5.90 4,565.62
8/1/98 7/31/99 6.10 4,720.38
----------------------------- ----------------------------- ---------------------------- ----------------------------
If during the option periods:
8/1/99 7/31/00 6.30 4,875.15
8/1/00 7/31/01 6.50 5,029.92
8/1/01 7/31/02 6.70 5,184.68
8/1/02 7/31/03 6.90 5,339.45
----------------------------- ----------------------------- ---------------------------- ----------------------------
3. Tenant agrees to take the premises "as is," and shall perform any work
required by it for its occupancy. The additional Base Rent shall begin 15 days
after the premises are vacated by the existing tenant. The additional operating
expense rent shall be added pro rata on a per square foot basis, according to
the Lease.
4. All the other terms and conditions of the Lease shall remain in full force
and effect, as applicable.
TENANT: LANDLORD:
AMCOM CORPORATION 600 PROPERTIES
By ______________________________ By ____________________________
Dated: March 30, 1994 Dated: March 30, 1994