Exhibit 10.37
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is entered into between Landlord and Tenant, each
as defined below in Section 1.
1. THE PARTIES
Landlord's Name and ▇▇▇▇▇▇▇ Operating Associates, Limited Partnership
type of entity: By BGK ▇▇▇▇▇▇▇ LLC, its General Partner
Landlord' Addresses
for Notices: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
Landlord's Payment C/O Frauenshuh Companies
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇. ▇▇▇▇▇
Tenant's Name and Nextel WIP Lease Corporation,
type of entity: a Delaware Corporation
Tenant's Address Nextel WIP Lease Corporation
for Notices: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
Nextel Partners, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
2. DEFINITIONS AND BASIC TERMS
The following definitions and basic terms shall have the indicated meanings when
used in this Lease:
a. Building: The building known as Bren Road East I located
or to be located on the land described on
Exhibit "A" attached hereto and whose street
address is 10901- ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
b. Premises: Suite No. 10901 in the Building. The Premises
are outlined on the plan attached to the Lease
as Exhibit "B".
c. Property: The Building, the parcel of land upon which the
Building is situated and any other improvements
located thereon.
d. Tenant's Rentable
Square Feet: 12,684
e. Total Rentable Square
Feet in the Building: 73,529
f. Tenant's Proportionate
Share: 17.25 % which is the percentage obtained by
dividing (i) Tenant's Rentable Square Feet by
(ii) the total Rentable Square Feet in the
Building.
g. Scheduled
Commencement Date: April 1,1999
h. Commencement Date: The Commencement Date is defined in Section 4.
i. Term: Thirty-six (36) months, commencing on the
Commencement Date subject to adjustment and
earlier termination as provided in the Lease.
j. Base Rent: Lease Years Monthly Annual
Base Rent Base Rent
4/1/99 through 3/31/2000 $ 9,777.25 $117,327.00
4/1/00 through 3/31/2001 $10,070.57 $120,846.81
4/1/01 through 3/31/2002 $10,372.68 $124,472.21
k. Additional Rent: Additional Rent is defined in Section 6.
l. Rent: Base Rent, Additional Rent and all other sums
that Tenant may owe to Landlord under this
Lease.
m. Security Deposit: $ None
n. Expense Stop/
Base Year: Intentionally Omitted
o. Permitted Use: Tenant may use the Premises for all lawful
purposes in connection with its business of
operating a wireless communications company
including without limitation, general office
use, sales of wireless service and equipment
used in its business.
p. Property Management
Company/Address: Frauenshuh Companies
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
q. Guarantor(s)
(name and address): Intentionally Omitted
r. Parking Spaces: thirty-four (34) unassigned, unreserved parking
spaces
3. LEASE OF PREMISES
Landlord, in consideration of the Rent to be paid and the covenants and
agreements to be performed by Tenant, does hereby lease unto Tenant the
Premises, together with the non-exclusive right and easement to use the
parking, if any, and any other common facilities in or on the Building and
the Property (including, without limitation, the driveways, sidewalks,
loading and unreserved parking areas, lobbies and hallways) which may from
time to time be furnished by Landlord, in common with Landlord and the
tenants and occupants of the Building, and their respective agents,
employees, customers and invitees; subject however to reasonable
restrictions by Landlord as to the use of the foregoing.
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4. TERM
The Commencement Date shall be the later of:
a. the Scheduled Commencement Date or;
b. the date of substantial completion of the Premises by Landlord, as
defined below; provided the Commencement Date shall not be extended
for delays which are due to (x) special changes or additions
required by Tenant; (y) delays of Tenant in submitting plans or
specifications, supplying information, giving authorization, or (z)
any default or other delay caused solely by Tenant (collectively,
"Tenant Delays"). Subject to an inspection of the Premises prior to
taking possession, the Tenant shall be bound by a written
certification by Landlord as to the date that the Premises are ready
for occupancy by the Tenant and, in the event that there are Tenant
Delays, the Landlord's architect shall determine in its reasonable
discretion the date that the Premises would have been ready for
occupancy but for such Tenant Delays.
If the Commencement Date is not the first day of a calendar month,
then the Term shall be extended by the time between the Commencement
Date and the first day of the next month. If this Lease is executed
before the Premises become vacant or otherwise available and ready
for occupancy by Tenant, or if any present occupant of the Premises
holds over and Landlord cannot acquire possession of the Premises
before the Commencement Date, then (a) Landlord shall not be in
default hereunder or be liable for damages therefore and (b) Tenant
shall accept possession of the Premises when Landlord tenders
possession thereof to Tenant. Notwithstanding the foregoing, by
occupying the Premises, Tenant shall be deemed to have accepted the
Premises in their condition as of the date of such occupancy, and
the Commencement Date shall be the date of such occupancy. Tenant
shall execute and deliver to Landlord, within ten days after
Landlord has requested same, a letter confirming (i) the
Commencement Date, (ii) that Tenant has accepted the Premises, and
(iii) that Landlord has performed all of its obligations with
respect to the Premises (except for punch-list items specified in
such letter). The term "substantial completion" (or "substantially
complete") as used in the Lease means the date when the Premises are
ready for occupancy by Tenant, subject to completion of minor
details of construction or minor mechanical adjustments that do not
materially interfere with Tenant's occupancy.
5. PAYMENT OF RENT
a. Payment. Tenant shall timely pay to Landlord, without demand
deduction, abatement or offset (except as otherwise expressly set
forth herein), the Base Rent, Additional Rent and all other rent at
Landlord's Payment Address. Base Rent shall be payable monthly in
advance in United States dollars.
The first monthly installment of Base Rent shall be due and payable
contemporaneously with the execution of this Lease; thereafter,
monthly installments of Base Rent shall be due on the first day of
the second full calendar month of the Term and continuing thereafter
on the first day of each succeeding calendar month during the Term.
Base Rent for any fractional month shall be prorated based on 1/365
of the current annual Base Rent for each day of the partial month
this Lease is in effect. If the Commencement Date does not fall on
the first (1st) day of a month, Base Rent for the fractional month
shall be due on the Commencement Date.
b. Late Payments. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent and other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges,
and late charges which may be imposed on Landlord by the terms of
any mortgage or Deed of Trust, covering the premises. Accordingly,
if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within five (5)
days after such amount shall be due, Tenant shall pay to Landlord a
late charge equal to 10% of such overdue amount or the maximum
allowed by law. Acceptance of such late charge by Landlord shall in
no event constitute a waiver of Tenant's default with respect to
such overdue amount, nor prevent Landlord from exercising any of the
other rights and remedies granted hereunder.
c. Tenant shall also pay to Landlord monthly as additional rent without
demand any rent tax,
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sales tax or other tax (other than Landlord's income tax) which may
be levied by any authorized governmental authority against the Base
Monthly Rent or any additional rent payable to Landlord under this
Lease.
d. Landlord may from time to time designate a lock box collection agent
for the collection of rents or other charges due Landlord. In such
event, the date of payment shall be the date of receipt by the lock
box collection agent of such payment (or the date of collection of
any such sum if payment is made in the form of a negotiable
instrument thereafter dishonored upon presentment); however, for the
purposes of this Lease, no such payment or collection shall be
deemed "accepted" by Landlord if an Event of Default shall have
occurred, and if Landlord thereafter remits a check payable to
Tenant in the amount received by the lock box collection agent
within twenty one (21) days after the amount sent by Tenant is
received by the lock box collection agent or, in the case of a
dishonored instrument, within twenty one (21) days after collection.
Neither the negotiation of Tenant's negotiable instrument by the
lock box collection agent, nor the possession of the funds by
Landlord during the twenty one (21) day period, nor the return of
any such sum to Tenant shall be deemed to be inconsistent with the
rejection of Tenant's tender of such payment (or collection), nor
shall any of such events be deemed to be a waiver of any breach by
Tenant of any terms, covenant or condition of this Lease nor a
waiver of any Landlord's rights or remedies.
6. ADDITIONAL RENT
a.) TAXES, INSURANCE AND ASSESSMENTS: As additional rent, Tenant shall
pay to Landlord on the first day of each month 1/12 Tenant's pro
rata share of the estimated real property tax on the leased premises
for the current year plus 1/12 Tenant's pro rata share of the
current premium for any liability or casualty insurance carried by
Landlord on the leased premises. If the actual property tax and
insurance is greater than that estimated by Landlord, Tenant shall
pay the excess amount within thirty (30) days after billing by
Landlord. If the actual real property tax and insurance is less than
that estimated by Landlord, Landlord shall refund the overpayment to
Tenant within thirty (30) days after payment of the tax and/or
insurance by Landlord. As used in this paragraph, "real property
tax" shall mean any form of assessment (both general and special),
levy, penalty, or tax (other than estate or inheritance tax) imposed
by any authority having direct or indirect power to tax any legal or
equitable interest of Landlord in the leased premises, including any
tax on rent (other than income tax) in lieu of or in addition to
normal real property taxes or assessments. Any such ▇▇▇▇▇▇▇▇ by
Landlord to Tenant that is not paid within 30 days shall bear
interest at 15% per annum. Owner shall have the exclusive right, but
not the obligation, to contest or appeal any assessment of Real
Estate Taxes levied on the Property by any governmental or
Quasigovernmental taxing agency.
The Tenant shall be responsible for the filing of all Personal
Property tax returns and the payment of taxes thereon, on all
contents and/or fixtures owned by the Tenant, that are considered
Personal Property by the Taxing authority or authorities having
jurisdiction over leased premises.
Tenant shall pay all sales and use taxes, other than those taxes
imposed upon the rents received by the Landlord hereunder.
In the case of non-payment by Tenant of any of the above taxes and
assessments, Landlord may at its option, recover from Tenant such
sums or elect to hold Tenant in default under the term of this lease
and exercise any or all remedies as indicated herein or permitted by
law. The fact that the Landlord may fail to ▇▇▇▇ the Tenant, under
the terms of this agreement, shall not constitute a waiver of
payment by the Tenant to the Landlord for future years or the year
omitted.
b.) COMMON AREA: i.) The "Common Area" is part of the property
designated by Landlord from time to time for the common use of all
Tenants, including among other facilities, parking area, sidewalks,
landscaping, curbs, loading areas, private streets, alleys, lighting
facilities, signs and other areas and improvements provided by
Landlord for the common use of all Tenants, all of which shall be
subject to Landlord's sole management and control and shall be
operated and maintained in reasonably good order and condition,
except for damage occasioned by Tenant, or its employees, agents or
invitees. Landlord
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reserves the right to change from time to time the dimensions and
location of the Common Area as well as the location, dimensions,
identity and type of any building shown on Exhibit B-1 and to
construct additional buildings or additional stories on existing
buildings or other improvements on the property and to eliminate
buildings from the plan shown on Exhibit B-1. Tenant and its
employees, customers, subtenants, licensees and concessionaires
shall have the nonexclusive right and license to use the Common Area
as constituted from time to time, such use to be in common with
Landlord, other Tenants of the building and other persons permitted
by Landlord to use the same, and subject to such reasonable rules
and regulations governing use as Landlord may from time to time
prescribe, including the designation of specific areas within the
property or in reasonable proximity thereto in which automobiles
owned by the Tenant, its employees, subtenants, licensees and
concessionaires shall be parked. Tenant will furnish to Landlord
upon request a complete list of license numbers of all automobiles
operated by Tenant, its employees, subtenants, licensees or
concessionaires. Tenant shall not solicit business or display
merchandise within the Common Area without the prior written consent
of the Landlord. Landlord may temporarily close any part of the
Common Area for such periods of time as may be necessary to prevent
the public from obtaining prescriptive rights or to make repairs or
alterations.
ii.) Tenant agrees to pay as an additional charge each month 1/12
Tenant's pro rata share of the cost of operation and maintenance of
the Common Area including, among other costs, those incurred for
lighting, (including that on the common area monument sign), water,
sewage, painting, cleaning, policing, inspecting, landscaping,
gardening, resurfacing, striping, bumpers, garbage disposal,
repairing, replacing, guarding and protecting all of which may be
incurred by Landlord in its discretion. Landlord shall make monthly
or other periodic charges to Tenant based upon the estimated annual
cost of operation and maintenance of the Common Area, payable in
advance but subject to adjustment after the end of the year on the
basis of the actual cost for such year. Any such periodic charges
shall be due and payable (within 30 days of receipt of such charges)
upon delivery of notice thereof.
c.) UTILITIES, HEAT, ETC.: Tenant shall pay as additional rent all rates
and charges for water, gas, electronic security protection, electric
current, steam, sewers, refuse removal, telephone or without
limitation any other service used during the full term of this
lease. If any such service is not separately metered by or for each
Tenant but rather is furnished through one master meter, the Tenant
shall pay a pro rata share of any charge based on Tenant's square
footage of leased premises as a percentage of the total square
footage of the building to which said charge is applicable. Tenant
or Landlord, at its own option and expense, shall have the right to
install separate meters for any utility.
7. SECURITY DEPOSIT
Intentionally Omitted
8. USE
Tenant shall continuously occupy and use the Premises only for the
Permitted Use and shall comply with all laws, orders, rules, and
regulations relating to the use, condition, and occupancy of the Premises.
The Premises shall not be used for any use which is disreputable or
creates extraordinary fire hazards or results in an increased rate of
insurance on the Building or its contents or the storage of any hazardous
materials or substances. If, after thirty (30) days prior written notice
and an opportunity to cure Tenant's acts cause, the rate of insurance on
the Building or its contents to increase, then, Tenant shall pay to
Landlord the amount of such increase on demand. Tenant shall conduct its
business and control its agents, employees, and invitees in such a manner
as not to create any nuisance or interfere with other tenants or Landlord
in its management of the Building.
9. TENANT IMPROVEMENTS
Improvements. Any tenant finish improvements to be provided by Landlord
for the Premises are described on Exhibit "E" attached hereto.
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10. ALTERATIONS
All improvements to the Premises made after the Commencement Date shall be
installed at the expense of Tenant only in accordance with plans and
specifications which have been previously submitted to and approved in
writing by Landlord. After the initial Tenant improvements are made, no
alterations or physical additions in or to the Premises may be made
without Landlord's prior written consent, which shall not be unreasonably
withheld or delayed; however, Landlord may withhold its consent to any
alteration or addition that would affect the Building's structure, or
would materially and adversely affect the Building's HVAC, plumbing,
electrical, or mechanical systems. Tenant shall not paint or install
lighting or decorations, signs, window or door lettering, or advertising
media of any type on or about the Premises without Landlord's prior
consent; provided however that Tenant may, without the prior written
consent of Landlord display in and about The Premises non-permanent
lighting ( e.g. Desk and floor lamps) decorations ( wall hangings,
posters, white boards, photographs, charts, etc.) Signs, posters internal
announcements and memoranda, advertising and marketing material, or other
similar items used in the ordinary course of Tenant's business. All
permanent alterations, additions, or improvements affixed to the Premises
either by Landlord or Tenant, shall be Landlord's property at the end of
the Term and shall remain on the Premises (unless Landlord requires
removal of same) without compensation to Tenant. Approval by Landlord of
Tenant's plans and specifications prepared in connection with any
improvements in the Premises shall not constitute a representation or
warranty as to the adequacy or sufficiency of such plans and
specifications, or the improvements to which they relate, for any use,
purpose, or condition, but such approval shall merely be the consent of
Landlord as required hereunder. Tenant shall be responsible for the cost
of all action required to comply with the requirements of the Americans
with Disabilities Act of 1990 (the "ADA"), and all rules, regulations, and
guidelines promulgated thereunder, as the same may be amended from time to
time, necessitated by any installations, additions, or alterations made in
or to the Premises at the request of or by Tenant or by Tenant's use of
the Premises (other than retrofit whose cost has been particularly
identified as being payable by Landlord in an instrument signed by
Landlord and Tenant). If Landlord's prior consent is required, such
consent shall not be unreasonably withheld or delayed; however, Landlord
may withhold its consent to any such painting or installation which would
affect the appearance of the exterior of the Building or of any common
areas of the Building. Landlord shall be responsible for the cost of
compliance with the ADA for all portions of the Property not subject to
the Premises or other leases with tenants.
11. LANDLORD'S SERVICES
a. Services. Provided no Event of Default exists, and subject to
interruptions beyond Landlord's control, Landlord shall use all
reasonable efforts to furnish to Tenant utility services to the
building (e.g. gas, water and electric). Landlord shall maintain the
common areas of the Building in reasonably good order and condition,
except for damage occasioned by Tenant, or its employees, agents or
invitees.
b. Excess Utility Use. Intentionally Omitted
c. Change or Discontinuance. Landlord's obligation to furnish services
under Section 11a shall be subject to the rules and regulations of
the supplier of such services and governmental rules and
regulations. Landlord may change or discontinue services as needed
to comply with such rules or regulations.
d. Restoration of Services; Abatement. Landlord shall use reasonable
efforts to restore any service that becomes unavailable. Any
unavailability shall not render Landlord liable for any damages
caused thereby, nor shall be a constructive eviction of Tenant,
constitute a breach of any implied warranty, or, except as provided
in the next sentence, entitle Tenant to any abatement of Tenant's
obligations hereunder. However, if Tenant is prevented from making
reasonable use of the Premises for more than forty-five (45)
consecutive days because of the unavailability of any such service,
Tenant shall, at its option, be entitled to terminate this Lease
Agreement or, be entitled to a reasonable abatement of Rent for each
consecutive day (after such forty-five (45) day period) that Tenant
is so prevented from making reasonable use of the Premises. Tenant
agrees to promptly notify Landlord in writing of any interruption of
services.
e. Additional Services. Should Tenant desire any additional services
beyond those described here or service outside the normal times
Landlord provides such services, Landlord may (at Landlord's
option), upon reasonable advance notice from Tenant, furnish such
services and
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Tenant shall pay Landlord such charges as may be agreed on between
Landlord and Tenant, but in no event at a charge less than
Landlord's actual cost plus overhead for the additional services
provided. By way of illustration and not limitation, special
equipment requiring abnormal use of water or electricity used as a
power source for data processing machines, including air
conditioning costs therefor, large business machines and similar
equipment of high electrical consumption shall not be standard and
the costs thereof shall be paid by Tenant within ten (10) days after
Landlord delivers to Tenant an invoice therefor. Landlord shall, at
Tenant's sole cost and expense, install separate meters for
measuring consumption of non-standard services within the Premises.
12. REPAIRS
a. Landlord's Repair Obligations. Within a thirty (30) days following
receipt of written notice from Tenant of the necessity therefor,
Landlord shall make necessary repairs to maintain the structure of
the Premises and the Building. "Structure" or "structural" for
purposes of this Lease shall mean only the following: foundation,
roof framing and roof, weight bearing columns and weight bearing
walls (specifically excluding interior surfaces). If any such repair
is required because of any act, neglect, or fault of Tenant, its
agents, employees, licensees, or contractors, then Tenant shall pay
all costs therefor within ten (10) days after Landlord has delivered
the Tenant an invoice therefor. Landlords failure to make such
repairs within thirty days, or if such repairs are not capable of
being completed within such thirty days, Landlord's failure to
diligently pursue completion of such repairs in a timely and
reasonable fashion shall constitute an Event of Default by Landlord
of this Lease Agreement. If the need for such repairs or the repair
process interferes with or disrupts Tenants use and enjoyment of the
Premises, in addition to all other rights available to Tenant under
this Lease, at law or in equity, Tenant shall be entitled to an
abatement of rent until such repairs are completed.
b. Tenant's Repairs. Tenant agrees to promptly make all repairs
(including replacements and alterations where necessary) necessary
to keep the interior of the Premises in good order, repair and
condition, except for those necessitated by reasonable use and wear
and to repair any damage caused by Tenant or Tenant's agents,
contractors, or invitees to any of the Property. The interior shall
include:
(i) interior faces of the exterior walls of the building;
(ii) interior face of the ceilings;
(iii) floor coverings;
(iv) portion of the wiring, plumbing, pipes, conduits and
other water, sewerage, utility, and sprinkler fixtures
and equipment in the Premises which serve the Premises
exclusively; and which are not located within the
floors, walls or ceiling; and
c. Performance of Work. All work described in Sections 9 and 10 above
and in this Section 12 shall be performed only by Landlord or by
contractors and subcontractors approved in writing by Landlord.
Prior to beginning any work, Tenant shall cause all contractors and
subcontractors hired by Tenant to procure and maintain insurance
against such risks, in such amounts, as set forth in Section 15c and
as Landlord may reasonably require, and shall procure payment and
performance bonds reasonably satisfactory to Landlord covering the
cost of the work. All such work shall place the Property in as good
or better condition as that which existed at the time of such repair
and shall be performed in accordance with all legal requirements and
in a good and workmanlike manner so as not to damage any portion of
the Property. Any such work which may affect the HVAC, electrical
system, or plumbing must be approved by an engineer acceptable to
Landlord.
d. Mechanic's Liens. Tenant shall not permit any mechanic's or other
liens to be filed against the Premises or the Property for any
obligation incurred by or at the request of Tenant. If such a lien
is filed, then Tenant shall, no later than ten (10) days after
Landlord has notified Tenant, either pay the amount of the lien or
diligently contest such lien and deliver to Landlord a bond or other
security reasonably satisfactory to Landlord. If Tenant fails to
timely take either such action, then Landlord may pay the lien claim
without inquiry as to the validity thereof, and any amounts so paid,
including expenses and interest, shall be paid by Tenant to Landlord
within ten (10) days after Landlord has delivered to Tenant an
invoice therefor.
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13. TRANSFERS
a. Transfers; Consent. Tenant shall not, without the prior written
consent of Landlord (which Landlord may grant or deny in its sole
discretion) except as per paragraph c. of this Article 13; (a)
advertise that any portion of the Premises is available for lease;
(b) assign, transfer, or encumber this Lease or any estate or
interest herein, whether directly or by operation of law; (c) permit
any other entity to become Tenant hereunder by merger,
consolidation, or other reorganization; (d) if Tenant is an entity
other than a corporation whose stock is publicly traded, permit the
transfer of an ownership interest in Tenant so as to result in a
change in the current control of Tenant; (e) sublet any portion of
the Premises; (f) grant any license, concession, or other right of
occupancy of any portion of the Premises; or (g) permit the use of
the Premises by any parties other than Tenant (any of the events
listed in clauses (b) through (g) being a "Transfer"). If Tenant
requests Landlord's consent to a Transfer, then Tenant shall provide
Landlord with a written description of all terms and conditions of
the proposed Transfer, copies of the proposed documentation, and the
following information about the proposed transferee: name and
address; reasonably satisfactory information about its business and
business history; its proposed use of the Premises; banking,
financial, and other credit information; and general references
sufficient to enable Landlord to determine the proposed transferee's
credit worthiness and character. Tenant shall reimburse Landlord for
its attorneys' fees, except for transfers or assignments as per
paragraph c of this Article 13 and other expenses incurred in
connection with considering any request for its consent to a
Transfer. If Landlord consents to a proposed Transfer, then the
proposed transferee shall deliver to Landlord a written agreement
whereby it expressly assumes Tenant's obligations hereunder;
however, any transferee of less than all of the space in the
Premises shall be liable only for obligations under this Lease that
are properly allocable to the space subject to the Transfer, and
only to the extent of the rent it has agreed to pay Tenant therefor.
Landlord's consent to a Transfer shall not release Tenant from
performing its obligations under this Lease, but rather Tenant and
its transferee shall be jointly and severally liable therefor and
Tenant shall execute any documents reasonably required by Landlord
to confirm same. Landlord's consent to any Transfer shall not waive
Landlord's rights as to any subsequent Transfers. If an Event of
Default occurs while the Premises or any part thereof are subject to
a Transfer, then Landlord, in addition to its other remedies, may
collect directly from such transferee all rents becoming due to
Tenant and apply such rents against Rent. Tenant authorizes its
transferees to make payments of rent directly to Landlord upon
receipt of notice from Landlord to do so.
b. Additional Compensation. Tenant shall pay to Landlord, immediately
upon receipt thereof, all compensation received by Tenant for a
Transfer (whether permitted or not) that exceeds the Rent paid by
Tenant to Landlord for the applicable portion of the Premises
covered thereby. Landlord's acceptance of such Additional
Compensation shall not constitute Landlord's approval of any
Transfer that was not approved by Landlord or permitted by this
Lease.
c. Assignment and Subletting. Tenant may not assign, or otherwise
transfer all or any part of its interest in this Agreement or in the
Premises without prior written consent of Landlord; provided,
however, that Lessee may assign its interest to its parent company,
any subsidiary or affiliate of it or its parent company or to any
successor-in-interest or entity acquiring fifty-one percent (51%) or
more of its stock or assets. Notwithstanding anything to the
contrary contained in this Agreement, Tenant may assign, mortgage,
pledge, hypothecate or otherwise transfer without consent its
interest in this Agreement to any financing entity, or agent on
behalf of any financing entity to whom Tenant (i) has obligations
for borrowed money or in respect of guarantees thereof, (ii) has
obligations evidenced by bonds, debentures, notes or similar
instruments, or (iii) has obligations under or with respect to
letters of credit, bankers acceptances and similar facilities or in
respect of guaranties thereof.
14. INDEMNITY & LIABILITY L1MITATION
a.) Tenant shall indemnify, defend and hold harmless Landlord and
its officers, directors, partners, employees, attorneys and
agents (collectively, the "Tenant Indemnitees") from and
against any and all liability, claims, demands, causes of
action, judgments, costs, expenses, and all losses and damages
for bodily injury, death and property damage arising from any
activity in the Premises even if resulting from the negligent
act or omission, (but not willful misconduct), of any of the
Tenant Indemnitees, and from all costs, attorney fees and
disbursements, and liabilities incurred in the defense of any
such claim. Upon notice from Landlord, Tenant shall defend any
such claim, demand,
8
cause of action or suit at Tenant's expense by counsel
satisfactory to Landlord in its reasonable discretion. The
provisions of this subsection (A) shall survive the expiration
or earlier termination of this Lease.
b.) Landlord shall indemnify, defend and hold harmless Tenant and
its officers, directors, partners, employees, attorneys and
agents (collectively, the "Landlord Indemnitees") from and
against any and all liability, claims, demands, causes of
action, judgments, costs, expenses, and all losses and damages
for bodily injury, death and property damage arising from any
activity in or about the Building (other than the Premises)
even if resulting from the negligent act or omission, (but not
willful misconduct), of any of Landlord Indemnitees, and from
all costs, attorney fees and disbursements, and liabilities
incurred in the defense of any such claim. Upon notice from
Tenant, Landlord shall defend any such claim, demand, cause of
action or suit at Landlord's expense by counsel satisfactory
to Tenant in its reasonable discretion. The provisions of this
subsection (B) shall survive the expiration or earlier
termination of this Lease
15. INSURANCE
a. Insurance by Landlord. Landlord shall insure the Building, including
the Premises, against loss or damage by fire or other hazards by
maintaining a broad form property insurance policy with extended
coverages and traditional business interruption coverage. Landlord
shall not be obligated to insure against damage to Tenant's personal
property, trade fixtures, or improvements to the Premises. If the
tenant finish improvements installed by or for Tenant are in excess
of those provided for in Exhibit F or if any alterations or
improvements made by Tenant result in an increase in Landlord's
insurance premiums, then such increase shall be borne by Tenant, who
shall reimburse Landlord within ten (10) days after being invoiced
therefor.
b. Insurance by Tenant. Tenant shall obtain and keep in effect the
following insurance insuring Tenant, Landlord and all mortgagees and
any other person or entity designated by Landlord as having an
interest in the Property (as their interests may appear):
(i) Insurance upon all property in the Premises owned by Tenant or
for which Tenant is legally liable and on fixtures and
improvements installed in the Premises. Such policies shall be
for an amount of the full replacement cost with broad form
property coverage with traditional "extended coverage",
including but not limited to vandalism, malicious mischief,
sprinkler leakage and water damage;
(ii) Business interruption insurance in an amount sufficient to
reimburse Tenant for direct or indirect loss of earnings
attributable to prevention of use or access to the Building or
Premises as a result of such perils;
(iii) Commercial general liability insurance including fire, fire
legal liability and "insured contracts" coverage with respect
to the Tenant's operations associated with the Building and
the Premises, including activities conducted by Tenant and any
other person associated with the Tenant in the Premises and
Tenant and any other person performing work on behalf of
Tenant and those for whom Tenant is by law responsible in any
other part of the Building. Such insurance shall be written
with inclusive limits of not less than One Million Dollars
($1,000,000) for each occurrence for bodily injury and
property damage, and personal injury, or such higher limits as
Landlord, acting reasonably, may require from time to time.
The limit of said insurance shall not, however, limit the
liability of Tenant hereunder. Landlord shall be added as
additional insured on all liability policies maintained by
Tenant;
(iv) Worker's compensation insurance for all Tenant's employees
working in the Premises in an amount sufficient to comply with
applicable laws or regulations, including employer's
liability; and
(v) Intentionally Omitted
All policies of insurance maintained by Tenant shall be in a form
acceptable to Landlord with an A.M. Best rating of at least
(A-)(VIII); issued by an insurer acceptable to Landlord and licensed
to do business in the State of Minnesota; require at least thirty
(30) days written notice to Landlord of termination or material
alteration; and provide that the interests of Landlord, its
9
mortgagee or those insured parties designated by Landlord shall not
be invalidated because of any breach or violation of any warranties,
representations, declarations or conditions contained in the
policies. All policies must contain a severability of interest
clause, a cross-liability clause or similar policy language
incorporated within the controlling policy form, and shall be
primary and shall not provide for contribution of any other
insurance available to Landlord, its mortgagee, or those named
insured parties designated by Landlord. If requested by Landlord,
Tenant shall, upon the Commencement Date, and thereafter prior to
the expiration date of each such policy, promptly deliver to
Landlord, or Landlord's designated representative, certified copies
and written evidence satisfactory to Landlord that all premiums have
been paid and all polices are in effect. If Tenant fails to secure
or maintain any insurance coverage required by Landlord, or should
insurance secured not be approved by Landlord and such failure or
approval not be corrected within forty eight (48) hours after
written notice from Landlord, Landlord may, without obligation,
purchase such required insurance coverage at Tenant's expense.
Tenant shall promptly reimburse Landlord for any monies so expended
as additional rent.
c. Tenant's Contractor's Insurance. Tenant shall require any contractor
of Tenant permitted to perform work in, on, or about the Premises to
obtain and maintain the following insurance coverage at no expense
to Landlord:
(i) Commercial general liability insurance, including the
traditional broad form general liability coverages, in the
amount of One Million Dollars ($1,000,000), adding Landlord
and Tenant as additional insured parties;
(ii) Worker's compensation insurance for all contractor's employees
working in the Premises in an amount sufficient to comply with
applicable laws or regulations;
(iii) Employers liability insurance in an amount not less than One
Hundred Thousand Dollars ($100,000); and
(iv) Any other insurance as Tenant, Landlord or its mortgagee may
reasonably require from time to time.
d. Increase of Premiums. Tenant will not do anything or fail to do
anything which will cause the cost of Landlord's insurance to
increase or which will prevent Landlord from procuring policies
(including but not limited to public liability) from companies and
in a form satisfactory to Landlord. If any breach of this Section
15d by Tenant shall cause the rate of fire or other insurance to be
increased, Tenant shall pay the amount of such increase as
additional rent promptly upon being billed therefor.
e. Tenant's Additional Insurance. Landlord makes no representation that
the limits of liability specified to be carried by Tenant under the
terms of this Lease are adequate to protect Tenant against Tenant's
undertaking under this Section 15.
16. CASUALTY
a. Repair Estimate. If the Premises or the Building are damaged by fire
or other casualty (a "Casualty"), Landlord shall, within two (2)
full business days after such Casualty, deliver to Tenant a good
faith estimate (the "Damage Notice") of the time needed to repair
the damage caused by the Casualty.
b. Landlord's and Tenant's Rights. If, because of a Casualty, Tenant is
prevented from conducting its business in the Premises in a manner
reasonably comparable to that conducted immediately before such
Casualty and Landlord estimates that the damage caused thereby
cannot be repaired within one hundred eighty (180) days after the
commencement of repair ("Substantial Casualty"), then Landlord may,
at its expense, relocate Tenant within ten (10) days from the said
Casualty to office space reasonably comparable to the Premises,
provided that Landlord notifies Tenant of its intention to do so in
the Damage Notice. If Landlord relocates Tenant, Rent shall be
abated only from the date of such damage until Landlord has
successfully relocated Tenant, and thereafter, Tenant shall pay to
Landlord the lesser of the Rent or the fair market rental value of
the replacement premises (including all additional rent and expenses
associated therewith). Such relocation may be for a portion of or
the entire remaining Term. Landlord shall complete any such
relocation within ten (10) days after Landlord has delivered the
Damage
10
Notice to Tenant. If Landlord does not elect to relocate Tenant
following such Substantial Casualty or if Landlord fails or is
otherwise incapable of relocating Tenant within such ten (10) days,
then, unless Tenant caused such damage, Tenant may terminate this
Lease by delivering written notice to Landlord of its election to
terminate within thirty (30) days after the Damage Notice has been
delivered to Tenant. Following a Substantial Casualty, if Landlord
does not relocate Tenant and Tenant does not terminate this Lease,
then Landlord shall repair the Building or the Premises, as the case
may be, as provided below, and Rent for any portion of the Premises
necessary for Tenant's business that was rendered untenantable shall
be reasonably abated from the date of damage until the completion of
the repair, unless Tenant caused such damage, in which case, Tenant
shall continue to pay Rent without abatement. Rent shall not be
abated or reduced for a Casualty which is not a Substantial
Casualty. Notwithstanding the foregoing, if a Casualty damages a
material portion of the Building, and Landlord makes a good faith
determination that restoring the Premises would be uneconomical, or
if Landlord is required to pay any insurance proceeds arising out of
the Casualty to Landlord's Mortgagee (defined below), then Landlord
may terminate this Lease by giving written notice of its election to
terminate within thirty (30) days after the Damage Notice has been
delivered to Tenant, and Rent shall be abated as of the date of the
Casualty.
c. Repair Obligation. If neither party so elects to terminate this
Lease following a Casualty, then Landlord shall, within a reasonable
time after such Casualty, restore the Building and Premises to
substantially the same or better condition as they existed
immediately before such Casualty; however, Landlord shall not be
required to repair or replace any part of the furniture, equipment,
fixtures, and other improvements which may have been placed by, or
at the request of, Tenant or other occupants in the Building or the
Premises, and Landlord's obligation to repair or restore shall be
limited to the extent of the insurance proceeds actually received by
Landlord for the Casualty in question.
17. CONDEMNATION
a. Eminent Domain. If any part of the Property is taken by right of
eminent domain or conveyed in lieu thereof (a "Taking"), and such
Taking prevents Tenant from conducting its business in the Premises
in a manner reasonably comparable to that conducted immediately
before such taking then Landlord may, at its expense, relocate
Tenant to space reasonably comparable to the Premises, provided that
Landlord notifies Tenant of its intention to do so within two (2)
full business days after the Taking. Such relocation shall be for
the remaining Term. Landlord shall complete any such relocation
within ten (10) days after Landlord has notified Tenant of its
intention to relocate Tenant. If Landlord does not elect to relocate
Tenant following such Taking or if Landlord fails or is otherwise
incapable of relocating Tenant within such ten (10) days, then
Tenant may terminate this Lease as of the date of such Taking by
giving written notice to Landlord within sixty (60) days after the
Taking, and Rent shall be prorated on the later of the date of such
Taking or the date Tenant actually vacates the Premises. After a
Taking, if Landlord does not terminate this Lease or relocate Tenant
and Tenant does not terminate this Lease, then Rent shall be abated
on a reasonable basis as to that portion of the Premises which was
necessary for Tenant's business and which was rendered untenantable
by the Taking. Rent shall not be reduced or abated for any
condemnation which does not constitute a Taking.
b. Taking - Landlord's Rights. If all or any material portion of the
Building becomes subject to a Taking, or if Landlord is required to
pay any of the proceeds received for a Taking to Landlord's
mortgagee, then this Lease, at the option of Landlord, exercised by
written notice to Tenant within thirty (30) days after such Taking,
shall terminate and Rent shall be apportioned as of the date of such
Taking.
c. Award. If any Taking occurs, then Landlord shall receive the entire
award or other compensation for the Property taken, and Tenant may
separately pursue a claim against the condemning party for the value
of Tenant's moving costs, loss of business, and other claims it may
have, so long as such claim does not in any way impair or adversely
affect the award that the Landlord is entitled to receive.
11
18. RULES AND REGULATIONS
Tenant shall comply with the rules and regulations of the Building
which are attached hereto as Exhibit "C". Landlord may, from time to
time, change such rules and regulations for the safety, care, or
cleanliness of the Building and related facilities, provided that
such changes are reasonable and are applicable to all tenants of the
Building. Tenant shall be responsible for the compliance with such
rules and regulations by its employees, agents, and invitees.
19. SUBORDINATION & MORTGAGEES
a. Subordination. This Lease is subject and subordinate to any deeds of
trust, mortgages or other security instruments which now or
hereafter encumber all or any portion of the Property or any
interest of Landlord therein. No further instrument shall be
required to effect such subordination, but upon request Tenant shall
execute, acknowledge, and deliver to Landlord any further
instruments and certificates evidencing such subordination as
Landlord or any mortgagee of Landlord shall reasonably require.
b. Attornment. Notwithstanding Section 19a, any mortgagee of Landlord
shall have the right at any time to subordinate any such deed of
trust or mortgage to this Lease, or to any of the provisions hereof
on such terms and subject to such conditions as such mortgagee may
consider appropriate in its discretion. At any time, before or after
the institution of any proceedings for the foreclosure of any such
deed of trust or mortgage, or the sale of the Building under any
such deed of trust or mortgage, Tenant shall, upon request of such
mortgagee, any person succeeding to the interest of such mortgagee,
or the purchaser at any foreclosure sale ("Successor Landlord"),
automatically become the Tenant of the Successor Landlord, without
change in the terms or other provisions of this Lease; provided,
however, that the Successor Landlord shall not be bound by any
modification to this Lease made without the consent of the Successor
Landlord or by any payment of Rent more than one (1) month in
advance, except for a security deposit previously paid to Landlord
(and then only if such security deposit has been deposited with and
is under the control of the Successor Landlord). The agreement of
Tenant to attorn to a Successor Landlord shall survive any such
foreclosure sale, trustee's sale, or conveyance in lieu thereof.
Tenant shall, upon request, before or after any such foreclosure or
conveyance, execute, acknowledge, and deliver to the Successor
Landlord instruments evidencing such attornment as the Successor
Landlord may reasonably require.
c. Estoppel Certificates. Tenant shall, from time to time, within ten
(10) days after request from Landlord, or from any mortgagee of
Landlord, execute, acknowledge and deliver in recordable form a
certificate certifying, to the extent true and to the best of
Tenant's knowledge, that this Lease is in full force and effect and
unmodified (or, if there have been modifications, that the same is
in full force and effect as modified and stating the modifications);
that the Term has commenced and the full amount of the Rent then
accruing hereunder and the dates to which the Rent has been paid;
that Tenant has accepted possession of the Premises and that any
improvements required by the terms of this Lease to be made by
Landlord have been completed to the satisfaction of Tenant; the
amount, if any, that Tenant has paid to Landlord as a security
deposit; that no Rent under this Lease has been paid more than
thirty (30) days in advance of its due date; that the address for
notices to be sent to Tenant is as set forth in this Lease (or has
been changed by notice duly given and is as set forth in the
certificate); that Tenant, as of the date of such certificate, has
no charge, lien, or claim of offset under this Lease or otherwise
against Rent; that, to the knowledge of Tenant, Landlord is not then
in default under this Lease; and such other matters as may be
reasonably requested by Landlord or any mortgagee of Landlord. Any
such certificate may be relied upon by Landlord, any successor of
Landlord, any mortgagees of Landlord or any prospective purchaser of
the Building.
d. Notice to Mortgagee. No act or failure to act on the part of
Landlord which would entitle Tenant under the terms of this Lease,
or by law, to be relieved of Tenant's obligations hereunder or to
terminate this Lease, shall result in a release of Tenant's
obligations or termination of this Lease unless (i) Tenant has given
notice by certified mail to any mortgagee of Landlord whose address
has been furnished to Tenant, and (ii) Tenant offers such mortgagee
of Landlord a reasonable time to cure the default (in no event to be
less than thirty (30) days) but in no event more then ninety (90)
days, including time to obtain possession of the Building if such
should prove necessary to effect a cure. No such mortgagee of
Landlord shall be obligated to Tenant to cure any default by
Landlord
12
hereunder, but if a mortgagee elects in its discretion to effect a
cure Tenant shall accept same as though done by Landlord, provided
such cure is effected timely and Tenants other rights have been
satisfied.
e. Non-Disturbance. Notwithstanding anything to the contrary herein,
Tenant's subordination agreement shall be subject to the requirement
that Landlord's mortgagee shall attorn to Tenant and shall not
disturb Tenant's possession of the Premises under this Lease if, at
the time of any such foreclosure, trustee's sale or conveyance in
lieu thereof, by Landlord's mortgagee, Tenant is not in default
hereunder.
20. TAXES
Tenant shall be liable for all taxes levied or assessed against personal
property, furniture, or fixtures placed by Tenant in the Premises. If any
taxes for which Tenant is liable are levied or assessed against Landlord
or Landlord's property and Landlord elects to pay the same, or if the
assessed value of Landlord's property is increased by inclusion of such
personal property, furniture or fixtures and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay to Landlord, upon
demand, that part of such taxes for which Tenant is primarily liable
hereunder, Landlord shall not pay such amounts if Tenant notifies Landlord
that it will contest the validity or amount of such taxes and thereafter
diligently proceeds with such contest in accordance with applicable law
and in a manner that is not inconsistent with the rights of Landlord or
any other tenants of the Building and the non-payment thereof does not;
(a) pose a threat of loss or seizure of the Building or interest of
Landlord therein; or (b) result in the imposition of any fines, penalties
or interest against Landlord. Notwithstanding the foregoing, Landlord may
(but shall never be obligated to do so) contest the amount or validity of
any such taxes.
21. EVENTS OF DEFAULT
The occurrence of any one of the following events will be an event of
default by Tenant under this Lease:
a. Tenant shall fail to pay Landlord any rental or other sum of money
when due under this Lease or under any other agreement with Landlord
concerning the Premises after the expiration of five (5) days
written notice.
b. Tenant shall fail to maintain any insurance that this Lease requires
Tenant to maintain or shall fail to deliver any certificate of such
insurance when required by this Lease.
c. Tenant shall fail to perform or observe any term, covenant or
condition of this Lease or any other agreement with Landlord
concerning the Premises (other than a failure described in the
preceding subparagraphs 21.(a) and 21.(b)) and Tenant shall not cure
the failure within ten (10) days after Landlord notifies Tenant
thereof; but if the failure is of a nature that it cannot be cured
within such ten (10) day period, Tenant shall not have committed an
event of default if Tenant commences the curing of the failure
within such ten (10) day period and thereafter diligently pursues
the curing of same and completes the cure within thirty (30) days;
provided, however, that if Tenant fails to perform or observe any
such term, condition, covenant or provision 2 or more times in any
Lease year, then notwithstanding that such defaults have been cured
by Tenant, any further similar failure shall be deemed an event of
default without notice or opportunity to cure.
d. Tenant or any guarantor of Tenant's obligations under this Lease
shall become insolvent, or shall admit in writing its inability to
pay its debts when due, shall make a transfer in fraud of its
creditors, or shall make a general assignment or arrangement for the
benefit of creditors, or all or substantially all of Tenant's assets
or the assets of any guarantor of Tenant's obligations under this
Lease or Tenant's interest in this Lease are levied on by execution
or other legal process.
e. A petition shall be filed by Tenant or any guarantor of Tenant's
obligations under this Lease to have Tenant or such guarantor
adjudged a bankrupt, or a petition for reorganization or arrangement
under any law relating to bankruptcy shall be filed by Tenant or
such guarantor, or any such petitions shall be filed against Tenant
or such guarantor and shall not be removed within thirty (30) days.
13
f. A receiver or trustee shall be appointed for all or substantially
all the assets of Tenant or of any guarantor of Tenant's obligations
under this Lease or for Tenant's interest in this Lease.
g. Tenant shall abandon or vacate any substantial portion of the
Premises or shall fail to occupy the Premises within thirty (30)
days after the Term commences and the Premises are ready for
occupancy.
22. REMEDIES
a. Upon the occurrence of any event of default by Tenant, Landlord
shall have the option, without any notice to Tenant (except as
expressly provided below) and with or without judicial process, to
pursue any one or more of the following remedies:
(i) Landlord may terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord.
(ii) Landlord may enter upon and take custodial possession of the
Premises by picking the locks if necessary, lock out or remove
Tenant and any other person occupying the Premises and alter
the locks and other security devices at the Premises, all
without Landlord being deemed guilty of trespass or becoming
liable for any resulting loss or damage and without causing a
termination or forfeiture of this Lease or of Tenant's
obligation to pay rent. Landlord shall not, in the event of a
lockout by the changing of locks, be required to provide new
keys to Tenant.
(iii) Landlord may terminate Tenant's possession and not this Lease
whereby Landlord may enter the Premises and take possession of
and remove any and all trade fixtures and personal property
situated in the Premises, without liability for trespass or
conversion. If Landlord takes possession of and removes
personal property from the Premises, then prior to any
disposition of the property by sale or until Tenant reclaims
the property if no foreclosure by public or private sale is
contemplated, Landlord may store the property in a public or
private warehouse or elsewhere at the cost of and for the
account of Tenant without the resort to legal process and
without becoming liable for any resulting loss or damage.
(iv) Landlord may perform on behalf of Tenant any obligation of
Tenant under this Lease which Tenant has failed to perform,
and the cost of the performance will be deemed additional
rental and will be payable by Tenant to Landlord upon demand.
b. In the event Landlord enters and takes possession of the Premises
without electing to terminate this Lease, Landlord will have the
right to relet the Premises for Tenant, in the name of Tenant or
Landlord or otherwise, on such terms as Landlord deems advisable.
But Landlord will not be required to incur any expense to relet the
Premises and the failure of Landlord to relet the Premises shall not
reduce Tenant's liability for monthly rentals and other charges due
under this Lease or for damages. Landlord will not be obligated to
relet for less than the then market value of the Premises or to
relet the Premises when other comparable rental space in the
Building is available for lease. Without causing a termination or
forfeiture of this Lease after an event of default by Tenant,
Landlord may: (i) relet the Premises for a term or terms to expire
at the same time as, earlier than, or subsequent to, the expiration
of the Term; (ii) remodel or change the use and character of the
Premises; (iii) grant rent concessions in reletting the Premises, if
necessary in Landlord's judgment, without reducing Tenant's
obligation for rentals specified in this Lease; and (iv) relet all
or any portion of the Premises as a part of a larger area. Subject
to the next subparagraph, Landlord may retain the excess, if any, of
the rent earned from reletting the Premises over the rentals
specified in this Lease.
c. After any failure by Tenant to pay rent, Landlord may, whether or
not it has chosen to re-enter and take possession of the Premises,
but only if Landlord has not notified Tenant of Landlord's election
to terminate this Lease, collect from and require Tenant to pay an
amount (a "Rental Deposit") equal to the then present value of all
Base Rent specified herein for the balance of the Term. However, if
Landlord has relet the Premises or relets thereafter without first
terminating this Lease, Landlord will apply any future rentals from
14
reletting (but not rental representing reimbursement for Basic Costs
or rental allocable to any area outside the Premises or rental
allocable to the period following the Term) in the following manner:
first, to reduce any amounts then due from Tenant, including but not
limited to attorneys' fees, brokerage commissions and other expenses
Landlord may have incurred in connection with the collection of any
rent, recovery of possession, and redecorating, altering, dividing,
consolidating with adjoining premises, or otherwise preparing the
Premises for reletting; and, second, to the repayment of any Rental
Deposit collected from Tenant. The balance, if any, of the future
rentals from reletting shall be retained by Landlord as compensation
for reletting the Premises. Tenant will not be entitled to any
repayment of the Rental Deposit except as provided herein, but
Tenant will be relieved of its obligation to make future payments of
any Base Rent with respect to which it has paid a Rental Deposit to
Landlord. Landlord will notify Tenant if Landlord elects to collect
a Rental Deposit after an event of default by Tenant, whereupon the
Rental Deposit shall be immediately due and payable and may be
collected by Landlord 6y a suit to enforce payment.
d. No re-entry or reletting of the Premises or any filing or service of
an unlawful detainer action or similar action will be construed as
an election by Landlord to terminate or accept a forfeiture of this
Lease or to accept a surrender of the Premises after an event of
default by Tenant, unless a written notice of such intention is
given by Landlord to Tenant; but notwithstanding any such action
without such notice, Landlord may at any time thereafter elect to
terminate this Lease by notifying Tenant. In the event, however,
Landlord terminates this Lease after collecting a Rental Deposit as
provided in the preceding subparagraph, Landlord will reimburse
Tenant for the excess (if any) of (i) that portion of the Rental
Deposit collected and attributable to the Base Rent for the period
following such termination, over (ii) the amount that,
notwithstanding the termination, Landlord would have been entitled
to recover from Tenant with respect to such period if Landlord had
not collected the Rental Deposit.
e. Upon the termination of this Lease or termination of Tenant's
possession other than as a result of a breach or default by
Landlord, Landlord will be entitled to recover all unpaid rentals
that have accrued through the date of termination plus the costs of
performing any of Tenant's obligations (other than the payment of
rent) that should have been but were not satisfied as of the date of
such termination. In addition, if the termination follows a material
event of default (as described in the next subparagraph), Landlord
will be entitled to recover, not as rent or a penalty but as
compensation for Landlord's loss of the benefit of its bargain with
Tenant, the difference between (i) an amount equal to the present
value of the rental and other sums that this Lease provides Tenant
will pay for the remainder of the Term and for the balance of any
then effective extension of the Term, and (ii) the present value of
the net future rentals for such period that will be or with
reasonable efforts could be collected by Landlord by reletting the
Premises. For purposes of determining what could be collected by
Landlord by reletting under the preceding sentence, it will be
assumed that Landlord is not required to relet when other comparable
space in the Building is available for lease and that Landlord will
not be required to incur any cost to relet, other than customary
leasing commissions.
f. After a material event of default by Tenant, Landlord may recover
from Tenant from time to time and Tenant shall pay to Landlord upon
demand, whether or not Landlord has relet the Premises or terminated
this Lease, (i) such expenses as Landlord may incur in recovering
possession of the Premises, terminating this Lease, placing the
Premises in good order and condition and altering or repairing the
same for reletting; (ii) all other costs and expenses (including
brokerage commissions and legal fees) paid or incurred by Landlord
in exercising any remedy or as a result of the event of default by
Tenant; and (iii) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to
perform Tenant's obligations under this Lease. As used above, a
material event of default shall mean (i) any failure to pay rent
described in subparagraph 21 .(a) above; (ii) any failure to
maintain insurance required by this Lease.
g. In the event that any future amount owing to Landlord or offsetting
an amount owing to Landlord is to be discounted to present value
under this Lease, the present value shall be determined by
discounting at the rate of six percent (6%) per annum.
h. For the purposes of any suit by Landlord brought or based on this
Lease, this Lease may, at Landlord's option, be construed to be a
divisible contract to the end that successive actions
15
may be maintained and successive periodic sums shall mature and
become due hereunder, and the failure to include in any suit or
action any sum or sums then matured shall not be a bar to the
maintenance of any suit or action for the recovery of the sum or
sums so omitted.
i. This Paragraph shall be enforceable to the extent not prohibited by
applicable law, and the unenforceability of any provision in this
Paragraph shall not render any other provision unenforceable. Tenant
will be presumed to have abandoned the Premises if goods, equipment,
or other property, in an amount substantial enough to indicate a
probable intent to abandon the Premises, is being or has been
removed from the Premises and the removal is not within the normal
course of Tenant's business.
j. Landlord's pursuit of any remedy specified in this Lease will not
constitute an election to pursue that remedy only, nor preclude
Landlord from pursuing any other remedy available at law or in
equity, nor constitute a forfeiture or a waiver of any rent or other
amount due to Landlord as described below.
23. LANDLORD'S LIEN
Intentionally Omitted
24. NON-WAIVER
Landlord's acceptance of Rent following an Event of Default shall not
waive Landlord's rights regarding such Event of Default. No waiver by
Landlord of any violation or breach of any of the terms contained herein
shall waive Landlord's rights regarding any future violation of that term
or any other term. No custom or practice which may occur or develop
between the parties in connection with the terms of this Lease shall be
construed to waive or lessen Landlord's right to insist upon strict
performance of the terms of this Lease.
25. SURRENDER OF PREMISES
No act by Landlord shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender of the Premises shall be
valid unless the same is in writing and signed by Landlord. At the
expiration or termination of this Lease, Tenant shall immediately deliver
to Landlord the Premises with all improvements located thereon in good
repair and condition, reasonable wear and tear excepted (and condemnation
and Casualty damage not caused by Tenant, as to which Sections 16 and 17
shall control), and shall deliver to Landlord all keys to the Premises and
access cards to the Building. Provided that Tenant has performed all of
its obligations hereunder, Tenant may remove all unattached trade
fixtures, furniture, and personal property placed in the Premises by
Tenant (but Tenant shall not remove any such item which was paid for, in
whole or in part, by Landlord). Additionally, Tenant shall promptly remove
such alterations, additions, improvements, trade fixtures, equipment,
wiring, and furniture as Landlord may request; however, Tenant shall not
be required to remove any addition or improvement to the Premises if
Landlord has specifically agreed in writing that the improvement or
addition in question shall not be removed. Tenant shall repair all damage
caused by such removal. All items not so removed shall be deemed to have
been abandoned by Tenant and may be appropriated, sold, stored, destroyed,
or otherwise disposed of by Landlord without notice to Tenant and without
any obligation to account for such items. If Tenant fails to surrender the
Premises, Landlord shall have the right, without notice and without
resorting to legal process, to enter upon and take possession of the
Premises and to expel or remove Tenant and its effects. The provisions of
this Section shall survive the end of the Term.
26. HOLDING OVER
a. If, at the expiration of the Term of this Lease, Tenant continues to
occupy the Leased Premises with the written consent of Landlord,
then Tenant shall be a Tenant from month to month at a monthly rent
as established by Landlord and subject to all of the other terms and
conditions of this Lease.
b. If, at the expiration of the term of this Lease or other termination
of this Lease, Tenant continues to occupy the Leased Premises
without the written consent of Landlord, or if no new agreement
shall have been entered into by the parties hereto, then Tenant
shall be a Tenant at will only, and Tenant's continued occupancy
shall not defeat Landlord's right to possession of
16
the Leased Premises at any time, with or without notice. Tenant
shall pay Rent equal to the greater of (a) 200% of the monthly Base
Rent and Additional Rent payable during the last month of the Term,
or (b) the prevailing rental rate in the Building for similar space.
In such event, Tenant shall pay Rent on a monthly basis and shall
not be entitled to a daily proration. In addition, Tenant shall pay
to Landlord all damages, costs and expenses incurred, directly or
indirectly, by Landlord by reason of Tenant's retention of
possession of the Leased Premises after such expiration or
termination. Tenant shall indemnify Landlord against all claims made
by any other tenant or prospective tenant against Landlord resulting
from delay by Landlord in delivering possession of the Leased
Premises to such other tenant or prospective tenant as a result of
such holdover.
No payments of money by Tenant to Landlord after the termination of
this Lease shall reinstate, continue, or extend the lease term and
no extension of this lease after the termination thereof shall be
valid unless and until the same shall be reduced to writing and
signed by both Landlord and Tenant.
27. RIGHTS RESERVED BY LANDLORD
Landlord has the following rights, exercisable without notice to Tenant
and without causing an eviction (constructive or actual) or disturbance of
Tenant's possession of the Premises and without giving rise to any claim
for setoff or abatement of rent:
a. to change the Building's name or street address;
b. to install signs on the exterior and interior of the Building,
excluding the interior of the Tenant's Premises;
c. to designate and approve, prior to installation, all types of window
shades, blinds, drapes, awnings, window ventilators and other
similar equipment, and to control all internal lighting that may be
visible from the exterior of the Building;
d. to enter upon the Premises at reasonable hours to inspect, clean or
make repairs or alterations (without implying any obligation to do
so) and upon reasonable notice to Tenant and without disrupting
Tenant's quiet use and enjoyment of the Premises to show the
Premises to prospective lenders, purchasers and tenants and, if the
Premises are vacated, to prepare them for reoccupancy;
e. to retain and use in appropriate instances keys to all doors into
and within the Premises (Tenant will not change or add locks without
the prior written consent of Landlord);
f. to decorate and to make repairs, alterations, additions or
improvements (whether structural or otherwise) to and about the
Building and, for such purposes, to enter upon the Premises, to
temporarily close doors, entryways, public space and corridors in
the Building, to temporarily suspend Building Services and
facilities and to change the arrangement and location of entrances
or passageways, doors and doorways, corridors, elevators, stairs,
toilets, or other Common Areas, all without abatement of rent or
impairing Tenant's obligations so long as the Premises remain
reasonable accessible and fit for the use expressly permitted in
this Lease;
g. to grant to anyone the exclusive right to conduct any business or
render any service in or to the Building (including the exclusive
right to sell any food or beverages), provided such exclusive right
does not exclude Tenant from the use expressly permitted in this
Lease;
h. to approve the weight, size and location of safes and other heavy
equipment and articles in the Premises and to require that all such
items and all furniture be moved into and out of the Building and
Premises at the times and in the manner directed by Landlord
(movements of Tenant's property into or out of the Building and
within the building are entirely at the risk and responsibility of
Tenant); and
i. to take any measures (without implying any obligation to do so)
Landlord deems advisable for the security of the Building and its
occupants, including the evacuation of the Building for
17
drill purposes and the closing of the Building after normal business
hours, subject, however, to Tenant's right to admittance when the
Building is closed under reasonable regulations prescribed by
Landlord from time to time.
28. LANDLORD'S DEFAULT
a. All covenants of Tenant in this Lease are independent covenants, not
conditioned upon Landlord's satisfaction of its obligations
hereunder, except to the extent otherwise specifically provided
herein. Tenant waives any statutory lien it may have against the
rent due under this Lease or against Landlord's property in Tenant's
possession.
b. If Landlord defaults in the performance of any of its obligations
under this Lease, Landlord will have thirty (30) days to cure after
Tenant notifies Landlord of the default; or if the default is of a
nature to require more than thirty (30) days to remedy, Landlord
will have the time reasonably necessary to cure it. Provided that at
all such times Landlord is diligently working to cure such default
and provided further that this cure provision shall not affect or
waive Tenant's right to an abatement of Rent as set forth herein.
Notwithstanding anything in this paragraph 28b to the contrary if
Landlord defaults in the performance of any of its obligations under
this Lease more than twice in any Lease year, Tenant shall have the
right to terminate this lease with written notice, but without an
opportunity to cure.
c. Whenever a period of time is prescribed in this Lease for action to
be taken by Landlord, Landlord will not be liable or responsible
for, and there shall be excluded from the computation for any such
period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, war, Applicable Laws or any other
causes of any kind whatsoever which are beyond the control of
Landlord.
d. Tenant agrees to serve a notice of claimed default or breach by
Landlord upon the lender holding a first mortgage or deed of trust
against the Premises (herein called "Landlord's Mortgagee") if
Tenant has been provided written notice of the name and address of
such lender. Notwithstanding anything to the contrary contained
herein, provided that Landlord has given Tenant written notice of
the name and address of Landlords Mortgagee, Tenant will not
exercise any right to terminate this Lease because of a default by
Landlord before allowing such lender the same period following such
notice to cure the default or breach as is allowed Landlord. But
this subparagraph will not be interpreted as creating or broadening
any right of Tenant to terminate this Lease because of a default by
Landlord.
e. The liability of Landlord to Tenant for any default by Landlord
under the terms of this Lease is limited to the interest of Landlord
in the Building and the Land, and Tenant agrees to look solely to
Landlord's interest in the Building and the Land for recovery of any
judgment from Landlord, it being intended that Landlord shall not be
personally liable for any judgment or deficiency.
f. If any litigation is initiated or defended by any party to the
Agreement against the other party to this Agreement relating to this
Agreement or the subject matter hereof, the party prevailing in such
litigation shall be entitled to recover, in addition to all damages
allowed and other relief, all reasonable attorneys' fees, court
costs and other litigation costs incurred in connection therewith.
29. RELOCATION
Intentionally Omitted
30. PARKING
Tenant shall be permitted to use its Parking Spaces in the parking lot
associated with the Building during the initial Term for vehicular
parking, subject to such terms, conditions and regulations as are from
time to time applicable to patrons of the parking lot. If Tenant sublets
any portion of the Premises or assigns any of its interest in this Lease,
then the parking spaces allocated to Tenant hereunder shall be reduced to
the extent the ratio between the rentable square feet of the Premises and
the parking spaces granted to Tenant hereunder exceeds the
18
Building standard ratio of parking space per rentable square foot as
established by Landlord from time to time.
31. MISCELLANEOUS
a. Landlord Transfer. Landlord may transfer, in whole or in part, the
Building and any of its rights under this Lease. If Landlord assigns
its rights under this Lease, then Landlord shall thereby be released
from any further obligations hereunder-, provided that the assignee
assumes all of the Landlord's obligations hereunder.
b. Landlord's Liability. The liability of Landlord to Tenant for any
default by Landlord under the terms of this Lease shall be limited
to Tenant's actual direct, but not consequential, damages therefor
and shall be recoverable only from the interest of Landlord in the
Property, and Landlord and its directors, officers, employees,
agents, attorneys and representatives shall not be personally liable
for any deficiency.
c. Brokerage. Landlord and Tenant each warrant to the other that it has
not dealt with any broker or agent in connection with the
negotiation or execution of this Lease except Landlord's Broker,
Frauenshuh Companies and Tenant's Broker, ▇▇▇▇▇▇▇▇▇ Properties, Inc.
Tenant and Landlord shall each indemnify the other against all
costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any broker or agent
claiming the same by, through, or under the indemnifying party.
Commissions payable to Tenant's Broker shall be paid by Landlord
only if a written commission agreement has been executed by and
between Landlord and such broker. Landlord shall be responsible for
payment of all commissions to Landlord's Broker.
d. Notices. All notices and other communications given pursuant to this
Lease shall be in writing and shall be (i) mailed by first class,
United States Mail, postage prepaid, certified, with return receipt
requested, and addressed to the parties hereto at the address
specified in Section 1 of the Lease, (ii) hand delivered by local
courier or national overnight delivery service to the intended
address, or (iii) sent by facsimile transmission or telex followed
by a confirmatory letter. All notices to Landlord shall be delivered
to the addresses set forth in the Section 1 and to Landlord's
property management company at the address set forth in the Section
2 and all notices to Tenant shall be to Tenant's address(es) set
forth in Section 1. Notice sent by certified mail, postage prepaid,
shall be effective three (3) days after being deposited in the
United States Mail; notices sent by hand delivery or overnight
courier shall be effective upon delivery to the address of the
addressee and notices sent by facsimile or telex shall be effective
when and if actually received by the individual to whom the notice
is to be directed. The parties hereto may change their addresses for
notice or payment by giving notice thereof to the other in
conformity with this provision.
e. Severability. It is the parties intention that this Lease be
enforceable and that it comply with all applicable laws. If any
clause or provision of this Lease is illegal, invalid, or
unenforceable under present or future laws, then the remainder of
this Lease shall not be affected thereby and in lieu of such clause
or provision, there shall be added as a part of this Lease a clause
or provision as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible and be legal,
valid, and enforceable.
f. Amendments; and Binding Effect. This Lease may not be amended except
by instrument in writing signed by Landlord and Tenant. No provision
of this Lease shall be deemed to have been waived by Landlord unless
such waiver is in writing signed by Landlord. The terms and
conditions contained in this Lease shall inure to the benefit of and
be binding upon the parties hereto, and upon their respective
successors in interest and legal representatives, except as
otherwise herein expressly provided. This Lease is for the sole
benefit of Landlord and Tenant, and, other than Landlord's
mortgagee, no third party shall be deemed a third party beneficiary
hereof.
g. Tenant's Right of Possession. Provided Tenant has performed all of
the terms and conditions of this Lease to be performed by Tenant,
Tenant shall peaceably and quietly hold and enjoy the Premises for
the Term, without hindrance from Landlord or any party claiming by,
through, or under Landlord, subject to the terms and conditions of
this Lease.
h. Joint and Several Liability. If there is more than one Tenant, then
the obligations hereunder
19
imposed upon Tenant shall be joint and several. If there is a
guarantor of Tenant's obligations hereunder, then the obligations
hereunder imposed upon Tenant shall be the joint and several
obligations of Tenant and such guarantor, and Landlord need not
first proceed against Tenant before proceeding against such
guarantor nor shall any such guarantor be released from its guaranty
for any reason whatsoever.
i. Captions. The captions contained in this Lease are for convenience
of reference only, and do not limit or enlarge the terms and
conditions of this Lease.
j. No Merger. There shall be no merger of the leasehold estate hereby
created with the fee estate in the Premises or any part thereof if
the same person or entity acquires or holds, directly or indirectly,
this Lease or any interest in this Lease and the corresponding fee
estate or any interest in such fee estate.
k. No Offer. The submission of this Lease to Tenant shall not be
construed as an offer, nor shall Tenant have any rights under this
Lease unless Landlord executes a copy of this Lease and delivers it
to Tenant.
l. Exhibits. All exhibits added and attachments attached hereto are
incorporated herein by this reference.
Exhibit A - Legal Description
Exhibit B - Outline of Premises
Exhibit B1 - Building Plan
Exhibit C - Building Rules and Regulations
Exhibit E - Tenant Improvements
m. Entire Agreement. This Lease constitutes the entire agreement
between Landlord and Tenant regarding the subject matter hereof and
supersedes all oral statements and prior writings relating thereto.
Except for those set forth in this Lease, no representations,
warranties, or agreements have been made by Landlord or Tenant to
the other with respect to this Lease or the obligations of Landlord
or Tenant in connection therewith.
n. Property Management. Landlord's Property Management Company is
identified in Section 2 of the Lease. Information may be changed
without notice to Tenant from time to time. Tenant acknowledges that
the Property Management Company is an independent contractor hired
by Landlord to operate the Building.
o. Choice of Law. This Lease shall be governed by the laws of the state
in which the Land is located and by the applicable laws of the
United States of America.
p. Construction and Interpretation. This Lease shall not be construed
in favor of either Landlord or Tenant regardless of who prepared the
same. Whenever the terms "hereof," "hereby," "herein," or words of
similar import are used herein they shall be construed as referring
to this Lease in its entirety rather than to a particular section or
provision. References to Sections and Exhibits refer to the sections
of, and exhibits to, this Lease. Whenever the term "including" is
used herein, it shall be interpreted as meaning "including, but not
limited to."
32. REPRESENTATIONS, WARRANTIES AND COVENANTS OF TENANT
Tenant represents, warrants and covenants that it is now in a solvent
condition; that no bankruptcy or insolvency proceedings are pending or
contemplated by or against Tenant or any guarantor of Tenant's obligations
under this Lease; that all reports, statements and other data furnished by
Tenant to Landlord in connection with this Lease are true and correct in
all material respects; that the execution and delivery of this Lease by
Tenant does not contravene, result in a breach of, or constitute a default
under any contract or agreement to which Tenant is a party or by which
Tenant may be bound and does not violate or contravene any law, order,
decree, rule or regulation to which Tenant is subject; and that there are
no material judicial or administrative actions, suits, or proceedings
pending or threatened against or affecting Tenant's obligations under this
Lease. If Tenant is a corporation or partnership, each of the persons
executing this Lease on behalf of Tenant represents and warrants that
Tenant is duly organized and existing, is qualified to do business in the
state in which the Premises are located, has full right and authority to
enter into this Lease, that the persons signing on behalf of Tenant are
20
authorized to do so by appropriate corporate or partnership action and
that the terms, conditions and covenants in this Lease are enforceable
against Tenant. If Tenant is a corporation, Tenant shall deliver certified
resolutions to Landlord, upon request, evidencing that the execution and
delivery of this Lease has been duly authorized and properly executed, and
will deliver such other evidence of existence, authority and good standing
as Landlord shall require.
33. ENVIRONMENTAL PROVISIONS
a. Terms defined below in this Section shall have the following
meanings:
(i) "Applicable Environmental Laws" means all applicable federal,
state and other laws, ordinances, rules and regulations of any
governmental entity pertaining to health or the environment,
including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended
by the Superfund Amendments and Reauthorization Act of 1986
(as amended, hereinafter called "CERCLA"), the Resource
Conservation and Recovery Act of 1976, as amended by the Used
Oil Recycling act of 1980, the Solid Waste Disposal Act
Amendments of 1980, and the Hazardous and Solid Waste
Amendments of 1984 (as amended, hereinafter called "RCRA").
(ii) "Expenses" means all liabilities, obligations, losses,
damages, penalties, claims, actions, suits, proceedings,
costs, expenses (including reasonable attorneys' fees), costs
of settlement and disbursements of any kind and nature
whatsoever.
(iii) "Hazardous substance" and "release" shall have the meanings
specified in CERCLA, and the terms "solid waste" and
"disposal" (or "disposed") shall have the meanings specified
in RCRA; provided, in the event either CERCLA or RCRA is
amended so as to broaden the meaning of any term defined
thereby, such broader meaning shall apply subsequent to the
effective date of such amendment and provide further, to the
extent that the laws of the State of Minnesota establish a
meaning for "hazardous substance", "release," `solid waste,"
or disposal" which is broader than that specified in either
CERCLA RCRA, such broader meaning shall apply.
(iv) "Indemnified Party" means each of Landlord and any successors
and assigns as to all or any portion of the Land or Premises
or any interest therein, and any affiliate, officer, agent,
director, employee or servant of any of them.
b. Tenant warrants and represents that to Tenant's knowledge Tenant's
intended use of the Premises will not violate Applicable
Environmental Laws. Tenant shall not cause or introduce to the
Premises, or do anything or permit anything to be done which will
subject the Landlord or the Premises or the Land to any remedial
obligations under, any Applicable Environmental Laws, assuming
disclosure to the applicable governmental authorities of all
relevant facts, conditions and circumstances, if any, pertaining to
the Premises, the Land and Tenant. Tenant shall promptly notify
Landlord in writing of any existing, pending or, to the knowledge of
Tenant, threatened investigation or inquiry by any governmental
authority in connection with any violation of Applicable
Environmental Laws by Tenant or the Premises. Tenant shall take all
steps necessary to determine during the term of this Lease that no
hazardous substances or solid wastes are being disposed of or
otherwise released on or to or from the Premises. Landlord may enter
upon the Premises at any time and without notice to verify
compliance with this Section if Landlord believes in good faith that
a violation of this Section may have occurred or be threatened. Any
violation of this Section by Tenant shall constitute an "event of
default' under this Lease which cannot be cured.
c. Tenant hereby agrees to assume liability for and to pay, indemnify,
protect and hold harmless every Indemnified Party on an aftertax
basis from any and all Expenses imposed, incurred or asserted
(regardless of whether the Indemnified Party shall be indemnified by
any other person or entity) in any way relating to or arising out of
(a) a violation by Tenant of Applicable Environmental Laws during
the term of this Lease or during any period of holdover by Tenant
after the term of the Lease, or (b) a disposal or other release by
Tenant of any hazardous substance or solid waste on, to or from the
Premises during the term of the Lease or during any such period of
holdover. The Tenant acknowledges that it has been given ample time
to consult with counsel in agreeing to the indemnity set forth in
this Lease and fully understands it.
21
This indemnity shall survive the termination or expiration of this
Lease. The foregoing indemnity shall not render Tenant liable to any
Indemnified Party for any Expenses that such Indemnified Party may
incur as a result of its own negligence, willful misconduct or gross
negligence.
d. Tenant's payment or reimbursement of all Expenses to or for the
benefit of an Indemnified Party as required by this Lease shall be
supplemented by a further payment, to such Indemnified Party, in an
amount equal to any taxes imposed upon such Indemnified Party
because of Tenant's payment of reimbursement of Expenses and the
supplemental payment required by this Section. Taxes will be
computed for the purposes hereof after taking into account any
credits or deductions taken by the applicable Indemnified Party for
the Expenses paid by the Indemnified Party hereunder, based on the
actual tax return of the Indemnified Party (or, if no tax return is
filed for such party because it is a part of a consolidated or
combined group, on a proforma basis as if such Indemnified Party
filed a return only for itself and its subsidiaries if any).
e. If an Indemnified Party notifies Tenant of any claim or notice of
the commencement of any action, administrative or legal proceeding,
or investigation as to which the indemnity may apply, Tenant shall
assume on behalf of the Indemnified Party and conduct with due
diligence and in good faith the defense thereof with counsel
reasonable satisfactory to the Indemnified Party; provided, that the
Indemnified party shall have the right to be represented therein by
advisory counsel of its own selection and at its own expense; and
provided further, that if any such claim, action, proceeding or
investigation involves both Tenant and the Indemnified Party and the
Indemnified Party shall have reasonably concluded that there may be
legal defenses available to it which are different from, additional
to, or inconsistent with those available to Tenant, then the
Indemnified Party shall have the right to select separate counsel to
participate in the defense of such claim, action, proceeding or
investigation on its own behalf at Tenant's expense.
f. If any claim, action, proceeding or investigation arises as to which
the indemnity provided for may apply, and Tenant fails to assume
promptly (and in any event within ten (to) days after being notified
of the claim, action, proceeding or investigation) the defense of
the Indemnified Party, then the Indemnified Party may contest (or,
with the prior written consent of Tenant, settle) the claim, action,
proceeding or investigation at Tenant's expense using counsel
selected by the Indemnified Party; provided, that no such contest
need be made by the Indemnified Party and settlement or full payment
of any claim may be made by the Indemnified Party without Tenant's
consent and without releasing Tenant from any obligations to the
Indemnified Party if, in the written opinion of the Indemnified
Party's counsel, the settlement or payment in full is advisable. All
costs and expenses incurred by the Indemnified Party in connection
with any such contest, settlement or payment shall be payable upon
demand.
g. Landlord represents to Tenant that to the best of Landlord's
knowledge no hazardous substance exists in or on the Premises.
Notwithstanding anything herein to the contrary, Landlord shall
indemnify and hold Tenant, its parent, subsidiaries and affiliated
corporations, and their respective officers, directors, employees
and representatives harmless from and against all damages, claims,
causes of action, fees and expenses, including without limitation
all legal fees, that arise out of or are related to any breach by
Landlord of the representation contained in this Paragraph 33.g.
34. AUTHORITY PARAGRAPH
The party executing this document on behalf of Tenant represents and
warrants that such party possesses all lawful rights and authority to
enter into this document on behalf of Tenant; that there are no judgments,
decrees or outstanding orders of any court prohibiting the execution of
this document; and that all required approvals, consents and resolutions
necessary to effectuate the terms and provisions of this document have
been obtained.
22
TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD AND TENANT EXPRESSLY
DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S
INTENDED COMMERCIAL PURPOSE.
EXECUTED as indicated below and effective on the latter of the dates indicated
below.
LANDLORD:
▇▇▇▇▇▇▇ Operating Associates, Limited Partnership
By: BGK ▇▇▇▇▇▇▇ LLC, its General Partner
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Senior Vice President
Date: 3/25/99
---------------------
TENANT:
Nextel WIP Lease Corporation
By ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
--------------------------------------
Signature: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
--------------------------------------
Title: V.P. Field Operations
--------------------------------------
Date: March 11, 1999
--------------------------------------
23
EXHIBIT "A"
LEGAL DESCRIPTION
Tax Parcel Identification Number: 36-117-22-31-0016
Tax Parcel Description
Block: 001
Addition Name: Opus 2 8TH ADDN
Metes & Bounds: Lots 3 And 4
24
EXHIBIT "B"
OUTLINE OF PREMISES
[FLOOR MAP OMITTED]
25
EXHIBIT "B1"
Building Plan
[FLOOR MAP OMITTED]
26
EXHIBIT "C"
BUILDING RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and similar areas shall
not be obstructed by tenants or their officers, agents, servants, and
employees, or used for any purpose other than ingress and egress to and
from their respective leased premises and for going from one part of the
Building to another part of the Building.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which constructed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Any stoppage or damage
resulting to any such fixtures or appliances from misuse on the part of a
tenant or such tenant's officers, agents, servants, and employees shall be
paid by such tenant.
3. No signs, posters, advertisements, or notices shall be painted or affixed
by or on behalf of any tenant on any of the windows or doors, or other
exterior part of the Building, except lettering of such color, size and
style and in such places, as shall be first approved in writing by the
Landlord's Building manager. No nails, hooks or screws shall be driven
into or inserted in any exterior part of the Building, except by building
maintenance personnel.
4. Directories may be placed by the Landlord, at Landlord's own expense, in
conspicuous places in the Building. No other directories shall be
permitted.
5. Tenants shall not do anything, or permit anything to be done, in or about
the Building, or bring or keep anything therein, that will in any way
increase the possibility of fire or other casualty or obstruct or
interfere with the rights of, or otherwise injure or annoy, other tenants,
or do anything in conflict with the valid pertinent laws, rules or
regulations of any governmental authority.
6. Corridor doors, when not in use, shall be kept closed.
7. All deliveries of furniture, freight, office-equipment or other materials
for dispatch or receipt by Tenant must be made by licensed commercial
movers via the service entrance of the Building in a manner and during
hours set by Landlord from time to time. Prior approval must be obtained
from the Landlord's Building manager for any deliveries that might
interfere with the free movement of others through the public corridors of
the Building. All hand trucks shall be equipped with rubber tires and
rubber side guards.
8. Each tenant shall cooperate with Building employees in keeping the
Building and their respective leased premises neat and clean.
9. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways. No birds or animals shall be brought into or kept in
or about the Building.
10. Should a tenant require telegraphic, telephonic, annunciator or any other
communication service, the Landlord will direct the electricians and
installers where and how the wires are to be introduced and placed, and
none shall be introduced or placed except as the Landlord shall direct.
11. Tenants shall not make or permit any unseemly, disturbing or improper
noises in the Building, or otherwise interfere in any way with other
tenants, or persons having business with them.
12. No equipment of any kind shall be operated on any tenant's leased premises
that could in any way annoy any other tenant in the Building without the
prior written consent of the Landlord.
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13. Tenants shall not use or keep in the Building any inflammable or explosive
fluid or substance, or any illuminating material, unless it is battery
powered, UL approved.
14. Tenants, employees, or agents, or anyone else who desire to enter the
Building after normal working hours will be required to close doors into
the Building behind them. Locks to such doors will not be tampered with.
15. All electrical fixtures hung in the Premises must be fluorescent and of a
quality, type, design, bulb color, size and general appearance approved by
Landlord.
16. No water cooler, air conditioning unit or system or other apparatus shall
be installed or used by a tenant without the prior written consent of
Landlord, such consent not to be unreasonably withheld.
17. Normal business hours for the Building shall be 7:00 a.m. through 6:00
p.m. on weekdays, excluding legal holidays.
18. References to "holidays" and "legal holidays" in the leases to tenants in
the Building shall include the following:
January 1st .......................................... New Year's Day
Last Monday in May ..................................... Memorial Day
July 4th ........................................... Independence Day
First Monday in September ................................. Labor Day
Fourth Thursday in November ............................ Thanksgiving
December 25th ............................................. Christmas
19. The Landlord reserves the right to rescind any of these rules (as to any
particular tenant or as to all tenants generally) and to make such other
and further rules and regulations as in the judgment of Landlord shall
from time to time b e needed for the safety, protection, care and
cleanliness of the Building, the operation thereof, the preservation of
good order therein, and the protection and comfort of its tenants, their
agents, employees and invitees, which rules when made and notice thereof
given to a tenant shall be binding upon him in like manner as if
originally herein prescribed. In the event of any conflict, inconsistency,
or other difference between the terms and provisions of these Rules and
Regulations (as now or hereafter in effect) and the terms and provisions
of any lease now or hereafter in effect between Landlord and any tenant in
the Building, Landlord shall have the right to rely on the term or
provision in either such lease or such Rules and Regulations which is most
restrictive on such tenant.
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EXHIBIT "E"
TENANT FINISH: ALLOWANCE
1. Except as set forth in this Exhibit, Tenant accepts the Premises in their
"as is" condition on the date that this Lease is entered into.
2. Within ten (10) days after the effective date of this Lease, Tenant shall
deliver to Landlord for its approval a space plan depicting improvements
to be installed in the Premises ("Space Plans"), which plans were or are
to be prepared by Tenant's architect.
3. Within ten (10) days after delivery of the Space Plans, Tenant shall
provide to Landlord for its approval final drawings (as hereinafter
defined) prepared by Tenant's architect in accordance with the Space Plans
showing all improvements (as hereinafter defined) that Tenant proposes to
install in the Premises; such drawings shall include the partition layout,
ceiling plan, electrical outlets and switches, telephone outlets, drawings
for any modifications to the mechanical and plumbing systems of the
Building, and detailed plans and specifications for the construction of
the improvements called for under this Exhibit in accordance with all
applicable governmental laws, codes, rules, and regulations. Further, if
any of Tenant's proposed construction will affect the Building's heating,
ventilation and air conditioning, electrical, mechanical, or plumbing
systems, then the drawings pertaining thereto shall be prepared by the
Building's engineer of record. Tenant shall, at Landlord's request, sign
and date the Drawings to evidence its review and approval thereof.
4. As used herein, "Drawings" shall mean the final drawings approved by
Landlord, as amended from time to time by any approved changes thereto,
and "Improvements" shall mean all improvements to be constructed in
accordance with and as indicated on the Drawings.
5. Landlord's approval of the Drawings shall not be unreasonably withheld,
provided that (a) they comply with all applicable governmental laws,
codes, rules, and regulations, (b) said Drawings are sufficiently detailed
to allow construction of the Improvements in a good and workmanlike
manner, and (c) the Improvements depicted thereon conform to the rules and
regulations promulgated from time to time by the Landlord for the
construction of tenant improvements. Approval by Landlord of the Drawings
shall not be a representation or warranty of Landlord that such Drawings
are adequate for any use, purpose, or condition, or that such Drawings
comply with any applicable law or code, but shall merely be the consent of
Landlord to the Drawings.
6. All changes in the Drawings must receive the prior written approval of
Landlord, and in the event of any such approved change and upon completion
of the Improvements, Tenant shall furnish Landlord with an accurate,
reproducible "as-built" plan of the Improvements as constructed, which
plan shall be incorporated into the Drawings and the Lease by this
reference for all purposes.
7. After the Drawings have been approved, Tenant shall cause the tenant
finish work to be performed in accordance with the Drawings. The work
shall be performed only by contractors and subcontractors approved in
writing by Landlord, which approval shall not be unreasonably withheld.
All contractors and subcontractors shall be required to procure and
maintain (a) insurance against such risks, in such amounts, and with such
companies as Landlord may reasonably require and (b) payment and
performance bonds covering the cost of the Improvements and otherwise
reasonably satisfactory to Landlord. Original certificates of insurance
evidencing such policies, with paid receipts therefore, and copies of such
bonds must be received by Landlord before the work is commenced. The work
shall be performed in a good and workmanlike manner that is free of
defects and is in strict conformance with the Drawings, and shall be
performed in such a manner and at such times as to maintain harmonious
labor relations and not to interfere with or delay Landlord's other
contractors, the operation of the Building, and the occupancy thereof by
other tenants. All contractors and subcontractors shall contact Landlord
and schedule time periods during which they may use Building facilities in
connection with the work (e.g., elevators, excess electricity, etc.).
8. If a delay in the performance of the work occurs (a) because of any change
by Tenant to the
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Drawings, (b) because of any specification by Tenant of materials or
installations in addition to or other than Landlord's standard finish-out
materials, or (c) if Tenant, any contractor or subcontractor, or Tenant's
agents otherwise delays completion of the work, then, notwithstanding any
provision to the contrary in this Lease, Tenant's obligation to pay Rent
hereunder shall commence on the scheduled Commencement Date. If the
Premises are not ready for occupancy and the Improvements are not
substantially completed (as reasonably determined by Landlord) on the
scheduled Commencement Date for any reason other than the reasons
specified in the immediately preceding sentence, then the obligations of
Landlord and Tenant shall continue in full force and Rent shall be abated
until the date the Improvements are substantially completed, which date
shall be the Commencement Date.
9. Tenant shall bear the entire cost of performing the work (including,
without limitation, design of the Improvements and preparation of the
Drawings, costs of construction labor and materials electrical usage
during construction, additional janitorial services, general tenant
signage, related taxes and insurance costs, all of which costs are herein
collectively called the "Total Construction Costs") in excess of the
Construction Allowance (as hereinafter defined). Upon approval of the
Drawings and selection of a contractor, Tenant shall promptly (a) execute
a work order agreement acceptable to Landlord which identifies such
Drawings, itemizes the Total Construction Costs and sets forth the
Construction Allowance, and (b) pay to Landlord the amount by which the
estimated Total Construction Costs exceed the Construction Allowance.
Without limitation, upon substantial completion of the Improvements,
Tenant shall pay to Landlord an amount equal to the Total Construction
Costs (as adjusted for any approved changes to the Drawings), less (i) the
amount of the payments already made by Tenant and (ii) the amount of the
Construction Allowance.
10. Landlord shall provide to Tenant a construction allowance ("Construction
Allowance") equal to $ 27,000.00 ($2.13 /rentable square foot); however,
if Tenant or its agent is managing the performance of the work, then
Tenant shall not become entitled to full credit for the Construction
Allowance until Tenant has caused to be delivered to Landlord (i) all
invoices from contractors, subcontractors, and suppliers evidencing the
cost of performing the work, together with lien waivers from such parties,
and a consent of the surety to the finished Improvements (if applicable)
and (ii) a certificate of occupancy from the appropriate governmental
authority, if applicable, and evidence of governmental inspection and
approval of the Improvements, if applicable.
11. Intentionally Omitted
12. Notwithstanding anything herein to the contrary, it shall be an Event of
Default under this Lease if Tenant has not completed the Improvements on
or before May 15, 1999.
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