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EXHIBIT 10.32
STANDARD OFFICE LEASE
LEASE AGREEMENT ("Lease") made as of September 6, 1996, between
Appletree Ltd. ("Landlord") and Interactive Group, Incorporated ("Tenant").
SCHEDULE
Each reference in this Lease to any of the terms set forth on the
following Schedule ("Schedule") shall be construed to incorporate the following:
1. PREMISES: The Premises consisting of approximately 12,000 square
feet of net rentable area as shown on Exhibit A, on the 10th floor(s) of the
building commonly known as Riverview Office Tower, 0000 00xx Xxxxxx X.,
Xxxxxxxxxxx, XX 00000 (the "Building"). (Actual square footage shall be
determined after final space plan and sections 1, 4, 5, 6, 7, and Exhibit C, of
this lease shall be modified accordingly).
2. PROJECT: The land described in Exhibit B (the "Land"), together with
the building, improvements and appurtenances now or hereafter located on or used
in connection with the Land.
3. TERM: The Term shall be sixty (60) months commencing on February 1,
1997 (the "Commencement Date"), and ending on January 31, 2002 (the "Termination
Date"), subject to adjustment as provided in Section 3 of this Lease.
4. BASE RENT: The annual Base Rent shall be $12.00 per rentable square
foot in the Premises, payable in monthly installments of $11,500.00 for the
period of February 1, 1997, through and including January 31, 2002.
5. OPERATING COST RENT: Landlord's estimate of the annual Operating
Cost Rent for 1996 is $6.85 per rentable square foot in the Premises, payable in
monthly installments of $6,564.58.
6.
7. ADVANCE PAYMENT: $18,064.58, payable on or before February 1, 1997,
to be applied to the first monthly installments of Base Rent and Operating Cost
Rent due under this Lease.
8. TENANT'S PERMITTED USE: general office use only.
9. LANDLORD'S ADDRESS: x/x Xxxx, Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000,
0000 00xx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 or such other address as Landlord
may from time to time designate by notice to Tenant.
10. TENANT'S CAPACITY AND ADDRESS: Tenant, a corporation under the laws
of Delaware, has the following address for notices before the Commencement Date:
Xx. Xxxxxxx X. Xxxxxxxx, Interactive Group, Inc., 0000 Xxxxxx Xxxxxx Xxxx,
Xxx Xxxxx, XX 00000, and the Premises for notices after the Commencement Date,
or such other address as Tenant may from time to time designate by notice to
Landlord.
11. REAL ESTATE BROKERS: Xxxx as agent for Landlord and Asset Realty
Advisors, Inc., as agent for Tenant.
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FOR VALUABLE CONSIDERATION, the parties agree as follows:
1 . LEASING AGREEMENT. Landlord leases to Tenant, and Tenant accepts
from Landlord, the Premises set forth on the Schedule. The Term shall begin on
the Commencement Date and continue until the Termination Date as set forth on
the Schedule, unless sooner terminated under the terms of this Lease.
Tenant and its agents, employees and invitees have the non-exclusive
right with others designated by Landlord to use the common areas in the Project
for their intended and normal purposes. Common areas include elevators,
sidewalks, unrestricted parking areas, driveways, hallways, stairways, public
bathrooms, common entrances, lobbies and other areas designated by Landlord for
common use. Landlord may change the common areas at any time, provided the
changes do not materially and unreasonably interfere with Tenant's access to or
use of the Premises. Tenant's use of the common areas shall be subject to the
terms and conditions of this Lease and to the rules and regulations prescribed
from time to time by Landlord as provided in Section 7.
2. RENT.
A. KINDS. Tenant agrees to pay to Landlord, without setoff,
deduction or demand, at Landlord's Address as set forth on the Schedule, or to
such other person or at such other place as Landlord designates by written
notice to Tenant, in lawful money of the United States, the aggregate of the
following, all of which are rent reserved under this Lease (collectively,
"Rent"):
(1) Base Rent to be paid in monthly installments
in advance on or before the first day of
each month of the Term of this Lease in the
amount set forth on the Schedule.
(2) Operating Cost Rent in an amount equal to
Tenant's Proportionate Share of the
Operating Costs for the applicable fiscal
year of this Lease. Operating Cost Rent
shall be paid monthly in advance in an
estimated amount, as adjusted by Landlord
from time to time as provided in Section 2B.
Definitions of Operating Costs, Tenant's
Proportionate Share and the method for
billing and payment of Operating Cost rent
are set forth in Sections 2B and 2C.
(3) Additional Rent consisting of all of the
sums, liabilities, obligations and other
amounts (excepting Base Rent and Operating
Cost Rent) which Tenant is required to pay
or discharge pursuant to this Lease
(including, without limitation, any amounts
which this Lease provides shall be Tenant's
cost or expense), together with any late
charge or interest, all as hereafter
provided.
B. PAYMENT OF OPERATING COST RENT.
(1) Payment of Estimated Operating Cost Rent.
Landlord shall estimate the Operating Costs
of the Project from time to time each year.
Such estimates may be revised by Landlord
whenever it obtains information relevant to
making such estimates more accurate. Within
ten (10) business days after notice from
Landlord setting forth an estimate of
Operating Costs for a particular fiscal
year, Tenant shall pay Landlord an amount
equal to one-twelfth (1/12th) of Tenant's
Proportionate Share of such estimate
multiplied by the number of months during
the Term that have elapsed in such fiscal
year to the date of such payment, minus
payments of estimated Operating Cost Rent
previously paid for said period. Thereafter,
on the first day of each month, Tenant shall
pay monthly until a new estimate is
applicable, one-twelfth (1/12th) of Tenant's
Proportionate Share of the estimated
Operating Costs.
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(2) Correction of Operating Cost Rent. As soon
as reasonably possible after the end of each
fiscal year, Landlord shall deliver to
Tenant a notice (the "Operating Cost
Report") setting forth (a) the actual
Operating Costs for the preceding fiscal
year, (b) the amount of Operating Cost Rent
due to Landlord for such fiscal year, and
(c) the amounts of Operating Cost Rent paid
by the Tenant for such fiscal year. Within
thirty (30) days after such report, Tenant
shall pay to Landlord the amounts of any
additional Operating Cost Rent due for the
preceding fiscal year (or a prorated portion
thereof if this Lease was not in effect for
the entire fiscal year). If Tenant's
payments of Operating Cost Rent exceed the
amount due Landlord for the fiscal year in
question, Landlord shall promptly either
refund any such amount to Tenant or apply
any such amount as a credit against Tenant's
other obligations under this Lease. Unless
Tenant takes written exception to any item
within thirty (30) days after the furnishing
of the Operating Cost Report, such report
shall be considered as final and accepted by
Tenant.
In addition, Landlord agrees, at Tenant's
request, to make available to Tenant or its
representative, for its inspection and
examination all of the books and records
that relate to the Operating Cost Report. If
Tenant elects to audit such costs and
expenses and Landlord's statement is found
to be in error, the appropriate party shall
pay to the other such payment as may be
required based upon such audit within thirty
(30) days of the date of determination of
such error. In the event Landlord's
Operating Cost Report is found to be in
error by more than five percent (5%),
Landlord agrees to pay the reasonable cost
of such audit.
C. DEFINITIONS.
(1) Operating Costs. "Operating Costs" shall
mean the sum of the Taxes and Expenses for
the Project, determined in accordance with
sound accounting and management practices as
follows:
(a) Taxes. "Taxes" shall mean all
taxes, assessments and other
governmental charges, general and
special, ordinary and
extraordinary, of any kind and
nature whatsoever, including,
without limitation, assessments for
public improvements or benefits,
imposed by any lawful authority
upon the Project or payable by
Landlord in connection with the
ownership, leasing, renting,
management, control or operation of
the Project. Taxes shall include,
without limitation, real estate
taxes, personal property taxes,
sewer rents, assessments (special
or otherwise), transit taxes, ad
valorem taxes, and any new or
increased taxes, assessments or
charges which are in place of or
arise out of any changes in current
Taxes. Taxes shall also include all
reasonable fees and expenses
incurred to contest, determine or
reduce any Taxes; and if a refund
is obtained, Landlord shall
promptly either pay to Tenant or
apply as a credit against Tenant's
other obligations under this Lease
a portion of the refund based on
the percentage of the original
Taxes paid by Tenant from which the
refund was derived. If at any time
during the Term, a federal, state
or local tax, excise or surcharge
on rents or income or other tax
however described (herein called
"Rent Tax") is levied or assessed
on account of the rents hereunder
or the interest of Landlord under
this Lease, such Rent Tax shall be
included in Taxes. Taxes shall not
include any net income, capital
stock, succession,
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transfer, franchise, gift, estate
or inheritance taxes, unless the
same shall be imposed in place of
all or any portion of Taxes.
The Taxes for any given fiscal year
shall be the amount of Taxes
payable during such fiscal year,
even though levied or assessed for
a different fiscal year. Tenant
shall be solely responsible for any
taxes on its personal property and
trade fixtures used in connection
with the Premises.
(b) Expenses. "Expenses" shall mean all
expenses, costs and disbursements
(other than Taxes) of every kind
and nature, paid or incurred by or
on behalf of Landlord in connection
with the ownership, management,
maintenance, operation and repair
of all or a part of the Project
including the amortization of
capital expenses. Expenses shall
not include (1) costs of
alterations of tenant premises (2)
omitted (3) interest and principal
payments on mortgages, any rental
payments on any ground or other
underlying leases and other debt
costs, if any; (4) real estate
brokers' leasing commissions; and
(5) any cost or expenditure for
which Landlord is reimbursed,
whether by tenants, insurance
proceeds or otherwise (excluding
Operating Cost Rent). See EXHIBIT E
for exclusions.
If the Project is 95% or less
occupied at any time during any
fiscal year, Landlord may
reasonably adjust the expenses
which vary with occupancy in the
Project for such fiscal year,
employing sound accounting and
management principles, to the
amount of Expenses that would have
been incurred had the Project been
95% or more occupied for the
entire fiscal year. If during any
fiscal year a tenant performs any
service (the cost of which would
constitute an Expense) in lieu of
Landlord furnishing the service,
Landlord may reasonably adjust the
Expenses for such fiscal year to
the amount which would have been
incurred if Landlord had furnished
such service.
(2) Fiscal Year. "Fiscal year" shall mean any twelve (12) month period
(including, without limitation, the calendar year) which Landlord may
from time to time select as the fiscal year of the Project; provided,
that in case Landlord changes such fiscal year, the fiscal years before
and after the change may contain less than twelve (12) months.
(3) Tenant's Proportionate Share. "Tenant's Proportionate Share" shall mean
the percentage obtained by dividing the net rentable area of the
Premises by the net rentable area of the Project, each as reasonably
determined by Landlord.
D. RULES OF INTERPRETATION AND COMPUTATION OF BASE RENT AND RENT
ADJUSTMENTS.
(1) If the Term commences or terminates on other than the first or
last day of a month, the Base Rent and Operating Cost Rent for
such month shall be prorated based upon the number of days of
the Term falling within such month and shall be paid in
advance. If the Term of this Lease commences on any day other
than the first day of the designated fiscal year, or if the
Term of this Lease ends on any day other than the last day of
the designated fiscal year, any Operating Cost Rent due to
Landlord with respect to such fiscal year shall be prorated
based on the number of days in the Term falling within such
fiscal year.
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(2) If Tenant fails to pay any Base Rent, Operating Cost Rent or
Additional Rent within ten (10) days from the date due, Tenant
shall pay to Landlord on demand a late charge in the amount of
five percent (5%) of such sum to help defray Landlord's
additional administrative costs. In addition, any sum due from
Tenant to Landlord not paid within ten (10) days from the date
due shall bear interest from the date due until the date paid
at an annual rate equal to the lesser of: (a) the highest
lawful rate, or (b) fifteen percent (15%) per annum. The
payment of such late charge or interest shall not excuse or
cure any default of Tenant under this Lease, or limit any
right or remedy of Landlord.
(3) If changes are made to the number of square feet of net
rentable area in the Premises or in the Project, Tenant's
Proportionate Share shall be appropriately adjusted and the
computations of rent shall be appropriately adjusted upon
written notice to Tenant so as to take into account the
different Tenant's Proportionate Share figures applicable
during each portion of the applicable fiscal year.
(4) Landlord shall, in its reasonable discretion and consistent
with the provisions of this Lease, determine from time to time
that method of computing Operating Costs, the allocation of
Operating Costs among the various parts and types of space
within the Project and the allocation of Operating Costs
relating to more than one fiscal year.
(5) Landlord's and Tenant's obligations under this Section 2 shall
survive the expiration or termination of this Lease.
3. CONDITION, POSSESSION AND SURRENDER OF PREMISES.
A. Landlord shall make the improvements to the Premises, if
any, as provided in Exhibit C. Except as otherwise provided in this Lease,
Landlord is leasing the Premises to Tenant "as is," without any representations
or warranties of any kind (including, without limitation, any express or implied
warranties of fitness or habitability) and without any obligation on the part of
the Landlord to alter, remodel, improve, repair, decorate or clean the Premises,
the Project or any part thereof. Tenant, by occupying the Premises, shall be
deemed to (i) have inspected the same, (ii) have accepted the Premises in "as
is" condition, (iii) have acknowledged that Landlord's Work, if any, required of
it pursuant to Exhibit C hereof and that the Premises are in the condition
called for hereunder and (iv) have agreed that Landlord is not then in default
of any of its obligations under this Lease.
B. If Landlord is unable to deliver possession of the Premises
by the Commencement Date set forth on the Schedule because construction has not
been substantially completed, or due to a holding over by a prior tenant, or for
any other reason beyond Landlord's control (except Tenant's default hereunder or
Tenant Delay as provided in Exhibit C), then: the Commencement Date and Tenant's
obligation for payment of Rent shall be postponed until the date on which
Landlord delivers possession of the Premises; Landlord shall not be liable for
any loss, damage or expense arising in any manner from any such delay; this
Lease shall remain in effect during the period of any delay; and the Term shall
be automatically extended to include the same number of months set forth on the
Schedule, plus, if the Commencement Date is not the first day of a calendar
month, the partial month in which the Commencement Date occurs, and the
Termination Date shall be appropriately adjusted.
C. Tenant's taking possession of the Premises or any portion
thereof shall be conclusive evidence that the premises or such portion were then
in good order, repair and satisfactory condition. If Landlord permits Tenant to
take possession of all or any part of the Premises prior to the Commencement
Date, all of the
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terms of this occupancy shall be paid before taking possession and on the first
day of each calendar month thereafter at the rate set forth in Section 2A
hereof, prorated on a per diem basis fore any fractional month.
D. During the Term of this Lease, Tenant shall maintain the Premises in
as good condition as when Tenant took possession (or as completed after
possession, if applicable), except for ordinary wear and as otherwise provided
in this Lease. At the expiration or termination of this Lease, Tenant shall,
subject to Sections 3E and 3F below, return the Premises to Landlord broom clean
and in good condition as described in the immediately preceding sentence.
E. Unless otherwise agreed in a writing signed by Landlord, all Work
(as defined in Section 5A, including, without limitation, partitions, hardware,
floor coverings, ceilings, wiring, light fixtures and other fixtures, but
excluding trade fixtures, movable partitions and personal property belonging to
Tenant) in or upon the Premises, whether placed there by Landlord or Tenant,
shall be surrendered with the Premises at the expiration or termination of this
Lease and shall become Landlord's property without compensation to Tenant;
provided, that if prior to any such expiration or termination of this Lease, or
within ten (10) days thereafter, Landlord so directs by written notice, Tenant
shall promptly remove any Work placed in or upon the Premises by Tenant and
designated in such notice, and repair any damage to the Premises caused by such
removal.
F. Tenant shall also remove its trade fixtures and personal property
from the Premises prior to the end of the Term, or within ten (10) days
following the early termination of this Lease or Tenant's right of possession;
and if Tenant does not remove such property, at Landlord's election: (1) Tenant
shall be conclusively deemed to have conveyed the same to Landlord as by a xxxx
of sale without further payment or credit by Landlord to Tenant, or (2) Tenant
shall be conclusively deemed to have forever abandoned such property, and
without accepting title thereto, Landlord may, at Tenant's expenses remove,
store, destroy or otherwise dispose of all or any part thereof in any manner
that Landlord shall choose without incurring liability to Tenant or to any other
person, and Tenant shall pay to Landlord, upon demand, all reasonable expenses
incurred in taking any of such actions. The failure of Tenant to remove all such
property from the Premises and the Project shall forever bar Tenant from
bringing any action or asserting any liability against Landlord with respect to
any such property.
G. Tenant's obligations under this Section 3 shall survive the
expiration or termination of this Lease.
H. Tenant acknowledges that Landlord is undertaking an asbestos
removal/remediation project in various parts of the Building including the
Premises and Landlord represents that it will complete asbestos
removal/remediation in the Premises prior to the Commencement Date. Landlord
shall maintain a copy of an asbestos abatement certification from Landlord's
asbestos removal/remediation consultant/contractor on or before the delivery of
the Premises in their on-site office. The certification shall indicate that any
asbestos previously present in the portion of the Premises to which the
certification applies has been removed and/or encapsulated in accordance with
applicable laws, rules and regulations. Upon completion of the asbestos
removal/remediation from the entire Building, Tenant acknowledges that Landlord
has advised Tenant that (i) certain petroleum products including gasoline, fuel
oil, crude oil and the various other constituents of such products are used and
located about the Project, (ii) above ground storage tanks are located on the
Project for storage of such petroleum products and that Landlord has no
knowledge that such tanks are not in compliance with any applicable laws,
ordinances or regulations, (iii) that there are xxxxx located on the Project
which are licensed in accordance with applicable laws, ordinances or
regulations, and (iv) that portions of the Project may not be in full
compliance with the fire code requirements of the City of Bloomington at the
time of the execution of the Lease.
4. PROJECT SERVICES.
A. SERVICES. So long as Tenant is not in default hereunder,
Landlord shall furnish the following services to the Tenant without charge
except for Operating Cost Rent and as otherwise specifically provided herein:
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(1) Heat and air conditioning to provide a temperature
required, in Landlord's reasonable judgment, for
comfortable occupancy of the Premises under normal
business operations from 8:00 a.m. to 6:00 p.m.
Monday through Friday and from 8:00 a.m. to 1:00
p.m. Saturdays, holidays excepted. Landlord shall, at
Tenant's request, provide after-hours ventilation at
an initial rate of $15.00 per hour, which rate may be
adjusted by Landlord as Landlord's cost of providing
such service increases or decreases, subject to
increase at Landlord's sole discretion.
(2) Non-exclusive passenger elevator service at all times
(provided Landlord may limit the elevators in
operation during non-business hours), and
non-exclusive freight elevator service as scheduled
by Landlord.
(3) Electrical facilities to provide sufficient power for
normal lighting and small business office equipment
(but not equipment using amounts of power
disproportionate to that used by other tenants in the
Project). If the installation of any equipment
requires additional electrical or air conditioning
capacity above the building standard system, then the
additional installation, metering and operating costs
shall be paid by Tenant to Landlord as Additional
Rent. Landlord shall replace building standard lamps,
bulbs, ballasts or starters in the Premises as
required by normal usage.
(4) Hot and cold municipal water at those points of
supply provided for the general use of tenants in the
Project.
(5) Janitorial and customary cleaning services nightly in
the Premises, except Saturdays, Sundays and holidays;
and window washing for exterior windows at intervals
reasonably determined by Landlord.
B. ADDITIONAL SERVICES. Except as specifically provided in this Lease,
Landlord shall not be obligated to furnish any additional services or to furnish
services at other times. If Landlord provides additional services at Tenant's
request, Tenant shall pay for such additional services at Landlord's then
prevailing rates as Additional Rent. If Landlord from time to time reasonably
determines that the use of any utility or service in the Premises is
disproportionate to the use of other tenants, Landlord may separately charge
Tenant for the excess costs attributable to such disproportionate use and may
install metering devices at Tenant's expense, which amounts shall be due from
Tenant as Additional Rent.
C. INTERRUPTION OF SERVICE. Landlord does not warrant that any service
will be free from interruption caused by labor controversies, accidents,
inability to obtain utilities, fuel, steam, water or supplies, governmental
regulations or other causes beyond the reasonable control of the Landlord, or
repairs, alterations, replacements or improvements to such systems. Landlord
shall use reasonable diligence to remedy any interruption of its services after
notice from Tenant, but no such interruption of service shall be deemed an
eviction or disturbance of Tenant's use and possession of the Premises or any
part thereof, or render Landlord liable to Tenant for damages, by abatement of
Rent or otherwise, or relieve Tenant from performance of Tenant's obligations
under this Lease.
D. KEYS AND LOCKS. Landlord shall furnish Tenant with two (2) keys for
each corridor door entering the Premises, and additional keys ordered by Tenant
will be furnished by Landlord at Tenant's expense. All such keys shall remain
the property of Landlord; provided, that Tenant shall be solely responsible for
monitoring distribution and use of keys furnished to Tenant. No additional locks
shall be allowed on any door of the Premises without Landlord's written consent.
Upon termination of this Lease, Tenant shall surrender to
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Landlord all keys on doors entering or within the Premises, and shall give to
Landlord the combination for all locks for safes and vaults, if any, left in
the Premises.
5. ALTERATIONS AND REPAIRS.
A. Tenant shall not make or permit any interior or exterior
alterations, additions, improvements or changes, structural or otherwise, to the
Premises or the Project, nor make any installations which may require any change
to the heating, ventilating, air conditioning, electrical or plumbing systems of
the Project (collectively, "Work") without obtaining the prior written consent
of Landlord in each instance. As a condition to granting its consent, Landlord
may impose reasonable requirements, including, without limitation, requirements
as to the manner and time for the performance of any Work, the type and amount
of insurance, bonds and security for payment Tenant must provide, the plans and
specifications relating to the Work, the contractors performing the Work, the
contracts and building permits relating to the Work, the activities being
undertaken within the Project relating to the Work, and the removal of the work
at the expiration or termination of this Lease. Landlord shall be reimbursed by
Tenant for all reasonable costs incurred in connection with its review and
supervision of the Work. In no event will such supervision or right to supervise
by Landlord, nor any approvals given by Landlord under this Lease, constitute
any warranty by Landlord to Tenant of the adequacy of the design, workmanship or
quality of any work or materials for Tenant's intended use or otherwise, or
impose any liability upon Landlord in connection with the performance of such
Work. All Work shall be performed in a good and workmanlike manner and in full
compliance with applicable laws, ordinances and regulations, and all insurance
requirements.
B. Tenant shall promptly pay all contractors and materialmen
for the Work and furnish Landlord with sworn construction statements and lien
waivers upon request of Landlord. Any mechanic's lien filed against the Premises
or the Project for Work or materials furnished or claimed to have been furnished
in connection with the Work or to Tenant shall be released and discharged by
Tenant, by bond or otherwise, within ten (10) days after the filing of such lien
at Tenant's sole expense. Tenant agrees to indemnify, hold harmless and defend
Landlord, its agents and employees, the Premises, the Building and the Project
from any loss, damage or expense, including reasonable attorneys' fees, arising
out of any lien claim or other claim relating to any Work. Nothing contained in
this Lease shall be construed as a consent by Landlord so as to subject the
Landlord's interest in the Premises to any lien or liability under applicable
mechanic's lien laws.
C. Landlord shall maintain and repair the foundations,
exterior walls, structural portions, roof and common areas of the Project, and
the heating, air conditioning, ventilating, electrical, elevator and plumbing
systems serving the Project (except improvements or fixtures in or primarily
serving the Premises) in good condition, ordinary wear excepted; provided that:
(1) Landlord's obligations shall be subject to the provisions of this Lease
concerning casualty loss and condemnation, and the cost of such repairs shall be
included in Operating Costs subject to the terms and conditions of Section 2;
(2) Tenant shall promptly at its expense repair all damage to the Premises or
the Project caused by Tenant or any of its employees, agents, or invitees, by
Tenant's failure to comply with or perform any of Tenant's obligations under
this Lease, or by the installation, operation or removal of Tenant's equipment,
improvements or fixtures; and (3) Landlord shall use reasonable diligence in
carrying out its obligations under this Section, but shall not be liable under
any circumstances for any consequential damage to any person or property for any
failure to do so, nor shall the same constitute an eviction of Tenant or relieve
Tenant from performance of Tenant's obligations under this Lease.
D. Except for ordinary wear and as otherwise provided in this
Lease, Tenant shall at its expense maintain and repair the Premises, all
improvements and fixtures in or primarily serving the Premises, and all of
Tenant's trade fixtures and personal property at the Premises in good condition.
If alterations or improvements to the Premises or the Project are necessary
within Tenant's demised space to comply with any present or future governmental
laws, ordinances or regulations or requirements of insurance carriers, Tenant
shall at its expense promptly perform such alterations or improvements in
compliance with this Section 5. If Tenant fails to perform any obligation under
this Section 5, then on not less than ten (10) days notice to Tenant (or
immediately if an emergency), Landlord may
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enter the Premises and perform such obligations, and Tenant shall pay Landlord,
upon demand, the cost thereof as Additional Rent.
6. USE OF PREMISES.
A. The Premises shall be occupied and used by Tenant only for
Tenant's Permitted Use as set forth on the Schedule, and for no other purpose.
Without limiting the generality of the foregoing, no use shall be made of the
Premises nor acts done which are unlawful, unsafe, create a nuisance,
unreasonably interfere with the operation of the Project, or may cause a
cancellation of any insurance policy covering the Project or any part hereof.
Tenant shall not permit to be kept, used or sold in or about the Premises any
article which may be extra-hazardous or prohibited by Landlord's insurance
policies. If Tenant's particular use of the Premises causes the rate of fire or
other insurance on the Premises to be increased beyond the rate otherwise
applicable to the Premises, Tenant shall pay the reasonable amount of any
increase.
B. Tenant shall not install, use, generate, store, release or
dispose of in or about the Premises or the Project any hazardous substance,
toxic chemical, radioactive material, explosive, pollutant or contaminant
(including, without limitation, any hazardous substances as defined under
applicable federal, state and local statutes, ordinances and regulations, and
petroleum, asbestos or PCB's), nor allow others to engage in such activities,
without Landlord's prior written approval of each such substance, except that
Landlord's approval shall not be required for use by Tenant of immaterial
quantities of such substances customarily used in office business operations so
long as Tenant uses such substances in accordance with applicable laws and the
highest prevailing industry standards. Tenant shall indemnify, defend and hold
Landlord harmless from and against any claim, damage or expense, including,
without limitation, all testing, enforcement, cleanup and remedial costs and
reasonable attorney's fees, arising out of the installation, use, generation,
storage, release or disposal of any such substance, regardless of whether
Landlord has approved the activity. Tenant's obligations under this Section 6B
shall survive the expiration or termination of this Lease.
7. PROJECT RULES AND GOVERNMENTAL REGULATIONS. Tenant shall comply with
all applicable governmental laws, ordinances and regulations concerning its use
of the Premises. Tenant shall also comply with all reasonable rules and
regulations adopted from time to time by Landlord pertaining to the operation
and management of the Project. If any rules and regulations are contrary to the
terms of this Lease, the terms of this Lease shall prevail. The present rules
are contained in Exhibit D. The violation of the Project rules or the laws or
regulations governing Tenant's use of the Premises shall be a default under this
Lease allowing Landlord all remedies for default set forth under Section 11 of
this Lease. Landlord shall not be responsible to Tenant for violation of the
rules or regulations, or the terms of this Lease or any other lease in the
Project, by another tenant, nor shall failure to obey the same by others relieve
Tenant from its obligations to comply therewith.
8. CLAIMS; INSURANCE; LIABILITY.
A. To the fullest extent permitted by law, Tenant waives all
claims it may have against Landlord, its officers, directors, agents or
employees for damage to person or property sustained by Tenant or by any
occupant of the Premises or the Project, or any other person, occurring in or
about the Premises or the Project, resulting from the Premises or the Project or
any part of said Premises or the Project becoming out of repair or resulting
from any existing or future condition, defect, matter or thing in the Premises,
the Project or any part of it, or from equipment or appurtenances therein, or
from the action of the elements, or from any security or lack thereof, or any
accident within or adjacent to the Premises or Project, or resulting directly or
indirectly from any act or omission of Landlord or any occupant of the Premises
or Project or any other person while on the Premises or the Project. This
Section 8A shall include, without limitation, damage caused by water, snow,
frost, steam, excessive or inadequate heat or cooling, sewers, gas, odors, or
noise, the bursting or leaking of pipes or plumbing fixtures, broken glass,
sprinkling or air conditioning devices or equipment or flooding. All property
on the Project or in the Premises belonging to the Tenant, its agents,
employees, contractors or invitees or to any occupant of the Premises
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shall be there at the risk of the Tenant or such other person only, and Landlord
shall not be liable for damage thereto or theft, misappropriation or loss
thereof. Notwithstanding anything contained in this Section 8 to the contrary,
no agreement of Tenant in this Section 8 shall be deemed to exempt Landlord from
liability for injury to persons or damage to property caused by or resulting
from the gross negligence or willful misconduct of Landlord, its agents or
employees in the operation or maintenance of the Premises or the Project or to
any extent prohibited by law.
B. Landlord and Tenant each hereby waive all claims of recovery from
the other party for loss or damage to any of its property to the extent the loss
or damage is covered by valid and collectable fire and extended coverage
insurance policies or would be covered by the insurance required under Section
8C(2), and each party agrees to have its insurance policies endorsed to provide
for a waiver of subrogation by the insurance carrier, if necessary to prevent
the invalidation of such insurance coverage.
C. At all times during the Term of this Lease, Tenant shall at its
expense maintain in effect insurance protecting Tenant and Landlord and their
respective agents and employees, and any other parties designated by Landlord
from time to time, with terms, coverages and in companies at all times
reasonably satisfactory to Landlord and with such increases in limits as
Landlord may, from time to time, request. Initially, such coverage shall be in
the following amounts:
(1) Comprehensive or Commercial General Liability
Insurance, including Contractual Liability insuring
the indemnification provisions contained in this
Lease, with limits of not less than Two Million
Dollars ($2,000,000) combined single limit per
occurrence for Bodily Injury, Death and Property
Damage, and umbrella coverage of not less than Two
Million Dollars ($2,000,000), naming Landlord and its
management company as additional insureds, with a
severability of interest endorsement
(2) Insurance against "All Risks" of physical loss for
the full replacement of all leasehold improvements,
tenant improvements and Work, if any, made by Tenant
or at Tenant's expense, and all equipment, furniture,
trade fixtures, merchandise and other items of
Tenant's property on the Premises. Landlord shall be
named as "loss payee" on Tenant's All Risk policies
with respect to leasehold improvements.
D. Tenant shall, prior to the commencement of the Term hereof and prior
to the expiration of any policy, furnish Landlord certificates evidencing that
all required insurance is in force and providing that such insurance may not be
cancelled or changed without at least thirty (30) days' prior written notice to
Landlord and Tenant (unless such cancellation is due to nonpayment of premiums,
in which event ten (10) days' prior written notice shall be provided).
E. Except to the extent caused by the gross negligence or willful
misconduct of Landlord, Tenant hereby agrees to indemnify, defend and hold
harmless Landlord and its officers, directors, agents and employees against any
claims or liability for damage to person or property (or for loss or
misappropriation of property) occurring in or about the Premises, arising from
Tenant's occupancy of the Premises, from any breach or default on the part of
Tenant during the Term of this Lease or from any act or omission of Tenant or of
any employee, agent, invitee or contractor of Tenant, and from any costs
relating thereto (including, without limitation, reasonable attorneys' fees).
Tenant's obligations under this Section 8E shall survive the termination or
expiration of this Lease.
9. FIRE AND OTHER CASUALTY.
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A. In the event that (1) the Premises are made substantially
untenantable by fire or other casualty, and Landlord shall decide not to restore
or repair the same, or (2) the Building or the Project is so damaged by fire or
other casualty that Landlord shall decide to demolish or not rebuild the
Building, then, in either of such events, either Landlord or Tenant shall have
the right to terminate this Lease by notice to the other within ninety (90) days
after the date of such fire or other casualty.
B. If the Premises or the Building are made untenantable by fire or
other casualty, and this Lease is not terminated pursuant to Section 9A above,
Landlord shall, to the extent permitted by any mortgages ore ground leases with
respect to the Project, immediately take such action as is necessary to make
applicable insurance proceeds available and to use the same to reconstruct,
repair and restore the Building and the Premises to the same condition specified
in Exhibit C attached hereto, subject to zoning laws and building codes then in
effect, and including only tenant improvements constructed at Landlord's
expense, or, if any portion of the Premises has been leased on an "as is" basis,
including only improvements similar to those located in such portion of the
Premises on the Commencement Date or the date on which such portion was added to
the Premises, if later than the Commencement Date (herein, the improvements
Landlord is required to make are called the "Required Improvements"). In no
event shall Landlord be required to expend funds for reconstruction of the
Building or the Premises in excess of insurance proceeds actually collected and
received by Landlord. At Landlord's option, Tenant may be permitted or required
to devote the proceeds of its insurance described in Section 8C(2) to cause
restoration of tenant improvements and the Premises over and above the Required
Improvements, and pay for the same to Landlord or through Landlord as if newly
done pursuant to Section 5 of this Lease. In the event a fire or other casualty
occurs and both Landlord and Tenant are insured, it is agreed that the coverage
of the Landlord shall be primary and that Landlord's recovery in no event shall
be reduced by any insurance recovery to Tenant. In no event shall Landlord have
any liability to Tenant by reason of any damage to or interference with the
Premises, the Project, or Tenant's business, improvements or property arising
from fire or other casualty, however caused, or any resulting repairs.
C. Notwithstanding anything in this Section 9 to the contrary, if all
or any portion of the Premises shall be made untenantable by a fire or other
casualty, Landlord shall with reasonable promptness, cause an architect selected
by Landlord to estimate the amount of time required to substantially complete
repair and restoration of the Premises and make the Premises tenantable again,
using standard working methods. If the estimate indicates that the Premises
cannot be made tenantable within one hundred eighty (180) days from the date the
fire or casualty occurred, either party shall have the right to terminate this
Lease by giving to the other notice of such election within ten (10) days after
its receipt of the architect's certificate. If the estimate of the architect
indicates that the Premises can be made tenantable within such one hundred
eighty (180) days, or if neither party terminates this Lease pursuant to this
Section 9C, Landlord shall proceed with reasonable promptness to repair and
restore the Premises, provided that if the estimate of the architect indicates
that the Premises can be made tenantable within such one hundred eighty (180)
days, and if Landlord does not repair and restore the Premises within such one
hundred eighty (180) day period, which period shall be extended to the extent of
any Reconstruction Delays, then, unless the Premises are repaired and restored
before Tenant gives such notice, Tenant may terminate this Lease upon fifteen
(15) days prior written notice to Landlord. For purposes of this Lease, the term
"Reconstruction Delays" shall mean: (1) any delays caused by the insurance
adjustment process, (2) any delays caused by Tenant, and (3) any delays caused
by events beyond Landlord's reasonable control.
D. In the event that this Lease is terminated pursuant to Section 9A or
Section 9C above, Base Rent and Operating Cost Rent shall be apportioned on a
per diem basis and paid to the date of the fire or other casualty. In the event
that such fire or casualty renders all or any portion of the Premises
untenantable and this Lease is not terminated pursuant to Section 9A or Section
9C, then subject to the last sentence of this Section 9D, the Base Rent provided
for in this Lease shall xxxxx on a per diem basis during the period of repair
and restoration until the Premises are tenantable again, and the abatement shall
be in an amount bearing the same ratio to the total amount of such Base Rent due
for such period as the untenantable portion of the Premises from time to time
bears to
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the entire Premises. Any provision hereof notwithstanding, Tenant's Base Rent
shall not xxxxx if the negligence of Tenant, or its agent or employees, was the
cause of the fire or other casualty
10. RIGHTS RESERVED TO THE LANDLORD. Landlord reserves the rights,
exercisable without notice to Tenant except as otherwise expressly provided
herein, and without liability to Tenant for damage or injury to property,
person or business (all such claims being hereby released, except to the extent
they are caused by Landlord's gross negligence or willful misconduct), and
without effecting an eviction or disturbance of Tenant's use or possession or
giving rise to any claim for offsets, or abatements of Rent or affecting any of
Tenant's obligations under this Lease:
A. NAME: To change the Project's name or street address.
B. SIGNS: To install, affix and maintain any and all signs on
the exterior and interior of the Building and to prescribe the location and
style of all signs visible from the exterior of the Building or from within its
lobbies or common corridors.
C. WINDOWS/DESIGN: To designate and approve, prior to
installation, all types of window shades, blinds, drapes, awnings, window
ventilators and other similar equipment; to control all the internal lighting
that may be visible from the exterior of the Building; and to approve the
design, arrangement, style, color and general appearance of any portion of the
Premises including, without limitation, furniture, fixtures, art work, wall
coverings, carpet and decorations) which is visible from the common areas or
from the exterior of the Building, and all changes or additions thereto.
D. SERVICE CONTRACTS: To designate all sources furnishing sign
painting and lettering, ice and drinking water, towels, toilet supplies,
beverages, food service, or other services on the Premises, provided that the
rates for such services as are designated by Landlord are reasonably competitive
with rates charged therefor in the Minneapolis-St. Xxxx metropolitan area. No
vending or dispensing machines of any kind shall be placed in or about the
Premises without the prior written consent of Landlord.
E. KEYS: To retain at all times, and to use for purposes
authorized in this Lease, passkeys to the Premises and keys to all locks for
doors within and into the Premises.
F. ACCESS FOR REPAIRS, ETC.: Upon reasonable prior written
notice to Tenant (except in an emergency), to have access to the Premises to
perform its duties and obligations under this Lease and to inspect the Premises,
make repairs, alterations, additions or improvements, whether structural or
otherwise, in and about the Premises, the Project or any part thereof as set
forth in various Sections of this Lease including, without limitations, Section
5 and 10M.
G. OCCUPANCY: To decorate, remodel, repair, alter or otherwise
prepare the Premises for reoccupancy at any time after Tenant vacates or
abandons the Premises. Such acts of Landlord shall not relieve Tenant of its
obligation to pay Rent to the Termination Date.
H. RIGHTS TO CONDUCT BUSINESSES: To grant anyone the exclusive
right to conduct any business or render any service in the Project provided such
exclusive right shall not operate to exclude Tenant's Permitted Use as set forth
on the Schedule.
I. HEAVY EQUIPMENT: To approve the weight, size or location of
safes and other heavy equipment and articles in and about the Premises and the
Project and to require all such items and furniture to be moved into and out of
the Building or anywhere else in the Project and the Premises only at such times
and in such manner as Landlord shall direct in writing. Movement of Tenant's
property into or out of the Project and within the Project is entirely at the
risk and responsibility of Tenant.
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J. SHOW PREMISES: To show the Premises to prospective tenants
or brokers during the last six (6) months of the Term of this Lease or of any
extension thereof or to show the Premises to prospective purchasers at all
reasonable times, provided prior reasonable notice is given to Tenant in each
case and Tenant's use and occupancy of the Premises shall not materially be
inconvenienced by any such action of Landlord.
K. CLOSE PROJECT: To restrict access to the Project during
such hours as Landlord shall from time to time reasonably determine and on
holidays, subject, however, to Tenant's rights to admittance at all times under
such regulations as Landlord may prescribe from time to time which may include,
by way of example but not of limitation, that persons entering or leaving the
Project identify themselves to a security guard by registration or otherwise and
that said persons establish their right to enter or leave the Project. In case
of an emergency, Landlord may restrict or prevent access to the Project, or
otherwise take such actions as deemed necessary by Landlord for the safety of
tenants or other occupants of the Building or the protection of the Project.
L. SUBSTITUTION OF SPACE: At any time hereafter, Landlord may
relocate the Premises to another area in the Project (herein referred to as the
"new premises") upon thirty (30) days prior written notice, provided, that: (1)
the new premises shall be substantially similar to the Premises in area and
suitable for the use which Tenant had made of the old Premises; (2) if the
Premises are being improved pursuant to the provisions of Exhibit C, Landlord
will pay the costs of improving the new premises so they are substantially
similar to the old Premises; and (3) Landlord shall pay all of Tenant's
reasonable moving costs. Tenant shall cooperate with Landlord in all reasonable
ways to facilitate the move to the new premises including, by way of example but
not of limitation, designating locations to move furniture and equipment,
supervising moving of files or fragile equipment, designating location of
telephone outlets, and listing color of paint and of flooring desired in the new
premises. If Landlord exercises it right under this Section, the new premises
shall thereafter be deemed for all purposes of this Lease as the Premises.
M. REPAIRS AND ALTERATIONS: At any time Landlord may make
repairs, additions, decorations or improvements, structural or otherwise, in or
to the Project or any part thereof, including the Premises, and perform any acts
required or permitted hereunder, or related to the safety, protection,
preservation or improvement of the Project or the Premises, and during such
operations Landlord shall have the right to take into and through the Premises
or any part of the Project all material and equipment required and to close and
temporarily suspend operation of entrances, doors, corridors, elevators and
other facilities, and to have access to and open all ceilings, without liability
to Tenant by reason of interference, inconvenience, annoyance or loss of
business; provided, that Landlord shall not interfere with Tenant's use of the
Premises any more than is reasonably necessary under the circumstances, and
shall not do any act which would permanently reduce the size of the Premises.
Landlord shall do any such work during ordinary business hours, and Tenant shall
pay Landlord for overtime and for any other expenses incurred if such work is
done during other hours at Tenant's request. Landlord may do or permit any work
to be done upon or along, and any use of, any adjacent or nearby building, land,
street, alley or way.
N. LOCK BOX AGENT: Landlord may from time to time designate a
bank or other lock box agent for the collection of amounts due Landlord. The
date of any payment to such agent shall be the date of such agent's receipt of
the payment (or the date of actual collection of any check not cleared by
Landlord's bank within three (3) business days after deposit): provided, that
for purposes of this Lease, no such payment or collection shall be deemed
"accepted" by Landlord if Landlord mails a check in such amount to Tenant at the
address set forth on the Schedule within a reasonable period after such receipt
or collection. In addition, Landlord, at its sole discretion, may treat any such
payment as "on account" of the Tenant, except to the extent Landlord applies any
such payment to Tenant's account. The mailing of such payment to Tenant shall be
deemed to be a rejection of Tenant's tender of such payment for all purposes as
of the date of the lock box agent's receipt or collection of such payment,
without thereby waiving any default or any right or remedy of Landlord.
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O. OTHER RIGHTS: All other rights accruing to Landlord by operation of
law or reserved specifically or by inference by the Landlord pursuant to the
provisions of the Lease.
11. DEFAULT AND LANDLORD'S REMEDIES.
A. DEFAULTS. The occurrence of any of the following shall
constitute a default hereunder:
(1) If Tenant fails to pay any Base Rent or Operating
Cost Rent within ten (10) business days of the due
date, or fails to pay any Additional Rent or other
sum required to be paid by this Lease or to deliver
any instrument or certificate as provided in Section
13 or Section 16 within fifteen (15) business days
after written notice;
(2) If Tenant fails to perform or comply with any of
Tenant's obligations or agreements as provided in
this Lease or in any other agreement between Landlord
and Tenant (except those specified in Subsection (1),
(3), and (4) of this Section 11A); provided that
Tenant shall not be deemed in default (a) if such
failure is cured within fifteen (15) business days
(forthwith, if the failure involves a hazardous
condition) after written notice to Tenant, or (b)
with respect to a non-hazardous failure which is
curable but cannot reasonably be cured within
fifteen (15) business days if Tenant immediately
commences to cure and diligently proceeds to
complete the cure of such failure within a
reasonable time period which shall in no event
extend beyond thirty (30) days after written notice
to Tenant;
(3) If Tenant abandons or vacates the Premises during the
Term; or
(4) If the leasehold interest of Tenant is levied upon
under execution or is attached under process of law,
which levy or attachment continues for a period of
thirty (30) days; or if Tenant becomes insolvent or
bankrupt or shall generally not pay its debts as they
become due or shall admit in writing its inability to
pay its debts or shall make an assignment for the
benefit of creditors; or if any proceeding or other
action shall be filed by or against Tenant seeking
reorganization, arrangement, adjustment, liquidation,
dissolution or composition of Tenant or its debts
under any law relating to bankruptcy, insolvency or
relief of debtors, or seeking appointment of a
receiver, trustee, custodian or other similar
official for it or any substantial part of its
property (provided, that no such proceeding or action
shall constitute a default under this Lease if Tenant
shall vigorously contest the same by appropriate
proceedings and the same shall be vacated or
dismissed within thirty (30) days after the date of
filing); or if Tenant is a corporation, partnership
or other entity, Tenant shall be dissolved,
liquidated or otherwise cease to exist.
B. LANDLORD'S REMEDIES.
(1) Upon the occurrence of any one or more defaults by
Tenant, Landlord may elect, at any time thereafter by
written notice to Tenant, to terminate this Lease and
Tenant's rights to the Premises as of the date set
forth in the notice or, without terminating this
Lease, to terminate Tenant's right to possession of
the Premises as of the date set forth in the notice.
Upon any termination of this Lease, whether by lapse
of time or otherwise, or upon any termination of
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Tenant's right to possession without termination of
the Lease, Tenant shall surrender possession and
vacate the Premises and deliver possession thereof to
Landlord, and Tenant hereby authorizes Landlord to
enter into and upon the Premises with or without
process of law, and repossess the Premises and to
remove Tenant and all occupants and property
therefrom using such force as may be necessary
without being deemed in any manner guilty of
trespass, eviction or forcible entry or detainer, and
without relinquishing Landlord's rights to Rent or
any other right given to Landlord hereunder or by law
or in equity. Except as otherwise provided in this
Section 11, Tenant expressly waives the service of
any notice of intention to terminate this Lease or to
reenter to Premises, any demand for payment of Rent
or possession, all present or future redemption
rights, and any other notice or demand. Landlord and
Tenant each hereby waive trial by jury in any action,
proceeding or counterclaim brought by Landlord for
recovery of the Premises or eviction. Tenant agrees
not to interpose any counterclaims (other than
compulsory counterclaims) in any proceeding for
recovery of the Premises.
(2) If Landlord elects to terminate Tenant's right to
possession only without terminating the Lease,
Landlord may at Landlord's option enter into the
Premises and take and hold possession thereof as set
forth in Section 11B(1) without such entry and
possession terminating the Lease or releasing Tenant,
in whole or in part, from Tenant's obligation to pay
the Rent hereunder for the full Term, and, at
Landlord's option, the aggregate amount of the Base
Rent and Operating Cost Rent (based upon the amount
thereof for the calendar month immediately preceding
the month in which the default has occurred) for the
period from the date stated in the written notice
terminating possession to the stated end of the Term
shall be immediately due and payable by Tenant to
Landlord, together with any other monies due
hereunder, and Landlord shall have right to immediate
recovery of such amounts. In addition, Landlord shall
have the right from time to time, to recover from
Tenant, and Tenant shall remain liable for, all Rent
not theretofore accelerated and paid pursuant to the
foregoing sentence and any other sums thereafter
accruing as they become due under this Lease during
the period from the date stated in the notice
terminating possession to the stated end of the Term.
Upon and after entry into possession without
termination of the Lease, subject to Landlord's right
to first rent other vacant areas in the Project,
Landlord may relet the Premises or any part thereof
for such Rent, for such time (which may be a period
extending beyond the stated Term of this Lease) and
upon such terms as Landlord in Landlord's sole
discretion shall determine. In any such case,
Landlord may make repairs, alterations and additions
in or to the Premises and redecorate the same to the
extent deemed necessary or desirable by Landlord, and
in connection therewith Landlord may change the locks
to the Premises, and Tenant shall upon written demand
pay the cost thereof, together with Landlord's
expenses of reletting. Any proceeds from the
reletting of the Premises by Landlord shall be
collected by Landlord and shall first be applied
against the costs and expenses of reentry and of
reletting the Premises including, without limitation,
all brokerage, advertising, legal, alteration,
redecoration, repair and other reasonably necessary
costs and expenses incurred to secure a new tenant
for the Premises, and second to the payment of Rent
herein provided to be paid by the Tenant. If the
consideration collected by Landlord upon any such
reletting, after payment of the expenses of reletting
the Premises, is not sufficient to pay any
accelerated
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amounts of Rent due and owing and to pay monthly the
full amount of the Rent reserved in this Lease and
not theretofore accelerated, Tenant shall pay to
Landlord the accelerated amounts upon demand, and the
amount of each monthly deficiency as it becomes due
(as the case may be). If the consideration collected
by Landlord upon any such reletting for Tenant's
account after payment of the expenses of reletting
the Premises is greater than the amount necessary to
pay accelerated amounts of Rent due and owing and to
pay that full amount of Rent reserved in this Lease
and not theretofore accelerated, the full amount of
such excess shall be retained by Landlord and in no
event shall be payable to Tenant. No such reentry,
repossession, repairs, alterations, additions or
reletting shall be construed as an eviction of Tenant
or as an election on Landlord's part to terminate
this Lease, unless written notice of such intention
is given to Tenant, or shall operate to release
Tenant in whole or in part from any of Tenant's
obligations hereunder. Notwithstanding any reentry or
reletting by Landlord, Landlord may at any time
thereafter elect to terminate this Lease for such
previous default.
(3) If Landlord elects to terminate this Lease, Landlord
shall be entitled to recover from Tenant all of the
amounts of Rent accrued and unpaid for the period up
to and including the date of the termination, as well
as all other additional sums for which Tenant is
liable, or in respect of which Tenant has agreed to
indemnify Landlord under any of the provisions of
this Lease, which may then be owing and unpaid, and
all costs and expenses including, without limitation,
court costs and reasonable attorneys' fees incurred
by Landlord in the enforcement of its rights and
remedies hereunder, and in addition, Landlord, at its
sole option, shall be entitled to recover from Tenant
and Tenant shall pay to Landlord, on demand, as final
and liquidated damages (and not as a penalty), a sum
equal to the amount of Landlord's reasonable estimate
of the aggregate amount of Base Rent, Operating Cost
Rent and Additional Rent that would be payable for
the period from the date of such termination through
the Termination Date, reduced by the then reasonable
rental value of the Premises for the same period (as
such reasonable rental value may be decreased for
Landlord's reasonably anticipated costs, expenses and
delays in reletting the Premises). If, before
presentation of proof of such liquidated damages to
any court, all or any part of the Premises shall have
been relet by Landlord for all or any part of such
period, the amount of Rent payable upon such
reletting shall be deemed to be the reasonable
rentable value for the part or the whole of the
Premises relet during the term of the reletting.
(4) Upon any default by Tenant under this Lease, Landlord
may, but shall not be obligated to, take any action
to cure the default without waiving or releasing any
obligation of Tenant or preventing Landlord from
pursuing any available remedy. All amounts paid or
incurred by Landlord in curing any default of Tenant
or performing any of Tenant's obligations under this
Lease, and reasonable attorneys' fees in connection
therewith, shall be paid by Tenant to Landlord as
Additional Rent on demand.
(5) Notwithstanding anything in this Lease to the
contrary, any and all remedies set forth in this
lease (a) shall be in addition to any and all other
remedies Landlord may have at law or in equity, and
(b) shall be cumulative. The waiver by Landlord of
any breach of any term, covenant or condition herein
contained
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shall only be effective if it is in writing and shall
not be deemed to be a waiver of a continuing or
subsequent breach of the same, or of any other term,
covenant or condition herein contained. The
acceptance of Rent or any other amounts due hereunder
shall not be construed to be a waiver of any breach
by Tenant of any term, covenantor condition of this
Lease, and if the same shall be accepted after that
termination of this Lease, by lapse of time or
otherwise, or of the Tenant's right of possession
hereunder, or after the giving of any notice, such
acceptance shall not reinstate, continue or extend
the Term of this Lease or affect any notice given to
Tenant prior to the receipt of such amounts, it being
agreed that after the service of notice or the
commencement of a suit or after final judgment for
possession of the Premises, Landlord may receive and
collect any Rent and other sums due, and the payment
of the same shall not waive or affect said notice,
suit or judgment. No payment by Tenant or receipt by
Landlord of a lesser amount than the amount due
hereunder shall be deemed to be other than on account
of the earliest portion thereof due, nor shall any
endorsement or statement on any check or letter
accompanying a check for payment of Rent be deemed
an accord and satisfaction; and Landlord may accept
such check or payment without prejudice to Landlord's
right to recover the balance of such Rent or to
pursue any other remedy provided in this Lease.
(6) Notwithstanding any provision in this Lease
prohibiting Landlord from exercising its rights if
Tenant cures a default within a specified period of
time, if Tenant shall default (a) in the timely
payment of Rent (whether any or all of Base Rent,
Operating Cost Rent or Additional Rent) three (3) or
more times in any period of twelve (12) consecutive
months, or (b) in the performance of any particular
term, condition or covenant of this Lease three (3)
or more times in any period of twelve (12)
consecutive months, then, notwithstanding that such
defaults shall have each been cured within any
applicable cure period after notice, if any, as
provided in this Lease, in connection with any
further similar default during such twelve-month
period (including, without limitation, with respect
to non-payment of Rent, the further non-payment of
any kind of Rent payable under this Lease) Tenant
shall not be entitled to any further cure period of
notice, and Landlord shall have the right to exercise
all of the remedies provided in this Lease
immediately after the occurrence of such similar
default.
(7) In the event that Tenant shall file for protection
under the Bankruptcy Code now or hereafter in effect,
or a trustee in bankruptcy shall be appointed for
Tenant, Landlord and Tenant agree to the extent
permitted by law, to request that the
debtor-in-possession or trustee in bankruptcy, if one
shall have been appointed, assume or reject this
Lease within sixty (60) days thereafter.
12. HOLDOVER. If Tenant holds over after the termination or expiration
of the Term without the written consent of Landlord (which may be withheld in
Landlord's sole discretion), Tenant shall pay Base Rent and Operating Cost Rent
at twice the rate payable for the fiscal year immediately preceding the holding
over, computed on a daily basis for each day Tenant thus remains in possession,
and, in addition, Tenant shall pay Landlord all damages, consequential as well
as direct, sustained by reason of Tenant's holding over. Alternatively, at the
election of Landlord by written notice to Tenant, such retention of possession
shall constitute a renewal of this Lease for a month-to-month tenancy at twice
the monthly Base Rent and Operating Cost Rent for the immediately preceding
fiscal year, and Tenant shall continue to make all other payments required under
this Lease. Neither the acceptance of Rent by the Landlord after termination,
nor the provisions of this Section: (a) shall be construed as, or operate as, a
renewal or as a waiver of Landlord's right of reentry or right to regain
possession by actions at law or in equity or
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by any other right or remedy hereunder, or (b) shall be construed as, or operate
as, a waiver of any other right or remedy of Landlord.
13. SUBORDINATION.
A. SUBORDINATION. This Lease shall be subordinated to each mortgage or
trust deed ("Mortgage") and each ground lease or other underlying lease ("Ground
Lease") now or hereafter in force with respect to the Project at the election of
the mortgages under any Mortgage or the lessor under any Ground Lease,
including, without limitation, any amendments, renewal, modification,
consolidation, replacement or extension thereof and all interest thereon and
advances thereunder. Upon request of Tenant, Landlord shall use its best efforts
to obtain a standard nondisturbance agreement which provides that Tenant's
tenancy shall not be disturbed and recognizes all of the rights of Tenant
hereunder so long as Tenant is not in default in the payment of any rent or the
performance of any other term of this Lease. Any subordination at the election
of any such mortgagee or ground lessor shall be self-operative and no further
instrument of subordination shall be required; provided, that within ten (10)
days after written request by Landlord, Tenant shall execute and deliver any
necessary or useful instruments acknowledging the subordination of this Lease as
provided herein. In the event of the enforcement by any mortgagee or ground
lessor of the remedies provided for by law or by such Mortgage or Ground Lease,
Tenant shall, upon request of any person succeeding to the interest of such
mortgagee or ground lessor as a result of such enforcement, automatically become
the tenant of said successor in interest, without change in the terms of this
Lease; provided, that such successor recognizes the rights and interests of
Tenant under this Lease, and provided further that said successor in interest
shall not (1) be bound by any payment of Rent for more than one month in advance
except prepayments in the nature of security for the performance by Tenant of
its obligations under this Lease, or (2) be bound by any amendment or
modification of this Lease made without the consent of such mortgagee or
successor in interest, or (3) be subject to any offsets or defenses Tenant might
have against any prior landlord, or (4) be liable for any act or omission of any
prior landlord, or (5) be liable for any security deposit except to the extent
held by such successor in interest. Upon request by such successor in interest,
Tenant shall execute and deliver any instruments necessary or useful to confirm
the attornment.
B. NOTICE AND RIGHT TO CURE. Tenant agrees to give the mortgagee under
any Mortgage or lessor under any Ground Lease a copy of any notice of default
served upon the Landlord, provided that prior to such notice Tenant has been
notified in writing of the address of such mortgagee or ground lessor. Tenant
further agrees that if Landlord shall have failed to cure such default within
the time provided for in this Lease, then such mortgagee or ground lessor shall
have an additional sixty (60) days within which to cure such default, or if such
default cannot be cured within that time, such mortgagee or ground lessor shall
have such additional time as may be necessary to cure such default; provided,
that within that time, such mortgagee or ground lessor shall have such
additional time as may be necessary to cure such default; provided, that within
such sixty (60) days, any mortgagee or ground lessor, as the case may be, has
commenced and is diligently pursuing the cure of such default (including,
without limitation, commencement of foreclosure or lease forfeiture proceedings,
if necessary to effect such cure), and Tenant shall not pursue any of the
remedies it may have for such default and this Lease shall not be terminated,
while such cure is being diligently pursued, so long as the default is cured
within a reasonable time thereafter. During the period between the giving of
such notice and the remedying of Landlord's default, the Rent herein recited
shall be abated and apportioned to the extent that any part of the Premises
shall be untenantable.
14. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not, without the prior written consent of Landlord,
such consent not to be unreasonably withheld, in each instance, (1) assign,
transfer, mortgage or encumber, or create or permit any lien upon, this Lease or
any interest under it, (2) allow to exist or occur any transfer of or lien upon
this Lease or the Tenant's interest herein by operation of law, (3) sublet the
Premises or any part thereof, or (4) permit the use or occupancy of the
Premises or any part thereof for any purpose not provided for under Section 6 or
by anyone other than the Tenant and Tenant's employees. In no event shall this
Lease or any interest herein be assigned or
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assignable by voluntary or involuntary bankruptcy proceedings or by operation of
law or otherwise, and in no event shall this Lease or any rights or privileges
hereunder be an asset of Tenant under any bankruptcy, insolvency or
reorganization proceedings, except to the extent provided by law.
B. Consent by Landlord to any assignment, subletting, use, occupancy,
transfer or encumbrance shall not operate to relieve Tenant from any covenant,
liability or obligation hereunder (whether past, present or future), including,
without limitation, the obligation to pay Rent, except to the extent, if any,
expressly provided for in such consent, nor shall such consent be deemed to be a
consent to any subsequent assignment, subletting, use, occupancy, transfer or
encumbrance. Tenant shall pay all of Landlord's reasonable costs, charges and
expenses (including, without limitation, reasonable attorneys' fees) incurred in
connection with any assignment, subletting, use, occupancy, transfer or
encumbrance made or requested by Tenant.
C. Tenant shall, by notice in writing, advise Landlord of its intention
for, on and after a stated date (which shall not be less than sixty (60) days
after the date of Tenant's notice) to assign this Lease or sublet any part or
all of the Premises for the balance or any part of the Term. Tenant's notice
shall include the name and address of the proposed assignee or subtenant, a true
and complete copy of the proposed assignment or sublease and sufficient
information as Landlord deems reasonably necessary concerning the financial
responsibility and character of the proposed assignee or subtenant. Within
thirty (30) days following receipt of Tenant's notice (and any additional
information reasonably requested by Landlord), Landlord shall notify Tenant if
Landlord consents to the proposed assignment or sublease. In no event shall
Landlord be required to consent to any assignment or sublease (1) to an existing
tenant in the Project, (2) which may violate any restrictions contained in any
mortgage, lease or agreement affecting the Projector Landlord, or (3) which is
not in compliance with all of the terms of this Section and this Lease.
D. Upon any assignment or sublease, one hundred percent (100%) of the
rent or other consideration ("Excess Consideration") received by Tenant in
excess of the amount of Base Rent and Operating Cost Rent payable to Landlord
under this Lease, which amount is to be prorated where a part of the Premises is
assigned or subleased, shall be payable by Tenant to Landlord as Additional Rent
within ten (10) days after receipt thereof by Tenant from time to time.
E. If Tenant shall assign this Lease as permitted herein, the assignee
shall expressly assume all of the obligations of Tenant hereunder and agree to
comply with and be bound by all of the terms, provisions and conditions of this
Lease, in a written instrument satisfactory to Landlord and furnished to
Landlord not later than fifteen (15) days prior to the effective date of the
assignment. If Tenant shall sublease the Premises as permitted herein, Tenant
shall obtain and furnish to Landlord, not later than fifteen (15) days prior to
the effective date of such sublease in form satisfactory to Landlord, the
written agreement of such subtenant that it shall comply with and be bound by
all of the terms, provisions and conditions of this Lease and that it will
attorn to Landlord, at Landlord's option and written request, in the event this
Lease terminates before the expiration of the sublease.
F. If Tenant is a corporation whose stock is not publicly traded, any
transaction or series of transactions (including, without limitation, any
dissolution, merger, consolidation or other reorganization of Tenant, or any
issuance, sale, gift, transfer or redemption of any capital stock of Tenant,
whether voluntary, involuntary or by operation of law, or any combination of any
of the foregoing transactions) resulting in the transfer of control of Tenant,
other than by reason of death, shall be deemed to be a voluntary assignment of
this Lease by Tenant subject to the provisions of this Section 14. If Tenant is
partnership, any transaction or series of transactions (including, without
limitation, any withdrawal or admittance of a partner or any change in any
partner's interest in Tenant, whether voluntary, involuntary or by operation of
law, or any combination of any of the foregoing transactions) resulting in the
transfer of control of Tenant, other than by reason of death, shall be deemed to
be a voluntary assignment of this Lease by Tenant subject to the provisions of
this Section 14. The term "control" as used in this Section 14F means the power
to directly or indirectly direct or cause the direction of the management or
policies of Tenant. If Tenant is a corporation, a change or series of changes in
ownership of stock which would result in direct
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or indirect change in ownership of less than fifty percent (50%) of the
outstanding stock of Tenant as of the date of the execution and delivery of this
Lease shall not be considered a change of control.
G. Any assignment, subletting, use, occupancy, transferor
encumbrance of this Lease or the Premises without Landlord's prior written
consent shall be of no effect and shall, at the option of Landlord, constitute a
default under this Lease.
15. SALE BY LANDLORD. In the event of sale or conveyance or transfer by
Landlord of its interest in the Project or in the Building or in this Lease, the
same shall operate to release Landlord (subject to the last sentence of Section
17 hereof) from any future obligations and any future liability for or under any
of the covenants or conditions, express or implied, herein contained in favor of
Tenant, and in such event, and with respect to such obligations, covenants and
conditions, Tenant agrees to look solely to the successor in interest of
Landlord in and to this Lease. This Lease shall not be affected by any such
sale, conveyance or transfer.
16. ESTOPPEL CERTIFICATE. Tenant shall, at the request of Landlord at
any time and from time to time upon not less than ten (10) days' prior written
notice, execute, acknowledge in recordable form, and deliver to Landlord (or to
Landlord's mortgagee, ground lessor, auditors or a prospective purchaser of the
Project or any part thereof) a certificate stating that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect), and the dates to which the Rent and other charges are paid, and
that Tenant is paying Rent on a current basis with no offsets or claims, and
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord (or specifying such offsets, claims or defaults, if any are claimed).
Such certificate may require Tenant to specify the date of commencement of Rent,
the Commencement Date, the Termination Date, the Base Rent, current Operating
Cost Rent estimates, the net rentable area of the Premises, the date to which
Rent has been paid, whether or not Landlord has completed any improvements
required to be made to the Premises and such other matters as may be reasonably
required. Any such certificate may be relied upon by any prospective purchaser
or encumbrancer of all or any portion of the Project, any mortgagee or ground
lessor, auditors or any other person to whom it is delivered. The failure to
deliver such statement within the time required hereunder shall, at the option
of Landlord, be a default under this Lease, or be conclusive evidence, binding
upon Tenant that this Lease is in full force and effect, without modification,
except as may be represented by Landlord, that there are no uncured defaults by
Landlord and that not more than one (1) month's Rent has been paid in advance,
and the Tenant shall be estopped from asserting any defaults known to it at that
time.
18. FORCE MAJEURE. Except as specifically provided to the contrary in
this Lease, this Lease and the obligation of Tenant to pay Rent hereunder and
perform all of Tenant's covenants and agreements hereunder shall not be impaired
nor shall Landlord be in default hereunder because Landlord is unable to fulfill
any of its obligations under this Lease, if Landlord is prevented or delayed
from so doing by any of the following (which shall be referred to herein as a
"Force Majeure"): any accident, breakage, repairs, alterations, improvements,
strike or labor troubles, shortages of labor or materials, or any other cause
whatsoever beyond the reasonable control of
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Landlord, including, without limitation, energy shortages, governmental
preemption in connection with a national emergency, or by reason of governmental
laws or any rule, order, regulation or directive of any department, subdivision,
agency or personnel thereof, or by reason of the conditions of supply and demand
which have been or are affected by war or other emergency. Further, Landlord
shall not be deemed in default for failure to perform its obligations under this
Lease, (a) if such failure is cured within thirty (30) days after Tenant gives
written notice to Landlord of such alleged failure, or (b) with respect to a
failure which reasonably requires more than thirty (30) days to cure, if
Landlord immediately commences to cure and diligently proceeds to complete the
cure of such failure within a reasonable time period, which shall in no event,
subject to Force Majeure, extend beyond ninety (90) days after written notice to
Landlord.
19. PERSONAL PROPERTY AND TENANT FIXTURES. Tenant hereby grants
security interest to Landlord in all of Tenant's personal property and fixtures
situated on the Premises as security for the payment of all Rent due or to
become due hereunder. Said property shall not be removed therefrom without the
consent of Landlord until all Rent due or to become due hereunder shall have
first been paid and discharged. It is intended by the parties hereto that this
Lease constitutes a security agreement creating a security interest in and to
such property, subject to the liens of any existing creditors, and Landlord,
upon default of Tenant in the payment of Rent, shall have all rights of a
secured party, as provided in the Minnesota Uniform Commercial code, as from
time to time in effect. Contemporaneously with the execution of this Lease,
Tenant shall execute any financing statements or other documents necessary or
useful to perfect the security interest granted herein.
20. NOTICES. All notices and approvals to be given by one party to the
other party under this Lease shall be given in writing, mailed or delivered as
follows: to Landlord at the address set forth on the Schedule, or to such other
person or at such other address designated by notice to Tenant; and to Tenant at
the address set forth on the Schedule, or to such other person or at such other
address designated by notice to Landlord. Mailed notices shall be sent by United
States Certified or Registered Mail, postage prepaid. Mailed notices shall be
deemed to have been given upon posting in the United States mails, and notices
delivered personally shall be deemed to have been given upon delivery.
21. QUIET POSSESSION. So long as Tenant shall observe and perform the
covenants and agreements binding on its hereunder, Tenant shall at all times
during the Term and subject to the provisions of this Lease peacefully and
quietly have and enjoy the possession of the Premises without any encumbrances
or hindrance by, from or through Landlord, its successors or assigns.
22. REAL ESTATE BROKERS. Landlord and Tenant each represent that it has
not dealt with any real estate broker with respect to this Lease, except for any
broker set forth on the Schedule (whose commission, if any, shall be paid by
Landlord pursuant to separate written agreement), and, to its knowledge, no
other broker initiated or participated in the negotiation of this Lease,
submitted or showed the Premises to Tenant or is entitled to any commission in
connection with this Lease. Tenant agrees to indemnify and hold Landlord
harmless from all claims, liability or expense (including, without limitation,
reasonable attorney's fees) for brokerage commissions or finder's fees as a
result of Tenant's actions or alleged actions.
23. CONDEMNATION. If during the Term all or any part of the Premises
shall be taken by eminent domain, this Lease shall terminate as to the part so
taken on the date Tenant is required to deliver possession to the condemning
authority. If this Lease is not terminated as provided below, Landlord shall
make such repairs and alterations as may be necessary in order to restore the
part not taken to useful condition (excluding Tenant's property and improvements
made by Tenant); and, effective upon the date of taking, the Base Rent and
Operating Cost Rent shall be reduced proportionately and equitably based on the
portion taken. If all or any portion of the Project or Premises are taken by
eminent domain so that the Premises cannot be reasonably used for Tenant's
Permitted Use, then at the option of either party this Lease may be terminated
effective as of the date of the taking and all Rent reserved hereunder shall be
paid to the date of such taking. If any condemnation proceeding shall be
instituted in which it is sought to take or damage any part of the Project, or
if the grade of any street or alley adjacent to the Project is changed by any
competent authority and such taking, damage or change of grade in
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Landlord's opinion substantially impairs the use or operation of the Building or
the Project, or makes it necessary or desirable to remodel the Building or the
Project, Landlord shall have the right to terminate this Lease upon not less
than ninety (90) day's notice prior to the date of termination designated in the
notice. All compensation awarded for any taking of the fee and the leasehold
shall belong to and be the property of Landlord; provided, that so long as the
same does not diminish the amount of the award or consideration to Landlord for
taking of real property interests, Tenant shall be entitled to recover from the
condemning authority any separate award for relocation or moving expenses, trade
fixtures and personal property Tenant is entitled to remove from the Premises,
or loss of business. The term "eminent domain" shall include the exercise of any
similar governmental power and any purchase or other acquisition in lieu of
condemnation.
24. UNRELATED BUSINESS INCOME. Landlord shall have the right at any
time and from time to time to unilaterally amend the provisions of this Lease,
if Landlord is advised by its counsel that all or any portion of the monies paid
by Tenant to Landlord hereunder are, or may be deemed to be, unrelated business
income within the meaning of the United States Internal Revenue Code or
regulations issued thereunder, and Tenant agrees that it will execute all
documents or instruments necessary to effect any such amendment; provided, that
no such amendment shall result in Tenant having to pay in the aggregate more
money on account of its occupancy of the Premises under the terms of this Lease,
as so amended, and provided further, that no such amendment shall result in
Tenant receiving fewer services or services of a lesser quality than it is
presently entitled to receive under this Lease. Any services which Landlord is
required to furnish pursuant to the provisions of this Lease may, at Landlord's
option, be furnished from time to time, in whole or in part, by employees of
Landlord or any managing agent of the Project or its employees or by one or more
third persons approved by Landlord.
25. LIMITATION OF LIABILITY. Tenant specifically agrees to look solely
to Landlord's interest in the Project for the recovery of any judgment against
Landlord; it being agreed that Landlord (and if Landlord is a partnership, its
partners whether general or limited; or if Landlord is a trust, its trustees or
beneficiaries) shall never be personally liable for any such judgment. All such
personal liability for any representation, warranty, covenant, undertaking or
agreement under this Lease is hereby waived and released by Tenant and by all
persons claiming by, through or under Tenant. The provisions of this Section are
not intended to, and shall not, limit any right that Tenant might otherwise have
to obtain injunctive relief against Landlord or Landlord's successors in
interest or any suit or action in connection with enforcement or collection of
amounts which may become owing or payable under or on account of insurance
maintained by Landlord.
26. OPTION TO RENEW. Provided Tenant is not in default hereunder and
has performed all of its covenants and obligations hereunder, Tenant shall have
the option to extend the term of this Lease (hereinafter the "Option") for one
(1) period of five (5) years ("Renewal Term") upon the same terms and
conditions, except for Base Rent, and upon the following further terms and
conditions:
A. Tenant shall give written notice to Landlord, six (6)
months prior to the expiration of the then current lease term, of its request
for the annual Base Rent applicable to the particular extension period then
provided by the Option. Within thirty (30) days after receipt of Tenant's
Notice, Landlord shall advise Tenant in writing ("Landlord's Rent Determination
Notice") of Landlord's determination of Market Base Rent. If Landlord and Tenant
agree on Market Base Rent, then they shall promptly execute an amendment to this
Lease stating and incorporating such agreed-upon Market Base Rent as the Base
Rent for the applicable space. If Tenant disagrees with Landlord's
determination, Landlord and Tenant shall have a period of thirty (30) days after
Tenant's receipt of Landlord's Rent Determination Notice (the "Negotiation
Period") in which to further negotiate Market Base Rent.
If Landlord and Tenant are unable to agree upon Market Base Rent for the
Premises within the Negotiation Period, Market Base Rent shall be determined by
three (3) appraisers, each of whom must have experience in appraising rentals in
large office buildings and knowledge of the rental real estate market in the
south suburban Minneapolis-St. Xxxx metropolitan market area and no direct or
indirect financial or business interest in or in common with Landlord, Tenant or
any affiliate of either of them. Landlord and Tenant shall each designate one
(1) independent
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M.A.I. appraiser and, within ten (10) days of the appointment of such
appraisers, the two (2) such appraisers shall pick a third appraiser. Each
appraiser shall independently determine Market Base Rent for the applicable
space and shall deliver their appraisals to Landlord and Tenant in writing
within thirty (30) days after the date of their appointment. If either Landlord
or Tenant or the two (2) appointed appraisers do not timely select an appraiser,
or if any appraiser does not timely submit an appraisal, a replacement appraiser
qualified as above provided for shall be appointed by the chief judge of the
Hennepin County District Court upon written applicable by either party. The cost
of said appointment shall be borne by the party failing to timely appoint, or
the party where the appointed appraiser failed to timely act, and the cost
relating to the failure to act of the third appraiser shall be borne equally by
the parties. Market Base Rent shall be determined by averaging (i) all of the
appraisers' Market Base Rent calculations if the highest of such calculations is
not more than ten percent (10%) higher than the lowest of such and calculations
(ii) the two appraisers' Market Base Rent calculations which are closest in
amount to each other if the highest of such calculations is more than ten
percent (10%) higher than the lowest of such calculations. After the appraisal
process has been completed, the parties shall execute an appropriate amendment
to this Lease evidencing Market Base Rent. Each party shall pay the cost of its
own appraiser; the cost of the third appraiser and all other costs incurred in
connection with the appraisal process except as hereinabove specifically
provided for shall be split equally between Landlord and Tenant.
Tenant may rescind its exercise of the Extension Option if notice thereof is
given to Landlord within the Negotiation Period.
B. It is understood and agreed that this Option is personal to
Tenant and is not transferable; in the event of any assignment or subleasing of
any or all of the Demised Premises said Option shall be null and void.
27. RIGHT OF FIRST OFFER.
A. Notice of Availability. Landlord shall give Tenant written
notice of the availability of the contiguous space on the same floor ("Offer
Space"). Landlord shall include the Market Rent for the Offer Space and any
other salient business terms in connection with the Offer Space.
B. Right of First Offer. Tenant shall have the right to
exercise its right to lease the Offer Space upon the terms and conditions set
out in Landlord's notice subject to the following criteria:
(1) Tenant is not in default as of the date Landlord determines that
the Offer Space is available, and continues to not be in default through the
date the Offer Space is delivered to Tenant.
Tenant delivers to Landlord written notice exercising its
right to lease the entire Offer Space within ten (10) business days of Tenant's
receipt of Landlord's notice of availability of the Offer Space. If Tenant fails
to exercise its right to lease the Offer Space, Tenant shall have no further
obligation hereunder.
28. MISCELLANEOUS.
A. CONSENTS. Except as otherwise expressly set forth herein,
wherever the consent or approval of Tenant is required by the provisions of this
Lease, Tenant shall not unreasonably withhold or delay such consent or approval.
Except as otherwise expressly set forth herein, any consent or approval required
of Landlord by the provisions of this Lease shall be subject to the sole
discretion of the Landlord.
B. DATE PAYMENTS ARE DUE. All amounts owed to Landlord
hereunder, for which the date of payment is not expressly fixed herein, shall be
paid as Additional Rent within thirty (30) days after Landlord's statement and
shall bear interest as provided in Section 2D(2) until paid.
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C. MEANING OF "RE-ENTRY" AND "LANDLORD." The words "re-enter" and
"reentry" as used in this Lease are not restricted to their technical legal
meaning. The term "Landlord," as used in this Lease, means only the landlord
from time to time, and upon conveying or transferring its interest, such
conveying or transferring landlord shall be relieved from any further obligation
or liability pursuant to Sections 13, 15 and 17 of this Lease.
D. TIME IS OF THE ESSENCE. Time is of the essence of this Lease and
each and all of its provisions.
E. NO OPTION. Submission of this instrument for examination or
signature by Tenant or by Landlord does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution and delivery by both Landlord and Tenant.
F. SEVERABILITY. The invalidity or unenforceability of any provision
hereof shall not affect or impair any other provisions.
G. GOVERNING LAW. This Lease shall be governed by and construed
pursuant to the laws of the State of Minnesota.
H. LEASE MODIFICATION. Should any mortgagee require a modification of
this Lease, which modification will not bring about any increased cost or
expense to Tenant or in any other way substantially change the rights and
obligations of Tenant hereunder, Tenant agrees that this Lease may be so
modified.
I. NO ORAL MODIFICATION. No subsequent alteration, amendment, change or
addition to this Lease shall be binding upon Landlord or Tenant unless in
writing signed by both parties.
J. LITIGATION AND ARBITRATION COSTS. Tenant shall pay all Landlord's
costs, charges and expenses, including the reasonable fees of attorneys, agents
and others retained by Landlord, incurred in enforcing Tenant's obligations
hereunder or incurred by Landlord in any litigation, arbitration, negotiation or
transaction in which Tenant causes Landlord, without Landlord's fault, to become
involved or concerned. Provided, that in any litigation between Landlord and
Tenant regarding this Lease, the prevailing party shall be entitled to recover
reasonable costs and attorneys' fees in addition to any other relief granted by
the court.
K. CAPTIONS. The marginal headings and titles to the paragraphs of this
Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
L. REMEDIES AND RIGHTS MAY BE EXERCISED BY LANDLORD IN ITS OWN NAME:
AUTHORITY TO EXECUTE THIS LEASE. All rights and remedies of Landlord under this
Lease, or that may be provided by law, may be exercised by Landlord in its own
name individually, or in its name by any agent thereof, and all legal
proceedings for the enforcement of any such rights or remedies, may be commended
and prosecuted to final judgment and executed by Landlord in its own name
individually or in its name by any agent thereof. Landlord and Tenant each
represents to the other that each has full power and authority to execute this
Lease and to make and perform the agreements herein contained.
M. PAYMENTS TO AFFILIATES. Nothing in this Lease shall be construed to
prevent Landlord from paying for services rendered or materials delivered with
respect to the Project or to the Premises (including, without limitation,
management services and contracting out capital improvements or other capital
repairs or construction items) by affiliates of Landlord provided that the fees
or costs of such services and materials are at market rates in the
Minneapolis-St. Xxxx metropolitan area. All such fees or costs paid by Landlord
to such affiliates shall be deemed to constitute Operating Costs on the same
terms and conditions as if such fees and costs were paid to non-affiliates of
Landlord.
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N. ENTIRE AGREEMENT. This Lease (including, without limitation, all
exhibits and riders attached hereto, all of which are hereby made a part of this
Lease and incorporated by this reference) constitutes the entire agreement
between the Landlord and the Tenant. If any deletions are made from this Lease
form, the Lease shall be interpreted as if the deleted portion had never been
part of the Lease. Tenant acknowledges that it has not been induced to enter
this Lease by any promises, assurances, agreements, statements or
representations (collectively, "Representations") which are not set forth in
this Lease (including, without limitation, any Representations concerning
Operating Costs; the Premises; the Project; the suitability of the Premises,
proper zoning or availability of necessary permits and authorizations for
Tenant's Permitted Use; exclusive rights; or any other matter). Tenant
acknowledges that it has not relied on any such Representations, agrees that no
such Representations shall be used in the construction or interpretation of this
Lease and agrees that Landlord shall have no liability for any consequences
arising as a result of any such Representations.
O. LANDLORD'S TITLE. Landlord's title is and always shall be paramount
to the interest of Tenant, and nothing herein contained shall empower Tenant to
do any act which can, shall or may encumber Landlord's title.
P. LIGHT AND AIR RIGHTS. This Lease does not grant any rights to light
or air over or about the Project. Landlord specifically excepts and reserves to
itself the use of any roofs, the exterior portions of the Premises, all rights
to and the land and improvements below the improved floor level of the Premises,
the improvements and air rights above the Premises and the improvements and air
rights located outside the demising walls of the Premises, and such areas within
the Premises as are required for installation of utility lines and other
installation of utility lines and other installations required to serve any
occupants of the Project and the right to maintain and repair the same, and no
rights with respect thereto are conferred upon Tenant unless otherwise
specifically provided herein.
Q. COVENANTS BINDING ON SUCCESSORS. Subject to the terms of Section 14,
each provision of this Lease shall extend to and shall, as the case may require,
bind and inure to the unified of Landlord and Tenant and their respective heirs,
legal representatives and successors and assigns.
R. TERMS "LANDLORD" AND "TENANT." The terms "Landlord" and "Tenant"
whenever used in this Lease shall be construed to mean the plural where
necessary, and the necessary grammatical changes required to make the provisions
hereof apply either to entities or individuals or men or women, shall in all
cases be assumed as though in each case fully expressed. If more than one person
or entity signs this Lease as Tenant, each signer will be jointly and severally
liable for all of the obligations of Tenant as provided in this Lease.
S. RENT NOT BASED ON INCOME. No rental or other payment for the use or
occupancy of the Premises shall be, or is, based in whole or in part on the net
income or profits derived by any person from the Building or the Premises, and
Tenant agrees that it will not enter into any sublease, license, concession or
other agreements for any use or occupancy of the Premises which provides for a
rental or other payment for such use or occupancy based in whole or in part on
the net income or profits derived by any person from the Premises.
T. NO RECORDING BY TENANT. Tenant shall not record or file in any
public records this Lease or any portion thereof.
U. FINANCIAL STATEMENTS. Concurrent with the execution of this Lease,
Tenant shall provide Landlord with a current financial statement. Tenant
represents to landlord that there have been no major changes in Tenant's
financial situation or circumstances since the date of the financial statement.
Tenant shall submit to Landlord, at any time during the Lease term upon
Landlord's request, and not less frequently than annually (within 90 days of
Tenant's fiscal year end), its updated financial statement. Landlord shall hold
such financial statement
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and other information submitted therewith in confidence, except Landlord may
provide any lender, equity partner or prospective purchaser with the information
contained in Tenant's financial statement.
IN WITNESS WHEREOF, the parties have executed this Lease as of the above date.
LANDLORD:
APPLETREE LTD.
BY:/s/ Xxxxxxx X. Xxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxx
---------------------------
Print Title: Agent/ Member
---------------------------
TENANT:
INTERACTIVE GROUP, INC.
BY: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
----------------------------
Print Title: Vice President - Finance
----------------------------
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EXHIBIT A
FLOOR PLAN OF THE PREMISES
10th Floor, Approximately 12,000 Rentable Square Feet:
[LOGO]
[RIVERVIEW OFFICE TOWER FLOOR PLAN]
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EXHIBIT B
LEGAL DESCRIPTION
Xxx 0, Xxxxx 0, Xxxxxxxxx Xxxxxx Second Addition.
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EXHIBIT C
TENANT IMPROVEMENT WORK AGREEMENT
1 . Construction. Tenant and Landlord have agreed to schematic drawings
for construction of certain Tenant Finish improvements of the Premises, such
schematic drawings being attached hereto as Exhibit C-1 and by this reference
are incorporated herein. Plans and specifications for the Tenant Finish
Improvements shall be prepared by Landlord's architect on the basis of Exhibit
C-1. Landlord agrees to substantially complete the Tenant Finish Improvements
prior to commencement of the Term with the exception of Tenant's punchlist which
shall be completed within thirty (30) days of Tenant occupancy. The information
to be furnished by Tenant to the Architect shall include, without limitation:
(a) Any requirements of the Tenant for the Premises which are in
excess of, or otherwise vary in any respect from, Building
standard items.
(b) Special loading, such as the location of and requirements for
file cabinets or special equipment.
(c) Openings in the walls or floors.
(d) Special heating, ventilating, air conditioning, electrical,
sprinkler, lighting, security system, or plumbing work.
(e) Location and dimensions of telephone equipment areas, and
location of telephone and electrical outlets, switches and
lights.
(f) Partitions - locations and type, including doors and hardware,
windows, glass partitions and special framing or support.
(g) Special cabinet work and other millwork items.
(h) Variations to standard ceiling heights.
(i) Location and color selection of painted areas.
(j) Location and selection of floor covering and wall coverings.
(k) Location and type of any kitchen equipment.
(l) Such additional information as reasonably specified by
Landlord.
Landlord agrees to pay for the Tenant Finish Improvements as specified
on Exhibit C-1 (Tenant Improvement Allowance). Tenant and Landlord will sign
their approval of the final construction cost in advance of the work
commencement. Any other improvements to the Premises, not included in Exhibit
C-1, and the furnishing of the Premises shall be made by Tenant at the sole cost
and expense of Tenant, subject to all other provisions of the Lease. Once
Landlord completes the Tenant Finish Improvements, Tenant shall be responsible
for the cost of any changes to the original tenant finish plans or any future
tenant finish improvements.
Subsequent to completion of the Tenant Finish Improvements, any
additional construction shall be at the sole expense of the Tenant and must be
approved in advance in writing by the Landlord. Any construction that is
performed, that is not so approved, shall be removed upon Landlord's written
request prior to the expiration or
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earlier termination of the Lease. Tenant hereby agrees to repair all damage
caused by such removal and to pay all costs and expenses in connection
therewith.
2. Landlord shall, at its sole cost and expense, in addition to the
Tenant Improvement Allowance, perform the following work in the Premises:
(a) Install Xxxxxxxxx white ceiling grid and Xxxxxxxxx "Second
Look" ceiling tile.
(b) Install building standard 2x4 lay-in 2-lamp parabolic light
fixtures.
(c) Install fully recessed sprinkler heads per code requirements.
3. ADDITIONAL WORK.
(a) Landlord shall have no obligation for the cost of improvements,
finishes, or additional work not included in Exhibit C-1 (hereinafter
"Additional Work"). Any such cost, including Landlord supervisor fees, shall be
the sole cost and obligation of Tenant.
Plans and specifications, contractors, suppliers, and vendors
for Additional Work, shall be approved by Landlord in advance in writing, and
approval of said contractors, suppliers and vendors shall be at Landlord's sole
discretion which shall not be unreasonably withheld. A delay in the completion
of Additional Work shall not delay commencement of the Lease, or limit the
obligations of Tenant set forth herein.
(b) Upon approval of the Additional Work, Tenant shall pay to Landlord
prior to commencement of work, a sum equal to thirty percent (30%) of the
estimated cost. Upon substantial completion of the Additional Work, as
determined by the Landlord, Tenant shall pay to Landlord a sum equal to the
total cost of the Additional Work, less the amount previously paid. In addition
thereto, Tenant shall pay to Landlord as additional rent, Landlord's supervisory
fee in an amount equal to five percent (5%) of the total cost of the Additional
Work.
4. FAILURE TO MAKE PAYMENTS. In the event Tenant fails to make any
payments to Landlord as provided for in Paragraph 3(A) or (B) of this Exhibit C,
Landlord at its option may in addition to availing itself of all remedies
included in the Lease, take any one of the following actions:
(a) Stop all work on the Additional Work, such stoppage shall not delay
the commencement of the Lease or affect any obligation of Tenant under the Lease
(including but not limited to the payment of Rent and other charges);
(b) Complete the Tenant Finish Improvements, pursuant to Exhibit C-l
(schematic drawings and specifications) and complete the Additional Work, and
continue to hold Tenant liable for all costs due to Landlord In that event, all
sums shall bear a service charge as provided in Paragraph 3(d) of the Lease.
5. COMMENCEMENT OF RENT. The Commencement Date of the Lease shall not
occur and Tenant's obligation to pay rent under the Lease shall not commence
until Landlord has substantially completed all of Landlord's Work; provide,
however, that if Landlord is delayed in substantially completing Landlord's Work
as a result of any one or more of the following ("Tenant Delay"):
(a) Tenant's failure to devote the time or furnish the
information or approvals required under Section 1
hereof in connection with the space plan or the
Architectural Plans for Landlord's Work; or
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(b) Tenant's failure to furnish Architectural Plans for
any Additional Work, or revisions thereto, as
required thereby, or Tenant's failure to approve cost
estimates for the Additional work within the time
period specified in Section 3 hereof; or
(c) Tenant's request for materials, finishes or
installations other than Building standard items; or
(d) Tenant's changes in the Landlord's work, in the
Architectural or Engineering Plans relating thereto,
or in the Architectural or Engineering Plans for the
Additional Work (notwithstanding Landlord's approval
of any such changes); or
(e) Any other act or omission by Tenant or its employees,
contractors, or agents;
then and in any such event, Landlord shall cause the Architect to certify the
date on which Landlord's work would have been completed but for any Tenant
Delay, and the Commencement Date and Tenant's obligation to pay rent under the
Lease shall occur and commence as of such date, and shall not otherwise be
affected or deferred on account of such delay.
6. ACCESS BY TENANT PRIOR TO COMMENCEMENT OF TERM. Landlord, at
Landlord's discretion, may permit Tenant and Tenant's agents to enter the
Premises prior to the Commencement Date of the Lease upon reasonable notice
during business hours in order that Tenant may make the Premises ready for
Tenant's use and occupancy. Any such permission shall constitute a license only
and not a lease and such license shall be conditioned upon: (a) Tenant working
in harmony and not interfering with Landlord and Landlord's agents, contractors,
workmen, mechanics and suppliers in doing Landlord's Work or Additional Work, if
any, or other work in the Building or with other tenants and occupants of the
Building; (b)Tenant obtaining in advance Landlord's approval of the contractors
proposed to be used by Tenant and depositing with Landlord in advance of any
work (i) security reasonably satisfactory to Landlord for the completion
thereof, and (ii) general contractor's affidavit for the proposed work; and (c)
Tenant furnishing Landlord with such insurance and other security as Landlord
may reasonably require against liabilities which may arise out of such entry.
Landlord shall have the right to withdraw such license upon twenty-four (24)
hours' written notice to Tenant for reasonable cause. Tenant agrees that
Landlord shall not be liable in any way for any injury, loss or damage which
may occur to any of Tenant's property placed or installations made in the
Premises prior to the commencement of the Term of the Lease, the same being at
Tenant's sole risk and Tenant agrees to protect, defend, indemnify and save
harmless Landlord from all liabilities, costs, damages, fees and expenses
arising out of or connected with the activities of Tenant or its agents,
contractors, suppliers or workmen in or about the Premises or the Building.
Tenant further agrees that any entry, work and occupation permitted under this
Section shall be governed by Section 5 of the Lease and all other terms of the
Lease.
7. DEFAULT. Failure to comply with the terms of this Exhibit C
or should Tenant permit mechanics liens, materials liens, or other liens to be
filed against the Premises or any part thereof, shall be deemed a default under
the Lease and all remedies shall be available to Landlord pursuant to the terms
of the Lease.
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EXHIBIT C-1
TENANT FINISH IMPROVEMENTS
C-1-1
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EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, halls, passages, elevators and stairways shall not be
obstructed by Tenant or used for any purpose other than for ingress to and
egress from the Premises. The halls, passages, entrances, elevators, stairways,
balconies and roof are not for the use of the general public, and Landlord shall
in all cases retain the right to control and prevent access thereto of all
persons whose presence in the judgment of Landlord shall be prejudicial to the
safety, character, reputation and interest of the building and its tenants,
provided, that nothing herein contained shall be construed to prevent such
access to persons with whom Tenant normally deals in the ordinary course of its
business unless such persons are engaged in illegal activities. Tenant and its
employees shall not go upon the roof of the Building without the written consent
of the Landlord.
2. The sashes, sash doors, windows, glass lights, and any lights or
skylights that reflect or admit light into the halls or other places of the
Buildings shall not be covered or obstructed. The toilet rooms, water and wash
closets and other water apparatus shall not be used for any purpose other than
that for which they were construed, and no foreign substance of any kind
whatsoever shall be thrown therein, and the expense of any breakage, stoppage or
damage, resulting from the violation of this rule shall be borne by the tenant
who, or whose agents, employees, or visitors, shall have caused it.
3. If Landlord, by a notice in writing to Tenant, shall object to any
curtain, blind, shade or screen attached to, or hung in, or used in connection
with, any window or door of the Premises, such use of such curtain, blind, shade
or screen shall be discontinued forthwith by Tenant. No awnings shall be
permitted on any part of the Premises.
4. No safes or other objects heavier than the lift capacity of the
freight elevators of the building shall be brought into or installed on the
Premises. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. The moving of safes shall occur only between such hours
as may be designated by, and only upon previous notice to, the manager of the
Building, and the persons employed to move safes in or out of the Building must
be acceptable to Landlord. No freight, furniture or bulky matter of any
description shall be received into the Building or carried into the elevators
except during hours and in a manner approved by Landlord.
5. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noises, odors, and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds (except Seeing Eye Dogs) be brought into or kept in
or about the Building. Tenant shall not place or install any antennae or aerials
or similar devices outside of the Premises.
6. Tenant shall not use or keep in the Building any inflammables,
including but not limited to kerosene, gasoline, naphtha and benzine (except
cleaning fluids in small quantities and when in containers approved by the Board
of Underwriters), or explosives or any other articles of intrinsically dangerous
nature, or use any method of heating other than that supplied by Landlord.
7. If Tenant desires telephone or telegraph connections or alarm
systems, Landlord will direct electricians as to where and how the wires are to
be introduced. No boring or cutting for wires or otherwise shall be made without
specific directions from Landlord.
8. Tenant, upon the termination of the tenancy, shall deliver to the
Landlord all the keys of offices, rooms and toilet rooms which shall have been
furnished Tenant or which Tenant shall have had made, and in the event of loss
of any keys so furnished shall pay the Landlord therefor.
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9. Tenant shall not put down any floor covering in the Premises without
the Landlord's prior approval of the manner and method of applying such floor
covering.
10. On Sundays and legal holidays, and on other days between the hours
of 6 p.m. and 8 a.m., access to the Building, or to the halls, corridors,
elevators or stairways in the Building, or to the Premises may be refused unless
the persons seeking access is known to the watchman of the Building in charge
and has a pass or is properly identified. Landlord shall in no case be liable
for damages for the admission to or exclusion from the Building of any person
whom the Landlord has the right to exclude under Rule 1 above. In case of
invasion, mob, riot, public excitement, or other commotion, Landlord reserves
the right to prevent access to the Building during the continuance of the same
by closing the doors or otherwise, for the safety of the tenants or Landlord and
protection of property in the Building.
11. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage which includes keeping doors locked and windows and
other means of entry to the Premises closed.
12. Tenant shall not alter any lock or install a new or additional lock
or any bolt on any door of the Premises without prior written consent of
Landlord. If Landlord shall give its consent, Tenant shall in each case furnish
Landlord with a key for any such lock.
13. In advertising or other publicity, without Landlord's prior written
consent, Tenant shall not use the name of the Building except as the address of
its business and shall not use pictures of the Building.
14. Tenant shall not make any room to room canvass to solicit business
from other tenants in the Building; and shall not exhibit, sell or offer to
sell, use, rent or exchange in or from the Premises unless ordinarily embraced
within the Tenant's use of the Premises specified herein.
15. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air conditioning, and shall not allow the
adjustment (except by Landlord's authorized building personnel) of any controls
other than room thermostats installed for Tenant's use. Tenant shall keep
corridor doors closed and shall not open any windows except that if the air
circulation shall not be in operation, windows which are openable may be opened
with Landlord's consent.
16. Tenant shall not do any cooking other than microwave use in the
Premises or engage any coffee cart service.
17. Any wallpaper or vinyl fabric materials which Tenant may install on
painted walls shall be applied with a strippable adhesive. The use of
nonstrippable adhesives will cause damage to the walls when materials are
removed, and repairs made necessary thereby shall be made by Landlord at
Tenant's expense.
18. Tenant shall provide and maintain hard surface protective mats
under all desk chairs which are equipped with casters to avoid excessive wear
and tear to carpeting. If Tenant fails to provide such mats, the cost of carpet
repair or replacement made necessary by such excessive wear and tear shall be
charged to and paid for by Tenant.
19. Tenant will refer all contractors, contractor's representative and
installation technicians, rendering any service to Tenant, to Landlord for
Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in the
Building including installations of telephones, telegraph equipment, electrical
devices and attachments and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings, equipment or any other physical portion of
the Building.
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20. Movement in or out of the Building of furniture, office equipment,
or other bulky materials, or movement through the Building entrances or lobby
shall be restricted to hours designated by Landlord. All such movements shall be
under supervision of Landlord and in the manner agreed between Tenant and
Landlord by prearrangement before performance. Such prearrangement initiated by
Tenant will include determination by Landlord and subject to its decision and
control, of the time, method, and routing of movement, limitations imposed by
safety or other concerns which may prohibit any article, equipment or any other
items from being brought into the Building. Tenant is to assume all risk as to
damage to articles moved and injury to persons or public engaged or not engaged
in such movement, including equipment, property, and personnel of Landlord if
damaged or injured as a result of acts in connection with such service performed
for Tenant and Tenant hereby agrees to indemnify and hold harmless Landlord from
and against any such damage, injury, or loss, including attorneys' fees.
21. No portion of Tenant's area or any other part of the Building shall
at any time be used or occupied as sleeping or lodging quarters.
22. Landlord will not be responsible for lost or stolen personal
property, equipment, money, or jewelry from Tenant's area or any public rooms
regardless of whether such loss occurs when such area is locked against entry or
not.
23. Employees of Landlord shall not receive or carry messages for or to
any tenant or other persons, nor contract with or render free or paid services
to any tenant or tenant's employees, or invitees; in the event any of Landlord's
employees perform any such services, such employee shall be deemed the agent of
Tenant regardless of whether or how payment is arranged for services and
Landlord is expressly relieved from any and all liability in connection with any
such services and any associated injury or damage to person or property.
24. Tenant and its employees, agents, and invitees shall observe and
comply with the driving and parking signs and markers on the property
surrounding the Building.
25. Tenant shall not place, install, or operate on the Premises or in
any part of the Building, any coffee making device or equipment without the
prior written consent of Landlord.
26. Tenant shall give prompt notice to Landlord of any accidents to or
defects in plumbing, electrical fixtures, or heating apparatus so that such
accidents or defects may be attended to properly.
27. The directories of the Building shall be used exclusively for the
display of the name and location of the tenants only and will be provided at the
expense of Landlord. Any additional names requested by Tenant to be displayed in
the directories must be approved by Landlord and, if approved, will be provided
at the sole expense of Tenant.
28. No vending machines of any description shall be installed,
maintained or operated in any part of the Building without the written consent
of Landlord.
29. Landlord reserves the right to make such other and reasonable rules
and regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building, and for the preservation of good
order therein.
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EXHIBIT E
EXCLUSIONS FROM OPERATING COSTS
Notwithstanding anything contained in the Lease, no expenses incurred for the
following shall be included in operating expenses:
(i) leasing commissions, attorney's fees, costs and disbursements and other
expenses incurred in connection with negotiations or disputes with
tenants, other occupants, or prospective tenants or other occupants;
(ii) renovating or otherwise improving or decorating, painting or
redecorating space for tenants or other occupants or vacant space;
(iii) Landlord's costs of electricity and other services and materials
furnished to tenants and for which Landlord is entitled to be
reimbursed by tenants as an additional charge or rental over and above
the basic rent payable under the lease such tenant;
(iv) costs incurred by Landlord for alterations which are considered capital
improvements and replacements under generally accepted accounting
principles;
(v) depreciation and amortization;
(vi) costs of a capital nature, including but not limited to capital
improvements, capital repairs, capital equipment, and capital tools,
all in accordance with generally accepted accounting principles, except
such capital expenditures (including equipment) which are required by a
governmental authority or insurance carrier or incurred to improve the
operating efficiency or reduce the cost of operating the Project;
(vii) expenses in connection with services or other benefits of a type which
are not provided Tenant but which are provided to another tenant or
occupancy;
(viii) costs incurred due to violation by Landlord or any tenant of the terms
and conditions of any lease;
(ix) overhead and profit increment paid to subsidiaries or affiliates of
Landlord for services on or to the real property, to the extent only
that the costs of such services exceed competitive costs of such
services were they not so rendered by a subsidiary or affiliate;
(x) interests on debt or amortization payments on any mortgage or
mortgages, and rental under any ground or underlying leases or lease;
(xi) all items and services for which Tenant reimburses Landlord or pays
third persons;
(xii) advertising and promotional expenditures
(xiii) charitable contributions of Landlord; and
(xiv) any other expense which under generally accepted accounting principles
and practice would not be rendered as a normal maintenance or operating
expense.
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LANDLORD: Appletree, Ltd., a Nevada limited liability corporation
TENANT: Interactive Group, Inc.
PROJECT: Riverview Office Tower
LEASE INDEX
SCHEDULE
1. Premises
2. Project
3. Term
4. Base Rent
5. Operating Cost Rent
6. Security Deposit
7. Advance Payment
8. Tenant's Permitted Use
9. Landlord's Address
10. Tenant's Capacity and Address
11. Real Estate Brokers
1. LEASING AGREEMENT
2. RENT
3. CONDITION, POSSESSION AND SURRENDER OF PREMISES
4. PROJECT SERVICES
5. ALTERATIONS AND REPAIRS
6. USE OF PREMISES
7. PROJECT RULES AND GOVERNMENTAL REGULATIONS
8. CLAIMS; INSURANCE; LIABILITY
9. FIRE AND OTHER CASUALTY
10. RIGHTS RESERVED TO THE LANDLORD
11. DEFAULT AND LANDLORD'S REMEDIES
12. HOLDOVER
13. SUBORDINATION
14. ASSIGNMENT AND SUBLETTING
15. SALE BY LANDLORD
16. ESTOPPEL CERTIFICATE
17. SECURITY DEPOSIT
18. FORCE MAJEURE
19. PERSONAL PROPERTY AND TENANT FIXTURES
20. NOTICES
21. QUIET POSSESSION
22. REAL ESTATE BROKERS
23. CONDEMNATION
24. UNRELATED BUSINESS INCOME
25. LIMITATION OF LIABILITY
26. MISCELLANEOUS
EXHIBITS
Exhibit A: Floor Plan of the Premises
Exhibit B: Legal Description
Exhibit C: Tenant Improvement Work Agreement
Exhibit C-1: Tenant Finish Improvements
Exhibit D: Rules and Regulations
Exhibit E: Exclusions from Operating Costs
