EXHIBIT 10.36
FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("AMENDMENT" or "FIRST AMENDMENT") is entered
into effective as of May 16, 2006, by and between 000 Xxxxxx Xxxxxx Limited
Partnership, a Texas limited partnership ("LANDLORD"), and Capella Education
Company, a Minnesota corporation ("TENANT").
RECITALS
A. Landlord and Tenant are parties to an Office Lease dated February 23,
2004 (the "EXISTING LEASE" and as amended by this First Amendment, the "LEASE"),
relating to certain premises (the "PREMISES") situated in the office project now
commonly known as 000 Xxxxx Xxxxx Xxxxxx in Minneapolis, Minnesota.
B. Landlord and Tenant now want to memorialize certain agreements
pertaining to Tenant's installation and use of an emergency generator on the
terms and conditions hereinafter set forth.
Accordingly, Landlord and Tenant hereby agree as follows:
1. APPLICATION OF LEASE TERMS. Except to the extent inconsistent with this
Amendment and except to the extent that the terms of this Amendment specifically
address a topic, the terms and conditions of the Existing Lease shall apply.
Those capitalized terms which are used in this Amendment and are not defined
herein shall have the respective meaning given to them in the Existing Lease.
2. TENANT'S EMERGENCY GENERATOR. Landlord hereby grants Tenant the right,
throughout the Lease Term and in accordance with and subject to Section 36.3 of
the Existing Lease (i) to install and maintain a 500 KW emergency generator,
related equipment and switchgear (collectively, "TENANT'S EMERGENCY GENERATOR
EQUIPMENT") at the location on the B1 Level of the Project which is identified
on the floor plan attached hereto as Exhibit P ("TENANT'S EMERGENCY GENERATOR
SITE") for the exclusive use of Tenant, and (ii) to use the two existing four
inch empty conduits which are depicted on Exhibit P attached hereto for
connection to the 600 amp electrical feed on the B1 Level of the Project to
transmit power from Tenant's Emergency Generator Equipment to the 15th floor of
the Premises for the exclusive use of Tenant. Tenant hereby agrees that Landlord
shall have no obligation to make any improvements to Tenant's Emergency
Generator Site or to provide any improvement or build-out allowance with respect
thereto.
3. LANDLORD'S EMERGENCY GENERATOR. Within ten (10) days after beginning to
use Tenant's Emergency Generator Equipment, Tenant shall surrender possession to
Landlord of Landlord's 205 KW generator, switchgear and related conduit
(collectively, "LANDLORD'S EMERGENCY GENERATOR EQUIPMENT") on the B1 Level of
the Project to Landlord after having performed any reasonable maintenance to
Landlord's Emergency Generator Equipment which is requested by Landlord and is
necessary to put Landlord's Emergency Generator Equipment in as a good a
condition as it was in prior to Tenant's use thereof.
4. COSTS; UTILITIES. Tenant shall be responsible for all costs incurred in
installing, operating, repairing, maintaining and replacing Tenant's Emergency
Generator Equipment. Sub-meters to measure the electrical and fuel oil
consumption of Tenant's Emergency Generator Equipment shall be installed by
Landlord, at Tenant's expense, and Tenant shall pay Landlord for such electrical
and fuel oil consumption on a monthly basis. To the extent that Tenant's
Emergency Generator Equipment requires any other utility service, Landlord shall
only be obligated to use its reasonable efforts to cause the applicable public
utility to furnish the same. Any failure or interruption in the furnishing of
the utilities to any extent needed by Tenant's Emergency Generator Equipment,
shall not render Landlord liable in any respect for damages to either person or
property, nor be construed as an eviction of Tenant, nor, work an abatement of
any Rent, nor relieve Tenant from fulfillment of any covenant or agreement in
the Lease. Landlord agrees, however, to use diligent efforts to promptly cause
the applicable public utilities to restore the same.
5. RULES. Tenant's use of Tenant's Emergency Generator Equipment and
Tenant's Emergency Generator Site shall be subject to such reasonable rules,
procedures and conditions as Landlord may establish from time to time.
6. INDEMNITY. Subject to the provisions of Section 17 of the Existing Lease
which shall control if they conflict with the provisions of this Section 6,
Tenant shall indemnify, defend (at Landlord's request and with counsel
reasonably approved by Landlord) and hold Landlord and Landlord's Affiliates
(and each of their partners, directors, officers, shareholders and employees)
harmless from and against every demand, claim, cause of action, judgment and
expense, including, but not limited to, reasonable attorneys' fees and
disbursements of counsel, whether suit is initiated or not, and all loss, bodily
or personal injury, death or property damage occurring, in whole or in part,
because of or in manner related to the installation, use, operation, repair,
maintenance or replacement of Tenant's Emergency Generator Equipment, except to
the extent caused by the gross negligence or willful misconduct of Landlord or
Landlord's Affiliates or any of their representatives, agents, contractors or
employees.
7. WAIVER OF SUBROGATION. Tenant hereby waives any and all rights of
recovery, claim, action or cause of action, against Landlord and Landlord's
Affiliates and each of their partners, property managers, officers, employees
and contractors for any loss or damage that may occur to Tenant's Emergency
Generator Equipment; it being agreed that Tenant shall assume the entire risk of
any such loss and maintain such insurance as Tenant believes it is prudent to
maintain to insure against any such loss.
8. REMOVAL. Tenant's Emergency Generator Equipment shall become the
property of Landlord upon the expiration or termination of this Lease and shall
be surrendered with the Premises.
9. BROKERAGE COMMISSION. Tenant warrants that Tenant has not engaged or
dealt with any broker in connection with this First Amendment and Tenant agrees
to defend, indemnify and hold Landlord and Landlord's agents harmless from and
against all losses, damages, costs and expenses (including reasonable attorneys'
fees) suffered by Landlord as a result of any claim for brokers' fees or
finders' fees asserted on account of any dealings with Tenant by any broker in
connection with this First Amendment.
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10. COUNTERPARTS. This First Amendment may be executed in any number of
counterparts, all of which shall be considered one and the same Amendment, even
though all parties hereto have not signed the same counterpart. Signatures on
this Amendment which are transmitted by facsimile shall be valid for all
purposes. Any party shall, however, deliver an original signature for this
Amendment to the other party upon request.
11. REAFFIRMATION OF LEASE. Except as expressly amended herein, all of the
terms and conditions of the Existing Lease remain in full force and effect.
12. SUCCESSORS AND ASSIGNS. This First Amendment shall be binding upon and
be enforceable by Landlord and Tenant and their successors and permitted
assigns.
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IN WITNESS WHEREOF, Tenant has executed this First Amendment to Lease to be
effective as of the date first above written.
TENANT:
CAPELLA EDUCATION COMPANY
a Minnesota corporation
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: VP, General Counsel, & Secretary
This is a signature page to the First Amendment to Lease between 000 Xxxxxx
Xxxxxx Limited Partnership, a Texas limited partnership, as Landlord, and
Capella Education Company, a Minnesota corporation, as Tenant.
IN WITNESS WHEREOF, Landlord has executed this First Amendment to Lease to
be effective as of the date first above written.
LANDLORD:
000 XXXXXX XXXXXX LIMITED PARTNERSHIP
By: Minneapolis 601 Limited Partnership,
a Texas limited partnership, its
general partner
By: Xxxxx Acquisitions No. 2 Limited
Partnership, a Texas limited
partnership, its sole general
partner
By: Xxxxx Interests Limited Partnership,
a Delaware limited partnership, its
sole general partner
By: Xxxxx Holdings, Inc., a Texas close
corporation, its sole general
partner
By: /s/ O. Xxxxx XxXxxxxx
------------------------------------
Name: O. Xxxxx XxXxxxxx
Title: Senior Vice President
This is a signature page to the First Amendment to Lease between 000 Xxxxxx
Xxxxxx Limited Partnership, a Texas limited partnership, as Landlord, and
Capella Education Company, a Minnesota corporation, as Tenant.
EXHIBIT P
DEPICTION OF EMERGENCY GENERATOR SITE
(Attach Floor Plan)
EXHIBIT P
Tenant's Emergency
Generator Site
(FLOOR PLAN)
