1
LEASE
ARTICLE 1. LEASE TERMS
1.1 LANDLORD AND TENANT. This Lease ("Lease") is entered into this 24th day
of April, 1996 by and between CSM, INVESTORS, INC., a Minnesota corporation,
("Landlord") and INTRANET INTEGRATION GROUP, INC. D/B/A TECHNICAL PUBLISHING
SOLUTIONS, INC., a Minnesota corporation, ("Tenant").
1.2 PREMISES. Landlord hereby rents, leases, lets and demises to Tenant the
following described property ("Premises") as illustrated on the site plan
attached hereto as EXHIBIT A: approximately 15,242 SQUARE FEET OF WAREHOUSE
SPACE AND 17,677 SQUARE FEET OF OFFICE SPACE (32,919 TOTAL SQUARE FEET) IN THE
GOLDEN TRIANGLE BUSINESS CENTER located at 0000-0000 XXXX 00XX XXXXXX IN EDEN
PRAIRIE, MINNESOTA, and consisting of approximately 149,215 square feet
("Building"). A floor plan of the Premises and a description of improvements,
if any, to be constructed are attached hereto as EXHIBITS B AND C.
1.3 LEASE TERM. The term of this Lease shall commence on AUGUST 1, 1996
("Commencement Date") and shall terminate EIGHTY-FOUR (84) MONTHS thereafter on
JULY 31, 2003, unless sooner terminated as hereinafter provided. In the event
that Tenant does not vacate the Premises upon the expiration or termination of
this Lease, Tenant shall be a tenant at will for the holdover period and all of
the terms and provisions of this Lease shall be applicable during that period,
except that Tenant shall pay Landlord as base rental for the period of such
holdover an amount equal to two (2) times the base rent which would have been
payable by Tenant had the holdover period been a part of the original term of
this Lease, together with all additional rent as provided in this Lease.
Tenant agrees to vacate and deliver the Premises to Landlord upon Tenant's
receipt of notice from Landlord to vacate. The rental payable during the
holdover period shall be payable to Landlord on demand. No holding over by
Tenant, whether with or without the consent of Landlord, shall operate to
extend the term of this Lease. Landlord agrees to provide Tenant early
occupancy of the Premises on July 1, 1996 under the same terms and conditions
contained herein, exclusive of rent and operating expenses.
1.4 BASE RENT. Base Rent is: Months Monthly Base Rent Per Sq. Ft.
------ ----------------- -----------
1-84 $20,519.51 $7.48
1.5 PERMITTED USE: Operation of a computer assisted, document based printing
facility, and distribution of hardware and software products.
1.6 SECURITY DEPOSIT: None ($0.00)
1.7 PRO-RATA SHARE: Twenty-two and 06/100 percent (22.06%) subject to
adjustment as provided in Section 2.2 hereof.
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1.8 ADDRESSES. LANDLORD'S ADDRESS: TENANT'S ADDRESS:
CSM INVESTORS, INC. INTRANET INTEGRATION
0000 XXXXXXXXXX XXXXXX X. GROUP, INC.
SUITE 150 0000 XXXX 00XX XXXXXX,
XX. XXXX, XX 00000-0000 SUITE 150
(000) 000-0000 XXXX XXXXXXX, XX 00000
ARTICLE 2. RENT, OPERATING EXPENSES AND SECURITY DEPOSIT
2.1 BASE RENT. Tenant agrees to pay monthly as base rent during the term of
this Lease the sum of money set forth in Section 1.4 of this Lease, which
amount shall be payable to Landlord at the address shown above. One monthly
installment shall be due and payable on or before the first day of each
calendar month succeeding the Commencement Date during the term of this Lease;
provided, if the Commencement Date should be a date other than the first day of
a calendar month, the monthly rental set forth above shall be prorated to the
end of that calendar month, and all succeeding installments of rent shall be
payable on or before the first day of each succeeding calendar month during the
term of this Lease. Tenant shall pay, as additional rent, all other sums due
under this Lease. Notwithstanding anything in this Lease to the contrary, if
Landlord, for any reason whatsoever (other than Tenant's default), cannot
deliver possession of the Premises to the Tenant on the Commencement Date, this
Lease shall not be void or voidable, nor shall Landlord be liable for any loss
or damage resulting therefrom, nor shall the expiration of the term be
extended, but all rent shall be abated until Landlord delivers possession.
Notwithstanding the above, in the event Landlord has not delivered the Premises
to the Tenant on or before September 1, 1996 due to non-Tenant caused delays,
Tenant may terminate this Lease with no further obligation.
Landlord and Tenant agree that the base rental rate contained herein is based
on construction costs estimated at $566,390.00. Tenant agrees to contribute
$75,000.00 towards construction of the Premises, payable to Landlord in
$25,000.00 lump sum payments, the first payable upon Lease execution by both
parties, the second payable thirty (30) days following Lease execution, and the
third due sixty (60) days after Lease execution.
Construction cost increases or savings of $30,000.00 or less above or below the
estimated construction cost of $566,390.00 shall he amortized at nine percent
(9%) over the original term of this Lease and added or subtracted from the
monthly base rental. Tenant improvement cost savings above $30,000.00 shall
benefit the Landlord, and additional tenant improvement costs of more than
$30,000.00 over $566,390.00 shall be paid to Landlord upon finalization of
tenant improvement costs, at which time Landlord end Tenant agree to enter into
a Lease addendum depicting the new base rental rate, if such rate is adjusted
as contained in this section.
2.2 OPERATING EXPENSES. Tenant shall also pay as additional rent Tenant's
pro rata share of the operating expenses of Landlord for the Building. Landlord
may invoice Tenant monthly for
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Tenant's pro rata share of the estimated operating expenses for each calendar
year, which amount shall be adjusted from time-to-time by Landlord based upon
anticipated operating expenses. Within six (6) months following the close of
each calendar year, Landlord shall provide Tenant an accounting showing in
reasonable detail the computations of additional rent due under this Section.
In the event the accounting shows that the total of the monthly payments made
by Tenant exceeds the amount of additional rent due by Tenant under this
Section, the accounting shall be accompanied by evidence of a credit to
Tenant's account. In any event the accounting shows that the total of the
monthly payments made by Tenant is less than the amount of additional rent due
by Tenant under this Section, the accounting shall be accompanied by an invoice
for the additional rent. Notwithstanding any other provisions in this Lease,
during the year in which this Lease terminates, Landlord, prior to the
termination date, shall have the option to invoice Tenant for Tenant's pro rata
share of the operating expenses based upon the previous year's operating
expenses. If this Lease shall terminate on a day other than the last day of a
calendar year, the amount of any additional rent payable by Tenant applicable
to the year in which the termination shall occur shall be prorated on the ratio
that the number of days from the commencement of the calendar year to and
including such termination date bears to 365. Tenant agrees to pay any
additional rent due under this Section within ten (10) days following receipt
of the invoice or accounting showing additional rent due. Tenant's pro rata
share set forth in Section 1.7 shall, subject to reasonable adjustment by
Landlord, be equal to a percentage based upon a fraction, the numerator of
which is the area of the Premises as set forth in Article 1 and the denominator
of which shall be the net rentable area of the Building, as the same may change
from time to time.
2.3 DEFINITION OF OPERATING EXPENSES. The term "operating expenses" includes
all expenses incurred by Landlord with respect to the maintenance and operation
of the Building, including, but not limited to, the following: maintenance,
repair and replacement costs; electricity, fuel, water, sewer, gas and other
common Building utility charges; equipment used for maintenance and operation
of the Building; operational expenses; exterior window washing and janitorial
services; trash and show removal; landscaping and pest control; management
fees, not to exceed four percent (4%) of gross rents, wages and benefits
payable to employees of Landlord whose duties are directly connected with the
operation and maintenance of the Building; all services, supplies, repairs,
replacements or other expenses for maintaining and operating the Building or
project including parking and common areas; improvements made to the Building
which are required under any governmental law or regulation that was not
applicable to the Building at the time it was constructed; installation of any
device or other equipment which improves the operating efficiency of any system
within the Premises and thereby reduces operating expenses; all other expenses
which would generally be regarded as operating, repair, replacement and
maintenance expenses; all real property taxes and installments of special
assessments, including dues and assessments by means of deed restrictions
and/or owners' associations which accrue against the Building during the term
of this Lease and legal fees incurred in connection with actions to reduce the
same; and all insurance premiums Landlord is required to pay or deems necessary
to pay, including fire and extended coverage, and rent loss and public
liability insurance, with respect to the Building. Operating expenses which,
for tax purposes would be considered capital improvements, will be amortized
over the useful life of the expense.
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2.4 INCREASE IN INSURANCE PREMIUMS. If an increase in any insurance premiums
paid by Landlord for the Building is caused by Tenant's use of the Premises or
if Tenant vacates the Premises and causes an increase in such premiums, then
Tenant shall pay as additional rent the amount of such increase to Landlord.
ARTICLE 3. OCCUPANCY AND USE
3.1 USE. Tenant warrants and represents to Landlord that the Premises shall
be used and occupied only for the purpose as set forth in Section 1.5. Tenant
shall occupy the Premises, conduct its business and control its agents,
employees, invitees and visitors in such a manner as is lawful, reputable and
will not create a nuisance. Tenant shall not permit any operation which emits
any odor or matter which intrudes into other portions of the Building or
otherwise interfere with, annoy or disturb any other Lessee in its normal
business operations or Landlord in its management of the Building. Tenant
shall not permit any waste on the Premises to be used in any way which would,
in the opinion of Landlord, be extra hazardous on account of fire or which
would, in any way, increase or render void the fire insurance on the Building.
3.2 SIGNS. No sign of any type or description shall be erected, placed or
painted in or about the Premises or Building which are visible from the
exterior of the Premises, except those signs submitted to Landlord in writing,
and which signs are in conformance with Landlord's sign criteria, which is
attached hereto as EXHIBIT D.
3.3 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Tenant, at Tenant's sole
cost and expense, shall comply with all laws, ordinances, orders, rules and
regulations of state, federal, municipal or other agencies or bodies having
jurisdiction over the use, condition or occupancy of the Premises. Tenant will
comply with the reasonable rules and regulations of the Building adopted by
Landlord. Landlord shall have the right at all times to change and amend the
rules and regulations in any reasonable manner as may be deemed advisable for
the safety, care, cleanliness, preservation of good order and operation or use
of the Building or the Premises. All rules and regulations of the Building
will be sent by Landlord to Tenant in writing and shell thereafter be carried
out and observed by Tenant.
WARRANTY OF POSSESSION. Landlord warrants that it has the right and
authority to execute this Lease, and Tenant, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in
this Lease, shall have possession of the Premises during the full term of this
Lease as welt as any extension or renewal thereof. Landlord shall not be
responsible for the acts or omissions of any other Lessee or third party that
may interfere with Tenant's use and enjoyment of the Premises, however,
Landlord shall join Tenant in protecting Tenant's rights to quiet enjoyment
with respect to acts of any third party.
3.5 RIGHT OF ACCESS. Landlord or its authorized agents shall, during
reasonable business hours and in the presence of a Tenant representative,
except in the case of an emergency, have the
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right to enter the Premises to inspect the same, to show the Premises to
prospective purchasers, Lessees, mortgagees, insurers or other interested
parties, and to alter, improve or repair the Premises or any other portion of
the Building. Tenant hereby waives any claim for damages for injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or use of the Premises, and any other loss occasioned thereby. Tenant shall not
change Landlord's lock system or in any other manner prohibit Landlord from
entering the Premises. Landlord shell have the right to use any and all means
which Landlord may deem proper to open any door in an emergency without
liability therefor. Tenant shall permit Landlord to erect, use, maintain and
repair pipes, cables, conduits, plumbing, vents end wires in, to and through
the Premises as often and to the extent that Landlord may now or hereafter deem
to be necessary or appropriate for the proper use, operation and maintenance of
the Building.
ARTICLE 4. UTILITIES AND ACTS OF OTHERS
4.1 BUILDING SERVICES. Tenant shall pay when due, all charges for utilities
furnished to or for the use or benefit of Tenant or the Premises. Tenant shall
have no claim for rebate of rent on account of any interruption in service.
4.2 THEFT OR BURGLARY. Landlord shall not be liable to Tenant for losses to
Tenant's property or personal injury caused by criminal acts or entry by
unauthorized persons into the Premises or the Building, unless such loss or
injury is caused by the criminal act or gross negligence of the Landlord or its
representatives.
ARTICLE 5. REPAIRS AND MAINTENANCE
5.1 LANDLORD REPAIRS. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the Premises
or the Building during the term of this Lease except as are set forth in this
Section. Landlord shall maintain only the roof, foundation, parking and common
areas, the structural soundness of the exterior walls, doors, corridors, and
other structures serving the Premises, provided, that Landlord's cost of
maintaining, replacing and repairing the items set forth in this Section are
operating expenses subject to the additional rent provisions in Section 2.2 and
2.3. Landlord shall not be liable to Tenant, except as expressly provided in
this Lease, for any damage or inconvenience, and Tenant shall not be entitled
to any abatement or reduction of rent by reason of any repairs, alterations or
additions made by Landlord under this Lease.
5.2 TENANT REPAIRS. Tenant shall, at all times throughout the term of this
Lease, including renewals and extensions, and at its sole expense, keep and
maintain the Premises in a clean, safe, sanitary and first class condition and
in compliance with all applicable laws, codes, ordinances, rules and
regulations. Tenant's obligations hereunder shall include, but not be limited
to, the maintenance, repair and replacement, if necessary, of all heating,
ventilation, air conditioning, lighting end plumbing fixtures and equipment,
fixtures, motors and machinery, all interior walls, partitions, doors and
windows, including the regular painting thereof, all exterior entrances,
windows, doors and
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docks and the replacement of all broken glass. When used in this provision,
the term "repairs" shall include replacements or renewals when necessary, and
all such repairs made by the Tenant shall be equal in quality and class to the
original work. The Tenant shall keep and maintain all portions of the Premises
and the sidewalk and areas adjoining the same in a clean and orderly condition,
free of accumulation of dirt, rubbish, snow and ice. If Tenant fails, refuses
or neglects to maintain or repair the Premises as required in this Lease after
notice shall have been given Tenant, in accordance with this Lease, Landlord
may make such repairs without liability to Tenant for any loss or damage that
may accrue to Tenant's merchandise, fixtures or other property or to Tenant's
business by reason thereof, and upon completion thereof, Tenant shall pay to
Landlord all costs plus fifteen percent (15%) for overhead incurred by Landlord
in making such repairs upon presentation to Tenant of xxxx therefor. Landlord
agrees to assign all applicable warranties on equipment to Tenant upon
completion of the tenant improvements.
5.3 TENANT DAMAGES. Tenant shall not at low any damage to be committed on
any portion of the Premises or Building or common areas, and at the termination
of this Lease, by lapse of time or otherwise, Tenant shall deliver the Premises
to Landlord in as good condition as existed at the Commencement Date of this
Lease, ordinary wear and tear excepted. The cost and expense of repairs
necessary to restore the condition of the premises shall be borne by Tenant.
ARTICLE 6. ALTERATIONS AND IMPROVEMENTS
6.1 LANDLORD IMPROVEMENTS. If construction to the Premises is to be
performed by Landlord prior to or during Tenant's occupancy, Landlord will
complete the construction of the improvements to the Premises in accordance
with plans and specifications agreed to by Landlord and Tenant, which plans and
specifications are attached hereto as EXHIBITS B AND C. Within seven (7) days
of receipt of plans and specifications, Tenant shall execute a copy of the
plans and specifications and, if applicable, change orders setting forth the
amount of any costs to be borne by Tenant. In the event Tenant fails to
execute the plans and specifications and change orders within the seven (7) day
period, Landlord may, at its sole option, declare this Lease cancelled or
notify Tenant that the base rent shall commence on the completion date even
though the improvements to be constructed by Landlord may not be complete. Any
changes or modifications to the approved plans and specifications shall be made
and accepted by written change orders or agreement signed by Landlord and Tenant
and shall constitute an amendment to this Lease. Tenant shall have the option
to choose one contractor to bid on the tenant improvement work depicted in
EXHIBITS B and C, subject to Landlord's reasonable selection criteria, and
Tenant shall have the right to participate in the selection of the general
contractor in cooperation with Landlord.
6.2 TENANT IMPROVEMENTS. Tenant shall not make or allow to be made any
alterations or physical additions in or to the Premises without first obtaining
the written consent of Landlord, which consent may in the sole and absolute
discretion of Landlord be denied. Any alterations, physical additions or
improvements to the Premises made by Tenant shall at once become the property
of Landlord and shall be surrendered to Landlord upon the termination of this
Lease; provided, however, Landlord, at its option, may require Tenant to remove
any physical additions
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and/or repair any alterations in order to restore the Premises to the
conditions existing at the time Tenant took possession, all costs of removal
and/or alterations to be borne by Tenant. This clause shall not apply to
moveable equipment or furniture owned by Tenant, which may be removed by Tenant
at the end of the term of this Lease if Tenant is not then in default and if
such equipment and furniture are not subject to any other rights, liens and
interests of Landlord.
ARTICLE 7. CASUALTY AND INSURANCE
7.1 SUBSTANTIAL DESTRUCTION. If all or a substantial portion of the Premises
or the Building should be totally destroyed by fire or other casualty, or if
the Premises or the building should be damaged so that rebuilding cannot
reasonably be completed within one hundred eighty (180) working days after the
date of written notification by Tenant to Landlord of the destruction, or if
insurance proceeds are not made available to Landlord, or are inadequate, for
restoration, this Lease shall terminate at the option of Landlord by written
notice to Tenant within sixty (60) days following the occurrence, and the rent
shall be abetted for the unexpired portion of the Lease effective as of the
date of the written notification.
7.2 PARTIAL DESTRUCTION. If the Premises should be partially damaged by fire
or other casualty, and rebuilding or repairs can reasonably be completed within
one hundred eighty (180) working days from the date of written notification by
Tenant to Landlord of the destruction, and insurance proceeds are adequate and
available to Landlord for restoration, this Lease shall not terminate, and
Landlord shall at its sole risk and expense proceed with reasonable diligence
to rebuild or repair the Building or other improvements to substantially the
same condition in which they existed prior to the damage. If the Premises are
to be rebuilt or repaired and are untenantable in whole or in part following
the damage, and the damage or destruction was not caused or contributed to by
act or negligence of Tenant, its agents, employees, invitees or those for whom
Tenant is responsible, the rent payable under this Lease during the period for
which the Premises are untenantable shall be adjusted to such an extent as may
be fair and reasonable under the circumstances. In the event that Landlord
fails to complete the necessary repairs or rebuilding within one hundred eighty
(180) working days from the date of written notification by Tenant to Landlord
of the destruction, Tenant may at its option terminate this Lease by delivering
written notice of termination to Landlord, whereupon all rights and obligations
under this Lease shall cease to exist.
7.3 PROPERTY INSURANCE. Landlord shall not be obligated in any way or manner
to insure any personal property (including, but not limited to, any furniture,
machinery, goods or supplies) of Tenant upon or within the Premises, any
fixtures installed or paid for by Tenant upon or within the Premises, or any
improvements which Tenant may construct on the Premises. Tenant shall maintain
property insurance on its personal property and shall also maintain plate glass
insurance. Tenant shall have no right in or claim to the proceeds of any pot
icy of insurance maintained by Landlord even if the cost of such insurance is
borne by Tenant as set forth in Article 2.
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7.4 WAIVER OF SUBROGATION. Anything in this Lease to the contrary
withstanding, Landlord and Tenant hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the Premises, the improvements of the Building or personal
property within the Building, by reason of fire or the elements, regardless of
cause or origin, including negligence of Landlord or Tenant and their agents,
officers and employees. Landlord and Tenant agree immediately to give their
respective insurance companies which have issued policies of insurance covering
all risk of direct physical loss, written notice of the terms of the mutual
waivers contained in this Section.
7.5 HOLD HARMLESS. Landlord shall not be liable to Tenant's employees,
agents, invitees, licensees or visitors, or to any other person, for an injury
to person or damage to property on or about the Premises caused by any act or
omission of Tenant, its agents, servants or employees, or of any other person
entering upon the Premises under express or implied invitation by Tenant, or
caused by the improvements located on the Premises becoming out of repair, the
failure or cessation of any service provided by Landlord (including security
service and devices), or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Premises. Tenant agrees to indemnify and hold
harmless Landlord of and from any loss, reasonable attorney's fees, expenses or
claims arising out of any such damage or injury.
7.6 PUBLIC LIABILITY INSURANCE. Tenant shall during the term hereof keep in
full force and effect at its expense a policy or policies of public liability
insurance with respect to the Premises and the business of Tenant, on terms and
with companies approved in writing by Landlord, in which both Tenant and
Landlord shall be covered by being named as insured parties under reasonable
limits of liability not less than $1,000,000, or such greater coverage as
Landlord may reasonably require, combined single limit coverage for injury or
death. Such pot icy or policies shall provide that thirty (30) days' written
notice must be given to Landlord prior to cancellation thereof. Tenant shall
furnish evidence satisfactory to Landlord at the time this Lease is executed
that such coverage is in full force and effect.
ARTICLE 8. CONDEMNATION
8.1 SUBSTANTIAL TAKING. If all or a substantial part of the Premises are
taken for any public or quasi-public use under any governmental law, ordinance
or regulation, or by right of eminent domain or by purchase in lieu thereof,
and the taking would prevent or materially interfere with the use of the
Premises for the purpose for which it is then being used, this Lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease effective on the date physical possession is token by the condemning
authority. Tenant shall have no claim to the condemnation award or proceeds in
lieu thereof, except that Tenant shall be entitled to a separate award for the
cost of removing and moving its personal property.
8.2 PARTIAL TAKING. If all or a substantial part of the Premises are taken
for any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain
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or by purchase in lieu thereof, and this Lease is not terminated as provided in
Section 8.1 above, the rent payable under this Lease during the unexpired
portion of the term shall be adjusted to such an extent as may be fair and
reasonable under the circumstances. Tenant shall have no claim to the
condemnation award or proceeds in lieu thereof, except that Tenant shall be
entitled to a separate award for the cost of removing and moving its personal
property.
ARTICLE 9. ASSIGNMENT OR SUBLEASE
9.1 LANDLORD ASSIGNMENT. Landlord shall have the right to sell, transfer or
assign, in whole or in part, its rights and obligations under this Lease and in
the Building. Any such sate, transfer or assignment shall operate to release
Landlord from any and all liabilities under this Lease arising after the date
of such sate, assignment or transfer.
9.2 TENANT ASSIGNMENT. Tenant shall not assign, in whole or in part, this
Lease, or allow it to be assigned, in whole or in part, by operation of law or
otherwise (including without limitation by transfer of a majority interest of
stock, merger, or dissolution, which transfer of majority interest of stock,
merger or dissolution shall be deemed an assignment) or mortgage or pledge the
same, or sublet the Premises, in w hole or in part, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld, and in
no event shall said such assignment or sublease ever release Tenant or any
guarantor from any obligation or liability hereunder. Notwithstanding anything
in this Lease to the contrary, in the event of any assignment or sublease, any
option or right of first refusal granted to Tenant shall not be assignable by
Tenant to any assignee or sublessee. No assignee or sublessee of the Premises
or any portion thereof may assign or sublet the Premises or any portion
thereof. Notwithstanding the above, Landlord hereby consents to an assignment
of this Lease to Intranet Solutions, Inc. upon finalization of the merger
between Intranet Integration Group, Inc. and MacGregor Sports & Fitness, Inc.
9.3 CONDITIONS OF ASSIGNMENT. If Tenant desires to assign or sublet all or
any part of the Premises, it shall so notify Landlord at least thirty (30) days
in advance of the date on which Tenant desires to make such assignment or
sublease. Tenant shall provide Landlord with a copy of the proposed assignment
or sublease and such information as Landlord might request concerning the
proposed sublessee or assignee to allow Landlord to make informed judgments as
to the financial condition, reputation, operations and general desirability of
the proposed sublessee or assignee. Within fifteen (15) days after Landlord's
receipt of Tenant's proposed assignment or sublease and all required
information concerning the proposed sublease or assignee, Landlord shall have
the following options: (1) consent to the proposed assignment or sublease,
and, if the rent due and payable by any assignee or sublessee under any such
permitted assignment or sublease (or a combination of the rent payable under
such assignment or sublease plus any bonus or any other consideration or any
payment incident thereto) exceeds the rent payable under this Lease for such
space, Tenant shall pay to Landlord all such excess rent and other excess
consideration within ten (10) days following receipt thereof by Tenant; or (2)
refuse, with reasonable judgement, to consent to the proposed assignment or
sublease, which refusal shall be deemed to have been exercised unless Landlord
gives Tenant written notice providing otherwise. Upon the occurrence of an
event of
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default, if all or any part of the Premises are then assigned or sublet,
Landlord, in addition to any other remedies provided by this Lease or provided
by law, may, at its option, collect directly from the assignee or sublessee all
rents becoming due to Tenant by reason of the assignment or sublease, and
Landlord shall have a security interest in all properties on the Premises to
secure payment of such sums. Any collection directly by Landlord from the
assignee or sublessee shall not be construed to constitute a novation or a
release of Tenant or any guarantor from the further performance of its
obligations under this Lease.
9.4 RIGHTS OF MORTGAGE. Tenant accepts this Lease subject and subordinate to
any recorded mortgage presently existing or hereafter created upon the Building
and to all existing recorded restrictions, covenants, easements and agreements
with respect to the Building. Landlord is hereby irrevocably vested with full
power and authority to subordinate Tenant's interest under this Lease to any
first mortgage lien hereafter placed on the Premises, and Tenant agrees upon
demand to execute additional instruments subordinating this Lease as Landlord
may require. If the interests of Landlord under this Lease shall be
transferred by reason of foreclosure or other proceedings for enforcement of
any first mortgage or deed of trust on the Premises, Tenant shall be bound to
the transferee (sometimes called the "Purchaser") at the option of the
Purchaser, under the terms, covenants and conditions of this Lease for the
balance of the term remaining, including any extensions or renewals, with the
same force and effect as if the Purchaser were Landlord under this Lease, and,
if requested by the Purchaser, Tenant agrees to attorn to the Purchaser,
including the first mortgagee under any such mortgage if it be the Purchaser,
as its Landlord. Notwithstanding the foregoing, Tenant shall not be disturbed
in its possession of the Premises so tong as Tenant is not in default
hereunder.
9.5 TENANT'S STATEMENT. Tenant agrees to furnish, from time to time, within
ten (10) days after receipt of a request from Landlord or Landlord's mortgagee,
a statement certifying, if applicable, the following: Tenant is in possession
of the Premises; the Premises are acceptable; the Lease is in full force and
effect; the Lease is unmodified; Tenant claims no present charge, lien, or
claim or offset against rent; the rent is paid for the current month, but is
not prepaid for more than one month and will not be prepaid for more than one
month in advance; there is no existing default by reason of some act or
omission by Landlord; and such other matters as may be reasonably required by
Landlord or Landlord's mortgagee. Tenant's failure to deliver such statement,
in addition to being a default under this Lease, shall be deemed to establish
conclusively that this Lease is in full force and effect except as declared by
Landlord, that Landlord is not in default of any of its obligations under this
Lease, and that Landlord has not received more than one month's rent in
advance. Tenant agrees to furnish, from time to time, within ten (10) days
after receipt of a request from Landlord, a current financial statement of
Tenant, certified as true and correct by Tenant.
ARTICLE 10. LANDLORD'S LIEN AND SECURITY AGREEMENT
(INTENTIONALLY DELETED)
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ARTICLE 11. DEFAULT AND REMEDIES
11.1 DEFAULT BY TENANT. The following shall be deemed to be events of
default ("Default") by Tenant under this Lease: (1) Tenant shall fail to pay
when due any installment of rent or any other payment required pursuant to this
Lease; (2) Tenant shall abandon any substantial portion of the Premises; (3)
Tenant shall fail to comply with any term, provision or covenant of this Lease,
other than the payment of rent, and the failure is not cured within ten (10)
days after written notice to Tenant; (4) Tenant shall file a petition or an
involuntary petition is filed against Tenant under any applicable federal or
state bankruptcy or insolvency law or Tenant admits that it cannot meet its
financial obligations as they become due; or if a receiver or trustee shall be
appointed for all or substantially all of the assets of Tenant; or Tenant shall
make a transfer in fraud of creditors or shall make an assignment for the
benefit of creditors; or (5) Tenant shall do or permit to be done any act which
results in a lien being filed against the Premises or the Building and/or
project of which the Premises are a part, except that Tenant shall have the
right to seek satisfaction of said lien after posting a bond of one hundred
twenty-five percent (125%) of the lien amount.
In the event that an order for relief is entered in any case under Title 11,
U.S.C. (the "Bankruptcy Code") in which Tenant Is the debtor and: (A) Tenant
as debtor-in-possession, or any trustee who may be appointed in the case (the
"Trustee") seeks to assume the tease, then Tenant, or Trustee if applicable, in
addition to providing adequate assurance described in applicable provisions of
the Bankruptcy Code, shall provide adequate assurance to Landlord of Tenant's
future performance under the Lease by depositing with Landlord a sum equal to
the lesser of twenty-five percent (25%) of the rental and other charges due for
the balance of the lease term or six (6) months' rent ("Security"), to be held
(without any allowance for interest thereon) to secure Tenant's obligation
under the Lease, and (B) Tenant, or Trustee if applicable, seeks to assign the
Lease after assumption of the sees, then Tenant, in addition to providing
adequate assurance described in applicable provisions of the Bankruptcy Code,
shall provide adequate assurance to Landlord of the proposed assignee's future
performance under the Lease by depositing with Landlord a sum equal to the
Security to be held (without any allowance or interest thereon) to secure
performance under the Lease. Nothing contained herein expresses or implies, or
shall be construed to express or imply, that Landlord is consenting to
assumption and/or assignment of the Lease by Tenant, and Landlord expressly
reserves all of its rights to object to any assumption and/or assignment of the
Lease. Neither Tenant nor any Trustee shall conduct or permit the conduct of
any "fire", "bankruptcy", "going out of business" or auction sate in or from
the Premises.
11.2 REMEDIES FOR TENANT'S DEFAULT. Upon the occurrence of a Default as
defined above, Landlord may elect either (I) to cancel and terminate this Lease
and this Lease shall not be treated as an asset of Tenant's bankruptcy estate,
or (ii) to terminate Tenant's right to possession only without cancelling and
terminating Tenant's continued liability under this Lease. Notwithstanding the
fact that initially Landlord elects under (ii) to terminate Tenant's right to
possession only, Landlord shall have the continuing right to cancel and
terminate this Lease by giving ten (10) days' written notice to Tenant of such
further election, and shall have the right to pursue any remedy at law or in
equity that may be available to Landlord.
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In the event of election under (ii) to terminate Tenant's right to possession
only, Landlord may, at Landlord's option, enter the Premises and take and hold
possession thereof, without such entry into possession terminating this Lease
or releasing Tenant In tote or in part from Tenant's obligation to pay all
amounts hereunder for the full stated term. Upon such reentry, Landlord may
remove all persons and property from the Premises and such property may be
removed and stored in a public warehouse or elsewhere at the cost and for the
account of Tenant, without becoming liable for any loss or damage which may be
occasioned thereby. Such reentry shall be conducted in the following manner:
without resort to judicial process or notice of any kind if Tenant has
abandoned or voluntarily surrendered possession of the Premises; and,
otherwise, by resort to judicial process. Upon and after entry into possession
without termination of the Lease, Landlord may, but is not obligated to, relet
the Premises, or any part thereof, to any one other than the Tenant, for such
time and upon such terms as Landlord, in Landlord's sole discretion, shall
determine. Landlord may make repairs to the Premises to the extent deemed by
Landlord necessary or desirable to relet the Premises.
Upon such reentry, Tenant shall be liable to Landlord as follows:
A. For all attorneys' fees incurred by Landlord in connection with
exercising any remedy hereunder;
B. For the unpaid installments of base rent, additional rent or
other unpaid sums which were due prior to such reentry, including
interest and late payment fees, which sums shall be payable
immediately.
C. For the installments of base rent, additional rent, and other
sums falling due pursuant to the provisions of this Lease for the
period after reentry during which the Premises remain vacant,
including late payment charges and interest, which sums shall be
payable as they become due hereunder.
D. For all expenses incurred in releasing the Premises, including
leasing commissions, attorneys' fees, and costs of alteration or
repairs, which shall be payable by Tenant as they are incurred by
Landlord; and
X. Xxxxx the Premises are subject to any new lease or leases made
pursuant to this Section, for the amount by which the monthly
installments payable under such new lease or leases is less than
the monthly installment for all charges payable pursuant to this
Lease, which deficiencies shall be payable monthly.
Notwithstanding Landlord's election to terminate Tenant's right to possession
only, and notwithstanding any reletting without termination, Landlord, at any
time thereafter, may elect to terminate this Lease, and to recover (in lieu of
the amounts which would thereafter be payable pursuant to the foregoing, but
not in diminution of the amounts payable as provided above before termination),
as damages for loss of bargain and not as a penalty, an aggregate sum equal to
the
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amount by which the rental value of the portion of the term unexpired at the
time of such election is less than an amount equal to the unpaid base rent,
percentage rent, and additional rent and all other charges which would have
been payable by Tenant for the unexpired portion of the term of this Lease,
which deficiency and all expenses incident thereto, including commissions,
attorneys' fees, expenses of alterations and repairs, shall be due to Landlord
as of the time Landlord exercises said election, notwithstanding that the term
had not expired. If Landlord, after such reentry, Leases the Premises, then
the rent payable under such new tease shall be conclusive evidence of the
rental value of the unexpired portion of the term of this Lease.
If this Lease shall be terminated by reason of bankruptcy or insolvency of
Tenant, Landlord shall be entitled to recover from Tenant or Tenant's estate,
as liquidated damages for toss of bargain and not as a penalty, the amount
determined by the immediately preceding paragraph.
11.3 LANDLORD'S RIGHT TO PERFORM FOR ACCOUNT OF TENANT. If Tenant shall be
in Default under this Lease, Landlord may cure the Default at any time for the
account and at the expense of Tenant. If Landlord cures a Default on the part
of Tenant, Tenant shall reimburse Landlord upon demand for any amount expended
by Landlord in connection with the cure, including, without limitation,
attorneys' fees and interest.
11.4 INTEREST, ATTORNEY'S FEES AND LATE CHANGE. In the event of a Default by
Tenant: (1) if a monetary default, interest shall accrue on any sum due and
unpaid at the rate of the lesser of eighteen percent (18%) per annum or the
highest rate permitted by law and, if Landlord places in the hands of an
attorney the enforcement of all or any part of this Lease, the collection of
any rent due or to become due or recovery of the possession of the Premises,
Tenant agrees to pay Landlord's costs of collection, including reasonable
attorney's fees for the services of the attorney, whether suit is actually
filed or not. Other remedies for nonpayment of rent notwithstanding, if the
monthly rental payment or any other payment due from Tenant to Landlord is not
received by Landlord on or before the fifth (5th) day of the month for which
the rent is due, a late payment charge of five percent (5%) of such past due
amount shall become due and payable in addition to such amounts owed under this
Lease.
11.5 ADDITIONAL REMEDIES, WAIVERS, ETC.
A. The rights and remedies of Landlord and Tenant set forth herein
shall be in addition to any other right and remedy now and
hereafter provided by law. All rights and remedies shall be
cumulative and not exclusive of each other. Landlord or Tenant
may exercise its rights and remedies at any times, in any order,
to any extent, and as often as Landlord or Tenant deems advisable
without regard to whether the exercise of one right or remedy
precedes, concurs with or succeeds the exercise of another.
B. A single or partial exercise of a right or remedy shall not
preclude a further exercise thereof, or the exercise of another
right or remedy from time to time.
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C. No delay or omission by Landlord or Tenant in exercising a
right or remedy shall exhaust or impair the sees or constitute a
waiver of, or acquiescence to, a Default.
D. No waiver of Default shall extend to or affect any other Default
or impair any right or remedy with respect thereto.
E. No action or inaction by Landlord or Tenant shall constitute a
waiver of Default.
F. No waiver of a Default shall be effective unless it is in
writing and signed by Landlord or Tenant.
ARTICLE 12. RELOCATION
(INTENTIONALLY DELETED)
ARTICLE 13. AMENDMENT AND LIMITATION OF WARRANTIES
13.1 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY TENANT, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES: THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE
OR TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN
WRITING IN THIS LEASE.
13.2 AMENDMENT. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LANDLORD AND TENANT.
13.3 LIMITATION OF WARRANTIES. LANDLORD AND TENANT EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OR MERCHANTABILITY, HABITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS
LEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET
FORTH IN THIS LEASE. LANDLORD AGREES TO PROVIDE TENANT A COPY OF THE
CERTIFICATE OF OCCUPANCY UPON THE COMPLETION OF THE IMPROVEMENTS.
ARTICLE 14. MISCELLANEOUS
14.1 SUCCESSORS AND ASSIGNS. This Lease shall be binding upon and inure to
the benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and agreed
that should Landlord's interest in the Premises cease to exist for
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any reason during this Lease, then notwithstanding the happening of such event
this Lease nevertheless shall remain unimpaired and in full force and effect,
and Tenant hereunder agrees to attorn to the then owner of the Premises.
14.2 USE OR RENT TAX. If applicable in the jurisdiction where the Premises
are issued, Tenant shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to
all other payments required to be paid to Landlord under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the
rent, additional rent, operating expenses or other charge upon which the tax is
based as set forth above.
14.3 ACT OF GOD. Landlord shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Tenant, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
or prevented by an act of God, force majeure or by Tenant.
14.4 HEADINGS. The section headings appearing in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any Section.
14.5 NOTICE. All rent and other payments required to be made by Tenant
shall be payable to landlord at the address set forth in Section 1.8. All
payments required to be made by Landlord to Tenant shall be payable at the
address set forth in Section 1.8, or at any other address within the United
States as Tenant may specify from time to time by written notice. Any notice
or document required or permitted to be delivered by the terms of this Lease
shall be deemed to be delivered (whether or not actually received) when
deposited in the United States Mail, postage prepaid, certified mail, return
receipt requested, addressed to the parties at the respective addresses set
forth in Section 1.8.
14.6 TENANT'S AUTHORITY. If Tenant executes this Lease as a corporation,
each of the persons executing this Lease on behalf of Tenant does hereby
personally represent and warrant that Tenant is a duty authorized and existing
corporation, that Tenant is qualified to do business in the state in which the
Premises are located, that the corporation has full right and authority to
enter into this Lease, and that each person signing on behalf of the
corporation is authorized to do so. In the event any representation or
warranty is false, all persons who execute this tease shall be liable,
individually, as Tenant.
14.7 HAZARDOUS SUBSTANCES. Tenant, its agents or employees, shall not
bring or permit to remain on the Premises or Building any asbestos, petroleum or
petroleum products, explosives, toxic materials, or substances defined as
hazardous wastes, hazardous materials, or hazardous substances under any
federal, state, or local law or regulation ("Hazardous Materials"). Tenant's
violation of the foregoing prohibition shall constitute a material breach and
default hereunder and Tenant shall indemnify, hold harmless and defend Landlord
from and against any claims, damages, penalties, liabilities, and costs
(including reasonable attorney fees and court costs) caused by or arising out
of (I) a violation of the foregoing prohibition by Tenant or (ii) the presence
of any
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Hazardous Materials on, under, or about the Premises or the Building during the
term of the Lease caused by or arising, in whole or in part, out of the actions
of Tenant, its agents or employees. Tenant shall clean up, remove, remediate
and repair any soil or ground water contamination and damage caused by the
presence and any release of any Hazardous Materials in, on, under or about the
Premises or the Building during the term of the Lease caused by or arising, in
whole or in part, out of the actions of Tenant, its agents or employees, in
conformance with the requirements of applicable law. Tenant shall immediately
give Landlord written notice of any suspected breach of this paragraph; upon
learning of the presence of any release of any Hazardous Materials, and upon
receiving any notices from governmental agencies pertaining to Hazardous
Materials which may affect the Premises or the Building. The obligations of
Tenant hereunder shall survive the expiration of earlier termination, for any
reason, of this Lease. Notwithstanding the above, Landlord agrees to hold
Tenant harmless for Hazardous Materials in, on or about the Building prior to
or during Tenant's occupancy, which were not caused or contributed by the
Tenant, its employees, customers or representatives.
14.8 SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to
other persona or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
14.9 LANDLORD'S LIABILITY. If Landlord shall be in default under this Lease
and, if as a consequence of such default, Tenant shall recover a money judgment
against Landlord, such judgment shall be satisfied only out of the right, title
and interest of Landlord in the Building as the same may then be encumbered and
neither Landlord nor any person or entity comprising Landlord shall be liable
for any deficiency. In no event shall Tenant have the right to levy execution
against any property of Landlord nor any person or entity comprising Landlord
other than its interest in the Building as herein expressly provided. Landlord
agrees to maintain an equity interest of $200,000.00 in the Building at all
times during the term of this Lease.
14.10 BROKERAGE. Landlord and Tenant each represents and warrants to the
other that there is no obligation to pay any brokerage fee, commission,
finder's fee or other similar charge in connection with this Lease, other than
fees due to Xxxx Xxxxx of Xxxx Properties, which are the responsibility of
Landlord. Each party covenants that it will defend, indemnify and hold
harmless the other party from and against any toss or liability by reason of
brokerage or similar services alleged to have been rendered to, at the instance
of, or agreed upon by said indemnifying party. Notwithstanding anything herein
to the contrary, Landlord and Tenant agree that there shall be no brokerage fee
or commission due on expansions, options or renewals by Tenant.
14.11 MANAGEMENT AGENT. Landlord hereby notifies Tenant that the xxxxxx
authorized to execute this Lease and manage the Premises is CSM Corporation, a
Minnesota corporation, which has been appointed to act as the agent in teasing
management and operation of the Building for owner and is authorized to accept
service of process and receive or give receipts for notices and
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demands on behalf of Landlord. Landlord reserves the right to change the
identity and status of its duty authorized agent upon written notice to Tenant.
14.12 SUBMISSION OF LEASE. Submission of this Lease to Tenant for signature
does not constitute a reservation of space or an option to Lease. This Lease
is not effective until execution by and delivery to both Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease effective the
day and year first above written.
LANDLORD: TENANT:
CSM INVESTORS, INC. INRANET INTEGRATION GROUP, INC.
BY:/s/ Illegible Signature BY: /s/ Xxxxxx X. Xxxxx
----------------------- ------------------------------------------
ITS: Vice President ITS: President and Chief Executive Officer
------------------- -------------------------------------
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GUARANTEE OF LEASE
WHEREAS, INTRANET INTEGRATION GROUP, INC. D/B/A TECHNICAL PUBLISHING SOLUTIONS,
INC., a Minnesota corporation, hereinafter referred to as "Tenant" has
requested that a certain lease of even date herewith be executed by and between
Tenant and CSM INVESTORS, INC., a Minnesota corporation, hereinafter referred
to as "Landlord", covering certain premises located at 0000 Xxxx 00xx Xxxxxx,
Xxxxx 000, xx Xxxx Xxxxxxx, Xxxxxxxxx.
WHEREAS, the Landlord requires as a condition to its execution of said Lease
that the undersigned ("Guarantor") guarantee the full performance of the
obligations of Tenant under said Lease; and
WHEREAS, the Guarantor is desirous that Landlord enter into said Lease with
Tenant.
NOW THEREFORE, to induce Landlord to enter into said Lease, and in
consideration of the execution of said Lease by Landlord, the Guarantor hereby
unconditionally guarantees the full performance of each and all of the terms,
covenants and conditions of said Lease to be kept and performed by said Tenant,
including the payment of all rentals and other charges to accrue thereunder, up
to the total value of Landlord's investment in tenant improvements to the
Premises, and the Guarantor agrees as follows:
1. That the covenants and agreement on its part shall continue in favor of
the Landlord notwithstanding any extension, modification, or alteration of
said Lease entered into by and between the parties thereto, or their
successors or assigns, or notwithstanding any assignment of said Lease,
with or without the consent of the Landlord and no extension,
modification, alteration or assignment of the above-referred to Lease
shall in any manner release or discharge the Guarantor, except as
contained herein, and it does hereby consent thereto.
2. That this Guarantee will continue unchanged by a (I) bankruptcy,
reorganization or insolvency of the Tenant or any successor or assignee
thereof or by any disaffirmance of abandonment by a trustee of Tenant,
(ii) disability or other defense of Tenant, or (iii) the cessation for any
cause from any cause whatsoever of the liability of Tenant.
3. That Tenant may not, without prior written approval of Landlord, assign
this Guarantee of Lease in whole or in part, and no assignment or transfer
of the Lease shall operate to extinguish or diminish the liability of the
Guarantor hereunder.
4. That the liability of the Guarantor under this Guarantee of Lease shall
be primary and that in any right of action which shall accrue to Landlord
under the Lease, the Landlord may at its option proceed against the
Guarantor without having commenced any action, or having obtained any
judgment against the Tenant.
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5. That the Guarantor agrees to pay Landlord's reasonable attorneys' fees
and all costs and other expenses incurred in any collection or attempted
collection or in any negotiations relative to the obligations hereby
guaranteed or enforcing this Guarantee of Lease against the Guarantor,
individually and jointly.
6. That it does hereby waive notice of any demand by the Landlord as well as
notice of default in the payment of rent or any other amounts contained or
reserved in the Lease.
7. Notwithstanding the above, this Guarantee of Lease shall become null and
void upon the earlier of the finalization of the merger between Intranet
Integration Group, Inc. and MacGregor Sports & Fitness, Inc., or receipt
by Intranet Integration Group, Inc. or its assignees of a minimum of
$3,000,000.00 of equity financing.
The use of the singular herein shall include the plural. The obligation of two
or more parties shall be joint and several. The terms and provisions of this
Guarantee shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties herein named.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed as
of the date set forth on Page 1 of the Lease (if Guarantor shall be a
corporation, the authorized officers must sign on behalf of the corporation.
This Guarantee must be executed by the president or vice president and the
secretary or assistant secretary).
By: /s/ Xxxxxx Xxxxx
------------------------------
XXXXXX XXXXX
Home Address: 0000 Xxxxxxxxxxx Xxxxx
------------------------------
Xxxx Xxxxxxx, Xxxxxxxxx 00000
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Home Phone: (000) 000-0000
------------------------------
Social Security #: ###-##-####
------------------------------
Date: April 24, 1996
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