EXHIBIT 10.17
10/14/91
LEASE
This Lease is entered into as of October 11, 1991, between MEPC AMERICAN
PROPERTIES INCORPORATED, a Delaware Corporation, ("Lessor") and MEDICAL
INSTITUTE OF MINNESOTA, INC., a Minnesota corporation, ("Tenant").
1. Definitions. In this Lease:
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(a) "Actual Operating Cost" means the Operating Cost (as defined in
Section 1(u)) actually incurred for a calendar year.
(b) "Actual Tax Cost" means the Tax Cost (as defined in Section 1(y))
actually incurred for a year.
(c) "Additional Costs" means the estimated monthly Tax Cost (as defined
in Section 1(y)) plus the estimated monthly Operating Cost.
(d) "Base Operating Cost" means the Operating Cost of $215,523.00
estimated for 1992.
(e) "Base Rent" means the following amounts for each Lease Year:
Lease Years 1 - 5 $168,600.00
Leases Years 6 - 10 $201,936.00.
(f) "Base Tax Cost" means the Tax Cost (as defined in Section 1(y)) of
$184,593.00 estimated to be payable in 1992.
(g) "Building" means the building at 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, located on the Land, commonly known as
Xxxxxx Center II.
(h) "Casualty" means a fire, explosion, tornado, or other cause of damage
to or destruction of the Building.
(i) "Commencement Date" means the first day of the Term.
(j) "Environmental Regulation" means any law, rule, regulation, permit,
agreement, order, determination or requirement of any Governmental
Authority relating to the environment, human health or safety, or
animal health or safety.
(k) "Exhibit" means an Exhibit attached to and thereby made a part of
this Lease.
(l) "Governmental Authority" means any federal, state, or local
government body, including elected bodies, departments, agencies,
commissions, boards or instrumentalities.
(m) "Hazardous Substance" means any substance, pollutant, or contaminant,
as those terms are defined in any Environmental Regulation, and
specifically includes asbestos, asbestos-containing materials,
petroleum or petroleum-base products, formaldehyde, polychlorinated
biphenyls, and Medical Waste.
(n) "Land" means the land described on Exhibit B attached to this Lease.
(o) "Lease" means this Lease, all Exhibits attached to this Lease, and
all properly executed amendments, modifications and supplements to
this Lease.
(p) "Lease Year" means each successive 12-month period from and after the
Commencement Date.
(q) "Medical Waste" means all 'blood," "infectious waste," "laboratory
waste," "pathological waste," "research animal waste," and "sharps,"
as such terms in quotation marks are defined in Minn. Stat. (S)
116.76 (1990) .
(r) "Monthly Base Rent" means $14,050.00 per month for Lease Years 1 - 5
and $16,828.00 per month for Lease Years 6 - 10.
(s) "Monthly Rent" means the Monthly Base Rent plus Tenant's Share of the
Additional Costs. The initial Monthly Rent is $30,055.00, comprised
of a Monthly Base Rent of $14,050.00 plus a monthly Operating Cost
estimated at $8,621.00 and a monthly Tax Cost estimated at $7,384.00.
(t) "Normal Business Hours" means 7:30 a.m. to 6:00 p.m. Monday through
Friday and 8:00 a.m. to 1:00 p.m. on Saturdays, excluding Sundays and
legal holidays.
(u) "Operating Cost" means all costs, charges and expenses incurred by
Lessor in connection with ownership, operation, security, maintenance
and repair of the Land, the Building, other improvements on the Land,
appurtenances to the Building, parking, roadways, landscaping,
lighting, sidewalks, and common or public areas, including but not
limited to real estate taxes and insurance on common areas, interior
and exterior maintenance, snow plowing, insurance, utilities, fees or
expenses for management by Lessor or any other party, amortization of
capital investments made to reduce operating costs, and amortization
of repairs made to extend the life of the Building and other
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improvements. Operating Cost will not include charges for services or
utilities which are separately charged or metered to Tenant or other
tenants of the Building, mortgage interest, depreciation on the
Building or fixtures, advertising expenses, real estate brokers'
commissions or the cost of tenant improvements. Operating Cost will
not include the cost of janitorial service for the tenant areas
within the Building except the restrooms located in the Premises on
the basement level of the Building, but Operating Cost will include
the cost of janitorial service for the common areas within the
Building.
(v) "Premises" means the space referred to as Suite No. 100 on the first
floor and in the basement of the Building, which space is shown
crosshatched on the drawing attached to this Lease as Exhibit A, and
which for purposes of this Lease will be deemed to contain a total of
33,332 rentable square feet consisting of 17,151 rentable square feet
on the first floor of the Building and 16,181 rentable square feet in
the basement of the Building, regardless of actual measurements.
(w) "Section" means a section of this Lease.
(x) "Taking" means acquisition by a public authority having the power of
eminent domain of all or part of the Land or Building by condemnation
or conveyance in lieu of condemnation.
(y) "Tax Cost" means all real estate taxes, levies, charges, and
installments of assessments (including interest on deferred
assessments) assessed, levied or imposed on, or allocated to, the
Land and Building and all attorneys' fees, witness fees, court costs
and other reasonable expenses of Lessor in connection with any
proceeding to contest these amounts. If property, in addition to the
Land and the Building, is included within the tax parcel which covers
the Land and Building, then Lessor shall make a reasonable allocation
between the other property and the Land and the Building.
(z) "Tenant's Share" means the percentage obtained by dividing the
rentable square foot area of the Premises by the total rentable
square foot area of the Building, which percentage on this date of
this Lease is 48% based upon the total number of rentable square feet
of the Premises stated in paragraph (v) above and based upon a
current total rentable square footage for the Building of 69,078
square feet.
(aa) "Term" means the period of 10 years and 0 months, beginning on
January 1, 1992 and ending on December 31, 2001, subject to the
provisions of Section 7 and the other provisions of this Lease.
2. Premises.
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Lessor leases the Premises to Tenant, and Tenant leases the Premises from
Lessor, for the Term, under the terms and conditions of this Lease.
3. Rent.
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Tenant will pay the Monthly Rent to Lessor at P. O. Xxx 00000, Xxxxxxx, Xxxxxxxx
00000-0000, or such other place as Lessor may designate, in advance on or before
the Commencement Date and on or before the first day of each month during the
Term, without demand, deduction or setoff. The Monthly Rent may change as the
Additional Costs are adjusted annually under Sections 4 and 5. Monthly Rent will
begin on the Commencement Date. If the Term begins on a day other than the
first day of a month, the Monthly Rent for that month will be prorated by
multiplying the Monthly Rent by the number of days of that month included in the
Term and dividing the product by the number of days in that month.
Any Monthly Rent or other amounts payable by Tenant to Lessor under this Lease
which are not paid within 10 days after the date due will bear interest from the
date due to the date paid at the rate of 12% per annum or the maximum rate of
interest permitted by law, whichever is less, and the interest will be paid to
Lessor on demand. In addition, Tenant will pay Lessor a $100 service charge for
all Monthly Rent not paid by the 10th day of the month for which it is payable,
which service charge is to partially cover expense involved in handling
delinquent payments. All amounts to be paid by Tenant to Lessor under this
Lease will be deemed to be additional rent for purposes of payment and
collection.
If any taxes, special assessments, fees or other charges are imposed against
Lessor by any governmental unit or agency with respect to rentals under this
Lease, Tenant will pay these amounts to Lessor when due, except that Tenant will
have no obligation to pay any income tax on rentals unless the tax is imposed in
lieu of real estate taxes.
4. Cost Adjustments.
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Prior to the first day of each calendar year after the date of this Lease, or as
soon as reasonably possible after the first day of the year, Lessor will furnish
Tenant with an estimate of the Tax Cost for that year if it is greater than, the
Base Tax Cost, and with, an estimate of the Operating Cost, and the Monthly Rent
for each month of that calendar year will be increased by 1/12th of Tenant's
Share of the differences between the Tax Cost estimate and the Base Tax Cost and
between the Operating Cost estimate and the Base Operating Cost.
After the end of each calendar year, including the year in which the Term
expires, Lessor will give Tenant a statement of the Actual Tax Cost and Actual
Operating Cost for that calendar year. If the actual costs exceed the estimated
costs for that year, Tenant will immediately pay to Lessor Tenant's Share of the
excess. If the actual costs are less than the estimated costs for that year,
Lessor will immediately pay to Tenant Tenant's Share of the difference. If
Lessor contests Tax Cost and receives a refund or incurs additional Tax Cost
after adjustments for Actual Tax Cost
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have been made, the Actual Tax Cost will be corrected accordingly and the
appropriate adjustment will be made between Lessor and Tenant. The portion of
the Actual Tax Cost and Actual Operating Cost to be paid by Tenant for the years
in which the Term begins and ends will be prorated by multiplying the Actual Tax
Cost and Actual Operating Cost amounts by a fraction, the numerator of which is
the number of days of that year in the Term and the denominator of which is 365.
5. Cost Computations and Allocations.
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Notwithstanding any other provision of this Lease to the contrary, it is agreed
that Lessor will in its reasonable discretion, determine from time to time, the
method of computing and allocating Operating Cost and Tax Cost, the allocation
of Operating Cost and Tax Cost to various types of space within the Building,
and Tenant will be bound thereby; that if the Building is not fully occupied
during any partial or full year, an adjustment will be made in computing the
Actual Operating Cost for such year so that it is computed as though the
Building had been fully occupied during that year; and that if the Tax Cost
payable in any year does not reflect a building that is fully completed and
fully occupied, an adjustment will be made in computing the Tax Cost so that it
reflects what the Tax Cost would have been had the Building been fully complete
and fully occupied.
6. Fiscal Year.
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The year used to determine Additional Costs may be changed to a different 12-
month period designated by Lessor. If the calendar year is changed to a fiscal
year, or if a fiscal year is changed to a different fiscal year, prorations will
be made for the estimated Additional Costs and the actual Additional Costs so
that the same time period is used to determine each and so that Additional Costs
are not included in more than one time period.
7. Possession
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If Tenant begins to conduct business in all or any portion of the Premises
before the Commencement Date, Tenant will pay to Lessor a portion (as described
below) of the Additional Costs for the period from the date Tenant begins to
conduct business in the Premises to the Commencement Date and all other
provisions of this Lease will be applicable during that period. The portion of
the Additional Costs to be paid by Tenant under such circumstances shall be the
percentage obtained by dividing the reputable square foot area of the portion of
the Premises in which Tenant is conducting business by 62,301 which is the
rentable square foot area of the Building.
If Lessor is delayed in delivering possession of all or any portion of the
Premises to Tenant on the Commencement Date, Tenant will take possession of the
Premises on the date when, Lessor delivers possession of all of the Premises,
which date will then become the Commencement Date, and the last day of the term
will be extended so that the length of the Term, remains the same. If
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the extended Term would end on a day other than the last day of a month, the
Term will be further extended to the last day of the month in which the Term
ends.
This Lease will not be void or voidable and Lessor will not be liable to Tenant
for any loss or damage resulting from any delay in delivering possession of the
Premises to Tenant, but unless the delay is principally caused by or
attributable to Tenant, its employees, agents or contractors, no Monthly Rent
will be due for the period prior to the date Lessor delivers possession of the
Premises, unless Tenant elects to take possession of a portion of the Premises
in which case Monthly Rent will be due for the portion of the Premises taken.
Tenant's occupancy of the Premises will constitute Tenant's acceptance of the
Premises, subject to the completion of any punch list items on work to be
performed by Lessor. Tenant will submit to Lessor a punch list on work to be
performed by Lessor within 30 days after Tenant's occupancy of the Premises.
Tenant will not vacate or abandon the Premises during the Term without Lessor's
prior written consent. If Tenant pays the Monthly Rent and other charges and
performs all of Tenant's obligations under this Lease, Lessor promises that
Tenant may peaceably and quietly possess and enjoy the Premises under this
Lease.
8. Use.
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Tenant will use the Premises for a post-secondary school for the training of
medical and veterinary technicians and for no other purpose. Without limiting
the generality of the foregoing, the Premises will not be used for a human or
animal clinic providing services to the general public, hospital or research
facility. Tenant will not commit or permit any act or omission which results in
the violation of any law, governmental regulation, or reasonable insurance
policy of Lessor, relating to the Building. If Tenant's use of the Building
increases Lessor's insurance rates on the Building, then Tenant shall promptly
reimburse Lessor for the full amount of the increase. Tenant will not permit
any conduct or condition which may unreasonably disturb or endanger other
occupants of the Building.
9. Care of Premises
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Tenant will keep the Premises and the fixtures and equipment in the Premises in
as good condition and repair as they were in at the time possession of the
Premises is tendered to Tenant, except for ordinary wear and damage from fire or
other casualty beyond Tenant's control. If Tenant fails to do so, Lessor may
enter the Premises to perform the maintenance and repairs and charge the
reasonable costs to Tenant, together with interest as provided in Section 3.
10. Building Rules.
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Rules and Regulations for the Premises and the Building in effect on the date of
this Lease are attached as Exhibit X. Xxxxxx will have the right to adopt
different or additional reasonable rules and regulations, and to rescind or
amend the attached rules and regulations, by written notice to
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Tenant, so long as such rules and regulations are equitably applied to other
tenants at Xxxxxx Center. Tenant will abide by the rules and regulations then in
force and will cause Tenant's employees to observe and comply with them.
11. Compliance with Laws.
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Tenant will, at its expense, promptly comply with all laws, ordinances, rules,
orders, regulations and other requirements of any Governmental Authority now or
subsequently pertaining to the Premises. Tenant will pay any taxes or other
charges by any Governmental Authority on Tenant's property or trade fixtures in
the Premises or relating to Tenant's use of the Premises.
12. Signs.
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Tenant will not place or permit any signs on the exterior or windows of the
Building, or within the Premises if visible from the exterior of the building or
from hallways or other common areas of the Building, except lettering and
numerals for identification purposes on or near doorways as approved in advance
by Lessor. Subject to approval by any Governmental Authority with jurisdiction
over exterior signs for the Building, Lessor shall establish a system of
exterior signage for the Building which will identify the tenants within the
Building. Tenant will be identified on the exterior signage along with other
tenants of the Building in a manner similar to the other tenants. If a sign is
approved for the front of the Building at the corner of Highway 494 and Highway
100, Tenant will reimburse Lessor for Tenant's pro rata share of the costs of
constructing and maintaining the sign, which pro rata share shall be based upon
the percentage of the sign allocated to Tenant as opposed to other tenants.
Subject to the approval of any Governmental Authority with jurisdiction over
exterior signs for the Building, Lessor shall endeavor to provide exterior
signage which faces both Highway 494 and Xxxxxx Center Drive.
13. Alterations; and Allowances.
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Tenant accepts the Premises in their present condition and Lessor will have no
obligation to do any redecorating or remodeling or to make any repairs or
alterations, except for the alterations, if any, shown on the attached Exhibit
D,
Tenant shall pay Lessor for the costs of the work shown on the attached Exhibit
X. Xxxxxx shall contribute a credit against the cost to Lessor of the work equal
to $20.00 per rentable square foot of the Premises. Tenant shall pay to Lessor
upon request the amount by which the cost of the work exceeds $20.00 per
rentable square foot of the Premises. If the credit of $20.00 per rentable
square foot of the Premises exceeds the cost of the work on the attached Exhibit
D, then the excess shall be applied as a credit against future installments of
Monthly Base Rent payable by Tenant. Within 14 days after the Commencement
Date, provided that Tenant has actually moved
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into the Premises, Lessor shall pay to Tenant, in cash, a move-in allowance of
$1.00 per rentable square foot of the Premises.
As an alternative to the construction by Lessor of the alterations shown on the
attached Exhibit D, Tenant may construct the alterations shown on the attached
Exhibit D. Such construction of the alterations shown on the attached Exhibit D
by Tenant shall be subject to all of the requirements of the next paragraph
below concerning alterations by Tenant, including but not limited to the
requirement that Tenant first obtain Lessor's prior written approval of any
contractor or subcontractor who is to perform work on the Premises at Tenant's
request, which approval shall not unreasonably be withheld. If Tenant elects to
construct the alterations shown on the attached Exhibit D but the alterations
are not substantially completed by January 1, 1992, then the Commencement Date
will be the earlier of February 1, 1992 or the date on which Tenant has
substantially completed the alterations shown on the attached Exhibit D. If the
completion of the alterations is delayed due to the fault of Lessor, then the
February 1, 1992 date referred to in the preceding sentence shall be delayed one
day for each day of delay in completion which is due to the fault of Lessor.
Upon final completion of the alterations shown on the attached Exhibit D and the
submission of final lien waivers for all of such work to Lessor, Lessor will
reimburse Tenant for the cost to Tenant of the work shown on the attached
Exhibit D for an allowance up to $20.00 per rentable square foot of the
Premises. If the credit of $20.00 per rentable square foot of the Premises
exceeds the cost to Tenant of the work shown on the attached Exhibit D, then the
excess shall be applied as a credit against future installments of Monthly Base
Rent payable by Tenant. Within 14 days after the final completion by Tenant of
the work shown on the attached Exhibit D, provided that Tenant has actually
moved into the Premises, Lessor shall pay to Tenant, in cash, a move-in
allowance of $1.00 per rentable square foot of the Premises.
Tenant will not make any alterations, additions or improvements in or to the
Premises without first obtaining the written consent of Lessor, which approval
shall not unreasonably be withheld. Tenant will get Lessor's prior written
approval of any contractor or subcontractor who is to perform work on the
Premises at Tenant's request, which approval shall not unreasonably be withheld.
Lessor may require Tenant to post a bond, cash or other security to protect the
Premises from mechanic's liens. All alterations by Tenant will be constructed
with new materials unless the materials are already in the Premises, in a good
and workmanlike manner, and in compliance with the plans and specifications
approved by Lessor and all applicable laws, ordinances, rules, orders,
regulations, or other requirements of governmental authorities. Tenant will pay
for any labor, services, materials, supplies or equipment furnished or alleged
to have been furnished to Tenant in or about the Premises, and will pay and
discharge any mechanic's, materialmen's or other lien against the Premises
resulting from Tenant's failure to make such payments or will contest the lien
and deposit with Lessor cash equal to 150% of the amount of the lien. If the
lien is reduced to final judgment., Tenant will discharge the judgment and
Lessor will return the cash deposited by Tenant. Lessor may post notices of
nonresponsibility on the Premises as provided by law.
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All alterations., additions and improvements to the Premises made at Lessor's or
Tenant's expense, except movable office furniture and Tenant's movable trade
fixtures and equipment, will become the property of Lessor upon installation and
will be surrendered with the Premises upon termination of this Lease, except as
other-wise agreed in writing by Lessor and Tenant.
14. Utilities and Services.
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Lessor will supply reasonable elevator service (if elevators exist in the
Building) and heat and air conditioning appropriate to the season during Normal
Business Hours. The cost of all such services will be a part of the Operating
Cost. Lessor will not be liable for any loss or damage resulting from any
temporary interruption of these services due to repairs, alterations or
improvements, or any variation, interruption or failure of these services due to
governmental controls, unavailability of energy, or any other cause beyond
Lessor's control. No such interruption or failure of these services will be
deemed as an eviction of Tenant or will relieve Tenant from any of its
obligations under this Lease. Tenant will promptly reimburse Lessor for the cost
of all electric lamps, starters and ballasts used on the Premises.
Except for payment of Monthly Rent, Tenant will not be required to pay for these
services for ordinary office purposes, but Tenant will pay to Lessor any charges
Lessor reasonably establishes for utilities or services provided outside Normal
Business Hours at Tenant's request, or provided because of uses other than
ordinary office uses. The charges for such utilities or services shall be equal
to the actual costs incurred by Lessor,
The electricity for the Premises will be separately metered. The cost of
installing the separate electric meters for the Premises will be paid by Tenant,
with the cost of thereof being taken out of the $20.00 per rentable square foot
alterations allowance referred to in Section 13.
Lessor will have no obligation to provide any janitor service to the Premises.
Tenant shall separately obtain and pay for all janitor service for the Premises.
Tenant shall obtain such janitor service as is necessary to maintain the
Premises at a level of cleanliness at least equivalent to the standard in
similar office buildings in the Bloomington/Edina, Minnesota area.
Notwithstanding anything in the foregoing to the contrary, Lessor will provide
janitor service in the restrooms located in the Premises on the basement level
of the Building.
15. Entry by Lessor.
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Lessor and its agents and contractors and mortgagees will have the right to
enter the Premises at reasonable times for inspecting, cleaning, repairing, or
exhibiting the Premises, but Lessor will have no obligation to make repairs,
alterations or improvements except as expressly provided in this Lease.
16. Relocation.
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Lessor may relocate Tenant in substitute leased premises of equal square footage
and approximately equal configuration within the office complex which includes
the Building upon 90 days written notice to Tenant specifying the effective date
of the relocation. If this is done, Lessor will construct space which is
comparable to the original location, and will move Tenant's office furnishings
to the new location, all at Lessor's expense. Lessor will reimburse Tenant for
all out-of-pocket costs reasonably incurred by Tenant in connection with the
relocation, including without limitation costs for moving, printing of new
stationery and other materials, and telephone system relocation charges. If the
then current base rental rate at the new location is less than the Monthly Base
Rent, the Monthly Base Rent will be reduced accordingly. If the then current
base rental rate at the new location is higher than the Monthly Base Rent, the
Monthly Base Rent will not be increased. If Lessor requests Tenant to relocate
and Tenant gives Lessor written notice of objection to relocation within 10 days
after Lessor's notice, Lessor may withdraw the request for relocation by written
notice to Tenant within 10 days after the notice from Tenant. If the request is
not withdrawn by Lessor within the 10-day period, Tenant may terminate this
Lease effective as of the relocation date specified in Lessor's original notice
by written notice to Lessor within 10 days after expiration of the 10-day period
for Lessor to withdraw its request to relocate Tenant.
17. Subordination.
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At the request of any mortgagee or ground lessor, this Lease will be subject and
subordinate to any mortgage or ground lease which may now or hereafter encumber
the Building, and Tenant will execute, acknowledge and deliver to Lessor any
document requested by lessor to evidence the subordination, provided that such
subordination is conditional upon the agreement of the mortgagee or ground
lessor that it will not disturb Tenant's right to possession pursuant to this
Lease so long as Tenant is not in default under this Lease.
18. Estoppel Certificates.
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Within 10 days after written request from Lessor, Tenant will execute,
acknowledge and deliver to Lessor a document furnished by Lessor, which document
may be relied upon by Lessor and any prospective purchaser or mortgagee of the
Building stating (a) that this Lease is unmodified and is in full force and
effect (or if modified, that the Lease is in full force and effect as modified
and stating the modifications), (b) the dates to which rent and other charges
have been paid, (c) the current Monthly Rent, (d) the dates on which the Term
begins and ends, (e) that Tenant has accepted the Premises and is in possession,
(f) that Lessor is not in default under this Lease, or, if Lessor is in default,
specifying any such default, and (g) including such other information as the
prospective purchaser or mortgagee may reasonably require.
19. Assumption of Risks.
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Tenant assumes all risk of loss or damage of Tenant's property within the
Premises, including any loss or damage caused by water leakage, fire, windstorm,
explosion, theft, act of any other tenant, or other cause. Lessor will not be
liable to Tenant, or those claiming through Tenant, for injury,
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death or property damage occurring in the Premises, except to the extent caused
by the willful misconduct or negligence of Lessor or someone acting on its
behalf.
20. Indemnification.
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Tenant will indemnify Lessor and its agents and employees against all claims,
demands and actions, and all related costs and expenses (including attorneys'
fees) for injury, death, disability or illness of any person, or damage to
property, occurring in the Premises or arising out of Tenant's use of the
Premises, except to the extent caused by the willful misconduct or negligence of
Lessor or someone acting on its behalf. To the extent caused by the willful
misconduct or negligence of Lessor or someone acting on its behalf, Lessor will
indemnify Tenant and its agents, employees and invitees against all claims,
demands, and actions, and all related costs and expenses (including attorneys'
fees) for injury, death, disability or illness of any person, or damage to
property occurring in the Premises or arising out of Tenant's use of the
Premises.
21. Insurance.
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Tenant will keep public liability insurance in force at its expense by an
insurer and policy acceptable to Lessor in its reasonable opinion. The policy
will name Lessor and its mortgagee as additional insureds, for limits of at
least $1,000,000 for bodily injuries or death of one or more persons and at
least $100,000 for property damage. Tenant will carry fire and "all risk"
coverage insurance for Tenant's property and improvements in the Premises.
Prior to Tenant's occupancy of the Premises, Tenant will deliver to Lessor the
liability and casualty policies or certificates by the insurer showing this
coverage to be in effect with premiums paid. The insurance will provide that
Lessor will be notified in writing 30 days prior to cancellation of, material
change in, or failure to renew, the insurance.
22. Waiver of Insurable Claims.
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Lessor and Tenant release each other from any liability for loss or damage by
fire or other casualty coverable by a standard form of "all risk" insurance
policy, whether or not the loss or damage resulted from the negligence of the
other, its agents or employees. Each party will use reasonable efforts to
obtain policies of insurance which provide that this release will not adversely
affect the rights of the insureds under the policies. The releases in this
Section will be effective whether or not the loss was actually covered by
insurance.
23. Assignment and Subletting.
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Tenant may not transfer, assign, or mortgage this Lease or any interest of
Tenant under this Lease or sublet the Premises or any part of the Premises,
without Lessor's prior written consent, and this Lease will not be assignable by
operation of law without Lessor's written consent. If Tenant receives a bona
fide offer for an assignment of Tenant's interest under this Lease or to
sublease all or part of the Premises and Tenant requests Lessor's consent, a
copy of the offer will be furnished
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to Lessor. In the case of a proposed assignment or sublease of all of the
Premises, Lessor may terminate this Lease, either conditioned on execution of a
new lease between Lessor and the party making the offer on the same terms as the
offer to Tenant or without that condition. In the case of a proposed sublease
for less than all of the Premises, Lessor may amend this Lease to exclude the
portion of the Premises to be subleased, either conditioned on execution of a
new lease between Lessor and the party making the offer on the same terms as in
the offer to Tenant or without that condition.
If Lessor fails to give Tenant written notice of its decision to terminate or
amend this Lease within 20 days after receiving a copy of the offer to Tenant,
Lessor may not unreasonably withhold its consent to the assignment or sublease
described in the offer. The provisions of this Section will be binding on Tenant
and any assignee or subtenant of Tenant and will apply to all portions of the
Premises remaining subject to this Lease and to each request by Tenant, or its
assignee or subtenant for Lessor's consent to a further or subsequent assignment
or subletting.
If Lessor consents to one or more assignments or sublettings, Tenant will still
remain liable for all obligations of the Tenant under this Lease. Lessor's
consent to one assignment or subletting will not be deemed consent to any
subsequent assignment or subletting. Any assignment or subletting by an
assignee or subtenant will also require Lessor's prior written consent, and no
assignee or subtenant will use the Premises for any purpose not permitted under
this Lease except for general office purposes or in any other way contrary to
the provisions of this Lease.
Lessor's interest in this Lease will be freely assignable and the obligations of
the Lessor arising or accruing under this Lease after an assignment will be
enforceable only against the assignee.
24. Damage or Destruction
---------------------
If the Premises or Building is damaged by Casualty, the damage (excluding damage
to improvements paid for by Tenant or trade fixtures, equipment or personal
property of Tenant) will be repaired by Lessor at its expense to a condition as
near as reasonably possible to the condition prior to the Casualty, but if more
than 50% of the total rentable area of the Building is rendered untenantable,
Lessor may terminate this Lease as of the date of the Casualty by giving written
notice to Tenant within 30 days after the Casualty. If this Lease is not
terminated, Lessor will begin repairs within 90 days after the Casualty and
complete the repairs within a reasonable time, subject to acts of God, strikes
and other matters not within the control of Lessor. If Lessor fails to begin
and proceed with repairs as required, Tenant may give Lessor notice to do so.
If Lessor has not begun the repairs within 30 days after Tenant's notice, Tenant
may terminate this Lease by written notice to Lessor within 5 days after
expiration of the 30-day period. If this Lease is terminated because of the
Casualty, rents and other payments will be prorated as of the termination and
will be proportionately refunded to Tenant or paid to Lessor, as the case may
be. During any period in which the Premises or any portion of the Premises is
made untenantable as a result of the Casualty, the Monthly Rent will be abated
for the period of time untenantable in proportion to the square foot area
untenantable.
-12-
25. Eminent Domain.
--------------
If there is a Taking of 25% or more of the Premises or 25% or more of the total
rentable area of the Building, either party may terminate this Lease as of the
date the public authority takes possession, by written notice to the other party
within 30 days after the Taking. If this Lease is so terminated any rents and
other payments will be prorated as of the termination and will be
proportionately refunded to Tenant, or paid to Lessor, as the case may be. All
damages, awards and payments for the Taking will belong to Lessor irrespective
of the basis upon which they were made or awarded, except that Tenant will be
entitled to any amounts specifically awarded for Tenant's trade fixtures or
equipment or as a relocation payment or allowance. If this Lease is not
terminated as a result of the Taking, Lessor will restore the remainder of the
Premises to a condition as near as reasonably possible to the condition prior to
the Taking, the rent will be abated for the period of time the space is
untenantable in proportion to the square foot area untenantable and this Lease
will be amended appropriately to reflect the deletion of the space taken.
26. Defaults.
--------
If (a) Tenant defaults in the payment of rent or other amounts under this Lease
and the default continues for 10 days after written notice by Lessor to Tenant,
(b) Tenant defaults in any other obligation under this Lease and the default
continues for 30 days after written notice by Lessor to Tenant and Tenant fails
to proceed promptly after the giving of such notice with all due diligence to
cure the default and thereafter to prosecute the curing of such default with all
due diligence (it being intended that in connection with a default not
susceptible of being cured with due diligence within 30 days, the time within
which the Tenant is to cure the same shall be extended for such period as may be
reasonably necessary to complete the same with all due diligence), (c) any
proceeding is begun by or against Tenant to subject the assets of Tenant to any
bankruptcy or insolvency law or for an appointment of a receiver of Tenant or
for any of Tenant's assets, or (d) Tenant makes a general assignment of Tenant's
assets for the benefit of creditors, then Lessor may, with or without
terminating this Lease, cure the default and charge Tenant all costs and
expenses of doing so, and Lessor also may re-enter the Premises, remove all
persons and property, and regain possession of the Premises, without waiver or
loss of any of Lessor's rights under this Lease, including Lessor's right to
payment of Monthly Rent. Lessor also may terminate this Lease as to all future
rights of Tenant.
Lessor may elect to receive from Tenant a lump sum equal to all Monthly Rent
payable from the date of default through what would have been the remainder of
the Term, minus the estimated rental value of the Premises for the same period.
If Lessor elects this remedy, the rental value will be based on Lessor's
reasonable estimates and assumptions, unless they are clearly shown to be
erroneous, and the Monthly Rent and rental value will be reduced to present
worth using a discount factor equal to the discount rate of the Federal Reserve
Bank in Minneapolis, Minnesota, at the time of Lessor's election.
-13-
Tenant waives any right of restoration to possession of the Premises after re-
entry, notice of termination, or after judgment for possession. If this Lease
is terminated under this Section, Tenant will indemnify Lessor against all loss
of rents and against other damages which Lessor may incur as a result of the
termination for the remainder of the original Term, and against all related
attorneys' fees and other expenses. If Tenant defaults in any of its
obligations under this Lease, it will promptly reimburse Lessor for all costs
(including attorneys' fees) incurred by Lessor in enforcing Tenants's
obligations, whether or not this Lease is terminated and whether or not suit is
brought. No right or remedy will preclude any other right or remedy, no right
or remedy will be exclusive of or dependent upon any other right or remedy, and
any right or remedy may be exercised independently or in combination.
If Tenant is in default and notice of termination of Tenant's right to
possession has been mailed to Tenant at the Premises and it appears in Lessor's
reasonable judgment that Tenant has abandoned or vacated the Premises, Lessor
may re-enter the Premises and retake possession without legal action and without
relieving Tenant of the obligation to pay Monthly Rent or any other obligations
under this Lease.
27. Waiver of Lease Provisions.
--------------------------
No waiver of any provision of this Lease will be deemed a waiver of any other
provision or a waiver of that same provision on a subsequent occasion. The
receipt of rent by Lessor with knowledge of a default under this Lease by
Tenant will not be deemed a waiver of the default. Lessor will not be deemed to
have waived any provision of this Lease unless it is done by express written
agreement by Lessor. Any payment by Tenant and acceptance by Lessor of a lesser
amount than the full amount of all Monthly Rent and other charges then due will
be applied to the earliest amounts due. No endorsement or statement on any
check or letter for payment of rent or other amount will be deemed an accord and
satisfaction unless Tenant and Lessor have specifically agreed in writing to the
same, and Lessor may accept such check or payment without prejudice to its right
to recover the balance of any rent or other amount or to pursue any other remedy
provided in this Lease.
28. Return of Possession to Lessor.
------------------------------
On expiration of the Term or sooner termination of this Lease, Tenant will
return possession of the Premises to Lessor, without notice from Lessor, in good
order and condition, except for ordinary wear and damage, destruction or
conditions Tenant is not required to remedy under this Lease. If Tenant does
not return possession of the Premises to Lessor, Tenant will pay Lessor all
resulting damages Lessor may suffer and will indemnify Lessor against all claims
made by any new tenant of all or any part of the Premises. Tenant, will give
Lessor all keys for the Premises and will inform Lessor of combinations on any
locks and safes on the Premises. Any property left in the Premises after
expiration or termination of this Lease or after abandonment of the Premises
will be deemed abandoned by Tenant and will be the property of Lessor to dispose
of as Lessor chooses.
-14-
29. Holding Over.
------------
If Tenant remains in possession of the Premises after expiration of the Term
without a new lease, it may do so only with written consent by Lessor, and any
such holding over will be from month-to-month subject to all the same provisions
of this Lease, except that the Monthly Base Rent will be the Monthly Base Rent
stated in Lessor's consent if a new Monthly Base Rent is stated, or 150% of the
Monthly Base Rent under this Lease if no new Monthly Base Rent is stated in
Lessor's consent. Any holding over without Lessor's consent will be at double
the Monthly Rent under this Lease. The month-to-month occupancy may be
terminated by Lessor or Tenant on the last day of any month by at least 30 days
prior written notice to the other.
30. Security Deposit.
----------------
Tenant agrees to deposit with Lessor as a security deposit an amount equal to
the initial Monthly Base Rent. Such deposit shall be made at the time of the
execution of this Lease by Tenant. Lessor may commingle the security deposit
with other funds but will refund this amount to Tenant without interest on the
fifth anniversary of the Commencement Date of this Lease, less any amounts
necessary in Lessor's reasonable opinion to pay the cost of repair or
restoration of the Premises to the condition required under this Lease or to
cure any defaults of Tenant under this Lease.
31. Brokers.
-------
Lessor and Tenant represent and warrant one to another that neither of them has
employed or otherwise used any broker or agent in relation to this Lease, except
Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx of The Shelard Group Incorporated.
Lessor will indemnify and hold Tenant harmless, and Tenant will indemnify and
hold Lessor harmless, from and against any claims for brokerage or other
commissions or fees arising out of any breach of the foregoing representation
and warranty by the respective indemnitors.
32. Notices.
-------
Any notice under this Lease will be in writing, and will be sent by prepaid
certified mail, or by telegram confirmed by certified mail, addressed to Tenant
at the Premises and to Lessor at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xx Xxxxx
Xxxx, Xxxxxxxxx 00000, or to such other address as is designated in a notice
given under this Section. A notice will be deemed given on the date of first
attempted delivery. Lessor's statements of Additional Costs and other routine
mailings to tenants need not be sent by certified mail.
-15-
33. Governing Law.
-------------
This Lease will be construed under and governed by the laws of Minnesota. If
any provision of this Lease is illegal or unenforceable, it will be severable
and all other provisions will remain in force as though the severable provision
had never been included.
34. Entire Agreement.
----------------
This Lease contains the entire agreement between Lessor and Tenant regarding the
Premises. Tenant agrees that it has not relied on any statement, representation
or warranty of any person except as set out in this Lease. This Lease may be
modified only by an agreement in writing signed by Lessor and Tenant. No
surrender of the Premises, or of the remainder of the Term, will be valid unless
accepted by Lessor in writing.
35. Successors and Assigns.
----------------------
All provisions of this Lease will be binding on and for the benefit of the
successors and assigns of Lessor and Tenant, except that no person or entity
holding under or through Tenant in violation of any provision of this Lease will
have any right or interest in this Lease or the Premises.
Lessor and Tenant have executed this Lease to be effective as of the date stated
in the first paragraph of this Lease.
36. Termination.
-----------
If Lessor decides to demolish the Building, Lessor will have the right to
terminate this Lease by at least 15 months' prior written notice to Tenant
provided that the leases of all other tenants in the Building are also
terminated on or before the termination date of this Lease. If this Lease is
terminated due to the demolition of the Building, then on the termination date,
Lessor shall pay to Tenant a relocation fee of $2.00 per rentable square foot of
the Premises. If Lessor fails to demolish the Building within two years after
the termination date, then Lessor will pay $100,000.00, not as a penalty, but as
final and liquidated damages.
37. Renewal Option.
--------------
Lessor grants Tenant the option to extend the Term for 60 months subject to the
following conditions:
(a) At the time Tenant exercises the option, Tenant is not in default
under this Lease.
(b) Tenant gives Lessor at least twelve months' prior written notice of
Tenant's election to extend the Term.
-16-
(c) The extended Term will be on the same terms, covenants and conditions
provided during the initial Term except that there will be no further
option to extend the Term, and the Monthly Base Rent will be the
greater of the Monthly Base Rent for the final month of the initial
Term, or monthly base rent at a rate which would then be charged by
Lessor for the Premises considering the condition of the Premises and
based on rates then being charged by Lessor for comparable space in
the Building.
(d) On written request by Tenant no more than 30 days prior to the date
Tenant's notice to extend must be given, Lessor will provide Tenant
with the monthly base rental rate it would charge for the Premises
under paragraph (c) above.
(e) At the request of either, Lessor and Tenant will execute and deliver
appropriate documents covering extension of the Term, the new Monthly
Base Rent and other terms of this Lease during the extended Term.
(f) The rights of Tenant under this Section will not be severed from this
Lease or separately sold, assigned or transferred, and will expire on
the expiration or earlier termination of this Lease
38. School For Medical and Veterinary Technicians.
---------------------------------------------
Sections 39 - 46 pertaining specifically to the operation of a school for the
training of medical and veterinary technicians on the Premises shall control
over anything to the contrary in the more general provisions of this Lease;
provided, however, that except in the case of inconsistencies, Sections 39 - 46
shall be construed to be in amplification rather than limitation of the more
general provisions of this Lease.
39. Approvals.
---------
Tenant shall be solely responsible at its sole cost and expense, for obtaining
all licenses, permits, certifications, or approvals of any other kind
(collectively, "Approvals" and each an "Approval") which are necessary for the
operation of a post-secondary school for training of medical and veterinary
technicians, including but not limited to any Approvals required by any
Governmental Authority, any Approvals required any non-governmental
certification or accreditation boards, authorities, or organizations. Lessor
makes no representation or warranty, whether express or implied, that the
Premises are suitable for the operation of a post-secondary school for training
of medical and veterinary technicians or for any other particular purpose. If,
at any time, Tenant loses any Approval which is necessary for the operation of a
post-secondary school for the training of medical and veterinary technicians,
then Tenant will promptly take all necessary action to regain the Approval and
Tenant shall promptly cease any prohibited activities until Tenant regains the
Approval. Tenant shall continue to be responsible for all of its obligations
under this
-17-
Lease even if Tenant is unable, in whole or in part, to operate its post-
secondary school for the training of medical and veterinary technicians due to
the lack of any necessary Approval.
40. Contingency for Accreditation Approval.
--------------------------------------
Tenant will be seeking accreditation from the Minnesota Department of Education
to operate a post-secondary school for the training of medical and veterinary
technicians on the Premises. If Tenant is unable to obtain satisfactory
assurances from the Minnesota Department of Education on or before October 22,
1991 that such accreditation will be forthcoming, then, upon written notice to
Lessor, Tenant may terminate this Lease. In order to be effective, Tenant's
notice of termination of this Lease must be deposited in the United States mail,
by prepaid, certified mail in accordance with Section 32, on or before October
22, 1991. If Tenant fails to give notice of termination in the manner specified
in this Section on or before October 22, 1991, then this Lease shall remain in
full force and effect and Tenant shall remain fully obligated hereunder
notwithstanding any subsequent failure of Tenant to gain accreditation.
41. Hazardous Substances; Medical Waste.
-----------------------------------
(a) Tenant shall not bring into or permit the existence of any Hazardous
Substance on the Premises, the Building, or the Land without the prior
written consent of Lessor, which consent shall not unreasonably be
withheld. Tenant may use or permit the presence of those substances
listed in Exhibit E attached hereto and made a part hereof, but only
so long as such use or presence is in strict compliance with all
Environmental Regulations. Tenant shall file any management plans with
any Governmental Authority which are required for the use of the
substances listed in Exhibit E and shall provide Lessor with proof of
the filing of such plans. If Tenant discovers the presence of any
Hazardous Substance on or in the Premises, the Building, or the Land
which is contrary to any Environmental Regulation, Tenant shall
promptly give Lessor notice thereof. If the existence of a Hazardous
Substance is caused or permitted by Tenant, (i) Tenant shall remove
such Hazardous Substance and dispose of it as required by any
Environmental Regulation, or (ii) Lessor, by notice to Tenant, may
elect to remove any Hazardous Substance and dispose of it as required
by any Environmental Regulation, in which case Tenant shall pay the
entire cost of such disposal within 10 days after receipt of a
statement for such cost by Lessor. If any Governmental Authority shall
require any remedial action or other response with respect to the
Premises, the Building, or the Land as the result of any Hazardous
Substance brought into or permitted by Tenant on or in the Premises,
the Building, or the Land, Tenant shall notify Lessor of such action
or response and shall, with the prior written approval of Lessor, be
responsible for satisfying the requirements of said response or
remedial action to the satisfaction of the applicable Governmental
Authority.
-18-
(b) Tenant shall, at its sole cost, expense and risk, remove or cause to
be removed from the Premises, the Building, and the Land, all Medical
Waste. Tenant shall not dispose of any Medical Waste in any
receptacles provided by Lessor for disposal of normal refuse.
(c) Tenant agrees to indemnify and hold Lessor harmless from any and all
claims, causes of action, damages, penalties and costs (including
attorneys' fees, consultant fees and related expenses) which may be
asserted against or incurred by Lessor resulting from: the presence of
any Hazardous Substance on or in the Premises, the Building, or the
Land caused or permitted by Tenant; any violation or alleged violation
of any Environmental Regulation caused or permitted by Tenant; or
Tenant's failure to properly dispose of any Medical Waste in
accordance with this Lease. Tenant's duty to indemnify and hold
harmless includes, but is not limited to, proceedings or actions
commenced by any Governmental Authority. Tenant shall indemnify Lessor
against all expenses incurred by Lessor pursuant to this Section as
they are incurred, rather than waiting for the ultimate outcome of the
litigation or administrative proceeding.
(d) The foregoing covenants and indemnifications shall be deemed
continuing covenants and indemnifications for the benefit of Lessor,
and its successors and assigns, and shall survive the expiration or
termination of this Lease.
(e) Nothing in this Section shall be intended to impose any liability or
obligation to act of any kind whatsoever on Tenant as a result of the
presence of any Hazardous Substance on the Premises at the time that
Tenant first takes possession of the Premises or as a result of any
Hazardous Substance on the Premises through the actions of any person
other than the Tenant, its officers, employees, agents, contractors,
subcontractors, subtenants, assignees, visitors, invitees, or
students.
42. Compliance With Standards; Inspection of Records.
------------------------------------------------
In its operation of a post-secondary school for the training of medical and
veterinary technicians on the Premises, Tenant shall comply with all of the
following
(a) The applicable requirements and standards, as they may be supplemented
or amended from time to time, of the American Veterinary Medical
Association, the American Medical Association, the Accrediting Bureau
of Health Education Schools, the Minnesota Higher Education
Coordinating Board, the Minnesota Department of Education, the United
States Department of Education, the United States Department of
Agriculture, and the Minnesota Board of Animal Health.
(b) The applicable requirements and standards, as they may be supplemented
or amended from time to time, of any other Governmental Authority or
non-
-19-
governmental board, authority or organization which provides
certification, accreditation, or licensing of Tenant's post-secondary
school for training of medical and veterinary technicians.
Tenant shall keep complete records of the status of all certifications,
accreditations and licenses which it receives or maintains, and complete records
of all inspections or review reports issued by any Governmental Authority or
non-government board, authority or organization with respect to Tenant's
operation of a post-secondary school for the training of medical and veterinary
technicians on the Premises. Lessor, upon reasonable request during Normal
Business Hours, shall have the right to inspect Tenant's records to determine if
Tenant is in compliance with all applicable requirements and standards. The
Lessor's right to review such records shall not be deemed for any purpose to
create an obligation for Lessor to monitor the compliance by Tenant with
applicable requirements and standards.
43. Incompatible Conditions
-----------------------
Tenant will make its best efforts not to permit or conduct any condition which
materially detracts from the desirability of the Building as a rental office
building of its type in the Bloomington/Edina, Minnesota area. Without limiting
the generality of the foregoing, Tenant will make its best efforts to prevent
any animal, medical, or laboratory noises or odors produced in the Premises from
being detectable elsewhere on the interior or exterior of the Building. Tenant
shall be responsible, at its sole cost and expense, for installing any
specialized noise or odor control equipment or improvements which are necessary
to control noises or odors in accordance with this Section. If such specialized
noise or odor control equipment or improvements are necessary, then Tenant shall
propose plans and specifications for such equipment or improvements to Lessor
for Lessor's approval, which approval shall not unreasonably be withheld. After
the installation of such specialized noise or odor control equipment or
improvements in accordance with the approved plans and specifications, Tenant
will not be required to install additional specialized noise or odor control
equipment or improvements unless Lessor notifies Tenant in writing within 6
months after the installation of the specialized equipment or improvements that
such equipment or improvements are inadequate or conditions regarding Tenant's
use of the Premises change such that additional specialized equipment or
improvements are necessary.
44. Animals.
-------
Tenant shall promptly comply with all laws, ordinances, rules, orders,
regulations and other requirements of any Governmental Authority pertaining to
the keeping and use of animals on the Premises and the transportation of animals
to and from the Premises. Lessor makes no representation or warranty that the
keeping or use of animals on the Premises or the transportation of animals to
and from the Premises is or will necessarily from time to time be permitted by
Governmental Authorities. To the extent permitted by Governmental Authorities,
Tenant may keep animals on the Premises in accordance with the following:
-20-
(a) The only types of animals which may be kept on the Premises are dogs,
cats, guinea pigs, white mice and other small laboratory animals that
are approved by Lessor in writing, which consent shall not
unreasonably be withheld.
(b) The maximum number of each type of animal which may be kept or located
on the Premises at any one time shall be as follows:
Dogs: 20
Cats: 20
Guinea Pigs white mice,
and other small
laboratory animals
approved by Lessor
in writing: 40
(c) All kennels, cages, and other areas for the keeping of animals, and
all areas in which animals are to be used, examined, or otherwise
located for any purpose, shall be on the basement level of the
Premises; no animals except for seeing eye dogs shall be allowed for
any purposes whatsoever on the first floor of the Premises.
(d) Tenant shall obtain Lessor's prior written approval, which approval
shall not unreasonably be withheld, for the particular locations on
the basement level of the Premises in which animals may be kept.
Landlord's written approval of construction documents shall constitute
such approval.
(e) All animals entering or leaving the Premises shall enter and leave
through the loading door dock to the Building. Notwithstanding
anything in the foregoing or elsewhere in this Lease to the contrary,
if the loading dock door to the Building is obstructed or unuseable,
then animals entering or leaving the Premises may enter and leave
through the door on the south end of the Building and animals may be
transported through the first floor of the Premises to the basement
level of the Premises. Under such circumstances, the elevators within
the Building shall not be used to transport animals from the first
floor of the Building to the basement level of the Building.
(f) All animals entering or leaving the Premises shall enter and leave in
closed cages, except that dogs may be walked on leashes.
(g) No animal shall be walked or exercised in the common areas of the
Building or on the Land; provided, however, that subject to the
limitations of this Lease on the doors which may be used for animals
entering or leaving the Premises, dogs may be walked on leashes to and
from vehicles used in the transportation of the dogs.
-21-
(h) Notwithstanding anything in the foregoing or elsewhere in this Lease
to the contrary, with Lessor's prior consent (not unreasonably to be
withheld), Tenant may occasionally bring animals of no greater weight
than 70 pounds onto the Premises for up to one day for instructional
purposes through the loading dock door to the Building, but no such
animals shall be kept in the Premises overnight.
45. Conduct of Students.
-------------------
Tenant shall promulgate and enforce such written rules for the conduct of its
students as are necessary to maintain the character of the Building as a rental
office building of its type in the Bloornington/Edina, Minnesota area. Such
written rules shall include, but not be limited to, the following:
(a) All student vehicles shall be parked in the rear of the Building in
the parking lot located on the land described on Exhibit F attached to
this Lease, the use of which lot by Tenant and its students shall be
governed by a separate Parking Lease between Lessor and Tenant; no
student vehicles shall be parked in the parking lot in the front of
the Building or on any other land owned by Lessor except the land
described on Exhibit F attached to this Lease. A default of any
material kind under the Parking Lease where Tenant has not taken
reasonable steps to cure shall be a default under this Lease.
(b) Tenant shall use its best efforts to encourage students to enter and
exit the Building through the door on the south side of the Building;
Tenant shall use its best efforts to encourage students not to enter
or exit through the front door of the Building or any other door
except the door on the south side of the Building.
(c) Tenant shall use its best efforts to encourage students not to loiter
in, sit in, congregate in, smoke in, eat in, or use for lounge or
social purposes any of the common areas of the Building or the Land,
including but not limited to the front lobby and front steps of the
Building. In addition to promulgating and enforcing rules which
restrict student use of the common areas of the Building and the Land,
Tenant shall provide smoking and break rooms within the Premises to
provide the students with locations within the Premises for smoking,
eating, lounging, social, and other similar activities.
Notwithstanding anything in the foregoing to the contrary, it is
acknowledged that the portion of the Land consisting of a lawn to the
south and west of the Building may be used by students in a reasonable
manner for outdoor smoking, eating, and socializing. If a cafeteria or
vending area is established in the Building and is generally available
to all of the tenants of the Building, then students may use the
cafeteria or vending area.
-22-
46. Parking.
-------
As noted above, Lessor and Tenant have entered into a separate Parking Lease
between Lessor and Tenant for parking spaces in the parking lot on the land
described on Exhibit F attached to this Lease. In addition, Tenant may use, on
a nonexclusive basis in common with other tenants of Lessor, up to 150 parking
spaces in the parking lot located on the Land to the east and southeast of the
Building. Lessor shall designate 15 parking spaces on the Land near the front
entrance to the Building as visitor parking spaces which shall be available on a
non-exclusive, first-come-first-served basis for visitors to all tenants of the
Building. Enrolled students of Tenant shall not park in the visitor parking
spaces in front of the Building. At the present time, there are two indoor
garage parking spaces within the Building. Tenant shall be permitted to use the
two existing indoor parking spaces for the parking of cars at no cost until
Lessor leases or otherwise allocates the two existing indoor parking spaces to
other tenants of the Building. If, in the future, the Lessor constructs
additional indoor parking spaces within the Building, Tenant shall have the
option to lease two of the new indoor parking spaces at Lessor's market rental
rate, which rate shall be adjusted from time to time. Upon the construction of
additional indoor parking spaces, Tenant shall be given written notice of its
option to lease two indoor spaces. If Tenant does not enter into a written
agreement to lease the two indoor spaces on landlord's standard lease form
within 15 days after Lessor's notice to Tenant, then Tenant's right to lease the
two spaces shall terminate.
Lessor:
MEPC AMERICAN PROPERTIES
INCORPORATED
By _____________________________________
Its Senior Vice President
------------------------------------
And ____________________________________
Its Vice President, Property Management
------------------------------------
Tenant:
MEDICAL INSTITUTE OF
MINNESOTA, INC.
By _____________________________________
-23-
Its President
-----------------------------------
And /s/ Xxxxx Xxxxx
-----------------------------------
Its Vice President
-----------------------------------
-24-
(Floor Plan)
(Floor Plan)
EXHIBIT B
Legal Description
Building 2 - 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX
All that part of Xxx 0, Xxxxx 0, Xxxxxx Xxxxxx, Inc. Third Addition, according
to the plat thereof on file or of record in the office of the Hennepin County
Recorder, lying Southwesterly of the following described line: commencing at the
most Westerly corner of said Lot 1; thence North 72 09' East along the Northerly
line of said Lot 1 a distance of 296.46 feet to the actual point of beginning of
the line to be described, thence South 49 39' 30'' East a distance of 486.82
feet, more or less, to a point being 271.54 feet Southwesterly of the most
Easterly corner of said Lot 1 and there terminating. (All or part of this
property is Torrens, evidenced by Certificate of Title No. 573985.)
EXHIBIT C
RULES AND REGULATIONS
1. Tenant will not use the Premises in any manner which conflicts with any
law, ordinance, or governmental rule or regulation now or subsequently in
force.
2. Tenant will not install any awnings or other attachments or structures on
the exterior of the Building.
3. Curtains, draperies or other window coverings will not be installed in the
Premises without first obtaining written approval by Lessor of the exterior
color and material
4. Except for normal microwave usage, no food will be prepared or cooked in
the Premises without prior written consent by Lessor, and the Premises will
not be used for housing, lodging, sleeping or for any immoral or illegal
purpose.
5. Tenant will not connect any apparatus, equipment or device to the water
lines in the Building without first obtaining the written consent of
Lessor.
6. No electrically powered machines or equipment will be used by Tenant in the
Premises except typewriters, adding machines, dictating equipment, personal
computers, micro computers and similar small electric units and other
machines which are normal to the permitted uses of the Premises as allowed
under the Lease.
7. Tenant will not operate or permit to be operated in the Premises any
musical or sound producing instrument or device which can be heard outside
the Premises.
8. Tenant will not bring into the Building any pollutants, contaminants or
hazardous substances (as now or later defined under state or federal law)
or any items likely to cause fire or explosion, except as may be expressly
permitted under and subject to the terms and conditions of the Lease.
9. Tenant will not bring or permit to be brought into the Building any animals
or birds, except as may be expressly permitted under and subject to the
terms and conditions of the Lease.
10. Tenant will not disturb, solicit or canvass any occupant of the Building
and will cooperate to prevent same.
11. Tenant will not use any power for the operation of any equipment or device
other than electricity provided by Lessor.
12. Tenant will refer to Lessor all contractors or installation technicians
rendering any ser-vice for Tenant for approval by Lessor before any
contractual services are performed. This
will include but is not limited to installation of telephone or telegraph
equipment, electrical devices and attachments, and any installations
affecting floors, walls, woodwork, trim, windows, ceilings, equipment or
other portions of the Building.
13. The work of the Janitor or cleaning personnel after 5:00 P.M. will not be
hindered by Tenant, and the windows may be cleaned at any time. Tenant
will provide adequate waste and rubbish receptacles to facilitate cleaning
services.
14. Movement in or out of the Building of furniture or office equipment, or the
sending or receipt by Tenant of merchandise or materials which requires use
of elevators or stair-ways or movement through Building entrances will be
restricted to hours designated by Lessor. All such movement will be as
directed by Lessor and will be done in a manner approved by Lessor in
advance. Tenant assumes all risk of damage to any items moved and for any
injury to any person or property, and Tenant will indemnify Lessor against
any resulting loss or damages.
15. Lessor will not be responsible for any property, equipment, money or
jewelry lost or stolen from the Premises or the public areas of the
Building, regardless of whether or not the loss occurs when the Premises
are locked.
16. Lessor may designate the maximum weight and proper position of any heavy
equipment, including safes and large files to be placed in the Building,
and only those which in the opinion of Lessor will not damage the floors,
structures or elevators may be moved into the Building.
17. Any damage in connection with the moving or installing of Tenant's
furniture, equipment, appliances or other articles will be paid for by
Tenant.
18. Lessor may permit entrance to the Premises by use of pass keys controlled
by Lessor or its employees, contractors or service personnel, for the
purpose of performing Lessor's janitorial services.
19. Lessor may at its option set aside a parking area to be used by Tenant and
its employees, which area will be used by Tenant and its employees to the
exclusion of other areas.
20. If there is a vending area in the Building which is available to tenants of
the Building during Normal Business Hours and Tenant's school hours, Tenant
may have no vending machines in the Premises.
EXHIBIT D
TENANT IMPROVEMENTS
EXHIBIT E
CHEMICALS/STAINS/GASES
USED BY THE MEDICAL INSTITUTE OF MINNESOTA
--------------------------------------------------------------------------------
Radiology
---------
Developing Solution
Fixer Solution
Surgical Suite
--------------
Oxygen
Isofluorane
Halothane
Metofane
Nitrousoxide
Clinical Laboratories
---------------------
Bleach Barium Chloride
Chlorhexidine Diacetate Sodium Chloride
Sulfuric Acid Barium Sulfate
Hydrochloric Acid Ammonium Sulfate
Acetic Acid Ammonium Oxalate
Acetone Ammonium Molybdate
Methanol Glycerol
Isopropanol Ferric Chloride
Potassium Dichromate Ferric Nitrate
Sodium Bicarbonate Cupric Sulfate
Calcium Carbonate Potassium Iodide
Sodium Phosphate Phenophthalein
Sodium Sulfate Barium Hydroxide
Calcium Chloride Lithium Sulfate
Sodium Phosphate Sodium Oxalate
Magnesium Sulfate Mercuric Chloride
Benzoid Acid Mercuric Nitrate
Potassium Sodium Tartarate Iodine
Sulfanilic Acid Sodium Citrate
Glucose Salicylic Acid
Ammonium Sulfate Sulfosalicylic Acid
Sodium Hydroxide Sodium Metabisulfite
Sodium Sulfate Sodium Nitrate
Sodium Nitrite Sodium Bicarbonate
Sodium Bisulfite Zinc Sulfate
Sodium Carbonate Urea
Hydrogen Peroxide
Stains
Bromsulphathalein Sudan III
Methylene Blue Brilliant Cresyl Blue
Phloxine B Wrights
Ponceau Crystal Violet
Safranine
Gases
Oxygen
Propane
Natural Gas
Cultures
Appropriate cultures used for instruction of Laboratory Technique
EXHIBIT F
LEGAL DESCRIPTION OF STUDENT PARKING XXX
Xxxxxxx Xxx
Xxx 0, Xxxxx 0, Xxxxxx Xxxxxx Inc. , Fourth Addition, according to the plat
thereof on file or of record in the office of the Registrar of Titles in
and for Hennepin County. (This property is Torrens, evidenced by
certificate of Title No. 573985.)
AMENDMENT OF LEASE
------------------
This Amendment of Lease is entered into as of May 18, 1992 between MEPC
AMERICAN PROPERTIES INC., a Delaware corporation ("Lessor"), and MEDICAL
INSTITUTE OF MINNESOTA, INC., a Minnesota corporation ("Tenant").
A. Lessor and Tenant entered into a lease dated October 11, 1991 (the
"Lease") under which Lessor leased to Tenant certain space on the first floor
and in the basement of the building at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxx, which is located on the land described on Exhibit B attached to this
Amendment.
B. Tenant wishes to lease from Lessor certain Additional Premises
consisting of 5,505 square feet on the first floor of the Building as
crosshatched on the floor plan attached hereto as Exhibit A (the "Additional
Premises").
X. Xxxxxx and Tenant want to amend the Lease to cover the Additional
Premises and to modify and amend the Lease in certain other respects.
In consideration of the above facts and in consideration of the mutual
agreements contained in this Amendment, Lessor and Tenant agree that the Lease
is amended as follows:
1. Section l(e) of the Lease is amended to read as follows:
"Base Rent" means the following amounts for each Lease Year:
Lease Year 1 $178,233.00
Lease Years 2 through 5 $207,132.00
Lease Years 6 through 10 $245,976.00
2. Section 1(r) of the Lease is amended to read as follows:
"Monthly Base Rent" means the following monthly amounts
throughout the Term:
January 1, 1992 through
September 30, 1992: $14,050.00 per month
October 1, 1992 through
December 31, 1996: $17,261.00 per month
Lease Years 6 through 10: $20,498.00 per month
3. Monthly Rent" as defined in section 1(s) is amended to increase the
initial Monthly Rent, effective October 1, 1992 to $35,923.00, which
is comprised of a Monthly Base Rent of $17,261.00 plus a monthly
Operating Cost estimated at $10,052.00 and a monthly Tax Cost
estimated at $8,610.00.
4. Effective October 1, 1992, Section 1(v) of the Lease is amended to
read as follows:
"Premises" means the space referred to as Suite No. 100 on the
first floor and in the basement of the Building, which consists
of the space crosshatched on the drawing attached to the original
Lease as Exhibit A together with the space crosshatched on the
drawing attached as Exhibit A to the Amendment of Lease dated May
18, 1992, and which for purposes of this Lease will be deemed to
contain a total of 38,837 rentable square feet, consisting of
22,656 rentable square feet on the first floor of the Building
and 16,181 rentable square feet in the basement of the Building,
regardless of actual measurements.
5. 'Tenant's Share", as defined in Section l(z), is increased to 55.97%
effective October 1, 1992.
6. The provisions of the first three paragraphs of Section 13 of the
Lease relating to alterations and allowances will not apply to the
Additional Premises, and the following will apply to the Additional
Premises in place thereof.
Tenant accepts the Additional Premises in their present condition
and Lessor will have no obligation to do any redecorating or
remodeling or to make any repairs or alterations, except for the
alterations, if any, shown on the attached Exhibit D.
Tenant shall pay Lessor for the costs of the work shown on the
attached Exhibit X. Xxxxxx shall contribute a credit against the
cost to Lessor of the work equal to $20.00 per rentable square
foot of the Additional Premises. Tenant shall pay to Lessor upon
request the amount by which the cost of the work exceeds $20.00
per rentable square foot of the Additional Premises. If the
credit of $20.00 per rentable square foot of the Additional
Premises exceeds the cost of the work on the attached Exhibit D,
then the excess shall be applied as a credit against future
installments of Monthly Base Rent payable by Tenant.
The last two paragraphs of Section 13 of the Lease will apply to the
Additional Premises in the same manner in which they apply to the
initial Premises.
7. Except as specifically provided to the contrary in this Amendment of
Lease, all provisions of the Lease, including but not limited to, the
provisions of Sections 39 through 45 pertaining to the operation of a
school for the training of medical and veterinary technicians, will
apply to the Additional Premises in the same manner in which they
apply to the initial Premises.
8. Except as expressly amended in this Amendment of Lease, all of the
terms of the original Lease are ratified and confirmed.
LESSOR:
MEPC AMERICAN PROPERTIES INC.
By ________________________________
Its Senior Vice President
And________________________________
Its Vice President, Property
Management
TENANT:
MEDICAL INSTITUTE OF
MINNESOTA, INC
By ________________________________
Its President
-----------------------------
And________________________________
Its ____________________________
(Floor Plan)
EXHIBIT B
Legal Description
Building 2 - 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX
All that part of Xxx 0, Xxxxx 0, Xxxxxx Xxxxxx., Inc, Third Addition, according
to the plat thereof on file or of record in the office of the Hennepin County
Recorder, lying Southwesterly of the following described line: Commencing at the
most Westerly corner of said Lot 1; thence North 72 09' East along the
Northerly line of said Lot 1 a distance of 296.46 feet to the actual point of
beginning of the line to be described, thence South 49 39' 30'' East a distance
of 486.82 feet, more or less, to a point being 271.54 feet Southwesterly of the
most Easterly corner of said Lot 1 and there terminating. (All or part of this
property is Torrens, evidenced by Certificate of Title No. 573985.)
EXHIBIT D
Tenant Improvements
-------------------
SECOND
------
AMENDMENT OF LEASE
------------------
This Second Amendment of Lease is entered into as of ________________, 1993
between MEPC AMERICAN PROPERTIES INC., a Delaware corporation ("Lessor"), and
MEDICAL INSTITUTE OF MINNESOTA, INC., a Minnesota corporation ("Tenant").
A. Lessor and Tenant entered into a lease dated October 11, 1991, which
was amended by an Amendment of Lease (the 'First Amendment") dated May 18, 1992
(together referred to as the "Lease"), under which Lessor leased to Tenant
certain space on the first floor and in the basement of the building at 0000
Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx (the "Building"), which is located on
the land described on Exhibit A attached to this Amendment.
B. Tenant wishes to lease from Lessor certain space in the Building
consisting of approximately 23,464 square feet on the second floor of the
Building (the "Second Floor Space").
X. Xxxxxx and Tenant want to amend the Lease to add the Second Floor
Space to the Premises and to modify and amend the Lease in certain other
respects.
In consideration of the above facts and in consideration of the mutual
agreements contained in this Amendment, Lessor and Tenant agree that the Lease
is amended as follows:
1. The Second Floor Space to be added to the Premises pursuant to this
Amendment is shown on the floor plan attached hereto as Exhibit B and made a
part hereof. The Second Floor Space consists of approximately 11,305 square
feet identified on Exhibit B as Space A ("Space A"), and approximately 12,159
square feet identified on Exhibit B as Space B ("Space B"). Lessor and Tenant
agree that Space A will become a part of the Premises on October 1, 1993, and
that Space B will become a part of the Premises on October 1, 1994. Effective
October 1, 1993, without further act of either party, Space A shall become a
part of the Premises covered by the Lease.
2. Effective October 1, 1994, Space B shall, without further act of
either party, become a part of the Premises covered by the Lease.
3. Section 1(r) of the Lease is amended to provide that commencing
October 1, 1993, the "Monthly Base Rent" shall increase from $17,261.00 per
month to $23,836.00 per month. Commencing October 1, 1994, the "Monthly Base
Rent" shall increase from $23,856.00 per month to $30,949.00 per month for the
period through December 31, 1996. Section 1(r) is further amended to provide
that for Lease Years 6 through 10, the Monthly Base Rent is increased from
$20,498.00 per month to $36,141.00 per month. The annual Base Rents set forth
in Section 1(e) of the Lease, and the "Monthly Rents" referred to in the Lease,
are amended to correspond to all of the changes in Monthly Base Rent set forth
in this paragraph.
4. "Tenants Share", as defined in Section 1(z) is increased from 55.97%
to 72.60% effective October 1, 1993, and from 72.60% to 90.19% effective October
1, 1994.
5. The provisions of the first three paragraphs cf Section 13 of the
Lease relating to alterations and allowances will not apply to the Second Floor
Space, and the following will apply to the Second Floor Space in place thereof:
Tenant will accept the Second Floor Space in its present condition and
Lessor will have no obligation to do any redecorating or remodeling or to
make any repairs, Alterations or improvements to the Second Floor Space.
Tenant shall pay Lessor for all costs of any improvements to the Second
Floor Space. Lessor shall contribute a credit against the cost to Lessor of
the improvements equal to $20.00 per rentable square foot of the Space
added to the Premises on October 1, 1993, and $20.00 per rentable square
foot of the Space added to the Premises on October 1, 1994. Tenant shall
pay to Lessor upon request the amount by which the cost of the work exceeds
the allowance amounts set forth in this paragraph. lf the credit for the
Space added to the Premises on October 1, 1993 exceeds the cost of the
improvements to that Space, then the excess shall be applied as a credit
against the cost of improvements to the remainder of the Second Floor Space
after it is added on October 1, 1994. If any credit remains after payment
of the cost of the improvements to the Space which is added on October 1,
1994, then the excess shall be applied as a credit against future
installments of Monthly Base Rent payable by Tenant.
The last two paragraphs of Section 13 of the Lease will apply to the Second
Floor Space in the same manner in which they apply to the initial Premises.
6. Except as specifically provided to the contrary in this Second
Amendment of Lease, all provisions of the Lease, including but not limited to,
the provisions of Sections 39 through 45 pertaining to the operation of a school
for the training of medical and veterinary technicians, will apply to the Second
Floor Space in the same manner in which they apply to the initial Premises.
7. Section 1(aa) of the Lease is amended to read as follows:
(aa) "Term" means the period of 15 years, beginning on January 1,
1992 and ending on December 31, 2006.
8. Section 37 of the Lease, entitled "Renewal Option" is hereby deleted.
9. Section 1(e) of the Lease, as amended by the First Amendment, is
amended to add the following:
Lease Years 11 through 15 $558,288
10. Section 1(r) of the Lease, as amended by the First Amendment, is
amended to add the following:
Lease Years 11 through 15 $46,524
11. During Lease Years 10, 11 and 12, if Tenant makes improvements to any
part of the Premises, Lessor will contribute a credit against the cost thereof
equal to $5.00 per square foot in the Premises. If the cost of the improvements
exceeds $5.00 per square foot, Tenant will pay any excess. If the cost of the
improvements is less than $5.00 per square foot, Lessor will pay only the actual
cost of the improvements. If Tenant makes such improvements to the Premises
after Lease Year 7 but before Lease Year 10, Lessor will contribute the credit
described in this Section in Lease Year 10 without interest. If any portion of
the $5.00 per square foot credit remains after such a payment for improvements
made prior to Lease Year 10, the unused portion will be available for further
improvements in Lease Years 10, 11 and 12 as provided in this Section.
12. Except as expressly amended in this Second Amendment of Lease, all of
the terms of the original Lease are ratified and confirmed.
LESSOR:
MEPC AMERICAN PROPERTIES INC.
By_________________________________
Its Senior Vice President
And________________________________
Its Vice President, Property
Management
TENANT:
MEDICAL INSTITUTE OF
MINNESOTA, INC.
By_________________________________
Xxxxxxx Xxxxxx
Its President
And________________________________
Its________________________________
CONSENT OF GUARANTOR
The undersigned, as the Guarantor under that certain Guaranty of Lease dated
October 11, 1991 ("Guaranty") guarantying the obligations of the Tenant under
the Lease described in the foregoing Second Amendment of Lease, hereby consents
to the foregoing Second Amendment of Lease and agrees that the provisions of the
Guaranty will apply to the Lease as amended by the Amendment of Lease dated May
18, 1992 and as amended by the foregoing Second Amendment of Lease.
______________________________
Xxxxxxx Xxxxxx
EXHIBIT A
Legal Description
Building 2 - 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX
All that part of Xxx 0, Xxxxx 0, Xxxxxx Xxxxxx, Inc, Third Addition, according
to the plat thereof on file or of record in the office of the Hennepin County
Recorder, lying Southwesterly of the following described line: Commencing at the
most Westerly corner of said Lot 1; thence North 72 09' East along the Northerly
line of said Lot 1 a distance of 296.46 feet to the actual point of beginning of
the line to be described, thence South 49 39' 30'' East a distance of 486.82
feet, more or less, to a point being 271.54 feet Southwesterly of the most
Easterly corner of said Lot 1 and there terminating. (All or part of this
property is Torrens, evidenced by Certificate of Title No. 573985.)
(Floor Plan)
THIRD
-----
AMENDMENT OF LEASE
------------------
This Third Amendment of Lease is entered into as of _______________, 1993
between MEPC AMERICAN PROPERTIES INC., a Delaware corporation ("Lessor"), and
MEDICAL INSTITUTE OF MINNESOTA, INC., a Minnesota corporation ("Tenant").
A. Lessor and Tenant entered into a lease dated October 11, 1991, which
was amended by an Amendment of Lease (the "First Amendment") dated May 18,1992,
and a Second Amendment of Lease dated March 22, 1993 ("Second Amendment") (said
Lease as amended being herein referred to as the "Lease"), under which Lessor
leased to Tenant certain space on the first floor and in the basement of the
building at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx (the "Building"),
which is located on the land described on Exhibit A attached to this Amendment.
B. Under the Second Amendment, Tenant agreed to lease from Lessor certain
space in the Building consisting of approximately 23,464 square feet on the
second floor of the Building (the "Second Floor Space").
X. Xxxxxx and Tenant have agreed to certain changes in "Space A" and
"Space B", which were described in the Second Amendment.
X. Xxxxxx and Tenant want to amend the Lease to change the descriptions
of "Space A" and "Space B" and to amend the Lease in certain respects based upon
such changes.
In consideration of the above facts and in consideration of the mutual
agreements contained in this Amendment, Lessor and Tenant agree that the Lease
is amended as follows:
1. The Second Floor Space to be added to the Premises pursuant to the
Second Amendment is shown on the floor plan attached hereto as Exhibit B and
made a part hereof. The Second Floor Space consists of approximately 12,376
square feet identified on Exhibit B as Space A ("Space A"), and approximately
11,088 square feet identified on Exhibit B as Space B ("Space B"). Lessor and
Tenant agree that Space A will become a part of the Premises on October 1, 1993,
and that Space B will become a part of the Premises on October 1, 1994.
Effective October 1, 1993, without further act of either party, Space A shall
become a part of the Premises covered by the Lease.
2. Effective October 1, 1994, Space B shall, without further act of
either party, become a part of the Premises covered by the Lease.
3. Section 1(r) of the Lease is amended to provide that commencing
October 1, 1993, the "Monthly Base Rent' shall increase from $17,261.00 per
month to $24,480.00 per month. Commencing October 1, 1994, the "Monthly Base
Rent" shall increase from $24,480.00 per month to $30,949.00 per month for the
period through December 31, 1996. The annual Base Rents set forth in Section
1(e) of the Lease, and the "Monthly Rents" referred to in the Lease, are amended
to correspond to all of the changes in Monthly Base Rent set forth in this
paragraph.
4. "Tenant's Share", as defined in Section 1(z), is increased from 55.97%
to 74.14% effective October 1, 1993, and from 74.14% to 90.19% effective October
1, 1994.
5. Except as expressly amended in this Third Amendment of Lease, all of
the terms of the original Lease and the First Amendment and Second Amendment are
ratified and confirmed.
LESSOR:
MEPC AMERICAN PROPERTIES INC.
By_________________________________
Its Senior Vice President
And________________________________
Its Vice President, Property
Management
TENANT:
MEDICAL INSTITUTE OF
MINNESOTA, INC.
By_________________________________
Xxxxxxx Xxxxxx
Its President
And________________________________
Its_______________________________
CONSENT OF GUARANTOR
The undersigned, as the Guarantor under that certain Guaranty of Lease dated
October 11, 1991 ("Guaranty") guarantying the obligations of the Tenant under
the Lease described in the foregoing Third Amendment of Lease, hereby consents
to the foregoing Third Amendment of Lease and agrees that the provisions of the
Guaranty will apply to the Lease as amended by the Amendment of Lease dated May
18, 1992 and the Second Amendment of Lease dated March 22, 1993, as amended by
the foregoing Third Amendment of Lease.
______________________________
Xxxxxxx Xxxxxx
EXHIBIT A
Legal Description
Building 2 - 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, XX
All that part of Xxx 0, Xxxxx 0, Xxxxxx Xxxxxx., Inc, Third Addition, according
to the plat thereof on file or of record in the office of the Hennepin County
Recorder, lying Southwesterly of the following described line: Commencing at the
most Westerly corner of said Lot 1; thence North 72 09' East along the
Northerly line of said Lot 1 a distance of 296.46 feet to the actual point of
beginning of the line to be described, thence South 49 39' 30'' East a distance
of 486.82 feet, more or less, to a point being 271.54 feet Southwesterly of the
most Easterly corner of said Lot 1 and there terminating. (All or part of this
property is Torrens, evidenced by Certificate of Title No. 573985.)
(Floor Plan)
10/10/91
PARKING LEASE
-------------
This Lease is entered into as of October 11, 1991, between MEPC AMERICAN
PROPERTIES INCORPORATED, a Delaware Corporation, ("Lessor") and MEDICAL
INSTITUTE OF MINNESOTA, INC., a Minnesota corporation, ("Tenant").
1. Leased Premises. Lessor leases 150 parking spaces (the
---------------
"Spaces"), in the parking area outlined in red on Exhibit A attached to this
Lease ("Parking Area") behind the Xxxxxx Center II Building ("Building") in
Bloomington, Minnesota, to Tenant, and Tenant leases the Spaces from Lessor,
under the terms and conditions of this Lease, for the sole purpose of parking
automobiles. Tenant's use of the Parking Area will be in common with other
tenants of the Parking Area, subject to Lessor's right hereunder to assign
specific parking spaces.
2. Term. The term ("Term") of this Lease begins on the commencement
----
date under that certain Lease of even date herewith between Lessor and Tenant
for space within the Building ("Building Lease") and ends on the expiration or
earlier termination of the Building Lease, unless earlier terminated as provided
in this Lease.
3. Rent. As used herein, the following terms have the following
----
definitions:
(a) "Actual Operating Cost" means the Operating Cost actually incurred for
a calendar year.
(b) "Actual Tax Cost" means the Tax Cost actually incurred for a year.
(c) "Base Operating Cost" means the Operating Cost of $15,000.00 estimated
for 1992.
(d) "Base Tax Cost" means the Tax Cost of $48,431.00 estimated to be
payable in 1992.
(e) "Monthly Rent" means Tenant's Share of the estimated monthly Tax Cost
plus Tenant's Share of the estimated monthly Operating Cost. The
initial Monthly Rent is $3,551.00.
(f) "Operating Cost" means all reasonable costs, charges and expenses
incurred by Lessor in connection with ownership, operation, security,
maintenance and repair of the Parking Area and the improvements
located thereon, including but not limited to costs for maintenance,
snow removal, insurance, utilities, fees or expenses for management by
Lessor or any other party, repairing, restriping, amortization of
capital investments made to reduce operating costs, and amortization
of repairs made to extend the life of the improvements. Operating Cost
will not include mortgage interest, depreciation on the improvements,
advertising expenses, or real estate brokers' commissions.
(g) "Tax Cost" means all real estate taxes, levies, charges, and
installments of assessments (including interest on deferred
assessments) assessed, levied or imposed on, or allocated to, the
Parking Area and all reasonable attorneys' fees, witness fees, court
costs and other expenses of Lessor in connection with any proceeding
to contest these amounts. If the Parking Area is not a separate tax
parcel, then Lessor shall make a reasonable allocation of the Tax Cost
to the Parking Area.
(h) "Tenant's Share" means the following:
(1) If there are no other tenants of the Parking Area, then Tenant's
Share shall be 100% as regards Operating Cost and 57% as regards
Tax Cost.
(2) If there are other tenants of the Parking Area, then Tenant's
Share shall be 57% as regards Operating Cost and 57% as regards
Tax Costs.
Tenant will pay the Monthly Rent to Lessor at P. O. Box 73547.,
Xxxxxxx, Xxxxxxxx 00000-0000, or such other place as Lessor may designate, in
advance on or before the first day of each month during the Term, without
demand, deduction or setoff. The Monthly Rent may change as the estimated
monthly Tax Costs and Operating Costs are adjusted annually. Monthly Rent will
begin on the first day of the Term. If the Term begins on a day other than the
first day of a month, the Monthly Rent for that month will be prorated by
multiplying the Monthly Rent by the number of days of that month included in the
Term and dividing the product by the number of days in that month.
Any Monthly Rent or other amounts payable by Tenant to Lessor under
this Lease which are not paid within 10 days after the date due will bear
interest from the date due to the date paid at the rate of 12% per annum or the
maximum rate of interest permitted by law, whichever is less, and the interest
will be paid to Lessor on demand. In addition, Tenant will pay Lessor a $100
service charge for all Monthly Rent not paid by the 10th day of the month for
which it is payable, which service charge is to partially cover expense involved
in handling delinquent payments. All amounts to be paid by Tenant to Lessor
under this Lease will be deemed to be additional rent for purposes of payment
and collection.
If any taxes, special assessments, fees or other charges are imposed
against Lessor by any governmental unit or agency with respect to rentals under
this Lease, Tenant will pay these amounts to Lessor when due, except that Tenant
will have no obligation to pay any income tax on rentals unless the tax is
imposed in lieu of real estate taxes.
Prior to the first day of each calendar year after the date of this
Lease, or as soon as reasonably possible after the first day of the year, Lessor
will furnish Tenant with an estimate of the Tax Cost for that year if it is
greater than the Base Tax Cost, and with an estimate of the Operating Cost for
that year if it is greater than the Base Operating Cost, and the Monthly Rent
for each month of that calendar year will be increased by 1/12th of Tenant's
Share of the differences between the Tax Cost estimate and the Base Tax Cost and
between the Operating Cost estimate and the Base Operating Cost.
After the end of each calendar year, including the year in which the
Term expires or is terminated, Lessor will give Tenant a statement of the Actual
Tax Cost and Actual Operating Cost for that calendar year. If the actual costs
exceed the estimated costs for that year, Tenant will immediately pay to Lessor
Tenant's Share of the excess. If the actual costs are less than the estimated
costs for that year, Lessor will immediately pay to Tenant Tenant's Share of the
difference. If Lessor contests Tax Cost and receives a refund or incurs
additional Tax Cost after adjustments for Actual Tax Cost have been made, the
Actual Tax Cost will be corrected accordingly and the appropriate adjustment
will be made between Lessor and Tenant. The portion of the Actual Tax Cost and
Actual Operating Cost to be paid by Tenant for the years in which the Term
begins and ends will be prorated by multiplying the Actual Tax Cost and Actual
Operating Cost amounts by a fraction, the numerator of which is the number of
days of that year in the Term and the denominator of which is 365.
4. Other Tenants. Assigned Spaces. If there are no other tenants
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of the Parking Area, then Tenant may use all of the parking spaces within the
Parking Area. If there is any other tenant of the Parking Area, then Tenant
shall be limited to the use of the 150 Spaces leased by Tenant. If there is any
other tenant of the Parking Area, then Lessor, in its reasonable discretion, may
assign specific parking spaces to Tenant or the other tenant or tenants.
5. Alterations. Tenant may make no alteration, change or addition
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to the Spaces or any other part of the Parking Area.
6. Interruptions. Lessor will not be liable for any temporary
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interruption of access, heat or lighting for the Spaces because of maintenance,
repairs or alterations by Lessor or for any cause beyond Lessor's control, and
there will be no abatement or reduction of rent for any such cause.
7 Rules and Regulations. Tenant will comply with the reasonable
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rules and regulations from time to time adopted by Lessor for use of the Parking
Area ("Rules and Regulations").
8. Security. Lessor may exclude from the Parking Area during
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security hours, as defined in the Rules and Regulations, all persons who are not
identified to the satisfaction of Lessor.
9. Assumption of Risks. Tenant assumes all risk of loss or damage
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of Tenant's property within the Parking Area, including any loss or damage
caused by water leakage, fire, windstorm, explosion, theft, act of any other
tenant, or other cause. Lessor will not be liable to Tenant, or those claiming
through Tenant, for injury, death or property damage occurring in the Parking
Area.
10. Tenant's Liability. Tenant will hold Lessor harmless from any
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claims, suits, injuries, damages, or demands brought or asserted by any person
who entered the Parking Area at the request or invitation of Tenant, except to
the extent caused by the willful misconduct or negligence of Lessor or someone
acting on its behalf.
11. Termination; Cross Defaults. This Lease will terminate
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automatically upon expiration or earlier termination of the Building Lease, upon
destruction of the Parking Area or
Spaces by fire or other casualty, or upon acquisition of the Parking Area or
Spaces by a public authority having the power of eminent domain. If there is an
acquisition by a public authority, Tenant will be entitled to no part of any
award or purchase price. If as a result of damage, deterioration or governmental
directive, it is necessary for Lessor to remove or replace the Parking Area,
Lessor may terminate this Lease upon written notice to Tenant. A default under
the Building Lease shall be a default under this Lease and vice versa.
12. Relationship. Neither this Lease nor the storage of a vehicle in
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the Parking Area will constitute a bailment or create the relationship of xxxxxx
and bailee.
13. Assignment and Subletting. Tenant may not assign this Lease, or
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sublet all or any of the Spaces without Lessor's prior written consent, which
consent shall not unreasonably be withheld.
14. License Numbers. Upon request by Lessor, Tenant shall promptly
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provide Lessor with a list of the license plate numbers of the automobiles which
will use the Spaces and Tenant shall promptly update the list from time to time.
If Lessor requests a list of license plate numbers, then the automobiles which
are identified on the list, as updated from time to time, will be the only
automobiles which are allowed to use the Spaces. Lessor sha1l have the right
but not the obligation to exclude or tow automobiles which are not on the list.
15. Default. If Tenant defaults under this Lease and such default
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continues for a period of 30 days after written notice, Lessor may terminate
this Lease unless the default is non-monetary in nature and Tenant has taken and
is diligently pursuing measures to cure the default. Tenant will indemnify
Lessor against all loss of rents and other damages which it may incur because of
the termination during the remainder of the Term. If Tenant defaults, Tenant
will promptly reimburse Lessor for all attorneys' fees and other costs and
expenses incurred by Lessor in enforcing this Lease, whether or not this Lease
is terminated and whether or not suit is brought.
16. Notices. Any notices under this Lease will be in writing, and
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will be sent by prepaid certified mail, or by telegram confirmed by certified
mail, addressed to Tenant at its address in the Building, and to Lessor at 0000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xx. Xxxxx Xxxx, Xxxxxxxxx 00000, or to such other
address as is designated in a notice given under this Section. A notice will be
deemed given on the date of first attempted delivery,
Tenant: Lessor:
MEDICAL INSTITUTE OF MEPC AMERICAN PROPERTIES
MINNESOTA, INC. INCORPORATED
By _______________________ By ________________________________________
Its President Its Vice President, Propersty Management
--------------------- -----------------------------------------
And /s/ Xxxxx Xxxxx
----------------------
Its Vice President
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