MINNEAPOLIS WEST
BUSINESS CENTER
LEASE
This Lease is entered into as of, March 17, 1995 between MEPC AMERICAN
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PROPERTIES INC., a Delaware corporation ("Lessor") and DIAMOND BRANDS
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INCORPORATED, a Minnesota Corporation ("Tenant").
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1. Definitions. In this Lease:
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(a) "Building" means the building at 0000 Xxxxx Xxxxxxx 000, Xx. Xxxxx
Xxxx, Xxxxxxxxx, located on the Land, commonly known as the Parkdale
Plaza Building,.
(b) "Premises" means the space referred to as Suite No. 590 on the fifth
floor 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 3874 square feet regardless of
actual measurements,
(c) "Term" means the period of five years and no months, beginning on May
1, 1995 and ending on April 30, 2000, subject to the provisions of
Section 7 and the other provisions of this Lease.
(d) "Commencement Date" means the first day of the Term.
(e) "Monthly Base Rent" means $3,228.00 per month, which amount will not
change during the Term unless space is added to or deleted from the
Premises as provided in this Lease or by written amendment of this
Lease.
(f) "Costs" means the estimated monthly Tax Costs plus the estimated
monthly Operating Costs.
(g) "Monthly Rent" means the Monthly Base Rent plus the Costs. The
initial Monthly Rent is $5,892.00, comprised of a Monthly Base Rent of
$3,228.00 plus estimated monthly Operating Costs of $1,808 and
estimated monthly Tax Costs of $856.00.
(h) "Tenant's Share" means the percentage obtained by dividing the square
foot area of the Premises by the total square foot area of the
rentable office space in the Building, which percentage on the date of
this Lease is 1.85% based on the number of square feet stated in
paragraph (b) above and based upon a current total rentable square
footage for the Building of 209,139 square feet.
(i) "Operating Costs" 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, insurance, utilities, fees or expenses for
management by Lessor or any other parry, amortization of capital
investments made to reduce Operating Costs, and amortization of
repairs made to extend the life of the Building and other
improvements. Operating Costs will not include mortgage interest,
depreciation on the Building or fixtures, advertising expenses, real
estate brokers' commissions or the cost of tenant improvements.
(j) "Tax Costs" 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 expenses of Lessor in connection with any proceeding to contest
these amounts.
(k) "Normal Business Hours" means 8:00 a.m. to 5:00 p.m. Monday through
Friday and 8:00 a.m. to 1:00 p.m. on Saturdays, excluding Sundays and
legal holidays.
(1) "Lease" means this Lease, all Exhibits attached to this Lease, and all
properly executed amendments, modifications and supplements to this
Lease.
(m) "Section" means a section of this Lease.
(n) "Exhibit" means an Exhibit attached to and thereby made a part of this
Lease.
(o) "Land" means the land described on Exhibit B attached to this Lease.
(p) "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.
(q) "Casualty" means a fire, explosion, tornado, or other cause of damage
to or destruction of the Building.
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 X.X. 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
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 18% 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 10/th/ 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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The initial Monthly Rent is based in part on the estimated Operating Costs and
Tax Costs. 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 Costs if greater than the initial
Costs, and the Monthly Rent will be increased by 1/12th of Tenant's Share of the
difference between the initial estimate of Costs and the current estimate.
After the end of each calendar year, including the year in which the Term
expires, Lessor will give Tenant a statement of the actual Costs for that
calendar year. If the actual Costs exceed the estimated Costs for that year,
Tenant will pay Tenant's Share of the excess to Lessor within 20 days after
receiving the statement. If the actual Costs are less than the estimated Costs
for that year, Lessor will pay Tenant's Share of the difference to Tenant with
the statement. If Tenant does not give Lessor written notice within one year
after receiving Lessor's statement that Tenant disagrees with the statement and
specifying the amounts in dispute, Tenant will be deemed to have waived the
right to contest the statement. Tenant will file no petition in Tax Court
regarding the Tax Costs without Lessor's prior written consent. If Lessor
contests Tax Costs and receives a refund or incurs additional Tax Costs after
adjustments for actual Tax Costs have been made, the actual Tax Costs will be
corrected accordingly and the appropriate adjustment will be made between Lessor
and Tenant. The portion of Costs to be paid by Tenant for the years in
which the Term begins and ends will be prorated by multiplying the actual Costs
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 Costs, the allocation of Costs to various
types of space within the Building, and Tenant will be bound thereby. If the
Building is not fully occupied during any partial or full year, an adjustment
will be made in computing the actual Operating Costs for such year so that it is
computed as though the Building had been fully occupied during that year.
6. Fiscal Year.
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The year used to determine 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 Costs and the actual Costs so that the same time period is used to
determine each and so that 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 Monthly Rent 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.
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 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.
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 general business office purposes and for no
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other purpose. Tenant will not commit or permit any act or omission which
results in the violation of any law, governmental regulation, or insurance
policy of Lessor, relating to the Building, or which will increase Lessor's
insurance rates on the Building. Tenant will not permit any conduct or
condition which may unduly 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 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 from time to time. 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 governmental authorities 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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Lessor will provide Building standard signage for the Premises at Lessor's
expense in an amount not to exceed $150.00. Tenant will not place or permit any
other 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.
13. Alterations.
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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 will not make any alterations, additions or improvements in or to the
Premises without first obtaining the written consent of Lessor. 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. 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, 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 payment, 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.
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 unless
Lessor elects otherwise in writing.
14. Utilities and Services.
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Lessor will supply reasonable janitor service, elevator service (if elevators
exist in the Building), heat and air conditioning appropriate to the season
during Normal Business Hours, and electricity in reasonable amounts for ordinary
office purposes. The cost of all such services will be a part of the Operating
Costs, 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.
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 establishes for utilities or services provided outside Normal Business
Hours at Tenant's request, or provided because of uses other than ordinary
office uses.
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 known as
Minneapolis West Business Center upon 60 days written notice to Tenant
specifying the effective date of the relocation. If this is done, Lessor will
provide Tenant with paint, wallcovering and carpeting comparable to those in the
original location, and will move Tenant's office furnishings to the new
location, all at Lessor's expense. 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, Such subordination
is on the condition that Tenant's right of possession of the Premises as
provided in this Lease will not be disturbed by the mortgagee or ground lessor
so long as Tenant is not in default under this Lease. If the interest of Lessor
is transferred to any party by reason of foreclosure of a mortgage or
cancellation of a ground lease, or by delivery of a deed in lieu of foreclosure
or cancellation, Tenant will immediately and automatically attorn to such party.
Tenant agrees that upon notification by Lessor or any mortgagee or ground lessor
of the election of a mortgagee or ground lessor to subordinate its interest in
the Premises to this Lease, this Lease will become prior to the mortgage or
ground 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 require.
19. Waiver of Claims and Assumption of Risks.
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Lessor and Tenant release each other from any liability for loss or damage by
fire or other casualty covetable 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. 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 its employees, for loss of or damage to any
property in the Premises.
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.
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.
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. Assignmgnt and Subletting.
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Tenant may assign this Lease or sublet all or part of the Premises only with
Lessor's prior 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 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 will 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 subleases, Tenant will still
remain liable for all obligations of the Tenant under 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.
23. Damage or Destruction.
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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 25% 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 15 days after
expiration of the 30-day period. If this Lease is terminated because or the
Casualty, rents an(i 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.
24. Eminent Domain.
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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 die 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.
25. Defaults.
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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, (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 reenter 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, without terminating Lessor's right to payment of Monthly Rent
and other charges due under this Lease.
Tenant waives any right of restoration to possession of the Premises after
reentry, notice of termination, or after judgment for possession. If this Lease
is terminated under this Section, Tenant promises and agrees to pay all Monthly
Rent and other charges due for the remainder of the original Term, and all
attorneys' fees and other expenses. If Tenant defaults in any of its
obligations under this Lease, it will promptly pay all costs (including
attorneys' fees) of enforcing Tenant'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 reenter the Premises and retake possession without legal action, without
relieving Tenant of the obligation to pay Monthly Rent or any other obligations
under this Lease, and without any liability to Tenant for re-entry removal of
Tenant's property.
26. Waiver of Lease Provisions.
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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 wived any provision of this Lease
by any action or inaction and no waiver will be effective unless it is done by
expressed written agreement signed 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, 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. No
acceptance of payment of less than the full amount due will be deemed a waiver
of the right to the full amount due together with any interest and service
charges.
27. Return of Possession to Lessor.
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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 the Premises have been vacated
by Tenant will become the property of Lessor to dispose of as Lessor chooses.
28. Holding Over.
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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 double 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.
29. Security Deposit.
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Tenant deposits $none with Lessor as a security deposit. Lessor may commingle
the security deposit with other funds but will refund this amount to Tenant
without interest on termination 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.
30. Brokers.
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Lessor and Tenant represent and warrant one to another that except as set forth
by addendum attached to this Lease, neither of them has employed or otherwise
used any broker or agent in relation to this Lease. 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.
31. Notices.
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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 mailed.
Lessor's statements of Costs and other routine mailings to tenants need not be
sent by certified mail.
32. 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.
33. 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.
34. 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.
Lessor:
MEPC AMERICAN PROPERTIES INC.
Its: Senior Vice President
---------------------
And
By:
Its: Vice President
--------------
TENANT: DIAMOND BRANDS INCORPORATED
By:
Its:
And
By:
Its:
EXHIBIT A
FLOOR PLAN
EXHIBIT B
LAND ON WHICH PARKDALE BUILDINGS ARE LOCATED
Tracts C, D, H and I, Registered Land Survey No. 1481, Files of the Registrar of
Titles, Hennepin County, Minnesota.
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. 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, microwave ovens and similar small electric units, including
---------
copiers and refrigerators.
--------------------------
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. Lessor understands that
-----------------------
Diamond Brands will have samples of its products on the Premises including
--------------------------------------------------------------------------
matches, toothpicks, ice cream and corn dog sticks and other miscellaneous
--------------------------------------------------------------------------
woodenware products.
--------------------
9. Tenant will not bring or permit to be brought into the Building any animals
or birds.
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 service 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 stairways 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. Tenant may have no vending machines in the Premises.
EXHIBIT 'D'
LEASEHOLD IMPROVEMENTS
DATE: 03.17.95.
RE: DIAMOND BRANDS INCORPORATED
XXXXXXXX XXXXX, XXXXX 000
GENERAL NOTES:
1. WALL CONSTRUCTION:
Existing walls.
Walls to be removed.
Typical tenant partition; .5" gypsum board each side
of 2.5" steel studs, walls to extend to u/s of
ceiling only.
Tenant demising wall; .5" gypsum board each side of
2.5" steels studs, walls to extend to u/s of
structure above.
Corridor wall, 1 HR. RATED; .5" type "C" gypsum board
each side of 2.5" steel studs, walls to extend to u/s
of structure above. Note: Stud space in all walls to
be filled with thermal fiber 1.5" acoustical batt.
2. All plan dimensions are approximate. Verify existing conditions and
dimensions before construction begins.
3. Demolish all existing walls/electrical in conflict with new Tenant layout,
FROM CONCRETE SLAB TO CONCRETE SLAB.
4. Front entry and sidelight shall be MEPC Building standard oak with 3' oak
framed sidelight. Assembly shall provide 2OMN rated protection into the
common corridor, with rabbited stops, smoke gasket, automatic door closer,
and lever lockset.
5. Doors and frames shall be new and reused, solid core, oak veneer, 3',
building standard, finished to MEPC building standard.
6. Modify existing ceiling tile and grid to suit new Tenant layout.
7. HVAC shall be modified to suit new Tenant layout as per MEPC building
standards with existing building equipment.
8. Lighting shall be modified to suit new Tenant layout with building standard
light fixtures, and shall maintain illumination level of 50-60 foot candles
at desk level throughout the premises. All rooms shall have switches to
control their appropriate lighting fixtures.
Page 1 of 4
LEASEHOLD IMPROVEMENTS, CONT.
DATE:
03.17.95.
RE: DIAMOND BRANDS INCORPORATED
PARKDALE PLAZA, SUITE 590
9. Electrical: ALL NEW BOXES SHALL BE INSTALLED 18" AFF CENTERED
WALL OUTLET
WALL TELEPHONE
(Empty J-box 18" AFF, .5" conduit to ceiling plenum)
SWITCH
EXISTING ELECTRICAL
EXISTING ELECTRICAL TO BE REMOVED.
TELEPHONE/LAN EQUIPMENT & CABLING: Shall be provided and installed at
Tenant's sole direction and cost.
10. Tenant shall provide at Tenant's sole expense, all telephone equipment,
cabling and space within office for such equipment. All cabling passing
through ceiling plenum shall be teflon sheathed and meet with all State and
Local building codes. It shall be the responsibility of Tenant's
contractor to adhere to building codes pertaining to any low-voltage
cabling. Tenant shall provide all furnishings and equipment.
11. All existing cabling not meeting with current building codes shall be
removed in its entirety "from the leasehold space, and any adjoining space
through which cabling passes, by Lessor's contractor, at Lessor's expense.
12. Floor covering and Wall covering shall be as shown on Plan P5, dated
03.14.95. Color selections shall be made from Building standard books.
13. Provide and install plumbing, casework and shelving as shown on Plan P5,
Page a2 and where shown on Plan P5, Dated 03.14.95.
ESTOPPEL CERTIFICATE
Parkdale Associates
C/o The Xxxxxx Xxxxxxx Group
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000 ("Purchaser")
Re: Lease, identified within Paragraph 14 hereof (as amended, assigned,
modified and supplemented within Paragraph 14 hereof, collectively,
the "Lease'), between MEPC American Properties Inc. ("Owner') and
the undersigned ("Tenant") relating to premises located in the
building identified with Paragraph 14 hereof and located in St.
Louis Park, Minnesota (the "Property")
Ladies and Gentlemen:
The undersigned is the Tenant under the Lease. With tile understanding that
(i) Purchaser will rely upon the statements and representations made by Tenant
herein in purchasing the Property and (ii) Purchaser will be seeking a lender to
provide a loan to Purchaser which lender has not yet been selected (the
"Lender") and Lender will rely upon the statements and representations made by
Tenant herein in providing a loan to Purchase, Tenant hereby certifies,
represents, warrants and confirms to Lender (with the same effect as if this
certificate was addressed to Lender) and Purchaser and their respective
successors and assigns, that, as of the date hereof,
1) The Lease sets forth all of the agreements and understandings of Owner and
Tenant with respect to the portion of the Property demises under the Lease
(the "Leased Premises"); there are no other written or oral agreements or
understandings between Tenant and Owner with respect to the Leased Premises
or the Property; Tenant has not subleased any portion of the Leased
Premises except as described on Exhibit A attached hereto and has not
assigned, whether outright or by collateral assignment, all or any portion
of its rights Xxxxxx the Lease; the Lease is in full force and effect in
accordance with its terms; a list describing the original lease and all of
the amendments, assignments, modifications and supplements of or to the
original lease are described within Paragraph 14 hereof-, and the Lease is
not otherwise or further amended, assigned, modified or supplemented.
2) The Commencement Date (as defined in the Lease) is as set forth within
Paragraph 15 hereof. The primary term of the Lease expires on the date set
forth within Paragraph 15
hereof (the "Expiration Date"). Except as expressly set forth in the Lease,
Tenant has no right to review, extend or reduce the Leased Premises nor any
option, right of First offer, right of first refusal or any similar right
with respect to leasing any portion of the Property. Tenant has not
exercised any of the aforementioned rights which exist under the Lease
except to the extent evidenced by one or more agreements which comprise(s)
a part of the Lease.
Tenant has accepted and is in possession or the Leased Premises, without
reservations Owner and Tenant have fulfilled and compiled with all
conditions precedent to the acceptance and possession of the Leased
Premises by Tenant; any and all improvements required to be furnished by
Owner to Tenant by the terms of the Lease have been completed and furnished
to the full satisfaction of Tenant; and all duties of Owner of an
inducement nature under the Lease have been fully performed by Owner. Owner
has paid all costs and expenses, if any, which the Lease requires Owner, as
landlord, to pay to or on behalf of Tenant. All expenditures have been made
and costs paid that are required of Tenant under the Lease for the
construction of such improvements.
3) The execution of the Lease by Tenant was duly authorized and the Lease was
properly executed. No notice describing or alleging any default in the
performance of either Tenant's or Owner's obligations under the Lease has
been delivered or received by Tenant. To the best of Tenant's knowledge, no
default by Owner or Tenant in the performance of the Lease to be by them
respectively performed exists on the date hereof, and no facts, conditions,
events or nonevent exist which, after the passage of nine, giving of notice
or both would constitute a default under the Lease on the part of either
Owner or Tenant, the right to cancel or terminate the Lease or reduce the
Leased Premises.
4) To the best of Tenant's knowledge, there are no events currently existing
which give Tenant the right to cancel or terminate the Lease or reduce the
Leased Premises.
5) Tenant does not now have any claim, counter-claim, abatement, allowance or
credit against Owner which might be set-off against or reduce past, current
or future rents due under the Lease or which might be used as a defense to
enforcement of the Lease. Upon Purchaser's purchase of the Property and
absent a future default under the Lease by Purchaser, as lessor under the
Lease, Tenant is obligated to pay all sums due and payable to Purchaser
pursuant to the terms of the Lease throughout the term of the Lease without
set off, discount, reduction or relief due to any rental concession,
abatement, credit or otherwise.
6) No rents have been prepaid under the Lease, except for the normal
prepayment thereof for no more than one (1) month in advance nor will
Tenant pay any rent more than one (1) month in advance.
7) The Monthly Base Rent (as defined in the Lease) payable under the Lease, is
currently in the amount set forth within Paragraph 15 hereof attached
hereto and has been paid
through the date set forth within Paragraph 15 hereof-. The current
Tenant's Share (as defined in the Lease) of estimated Additional Cost (as
defined in the Lease) payable under the Lease is currently in the amount
set forth within Paragraph 15 hereof and has been paid through the date set
forth within Paragraph 15 hereof+.
8) Tenant acknowledges, confirms and conclusively agrees that the Leased
Premises consist of the number of net rentable square feet set forth within
Paragraph 15 hereof and Tenant's Share is the percentage stated within
Paragraph 15 hereof.
9) Tenant has paid Owner a security deposit (the "Security Deposit") in the
amount stated within Paragraph 15 hereof and no portion of the security
deposit has been applied against amounts owing pursuant to the Lease.
Tenant has no claim against Owner for any other deposits or sums.
10) Tenant has not been granted and has not exercised any options or rights of
purchase concerning all or any portion of the Property.
11) There has not been filed by or against nor, to the best knowledge of
Tenant, is there threatened against or contemplated by Tenant, a petition
in bankruptcy, voluntary or otherwise, any assignment for the benefit of
creditors, any petition seeking reorganization or arrangement under the
bankruptcy laws, of the United States or of any state thereof, or any other
action brought under said bankruptcy laws.
12) Unless otherwise indicated on within Paragraph 15 hereof ("the "Tenant's
Current Notice Address"), the address for notices to be sent to Tenant is
as set forth in the Lease.
13) Tenant understands that Purchaser will assign the Lease to Lender and
agrees that if Lender so requests by written notice pursuant to such
assignment, Tenant will pay all rents and other charges due and payable
under the Lease directly to Lender.
* Said date to be no earlier than the last day of the month prior to the month
in which the Closing occurs unless and to the extent said arrears are set forth
in the Submission Matters (as defined in the Contract).
+ Said date to be no earlier than the last day of the month prior to the month
in which the Closing occurs unless and to the extent said arrears are set forth
in the Submission Matters (as defined in the Contract).
14) The term "Lease" shall mean the aggregate of the following: Lease dated
March 17, 1995, between MEPC American Properties Inc. and Diamond BRANDS
Incorporated. Located at 0000 Xxxxx Xxxxxxx 100 in the building commonly
known as the Parkdale Plaza Building.
15) The following relevant facts concern the Lease:
Conunencement Date: 05/01/95
Expiration Date: 04/30/00
Monthly Base Rent: $3,228.00
Monthly Base Rent has been paid through April , 1997
Tenant's Share of current estimated monthly Additional Costs: $3,078.00
Tenant's Share of current estimated monthly Additional Costs has been paid
through April, 1997
Leased Premises consists of: 3,874 net rentable square feet.
Tenant's Share: 1.85 %
----
Security Deposit: -0-
Tenant's Current Notice Address:
Xx. Xxxxxx Xxxxxxx
Diamond Brands, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
16) The agreements, certification and covenants of Tenant hereunder shall inure
to the benefit of Lender and Owner and their respective heirs, executors,
administrators, personal representatives, successors and assigns, including
any purchaser of the Leased Premises or the Property at a foreclosure sale
or pursuant to a deed-in-lieu of foreclosure or otherwise.
17) The person signing this letter on behalf of Tenant is a duly authorized
agent of the Tenant.
AGREED TO THIS 8/TH/ DAY OF MAY 1997.
(TENANT]
By:
Its:
EXHIBIT A TO ESTOPPEL CERTIFICATE
[Insert a description of approved sublease(s), if any]
Tenant is in compliance with all of its obligations under all of the above-
mentioned subleases (collectively, the "Sublease") and has neither received nor
delivered a notice alleging a default of any party's obligations under the
Sublease; to the best of Tenant's knowledge, no default by Tenant or any party
under the Sublease in the performance of the Sublease to be by them respectively
performed exists on the date hereof and no event has occurred which, after the
passage of time, giving of notice or expiration of any notice, grace or right to
cure period, would constitute a default under the Sublease. Owner has approved
the Sublease and the subtenants(s) thereunder.
