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EXHIBIT 10.8
EDINA SOUTHWEST BUILDING
LEASE AGREEMENT
THIS LEASE is made and entered into this _____ day of July, 1998 by and
between ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P, a general partnership hereinafter referred
to as "LESSOR" and Datalink Corporation, a Minnesota corporation hereinafter
referred to as "LESSEE".
WITNESSETH:
In consideration of the mutual covenants, promises, and agreements
herein contained, the parties do hereby agree as follows:
1. DESCRIPTION OF THE PREMISES
LESSOR does hereby lease to LESSEE and LESSEE does hereby lease and
take from LESSOR certain premises consisting of approximately 10,530 square
feet within the building at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
hereinafter referred to as "Premises." These Premises are identified in the
building plans as Suites 1 and 2 and are more specifically designated in Exhibit
"A" which is made a part hereof. The Premises is measured from the outside of
all exterior walls to the center of tenant division and common area walls and is
hereafter referred to as the "leased premises."
2. TERM
This lease shall be for a term of Seventeen (17) months commencing on
the first day of August, 1998 and terminating on the last day of December, 1999.
3. USE OF PREMISES
It is agreed that the leased premises shall be used by the LESSEE for
offices, receiving, storage, and shipping of the LESSEE'S goods, subleasing of
some of the warehouse and office areas, and for no other purpose; subject to all
local, state, and federal laws and regulations regarding the use of the
premises.
4. PARKING AND DRIVES
The LESSEE, its employees, and invitees shall have the nonexclusive
right to use the common driveways and parking lots along with the other tenants,
invitees and customers of the building. The use of such driveways and parking
facilities are subject to such reasonable rules and regulations as the LESSOR
may impose. No more than 23 parking spaces are to be occupied at any one time by
the LESSEE, its employees and invitees. The LESSEE further agrees not to use, or
permit the use by its employees, the parking areas for the overnight storage of
automobiles or other vehicles without the written permission of the LESSOR.
5. NET LEASE
This is a "net" Lease, and LESSOR shall not be required to provide any
services or do any acts in connection with the leased premises not specifically
set forth in this Lease. As hereinafter further described in the Lease the
LESSEE is responsible for and shall pay all utility charges, trash removal, its
proportionate share of real estate taxes including installments of special
assessments and its proportionate share of the building's operating expenses.
For purposes of computing the share of the building that is leased to the
LESSEE, it is mutually determined and agreed that the net rentable are of the
building consists of 76,243 square feet, that the leased premises of LESSEE is
10,530 square feet, and accordingly, the LESSEE's percentage and proportionate
share for purposes of allocating real estate taxes and assessments and operating
expenses is 13.81%. Also, for the partial years at the beginning and end of this
Lease, the "LESSEE" shall only be responsible for its share of costs for the
portion of the year that the Lease is in effect.
6. RENT
LESSEE shall pay as annual rent for the leased premises, the sum of
Fifty-Four Thousand Dollars ($54,000) payable in equal monthly installments of
Four Thousand Five Hundred Dollars and no/100 ($4,500.00) in advance of the
first business day of each month during the full term hereof.
In the event the original term hereof shall commence on a day other
than the first day of a month, then a prorate rent payment shall be made paying
the rent through the end of the first partial month. All rental payments
required hereunder shall be paid to LESSOR at such place as LESSOR indicates on
the rent statement of may otherwise direct in writing from time to time.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇
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▇
Office: 1st floor 2958 S.F.
2nd floor 3500 S.F.
Whse: 1st floor 3664 S.F.
2nd floor 260 S.F.
Other: ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇.▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ S.F.
TOTAL AREA 10,530
7. TAXES AND SPECIAL ASSESSMENTS
Commencing with the real estate taxes and installments of special
assessments payable in the year this Lease commences the LESSEE shall pay to
LESSOR, as additional rent for and during the full term of this Lease, its
proportionate share of any and all such real estate taxes and installments of
special assessments which are levied, assessed or charged against the entire
property. As the dollar amount will not be known at the beginning of each
calendar year, LESSOR shall make a reasonable estimate of what the amount will
be for that year, and LESSEE shall pay an estimated share each month. The first
of the month after LESSOR has received the actual real estate tax statement and
sent a copy to the LESSEE an adjustment shall be made for any difference between
that which the LESSEE paid and that which it should have paid. LESSEE shall then
start paying its prorata share monthly based upon the actual tax statement.
8. OPERATING EXPENSES
The LESSEE shall pay, as additional rent, when billed by LESSOR, its
proportionate share of the following operating expenses during the full term of
this Lease:
(a) City water and sewer charges, except where used by tenants in
substantial amounts for production and is therefore separately
metered, and the monitoring surveillance of the fire protection
system.
(b) Lawn care, snow and litter removal, and the repair and
maintenance as reasonably required for parking lots, drives,
sidewalks and landscaped areas.
(c) Maintenance, repair and replacement, if necessary, of all heating
and cooling equipment in the building, unless the need for such
work is the direct result of the LESSEE's misuse of such
equipment.
(d) All insurance that is maintained by LESSOR with respect to the
building, for fire and extended coverage, loss of rents insurance
or business interruptions and general liability insurance.
(e) All other necessary maintenance, replacement and repair, to the
exterior of the building including the roof and structural
maintenance.
(f) Property management expenses, except for re-leasing commissions
and special services not related to the ongoing operation of the
building, of four percent (4.00%) of the rents and additional
rents collected.
LESSOR agrees to exercise due care and diligence to obtain these
operating expense services and supplies at competitive and reasonable market
costs with acceptable quality and service standards. LESSOR shall have the right
to invoice these costs monthly to LESSEE on an estimated basis, making
adjustments to actual costs periodically (but at least annually) as operating
reports are available.
9. UTILITIES
LESSEE is responsible and shall pay for all utility services. The
LESSEE is separately metered for gas and electricity and will deal with the
utility companies for service requirements and billing.
In the event the LESSEE uses water and sewer in substantial amounts or
for production purposes, the LESSOR shall install at LESSEE'S expense a water
meter to sub-meter said water and sewer, and shall charge LESSEE for said water
and sewer at rates as charged by the City of Eden Prairie.
LESSOR shall not be liable to LESSEE for any loss or damage of any kind
of description whatsoever caused or sustained by reason of failure of the
heating or ventilating and air conditioning system servicing the leased premises
or because of inability to obtain energy or utilities for any reason beyond
LESSOR'S control.
10. INSURANCE
The LESSEE shall maintain in full force and effect during the term
hereof, a policy of public liability insurance under which the LESSOR and
LESSEE are named insured. The minimum limits of liability for such insurance
shall be $500,000.00 combined single limit for bodily injury and property
damage. LESSEE agrees to deliver a duplicate copy of said policy, or a
certificate of insurance evidencing such coverage, to LESSOR. Such policy
shall contain a provision requiring ten (10) days written notice to the LESSOR
before cancellation of the policy can be effected.
The LESSOR shall carry and cause to be in full force and effect a fire
and extended coverage insurance policy on the building, but not contents owned,
leased to or otherwise in
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possession of the LESSEE. Such policy shall contain a provision that
the policy shall not be canceled except upon ten (10) days written notice to the
LESSEE.
Each insurance policy carried by either the LESSOR or LESSEE covering
the leased premises or its contents shall provide that the insured party has
relinquished all rights to recover against the other party for loss or damage
resulting from perils insured against by the policy. LESSOR and LESSEE each
hereby waive any claim based upon liability which may arise against the other so
far as the claim relates to loss or damage to the premises or contents which is
covered by insurance.
The LESSOR agrees to carry a fire and extended coverage insurance
policy on the building which covers, without any rating surcharge, a wide range
of uses. The uses set forth in Paragraph 3 of this Lease falls within such wide
range of uses. In the event, however, the LESSEE's change in use of the premises
or contents kept in the premises, or refusal to follow directions from the Fire
Inspection Bureau, or general housekeeping cause the fire and extended coverage
insurance premiums for the building to increase then the LESSEE agrees to pay
such additional premium in equal monthly installments.
11. MAINTENANCE
The LESSEE shall be wholly responsible for the maintenance and repair
of the interior of the leased premises, and will keep them in as good condition
as when turned over to it, reasonable wear and tear and damage by fire and the
elements excepted.
The LESSEE agrees to keep the leased premises in a clean, orderly and
sanitary condition and will neither do nor permit to be done therein anything
which is in violation of insurance policies on the building or that is contrary
to law.
The LESSEE will neither commit nor suffer waste to the building or to
the leased premises.
The maintenance and repair obligations of the LESSEE includes all
interior walls and all doors, windows, and electrical fixtures that serve the
leased premises.
The LESSEE is responsible for snow removal two feet out from doors and
entries.
The LESSOR shall at its own expense keep in good order, safe condition
and repair the structural parts of the building in which the leased premises are
located, except where repairs to the structural parts are required due to the
fault or negligence of the LESSEE, its employees or invitees, in which case the
LESSEE shall be responsible.
12. APPEARANCE AND ACCESS
LESSOR and LESSEE mutually agree to keep the grounds, building, leased
premises and common areas in a condition of good repair and appearance as their
respective responsibilities and rights may allow. LESSOR shall provide general
access to LESSEE and its invitees to the common areas except as reasonable
security requirements and temporary conditions may prevent, and shall make a
reasonable effort to keep the common areas well maintained and free of nuisance.
LESSOR may establish and LESSEE will abide by reasonable rules for parking,
security, handling of trash and like procedures.
13. LESSOR'S RESPONSIBILITY
LESSOR agrees that prior to the commencement of the term hereof, at its
sole cost and expense, it will make the following improvements, if any,
alterations, or maintenance efforts for the benefit of the LESSEE: None.
LESSEE acknowledges that, upon occupancy hereof, it will cause
the leased premises to be inspected in order to ascertain the condition thereof;
that any objections (except for latent deficiencies not currently discoverable)
thereto not delivered in writing to LESSOR within 20 days after occupancy shall
be deemed waived.
14. CONDEMNATION LOSS
Should all the leased premises to be taken in condemnation proceedings
or by exercise of any right of eminent domain, then this Lease shall
automatically terminate as of the date the condemning authority of the
authority exercising its right of eminent domain takes possession of the leased
premises. If there is a partial taking but LESSEE continues to occupy the
premises in part, the rent shall be reduced in the proportion that the
unoccupied part of the premises bears to the entire premises. If, as a result
of a partial taking, the leased premises are no longer usable for the purposes
specified in Paragraph 3 of this Lease, then, in any such case, the LESSEE may
terminate this Lease as of the date the condemning authority or the authority
exercising its right of eminent domain takes possession of the property by
giving written notice thereof to the LESSOR. The LESSOR shall be specifically
entitled to all awards for condemnation.
15. ASSIGNMENT
The LESSEE will not assign this Lease, and will not sublet any part of
said premises without the prior written consent of the LESSOR. Said consent
will not be unreasonably withheld. Any such assignment or subletting will not
release the LESSEE from its
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responsibilities under this Lease, unless expressly agreed to in writing by the
LESSOR. The LESSOR shall have the right to any profit made in such assignment or
subletting, but only in the event that the LESSEE is using less than one-half of
its leased premises for its business operation. If the LESSEE shall be declared
bankrupt, shall have a receiver appointed of its property, shall make an
assignment for the benefit of creditors, or its rights hereunder shall be taken
under execution; it shall be construed as an assignment of this Lease within the
meaning hereof, the LESSOR shall have the right to terminate this Lease.
16. BREACH BY TENANT
In the event that the LESSEE shall vacate or abandon said premises or
shall default in any of its covenants herein, and said default shall not be
removed within 10 days after notice thereof in writing from the LESSOR, the
LESSOR is hereby authorized to re-enter said premises to eject the LESSEE, and
take full possession of said premises, to terminate this Lease at its option,
and to lease and let said premises as to it shall seem best, to remove from
said premises all personal property of the LESSEE, and to store the same to the
account and at the expense and risk of the LESSEE, and to sell said property or
any part thereof, and out of the proceeds to pay all expenses of so removing,
storing, and selling the same, and all sums which shall then be in arrears or
past due for rent. No such act or acts of the LESSOR shall be construed as
cancellation of the Lease or waiver of said term, except exercise of its option
to terminate the same.
In case the LESSOR shall determine that an action or proceeding at law
or otherwise is necessary to enforce the terms and conditions hereof, the LESSEE
agrees that necessary costs and; reasonable attorney's fees and disbursements
thereof; and brokerage fees to re-lease said premises may be allowed and taxes
against it along with annual interest in the amount of 12% or the maximum amount
allowed by law whichever is less.
17. ALTERATIONS
The LESSEE shall not make any alterations to the leased premises
without the written consent of the LESSOR, such consent not to be unreasonably
withheld. If the LESSEE shall desire to make any such alterations, an accurate
description shall first be submitted to and approved by the LESSOR and shall be
done by the LESSEE at its own expense. LESSEE agrees that all such work shall be
done in a good, workmanship like manner, and in conformance with applicable
building codes, that the structural integrity of the building shall not be
impaired, and that no liens shall attach to the premises by reason thereof.
Unless the LESSOR shall elect at any time that all or any part of such
alterations shall remain, the premises shall be restored to its original
condition (except as to any part of said alterations which the LESSOR shall
elect to remain) by the LESSEE before the expiration of the Lease at LESSEE's
own expense. Any such alterations shall become the property of the LESSOR as
soon as they are affixed to the premises and all right, title and interest
therein of the LESSEE shall immediately cease unless otherwise stated in
writing. The LESSEE however, shall remain the owner of any installed trade
fixtures and shall have the right to remove such trade fixtures at the
expiration of this Lease Agreement, so long as the premises is restored to its
original condition.
18. SIGNS
The LESSEE shall have the right, at its own risk and expense, to place
signs identifying its business on the exterior walls of the building and next to
any doors opening directly into the premises, so long as all such signs conform
with the LESSOR's building standards and criteria and with all applicable zoning
laws. Said signs shall not be erected without the written prior approval of the
LESSOR. LESSEE agrees to maintain its signs in good repair, to remove its signs
at the end of the term or any extended term, repairing any damage caused by such
removal, and to hold LESSOR harmless from any loss, cost, or damages resulting
from the erection, existence, maintenance, or removal or LESSEE's signs. The
LESSEE agrees not to place signs on or near its window(s) which are easily
visible from the exterior. The LESSOR reserves the right to remove all
unapproved signs at the expense of the LESSEE.
19. ENTRY
The LESSOR shall have the right to keep pass keys to the leased
premises. The LESSEE agrees that no additional locks will be placed on any of
the LESSEE's doors without the written consent of the LESSOR. LESSOR, its
agents, and its employees shall have the right to enter the premises at all
reasonable times with representative of LESSEE present to inspect them, to make
repairs, and to maintain the building of which the premises are a part. During
the ninety days prior to the expiration of the term, the LESSOR or its agents
may exhibit the premises to prospective Lessees. LESSOR shall also have the
right of entry as provided in Paragraph 16.
20. SUBORDINATION
It is mutually agreed that this Lease shall be subordinate to any and
all mortgages, ground leases, or other securities, including any renewals,
modifications, consolidations, replacements and extensions thereof now or
hereafter recorded against the leased premises by the LESSOR. LESSEE's right
to quiet possession of the premises shall not be disturbed if LESSEE is not in
default and so long as LESSEE shall pay the rents and observe and perform all
of the provisions of this Lease, unless this Lease is otherwise terminated
pursuant to its terms.
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21. NOTICES
All notices, consents, demands and requests which may be or are
required to be given by either party of the other, shall be in writing, and sent
by United States registered or certified mail, with return receipt requested,
addressed to the LESSEE at the street address set forth in Paragraph 1 and to
the LESSOR in care of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other address as LESSOR may direct in writing
in the future.
The date which said registered or certified mail is mailed by the
LESSOR shall be conclusively deemed to be the date on which a notice, consent,
demand, or request is given or made. The above address of a party may be changed
at any time of from time to time by notice given by said party to the other
party in the manner herein above provided.
22. SHORT FORM LEASE
The parties hereto shall, at the option of either party, execute a
short form of lease for recording purposes and, in such event, the terms thereof
shall constitute a part of this Lease as fully as though recited at length
herein.
23. ASSUMPTION
The LESSOR may assign its right, title, and interest in this Lease, and
such assignment shall thence terminate all the LESSOR's obligations so long as
the LESSOR is not in default when such assignment is made and the assignee
assumes the LESSOR's responsibilities thereafter. This Lease and all the
covenants, terms, provisions and conditions herein contained shall inure to the
benefit, and be binding upon the LESSOR and LESSEE, their respective successors
and assigns.
24. OCCUPANCY
In the event the leased premises is not ready for occupancy on the
commencement date of this Lease, then the lease period shall start on the date
of LESSEE's possession. LESSOR shall not be liable to LESSEE for any loss or
damage resulting if the leased premises is not ready for occupancy on the
commencement date of this Lease. LESSEE agrees to take possession within ten
(10) days after the leased premises is substantially ready for occupancy and
permission to occupy is granted by the City of Edina.
25. CLAIMS
The LESSEE will make no claims against the LESSOR for any loss of or
damage to property caused by theft, burglary, water, gas, electricity or other
means, unless the cause of such loss or damage is the direct result of the gross
negligence or the willful misconduct of the LESSOR, its employees, or agents.
26. FIRE REPAIR
In the event of damage to the premises by fire, the elements or other
casualty, LESSOR shall repair the damage with reasonable dispatch, unless
mortgagee or financial participant, who from time to time might have an interest
in on the demised premises, shall require that the fire insurance proceeds be
used to reduce its interest or the indebtedness on the premises. If the damage
renders the premises untenantable in whole or in such part that it is
impractical to conduct business therein, the rent shall wholly ▇▇▇▇▇ until the
damage has been repaired. If the damage renders the premises untenantable in
part but LESSEE continues to occupy them in part, the rent shall be reduced in
the proportion that the unoccupied portion of the premises bears to the entire
premises, until the damage has been repaired.
27. QUIET ENJOYMENT
LESSEE, upon payment of the rent herein reserved and upon performance
of all of the terms, covenants and conditions of this Lease by it to be kept and
performed, shall at all times during the term hereof or during any extension or
renewal hereof, peaceably an quietly enjoy the leased premises without any
disturbance from LESSOR or from any other person claiming through LESSOR. Upon
expiration or sooner termination of the term hereof, LESSEE shall surrender the
leased premises in good condition and repair, except for reasonable wear and
tear, condemnation and casualty.
28. HOLDING OVER
If LESSEE shall hold over the leased premises or any part thereof
after the expiration of the term hereof such holding over shall be construed
only to be a tenancy from month to month subject to all of the covenants,
conditions, and obligations hereof except that the rent shall be 150% of the
amount shown in paragraph 6. Nothing herein shall be construed to give LESSEE
any rights to hold over and to continue in possession of the leased premises
after the expiration of the term hereof.
29. DEPOSIT
LESSEE has so security deposit under this Lease.
30. OTHER PROVISIONS
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The invalidity or unenforceability of any provision hereof shall not
effect or impair the validity of any other provision.
The headings herein are inserted only for convenience and reference and
shall in no way define, limit, or describe the scope or intent of any provisions
of this Lease. As used herein and where necessary, the singular imports the
plural and vice versa, and masculine, feminine and neuter pronouns and
expressions are interchangeable.
The covenants and agreements herein contained shall bind and shall
inure to the benefit of the LESSOR and LESSEE, their respective heirs,
administrators, legal representatives, successors and assigns.
During the term of this Lease Agreement, in the event the LESSEE should
pay to the LESSOR an amount which is less than the amount due at that time, and
the LESSOR receives and deposits such payment, such receipt and deposit shall
not be assumed to be payment in full, but rather partial payment toward the
LESSEE's account.
This Lease shall be governed by, construed and enforced in accordance
with the laws of the State of Minnesota.
One of more waivers of any covenant, term or condition of this Lease by
either party shall not be construed by the other party as a waiver or subsequent
breach of same covenant, term or condition. The failure or delay on the part of
the other party to enforce or exercise at any time any of the provisions, rights
or remedies of this Lease shall in no way be construed to be a waiver thereof
nor in any way effect the validity of this Lease or any part thereof or the
right of the party to thereafter enforce each and every such provision, right or
remedy.
31. EXHIBITS AND ADDENDUMS
This instrument contains all of the agreements made between the parties
and may not be modified orally or in any manner other than by agreement in
writing signed by all parties to this Lease. The following exhibits and
addendums are attached and hereby made a part of this Lease:
Exhibit A(1) Building Floor Plan
--------
Exhibit A(2) Detailed Floor Plan or Blueprint
--------
The signatories below warrant that they are duly authorized to enter into this
Lease representing the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed the
day and year first above written.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP DATALINK CORPORATION
By ▇▇▇▇ ▇▇▇▇▇▇ By ▇▇▇ ▇▇▇▇▇▇
-------------------------------- -------------------------------
PARTNER
By ITS CFO & Assistant Secretary
-------------------------------- -------------------------------
PARTNER
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