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EXHIBIT 10B
STANDARD OFFICE LEASE AGREEMENT (NET)
THIS LEASE AGREEMENT (hereafter called the "LEASE AGREEMENT") made as of the
30th, day of July, 1999 by and between CENTENNIAL LAKES IV, L.L.C., a Delaware
limited liability company having offices at Suite 200, 0000 Xxxx 00xx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 (hereafter called the "LANDLORD"), and MIDWEST
MEDICAL INSURANCE HOLDING COMPANY, a Minnesota corporation (hereafter called the
"TENANT").
WITNESSETH
FOR AND IN CONSIDERATION of the sum of One Dollar ($1.00) in hand paid by each
of the parties to the other, and other good and valuable consideration, receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
ARTICLE 1 - PREMISES AND TERM
A. Landlord does hereby lease and let unto Tenant, and Tenant does
hereby hire, lease and take from Landlord, that area outlined in red or
otherwise described on Exhibit A-1 attached hereto, and by this reference
incorporated herein, and described as Suite 400 consisting of the entire fourth
(4th) floor and containing approximately 26,069 rentable square feet (the
"PREMISES") of the Building at 0000 Xxxxxxxxxxx Xxx in the City of Edina, County
of Hennepin, State of Minnesota. The term "BUILDING" as it is used herein shall
consist of the above building at 0000 Xxxxxxxxxxx Xxx together with the land
accompanying such building as depicted on Exhibit A-2 attached hereto, and by
this reference incorporated herein.
B. To have and to hold said Premises for a term of seventy-four (74)
months commencing October 1, 1999 and terminating November 30, 2005 (hereafter
called the "TERM") upon the rentals and subject to the conditions set forth in
this Lease Agreement, and the Exhibits attached hereto. The commencement and
termination dates are specifically subject to the provisions of Article 5
hereof.
ARTICLE 2 - USE
The Premises shall be used by the Tenant solely for the following
purposes: General office use
ARTICLE 3 - RENTALS
Tenant agrees to pay to Landlord as minimum rental (hereafter called
"MINIMUM RENTAL") for the Premises, without notice, set-off or demand, the
following amounts per month:
Month of Term Annual Rate Per RSF Monthly Minimum Rental
1 to 26, inclusive* $16.15 $35,084.53
27 to 74, inclusive $16.65 $36,170.74
*Notwithstanding the foregoing, Landlord shall xxxxx the payment of Minimum
Rental by Tenant for the first two (2) months of the Term of this Lease
Agreement.
Said monthly installments shall be due and payable by Tenant in advance on the
first day of each calendar month during the Term of this Lease Agreement, or any
extension or renewal thereof, at the office of Landlord set forth in the
preamble to this Lease Agreement or at such other place as Landlord may
designate. In the event of any fractional calendar month, Tenant shall pay for
each day in such partial month a rental equal to 1/30 of the Minimum Rental.
Tenant agrees to pay, as Additional Rent, which shall be collectible to the same
extent as Minimum Rental, all amounts which may become due to Landlord hereunder
and any tax, charge or fee that may be levied, assessed or imposed upon or
measured by the rents reserved hereunder by any governmental authority acting
under any present or future law before any fine, penalty, interest or costs may
be added thereto for non-payment.
The parties further agree that in lieu of the monthly payments of
Operating Expenses and Real Estate Taxes that would otherwise be payable under
Article 6 of this Lease Agreement by Tenant during calendar year 1999, Tenant
shall pay Landlord an additional $14,663.81 ($6.75 per rentable square foot of
Premises annually) per month during calendar year 1999 (the "ADDITIONAL 1999
PAYMENTS") on the same day monthly payments of Minimum Rental are due under this
Lease Agreement. Notwithstanding the foregoing, Landlord shall xxxxx the payment
of the Additional 1999 Payments by Tenant for the first (2) months of the Term
of this Lease Agreement. Effective January 1, 2000 and thereafter during the
Term of this Lease Agreement, Tenant shall pay Operating Expenses and Real
Estate Taxes pursuant to the provisions of Article 6 of this Lease Agreement.
ARTICLE 4 - CONSTRUCTION
A. This Lease Agreement contemplates construction and/or completion of
the Building of which the Premises are a part. Landlord shall, at its own cost
and expense, construct and complete the Building ("LANDLORD'S WORK"). The
Landlord's Work shall include completion of those portions of the Premises
included within the "SHELL BUILDING" and as specified on Exhibit B attached
hereto. Those portions of the Premises which are in addition to the Shell
Building shall be constructed pursuant to Paragraphs B and C of this Article 4.
B. All improvements to the Premises beyond the Shell Building shall be
deemed and constitute the "TENANT IMPROVEMENTS". The Tenant Improvements (with
the exceptions set forth below) shall be built by Landlord according to plans
and specifications to be prepared by Xxxxx Xxxxxx (herein referred to as the
"TENANT ARCHITECT"). It is acknowledged by the parties that preliminary space
plans and specifications (the "PRELIMINARY PLANS") for the Tenant Improvements
have been prepared by the Tenant Architect and delivered by Tenant to Landlord,
which Preliminary Plans have been approved by Landlord. Tenant shall cause the
Tenant Architect to prepare final plans, including a full set of construction
drawings (hereafter referred to as "PLANS") for the Tenant Improvements, which
Plans shall be consistent with, except for mutually agreed upon changes, the
Preliminary Plans and submit such Plans to Landlord for its review and approval
no later than July 15, 1999, time being of the essence. A written approval of
the Plans shall be given by each party affixing the signature or initials of an
authorized officer or employee of such party on duplicate sets of the Plans,
each to be marked "record set" and which shall be by this reference incorporated
herein, it being agreed by the parties that for purposes of the foregoing, the
authorized signatory for the Landlord shall be Xxxxxxx Student and the
authorized signatory for the Tenant shall be Xxxxx Xxxxx. Both parties agree to
not unreasonably withhold their approval of the final Plans. Any objections to
or approvals of the Preliminary Plans or the final Plans shall be given as
quickly as possible and not later than three (3) business days from the date
submitted. If Tenant and Landlord fail to agree to final Plans, Landlord shall
have the option of completing the Landlord's Work allowing Tenant to complete
the Tenant Improvements, in which case Article 12 shall govern the performance
of such work by Tenant, in lieu of this Paragraph 4B.
C. Landlord and Tenant have agreed that the costs of the Tenant
Improvements shall be paid by Tenant, although Landlord shall provide Tenant an
allowance of up to $495,311.00 ($19.00 per rentable square foot of Premises) to
be utilized toward the cost of the Tenant Improvements (hereafter called the "T.
I. ALLOWANCE"). The T. I. Allowance shall be used only for the payment of costs
relating to the construction of the Tenant Improvements (including the cost of
preparing the Preliminary Plans and final Plans, consulting services and cabling
costs and a construction management fee payable to Landlord's construction
manager in the amount of three percent (3%) for profit and five percent (5%) for
overhead, of the total cost of the Tenant Improvements), which costs Landlord
shall pay directly out of the T. I. Allowance, for the credit of Tenant, and in
no event shall any part of the T. I. Allowance be paid to or
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payable to Tenant. Any costs of the Tenant Improvements which exceed the T. I.
Allowance shall be paid by Tenant to Landlord without demand within fifteen (15)
days of the day of submission by Landlord to Tenant of a statement of said
costs. Any improvements to the Premises, other than as shown on the Plans, and
the furnishing of the Premises, shall be made by Tenant at the sole cost and
expense of Tenant, subject to all other provisions of this Lease Agreement,
including compliance with all applicable governmental laws, ordinances and
regulations. If the Tenant Improvements cannot be substantially completed prior
to the commencement of the Term, then the provisions of Article 5 shall apply.
"SUBSTANTIAL COMPLETION" of the Tenant Improvements shall mean that the Tenant
Improvements have been constructed pursuant to the Plans except for minor "punch
list" items, but to such an extent that Tenant is able to take possession of the
Premises and conduct its business operations therefrom.
D. Upon completion and approval of the final Plans, Landlord's
construction manager shall obtain bids for construction of the Tenant
Improvements from at least three (3) reputable subcontractors for each Major
Subcontract (a "MAJOR SUBCONTRACT" shall be deemed any subcontract in excess of
$5,000.00). For each such Major Subcontract, Tenant shall have the right to
suggest subcontractors from whom Landlord shall solicit bids. All Major
Subcontract bids and the total costs of constructing the Tenant Improvements
shall be disclosed and reviewed with Tenant, and Tenant shall have the right to
"value engineer" the Plans by making changes which will reduce the costs,
subject to Landlord's approval, which approval shall not be unreasonably
withheld. The Tenant Improvements shall be constructed by Landlord in accordance
with the approved Plans in a good and workmanlike manner and using new materials
and provided the Plans so comply, in compliance with all applicable local, state
and federal codes, ordinances and laws, including, without limitation, Title III
of the Americans with Disabilities Act of 1990 ("ADA"). Upon reasonable prior
notice to Landlord, Tenant or its authorized representative shall be allowed to
enter the Premises at reasonable times for the limited purpose of inspecting the
construction of the Tenant Improvements, provided that Tenant does not interfere
with the construction work or any contractor or subcontractor. In no event shall
Tenant direct, interfere with or give instructions to any contractors,
subcontractors or other persons working on the construction of the Tenant
Improvements.
ARTICLE 5 - POSSESSION
Except as otherwise provided, Landlord shall deliver possession of the
Premises with the Tenant Improvements substantially completed on or before the
date hereinabove specified for commencement of the Term, but delivery of
possession prior to such commencement date shall not affect the expiration date
of this Lease Agreement. Failure of Landlord to deliver possession of the
Premises by the date hereinabove provided, due to any cause beyond Landlord's
control, or time required for construction delays due to labor or material
shortages, strikes, or acts of God, shall automatically postpone the date of
commencement of the Term of this Lease Agreement and shall extend the
termination date by periods equal to those which shall have elapsed between and
including the date hereinabove specified for commencement of the Term hereof and
the date on which possession of the Premises is delivered to the Tenant. Subject
to the abatement of rent for the first two (2) months of the Term of this Lease
Agreement as provided in Article 3 above, the rentals herein reserved shall
commence on the first day of the Term, provided, however, in the event of any
occupancy by Tenant prior to the beginning of the Term for the purpose of
conducting its business operations therein, such occupancy shall in all respects
be the same as that of a tenant under this Lease Agreement, and the rental shall
commence as of the date that the Tenant Improvements are substantially completed
by Landlord and Tenant enters into such occupancy of the Premises; provided
further, however, the Tenant may enter the Premises rent-free during the Move-in
Period (as defined below) only for the purposes described below. Provided
further, that if Landlord shall be delayed in delivery of the Premises to Tenant
due to Tenant's failure to agree to the Plans or any delay caused by a party
employed by or the agent of Tenant, or by Tenant's failure to pay for the costs
of the Tenant Improvements in excess of the T. I. Allowance, then in such case
the rental shall be accelerated by the number of days of such delay, and the
rentals shall commence the same as if occupancy had been taken by Tenant. So
long as Tenant shall not interfere with the completion of the Tenant
Improvements, Landlord shall allow Tenant to commence fixturing, wiring for its
telecommunications/computer equipment, installing work stations and otherwise
moving its personal property, furniture and equipment into the Premises two (2)
weeks prior to the commencement of the Term (the "MOVE-IN PERIOD"). During the
Move-in Period and any other time prior to the commencement of the Term,
Landlord shall have no responsibility or liability for loss or damage to
fixtures, facilities or equipment installed or left on the Premises. By
occupying the Premises as a Tenant, or to install fixtures, facilities or
equipment, or to perform finishing work, Tenant shall be conclusively deemed to
have accepted the same and to have acknowledged that the Premises are in the
condition required by this Lease Agreement, except items which are not in
compliance with the Plans and for which Tenant has given Landlord a written
"punch list" within thirty (30) days of Tenant's first occupancy of the
Premises. Should the commencement of the rental obligations of Tenant under this
Lease Agreement occur for any reason on a day other than the first day of a
calendar month, then in that event solely for the purposes of computing the Term
of this Lease Agreement, the commencement date of the Term shall become and be
the first day of the first full calendar month following the date when Tenant's
rental obligation commences, or the first day of the first full calendar month
following the commencement date set out in Article 1 (if such is other than the
first date of a calendar month), whichever date is later, and the termination
date shall be adjusted accordingly; provided however, that the termination date
shall be the last day of a calendar month, which date shall in no event be
earlier than the termination date set out in Article 1. Immediately after
Tenant's occupancy of the Premises the Landlord and Tenant shall execute a
ratification agreement which shall set forth the final commencement and
termination dates for the Term and shall acknowledge the Minimum Rental, the
rentable square footage of the Premises, and delivery of the Premises in the
condition required by this Lease Agreement.
ARTICLE 6 - TENANT'S PRO RATA SHARE OF REAL ESTATE TAXES AND OPERATING EXPENSES
A. During each full or partial calendar year during the Term of this
Lease Agreement, Tenant shall pay to Landlord, as Additional Rental, an amount
equal to the "Real Estate Taxes" and "Operating Expenses" (both as hereafter
defined) per square foot of rentable area in the Building multiplied by the
number of square feet of rentable area in the Premises prorated for the period
that Tenant occupied the Premises. In the event that during all or any portion
of any calendar year, the Building is not fully rented and occupied, Landlord
may make an appropriate adjustment to Operating Expenses (but restricted to
those portions of Operating Expenses which are occupancy-related) for such year
for the purpose of avoiding distortion of the amount of such Operating Expenses
to be attributed to Tenant by reason of variation in total occupancy of the
Building, by employing sound accounting and management principles to determine
Operating Expenses that would have been paid or incurred by Landlord had the
Building been ninety-five percent (95%) rented and occupied, and the amount so
determined shall be deemed to have been Operating Expenses for such year.
B. Landlord shall, each year during the Term of this Lease Agreement,
give Tenant an estimate of Operating Expenses and Real Estate Taxes payable per
square foot of rentable area for the coming calendar year. Tenant shall pay, as
Additional Rental, along with its monthly Minimum Rental payments required
hereunder, one-twelfth (1/12) of such estimated Operating Expenses and Real
Estate Taxes and such Additional Rental shall be payable until subsequently
adjusted for the following year pursuant to this Article.
C. As soon as possible after the expiration of each calendar year, but
in no event later than April 30, Landlord shall determine and certify to Tenant
the actual Operating Expenses and Real Estate Taxes for the previous year per
square foot of rentable area in the Building and the amount applicable to the
Premises. If such statement shows that Tenant's share of Operating Expenses and
Real Estate Taxes exceeds Tenant's estimated monthly payments for the previous
calendar year, then Tenant shall, within twenty (20) days after receiving
Landlord's certification, pay such deficiency to Landlord. In the event of an
overpayment by Tenant, such overpayment shall be refunded to Tenant, at the time
of certification, in the form of an adjustment in the Additional Rental next
coming due, or if at the end of the Term by a refund.
D. For the purposes of this Article, the term "REAL ESTATE TAXES" means
the total of all taxes, fees, charges and assessments, general and special,
ordinary and extraordinary, foreseen or unforeseen, which become due or payable
upon the Building. All costs and expenses incurred by Landlord during
negotiations for or contests of the amount of Real Estate Taxes shall be
included within the term "Real Estate Taxes." For purposes of this Article, the
term "OPERATING EXPENSES" shall be deemed to mean all costs and expenses
directly related to the Building incurred by Landlord in the repair, operation,
management and maintenance of the Building including interior and exterior and
common area maintenance, management fees, cleaning expenses, energy expenses,
insurance premiums, and the amortization of capital investments made to reduce
operating costs or that are necessary due to governmental
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requirements, all in accordance with generally accepted accounting principles.
Operating Expenses shall specifically include the Building's pro rata portion of
any costs and expenses incurred pursuant to cross easement and/or covenants
agreements in which the Building/Landlord obtains the use or benefit of other or
adjoining facilities, parks and/or amenities. Notwithstanding anything herein to
the contrary, the term "Operating Expenses" shall not be deemed to include any
of the costs or expenses set forth on Exhibit C attached hereto.
E. Landlord may at any time designate a fiscal year in lieu of a
calendar year and in such event, at the time of such a change, there may be a
billing for the fiscal year which is less than 12 calendar months. In the event
Landlord owns buildings in addition to the Building and/or such buildings are
under common management, Landlord shall have the option for purposes of managing
and administrating the Building and the calculation of Tenant's pro rata share
of Operating Expenses to combine such additional building(s) with the Building
(the "COMPLEX OPTION") and in such case, all such Operating Expenses shall be
combined, but Tenant's Pro Rata Share of the same shall be reduced by using the
total rentable area of all buildings in the Complex Option rather than just the
Building for purposes of determining Tenant's Pro Rata Share pursuant to this
Article.
F. Landlord reserves, and Tenant hereby assigns to Landlord, the sole
and exclusive right to contest, protest, petition for review, or otherwise seek
a reduction in the Real Estate Taxes.
G. The total rentable area of the Building shall be determined in the
same manner as used in determining the rentable area of the Premises as set
forth in Paragraph 1B above. For purposes of this Article 6, Tenant's Pro Rata
Share shall equal a fraction, the numerator of which is the rentable square feet
of the Premises and the denominator of which is the total rentable square feet
in the Building. If at any time the rentable area of the Building or the
rentable area of the Premises shall change, then Tenant's Pro Rata Share shall
also be correspondingly revised. Tenant's Pro Rata Share is currently 12.437%.
H. Notwithstanding anything herein to the contrary, Tenant shall make
no payments of Operating Expenses and Real Estate Taxes under this Article 6
during calendar year 1999, it being acknowledged and agreed that subject to the
abatement of rent for the first two (2) months of the Term of this Lease
Agreement as provided in Article 3 above, the Additional 1999 Payments payable
by Tenant pursuant to the last paragraph of said Article 3 shall be made in lieu
of such payments of Operating Expenses and Real Estate Taxes.
ARTICLE 7 - UTILITIES AND SERVICE
A. Landlord agrees to furnish water, electricity, elevator service, and
janitorial services in accordance with the specifications attached hereto as
Exhibit D. In the event Tenant's requirements and/or usage of such utilities and
services is substantially greater than is customarily supplied to a typical
tenant in the Building, Landlord or Tenant may request that the difference in
such requirement and/or usage be determined and that appropriate adjustments be
made in the Minimum Rental provided for in Article 3 of this Lease Agreement.
B. Landlord agrees to furnish heat during the usual heating season and
air conditioning during the usual air conditioning season, all during normal
business hours as defined in this Lease Agreement. Notwithstanding the
foregoing, upon reasonable advance notice by Tenant to Landlord, HVAC shall be
available to the Premises after normal business hours, at a charge to Tenant not
to exceed Landlord's actual costs therefor, which cost is currently
approximately $1.00 per hour per zone.
C. No temporary interruption or failure of such services incidental to
the making of repairs, alterations or improvements, or due to accidents or
strike or conditions or events not under Landlord's control, shall be deemed as
an eviction of the Tenant or relieve the Tenant from any of the Tenant's
obligations hereunder. Notwithstanding the foregoing, in the event (i) either
(x) such interruption or failure of services is caused by the negligence or
willful misconduct of Landlord or (y) Landlord fails to take commercially
reasonable steps to restore such services as soon as reasonably possible, (ii)
the interruption or failure of services continues for a period of five (5)
consecutive business days following notice by Tenant to Landlord, and (iii) as a
result of such interruption or failure of services, the Premises are rendered
untenantable and, in fact, the Tenant does not use the Premises for said period
of time, then in such case, the payment of Minimum Rental and Additional Rental
under Article 6 of the Lease Agreement (or the Additional 1999 Payments made in
lieu thereof pursuant to the last paragraph of Article 3) shall thereafter xxxxx
until such time as such services are restored to the Premises.
D. For the purposes of this Article 7, normal business hours shall be
deemed to mean the periods of time between 7:00 a.m. and 6:00 p.m., Monday
through Friday and between 8:00 a.m. and 1:00 p.m. on Saturdays, and
specifically excluding Sundays and legal holidays.
E. Landlord shall be deemed to have observed and performed the terms
and conditions to be performed by Landlord under this Lease Agreement, including
the furnishing of the services under this Article 7, if in doing so, it acts in
accordance with a directive, policy, or request of a governmental or
quasi-governmental authority serving the public interest in the fields of
energy, conservation or security.
F. Landlord agrees that during the Term of this Lease Agreement, a
security firm shall be retained to provide one (1) security guard to patrol the
Centennial Lakes office complex of which the Building is a part, from 4:00 p.m.
to 12:00 a.m. and from 12:00 a.m. to 8:00 a.m. Monday through Friday and for
eight (8) hours on Saturdays. Nothing in this Article 7 F. shall be construed so
as to place any liability on Landlord, in tort or otherwise, for loss, damage or
injury to person or property, and under no circumstances shall Landlord be
responsible for any failure by said security firm to perform as it has agreed.
Landlord may at its option and without any obligation to do so, elect to expand
the scope of the services provided by said security firm.
ARTICLE 8 - NON-LIABILITY OF LANDLORD
Except in the event of negligence or willful misconduct of Landlord,
its agents, employees or contractors, Landlord shall not be liable for any loss
or damage for failure to furnish heat, air conditioning, electricity, elevator
service, water, sprinkler system or janitorial service. Landlord shall not be
liable for personal injury, death or any damage from any cause about the
Premises or the Building except if caused by Landlord's gross negligence.
ARTICLE 9 - CARE OF PREMISES
A. Tenant agrees:
1. To keep the Premises in as good condition and repair as
they were in at the time Tenant took possession of same, reasonable wear and
tear and damage from fire and other casualty for which insurance is normally
procured excepted;
2. To keep the Premises in a clean and sanitary condition;
3. Not to commit any nuisance or waste on the Premises,
overload the Premises or the electrical, water and/or plumbing facilities in the
Premises or Building, throw foreign substances in plumbing facilities, or waste
any of the utilities furnished by Landlord;
4. To abide by such rules and regulations as may from time to
time be reasonably promulgated by Landlord, a true and correct copy of the
current rules and regulations being attached hereto as Exhibit E;
5. To preserve and protect all carpeted areas and to provide
and use carpet protector mats in all locations within the Premises where chairs
with castors are used; and
6. To obtain Landlord's prior approval of the interior design
of any portion of the Premises visible from the common areas or from the outside
of the Building, which approval shall not be unreasonably withheld. "Interior
design" as used in the preceding sentence shall include but not be limited to
floor and wall coverings, furniture, office design, artwork and color scheme.
B. If Tenant shall fail to keep and preserve the Premises in the state
of condition required by the provisions of this Article 9, the Landlord may at
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its option put or cause the same to be put into the condition and state of
repair agreed upon, and in such case the Tenant, on demand, shall pay the cost
thereof.
C. Subject to (i) Landlord's right to be paid for any Operating
Expenses incurred by Landlord that may properly apply and be payable in
accordance with Article 6 above and (ii) the obligations of Tenant under Article
9 A. above, Landlord shall maintain the Building in a manner consistent with
Class A office buildings in the southwest suburban area.
ARTICLE 10 - NON-PERMITTED USE
Tenant agrees to use the Premises only for the purposes set forth in
Article 2 hereof. Tenant further agrees not to commit or permit any act to be
performed on the Premises or any omission to occur which shall be in violation
of any statute, regulation or ordinance of any governmental body or which will
increase the insurance rates on the Building or which will be in violation of
any insurance policy carried on the Building by the Landlord. Tenant, at its
expense, shall comply with all governmental laws, ordinances, rules and
regulations applicable to the use of the Premises and its occupancy and shall
promptly comply with all governmental orders, rulings and directives for the
correction, prevention and abatement of any violation upon, or in connection
with the Premises or Tenant's use or occupancy of the Premises, including the
making of any alterations or improvements to the Premises, all at Tenant's sole
cost and expense. The Tenant shall not disturb other occupants of the Building
by making any undue or unseemly noise or otherwise and shall not do or permit to
be done in or about the Premises anything which will be dangerous to life or
limb.
ARTICLE 11 - INSPECTION
A. The Landlord or its employees or agents shall have the right, upon
reasonable verbal or written notice to Tenant (except for routine janitorial
services and except in the case of an emergency, in which case no notice need be
given) and without any diminution of rent or other charges payable hereunder by
Tenant to enter the Premises at all reasonable times for the purpose of
exhibiting the Premises to prospective tenants (during the last nine (9) months
of the Term only), mortgagees or purchasers, inspection, cleaning, repairing,
testing, altering or improving the same or said Building, but nothing contained
in this Article shall be construed so as to impose any obligation on the
Landlord to make any repairs, alterations or improvements. In exercising its
rights under this Article 11 A., Landlord shall not unreasonably interfere with
Tenant' s use and occupancy of the Premises.
B. Excepted from the Premises and reserved to Landlord are i) the roof
and exterior walls of the Building and all utility lines, pipes, facilities and
other appearences serving other portions of the Building, including those
portions which may be located below the floor covering or above the finished
ceiling of the Premises; and ii) so long as Tenant's use and occupancy of the
Premises is not unreasonably interfered with, the right to place in the Premises
(below the floor, above the finished ceiling or within the walls) utility lines,
pipes, and the like, to serve premises other than the Premises, and to replace,
maintain and repair such lines, pipes and the like as may have been or may be
installed in the Building.
ARTICLE 12 - ALTERATIONS
Tenant will not make any alterations, repairs, additions or
improvements (collectively, the "ALTERATIONS") in or to the Premises or add,
disturb or in any way change any plumbing, wiring (other than Tenant's Wiring as
defined in Article 19 below), life/safety or mechanical systems, locks, or
structural portions of the Building without the prior written consent of the
Landlord as to the character of the Alterations to be made, the manner of doing
the work, and the contractor doing the work. Such consent shall not be
unreasonably withheld or delayed, if such Alterations are required of Tenant or
are the obligation of Tenant pursuant to this Lease Agreement. Notwithstanding
anything herein to the contrary, Tenant may without the consent of Landlord make
Alterations of a non-structural nature costing no more than $3,000.00 in any one
instance so long as the plumbing, wiring (other than Tenant's Wiring),
life/safety and mechanical systems of the Building are not disturbed or changed
in any way and Tenant gives Landlord at least fifteen (15) days' written notice
prior to making such Alterations describing in reasonable detail the nature of
same. All such work shall comply with all applicable governmental laws,
ordinances, rules and regulations. The Landlord as a condition to said consent
may require a surety performance and/or payment bond from the Tenant for said
actions. Tenant agrees to indemnify and hold Landlord free and harmless from any
liability, loss, cost, damage or expense (including attorney's fees) by reasons
of any said alteration, repairs, additions or improvements.
ARTICLE 13 - SIGNS
Tenant agrees that no signs or other advertising materials shall be
erected, attached or affixed to any portion of the interior or exterior of the
Premises or the Building without the express prior written consent of Landlord.
Notwithstanding the foregoing, Tenant shall be entitled to (i) the
Building-standard suite-entry signage, the cost of which may be paid from the
T.I. Allowance and (ii) to have its name included in the directory for the
Building.
ARTICLE 14 - COMMON AREAS
A. Tenant agrees that the use of all corridors, passageways, elevators,
toilet rooms, parking areas and landscaped area in and around said Building, by
the Tenant or Tenant's employees, visitors or invitees, shall be subject to such
rules and regulations as may from time to time be made by Landlord for the
safety, comfort and convenience of the owners, occupants, tenants and invitees
of said Building. Tenant agrees that no awnings, curtains, drapes or shades
shall be used upon the Premises except as may be approved by Landlord.
B. In addition to the Premises, Tenant shall have the right of
non-exclusive use, in common with others, of (a) all unrestricted automobile
parking areas, driveways and walkways, and (b) loading facilities, freight
elevators and other facilities as may be constructed in the Building, all to be
subject to the terms and conditions of this Lease Agreement and to reasonable
rules and regulations for the use thereof as prescribed from time to time by
Landlord. Landlord represents to Tenant that parking will be available at the
Building at a ratio of 4.56 parking spaces for each 1,000 usable square feet of
space in the Building.
C. Landlord shall have the right to make changes or revisions in the
site plan and in the Building so as to provide additional leasing area. Landlord
shall also have the right to construct additional buildings on the land
described on Exhibit A-2 for such purposes as Landlord may deem appropriate.
Landlord also reserves all airspace rights above, below and to all sides of the
Premises, including the right to make changes, alterations or provide additional
leasing areas. Landlord's rights under this Article 14 C. shall be exercised in
such a way so as not to materially and adversely affect Tenant's use and
occupancy of the Premises, Tenant's ingress and egress to and from the Premises
or the Building or the required level of parking at the Building.
D. Landlord and Tenant agree that Landlord will not be responsible for
any loss, theft or damage to vehicles, or the contents thereof, parked or left
in the parking areas of the Building and Tenant agrees to so advise its
employees, visitors or invitees who may use such parking areas. The parking
areas shall include those areas designated by Landlord, in its sole discretion,
as either restricted or unrestricted parking areas. Any restricted parking areas
shall be leased only by separate license agreement with Landlord. Tenant further
agrees not to use or permit its employees, visitors or invitees to use the
parking areas for continuous overnight storage of vehicles.
E. Pursuant to a separate parking license agreement to be entered into
between Landlord and Tenant, Tenant shall be entitled to use up to eight (8)
climate-controlled parking stalls, three (3) located in the lower level of the
Building and five (5) located in the executive parking area of the parking ramp,
at a license fee in effect during the initial Term of this Lease Agreement of
$100.00 per month per parking stall. In addition, Tenant shall be entitled to
use a ninth (9th) climate-controlled parking stall on a month-to-month basis.
Notwithstanding the foregoing, for each such parking stall, Landlord shall xxxxx
the payment of the monthly license fee payable for the first two (2) months of
the Term of this Lease Agreement.
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F. Pursuant to a separate storage license agreement to be entered into
between Landlord and Tenant, Tenant shall have the right to use up to 200 square
feet of storage space in the lower level of the Building at a gross annual rate
in effect during the initial Term of this Lease Agreement of $11.00 per square
foot, payable monthly.
G. Pursuant to a separate license agreement to be entered into between
Landlord and Tenant, during the Term of this Lease Agreement Tenant shall be
permitted to erect and maintain on the roof of the Building, rent-free, a
satellite dish, antenna or other telecommunications device.
ARTICLE 15 - ASSIGNMENT AND SUBLETTING
A. Tenant agrees not to assign, sublet, license, mortgage or encumber
this Lease Agreement, the Premises, or any part thereof, whether by voluntary
act, operation of law, or otherwise, without the specific prior written consent
of Landlord in each instance, which consent shall not be unreasonably withheld
or delayed by Landlord. If Tenant is a corporation or a partnership, transfer of
a controlling interest of Tenant shall be considered an assignment of this Lease
Agreement for purposes of this Article. Notwithstanding anything herein to the
contrary, Tenant may assign this Lease Agreement or sublet all or any part of
the Premises, without the consent of Landlord, to an Affiliate of Tenant. As
used herein, an "AFFILIATE" of Tenant shall be deemed to be any entity which
either controls, is controlled by or is under common control with Tenant, with
"control" meaning the power to direct the management and policies, directly or
indirectly, through the ownership of voting securities. Consent by Landlord in
one such instance shall not be a waiver of Landlord's rights under this Article
as to requiring consent for any subsequent instance. In the event Tenant desires
to sublet a part or all of the Premises, or assign this Lease Agreement, whether
to an Affiliate, Tenant shall give written notice to Landlord at least thirty
(30) days prior to the proposed commencement date of the subletting or
assignment, which notice shall state the name of the proposed subtenant or
assignee, the terms of any sublease or assignment documents and if proposed to a
person or entity other than an Affiliate, copies of financial reports or other
relevant financial information of the proposed subtenant or assignee. At
Landlord's option, any and all payments by the proposed assignee or sublessee
with respect to the assignment of sublease shall be paid directly to Landlord.
In any event no subletting or assignment, regardless of whether to an Affiliate,
shall release Tenant of its obligation to pay the rent and to perform all other
obligations to be performed by Tenant hereunder for the Term of this Lease
Agreement. The acceptance of rent by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision hereof. At Landlord's option,
Landlord may terminate the Lease Agreement in lieu of giving its consent to any
proposed assignment of this Lease Agreement or subletting of all of the Premises
(which termination may be contingent upon the execution of a new lease with the
proposed assignee or subtenant).
B. Landlord's right to assign this Lease Agreement is and shall remain
unqualified upon any sale or transfer of the Building and, providing the
purchaser succeeds to the interests of Landlord under this Lease Agreement,
Landlord shall thereupon be entirely freed of all obligations of the Landlord
hereunder and shall not be subject to any liability resulting from any act or
omission or event occurring after such conveyance.
ARTICLE 16 - LOSS BY CASUALTY
If the Building is destroyed by fire or other casualty or is damaged by
fire or other casualty to such an extent that such damage can not be repaired
within ninety (90) days of the date of such damage as reasonably determined by
Landlord, the Landlord shall have the right to terminate this Lease Agreement,
provided it gives written notice thereof to the Tenant within ninety (90) days
after such damage or destruction. If a portion of the Premises is damaged by
fire or other casualty, and Landlord does not elect to terminate this Lease
Agreement, the Landlord shall, at its expense, restore the Premises to as near
the condition which existed immediately prior to such damage or destruction, as
reasonably possible, and the rentals shall xxxxx during such period of time as
the Premises are untenantable, in the proportion that the untenantable portion
of the Premises bears to the entire Premises.
ARTICLE 17 - WAIVER OF SUBROGATION
Landlord and Tenant hereby release the other from any and all liability
or responsibility to the other or anyone claiming through or under them by way
of subrogation or otherwise for any loss or damage to property caused by fire or
any of the extended coverage or supplementary contract casualties, even if such
fire or other casualty shall have been caused by the fault or negligence of the
other party, or anyone for whom such party may be responsible.
ARTICLE 18 - EMINENT DOMAIN
If the entire Building is taken by eminent domain, this Lease Agreement
shall automatically terminate as of the date of taking. If a portion of the
Building is taken by eminent domain, the Landlord shall have the right to
terminate this Lease Agreement, provided it gives written notice thereof to the
Tenant within ninety (90) days after the date of taking. If a portion of the
Premises is taken by eminent domain and this Lease Agreement is not terminated
by Landlord, the Landlord shall, at its expense, restore the Premises to as near
the condition which existed immediately prior to the date of taking as
reasonably possible, and the rentals shall xxxxx during such period of time as
the Premises are untenantable, in the proportion that the untenantable portion
of the Premises bears to the entire Premises. All damages awarded for such
taking under the power of eminent domain shall belong to and be the sole
property of Landlord, irrespective of the basis upon which they are awarded,
provided, however, that nothing contained herein shall prevent Tenant from
making a separate claim to the condemning authority for its moving expenses and
trade fixtures. For purposes of this Article, a taking by eminent domain shall
include Landlord's giving of a deed under threat of condemnation.
ARTICLE 19 - SURRENDER
On the last day of the Term of this Lease Agreement or on the sooner
termination thereof in accordance with the terms hereof, Tenant shall peaceably
surrender the Premises in good condition and repair consistent with Tenant's
duty to make repairs as provided in Article 9 hereof. On or before said last
day, Tenant shall at its expense remove all of its equipment from the Premises,
repairing any damage caused thereby, and any property not removed shall be
deemed abandoned. All alterations, additions and fixtures other than Tenant's
trade fixtures, which have been made or installed by either Landlord or Tenant
upon the Premises shall remain as Landlord's property and shall be surrendered
with the Premises as a part thereof, or shall be removed by Tenant, at the
option of Landlord, in which event Tenant shall at its expense repair any damage
caused thereby; provided, however, Tenant shall have no obligation hereunder to
remove the initial Tenant Improvements made to the Premises pursuant to Article
4 above (other than Wiring as described below) or to remove any Alteration made
subsequently to the Premises unless as a condition of Landlord's consent thereto
under Article 12 above, Tenant was notified by Landlord that such Alteration
must be so removed by Tenant or if Landlord's consent to such Alteration was not
required under Article 12, Landlord notifies Tenant within ten (10) days of
Tenant's notice to Landlord under Article 12 above that such Alteration will be
made, that said Alteration must be so removed by Tenant. It is specifically
agreed that any and all telephonic, coaxial, ethernet, or other computer,
wordprocessing, facsimile, or electronic wiring installed by Tenant within the
Premises (hereafter "WIRING") shall be removed at Tenant's cost at the
expiration of the Term, unless Landlord has specifically requested in writing
that said Wiring shall remain, whereupon said Wiring shall be surrendered with
the Premises as Landlord's property. If the Premises are not surrendered at the
end of the Term or the sooner termination thereof, Tenant shall indemnify
Landlord against loss or liability resulting from delay by Tenant in so
surrendering the Premises, including, without limitation, claims made by any
succeeding tenant founded on such delay. Tenant shall promptly surrender all
keys for the Premises to Landlord at the place then fixed for payment of rental
and shall inform Landlord of combinations on any locks and safes on the
Premises.
ARTICLE 20 - NON-PAYMENT OF RENT, DEFAULTS
If any one or more of the following occurs: (1) a rent payment or any
other payment due from Tenant to Landlord shall be and remain unpaid in whole or
in part for more than ten (10) days after same is due and payable; (2) Tenant
shall violate or default on any of the other covenants, agreements, stipulations
or conditions herein, or in any parking agreement(s) or other agreements between
Landlord and Tenant relating to the Premises, and such violation or default
shall continue for a period of thirty (30) days (or such additional period of
time, not to exceed an additional thirty (30) days, as is reasonable under the
circumstances if such violation or default can not reasonably be cured within
thirty (30) days and Tenant promptly commences such
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cure and at all times diligently pursues same) after written notice from
Landlord of such violation or default; or (3) if Tenant shall commence or have
commenced against Tenant proceedings under a bankruptcy, receivership,
insolvency or similar type of action; then it shall be optional for Landlord,
without further notice or demand, to cure such default or to declare this Lease
Agreement forfeited and the said Term ended, or to terminate only Tenant's right
to possession of the Premises, and to re-enter the Premises, with or without
process of law, using such force as may be necessary to remove all persons or
chattels therefrom, and Landlord shall not be liable for damages by reason of
such re-entry or forfeiture; but notwithstanding re-entry by Landlord or
termination only of Tenant's right to possession of the Premises, the liability
of Tenant for the rent and all other sums provided herein shall not be
relinquished or extinguished for the balance of the Term of this Lease Agreement
and Landlord shall be entitled to periodically xxx Tenant for all sums due under
this Lease Agreement or which become due prior to judgment, but such suit shall
not bar subsequent suits for any further sums coming due thereafter. Tenant
shall be responsible for, in addition to the rentals and other sums agreed to be
paid hereunder, the cost of any necessary maintenance, repair, restoration,
reletting (including related cost of removal or modification of tenant
improvements) or cure as well as reasonable attorney's fees incurred or awarded
in any suit or action instituted by Landlord to enforce the provisions of this
Lease Agreement, regain possession of the Premises, or the collection of the
rentals due Landlord hereunder. Tenant shall also be liable to Landlord for the
payment of a late charge in the amount of 5% of the rental installment or other
sum due Landlord hereunder if said payment has not been received within ten (10)
days from the date said payment becomes due and payable, or cleared by
Landlord's bank within three (3) business days after deposit. Tenant agrees to
pay interest at the rate of 12% per annum, on all rentals and other sums due
Landlord hereunder not paid within ten (10) days from the date same become due
and payable. Each right or remedy of Landlord provided for in this Lease
Agreement shall be cumulative and shall be in addition to every other right or
remedy provided for in this Lease Agreement now or hereafter existing at law or
in equity or by statute or otherwise.
If the Tenant vacates the Premises for any reason, such vacation alone
shall not be deemed a default by Tenant under this Lease Agreement. However, in
the event Tenant shall vacate all of the Premises for a period of sixty (60)
consecutive days, Landlord shall have the right, but not the obligation, to
terminate this Lease Agreement by giving written notice to Tenant.
ARTICLE 21 - LANDLORD'S DEFAULT
Landlord shall not be deemed to be in default under this Lease
Agreement until Tenant has given Landlord written notice specifying the nature
of the default and Landlord does not cure such default within thirty (30) days
after receipt of such notice or within such reasonable time thereafter as may be
necessary to cure such default where such default is of such a character as to
reasonably require more than thirty (30) days to cure.
ARTICLE 22 - HOLDING OVER
Tenant will, at the expiration of this Lease Agreement, whether by
lapse of time or termination, give up immediate possession to Landlord. If
Tenant fails to give up possession the Landlord may, at its option, serve
written notice upon Tenant that such holdover constitutes either one of (i)
creation of a month-to-month tenancy or (ii) creation of a tenancy at
sufferance. If Landlord does not give said notice, Tenant's holdover shall
create a tenancy at sufferance. In any such event the tenancy shall be upon the
terms and conditions of this Lease Agreement, except that the Minimum Rental
shall be one hundred fifty percent (150%) of the Minimum Rental Tenant was
obligated to pay Landlord under this Lease Agreement immediately prior to
termination (in the case of tenancy at sufferance such Minimum Rental shall be
prorated on the basis of a 365 day year for each day Tenant remains in
possession); excepting further that in the case of a tenancy at sufferance, no
notices shall be required prior to commencement of any legal action to gain
repossession of the Premises. In the case of a tenancy at sufferance, Tenant
shall also pay to Landlord all damages sustained by Landlord resulting from
retention of possession by Tenant. The provisions of this paragraph shall not
constitute a waiver by Landlord of any right of re-entry as otherwise available
to Landlord; nor shall receipt of any rent or any other act in apparent
affirmance of the tenancy operate as a waiver of the right to terminate this
Lease Agreement for a breach by Tenant hereof.
ARTICLE 23 - SUBORDINATION
A. Tenant agrees that this Lease Agreement shall be subordinate to any
mortgage(s) that may now or hereafter be placed upon the Building or any part
thereof, and to any and all advances to be made thereunder, and to the interest
thereon, and all renewals, replacements, and extensions thereof, provided the
mortgagee named in such mortgage(s) shall agree to recognize this Lease
Agreement and Tenant in the event of foreclosure provided the Tenant is not in
default. In confirmation of such subordination, Tenant shall promptly execute
and deliver any instrument, in recordable form, as reasonably required by
Landlord's mortgagee. In the event of any mortgagee electing to have the Lease
Agreement a prior incumbrance to its mortgage, then and in such event upon such
mortgagee notifying Tenant to that effect, this Lease Agreement shall be deemed
prior in incumbrance to the said mortgage, whether this Lease Agreement is dated
prior to or subsequent to the date of said mortgage.
B. Tenant agrees that this Lease Agreement shall be subordinate to any
existing or future agreements with the City of Edina and/or the Housing and
Redevelopment Authority of Edina, Minnesota ("CITY AGREEMENTS") provided such
City Agreements bind the Land upon which the Building is or will be constructed
and the present and future owners of the Building. In confirmation of such
subordination, Tenant shall promptly execute and deliver any instrument, in
recordable form, as may be required in connection with such City Agreements.
Landlord represents to Tenant that the City Agreements do not conflict with the
terms and conditions of this Lease Agreement and Landlord is not in default
under the City Agreements.
ARTICLE 24 - INDEMNITY, INSURANCE AND SECURITY
A. Tenant will keep in force at its own expense for so long as this
Lease Agreement remains in effect public liability insurance with respect to the
Premises in which Landlord shall be named as an additional insured, in companies
and in form acceptable to Landlord with a minimum combined limit of liability of
Two Million Dollars ($2,000,000.00). This limit shall apply per location. Said
insurance shall also provide for contractual liability coverage by endorsement.
Tenant shall further provide for business interruption insurance to cover a
period of not less than six (6) months. Tenant will further deposit with
Landlord the policy or policies of such insurance or certificates thereof, or
other acceptable evidence that such insurance is in effect, which evidence shall
provide that Landlord shall be notified in writing thirty (30) days prior to
cancellation, material change, or failure to renew the insurance. Tenant further
covenants and agrees to indemnify and hold Landlord and Landlord's manager of
the Building harmless for any claim, loss or damage, including reasonable
attorney's fees, suffered by Landlord, Landlord's manager or Landlord's other
tenants caused by: i) any act or omission by Tenant, Tenant's employees or
anyone claiming through or by Tenant in, at, or around the Premises or the
Building; ii) the conduct or management of any work or thing whatsoever done by
Tenant in or about the Premises; or iii) Tenant's failure to comply with any and
all governmental laws, rules, ordinances or regulations applicable to the use of
the Premises and its occupancy. If Tenant shall not comply with its covenants
made in this Article 24, Landlord may, at its option, cause insurance as
aforesaid to be issued and in such event Tenant agrees to pay the premium for
such insurance promptly upon Landlord's demand.
B. Tenant shall be responsible for the security and safeguarding of the
Premises and all property kept, stored or maintained in the Premises. Landlord
will make available to Tenant, at Tenant's request, the plans and specifications
for construction of the Building and the Premises. Tenant represents that it is
satisfied that the construction of the Building and the Premises, including the
floors, walls, windows, doors and means of access thereto are suitable for the
particular needs of Tenant's business. Tenant further represents that it is
satisfied with the security of said Building and Premises for the protection of
any property which may be owned, held, stored or otherwise caused or permitted
by Tenant to be present upon the Premises. The placement and sufficiency of all
safes, vaults, cash or security drawers, cabinets or the like placed upon the
Premises by Tenant shall be at the sole responsibility and risk of Tenant.
Tenant shall maintain in force throughout the Term, insurance upon all contents
of the Premises, including that owned by others and Tenant's equipment and any
alterations, additions, fixtures, or improvements in the Premises acknowledged
by Landlord to be the Tenant's.
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C. Landlord 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 or otherwise in possession of Tenant. The cost of such insurance shall be
an Operating Expense.
ARTICLE 25 - NOTICES
All notices from Tenant to Landlord required or permitted by any
provisions of this Lease Agreement shall be directed to Landlord postage
prepaid, certified or registered mail, at the address provided for Landlord in
the preamble to this Lease Agreement or at such other address as Tenant shall be
advised to use by Landlord. All notices from Landlord to Tenant required or
permitted by any provision of this Lease Agreement shall be directed to Tenant,
postage prepaid, certified or registered mail, at the Premises and at the
address, if any, set forth on the signature page of this Lease Agreement.
Landlord and Tenant shall each have the right at any time and from time to time
to designate one (1) additional party to whom copies of any notice shall be
sent.
ARTICLE 26 - APPLICABLE LAW
This Lease Agreement shall be construed under the laws of the State of
Minnesota.
ARTICLE 27 - MECHANICS' LIEN
In the event any mechanic's lien shall at any time be filed against the
Premises or any part of the Building by reason of work, labor, services or
materials performed or furnished to Tenant or to anyone holding the Premises
through or under Tenant, Tenant shall forthwith cause the same to be discharged
of record. If Tenant shall fail to cause such lien forthwith to be discharged
within five (5) days after being notified of the filing thereof, then, in
addition to any other right or remedy of Landlord, Landlord may, but shall not
be obligated to, discharge the same by paying the amount claimed to be due, or
by bonding, and the amount so paid by Landlord and all costs and expenses,
including reasonable attorney's fees incurred by Landlord in procuring the
discharge of such lien, shall be due and payable in full by Tenant to Landlord
on demand.
ARTICLE 28 - SECURITY INTEREST
(INTENTIONALLY OMITTED)
ARTICLE 29 - BROKERAGE
Each of the parties represents and warrants that except as hereinafter
provided, there are no claims for brokerage commissions or finder's fees
(collectively, "LEASING COMMISSIONS") in connection with this Lease Agreement,
and agrees to indemnify the other against, and hold it harmless from all
liabilities arising from any such claim, including without limitation, the cost
of attorney's fees in connection therewith. Landlord agrees to pay any Leasing
Commission payable to Landlord's broker, United Properties Brokerage LLC on
account of this Lease Agreement. Landlord further agrees to pay a Leasing
Commission to Tenant's broker, CB Xxxxxxx Xxxxx in the total amount of $3.00 per
rentable square foot of Premises initially being leased by Tenant under Article
1 of this Lease Agreement, payable one half (1/2) upon full execution of this
Lease Agreement and one half (1/2) upon occupancy of the Premises by Tenant
following the Move-in Period.
ARTICLE 30 - SUBSTITUTION
(INTENTIONALLY OMITTED)
ARTICLE 31 - ESTOPPEL CERTIFICATES
A. Each party hereto agrees that at any time, and from time to time
during the Term of this Lease Agreement, within ten (10) days after request by
the other party hereto, it will execute, acknowledge and deliver to such other
party or to any prospective purchaser, assignee or mortgagee designated by such
other party, an estoppel certificate in a form acceptable to Landlord. Tenant
agrees to provide Landlord (but not more often than twice in any calendar year),
within ten (10) days of request, the then most current financial statements of
Tenant and any guarantors of this Lease Agreement, which shall be certified by
Tenant, and if available, shall be audited and certified by a certified public
accountant. Landlord shall keep such financial statements confidential, except
Landlord shall, in confidence, be entitled to disclose such financial statements
to existing or prospective mortgagees or purchasers of the Building.
B. Tenant acknowledges that the Building is in a tax increment
financing district, and pursuant to Minnesota Statutes ss.116J.991 an annual
report to the State is required regarding jobs and wages. Tenant agrees, within
60 days subsequent to each calendar year during the Term, to certify to the
Housing and Redevelopment Authority of Edina, Minnesota ("HRA"): i) the number
of employees employed at the Premises, ii) whether any such employees are new
and if so whether the new employee is replacing a former employee or is
increasing the employment at the Premises, iii) the hourly wages paid to such
employees (or if said employees are paid on a salaried basis, then the salary
range of such employee, but if over $40,000 then identifying said salary as
$40,000 plus), specifically including identifying the wages or salaries for any
such new employees. Such certification shall be on such form as may reasonably
be required by the HRA.
ARTICLE 32 - EXCULPATION
Tenant agrees to look solely to Landlord's interest in the Building for
the recovery of any judgment from Landlord, it being agreed that Landlord and
Landlord's partners, whether general or limited (if Landlord is a partnership)
or its directors, governors, officers, managers, members or shareholders (if
Landlord is a limited liability company or corporation), shall never be
personally liable for any such judgment.
ARTICLE 33 - SECURITY DEPOSIT
(INTENTIONALLY OMITTED)
ARTICLE 34 - EXPANSION RIGHTS
A. Landlord agrees that subject to the remaining provisions of this
Article 34, at Landlord's option, no less than 2,000 contiguous rentable square
feet and no more than 5,000 contiguous rentable square feet, of space on the
third (3rd) floor of the Building (for purposes of this Article 34, the "OPTION
SPACE") shall be leased by Landlord to no more than one third party tenant at
any one time, it being acknowledged and agreed by the parties that the size
(i.e., between 2,000 and 5,000 contiguous rentable square feet, at Landlord's
option) and location of the Option Space on the third (3rd) floor of the
Building may change from time to time as designated by Landlord.
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B. Landlord further agrees that during Landlord's initial leasing of
the then designated Option Space, if Landlord receives a bona fide expression of
interest from a third party to lease said Option Space on terms that would be
acceptable to Landlord, Landlord shall give written notice of such fact to
Tenant ("LANDLORD'S NOTICE"). Provided Tenant is not then in default under this
Lease Agreement beyond the passage of any applicable period of cure, grace or
notice and there would remain as of the 34 B. Commencement Date (as defined
below) at least (3) years in the initial Term or in the Extended Term of this
Lease Agreement if the Term of this Lease Agreement has been extended in
accordance with Article 35 below, Tenant shall then have a period of five (5)
days following Landlord's Notice to elect to lease all of the Option Space from
Landlord by giving written notice to Landlord, time being of the essence
("TENANT'S NOTICE"). If no such Tenant's Notice is timely given, Landlord shall
be free to lease the Option Space to any third party or parties, subject,
however, to the remaining provisions of this Article 34. If such Tenant's Notice
is timely given, such Option Space shall be leased by Tenant from Landlord
commencing (the "34 B. COMMENCEMENT DATE") no later than thirty (30) days
following the date such Option Space is available for the construction of Tenant
Improvements by Landlord, but in no event earlier than the commencement date for
the Premises being leased by Tenant under Article 1 above, and continuing for a
period co-terminous with the remainder of the initial Term or Extended Term of
this Lease Agreement, as applicable and otherwise on terms and conditions
identical to those set forth in this Lease Agreement, including the payment of
Minimum Rental at the rate(s) in effect from time to time during the remainder
of the initial Term or Extended Term of this Lease Agreement, as applicable;
provided, however, the T.I. Allowance to be furnished by Landlord for such
Option Space shall equal the product of (i) $0.2568 and (ii) the number of
months remaining in the initial Term or Extended Term of this Lease Agreement,
as applicable for which Minimum Rental will be payable by Tenant for such Option
Space.
C. Landlord further agrees that following the initial leasing of the
then designated Option Space by Landlord to a third party tenant, if such Option
Space again becomes Available For Lease (as defined below), Landlord shall give
written notice of such fact to Tenant ("LANDLORD'S 34 C. Notice"). Provided
Tenant is not then in default under this Lease Agreement beyond the passage of
any applicable period of cure, grace or notice and there would remain as of the
34 C. Commencement Date (as defined below) at least three (3) years in the
initial Term or in the Extended Term of this Lease Agreement if the Term of this
Lease Agreement has been extended in accordance with Article 35 below, Tenant
shall then have a period of five (5) days following Landlord's 34 C. Notice to
elect to lease all of the Option Space from Landlord by giving written notice to
Landlord, time being of the essence ("TENANT'S 34 C. NOTICE"). If no such
Tenant's 34 C. Notice is timely given, Landlord shall be free to lease all of
the Option Space to any third party or parties, subject, however, to the
remaining provisions of this Article 34. If such Tenant's 34 C. Notice is timely
given, such Option Space shall be leased by Tenant from Landlord commencing (the
"34 C. COMMENCEMENT DATE") immediately following vacancy of such Option Space by
the third party tenant occupying same and continuing for a period co-terminous
with the remainder of the initial Term or Extended Term of this Lease Agreement,
as applicable and otherwise on terms and conditions identical to those set forth
in this Lease Agreement, including the payment of Minimum Rental at the rate(s)
in effect from time to time during the remainder of the initial Term or Extended
Term of this Lease Agreement, as applicable, provided, however, the Option Space
shall be leased by Tenant in its then existing "as is" condition without any
obligation on the part of Landlord to make any improvements or modifications
thereto or pay any T.I. Allowance or other allowances therefor. As used herein,
Option Space shall be "AVAILABLE FOR LEASE" if such Option Space is not subject
to any existing lease (including provisions of said lease granting the tenant
thereunder the right to renew the term thereof); provided, however, Landlord may
make such Option Space "Available for Lease" as early as nine (9) months prior
to the expiration of said existing lease.
D. Notwithstanding anything in this Article 34 to the contrary, in the
event Tenant shall lease any Option Space from Landlord in accordance with the
provisions of either Article 34 B. or Article 34 C. above, Tenant shall have no
further rights under this Article 34 to lease Option Space from Landlord and
Article 34 A., Article 34 B. and Article 34 C. above shall become null and void
and of no further force or effect.
ARTICLE 35 - OPTION TO RENEW
Tenant shall have the right to extend the Term of this Lease Agreement
for one (1) period of five (5) years (the "EXTENDED TERM") subject to the
following terms and conditions:
(a) Subject to the right of Tenant to rescind the giving of the Renewal
Notice (as hereinafter defined) in accordance with the provisions of
subparagraph (d) below of this Article 35, Tenant shall give written
notice of its election to extend the Term no later than ten (10) months
prior to commencement of the Extended Term, time being of the essence
(the "RENEWAL NOTICE"). If no such Renewal Notice is timely given, this
Lease Agreement shall terminate at the end of the initial Term;
(b) Tenant shall not be in default under this Lease Agreement beyond
the passage of any applicable period of cure, grace or notice at the
time of giving the Renewal Notice or at any time thereafter to and
including the commencement of the Renewal Term;
(C) The extension of the Term hereunder shall be on the same terms and
conditions as are applicable to the initial Term; provided, however,
this Article 35 shall not apply to the Extended Term, (ii) the Premises
(including any Option Space leased pursuant to Article 34 above) shall
be leased by Tenant in their current "as is" condition and (iii) the
monthly Minimum Rental payable by Tenant to Landlord for the Premises
for the Extended Term shall be the Market Rent as determined pursuant
to subparagraph (d) of this Article 35; and
(d) Within thirty (30) days following receipt of Tenant's Renewal
Notice, Landlord will submit to Tenant Landlord's proposed Market Rent
for the Extended Term ("LANDLORD'S PROPOSED MARKET RENT NOTICE"). If
Tenant does not agree in writing with Landlord's proposed Market Rent,
the parties shall negotiate in good faith for a period of thirty (30)
days following Landlord's Proposed Market Rent Notice with a view to
reaching agreement as to the Market Rent for the Extended Term. In
connection therewith, each party shall submit to the other party such
evidence as it then has to substantiate its proposed Market Rent. If
the Market Rent is not resolved by the parties in writing within said
thirty (30) day period, Tenant shall have the option, but not the
obligation, to rescind the giving of the Renewal Notice by giving
written notice to Landlord no later than ten (10) days following the
expiration of said thirty (30) day period, time being of the essence
(the "RESCISSION NOTICE"), in which case the Lease Agreement shall
terminate as of the end of the initial Term. If no such Rescission
Notice is timely given by Tenant, the Renewal Notice shall remain in
full force and effect and the Minimum Rental payable during the
Extended Term shall be the Market Rent proposed by Landlord in
Landlord's Proposed Market Rent Notice.
ARTICLE 36 - HAZARDOUS MATERIALS
Tenant shall not cause or permit the release, discharge, or disposal
nor the presence, use, transportation, generation, or storage of any Hazardous
Materials (as hereafter defined) in, on, under, about, to, or from the Premises
by either Tenant, Tenant's employees, agents, contractors, or invitees
(collectively the "Tenant") other than the use of such materials in de minimum
quantities reasonably necessitated by the Tenant's regular business activities.
Tenant further agrees and covenants to Landlord, its agents, employees,
affiliates and shareholders (collectively the "Landlord") the following:
(a) To comply with all Environmental Laws in effect, or may come into
effect, applicable to the Tenant or Tenant's use and occupancy of the
Premises;
(b) To immediately notify Landlord, in writing, of any existing,
pending or threatened (i) investigation, inquiry, claim or action by
any governmental authority in connection with any Environmental Laws;
(ii) third party claims; (iii) regulatory actions; and/or (iv)
contamination of the Premises;
(c) Tenant shall, at Tenant's expense, investigate, monitor, remediate,
and/or clean up any Hazardous Material or other environmental condition
on, about, or under the Premises required as a result of Tenant's use
or occupancy of the Premises;
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(d) To keep the Premises free of any lien imposed pursuant to any
Environmental Laws arising out of, or related to Tenant's failure to
comply with any other provisions of this Article 36; and
(e) To indemnify, defend, and save Landlord harmless from and against
any and all claims (including personal injury, real, or personal
property damage), actions, judgments, damages, penalties, fines, costs,
liabilities, interest, or attorney's fees that arise, directly or
indirectly, from Tenant's violation of any Environmental Laws or the
presence of any Hazardous Materials on, under or about the Premises
arising out of, or related to Tenant's failure to comply with any other
provisions of this Article 36.
The Tenant's obligations, responsibilities, and liabilities under this
Article shall survive the expiration of this Lease Agreement.
For purposes of this Article the following definitions apply:
"Hazardous Materials" shall mean: (i) any "hazardous waste" and/or
"hazardous substance" defined pursuant to any Environmental Laws; (ii)
asbestos or any substance containing asbestos; (iii) polychlorinated
biphenyls; (iv) lead; (v) radon; (vi) pesticides; (vii) petroleum or
any other substance containing hydrocarbons; (viii) any substance
which, when on the Premises, is prohibited by any Environmental Laws;
and (ix) any other substance, materials, or waste which, (a) by any
Environmental Laws required special handling or notification of any
governmental authority in its collection, storage, treatment, or
disposal or (b) is defined or classified as hazardous, dangerous or
toxic pursuant to any legal requirement.
"Environmental Laws" shall mean: any and all federal, state and local laws,
statutes, codes, ordinances, regulations, rules or other requirements, relating
to human health or safety or to the environment, including, but not limited to,
those applicable to the storage, treatment, disposal, handling and release of
any Hazardous Materials, all as amended or modified from time to time.
ARTICLE 37 - GENERAL
This Lease Agreement does not create the relationship of principal and
agent or of partnership or of joint venture or of any association between
Landlord and Tenant, the sole relationship between Landlord and Tenant being
that of landlord and tenant. No waiver of any default of Tenant hereunder shall
be implied from any omission by Landlord to take any action on account of such
default if such default persists or is repeated, and no express waiver shall
affect any default other than the default specified in the express waiver and
that only for the time and to the extent therein stated. The covenants of Tenant
to pay the Minimum Rental and the Additional Rental are each independent of any
other covenant, condition, or provision contained in this Lease Agreement. The
marginal or topical headings of the several Articles, paragraphs and clauses are
for convenience only and do not define, limit or construe the contents of such
Articles, paragraphs or clauses. All preliminary negotiations are merged into
and incorporated in this Lease Agreement. This Lease Agreement can only be
modified or amended by an agreement in writing signed by the parties hereto. All
provisions hereof shall be binding upon the heirs, successors and assigns of
each party hereto. If any term or provision of this Lease Agreement shall to any
extent be held invalid or unenforceable, the remainder shall not be affected
thereby, and each other term and provision of this Lease Agreement shall be
valid and be enforced to the fullest extent permitted by law. If Tenant is a
corporation, each individual executing this Lease Agreement on behalf of said
corporation represents and warrants that he is duly authorized to execute and
deliver this Lease Agreement on behalf of said corporation in accordance with a
duly adopted resolution of the Board of Directors of said corporation or in
accordance with the Bylaws of said corporation, and that this Lease Agreement is
binding upon said corporation in accordance with its terms. No receipt or
acceptance by Landlord from Tenant of less than the monthly rent herein
stipulated shall be deemed to be other than a partial payment on account for any
due and unpaid stipulated rent; no endorsement or statement of any check or any
letter or other writing accompanying any check or payment of rent to Landlord
shall be deemed an accord and satisfaction, and Landlord may accept and
negotiate such check or payment without prejudice to Landlord's rights to (i)
recover the remaining balance of such unpaid rent or (ii) pursue any other
remedy provided in this Lease Agreement. Neither party shall record this Lease
Agreement or any memorandum thereof, and any such recordation shall be a breach
of this Lease Agreement void, and without effect. Time is of the essence with
respect to the due performance of the terms, covenants and conditions herein
contained. Submission of this instrument for examination does not constitute a
reservation of or option for the Premises, and this Lease Agreement shall become
effective only upon execution and delivery thereof by Landlord and Tenant.
IN WITNESS WHEREOF, this Lease Agreement has been duly executed by the parties
hereto as of the day and year indicated above.
TENANT: MIDWEST MEDICAL INSURANCE HOLDING COMPANY LANDLORD: CENTENNIAL LAKES IV, L.L.C., BY UNITED PROPERTIES
LLC, ITS MANAGER
By: [SIG] By: [SIG]
------------------------------------------ ---------------------------------------------
Its: President/CEO Its:
------------------------------- ---------------------------------------------
By: [SIG] By: [SIG]
----------------------------------------- ---------------------------------------------
Its: Vice President, Finance/CFO Its: Vice President
----------------------------- -------------------------------------------
Date: July 23,1999 Date: July 30, 1999
Address for Notices, if other than the Premises:
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SCHEDULE OF EXHIBITS
Exhibit A-1......... Graphic or description of the Fourth Floor Premises
Exhibit A-2......... Site Plan of Building
Exhibit B........... Shell Building definition
Exhibit C........... Operating Expense Exclusions
Exhibit D........... Janitorial Specifications
Exhibit E........... Current Rules and Regulations
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