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EXHIBIT 10(ii)
RIVERPLACE
OFFICE LEASE AGREEMENT
This Lease Agreement ("Lease") made this 30th day of May 2000, between
RIVERPLACE INC., a Minnesota corporation ("Lessor"), and PAGELAB NETWORK, INC.,
a Minnesota corporation ("Tenant");
WITNESSETH, THAT
1. Demised Premises. Lessor, subject to the terms and conditions
hereof, hereby leases to Tenant the premises ("Demised Premises") shown
crosshatched on the floor plan attached hereto as Exhibit A, comprising 2,078
square feet of net rentable area on the 5th floor, known as Suite 508, located
in the building known as Exposition Hall ("Building") at Riverplace,
Xxxxxxxxxxx, Xxxxxxxxx 00000, situated on the parcel or parcels of real property
("Land") described on Exhibit B attached hereto and identified thereon in
connection with the Building. The term "Building" shall include the structure
situated on the Land and all areas servicing the same, such as skyways, lobby
areas, access areas or other public areas, whether now or hereafter constructed.
2. Term. Tenant takes the Demised Premises from Lessor, upon the terms
and conditions herein contained, to have and to hold the same for a term ("Lease
Term") commencing on the lst day of June, 2000, and continuing thereafter to and
including the 31st day of May, 2003, unless sooner terminated as provided in
this Lease.
3. Base Rent. Tenant agrees to pay to Lessor during the Lease Term a
monthly base rent ("Base Rent") of One Thousand Seven Hundred Thirty-one and
67/100 Dollars ($1,731.67), payable to Lessor on or before the first day of each
month in advance, without deduction or setoff of any kind, and delivered to
Riverplace Inc., Xxx Xxxx Xxxxxx X. X., Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
or to such other place as may from time to time be designated by Lessor. In
addition to the above, Tenant shall pay to Lessor a service fee of five percent
(5%) of any Base Rent or additional rent payments which are not paid by the 5th
day of the month for which they are payable. Said service fee is a charge to
partially cover the expense involved in handling said delinquent payments.
4. Use. Tenant shall use the Demised Premises only as business offices
for Tenant's business of general office and shall not use the Demised Premises
for any other use or purpose without the prior written consent of Lessor. Tenant
will not commit or permit any act or omission which results in the violation of
any law, governmental regulation, or insurance policy of Lessor relating to the
Building or the Project, or which will increase Lessor's
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insurance rates on the Building or the Project. Tenant will not permit any
conduct or condition which may unduly disturb or endanger other occupants of the
Building or the Project.
5. Operating Costs. Tenant shall, for the entire Lease Term, pay to
Lessor as additional rent, without any setoff or deduction therefrom, its
Proportionate Share of any and all costs and expenses which Lessor or Lessor's
manager may incur because of or in connection with the Lessorship, maintenance,
management and operation of the Land and/or the Building ("Operating Costs").
"Proportionate Share" is defined as the portion of Operating Costs equivalent to
a fraction of the total thereof, the numerator of which is the number of net
rentable square feet comprising the Demised Premises and the denominator of
which is the greater of (i) the number of net rentable square feet actually
leased within the Building, or (ii) ninety-five percent (95%) of the number of
net rentable square feet contained within the Building. "Operating Costs" are
defined to include all expenses and costs (but not specific costs which are
separately billed to and paid by individual tenants) of every kind and nature
which Lessor or Lessor's manager shall pay or become obligated to pay because of
or in connection with the Lessorship, maintenance, management and operation of
the Land, the Building and supporting facilities of the Building, including but
not limited to all real estate taxes and annual installments of special or other
assessments payable with respect thereto, and all other taxes, service payments
in lieu of taxes, exercises, levies, fees, or charges, general and special,
ordinary and extraordinary, of any kind, which are assessed, levied, charged,
confirmed or imposed by any public authority upon the Land and/or the Building,
its operations or the rent provided for in this Lease; the cost of protesting
any such taxes; management fees; insurance premiums; utility costs; janitorial
costs; Building security costs; costs of wages and maintenance costs relating to
the Building (including but not limited to sidewalks, skyways, landscaping and
service areas); services; service contracts; equipment and supplies; and all
other costs of any nature whatsoever which for federal tax purposes may be
expensed rather than capitalized, but exclusive only of leasing commissions,
depreciation, costs of tenant improvements and payments of principal and
interest on any mortgages, deeds of trusts, or other security devices covering
the Building. Operating Costs shall also include the yearly amortized portion of
capital costs incurred by Lessor for improvements or structural repairs to the
Building required to comply with any change in the laws, rules or regulations of
any governmental authority having jurisdiction, or for purposes of reducing
Operating Costs, which costs shall be amortized over the useful life of such
improvements or repairs, as reasonably estimated by Lessor or by Lessor's
property manager.
As soon as reasonably practicable prior to the commencement of the
Lease Term and prior to the commencement of each ensuing calendar year during
the Lease Term, Lessor shall furnish to Tenant an estimate of Operating Costs
for the first calendar year included in whole or in part in the Lease Term and
each ensuing calendar year. Tenant shall pay, as additional rent hereunder,
together with each installment of Base Rent, one-twelfth (1/12th) of its
estimated annual Proportionate Share of Operating Costs. As soon as reasonably
practicable after the end of each calendar year included in whole or in part in
the Lease Term, Lessor shall
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furnish to Tenant a statement of the actual Operating Costs for the previous
calendar year, including Tenant's Proportionate Share of Operating Costs, and
within thirty (30) days thereafter Tenant shall pay to Lessor, or Lessor shall
credit to the next rent payments due Lessor from Tenant, as the case may be, any
difference between the actual Operating Costs payable by Tenant hereunder and
the estimated Operating Costs paid by Tenant. Tenant's Proportionate Share of
Operating Costs for the years in which this Lease commences and terminates shall
be prorated based upon the dates of commencement and termination of the Lease
Term. Notwithstanding any other provision herein to the contrary, it is agreed
that in the event that the Building is not fully occupied at any time during the
Lease Term, an adjustment shall be made in computing the Operating Costs for
such year so that the Operating Costs shall be computed for such year as though
the Building had been fully occupied during such year (including, for real
estate tax purposes, as if fully occupied and assessed as a completed Building
during such year).
Notwithstanding any provision herein that may be construed to the
contrary, Lessor shall have the right, in its reasonable discretion, to
determine, from time to time, the method of computing Operating Costs, the
allocation of Operating Costs to various types of space within the Building
and/or the Project, the extent of the appurtenances to the Building and/or the
Pro . ect, and the rentable area of the Demised Premises, the Building and the
Project, and Tenant shall be bound thereby.
6. Additional Taxes. Tenant shall pay as additional rent to Lessor,
together with each installment of Base Rent, the amount of any gross receipts
tax, sales tax or similar tax, excise, charge, levy, fee, assessment, and any
tax imposed in lieu of real property taxes (but excluding therefrom any income
tax), which is payable, or which will be payable, by Lessor by reason of the
receipt of the Base Rent and adjustments thereof, or by reason of renting any
part of the Project to Tenant or Tenant's occupancy of any part thereof. Tenant
shall pay any taxes or other charges by any governmental authority on Tenant's
property or trade fixtures in the Demised Premises or relating to Tenant's use
of the Demised Premises.
7. Obligations of Lessor. So long as Tenant shall perform each and
every covenant to be performed by Tenant hereunder, Lessor agrees that Tenant
shall quietly enjoy the Demised Premises in accord with the provisions hereof
and that Lessor shall:
A. Furnish heat and air conditioning daily from 8:00 A.M. to 5:00
P.M. (Saturdays, Sundays and holidays excepted), in accordance with any
applicable regulations and sufficient, in Lessor's sole judgment, for the
occupancy of the Demised Premises for ordinary office operations. If heat
generating machines or equipment are used in the Demised Premises which affect
the temperature otherwise maintained by the air conditioning system, Lessor, at
the request of Tenant, shall install supplementary air conditioning equipment in
the Demised Premises, if such installation is deemed practical in the sole
judgment of Lessor, and the cost of any such equipment, together with the cost
of installation, operation and maintenance
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thereof (including all utility costs incurred in connection therewith) shall be
paid by Tenant to Lessor as additional rent, together with each installment of
Base Rent, at such rates as are determined by Lessor. Any such equipment will be
owned by Lessor. In the event that Tenant requests, and that Lessor agrees, in
its sole discretion, to provide, heating or air conditioning beyond the hours
specified above or otherwise in excess of the heating and air conditioning
services that Lessor is required hereunder to furnish to Tenant or any other
Lessor service beyond that required hereunder, Tenant shall pay, within ten (10)
days following demand therefore, the entire cost of all such services at rates
reasonably determined by Lessor.
B. Provide passenger elevator service in common with others at all
times.
C. Provide such janitorial service in the Demised Premises
(Saturdays, Sundays and holidays excepted) and such maintenance of the common
areas of the Building as may be reasonably necessary, in Lessor's sole judgment,
in connection with the use of the Demised Premises for ordinary office purposes.
D. Keep the foundations, the four exterior walls, the roof,
downspouts and gutters of the Building in good repair, as determined by Lessor
in Lessor's sole judgment (ordinary wear and tear excepted); provided, however,
if the need for such repairs is directly or indirectly attributable to or
results from any activity being conducted within the Demised Premises, Tenant
agrees to reimburse Lessor for all costs and expenses incurred by Lessor with
respect to such repairs. Lessor's obligations hereunder shall be subject to the
provisions of Sections 9 and 10.
E. Provide water for drinking, lavatory and toilet purposes drawn
through fixtures installed by Lessor at such points of supply provided for
general use of other tenants in the Building.
F. Provide electricity to the Demised Premises for normal lighting
and small business office equipment (but not equipment using amounts of power
disproportionate to that used by other tenants in the Building). A service
charge will be assessed for electricity and any other utilities furnished for
heat generating machines, data processing equipment and similar types of
machines and equipment. Tenant shall use its best efforts to conserve
electricity.
G. Furnish Tenant with two (2) keys for each corridor door
entering the Demised Premises, and additional keys at a charge by Lessor on an
order signed by Tenant. All such keys shall remain the property of Lessor. No
additional locks shall be allowed on any door of the Demised Premises without
Lessor's written consent, and Tenant shall not make or permit to be made any
duplicate keys, except those furnished by Lessor. Upon termination of this
Lease, Tenant shall surrender to Lessor all keys to the Demised Premises, and
give to Lessor
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the combination of all locks for safes, safe cabinets and vault doors, if any,
in the Demised Premises.
H. Make and install, or cause to be made or installed, those leasehold
improvements, if any, expressly identified as obligations of Lessor in the plans
and specifications, terms and conditions set forth and identified on Exhibit C.
It is understood that Lessor does not warrant that any of the services and
utilities referred to above will be free from interruption from causes beyond
the reasonable control of Lessor. Interruption of service or utilities shall
never be deemed an eviction or disturbance of Tenant's use, possession or
enjoyment of the Demised Premises or any part thereof or render Lessor liable to
Tenant for damages by abatement of rent or otherwise, nor shall any such
interruption relieve Tenant from performance of Tenant's obligations under this
Lease.
8. Covenants of Tenant. Tenant agrees that it shall:
A. Promptly comply, at Tenant's expense, with all laws,
ordinances, rules, orders, regulations and other requirements of governmental
authorities now or hereafter pertaining to the Demised Premises, and observe the
rules and regulations set forth on Exhibit E attached hereto and such other
rules and regulations as may from time to time be adopted by Lessor, or Lessor's
managing agent, including, without initiation, rules and regulations regarding
standards for Building signage and graphics, use of the atrium and other areas
of the Project (as that term is defined in Section 34 hereof) and security
measures.
B. Give Lessor and Lessor's agents, contractors and mortgagees
access to the Demised Premises at any time during emergencies and at all
reasonable times, without charge or diminution of rent, to enable Lessor to
examine the same and to make such inspections, repairs, additions and
alterations as Lessor may be required to make hereunder or which Lessor, in
Lessor's sole judgment, deems necessary, and to enable Lessor to exhibit the
Demised Premises to prospective tenants, purchasers or others, and for such
other reasonable purposes as Lessor may deem necessary or desirable.
Notwithstanding such right of entry, Lessor will have no obligation to make
repairs, alterations or improvements except as expressly provided in this Lease.
C. At Tenant's expense, keep and maintain the Demised Premises and
the fixtures and equipment therein in good order, repair and condition (ordinary
wear and tear excepted), and replace all broken glass with glass of the same
quality, save only glass broken by fire and extended coverage risks, and commit
no waste on the Demised Premises.
D. At Tenant's expense, and with Lessor's prior written consent,
may install drapes or other window coverings to the inside of any blinds on any
outside windows (and if installed shall maintain them in an attractive and safe
condition); provided, however, in the sole
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discretion of Lessor, they are in harmony with the exterior and interior
appearance of the Building and create no safety or fire hazard.
E. Pay for all electric lamps and ballasts used in the Demised
Premises.
F. Upon the termination of this Lease in any manner whatsoever,
remove all property of Tenant and all property of any other person claiming
under Tenant, and quit and deliver up the Demised Premises to Lessor peaceably
and quietly in as good order and condition as the same are in at the
commencement of the Lease Term or thereafter were put in by Lessor or Tenant,
reasonable use and wear excepted. Any property not removed by Tenant at the
termination of this Lease, however terminated, shall automatically become the
property of Lessor, and Lessor may dispose of the same, as it deems expedient,
at Tenant's expense. Tenant shall be responsible, at Tenant's expense, for any
restoration of the Demised Premises needed by virtue of the removal of any such
property left in the Demised Premises, whether removed by Tenant or Lessor.
G. Not assign this Lease or sublet all or any part of the Demised
Premises voluntarily, involuntarily or by operation of law, without requesting
in writing and obtaining the prior written consent of Lessor thereto, which
consent may be withheld in the sole discretion of Lessor. In the event that
Tenant is a corporation or a partnership, transfer of effective control of
Tenant shall constitute an assignment under this Section 8(G). Upon each request
made by Tenant to Lessor for Lessor's consent hereunder, Tenant shall pay to
Lessor a processing fee not to exceed, in each instance, Five Hundred and 00/100
Dollars ($500.00), and Tenant shall also reimburse Lessor for all out-of-pocket
costs and expenses incurred by Lessor in connection with such request, including
but not limited to attorneys' fees.
If Tenant receives a bona fide offer for an assignment of Tenant's interest
under this Lease or to sublease all or part of the Demised Premises and submits
to Lessor the written request for Lessor's consent required hereunder, such
request shall be accompanied by a copy of the offer. In the case of a proposed
assignment or sublease of all of the Demised Premises, Lessor may, in Lessor's
sole discretion, elect to terminate this Lease, either conditioned on execution
of a new lease between Lessor and the party making the offer on the same terms
as the offer to Tenant or without that condition. In the case of a proposed
sublease for less than all of the Demised Premises, Lessor may, in Lessor's sole
discretion, elect to amend this Lease to exclude the portion of the Demised
Premises to be subleased, either conditioned on execution of a new lease between
L&ssor and the party making the offer on the same terms as in the offer to
Tenant or without that condition. If Lessor desires, in Lessor's sole
discretion, to terminate or amend this Lease pursuant to the terms of this
second paragraph of this Section 8(G), Lessor will so notify Tenant in writing
within twenty (20) days after receiving the written request for consent and a
copy of the offer to Tenant.
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The provisions of this Section 8(G) shall be binding on Tenant and any assignee
or subtenant of Tenant and shall apply to all portions of the Demised Premises
remaining subject to this Lease and to each request by Tenant, or its assignee
or subtenant, for Lessor's consent to a further or subsequent assignment or
subletting. Notwithstanding any permitted assignment or subletting, Tenant shall
at all times remain fully liable for all of the obligations of the tenant under
this Lease.
H. Not place signs on or about the Demised Premises, the Building
or the Project without first obtaining Lessor's written consent thereto.
I. Not overload, damage or deface the Demised Premises, the
Building or the Project or do any act which may make void or voidable any
insurance on the Demised Premises, the Building or the Project, or which may
render an increased or extra premium payable for insurance.
J. Not make any alterations, additions or improvements to the
Demised Premises without the prior written consent of the Lessor. All
alterations, additions or improvements (including carpeting or other floor
covering) which may be made by either of the parties hereto upon the Demised
Premises, except movable office furniture and equipment, shall be the property
of Lessor, and shall remain upon and be surrendered with the Demised Premises,
as a part thereof, at the termination of this Lease. All alterations by Tenant
shall be performed with new materials and in a good and workerlike manner, shall
comply with all applicable laws, ordinances, rules, orders, regulations and
other requirements of governmental authorities, shall be performed by a
contractor approved in writing in advance by Lessor, and shall be performed in
accordance with plans and specifications approved in writing in advance by
Lessor. Lessor's approval of any plans and specifications submitted to Lessor
for Tenant's alterations shall create no responsibility or liability whatsoever
on the part of Lessor with respect to the finished product, design or
construction, or with respect to the compliance thereof with applicable laws,
rules, regulations or other governmental requirements.
K. Keep the Demised Premises and the Project free from any
mechanics', materialmen's, contractors' or other liens arising from, or any
claims for damages growing out of, any work performed, materials furnished or
obligations incurred by or on behalf of Tenant. If any such lien shall at any
time be filed, Tenant shall cause the same to be released of record with fifteen
(15) days following notice thereof; provided, however, that Tenant may contest
the same in good faith, provided that within fifteen (15) days after the filing
thereof, Tenant shall have deposited with Lessor cash equal to one hundred and
fifty percent (150%) of the amount of the lien or such other security as Lessor
may deem appropriate to insure payment of such lien. Tenant shall indemnify and
hold harmless Lessor from and against any such lien, or claim or action thereon,
and reimburse Lessor promptly upon demand therefore by Lessor for costs of suit,
reasonable attorneys' fees and other costs and expenses incurred by Lessor in
connection with any such lien, claim or action. In the event that Tenant fails
to release of
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record any such lien, or to contest the same in accordance herewith, within the
aforesaid period, Lessor may remove said lien by paying the full amount thereof
or by bonding or in any other manner Lessor deems appropriate, without
investigating the validity thereof, and irrespective of the fact that Tenant may
contest the propriety or the amount thereof, and Tenant, upon demand, shall pay
Lessor the amount so paid out by Lessor in connection with the discharge of said
lien, together with reasonable expenses incurred in connection therewith,
including reasonable attorneys' fees. Nothing contained in this Lease shall be
construed as a consent on the part of Lessor to subject Lessor's estate in the
Demised Premises to any lien or liability under the lien laws of the State of
Minnesota.
L. Maintain at its expense at all times during the Lease Term (i)
a policy or policies of public liability insurance with respect to the Demised
Premises and the business of Tenant, with limits of not less than one million
dollars ($1,000,000) combined single limit; and (ii) a policy or policies of
fire and extended coverage insurance in broad form insuring against all risks
for all leasehold improvements, whether the cost for which was paid by Lessor or
Tenant, Tenant's trade fixtures and all other personal property of Tenant in the
Demised Premises for the full insurable value thereof. All such insurance
policies shall be placed with companies qualified to do business in the State of
Minnesota, provide for at least thirty (30) days prior written notice to Lessor
before cancellation or amendment, and name Lessor as an additional insured
thereon. Such policy or policies, or duly executed certificates evidencing the
same, shall be deposited with Lessor prior to the commencement of the Lease
Term, and renewals or replacements thereof shall be delivered to Lessor not less
than thirty (30) days prior to the expiration of the term of such coverage.
M. Not file or otherwise initiate or join any protest of real
estate taxes with respect to the Project or any part thereof.
Tenant's obligations under this Section 8 to do or not to do a specified act
shall extend to and include Tenant's obligation for all conduct of Tenant's
employees, agents and invitees.
9. Casualty Loss. In case of damage to or destruction of the Demised
Premises by fire or other casualty, Tenant will give prompt notice thereof to
Lessor. If the Demised Premises or the Project are damaged by fire or other
casualty, Lessor shall have the right to elect, in Lessor's sole judgment,
either (1) to terminate this Lease as hereinafter provided, or (2) to cause the
damage to be repaired with reasonable speed, at the expense of Lessor, subject
to delays which may arise by reason of adjustment of loss under insurance
policies and to delays beyond the reasonable control of Lessor; provided,
however, that Lessor shall have no obligation to restore, repair or replace any
property owned by Tenant and shall only be required to spend such funds as are
actually received by Lessor from insurance proceeds for those items the
obligation for which to insure was the Tenant's. To the extent that the Demised
Premises are rendered untenantable by any such casualty damage, the rent
hereunder shall proportionately xxxxx, except in the event such damage resulted
from or was contributed
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to by the act, fault or neglect of Tenant, Tenant's employees, invitees or
agents, in which event there shall be no abatement of rent. If the damage shall
be so extensive that Lessor shall decide not to repair or rebuild, this Lease
shall, at the option of Lessor, be terminated as of the date of such damage by
written notice from Lessor to Tenant, and the rent shall be adjusted to the date
of such damage and Tenant shall thereupon promptly vacate the Demised Premises.
10. Condemnation. If the entire Demised Premises are taken under power
of eminent domain (which shall include the exercise of any similar governmental
power or any purchase or other acquisition in lieu thereof), this Lease shall
automatically terminate as of the date of taking, which shall be the date Tenant
is required to yield possession thereof to the condemning authority. If a
portion of the Demised Premises is taken under power of eminent domain, Lessor
shall have the right to terminate this Lease as of the date of taking by giving
written notice thereof to Tenant on or before the date of taking. If Lessor does
not elect to terminate this Lease, it shall, at its expense, restore or cause to
be restored the Demised Premises, exclusive of any improvements or other changes
made therein by Tenant, to as near the condition which existed immediately prior
to the date of taking as reasonably possible, and to the extent that the Demised
Premises are rendered untenantable, the rent shall proportionately xxxxx. All
damages awarded for a taking under the power of eminent domain shall belong to
and be the exclusive property of Lessor, whether such damages be awarded as
compensation for diminution in value of the leasehold estate hereby created or
to the fee of the Demised Premises; provided, however, that Lessor shall not be
entitled to any separate award made to Tenant for the value and cost of removal
of its personal property and fixtures.
11. Possession. If Lessor is unable to tender possession of the Demised
Premises on the date specified in Section 2 above as the commencement date of
the Lease Term, Lessor shall not be liable for any damage caused thereby, nor
shall this Lease be void or voidable by Tenant, but in such event, the Lease
Term shall be for the same length of time specified in Section 2, but shall
commence upon the date that Lessor tenders possession of the Demised Premises to
Tenant; provided, however, that if the delay in the tender of possession results
from failure of Tenant to provide plans or from other actions or omissions by
Tenant, the commencement date of the Lease Term shall not be so delayed. In the
event that the commencement date of the Lease Term is delayed pursuant to the
terms of this Section 11, Lessor and Tenant shall, at the request of either
party, execute and deliver to the other an amendment to this Lease specifying
the commencement and expiration dates of the Lease Term. Occupancy of the
Demised Premises by Tenant will constitute Tenant's acceptance of the Demised
Premises. No representations as to the repair of the Demised Premises, and no
promises to alter, remodel or improve the Demised Premises, have been made by
Lessor, except to the extent expressly provided in this Lease.
12. Liability and Indemnity . Lessor shall not be responsible or liable
to Tenant for any loss or damage that may be occasioned by or through the acts
or omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connected with the
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Demised Premises or any part of the Project or any persons transacting any
business in the Project or present in the Project for any other purpose or for
any loss or damage resulting to Tenant, its property or the Demised Premises
from burst, stopping or leaking water, sewer, sprinkler or steam pipes or
plumbing fixtures or from any failure of or defect in any electric line, circuit
or facility. Tenant shall indemnify and hold Lessor xxxx-xxxxx from and against
all liabilities, damages, claims, costs, charges, judgments and expenses,
including, but not limited to, reasonable attorneys' fees, which may be imposed
upon or incurred or paid by or asserted against Lessor, the Demised Premises,
the Building or the Project, or any interest therein, by reason of or in
connection with any use, non-use, possession or operation of the Demised
Premises or any part thereof during the Lease Term, any act on the part of
Tenant or any of its agents, contractors, servants, employees, licensees or
invitees, any accident, injury, death, disability, illness or damage to any
person or property occurring in, on or about the Demised Premises or any part
thereof during the Lease Term, and any failure on the part of Tenant to perform
any of the terms or conditions of this Lease; provided, however, that nothing
contained in this paragraph shall be deemed to require Tenant to indemnify
Lessor with respect to any gross negligence or intentional misconduct committed
by Lessor. The obligations of Tenant under this Section 12 shall survive the
expiration or termination of this Lease.
13. Default. If: (a) Tenant fails to pay rent or any other sum to be
paid by Tenant under this Lease or under the terms of any other agreement
between Lessor and Tenant as and when the same becomes payable, or (b) Tenant
defaults in the full and prompt performance of any other obligation of Tenant
under this Lease and such default continues for twenty (20) days after written
notice to Tenant (or, if such default involves a hazardous condition, such
default is not cured by Tenant immediately upon written notice to Tenant), or
(c) the interest of Tenant in this Lease is levied on under execution or other
legal process, or (d) any petition is filed by or against Tenant to declare
Tenant a bankrupt or to delay, reduce or modify Tenant's debts or obligations,
or (e) any petition is filed or other action taken to reorganize or modify
Tenant's capital structure which affects creditor's rights, if Tenant be a
corporation or other entity, or (f) Tenant is declared insolvent according to
law or if any assignment of Tenant's property is made for the benefit of
creditors, or (g) a receiver or trustee is appointed for Tenant or its property,
or (h) Tenant abandons or vacates the Demised Premises during the term of this
Lease, or (i) Tenant defaults in the payment of rent twice in any twelve (12)
month period, then Lessor may treat the occurrence of any one or more of the
foregoing events as a breach of this Lease, and may, without notice or demand of
any kind to Tenant or any other person, have any one or more of the following
described remedies in addition to any and all other rights and remedies provided
at law or in equity:
A. Lessor may reenter and repossess the Demised Premises without
demand or notice of any kind to Tenant and without terminating this Lease, in
which event Lessor may, but shall be under no obligation to, relet the same for
the account of Tenant for such rent and upon such terms as Lessor shall elect in
its sole discretion. For the purpose of any such reletting, Lessor is authorized
in Lessor's sole discretion to make any repairs, changes,
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alterations, decorations, improvements, or additions in or to the Demised
Premises that Lessor may deem necessary or convenient. If Lessor shall fail or
refuse to relet the Demised Premises, or if the same are relet and the amount
realized from such reletting, less the Recoverable Costs (as that term is
hereinafter defined), is less than the total amount of rent, Operating Costs and
all other sums that would have become payable under this Lease for the balance
of the term hereof, then, at the election of Lessor, in Lessor's sole
discretion, either:
(i) Tenant shall pay to Lessor upon demand from time to time, as
damages, a sum equal to the amount of the rent and other sums
payable under this Lease for the full term of this Lease, without
acceleration (or, if the Demised Premises have been relet, Tenant
shall pay to Lessor upon demand from time to time the amount of
any such deficiency), together with the amount of any and all
other Recoverable Costs and other sums of money and damages owed
by Tenant to Lessor. Tenant agrees that Lessor may FILE suit to
recover any sums falling due under the terms of this Section
13(A)(i) from time to time, on one or more occasions, without
being obligated to wait until expiration of the term of this
Lease, and that no delivery or recovery of any portion of the sums
due Lessor, and no such reletting of all or any part of the
Demised Premises, shall be construed as an action on the part of
Lessor to terminate this Lease or waive any provision hereof
unless a written notice of termination or waiver is given to
Tenant by Lessor; or
(ii) Lessor may elect to accelerate payment of all amounts payable
under the Lease, which amounts shall become immediately due and
payable, together with the amount of any and all other Recoverable
Costs and other sums of money and damages owed by Tenant to
Lessor. If Lessor elects this remedy, the Base Rent will be
reduced to present worth using a discount factor equal to the
discount rate of the Federal Reserve Bank in Minneapolis,
Minnesota at the time of Lessor's election.
The term "Recoverable Costs," as used herein, shall mean the unpaid rent and
other sums due hereunder but unpaid at the time of any reletting, plus interest
thereon at the rate of eighteen percent (18%) per annum or the maximum rate
permitted by law, whichever is less; the costs and expenses of recovering
possession of the Demised Premises and enforcing the terms of this Lease
(including but not limited to reasonable attorneys' fees, costs and
disbursements); the costs and expenses of any and all repairs, changes,
alterations, improvements, decorations and additions performed by or at the
direction of Lessor in connection with any reletting of the Demised Premises;
all other costs and expenses incurred in connection with such reletting,
including but not limited to brokers' fees; and any and all other damages
sustained by Lessor as a result of Tenant's default. Notwithstanding any
reletting without termination, Lessor may at any time thereafter elect to
terminate this Lease for such previous breach.
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B. Terminate this Lease and forthwith repossess the Demised
Premises and remove all persons or property therefrom, and be entitled to
recover forthwith as damages a sum of money equal to the total of (i) the
Recoverable Costs; (ii) the balance of the rent and other sums that would have
become payable under this Lease for the remainder of the term hereof, less the
rental value of the Demised Premises for said period, as estimated by Lessor;
and (iii) any other sum of money and damages owed by Tenant to Lessor.
C. If Lessor reenters and repossesses the Demised Premises or if
this Lease is terminated, in addition to all other rights of Lessor, Tenant will
indemnify Lessor against all loss of rents and other damage which Lessor may
incur by reason of such reentry or termination, including, but not limited to,
costs of repairing the Demised Premises and putting the same in rentable
condition, costs of renting the Demised Premises to another tenant, loss or
diminution of rents and other damage which Lessor may incur by reason of such
termination or re-entry, and all reasonable attorneys' fees and expenses
incurred in connection therewith.
D. No right or remedy will preclude any other right or remedy, no
right or remedy will be exclusive of or dependent upon any other right or
remedy, and each right or remedy may be exercised independently or in
combination with any other.
14. Notices. All bills, statements, notices or communications which
Lessor may desire or be required to give to Tenant shall be deemed sufficiently
given or rendered if in writing and either delivered personally to the Demised
Premises or sent by registered or certified mail, return receipt requested,
addressed to Tenant at the Demised Premises, and the time of rendition thereof
or the giving of such notice or communication shall be deemed to be the time
when the same is personally delivered or deposited in the mail as herein
provided. Any notice by Tenant to Lessor must be served by registered or
certified mail, return receipt requested, addressed to Lessor at the address
where the last previous rental hereunder was payable, or in case of subsequent
change, upon notice given, to the latest address furnished.
15. Holding Over. Tenant covenants that it will vacate the Demised
Premises immediately upon the expiration or sooner termination of this Lease. If
Tenant retains possession of the Demised Premises or any part thereof after the
termination of the Lease Term, Tenant shall pay to Lessor rent ("Holdover Rent")
at a rate per month equal to two hundred percent (200%) of the monthly rate of
Base Rent in effect under this Lease immediately prior to such holding over,
plus two hundred percent (200%) of the estimated Proportionate Share of
Operating Costs payment payable under this Lease for the month immediately
preceding the commencement of such holding over, for the time that Tenant thus
remains in possession and, in addition thereto, shall pay Lessor for all
damages, consequential as well as direct, sustained by reason of Tenant's
retention of possession. The provisions of this Section shall not limit Lessor's
rights of re-entry or any other right hereunder, including without limitation,
the right to refuse Holdover Rent and instead to remove Tenant through summary
proceedings for holding over beyond the expiration of the Lease Term. The
acceptance of any rent after the end of the term shall not establish any tenancy
longer than month-to-month unless otherwise agreed to in writing by Lessor and
Tenant.
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16. Subordination. At the request of any mortgagee or ground lessor,
the rights of Tenant under this Lease shall be subject and subordinate to any
mortgage or ground lease that may now or hereafter encumber the Building or the
Project, and Tenant shall execute, acknowledge and deliver such instruments as
may be requested by Lessor to evidence such subordination. Such subordination is
on the condition that Tenant's right of possession of the Demised Premises
pursuant to the terms of this Lease will not be disturbed by the mortgagee or
ground lessor so long as Tenant is not in default under this Lease. If the
interest of Lessor is transferred to any party by reason of foreclosure of a
mortgage or cancellation of a ground lease, or by delivery of a deed in lieu of
foreclosure or cancellation, Tenant will immediately and automatically attorn to
such party. Tenant agrees that upon notification by Lessor or any mortgagee or
ground lessor of the election of a mortgagee or ground lessor to subordinate its
interest in the Demised Premises to this Lease, this Lease will become prior to
the mortgage or ground lease.
17. Estoppel Certificate. Tenant shall at any time and from time to
time, within ten (10) days after written request by Lessor, execute, acknowledge
and deliver to Lessor and any other parties designated by Lessor, a certificate
in such form as may from time to time be provided, ratifying this Lease and: (a)
stating that this Lease is in full force and effect and has not been assigned,
modified or amended in any way (or, if there has been any assignment,
modification or amendment, identifying the same); (b) stating the dates of
commencement and expiration of the Lease Term, the date to which the Base Rent
and additional rent payable hereunder have been paid in advance, if any; (c)
stating that there are, to Tenant's knowledge, no uncured defaults on the part
of Lessor or any defenses or offsets against the enforcement of this Lease by
Lessor (or specifying each default, defense or offset if any are claimed); and
(d) containing such other information as may reasonably be requested. Any such
statement may be furnished to and relied upon by any prospective purchaser,
lessee or encumbrancer of all or any portion of the Project.
18. Binding Effect. The word "Tenant", wherever used in the Lease,
shall be construed to mean tenants in all cases where there is more than one
tenant, and the necessary grammatical changes required to make the provisions
hereof apply to corporations, partnerships or individuals, men or women, shall
in all cases be assumed as though in each case fully expressed. Each provision
hereof shall extend to and shall, as the case may require, bind and inure to the
benefit of Lessor and Tenant and their respective heirs, legal representatives,
successors and assigns, provided that this Lease shall not inure to the benefit
of any assignee, heir, legal representative, transferee or successor of Tenant
except upon the express written consent or election of Lessor.
19. Transfer of Lessor's Interest. In the event of any transfer or
transfers of Lessor's interest in the Demised Premises, the Building or the
Project, other than a transfer for security purposes only, the transferor shall
be automatically relieved of any and all obligations and
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liabilities on the part of Lessor accruing from and after the date of such
transfer, including, without limitation, the obligation of Lessor under Section
27 hereof to return the security deposit as provided therein following
assignment or transfer thereof to such assignee of Lessor's interest.
20. Interest. Any amount due from Tenant to Lessor which is not paid
when due shall bear interest at the lesser of the highest legal rate or eighteen
percent (18%) per annum from the date due until paid; provided, however, the
payment of such interest shall not excuse or cure the default upon which such
interest accrued.
21. Expense of Enforcement. In the event that Lessor places the
enforcement of this Lease, or any part hereof, or the collection of any rent due
or to become due hereunder, or recovery of the possession of the Demised
Premises, or any other matter relating to or arising from this Lease or Tenant's
occupancy of the Demised Premises, in the hands of an attorney, or files suit
upon the same, then Tenant shall pay Lessor's reasonable attorneys' fees and
court costs if Lessor prevails in such action.
22. Access; Changes in Building Facilities; Name. All portions of the
Building and the Pro . ect except the inside surfaces of all walls, windows and
doors bounding the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or
other utilities, sinks or other Building or Project facilities, and the use
thereof, as well as access thereto through the Demised Premises for the purposes
of operation, maintenance, decoration and repair, are reserved to Lessor and
Lessor's agents and designees. Lessor reserves the right, at any time, without
incurring any liability to Tenant therefore, to make such changes in or to the
Building, the Project and the fixtures and equipment thereof, as well as in or
to the street entrances, halls, passages, concourse, elevators, escalators,
stairways and other improvements thereof, as it may deem necessary or desirable.
Lessor may adopt any name for the Building and/or the Project and Lessor
reserves the right to change the name and/or address of the Building and/or the
Project at any time.
23. Right of Lessor to Perform. If Tenant shall fail to pay any sum of
money, other than rent, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder, Lessor may, but
shall not be obligated so to do, and without waiving or releasing Tenant from
any obligations of Tenant, make such payment or perform any such other act on
Tenant's part to be made or performed hereunder. Tenant shall, promptly and upon
demand therefore by Ixssor, reimburse Lessor for all sums so paid by Lessor and
all necessary incidental costs, together with interest thereon at the rate
specified in Section 20 hereof from the date of such payment by Lessor, and
Lessor shall have the same rights and remedies in the event of the failure by
Tenant to pay such amounts as Lessor would have in the event of a default by
Tenant in the payment of rent.
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24. Brokers. Unless otherwise agreed in writing, if Tenant has dealt
with any person or real estate broker in respect to leasing or renting space in
the Building, excepting the exclusive leasing agent for the Building, Tenant
shall be solely responsible for the payment of any fee due said person or firm
and Tenant shall hold Lessor free and harmless from and against any liability in
respect thereto.
25. Lessor's Security Interest. Lessor reserves (and is hereby granted)
a security interest on all fixtures, equipment and personal property (tangible
and intangible) now or hereafter located in or on the Demised Premises to secure
all sums due from and all obligations to be performed by Tenant hereunder, which
lien and security interest may be enforced by Lessor in any manner provided by
law, including, without limitation, under and in accordance with the Uniform
Commercial Code as adopted in Minnesota. At Lessor's request, Tenant shall
execute and file, where appropriate, all documents required to perfect the
security interest herein granted.
26. Modifications for Lender. If, in connection with obtaining
financing for the Building, the Project or any property of which the Demised
Premises are a part, any lender shall request modifications in this Lease as a
condition to such financing, Tenant shall promptly execute any instrument
submitted to Tenant by Lessor containing such modifications; provided, however,
that such modifications do not increase the obligations of Tenant hereunder or
materially adversely affect the leasehold interest hereby created.
27. Security Deposit. Tenant has deposited with Lessor the sum of Six
Thousand Six Hundred and 00/100 Dollars ($6,600.00) as security for the full and
faithful performance of every provision of this Lease to be performed by Tenant.
If Tenant defaults with respect to any provision of this Lease, including,
without limitation, the provisions relating to the payment of rent, the repair
of damage to the Demised Premises and/or cleaning the Demised Premises upon
termination of this Lease, Lessor may use, apply or retain all or any part of
this security deposit for the payment of any rent or other sum in default and
any amounts which Lessor may spend or becomes obligated to spend by reason of
Tenant's default to the full extent permitted by law. If any portion of said
deposit is so used, applied or retained, Tenant shall, within ten (10) days
after written demand therefore, deposit cash with Lessor in an amount sufficient
to restore the security deposit to an amount equal to the Base Rent, plus the
monthly amount of estimated Operating Costs and other charges payable hereunder
by Tenant, multiplied by the number of months worth of Base Rent represented by
the initial security deposit, and Tenant's failure to do so shall be a material
default and breach of this Lease. Lessor shall not be required to keep any
security deposit separate from its general funds, and Tenant shall not be
entitled to interest on any such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the security
deposit or any balance thereof shall be returned to Tenant or to the last
assignee of Tenant's interest hereunder at the expiration of the Lease Term.
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28. Limitation of Liability. In the event that Lessor is ever adjudged
by any court to be liable to Tenant in damages, Tenant specifically agrees to
look solely to Lessor's interest in the Project for the recovery of any judgment
from Lessor; it being agreed that Lessor, or if Lessor is a partnership, its
partners whether general or limited, or if Lessor is a corporation, its
directors, officers, or shareholders, shall never be personally liable for any
such judgment. The provision contained in the foregoing sentence is not intended
to, and shall not, limit any right that Tenant might otherwise have to obtain
injunctive relief against Lessor or Lessor's successor in interest, or to
maintain any other action not involving the personal liability of Lessor (or if
Lessor is a corporation, any other action not requiring its directors, officers
or shareholders to respond in monetary damages from assets other than Lessor's
interest in the Project), or to maintain any suit or action in connection with
enforcement or collection of amounts which may become owing or payable under or
on account of insurance maintained by Lessor.
29. Substitute Premises. At any time after the execution of this Lease,
Lessor may substitute for the Demised Premises other premises in the Building
(the "New Premises"), in which event the New Premises shall be deemed to be the
Demised Premises for all purposes hereunder; provided, however, that:
A. The net rentable area of the Demised Premises is less than five
thousand (5,000) square feet;
B. The New Premises shall be similar in area and in
appropriateness for Tenant's purposes;
C. Any such substitution is effected for the purpose of
accommodating a tenant that will occupy a portion of the net rentable area of
the floor on which the Demised Premises are located; and
D. If Tenant is occupying the Demised Premises at the time of any
such substitution, Lessor shall pay the expense of moving Tenant, its property
and equipment to the New Premises, and the expenses of improving the New
Premises with improvements substantially similar to those located in the Demised
Premises.
30. Assumption of Risk. Tenant assumes all risk of loss or damage of
Tenant's property or leasehold improvements within the Demised Premises and the
Project, including any loss or damage caused by water leakage, fire, windstorm,
explosion, theft, act of any other tenant, or other cause. Lessor will not be
liable to Tenant, or its employees, for loss of or damage to any property in or
at the Demised Premises or the Project.
31. Additional Rent Amounts. Any amounts in addition to Base Rent
payable to Lessor by Tenant hereunder, including without limitation, amounts
payable pursuant to
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Sections 5, 6, 7A, 7D, 7F, 8E, 8K, 12, 13, 20, 21, 27 and Exhibit C and/or
Exhibit D hereof, shall be deemed additional rent due and payable upon demand.
32. Incorporation of Exhibits. The following exhibits to this Lease are
hereby incorporated by reference for all purposes as fully as if set forth at
length herein:
Exhibit A Floor Plan of Demised Premises
Exhibit B Legal Description of Real Property Constituting the
Land and the Project
Exhibit C Leasehold Improvement Schedule
Exhibit D Additional Terms and Conditions
Exhibit E Rules and Regulations
33. Force Majeure. All of the obligations of Lessor and of Tenant under
this Lease are subject to and shall be postponed for a period equal to any delay
or suspension resulting from fires, strikes, acts of God, and other causes
beyond the control of the party delayed on its performance hereunder, this Lease
remaining in all other respects in full force and effect and the Lease Term not
thereby extended; provided, however, that the unavailability of funds for
payment or performance of Tenant's obligations hereunder shall not give rise to
any postponement or delay in such payment or performance of Tenant's obligations
hereunder.
34. Project Definition. The term "Project", as used in this Lease,
means the premises legally described on Exhibit B and any and all buildings,
structures or improvements thereon from time to time and any skyways, tunnels,
concourses or connections attached to or serving said buildings, structures or
improvements, including without limitation any lands, buildings, structures,
skyways, tunnels, concourses or connections not owned by Lessor and any
additions, reductions, deletions, alterations, substitutions or improvements
made thereon or thereto from time to time.
35. General.
A. The submission of this Lease for examination does not
constitute the reservation of or an option for the Demised Premises, and this
Lease becomes effective only upon execution and delivery hereof by Lessor and
Tenant.
B. This Lease does not create the relationship of principal and
agent or of partnership, joint venture or any association between Lessor and
Tenant, the sole relationship between Lessor and Tenant being that of lessor and
lessee.
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C. No waiver of any default of Tenant hereunder shall be implied
from any omission by Lessor to take any action on account of such default. The
receipt by Lessor of any payment or partial payment hereunder with knowledge of
a default in any of the terms, provisions, covenants or conditions of this Lease
to be kept or performed by Tenant shall not be deemed a waiver of such default
or any other default. Lessor shall not be deemed to have waived any provision of
this Lease unless such waiver is expressly set forth in writing in a specific
notice of waiver given by Lessor to Tenant in accordance with the terms of
Section 14 above, 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.
D. No payment by Tenant or receipt by Lessor of a lesser amount
than the monthly rent and other charges herein reserved shall be deemed to be
other than on account of the earliest stipulated rent or other charges, and
acceptance of any partial payment shall not limit Lessor's rights under Section
13 above. No endorsement or statement on any check or on any letter accompanying
any check be deemed an accord and satisfaction or a modification of any of
Tenant's obligations under this Lease.
E. Each term and each provision of this Lease performable by
Tenant shall be construed to be both a covenant and condition.
F. The topical headings of the several sections and clauses herein
are for convenience only and do not define, limit or construe the contents of
such sections or clauses.
G. This Lease is the complete agreement between the parties
concerning the leasing of the Demised Premises. There are no oral agreements,
understandings, promises or representations between Lessor and Tenant affecting
this Lease. All negotiations, considerations, representations and understandings
between Lessor and Tenant are merged into and incorporated in this Lease. Tenant
has not been induced to enter this Lease by any representations or warranties
not expressly set forth herein.
H. Without limiting the generality of the foregoing Section 35(G),
Lessor has not made any representation, warranty or agreement that any retail
tenant, restaurant tenant or any other tenant will occupy or continue to occupy
the Project or any part thereof, or that the Project or any part thereof will be
used for any particular purpose.
I. This Lease can only be modified or amended by an agreement in
writing signed by the parties hereto. No surrender of the Demised Premises or of
the remainder of the Lease Term shall be valid unless accepted by Lessor in
writing in a specific notice of acceptance of surrender given by Lessor to
Tenant in accordance with the terms of Section 14 above.
J. All provisions hereof shall be binding upon the heirs,
successors and permitted assigns of each party hereto, except as otherwise
herein expressly provided and except that no
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person or entity holding under or through Tenant in violation of any provision
of this Lease will have any right or interest in this Lease or the Demised
Premises.
K. This Lease will be construed under and governed by the laws of
Minnesota.
L. If any provision of this Lease is illegal or unenforceable, it
will be severable and all other provisions will remain in force as though the
severable provision had never been included.
X. Xxxxxx shall in no event be considered to be in default of
Lessor's obligations under this Lease until the expiration of a reasonable
period of time following receipt by Lessor of written notice from Tenant
specifying such default and given in accordance with the terms of Section 14
above.
N. The parties hereby waive trial by jury in any action,
proceeding or counterclaim brought by either party against the other on any
matter arising out of or in any way connected with this Lease, the relationship
of Lessor and Tenant or Tenant's use and occupancy of the Demised Premises.
Tenant agrees that any action brought in connection with this Lease shall be
maintained in any court of competent jurisdiction in Hennepin County, Minnesota.
IN WITNESS WHEREOF, the respective parties hereto have caused this
Lease to be executed as of the day and year first above written.
LESSOR: TENANT:
RIVERPLACE INC. PAGELAB NETWORK, INC.
By By
Xxxxxx X. Xxxxx
Its: President & CEO Its: President & CEO
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