Exhibit 10.11
OFFICE LEASE
BY AND BETWEEN
WHPX-S REAL ESTATE LIMITED PARTNERSHIP,
AS LANDLORD,
AND
ADESSO SPECIALTY SERVICES ORGANIZATION, INC.
AS TENANT
DATED SEPTEMBER 25, 0000
XXXXXX XXXXX, XXXXXXXX, XXXXXXXXX
OFFICE LEASE
THIS OFFICE LEASE (the "Lease") is entered into as of September 25,
1997, between WHPX-S REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited
partnership ("Landlord"), and ADESSO SPECIALTY SERVICES ORGANIZATION, INC., a
California corporation ("Tenant").
FOR AND IN CONSIDERATION of the agreements contained in this Lease and
for other good and valuable consideration, the receipt and legal sufficiency of
which the parties hereby acknowledge, the parties agree as follows:
DATA SHEET
This data sheet provides a reference to the basic business terms of the
Lease. In the event of any inconsistency between the Data Sheet and the balance
of the Lease, the balance of the Lease shall control.
PREMISES: The premises ("PREMISES") consist of Suite No. 400 containing
approximately 12,662 rentable square feet as depicted on the
attached EXHIBIT A, on the 4th floor of the office building
located at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx 00000 (the
"BUILDING"). The Building, together with the other buildings
and other improvements owned by Landlord and located in the
complex known as Harbor Place Corporate Center are the
"COMPLEX." The terms "BUILDING" and "COMPLEX" include the
related land, driveways, parking facilities and similar
improvements. The land on which the Complex (as defined in
Section 3(b)(i)) is located is legally described on the
attached EXHIBIT B.
TERM: Subject to the provisions of Section 2, the initial term of
this Lease shall be 60 months, commencing on the "Commencement
Date", as that term is defined below in this Data Sheet, and
terminating at 5:00 p.m. on the day before the fifth
anniversary of the Commencement Date, unless earlier
terminated pursuant to the provisions of this Lease. Each
12-calendar month period commencing on the Commencement Date
or the anniversary of the Commencement Date shall be a "LEASE
YEAR".
EARLY ACCESS: Tenant shall be entitled to access to the Premises between
November 3, 1997 and the Commencement Date for the purposes of
installing telephones, computers and furniture, provided that:
(i) Tenant and its agents shall enter the Premises only during
such times as Landlord and its contractor have determined are
reasonably convenient; (ii) Tenant and its agents shall take
all reasonable measures to avoid disrupting the performance of
the "Work", as that term is defined in Exhibit D;
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(iii) Tenant shall be liable for any cost or damage incurred
by Landlord or its contractor caused by such early access by
Tenant or its agents, and (iv) Tenant's early access to the
Premises shall be subject to all terms and conditions of this
Lease, provided that Tenant shall not be obligated to pay Net
Rent or Operating Costs prior to the Commencement Date.
TENDER OF
POSSESSION: The date Landlord tenders possession of the Premises to Tenant
with the Work substantially completed shall be the
"COMMENCEMENT DATE". Landlord shall make all commercially
reasonable efforts to tender possession of the Premises to
Tenant with the Work substantially completed on or before
November 1, 1997, provided, however, that if the Premises are
not ready for occupancy by Tenant on November 1, 1997,
Landlord shall, on or before November 1, 1997, tender
possession to Tenant of temporary substitute space containing
up to approximately 1,390 rentable square feet in the Building
(the "TEMPORARY SPACE"), and Landlord shall tender possession
of the Premises to Tenant with the Work substantially
completed as soon thereafter as is commercially reasonable.
Tenant shall be entitled to occupy and use the Temporary Space
subject to all terms and conditions of this Lease until the
Commencement Date, except that Tenant shall not be obligated
to pay Net Rent or Operating Costs with respect to the
Temporary Space prior to the Commencement Date.
Notwithstanding the foregoing, if the Commencement Date has
not occurred on or before December 1, 1997 (the "OUTSIDE
DELIVERY DATE"), Tenant shall have the right to terminate this
Lease upon delivering to Landlord a written notice of
termination to Landlord within 5 business days after the
Outside Delivery Date. Upon Landlord's timely receipt of such
termination notice, neither party shall have any further
obligations or liabilities under this Lease, except that
Landlord shall promptly return to Tenant any sums deposited
with Landlord as the Security Deposit.
GUARANTOR'S No Guarantor.
NAME AND
ADDRESS:
NET RENT: Net rent ("NET RENT") net of all other sums owed under this
Lease shall be the following monthly amounts for the following
periods of time:
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MONTHLY
TIME PERIOD NET RENT
----------- --------
Lease Year 1 $ 10,287.88
Lease Year 2 $ 10,551.67
Lease Year 3 $ 10,815.46
Lease Year 4 $ 11,079.25
Lease Year 5 $ 11,343.04
OPERATING COSTS: Landlord's estimate of annual Operating Costs (defined in
Section 3) for calendar year 1997 is $5.35 per square foot.
PROPORTIONATE
SHARE: Subject to the provisions of Section 3(b), the rentable area
of the Complex is 135,448 square feet and the proportionate
share ("PROPORTIONATE SHARE") of the Premises is 9.35 percent.
SECURITY
DEPOSIT: The amount of the Security Deposit referred to in Section 4 is
$15,933.00.
TENANT'S
BROKER: Tenant's broker is CB Commercial.
EXHIBITS: The following exhibits, together with all schedules and other
attachments to the following exhibits, are hereby incorporated
into and made a part of this Lease:
Exhibit A - Outline of Premises
Exhibit B - Legal Description of Complex
Exhibit C - Rules and Regulations
Exhibit D - Tenant Finish Work
Exhibit E - Extension Option
Exhibit F - Right of First Offer
Exhibit G - Sign
LANDLORD'S
ADDRESS FOR
NOTICES: WHPX-S Real Estate Limited Partnership
c/o CB Commercial Real Estate
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000-0000
WITH A COPY TO: WHPX-S Real Estate Limited Partnership
c/o Archon Group, L.P.
000 Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
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Xxxxxx, XX 00000
Attention: Asset Manager
LANDLORD'S
ADDRESS FOR
RENT: WHPX-S Real Estate Limited Partnership
x/x Xxxxx Xxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
TENANT'S Prior to Commencement Date:
ADDRESS FOR Adesso Specialty Services Organization, Inc.
NOTICES: 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: President
Following Commencement Date:
Adesso Specialty Services Organization, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Vice President, Operations
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1. LEASE. Subject to the terms of this Lease, Landlord leases the
Premises to Tenant, and Tenant leases the Premises from Landlord.
2. TERM. The term of this Lease (the "TERM") shall be the initial term
referred to in the Data Sheet, together with any extension thereof pursuant to
an Exhibit referred to in this Data Sheet.
3. RENT
(a) NET RENT. Tenant shall pay Net Rent in the amounts specified in the
Data Sheet to Landlord in advance on or before the first day of each month at
the address for Rent specified in the Data Sheet, except that Tenant shall pay
the first monthly installment of Net Rent contemporaneously with the execution
of this Lease. If the Commencement Date is not the first day of a calendar
month, Net Rent for first and last calendar months of the Term shall be prorated
as of the Commencement Date, and Net Rent for the calendar months in which Lease
Year 2 and subsequent Lease Years commence shall be adjusted appropriately to
reflect the number of days in such calendar month which fall within the expiring
and the newly-commencing Lease Years.
(b) OPERATING COSTS.
(i) Landlord and Tenant hereby agree and stipulate that, for
all purposes related to this Lease, the Premises contain the rentable
square feet stated in the Data Sheet, the Complex, as of the date of
this Lease, contains the rentable square feet stated in the Data Sheet,
and the Proportionate Share of the Premises, as of the date of this
Lease, is the percentage stated in the Data Sheet. If the rentable area
of the Complex increases as a result of the construction of additional
space or decreases as a result of a permanent demolition, a destruction
by fire or casualty which Landlord elects not to restore, or a
permanent Taking (as defined in Section 12(a)), the Proportionate Share
shall change to equal the number of rentable square feet in the
Premises divided by the number of rentable square feet in the Complex
after such increase or decrease.
(ii) The term "OPERATING COSTS" shall mean all expenses and
disbursements that Landlord incurs in connection with the ownership,
operation, and maintenance of the Complex, determined in accordance
with generally accepted accounting principles ("GAAP") consistently
applied, including, but not limited to, the following costs: (A) wages
and salaries (including management fees) of all employees engaged in
the operation, maintenance, and security of the Complex, including
taxes, insurance and benefits relating thereto; (B) all supplies and
materials used in the operation, maintenance, repair, replacement, and
security of the Complex; (C) costs for improvements made to the Complex
which, although capital in nature, are reasonably expected to reduce
the normal operating costs of the Complex, but only to the extent of
such reduction, as determined by Landlord in its reasonable discretion,
as well as capital improvements made in order to comply with any law
hereafter promulgated by any
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governmental authority, as amortized over the useful economic life of
such improvements in accordance with GAAP; (D) cost of all utilities,
except the cost of utilities reimbursable to Landlord by tenants of the
Complex other than pursuant to a provision similar to this Section
3(b); (E) insurance expenses; (F) repairs, replacements, and general
maintenance of the Complex; (G) service or maintenance contracts with
independent contractors for the operation, maintenance, repair,
replacement, or security of the Complex (including, without limitation,
alarm service, window cleaning, and elevator maintenance) and (H) all
taxes, assessments, and governmental charges whether federal, state,
county or municipal, and whether they be by taxing districts or
authorities presently taxing or by others, subsequently created or
otherwise, and any other taxes and assessments attributable to the
Complex (or its operation), excluding, however, penalties and interest
thereon and federal and state taxes on income, together with any future
capital tax levied directly on the rents received from the Complex or a
franchise tax, assessment, or charge based, in whole or in part, upon
such rents for the Complex. Notwithstanding the foregoing, Operating
Costs shall not include costs for: (1) capital improvements made to the
Complex, other than capital improvements described in Section
3(b)(ii)(C); (2) repair, replacements and general maintenance paid by
proceeds of insurance or by Tenant other than pursuant to this Section
3 or other third parties; (3) interest, fees, amortization or other
payments on loans to Landlord; (4) depreciation; (5) leasing
commissions; (6) legal expenses for services, other than those that
benefit the Complex tenants generally (e.g., tax disputes); (7)
renovating or otherwise improving space for occupants of the Complex or
vacant space in the Complex; (8) federal income taxes imposed on or
measured by the income of Landlord from the operation of the Complex;
(9) attorney fees, costs, disbursements and other expenses incurred in
connection with negotiating or enforcing leases; (10) any service sold
to any tenant (including Tenant) or other occupant for which Landlord
is entitled to be reimbursed as an additional charge or rental over and
above the base rent or net rent and operating costs payable under the
lease with that tenant; (11) services or other benefits of a type that
are provided to another tenant of the Complex but which are not
provided in general to tenants of the Complex; (12) Landlord's
violation of any terms or conditions of this Lease or any other lease
relating to the Complex; (13) payments to Landlord's subsidiaries or
affiliates for management or other services on or to the building or
for supplies or other materials to the extent that the cost of such
management or other services, supplies or materials exceeds the cost
that would have been paid had the services, supplies or materials been
provided by unaffiliated parties in an arm's-length transaction; (14)
all rent and other sums payable under any ground or underlying lease of
the Complex, or any lease of any equipment which is incorporated into
or is a part of the Complex, except that Operating Costs shall include
the cost of leasing equipment on a temporary basis while permanent
equipment is being repaired, replaced or acquired; (15) any
compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord; (16) advertising and promotional
expenditures; (17) repairs and other work occasioned by fire, windstorm
or other casualty of an insurable nature; (18) any costs, fines or
penalties incurred due to violations by Landlord of any governmental
rule or authority, this Lease or any other lease in the Property, or
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due to Landlord's negligence or willful misconduct; (19) management
costs to the extent they exceed management costs generally paid by the
landlords of similar, professionally-managed facilities in the Twin
Cities metropolitan area; (20) wages, salaries or other compensation
paid to any executive employees above the grade of building manager;
(21) correcting any building code violations which were violations
prior to the Commencement Date; (22) the removal of substances (other
than substances introduced in the Complex by any Tenant party) from the
Complex (including the underlying land and groundwater) which are
located in the Complex on the date of this Lease and the presence of
which in the Complex may, on the date of this Lease, reasonably be
deemed hazardous to people using the Complex; and (24) the removal of
substances (other than substances introduced in the Complex by any
Tenant Party) from the Complex (including the underlying land and
groundwater), in excess of $5,000 per incident or occurrence with
respect to such substances which either (a) are not located in the
Complex on the date hereof, or (b) are not on the date of this Lease,
but which at any time in the future, may reasonably be deemed to be
hazardous to people using the Complex.
(iii) In addition to Net Rent, Tenant shall pay to Landlord
its Proportionate Share of Operating Costs. Landlord may collect such
amount in a lump sum, which shall be due within 30 days after Landlord
furnishes to Tenant a statement of Operating Costs for the previous
year, adjusted as provided below in Section 3(b)(iv) (the "OPERATING
COSTS STATEMENT"), which Landlord shall deliver to Tenant by April 1 of
each calendar year, or as soon thereafter as practicable.
Alternatively, Landlord may make an estimate of the Operating Costs to
be due by Tenant for any calendar year or part thereof during the Term,
and Tenant shall pay to Landlord, on the Commencement Date and on the
first day of each calendar month thereafter, an amount equal to the
estimated Operating Costs for such calendar year or part thereof
divided by the number of months therein. From time to time, but not
more than twice in one calendar year, Landlord may estimate and
re-estimate the Operating Costs to be due by Tenant and deliver a copy
of the estimate or re-estimate to Tenant. Thereafter, the monthly
installments of Operating Costs payable by Tenant shall be
appropriately adjusted in accordance with the estimations so that, by
the end of the calendar year in question, Tenant shall have paid all of
the Operating Costs as estimated by Landlord. Any amounts paid based on
such an estimate shall be subject to adjustment as provided in Section
3(b)(iv) when information concerning actual Operating Costs are
available for each calendar year. If the Operating Costs Statement
reveals that Tenant paid more for Operating Costs than the actual
amount for the year for which such statement was prepared, then
Landlord shall, at its option, promptly credit or reimburse Tenant for
such excess; likewise, if Tenant paid less than the actual Operating
Costs, then Tenant shall promptly pay Landlord such deficiency.
(iv) Tenant acknowledges that certain Operating Costs (for
example, janitorial services, trash removal and utility services) are
only or largely incurred with respect to space that is occupied, and
that it would be inappropriate to allocate a portion of such costs to
unoccupied space. Accordingly, with respect to any calendar year or
partial
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calendar year in which 5% or more of the rentable area the Complex is
not occupied, all Operating Costs for such period shall be increased to
the amount which would have been incurred had 95% of the rentable area
of the Complex been occupied, provided that at no time shall Tenant's
Proportionate Share of Operating Costs be increased pursuant to this
Section 3(c)(iv) to more than 95% of what it would be if the rentable
area of the Complex were fully occupied.
(v) Tenant shall have the right, at its sole expense, to
examine and audit Landlord's books and records of Operating Costs
during normal business hours within 90 days after receiving the
Operating Costs Statement. An Operating Costs Statement will be deemed
final and accepted by Tenant on the date 90 days after receipt by
Tenant, except with respect to such items as to which Tenant
specifically objects, on the basis of an audit report, in a written
notice delivered to Landlord prior to the expiration of such 90-day
period. Tenant shall promptly furnish to Landlord a copy of any audit
report resulting from any such examination of Landlord's books and
records of Operating Costs and, in any case, Tenant shall submit a copy
of any such audit report together with any objection submitted to
Landlord. If such audit report establishes that Tenant has paid less
than Tenant owed, Tenant shall pay the amount of such underpayment as
Rent within 30 days after completion of the audit. If such audit report
performed within 90 days after Tenant's receipt of the Operating Costs
Statement by a reputable Certified Public Accounting firm reasonably
satisfactory to Landlord (an "ACCEPTABLE CPA") establishes that Tenant
has paid more than Tenant owed, Landlord shall, within 30 days after
demand, pay the amount of the overcharge to Tenant and/or credit the
amount of the overcharge against any Rent due or overdue as of the end
of such 30 day period. If such audit report by an Acceptable CPA not
compensated on a contingent or commission basis establishes that Tenant
has overpaid by more than 5% in any one calendar year, Landlord shall
pay Tenant for the reasonable cost of such audit report, which cost
shall not exceed $1,500.
(c) RENT; INDEPENDENT OBLIGATIONS. All sums other than Net Rent and
Operating Costs owed by Tenant to Landlord pursuant to this Lease shall be
deemed and shall constitute, for all purposes, rent under this Lease;
collectively all such other sums owed by Tenant under this Lease together with
Net Rent and Operating Costs are "RENT." Any term or provision of this Lease to
the contrary notwithstanding, Tenant's covenant and obligation to pay Rent under
this Lease shall be independent from any obligations, warranties or
representations, express or implied, if any, of Landlord pursuant to this Lease,
and Tenant shall have no right of deduction or setoff whatsoever against Rent.
(d) DELINQUENT PAYMENT; HANDLING CHARGES. All past due payments
required of Tenant hereunder shall bear interest from the date due until paid at
the lesser of 18 percent per annum or the maximum lawful rate of interest and,
additionally, Landlord may charge Tenant a fee equal to five percent of the
delinquent payment to reimburse Landlord for its cost and inconvenience incurred
as a consequence of Tenant's delinquency and shall be paid immediately upon
Landlord's demand therefor. In no event, however, shall the charges permitted
under this
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Section 3(d) or elsewhere in this Lease, to the extent they are considered to be
interest under law, exceed the maximum lawful rate of interest.
4. SECURITY DEPOSIT. Contemporaneously with the execution of this
Lease, Tenant shall pay a security deposit (the "SECURITY DEPOSIT") to Landlord,
which Landlord shall hold to secure Tenant's performance of its obligations
under this Lease. The Security Deposit is not an advance payment of Rent nor a
measure or limit of Landlord's damages upon an Event of Default (defined in
Section 15). Landlord may, from time to time and without prejudice to any other
remedy, use all or a part of the Security Deposit to perform any obligation
Tenant fails to perform hereunder. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit to its original amount. Provided that
Tenant has performed all of its obligations hereunder, Landlord shall, within 30
days after the Term ends, return to Tenant the portion of the Security Deposit
which was not applied to satisfy Tenant's obligations. The Security Deposit may
be commingled with other funds, and no interest shall be paid thereon. If
Landlord transfers its interest in the Premises and the transferee assumes
Landlord's obligations under this Lease, and, in connection with such transfer
Landlord assigns the Security Deposit to the transferee, Landlord thereafter
shall have no further liability for the return of the Security Deposit.
5. LANDLORD'S OBLIGATIONS
(a) SERVICES. Landlord shall furnish to Tenant the following: (1) water
at those points of supply provided for general use of tenants of the Building;
(2) heated and refrigerated air conditioning as appropriate, at such
temperatures and in such amounts as are standard for comparable buildings in the
vicinity of the Complex; (3) janitorial service to the Premises on weekdays,
other than holidays, for Complex-standard installations and such window washing
as may from time to time be reasonably required and reasonably determined by
Landlord; (4) elevators for ingress and egress to the floor on which the
Premises are located, in common with other tenants, provided that Landlord may
reasonably limit the number of operating elevators during non-business hours and
holidays (provided that, except in the event of an emergency, at least one
elevator shall be operational, 24 hours per day, seven days per week); (5)
electrical current for equipment whose electrical energy consumption does not
exceed normal office usage; and (6) maintain the exteriors of the buildings in
the Complex, the outdoor common areas of the Complex, and the indoor common
areas in the Building in a neat and orderly condition. Landlord shall maintain
the common areas of the Complex in reasonably good order and condition, except
for damage caused by a Tenant Party (as defined in Section 23(s)). If Tenant
desires any of the services specified in this Section 5(a) at any time other
than (A) between 7:00 a.m. and 9:00 p.m. on weekdays, (B) 8:00 a.m. to 5:00 p.m.
on Saturday, or (C) on Sunday or holidays, then such services shall be supplied
to Tenant upon the written request of Tenant delivered to Landlord before 4:30
p.m. on the business day preceding such extra usage, and Tenant shall pay to
Landlord the actual cost without markup of such services within ten days after
Landlord has delivered to Tenant an invoice therefor. The costs incurred by
Landlord in providing after-hour heating, ventilating and air conditioning
("HVAC") service
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to Tenant shall include costs for electricity reasonably allocated by Landlord
to providing such service.
(b) EXCESS UTILITY USE. Landlord shall not be required to furnish
electrical current for equipment whose electrical energy consumption exceeds
normal office usage (for the purposes of this Lease, "NORMAL OFFICE USAGE" shall
include computers, printers and other similar equipment). If Tenant's
requirements for or consumption of electricity exceed the electricity to be
provided by Landlord as described in Section 5(a), Landlord shall, at Tenant's
expense, make reasonable efforts to supply such service through the
then-existing feeders and risers serving the Building and the Premises, and
Tenant shall pay to Landlord the cost of such service within ten days after
Landlord has delivered to Tenant an invoice therefor. Landlord may determine the
amount of such additional consumption and potential consumption by any
verifiable method, including installation of a separate meter in the Premises
installed, maintained, and read by Landlord, at Tenant's expense. The use of
electricity in the Premises shall not exceed the capacity of existing feeders
and risers to or wiring in the Premises. Any risers or wiring required to meet
Tenant's excess electrical requirements shall, upon Tenant's written request, be
installed by Landlord, at Tenant's cost, if, in Landlord's judgment, the same
are necessary and shall not cause permanent damage to the Building or the
Premises, cause or create a dangerous or hazardous condition, entail excessive
or unreasonable alterations, repairs, or expenses, or interfere with or disturb
other tenants of the Complex. If Tenant uses machines or equipment in the
Premises which materially and adversely affect the temperature otherwise
maintained by the air conditioning system or otherwise overload any utility,
Landlord may install supplemental air conditioning units or other supplemental
equipment in the Premises, and the cost thereof, including the cost of
installation, operation, use, and maintenance, shall be paid by Tenant to
Landlord within ten days after Landlord has delivered to Tenant an invoice
therefor.
(c) RESTORATION OF SERVICES; ABATEMENT. Tenant shall immediately notify
Landlord of any interruption or cessation of any service which this Lease
requires Landlord to provide. Landlord shall use reasonable efforts to restore
any such service that becomes unavailable; however, such unavailability shall
not render Landlord liable for any damages caused thereby, be a constructive
eviction of Tenant, constitute a breach of any implied warranty, or entitle
Tenant to any abatement of Tenant's obligations hereunder, including, without
limitation, payment of Rent, unless Tenant's ability to conduct business in the
Premises is substantially impaired thereby for a period of more than 30 days, in
which event Net Rent and Tenant's Proportionate Share of Operating Costs shall
equitably xxxxx in proportion to such substantial impairment from the end of
such 30-day period until such substantial impairment is cured.
(d) Landlord shall maintain the structural portions of the Building,
the common areas of the Building, and the common areas immediately surrounding
the Building which are commonly used for access to or in connection with the
Premises in good repair and condition.
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6. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE
(a) IMPROVEMENTS; ALTERATIONS. Except as expressly provided otherwise
in this Lease, improvements to the Premises shall be installed at Tenant's
expense only in accordance with plans and specifications which have been
previously submitted to and approved in writing by Landlord. No alterations or
physical additions in or to the Premises may be made without Landlord's prior
written consent, which shall not be unreasonably withheld or delayed; however,
Landlord may withhold its consent, in its sole discretion, to any alteration or
addition that would adversely affect the Complex's structure or its HVAC,
plumbing, electrical, or mechanical systems. Tenant shall not paint or install
lighting or decorations, signs, window or door lettering, or advertising media
of any type on or about the Premises without the prior written consent of
Landlord, which shall not be unreasonably withheld or delayed; however, Landlord
may withhold its consent to any such painting or installation which would, in
Landlord's sole opinion, affect the appearance of the exterior of the Complex or
of any common areas of the Complex. All alterations, additions, or improvements
made in or upon the Premises shall, at Landlord's option, either be removed by
Tenant prior to the end of the Term (and Tenant shall repair all damage caused
thereby), or shall remain on the Premises at the end of the Term without
compensation to Tenant. Notwithstanding anything to the contrary in this Section
6(a): (a) Tenant shall not be required to remove (i) any of the Work, or (ii)
any alterations or additions to which landlord has given its written consent,
unless Landlord's consent to such alterations or additions was conditioned upon
the removal of such items prior to the expiration or termination of this Lease;
and (b) Tenant shall be entitled to remove furniture, accessories, computers and
other equipment, mounting racks and plants placed in the Premises by Tenant. All
alterations, additions, and improvements shall be constructed, maintained, and
used by Tenant, at its risk and expense, in accordance with all Laws (as defined
in Section 23(s)); Landlord's approval of the plans and specifications therefor
shall not be a representation by Landlord that such alterations, additions, or
improvements comply with any Law or are fit for any use.
(b) REPAIRS; MAINTENANCE. Tenant shall maintain the Premises in a
clean, safe, and operable condition, and shall not permit, or allow to remain,
any waste or damage to any portion of the Premises. Tenant shall, subject to
Landlord's direction and supervision, repair or replace, at Tenant's sole cost,
all damage to the Complex caused by a Tenant Party. If Tenant fails to make such
repairs or replacements within 15 days after the occurrence of such damage, then
Landlord may make the same at Tenant's cost. If any such damage occurs outside
of the Premises, then Landlord may elect to repair such damage at Tenant's
expense, rather than having Tenant repair such damage. The reasonable cost of
all repair or replacement work performed by Landlord under this Section 6 shall
be paid by Tenant to Landlord within ten days after Landlord has invoiced Tenant
therefor.
(c) PERFORMANCE OF WORK. All work described in this Section 6 shall be
performed only by Landlord or by contractors and subcontractors approved in
writing by Landlord. Tenant shall cause all contractors and subcontractors to
procure and maintain insurance coverage naming Landlord as an additional insured
against such risks, in such amounts, and with such companies
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as Landlord may reasonably require. All such work shall be performed in
accordance with all Laws and in a good and workmanlike manner so as not to
damage any part of the Premises or the Complex.
(d) MECHANIC'S LIENS. Tenant agrees to promptly pay all sums of money
in respect of any labor, services, materials, supplies or equipment furnished or
alleged to have been furnished to Tenant or anyone holding the Premises or any
part thereof, through, or under Tenant in, at or about the Premises, or
furnished to Tenant's agents, employees, contractors or subcontractors, which
may be secured by any mechanic's, material supplier's or other type of lien
against any part of the Complex or the Landlord's interest therein (a "LIEN").
Tenant shall notify Landlord of the filing of any Lien within three days after
receiving notice of such filing. If Tenant fails, within 20 days after the date
of the filing of the Lien, to discharge such Lien or pursuant to Minn. Stat.
Section 514.10 deposit into court a sum determined by the court, Landlord may,
but shall not be required or expected to, remove such Lien in such manner as
Landlord may, in its sole discretion, determine, and the full cost thereof,
together with all Landlord's fees and costs, including attorney fees, shall be
due and payable by Tenant to Landlord immediately upon Tenant's receipt of
Landlord's notice therefor. Tenant acknowledges that Landlord may post notice on
the Premises of non-responsibility for such Liens and, in such event, Tenant
shall so advise all contractors, materialmen, suppliers and other persons
performing work or providing services and/or supplies to the Premises on behalf
of Tenant.
7. USE. Tenant shall use the Premises only for general office purposes
(the "PERMITTED USE") and shall comply with all applicable Laws. The Premises
shall not be used for any use which is disreputable, creates extraordinary fire
hazards, or results in an increased rate of insurance on the Complex or its
contents, or for the storage of any hazardous materials or substances. If,
because of a Tenant Party's acts, the rate of insurance on the Complex or its
contents increases, Tenant shall pay to Landlord the amount of such increase
within ten days after demand, provided however that acceptance of such payment
shall not waive any of Landlord's other rights. Tenant shall conduct its
business and control each Tenant Party in such a manner as not to create any
nuisance or unreasonably interfere with other tenants of the Complex or with
Landlord's management of the Complex.
8. ASSIGNMENT AND SUBLETTING.
(a) TRANSFERS. Tenant shall not do any of the following (each a
"TRANSFER") without the prior written consent of Landlord: (1) assign, transfer,
or encumber this Lease or any estate or interest herein, whether directly or by
operation of law, (2) permit any other entity to become Tenant hereunder by
merger, consolidation or other reorganization, (3) if Tenant is an entity other
than a corporation whose stock is publicly traded, permit the transfer of an
ownership interest in Tenant so as to result in a change in the current control
of Tenant, (4) sublet all or any portion of the Premises, (5) grant any license,
concession, or other right of occupancy of all or any portion of the Premises,
or (6) permit the use of the Premises by any parties other than Tenant. Tenant
may request Landlord's consent to a Transfer by delivering to Landlord a written
description of all terms and conditions of the proposed Transfer, copies of the
proposed
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documentation, and the following information about the proposed transferee: its
name and address; reasonably satisfactory information about its business and
business history; its proposed use of the Premises; banking, financial, and
other credit information; and general references sufficient to enable Landlord
to determine the proposed transferee's credit worthiness and character. Landlord
shall not unreasonably withhold its consent to any requested Transfer if the
proposed transferee (A) is creditworthy in accordance with Landlord's
then-current credit standards for prospective tenants of the Complex of the
proposed transferee's type and size, (B) has a good reputation in the business
community, (C) in Landlord's opinion does not compete with any tenant in the
Complex, and (D) is not another tenant of the Complex; otherwise, Landlord may
withhold its consent in its sole discretion. Notwithstanding the foregoing, the
Tenant named herein ("ADESSO") shall be entitled to assign the entirety of its
interest under this Lease to any entity which controls, is controlled by, or is
under common control with Adesso, or to any entity which results from a merger
of, reorganization of, or consolidation with Adesso ("PERMITTED NEW TENANT"),
without Landlord's consent upon delivering to Landlord an instrument executed by
such Permitted New Tenant by which such Permitted New Tenant unconditionally
assumes all liabilities and obligations of the Tenant under this Lease and
agrees to observe and be bound by all terms and provisions hereof. Landlord
shall have no right to terminate this Lease or to be paid any consideration in
connection with any Transfer to a Permitted New Tenant in accordance with the
terms of the foregoing sentence. Concurrently with each request for Landlord's
consent to a Transfer, Tenant shall pay to Landlord a fee of $500.00 to defray
Landlord's expenses in reviewing such request, and Tenant shall also reimburse
Landlord immediately upon request for Landlord's attorney fees incurred in
connection with considering any request for consent to a Transfer. If Landlord
consents to a proposed Transfer, the proposed transferee shall deliver to
Landlord a written agreement whereby it expressly assumes the Tenant's
obligations hereunder; however, any transferee of less than all of the space in
the Premises shall be liable only for obligations under this Lease that are
properly allocable to the space subject to the Transfer for the period of the
Transfer. No Transfer shall release Adesso from its obligations under this
Lease, but, rather, Adesso shall remain jointly and severally liable with any
transferee for the obligations and liabilities of the tenant under this Lease;
following any transfer, Adesso's liabilities and obligations hereunder shall
remain primary, rather than in the nature of a guarantee or surety. Landlord's
consent to any Transfer shall not waive Landlord's rights as to any subsequent
Transfers. If an Event of Default occurs while the Premises or any part thereof
are subject to a Transfer, then Landlord, in addition to its other remedies, may
collect directly from such transferee all rents becoming due to Tenant and apply
such rents against the Rent and falling due hereunder from time to time. Tenant
authorizes its transferees to make payments of rent directly to Landlord upon
receipt of notice from Landlord to do so. Tenant shall pay for the cost of any
demising walls or other improvements necessitated by a proposed subletting or
assignment.
(b) CANCELLATION. Landlord may, within 30 days after Tenant's delivery
to Landlord of a written request for Landlord's consent to a Transfer, cancel
this Lease as to any portion of the Premises proposed to be sublet, assigned or
otherwise transferred, as of the date the proposed Transfer is to be effective.
If Landlord cancels this Lease as to any portion of the Premises, this Lease
shall cease for such portion of the Premises and Tenant shall pay to
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Landlord all Rent accrued through the cancellation date relating to the portion
of the Premises covered by the proposed Transfer. Thereafter, Landlord may lease
such portion of the Premises to the prospective transferee (or to any other
person) without liability to Tenant.
(c) ADDITIONAL COMPENSATION; INCREASED RENT. Tenant shall immediately
notify Landlord of any compensation or consideration Tenant receives in
connection with any Transfer, except a Transfer to a Permitted New Tenant in
accordance with this Section 8 (regardless of whether Landlord has consented to
such Transfer), and shall pay to Landlord, immediately upon receipt thereof and
without demand therefor, the excess of all such compensation and consideration
received by Tenant less the costs reasonably incurred by Tenant payable to
unaffiliated third parties in connection with such Transfer, such as brokerage
commissions, tenant finish work, attorney fees and similar costs. Upon any
Transfer, except a Transfer to a Permitted New Tenant in accordance with this
Section 8, whether with or without Landlord's consent, the Rent under this Lease
shall automatically be increased by the excess of (1) all rent paid by or on
behalf of the transferee to or on behalf of Tenant with respect to any portion
of the Premises over (2) all Rent payable by Tenant under this Lease with
respect to such portion of the Premises, and Tenant shall pay all such increased
Rent to Landlord immediately upon receipt.
(d) ASSIGNMENT OF SUBRENTS. Tenant hereby irrevocably assigns to
Landlord all rents due or to become due from any assignee or transferee of or
sublessee under this Lease or any tenant or occupant of the Premises or any part
thereof, and authorizes and empowers Landlord in the name of Tenant or
otherwise, to collect and receive the same, provided that, so long as Tenant is
not in default under this Lease beyond the expiration of the applicable cure
periods, if any, provided herein, Tenant shall have the right to collect and
receive such rents for its own uses and purposes. Upon any default by Tenant
under this Lease, Landlord shall have absolute title to such rents and the
absolute right to collect and receive the same. Landlord shall apply to the Rent
due under this Lease the net amount (after deducting all costs and expenses of
collection, including, without limitation, attorney fees and expenses) of any
rents so collected and received by it.
9. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY
(a) INSURANCE. Tenant shall maintain throughout the Term the following
insurance policies: (1) commercial general liability insurance in amounts of
$1,000,000 per occurrence with $2,000,000 in the aggregate, or such other
amounts as Landlord may from time to time reasonably require, insuring Tenant
against all liability for injury to or death of a person or persons or damage to
property arising from the use and occupancy of the Premises, and naming Landlord
and any mortgagee or agent of Landlord as an additional insured thereunder, (2)
casualty insurance covering the full replacement value of Tenant's personal
property and improvements, and other property (including property of others) in
the Premises in the so-called "all risk" form, (3) contractual liability
insurance sufficient to cover Tenant's indemnity obligations hereunder, and (4)
worker's compensation insurance, containing a waiver of subrogation endorsement
acceptable to Landlord. Tenant's commercial general liability
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insurance shall be written on an "occurrence" as distinguished from a "claims
made" basis, and shall provide primary coverage to Landlord when any policy
issued to Landlord provides duplicate or similar coverage, and in such
circumstance Landlord's policy will be excess over Tenant's policy. On or before
the Commencement Date and from time to time upon request of Landlord, Tenant
shall furnish to Landlord certificates of such insurance and such other evidence
satisfactory to Landlord of the maintenance of all insurance coverages required
hereunder, and Tenant shall obtain a written obligation on the part of each
insurance company to notify Landlord at least 30 days before cancellation or a
material change of any such insurance policies. All such insurance policies
shall be in form, and issued by companies, reasonably satisfactory to Landlord.
(b) WAIVER OF NEGLIGENCE; NO SUBROGATION. Landlord and Tenant each
waives any claim it might have against the other for any damage to or theft,
destruction, loss, or loss of use of any property (a "LOSS"), to the extent the
same is insured against under any insurance policy that covers the Complex, the
Premises, Landlord's or Tenant's fixtures, personal property, leasehold
improvements, or business, or is required to be insured against under the terms
of this Lease, regardless of whether the negligence of the other party caused or
contributed to such loss; provided, however that Landlord's waiver shall not
include any deductible amounts on insurance policies carried by Landlord or to
any coinsurance penalty which Landlord may sustain. Each party shall cause its
insurance carrier to endorse all applicable policies waiving the carrier's
rights of recovery under subrogation or otherwise against the other party.
(c) TENANT'S INDEMNITY. Subject to Section 9(b), Tenant shall defend,
indemnify, and hold harmless Landlord and its representatives and agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including attorney fees and court costs
through all appellate levels) arising from (i) any Loss or injury to or death of
any person arising from any occurrence on the Premises or (ii) Tenant's failure
to perform its obligations under this Lease, even though caused or alleged to be
caused by the negligence or fault of Landlord or its agents (other than a Loss
or injury to or death of any person arising from the sole or gross negligence of
Landlord or its agents), and even though any such claim, cause of action, or
suit is based upon or alleged to be based upon the strict liability of Landlord
or its agents. This indemnity is intended to indemnify Landlord and its agents
against the consequences of their own negligence when Landlord or its agents are
jointly, comparatively, contributively, or concurrently negligent with Tenant.
This indemnity provision shall survive termination or expiration of this Lease.
If any proceeding is commenced for which indemnity is required hereunder, Tenant
agrees, upon request therefor, to defend the indemnified party in such
proceeding at its sole cost utilizing counsel satisfactory to the indemnified
party.
(d) LANDLORD'S INDEMNITY. Subject to Section 9(b), Landlord shall
defend, indemnify, and hold harmless Tenant and its representatives and agents
from and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including attorney fees and court costs
through all appellate levels) arising from (i) any Loss or injury to or death of
any person arising from any occurrence on the common areas of the Complex (but
not in any leaseable areas) or (ii) Landlord's failure to perform its
obligations
-15-
under this Lease, even though caused or alleged to be caused by the negligence
or fault of Tenant or its agents (other than a Loss or injury to or death of any
person arising from the sole or gross negligence of Tenant or its agents), and
even though any such claim, cause of action, or suit is based upon or alleged to
be based upon the strict liability of Tenant or its agents. This indemnity is
intended to indemnify Tenant and its agents against the consequences of their
own negligence when Tenant or its agents are jointly, comparatively,
contributively, or concurrently negligent with Landlord. This indemnity
provision shall survive termination or expiration of this Lease. If any
proceeding is commenced for which indemnity is required hereunder, Landlord
agrees, upon request therefor, to defend the indemnified party in such
proceeding at its sole cost utilizing counsel satisfactory to the indemnified
party.
10. SUBORDINATION; ATTORNMENT; NOTICE TO MORTGAGEE; CONSENT TO
RESTRICTIONS
(a) SUBORDINATION. Upon the full execution and delivery by Tenant and
Mortgagee of a subordination, non-disturbance and attornment agreement upon
commercially reasonable terms (an "SNDA"), this Lease shall be subordinate to
any deed of trust, mortgage, or other security instrument, or any ground lease,
master lease, or primary lease, that now or hereafter covers all or any part of
the Premises (each a "MORTGAGE"; the beneficiary, mortgagee or lessor under any
Mortgage is a "MORTGAGEE"). Tenant shall execute and deliver any such SNDA
promptly upon request. Any Mortgagee may elect, at any time, unilaterally, to
make this Lease superior to its Mortgage by so notifying Tenant in writing.
(b) ATTORNMENT. Tenant shall attorn to any party succeeding to
Landlord's interest in the Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of lease, or otherwise, upon
such party's request, and shall execute such agreements confirming such
attornment as such party may reasonably request.
(c) NOTICE TO MORTGAGEE. Tenant shall not seek to enforce any remedy it
may have for any default on the part of the Landlord hereunder without first
giving written notice by certified mail, return receipt requested, specifying
the default in reasonable detail, to any Mortgagee whose address has been given
to Tenant, and affording such Mortgagee a reasonable opportunity to perform
Landlord's obligations hereunder.
11. RULES AND REGULATIONS. Tenant shall comply with, and shall cause
all other Tenant Parties to comply with, the rules and regulations attached to,
and hereby incorporated into, the Lease as EXHIBIT C. Landlord may, from time to
time, change such rules and regulations, provided that such changes are
generally applicable to all tenants of the Complex and will not unreasonably
interfere with Tenant's use of the Premises.
12. CONDEMNATION
(a) TOTAL TAKING. If the entire Premises are taken by right of eminent
domain or conveyed in lieu thereof (a "TAKING"), this Lease shall terminate as
of the date of the Taking.
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(b) PARTIAL TAKING - TENANT'S RIGHTS. If any part of the Complex
becomes subject to a Taking and such Taking will prevent Tenant from conducting
its business in the Premises in a manner reasonably comparable to that conducted
immediately before such Taking for a period of more than 180 days, Tenant may
terminate this Lease as of the date of such Taking by giving written notice to
Landlord within 30 days after the Taking, and Rent shall be apportioned as of
the date of such Taking. If Tenant does not terminate this Lease, Rent shall be
abated on a reasonable basis as to that portion of the Premises rendered
untenantable by the Taking.
(c) PARTIAL TAKING - LANDLORD'S RIGHTS. If any material portion, but
less than all, of the Complex becomes subject to a Taking, or if Landlord is
required to pay any of the proceeds received for a Taking to a Mortgagee, then
Landlord may terminate this Lease by delivering written notice thereof to Tenant
within 30 days after such Taking, and Rent shall be apportioned as of the date
of such Taking. If Landlord does not so terminate this Lease, then this Lease
will continue, but if any portion of the Premises has been taken, Rent shall
xxxxx as provided in the last sentence of Section 12(b).
(d) AWARDS. Upon any such taking or purchase, Landlord shall be
entitled to receive and retain the entire award or consideration for the
affected lands and improvements, subject to the rights of the holder of any
Landlord's Mortgage, and Tenant shall not have nor advance any claims against
Landlord or the condemning authority for the value of its property or its
leasehold estate or the unexpired Term, or business interruption expense or any
other damages arising out of such taking or purchase; provided, the foregoing
shall not be construed to preclude Tenant from seeking and recovering on its own
account from the condemning authority any separate award or compensation
attributable solely to the taking or purchase of Tenant's chattels or trade
fixtures or attributable to Tenant's relocation expenses provided that any such
separate claim by Tenant shall not reduce or adversely affect the amount of
Landlord's award. If any such award made or compensation paid to either party
specifically includes an award or amount for the other, the party first
receiving the same shall promptly account therefor to the other.
13. FIRE OR OTHER CASUALTY
(a) REPAIR ESTIMATE. If the Premises or the common areas of the
Building are damaged by fire or other casualty (a "CASUALTY"), Landlord shall,
within 90 days after such Casualty, deliver to Tenant a good faith estimate (the
"DAMAGE NOTICE") of the time needed to repair the damage caused by such
Casualty, provided that if, within 15 days after such Casualty, Tenant delivers
to Landlord a written notice specifically notifying Landlord of the provisions
of this Section 13(a) and Section 13(b) (a "REMINDER NOTICE"), Landlord shall
deliver the Damage Notice to Tenant within 30 days after such Casualty.
(b) LANDLORD'S AND TENANT'S RIGHTS. If a material portion of the
Premises or the common areas of the Building is damaged by Casualty in a manner
that prevents Tenant from conducting its business in the Premises in a manner
reasonably comparable to that conducted immediately before such Casualty and
Landlord estimates that the damage caused thereby cannot
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be repaired within 270 days, or, in the event Tenant has timely delivered a
Reminder Notice, within 180 days, Tenant may terminate this Lease by delivering
written notice to Landlord of its election to terminate within 30 days after the
Damage Notice has been delivered to Tenant. If Tenant does not so timely
terminate this Lease, then (subject to Section 13(c)) Landlord shall repair the
damage referred to in the Damage Notice, as provided below, and Net Rent for any
portion of the Premises rendered untenantable by the damage shall be abated on a
reasonable basis from the date of damage until the completion of the repair,
unless Tenant caused such damage, in which case, Tenant shall continue to pay
Rent without abatement.
(c) LANDLORD'S RIGHTS. If a Casualty damages a material portion of the
Complex, and Landlord makes a reasonable determination that restoring the
Complex would be uneconomical, or if Landlord is required to pay any insurance
proceeds arising out of the Casualty to a Mortgagee, then Landlord may terminate
this Lease by giving written notice of its election to terminate within 30 days
after delivering the Damage Notice to Tenant, and Rent shall xxxxx as of the
date of the Casualty.
(d) REPAIR OBLIGATION. If neither party elects to terminate this Lease
following a Casualty, then Landlord shall, within a reasonable time after such
Casualty, begin to repair the Premises and the common areas of the Complex and
shall proceed with reasonable diligence to restore the Premises and the common
areas of the Complex to substantially the same condition as they existed
immediately before such Casualty; provided however, Landlord shall not be
required to repair or replace any of Tenant's personal property, including,
without limitation, furniture, equipment, fixtures, and other improvements which
may have been placed in the Premises by, or at the request of, Tenant and
Landlord's obligation to repair or restore the Premises or the common areas of
the Complex shall be limited to the extent of the insurance proceeds actually
received by Landlord for the Casualty in question.
(e) REMOVAL OF PERSONAL PROPERTY. In the event of any damage or
destruction to the Building or the Premises by any peril contemplated by this
Section 13, or in the event of termination as a consequence of condemnation as
contemplated in Section 12, Tenant shall, upon notice from Landlord, remove
forthwith, at its sole cost and expense, the property belonging to Tenant from
such portion of the Building as Landlord shall request.
14. TAXES. Tenant shall be liable for all taxes levied or assessed
against personal property, furniture, or fixtures placed by Tenant in the
Premises. If any taxes for which Tenant is liable are levied or assessed against
Landlord or Landlord's property and Landlord elects to pay the same, or if the
assessed value of Landlord's property is increased by inclusion of such personal
property, furniture or fixtures and Landlord elects to pay the taxes based on
such increase, Tenant shall pay to Landlord, upon demand, the part of such taxes
for which Tenant is primarily liable hereunder; however, Landlord shall not pay
such amount if Tenant notifies Landlord that it will contest the validity or
amount of such taxes before Landlord makes such payment, and thereafter
diligently proceeds with such contest in accordance with law and if the
non-payment thereof does not pose a threat of loss or seizure of the Complex or
interest of Landlord therein.
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15. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this Lease (individually, an "EVENT OF
DEFAULT" and collectively, "EVENTS OF DEFAULT"):
(a) RENT. Tenant shall fail to pay any installment of Rent when due,
and such failure shall continue for a period of five days from the date such
payment was due;
(b) VACATION. [Intentionally omitted.]
(c) LIENS. Tenant shall fail to comply with the requirements of Section
6(d);
(d) OTHER BREACH. Tenant shall fail to comply with any term, provision
or covenant of this Lease (other than the foregoing in this Section 15), and
shall not cure such failure within 30 days after notice; provided, in the event
such default cannot reasonably be cured within such 30 day period, an Event of
Default shall not be deemed to have occurred so long as Tenant commences an
effective cure within said 30 day period and prosecutes such cure diligently to
completion within a period not to exceed 60 days after such notice; or
(e) BANKRUPTCY/INSOLVENCY. Tenant shall file or have filed against it a
petition (the term "TENANT" shall include, for the purposes of this Section
15(e), any guarantor of the Tenant's obligations hereunder): (1) in any
bankruptcy or other insolvency proceeding; (2) seeking any relief under any
state or federal debtor relief law; (3) for the appointment of a liquidator or
receiver for all or substantially all of Tenant's property or for Tenant's
interest in this Lease; or (4) for the reorganization or modification of
Tenant's capital structure; however, if such a petition is filed against Tenant,
then such filing shall not be an Event of Default unless Tenant fails to have
the proceedings initiated by such petition dismissed within 60 days after the
filing thereof.
16. REMEDIES. Upon the occurrence of any Event of Default, Landlord
may, at its election, terminate this Lease through the delivery of written
notice to that effect to Tenant or terminate Tenant's right to possession only,
without terminating the Lease.
(a) RE-ENTRY WITHOUT TERMINATION. Upon any termination of Tenant's
right to possession of the Premises without termination of this Lease, Landlord
may, at Landlord's option, enter into the Premises, remove Tenant's signs and
other evidences of tenancy, and take and hold possession thereof without such
entry and possession terminating this Lease or releasing Tenant, in whole or in
part, from any obligation, including Tenant's obligation to pay Rent for the
full Term. Landlord may, but need not, relet the Premises or any part thereof
for such rent and upon such terms as Landlord, in its sole discretion, shall
determine (including the right to relet the Premises as part of a larger area
and the right to change the character or the use made of the Premises), and
Landlord shall not be required to accept any tenant offered by Tenant or to
observe any instructions given by Tenant about such reletting. In any such case,
Landlord may make repairs, alterations and additions in or to the Premises, and
redecorate the same to the extent Landlord deems necessary or desirable, in its
sole discretion. All rentals and other
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sums received by Landlord from any such reletting shall be applied as follows:
first, to the payment of any indebtedness other than Rent due hereunder from
Tenant to Landlord; second, to the payment of any costs and expenses of such
alterations and repairs; third, to the payment of Landlord's expenses of
reletting, including, without limitation, broker's commissions, attorney fees
and lease inducements, such as moving or leasehold improvement allowances;
fourth, to the payment of Rent; and the residue, if any, shall be held by
Landlord and applied in payment of future Rent as the same may become due and
payable hereunder. If such rentals and other sums received from such reletting
during any month be less than the Rent to be paid during said month by Tenant
hereunder, Tenant shall pay such deficiency to Landlord. Such deficiency shall
be calculated and paid monthly. Notwithstanding any such re-entry by Landlord,
Landlord may at any time hereafter elect to terminate this Lease for such
previous breach.
(b) DAMAGES IN THE EVENT OF TERMINATION. Landlord and Tenant agree that
the damages Landlord would incur in connection with terminating this Lease
following an Event of Default would be difficult to estimate or ascertain. In
the event Landlord terminates this Lease, Landlord may recover from Tenant, as
liquidated damages, an amount equal to the sum of the following: (i) all unpaid
Rent that is due and payable as of the effective date of termination; plus (ii)
a sum of money equal to the entire amount of Rent that would be payable under
the Lease for the lesser of the following two periods, which amount shall be
immediately due and payable upon demand but which shall be discounted to present
value using a discount rate equal to the discount rate of the Federal Reserve
Bank of Minneapolis as of the date of termination plus one percent: (A) the
one-year period commencing upon the effective date of termination, or (B) the
period commencing upon the effective date of termination and ending upon the
original date of the expiration of the Term. For purposes of calculating the
amount of Rent that would be payable under this Lease for the period succeeding
the effective date of termination, such Rent shall be computed on the basis of
the average monthly amount of Rent accruing during the 24-month period
immediately preceding the default to which such termination relates (exclusive
of any months in which Tenant received "free" or abated rent concessions);
provided, however, if the default occurs prior to the expiration of the first 24
months of the Lease, Rent shall be computed on the basis of the average monthly
amount of Rent accruing during all months preceding the month in which said
default occurred (exclusive of any months in which Tenant received "free" or
abated rent concessions). Landlord and Tenant agree that such sum is a
reasonable estimation of the damages Landlord would incur in connection with
terminating this Lease following an Event of Default, and agree that such sum is
not a penalty.
17. REMEDIES CUMULATIVE; NO WAIVER. Landlord's pursuit of any remedy
available to it under this Lease, at law or in equity shall not preclude its
pursuit of any other remedy available to it under this Lease, at law or in
equity, and all such remedies shall be cumulative. Landlord's acceptance of Rent
following an Event of Default shall not waive Landlord's rights regarding such
Event of Default. No waiver by Landlord of any violation or breach of any of the
terms contained herein shall waive Landlord's rights regarding any future
violation of such term, and no custom or practice which may evolve between the
Landlord and Tenant shall waive or diminish Landlord's right to insist upon
Tenant's performance in strict accordance with the terms of this Lease.
Landlord's acceptance of any partial payment of Rent shall not waive
-20-
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument delivered in
payment of Rent or any writing delivered in connection therewith; accordingly,
Landlord's acceptance of a partial payment of Rent shall not constitute an
accord and satisfaction of the full amount of the Rent that is due.
18. SECURITY INTEREST. [Intentionally omitted.]
19. SURRENDER OF PREMISES. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord. At the expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located therein in good repair
and condition, broom-clean, reasonable wear and tear (and condemnation and
Casualty damage not caused by Tenant, as to which Sections 12 and 13 shall
control) excepted, and shall deliver to Landlord all keys to the Premises.
Provided that Tenant has performed all of its obligations hereunder, Tenant may
remove all unattached trade fixtures, furniture, and personal property placed in
the Premises by Tenant, and shall remove such alterations, additions,
improvements, trade fixtures, personal property, equipment, wiring, and
furniture as Landlord may request. Notwithstanding anything in this Section 19
to the contrary: (a) Tenant shall not be required to remove (i) any of the Work,
or (ii) any alterations or additions to which Landlord has given its written
consent, unless Landlord's consent to such alterations or additions was
conditioned upon the removal of such items prior to the expiration or
termination of this Lease; and (b) Tenant shall be entitled to remove from the
Premises all furniture, accessories, computers and other equipment, mounting
racks, and plants installed or placed in the Premises by Tenant. Tenant shall
repair all damage caused by such removal. All items not so removed shall be
deemed to have been abandoned by Tenant and may be appropriated, sold, stored,
destroyed, or otherwise disposed of by Landlord without notice to Tenant and
without any obligation to account for such items. The provisions of this Section
19 shall survive the expiration or termination of this Lease.
20. HOLDING OVER. In the event Tenant remains in possession of the
Premises beyond the expiration of the Term, Tenant shall be deemed, at
Landlord's option without executing any document or receiving any notice from
Landlord, to be occupying the Premises as a month-to-month tenant at a monthly
Net Rent equal to the greater of (A) 150% of the monthly Net Rent payable with
respect to the last month of the Term, or (B) 125% of the prevailing rental rate
in the Complex for similar space, subject to all other terms and conditions of
this Lease, including the payment of Operating Costs and all other sums due
under this Lease.
21. CERTAIN RIGHTS RESERVED BY LANDLORD. Provided that the exercise of
such rights does not unreasonably interfere with Tenant's occupancy of the
Premises, Landlord shall have the following rights:
(a) To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements, whether structural or otherwise, in and
about the Complex, or any part thereof; to enter upon the Premises upon
reasonable advance notice (except that no advance notice shall
-21-
be required in the event of an emergency) and, during the continuance of any
such work, to temporarily close doors, entryways, public space, and corridors in
the Complex; to interrupt or temporarily suspend Complex services and
facilities; to change the name of the Complex; and to change the arrangement and
location of entrances or passageways, doors, and doorways, corridors, elevators,
stairs, restrooms, or other public parts of the Complex;
(b) To take such reasonable measures as Landlord deems advisable for
the security of the Complex and its occupants; evacuating the Building or the
Complex for cause, suspected cause, or for drill purposes; temporarily denying
access to the Complex; and closing the Building or the Complex after normal
business hours and on Sundays and holidays, subject, however, to Tenant's right
to enter when the Complex or the Building is closed after normal business hours
under such reasonable regulations as Landlord may prescribe from time to time;
(c) To enter the Premises at reasonable hours and upon reasonable
advance notice to show the Premises to prospective purchasers, lenders, or,
during the last 12 months of the Term, tenants; and
(d) At any time during the continuance of an Event of Default, to
market all or any part of the Premises to prospective tenants, including, but
not limited to, the right to enter the Premises at reasonable hours to show the
Premises to prospective tenants, provided that Landlord shall have no obligation
to relet the Premises and further provided that Landlord's exercise of its
rights under this Section shall not constitute or be deemed a termination of
this Lease or the acceptance of any vacation or attempted surrender of the
Premises by Tenant.
22. SUBSTITUTION SPACE. [Intentionally omitted.]
23. MISCELLANEOUS
(a) LANDLORD TRANSFER. Landlord may transfer all or any portion of the
Complex and any of its rights under this Lease, and upon such transfer will be
released, effective as of the date of such transfer, from any obligations or
liabilities arising or accruing under this Lease on or after the date of the
transfer.
(b) LIMITATION ON LANDLORD'S LIABILITY. Tenant agrees to look solely to
Landlord's interest in the Complex for the recovery of any damages for a breach
by Landlord of this Lease, and agrees that none of Landlord, its officers,
directors, shareholders, partners, employees or agents shall be personally
liable for any default by Landlord under this Lease or for any damages therefor
awarded to Tenant. The liability of Landlord to Tenant for any default by
Landlord under the terms of this Lease shall be limited to Tenant's actual
direct, but not consequential, damages therefor. The provisions of this Section
23(b) shall not limit any remedies which Tenant may have for Landlord's defaults
which do not involve the personal liability of Landlord.
(c) FORCE MAJEURE. Other than for Tenant's obligations under this Lease
that can be performed by the payment of money (e.g., payment of Rent and
maintenance of insurance),
-22-
whenever a period of time is herein prescribed for action to be taken by either
Landlord or Tenant, such party shall not be liable or responsible for, and there
shall be excluded from the computation of any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations, or restrictions, or any other causes of any kind
whatsoever which are beyond the control of such party.
(d) BROKERAGE. Except for the broker named in the Data Sheet, Tenant
warrants and represents that it has not dealt with any broker, agent or other
person in connection with the negotiation or execution of this Lease.
(e) ESTOPPEL CERTIFICATES. From time to time, Tenant shall furnish to
any party designated by Landlord, within ten days after Landlord has made a
request therefor, a certificate signed by Tenant confirming and containing such
factual certifications and representations as to this Lease as Landlord may
reasonably request. In connection with any Transfer to a Permitted New Tenant,
Landlord shall, upon Tenant's request, furnish to Tenant and such Permitted New
Tenant, a certificate signed by Landlord confirming and containing such factual
certifications and representations as to this Lease as Tenant and such
prospective Permitted New Tenant may reasonable request in connection with such
Transfer.
(f) NOTICES. Any notice required herein shall be in writing and
shall be deemed effective and received (a) upon personal delivery; (b) five
days after deposit in the United States mail, certified mail, return receipt
requested, postage prepaid; or (c) one business day after deposit with a
national overnight air courier, fees prepaid, to Landlord or Tenant at the
addresses specified in the Data Sheet. Either party may designate an
additional or another address upon giving notice to the other party pursuant
to this Section 23(f). For the purposes of this Lease, "BUSINESS DAY" shall
mean a day which is not a Saturday, a Sunday or a legal holiday of the United
States of America.
(g) SEPARABILITY. If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws, then the remainder of
this Lease shall not be affected thereby and in lieu of such clause or
provision, there shall be added as a part of this Lease a clause or provision as
similar in terms to such illegal, invalid, or unenforceable clause or provision
as may be possible and be legal, valid, and enforceable.
(h) AMENDMENTS; BINDING EFFECT. This Lease may not be amended except by
instrument in writing signed by Landlord and Tenant. This Lease shall inure to
the benefit of and be binding upon Landlord and Tenant, and upon their
respective successors in interest and legal representatives, except as otherwise
herein expressly provided. This Lease is for the sole benefit of Landlord and
Tenant, and, other than a Mortgagee, no third party shall be deemed a third
party beneficiary of this Lease.
(i) QUIET ENJOYMENT. Provided Tenant has performed all of its
obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without
-23-
hindrance from Landlord or any party claiming by, through, or under Landlord,
but not otherwise, subject to the terms and conditions of this Lease.
(j) NO MERGER. There shall be no merger of the leasehold estate hereby
created with the fee estate in the Premises or any part thereof if the same
person acquires or holds, directly or indirectly, this Lease or any interest in
this Lease and the fee estate in the leasehold Premises or any interest in such
fee estate.
(k) NO OFFER. The submission of this Lease to Tenant shall not be
construed as an offer, and Tenant shall not have any rights under this Lease
unless Landlord executes a copy of this Lease and delivers it to Tenant.
(l) ENTIRE AGREEMENT. This Lease constitutes the entire agreement
between Landlord and Tenant regarding the subject matter of this Lease and all
oral statements and prior writings relating thereto are hereby merged into and
superseded by this Lease.
(m) WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
LANDLORD AND TENANT EACH WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY LITIGATION
ARISING OUT OF OR WITH RESPECT TO THIS LEASE.
(n) GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the internal laws of the State of Minnesota, and the federal and
state courts of Minnesota shall have exclusive jurisdiction over all claims and
disputes relating to or arising in connection with this Lease.
(o) JOINT AND SEVERAL LIABILITY. If Tenant is comprised of more than
one party, each such party shall be jointly and severally liable for Tenant's
obligations under this Lease.
(p) FINANCIAL REPORTS. Within 15 days after Landlord's request, Tenant
will furnish Tenant's most recent audited financial statements (including any
notes to them) to Landlord, or, if no such audited statements have been
prepared, such other financial statements (and notes to them) as may have been
prepared by an independent certified public accountant or, failing those,
Tenant's internally prepared financial statements. Tenant will discuss its
financial statements with Landlord and will give Landlord access to Tenant's
books and records in order to enable Landlord to verify the financial
statements. Landlord will not disclose any aspect of Tenant's financial
statements that Tenant designates to Landlord as confidential except (a) to
Landlord's lenders or prospective purchasers of the project, (b) in litigation
between Landlord and Tenant, and (c) if required by court order.
(q) LANDLORD'S FEES. Whenever Tenant requests that Landlord take any
action or give any consent required or permitted under this Lease, Tenant will
reimburse Landlord for Landlord's reasonable costs incurred in reviewing the
proposed action or consent, including without limitation reasonable attorney,
engineer or architect fees, within ten days after Landlord's delivery to Tenant
of a statement of such costs, not to exceed $500. Tenant will be
-24-
obligated to make such reimbursement without regard to whether Landlord
consents to any such proposed action.
(r) TELECOMMUNICATIONS. Tenant and its telecommunications companies,
including but not limited to local exchange telecommunications companies and
alternative access vendor services companies shall have no right of access to
and within the Complex, for the installation and operation of telecommunications
systems including but not limited to voice, video, data, and any other
telecommunications services provided over wire, fiber optic, microwave,
wireless, and any other transmission systems, for part or all of Tenant's
telecommunications within the Complex and from the Complex to any other location
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed.
(s) GENERAL DEFINITIONS. The following terms shall have the following
meanings: "LAWS" means all federal, state and local laws, rules and regulations,
all court orders, all governmental directives and governmental orders, and all
restrictive covenants affecting the Complex, and "LAW" means any of the
foregoing; "AFFILIATE" means any person or entity which, directly or indirectly,
controls, is controlled by, or is under common control with the party in
question; "TENANT PARTY" shall include Tenant, any assignees claiming by,
through, or under Tenant, any subtenants claiming by, through, or under Tenant,
and any agents, contractors, employees and invitees of the foregoing parties;
and "INCLUDING" means including, without limitation.
(t) CONFIDENTIALITY. Landlord and Tenant each agree that the terms and
conditions of this Lease are to remain confidential for the benefit of the
other, and may not be disclosed to anyone, by any manner or means, directly or
indirectly, without the prior written consent of the other, except that each
party may disclose such terms and conditions to its employees, legal counsel,
and auditors, and to any party as required by law, and except that Landlord may
disclose such terms and conditions to any prospective purchaser or lender and
Tenant may disclose such terms and conditions to any prospective Permitted New
Tenant. The consent by the Landlord to any disclosures shall not be deemed to be
a waiver on the part of the Landlord of any prohibition against any future
disclosure.
(u) DISCLAIMER. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED
WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED USE, AND TENANT
AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS LEASE, LANDLORD HAS
MADE NO REPRESENTATION OR WARRANTY OF ANY KIND TO TENANT.
(v) LEGAL FEES. In the event of any litigation to enforce or interpret
the terms of this Lease, the prevailing party shall be entitled to an award of
its attorney fees and disbursements, through all appellate levels.
Notwithstanding the foregoing, if Landlord commences any action against Tenant
which action settles at or prior to any trial in connection therewith, Landlord
shall be entitled to recover from Tenant Landlord's attorney fees and
disbursements and the same shall be payable by Tenant to Landlord with the next
installment of Net Rent falling due.
-25-
(w) SECTIONS. All references in this Lease to a "SECTION" shall, unless
expressly stated otherwise, refer to such Section of this Lease.
THIS LEASE is dated as of the date first above written.
TENANT:
ADESSO SPECIALTY SERVICES ORGANIZATION, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Name: XXXXXX X. XXXXXX
--------------------------------------------
Title: VICE PRESIDENT OF OPERATIONS
-------------------------------------------
LANDLORD:
WHPX-S REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership
By: WHPX-S Gen-Par, Inc., a Delaware corporation,
general partner
By: /s/[ILLEGIBLE]
--------------------------------------
Its:
-------------------------------------
-26-
EXHIBIT A
OUTLINE OF PREMISES
[See Attached]
A-1
EXHIBIT B
LEGAL DESCRIPTION OF COMPLEX
That part of Xxx 0, Xxxxx 0, lying Northerly and Northwesterly of a
line described as commencing at the Northwest corner of Lot 6, said
Block 1; thence on an assumed bearing of South 0 degrees 44 minutes 45
seconds West along the West line of Lots 5 and 6 a distance of 355.00
feet to the point of beginning; then South 89 degrees 15 minutes 15
seconds East a distance of 444.00 feet; thence North 00 degrees 44
minutes 45 seconds East a distance of 21.00 feet; thence North 45
degrees 44 minutes 45 seconds East a distance of 157.50 feet to the
Southwesterly line of Harbor Lane and there ending;
Xxx 0, Xxxxx 0;
Xxx 0, Xxxxx 2; and
Xxx 0, Xxxxx 0, except that part lying Southerly of the following
described line: Beginning at a point in the East line of Lot 2, distant
156.52 feet North of the Southeast corner thereof; thence West at a
right angle to said East line 167.56 feet; thence Southerly deflecting
to the left 60 degrees 58 minutes 33 seconds a distance of 70.21 feet
to the Southwesterly line of said Lot 2 and there terminating,
All in Fox Xxxxxxx First Addition, Hennepin County, Minnesota
B-1
EXHIBIT C
RULES AND REGULATIONS
Tenant shall comply with, and shall cause all Tenant Parties to comply
with, the following rules and regulations:
1. No Tenant Party shall obstruct Common Areas or use Common Areas for
any purpose other than ingress and egress to and from the Premises and for going
from one to another part of the Complex.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Tenant shall pay for all damage
resulting to any such fixtures or appliances from misuse by any Tenant Party.
3. No signs, advertisements or notices shall be painted or affixed on
or to any windows or doors or other part of the Complex without the prior
written consent of Landlord. No nails, hooks or screws shall be driven or
inserted in any part of the Complex except by Complex maintenance personnel. No
curtains or other window treatments shall be placed between the glass and the
Complex standard window treatments.
4. Landlord shall provide and maintain an alphabetical directory for
all tenants in the main lobby of the Complex.
5. Landlord shall provide all door locks in the Premises, at Tenant's
cost, and no Tenant Party shall place any additional door locks in the Premises
without Landlord's prior written consent. Landlord shall furnish to Tenant a
reasonable number of keys to the Premises, at Tenant's cost, and no Tenant Party
shall make any duplicates thereof.
6. All Tenant Parties shall move furniture and/or office equipment, and
shall dispatch or receive of bulky material, merchandise or materials which
require use of elevators or stairways into or out of the Complex only under
Landlord's supervision, and only at such times and in such a manner as Landlord
may reasonably require. Tenant assumes all risks of and shall be liable for all
damage to articles moved and injury to persons or public engaged or not engaged
in such movement, including equipment, property and personnel of Landlord if
damaged or injured as a result of acts in connection with carrying out this
service for any Tenant Party.
7. Landlord may prescribe weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all cases
be placed in the Complex so as to
C-1
distribute weight in a manner acceptable to Landlord which may include the use
of such supporting devices as Landlord may require. All damage to the Complex
caused by the installation or removal of any property of any Tenant Party, or
done by any Tenant Party's property while in the Complex, shall be repaired at
the expense of Tenant.
8. Corridor doors, when not in use, shall be kept closed. Nothing shall
be swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals shall be brought into or kept in, on or about the Premises. No
portion of the Premises shall at any time be used or occupied as sleeping or
lodging quarters.
9. All Tenant Parties shall cooperate with Landlord's employees in
keeping the Premises neat and clean. No Tenant Party shall employ any person for
the purpose of such cleaning other than the Complex's cleaning and maintenance
personnel.
10. To ensure orderly operation of the Complex, no ice, mineral or
other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord, which approval shall not be unreasonably
withheld or delayed, and shall not be used as a means of obtaining economic
benefit for Landlord or any of its Affiliates.
11. No Tenant Party shall make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Complex or otherwise
interfere in any way with other tenants or persons having business with them.
12. No machinery of any kind (other than normal office equipment) shall
be operated by any Tenant Party in the Premises without Landlord's prior written
consent, nor shall any Tenant Party use or keep in the Complex any flammable or
explosive fluid or substance.
13. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from the Premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
14. No vending or dispensing machines of any kind may be maintained in
the Premises without the prior written permission of Landlord.
15. No Tenant Party shall conduct any activity on or about the Premises
or Complex which will draw pickets, demonstrators, or the like.
16. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a
C-2
"billboard" vehicle in the parking ramp. Any vehicle parked improperly may be
towed away. Any vehicle not operated or parked as required may be towed at the
expense of its owner or driver, or may be "booted" to immobilize it, and
Landlord may levy a charge of $50.00 on the owner or driver to remove the
"boot."
C-3
EXHIBIT D
TENANT FINISH WORK
1. Landlord shall, on or before the "Commencement Date", as that term
is defined in the Data Sheet, perform the Work depicted and/or described on
those certain Construction Plans prepared by WCL Interiors, Inc. dated September
17, 1997 and revised on September 24, 1997, bearing Project No. 1-9701.58 (the
"PLANS"), which Plans are attached hereto as Schedule 1 and hereby incorporated
herein. As used herein, "WORK" shall mean all improvements to be constructed in
accordance with and as indicated on the Plans. With the exception of the
performance of the Work, Tenant hereby agrees to accept the Premises in their
"As-Is" condition. Tenant agrees that, except for the Work, Landlord shall have
no obligation to perform any work in the Premises (including, without
limitation, demolition of any improvements existing therein or construction of
any tenant finish-work or other improvements therein), and shall not be
obligated to reimburse Tenant or provide an allowance for any costs related to
the demolition or construction of improvements therein. Landlord does not
represent or warrant that the Plans are adequate for any use, purpose, or
condition, or that they comply with any applicable law or code. All changes in
the Work must receive the prior written approval of Landlord, and in the event
of any such approved change, Tenant shall, upon completion of the Work, furnish
Landlord with an accurate, reproducible "as-built" plan (e.g., sepia) of the
improvements as constructed, which plan shall be incorporated into this Lease by
this reference for all purposes.
2. Each day by which the substantial completion of the Work is delayed
beyond November 1, 1997 because of (a) any change by Tenant to the Plans, (b)
any specification by Tenant of materials or installations in addition to or
other than Landlord's standard finish-out materials, or (c) any other action or
failure to act by Tenant, shall be a "TENANT DELAY DAY." Notwithstanding any
provision to the contrary in the Lease, (i) Tenant shall pay Net Rent and
Operating Costs under the Lease with respect to each Tenant Delay Day in
addition to all Rent accruing under the Lease after the Commencement Date, and
(ii) the Outside Delivery Date shall be extended by each Tenant Delay Date.
3. Landlord shall bear the entire cost of performing the Work depicted
on the Plans. Tenant shall bear the entire additional costs incurred by Landlord
in performing the Work because of an event specified in clauses (a), (b), or (c)
of Section 2 of this Exhibit. Tenant shall pay Landlord an amount equal to 50%
of the estimated additional costs of any change to the Plans at the time of such
change; Tenant shall pay to Landlord the remaining portion of additional costs
incurred in performing the Work because of an event specified in clauses (a),
(b), or (c) of Section 2 of this Exhibit upon substantial completion of the
Work.
4. Tenant's acceptance of possession of the Premises shall be deemed
conclusively to establish that the Premises have been completed in accordance
with the Plans and are in good
D-1
and satisfactory condition as of when possession was so taken, except for such
items of the Work, if any, as Landlord and Tenant agree in writing are to be
completed after the Commencement Date. At Landlord's request, Tenant shall
execute and deliver to Landlord a letter of acceptance of delivery of the
Premises and identification of the Commencement Date.
D-2
SCHEDULE 1
TO
EXHIBIT D
CONSTRUCTION PLANS
D-3
EXHIBIT G
SIGN
Only during such time as Tenant is occupying the entire fourth floor of
the Building, Tenant shall have the non-exclusive right to install a sign which
is visible from Harbor Lane (the "SIGN") on the exterior of the Building upon
the following conditions:
(i) the Sign shall consist solely of the name and logo of
Tenant, shall not be internally lighted and shall be on the southeast
side of the Building;
(ii) the letters in the Sign shall be consistent in style
with the letters in the Building address on the east side of the
Building;
(iii) the Sign shall not exceed 35 feet in length;
(iv) the color and materials of the Sign shall be subject to
Landlord's approval, which approval shall not be unreasonably withheld
or delayed;
(v) Tenant shall obtain and deliver to Landlord, prior to
installation, all governmental approvals required to be obtained prior
to the installation of the Sign;
(vi) the Sign shall conform with all applicable Laws,
including the requirements of the City of Plymouth;
(vii) Tenant shall, at its sole expense, install, maintain,
repair and replace the Sign so as to maintain the Sign in a neat and
presentable condition;
(viii) Tenant shall employ Landlord's Contractor, or such
other contractor as Landlord and Tenant may agree upon, for the
installation of the Sign;
(ix) Tenant shall make no changes to the Sign without
Landlord's prior written approval, which shall not be unreasonably
withheld; and
(x) Tenant shall, on or before the earlier of (a) the
expiration of the Term or earlier cancellation of this Lease, or (b)
such time as Tenant no longer occupies the entire fourth floor of the
Building, at Tenant's sole expense, remove the Sign and return the
portion of the wall on which the Sign was located to a condition as
good as its condition prior to the installation of the Sign.
G-1
EXHIBIT E
EXTENSION OPTION
Tenant shall, subject to the provisions of this Exhibit, be entitled to
extend the Term for one additional period of 36 months (the "EXTENDED TERM")
commencing immediately upon the expiration of the initial Term referred to in
the Data Sheet (the "INITIAL TERM"), by delivering written notice of its intent
to extend the Term (a "NOTICE TO EXTEND") to Landlord not later than 180 days
before the expiration of the Initial Term. Tenant shall have no further
extension options unless expressly granted by Landlord in writing. On or before
the commencement date of the Extended Term, Landlord and Tenant shall execute an
amendment to the Lease extending the Term on the same terms provided in the
Lease, except as follows:
1. PREVAILING RENTAL RATE. The Net Rent payable for each month during
the Extended Term shall be the prevailing rental rate at the commencement of the
Extended Term for space of equivalent quality, size, utility and location, with
the length of the Extended Term, the use of the Premises, and the credit
standing of Tenant to be taken into account. Within ten days after receiving a
Notice to Extend, Landlord shall deliver written notice to Tenant of its
determination of the applicable prevailing rental rate and the adjustment to Net
Rent required to reflect such prevailing rental rate. If Tenant disagrees with
Landlord's determination of the prevailing rental rate and the adjustment to Net
Rent, Tenant may, but only within ten days after receiving Landlord's notice,
withdraw its Notice to Extend by delivering a written notice of such withdrawal
to Landlord.
2. PREMISES AS-IS. Tenant hereby agrees to accept the Premises in
their "As-Is" condition on the commencement of the Extended Term and agrees that
Landlord shall have no obligation to perform any work in the Premises, including
no obligation to demolish any improvements or construct of any tenant
finish-work or other improvements in the Premises, shall have no obligation to
reimburse Tenant or provide Tenant an allowance for any costs related to
demolishing or constructing improvements in the Premises, and shall have no
obligation to provide any other form of inducement to Tenant in connection with
Tenant's extension of the Lease pursuant to this Exhibit.
3. LIMITATION ON TENANT'S RIGHTS. All of Tenant's rights under this
Exhibit shall immediately terminate and be of no further force or effect upon
the occurrence of any one or more of the following:
a. Any Event of Default shall exist at the time Tenant
delivers a Notice to Extend or at the expiration of the Initial Term;
b. Tenant assigns any of its interest in this Lease (except to
a Permitted New Tenant in accordance with the terms of the Lease) or
sublets any portion of the Premises;
E-1
c. Tenant fails to timely exercise its right to extend under
this Exhibit, time being of the essence with respect to Tenant's
exercise of such right; or
d. Tenant withdraws the Notice to Extend.
E-2
EXHIBIT F
RIGHT OF FIRST OFFER
Subject to all extension or expansion options of other tenants existing
as of the date of this Lease, and provided no Event of Default then exists,
Landlord shall, prior to offering the same to others, first offer to lease to
Tenant any space on the third floor of the Building which hereafter becomes
available for leasing (the "OFFER SPACE") in its then-"AS-IS" condition; such
offer shall be in writing and specify the rent to be paid for the Offer Space
and the date on which the Offer Space shall be included in the Premises (the
"OFFER NOTICE"). Tenant shall notify Landlord in writing whether Tenant elects
to lease all but not less than all of the entire Offer Space at the rental rate
set forth in the Offer Notice, within ten days after the effective date of the
Offer Notice. Notwithstanding the foregoing, if prior to Landlord's delivery to
Tenant of the Offer Notice, Landlord has received an offer to lease all or part
of the Offer Space from a third party (a "THIRD PARTY OFFER") and such Third
Party Offer includes space in excess of the Offer Space, Tenant must exercise
its rights hereunder, if at all, as to all of the space contained in the Third
Party Offer. If Tenant timely elects to lease the Offer Space, then Landlord and
Tenant shall execute an amendment to this Lease, effective as of the date the
Offer Space is to be included in the Premises, on the same terms as this Lease
except as follows:
(a) the rentable area of the Premises shall be increased by
the rentable area in the Offer Space and Tenant shall pay Operating Costs with
respect thereto;
(b) Net Rent shall be increased by the amount specified for
such space in the Offer Notice; and
(c) Landlord shall not provide to Tenant any allowances (e.g.,
moving allowance, construction allowance, and the like) or other tenant
inducements.
If Tenant fails or is unable to timely exercise its right hereunder, then such
right shall lapse, time being of the essence with respect to the exercise
thereof, and Landlord may lease the Offer Space to third parties on such terms
as Landlord may elect. Tenant may not exercise its rights under this Exhibit if
an Event of Default exists or Tenant is not then occupying the entire Premises.
Tenant's rights under this Exhibit shall terminate if (a) this Lease or
Tenant's right to possession of the Premises is terminated or (b) Tenant assigns
any of its interest in this Lease (except for an assignment to a Permitted New
Tenant in accordance with the terms of this Lease) or sublets any portion of the
Premises.
F-1
