AMENDMENT NUMBER FOUR TO LEASE
THIS AMENDMENT NUMBER FOUR TO LEASE ("AMENDMENT"), for reference
purposes, is dated January 29, 1997, but shall not become effective until
executed by each of WHIOP REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited
partnership ("LANDLORD"), and METRIS DIRECT, INC., a Minnesota corporation
(formerly named Fingerhut Financial Services Corporation) ("TENANT").
WITNESSETH
WHEREAS, Fingerhut Financial Services Corporation, as tenant, and The
Equitable Life Assurance Society of the United States ("EQUITABLE"), as
landlord entered into a lease dated August 11, 1995, as amended by Amendment
Number One to Lease ("FIRST AMENDMENT") dated August 1, 1996, as further
amended by Amendment Number Two to Lease dated January 16, 1997 between
Landlord and Tenant ("SECOND AMENDMENT") (collectively referred to as the
"LEASE") under which certain space known as Suites 1800, 400 and 300 were
leased to Tenant in a building known as Interchange Tower (the "BUILDING")
and located at 000 Xxxxx Xxxxxxx 000, Xx. Xxxxx Xxxx, Xxxxxxxxx 00000, as
more particularly described in the Lease, herein called the "PREMISES"; and
WHEREAS, Landlord has succeeded to the rights and interest of Equitable
as the landlord under the Lease and as the owner of the Building; and
WHEREAS, Landlord and Tenant entered into an Amendment Number Three to
Lease dated December 4, 1997 ("THIRD AMENDMENT"), which the parties wish to
terminate and replace with this Amendment; and
WHEREAS, the Building is part of an office building complex known as
Interchange Office Park ("OFFICE COMPLEX"), which also includes the building
known as Interchange West ("WEST BUILDING") located at 000 Xxxx Xxxx, Xx.
Xxxxx Xxxx, Xxxxxxxxx 00000; and
WHEREAS, Landlord and Tenant desire to further amend the Lease as
provided below.
NOW, THEREFORE, in consideration of the above recitals, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby amend and supplement the Lease, as follows:
1. DEFINED TERMS. All defined terms or phrases as utilized herein (and
identified by the use of initial capitalized letters) shall have the meanings
ascribed to them in the Lease, unless otherwise defined herein.
2. TERMINATION OF THE THIRD AMENDMENT. The Third Amendment is hereby
terminated and is null, void and shall have no further force or effect, the
same as if it had never been entered into.
3. SUITE 500. The Premises as described in the Lease, as amended by the
First and Second Amendments, consists of the following suites in the
Building: Suite 1800 consisting of approximately 17,859 rentable square feet,
Suite 400 consisting of approximately 18,137 rentable square fee and Suite
300, consisting of approximately 18,134 rentable square feet totaling
approximately 54,130 rentable square feet. As of the "Effective Date" (as
defined below), the following Suite in the West Building: Suite 500,
consisting of the entire fifth (5th) floor and consisting of approximately
20,927 rentable square feet (hereafter referred to as "SUITE 500") shall be
added to the Premises. From and after the Effective Date, the Premises shall
thus be described as the following Building suites: Suite 1800, located on
the eighteenth (18th) floor, Suite 400, located on the fourth (4th) floor,
Suite 300 located on the third (3rd) floor, together with the following West
Building suite: Suite 500 consisting of the entire fifth (5th) floor. The
Premises shall then consist of approximately 75,057 total rentable square
feet. As of the Effective Date, references in the Lease to the "Building"
shall include the West Building to the extent relating to Suite 500, except
as set forth in Paragraph 11, below.
4. IMPROVEMENTS. Tenant agrees to take possession of Suite 500 in the
present "AS IS" condition. In the event Tenant desires to make any
alterations or other improvements to Suite 500, then Tenant agrees to provide
Landlord plans of the Leasehold Improvements ("IMPROVEMENTS") it so desires.
Said plans shall be subject to Landlord's approval, which approval shall not
be unreasonable withheld or delayed, provided said plans:
a. provide for building standard grade of materials;
b. provide for an "office space" to "open space" ratio similar to
that of the currently existing Premises; and
c. provide for HVAC, electrical and fire/health/safety systems similar
to that currently existing in the Premises.
In the event of any objections to said plans by Landlord, Landlord shall so
notify Tenant promptly, so as to resolve such objections in an expeditious
and timely manner. When all such objections have been satisfied, Landlord
shall approve said plans. Upon approval, said plans shall become the "Final
Plans."
5. TENANT IMPROVEMENT ALLOWANCE. The Improvements shall be constructed,
in a good and workmanlike manner, pursuant to the Final Plans. The cost of
said Improvements shall be borne by Tenant, provided however, if such costs
are incurred prior to December 31, 1998 (the "ALLOWANCE CUT OFF DATE"),
Landlord agrees to reimburse Tenant for such costs up to the amount of
$136,025.50 (the "T.I. ALLOWANCE"). If the T.I. Allowance is not utilized
prior to the Allowance Cut Off Date any portion of the T.I. Allowance not so
utilized shall no longer be available to Tenant, whether for Improvements or
otherwise. For purposes of the foregoing the T.I. Allowance shall be deemed
utilized (whether or not actual disbursement of the T.I. Allowance to Tenant
pursuant to EXHIBIT A has occurred) to the extent that costs for Improvements
pursuant to approved Final Plans have actually been incurred by Tenant prior to
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the Allowance Cut Off Date, provided construction of the Improvements have
been commenced and continues to substantial completion. The construction of
the Improvements and the payment of the T.I. Allowance shall be subject to
and governed by EXHIBIT A, attached hereto and incorporated herein by this
reference. The cost of the Improvements subject to reimbursement out of the
T.I. Allowance shall include architect's and/or space planning fees for the
Final Plans (whether said costs were incurred by Landlord or Tenant); actual
costs of construction for the Improvements; and construction
supervision/administration costs of Landlord, consisting of three percent
(3%) of said actual construction costs. Tenant's personal property,
equipment, moveable partitions, cabling/wiring of telecommunications and
computer equipment and all other costs related to such items shall not be
reimbursable out of the T.I. Allowance.
6. EFFECTIVE DATE. Landlord agrees to use due diligence in delivering
Suite 500 on or about February 4, 1998. The date of actual delivery of Suite
500 to Tenant shall be referred to herein as the "EFFECTIVE DATE". The
Effective Date shall not be extended by any delays by Tenant in finalizing the
Final Plans; but shall be extended by any cause beyond Landlord's control.
7. RENT COMMENCEMENT DATE. The earlier of: i) 45 days subsequent to the
Effective Date; or ii) substantial completion of the Improvements shall be
deemed the "RENT COMMENCEMENT DATE". On or after the Rent Commencement Date,
Tenant may move its furniture, equipment and other personal property into
Suite 500. Tenant's taking possession of Suite 500 shall be deemed exclusive
acceptance of said Suite 500 and an acknowledgment by Tenant that said Suite
500 is in the condition required by this Amendment.
8. BASE RENTS. As of the Rent Commencement Date and continuing until the
first anniversary of the Rent Commencement Date, the annual Base Rent, with
respect to Suite 500, to be paid by Tenant to Landlord shall be $403,891.10
in equal monthly installments of $33,657.59. As of the first anniversary of
the Rent Commencement Date and continuing until the second anniversary of the
Rent Commencement Date, the annual Base Rent, with respect to Suite 500, to
be paid by Tenant to Landlord shall be $414,354.60 in equal monthly
installments of $34,529.55. As of the second anniversary of the Rent
Commencement Date and continuing through November, 2000, the annual Base
Rent, with respect to Suite 500, to be paid by Tenant to Landlord shall be
$424,818.10 in equal monthly installments of $35,401.51. The above stated
Base Rent per rentable square foot for Suite 500 includes Landlord's estimate
of the 1998 ("BASE YEAR") Taxes in the amount of $2.54 per rentable square
foot ("BASE YEAR TAXES") and Operating Expenses in the amount of $5.76 per
rentable square foot ("BASE YEAR OPERATING EXPENSES"), all of which are
adjustable as described in Paragraph 3 of the Lease. In addition, Tenant
shall pay to Landlord for the approximately 54,130 rentable square feet on
the 18th, 4th and 3rd floors of the Building those rents as described in the
Lease dated August 11, 1995 as previously amended by the First Amendment and
the Second Amendment, including all adjustments as described in Paragraph 3
of said Lease.
9. TERM. The parties acknowledge and agree that the Term of the Lease as
set forth in Paragraph 1 of the Lease shall not be extended from November 30,
2000.
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10. RENEWAL RIGHT. If Tenant exercises its right to renew the Lease as
set forth in paragraph 7 of the First Amendment, such renewal must be for the
entire Premises, which includes Suite 500.
11. ADJUSTMENTS. The parties acknowledge that the two buildings
referenced in the Lease as "Tower/South" are also within the Interchange
Office Park. For purposes of this Amendment, with respect to references in
the Lease to the "Tower/South" and/or the "Land" and "Tower/South" when
referring, subsequent to the Effective Date, to Suite 500, shall mean the
West Building and/or the land upon which the West Building is located, or
both, as the content requires. The foregoing shall be construed so as to
enable Landlord to continue to treat the West Building as a separate property
than the Tower/South for purposes of computing and allocating Operating
Expenses and Taxes. The legal description of the land upon which the West
Building is located and is a part, is set forth on EXHIBIT B to this
Amendment.
12. MISCELLANEOUS. The parties acknowledge and agree that the "Right
of First Opportunity" as set forth in Paragraph 6 of the First Amendment, is
now moot and of no further force or effect.
13. BROKERS. The parties acknowledge that Xxxx X. Xxxxx of CB/Madison
("CB/MADISON") is representing Tenant in connection with this Amendment and
Xxxxx X. Xxxxxxxxxx of CB Commercial Real Estate Group, Inc. ("CB
COMMERCIAL") is representing Landlord in connection with this Amendment. The
parties acknowledge that they are aware that CB/Madison is a division of CB
Commercial and further ratify and confirm the consents previously given
regarding the dual agency arrangement of CB/Madison representing Tenant and
CB Commercial representing Landlord with respect to this Amendment,
notwithstanding the conflicting interests of the broker involved.
14. SUBMISSION. The submission of an unexecuted copy of this document
for review by Tenant shall not constitute an offer by Landlord. The execution
of this document by Tenant and the submission to Landlord shall constitute an
offer to Landlord which may be accepted only by Landlord executing and
delivering a fully executed counterpart hereof to Tenant. This Amendment may
be executed in counterparts, each evidencing, however, the single agreement
between the parties.
15. RATIFICATION. Except as is explicitly inconsistent, modified,
supplemented or amended by the express terms hereof, the Lease is hereby
ratified and confirmed.
16. CONTINGENT EXPANSION OPTION. Provided Tenant has not been in
default under the Lease and subject to the provisions set forth below, Tenant
shall have the option to lease additional space within either the West
Building or the (Tower) Building. The terms for said expansion space shall be
upon the same terms and conditions of this Lease, except: i) for this option
to expand or terminate; ii) that the Annual Base Rent shall be increased to
account for the then market rates (as set forth below) and for the additional
square footage being demised as a result of the exercise of this expansion
option; and iii) the term for such expansion space
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shall be agreed to between Landlord and Tenant. The increase in Annual Base
Rent shall be at the then current market rate for similar space in similar
properties in the Southwest metropolitan suburban market, but no less than
the per square foot rate then being charged under this Lease for the then
existing Premises (said market rate shall be determined on a net basis and
increased by the Base Year Taxes and Base Year Operating Expenses). Tenant's
right to exercise this expansion option is subject to the following
conditions:
a. Tenant shall notify Landlord of its additional square footage space needs
("TENANT'S REQUEST") in writing. Tenant's Request shall be for not less than
10,000 rentable square feet.
b. From and after the date of receipt of Tenant's Request Landlord shall
advise Tenant of the location of additional space within the Building
(either the West Building or the Tower Building) which shall meet
Tenant's additional space requirements as set forth in Tenant's
Request or is of 10,000 square feet or more and which is available for
leasing. Space shall not be deemed available for leasing if it is subject
to other options, expansion or similar rights of other tenants of the
Office Complex, including any other tenants which may have given a
previous request similar to the Tenant's Request (unless those rights
are waived by the benefitted tenant or the previous request is no longer
effective). Space shall also not be deemed available for leasing if it
is space occupied by a tenant, regardless if the tenant has an option
to renew or not, until such time as the tenant has affirmatively indicated
to Landlord that it intends to surrender the space at the end of its term.
c. If Tenant has given Landlord its Tenant's Request for expansion and
Landlord notifies Tenant of available space pursuant to paragraph B above,
the parties shall then negotiate in good faith for up to thirty (30) days
on the market rental rate, total square feet and length of the term for
such available space (subject to the requirements set forth above). If the
parties cannot so agree within such time, or if Tenant is no longer
interested in such expansion, then the space shall be deemed unavailable
for leasing with respect to Tenant, until Tenant again makes a Tenant's
Request (which Tenant may not make for a period of 30 days thereafter) at
which time the space may or may not still then be available for leasing.
If the parties do agree on the market rate and length of term, then they
shall execute an addendum to memorialize the new Annual Base Rent, Term
for the expansion space and any other provisions necessitated by said
expansion. All relocation, moving and leasehold improvements to effectuate
Tenant's expansion shall be made and accomplished in accordance with this
Lease and at Tenant's sole cost and expense. Landlord shall work with and
cooperate with Tenant to effectuate the maximum cost savings with respect
to relocation and space planning needs of Tenant.
d. If space is not available at the time of Tenant's Request, Tenant's
Request shall remain effective until such space becomes available
(pursuant to the requirements set forth above) or until Tenant withdraws
its Tenant's Request. Tenant agrees to withdraw its Tenant's Request
at such time as it no longer needs expansion space.
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17. CONTINGENCY. Notwithstanding anything contained herein to the
contrary, this Amendment is contingent upon Landlord obtaining prior to
February 2, 1998, an agreement in form satisfactory to Landlord, from the
holder of the lessee's interest of the existing lease for Suite 500
("EXISTING LEASE") allowing access to Suite 500 for all purposes contemplated
hereby. The Existing Lease expires by its own terms on March 31, 1998.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
METRIS DIRECT, INC. WHIOP REAL ESTATE LIMITED PARTNERSHIP
BY: WHIOP GEN-PAR, INC.
A DELAWARE CORPORATION, GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx Xxxx X. Xxxxxx
--------------------------- ------------------------------------
(Print Name) (Print Name)
President & CEO Senior Vice President - East
--------------------------- ------------------------------------
(Title) (Title)
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EXHIBIT A
TENANT'S WORK AND T.I. ALLOWANCE
Attached to and made a part of a Lease Amendment Number Three to Lease
bearing the Reference Date of January 29, 1998 between WHIOP REAL ESTATE
LIMITED PARTNERSHIP, a Delaware limited partnership ("LANDLORD"), and METRIS
DIRECT, INC., a Minnesota corporation (formerly named Fingerhut Financial
Services Corporation) ("TENANT").
Plans and/or a description of improvements and/or modifications to Suite
500 when approved pursuant to Paragraph 4 of the Amendment are to be attached
hereto as Exhibit A-1 and by this reference incorporated herein (hereafter
called the "Final Plans"). The parties acknowledge that the Final Plans are
to modify Suite 500 to accommodate Tenant's intended use. Tenant shall be
responsible for constructing the improvements as shown on the Final Plans
(hereafter called "TENANT IMPROVEMENTS") for and on behalf of Tenant.
Tenant shall not commence construction of the Tenant Improvements (the
"TENANT'S WORK") until Tenant has secured Landlord's written approval, which
approval shall not be unreasonably withheld, of all contractors to be used in
performing Tenant's Work. Tenant's Work shall be coordinated with Landlord's
Work and/or other tenants of Landlord to such a degree that such Tenant's
Work will not interfere with nor delay the completion of Work by Landlord
and/or other tenants of Landlord.
Tenant's Work shall be performed in a first-class workmanlike manner and
shall be in good and usable condition at the date of completion thereof.
During the course of construction of the Tenant Improvements, Tenant may
perform its cabling, computer set up and telecommunications, provided, if
Landlord's agents are in any way involved in the Tenant's Work, such cabling
and set up shall be coordinated with the doing of the Tenant's Work.
All Tenant's Work shall conform to applicable governmental statutes,
ordinances, regulations, and codes. Landlord's approval of plans and
specifications shall not constitute an acknowledgement that Tenant's Work
done in conformity therewith will so conform, and Tenant shall be solely
responsible for corrections in Tenant's Work required by any governmental
agency. Tenant shall secure its own building and occupancy permits. Landlord
shall have the right to inspect and/or supervise, to the extent Landlord
deems reasonably advisable; but Landlord shall not by reason of any such
inspection or supervision assume or have any responsibility to Tenant or any
entity for either the quality of any Tenant's Work or any loss, injury or
damage suffered by anyone by reason of the quality or performance of any
Tenant's Work. Landlord reserves the right to require changes in Tenant's
Work when necessary by reason of code requirements or directives of
governmental authorities having jurisdiction over Suite 500.
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Tenant shall save, protect, indemnify and hold harmless Landlord, Suite
500 and the building and land of which the Premises are a part, from and
against all claims in the nature of mechanics' liens arising out of either
any contracts entered into, or any services, labor or materials rendered,
with respect to the Tenant's Work or the Tenant Improvements.
Prior to commencement of Tenant's Work and until completion thereof, or
commencement of the Term of the Lease, whichever is the last to occur, Tenant
shall maintain, or cause to be maintained, casualty insurance in builder's
risk form, covering Landlord, Landlord's agents and beneficiaries, Landlord's
architect, Landlord's contractor or subcontractors, Tenant and Tenant's
contractors as their interests may appear, against loss or damage by fire,
vandalism and malicious mischief, and such other risks as are customarily
covered by the so-called "extended coverage endorsement non-reporting form"
upon all Tenant's Work-in-Place, and all materials stored at the site of
Tenant's Work and all materials, equipment, supplies and temporary structures
of all kinds incident to Tenant's Work and builder's machinery, all while
forming a part of, or contained in, such improvements or temporary structures
while on the demised premises or when adjacent thereto while on malls,
drives, sidewalks, streets or alleys, all in the full insurable value thereof
at all times. In addition, Tenant agrees to require all contractors and
subcontractors engaged in the performance of Tenant's Work to effect and
maintain and deliver to Tenant and Landlord certificates evidencing the
existence of, prior to the commencement of Tenant's work and until completion
thereof, the following minimum insurance coverages:
a. Workmen's Compensation Insurance - In accordance with the laws of
the State of Minnesota, including Employer's Liability Insurance, to
the limit of $100,000 each accident.
b. Comprehensive General Liability Insurance against bodily injury,
including death resulting therefrom, to the combined aggregate limits
of $500,000.
c. Automobile insurance, including "non-owned" automobiles against
bodily injury, including death resulting therefrom, to the combined
aggregate limit of $500,000 for personal injury, and against property
damage to the combined aggregate limit of $100,000.
d. Contractors must carry all insurance. Said insurance policy of such
contractors must name building owner and the Property Manager, Xxxxx &
Xxxxx, as additional insureds.
Prior to the commencement of Tenant's Work, Tenant shall deliver to
Landlord's Representative certificates of all required insurance, and
evidence of the payment of premiums thereon (and certificates of renewal).
All such insurance shall provide, and certificates thereof shall state, that
the same is non-cancelable and non-amendable without ten (10) days prior
written notice to Landlord.
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Landlord and Tenant have agreed that the costs of the Tenant
Improvements shall be paid by Tenant, although Landlord shall provide Tenant
the T.I. Allowance as set forth in Paragraph 5 of the Amendment to be
utilized toward the cost of the Tenant Improvements, so long as such T.I.
Allowance is utilized prior to the Allowance Cut Off Date as set forth in
said Paragraph 5. The T.I. Allowance shall be used only for payment of costs
relating to construction of the Tenant Improvements (including the costs of
preparing the Final Plans, demolition of any existing improvements,
construction inspections and construction supervision).
Upon Tenant's commencement of its business operations within Suite 500
and within ten (10) days of delivery to Landlord of: i) a certificate by
Tenant's general construction contractor to the effect that Tenant has
finally completed all of the Tenant Improvements, including all "punch list"
items, which certificate and the Tenant Improvements shall be approved by
Landlord's property manager; ii) a sworn construction statement from Tenant's
contractor identifying all subcontractors, material suppliers and other
persons who contributed to completion of the Tenant Improvements, showing the
dollar amounts of each such persons contribution; iii) final lien waivers for
any and all labor, services, materials, supplies and equipment furnished to
or for the Tenant Improvements; and iv) a sworn cost statement by Tenant to
all costs of the Tenant Improvements; then Landlord shall pay to Tenant the
lesser of such costs as identified on the Sworn Construction Statement and
sworn cost statement; or the T.I. Allowance. At the option of Landlord,
Landlord may pay directly to those parties furnishing labor, services,
materials and supplies and equipment to or for the Tenant Improvements, and
deduct such payments from the T.I. Allowance.
Notwithstanding the foregoing, upon at least 10 days prior written
request by Tenant, but not sooner than the date Tenant commences its business
operations within Suite 500, Landlord agrees to advance to Tenant (or at
Landlord's sole option to Tenant's contractor, or to specific
subcontractors), the lesser of either one half (1/2) the T.I. Allowance, or
the amount as certified by Tenant and Tenant's contractor to be currently
payable under contractor's construction contract, which amount so advanced
shall be credited against and deducted from the T.I. Allowance; provided
however, those items set forth in clauses i) through iv) of the previous
paragraph shall be supplied to Landlord prior to its making such advance
(albeit, the certification as to completion as required by clause i) need
only be for "substantial completion" and not for "final completion"; and the
lien waivers as required by clause iii) need only equal or exceed the amount
of the advance).
Any improvements to Suite 500, other than as shown on the Final Plans,
and the furnishing of Suite 500, shall be made by Tenant at the sole cost and
expense of Tenant, subject to all other provisions of the Lease, including
compliance with all applicable governmental laws, ordinances and regulations.
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