Minnesota-Minneapolis-222 South Ninth Street Office Lease - 222 South Ninth Street LP and Capella Education Co.
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OFFICE LEASE
THIS LEASE made as of the 28 day of June, 2000, between 222 South Ninth Street
Limited Partnership, a Minnesota limited partnership ("Landlord'), and Capella
Education Company, a Minnesota corporation, whose address is Suite 550, Towle
Building, 330 Second Avenue South, Minneapolis, Minnesota 55401 ("Tenant").
WITNESSETH:
ARTICLE 1
Premises and Term
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
that certain space (the "Premises") consisting of (i) the entire rentable area
of the twentieth floor, one-half (1/2) of the rentable area of the nineteenth
floor, and one-half (1/2) of the rentable area of the sixteenth floor
(collectively, the "Initial Premises"), and (ii) the one-half (1/2) of the
nineteenth floor which was not part of the Initial Premises (the "19th Floor
Remainder Space") and the one-half (1/2) of the sixteenth floor which was not
part of the Initial Premises (the "16th Floor Remainder Space," the 19th Floor
Remainder Space and the 16th Floor Remainder Space are collectively referred to
herein as the "Secondary Premises"), as described or shown on Exhibit A attached
hereto, in the building known as the Piper Jaffray Tower (the "Building")
located at 222 South Ninth Street, Minneapolis, Minnesota ("Property", as
further described in Article 25), subject to the provisions herein contained.
The term (the "Term") of this Lease with respect to the Initial Premises shall
commence on the 1st day of November, 2000 (the "Commencement Date"), and end on
the 31st day of October, 2005 (the "Expiration Date"), unless sooner terminated
as provided herein. The term of this Lease with respect to the Secondary
Premises shall commence on April 1, 2001. The Commencement Date with respect to
the Secondary Premises shall be subject to adjustment as provided in Article 4.
Landlord and Tenant have, for purposes of the calculation of Rent set forth
below, utilized Landlord's calculations of the rentable area of the Initial
Premises at 46,056 square feet, the rentable area of the 19th Floor Remainder
Space at 11,356 square feet, the rentable area of the 16th Floor Remainder Space
at 11,356 square feet, and the rentable area of the Property at 724,734 square
feet. The specified rentable area of the Premises has been determined by
Landlord through its calculation of the usable area and multiplication of that
figure by a factor of 1.09. Upon the request of Tenant, Landlord shall provide
its usable area measurements and rentable area calculations for the Premises for
Tenant's review (which review shall occur, if at all, within sixty (60) days of
Tenant's execution of the Lease). If Tenant disagrees with the rentable area
calculation, it shall provide notice of same to Landlord within ten (10) days of
receipt of Landlord's calculations. In such event, the parties shall confer with
Landlord's architect and if they still cannot agree on the rentable area
calculation within ten (10) days thereafter, the parties shall submit the matter
to a mutually acceptable third party architect, who shall perform measurements
and calculations of the usable and rentable areas. If the third party architect
confirms Landlord's calculations within 400 rentable square feet, Tenant shall
pay all costs associated with the third party architect. If the measurement
differs by more than 400 rentable square feet, Landlord shall pay such costs. In
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either case, the parties shall be bound by the determination of the third party
architect. In making its calculations, the third party architect shall apply
current BOMA measurement standards utilized for Class A buildings in the
Minneapolis downtown market. If applicable, the parties shall execute an
amendment to the Lease, setting forth the revised rentable square feet of the
Premises, and the Rent shall be adjusted by such amendment retroactively to the
Commencement Date to reflect such adjusted _____ble square feet. As to any
partial floors that may be occupied by Tenant under this Lease, ________
table/usable factor shall not exceed 1.15.
ARTICLE 2
BASE RENT
Tenant shall pay Landlord monthly Base Rent as set forth in the following
table, in advance on or before the first day of each calendar month during the
Term, except that Base Rate for the first full calendar month for which Base
Rent shall be due, shall be paid on the Commencement Date.
Monthly Base Rent per
Lease Period Annual Base Rent Base Rent Square Foot
----------------------------------- ---------------- ------------- -------------
November 1, 2000 - October 31, 2001 $ 587,214.00 $ 48,934.50 $ 12.75
November 1, 2001 - October 31, 2002 $ 893,984.00 $ 74,498.67 $ 13.00
November 1, 2002 - October 31, 2003 $ 911,176.00 $ 75,931.33 $ 13.25
November 1, 2003 - October 31, 2004 $ 928,368.00 $ 77364.00 $ 13.50
November 1, 2004 - October 31, 2005 $ 945,560.00 $ 78,796.67 $ 13.75
The annual Base Rent and monthly Base Rent listed above for the period
from November 1, 2000 through October 31, 2001 is the annual Base Rent and
monthly Base Rent for the Initial Premises only. Such figure shall be adjusted
proportionately for the Secondary Premises based on the date that Tenant takes
occupancy of the Secondary Premises as set forth in Article 4.
If the Term commences on a day other than the first day of a calendar
month, or ends on a day other than the last day of a calendar month, then the
Base Rent for such month shall be prorated on the basis of the ratio of the
number of days of such month that are included within the Term to the total
number of days in such month.
ARTICLE 3
ADDITIONAL RENT
(A) TAXES. Tenant shall pay Landlord an amount equal to Tenant's Prorate
Share of Taxes in the manner described below. The terms "Taxes" and "Tenant's
Prorata Share" shall have the meanings specified therefor in Article 25.
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(B) OPERATING EXPENSES. Tenant shall pay Landlord an amount equal to
Tenant's Prorata Share of Operating Expenses in the manner described below. The
terms "Operating Expenses" and "Tenant's Prorata Share" shall have the meanings
specified therefor in Article 25.
(C) INTENTIONALLY OMITTED.
(D) MANNER OF PAYMENT. Taxes and Operating Expenses shall be paid in the
following manner:
(i) Landlord may reasonably estimate in advance the amounts Tenant
shall owe for Taxes and Operating Expenses for any full or
partial calendar year of the Term. In such event, Tenant shall
pay such estimated amounts, on a monthly basis, on or before
the first day of each calendar month, together with Tenant's
payment of Base Rent. Such estimate may be reasonably adjusted
from time to time by Landlord.
(ii) Within 120 days after the end of each calendar year, or as
soon thereafter as practicable, Landlord shall provide a
statement (the "Statement") to Tenant showing: (a) the amount
of actual Taxes and Operating Expenses for such calendar year,
with a listing of amounts for major categories of Operating
Expanses, (b) any amount paid by Tenant towards Taxes and
Operating Expenses during such calendar year on an estimated
basis, and (c) any revised estimate of Tenant's obligations
for Taxes and Operating Expenses for the current calendar
year.
(iii) If the Statement shows that Tenant's estimated payments were
less than Tenant's actual obligations for Taxes and Operating
Expenses for such year, Tenant shall pay the difference. If
the Statement shows an increase in Tenant's estimated payments
for the current calendar year, Tenant shall pay the difference
between the new and former estimates, for the period of
January 1 of the current calendar year through the month in
which the Statement is sent. Tenant shall make such payments
within thirty (30) days after Landlord sends the Statement.
(iv) If the Statement shows that Tenant's estimated payments
exceeded Tenant's actual obligations for Taxes and Operating
Expenses, Tenant shall receive a credit for the difference
against payments of Rent next due. If the Term shall have
expired and no further Rent shall be due, Tenant shall receive
a refund of such difference, within thirty (30) days after
Landlord sends the Statement.
(v) So long as Tenant's obligations hereunder are not materially
adversely affected thereby, Landlord reserves the right to
reasonably change, from time to time, the manner or timing of
the foregoing payments. In lieu of providing one Statement
covering Taxes and Operating Expenses, Landlord may provide
separate statements, at the same or different times.
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No delay by Landlord in providing the Statement (or separate
statements) shall be deemed a default by Landlord or a waiver
of Landlord's right to require payment of Tenant's obligations
for actual or estimated Taxes or Operating Expenses.
(E) PRORATION. If the Term commences other than on January 1, or ends
other than on December 31, Tenant's obligations to pay estimated and actual
amounts towards Taxes and Operating Expenses for such first or final calendar
years shall be prorated to reflect the portion of such years included in the
Term. Such proration shall be made by multiplying the total estimated or actual
(as the case may be) Taxes and Operating Expenses, for such calendar years by a
fraction, the numerator of which shall be the number of days of the Term during
such calendar year, and the denominator of which shall be the number of days in
such calendar year.
(F) LANDLORD'S RECORDS. Landlord shall maintain detailed records
respecting Taxes and Operating Expenses and determine the same in accordance
with sound and generally acceptable accounting and management practices,
consistently applied. Although this Lease contemplates the computation of Taxes
and Operating Expenses on a cash basis, Landlord shall make reasonable and
appropriate accrual adjustments to ensure that each calendar year includes
substantially the same recurring items. Landlord reserves the right to change to
a full accrual system of accounting so long as the same is consistently applied
and Tenant's payment obligation for Taxes or Operating Expenses over the entire
Term is not increased over the amount that would have been otherwise payable had
no such change been implemented. Tenant or its representative shall have the
right to examine such records upon reasonable prior notice specifying such
records Tenant desires to examine, during normal business hours at the Building
by sending such notice no later than forty-five (45) days following the
furnishing of the Statement. Tenant may take exception to matters included in
Taxes or Operating Expenses Landlord's computation of Tenant's Prorata Share, or
any other matter impacting upon Tenant's payment obligations with regard to
Taxes and Operating Expenses by sending notice specifying such exception and the
reasons therefor to Landlord no later than thirty (30) days after Landlord makes
such records available for examination. Such Statement shall be considered
final, except as to matters to which exception is taken after examination of
Landlord's records in the foregoing manner and within the foregoing times.
Tenant acknowledges that Landlord's ability to budget and incur expenses depends
on the finality of such Statement, and accordingly agrees that time is of the
essence of this Paragraph. If Tenant takes exception to any matter contained in
the Statement as provided herein, the parties shall refer the matter to an
accounting firm mutually designated by the parties (or if the parties cannot
agree as to the accounting firm within thirty (30) days of Tenant's taking
exception to such matters contained in the Statement, designated by Landlord,
subject to the criteria that: (i) such accounting firm is a "Big 5" accounting
firm, and (ii) Landlord shall not have had any business relationship with the
accounting firm within the prior two (2) years), whose certification as to the
proper amount shall be final and conclusive as between Landlord and Tenant.
Tenant shall promptly pay the cost of such certification unless such
certification determines that Tenant was overbilled (based upon the Statement)
by more than two percent (2%), in which event Landlord shall pay the cost of
such certification. If such certification indicates that the amount actually
paid by Tenant, in relation to a matter for which Tenant has taken exception
pursuant to this Paragraph, exceeds the amount Tenant should have paid, then
Landlord shall credit the difference against the then next due payments to be
made by Tenant under this Article 3, or if the Lease has expired, such amount
shall be refunded to Tenant
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within thirty (30) days of such certification. Pending resolution of any such
exceptions in the foregoing manner, Tenant shall continue paying Tenant's
Prorata Share of Taxes and Operating Expenses in the amounts determined by
Landlord, subject to adjustment after any such exceptions are so resolved.
(G) RENT AND OTHER CHARGES. Base Rent, Taxes, Operating Expenses, and any
other amounts which Tenant is or becomes obligated to pay Landlord under this
Lease or other agreement entered into in connection herewith, are sometimes
herein referred to collectively as "Rent," and all remedies applicable to the
non-payment of Rent shall be applicable thereto. Rent shall be paid at any
office maintained by Landlord or its agent at the Property, or at such other
place as Landlord may designate.
ARTICLE 4
COMMENCEMENT OF TERM
On or before March 1, 2001, Tenant shall deliver written notice (the
"Secondary Premises Notice") to Landlord indicating either (a) that Tenant
elects to occupy, for the purpose of conducting its business, the entire
Secondary Premises on April 1, 2001, or (b) that Tenant elects to occupy, for
the purpose of conducting its business, the 19th Floor Remainder Space on April
1, 2001, with occupancy, for the purpose of conducting its business, of the 16th
Floor Remainder Space to begin on October 1, 2001. In the event that Tenant
elects to occupy only the 19th Floor Remainder Space on April 1, 2001, the term
of the Lease with respect to such space shall commence on April 1, 2001, and the
term of the Lease with respect to the 16th Floor Remainder Space shall commence
on October 1, 2001. Failure of Tenant to deliver such notice on or before March
1, 2001 shall be deemed an election by Tenant to occupy only the 19th Floor
Remainder Space on April 1, 2001. Rent shall first be payable on the entire
Secondary Premises on April 1, 2001 if Tenant has elected to occupy the entire
Secondary Premises on that date, or on April 1, 2001 for the 19th Floor
Remainder Space and October 1, 2001 for the 16th Floor Remainder Space, if
Tenant has elected to initially occupy only one-half (1/2) of the Secondary
Premises.
With the exception of such portion of the Premises on the 16th floor of
the Building which Landlord must temporarily close in order to close off the
existing interior stairway between the 16th floor of the Building and the
adjacent floor, Landlord shall deliver (a) the Initial Premises to Tenant within
five (5) business days of Landlord's receipt of a fully executed copy of this
Lease, and (b) the Secondary Premises to Tenant within five (5) business days
after written request firm Tenant for delivery of same. Tenant shall be entitled
to commence construction of its improvements in the Secondary Premises, pursuant
to Exhibit B attached hereto, at any time after delivery of the Secondary
Premises to Tenant. During any period that Tenant shall be permitted to enter
any portion of the Premises prior to the Commencement Date other than to occupy
the same (e.g., to perform alterations or improvements), Tenant shall comply
with all terms and provisions of this Lease, except those provisions requiring
the payment of Rent. Tenant shall also have the right to occupy all or a portion
(as reasonably determined by Tenant) of the 16th Floor Remainder Space while the
Initial Premises are under construction (which space shall be made available in
its "as-is" condition) for temporary occupancy without any obligation for the
payment of Rent with
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respect to the 16th Floor Remainder Space. Landlord shall permit early entry,
provided the Premises are legally available and Landlord has completed any work
required under this Lease or any separate agreement entered in connection
herewith. Notwithstanding the foregoing, if Tenant elects to take possession of
the Secondary Premises in two phases and Tenant opens for business in the 16th
Floor Remainder Space prior to October 1, 2001, then Rent shall commence on such
date and be prorated based on the number of rentable square feet in the 16th
Floor Remainder Space occupied and opened for business by Tenant.
ARTICLE 5
CONDITION OF PREMISES
Tenant has inspected the Premises, Property, Systems and Equipment (as
defined in Article 25), or has had an opportunity to do so, and agrees to accept
the same "as is" without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements except for Landlord providing an improvement allowance as set forth
in the Work Agreement attached hereto as Exhibit B and as otherwise expressly
provided in any separate agreement that may be signed by the parties To the
extent that Tenant requires a demising wall between the Initial Premises and the
19th Floor Remainder Space and/or the 16th Floor Remainder Space, such demising
wall shall be constructed at Tenant's expense and in accordance with the
provisions of Section 8 of this Lease. Prior to delivering possession of the
Initial Premises to Tenant, Landlord shall close off the existing interior
stairway between the 16th floor of the Building and the adjacent floor, at
Landlord's sole cost and expense.
ARTICLE 6
USE AND RULES
Tenant shall use the Premises for offices, the preparation of educational
programs and materials, and related functions inherent in its on-line
educational program (all of which shall be implemented consistent with the
Rules, as defined below), including "periodic seminars" (as defined below), and
for such other purposes as Landlord may specifically authorize in writing and no
other purpose whatsoever, in compliance with all applicable Laws, and without
disturbing or interfering with any other tenant or occupant of the Property. For
purposes of this Lease, the term "periodic seminars" shall mean seminars of not
more than fifty (50) people per seminar, of a duration not to exceed two
consecutive days, and occurring not more frequently than one (1) time in any
calendar month. Landlord's approval of "periodic seminars" shall in no event be
construed as a representation by Landlord that any such "periodic seminar" is in
compliance with applicable Laws. Notwithstanding the foregoing, except for
"periodic seminars," in no event shall Tenant use any portion of the Premises
for classroom purposes. Tenant shall not use the Premises in any manner so as to
cause a cancellation of Landlord's insurance policies, or an increase in the
premiums thereunder. Tenant shall comply with all rules set forth in Rider One
attached hereto (the "Rules"). Landlord shall have the right to reasonably amend
such Rules and supplement the same with other reasonable Rules (not inconsistent
with this Lease or with Tenant's permitted use as set forth in this Article)
relating to the Property, or the promotion of safety, care, cleanliness or good
order therein, and all such amendments or new Rules shall be
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binding upon Tenant after five (5) days notice thereof to Tenant. All Rules
shall be applied on a non-discriminatory basis, but nothing herein shall be
construed to give Tenant or any other Person (as defined in Article 25) any
claim, demand or cause of action against Landlord arising out of the violation
of such Rules by any other tenant, occupant, or visitor of the Property, or out
of the enforcement or waiver of the Rules by Landlord in any particular
instance.
ARTICLE 7
SERVICES AND UTILITIES
Landlord shall provide the following services and utilities (the cost of
which shall be included in Operating Expenses unless otherwise stated herein or
in any separate rider hereto):
(A) Electricity for standard office lighting fixtures, and equipment and
accessories customary for offices (up to 280 hours per month) where: (1) the
connected electrical load of all of the same does not exceed an average of 4
watts per square foot of the Premises, and (2) the electricity will be at
nominal 120 volts, single phase (or 110 volts, depending on available services
in the Building).
(B) Heat and air-conditioning to provide a temperature required, in
Landlord's reasonable opinion, in accordance with applicable Law, and consistent
with other similarly situated buildings in downtown Minneapolis, for occupancy
of the Premises under normal business operations, from 8:00 a.m. until 6:00 p.m.
Monday through Friday, and Saturdays from 8:00 a.m. until 1:00 p.m., except on
Holidays (as defined in Article 25). Landlord shall not be responsible for
inadequate air-conditioning or ventilation to the extent the same occurs because
Tenant uses any item of equipment consuming more than 500 watts at rated
capacity without providing adequate air-conditioning and ventilation therefor.
(C) Water for drinking, lavatory and toilet purposes at those points of
supply provided for nonexclusive general use of other tenants at the Property.
(D) Customary office cleaning and trash removal service Monday through
Friday or Sunday through Thursday in and about the Premises.
(E) Operatorless passenger elevator service and freight elevator service
(subject to reasonable scheduling by Landlord) in common with Landlord and other
tenants and their contractors, agents and visitors.
(F) Landlord shall seek to provide such extra utilities or services as
Tenant may from time to time request, if the same are reasonable and feasible
for Landlord to provide and do not involve modifications or additions to the
Property or existing Systems and Equipment (as defined in Article 25), and if
Landlord shall receive Tenant's request within a reasonable period prior to the
time such extra utilities or services are required. Landlord may comply with
written or oral requests by any officer or employee of Tenant, unless Tenant
shall notify Landlord of, or Landlord shall request, the names of authorized
individuals (up to 3 for each floor on which the Premises are located) and
procedures for written requests. Tenant shall, for such extra utilities or
services, pay such charges as Landlord shall from time to time reasonably
establish based upon Landlord's actual cost of delivery of the services, plus a
reasonable administrative fee. All
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charges for such extra utilities or services shall be due at the same time as
the installment of Base Rent with which the same are billed, or if billed
separately, shall be due within twenty (20) days after such billing. Landlord's
current charges for after-hour utilities are $18.00 per hour per floor of the
Building for HVAC cooling and $7.00 per hour per floor of the Building for
heating.
Landlord may install and operate meters or any other reasonable system for
monitoring or estimating any services or utilities used by Tenant materially in
excess of those required to be provided by Landlord under this Article
(including a system for Landlord's engineer to reasonably estimate any such
excess usage). If such system indicates such excess services or utilities,
Tenant shall pay Landlord's reasonable charges for installing and operating such
system and any supplementary air-conditioning, ventilation, heat, electrical or
other systems or equipment (or adjustments or modifications to the existing
Systems and Equipment), and Landlord's reasonable charges for such amount of
excess services or utilities used by Tenant.
Landlord does not warrant that any services or utilities will be free from
shortages, failures, variations, or interruptions caused by repairs,
maintenance, replacements, improvements, alterations, changes of service,
strikes, lockouts, labor controversies, accidents, inability to obtain services,
fuel, steam, water or supplies, governmental requirements or requests, or other
causes beyond Landlord's reasonable control. None of the same shall be deemed an
eviction or disturbance of Tenant's use and possession of the Premises or any
part thereof, except as expressly provided herein to the contrary, or relieve
Tenant from performance of Tenant's obligations under this Lease. Landlord in no
event shall be liable for damages by reason of loss of profits, business
interruption or other consequential damages.
Notwithstanding any of the foregoing to the contrary, Landlord shall
operate and maintain the Building in accordance with all applicable laws and
regulations, the requirements of Landlord's insurance carriers, and standards
from time to time prevailing for similarly situated office buildings of
comparable age and character in downtown Minneapolis. Landlord shall maintain
all common areas in a first class condition and in good working order and repair
and shall be responsible for keeping all exterior common areas reasonably free
and clear of snow, ice and rubbish. Tenant, its successors, permitted assigns,
permitted subtenants and their employees shall have access to the Premises at
all times, 24-hours per day, every day of the year during the Term, subject to
compliance with Landlord's reasonable security measures.
Tenant shall be permitted to utilize a dual electrical power feed from the
systems serving the 19th and 20th floors of the Building, which shall be
installed at Tenant's expanse and pursuant to the provisions of Section 8
hereof.
Subject to matters beyond the reasonable control of Landlord, in the event
that any of the utilities or services to be provided by Landlord which are
necessary for Tenant's beneficial use of the Premises should be unavailable for
a period of three (3) or more consecutive business days, and such unavailability
materially interferes with Tenant's beneficial use of the Premises and as a
result thereof, Tenant does not operate its business in all or a material
portion of the Premises for such three (3) consecutive business day period, then
Rent shall abate from the end of such three (3) consecutive business day period
until the earlier of (i) the date when said utility or service is again
available to Tenant, or (ii) the date when Tenant reopens for business in such
portion of the Premises.
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Further, should a condition exist in the Premises as to which Landlord has
the obligation of repair hereunder, and should such condition have an adverse
and immediate material impact upon Tenant's ability to use the Premises for the
purposes set forth in Article 6, Tenant may give notice to Landlord of such
condition. If, within ten (10) business days of receipt of such notice by
Landlord, Landlord has not commenced and continuously and diligently proceeded
to rectify such condition, then Tenant shall have the right to separately
contract for such repair and upon the successful completion of such repair, to
invoice Landlord for the reasonable costs incurred by Tenant in such repair.
Tenant shall not have the right to perform its own repairs if the cause of
Landlord's delay in completion of such repairs is beyond the reasonable control
of Landlord. Tenant shall not have the right to offset or deduct the cost of
such repair from any Rent due under this Lease.
ARTICLE 8
ALTERATIONS AND LIENS
Tenant shall make no material additions, changes, alterations or
improvements (the "Work") to the Premises or the Systems and Equipment (as
defined in Article 25) pertaining to the Premises without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. For purposes of this provision an item of Work shall not be deemed
"material" if the item will not affect or alter the Systems and Equipment and
shall have a cost during any twelve (12) consecutive month period of less than
$20,000, or shall involve purely decorative changes to the Premises (i.e.
installation of wall or floor coverings). Landlord's consent shall also not be
required for the installation or removal of any modular furnishings or
alterations incidental to the installation or removal thereof. However, as to
the foregoing, Tenant shall still provide Landlord with prior notice as set
forth below of the Work to be performed. Landlord may impose reasonable
requirements as a condition of such consent including without limitation the
submission of plans and specifications for Landlord's prior written approval,
obtaining necessary permits, posting bonds, obtaining insurance, prior approval
of contractors, subcontractors and suppliers, prior receipt of copies of all
contracts and subcontracts, contractor and subcontractor lien waivers,
affidavits listing all contractors, subcontractors and suppliers, use of union
labor (if Landlord uses union labor), affidavits from engineers acceptable to
Landlord stating that the Work will not adversely affect the Systems and
Equipment or the structure of the Property, and requirements as to the manner
and times in which such Work shall be done. All Work shall be performed in a
good and workmanlike manner and all materials used shall be of a quality
comparable to or better than those in the Premises and Property and shall be in
accordance with plans and specifications approved by Landlord, and Landlord may
require that all such Work be performed under Landlord's supervision. In all
cases, Tenant shall pay Landlord a reasonable fee to cover Landlord's overhead
in reviewing Tenant's plans and specifications and performing any supervision of
the Work. If Landlord consents or supervises, the same shall not be deemed a
warranty as to the adequacy of the design, workmanship or quality of materials,
and Landlord hereby expressly disclaims any responsibility or liability for the
same. Landlord shall under no circumstances have any obligation to repair,
maintain or replace any portion of the Work.
Tenant shall keep the Property and Premises free from any mechanic's,
materialman's or similar liens or other such encumbrances in connection with any
Work on or respecting the
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Premises not performed by or at the request of Landlord, and shall indemnify and
hold Landlord harmless from and against any claims, liabilities, judgments, or
costs (including attorneys' fees) arising out of the same or in connection
therewith. Tenant shall give Landlord notice at least twenty (20) days prior to
the commencement of any Work on the Premises (or such additional time as may be
necessary under applicable Laws), to afford Landlord the opportunity of posting
and recording appropriate notices of non-responsibility. Tenant shall remove any
such lien or encumbrance by bond or otherwise within thirty (30) days after
written notice by Landlord, and if Tenant shall fail to do so, Landlord may pay
the amount necessary to remove such lien or encumbrance, without being
responsible for investigating the validity thereof. The amount so paid shall be
deemed additional Rent under this Lease payable upon demand, without limitation
as to other remedies available to Landlord under this Lease. Nothing contained
in this Lease shall authorize Tenant to do any act which shall subject
Landlord's title to the Property or Premises to any liens or encumbrances
whether claimed by operation of law or express or implied contract. Any claim to
a lien or encumbrance upon the Property or Premises arising in connection with
any Work on or respecting the Premises not performed by or at the request of
Landlord shall be null and void, or at Landlord's option shall attach only
against Tenant's interest in the Premises and shall in all respects be
subordinate to Landlord's title to the Property and Premises.
ARTICLE 9
REPAIRS
Except for customary cleaning and trash removal provided by Landlord under
Article 7, and damage covered under Article 10, Tenant shall keep the Premises
in good and sanitary condition, working order and repair (including without
limitation, carpet, wall-covering, doors, plumbing and other fixtures,
equipment, alterations and improvements within and solely serving the Premises
[other than Systems and Equipment] whether installed by Landlord or Tenant). In
the event that any repairs, maintenance or replacements are required, Tenant
shall promptly arrange for the same either through Landlord for such reasonable
charges as Landlord may from time to time establish, or such contractors as
Landlord generally uses at the Property or such other contractors as Landlord
shall first approve in writing, and in a first class, workmanlike manner
approved by Landlord in advance in writing. If Tenant does not promptly make
such arrangements, Landlord may, but need not, make such repairs, maintenance
and replacements, and the costs paid or incurred by Landlord therefor shall be
reimbursed by Tenant promptly after request by Landlord. Tenant shall indemnify
Landlord and pay for any repairs, maintenance and replacements to areas of the
Property outside the Premises, caused, in whole or in part, as a result of
moving any furniture, fixtures, or other property to or from the Premises, or by
Tenant or its employees, agents, contractors, or visitors (notwithstanding
anything to the contrary contained in this Lease). Except as provided in the
preceding sentence, or for damage covered under Article 10, Landlord shall keep
the common areas of the Property in good and sanitary condition, working order
and repair (the cost of which shall be included in Operating Expenses, as
described in Article 25, except as limited therein).
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ARTICLE 10
CASUALTY DAMAGE
If the Premises or any common areas of the Property providing access
thereto shall be damaged by fire or other casualty, Landlord shall use available
insurance proceeds to restore the same. Such restoration shall be to
substantially the condition prior to the casualty, except for modifications
required by zoning and building codes and other Laws or by any Holder (as
defined in Article 25), any other modifications to the common areas deemed
desirable by Landlord (provided access to the Premises is not materially
impaired), and except that Landlord shall not be required to repair or replace
any of Tenant's furniture, furnishings, fixtures or equipment, or any
alterations or improvements in excess of any work performed or paid for by
Landlord under the initial Work Agreement attached hereto as Exhibit B or under
any separate agreement signed by the parties in connection herewith. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or its
visitors, or injury to Tenant's business resulting in any way from such damage
or the repair thereof. However, Landlord shall allow Tenant a proportionate
abatement of Rent during the time and to the extent the Premises are unfit for
occupancy for the purposes permitted under this Lease and not occupied by Tenant
as a result thereof (unless Tenant or its employees or agents caused the damage
and then only to the extent such Rent abatement is not covered by Landlord's
insurance). Notwithstanding the foregoing to the contrary, Landlord may elect to
terminate this Lease by notifying Tenant in writing of such termination within
sixty (60) days after the date of damage (such termination notice to include a
termination date providing at least ninety (90) days for Tenant to vacate the
Premises), if the Property shall be materially damaged by Tenant or its
employees or agents, or if the Property shall be damaged by fire or other
casualty or cause such that: (a) repairs to the Premises and access thereto
cannot reasonably be completed within 180 days after the casualty without the
payment of overtime or other premiums, (b) more than 40% of the Premises is
affected by the damage, and fewer than 15 months remain in the Term, as it nay
have been extended, or any material damage occurs to the Premises during the
last 12 months of the Term, as it may have been extended, (c) any Holder (as
defined in Article 25) shall require that the insurance proceeds or any portion
thereof be used to retire the Mortgage debt (or shall terminate the ground
lease, as the case may be), or (d) the cost of the repairs, alterations,
restoration or improvement work would exceed 25% of the replacement value of the
Building. Tenant agrees that Landlord's obligation to restore, and the abatement
of Rent provided herein, shall be Tenant's sole recourse in the event of such
damage, although if Landlord has not, within sixty (60) days after the date of
damage, given notice to Tenant of its intent to perform or not perform repairs,
Tenant shall have the right to terminate the Lease by notice to Landlord. The
abatement of Rent under this provision shall be based upon the ratio of the
portion of the Premises damaged or otherwise rendered untenantable to the total
rentable square footage of the Premises at the time of such casualty. Tenant
acknowledges that this Article represents the entire agreement between the
parties respecting damage to the Premises or Property.
ARTICLE 11
INSURANCE, SUBROGATION, AND WAIVER OF CLAIMS
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Tenant shall maintain during the Term Commercial General Liability
insurance, with limits of not less than $2,000,000 per occurrence for personal
injury, bodily injury or death, or property damage or destruction (including
loss of use thereof). Such insurance shall be primary and any insurance carried
by Landlord or any other insured shall be excess and noncontributory. Tenant
shall also maintain during the Term workers' compensation insurance as required
by statute, employer's liability insurance in an amount of not less than
$500,000 per occurrence, and primary, noncontributory, "all-risk" property
damage insurance covering Tenant's personal property, business records, fixtures
and equipment, for damage or other loss caused by fire or other casualty or
cause including, but not limited to, vandalism and malicious mischief, theft,
water damage of any type, including sprinkler leakage, bursting or stoppage of
pipes, explosion, business interruption, and other insurable risks in amounts
not less than the full insurable replacement value of such property and full
insurable value of such other interests of Tenant (subject to reasonable
deductible amounts). Landlord shall, as part of Operating Expenses, maintain
during the Term Commercial General Liability insurance, with limits of not less
than $2,000,000 per occurrence for personal injury, bodily injury or death, or
property damage or destruction (including loss of use thereof). Landlord shall
also, as part of Operating Expanses, maintain during the Term workers'
compensation insurance as required by statute, and primary, non-contributory,
extended coverage or "all-risk" property damage insurance, in an amount equal to
at least ninety percent (90%) of the full insurable replacement value of the
Property (exclusive of the costs of excavation, foundations and footings, and
such risks required to be covered by Tenant's insurance, and subject to
reasonable deductible amounts), or such other amount necessary to prevent
Landlord from being a co-insured, and such other coverage as Landlord shall deem
appropriate or that may be required by any Holder (as defined in Article 25).
Tenant shall provide Landlord with certificates, evidencing such coverage
(and, with respect to liability coverage, showing Landlord and such other
parties that Landlord shall designate from time to time as additional insureds)
prior to the Commencement Date, which shall state that such insurance coverage
may not be changed or canceled without at least twenty (20) days prior written
notice to Landlord, and shall provide renewal certificates to Landlord at least
twenty (20) days prior to expiration of such policies. Except as provided to the
contrary herein, any insurance carried by Landlord or Tenant shall be for the
sole benefit of the party carrying such insurance. Any insurance policies
hereunder may be "blanket polices," provided that payments made in connection
with other properties covered by such blanket policies shall not diminish the
insurance amounts required hereunder. All insurance required hereunder shall be
provided by responsible insurers and Tenant's insurer shall have a rating of at
least A- and IX in the then current edition of Best's Key Rating Insurance guide
and shall otherwise be reasonably acceptable to Landlord. By this Article,
Landlord and Tenant intend that their respective property loss risks shall be
borne by responsible insurance carriers to the extent above provided, and
Landlord and Tenant hereby agree to look solely to, and seek recovery only from,
their respective insurance carriers in the event of a property loss to the
extent that such coverage is agreed to be provided hereunder. The parties each
hereby waive all rights and claims against such other for such losses, and waive
all rights of subrogation of their respective insurers, provided such waiver of
subrogation shall not affect the right of the insured to recover thereunder. The
parties agree that their respective insurance policies are now, or shall be,
endorsed such that said waiver of subrogation shall not affect the right of the
insured to recover thereunder, so long as no material additional premium is
charged therefor.
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ARTICLE 12
CONDEMNATION
If the whole or any material part of the Premises or Property shall be
taken by power of eminent domain or condemned by any competent authority for any
public or quasi-public use or purpose, or if any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such authority in
such manner as to require the reconstruction or remodeling of any material part
of the Premises or such portion of the Property as would render the Premises no
longer reasonably usable by Tenant, or if Landlord shall grant a deed or other
instrument in lieu of such taking by eminent domain or condemnation, Landlord
shall have the option to terminate this Lease upon ninety (90) days notice,
provided such notice is given no later than 180 days after the date of such
taking, condemnation, reconfiguration, vacation, deed or other instrument.
Tenant shall have reciprocal termination rights if the whole or any material
part of the Premises is permanently taken, or if access to the Premises is
(other than on a temporary basis where alternative access to the Premises is
still available to Tenant)materially impaired. Landlord shall be entitled to
receive the entire award or payment in connection therewith, except that Tenant
shall have the right to file any separate claim available to Tenant for any
taking of Tenant's personal property and fixtures belonging to Tenant and
removable by Tenant upon expiration of the Term, and for moving expenses (so
long as such claim does not diminish the award available to Landlord or any
Holder, and such claim is payable separately to Tenant). All Rent shall be
apportioned as of the date of such termination, or the date of such taking,
whichever shall first occur. If any part of the Premises shall be taken, and
this Lease shall not be so terminated, the Rent shall be proportionately abated.
ARTICLE 13
RETURN OF POSSESSION
At the expiration or earlier termination of this Lease or Tenant's right
of possession, Tenant shall surrender possession of the Premises in the
condition required under Article 9, ordinary wear and tear and casualty damage
(provided that, with respect to any casualty damage, Tenant provides Landlord
with any insurance proceeds received by Tenant for such casualty not
attributable to Tenant's furniture, fixtures, and equipment, plus an amount
equal to Tenant's deductible under its insurance) excepted, and shall surrender
all keys, any key cards, and any parking stickers or cards, to Landlord, and
advise Landlord as to the combination of any locks or vaults then remaining in
the Premises, and shall remove all trade fixtures, equipment, furnishings and
personal property. All improvements, fixtures and other items in or upon the
Premises (except trade fixtures, equipment, furnishings and personal property
belonging to Tenant), whether installed by Tenant or Landlord, shall be
Landlord's property and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant. However, if prior to such
termination or within ten (10) days thereafter Landlord so directs by notice,
Tenant shall promptly remove such of the foregoing items as are designated in
such notice and restore the Premises to the condition prior to the installation
of such items; provided, Landlord shall not require removal of customary office
improvements installed pursuant to any separate agreement signed by both parties
in connection with entering this Lease, or installed by Tenant with Landlord's
written approval (except as expressly required by Landlord in
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connection with granting such approval). However, under no circumstances shall
Landlord require Tenant to remove improvements installed in conjunction with the
initial occupancy by Tenant of any portion of the Premises, provided that such
improvements were installed in conformance, in all material respects, with the
approved Plans (as defined in Exhibit B). If Tenant shall fail to perform any
repairs or restoration, or fail to remove any items from the Premises required
hereunder, Landlord may do so, and Tenant shall pay Landlord the cost thereof
upon demand. All property removed from the Premises by Landlord pursuant to any
provisions of this Lease or any Law may be handled or stored by Landlord at
Tenant's expense, and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. All property not removed from the Premises
or retaken from storage by Tenant within thirty (30) days after expiration or
earlier termination of this Lease or Tenant's right to possession, shall at
Landlord's option be conclusively deemed to have been conveyed by Tenant to
Landlord as if by bill of sale without payment by Landlord. Unless prohibited by
applicable Law, Landlord shall have a lien against such property for the costs
incurred in removing and storing the same.
ARTICLE 14
HOLDING OVER
Unless Landlord expressly agrees otherwise in writing, Tenant shall pay
Landlord 150% of the amount of Base Rent then applicable (or the highest amount
permitted by Law, whichever shall be less), plus Tenant's Prorata Share of Taxes
and Operating Expenses prorated on per diem basis for each day Tenant shall
retain possession of the Premises or any part thereof after expiration or
earlier termination of this Lease. If such holdover, without consent, continues
for more than fifteen (15) days, then Tenant shall also be obligated for the
payment of (a) amounts payable by Landlord to third parties on account of such
holdover by Tenant, and (b) direct damages sustained by Landlord on account of
such holdover by Tenant. The foregoing provisions shall not serve as permission
for Tenant to holdover, nor serve to extend the Term (although Tenant shall
remain bound to comply with all provisions of this Lease until Tenant vacates
the Premises, and shall be subject to the provisions of Article 13).
Notwithstanding the foregoing to the contrary, at any time before or after
expiration or earlier termination of the Lease, Landlord may serve notice
advising Tenant of the amount of Rent and other terms required, should Tenant
desire to enter a month-to-month tenancy (and if Tenant shall hold over more
than one full calendar month after such notice, Tenant shall thereafter be
deemed a month-to-month tenant, on the terms and provisions of this Lease then
in effect, as modified by Landlord's notice, and except that Tenant shall not be
entitled to any renewal or expansion rights contained in this Lease or any
amendments hereto).
ARTICLE 15
NO WAIVER
No provision of this Lease will be deemed waived by either party unless
expressly waived in writing signed by the waiving party. No waiver shall be
implied by delay or any other act or omission of either party. No waiver by
either party of any provision of this Lease shall be deemed a waiver of such
provision with respect to any subsequent matter relating to
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such provision, and Landlord's consent or approval respecting any action by
Tenant shall not constitute a waiver of the requirement for obtaining Landlord's
consent or approval respecting any subsequent action. Acceptance of Rent by
Landlord shall not constitute a waiver of any breach by Tenant of any item or
provision of this Lease. No acceptance of a lesser amount than the Rent herein
stipulated shall be deemed a waiver of Landlord's right to receive the full
amount due, nor shall any endorsement or statement on any check or payment or
any letter accompanying such check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the full amount due. The acceptance of Rent or of
the performance of any other term or provision from any Person other than
Tenant, including any Transferee, shall not constitute a waiver of Landlord's
right to approve any Transfer.
ARTICLE 16
ATTORNEYS' FEES AND JURY TRIAL
In the event of any litigation between the parties, the prevailing party
shall be entitled to obtain, as part of the judgment, all reasonable attorneys'
fees, costs and expenses incurred in connection with such litigation, except as
may be limited by applicable Law. In the interest of obtaining a speedier and
less costly hearing of any dispute, the parties hereby each irrevocably waive
the right to trial by jury.
ARTICLE 17
PERSONAL PROPERTY TAXES, RENT TAXES AND OTHER TAXES
Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions assessed against or levied upon Tenant's fixtures,
furnishings, equipment and personal property located in the Premises. Tenant
shall pay any rent tax or sales tax, service tax, transfer tax or value added
tax, or any other applicable tax on the Rent or services herein. To the extent
that any Work in the Premises (beyond the initial improvements installed in
conjunction with Tenant's occupancy) have a value materially greater than the
tenant improvements installed by the average tenant in the Building, and if the
taxing authorities separately assess such additional improvements, Tenant shall
reimburse Landlord for the tax associated with such additional improvements.
ARTICLE 18
REASONABLE APPROVALS
Whenever Landlord's approval or consent is expressly required under this
Lease (including Article 21) or any other agreement between the parties,
Landlord shall not unreasonably withhold or delay such approval or consent
(reasonableness shall be a condition to Landlord's enforcement of such consent
or approval requirement, and not a covenant), except for matters affecting the
structure, safety or security of the Property, or the appearance of the Property
from any common or public areas.
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ARTICLE 19
SUBORDINATION, ATTORNMENT AND MORTGAGEE PROTECTION
Subject to the provisions of a subordination, non-disturbance and
attornment agreement in the form of Exhibit C attached hereto, to be entered
into between Tenant and the Holder, this Lease is subject and subordinate to all
Mortgages (as defined in Article 25) now or hereafter placed upon the Property,
and all other encumbrances and matters of public record applicable to the
Property. If any foreclosure proceedings are initiated by any Holder or a deed
in lieu is granted (or if any ground lease is terminated), Tenant agrees, upon
written request of any such Holder or any purchaser at foreclosure sale, to
attorn and pay Rent to such party and to execute and deliver any instruments
necessary or appropriate to evidence or effectuate such attornment (provided
such Holder or purchaser shall agree to accept this Lease and not disturb
Tenant's occupancy, so long as Tenant does not default and fail to cure within
the time permitted hereunder). However, in the event of attornment, no Holder
shall be: (i) liable for any act or omission of Landlord, or subject to any
offsets or defenses which Tenant might have against Landlord (prior to such
Holder becoming Landlord under such attornment), (ii) liable for any security
deposit or bound by any prepaid Rent not actually received by such Holder, or
(iii) bound by any future modification of this Lease not consented to by such
Holder under circumstances in which Landlord is required to obtain the consent
of the Holder, but such consent has not been provided (with Tenant to be
provided with notice of any such Holder refusal to grant consent when such
consent is required). Any Holder (as defined in Article 25) may elect to make
this Lease prior to the lien of its Mortgage, by written notice to Tenant, and
if the Holder of any prior Mortgage shall require, this Lease shall be prior to
any subordinate Mortgage. Tenant agrees to give any Holder by certified mail,
return receipt requested, a copy of any notice of default served by Tenant upon
Landlord, provided that prior to such notice Tenant has been notified in writing
(by way of service on Tenant of a copy of an assignment of leases, or otherwise)
of the address of such Holder. Tenant further agrees that if Landlord shall have
failed to cure such default within the times permitted Landlord for cure under
this Lease, any such Holder whose address has been provided to Tenant shall have
an additional period of thirty (30) days in which to cure (or such additional
time as may be required due to causes beyond such Holder's control, including
time to obtain possession of the Property by power of sale or judicial action)
subject to Tenant's right to exercise its remedies under Article 7, which Tenant
may utilize whether or not Holder has obtained possession or control of the
Property. Tenant shall execute such documentation as Landlord may reasonably
request from time to time, in order to confirm the matters set forth in this
Article in recordable form.
ARTICLE 20
ESTOPPEL CERTIFICATE
Tenant shall from time to time, within twenty (20) days after written
request from Landlord, execute, acknowledge and deliver a statement (i)
certifying that this Lease is unmodified and in full force and effect or, if
modified, stating the nature of such modification and certifying that this Lease
as so modified, is in full force and effect (or if this Lease is claimed not to
be in force and effect, specifying the ground therefor) and any dates to which
the Rent has been paid in advance, and the amount of any Security Deposit, (ii)
acknowledging
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that there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any are claimed, and (iii)
certifying such other matters as Landlord may reasonably request, or as may be
requested by Landlord's current or prospective Holders, insurance carriers,
auditors, and prospective purchasers. Any such statement may be relied upon by
any such parties. If Tenant shall fail to execute and return such statement
within the time required herein, Tenant shall be deemed to have agreed with the
matters set forth therein.
ARTICLE 21
ASSIGNMENT AND SUBLETTING
(A) TRANSFERS. Except as otherwise specifically provided herein, Tenant
shall not, without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, as further described below: (i) assign, mortgage,
pledge, hypothecate, encumber, or permit any lien to attach to, or otherwise
transfer, this Lease or any interest hereunder, by operation of law or
otherwise, (ii) sublet the Premises or any part thereof, or (iii) permit the use
of the Premises by any Persons (as defined in Article 25) other than Tenant, its
employees, its agents and invitees (all of the foregoing are hereinafter
sometimes referred to collectively as "Transfers" and any Person to whom any
Transfer is made or sought to be made is hereinafter sometimes referred to as a
"Transferee"). If Tenant shall desire Landlord's consent to any Transfer, Tenant
shall notify Landlord in writing, which notice shall include: (a) the proposed
effective date (which shall not be less than 30 nor more than 180 days after
Tenant's notice), (b) the portion of the Premises to be Transferred (herein
called the "Subject Space"), (c) the terms of the proposed Transfer and the
consideration therefor, the name and address of the proposed Transferee, and a
copy of all documentation pertaining to the proposed Transfer, and (d) current
financial statements of the proposed Transferee certified by an officer, partner
or owner thereof, and any other reasonably required information to enable
Landlord to determine the financial responsibility, character, and reputation of
the proposed Transferee, nature of such Transferee's business and proposed use
of the Subject Space, and such other information as Landlord may reasonable
require. Any Transfer made without complying with this Article shall, be null,
void and of no effect. Whether or not Landlord shall grant consent, Tenant shall
pay $300.00 towards Landlord's review and processing expenses, as well as any
reasonable legal fees incurred by Landlord, within thirty (30) days after
written request by Landlord.
(B) APPROVAL. Landlord will not unreasonably withhold its consent (as
provided in Article 18) to any proposed Transfer of the Subject Space to the
Transferee on the terms specified in Tenant's notice. The parties hereby agree
that it shall be reasonable under this Lease and under any applicable Law for
Landlord to withhold consent to any proposed Transfer where one or more of the
following applies (without limitation as to other reasonable grounds for
withholding consent): (i) the Transferee is of a character or reputation or
engaged in a business which is not consistent with the quality of the Property,
or would be a significantly less prestigious occupant of the Property than
Tenant, (ii) the Transferee intends to use the Subject Space for purposes which
are not permitted under this Lease, (iii) the Subject Space is not regular in
shape with appropriate means of ingress and egress suitable for use in
accordance with any applicable Law, (iv) the Transferee is either a government
(or agency or instrumentality thereof) or an occupant of the Property, (v) the
proposed Transferee
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does not have a reasonable financial condition in relation to the obligations to
be assumed in connection with the Transfer, or (vi) Tenant has committed and
failed to cure a Default at the time Tenant requests consent to the proposed
Transfer.
(C) TRANSFER PREMIUM. If Landlord consents to a Transfer, and as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
Landlord fifty percent (50%) of any Transfer Premium derived by Tenant from such
Transfer. "Transfer Premium" shall mean all rent, additional rent or other
consideration paid by such Transferee in excess of the Rent payable by Tenant
under this Lease (on a monthly basis during the Term, and on a per rentable
square foot basis, if less than all of the Premises is transferred), after
deducting the reasonable expenses incurred by Tenant for any changes,
alterations and improvements to the Premises, any other economic concessions or
services provided to the Transferee, and any customary brokerage commissions
paid in connection with the Transfer. If part of the consideration for such
Transfer shall be payable other than in cash, Landlord's share of such non-cash
consideration shall be in such form as is reasonably satisfactory to Landlord.
The percentage of the Transfer Premium due Landlord hereunder shall be paid
within ten (10) days after Tenant receives any Transfer Premium from the
Transferee.
(D) RECAPTURE. Notwithstanding anything to the contrary contained in this
Article, Landlord shall have the option, by giving written notice to Tenant
within thirty (30) days after receipt of Tenant's notice of any proposed
Transfer, to indicate its intention to recapture the subject Space. Upon receipt
of Landlord's notice indicating its intention to recapture the portion of the
Premises subject to the proposed Transfer, Tenant may, upon delivery of notice
to Landlord within five (5) business days thereafter, rescind its intention to
proceed with the proposed Transfer. If Tenant does not so rescind, Landlord's
recapture notice shall be deemed to cancel and terminate this Lease with respect
to the Subject Space as of the date stated in Tenant's notice as the effective
date of the proposed Transfer (or at Landlord's option, shall cause the Transfer
to be made to Landlord or its agent, in which case the parties shall execute the
Transfer documentation promptly thereafter). If this Lease shall be cancelled
with respect to less than the entire Premises, the Rent reserved herein shall be
prorated on the basis of the number of rentable square feet retained by Tenant
in proportion to the number of rentable square feet contained in the Premises,
this Lease as so amended shall continue thereafter in full force and effect, and
upon request of either party, the parties shall execute written confirmation of
the same.
(E) TERMS OF CONSENT. If Landlord consents to a Transfer: (a) the terms
and conditions of this Lease, including among other things, Tenant's liability
for the Subject Space, shall in no way be deemed to have been waived or
modified, (b) such consent shall not be deemed consent to any further Transfer
by either Tenant or a Transferee, (c) no Transferee shall succeed to any rights
provided in this Lease or any amendment hereto to extend the Term of this Lease,
expand the Premises, or lease additional space, any such rights being deemed
personal to Tenant, (d) Tenant shall deliver to Landlord promptly after
execution, an original executed copy of all documentation pertaining to the
Transfer in form reasonably acceptable to Landlord, and (e) Tenant shall furnish
upon Landlord's request a complete statement, certified by an independent
certified public accountant, or Tenant's chief financial officer, setting forth
in detail the computation of any Transfer Premium Tenant has derived and shall
derive from such Transfer. Landlord or its authorized representatives shall have
the right at all reasonable
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times to audit the books, records and papers of Tenant relating to any Transfer,
and shall have the right to make copies thereof. If the Transfer Premium
respecting any Transfer shall be found understated, Tenant shall within thirty
(30) days after demand pay the deficiency, and if understated by more than 2%,
Tenant shall pay Landlord's costs of such audit. Any sublease hereunder shall be
subordinate and subject to the provisions of this Lease, and if this Lease shall
be terminated during the term of any sublease, Landlord shall have the right to:
(i) treat such sublease as canceled and repossess the Subject Space by any
lawful means, or (ii) require that such subtenant attorn to and recognize
Landlord as its landlord under any such sublease. If Tenant shall Default and
fail to cure within the time permitted for cure under Article 23(A), Landlord is
hereby irrevocably authorized, as Tenant's agent and attorney-in-fact, to direct
any Transferee to make all payments under or in connection with the Transfer
directly to Landlord (which Landlord shall apply towards Tenant's obligations
under this Lease) until such Default is cured.
(F) CERTAIN TRANSFERS. For purposes of this Lease, the term "Transfer"
shall also include (a) if Tenant is a partnership, the withdrawal or change,
voluntary, involuntary or by operation of law, of a majority of the partners, or
a transfer of a majority of partnership interests, within a twelve month period,
or the dissolution of the partnership, and (b) if Tenant is a closely held
corporation (i.e., whose stock is not publicly held and not traded through an
exchange or over the counter), the dissolution, merger, consolidation or other
reorganization of Tenant, or within a twelve month period: (i) the sale or other
transfer of more than an aggregate of 50% of the voting shares of Tenant (other
than to immediate family members by reason of gift or death) or (ii) the sale,
mortgage, hypothecation or pledge of more than an aggregate of 50% of Tenant's
net assets. Notwithstanding any of the foregoing to the contrary, no Transfer
shall be deemed to exist based upon: (i) Tenant's participation in a private
placement or public offering of its securities (even if involving in excess of
fifty percent (50%) of the voting shares of Tenant); or (ii) Tenant's providing
an overall lien on its assets in conjunction with corporate financing, provided
that same have no reasonable business purpose other than to circumvent
Landlord's rights pursuant to this Article 21.
(G) RELATED ENTITIES. Notwithstanding anything to the contrary in this
Article 21, Tenant may, upon not less than five (5) days prior written notice to
Landlord, permit any corporations or other business entities which are
controlled by, or under common control with Tenant, or a parent, subsidiary
division or corporation controlled by or controlling Tenant, a successor
corporation related to Tenant by merger or consolidation, or the purchaser of
substantially all of Tenant's assets or stock (a "Related Entity") to sublet all
or part of the Premises or receive an assignment of the Lease, provided that (i)
Tenant shall not be in default under this Lease, (ii) prior to such subletting
or assignment, as the case may be, Tenant furnishes Landlord with the name of
any such Related Entity, together with a certification of Tenant, and such other
proof as Landlord may reasonably request, that such subtenant or assignee, as
the case may be, is a Related Entity of Tenant and continues to remain such
during the Term. Landlord shall have the right, at any reasonable time, to
examine such books and records of Tenant as may be necessary to establish that
such sublessee or assignee, as the case may be, remains a Related Entity of
Tenant. Such subletting or assignment shall not relieve Tenant of any of
Tenant's liability or obligations under this Lease. For the purposes hereof,
"control" shall mean the power to directly or indirectly direct or cause the
direction of the management or policies of such corporation or entity.
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ARTICLE 22
RIGHTS RESERVED BY LANDLORD
Except to the extent expressly limited herein, Landlord reserves full
rights to control the Property (which rights may be exercised without subjecting
Landlord to claims for constructive eviction, abatement of Rent, damages or
other claims of any kind), including more particularly, but without limitation,
the following rights:
(A) To change the name or street address of the Property; install and
maintain signs on the exterior and interior of the Property; retain at all
times, and use in appropriate instances (subject to the limitations set forth in
this Lease, keys to all doors within and into the Premises; grant to any Person
the right to conduct any business or render any service at the Property, whether
or not it is the same or similar to the use permitted Tenant by this Lease; and
have access for Landlord and other tenants of the Property to any mail chutes
located on the Premises according to the rules of the United States Postal
Service.
(B) To enter the Premises at reasonable hours for reasonable purposes,
including inspection and supplying cleaning service or other services to be
provided Tenant hereunder, to show the Premises to current and prospective
mortgage lenders, ground lessors, insurers, and prospective purchasers, tenants
and brokers, at reasonable hours, and if Tenant shall abandon the Premises at
any time, or shall vacate the same during the last 3 months of the Term, to
decorate, remodel, repair, or alter the Premises.
(C) To limit or prevent access to the Property, shut down elevator
service, activate elevator emergency controls, or otherwise take such action or
preventative measures deemed necessary by Landlord for the safety of tenants or
other occupants of the Property or the protection of the Property and other
property located thereon or therein, in case of fire, invasion, insurrection,
riot, civil disorder, public excitement or other dangerous condition, or threat
thereof.
(D) To decorate and to make alterations, additions and improvements,
structural or otherwise, in or to the Property or any part thereof, and any
adjacent building, structure, parking facility, land, street or alley (including
without limitation changes and reductions in corridors, lobbies, parking
facilities and other public areas and the installation of kiosks, planters,
sculptures, displays, escalators, mezzanines, and other structures, facilities,
amenities and features therein, and changes for the purpose of connection with
or entrance into or use of the Property in conjunction with any adjoining or
adjacent building or buildings, now existing or hereafter constructed). In
connection with such matters, or with any other repairs, maintenance,
improvements, or alterations, in or about the Property, Landlord may erect
scaffolding and other structures reasonably required, and during such operations
may enter upon the Premises and take into and upon or through the Premises, all
materials required to make such repairs, maintenance, alterations or
improvements, and may close public entry ways, other public areas, restrooms,
stairways or corridors so long as such work does not unreasonably materially and
permanently interfere with Tenant's access to or use of the Premises.
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In connection with entering the Premises to exercise any of the foregoing
rights, Landlord shall: (a) provide reasonable advance written or oral notice to
Tenant's on-site manager or other appropriate person (except in emergencies, or
for routine cleaning or other routine matters), (b) take reasonable steps to
minimize any interference with Tenant's business, and (c) not show the Premises
to prospective tenants other than during the last nine (9) months of the Term
(or otherwise with Tenant's specific consent).
ARTICLE 23
LANDLORD'S REMEDIES
(A) DEFAULT. The occurrence of any one or more of the following events
shall constitute a "Default" by Tenant, which is not cured within any applicable
time permitted for cure below, shall give rise to Landlord's remedies set forth
in Paragraph (B), below: (i) failure by Tenant to make when due any payment of
Rent, unless such failure is cured within ten (10) days after notice; (ii)
failure by Tenant to observe or perform any of the terms or conditions of this
Lease to be observed or performed by Tenant other than the payment of Rent, or
as provided below, unless such failure is cured within thirty (30) days after
notice, or such shorter period expressly provided elsewhere in this Lease
(provided, if the nature of Tenant's failure is such that more time is
reasonably required in order to cure, Tenant shall not be in Default if Tenant
commences to cure within such period and thereafter reasonably seeks to cure
such failure to completion); (iii) failure by Tenant to comply with the Rules,
unless such failure is cured within five (5) days after notice (provided, if the
nature of Tenant's failure is such that more time is reasonably required in
order to cure, Tenant shall not be in Default if Tenant commences to cure within
period and thereafter reasonably seeks to cure such failure to completion); (iv)
the failure to take possession of the Premises within sixty (60) days after the
Commencement Date; (v) (a) making by Tenant or any guarantor of this Lease
("Guarantor") of any general assignment for the benefit of creditors, (b) filing
by or against Tenant or any Guarantor of a petition to have Tenant or such
Guarantor adjudged a bankrupt or a petition for reorganization or arrangement
under any Law relating to bankruptcy (unless, in the case of a petition filed
against Tenant or such Guarantor, the same is dismissed within sixty (60) days,
(c) appointment of a trustee or receiver to take possession of substantially all
of Tenant's assets located on the Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within thirty (30) days, (d)
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located on the Premises or of Tenant's interest in this Lease, (e)
Tenant's or any Guarantor's convening of a meeting of its creditors or any class
thereof for the purpose of effecting a moratorium upon or composition of its
debts, or (f) Tenant's or any Guarantor's insolvency or admission of an
inability to pay its debts as they mature; or (vi) any material
misrepresentation herein, or material misrepresentation or omission in any
financial statements or other materials provided by Tenant or any Guarantor in
connection with negotiating or entering this Lease or in connection with any
Transfer under Article 21. Failure to comply with the same term or condition of
this Lease, which failure is either monetary in nature or a material term or
condition of this Lease, on four (4) occasions during any twelve (12) month
period shall cause any failure to comply with such term or condition during the
succeeding twelve month period, at Landlord's option, to constitute an incurable
Default, if Landlord has given Tenant notice of each such failure within ten
(10) days after each such
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failure occurs. The notice and cure periods provided herein are in lieu of, and
not in addition to, any notice and cure periods provided by Law.
(B) REMEDIES. If a Default occurs and is not cured within any applicable
time permitted under Paragraph (A), Landlord shall have the rights and remedies
hereinafter set forth, which shall be distinct, separate and cumulative with and
in addition to any other right or remedy allowed under any Law or, other
provisions of this Lease:
(i) Landlord may terminate this Lease, repossess the Premises by
detainer suit, summary proceedings or other lawful means, and
recover as damages a lump sum of money equal to: (a) any
unpaid Rent as of the termination date including interest at
the Default Rate calculated from the date each item of unpaid
Rent was first payable hereunder (as defined in Article 25),
plus (b) any unpaid Rent which would have accrued after the
termination date, less such loss of Rent the Tenant proves
could have been reasonably avoided, discounted to present
value at an assumed interest rate equal to six percent (6%)
per annum. Landlord shall also be entitled to recover all
Costs of Reletting (as defined in Paragraph F). For purposes
of computing the amount of Rent herein that would have accrued
after the time of award, Tenant's Prorata Share of Taxes and
Operating Expenses shall be projected, based upon the average
rate of increase, if any, in such items from the Commencement
Date through the time of award.
(ii) If applicable Law permits, Landlord may terminate Tenant's
right of possession and repossess the Premises by detainer
suit, summary proceedings or other lawful means, without
terminating this Lease (and if such Law permits, and Landlord
shall not have expressly terminated the Lease in writing, any
termination shall be deemed a termination of Tenant's right of
possession only). In such event, Landlord may recover: (a) any
unpaid Rent as of the date possession is terminated, including
interest at the Default Rate, (b) any unpaid Rent which
accrues during the Term from the date possession is terminated
through the time of award (or which may have accrued from the
time of any earlier award obtained by Landlord through the
time of award), including interest at the Default Rate
calculated from the date each item of unpaid Rent was first
payable hereunder, less any Net Re-Letting Proceeds (as
defined in Paragraph F) received by Landlord during such
period. Landlord shall also be entitled to recover all Costs
of Reletting (as defined in Paragraph F). Landlord may bring
suits for such amounts or portions thereof, at any time or
times as the same accrue or after the same have accrued, and
no suit or recovery of any portion due hereunder shall be
deemed a waiver of Landlord's right to collect all amounts to
which Landlord is entitled hereunder, nor shall the same serve
as any defense to any subsequent suit brought for any amount
not theretofore reduced to judgment.
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(C) MITIGATION OF DAMAGES. If Landlord terminates this Lease or Tenant's
right to possession, Landlord shall use reasonable efforts to mitigate
Landlord's damages, and Tenant shall be entitled to submit proof of such failure
to mitigate as a defense to Landlord's claims hereunder. If Landlord has not
terminated this Lease or Tenant's right to possession, Landlord shall have no
obligation to mitigate, and may permit the Premises to remain vacant or
abandoned; in such case, Tenant may seek to mitigate damages by attempting to
sublease the Premises or assign this Lease (subject to Article 21).
(D) SPECIFIC PERFORMANCE, COLLECTION OF RENT AND ACCELERATION. Landlord
shall at all times have the rights and remedies (which shall be cumulative with
each other and cumulative and in addition to those rights and remedies available
under Paragraph (B), above or any Law or other provision of this Lease), without
prior demand or notice except as required by applicable Law: (i) to seek any
declaratory, injunctive or other equitable relief, and specifically enforce this
Lease, or restrain or enjoin a violation or breach of any provision hereof, and
ii) to sue for and collect any unpaid Rent which has accrued. Notwithstanding
anything to the contrary contained in this Lease, to the extent not expressly
prohibited by applicable Law, in the event of any Default by Tenant not cured
within any applicable time for cure hereunder, Landlord may terminate this Lease
or Tenant's right to possession in accordance with Paragraphs (B)(i) and (ii)
above.
(E) LATE CHARGES AND INTEREST. Tenant shall pay, additional Rent, a
service charge of Two Hundred Dollars ($200.00) for bookkeeping and
administrative expenses, if Rent is not received within ten (10) days after its
due date. In addition, any Rent paid more than five (5) days after due shall
accrue interest from the due date at the Default Rate (as defined in Article
25), until payment is received by Landlord. Such service charge and interest
payments shall not be deemed consent by Landlord to late payments, nor a waiver
of Landlord's right to insist upon timely payments at any time, nor a waiver of
any remedies to which Landlord is entitled as a result of the late payment of
Rent.
(F) CERTAIN DEFINITIONS. "Net Re-Letting Proceeds" shall mean the total
amount of rent and other consideration paid by any Replacement Tenants, less all
Costs of Re-Letting, during a given period of time. "Costs of Re-Letting" shall
include without limitation, all reasonable costs and expenses incurred by
Landlord for any repairs, maintenance, changes, alterations and improvements to
the Premises, brokerage commissions, advertising costs, reasonable attorneys'
fees, any customary free rent periods or credits, tenant improvement allowances,
take-over lease obligations and other customary, necessary or appropriate
economic incentives required to enter leases with Replacement Tenants, and costs
of collecting rent from Replacement Tenants. "Replacement Tenants" shall mean
any Persons (as defined in Article 25) to whom Landlord relets the Premises or
any portion thereof pursuant to this Article. The amount of `Net Re-Letting
Proceeds' shall be increased by any amounts that Tenant reasonably demonstrates
would have been received by Landlord with regard to the Premises, but which
Landlord has not received due to its negligent actions.
(G) OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations and additions, reletting, acceptance of keys from Tenant, or any
other action or omission by Landlord shall be construed as an election by
Landlord to terminate this Lease or Tenant's right to possession, or accept a
surrender of the Premises, nor shall the same operate to release
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Tenant in whole or in part from any of Tenant's obligations hereunder, unless
express written notice of such intention is sent by Landlord or its agent to
Tenant. To the fullest extent permitted by Law, all rent and other consideration
paid by any Replacement Tenants shall be applied: first, to the Costs of
Re-Letting, second, to the payment of any Rent theretofore accrued, and the
residue, if any, shall be held by Landlord and applied to the payment of other
obligations of Tenant to Landlord as the same become due (with any remaining
residue, after full discharge of Tenant's obligations, to be retained by
Landlord). Rent shall be paid without any prior demand or notice therefor
(except as expressly provided herein) and without any deduction, set-off or
counterclaim, or relief from any valuation or appraisement laws. Landlord may
apply payments received from Tenant to any obligations of Tenant then accrued,
without regard to such obligations as may be designated by Tenant. Landlord
shall be under no obligation to observe or perform any provision of this Lease
on its part to be observed or performed which accrues after the date of any
Default by Tenant hereunder not cured within the times permitted hereunder. The
times set forth herein for the curing of Defaults by Tenant are of the essence
of this Lease. Tenant hereby irrevocably waives any right otherwise available
under any Law to redeem or reinstate this Lease.
ARTICLE 24
LANDLORD'S RIGHT TO CURE
If Landlord shall fail to perform any term or provision under this Lease
required to be performed by Landlord, Landlord shall not be deemed to be in
default hereunder nor subject to any claims for damages of any kind, unless such
failure shall have continued for a period of thirty (30) days after written
notice thereof by Tenant; provided, if the nature of Landlord's failure is such
that more than thirty (30) days are reasonably required in order to cure,
Landlord shall not be in default if Landlord commences to cure such failure
within such thirty (30) day period, and thereafter diligently and continuously
pursues such cure to completion. The aforementioned periods of time permitted
for Landlord to cure shall be extended for any period of time during which
Landlord is delayed in, or prevented from, curing due to fire or other casualty,
strikes, lock-outs or other labor troubles, shortages of equipment or materials,
governmental requirements, power shortages or outages, acts or omissions by
Tenant or other Persons not under the control of Landlord, and other causes
beyond Landlord's reasonable control. If Landlord shall fail to cure within the
times permitted for cure herein, Landlord shall be subject to such remedies as
may be available to Tenant (subject to the other provisions of this Lease);
provided, in recognition that Landlord must receive timely payments of Rent and
operate the Property, Tenant shall have no right to withhold, set-off, or abate
Rent based solely upon Landlord's failure to cure.
ARTICLE 25
CAPTIONS, DEFINITIONS AND SEVERABILITY
The captions of the Articles and Paragraphs of this Lease are for
convenience of reference only and shall not be considered or referred to in
resolving questions of interpretation. If any term or provision of this Lease
shall be found invalid, void, illegal, or unenforceable with respect to any
particular Person by a court of competent jurisdiction, it
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shall not affect, impair or invalidate any other terms or provisions hereof, or
its enforceability with respect to any other Person, the parties hereto agreeing
that they would have entered into the remaining portion of this Lease
notwithstanding the omission of the portion or portions adjudged invalid, void,
illegal, or unenforceable with respect to such Person.
(A) "Building" shall mean the structure identified in Article I of this
Lease.
(B) Intentionally omitted.
(C) "Default Rate" shall mean twelve percent (12%) per annum, or the
highest rate permitted by applicable Law, whichever shall be less.
(D) "Holder" shall mean the holder of any Mortgage at the time in
question, and where such Mortgage is a ground lease, such term shall refer to
the ground lessor.
(E) "Holidays" shall mean all federally observed holidays, including New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day,
Christmas Day, and such other holidays as are from time to time determined by
Landlord to be generally applicable to the Property, consistent with other
similarly situated office buildings in downtown Minneapolis.
(F) "Landlord" and "Tenant" shall be applicable to one or more Persons as
the case may be, and the singular shall include the plural, and the neuter shall
include the masculine and feminine; and if there be more than one, the
obligations thereof shall be joint and several. For purposes any provisions
indemnifying or limiting the liability of Landlord, the term "Landlord" shall
include Landlord's present and future partners, beneficiaries, trustees,
officers, directors, employees, shareholders, principals, agents, affiliates,
successors and assigns.
(G) "Law" shall mean all federal, state, county and local governmental and
municipal laws, statutes, ordinances, rules, regulations, codes, decrees, orders
and other such requirements, applicable equitable remedies and decisions by
courts in cases where such decisions are considered binding precedents in the
state in which the Property is located, and decisions of federal courts applying
the Laws of such State.
(H) "Mortgage" shall mean all mortgages, deeds of trust, ground leases and
other such encumbrances now or hereafter placed upon the Property or Building,
or any part thereof, and all renewals, modifications, consolidations,
replacements or extensions thereof, and all indebtedness now or hereafter
secured thereby and all interest thereon.
(I) "Operating Expenses" shall mean all expenses, costs and amounts (other
than Taxes) of every kind and nature which Landlord shall pay during any
calendar year any portion of which occurs during the Term, because of or in
connection with the ownership, management, repair, maintenance, restoration and
operation of the Property, including without limitation, any amounts paid for:
(a) utilities for the Property, including but not limited to electricity, power,
gas, steam, oil or other fuel, water, sewer, lighting, heating, air conditioning
and ventilating, (b) permits, licenses and certificates necessary to operate,
manage and lease
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the Property, (c) insurance applicable to the Property, not limited to the
amount of coverage Landlord is required to provide under this Lease, (d)
supplies, tools, equipment and materials used in the operation, repair and
maintenance of the Property, (e) accounting, legal, inspection, consulting,
concierge and other services, (f) any equipment rental (or installment equipment
purchase or equipment financing agreements), or management agreements (including
the cost of any management fee actually paid thereunder and the fair rental
value of any office space provided thereunder, up to customary and reasonable
amounts), (g) wages, salaries and other compensation and benefits (including the
fair value of any parking privileges provided) for all persons engaged in the
operation, maintenance or security of the Property, and employer's Social
Security taxes, unemployment taxes or insurance, and any other taxes which may
be levied on such wages, salaries, compensation and benefits, (h) payments under
any easement, operating agreement, declaration, restrictive covenant, or
instrument pertaining to the sharing of costs in any planned development, and
(i) operation, repair, and maintenance of all Systems and Equipment and
components thereof (including replacement of components), janitorial service,
alarm and security service, window cleaning, trash removal, elevator
maintenance, cleaning of walks, parking facilities and building walls, removal
of ice and snow, replacement of wall and floor coverings, ceiling tiles and
fixtures in lobbies, corridors, restrooms and other common or public areas or
facilities, maintenance and replacement of shrubs, trees, grass, sod and other
landscaped items, irrigation systems, drainage facilities, fences, curbs, and
walkways, re-paving and re-striping parking facilities, and roof repairs. If the
Property is not fully occupied during all or a portion of any calendar year,
Landlord may, in accordance with sound accounting and management practices,
determine the amount of variable Operating Expenses (i.e., those items which
vary according to occupancy levels) that would have been paid had the Property
been fully occupied, and the amount so determined shall be deemed to have been
the amount of variable Operating Expenses for such year. Notwithstanding the
foregoing, Operating Expenses shall not, however, include:
(i) depreciation, interest and amortization on Mortgages, and
other debt costs or ground lease payments, if any; legal fees
in connection with leasing, tenant disputes or enforcement of
leases; real estate brokers' leasing commissions; improvements
or alterations to tenant spaces; the cost of providing any
service directly to and paid directly by, any tenant; any
costs expressly excluded from Operating Expenses elsewhere in
this Lease; costs of any items to the extent Landlord receives
reimbursement from insurance proceeds or from a third party
(such proceeds to be deducted from Operating Expenses in the
year in which received);
(ii) capital expenditures, except those: (a) made primarily to
reduce Operating Expenses, or to comply with any Laws or other
governmental requirements, or (b) for replacements (as opposed
to additions or new improvements) of non-structural items
located in the common areas of the Property required to keep
such areas in good condition; provided, all such permitted
capital expenditures (together with reasonable financing
charges) shall be amortized for purposes of this Lease over
the shorter of: (i) their useful lives, or (ii) the period
during which the reasonably estimated savings in Operating
Expenses equals the expenditures, and
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(iii) the cost of marketing tenant spaces, costs incurred by
Landlord in preparing rentable space for occupancy, payments
of principal, penalties, fees or other charges (as well as
interest) on any mortgages or other encumbrances on the
Property or rent under any ground lease, wages, salaries or
other compensation paid to any executive employee of Landlord
or the property manager ranking above the on-site property
manager, any cost or expense representing an amount paid for
products or services to a person or entity related to or
affiliated with Landlord which is in excess of the fair market
value of such services and products, all costs resulting from
the delivery to other tenants of the Building of services
substantially greater in quantity or higher in quality than
those delivered to Tenant, any bad debt expense or bad debt
reserve or costs of correcting defects in the initial design
or construction of the Building. The management fee payable
shall not exceed 3% of the Building's gross rentals. Any
refunds or rebates on account of insurance paid during the
Term, for which Tenant paid Team's Prorata Share for same,
shall be credited to Tenant's obligation for the payment of
Operating Expenses, notwithstanding the time limits set forth
in Article 3(F).
(J) "Person" shall mean an individual, trust, partnership, joint venture,
association, corporation, and any other entity.
(K) "Property" shall mean the Building, and any common or public areas or
facilities, easements, corridors, lobbies, sidewalks, loading areas, driveways,
landscaped areas, skywalks, parking garages and lots, and any and all other
structures or facilities operated or maintained in connection with or for the
benefit of the Building, and all parcels or tracts of land on which all or any
portion of the Building or any of the other foregoing items are located, and any
fixtures, machinery, equipment, apparatus, Systems and Equipment, furniture and
other personal property located thereon or therein and used in connection
therewith, whether title is held by Landlord or its affiliates. Possession of
areas necessary for utilities, services, safety and operation of the Property,
including the Systems and Equipment (as defined in Article 25), fire stairways,
perimeter walls, space between the finished ceiling of the Premises and the slab
of the floor or roof of the Property there above, and the use thereof together
with the right to install, maintain, operate, repair and replace the Systems and
Equipment, including any of the same in, through, under or above the Premises in
locations that will not materially interfere with Tenant's use of the Premises,
are hereby excepted and reserved by Landlord, and not demised to Tenant. If the
Building shall be part of a complex, development or group of buildings or
structures collectively owned or managed by Landlord or its affiliates or
collectively managed by Landlord's managing agent, the Property shall, at
Landlord's option also be deemed to include such other of those buildings or
structures as Landlord shall from time to time designate, and shall initially
include such buildings and structures (and related facilities and parcels on
which the same are located) as Landlord shall have incorporated by reference to
the total square footage of the Property in Article 1. However, no inclusion of
other such buildings and structures (and related facilities and parcels on which
the same are located) within the definition of Property (and the allocation of
the costs of such other properties hereunder) shall increase the amount payable
by Tenant hereunder for Taxes or Operating Expenses.
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(L) "Rent" shall have the meaning specified therefor in Article 3(G).
(M) "Systems and Equipment" shall mean any plant, machinery, transformers,
duct work, cable, wires, and other equipment, facilities, and systems designed
to supply heat, ventilation, air conditioning and humidity or any other services
or utilities, or comprising or serving as any component or portion of the
electrical, gas, steam, plumbing, sprinkler, communications, alarm, security, or
fire/life/safety systems or equipment, or any other mechanical, electrical,
electronic, computer or other systems or equipment for the Property.
(N) "Taxes" shall mean all federal, state, county, or local governmental
or municipal taxes, fees, charges or other impositions of every kind and nature,
whether general, special, ordinary or extraordinary (including without
limitation, real estate taxes, general and special assessments, transit taxes,
water and sewer rents, taxes based upon the receipt of rent including gross
receipts or sales taxes applicable to the receipt of rent or service or value
added taxes (unless required to be paid by Tenant under Article 17), personal
property taxes imposed upon the fixtures, machinery, equipment, apparatus,
Systems and Equipment, appurtenances, furniture and other personal property used
in connection with the Property which Landlord shall pay during any calendar
year, any portion of which occurs during the Term (without regard to any
different fiscal year used by such government or municipal authority) because of
or in connection with the ownership, leasing and operation of the Property.
Notwithstanding the foregoing, there shall be excluded from Taxes all excess
profits taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and
succession taxes, estate taxes, federal and state income taxes, and other taxes
to the extent applicable to Landlord's general or net income (as opposed to
rents, receipts or income attributable to operations at the Property). If the
method of taxation of real estate prevailing at the time of execution hereof
shall be, or has been altered, so as to cause the whole or any part of the taxes
now, hereafter or heretofore levied, assessed or imposed on real estate to be
levied, assessed or imposed on Landlord, wholly or partially, as a capital levy
or otherwise, or on or measured by the rents received therefrom, then such new
or altered taxes attributable to the Property shall be included within the term
"Taxes," except that the same shall not include any enhancement of said tax
attributable to other income of Landlord. Any expenses incurred by Landlord in
attempting to protest, reduce or minimize Taxes shall be included in Taxes in
the calendar year such expenses are paid. Tax refunds shall be deducted from
Taxes in the year they are received by Landlord, but if such refund shall relate
to taxes paid in a prior year of the Term, and the Lease shall have expired,
Landlord shall mail Tenant's Prorata Share of such net refund (after deducting
expenses and reasonable attorneys' fees), to Tenant's last known address. If
Taxes to which such refund applied for any period during the Term or any
extension thereof, shall be increased after payment thereof by Landlord, for any
reason including without limitation or reassessment by applicable governmental
or municipal authorities, Tenant shall pay Landlord upon demand Tenant's Prorata
Share of such increased Taxes. Tenant shall pay increased Taxes whether Taxes
are increased as a result of increases in the assessment or valuation of the
Property (whether based on a sale, change in ownership or refinancing of the
Property or otherwise), increases in the tax rates, reduction or elimination of
any rollbacks or other deductions available under currant law, scheduled
reductions of any tax abatement, as a result of the elimination, invalidity or
withdrawal of any tax abatement, or for any other cause whatsoever.
Notwithstanding the foregoing, if any Taxes shall be paid based on assessments
or bills by a governmental or municipal authority using a fiscal year other than
a calendar year, Landlord may elect to
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average the assessments or bills for the subject calendar year, based on the
number of months of such calendar year included in each such assessment or bill.
Tenant's contribution to expenses and reasonable attorneys' fees associated with
a contest as to the Taxes shall be equal to Tenant's Prorata Share applied to
the total of such expenses and fees.
(O) "Tenant's Prorata Share" of Taxes and Operating Expenses shall be the
rentable area of the Premises divided by the rentable area of the Property,
excluding any parking facilities. Tenant acknowledges that the "rentable area of
the Premises" under this Lease includes the usable area, without deduction for
columns or projections, multiplied by a load or conversion factor, to reflect a
share of certain areas, which may include lobbies, corridors, mechanical,
utility, janitorial, boiler and service rooms and closets, restrooms, and other
public, common and service areas. Except as provided expressly to the contrary
herein, the "rentable area of the Property" shall include all rentable area of
all space leased or available for lease at the Property, which Landlord may
reasonably re-determine from time to time, to reflect re-configurations,
additions or modifications to the Property. If the Property or any development
of which it is a part, shall contain non-office uses, Landlord shall have the
right to determine in accordance with sound accounting and management
principles, Tenant's Prorata Share of Taxes and Operating Expenses for only the
office portion of the Property or of such development, in which event, Tenant's
Prorata Share shall be based on the ratio of the rentable area of the Premises
to the rentable area of such office portion. Similarly, if the Property shall
contain tenants who do not participate in all or certain categories of Taxes or
Operating Expenses on a prorata basis, Landlord may exclude the amount of Taxes
or Operating Expenses, or such categories of the same, as the case may be,
attributable to such tenants, and exclude the rentable area of their premises,
in computing Tenant's Prorata Share so long as such adjustments do not increase
the amount of Taxes or Operating Expenses otherwise payable by Tenant hereunder
had such tenants participated in all or certain categories of Taxes or Operating
Expenses on a prorata basis. If the Property shall be part of or shall include a
complex, development or group of buildings or structures collectively owned or
managed by Landlord or its affiliates or collectively managed by Landlord's
managing agent, Landlord may allocate Taxes and Operating Expenses within such
complex, development or group, and between such buildings and structures and the
parcels on which they are located, in accordance with sound generally acceptable
accounting and management principles. In the alternative, Landlord shall have
the right to determine, in accordance with sound accounting and management
principles, Tenant's Prorata Share of Taxes and Operating Expenses based upon
the totals of each of the same for all such buildings and structures, the land
constituting parcels on which the same are located, and all related facilities,
including common areas and easements, corridors, lobbies, sidewalks, elevators,
loading areas, parking facilities and driveways and other appurtenances and
public areas, in which event Tenant's Prorata Share shall be based on the ratio
of the rentable area of the Premises to the rentable area of all such buildings.
To the extent that the rentable square footage of the Premises changes during
any calendar year (or other period during which the allocation of Taxes and
Operating Expenses to tenants of the Building occurs), adjustments shall be made
to Tenant's Prorata Share to properly account for the allocation of Taxes and
Operating Expenses based upon the rentable area of the Premises prior to such
change and the rentable area of the Premises thereafter.
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ARTICLE 26
CONVEYANCE BY LANDLORD AND LIABILITY
In case Landlord or any successor owner of the Property or the Building
shall convey or otherwise dispose of any portion thereof in which the Premises
are located, to another Person (and nothing herein shall be construed to
restrict or prevent such conveyance or disposition), such other Person shall
thereupon be and become landlord hereunder and shall be deemed to have fully
assumed and be liable for all obligations of this Lease to be performed by
Landlord which first arise after the date of conveyance, including the return of
any Security Deposit, and Tenant shall attorn to such other Person, and Landlord
or such successor owner shall, from and after the date of conveyance, be free of
all liabilities and obligations hereunder not then incurred. The liability of
Landlord to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord's operation, management, leasing, repair,
renovation, alteration, or any other matter relating to the Property or the
Premises, shall be limited to the interest of Landlord in the Property (and the
rental proceeds thereof). Tenant agrees to look solely to Landlord's interest in
the Property (and the rental proceeds thereof) for the recovery of any judgment
against Landlord, and Landlord shall not be personally liable for any such
judgment or deficiency after execution thereon. The limitations of liability
contained in this Article shall apply equally and inure to the benefit of
Landlord's present and future partners, beneficiaries, officers, directors,
trustees, shareholders, agents and employees, and their respective partners,
heirs, successors and assigns. Under no circumstances shall any present or
future general or limited partner of Landlord (if Landlord is a partnership), or
trustee or beneficiary (if Landlord or any partner of Landlord is a trust) have
any liability for the performance of Landlord's obligations under this Lease.
Notwithstanding the foregoing to the contrary, Landlord shall have personal
liability for insured claims, beyond Landlord's interest in the Property (and
rental proceeds thereof), to the extent of Landlord's liability insurance
coverage available for such claims.
ARTICLE 27
INDEMNIFICATION
Except to the extent arising from the intentional or negligent acts of
Landlord or Landlord's agents or employees, Tenant shall defend, indemnify and
hold harmless Landlord from and against any and all claims, demands,
liabilities, damages, judgments, orders, decrees, actions, proceedings, fines,
penalties, costs and expenses, including without limitation, court costs and
reasonable attorneys' fees arising from or relating to any loss of life, damage
or injury to person, property or business occurring in or from the Premises, or
caused by or in connection with any violation of this Lease or use of the
Premises or Property by, or any other act or omission of, Tenant, any other
occupant of the Premises, or any of their respective agents, employees,
contractors or business invitees. Without limiting the generality of the
foregoing, Tenant specifically acknowledges that the indemnity undertaking
herein shall apply to claims in connection with or arising out of any "Work" as
described in Article 8, the installation, maintenance, use or removal of any
"Lines" located in or serving the Premises as described in Article 29, and the
transportation, use, storage, maintenance, generation, manufacturing, handling,
disposal, release or discharge of any "Hazardous Material" as
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described in Article 30 (whether or not any of such matters shall have been
theretofore approved by Landlord), except to the extent that any of the same
arises from the intentional or negligent acts of Landlord or Landlord's agents
or employees. Notwithstanding any of the foregoing to the contrary, Tenant shall
not in any way be required to indemnify or hold Landlord harmless against any
damage or injury resulting from any material breach by Landlord of its
obligations under this Lease, or resulting from the negligence or willful
misconduct of Landlord, or its agents, servants, contractors or employees.
Landlord shall defend, indemnify and hold Tenant harmless from and against any
and all claims, demands, liabilities, damages, judgments, orders, decrees,
actions, proceedings, fines, penalties, costs and expenses, including without
limitation, court costs and reasonable attorneys' fees, arising in any way out
of the negligence or intentional acts of Landlord, its agents, servants or
employees, or from Landlord's violation of laws, ordinances, or governmental
orders of any kind or resulting from Landlord's breach of the Lease, which
breach is not cured within the applicable time period provided in the Lease.
ARTICLE 28
SAFETY AND SECURITY DEVICES, SERVICES AND PROGRAMS
The parties acknowledge that safety and security devices, services and
programs provided by Landlord, if any, while intended to deter crime and ensure
safety, may not in given instances prevent theft or other criminal acts, or
ensure safety of persons or property. The risk that any safety or security
device, service or program may not be effective, or may malfunction, or be
circumvented by a criminal, is assumed by Tenant with respect to Tenant's
property and interests, and Tenant shall obtain insurance coverage to the extent
Tenant desires protection against such criminal acts and other losses, as
further described in Article 11. Tenant agrees to cooperate in any reasonable
safety or security program developed by Landlord or required by law. Landlord
will permit the installation by Tenant of additional card key readers to provide
access to the Premises from the elevator lobbies or common corridors and in the
Building fire stairs, which readers may be connected to the Building card key
access system. Tenant shall pay the costs of supplying, installing, maintaining
and connecting such readers to the Building system, but no other charges shall
be imposed upon Tenant with regard to the operation of that system. The Building
will provide a reasonable number of access cards with programming free upon
occupancy. Additional cards or changes will be implemented based upon the
following costs:
(i) $6.00 to program or delete an existing card;
(ii) $16.00 for unreturned "lost" cards;
(iii) $6.00 to provide and program a new card; or
(iv) $22.00 for a replacement card and reprogramming.
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ARTICLE 29
COMMUNICATIONS AND COMPUTER LINES
Tenant may install, maintain, replace, remove or use any communications or
computer wires, cables and related devices (collectively the "Lines") at the
Property in or serving the Premises, provided: (a) Tenant shall obtain
Landlord's prior written consent, use an experienced and qualified contractor
approved in writing by Landlord, and comply with all of the other provisions of
Article 8, (b) any such installation, maintenance, replacement, removal or use
shall comply with all Laws applicable thereto and good work practices, and shall
not interfere with the use of any then existing Lines at the Property, (c) an
acceptable number of spare Lines and space for additional Lines shall be
maintained for existing and future occupants of the Property, as determined in
Landlord's reasonable opinion, (d) if Tenant at any time uses any equipment that
may create an electromagnetic field exceeding the normal insulation ratings of
ordinary twisted pair riser cable or cause radiation higher than normal
background radiation, the Lines therefor (including riser cables) shall be
appropriately insulated to prevent such excessive electromagnetic fields or
radiation, (e) as a condition to permitting the installation of new Lines,
Landlord may require that Tenant remove existing Lines located in or serving the
Premises, (f) Tenant's rights shall be subject to the rights of any regulated
telephone company, and (g) Tenant shall pay all costs in connection therewith.
Landlord reserves the right to require that Tenant remove any Lines located in
or serving the Premises which are installed in violation of these provisions, or
which are at any time in violation of any Laws or represent a dangerous or
potentially dangerous condition (whether such Lines were installed by Tenant or
any other party), within three (3) days after written notice.
Landlord may (but shall not have the obligation to): (i) install new Lines
at the Property (ii) create additional space for Lines at the Property, and
(iii) reasonably direct, monitor and/or supervise the installation, maintenance,
replacement and removal of, the allocation and periodic re-allocation of
available space (if any) for, and the allocation of excess capacity (if any) on,
any Lines now or hereafter installed at the Property by Landlord, Tenant or any
other party (but Landlord shall have no right to monitor or control the
information transmitted through such Lines). Such rights shall not be in
limitation of other rights that may be available to Landlord by Law or
otherwise. If Landlord exercises any such rights, Landlord may charge Tenant for
the costs directly and solely attributable to Tenant, or may include those costs
and all other costs in Operating Expenses under Article 25 (including without
limitation, costs for acquiring and installing Lines and risers to accommodate
new Lines and spare Lines, any associated computerized system and software for
maintaining records of Line connections, and the fees of any consulting
engineers and other experts); provided, any capital expenditures included in
Operating Expenses hereunder shall be amortized (together with reasonable
finance charges) over the period of time prescribed by Article 25. Where used in
this Lease, the term "reasonable finance charges" shall mean Landlord's
approximate cost of funds at the applicable time, not to exceed twelve percent
(12%) per annum.
Notwithstanding anything to the contrary contained in Article 13, Landlord
reserves the right to require that Tenant remove any or all Lines installed by
Tenant, or its contractors or agents, within or serving the Premises upon
termination of this Lease, provided Landlord
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notifies Tenant prior to or within thirty (30) days following such termination.
Any Lines not required to be removed pursuant to this Article shall, at
Landlord's option, become the property of Landlord (without payment by
Landlord). If Tenant fails to remove such Lines as required by Landlord, or
violates any other provision of this Article, Landlord may, after twenty (20)
days written notice to Tenant, remove such Lines or remedy such other violation,
at Tenant's expense (without limiting Landlord's other remedies available under
this Lease or applicable Law). Tenant shall not, without the prior written
consent of Landlord in each instance, grant to any third party a security
interest or lien in or on the Lines, and any such security interest or lien
granted without Landlord's written consent shall be null and void. Except to the
extent arising from the intentional or negligent acts of Landlord or Landlord's
agents or employees, Landlord shall have no liability for damages arising from,
and Landlord does not warrant that Tenant's use of any Lines will be free from
the following (collectively called "Line Problems"): (x) any eavesdropping or
wire-tapping by unauthorized parties, (y) any failure of any Lines to satisfy
Tenant's requirements, or (z) any shortages, failures, variations,
interruptions, disconnections, loss or damage caused by the installation,
maintenance, replacement, use or removal of Lines by or for other tenants or
occupants at the Property, by any failure of the environmental conditions or the
power supply for the Property to conform to any requirements for the Lines or
any associated equipment, or any other problems associated with any so some
Lines by any other cause. Under no circumstances shall any Line Problems be
deemed an actual or constructive eviction of Tenant, render Landlord liable to
Tenant for abatement of Rent, or relieve Tenant from performance of Tenant's
obligations under this Lease. Landlord in no event shall be liable for damages
by reason of loss of profits, business interruption or other consequential
damage arising from any Line Problems. However, Landlord shall be required to
use commercially reasonable efforts to resolve any Line Problems promptly upon
notification from Tenant. Further, to the extent that Tenant's plans and
specifications provided pursuant to the Work Agreement attached as Exhibit B
specify the installation of Lines, Landlord's approval of such plans and
specifications shall also be deemed an approval of the installation of the
identified Lines.
ARTICLE 30
HAZARDOUS MATERIALS
Tenant shall not transport, use, store, maintain, generate, manufacture,
handle, dispose, release or discharge any "Hazardous Material" (as defined
below) upon or about the Property, nor permit Tenant's employees, agents,
contractors, and other occupants of the Premises to engage in such activities
upon or about the Property. However, the foregoing provisions shall not prohibit
the transportation to and from, and use, storage, maintenance and handling
within, the Premises of substances customarily used in offices (or such other
business or activity expressly permitted to be undertaken in the Premises under
Article 6), provided: (a) such substances shall be used and maintained only in
such quantities as are reasonably necessary for such permitted use of the
Premises, strictly in accordance with applicable Law and the manufacturers'
instructions therefor, (b) such substances shall not be disposed of, released or
discharged on the Property, and shall be transported to and from the Premises in
compliance with all applicable Laws, and as Landlord shall reasonably require,
(c) if any applicable Law or Landlord's trash removal contractor requires that
any such substances be disposed of separately from ordinary trash, Tenant shall
make arrangements at Tenant's expense for such
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disposal directly with a qualified and licensed disposal company at a lawful
disposal site (subject to scheduling and approval by Landlord), and shall ensure
that disposal occurs frequently enough to prevent unnecessary storage of such
substances in the Premises, and (d) any remaining such substances shall be
completely, properly and lawfully removed from the Property upon expiration or
earlier termination of this Lease.
Tenant shall promptly notify Landlord of: (i) any enforcement, cleanup or
other regulatory action taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous Material on the Premises
or the migration thereof from or to other property, (ii) any demands or claims
made or threatened by any party against Tenant or the Premises relating to any
loss or injury resulting from any Hazardous Material, (iii) any release,
discharge or nonroutine, improper or unlawful disposal or transportation of any
Hazardous Material on or from the Premises, and (iv) any matters where Tenant is
required by Law to give a notice to any governmental or regulatory authority
respecting any Hazardous Materials on the Premises. Landlord shall have the
right (but not the obligation) to join and participate, as a party, in any legal
proceedings or actions affecting the Premises initiated in connection with any
environmental, health or safety Law. At such times as Landlord may reasonably
request, Tenant shall provide Landlord with a written list identifying any
Hazardous Material then used, stored, or maintained upon the Premises, the use
and approximate quantity of each such material, a copy of any material safety
data sheet ("MSDS") issued by the manufacturer therefor, written information
concerning the removal, transportation and disposal of the same, and such other
information as Landlord may reasonably require or as may be required by Law. The
term "Hazardous Material" for purposes hereof shall mean any chemical,
substance, material or waste or component thereof which is now or hereafter
listed, defined or regulated as a hazardous or toxic chemical, substance,
material or waste or component thereof by any federal, state or local governing
or regulatory body having jurisdiction, or which would trigger any employee or
community "right-to-know" requirements adopted by any such body, or for which
any such body has adopted any requirements for the preparation or distribution
of an MSDS.
If any Hazardous Material is released, discharged or disposed of by
Tenant or any other occupant of the Premises, or their employees, agents or
contractors, on or about the Property in violation of the foregoing provisions,
Tenant shall immediately, properly and in compliance with applicable Laws clean
up and remove the Hazardous Material from the Property and any other affected
property and clean or replace any affected personal property (whether or not
owned by Landlord), at Tenant's expense. Such clean up and removal work shall be
subject to Landlord's prior written approval (except in emergencies), and shall
include, without limitation, any testing, investigation, and the preparation and
implementation of any remedial action plan required by any governmental body
having jurisdiction or reasonably required by Landlord. If Tenant shall fail to
comply with the provisions of this Article within five (5) days after written
notice by Landlord, or such shorter time as may be required by Law or in order
to minimize any hazard to Persons or property, Landlord may (but shall not be
obligated to) arrange for such compliance directly or as Tenant's agent through
contractors or other parties selected by Landlord, at Tenant's expense (without
limiting Landlord's other remedies under this Lease or applicable Law). If any
Hazardous Material is released, discharged or disposed of on or about the
Property and such release, discharge or disposal is not caused by Tenant or
other occupants of the Premises, or their employees, agents or contractors, such
release,
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discharge or disposal shall be deemed casualty damage under Article 10 to the
extent that the Premises or common areas necessary for access to or use of the
Premises are affected thereby; in such case, Landlord and Tenant shall have the
obligations and rights respecting such casualty damage provided under Article
10.
ARTICLE 31
MISCELLANEOUS
(A) Each of the terms and provisions of this Lease shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, guardians, custodians, successors and assigns,
subject to the provisions of Article 21 respecting Transfers.
(B) At the request of either party, Landlord and Tenant shall execute a
memorandum of lease which may be recorded by either party.
(C) This Lease shall be construed in accordance with the Laws of the state
in which the Property is located.
(D) All obligations or rights of either party arising during or
attributable to the period ending upon expiration or earlier termination of this
Lease shall survive such expiration or earlier termination.
(E) Landlord agrees that, if Tenant timely pays the Rent and performs the
terms and provisions hereunder, and, subject to all other terms and provisions
of this Lease, Tenant shall hold and enjoy the Premises during the Term, free of
lawful claims by any Person and Landlord shall warrant and defend Tenant in the
quiet enjoyment and possession of the Premises during the Term.
(F) This Lease does not grant any legal rights to "light and air" outside
the Premises nor any particular view or cityscape visible from the Premises.
(G) If the Commencement Date is delayed in accordance with Article 4 for
more than three (3) months , Landlord may declare this Lease null and void, and
if the Commencement Date is so delayed for more than six (6) months, this Lease
shall thereupon become null and void without further action by either party.
ARTICLE 32
OFFER
The submission and negotiation of this Lease shall not be deemed an offer
to enter the same by Landlord, but the solicitation of such an offer by Tenant.
Tenant agrees that its execution of this Lease constitutes a firm offer to enter
the same which may not be withdrawn for a period of 30 days after delivery to
Landlord (or such other period as may be expressly provided in any other
agreement signed by the parties). During such period and in reliance on the
foregoing Landlord may, at Landlord's option (and shall, if required by
applicable Law), deposit any security deposit and Rent, and proceed with any
plans, specifications, alterations
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or improvements, and permit Tenant to enter the Premises, but such acts shall
not be deemed an acceptance of Tenant's offer to enter this Lease, and such
acceptance shall be evidenced only by Landlord signing and delivering this Lease
to Tenant. However, if Landlord has not executed this Lease within fifteen (15)
business days after its submittal, executed by Tenant, or such longer period
(not to exceed thirty [30] days) as may be required solely to obtain the consent
of Landlord's lender, Tenant shall have the right to rescind its execution of
the Lease.
ARTICLE 33
NOTICES
Except as expressly provided to the contrary in this Lease, every notice
or other communication to be given by either party to the other with respect
hereto or to the Premises or Property, shall be in writing and shall not be
effective for any purpose unless the same shall be served personally or by
national air courier service, or United States certified mail, return receipt
requested, postage prepaid, addressed, if to Tenant, at the address first set
forth in the Lease, until the Commencement Date, and thereafter to Tenant at the
Premises, Attention: Chief Financial Officer, and if to Landlord, at the address
at which the last payment of Rent was required to be made and to JMB Realty
Corporation at 900 North Michigan Avenue, Chicago, Illinois 60611, Attn: Legal
Department and Kennedy-Wilson Properties, 900 North Michigan Avenue, Suite 1400,
Chicago, Illinois 60611, Attn: Property Management Department, or such other
address or addresses as Tenant or Landlord may from time to time designate by
notice given as above provided. Every notice or other communication hereunder
shall be deemed to have been given as of the third business day following the
date of such mailing (or as of any earlier date evidenced by a receipt from such
national air courier service or the United States Postal Service) or immediately
if personally delivered. Notices not sent in accordance with the foregoing shall
be of no force or effect until received by the foregoing parties at such
addresses required herein.
ARTICLE 34
REAL ESTATE BROKERS
Tenant represents that Tenant has dealt only with CB Richard Ellis (whose
commission, if any, shall be paid by Landlord pursuant to separate agreement) as
broker, agent or finder in connection with this Lease and agrees to indemnify
and hold Landlord harmless from all damages, judgments, liabilities and expenses
(including reasonable attorneys' fees) arising from any claims or demands of any
other broker, agent or finder with whom Tenant has dealt for any commission or
fee alleged to be due in connection with its participation in the procurement of
Tenant or the negotiation with Tenant of this Lease.
ARTICLE 35
SECURITY DEPOSIT
In lieu of a cash security deposit, Tenant shall furnish Landlord a
security deposit in the form of an Irrevocable Letter of Credit (the "LC") for
the benefit of Landlord in an amount
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equal to $1,000,000 (the "Security Deposit"), upon Tenant's execution and
submission of this Lease. The LC shall be issued by national bank reasonably
satisfactory to Landlord, with a branch office in Minneapolis. The LC shall
provide that Landlord may draw on the LC solely by furnishing a sight draft in
the amount demanded together with a statement certified by Landlord that
Landlord is entitled to draw upon the LC in the amount being demanded. The
Security Deposit in the form of the LC shall serve as security for the prompt,
full and faithful performance by Tenant of the terms and provisions of this
Lease. In the event that Tenant is in Default hereunder and fails to cure within
any applicable time permitted under this Lease, or in the event that Tenant owes
any amounts to Landlord upon the expiration of this Lease, or on account of
Tenant's failure to renew an expiring LC as set forth below, Landlord may draw
upon the LC, in whole or in part, and use or apply the whole or any part of the
proceeds thereof for the payment of Tenant's obligations hereunder. The use or
application of the proceeds of the LC or any portion thereof shall not prevent
Landlord from exercising any other right or remedy provided hereunder or under
any Law and shall not be construed as liquidated damage.
In the event the LC is drawn upon by Landlord, or the Security Deposit is
otherwise reduced by such use or application, Tenant shall cause the LC to be
increased back to the full amount provided for herein within ten (10) days after
Landlord's written request for same. Landlord shall not be required to keep the
proceeds of the LC separate from Landlord's general funds or pay interest
thereon. To the extent Landlord draws upon an LC and any proceeds from such LC
have not been applied against any sums due from Tenant under this Lease, then,
upon delivery of a replacement LC to Landlord, Landlord shall promptly return
such proceeds to Tenant. The LC, to the extent not drawn upon, shall be returned
to Tenant within one sixty (60) days after Tenant has vacated the Premises in
accordance with Article 13.
The initial LC shall be valid through at least until the first anniversary
of the Commencement Date, and if the LC has an expiration date, Tenant shall
cause the LC to be renewed no later than sixty (60) days prior to its expiration
date. Any renewal shall be for at least a 12-month period. If Tenant fails to
renew an expiring LC (and furnish Landlord the renewal document) at least sixty
(60) days prior to the expiration of an LC, Landlord shall provide notice to
Tenant of such failure and its intent to draw upon the expiring LC. If Tenant
fails to renew such expiring LC within ten (10) days after Landlord's notice to
Tenant, Landlord shall be entitled to draw upon the LC in the full amount of the
LC, in which event Landlord shall retain said money as a cash security deposit.
Notwithstanding the foregoing, provided there is no Default under the Lease, on
the first anniversary of the Commencement Date, Tenant shall be entitled to
replace the LC with a LC in an amount equal to $750,000 but otherwise in
compliance with the terms of this Article 35, and on the second anniversary of
the Commencement Date, Tenant shall be entitled to replace the LC with a LC in
an amount equal to $100,000 but otherwise in compliance with the terms of this
Article 35.
ARTICLE 36
OPTION TO EXTEND TERM
Tenant is hereby granted one (1) option to extend the Term for an
additional period of sixty (60) consecutive calendar months (the "Extension
Period"), on the same terms and
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conditions in effect under the Lease immediately prior to the Extension Period,
except that the monthly Base Rent during the Extension Period shall be equal to
ninety percent (90%) of the Prevailing Rental Rate (as defined below), and
Tenant shall have no additional options to extend the Term. The option to extend
may be exercised only by giving Landlord written notice (the "Extension Notice")
thereof no later than fifteen (15) months prior to the commencement of the
Extension Period. Said exercise shall, at Landlord's election, be null and void
if Tenant has received written notice that it is in default of a material term
under this Lease and such default remains uncured (i) with respect to a monetary
default, at the date of the Extension Notice, or (ii) with respect to any
default, at the commencement of the Extension Period.
"Prevailing Rental Rate" means the average net rent per rentable square
foot for lease renewals for periods approximately as long as the period in
question, executed by tenants for similar uses and lengths of time for
comparable space in similar multi-story buildings in the vicinity of the
Building during the twelve (12) months immediately prior to the date upon which
such Prevailing Rental Rate is to become effective, where such renewal rates
were not set by the terms of such leases, subject to reasonable adjustments for
comparable space on more or less desirable floors or areas of the property in
question. In all cases, such rates shall take into consideration the location,
quality and age of the building, floor level, extent (or lack) of leasehold
improvements, rental abatements, lease takeovers/assumptions, moving expenses
and other concessions for the benefit of the applicable tenant, term of the
lease, distinction between "gross" and "net" leases, base year or amount allowed
by the landlord for payment of building operating expenses (expense stop), the
rentable area of the applicable space, and the time the particular rental rate
under consideration became or is to become effective, or any other relevant term
or condition, the intent of the parties being that the comparable net rental
rates shall reflect the net return to the landlord on the applicable spaces
after the deduction of all inducements provided in conjunction with the
applicable lease.
Landlord shall deliver to Tenant written notice of Landlord's
determination of the Prevailing Rental Rate within thirty (30) days after
receipt of the Extension Notice. Tenant shall then have thirty (30) days to
provide Landlord with unconditional and irrevocable written notice indicating
that Tenant either (i) accepts Landlord's determination of the Prevailing Rental
Rate, (ii) rescinds its right to extend the term, in which event this Article
shall be of no further force and effect, or (iii) exercises its right to contest
Landlord's determination of the Prevailing Rental Rate. In the event that Tenant
elects to proceed pursuant to clause (i) or (iii) above, the parties shall
execute an amendment to the Lease, setting forth the Prevailing Rental Rate, but
an otherwise valid exercise of the option to extend the term contained herein
shall be fully effective, whether or not such confirmatory documentation is
executed.
If Tenant contests Landlord's determination of the Prevailing Rental Rate,
the Prevailing Rental Rate shall be determined by arbitration, in accordance
with the procedure set forth in Exhibit D attached hereto. Such determination
shall be final and binding upon the parties. In recognition that the Prevailing
Rental may not be determined until after the commencement of the Extension
Period, Tenant shall pay, during the Extension Period until the Prevailing
Rental Rate is determined, 100% of the amount of Rate then in effect (including
Base Rent, and all other charges). If ninety percent (90%) of the Prevailing
Rental Rate is determined to be greater than such amount, Tenant shall pay
Landlord, within thirty
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(30) days after written request therefor, the difference between the amount
required by such determination of the Prevailing Rental Rate, and the amount of
Rent theretofor paid by Tenant during the Extension Period. If ninety percent
(90%) of the Prevailing Rental Rate is determined to be less than such amount,
Tenant shall be entitled to a credit against the next accruing payments of Rent
due under this Lease equal to the difference between the amount required by such
determination of the Prevailing Rental Rate, and the amount of Rent theretofor
paid by Tenant during the Extension Period.
If Tenant shall fail to exercise the option herein provided, said option
shall terminate, and shall be null and void and of no further force and effect.
Tenant's exercise of said option shall not operate to cure any default by Tenant
of any of the terms or provisions in the Lease, nor to extinguish or impair any
rights or remedies of Landlord arising by virtue of such default. If the Lease
or Tenant's right to possession of the Premises shall terminate in any manner
whatsoever before Tenant shall exercise the option herein provided, or if Tenant
shall have subleased or assigned all or any portion of the Premises, then
immediately upon such termination, sublease or assignment, the option herein
granted to extend the Term, shall simultaneously terminate and become null and
void. Such option is personal to Tenant. Under no circumstances whatsoever shall
the assignee under a complete or partial assignment of the Lease, (other than a
Related Entity) or a subtenant under a sublease of the Premises, have any right
to exercise the option to extend granted herein. Time is of the essence of this
provision.
ARTICLE 37
OPTION TO EXPAND
Subject to the terms of this option (the "Expansion Option"), Tenant shall
have a one time right to lease the entire (but not a portion of) the eighteenth
floor of the Building (the "18th Floor Space") in an "as is" condition, on the
same terms and provisions then in effect under the Lease, except that (a) the
rentable square footage of the 18th Floor Space shall be added to the rentable
square footage of the Premises for the purposes of calculating Base Rate and
Tenant's Prorata Share as of the Expansion Commencement Date (as defined below),
and (b) Landlord shall reimburse Tenant for the cost of tenant improvements
installed in the 18th Floor Space and the 17th Floor Space (as defined in
Article 38) by Tenant, and the cost of related space planning, moving and
consulting fees, up to an amount equal to the sum of $25.00 per square foot of
rentable area of the 18th Floor Space multiplied by a fraction, the numerator of
which shall be the number of full calendar months remaining in the Term as of
the date Tenant takes possession of the 18th Floor Space for the purpose of
occupying the same, up to a maximum of 60 and the denominator of which shall be
60. Such reimbursement shall be subject to the terms of a work agreement to be
executed by Landlord and Tenant, which work agreement shall be similar in all
material respects to the Work Agreement attached hereto as Exhibit B. This
Expansion Option may be exercised only by giving Landlord irrevocable and
unconditional written notice (the "Expansion Notice") thereof no later than
October 1, 2001. The Expansion Notice shall specify the date on which Tenant
desires to take possession of the 18th Floor Space, which date shall be no
earlier than June 1, 2002 and no later than November 1, 2002. Landlord shall
deliver the 18th Floor Space to Tenant no later than the date specified in the
Expansion Notice, provided, however, that if no such date is specified in the
Expansion Notice, or the date specified does not meet the criteria set forth
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above, then Landlord shall deliver possession of the 18th Floor Space to Tenant
on the date Landlord reasonably determines based on the information contained in
the Expansion Notice, which date shall be binding upon Tenant. If the 18th Floor
Space is not occupied by a third party tenant at the time of the Expansion
Notice (or thereafter prior to the Expansion Commencement Date), Landlord shall
make the 18th Floor Space available for Tenant's performance of leasehold
improvement work (without the imposition of Rent, unless Tenant opens for
business in the Expansion Space prior to the Expansion Space Commencement Date,
in which event Tenant's obligation to pay Rent for the Expansion Space shall
commence as of the date it opens for business in the Expansion Space), subject
to the condition that Tenant's inability to complete such work prior to the
Expansion Commencement Date shall not delay that date.
The Lease as to the 18th Floor Space shall commence on the later of the
date Landlord delivers possession of the 18th Floor Space to Tenant, or the date
specified by Tenant in the Expansion Notice (the "Expansion Commencement Date"),
and shall continue for the duration of the Term of the Lease. The 18th Floor
Space shall be added to the Premises as of the Expansion Commencement Date.
After Tenant validly exercises the expansion right provided herein, the parties
shall execute an amendment to the Lease, adding the 18th Floor Space, or a new
lease for the 18th Floor Space, or such other documentation as Landlord shall
require, promptly after Landlord shall prepare the same, in order to confirm the
leasing of such 18th Floor Space to Tenant, but an otherwise valid exercise of
the expansion rights contained herein shall be fully effective, whether or not
such confirmatory documentation is executed. The provisions set forth above as
to calculation of Landlord reimbursement of Tenant expenses shall take into
account (in determining any pro-ration) the Extension Period if Tenant has
exercised its rights under Article 36 at the time any such allowance or
reimbursement is to be paid. The amount to be paid or reimbursed shall equal the
sum of $25.00 per rentable square foot (subject to pro-ration) even if Tenant
does not expend that full sum on the 18th Floor Space, it being the intention of
the parties that allowances or reimbursement amounts provided by Landlord with
regard to the 18th Floor Space or the 17th Floor Space shall be made available
to pay or reimburse costs incurred by Tenant with regard to the improvement of
any portion of the 18th Floor Space and the 17th Floor Space or design,
consulting, moving, cabling, or other costs applicable thereto. Landlord shall
have no obligation to disburse such allowance or reimbursement funds until
Tenant has executed a binding amendment to the Lease committing to occupancy of
the applicable space, but otherwise such amounts shall be disbursed within
thirty (30) days of application by Tenant with supporting documentation
indicating the incurring of costs reimbursable under the Lease. To the extent
that Tenant does not fully expend all of the amounts to be provided by Landlord
hereunder, the excess (up to a maximum of $2.00 per rentable square foot) shall
be applied to the next accruing payments of Rent payable under the Lease.
In addition, notwithstanding the fact that the Expansion Commencement Date
shall be the date of delivery of the 18th Floor Space to Tenant, Tenant shall
first be obligated for the payment of Rent on the 18th Floor Space on the
earlier of: (i) November 1, 2002; or (ii) Tenant's first business use of any
material portion of the 18th Floor Space. For purposes of this provision
`business use' shall mean the conduct of business operations in the 18th Floor
Space (other than construction, equipment, installation, and the moving and
affixing of fixtures, furnishings and equipment).
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If Tenant shall fail to exercise the Expansion Option by delivery of the
Expansion Notice on or before October 1, 2001, the Expansion Option stall be
deemed to have lapsed and expired, and shall be of no further force or effect.
Landlord may thereafter freely lease all or a portion of the 18th Floor Space to
any other party, at any time, on any terms, in Landlord's sole discretion.
Tenant's exercise of such expansion right shall not operate to cure any
Default by Tenant of any of the terms and provisions in the Lease, nor to
extinguish or impair any rights or remedies of Landlord arising by virtue of
such Default. The Expansion Option shall, at Landlord's election, be null and
void, if Tenant has received written notice that it is in default of a material
term under this Lease and such default remains uncured (i) with respect to a
monetary default, at the date of the Expansion Notice, or (ii) with respect to
any default, on the Expansion Commencement Date. If the Lease or Tenant's right
to possession of the Premises shall terminate in any manner whatsoever before
Tenant shall exercise the Expansion Option, or, if Tenant shall have subleased
or assigned all or any portion of the Premises, then immediately upon such
termination, sublease or assignment, the Expansion Option shall simultaneously
terminate and become null and void. Such right is personal to Tenant (and any
Related Entity that is an assignee or sublessee of substantially all of the
Premises). Tenant agrees that time is of the essence of this provision.
ARTICLE 38
RIGHT OF FIRST OFFER
During the initial Term of the Lease, Tenant shall have a right of first
opportunity to lease any portion of the seventeenth (17th) floor of the Building
(the "17th Floor Space"), prior to such portion of the 17th Floor Space being
offered to a third party, when the same becomes legally available to lease, in
an "as is" condition, on the same terms and provisions then in effect under the
Lease, except that (a) if the Lease with respect to the 17th Floor Space
commences on or before October 31, 2003, the monthly Base Rent for the 17th
Floor Space shall be the amount of monthly Base Rent then in effect on a per
rentable square foot basis under the Lease, and (b) if the Lease with respect to
the 17th Floor Space commences after October 31, 2003, the monthly Base Rent for
the 17th Floor Space shall be equal to Landlord's determination of the
Prevailing Rental Rate. If Tenant elects to lease any portion of the 17th Floor
Space pursuant to this Article 38, Landlord shall reimburse Tenant for the cost
of tenant improvements installed in the 17th Floor Space and the 18th Floor
Space by Tenant, and the cost of related space planning, moving and consulting
fees, up to an amount equal to the sum of $25.00 per square foot of rentable
area of such portion of the 17th Floor Space taken by Tenant multiplied by a
fraction, the numerator of which shall be the number of full calendar months
remaining in the Term up to a maximum of 60 as of the date Tenant takes
possession of such portion of the 17th Floor Space for the purpose of occupying
the same, and the denominator of which shall be 60. Such reimbursement shall be
subject to the terms of a work agreement to be executed by Landlord and Tenant,
which work agreement shall be similar in all material respects to the Work
Agreement attached hereto as Exhibit B. After Tenant validly exercises the
expansion right provided herein, the parties shall execute an amendment to the
Lease, adding the 17th Floor Space, or a new lease for the 17th Floor Space, or
such other documentation as Landlord shall require, promptly after Landlord
shall prepare the same, in
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order to confirm the leasing of such 17th Floor Space to Tenant, but an
otherwise valid exercise of the expansion rights contained herein shall be fully
effective, whether or not such confirmatory documentation is executed. If
Landlord determines that a new lease should be executed for the 17th Floor Space
(or the 18th Floor Space), the new lease shall be consistent in all material
respects with this Lease.
Landlord shall notify Tenant in writing within thirty (30) days after any
portion of the 17th Floor Space becomes legally available to lease, or at
Landlord's option, such earlier time as Landlord shall be in a position to
project when such portion of the 17th Floor Space will be legally available to
lease, advising Tenant of such projected date. Tenant shall then have ten (10)
business days in which to provide Landlord with unconditional and irrevocable
written notice exercising Tenant's right to lease such portion of the 17th Floor
Space on the terms described above. If Tenant exercises the right to lease such
portion of the 17th Floor Space, said lease shall commence the later of thirty
(30) days after Tenant's notice exercising the right, or the date such portion
of the 17th Floor Space is available for occupancy, and shall continue for the
duration of the Term of the Lease. The right to lease any portion of the 17th
Floor Space shall, at Landlord's election, be null and void if Tenant has
received written notice that it is in default of a material term under the Lease
and such default remains uncured (i) with respect to a monetary default, at the
date Tenant provides Landlord notice of its intent to lease the 17th Floor
Space, or (ii) with respect to any default, at the commencement of the term for
the 17th Floor Space.
If Tenant shall fail to exercise such expansion right as to any portion of
the 17th Floor Space, after notice by Landlord of the availability of such
space, as provided herein, such right as to such portion of the 17th Floor Space
shall be deemed to have lapsed and expired, and shall be of no further force or
effect. Landlord may thereafter freely lease such portion of the 17th Floor
Space to any other party, at any time, on any terms, in Landlord's sole
discretion.
If Tenant shall exercise the expansion right granted herein, Landlord does
not guarantee that any portion of the 17th Floor Space will be available on the
commencement date for the lease thereof, if the then existing occupants of such
portion of the 17th Floor Space shall hold-over, or for any other reason despite
Landlord's commercially reasonable efforts. In such event, Rent with respect to
such portion of the 17th Floor Space shall be abated until Landlord legally
delivers the same to Tenant, as Tenant's sole recourse. Tenant's exercise of
such expansion right shall not operate to cure any Default by Tenant of any of
the terms or provisions in the Lease, nor to extinguish or impair any rights or
remedies of Landlord arising by virtue of such Default. If the Lease or Tenant's
right to possession of the Premises shall terminate in any manner whatsoever
before Tenant shall exercise the right herein provided, or if Tenant shall have
subleased or assigned all or any portion of the Promises, then immediately upon
such termination, sublease or assignment, the expansion right herein granted
shall simultaneously terminate and become null and void. Such right is personal
to Tenant. Under no circumstances whatsoever shall the assignee under a complete
or partial assignment of the Lease (other than a Related Entity that is an
assignee or sublessee of substantially all of the Premises), or a subtenant
under a sublease of the Premises, have any right to exercise the expansion right
granted herein. Time is of the essence of this provision. Landlord shall not
permit any existing tenants of the 17th Floor Space to extend their lease terms
or grant any new
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lease or occupancy rights as to the 17th Floor Space unless and until Tenant
shall have failed to exercise its right of first offer under this Article 38.
ARTICLE 39
PARKING
(A) During the Term, Landlord hereby grants to Tenant and persons
designated by Tenant a license to use one (1) unreserved parking space in the
Property's garage (the "Garage") for Tenant's employees for each 3,600 square
feet of the Premises (the "Primary Spaces"). In addition, Landlord hereby grants
to Tenant and persons designated by Tenant a license to use up to thirty five
(35)) additional unreserved parking spaces in the Garage for Tenant's employees
from 6:00 p.m. to 6:00 a.m., and all day on Saturdays and Sundays (the "After
Hour Spaces"). Tenant shall pay Landlord the monthly charges established from
time to time by Landlord for parking in the Garage, payable in advance, with
Tenant's payment of monthly Base Rent. The initial charge for the Primary Spaces
is $250.00 per space per month and the initial charge for the After Hour Spaces
is $35.00 per space per month. No deductions from the monthly charge shall be
made for days on which the Garage is not used by Tenant. The charges for the
Primary Spaces shall be based upon the charges typically imposed upon tenants of
the Building utilizing such spaces during the business day, but the charges for
the After Hour Spaces shall be fixed at $35.00 per space per month during the
initial Term and subject to an increase based on the consumer price index
thereafter.
(B) Tenant shall at all times comply with all applicable ordinances,
rules, regulations, codes, laws, statutes and requirements of all federal,
state, county and municipal governmental bodies or their subdivisions respecting
the use of the Garage. Landlord reserves the right to adopt, modify and enforce
reasonable Rules governing the use of the Garage from time to time, including
any key-card, sticker or other identification or entrance system, and hours of
operation. The rules set forth in this Article 39 are currently in effect.
Landlord may refuse to permit any person who violates such rules to park in the
Garage, and any violation of the rules shall subject the car to removal from the
Garage.
(C) The parking spaces hereunder shall be provided on an unreserved
"first-come, first served" basis. Tenant acknowledges that Landlord has or may
arrange for the Garage to be operated by an independent contractor, not
affiliated with Landlord. In such event, Tenant acknowledges that Landlord shall
have no liability for claims arising through acts or omissions of such
independent contractor, if such contractor is reputable, although Landlord shall
use its commercially reasonable efforts to insure that Tenant has the full
benefit of the parking rights granted hereunder. Except for intentional acts or
negligence, Landlord shall have no liability whatsoever for any damage to
property or any other items located in the Garage, nor for any personal injuries
or death arising out of any matter relating to the Garage, and in all events,
Tenant agrees to look first to its insurance carrier and to require that
Tenant's employees look first to their respective insurance carriers for payment
of any losses sustained in connection with any use of the Garage. Tenant hereby
waives on behalf of its insurance carriers all rights of subrogation against
Landlord or Landlord's agents. Landlord reserves the right to assign specific
spaces, and to reserve spaces for visitors, small cars, handicapped persons and
for other tenants, guests of tenants or other parties, and Tenant and persons
designated by Tenant
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hereunder shall not park in any such assigned or reserved spaces. Landlord also
reserves the right to close all or any portion of the Garage in order to make
repairs or perform maintenance services, or to alter, modify, re-stripe or
renovate the Garage, or if required by casualty, strike, condemnation, act of
God, governmental law or requirement or other reason beyond Landlord's
reasonable control. In such event, Landlord shall refund any prepaid parking
rent hereunder, prorated on a per diem basis. If, for any other reason, Tenant
or persons properly designated by Tenant, shall be denied access to the Garage,
and Tenant or such persons shall have complied with this Article 39 and this
Article 39 shall be in effect, Landlord's liability shall be limited to such
parking charges (excluding tickets for parking violations) incurred by Tenant or
such persons in utilizing alternative parking, which amount Landlord shall pay
upon presentation of documentation supporting Tenant's claims in connection
therewith.
(D) If Tenant shall default under the provisions of this Article 39,
Landlord shall have the right to remove from the Garage any vehicles hereunder
which shall have been involved or shall have been owned or driven by parties
involved in causing such default, without liability therefor whatsoever. In
addition, if Tenant shall default under this Article 39, Landlord shall have the
right to cancel the Lease, as to this Article 39 only, on ten (10) business
days' written notice, unless within such ten (10) day period, Tenant cures such
default. Such cancellation right shall be cumulative and in addition to any
other rights or remedies available to Landlord at law or equity, or provided
under the Lease (all of which rights and remedies under the Lease are hereby
incorporated herein, as though fully set forth).
(E) The following Rules shall govern the use of the Garage:
Rules
(i) Garage normal business hours shall be 6 A.M. to 8 P.M. or such other
hours as Landlord shall determine from time to time taking into
account Tenant's need for use of the After Hour Spaces as referenced
above. Notwithstanding the foregoing, Tenant shall be permitted to
park cars in the Garage overnight so long as such use is consistent
with Tenant's permitted use of the After Hour Spaces or Primary
Spaces referenced above.
(ii) Cars must be parked entirely within the stall lines painted on the
floor, and only small cars may be parked in areas reserved for small
cars.
(iii) All directional signs and arrows must be observed.
(iv) The speed limit shall be 5 miles per hour.
(v) Spaces reserved for handicapped parking must be used only by
vehicles properly designated.
(vi) Parking is prohibited in all areas not expressly designated for
parking, including without limitation:
(a) areas not striped for parking
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(b) aisles
(c) where "no parking" signs are posted
(d) ramps
(e) loading zones
(vii) Parking stickers, key cards or any other devices or forms of
identification or entry supplied by Landlord shall remain the
property of Landlord. Such devices must be displayed as requested
and may not be mutilated in any manner. The serial number of the
parking identification device may not be obliterated. Devices are
not transferable and any device in the possession of any
unauthorized holder will be void.
(viii) Monthly fees shall be payable in advance prior to the first day of
each month. Failure to do so will automatically suspend parking
privileges and a charge at the prevailing daily parking rate will
be due until Tenant has paid the delinquent charges. No deductions
or allowances from the monthly rate will be made for days on which
the Garage is not used by Tenant or its designees.
(ix) Garage managers or attendants are not authorized to make or allow
any exceptions to these Rules.
(x) Every parker is required to park and lock his own car.
(xi) Loss or theft of parking identification, key cards or other such
devices must be reported to Landlord or any garage manager
immediately. Any parking devices reported lost or stolen found on
any unauthorized car will be confiscated and the illegal holder
will be subject to prosecution. Lost or stolen devices found by
Tenant or its employees must be reported to the office of the
garage immediately.
(xii) Washing, waxing, cleaning or servicing of any vehicle by the
customer and/or its agents is prohibited. Parking spaces may be
used only for parking automobiles.
(xiii) By signing this Lease, Tenant agrees to acquaint all persons to
whom Tenant assigns parking space of these rules
ARTICLE 40
SIGNAGE
Subject to the conditions of this Article, Tenant shall have the following
signage rights: (i) Tenant's name to be prominently visible on the display case
located on the skyway level of the Building , (ii) Tenant's name on the Building
directory or directories, (iii) Tenant's name on a kiosk location in the first
floor lobby of the Building, (iv) Tenant's name in the elevator lobby of each
floor fully occupied by Tenant, and (v) by Building standard suite signage on
multi-tenant floors. Landlord shall install, at Landlord's cost, the signage set
forth in clauses (ii) and (v) above and shall maintain same, the cost of such
maintenance to be included in Operating Expenses. All other signage shall be
installed by Tenant, at Tenant's sole cost and
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expense. All aspects of the size, design, materials, exact location, etc. of all
such signage shall be mutually agreed upon by Landlord and Tenant taking into
account Landlord's intended image for the Building and the image Tenant wishes
to convey as to its operation. Notwithstanding the foregoing, Tenant shall have
the right to install on the single-tenant floors occupied by Tenant such
signage, lettering, decal or design which does not otherwise conform with the
uniform pattern of identification, subject to Landlord's approval (which
approval shall not be unreasonably withheld, conditioned or delayed), which may
include Tenant's logo, style and color. Tenant shall have reasonable discretion
as to the design and installation of all signage in elevator lobbies on such
single-tenant floors. To the extent that the specific signage rights granted to
Tenant under this Article 40 are inconsistent with the Rules, the specific
provisions of this Article shall control. Landlord shall also cooperate with
Tenant as to Landlord's redesign of elevator numbering signage in the skyway
level of common areas, to assist Tenant in maximizing visitor usage of the upper
elevator bank by renumbering the high-rise bank to indicate `Floors 20-41' and
the low-rise bank to indicate Floors 3-19, the cost of which shall be paid by
Tenant. The signage rights provided in clauses (i) and (iii) above are personal
to Tenant. Under no circumstance whatsoever shall the assignee under a complete
or partial assignment of the Lease (other than a Related Entity) or a subtenant
under a sublease of the Premises, have such signage rights. The signage shall be
subject to such additional criteria as are set forth in Exhibit E attached
hereto.
ARTICLE 41
SATELLITE DISH
(A) Landlord hereby grants Tenant the non-exclusive right to use a portion
of the roof of the Building, in a location to be reasonably determined by
Landlord or Landlord's rooftop manager, Omnitek, only for the purpose of
installing the following (the "Item"): an 18" or smaller satellite dish, and for
no other purpose.
(B) Tenant shall contact Omnitek, and enter into a separate written
agreement with Omnitek regarding the installation of the Item and use of the
roof, and to gain access to the roof for the purposes permitted hereunder.
Landlord and Omnitek reserve the right to enter the roof, without notice, at any
time for the purpose of inspecting the same, or making repairs, additions or
alterations to the Building, or to exhibit the roof to prospective tenants,
purchasers or others, or for any other reason not inconsistent with Tenant's
rights hereunder. In connection with exercising such rights, Landlord or Omnitek
may require Tenant to temporarily disconnect and/or move the Item, if necessary,
and Tenant shall reasonably comply with any such request, provided, that
Landlord has provided Tenant with the opportunity, and sufficient prior notice,
to Tenant to set up a temporary, "back-up" satellite-dish. The exercise by
Landlord or Omnitek of any of their respective rights under this paragraph shall
not be deemed an eviction or disturbance of Tenant's use of the roof.
(C) Tenant shall not install the Item, or thereafter make any alterations,
additions or improvements to the roof or the Item without Landlord's prior
written consent, which shall not be unreasonably withheld. Omnitek, acting as
Landlord's agent, shall approve or reject the proposed installation of the Item
within a reasonable time after Tenant submits (1) plans and specifications for
the installation of the Item, (2) copies of all required governmental and
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quasi-governmental permits, licenses, and authorizations which Tenant will
obtain at its own expense, and (3) a certificate of insurance evidencing the
coverage required herein. Omnitek may withhold approval if the installation or
operation of the Item may damage the structural integrity of the Building,
interfere with any service provided by Landlord, Omnitek or any occupant, reduce
the amount of leaseable space in the Building, detract from the appearance of
the Building, or for any other reasonable ground. Landlord may require that any
installation or other work be done under the supervision of Landlord's employees
or agents, and in a manner so as to avoid damage to the Building. All
installation work shall be performed in a good and workmanlike manner, in
accordance with all governmental requirements.
(D) Upon termination of the Lease, by expiration or otherwise, Tenant
shall disconnect and remove the Item and fully repair and restore the roof to
the same or better condition than prior to installation of the Item, ordinary
wear and tear, and damage from fire or other casualty not the fault of Tenant
excepted. Tenant shall promptly and properly repair (or at Landlord's option,
pay Landlord's reasonable charges for repairing) during the Term and upon
termination of the Lease or this Rider, any roof leaks or other damage or injury
to the roof, or the Building (or contents thereof) caused by Tenant's use of the
roof or its installation, use, maintenance or removal of the Item. If Tenant
does not immediately repair any such leaks, damage or injury, or does not remove
the Item when so required, Tenant hereby authorizes Landlord to make such
repairs or remove and dispose of the Item and Tenant shall promptly pay
Landlord's reasonable charges for doing so. Landlord shall not be liable for any
property so disposed or removed by Landlord.
(E) Landlord does not represent or warrant that use of the roof hereunder
will comply with any applicable federal, state, county or local laws or
ordinances or the regulations of any of their agencies, or that the roof will be
suitable for Tenant's purposes. Tenant agrees that Tenant has inspected the roof
and agrees to accept the same hereunder "as is." Tenant shall at all times
comply with any applicable federal, state, county or local laws or ordinances,
pertaining to Tenant's use of the roof or the Item.
(F) Tenant shall indemnify and hold Landlord harmless from and against any
and all loss, cost, claim, damage, liability or expense which Landlord may incur
as a direct or indirect result of Tenant's use of the roof or Item, including
but not limited to attorneys' fees, whether or not any legal action is
instituted. This indemnity obligation shall include Landlord's partners,
officers, directors, trustees, beneficiaries, affiliates and agents
("Indemnitees"). Tenant shall maintain comprehensive or commercial general
liability insurance covering risks of bodily injury, death or property damage
arising out of Tenant's use of the roof or Item, in the amount of at least
$2,000,000 combined single limit per occurrence with a responsible insurance
company reasonably satisfactory to Landlord, which policy shall include a
contractual liability endorsement and shall include Landlord and the other
Indemnitees (as defined above) as additional insureds. Tenant shall provide a
certificate of such insurance to Landlord prior to using the roof, and such
insurance policy shall not be cancelable without at least thirty (30) days
written notice to Landlord. Landlord shall not be responsible for the Item in
the event of loss or damage thereto from any cause whatsoever. Tenant, on behalf
of its insurers, hereby waives any rights of subrogation against Landlord (or
the "Indemnitees" defined above).
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(G) Tenant shall not use the roof or the Item so as to interfere in any
way with the ability of Landlord or its tenants and occupants of the Building
and neighboring properties to receive radio, television, telephone, microwave,
short-wave, long-wave or other signals of any sort that are transmitted through
the air or atmosphere, nor so as to interfere with the use of electric,
electronic or other facilities, appliances, personal property and fixtures, nor
so as to interfere in any way with the use of any antennas, satellite dishes or
other electronic or electric equipment or facilities currently or hereafter
located on the roof or any floor or area of the Building.
(H) If the roof, Building or Item are materially damaged by fire or other
casualty, Tenant's right to use the roof may be terminated by Landlord as of the
date of such damage, subject to any provisions hereof which by their terms or
reasonable implication shall survive such termination. Landlord shall have no
obligation to repair or restore the roof or Building. In the event of such
damage, Tenant shall look solely to its insurers for any claims that Tenant may
have in connection with such damage or destruction. However, if a portion of the
roof remains available for communications use after any such casualty, Tenant
shall be provided the opportunity to locate communications equipment otherwise
complying with this Article 41 in the available area. This Article 41 shall be
interpreted and implemented in all respects consistent with the intention that
Tenant shall have reasonable use of the roof for communications purposes
throughout the Term, as may be extended. The Landlord acknowledges that Tenant's
ability to utilize the roof for communication purposes is an integral and
essential element of Tenant's occupancy of the Building. To the extent Tenant is
unable to reach agreement with Omnitek or its successor in operation of the
roof, Landlord shall use commercially reasonably efforts to resolve such dispute
so as to permit Tenant's continuing use of the roof in compliance with this
Article 41.
ARTICLE 42
STORAGE AGREEMENT
(A) Upon Tenant's request, Landlord shall provide Tenant with an
opportunity to lease storage space ("Storage Space") at the Property pursuant to
the terms of this Article 42. The term of such lease shall commence on the date
of delivery of the Storage Space to Tenant, and shall continue until the earlier
to occur of the Expiration Date, or Tenant's abandonment of the Premises or
abandonment of the Storage Space. Tenant shall pay to Landlord, in connection
with its use of the Storage Space, an annual fee, payable in equal monthly
installments, equal to $14.00 per square foot of the Storage Space, on or before
the first day of each calendar month during the Term. Any initial or final
partial month shall be prorated. Landlord reserves the right to increase such
fee from time to time during the Term to such monthly rates for comparable
storage space as Landlord may from time to time establish at the Property. In
the event that Landlord so increases the monthly fee hereunder, Tenant shall
have the right to cancel the Lease as to the Storage Space only, upon thirty
(30) days' notice, unless within such thirty (30) day period, Landlord revokes
such increase in the fee.
(B) Tenant shall use the Storage Space for purposes of storing equipment,
inventory or other items normally used in Tenant's business. All items stored in
the Storage Space shall be elevated at least six (6) inches above the floor on
wooden pallets, and shall be at least
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eighteen (18) inches below the bottom of all sprinklers located in the ceiling
of the Storage Space, if any. Any boxes shall not be stacked more than seven (7)
feet high. Tenant shall not store anything in the Storage Space which is unsafe
or which otherwise may create a hazardous condition, or which may increase
Landlord's insurance rates, or cause a cancellation or modification of
Landlord's insurance coverage. Without limitation, Tenant shall not store any
flammable, combustible or explosive fluid, chemical or substance nor any
perishable food or beverage products, except with Landlord's prior written
approval. Landlord reserves the right to adopt and enforce reasonable rules and
regulations governing the use of the Storage Space from time to time. Tenant
shall properly and at all times comply with all applicable ordinances, rules,
regulations, codes, laws, statutes and requirements of all federal, state,
county and municipal governmental bodies or their subdivisions respecting the
use of the Storage Space.
(C) Tenant shall not, without the prior written consent of Landlord,
assign, mortgage, pledge, hypothecate, encumber or permit any lien to attach to,
or otherwise transfer its rights to the Storage Space, by operation of law or
otherwise, nor sublet the Storage Space (other than to a Related Entity), nor
permit the use thereof by any parties other than Tenant and its employees. Any
such transfer (other than to a Related Entity) without Landlord's prior written
consent shall, at Landlord's option, be null, void and of no effect. Landlord
agrees not to unreasonably withhold consent to any such transfer.
(D) Landlord may, at its option, upon at least thirty (30) days' advance
written notice to Tenant, change the Storage Space hereunder to other storage
space at the Property comparable to the Storage Space herein. Tenant agrees to
accept the Storage Space "as is," and Landlord shall have no obligation to
maintain or repair the same. Tenant shall extend all of its insurance policies
required under the Lease to include the Storage Space, and the property to be
located therein. Upon request, Tenant shall provide Landlord with certificates
or other satisfactory evidence of such insurance. Landlord shall have no
liability whatsoever for any damage to property or any other items located in
the Storage Space, nor for any personal injuries or death arising out of any
matter relating to the Storage Space, and in all events, Tenant agrees to look
first to its insurance carrier for payment of any losses sustained in connection
with Tenant's use of the Storage Space. More particularly, but without
limitation, Landlord shall have no liability for loss of or damage to any
property by theft, vandalism, fire, explosion, falling plaster, steam, gas,
electricity, water, rain, bursting of pipes, seepage, dampness, or any other
cause. Tenant hereby waives on behalf of its insurance carriers all rights of
subrogation against Landlord and its agents. If Tenant shall default under this
Article 42, Landlord shall have the right to cancel the Lease as to the Storage
Space only on ten (10) days' written notice, unless within such ten (10) day
period, Tenant cures such default. Such cancellation right shall be cumulative
and in addition to any other rights or remedies available to Landlord at law or
equity, or provided under the Lease.
ARTICLE 43
ENTIRE AGREEMENT
This Lease, together with Rider One and Exhibits A through E (WHICH
COLLECTIVELY ARE HEREBY INCORPORATED WHERE REFERRED TO
49
<PAGE>
HEREIN AND MADE A PART HEREOF AS THOUGH FULLY SET FORTH), contains all the terms
and provisions between Landlord and Tenant relating to the matters set forth
herein and no prior or contemporaneous agreement or understanding pertaining to
the same shall be of any force or effect, except any such contemporaneous
agreement specifically referring to and modifying this Lease, signed by both
parties. Without limitation as to the generality of the foregoing, Tenant hereby
acknowledges and agrees that Landlord's leasing agents and field personnel are
only authorized to show the Premises and negotiate terms and conditions for
leases subject to Landlord's final approval, and are not authorized to make any
agreements, representations, understandings or obligations, binding upon
Landlord, respecting the condition of the Premises or Property, suitability of
the same for Tenant's business, or any other matter, and no such agreements,
representations, understandings or obligations not expressly contained herein or
in such contemporaneous agreement shall be of any force or effect. Neither this
Lease, nor any Riders or Exhibits referred to above may be modified, except in
writing signed by both parties.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
50
<PAGE>
LANDLORD:
222 SOUTH NINTH STREET LIMITED
PARTNERSHIP,
a Minnesota limited partnership
By: OB JOINT VENTURE II,
an Illinois limited partnership,
Managing Partner
By: JMB/PIPER JAFFRAY TOWER
ASSOCIATES,
an Illinois general partnership,
Managing Partner
By: CARLYLE REAL ESTATE
PARTNERSHIP-XIV,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
Corporate General Partner
By: /s/
_____________________________________
Vice President
TENANT:
CAPELLA EDUCATION COMPANY,
a Minnesota corporation
By: /s/ Paul F. Clifford
------------------------------------------------------
Its: VP & CFO
-----------------------------------------------------
51
<PAGE>
EXHIBIT 10.25
RIDER ONE
RULES
(1) On Saturdays, Sundays and Holidays, and on other days between the
hours of 6:00 P.M. and 8:00 A.M. the following day, or such other hours as
Landlord shall determine from time to time, access to the Property and/or to the
passageways, entrances, exits, shipping areas, halls, corridors, elevators or
stairways and other areas in the Property may be restricted and access gained by
use of a key to the outside doors of the Property, or pursuant to such security
procedures Landlord may from time to time impose. All such areas, and all roofs,
are not for use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence in the
judgment of Landlord shall be prejudicial to the safety, character, reputation
and interests of the Property and its tenants provided, however, that nothing
herein contained shall be construed to prevent such access to persons with whom
Tenant deals in the normal course of Tenant's business unless such persons are
engaged in activities which are illegal or violate these Rules. No Tenant and no
employee or invitee of Tenant shall enter into areas reserved for the exclusive
use of Landlord, its employees or invitees.
(2) Tenant shall not paint, display, inscribe, maintain or affix any sign,
placard, picture, advertisement, name, notice, lettering or direction on any
part of the outside or inside of the Property, or on any part of the inside of
the Premises which can be seen from the outside of the Premises, without the
prior consent of Landlord, and then only such name or names or matter and in
such color, size, style, character and material as may be first approved by
Landlord in writing. Landlord reserves the right to remove at Tenant's expense
all matter not so installed or approved without notice to Tenant.
(3) Tenant shall not in any manner use the name of the Property for any
purpose other than that of the business address of Tenant, or use any picture or
likeness of the Property, in any letterheads, envelopes, circulars, notices,
advertisements, containers or wrapping material without Landlord's express
consent in writing.
(4) Tenant shall not place anything or allow anything to be placed in the
Premises near the glass of any door, partition, wall or window which may be
unsightly from outside the Premises, and Tenant shall not place or permit to be
placed any article of any kind on any window ledge or on the exterior walls.
Blinds, shades, awnings or other forms of inside or outside window ventilators
or similar devices, shall not be placed in or about the outside windows in the
Premises except to the extent, if any, that the character, shape, color,
material and make thereof is first approved by Landlord.
(5) Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Property only at times and in the manner
designated by Landlord, in compliance with all Laws, and always at Tenant's sole
responsibility and risk. Landlord may impose reasonable charges for use of
freight elevators after or before normal business hours. All damage done to the
Property by moving or maintaining such furniture, freight or articles shall be
repaired by Landlord at Tenant's expense. Landlord may inspect items brought
into the Property or Premises with respect to weight or dangerous nature.
Landlord may require that all furniture,
<PAGE>
equipment, cartons and similar articles removed from the Premises or the
Property be listed and a removal permit therefor first be obtained from
Landlord. Tenant shall not take or permit to be taken in or out of other
entrances or elevators of the Property, any item normally taken, or which
Landlord otherwise reasonably requires to be taken, in or out through service
doors or on freight elevators. Tenant shall not allow anything (including
without limitation, portable carts, signs, placards, and billboards) to remain
in or obstruct in any way, any lobby, plaza, corridor, sidewalk, passageway,
entrance, exit, hall, elevator, escalator, stairway, shipping area, or other
area. Tenant shall move all supplies, furniture and equipment as soon as
received directly to the Premises, and shall move all such items and waste that
are at any time being taken from the Premises directly to the areas designated
for disposal. Tenant shall cause trash and rubbish to be deposited only in
receptacles approved or designated by Landlord. Any hand-carts used at the
Property shall have rubber wheels and side guards and no other material handling
equipment may be brought upon the Property except as Landlord shall approve in
writing in advance.
(6) Tenant shall not overload any floor or part thereof in the Premises,
or Property, including any public corridors or elevators therein bringing in or
removing any large or heavy articles, and Landlord may direct and control the
location of safes and all other heavy articles and require supplementary
supports at Tenant's expense of such material and dimensions as Landlord may
deem necessary to properly distribute the weight.
(7) Tenant shall not attach or permit to be attached additional locks or
similar devices to any door or window, change existing locks or the mechanism
thereof, or make or permit to be made any keys for any door other than those
provided by Landlord. If Tenant requires more keys to a lock than are initially
provided by Landlord pursuant to the Lease, Landlord will provide them upon
payment of a reasonable charge to Landlord. Tenant, upon termination of its
tenancy, shall deliver to Landlord all keys of offices, rooms and toilet rooms
which have been furnished Tenant or which Tenant shall have had made, and in the
event of loss of any keys so furnished shall pay Landlord therefor.
(8) If Tenant desires signal, communication, alarm or other utility or
similar service connections installed or changed, Tenant shall not install or
change the same without the prior approval of Landlord, and then only under
Landlord's direction at Tenant's expense. Tenant shall not install in the
Premises any equipment which requires more electric current than Landlord is
required to provide under this Lease, without Landlord's prior approval, and
Tenant shall ascertain from Landlord the maximum amount of load or demand for or
use of electrical current which can safely be permitted in the Premises, taking
into account the capacity of electric wiring in the Property and the Premises
and the needs of tenants of the Property, and shall not in any event connect a
greater load than such safe capacity.
(9) Tenant shall not obtain for use upon the Premises ice, drinking water,
towel, janitor and other similar services, except from Persons approved by
Landlord. Any Person engaged by Tenant to provide janitor or other services
shall be subject to direction by the manager or security personnel of the
Property.
(10) The toilet rooms, urinals, wash bowls and other such apparatus shall
not be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein and the
expense of any breakage, stoppage or damage
<PAGE>
resulting from the violation of this Rule shall be borne by Tenant who, or whose
employees or invitees shall have caused it.
(11) The janitorial closets, utility closets, telephone closets, broom
closets, electrical closets, storage closets, and other such closets, rooms and
areas shall be used only for the purposes and in the manner designated by
Landlord, and may not be used by tenants, or their contractors, agents,
employees, or other parties without Landlord's prior written consent.
(12) Landlord reserves the right to exclude or expel from the Property any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
these Rules. Tenant shall not at any time manufacture, sell, use or give away,
any spirituous, fermented, intoxicating or alcoholic liquors on the Premises,
nor permit any of the same to occur (except in connection with occasional social
or business events conducted in the Premises which do not violate any Laws nor
bother or annoy any other tenants). Tenant shall not at any time sell, purchase
or give away, food in any form by or to any of Tenant's agents or employees or
any other parties on the Premises, nor permit any of the same to occur (other
than in lunch rooms or kitchens for employees as may be permitted or installed
by Landlord, which does not violate any Laws or bother or annoy any other
tenant), nor permit any video, electronic or pinball machines on the Premises.
If any food or beverages shall be permitted to be sold or consumed on the
Premises, Landlord may require that Tenant engage a responsible pest and rodent
control service approved by Landlord on such regular basis as Landlord
reasonably requires.
(13) Tenant shall not make any room-to-room canvass to solicit business or
information or to distribute any article or material to or from other tenants or
occupants of the Property and shall not exhibit, sell or offer to sell, use,
rent or exchange any products or services in or from the Premises unless
ordinarily embraced within Tenant's use of the Premises specified in the Lease.
No leaflets or other materials may be distributed or placed on vehicles in any
parking area or facility.
(14) Tenant shall not waste electricity, water, heat or air conditioning
or other utilities or services, and agrees to cooperate fully with Landlord to
assure the most effective and energy efficient operation of the Property and
shall not allow the adjustment (except by Landlord's authorized Property
personnel) of any controls. Tenant shall keep corridor doors closed and shall
not open any windows, except that if the air circulation shall not be in
operation, windows which are openable may be opened with Landlord's consent. As
a condition to claiming any deficiency in the air-conditioning or ventilation
services provided by Landlord, Tenant shall close any blinds or drapes in the
Premises to prevent or minimize direct sunlight.
(15) Tenant shall conduct no auction, fire or "going out of business sale"
or bankruptcy sale in or from the Premises, and such prohibition shall apply to
Tenant's creditors.
(16) Tenant shall cooperate and comply with any reasonable safety or
security programs, including fire drills and air raid drills, and the
appointment of "fire wardens" developed by Landlord for the Property, or
required by Law. Before leaving the Premises unattended, Tenant shall close and
securely lock all doors or other means of entry to the
<PAGE>
Premises and shut off all lights and water faucets in the Premises (except heat
to the extent necessary to prevent the freezing or bursting of pipes).
(17) Tenant will comply with all municipal, county, state, federal or
other government laws, statutes, codes, regulations and other requirements in
its use of the Premises and the Building, including without limitation,
environmental, health, safety and police requirements and regulations respecting
the Premises, now or hereinafter in force, at its sole cost, and will not use
the Premises for any immoral purposes.
(18) Tenant shall not (i) carry on any business, activity or service
except those ordinarily embraced within the permitted use of the Premises
specified in the Lease and more particularly, but without limiting the
generality of the foregoing, shall not (ii) install or operate any internal
combustion engine, boiler, machinery, refrigerating, heating or air conditioning
equipment in or about the Premises, (iii) use the Premises for housing, lodging
or sleeping purposes or for the washing of clothes, (iv) place any radio or
television antennae other than inside of the Premises, (v) operate or permit to
be operated any musical or sound producing instrument or device which may be
heard outside the Premises, (vi) use any source of power other than electricity,
(vii) operate any electrical or other device from which may emanate electrical
or other waves which may interfere with or impair radio, television, microwave,
or other broadcasting or reception from or in the Property or elsewhere, (viii)
bring or permit any bicycle or other vehicle, or dog (except in the company of a
blind person or except where specifically permitted) or other animal or bird in
the Property, (ix) make or permit objectionable noise or odor to emanate from
the Premises, (x) do anything in or about the Premises tending to create or
maintain a nuisance or do any act tending to injure the reputation of the
Property, (xi) throw or permit to be thrown or dropped any article from any
window or other opening in the Property, (xii) use or permit upon the Premises
anything that will invalidate or increase the rate of insurance on any policies
of insurance now or hereafter carried on the Property or violate the
certificates of occupancy issued for the premises or the Property, (xiii) use
the Premises for any purpose, or permit upon the Premises anything, that may be
dangerous to persons or property (including but not limited to flammable oils,
fluids, paints, chemicals, firearms or any explosive articles or materials) nor
(xiv) do or permit anything to be done upon the Premises in any way tending to
disturb any other tenant at the Property or the occupants of neighboring
property.
(19) If the Property shall now or hereafter contain a building garage,
parking structure or other parking area or facility, the following Rules shall
apply in such areas or facilities:
(i) Parking shall be available in areas designated generally
for tenant parking, for such daily or monthly charges as Landlord
may establish from time to time, or as may be provided in any
Parking Agreement attached hereto (which, when signed by both
parties as provided therein, shall thereupon become effective). In
all cases, parking for Tenant and its employees and visitors shall
be on a "first come, first served," unassigned basis, with Landlord
and other tenants at the Property, and their employees and visitors,
and other Persons (as defined in Article 25 of the Lease) to whom
Landlord shall grant the right or who shall otherwise have the right
to use the same, all subject to these Rules, as the same may be
amended or supplemented, and applied on a non-discriminatory basis,
all as further described in Article 6 of the Lease. Notwithstanding
the foregoing to
<PAGE>
the contrary, Landlord reserves the right to assign specific spaces,
and to reserve spaces for visitors, small cars, handicapped
individuals, and other tenants, visitors of tenants or other
Persons, and Tenant and its employees and visitors shall not park in
any such assigned or reserved spaces. Landlord may restrict or
prohibit full size vans and other large vehicles.
(ii) In case of any violation of these provisions, Landlord
may refuse to permit the violator to park, and may remove the
vehicle owned or driven by the violator from the Property without
liability whatsoever, at such violator's risk and expanse. Landlord
reserves the right to close all or a portion of the parking areas or
facilities in order to make repairs or perform maintenance services,
or to alter, modify, re-stripe or renovate the same, or if required
by casualty, strike, condemnation, act of God, Law or governmental
requirement, or any other reason beyond Landlord's reasonable
control. In the event access is denied for any reason, any monthly
parking charges shall be abated to the extent access is denied, as
Tenant's sole recourse. Tenant acknowledges that such parking areas
or facilities may be operated by an independent contractor not
affiliated with Landlord, and Tenant acknowledges that in such
event, Landlord shall have no liability for claims arising through
acts or omissions of such independent contractor, if such contractor
is reputable.
(iii) Hours shall be 6 A.M. to 8 P.M., Monday through Friday,
and 8:00 A.M. to 1:00 P.M. on Saturdays, or such other hours as may
be reasonably established by Landlord or its parking operator from
time to time; cars must be parked entirely within the stall lines,
and only small cars may be parked in areas reserved for small cars;
all directional signs and arrows must be observed; the speed limit
shall be 5 miles per hour; spaces reserved for handicapped parking
must be used only by vehicles properly designated; every parker is
required to park and lock his own car; washing, waxing, cleaning or
servicing of any vehicle is prohibited; parking spaces may be used
only for parking automobiles; parking is prohibited in areas: (a)
not striped or designated for parking, (b) aisles, (c) where "no
parking" signs are posted, (d) on ramps, and (e) loading areas and
other specially designated areas. Delivery trucks and vehicles shall
use only those areas designated therefor.
<PAGE>
EXHIBIT 10.25
EXHIBIT B
JMB 105E (2/89)
WORK AGREEMENT
TENANT PERFORMANCE
WORK AGREEMENT
1. The Work. Under the Lease, Tenant has agreed to accept the Premises "as
is," without any obligations for the performance of improvements or other work
by Landlord, and Tenant desires to perform certain improvements thereto (the
"Work"). Such Work shall be in accordance with the provisions of this Work
Agreement, and to the extent not expressly inconsistent herewith, in accordance
with the provisions of the Lease, including without limitation, Article 8
thereof. Performance of the Work shall not serve to abate or extend the time for
the commencement of Rent under the Lease, except to the extent Landlord delays
approvals beyond the times permitted below.
2. Cost of the Work. Except as provided hereinafter, Tenant shall pay all
costs (the "Costs of the Work") associated with the Work whatsoever, including
without limitation, all permits, inspection fees, fees of space planners,
architects, engineers, and contractors, utility connections, cabling, the cost
of all labor and materials, bonds, insurance, and any structural or mechanical
work, additional HVAC equipment or sprinkler heads, or modifications to any
building mechanical, electrical, plumbing or other systems and equipment or
relocation of any existing sprinkler heads, either within or outside the
Premises required as a result of the layout, design, or construction of the
Work.
Of the Costs of the Work, Landlord shall reimburse Tenant the amount of
$25.00 per square foot of rentable area of the Premises (the "Improvement
Allowance"), which costs may include Tenant's costs incurred in preparing space
plans for the Premises, consulting and project management fees in relation to
the Work, and Tenant's costs of moving into the Premises. Landlord shall fund
the Improvement Allowance in installments, on a monthly basis, based on
applications for payment and releases of lien rights, submitted by Tenant on
Landlord's standard for use by contractors requesting progress payments,
together with such lien releases and affidavits of payments by Tenant's general
contractor and subcontractors contemplated therein, and such other documentation
as Landlord may reasonably require. Landlord may issue checks to fund the
Improvement Allowance jointly to Tenant, its general contractor, and, at
Landlord's option, to any subcontractors or suppliers.
Tenant shall be entitled to use a portion of any unused Improvement
Allowance, not to exceed $2.00 per square foot of rentable area of the Premises,
towards the first accruing payments of Base Rent under the Lease. If all or any
portion of any Improvement Allowance above $2.00 per square foot of rentable
area of the Premises shall not be used, Landlord shall be entitled to such
savings and Tenant shall receive no credit therefor.
3. Space Plan and Specifications.
<PAGE>
A. No later than ten (10) days after the date of this Work Agreement
set forth above, Tenant shall submit two (2) sets of a "Space Plan" (as
described in Section 16) to Landlord for approval.
B. Landlord shall, within ten (10) days after receipt thereof,
either approve said Space Plan, or disapprove the same advising Tenant of the
reasons for such disapproval. In the event Landlord disapproves said Space Plan,
Tenant shall modify the same, taking into account the reasons given by Landlord
for said disapproval, and shall submit two sets of the revised Space Plan to
Landlord within five (5) days after receipt of Landlord's initial disapproval.
4. Working Drawings and Engineering Report.
A. No later than ten (10) days after receipt of Landlord's approval
of the Space Plan, Tenant shall submit to Landlord for approval two (2) sets of
"Working Drawings" (as defined in Section 16), and a report (the "Engineering
Report") from Tenant's mechanical, structural and electrical engineers
indicating any special heating, cooling, ventilation, electrical, heavy load or
other special or unusual requirements of Tenant.
B. Landlord shall, within twenty (20) working days after receipt
thereof, either approve the Working Drawings and Engineering Report, or
disapprove the same advising Tenant of the reasons for disapproval. If Landlord
disapproves of the Working Drawings or Engineering Report, Tenant shall modify
and submit revised Working Drawings, and a revised Engineering Report, taking
into account the reasons given by Landlord for disapproval, within five (5) days
after receipt of Landlord's initial disapproval.
5. Landlord's Approval. Landlord shall not unreasonably withhold approval
of any Space Plans, Working Drawings, or Engineering Report submitted hereunder
if they provide for a customary office layout with finishes and materials
generally conforming to building standard finishes and materials currently being
used by Landlord at the Property, are compatible with the Property's shell and
core construction, and if no modifications will be required for the Property
electrical, heating, air-conditioning, ventilation, plumbing, fire protection,
life safety, or other systems or equipment, and will not require any structural
modifications to the Property, whether required by heavy loads or otherwise.
6. Space Planners, Architects, Engineers. The Space Plan, Working
Drawings, Engineering Report and the Work, shall be prepared and performed by
such space planners, architects, engineers, and contractors as Landlord
customarily engages or recommends for use at the Property; provided, Tenant may
substitute another licensed, bonded, reputable and qualified space planner,
architect, engineer or contractor, who will work in harmony with each other and
those of Landlord so as to ensure proper maintenance of good labor
relationships, and in compliance with all applicable labor agreements existing
between trade unions and the relevant chapter of the Association of General
Contractors of America. Such substitutions may be made only with Landlord's
prior written approval. Such approval shall be granted or denied within fifteen
(15) days after Landlord receives from Tenant a written request for such
substitution, containing a reasonable designation of the proposed party's
background, references and qualifications. Any such substitution shall not serve
to delay the times for submission of the
<PAGE>
Space Plan, Working Drawings and Engineering Report required herein, except to
the extent that Landlord delays granting or denying approval beyond the
aforementioned fifteen (15) day period.
7. Change Orders. No material changes, modifications, alterations or
additions to the approved Space Plan or Working Drawings may be made without the
prior written consent of Landlord after the written request therefor by Tenant.
In the event that the Premises are not constructed in accordance with said
approved Space Plan and Working Drawings, then Tenant shall not be permitted to
occupy the Premises until the Premises reasonably comply in all respects with
said approved Space Plan and Working Drawings; in such case, the Rent shall
nevertheless commence to accrue and be payable as otherwise provided in the
Lease.
8. Compliance. The Work shall comply in all respects with the following:
(a) the Building Code of the City and State in which the Building is located and
State, County, City or other laws, codes, ordinances and regulations, as each
may apply according to the rulings of the controlling public official, agent or
other such person, (b) applicable standards of the National Board of Fire
Underwriters and National Electrical Code, and (c) building material
manufacturer's specifications.
9. Guarantees. Each contractor, subcontractor and supplier participating
in the Work shall guarantee that the portion thereof for which he is responsible
shall be free from any defects in workmanship and materials for a period of not
less than one (1) year from the date of completion thereof. Every such
contractor, subcontractor and supplier shall be responsible for the replacement
or repair, without any additional charge, of all work done or furnished in
accordance with its contract which shall become defective within one (1) year
after completion thereof. The correction of such work shall include, without
additional charge, all additional expenses and damages in connection with such
removal or replacement of all or any part of the Work and/or the Property and/or
common areas, or work which may be damaged or disturbed thereby. All such
warranties or guarantees as to materials or workmanship of or with respect to
the Work shall be contained in the contract or subcontract which shall be
written such that said warranties or guarantees shall inure to the benefit of
both Landlord and Tenant, as their respective interests may appear, and can be
directly enforced by either. Tenant covenants to give Landlord any assignment or
other assurances necessary to effect such right of direct enforcement. Copies of
all contracts and subcontracts shall be furnished to Landlord promptly after the
same are entered.
10. Performance.
A. The Work shall be commenced within fifteen (15) days after
Landlord approves the Working Drawings, and shall thereafter be diligently
prosecuted to completion, subject to delays for reasons beyond Tenant's control
(except financial matters). All Work shall conform with the Working Drawings
approved by Landlord in writing, and Landlord may periodically inspect the Work
for such compliance. The Work shall be coordinated under Landlord's direction
with the work being done or to be performed for or by other tenants in the
Property so that the Work will not interfere with or delay the completion of any
other construction work in the Property.
<PAGE>
B. The Work shall be performed in a thoroughly safe, first-class and
workmanlike manner in conformity with the approved Space Plan and Working
Drawings, and shall be in good and usable condition at the date of completion.
C. Tenant shall be required to obtain and pay for all necessary
permits and/or fees with respect to the Work, and the same shall be shown to
Landlord prior to commencement of the Work.
D. Each contractor and subcontractor shall be required to obtain
prior written approval from Landlord for any space outside the Premises within
the Property, which such contractor or subcontractor desires to use for storage,
handling, and moving of his materials and equipment, as well as for the location
of any facilities for his personnel.
E. The contractors and subcontractors shall be required to remove
from the Premises and dispose of, at least once a week and more frequently as
Landlord may direct, all debris and rubbish caused by or resulting from the
construction. Upon completion of the Work, the contractors and subcontractors
shall remove all surplus materials, debris and rubbish of whatever kind
remaining within the Property which has been brought in or created by the
contractors and subcontractors in the performance of the Work. If any contractor
or subcontractor shall neglect, refuse or fail to remove any such debris,
rubbish, surplus material or temporary structures within two (2) days after
notice to Tenant from Landlord with respect thereto, Landlord may cause the same
to be removed by contract or otherwise as Landlord may determine expedient, and
charge the cost thereof to Tenant as additional Rent under the Lease.
F. Tenant shall obtain and furnish Landlord all approvals with
respect to electrical, water and telephone work as may be required by the
respective company supplying the service. Tenant shall obtain utility service,
including meter, from the utility company supplying service, unless Landlord
elects to supply service and/or meters.
G. Landlord shall have the right to require Tenant to furnish bonds
or other security in form and amount reasonably satisfactory to Landlord for the
prompt and faithful performance and payment for the Work. However, Landlord
shall not require a bond or other security if Landlord reasonably concludes that
the Tenant's contractor is financially responsible. Landlord shall identify any
bonding requirements at the time Tenant requests approval of the identity of its
general contractor.
H. Landlord's acceptance of the Work as being complete in accordance
with the approved Space Plan and Working Drawings shall be subject to Landlord's
inspection and written approval. Tenant shall give Landlord five (5) days' prior
written notification of the anticipated completion of the Work.
I. Intentionally Omitted.
J. Tenant shall, at its cost and expense construct, purchase,
install and perform any and all items of the Work, stock its merchandise and
employ its personnel so as to obtain any governmentally required certificate of
occupancy and to occupy the Premises as soon as possible, and in all cases on or
before the date required therefor hereunder or under the Lease.
<PAGE>
K. If an expansion joint occurs within the Premises, Tenant shall
install finish floor covering to or covering such joint in a workmanlike manner,
and Landlord shall not accept responsibility for any finish floor covering
applied to or installed over the expansion joint.
L. Copies of "as built" drawings shall be provided to Landlord no
later than thirty (30) days after completion of the Work.
M. Landlord's approval of Tenant's plans and specifications, and
Landlord's recommendations or approvals concerning contractors, subcontractors,
space planners, engineers or architects, shall not be deemed a warranty as to
the quality or adequacy of the Work, or the design thereof, or of its compliance
with Laws, codes and other legal requirements.
N. Tenant shall conduct its labor relations and relations with
employees so as to avoid strikes, picketing and boycotts of, on or about the
Premises or Property. If any employees strike, or if picket lines or boycotts or
other visible activities objectionable to Landlord are established, conducted or
carried out against Tenant, its employees, agents, contractors, subcontractors
or suppliers, in or about the Premises or Property, Tenant shall immediately
close the Premises and remove or cause to be removed all such employees, agents,
contractors, subcontractors and suppliers until the dispute has been settled.
O. Landlord shall not be responsible for any disturbance or
deficiency created in the air conditioning or other mechanical, electrical or
structural facilities within the Property or Premises as a result of the Work.
If such disturbances or deficiencies result, Tenant shall correct the same and
restore the services to Landlord's reasonable satisfaction, within a reasonable
time.
P. If performance of the Work shall require that additional services
or facilities (including without limitation, extra or after-hours elevator usage
or cleaning services) be provided, Tenant shall pay Landlord's reasonable
charges therefor.
Q. Tenant's contractors shall comply with the rules of the Property
and Landlord's requirements respecting the hours of availability of elevators
and manner of handling materials, equipment and debris. Demolition must be
performed after 6:00 p.m. on weekends. Delivery of materials, equipment and
removal of debris must be arranged to avoid any inconvenience or annoyance to
other occupants. The Work and all cleaning in the Premises must be controlled to
prevent dirt, dust or other matter from infiltrating into adjacent tenant or
mechanical areas.
R. Landlord may impose reasonable additional requirements from time
to time in order to ensure that the Work, and the construction thereof does not
disturb or interfere with any other tenants of the Property, or their visitors,
contractors or agents, nor interfere with the efficient, safe and secure
operation of the Property.
11. Insurance. All contractors and sub-contractors shall carry Worker's
Compensation Insurance covering all of their respective employees in the
statutory amounts. Employer's Liability Insurance in the amount of at least
$500,000 per occurrence, and comprehensive general liability insurance of at
least $3,000,000 combined single limit for bodily injury, death, or property
damage; and the policies therefor shall cover Landlord and Tenant as additional
<PAGE>
insureds, as well as the contractor or subcontractor. Tenant shall carry
builder's risk insurance coverage respecting the construction and improvements
to be made by Tenant, in the amount of the anticipated cost of construction of
the Work (or any guaranteed maximum price). All insurance carriers hereunder
shall be rated at least A and X in Best's Insurance Guide. Certificates for all
such insurance shall be delivered to Landlord before the construction is
commenced or contractor's equipment is moved onto the Property. All policies of
insurance must require that the carrier give Landlord twenty (20) days' advance
written notice of any cancellation or reduction in the amounts of insurance. In
the event that during the course of the Work any damage shall occur to the
construction and improvements being made by Tenant, then Tenant shall repair the
same at Tenant's cost.
12. Signage. Notwithstanding anything contained herein to the
contrary, Landlord may cause signage of building standard material and design to
be placed on or near the door of the Premises in accordance with Article 41 of
the Lease.
13. Asbestos. If the Property was constructed at a time when
asbestos was commonly used in construction, Tenant acknowledges that
asbestos-containing materials ("ACM") may be present at the Property, and that
airborne asbestos fibers may involve a potential health hazard unless proper
procedures are followed. In such case, before commencing the Work, Tenant and
its contractor shall consult with Landlord and Landlord's asbestos consultant
concerning appropriate procedures to be followed. Landlord shall, at Tenant's
expense, undertake any necessary initial asbestos-related work, before Tenant
commences the Work. During performance of the Work, Tenant shall require that
its contractor comply with all laws, rules, regulations and other governmental
requirements, as well as all directives of Landlord's asbestos consultant as
Tenant's attorney-in-fact for purposes of supervising and directing any
asbestos-related aspects of the Work (but such appointment shall not relieve
Tenant from its obligations hereunder, nor impose any affirmative requirement on
Landlord to provide such supervision or direction).
14. Liens. Tenant shall keep the Property and Premises free from any
mechanic's, materialmen's or similar liens or other such encumbrances in
connection with the Work, and shall indemnify and hold Landlord harmless from
and against any claims, liabilities, judgments, or costs (including attorneys'
fees) arising in connection therewith. Tenant shall give Landlord notice at
least five (5) business days prior to the commencement of the Work (or such
additional time as may be necessary under applicable laws), to afford Landlord
the opportunity of posting and recording appropriate notices of
non-responsibility. Tenant shall remove any such lien or encumbrance by bond or
otherwise within thirty (30) days after written notice by Landlord, and if
Tenant shall fail to do so, Landlord may pay the amount necessary to remove such
lien or encumbrance, without being responsible for investigating the validity
thereof. The amount paid shall be deemed additional rent under the Lease payable
upon demand, without limitation as to other remedies available to Landlord under
the Lease. Nothing contained herein shall authorize Tenant to do any act which
shall subject landlord's title to the Property or Premises to any liens or
encumbrances whether claimed by operation of law or express or implied contract.
Any claim to a lien or encumbrance upon the Property or Premises arising in
connection with the Work shall be null and void, or at Landlord's option shall
attach only against Tenant's interest in the Premises and shall in all respects
be subordinate to Landlord's title to the Property and Premises.
<PAGE>
15. Indemnity. Tenant shall indemnify, defend and hold harmless
Landlord (and Landlord's principals, partners, agents, trustees, beneficiaries,
offices, employees and affiliates) from and against any claims, demands, losses,
damages, injuries, liabilities, expenses, judgments, liens, encumbrances, orders
and awards, together with attorneys' fees and litigation expenses arising out of
or in connection with the Work, or Tenant's failure to comply with the
provisions hereof or any failure by Tenant's contractors, subcontractors or
their employees to comply with the provisions hereof, except to the extent
caused by Landlord's intentional or negligent acts.
16. Certain Definitions.
A. "Space Plan" herein means a floor plan, drawn to scale,
showing: (1) demising walls, corridor doors, interior partition walls and
interior doors, including any special walls, glass partitions or special
corridor doors, (2) any restrooms, kitchens, computer rooms, file rooms and
other special purpose rooms, and any sinks or other plumbing facilities, or
other special facilities or equipment, (3) any communications system, indicating
telephone and computer outlet locations, and (4) any other details or features
required to reasonably delineate the Work to be performed.
B. "Working Drawings" herein means fully dimensioned
architectural construction drawings and specifications, and any required
engineering drawings (including mechanical, electrical, plumbing,
air-conditioning, ventilation and heating), and shall include any applicable
items described above for the Space Plan, and if applicable: (1) electrical
outlet locations, circuits and anticipated usage therefor, (2) reflected ceiling
plan, including lighting, switching and any special ceding specifications, (3)
duct locations for heating, ventilating and air-conditioning equipment, (4)
details of all millwork, (5) dimensions of all equipment and cabinets to be
built in, (6) furniture plan showing details of space occupancy, (7) keying
schedule, (8) lighting arrangement, (9) location of print machines, equipment in
lunch rooms, concentrated file and library loadings and any other equipment or
systems (with brand names wherever possible) which require special consideration
relative to air-conditioning, ventilation, electrical, plumbing, structural,
fire protection, life-fire-safety system, or mechanical systems, (10) special
heating, ventilating and air conditioning equipment and requirements, (11)
weight and location of heavy equipment, and anticipated loads for special usage
rooms, (12) demolition plan, (13) partition construction plan, (14) type and
color of floor and wall-coverings, wall paint and any other finishes, and any
other details or features required to completely delineate the Work to be
performed.
17. Taxes. Tenant shall pay prior to delinquency all taxes,
charges or other governmental impositions (including without limitation, any
real estate taxes or assessments, sales tax or value added tax) assessed against
or levied upon Tenant's fixtures, furnishings, equipment and personal property
located in the Premises and the Work to the Premises under this Work Agreement.
18. INCORPORATED INTO LEASE; DEFAULT. THE PARTIES AGREE THAT THE
PROVISIONS OF THIS WORK AGREEMENT ARE HEREBY INCORPORATED BY THIS REFERENCE INTO
THE LEASE FULLY AS THOUGH SET FORTH THEREIN. In the event of any express
inconsistencies between the Lease and this Work
<PAGE>
Agreement, the latter shall govern and control. If Tenant shall default under
this Work Agreement, and fail to cure within ten (10) business days (provided,
if the nature of Tenant's default is such that more time is reasonably required
in order to cure, Tenant shall not be in default if Tenant commences to cure
within such period and thereafter diligently and reasonably pursues such cure to
completion), Landlord may order that all Work being performed in the Premises be
stopped immediately, and that no further deliveries to the Premises be made,
until such default is cured, without limitation as to Landlord's other remedies.
Any amounts payable by Tenant to Landlord hereunder shall be paid as additional
rent under the Lease. Any default by the other party hereunder shall constitute
a default under the Lease and shall be subject to the remedies and other
provisions applicable thereto under the Lease. If Tenant shall default under the
Lease or this Work Agreement and fail to cure the same within the time permitted
for cure under the Lease, at Landlord's option, all amounts paid or incurred by
Landlord towards the Improvement Allowance shall become immediately due and
payable as additional rent under the Lease.
<PAGE>
EXHIBIT 10.25
EXHIBIT C
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"AGREEMENT") is made by and between TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA, a New York corporation with offices at 730 Third Avenue, New York,
New York 10017 ("LENDER") and _____________________________, a [an] [individual]
name of state [corporation] [limited liability company] [general partnership]
[limited partnership] [d/b/a ________________] with its principal place of
business at ____________________ ("TENANT").
RECITALS:
A. Lender has made or is about to make a loan (together with all
advances and increases, the ("LOAN") to 222 South Ninth Street Limited
Partnership, a Minnesota limited partnership ("BORROWER").
B. Borrower, as landlord, and Tenant have entered into a lease dated
__________________________ as amended by amendments dated ________________
__________ (the "LEASE") which leased to Tenant [Suite No. ___________] [Floor
_______] (the "LEASED SPACE") located in the "Property" (defined below).
C. The Loan is secured by the Second Amendment to Agreement for
Extension, Supplement and Restatement of Mortgage dated May 29, 1992 recorded in
the official records of the County of Hennepin, State of Minnesota (together
with all advances, increases, amendments or consolidations, the "MORTGAGE").
D. The Mortgage encumbers the real property, improvements and fixtures
located at 222 South Ninth Street in the City of Minneapolis, County of
Hennepin, State of Minnesota, commonly known as the Piper Jaffray Tower and
described on Exhibit "A" (the "PROPERTY").
IN CONSIDERATION of the mutual agreements contained in this Agreement,
Lender and Tenant agree as follows:
1. The Lease and all of Tenant's rights under the Lease are and will
remain subject and subordinate to the lien of the Mortgage and all of the
Lender's rights under the Mortgage and Tenant will not subordinate the Lease to
any other lien against the Property without Lender's prior consent.
2. This Agreement constitute notice to Tenant of the Mortgage and the
Assignment and, upon receipt of notice from Lender, Tenant will pay the Rent as
and when due under the Lease to Lender and the payments will be credited against
the Rent due under the Lease.
3. Tenant does not have and will not acquire any right or option to
purchase any portion of or interest in the Property.
<PAGE>
4. Tenant and Lender agree that if Lender exercises its remedies under
the Mortgage or the Assignment and if Tenant is not then in default under this
Agreement and if Tenant is not then in default beyond any applicable grace and
cure periods under the Lease:
(a) Lender will not name Tenant as a party to any judicial or
non-judicial foreclosure or other proceeding to enforce the Mortgage unless
joinder is required under applicable law but in such case Lender will not seek
affirmative relief against Tenant, the Lease will not be terminated and Tenant's
possession of the Leased Space will not be disturbed;
(b) If Lender or any other entity (a "SUCCESSOR LANDLORD") acquires the
Property through foreclosure, by other proceeding to enforce the Mortgage or by
deed-in-lieu of foreclosure (a "FORECLOSURE"), Tenant's possession of the Leased
Space will not be disturbed and the Lease will continue in full force and effect
between Successor Landlord and Tenant; and
(c) If, notwithstanding the foregoing, the Lease is terminated as a
result of a Foreclosure, a lease between Successor Landlord and Tenant will be
deemed created, with no further instrument required, on the same terms as the
Lease except that the term of the replacement lease will be the then unexpired
term of the Lease. Successor Landlord and Tenant will execute a replacement
lease at the request of either. In the event of any attornment hereunder or
execution of any replacement lease, Tenant's term extension and expansion rights
under the Lease shall still be applicable to its continuing tenancy.
5. Upon Foreclosure, Tenant will recognize and attorn to Successor
Landlord as the landlord under the Lease for the balance of the term. Tenant's
attornment will be self-operative with no further instrument required to
effectuate the attornment except that at Successor Landlord's request, Tenant
will execute instruments reasonably satisfactory to Successor Landlord
confirming the attornment.
6. Successor Landlord will not be:
(a) liable for any act or omission of any prior landlord under the Lease
occurring before the date of the Foreclosure except for repair and maintenance
obligations of a continuing nature imposed on the landlord under the Lease.
(b) required to credit Tenant with any Rent paid more than one (1) month
in advance or for any security deposit unless such Rent or security deposit has
been received or escrowed by Successor Landlord;
(c) bound by any amendment, renewal or extension of the Lease that is
inconsistent with the terms of this Agreement or is not in writing and signed
both by Tenant and Landlord;
(d) bound by any reduction of the Rent unless the reduction is in
connection with an extension or renewal of the Lease at prevailing market terms
or was made with Lender's prior consent;
<PAGE>
(e) bound by any reduction of the term(1) of the Lease or any
termination, cancellation or surrender of the Lease unless the reduction,
termination, cancellation or surrender occurred during the last six (6) months
of the term or is made with Lender's prior consent, or such termination,
cancellation or surrender is specifically provided for in the Lease;
(f) bound by any amendment, renewal or extension of the Lease entered
into after the date of the Mortgage without Lender's prior consent if the Leased
Space represents 50% or more of the net rentable area of the building in which
the Leased Space is located;
(g) subject to any credits, offsets, claims, counterclaims or defenses
that Tenant may have that arose prior to the date of the Foreclosure or liable
for any damages Tenant may suffer as a result of any misrepresentation, breach
of warranty or any act of or failure to act by any party other than Successor
Landlord;
(h) bound by any obligation to make improvements to the Property to make
any payment or give any credit or allowance to Tenant provided for in the Lease
or to pay any leasing commissions arising out of the Lease, except that
Successor Landlord will be:
i. bound by any such obligations provided for in the Lender-approved
form lease;
ii. bound by any such obligations if the overall economic terms of the
Lease (including the economic terms of any renewal options) represented
market terms for similar space in properties comparable to the Property
when the Lease was executed; and
iii. bound to comply with the casualty and condemnation restoration
provisions included in the Lease provided that Successor Landlord receives
the insurance or condemnation proceeds;
iv. bound by any such obligations to make improvements to the Leased
Space specifically provided for in the Lease;
or
(i) liable for obligations under the Lease with respect to any off-site
property or facilities for the use of Tenant (such as off-site leased space or
parking) unless Successor Landlord acquires in the Foreclosure the right, title
or interest to the off-site property.
7. Lender will have the right but not the obligation, to cure any
default by Borrower, as landlord, under the Lease. Tenant will notify Lender of
any default that would entitle Tenant to terminate the Lease or abate the Rent
and any notice of termination or abatement will not be effective unless Tenant
has so notified Lender of the default and Lender has had a 30-day cure period
(or such longer period as may be necessary if the default is not susceptible to
cure within thirty (30) days) commencing on the latest to occur of the date on
which (i) the cure period under the Lease expires; (ii) Lender receives the
notice required by this paragraph; and (iii) Successor Landlord obtains
possession of the Property if the default is not susceptible to cure without
possession.
----------
(1) For purposes of this subparagraph "the term of the Lease" includes any
renewal term after the right to renew has been exercised.
<PAGE>
8. All notices, requests or consents required or permitted to be given
under this Agreement must be in writing and set by certified mail, return
receipt requested or by nationally recognized overnight delivery service
providing evidence of the date of delivery, with all charges prepaid, addressed
to the appropriate party at the address set forth above.
9. Any claim by Tenant against Successor Landlord under the Lease or
this Agreement will be satisfied solely out of Successor Landlord's interest in
the Property and Tenant will not seek recovery against or out of any other
assets of Successor Landlord. Successor Landlord will have no liability or
responsibility for any obligations under the Lease that arise subsequent to any
transfer of the Property by Successor Landlord.
10. This Agreement is governed by and will be construed in accordance
with the laws of the state in which the Property is located.
11. Lender and Tenant waive trial by jury in any proceeding brought by,
or counterclaim asserted by, Lender or Tenant relating to this Agreement.
12. If there is a conflict between the terms of the Lease and this
Agreement, the terms of this Agreement will prevail as between Successor
Landlord and Tenant.
13. This Agreement binds and inures to the benefit of Lender and Tenant
and their respective successors, assigns, heirs, administrators, executors,
agents and representatives.
14. This Agreement contains the entire Agreement between Lender and
Tenant with respect to the subject matter of this Agreement, may be executed in
counterparts that together constitute a single document and may be amended only
by a writing signed by Lender and Tenant.
15. Tenant certifies that: the Lease represents the entire agreement
between the landlord under the Lease and Tenant regarding the Leased Space; the
Lease is in full force and effect; neither party is in default under the Lease
beyond any applicable grace and cure periods and no event has occurred which
with the giving of notice or passage of time would constitute a default under
the Lease; Tenant has entered into occupancy and is open and conducting business
in the Leased Space; and all conditions to be performed to date by the landlord
under the Lease have been satisfied.
<PAGE>
IN WITNESS WHEREOF, Lender and Tenant have executed and delivered this
Agreement as of ________, 2000.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New
York corporation
By:______________________________
Name:____________________________
Title:___________________________
NAME OF TENANT,
a [an] [individual] [corporation] [limited liability
company] [general partnership] [limited
partnership] [d/b/a________________________]
By:______________________________
Name:____________________________
Title:___________________________
<PAGE>
ACKNOWLEDGMENT
State of ___________________
County of __________________
On this the ___day of __________________, 200_ before me, the
undersigned officer, personally appeared __________________ who acknowledged
himself to be the ___________________ I of ______________________, a
corporation, and that he, as such ___________________ being authorized so to do,
executed the foregoing instrument for the purposes therein contained, by signing
the name of the corporation by himself as ________________________.
In witness whereof I hereunto set my hand and official seal.
_______________________________
_______________________________
Title of Officer
<PAGE>
EXHIBIT 10.25
EXHIBIT A TO SNDA
LEGAL DESCRIPTION
PARCEL I
Lots 3, 4, and 5, and Block 3, Brown and Jackin's Addition to Minneapolis; and
all of Block 3, Snyder and Co.'s 1st Addition to Minneapolis, according to the
plats thereof on file or of record in the Office of the County Recorder,
Hennepin County, Minnesota.
PARCEL II
A permanent and exclusive easement appurtenant to Parcel I for the construction,
operation, maintenance and repair of a pedestrian skywalk corridor, granted by
the Woman's Christian Association of Minneapolis, a Minnesota non-profit
corporation, by Skyway Easement Agreement, dated May 2, 1984, by and between
Woman's Christian Association of Minneapolis, as grantor, and OB Joint Venture,
a South Dakota general partnership, as grantee, recorded on November 20, 1984,
in the Office of the County Recorder, Hennepin County, Minnesota, as document
No. 4944804, as amended by Amendment to Skyway Easement Agreement dated July 10,
1984, recorded on November 15, 1984, in the Office of the County Recorder,
Hennepin County, Minnesota, as Document No. 4943671.
PARCEL III
A permanent and exclusive easement appurtenant to Parcel I for the construction,
operation, maintenance and repair of a pedestrian skywalk corridor, granted by
St. Olaf's Catholic Church of Minneapolis, Minnesota, a Minnesota religious
corporation, by Skyway Encroachment easement dated May 5, 1984, by and between
St. Olaf's Catholic Church of Minneapolis, as grantor, and OB Joint Venture, a
South Dakota general partnership, as grantee, recorded on November 20, 1984, in
the Office of the Recorder of Hennepin County, Minnesota, as Document No.
4944803.
PARCEL IV
A permanent easement appurtenant to Parcel I for access and for the
construction, operation, maintenance and repair of a pedestrian skywalk
corridor, granted by Energy Center Partners, a Limited Partnership, a Minnesota
limited partnership, OB Joint Venture, a South Dakota partnership,
Campbell-Mithun, Inc., a Minnesota corporation, LHDL Realty Limited Partnership,
a Minnesota limited partnership, Piper Jaffray Incorporation, a Delaware
corporation, and 222 South Ninth Street Limited Partnership, a Minnesota limited
partnership, recorded on November 1, 1984, in the Office of the County Recorder,
Hennepin County, Minnesota, as Document No. 4939810.
PARCEL V
A permanent easement appurtenant to Parcel I for access and for the
construction, operation, maintenance and repair of a pedestrian skywalk
corridor, granted by Marina Management Company, N.V., a Netherlands Antilles
corporation, OB Joint Venture, a South Dakota
<PAGE>
partnership, Campbell-Mithun, Inc., a Minnesota corporation, LHDL Realty Limited
Partnership, a Minnesota limited partnership, Piper Jaffray Incorporation, a
Delaware corporation, and 222 South Ninth Street Limited Partnership, a
Minnesota limited partnership, recorded on July 31, 1984, in the Office of the
County Recorder, Hennepin County, Minnesota, as Document No. 4911964.
<PAGE>
EXHIBIT 10.25
EXHIBIT D
DISPUTE RESOLUTION MECHANISM
PREVAILING RENTAL RATE
(a) If Tenant does not agree with Landlord's determination of the Prevailing
Rental Rate (a "Rent Dispute"), Tenant shall give notice to Landlord of such
disagreement ("Disagreement Notice") within the time period provided in the
applicable provision of the Lease (the "Disagreement Notice Period") after
receipt of Landlord's notice of its determination of teh Prevailing Rental Rate
pursuant to the applicable provision. If Tenant fails to timely provide a
Disagreement Notice, then Tenant shall be bound by Landlord's determination of
the Prevailing Rental Rate. If Tenant does provide Landlord with such a
Disagreement Notice, Tenant shall include in its Disagreement Notice the basis
for its disagreement.
(b) If Tenant gives Landlord a Disagreement Notice within the applicable
Disagreement Notice Period, each party will choose a qualified third party to
participate in resolution of the dispute. As to Rent Disputes, each such party
(and the third party to be designated, as referenced below) shall be a real
estate appraiser in the Minneapolis metropolitan area who shall be a member in
good standing of the American Institute of Real Estate Appraisers (or a
successor organization or, if no such organization exists, then persons of
similar professional qualifications), and shall have had no business or
professional relationship with the party designating that person within the
prior three (3) years. Each party will give notice of the name and address of
such person to the other within ten (10) days after Tenant delivers the
Disagreement Notice. Those two (2) persons shall within five (5) days after
designation select a third person with the same credentials, who shall not have
had any business or professional relationship with either party during the prior
three (3) years, or if they cannot agree on a third person within such five (5)
day period, either person may request that the American Institute of Real Estate
Appraisers (or a successor organization or, if no such organization exists, then
persons of similar professional qualifications) appoint such third person. The
three (3) persons (singularly, the "Expert" and collectively, the "Experts")
shall make a determination as to the resolution of the Dispute as expeditiously
as possible thereafter and in any event within thirty (30) days after the
selection of the third Expert. The determination of the Experts shall be made as
follows:
(i) At least five (5) days prior to the commencement of the Experts'
deliberations, each party shall submit to the Experts and the other party
all information deemed relevant by that party to the determination by the
Experts of the Dispute (this shall include disclosure by Landlord of the
terms of leases and renewals in the Building in the prior twelve (12)
month period), and each Expert will independently determine its position
as to resolution of the Dispute and then all will meet and
contemporaneously disclose to the others their respective determinations.
The Experts shall be instructed to express their results in a fixed base
rent amount per rentable square foot over the applicable period as to
which the Prevailing Rental Rate is to be determined
<PAGE>
(ii) If neither the highest nor the lowest determination differs from the
middle determination by more than ten percent (10%) of such middle
determination, then the resolution of the Dispute shall be the average of
all three determinations.
(iii) If subparagraph (ii) does not apply, then the resolution of the
Dispute shall be the average of the two determinations closest by dollar
amount.
(iv) The Experts shall promptly notify Landlord and Tenant of each of
their separate determinations and the resulting Dispute resolution. The
determination of the Experts shall be final, binding and conclusive upon
Landlord and Tenant.
(c) Each party will pay any and all fees and expenses incurred in connection
with such party's Expert and the fees and expenses for the third Expert will be
borne equally by the parties.
<PAGE>
EXHIBIT 10.25
EXHIBIT E
SIGNAGE CRITERIA
Skyway Display Case
The Skyway Display Case shall be an architecturally unique internally
illuminated glass front display case. Glass front shall be comprised of 16'0" of
Herculite glass with a pair of swinging glass doors with chrome trim to match
the base building architectural details. The sill height shall be 30-1/2" above
the finished floor, with an internal height of 5'9". The back of the display
case shall be finished with a neutral fabric. There shall be recessed slot
brackets to accommodate shelving. Within the case may be an electric scrolling
message board. The location of the display case shall be opposite of D. Brian's
Deli in the west skyway entrance. The existing display case shall be provided to
Tenant in its "as is" condition. Modifications of the display case, except to
conform with the foregoing criteria, shall be subject to approval by Landlord.
Lobby Display
The lobby display kiosk shall be no larger than 32" wide (square) and a maximum
of 7' 0" in height from the floor. Finishes and materials utilized in the
construction of the kiosk shall harmonize with the existing building finishes
and materials. The kiosk shall be non-illuminated. An interactive touch screen
or monitor shall be permitted with the provision that there shall be no sound
producing equipment. The kiosk shall be constructed to be able to be moved by
one person without the need of any special equipment. The kiosk shall be
constructed to comply with all OSHA and ANSI standards to prevent tipping and
all ADA requirements. The location of the kiosk shall be subject to approval by
Landlord.
All designs shall be submitted to Landlord for approval.
<PAGE>
AMENDMENT NO. 1 TO LEASE AGREEMENT
This Amendment No. 1 to Lease Agreement ("Amendment") is made effective as
of December 5, 2001, between ND PROPERTIES, INC. ("Landlord") and CAPELLA
EDUCATION COMPANY ("Tenant").
A. Landlord's predecessor in interest and Tenant entered into a written
Office Lease dated June 28, 2000 ("Lease"), relating to the premises currently
consisting of approximately 68,768 rentable square feet ("Current Premises") and
comprised of the entire rentable area of the 16th, 19th and 20th floors of the
building located at 222 South Ninth Street, Minneapolis, Minnesota (the
"Building").
B. The Lease has not previously been amended or modified.
C. Landlord and Tenant desire to expand the Premises and to otherwise
amend the Lease as provided in this Amendment.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
expressly acknowledged, Landlord and Tenant agree as follows:
1. Effect. The Lease is hereby amended to the extent necessary to give
effect to this Amendment, and the terms of this Amendment shall supersede any
contrary terms in the Lease. All references in the Lease to "this Lease" shall
be deemed to refer to the Lease as amended by this Amendment. In all other
respects, the terms and conditions of the Lease shall remain unmodified and in
effect. Unless otherwise defined herein, capitalized terms shall have the same
meaning as provided in the Lease.
2. Expansion Option. The Expansion Option under Article 37 of the Lease
was not exercised and has lapsed. Accordingly, said Article 37 is hereby
entirely deleted from the Lease.
3. 18th Floor Initial Space.
A. For purposes of this Amendment:
(1) "18th Floor Initial Space" shall mean the space consisting of an
agreed 11,356 rentable square feet on the 18th floor of the Building as
shown on the attached Exhibit A.
(2) "18th Floor Initial Space Delivery Date" shall mean the date
Landlord makes the 18th Floor Initial Space available to Tenant for the
commencement of Tenant's performance of leasehold improvement work. The
18th Floor Initial Space Delivery Date is estimated to occur on September
1, 2002, except that Landlord shall make such space available to Tenant on
such earlier date as Landlord reasonably determines the space is
available.
(3) "18th Floor Initial Space Commencement Date" shall mean the earlier
of:
(a) the later of (i) November 1, 2002, or (ii) the date which is
sixty (60) days after the 18th Floor Initial Space Delivery Date; or
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(b) Tenant's first business use of any material portion of the
18th Floor Initial Space.
(4) "Business use" shall mean the conduct of business operations in the
applicable space (other than construction, equipment, installation, and
the moving and affixing of fixtures, furnishings and equipment).
B. Effective as of the 18th Floor Initial Space Commencement Date, (1)
the 18th Floor Initial Space shall be added to and constitute a part of the
Premises; (2) the term "Premises" shall be modified to mean and include the 18th
Floor Initial Space and the entire rentable areas on the 16th, 19th and 20th
floors of the Building; (3) the rentable area of the Premises shall be 80,124
rentable square feet; and (4) except as otherwise provided in this Amendment,
the 18th Floor Initial Space shall be part of the Premises for the remaining
Term of the Lease (including any extension or renewal thereof) and shall be
subject to all of the terms and conditions of the Lease currently in effect.
C. In addition to Rent for the Current Premises as provided in the
Lease, Tenant shall pay Rent for the 18th Floor Initial Space as follows:
(1) Commencing on the 18th Floor Initial Space Commencement Date and
continuing through November 30, 2005, Tenant shall pay Base Rent for the
18th Floor Initial Space determined at an annual rate per rentable square
foot and payable in advance in monthly installments as follows:
Annual Monthly Base Rent
Period Base Rent Base Rent Per Square Foot
------ ----------- ---------- ---------------
18th Floor Initial Space
Commencement Date
through 10/31/02, if any $147,628.00 $12,302.33 $13.00
11/1/02-10/31/03 $150,467.00 $12,538.92 $13.25
11/1/03-10/31/04 $153,306.00 $12,775.50 $13.50
11/1/04-11/30/05 $156,145.00 $13,012.08 $13.75
(2) Commencing on the 18th Floor Initial Space Commencement Date and
continuing through the remaining Term: (a) the rentable square footage of
the Premises for purposes of calculation of Tenant's Prorata Share shall
be increased by 11,356 rentable square feet; and (b) Tenant shall pay
Tenant's Prorata Share of Taxes and Operating Expenses for the 18th Floor
Initial Space at the same rate as then payable for the Premises and
subject to the same adjustments as provided in the Lease.
Rent for the 18th Floor Initial Space shall be paid at the same time and in the
same manner as provided in the Lease for payment of Rent for the Current
Premises. If the 18th Floor Initial Space Commencement Date is not the first day
of a calendar month, to Base Rent and Tenant's Prorata Share of Taxes and
Operating Expenses for the 18th Floor Initial Space for such partial month shall
be prorated daily and paid in advance. If the Extension Option is exercised as
provided in Article 36 of the Lease, the Rent and other economic terms for the
18th Floor Initial Space shall be determined as provided in said Article for any
Extension Period.
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D. Landlord will deliver possession of the 18th Floor Initial Space to
Tenant on the 18th Floor Initial Space Delivery Date for the purpose of allowing
Tenant or its contractor(s) to undertake demolition, construction and
improvement work in such space. If the 18th Floor Initial Space Delivery Date is
delayed beyond September 1, 2002, despite Landlord's commercially reasonable
efforts to deliver the 18th Floor Initial Space, Landlord shall not be liable
for any such delay, the Lease shall not be impaired, and the Term of the Lease
shall not be affected or extended thereby.
If Landlord has reason to believe that it will not be able to deliver the 18th
Floor Initial Space to Tenant on or before September 1, 2002, Landlord shall
promptly provide Tenant with notice as to the status of the space and the
anticipated delivery date. Such notice shall be provided to Tenant promptly
after Landlord's determination that a delay will occur and in any event on or
before August 1, 2002 (if Landlord has then determined a delay will occur).
Following any such notice to Tenant, Landlord shall continue to utilize
commercially reasonable efforts to deliver the 18th Floor Initial Space as soon
as possible. If the 18th Floor Initial Space Delivery Date is delayed beyond
September 1, 2002, the 60-day period specified in Section 3A(3)(a)(ii) above
shall be extended by an additional five (5) business days to complete
construction in the 18th Floor Initial Space.
At all times subsequent to the delivery of possession of the 18th Floor Initial
Space, Tenant's use and occupancy of, and duties and obligations with respect
to, the 18th Floor Initial Space shall be in accordance with all of the terms
and conditions of the Lease; provided, however, that Tenant shall not be
required to pay any Base Rent, Taxes or Operating Expenses with respect to the
18th Floor Initial Space before the 18th Floor Initial Space Commencement Date.
Except as provided in the following Section 3E, the 18th Floor Initial Space
will be delivered to Tenant in an "as is" condition, and Landlord will have no
obligation to make any repair, alteration or improvement thereto or to provide
any allowances or inducements.
E. So long as Tenant is not then in default under this Amendment or the
Lease (beyond any applicable cure period), Landlord will provide a one-time
allowance (the "Improvement Allowance") in the amount of $175,071.67 (based an
$25.00 per rentable square foot in the 18th Floor Initial Space times a
fraction, the numerator of which is 37 and the denominator of which is 60) for
the cost of tenant improvements installed in such space. The Improvement
Allowance will be used for paying the costs of demolition of existing
improvements and constructing new tenant improvements within the 18th Floor
Initial Space as well as for any modifications required to existing improvements
above and below the ceiling; architectural, mechanical and engineering work
drawings; consulting and project management fees in relation to the work;
Tenant's costs of moving into the space; and telecommunications cabling relating
to the space. The Improvement Allowance will be disbursed, and Tenant will
perform Tenant's Work in the 18th Floor Initial Space, in accordance with all of
the terms and conditions of Exhibit B to the Lease, which Exhibit B is hereby
incorporated herein by reference subject to the following modifications: (1) all
references in such Exhibit B to the "Premises" shall be deemed to refer to the
18th Floor Initial Space; (2) all references in such Exhibit B to the
"Improvement Allowance" shall be deemed to refer to the Improvement Allowance as
provided in this Section 3E; and (3) the date for Tenant submitting a Space Plan
for the Tenant's Work under Section 3A of such Exhibit B shall be July 1, 2002,
unless Landlord shall have provided to Tenant a notice of delay in delivery as
provided in Section 3D above, in which case the Space
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Plan shall be due no later than forty-five (45) days prior to the date of
anticipated delivery identified in Landlord's notice. To the extent that Tenant
does not fully expand the entire Improvement Allowance, the excess (up to a
maximum of $2.00 per rentable square feet in the 18th Floor Initial Space) shall
be applied to the payments of Rent next coming due after the 18th Floor Initial
Space Commencement Date. If Landlord will require a demising wall between the
18th Floor Initial Space and the 18th Floor Remainder Space, such demising wall
shall be constructed by Landlord before or simultaneously with Tenant's Work at
Landlord's expense.
F. Within twenty (20) days after written request by Landlord, Landlord
and Tenant shall execute and deliver an instrument in form reasonably
satisfactory to Landlord confirming the 18th Floor Initial Space Commencement
Date and such other matters relating to this Amendment as reasonably requested
by Landlord from time to time.
4. 18th Floor Remainder Space.
A. For purposes of this Amendment:
(1) "18th Floor Remainder Space" shall mean the space consisting of an
agreed 11,356 rentable square feet on the 18th floor of the Building as
shown on the attached Exhibit A.
(2) "18th Floor Remainder Space Commencement Date" shall mean the
earlier of (a) May 1, 2003, or (b) Tenant's first business use of any
material portion of the 18th Floor Remainder Space.
(3) "Expansion Option Exercise Date" means the earlier of (a) May 31,
2002, or (b) ten (10) business days after Landlord gives an Early Exercise
Call Notice as defined in the following Section 4B.
B. In the event that, prior to May 31, 2002, Landlord (i) executes one
or more leases or amendments under which one or more third party tenants will
occupy all of the rentable areas on the 8th, 9th, and 10th floors of the
Building, and (ii) executes one or more leases, amendments or letters of intent
under which one or more third party tenants will occupy all of the rentable
areas on the 17th floor of the Building and all of the 18th Floor Remainder
Space with such tenant(s) under (i) and (ii) to occupy on or before May 1, 2003,
then Landlord may give written notice to Tenant requiring an early exercise of
the Expansion Option as to the 18th Floor Remainder Space ("Early Exercise Call
Notice"). Tenant shall have ten (10) business days thereafter in which to
exercise the Expansion Option by giving Tenant's Expansion Option Exercise
Notice. If Tenant so exercises the Expansion Option based on the Early Exercise
Call Notice, to 18th Floor Remainder Space Commencement Date shall remain the
same. If Tenant shall fail to so exercise the Expansion Option based on the
Early Exercise Call Notice, the Expansion Option shall be deemed to have lapsed
and expired, and shall be of no further force or effect. Nothing herein shall be
deemed to impair or waive Tenant's right of first offer as to the 17th Floor
Space under Article 38 of the Lease.
C. Subject to the terms of this option (the "Expansion Option"), Tenant
shall have a one time right to lease all, but not less than all, of the 18th
Floor Remainder Space in an "as is" condition, on the same terms and conditions
then in effect under the Lease, except that (1) the
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rentable square footage of the 18th Floor Remainder Space shall be added to the
rentable square footage of the Premises for the purposes of calculating Base
Rent and Tenant's Prorata Share as of the 18th Floor Remainder Space
Commencement Date, and (2) Landlord shall reimburse Tenant for the cost of
tenant improvements installed in the 18th Floor Remainder Space by Tenant, and
the cost of related space planning, moving and consulting fees, up to an amount
equal to $146,681.67 (based on $25.00 per rentable square feet in the 18th Floor
Remainder Space multiplied by a fraction, the numerator of which is 31 and the
denominator of which is 60). Such reimbursement shall be subject to the terms of
a work agreement to be executed by Landlord and Tenant, which work agreement
shall be similar in all material respects to the Work Agreement attached to the
Lease as Exhibit B. This Expansion Option may be exercised only by giving
Landlord irrevocable and unconditional written notice (the "Expansion Option
Exercise Notice") thereof no later than the Expansion Option Exercise Date. If
the 18th Floor Remainder Space is not occupied by a third party tenant at the
time of the Expansion Option Exercise Notice (or thereafter prior to the 18th
Floor Remainder Space Commencement Date), Landlord shall make the 18th Floor
Remainder Space available for Tenant's performance of leasehold improvement work
(without the imposition of Rent, unless Tenant opens for business in the 18th
Floor Remainder Space prior to the 18th Floor Remainder Space Commencement Date,
in which event Tenant's obligation to pay Rent for the 18th Floor Remainder
Space shall commence as of the date it opens for business in the 18th Floor
Remainder Space), subject to the condition that Tenant's inability to complete
such work prior to the 18th Floor Remainder Space Commencement Date shall not
delay that date. In any event, Landlord shall permit Tenant no less than sixty
(60) days for the construction of tenant improvements in the 18th Floor
Remainder Space after the delivery of such space to Tenant and prior to the
occurrence of the 18th Floor Remainder Space Commencement Date. In the event
that the 18th Floor Remainder Space is delivered to Tenant after March 1, 2003,
the date for purposes of Section 4A(2)(a) above shall be adjusted to the date
which is sixty (60) days after the 18th Floor Remainder Space is delivered to
Tenant.
D. As of the 18th Floor Remainder Space Commencement Date, the lease
shall commence as to the 18th Floor Remainder Space and shall continue for the
duration of the Term of the Lease (including any extensions or renewals
thereof); the 18th Floor Remainder Space shall be added to the Premises; and
Tenant shall be obligated for the payment of Rent on the 18th Floor Remainder
Space. After Tenant validly exercises the Expansion Option, the parties shall
execute an amendment to the Lease, adding the 18th Floor Remainder Space, and
such other documentation as Landlord shall require, promptly after Landlord
shall prepare the same, in order to confirm the leasing of the 18th Floor
Remainder Space to Tenant, but an otherwise valid exercise of the Expansion
Option shall be fully effective, whether or not such confirmatory documentation
is executed. Landlord shall have no obligation to disburse any allowance or
reimbursement funds until Tenant has executed a binding amendment to the Lease
committing to occupancy of the applicable space, but otherwise such amounts
shall be disbursed within thirty (30) days of application by Tenant with
supporting documentation indicating the incurring of costs reimbursable under
the Work Agreement. To the extent that Tenant does not fully expend all of the
amounts to be provided by Landlord hereunder, the excess (up to a maximum of
$2.00 per rentable square foot) shall be applied to the payments of Rent next
accruing after the 18th Floor Remainder Space Commencement Date.
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E. If Tenant shall fail to exercise the Expansion Option by delivery of
the Expansion Option Exercise Notice on or before the Expansion Option Exercise
Date, the Expansion Option shall be deemed to have lapsed and expired, and shall
be of no further force or effect. Landlord may thereafter freely lease all or a
portion of the 18th Floor Remainder Space to any other party, at any time, on
any terms, in Landlord's sole discretion. At any time following the lapse of the
Expansion Option, Landlord may, at its expense, construct a common corridor on
the 18th Floor in compliance with applicable laws, incorporate a portion of the
18th Floor Initial Space in such common corridor, and construct a demising wall
and entrances as necessary to separate the 18th Floor Initial Space from such
common corridor. The specific size, location, and configuration of the common
corridor shall be as reasonably determined by Landlord based on applicable legal
requirements and reasonable third-party, market leasing considerations, but in
any event such common corridor shall be constructed directly adjacent to the
Building's service core. To the extent that leasehold improvements previously
installed by Tenant must reasonably be altered or restored as a result of the
installation of the common corridor (i.e., relocation of entry doors, reasonable
reconfiguration of interior space, and the like), Landlord shall pay the
reasonable and direct costs payable to third party architects, designers,
contractors, and engineers for such alterations and restoration, and the parties
shall reasonably cooperate to implement such alterations and restoration work so
as to cause minimal disruption to Tenant's business operation. Regardless of the
construction of such common corridor, the 18th Floor Initial Space shall be
deemed to include an agreed 11,365 rentable square feet, and Tenant shall pay
Rent for the 18th Floor Initial Space based on an agreed 11,365 rentable square
feet.
F. Tenant's exercise of the Expansion Option shall not operate to cure
any Default by Tenant of any of the terms and provisions in the Lease, nor to
extinguish or impair any rights or remedies of Landlord arising by virtue of
such Default. The Expansion Option shall, at Landlord's election, be null and
void if Tenant has received written notice that it is in default of a material
term under the Lease and such default remains uncured (i) with respect to a
monetary default, at the date of the Expansion Option Exercise Notice, or (ii)
with respect to any default, on the 18th Floor Remainder Space Commencement
Date. If the Lease or Tenant's right to possession of the Premises shall
terminate in any manner whatsoever before Tenant shall exercise the Expansion
Option, or, if Tenant shall have subleased or assigned all or any portion of the
Premises to a party other than a Related Entity, then immediately upon such
termination, sublease or assignment, the Expansion Option shall simultaneously
terminate and become null and void. Such right is personal to Tenant (and any
Related Entity that is an assignee or sublessee of substantially all of the
Premises). Tenant agrees that time is of the essence of this provision.
G. Within twenty (20) days after written request by Landlord, Tenant
shall execute and deliver an instrument in form reasonably satisfactory to
Landlord confirming the exercise or termination of the Expansion Option, the
18th Floor Remainder Space Commencement Date, and such other matters relating to
this Amendment as reasonably requested by Landlord.
5. Tenant's Representations. Tenant hereby represents to Landlord that
there has been no assignment of the Lease and no sublease of all or any portion
of the Premises, there are no existing defenses or offsets which Tenant has
against enforcement of the Lease, and Landlord and Tenant are not in default
under the Lease.
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6. Brokers. Landlord and Tenant each represents that it has not engaged
or dealt with any real estate broker, agent or finder with respect to this
Amendment, except for Kennedy-Wilson Minnesota Management, Inc., representing
Landlord, and CB Richard Ellis, Inc., representing Tenant. If this transaction
is consummated, Landlord shall be responsible to pay a commission to both such
brokers pursuant to a separate written agreement. Landlord and Tenant shall
indemnify and hold each other harmless from all claims, liability or expense
(including reasonable attorneys fees) in connection with any claim for broker's,
finder's or other fees or commissions as a result of such party's actions or
alleged actions.
7. Entire Agreement. The Lease, including, without limitation, this
Amendment and all exhibits which are attached hereto and hereby incorporated by
reference, constitutes the entire agreement between Landlord and Tenant with
respect to the subject matter hereof. Tenant acknowledges that it has not been
induced to enter into this Amendment by any agreements or representations which
are not set forth in this Amendment. This Amendment shall not be effective until
execution and delivery by both Landlord and Tenant.
By signing this Amendment, the parties agree to the above terms.
LANDLORD: TENANT:
ND PROPERTIES, INC. CAPELLA EDUCATION COMPANY
By: /s/ Robert D. Loverro By: /s/ Paul Schroeder
----------------------------------- ------------------------------
Name: Robert D. Loverro Name: Paul Schroeder
Title: Asst. Secy Title: SVP & CFO
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August 29, 2002
Ms. Linda Solberg
KENNEDY-WILSON MINNESOTA MANAGEMENT
222 South Ninth Street
Suite 390
Minneapolis, MN 55402
RE: CAPELLA SECOND HALF EXPANSION -18th FLOOR
Dear Linda:
On behalf of Capella, I am pleased to present this letter of notification of
Capella's desire to expand onto the second half of the 18th floor and a revised
rent commencement date for the first half of the 18th floor. Final board
approval is necessary for all Lease amendments. This proposal is approved by the
CEO and CFO of Capella however, final approval will not be made until the board
meeting on October 24, 2002. The terms and conditions that Capella would be
willing to proceed with are as follows:
1ST HALF -18TH FLOOR
Premises: 11,356 square feet
Space Delivery Condition: Capella to terminate existing wiring at the
floor only
Rent Commencement Date: January 1, 2003
Annual Net Rent Rate: 1/1/03 - 10/31/03: $13.25
11/1/03 - 10/31/04: $13.50
11/1/04 - 11/30/05: $13.75
Tenant Improvement
Allowance: $25.00 per rentable square foot ($283,900.00)
2ND HALF -18TH FLOOR
Premises: 11,356 square feet
Space Delivery Condition: Capella to terminate existing wiring at the
floor only
Rent Commencement Date: November 1, 2003
Annual Net Rent Rate: 11/1/03 - 10/31/04: $13.50
11/1/04 - 10/31/05: $13.75
Tenant Improvement
Allowance: $22.00 per rentable square foot ($249,832.00)
<PAGE>
Capella is compiling information for a request for proposal on a potential term
extension. To better understand the buildings position please describe the
incentives that would be made available to Capella (ie. immediate rent
reduction, free rent, expansion opportunities, tenant improvements, rental rate
structure, etc.).
We look forward to a positive response to our proposal. Please acknowledge your
acceptance by signing below. After the board meeting we will be able to move to
a lease amendment.
Non Binding: This letter is meant for discussion purposes only. No party shall
have any legal rights or obligations with respect to any other party because of
the existence of this letter. No party shall fail to take any action in
detrimental reliance on this letter. Only a fully executed lease between
Landlord and Tenant shall constitute a binding agreement.
Best regards,
/s/ P S Rickert
Paige S. Rickert
c: Carla Bustom/Capella Education Company
Capella Education Company
AGREED AND ACCEPTED:
By: /s/ Paul Schroeder
--------------------------------------
Its: SVP & CFO
Date: 8/29/02
ND Properties, Inc.
AGREED AND ACCEPTED:
By: _____________________________________
Its: _____________________________________
Date:_____________________________________
<PAGE>
AMENDMENT NO. 2 TO LEASE AGREEMENT
This Amendment No. 2 to Lease Agreement ("Amendment") is made
effective as of October 28, 2002, between ND PROPERTIES, INC., registered in
Minnesota as ND PROPERTIES OF DELAWARE, INC. ("Landlord") and CAPELLA EDUCATION
COMPANY ("Tenant").
A. Landlord's predecessor in interest and Tenant entered into a written
Office Lease dated June 28, 2000 ("Lease"), relating to the premises currently
consisting of approximately 80,124 rentable square feet ("Current Premises") and
comprised of the 11,356 rentable square feet on the 18th floor and the entire
rentable area of the 16th, 19th and 20th floors of the building located at 222
South Ninth Street, Minneapolis, Minnesota (the "Building").
B. The Initial Lease was previously amended by Amendment No. 1 to Lease
Agreement dated December 5, 2001 ("Amendment No. 1"), which, among other
matters, amended and expanded the Premises by adding approximately 11,356
rentable square feet on the 18th floor of the Building ("18th Floor Initial
Space").
C. Landlord and Tenant desire to further expand the Premises and to
otherwise amend the Lease as provided in this Amendment.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
expressly acknowledged, Landlord and Tenant agree as follows:
1. Effect. The Lease is hereby amended to the extent necessary to give
effect to this Amendment, and the terms of this Amendment shall supersede any
contrary terms in the Lease. All references in the Lease to "this Lease" shall
be deemed to refer to the Lease as amended by this Amendment. In all other
respects, the terms and conditions of the Lease shall remain unmodified and in
effect. Unless otherwise defined herein, capitalized terms shall have the same
meaning as provided in the Lease.
2. Expansion Option. This Amendment is made in fulfillment of the
Expansion Option under Section 4 of Amendment No. 1, and said Section 4 is
hereby entirely deleted from the Lease.
3. 18th Floor Remainder Space.
A. For purposes of this Amendment:
(1) "18th Floor Remainder Space" shall mean the space consisting of an
agreed 11,356 rentable square feet on the 18th floor of the Building as
shown on the attached Exhibit A.
(2) "18th Floor Remainder Space Delivery Date" shall mean the date
Landlord makes the 18th Floor Remainder Space available to Tenant for the
commencement of Tenant's performance of leasehold improvement work. The
18th Floor Remainder Space Delivery Date is estimated to occur on or about
October 1, 2002.
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(3) "18th Floor Remainder Space Commencement Date" shall mean the
earlier of:
(a) the later of (i) August 1, 2003, or (ii) the date which is sixty
(60) days after the 18th Floor Remainder Space Delivery Date; or
(b) Tenant's first business use of any material portion of the 18th
Floor Remainder Space.
(4) "Business use" shall mean the conduct of business operations in the
applicable space (other than construction, equipment installation, and the
moving and affixing of fixtures, furnishings and equipment).
B. Effective as of the 18th Floor Remainder Space Commencement Date,
(1) the 18th Floor Remainder Space shall be added to and constitute a part of
the Premises; (2) the term "Premises" shall be modified to mean and include the
entire rentable areas on the 16th, 18th, 19th and 20th floors of the Building;
(3) the rentable area of the Premises shall be 91,480 rentable square feet; and
(4) except as otherwise provided in this Amendment, the 18th Floor Remainder
Space shall be part of the Premises for the remaining Term of the Lease
(including any extension or renewal thereof) and shall be subject to all of the
terms and conditions of the Lease currently in effect.
C. In addition to Rent for the Current Premises as provided in the
Lease, Tenant shall pay Rent for the 18th Floor Remainder Space as follows:
(1) Commencing on the 18th Floor Remainder Space Commencement Date and
continuing through November 30, 2005, Tenant shall pay Base Rent for the
18th Floor Remainder Space determined at an annual rate per rentable
square foot and payable in advance in monthly installments as follows:
Annual Monthly Base Rent
Period Base Rent Base Rent Per Square Foot
------ ----------- ---------- ---------------
18th Floor Remainder Space
Commencement Date
through 10/31/03 $150,467.00 $12,538.92 $13.25
11/1/03-10/31/04 $153,306.00 $12,775.50 $13.50
11/1/04-11/30/05 $156,145.00 $13,012.08 $13.75
(2) Commencing on the 18th Floor Remainder Space Commencement Date and
continuing through the remaining Term: (a) the rentable square footage of
the Premises for purposes of calculation of Tenant's Prorata Share shall
be increased by 11,356 rentable square feet; and (b) Tenant shall pay
Tenant's Prorata Share of Taxes and Operating Expenses for the 18th Floor
Remainder Space at the same rate as then payable for the Premises and
subject to the same adjustments as provided in the Lease.
Rent for the 18th Floor Remainder Space shall be paid at the same time and in
the same manner as provided in the Lease for payment of Rent for the Current
Premises. If the 18th Floor Remainder Space Commencement Date is not the first
day of a calendar month, the Base Rent and Tenant's Prorata Share of Taxes and
Operating Expenses for the 18th Floor Remainder
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Space for such partial month shall be prorated daily and paid in advance. If the
Extension Option is exercised as provided in Article 36 of the Lease, the Rent
and other economic terms for the 18th Floor Remainder Space shall be determined
as provided in said Article for any Extension Period.
D. Landlord will deliver possession of the 18th Floor Remainder Space
to Tenant on the 18th Floor Remainder Space Delivery Date for the purpose of
allowing Tenant or its contractor(s) to undertake demolition, construction and
improvement work in such space. If the 18th Floor Remainder Space Delivery Date
is delayed despite Landlord's commercially reasonable efforts to deliver the
18th Floor Remainder Space, Landlord shall not be liable for any such delay, the
Lease shall not be impaired, and the Term of the Lease shall not be affected or
extended thereby.
At all times subsequent to the delivery of possession of the 18th Floor
Remainder Space, Tenant's use and occupancy of, and duties and obligations with
respect to, the 18th Floor Remainder Space shall be in accordance with all of
the terms and conditions of the Lease; provided, however, that Tenant shall not
be required to pay any Base Rent, Taxes or Operating Expenses with respect to
the 18th Floor Remainder Space before the 18th Floor Remainder Space
Commencement Date. Except as provided in the following Section 3E, the 18th
Floor Remainder Space will be delivered to Tenant in an "as is" condition, and
Landlord will have no obligation to make any repair, alteration or improvement
thereto or to provide any allowances or inducements.
E. So long as Tenant is not then in default under this Amendment or the
Lease (beyond any applicable cure period), Landlord will provide a one-time
allowance (the "Improvement Allowance") in the amount of $132,486.67 (based on
$25.00 per rentable square feet in the 18th Floor Remainder Space multiplied by
a fraction, the numerator of which is 28 and the denominator of which is 60) for
the cost of tenant improvements installed in such space. The Improvement
Allowance will be used for paying the costs of demolition of existing
improvements and constructing new tenant improvements within the 18th Floor
Remainder Space as well as for any modifications required to existing
improvements above and below the ceiling; architectural, mechanical and
engineering work drawings; consulting and project management fees in relation to
the work; Tenant's costs of moving into the space; and telecommunications
cabling relating to the space. The Improvement Allowance will be disbursed, and
Tenant will perform Tenant's Work in the 18th Floor Remainder Space, in
accordance with all of the terms and conditions of Exhibit B to the Lease, which
Exhibit B is hereby incorporated herein by reference subject to the following
modifications: (1) all references in such Exhibit B to the "Premises" shall be
deemed to refer to the 18th Floor Remainder Space; (2) all references in such
Exhibit B to the "Improvement Allowance" shall be deemed to refer to the
Improvement Allowance as provided in this Section 3E; and (3) the date for
Tenant submitting a Space Plan for the Tenant's Work under Section 3A of such
Exhibit B shall be January 1, 2003. The work in the 18th Floor Remainder Space
shall be coordinated with the work being performed in the 18th Floor Initial
Space, and the Improvement Allowance under this Amendment or under Amendment No.
1 may be applied toward the cost of work in connection with either the 18th
Floor Initial Space or the 18th Floor Remainder Space. To the extent that Tenant
does not fully expend the entire Improvement Allowance, the excess (up to a
maximum of $2.00 per rentable square feet in the 18th Floor Remainder Space)
shall be applied
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to the payments of Rent next coming due after the 18th Floor Remainder Space
Commencement Date.
F. Within twenty (20) days after written request by Landlord, Landlord
and Tenant shall execute and deliver an instrument in form reasonably
satisfactory to Landlord confirming the 18th Floor Remainder Space Commencement
Date and such other matters relating to this Amendment as reasonably requested
by Landlord from time to time.
4. Tenant's Representations. Tenant hereby represents to Landlord that
there has been no assignment of the Lease and no sublease of all or any portion
of the Premises, there are no existing defenses, claims or offsets which Tenant
has against Landlord or against enforcement of the Lease, and Landlord and
Tenant are not in default under the Lease.
5. Brokers. Landlord and Tenant each represents that it has not engaged
or dealt with any real estate broker, agent or finder with respect to this
Amendment, except for Kennedy-Wilson Minnesota Management, Inc., representing
Landlord, and CB Richard Ellis, Inc., representing Tenant. If this transaction
is consummated, Landlord shall be responsible to pay a commission to both such
brokers pursuant to a separate written agreement. Landlord and Tenant shall
indemnify and hold each other harmless from all claims, liability or expense
(including reasonable attorneys fees) in connection with any claim for broker's,
finder's or other fees or commissions as a result of such party's actions or
alleged actions.
6. Entire Agreement. The Lease, including, without limitation, this
Amendment and all exhibits which are attached hereto and hereby incorporated by
reference, constitutes the entire agreement between Landlord and Tenant with
respect to the subject matter hereof. Tenant acknowledges that it has not been
induced to enter into this Amendment by any agreements or representations which
are not set forth in this Amendment. This Amendment shall not be effective until
execution and delivery by both Landlord and Tenant.
By signing this Amendment, the parties agree to the above terms.
LANDLORD: TENANT:
ND PROPERTIES, INC., registered in CAPELLA EDUCATION COMPANY
Minnesota as ND PROPERTIES OF
DELAWARE, INC.
By /s/ James P. Garafalo By /s/ Paul A. Schroeder
----------------------------------------- ---------------------------
Name: James P. Garafalo Name: Paul A. Schroeder
Title: Assistant Secretary Title: SVP & CFO
Date Signed:__________________________, 2002 Date Signed: 10/28, 2002
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