EXHIBIT 10.1
LEASE AGREEMENT
THIS IS A LEASE AGREEMENT made and entered into on April 19, 1990 by and
between ATS II Associates Limited Partnership, a Minnesota Limited Partnership,
having its principal offices in One Appletree Square, Bloomington, Minnesota,
hereinafter referred to as the "Landlord," and Capital Dimensions, Inc. whose
current principal offices are maintained at Two Appletree Square, Suite 244,
Bloomington, Minnesota 55425.
W I T N E S S E T H:
1. LEASED PREMISES. In consideration of the mutual covenants and
agreements set forth herein, Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord, for the rental and on the terms and conditions hereinafter
set forth, those certain premises outlined on the floor plan attached hereto as
"Exhibit A" and made a part hereof (the "Premises") and containing 2,116 square
feet of Rentable Area, as defined in paragraph 7, on the third floor in the
building known as Two Appletree Square (the "Building") located on land in
Bloomington, Minnesota, and legally described as Lots 4 and 6, Block 1,
Appletree Square Second Addition, according to the plat thereof on file and of
record in Hennepin County Recorder's Office and in the office of the Registrar
of Titles (the "Land").
2. TERM. Subject to and upon the terms and conditions set forth herein,
this Lease shall be in force for a Term of 60 months, beginning the 1st day of
July, 1990 ("Commencement Date") and expiring on the 30th day of June, 1995. In
the event that the Premises should not be ready for occupancy by the
Commencement Date for any reason, Landlord shall not be liable or responsible
for any claims, damages, or liabilities in connection therewith.
3. BASE RENTAL. Subject to the provisions for adjustment hereinafter set
forth, Tenant hereby agrees to pay, without deduction or offset, a base annual
rental ("Base Rental") in the amount of Thirty-Four Thousand Nine Hundred Twenty
and 00/100 Dollars ($34,920.00). Such base rental shall be due and payable in
twelve (12) equal monthly installments of Two Thousand Nine Hundred Ten and
00/100 ($2,910.00*)* each, in advance on the first day of each calendar month
during each year of the Term hereof. All payments of Rent shall be paid to the
Landlord in lawful money of the United States of America at the address of
Landlord shown herein, or to such other party or at such other place as Landlord
may designate from time to time in a written notice to Tenant. If the Lease
Term commences or terminates on any day other than the first or last day of a
calendar month, the Base Rental and any other sums due hereunder shall be
prorated for such fractional calendar month. All past due installments of Base
Rental and Additional Rental shall
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*except that no Annual Base Rent is due or payable for the first seven (7)
months of this Lease (July 1, 1990 through January 31, 1991).
bear interest at the rate of interest equal to the lesser of: (i) three (3)
percentage points in excess of the prime rate of interest as established and
publicly announced by First National Bank of Saint Paul as such rate may change
from time to time, or (ii) the highest legal rate permitted by law, and shall
constitute Additional Rent hereunder due and payable with the next monthly
installment of Base Rent.
4. ADDITIONAL RENTAL. The Base Rental payable by Tenant during each
lease year shall be adjusted in accordance with this paragraph.
A. DEFINITIONS
1. The term "Taxes" shall mean all taxes, impositions, assessments, and
all other governmental charges, if any, which are levied, assessed, or imposed
upon or become due and payable in connection with, or a lien upon, the Land, the
Building, parking facility, or other facilities used in connection therewith, or
the operation thereof (excepting federal and state taxes on income), including
taxes levied by present or future taxing authorities and all taxes of whatsoever
nature in this definition of Taxes. For the purpose herein, the term "Base
Taxes" shall be deemed to be $3.10 per square foot of the total Rentable Area of
the Building.
2. The term "Operating Cost" shall mean all operating expenses of the
Land and Building which shall be computed on the cash basis and which shall
include all expenses, costs and disbursements of every kind and nature which
Landlord shall pay or become obligated to pay because of or in connection with
the ownership, operation or use of the Land and Building (which for purposes of
this Lease shall include by definition any costs incurred by the Landlord for
the use of additional parking facilities as required by the City of
Bloomington), including, but not limited to, the following:
a) Wages and salaries of all employees engaged in the operation and
maintenance of the Land and Building, including taxes, insurance, and
benefits relating thereto;
b) All supplies and materials used in the operation and maintenance
of the Building;
c) Cost of water, sewage, power, heating, lighting, air
conditioning, ventilating, and other utilities furnished in connection with
the operation of the Building (excluding any such cost billed to specific
tenants);
d) Costs of all maintenance and service agreements on equipment,
including, but not limited to, security services, alarm services, window
cleaning, janitorial service, and elevator and maintenance;
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e) Costs of casualty, rentals and liability insurance applicable to
the Building and Landlord's personal property used in connection therewith;
f) Costs of repair and general maintenance of the interior, parking
areas, and landscaping of the Land and Building, excluding repairs and
general maintenance paid by proceeds of insurance or by any tenant or other
third parties, and alterations attributable solely to tenants of the
Building other than Tenant;
g) Management fees; and,
h) A reasonable amortization charge on account of any capital
expenditures incurred to effect a reduction in operating expenses of the
Building.
Expressly excluded from the definition of the term Operating
Costs are:
i) Replacement of capital investment items;
ii) Leasing commissions and leasing advertising costs;
iii) Specific costs billed to and paid by specific tenants;
iv) Depreciation; and
v) Principal, interest, and other costs directly related to
financing.
For the purpose herein, the term "Base Operating Cost" shall be deemed
to be $3.54 per square foot of total Rentable Area of the Building.
3. The term "Tenant's Share" shall mean the increased cost per square
foot of Base Taxes and Base Operating Costs, multiplied by the number of square
feet of Rentable Area occupied by Tenant.
4. The term "Operating Year" shall mean any calendar year ending December
31st after the commencement of the Lease Term including the calendar year in
which the term of this Lease commences.
5. The term "Land" shall mean the real property where the Building, and
parking facilities, and any other improvements are constructed by the Landlord
in conjunction with the foregoing.
B. Within 120 days from the end of each Operating Year, Landlord
shall deliver to Tenant a statement setting forth Taxes and Operating Cost
for such year and comparing such cost with the Base Taxes and Base
Operating Cost defined herein. In the event Taxes and Operating Cost for
any Operating Year as reflected on the statement exceed the Base Taxes and
Base Operating Cost, Tenant shall pay to Landlord as Additional Rental
("Additional Rental") over and above the Base Rental, Tenant's share of
excess; payable as follows:
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1) Upon receipt of the statement, Tenant shall pay Landlord a
lump sum rent adjustment for the preceding Operating Year
equal to one-twelfth (1/12) of such Additional Rental for
each month that this Lease was in effect during said
preceding Operating Year, less any amount pais as Additional
Rent during such year under subparagraph (2) hereof; and
2) Tenant shall also pay Landlord, beginning on the first day
of January of the then current Operating Year, and on the
first day of each month thereafter during the Term,
one-twelfth (1/12) of such Additional Rental due for the
preceding Operating Year; and
3) Tenant shall pay to Landlord the Additional Rental due, as
disclosed by the statement furnished after the expiration or
earlier termination of this Lease, within 30 days of
Tenant's's receipt of such operating statement.
C. Anything herein to the contrary notwithstanding, in no event
shall Base Rental provided herein ever be reduced.
6. Except as hereinafter provided, Landlord shall deliver possession of
the Premises in the condition required by this Lease on or before the
Commencement Date, but delivery of possession prior to such Commencement Date
shall not affect the expiration date of this Lease. Failure of Landlord, due to
a holding over by a prior tenant or time required for construction delays due to
strikes, Acts of God, or any other causes beyond Landlord's control, to deliver
possession of the Premises by the date hereinabove provided, shall automatically
postpone the Commencement Date of the Term of this Lease and shall extend the
Termination Date hereinabove specified for commencement of the Term hereof and
the date on which possession of the Premises is delivered to the Tenant. The
Rent herein reserved shall commence on the first day of the Term, provided,
however, in the event of any occupancy by Tenant prior to the beginning of the
Term, such occupancy shall in all respects be the same as that of a Tenant under
this Lease Agreement, and the rent shall commence as of the date that Tenant
enters into such occupancy of the Premises. Neither Landlord nor any agent or
employee of Landlord has made any representations or promises with respect to
the Premises or the Building except as herein expressly set forth, and no
rights, privileges, easements or licenses are acquired by Tenant except as
herein expressly set forth. The Tenant, by taking possession of the Premises,
shall accept the same "as is", and such taking of possession shall be conclusive
evidence that the Premises and the Building are in good and satisfactory
condition at the time of the taking of possession.
7. METHOD OF MEASUREMENT. the term "Rentable Area," as used herein,
shall refer to the area or areas of space within the Building determined as
follows:
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A Rental Area on a single-tenancy floor is determined by measuring
from the extended plane of the inside surface of the outer glass to the
extended plane of the inside surface of the opposite outer glass bounded by
the intersections of such planes, and shall include all areas within such
planes excluding vertical penetrations such as building stairs, fire
towers, elevator shafts, flues, vents, stacks, pipe shafts, and vertical
ducts. Vertical penetrations which are for the specific use of Tenant,
such a special stairs or elevators, shall be included as Rentable Area; and
B. Rental Area for a partial floor shall include all space within
the demising walls (measured from the mid-point of demising walls, and, in
the case of exterior walls, measured as defined in 7.A above), plus 13.31%,
which is Tenant's proportionate share of the Common Areas, such as elevator
lobbies, corridors, toilet and mechanical rooms, telephone and electrical
closets and service areas within the Building.
No deductions from Rentable Area shall be made for columns or projections
necessary to the Building. The Rentable Area in the Premises has been
calculated on the basis of the foregoing definition and is hereby stipulated for
all purposes hereof to be 2,116 square feet, whether the same should be more or
less as a result of minor variations resulting from actual construction and
completion of the Premises for occupancy, so long as such work is done in
accordance with the terms and provisions hereof.
8. Tenant shall use the Premises for the purpose of General Offices and
for no other purpose whatsoever. Tenant shall not overload, damage, or deface
the Premises or do any act which may make void or voidable any insurance on the
Premises or the Building or which may render an increased or extra premium
payable for insurance.
9. IMPROVEMENTS.
A. Landlord and Tenant have both reviewed and approved the attached
plan layout ("Exhibit A-1"), together with the attached schedule of
Building Standards ("Exhibit B").
B. All work involved in completing the Premises in accordance with
Tenant's Plans (including the purchase of the required materials and
equipment) shall be carried out by Landlord's contractor under the sole
direction of Landlord. Tenant shall cooperate with Landlord and its
contractor upon request to promote the efficient and expeditious completion
of such work. Tenant shall be responsible and pay for any work in the
Premises which is in excess of the limits as outlined in Exhibit B.
C. In the event the Premises are not ready for occupancy within five
(5) days after the Commencement Date of this Lease due to (i) a delay
caused by Tenant's failure to timely deliver Tenant's Plans, (ii) Tenant's
request for work in excess of Building Standards, or (iii) any changes in
Tenant's Plans requested by Tenant; then the term of this
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Lease shall be deemed to have commenced from the Commencement Date
stipulated herein.
10. ALTERATIONS. No alterations, additions, or improvements to the
Premises shall be made without first having the consent in writing of the
Landlord; nor shall such alterations, additions, or improvements interfere with
or damage the mechanical or electrical systems or the structure of the Building.
Any improvements, additions, or alterations made by Tenant after such consent
shall have been given, including any and all fixtures installed, excepting trade
fixtures, shall at the Landlord's option, unless otherwise agreed in writing,
remain on the Premises as the property of the Landlord, without compensation to
the Tenant, or shall be removed therefrom and the Premises restored to their
original condition at the sole expense of the Tenant at the expiration or sooner
termination of the Lease. Tenant agrees to save harmless Landlord on account of
claim for mechanic's, materialmen's or other liens in connection with any
alterations, additions, or improvements to which Landlord may give its consent.
11. MAINTENANCE AND REPAIRS.
A. Landlord shall provide for the cleaning and maintenance of the
Building, including painting and landscaping surrounding the Building, in
keeping with the usual standard for first class office buildings. Landlord
shall not be required to maintain or repair any non-building standard or
special tenant improvements in or about the Premises; and there will be an
additional charge to Tenant for the cleaning of such items as carpet,
blinds, drapes, wall coverings, etc. by Landlord.
B. The first installation of building standard electric light lamps
will be made by the Landlord. Thereafter, the Tenant shall pay promptly to
Landlord the installed cost of all electric lamps, starters, and ballasts
used on the Premises.
C. Tenant shall keep and maintain the Premises in good repair and
condition, reasonable wear and tear excepted. Tenant shall not commit or
allow any waste or damage to be committed on any portion of the Premises or
the Building. Tenant shall pay to landlord the full cost to repair or
replace any damage or injury done to the Building or any part thereof
caused by Tenant, its agent, employees, invitees, or visitors.
12. SERVICES TO BE PROVIDED BY LANDLORD. Landlord agrees to furnish
Tenant with electricity for general office uses only (not to include duplicating
and data processing machines, and air conditioning costs therefore, large
business machines, special lighting in excess of Building Standard, and any
other equipment requiring high electrical consumption), elevator service,
security service, and janitorial service on a five day week basis. An
additional charge for cleaning special tenant improvements will be billed
separately to Tenant as Additional Rent. During normal business hours (8:00
a.m. to 6:00 p.m. Monday through Friday; Saturdays, Sundays, and holidays not
included), Landlord agrees to furnish Tenant with hot, cold, and refrigerated
water at those points of supply provided for general use of other tenants in the
Building; heated and
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refrigerated air conditioning in season, at temperatures considered standard for
first class office buildings or as determined by governmental edict. Such
services beyond the normal periods and hours will be provided upon written
request from Tenant at an hourly rate to be billed to Tenant. Landlord shall
not be liable in damages or otherwise for failure, stoppage, or interruption of
any such service, nor shall the same be construed as an eviction of Tenant, work
an abatement of rent, or relieve Tenant from any covenant herein. In the event
of any failure, stoppage, or interruption thereof, Landlord shall use reasonable
diligence to resume services promptly.
B. Design capabilities of the heating, cooling and electrical
systems are based upon and limited to the following:
1. The Tenant's occupancy does not exceed one (1) person for
each 150 square feet of Rentable Area.
2. The total connected electrical load does not exceed four (4)
watts per square foot of area within the Premises for all purposes
including lighting and power.
3. The proper use of blinds to control sunload.
C. Landlord shall have sole control over the parking of automobiles
and other vehicles and shall designate parking areas and building
service areas.
13. RULES AND REGULATIONS OF BUILDING. Tenant shall comply with the Rules
and Regulations of the Building with respect to safety, care, cleanliness,
parking, and preservation of good order in the Building that Landlord may
establish from time to time for tenants of the Building. Landlord shall not be
liable to Tenant for any failure of any other tenants of the Building to comply
with such Rules and Regulations, attached hereto as "Exhibit C".
14. LAWFUL USE. Tenant shall comply with all federal, state and municipal
laws and ordinances relating to the use, condition, or occupancy of the
Premises. Tenant shall not occupy or use the Premises for any business or
purpose which is unlawful, disreputable, or deemed to be hazardous on account of
fire, or permit anything to be done which will in any way increase the rate of
fire insurance coverage on the Building and/or its contents.
15. EXTRAORDINARY EQUIPMENT. Without the prior written consent of
Landlord and Tenant's written agreement to pay additional costs, Tenant shall
not install or maintain any apparatus or devices which will increase the usage
of electrical power, water, or gas for the Premises to an amount grater than
would be required for normal general office use for space of comparable size.
16. LANDLORD'S ACCESS. Landlord and Landlord's mortgages(s) shall have
the right at all reasonable times during the Term to enter the Premises to
inspect the condition thereof, to
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show the Premises to prospective new tenants, to determine if Tenant is
performing its obligations under this Lease, and to perform the services or to
make the repairs and restoration that Landlord is obligated or elects to perform
or furnish under this Lease, to make repairs to adjoining space, to cure any
defaults of Tenant hereunder that Landlord elects to cure, and to remove from
the Premises any improvements thereto or property placed therein in violation of
this Lease.
17. INSURANCE. Landlord shall maintain during the Term of this Lease fire
and extended coverage insurance insuring the Building and Premises against
damage or loss from fire or other casualty normally insured against under the
terms of standard policies of fire and extended coverage insurance. Landlord
may, at its option, preserve and maintain such other insurance coverages as it
may require in its discretion.
Tenant shall be responsible for providing, at Tenant's own expense:
A. Liability insurance with companies and in form satisfactory to
Landlord naming Landlord and Landlord's mortgagee(s) as additional insured
thereunder as their interest may appear and providing coverage of at least
$1,000,000.00 single limit coverage and $1,000,000.00 aggregate coverage
for any single incident; and
B. Contents insurance for fire, water damage, or other casualty and
theft covering all of the Tenant's stock in trade, fixtures, furnishings,
floor coverings, or any improvements in excess of the limits as outlined in
Exhibit B, equipment and the like in an amount equal to replacement value.
Tenant will furnish Landlord evidence of coverage and payment of premium at
all times.
18. FIRE OR OTHER CASUALTY. If the Building is damaged or destroyed by
fire or other casualty, the Landlord shall have the right to terminate this
Lease, provided it gives written notice thereof to the Tenant within ninety (90)
days after such damage or destruction. If a portion of the Premises is damaged
by fire or other casualty, and this Lease is not thereby terminated, the
Landlord shall, at its expense, restore the Premises, exclusive of any
improvements or other changes made to the Premises by the Tenant, to as near the
condition which existed immediately prior to such damage or destruction, as
reasonably possible, and rent shall abate during such period of time as the
Premises are untenantable, in the proportion that the untenantable portion of
the Premises bears to the entire Premises. The Landlord shall not be
responsible to the Tenant for damage to, or destruction of, any furniture,
equipment, improvements, or other changes made by the Tenant in, on, or about
the Premises regardless of the cause of the damage or destruction.
19. WAIVER OF SUBROGATION. Notwithstanding any other provision in this
Lease to the contrary, each of Landlord and Tenant hereby releases the other
from any and all liability or responsibility (to the other or anyone claiming
through or under them by way of subrogation or otherwise) for any loss or damage
to property caused by fire or any of the extended coverage casualties, to the
extent of insurance proceeds realized by the Landlord as a result of such loss
or damage, even if such fire or other casualty shall have been caused by the
fault or negligence of the
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other party, or anyone for whom such party may be responsible. Each of Landlord
and Tenant agrees that its policies will include such a clause or endorsement.
In no event shall any such release be applicable if doing so would work in
contravention of any requirement in an applicable policy of insurance to the
effect that if the insured waives subrogation, coverage is or may be void.
20. EMINENT DOMAIN. If the entire Building is taken by eminent domain,
this Lease shall automatically terminate as of the date of taking. If a portion
of the Building is taken by eminent domain, Landlord shall have the right to
terminate this Lease by giving written notice thereof to Tenant within ninety
(90) days after the date of taking. If a portion of the Premises is taken by
eminent domain, and the Landlord does not terminate this Lease, the Landlord
shall restore Premises, exclusive of any improvements or other changes to the
Premises by Tenant, to as near the condition which existed immediately prior to
the date of taking as reasonably possible, and rent shall abate during such
period of time as the Premises are untenantable, in the proportion that the
untenantable portion of the Premises bears to the entire Premises. Landlord
shall, in any event, be entitled to receive and to retain as its own, any award
resulting from such taking of all or any part of the Land, Building, Parking
Facility, or appurtenant areas. Tenant disclaims any right to participate in
such award or to make a claim against the condemning authority for loss of its
trade fixtures and moving expenses if such claim will reduce the award payable
to the Landlord.
21. LIGHT AND AIR. Tenant has no right to light or air over any premises
adjoining the Building.
22. LIENS. Tenant shall not permit any mechanic's, materialmen's, or
other liens fixed against the Premises, the Building, or the Land and agrees
immediately to discharge (either by payment or by filing of the necessary bond,
or otherwise) any mechanic's, materialmen's, or other lien which is allegedly
fixed or placed against any of the foregoing.
23. INDEMNITY. Tenant shall indemnify and hold harmless Landlord and
Landlord's agents, directors, officers, employees, invitees, and contractors,
from all claims, losses, costs, damages, or expenses (including, but not limited
to, attorney's fees) resulting from or arising from any and all injuries or
death of any person or damage to any property caused by any act, omission, or
neglect of Tenant or Tenant's directors, officers, employees, agents, invitees,
or guests, or any parties contracting with Tenant relating to the Premises.
Landlord shall not be liable for any damage of any kind or for any damage to
property, death, or injury to persons from any cause whatsoever by reason of the
use and occupancy of the Premises by Tenant.
24. WAIVER OF COVENANTS. Failure of Landlord to insist, in any one or
more instances, upon strict performance of any term, covenant, or condition of
the Lease, or to exercise any option herein obtained, shall not be construed as
a waiver, or a relinquishment for the future, or such term, covenant, condition,
or option, but the same shall continue and remain in full force and effect. The
receipt by Landlord of rents with knowledge of a breach in any of the terms,
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covenants, or conditions of this Lease to be kept or performed by Tenant shall
not be deemed a waiver of such breach, and Landlord shall not be deemed to have
waived any provision of this Lease unless expressed in writing and signed by
Landlord.
25. RELOCATION. Landlord shall have the right to relocate Tenant to
comparable quarters within the Building with at least thirty (30) days prior
written notice to Tenant. Any reasonable costs incurred by Tenant in the event
of such relocation, and which have been agreed to in writing prior to the move,
shall be paid by the Landlord.
26. LEASE TO SUBORDINATE. Landlord may cause this Lease to be made
subject and subordinate to all ground or underlying leases, mortgages, deeds of
trust, and restrictions which may now or hereafter affect the Building, and to
all renewals, modifications, consolidations and extensions thereof. For
confirmation of such subordination, Tenant shall execute promptly any
subordination agreement requested by Landlord. Tenant hereby irrevocably
constitutes and appoints Landlord as Tenant's agent to execute any such
subordination agreement or agreements for and on behalf of Tenant. This
authority is hereby declared to be coupled with an interest and irrevocable. So
long as Tenant shall faithfully discharge the obligations on its part to be
kept, this Lease shall not be affected by any default under such mortgage, deed
of trust, or underlying lease, and in the event of foreclosure or enforcement
thereof, the rights of Tenant hereunder shall survive, and if requested to do so
by such mortgagee, ground lessor, or trustor, Tenant shall attorn to such prior
holder, its successors and assigns, and this Lease shall in all respects
continue in full force and effect; provided, however, that Tenant fully performs
all of its obligations hereunder, and provided further that Tenant shall not
have prepaid any rent, except as the same becomes due under the terms of this
Lease.
27. TENANT TO SURRENDER PREMISES IN GOOD CONDITION. Upon the expiration
or termination of the Lease Term, Tenant shall, at its expense:
A. Remove Tenant's goods and effects and those of all persons
claiming under Tenant;
B. Quit and deliver the Premises to Landlord, peaceably and quietly,
in as good order and condition as the same were in on the date the Lease
Term commenced or were thereafter placed in by Landlord, reasonable wear
and tear excepted; and
C. At Landlord's request, restore the Premises to general building
standards adopted by Landlord for general application throughout the
Building.
Any property left in the Premises after the expiration or
termination of the Lease Term shall be deemed to have been abandoned
and the property of Landlord to dispose of as Landlord deems
expedient. Tenant shall pay to Landlord on demand all costs incurred
in disposing of Tenant's abandoned property.
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28. HOLDING OVER. If with Landlord's written consent Tenant remains in
possession of the Premises after the expiration or other termination of the
Term, Tenant shall be deemed to be occupying the Premises on a month-to-month
tenancy at a rental rate as stated in the written consent. Such month-to-month
tenancy may be terminated by Landlord or Tenant on the last day of any calendar
month by delivery of at least thirty (30) days advance notice of termination to
the other. If without Landlord's written consent Tenant remains in possession
of the Premises after the expiration or other termination of the Term, Tenant
shall be deemed to be occupying the Premises upon a tenancy at sufferance at
monthly rental equal to three (3) times the Rent determined in accordance with
Paragraphs 3, 4, and 5.
29. DEFAULT. If Tenant shall default in the payment of any installment of
Base Rental or Additional Rental, or in the observance or performance of any of
Tenant's other covenants, agreements, or obligations hereunder, or if any
proceeding is commenced by or against Tenant for the purpose of subjecting the
assets of Tenant to any law relating to bankruptcy or insolvency or for any
appointment of a receiver of Tenant or of any of Tenant's assets, or if Tenant
makes a general assignment of Tenant's assets for the benefit of creditors,
then, in any such event, Landlord may, without process, re-enter immediately
into Premises and remove all persons and property therefrom, and at its option,
annul and cancel this Lease as to all future rights of Tenant and have, regain,
repossess, and enjoy the Premises after re-entry or after judgment for
possession thereof. If Landlord elects to terminate this Lease, all obligations
herein contained on the part of Landlord to be done and performed shall cease,
but without prejudice to the right of Landlord to recover from Tenant all past
or future rentals and damages. Should this Lease be terminated before the
expiration of the term of this Lease by reason of Tenant's default as
hereinabove provided, or if Tenant shall abandon or vacate the Premises before
the expiration or termination of the term of this Lease, Landlord may accelerate
Tenant's entire rental obligation hereunder, including Base Rent and Additional
Rent, and upon notice thereof the entire rent due for the balance of the term
hereof shall immediately become due and payable. The Premises may be relet by
Landlord for such rent and upon such terms as Landlord in its sole discretion
may determine and Tenant shall be liable for all damages sustained by Landlord,
including, without limitation, deficiency in rent, reasonable attorney's fees,
and expenses of placing the Premises in first class rentable condition and
expenses of renting same including, but not limited to, the payment of brokerage
fees, tenant allowances or by any other tenant inducement. The provisions
contained in this Paragraph shall be in addition to and shall not prevent the
enforcement of any claim Landlord may have against Tenant for anticipatory
breach of the unexpired term of this Lease. Any and all attorneys' fees and
costs of collection incurred by Landlord in the enforcement of the terms or
provisions of this Lease shall be payable by Tenant in the event of any default,
and the amount of such costs shall be deemed Additional Rental and shall, upon
notice by Landlord given at any time prior to and including the service of
notice of any legal action, be immediately due hereunder. In the event Landlord
shall commence legal action, or any unlawful detainer proceeding or other
summary proceeding for collection of rent due hereunder, said Additional Rent
shall be deemed a past due obligation to pay rent in connection with said
proceeding. Tenant hereby waives any right of offset, counter-claim or any
other claim in any such proceeding. Landlord shall have a right to commence one
or more actions to enforce the terms of this Paragraph and the
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commencement and prosecution of one action shall not be deemed a waiver of an
estoppel from commencing one or more actions from time to time in the future.
All rights and remedies of Landlord under this Lease shall be cumulative and
shall not be exclusive of any other rights and remedies provided to Landlord
under applicable law.
30. LANDLORD'S RIGHT TO CURE DEFAULTS. If Tenant default in the
observance or performance of any of Tenant's covenants, agreements, or
obligations hereunder wherein the default can be cured by the expenditure of
money, Landlord may, but without obligation, and without limiting any other
remedies which it may have by reason of such default, cure the default, charge
the cost thereof to Tenant, and Tenant shall pay the same forthwith upon demand,
as Additional Rent, together with interest thereon at the rate set forth in the
last sentence of Paragraph 3 of this Lease.
In case the Landlord or Tenant prevails in any suit or defend or prosecute
under the terms of this Lease, there shall be allowed by the prevailing party,
to be included in any judgment recovered, reasonable attorney's fees and other
costs to be fixed by the court.
31. NOTICES. Each notice required or permitted to be given hereunder by
one party to the other shall be in writing with a statement therein to the
effect that notice is given pursuant to this Lease and the same shall be given
and shall be deemed to have been delivered, served, and given if delivered in
person or placed in the United States Mail, postage prepaid, by United States
registered or certified mail, addressed to such party at the address provided
for such party herein. Any notices to Landlord shall be addressed and given to
Landlord as follows:
APPLETREE PROPERTIES, INC.
One Appletree Square
Bloomington, MN 55425
Prior to the Commencement Date, the address for notices to Tenant shall be
the address set forth for Tenant on the signature page of this Lease; after the
Commencement Date, the address for Tenant shall be the Premises. The addresses
stated above shall be effective for all notices to the respective parties until
written notice of a change in address is given.
32. NOTICE TO MORTGAGEE. Tenant agrees to give any Mortgagee and/or Trust
Deed Holders by registered mail, a copy of any Notice to Default served upon the
Landlord, provided that prior to such notice, Tenant has been notified, in
writing (by way of Notice of Assignment of Rents and Leases, or otherwise), of
the address of such Mortgagees and/or Trust Deed Holders. Tenant further agrees
that if Landlord shall have failed to cure such default within the time provided
for in this Lease, then the Mortgagees and/or Trust Deed Holders shall have an
additional thirty (30) days within which to cure such default; or if such
default cannot be cured within that time, then such additional time as may be
necessary to cure such default shall be granted if within such thirty (30) days,
any Mortgagee and/or Trust Deed Holder has commenced and is diligently pursuing
the remedies necessary to cure such default (including, but not limited
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to, commencement of foreclosure proceedings, if necessary to effect such cure),
in which event this Lease shall not be terminated while such remedies are being
so diligently pursued.
33. MISCELLANEOUS. There are no understandings or agreements not
incorporated in this Lease. This is a Minnesota contact and shall be construed
according to the laws of Minnesota. The captions in the Lease are for
convenience only and are not a part of this Lease. The covenants and agreements
hereof shall as fully and completely bind the heirs, executors, administrators,
legal representatives, successors, and assigns of the parties hereof as if they
had been specifically mentioned in each of said covenants and agreements. Any
rider or exhibit attached to this Lease shall become a part of this Lease with
the same force and effect and in the same manner as if all the provisions
therein mentioned were actually included herein.
34. ASSIGNMENT AND SUBLETTING. Tenant shall not have the right to assign
this Lease or sublet all or any part of the Premises without the express written
consent of the Landlord.* No assignment or subletting permitted by the
Landlord shall relieve the Tenant of liability hereunder.
35. COMMISSIONS. Tenant represents and warrants that there are no claims
for brokerage commission or finder's fees in connection with the execution of
this Lease, and Tenant agrees to indemnify the Landlord against and hold it
harmless from all liabilities.
36. QUIET POSSESSION. Landlord agrees that the Tenant, upon payment of
the Base Rental and Additional Rental and observing and keeping the covenants of
this Lease on its part to be kept, shall lawfully, peaceably, and quietly hold,
convey and enjoy said Premises, during said Term, without hindrance or
molestation by said Landlord or any person or persons lawfully claiming under
said Landlord.
37. ESTOPPEL CERTIFICATES. Tenant agrees, at anytime and from time to
time, upon not less than five days prior written notice by Landlord, to execute,
acknowledge and deliver to Landlord or a party designated by Landlord a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect or if there have been modifications, that the Lease is in full
force and effect as modified and stating modifications, (ii) stating the dates
to which the rent and other charges hereunder have been paid by Tenant, (iii)
stating whether or not Landlord is in default in the performance of any
covenant, agreement or condition contained in this Lease, and if so, specifying
each such default of which Tenant may have knowledge, and (iv) stating the
address to which notices to Tenant should be sent, (v) agreeing that Tenant
shall not encumber or assign or sublease any portion of the Premises without the
written consent of any mortgagee, and (vi) agreeing that Tenant and Landlord
will not thereafter modify the Lease without the approval of any mortgagee, and
(vii) agreeing that Tenant shall not prepay any rent more than thirty (30) days
in advance. Any such statement delivered pursuant hereto may be relied upon by
any owner
- ---------------------
*Which consent shall not be unreasonably witheld or delayed, but shall be
subject to Landlord's normal leasing criteria.
-13-
of the Building, any prospective purchaser of the Building or of Landlord's
interest, or any prospective assignee of any such mortgagee.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have executed this
instrument this 25th day of April, 1990.
LANDLORD ATS II Associates Limited
Partnership, a Minnesota
Limited Partnership
AGENT APPLETREE PROPERTIES, INC.
/s/ Daryl G. D.
-------------------------
/S/ Shelley L. Unruk President
- ------------------------- ---------------------------
TENANT CAPITAL DIMENSIONS, INC.
/S/ THOMAS F. HUNT, JR.
----------------------------
/s/ BrendA L. Leonard By President
- ------------------------ ----------------------------
----------------------------
----------------------------
Tenant's Address Prior to Occupancy
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[Drawing Depicting 3rd Floor]
EXHIBIT A
To be attached to and form a part of Lease dated April 19,
1990 by and between ATS II Associates Limited Partnership
and Capital Dimensions, Inc.
[Drawing Depicting Office Space]
EXHIBIT A-1
To be attached to and form a part of Lease dated April 19,
1990 by and between ATS II Associates Limited Partnership
and Capital Dimensions, Inc.
Landlord to provide the following leasehold improvements:
1. Building Standard carpeting and base throughout.
2. Building Standard paint and wallcovering throughout.
3. Building Standard electrical throughout.
4. Sink, plastic laminate countertop and 4' lower cabinet in
storage room.
EXHIBIT B
RULES AND REGULATIONS
1. Security
Landlord may from time to time adopt appropriate systems and procedures for
the security or safety of the Building, any persons occupying, using, or
entering the same, or any equipment, finishings, or contents thereof and
Tenant shall comply with Landlord's reasonable requirements relative
thereto.
2. Locks
Tenant shall not add to or change existing locking mechanisms on any door
in or to the Premises without Landlord's prior written consent. No locks
incompatible with Building's master locking system shall be installed
without prior written consent of the Landlord. If, with Landlord's
consent, Tenant installs lock(s) incompatible with the Building's master
locking system:
a. Landlord, without abatement or Rent, shall be relieved of any
obligation under the Lease to provide any service to the affected
areas which require access thereto; and
b. Tenant shall indemnify Landlord against any expense as a result of
forced entry thereto which may be required in an emergency; and
c. Tenant shall at the end of the Lease Term and at Landlord's request,
remove such lock(s) at Tenant's expense.
3. Return of Keys
At the end of the Lease Term, Tenant shall promptly return to Landlord all
keys for the Building and Premises which are in possession of Tenant.
4 Windows
Tenant shall observe Landlord's rules with respect to maintaining uniform
window coverings at all windows in the Premises so that the Building
presents a uniform exterior appearance, and shall not install any window
shades, screens, drapes, covers, or other materials on or at any window in
the Premises without Landlord's prior written consent.
5. Repair, Maintenance, Alterations, and Improvements
No person or contractor not employed by Landlord shall be used to perform
window washing, cleaning, decorating, construction, repair or other work in
the Premises.
6. Water Fixtures
Tenant shall not use water fixtures for any purpose for which they are not
intended, nor shall water be wasted by tampering with such fixtures. Any
cost or damage resulting from such misuse by Tenant shall be paid by
Tenant.
7. Personal Use of Premises
The Premises shall not be used or permitted to be used for residential,
lodging, or sleeping purposes, or for the storage of personal effects or
property, not required for business purposes.
8. Heavy Articles
All safes, merchandise, furniture, equipment and other bulky articles shall
be carried up to or into the Premises at such times and in such manner as
shall be specified by Landlord. Tenant shall not place in or move about
the Premises without Landlord's prior written consent any such article
which in the Landlord's reasonable opinion may damage the Building, and
Landlord may designate the location of any heavy articles in the Premises.
9. Chair Mats
In those portions of the Premises where carpet has been installed, Tenant
shall at its own expense install and maintain chair mats to protect the
carpet under all furniture having casters.
10. Bicycles, Animals
Tenant shall not bring any animals or birds into the Building, and shall
not permit bicycles or other vehicles inside or on the sidewalks outside
the Building, except in areas designated from time to time by Landlord for
such purposes.
11. Deliveries
Tenant shall ensure that deliveries of materials and supplies to the
Premises are made through such entrances, elevators, and corridors and at
such times as may from time to time be designated by Landlord, and shall
promptly pay or cause to be paid by Landlord the cost of repairing any
damage in the Building caused by any person making such
deliveries. All deliveries must use the freight elevator, which must be
locked off by Landlord for Tenant's use. All deliveries must be
accompanied by a person.
All parcels must be removed from the loading dock within 24 hours after
delivery.
12. Moving of Furniture and Equipment
Tenant shall ensure that furniture and equipment being moved into or out of
the Premises is moved through such entrances, elevators, and corridors and
at such times as may from time to time be designated by Landlord, and by
movers or a moving company approved by Landlord, and shall promptly pay or
cause to be paid to Landlord the cost of repairing any damage in the
Building caused thereby. Moving shall be conducted only in the freight
elevator and only between the hours of 9:00 a.m. and 11:15 a.m., and 1:00
p.m. and 4:15 p.m., Monday through Friday, or at another time as approved
by Landlord.
13. Solicitations
Landlord reserves the right to restrict or prohibit canvassing, soliciting
or peddling in the Building.
14. Food and Beverage
Only persons approved from time to time by Landlord may prepare, solicit
orders for, sell, serve, or distribute foods or beverages in the Building,
or use the elevators, corridors, or common areas for any such purposes.
Except with Landlord's prior written consent and in accordance with
arrangement approved by Landlord, Tenant shall not permit on the Premises
the use of equipment for dispensing food or beverages or for the
preparation, solicitation or orders for sale, serving, or distribution of
food or beverages.
Tenant shall not cook in the Building.
15. Refuse
Tenant shall place all refuse in proper receptacles provided by Tenant at
its expense in the Premises or in receptacles (if any) provided by Landlord
for the Building, and shall keep sidewalks and driveways outside the
Building, and lobbies, corridors, stairwells, ducts and shafts of the
Building, free of all refuse.
16. Obstructions
Tenant shall not obstruct or place anything in or on the sidewalks or
driveways outside the Building, or in the lobbies, corridors, stairwells,
or other common areas of the Building, or use such locations for any
purpose except access to and exit from the Premises without
Landlord's prior written consent. Landlord may remove at Tenant's expense
any such obstruction or thing (unauthorized by Landlord) without notice or
obligation to Tenant.
17. Dangerous or Illegal Activities
Tenant shall not make any use of the Premises which involves the danger of
injury to any person, nor shall the same be used for any illegal purpose.
18. Proper Conduct
Tenant shall not conduct itself in any manner which is inconsistent with
the character of the Building as a first-quality building, or which will
impair the comfort and convenience of other tenants in the Building.
19. Firearms
Absolutely no loaded firearms or armed personnel, including armed security
personnel, will be permitted in any of the common areas at any time.
20. Parking
Tenant shall park in the designated areas only and shall not park in the
fire lanes or in any reserved parking stall reserved for any other tenant.
Parking in the loading dock areas is for pick-up and delivery only.
Parking in the temporary parking areas shall be limited to fifteen (15)
minutes.
21. Electrical System
Tenant shall not overload the existing electrical system within the
Premises or cause to overload the electrical system of the Building.
Should Tenant require power in excess of the standard 100V 20 Amps per
circuit provided, new wiring and other necessary electrical equipment shall
be installed at Tenant's expense, and Tenant shall be assessed an
additional monthly charge to cover the cost of the excess electrical demand
and usage.
22. Advertising
In advertising or other publicity, without Landlord's prior written
consent, Tenant shall use neither the name of the Building, except as the
address of its business, nor use pictures or photographs of the Building.
23. Quiet Enjoyment
Tenant shall not make noises, cause disturbances or vibrations, or use or
operate any electrical or mechanical devices or other devices that omit
sound or other waves or disturbances, or create odors, any of which may be
offensive to other tenants and occupants of the Building, or that would
interfere with the operation of any device or equipment or radio or
television broadcasting or reception from or within the Building or
elsewhere, and shall not place or install any projections, antennae,
aerials, or similar devices inside or outside of the Premises.
24. Dangerous Commodities
In no event shall any person bring into the Building flammables such as
gasoline, kerosene, naptha, and benzine, or explosives or any other article
of intrinsically dangerous nature. If by reason of the failure of Tenant
to comply with the provision of this paragraph, any insurance premiums
payable to Landlord for all or any part of the Building shall at any time
be increased above normal insurance premiums for insurance not covering the
items aforesaid, Landlord shall have the option to either terminate this
Lease or to require to make immediate payment for the whole of the
increased insurance problems.
25. Signs
Landlord will provide and maintain a directory for all tenants of the
Building. No signs, advertisements, or notices visible to the general
public or to other tenants shall be permitted within the Building unless
first approved in writing by Landlord.
EXHIBIT C
BUILDING STANDARDS
OFFICE SPACE
A. GENERAL CONDITIONS
1. Standard Allowances
The standard allowances as outlined below are maximum limits to be
provided at no cost to Tenant.
All references to square footage allowances contained herein are based
on the rentable area.
B. STANDARD WORK PROVIDED BY LANDLORD AT LANDLORD'S COST
1. Partitions
Office partitions will be constructed of 5/8" gypsum wallboard, taped
and spackled with no visible joints, over 3-5/8" steel studs from
floor slab to underside of finished ceiling.
Standard allowance is one linear foot of partition for each 7 square
feet of rentable area as measured through door openings.
Interior partitions, corridor partitions, and of demising partitions
will be charged against partition allowance.
2. Floor Load
Floors are designed for normal office loading. Landlord must be
notified of Tenant's requirement of heavy load concentration for such
items as library shelving, vaults, computers, heavy files, etc.
3. Doors and Hardware
One single solid core "stain grade" 3'0" x 8'0" entrance door with
hollow metal frame and wire glass side light, in accordance with
prevailing Fire Code, will be provided at each suite. Double entry
door will be installed at Tenant's expense.
Building Standard lockset and closer on entrance door.
Interior doors will be flush solid core "stain grade" 3'0" x 8'0"
doors, installed in hollow metal door frames, on the basis of one door
for each 250 square feet of rentable area. If more than this
allowance is used, the Tenant will be charged for the additional
doors, hardware and closers, it closers are required.
Building Standard latchset for all interior doors.
4. Ceiling
Ceilings will be exposed "T" bar lay-in acoustical ceiling panels on a
30" x 60" grid, installed to building standard ceiling height of 8'0".
5. Lighting and Switches
Landlord will provide one recess-mounted fluorescent 4-tube "energy
miser" fixture per 75 square feet of rentable area. If Tenant's space
plan extensively subdivides Leased Premises, Tenant will be
responsible for additional lighting to maintain the above standards.
Landlord will provide one light switch for each 200 square feet of
rentable area.
6. Heating, Ventilating, Air Conditioning (HVAC) System
Landlord will provide Tenant HVAC so that the temperature in the
Leased Premises does not exceed 78 degrees F with 55% relative
humidity in the summer and is not lower than 65 degrees F in the
winter during normal business hours. If Tenant's space plan
extensively subdivides Leased Premises or if special Tenant equipment
requires modification of HVAC capacities, Tenant will be responsible
for additional HVAC to maintain the above standards. Landlord will
provide a minimum of one thermostat for each 500 square feet of
rentable area.
7. Power and Telephone Outlets.
Landlord will provide one 110-volt electric duplex outlet located in
interior partitioning for each 75 square feet of rentable area. The
Building shall contain wires, risers, conduits, feeders and
switchboards necessary to furnish any area with electrical energy.
Any special outlet or special circuit which Tenant requires shall be
located in drywall partition and installed at Tenant's expense.
If the prevailing Building Code requires that telephone lines be run
in conduit, Landlord will provide one telephone outlet located in
interior partitioning for each 200 square feet of rentable area.
No plumbing in Tenant suite will be provided by the Landlord.
8. Wall Finishes
Landlord will provide paint and vinyl wall covering for such walls,
partitions, columns, doors, door frames and metal trim as are building
standard. Such painting shall consist of necessary preparation, one
prime and one finish coat from color selections provided by Landlord.
Standard allowance is one color per suite. Vinyl wall surfaces shall
consist of the necessary preparation and vinyl application from a
color and quality selection provided by Landlord. Twenty-five percent
of the Tenant's office wall area shall be vinyl covered. All interior
building perimeter wall surfaces and storage utility rooms shall be
painted. All hollow metal door frames shall be painted to match
building standard.
9. Floor Finishes
Landlord will furnish and install broadloom carpeting of a commercial
quality. Colors will be selected by Tenant from Landlord's sample
display and limited to one color per suite. Four-inch base will be
provided in building standard color.
10. Window Covering
Narrow slat venetian blinds will be permitted at Tenant's expense.
Blinds will be a Building Standard color.
11. Suite Signage
Entrances will be signed by Landlord with Building Standard typeface
and mounting height. Entrance sign and building directory shall
contain name as shown on Lease.
C. TENANT WORK ABOVE BUILDING STANDARDS
If the drawing approved by Tenant includes items of work above the building
standard allowances as outlined above, such drawings will be submitted by
Landlord to the General Contractor for the determination of cost of such
items of work.
After the approval by Tenant of such above building standard costs, Tenant
will pay as follows:
1/3 at time of approval of cost
1/3 when work is 50% completed
1/3 upon occupancy
If there are any changes requested by Tenant, after completion of Tenant's
plan, Tenant will be responsible for all architectural and engineering
costs and related design expenses
resulting from such changes. No such changes will be made without prior
written approval of Landlord. Landlord will respond within 15 days.
Landlord will not be responsible for delay in occupancy by Tenant because
of changes to plans after approval and sign-off by Tenant.
D. DESIGN SERVICES
Tenant has the option of engaging his own designer, or Tenant may utilize
the services of Landlord's designer for the preparation of the necessary
Tenant layout and working drawings. If Tenant engages his own designer,
Tenant is required to coordinate layout and working drawings with Landlord
within 30 days of Lease execution.
AMENDMENT TO LEASE
May 23, 1995
The terms of a certain Lease dated April 19, 1990 by and between ATS II
Associates Limited Partnership and Capital Dimensions, Inc. for offices at Suite
335, Two Appletree Square, Bloomington, Minnesota, is hereby amended by mutual
consent upon the same terms and conditions except that effective July 1, 1995:
* The Term of the Lease shall be extended through and including June 30,
1998.
* The Base Rental shall be Thirty-One Thousand Seven Hundred Forty and 00/100
Dollars ($31,740.00) payable in equal monthly installments of Two Thousand
Six Hundred Forty Five and 00/100 Dollars ($2,645.00).
* Landlord, at its cost, shall install new building standard carpet in four
(4) private offices.
Witness our hands and seals this 24th day of May, 1995.
In presence of: ATS II ASSOCIATES LIMITED PARTNERSHIP
APPLETREE PROPERTIES, INC., Agent
/S/ Beth A. Barci By: /S/ Daryl G. D.
------------------------ --------------------------
Its: President
--------------------------
TENANT CAPITAL DIMENSIONS, INC.
/S/ Brenda L. Leonard By: /S/ Dean Pickerell
------------------------- ---------------------------
Its: Vice President
---------------------------
By: /S/ Thomas F. Hunt, Jr.
----------------------------
Its: President
---------------------------