Exhibit 10.18
LEASE AGREEMENT
CONTROL DATA SYSTEMS, INC., (hereinafter referred to as "Landlord") and
DYNAMARK, INC., (hereinafter referred to as "Tenant"), entered into a Lease
dated April 6, 1992, covering premises at 4290 Fernwood Avenue, Arden Hills,
Minnesota.
NOW THEREFORE, Landlord and Tenant agree to terminate the subject April 6, 1992
Lease in its entirety as of the Commencement Date (except as to any sums
remaining owing, whether actual or contingent) and enter into a new Lease
Agreement, the terms and conditions of which are stated as follows:
1. PARTIES.
This Lease is made and entered into this 1st day of May 1995, by and
between CONTROL DATA SYSTEMS, INC. (hereinafter referred to as "Landlord") and
DYNAMARK, INC., hereinafter referred to as "Tenant").
2. PREMISES.
In consideration of the rents and covenants herein agreed to be paid
and performed, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, on the terms and conditions hereinafter set forth, that certain space
(the "Premises") consisting of approximately forty eight thousand eight hundred
four (48,804) rentable square feet and other improvements located at 4290
Fernwood Avenue, Arden Hills, Minnesota. The Premises are more particularly
designated on the plan attached hereto as Exhibit A and made a part of this
Lease Agreement.
3. TERM.
The term of this Lease shall be for a period commencing on May 1, 1995,
(the "Commencement Date"), and ending at midnight on August 31, 2005, unless
sooner terminated as hereinafter provided.
4. BASE RENT.
(a) For the period from the Commencement Date of this Lease Agreement
through July 31, 1997, Tenant agrees to pay Base Rent for the Premises in
monthly installments at the rate of thirty-four thousand five hundred dollars
($34,500.00) per month.
Landlord shall provide during this period, included in the Base Rent
listed above at no additional cost to Tenant, the following items: parking lot
and grounds maintenance, property insurance, property tax payments (up to the
amount paid in 1992), sewer and water, and property management services. The
Base Rent shall be adjusted periodically as necessary to reflect any increases
or decreases in Tenant's actual pro rata share of real estate taxes
attributable to the Premises. Taxes allocated to the Premises are currently
deemed to be 6.663713898% of the taxes and assessments for the entire complex in
which the Premises are located. Tenant may challenge such allocation if the
circumstances concerning the Premises and its relationship to the taxes and
assessments change so as to make such allocation inequitable. If Landlord incurs
any reasonable expenses as a result of real estate tax appeals or related
actions which benefit Tenant in the lowering of the Base Rent, Tenant will be
responsible for its pro rata share of these expenses.
During this period, Tenant shall also pay all costs for utilities
including electricity, chilled water, heating, custodial services and all other
costs not specifically covered by Landlord and addressed herein. Such costs will
be invoiced at Landlord's actual cost and will not contain any additional
charges.
(b) Beginning August 1, 1997 and thereafter for the remainder of the
Term of this Lease Agreement, Base Rent shall be paid according to the following
schedule:
Annual Base
Months Base Rent/RSF Rent/Month
--------- ------------- ----------
1 - 36 $6.89 $28,021.63
37 - 72 $7.24 $29,455.08
73 - 97 $7.54 $30,665.18
Tenant shall pay as Additional Rent three dollars and twenty-nine cents
($3.29) per rentable square foot per annum as a fixed charge for Tenant's share
of Operating Expenses (as defined in the OPERATING EXPENSES section), payable
monthly with Base Rent. On each January 1 of the Term after August 1, 1997,
Tenant's pro rata share of Operating Expenses shall increase three percent (3%)
over Tenant's pro rata share for the previous year, with the exception of
Tenant's pro rata share of real estate taxes which shall reflect the actual
increases or decreases.
During this period, Tenant shall also pay all costs for utilities
including electricity, water and sewer, chilled water usage and availability,
heating, custodial services and all other costs not specifically covered by
Landlord and addressed herein. If Landlord incurs any reasonable expenses as a
result of real estate tax appeals or related actions which benefit Tenant in the
lowering of the Additional Rent for real estate taxes, Tenant will be
responsible for its pro rata share of these expenses.
(c) Said rent is subject to late charges and other terms and conditions
of this Agreement. Tenant further agrees to pay its pro rata share of any
increases in expenses attributable to a change in law relating to the building
and its usage. Monthly rental shall be payable in advance on the first day of
each month during the term of this Lease, without notice or demand and without
any deduction, off-set, or abatement, except as expressly provided herein, in
lawful money of the United States to the Landlord at the address stated herein
for notices or to such other persons or such other places as the Landlord may
designate to Tenant in writing. Rent not paid within ten (10) days of the due
date shall be subject to a late charge equal to the lesser of
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five (5) percent of the amount unpaid or the maximum allowable under applicable
law, which amount shall be charged against each installment of rent not paid
when due. In addition, any installment of rent not paid within ten (10) days of
the due date shall bear interest at the rate of twelve (12) percent per annum
from the due date until paid, which interest shall be immediately due and
payable as additional rent. Any items of additional rent shall be invoiced on a
monthly basis by Landlord and shall be payable by Tenant within fifteen(15) days
of the date of such invoice.
5. OPERATING EXPENSES
(a) Operating Expenses as Additional Rent. During the Term of the
Lease, Tenant shall pay to Landlord as additional rent, without any set-off or
deduction except as described herein, the fixed charge specified in Section 4
(b) above for a prorata share ("Tenant's Proportionate Share") of all costs
which Landlord may incur in owning, maintaining and operating the premises
("Operating Expenses").
(b) Definition of Operating Expenses. The term "Operating Expenses"
shall mean all of the following: (i) all of Landlord's direct costs and expenses
of operation, repair and maintenance of the Premises, the property and the
common areas and supporting facilities, as determined by Landlord in accordance
with generally accepted accounting principles or other recognized accounting
principles, consistently applied; (ii) costs, or a portion thereof, properly
allocable to the Premises, property or common areas of any capital improvements
made to the Premises, property or common areas by Landlord which comprise
labor-saving devices or other equipment intended to improve the operating
efficiency of any system within the Premises, property or common areas (such as
an energy management computer system) to the extent of cost savings in Operating
Expenses as a result of the device or equipment, as reasonably determined by
Landlord; and (iii) costs properly allocable to the Premises, property or common
areas of any capital improvements made to the Premises, property or common areas
by Landlord that are required under any governmental law or regulation that was
not applicable to the Premises, property and common areas at the time they were
constructed, or that are reasonably required for the health and safety of
tenants in the property or Premises, the costs, or allocable portion thereof, to
be amortized over its useful life as reasonably determined by Landlord and
Tenant will pay Tenant's Proportionate Share based on the time remaining in the
lease term, together with interest upon the unamortized balance at the interest
rate or such higher rate as may have been paid by Landlord on funds borrowed for
the purpose of constructing the capital improvements. The term "Operating
Expenses" shall include the costs of all utilities (including surcharges) for
the property and Premises; the cost of all insurance which Landlord or
Landlord's lender deems necessary for the property and Premises; a property
management fee equal to ten percent (10%) of Operating Expenses; and the Real
Property Taxes. If Landlord elects to self-insure or includes the Premises under
blanket insurance policies covering multiple properties, then the term
"Operating Expenses" shall include the portion of the cost of such
self-insurance properly allocated by Landlord to the Premises. Without
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limiting the foregoing, Operating Expenses shall include the costs set forth on
Exhibit C attached hereto, showing the breakdown of the initial $3.29 per square
foot charge. After August 1, 1997, Landlord agrees not to unreasonably withhold
its agreement to modifications of the services provided by Landlord as part of
Operating Expenses, as requested by Tenant, so long as such modifications do not
result in increased costs to Landlord, deferred maintenance of the Premises,
increased casualty or theft risk to property or premises, or other detriment to
Landlord; and upon such modification of services the fixed charge for Operating
Expenses shall be appropriately adjusted to reflect the reduced or increased
costs to Landlord of providing such services at the time of such modification.
(c) Exclusions From Operating Expenses. The term "Operating Expenses"
shall not include (i) costs paid directly by Tenant; (ii) principal and interest
payments on loans secured by deeds of trust recorded against property; (iii)
real estate sales or leasing brokerage commissions; or (iv) executive salaries
of off-site personnel employed by Landlord except for the charge (or pro rata
share) of the manager of the property and building; (v) any costs or expenses
resulting from the presence of Hazardous Substances as are attributable to
Tenant, (as described in Exhibit B) on the date hereof or at any time during the
Term.
6. OPTION TO EXTEND LEASE.
Tenant shall have the right and option (the "Option") to extend this
Lease for all (but not part) of the Premises, as hereinafter provided, for two
(2) periods of five (5) years each (hereinafter referred to as "Renewal Term
One" and "Renewal Term Two") provided that (i) there is not then an Event of
Default at the time of exercise of the Option nor at the commencement of either
of the Renewal Terms; or (ii) that Tenant has not received written notice from
Landlord of a default in rent payments more than five (5) times during the last
two (2) years of the lease term or renewal period. Tenant's right to extend for
any Renewal Term shall lapse without further act or deed if Tenant has not
exercised its option to extend for all available preceding Renewal Terms.
The Option shall be exercised by Tenant giving written notice to
Landlord of Tenant's intention to exercise said Option on or before that date
which is not more than twelve (12) months nor less than nine (9) months prior to
the then applicable expiration date for the Term. Unless Landlord has received
such written notice of Tenant's intention to exercise said Option within the
time period specified herein, then Landlord shall have no further obligation to
offer the Premises to the Tenant. If Tenant has not exercised its Option to
extend the Terms as outlined herein, Landlord shall be entitled to show the
Premises at least nine (9) months prior to the expiration of each Term and offer
the Premises for lease to any other prospective tenants. Landlord will give
Tenant at least 24 hours notice prior to such showings to prospective tenants.
The Option contained herein is personal to Tenant and shall not be assigned or
sublet to another party, except as to such party that purchases Tenant or
Tenant's assets.
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Rental rates will be at then Fair Market Rate, but, in no case, less
than the current Base Rent then in effect for the Premises. The Fair Market Rent
shall be established by agreement between Landlord and Tenant in accordance with
the FAIR MARKET RENT DEFINITION section or, failing agreement, in accordance
with the ARBITRATION PROCEDURES section.
7. FAIR MARKET RENT DEFINITION
"Fair Market Rent" shall mean the base rent that the Landlord would
receive as of the commencement date in question if it were to lease to a tenant
with a credit standing which Landlord reasonably determines is comparable to
that of Tenant for similar sized space, similar leasehold improvements and
similar other terms and conditions. For purposes of the determination of "Fair
Market Rent," it shall be assumed that Landlord and Tenant are each ready,
willing and able to enter into such a lease but are under no compulsion to do
so.
8. ARBITRATION PROCEDURES
The parties to this Lease will initially attempt to agree upon the Fair
Market Rate. If they have been unable to so agree within the period that they
are required to agree as to such matter under the Lease, then either party may
request by written notice to the other party ("Arbitration Request") that the
matter be determined by binding arbitration by an arbitration board consisting
of three reputable MAI appraisers who are recognized experts regarding office
leases in the Twin Cities area. One arbitrator will be appointed by each party,
and each such arbitrator will have no material financial or other business
interest in common with the party selecting such arbitrator. If a party fails to
appoint an arbitrator and notify the other party of such appointment within
thirty (30) days after the Arbitration Request is made, then the arbitrator that
was appointed by the other party within such 30-day period will be the sole
arbitrator. If two arbitrators are properly appointed and such first two
arbitrators are unable to agree on a third arbitrator within thirty (30) days
after the appointment of the second arbitrator, then such third arbitrator will
be appointed by the presiding judge of Ramsey County District Court, or by any
person to whom such presiding judge formally delegates the matter, or, if such
methods of appointment fail, by the American Arbitration Association.
The parties will submit a copy of this Lease to the sole arbitrator or
the three arbitrators, as the case may be. In establishing the definition of
Fair Market Rent, the arbitrator or arbitrators shall apply the standard
described in the FAIR MARKET RENT DEFINITION section. If the arbitration is
conducted by a sole arbitrator, such sole arbitrator will render his or her
determination of the Fair Market Rate applicable during the period in question
to the parties by the thirtieth (30th) day after the Arbitration Request was
made. If the arbitration is conducted by three arbitrators, each arbitrator will
submit his or her determination(s) of the Fair Market Rate applicable during the
period in question in a sealed envelope by the thirtieth (30th) day following
appointment of the last arbitrator, and any determinations not submitted by such
time shall be disregarded. In such cases, the parties will
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meet on such thirtieth (30th) day (or if it is not a business day, on the first
business day thereafter) at the office of Landlord, or such other place as the
parties may agree, and simultaneously deliver the determinations. If the
determinations of at least two of the arbitrators are identical in amount, such
amount will be deemed the decision of the arbitrators. If the determination of
the three arbitrators are different in amount, the decision as to the Fair
Market Rate will be independently determined as follows:
(i) If neither the highest nor lowest determination differs from the
middle determination by more than fifteen (15%) percent of such middle
determination, then the decision will be deemed to be the average of the three
determinations; and
(ii) If clause (i) does not apply, then the decision will be deemed to
be the average of the middle determination and the determination closest in
amount to such middle determination.
The decision of the arbitrators, determined as above set forth, will be
final and nonappealable. The fees and expenses of the arbitrator or arbitrators
will be shared equally by Landlord and Tenant. During the period of time that
any arbitration is pending under this Lease, the parties to this Lease will
continue to comply with all those terms and provisions that are not the subject
of the arbitration.
9. USE.
Tenant shall use the Premises only for general office use, as a data
processing center and other reasonably related activities, or only as otherwise
outlined and stated in this lease and for no other purpose without the
Landlord's prior written consent. Tenant shall not do, bring or keep anything in
or about the Premises that will cause a cancellation of any insurance covering
the Premises or the building in which the Premises are located; provided that
Tenant's use for those purposes specified in the preceding sentence shall not be
prohibited. If the rate of any insurance carried by the Landlord is increased as
a result of Tenant's use, Tenant shall pay to Landlord within ten (10) days
after written demand from Landlord, the amount of any such increase. Tenant
shall comply with all laws concerning the Premises or Tenant's use of the
Premises, including without limitation, the obligation at Tenant's cost to
alter, maintain, or restore the Premises in compliance and conformity with all
laws relating to the condition, use, or occupancy of the Premises by Tenant
during the term of this Lease provided that Tenant shall not be obligated (nor
shall Landlord) to make any material capital improvements required by such laws,
ordinances, orders, rules and regulations. For purposes of this clause, a
"material capital improvement" shall mean any capital improvement, or series of
capital improvements within any calendar year, costing in excess of $25,000.
Tenant shall not use or permit the use of the Premises in any manner that will
tend to create waste or a nuisance or, if there shall be more than one tenant of
the building containing the Premises, which shall unreasonably disturb any other
tenant. Tenant hereby acknowledges that neither the Landlord nor the Landlord's
agent has made any representation or warranty to Tenant as to the suitability of
the Premises for the conduct of Tenant's business.
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10. TAXES.
(a) Real Property Taxes.
Landlord shall pay all real property taxes and general
assessments levied and assessed against the Premises during the term of this
Lease.
(b) Personal Property Taxes.
Tenant shall pay prior to the delinquency all taxes assessed
against and levied upon the trade fixtures, furnishings, equipment and other
personal property of Tenant contained in the Premises. Tenant shall endeavor to
cause such trade fixtures, furnishings and equipment and all other personal
property to be assessed and billed separately from the property of the Landlord.
If any of Tenant's said personal property shall be assessed with Landlord's
property, Tenant shall pay to Landlord the taxes attributable to Tenant within
ten (10) days after receipt of a written statement from Landlord setting forth
the taxes applicable to Tenant's property.
11. MAINTENANCE AND REPAIRS.
(a) Landlord's Obligations. Except as provided in the DAMAGE OR
DESTRUCTION section, and except for damage caused by any negligent or
intentional act or omission of Tenant, Tenant's agents, employees, or invitees,
Landlord at its sole cost and expense shall keep in good condition and repair
the foundations, exterior walls, and exterior roof of the Premises. Landlord
shall also maintain the unexposed electrical, plumbing and sewage systems
including, without limitation, those portions of the systems lying outside the
Premises; window frames, gutters and down spouts on the building, all sidewalks,
landscaping and other improvements that are a part of the Premises or of which
the Premises are a part. The Landlord shall also maintain the heating,
ventilating and air-conditioning systems servicing the Premises. Landlord shall
have thirty (30) days after notice from Tenant to commence to perform its
obligations under this Section, and shall thereafter diligently proceed to
complete such performance, except that Landlord shall perform its obligations
immediately if the nature of the problem presents a hazard or emergency
situation. If Landlord fails to perform Landlord's obligations as stated herein,
Tenant may at its option (but shall not be required to) after ten (10) days
prior written notice to Landlord, cure such failure, and the reasonable costs
thereof together with interest thereon at the rate of ten percent (10%) per
annum may be deducted by Tenant from the next payments of rent and additional
rent payable hereunder.
(b) Tenant's Obligations. Subject to the provisions of Sub-paragraph
(a) above and the DAMAGE OR DESTRUCTION section, Tenant at Tenant's sole cost
and expense shall keep in good order, condition and repair the Premises and
every part thereof, including, without limitation, all Tenant's personal
property, fixtures, signs, plate glass, doors, interior walls, interior ceiling,
and lighting facilities.
If Tenant fails to perform Tenant's obligations as stated herein,
Landlord may at its option (but shall not be required to), enter the Premises,
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after ten (10) days prior written notice to Tenant, put the same in good order,
condition and repair, and the costs thereof together with interest thereon at
the rate of ten (10%) percent per annum shall become due and payable as
additional rental to Landlord together with Tenant's next rental installment.
12. ALTERATIONS AND ADDITIONS.
(a) Tenant agrees that no tenant improvements are necessary and Tenant
hereby accepts the Premises on an as is basis.
(b) Tenant shall not, without the Landlord's prior written consent,
make any alterations, improvements or additions in or about the Premises except
for non-structural work. As a condition to giving any such consent, the Landlord
may reserve the right to require the Tenant to remove any such alterations,
improvements, or additions at the expiration of the term, and to restore the
Premises to their prior condition by giving Tenant thirty (30) days written
notice prior to the expiration of the term that Landlord requires Tenant to
remove any such alterations, improvements or additions that Tenant has made to
the Premises. If Landlord so elects, Tenant at its sole cost shall restore the
Premises to the condition designated by Landlord in its election before the last
day of the term of the Lease.
Before commencing any work relating to the alterations, additions, or
improvements affecting the Premises, Tenant shall notify Landlord in writing of
the expected date of the commencement of such work so that Landlord can post and
record the appropriate notices of non-responsibility to protect Landlord from
any mechanic's liens, materialman liens, or any other liens. In any event,
Tenant shall pay, when due, all claims for labor and materials furnished to or
for Tenant at or for use in the Premises. Tenant shall not permit any mechanic's
liens or materialman's liens to be levied against the Premises for any labor or
material furnished to Tenant or claimed to have been furnished to Tenant or
Tenant's agents or contractors in connection with work of any character
performed or claimed to have been performed on the Premises by or at the
direction of Tenant. Tenant shall have the right to protest the validity of any
such lien if, onwithin thirty (30) days after demand by Landlord, Tenant
procures and records a lien release bond meeting the requirements of Minnesota
law and shall provide for the payment of any sum that the claimant may recover
on the claim (together with the costs of suit, if it is recovered in the
action).
Unless the Landlord requires their removal as set forth above, all
alterations, improvements or additions which are made on the Premises by the
Tenant shall become the property of the Landlord and remain upon and be
surrendered with the Premises at the expiration of the term. Notwithstanding the
provisions of this paragraph, Tenant's trade fixtures, furniture, equipment and
other machinery, other than that which is affixed to the Premises so that it
cannot be removed without material or structural damage to the Premises, shall
remain the property of the Tenant and removed by Tenant at the expiration of the
term of this Lease.
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13. INSURANCE; INDEMNITY.
(a) Fire Insurance.
Landlord at its cost shall maintain during the term of this
Lease on the Premises a policy or policies of standard fire and extended
coverage insurance to the extent of at least eighty (80%) percent of full
replacement value thereof.
Tenant at its cost shall maintain during the term of this
Lease on all its personal property, Tenant's improvements, and alterations in or
about the Premises, a policy of standard fire and extended coverage insurance,
with vandalism and malicious mischief endorsements to the extent of their full
replacement value. The proceeds from any such policy shall be used by Tenant for
the replacement of personal property or the restoration of Tenant's improvements
or alterations.
(b) Liability Insurance.
Tenant at its sole cost and expense shall maintain during the
term of this Lease public liability and property damage insurance with a single
combined liability limit of not less than two million ($2,000,000.00) dollars,
and property damage limits of not less than five hundred thousand ($500,000.00)
dollars, insuring against all liability of Tenant and its authorized
representatives arising out of and in connection with Tenant's use or occupancy
of the Premises. Both public liability insurance and property damage insurance
shall insure performance by Tenant of the indemnity provisions in Sub-paragraph
(d) below, but the limits of such insurance shall not, however, limit the
liability of Tenant hereunder. Both Landlord and Tenant shall be named as
additional insureds, and the policies shall contain cross-liability
endorsements. All public liability, property damage and other casualty insurance
policies shall be written as primary policies, not contributing with, and not as
excess to coverage which Landlord may carry. Prior to occupancy and thereafter,
within at least fifteen (15) days of the expiration of any such policies, Tenant
agrees to deliver to Landlord, certificates evidencing such insurance, provided
said certificates contain an endorsement stating that such insurance cannot be
modified or canceled, nor the amount thereof reduced, except upon thirty (30)
days prior written notice to Landlord. If Tenant shall fail to procure and
maintain such insurance the Landlord may, but shall not be required to, procure
and maintain same at the expense of Tenant and the cost thereof, together with
interest thereon at the rate of ten (10%) percent per annum, shall become due
and payable as additional rental to Landlord together with Tenant's next rental
installment.
(c) Waiver of Subrogation.
Tenant and Landlord each waives any and all rights of recovery
against the other, or against the officers, employees, agents, and
representatives of the other, for loss of or damage to such waiving party or its
property or the property of others under its control, where such loss or damage
is insured against under any insurance policy in force at the time of such loss
or damage or is insurable under the broad form Special Cause of Loss building
and personal property insurance policy customarily used in the State of
Minnesota. Each party shall cause each insurance policy obtained by it hereunder
to provide that the insurance company waives all right of
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recovery by way of subrogation against either party in connection with any
damage covered by any such policy.
(d) Hold Harmless.
Tenant shall indemnify and hold Landlord harmless from and
against any and all claims arising from Tenant's use or occupancy of the
Premises or from the conduct of its business or from any activity, work, or
things which may be permitted or suffered by Tenant in or about the Premises
including all damage, costs, attorney's fees, expenses and liabilities incurred
in the defense of any claim or action or proceeding arising therefrom. Except
for Landlord's willful or negligent conduct, Tenant hereby assumes all risk of
damage to property or injury to person in or about the Premises from any cause,
and Tenant hereby waives all claims in respect thereof against Landlord.
(e) Exemption of Landlord from Liability.
Except for Landlord's willful or negligent conduct, Tenant
hereby agrees that Landlord shall not be liable for any injury to Tenant's
business or loss of income therefrom or for damage to the goods, wares,
merchandise, or other property of Tenant, Tenant's employees, invitees,
customers or any other person in or about the Premises, nor shall Landlord be
liable for injury to the person of Tenant, Tenant's employees, agents,
contractors, or invitees, whether such damage or injury is caused by or results
from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air-conditioning, or lighting fixtures, or from any other cause,
whether such damage results from conditions arising upon the Premises or upon
other portions of the building in which the Premises are a part, or from any
other sources or places. Landlord shall not be liable to Tenant for any damages
arising from any act or neglect of any other tenant, if any, of the building in
which the Premises are located.
14. DAMAGE OR DESTRUCTION.
(a) Damage - Insured.
If, during the term of this Lease, the Premises and/or the
building and other improvements in which the Premises are located are totally or
partially destroyed rendering the Premises totally or partially inaccessible or
unusable, and such damage or destruction was caused by a casualty covered under
an insurance policy required to be maintained hereunder, Landlord shall restore
the Premises and/or the building and other improvements in which the Premises
are located into substantially the same condition as they were in immediately
before such damage or destruction, provided that the restoration can be made
under the existing laws and can be completed within one hundred twenty (120)
working days after the date of such destruction or damage. Such destruction or
damage shall not terminate this Lease.
If the restoration cannot be made in said 120 day period, then
within fifteen (15) days after the parties hereto determine that the restoration
cannot be made in the time stated in this paragraph but, in any event within
thirty (30) days of such damage or destruction, Tenant may terminate this
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Lease immediately by giving notice to Landlord and the Lease will be deemed
canceled as of the date of such damage or destruction. If Tenant fails to
terminate this Lease and the restoration is permitted under the existing laws,
Landlord, at its option, may terminate this Lease or restore the Premises and/or
any other improvements in which the Premises are located within a reasonable
time and this Lease shall continue in full force and effect. If the existing
laws do not permit the restoration, either party can terminate this Lease
immediately by giving notice to the other party.
Notwithstanding the above, if the Tenant is the insuring party
and if the insurance proceeds received by Landlord are not sufficient to effect
such repair, Landlord shall give notice to Tenant of the amount required in
addition to the insurance proceeds to effect such repair. Tenant may, at
Tenant's option, contribute the required amount, but upon failure to do so
within thirty (30) days following such notice, Landlord's sole remedy shall be,
at Landlord's option and with no liability to Tenant, to cancel and terminate
this Lease. If Tenant shall contribute such amount to Landlord within said
thirty (30) day period, Landlord shall make such repairs as soon as reasonably
possible and this Lease shall continue in full force and effect. Tenant shall in
no event have any right to reimbursement for any amount so contributed.
(b) Damage - Uninsured.
In the event that the Premises are damaged or destroyed by a
casualty which is not covered by the fire and extended coverage insurance which
is required to be carried by the party designated in Article 11(a) above, then
Landlord shall restore the same; provided that if the damage or destruction is
to an extent greater than ten (10%) percent of the then replacement cost of the
improvements on the Premises (exclusive of Tenant's trade fixtures and equipment
and exclusive of foundations and footings), then Landlord may elect not to
restore and to terminate this Lease. Landlord must give to Tenant written notice
of its intention not to restore within thirty (30) days from the date of such
damage or destruction and, if not given, Landlord shall be deemed to have
elected to restore and in such event shall repair any damage as soon as
reasonably possible. In the event that Landlord elects to give such notice of
Landlord's intention to cancel and terminate this Lease, Tenant shall have the
right, within ten (10) days after receipt of such notice, to give written notice
to Landlord of Tenant's intention to repair such damage at Tenant's expense,
without reimbursement from Landlord, in which event the Lease shall continue in
full force and effect and Tenant shall proceed to make such repairs as soon as
reasonably possible. If the Tenant does not give such notice within such 10 day
period, this Lease shall be canceled and be deemed terminated as of the date of
the occurrence of such damage or destruction.
(c) Damage Near the End of the Term.
If the Premises are totally or partially destroyed or damaged
during the last twelve (12) months of the term of this Lease, Landlord may, at
Landlord's option, cancel and terminate this Lease as of the date of the cause
of such damage by given written notice to Tenant of Landlord's election to do so
within 30 days after the date of the occurrence of such damage; provided,
however, that, if the damage or destruction occurs within the last twelve (12)
months of the term and if within fifteen (15) days after the date of such
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damage or destruction Tenant exercises any option to extend the term provided
herein, Landlord shall restore the Premises if obligated to do so as provided in
subparagraph (a) or (b) above.
(d) Abatement of Rent.
If the Premises are partially or totally destroyed or damaged
and Landlord or Tenant repairs or restores them pursuant to the provisions of
this Article, the rent and additional rent payable hereunder for the period
during which such damage, repair or restoration continues shall be abated in
proportion to the degree to which Tenant's reasonable use of the Premises is
impaired. Except for the abatement of rent, if any, Tenant shall have no claim
against Landlord for any damages suffered by reason of any such damage,
destruction, repair or restoration.
(e) Trade Fixtures and Equipment.
If Landlord is required or elects to restore the Premises as
provided in this Article, Landlord shall not be required to restore Tenant's
improvements, trade fixtures, equipment or alterations made by Tenant, such
excluded items being the sole responsibility of Tenant to restore hereunder.
15. PARKING.
At no additional cost, Landlord agrees to maintain (including snow
removal when appropriate) and allow Tenant to use a general parking area. The
parking area is designated on Exhibit A. Tenant's right to use said parking area
is subject to the public's parking rights, as so designated by Landlord from
time to time to the City of Arden Hills, for the adjacent park.
16. CONDEMNATION.
If the Premises or any portion thereof are taken by the power of
eminent domain, or sold by Landlord under the threat of exercise of said power
(all of which is herein referred to as "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever occurs first. If more than twenty (20%) percent
of the floor area of any buildings on the Premises, or more than twenty (20%)
percent of the land area of the Premises not covered with buildings, is taken by
condemnation, either Landlord or Tenant may terminate this Lease as of the date
the condemning authority takes possession by notice in writing of such election
within twenty (20) days after Landlord shall have notified Tenant of such taking
or, in the absence of such notice, then within twenty (20) days after the
condemning authority shall have taken possession. Notwithstanding the foregoing,
if such partial materially interferes with Tenant's use or occupancy of the
Premises, Tenant shall have the right to terminate the Lease.
If this Lease is not terminated by either Landlord or Tenant as
provided hereinabove, then it shall remain in full force and effect as to the
portion of the Premises remaining, provided that the rental shall be reduced in
proportion to the floor area of the buildings taken within the Premises as bears
to the total floor area of all buildings located on the Premises. In the
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event this Lease is not so terminated, then Landlord agrees at Landlord's sole
cost and expense, to as soon as reasonably possible restore the Premises to a
complete unit of like quality and character as existed prior to the
condemnation.
All awards for the taking of any part of the Premises or any payment
made under the threat of the exercise of the power of eminent domain shall be
the property of the Landlord, whether made as compensation for the diminution of
the value of the leasehold or for the taking of the fee or as severance damages;
provided, however, that Tenant shall be entitled to any award for loss of or
damage to Tenant's trade fixtures and removable personal property, good will and
going-concern value.
Rent shall be abated or reduced during the period from the date of
taking until the completion of restoration by Landlord, but all other
obligations of Tenant under this Lease shall remain in full force and effect.
The abatement or reduction of the rent shall be based on the extent to which the
restoration interferes with Tenant's use of the Premises.
17. ASSIGNMENT AND SUBLETTING.
Landlord's rights under this Lease may be assigned or conveyed without
notice to Tenant, but such assignment or conveyance shall not relieve Landlord
of any of its obligations hereunder and shall not be valid as to Tenant until
ten (10) days after Tenant receives written notice thereof. Tenant shall not
voluntarily or by operation of law assign, transfer, sublet, mortgage, or
otherwise transfer or encumber all or any part of Tenant's interest in this
Lease or in the Premises without Landlord's prior written consent which consent
shall not be unreasonably withheld. Any attempted assignment, transfer,
mortgage, encumbrance, or subletting without such consent shall be void and
shall constitute a breach of this Lease. Tenant's extension rights in this Lease
Agreement are not assignable except in connection with a sale of Tenant or
Tenant's assets. Regardless of Landlord's consent, no subletting or assignment
shall release Tenant of Tenant's obligation to pay the rent and to perform all
other obligations to be performed by Tenant hereunder for the term of this
Lease. The acceptance of rent by Landlord from any other person shall not be
deemed a waiver by Landlord of any provision hereof. Consent to one assignment
or subletting shall not be deemed consent to any subsequent assignment or
subletting.
18. DEFAULT
(a) Events of Default.
The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant:
(1) Failure to pay rent when due, if the failure continues for
five (5) days after written notice has been given to Tenant.
(2) Tenant shall be considered in default under the Lease for
the abandonment of the Premises if the Premises are not kept in an orderly
condition and the rent is not paid in accordance with the terms of the Lease
within the grace periods provided in paragraphs (1) and (3) of this section.
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(3) Failure to perform any other provision of this Lease if
the failure to perform is not cured within thirty (30) days after written notice
thereof has been given to Tenant by Landlord. If the default cannot reasonably
be cured within said thirty (30) day period, Tenant shall not be in default
under this Lease if Tenant commences to cure the default within the thirty (30)
day period and diligently prosecutes the same to completion.
(4) The making by Tenant of any general assignment, or general
arrangement for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy unless the same is dismissed
within sixty (60) days; the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in the Lease, where possession is not restored to Tenant
within thirty (30) days; or the attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at the Premises or of Tenant's
interest in the Lease, where such seizure is not discharged within thirty (30)
days.
Notices given under this paragraph shall specify the alleged default
and the applicable lease provisions, and shall demand that Tenant perform the
provisions of this Lease or pay the rent that is in arrears as the case may be,
within the applicable period of time. No such notice shall be deemed a
forfeiture or a termination of this Lease unless Landlord so elects in the
notice.
(b) Landlord's Remedies.
The Landlord shall have the following remedies if Tenant
commits a default under this Lease. These remedies are not exclusive but are
cumulative and in addition to any remedies now or hereafter allowed by law.
Landlord can continue this Lease in full force and effect, and the
Lease will continue in effect so long as Landlord does not terminate Tenant's
right to possession, and the Landlord shall have the right to collect rent when
due. During the period that Tenant is in default, Landlord can enter the
Premises and relet them, or any part of them, to third parties for Tenant's
account. Tenant shall be liable immediately to the Landlord for all costs the
Landlord incurs in reletting the Premises, including, without limitation,
brokers' commissions, expenses of remodeling the Premises required by the
reletting, and like costs. Reletting can be for a period shorter or longer than
the remaining term of this Lease. Tenant shall pay to Landlord the rent due
under this Lease on the dates the rent is due, less the rent Landlord receives
from any reletting. No act by Landlord allowed by this paragraph shall terminate
this Lease unless Landlord notifies Tenant that Landlord elects to terminate
this Lease. After Tenant's default and for so long as Landlord has not
terminated Tenant's right to possession of the Premises, if Tenant obtains
Landlord's consent, Tenant shall have the right to assume or sublet its interest
in the Lease, but Tenant shall not be released from liability. Landlord's
consent to the proposed assignment or subletting shall not be unreasonably
withheld.
If Landlord elects to relet the Premises as provided in this paragraph,
any rent that Landlord receives from such reletting shall apply first to the
payment of any indebtedness from Tenant to Landlord other than the rent
14
due from Tenant to Landlord; secondly, to all costs, including maintenance,
incurred by Landlord in such reletting; and third, to any rent due and unpaid
under this Lease. After deducting the payments referred to in this paragraph,
any sum remaining from the rent Landlord receives from such reletting shall be
held by Landlord and applied in payment of future rent as rent becomes due under
this Lease. In no event shall tenant be entitled to any excess rent received by
Landlord. If, on the date rent is due under this, Lease, the rent received from
the reletting is less than the rent due on that date, Tenant shall pay to
Landlord, in addition to the remaining rent due, all costs, including
maintenance, that Landlord shall have incurred in reletting that remain after
applying the rent received from the reletting as provided in this paragraph.
If Tenant is in default and such default is continuing, Landlord can,
at its option, terminate Tenant's right to possession of the Premises at any
time. No act by Landlord other than giving written notice to Tenant shall
terminate this Lease. Acts of maintenance or efforts to relet the Premises shall
not constitute a termination of Tenant's right to possession. In the event of
such termination, Landlord has the right to recover from Tenant:
(1) The unpaid rent that had been earned at the time of the termination
of this Lease;
(2) The present value (using a discount factor equal to treasury rates
for a comparable period) of the amount of rent that would have been due under
the lease from the time of termination to the end of the term of this Lease
Agreement in excess of the Fair Market Rental Value of the Premises;
(3) Notwithstanding Article 18(b)(2) above, Landlord, at its option,
may defer terminating the Lease until such time as Landlord has relet the
Premises. In such case, Landlord has the right to recover from the Tenant the
amount of rent that would have been due under the Lease from the time of the
determination less the proceeds attributable to the reletting of the Premises;
(4) Any other amount, including court costs, necessary to compensate
Landlord for all detriment proximately caused by Tenant's default;
(5) Any damage or loss of rent sustained by Landlord may be recovered
by Landlord, at Landlord's option, at the time of the reletting or in separate
actions from time to time as said damage shall have been ascertained or, at
Landlord's option, may be deferred until the expiration of the Term (in which
event Tenant hereby agrees that the cause of action shall not be deemed to have
accrued until the date of expiration of the Term). The provisions contained in
this Article 18(b)(5) 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.
Landlord at any time after Tenant commits a default, after notice to
Tenant can cure the default at Tenant's cost and expense. If Landlord at any
time, by reason of Tenant's default, pays any sum or does any act that requires
the payment of any sum, the sum paid by Landlord shall be due immediately from
Tenant to Landlord at the time the sum is paid, and if paid at a later date
shall bear interest at the maximum rate an individual is permitted by law to
charge from the date the sum is paid by Landlord until
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Landlord is reimbursed by Tenant. The sum, together with interest thereon, shall
be considered additional rent.
19. SIGNS.
Tenant shall not have the right to place, construct or maintain any
sign, advertisement, awning, banner, or other exterior decorations on the
building or property of the Landlord or other improvements that are a part of
the Premises (except those existing on the date hereof) without Landlord's
prior, written consent. Any signs that are placed on the Landlord's property or
the Premises shall be at the sole expense of Tenant and shall conform with all
applicable zoning laws. Tenant agrees to maintain its signs in good repair, to
remove its signs at the end of the term or any intended term, repairing any
damage caused by such removal, and to hold Landlord harmless from any loss, cost
or damages resulting from the erection, existence, maintenance or removal of
Tenant's signs.
20. SUBORDINATION.
This Lease, at Landlord's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the real property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewal,
modifications, and extensions thereof. Notwithstanding any such subordination,
Tenant's right to quiet possession of the Premises and other rights under this
Lease shall not be disturbed and shall be recognized if Tenant is not in default
and so long as Tenant shall pay the rent and observe and perform all the other
provisions of this Lease within the periods of grace provided for herein, unless
this Lease is otherwise terminated pursuant to its terms. If any mortgagee,
trustee, or ground lessor shall elect to have this Lease prior to the lien of
its mortgage or deed of trust or ground lease, and shall give written notice
thereof to Tenant, this Lease shall be deemed prior to such mortgage, deed of
trust or ground lease, whether this Lease is dated prior to or subsequent to the
date of such mortgage, deed of trust or ground lease, or the date of recording
thereof. Tenant agrees to execute any documents required to effect such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust, or ground lease, as the case may be, and failing to do so within ten (10)
days after written demand from Landlord does hereby make, constitute and
irrevocably appoint Landlord as Tenant's attorney in fact and in Tenant's name,
place and stead to do so.
21. SURRENDER.
On the last day of the term hereof, or on any sooner termination,
Tenant shall surrender the Premises to Landlord in good condition, broom clean,
ordinary wear and tear and casualty damage excepted. Tenant shall repair any
damage to the Premises occasioned by its use thereof, or by the removal of
Tenant's trade fixtures, furnishings and equipment which repair shall include
the patching and filling of holes and repair of structural damage.
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Tenant shall remove all of its personal property and fixtures on the Premises
prior to the expiration of the term of this Lease and if required by Landlord
pursuant to the ALTERATIONS AND ADDITIONS section above, any alterations,
improvements or additions made by Tenant to the Premises. If Tenant fails to
surrender the Premises to Landlord on the expiration of the Lease as required by
this paragraph, Tenant shall hold Landlord harmless from all damages resulting
from Tenant's failure to vacate the Premises, including, without limitation,
claims made by any succeeding tenant resulting from Tenant's failure to
surrender the Premises.
22. HOLDING OVER.
If the Tenant, with the Landlord's consent, remains in possession of
the Premises after the expiration or termination of the term of this Lease, such
possession by Tenant shall be deemed to be a tenancy from month-to-month at a
rental of one hundred and fifty percent (150%) the amount of the last monthly
rental plus all other charges payable hereunder, upon all the provisions of this
Lease applicable to month-to-month tenancy. If Landlord's consent to holding
over is not given, Tenant shall become a tenant-at-sufferance.
23. BINDING ON SUCCESSORS AND ASSIGNS.
The terms, conditions and covenants of this Lease shall be binding upon
and shall inure to the benefit of each of the parties hereto, their heirs,
personal representatives, successors and permitted assigns.
24. NOTICES.
Whenever under this Lease a provision is made for any demand, notice or
declaration of any kind, it shall be in writing and served either personally or
sent by registered or certified United States mail, postage prepaid, addressed
at the addresses as set forth below:
TO LANDLORD AT: CONTROL DATA SYSTEMS, INC.
Attention: Director, Real Estate
4201 Lexington Avenue North
cc : General Counsel
TO TENANT AT: DYNAMARK, INC.
Attention: Mr. K. Rapp
4209 Fernwood Avenue
Arden Hills, Minnesota 55440
Such notice shall be deemed to be received within forty-eight (48)
hours from the time of mailing, if mailed as provided for in this paragraph.
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25. LANDLORD'S RIGHT TO INSPECTIONS.
Landlord and Landlord's agent shall have the right to enter the
Premises upon 24 hours notice at reasonable times for the purpose of inspecting
same, showing the same to prospective purchasers or lenders, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which the Premises are a part as Landlord may deem necessary or
desirable. Landlord may at any time place on or about the Premises any ordinary
"For Sale" signs and Landlord may at any time during the last ninety (90) days
of the term of this Lease place on or about the Premises any ordinary "For Sale
or Lease" signs, all without rebate of rent or liability to Tenant.
26. CHOICE OF LAW.
This Lease Agreement shall be constructed, interpreted and enforced
according to the laws of the state of Minnesota.
27. ATTORNEY'S FEES.
If either Landlord or Tenant becomes a party to any litigation or
arbitration concerning this Lease, the Premises, or the building or other
improvements in which the Premises are located, by reason of any act or omission
of the other party or its authorized representatives, and not by reason of any
act or omission of the party that becomes a party to that litigation or any act
or omission of its authorized representatives, the party that causes the other
party to become involved in the litigation shall be liable to that party for
reasonable attorney's fees and court costs incurred by it in the litigation.
If either party commences an action against the other party arising out
of or in connection with this Lease, the prevailing party shall be entitled to
have and recover from the losing party reasonable attorney's fees and costs of
suit.
28. LANDLORD'S LIABILITY.
The obligations contained in this Lease to be performed by Landlord
shall be binding upon the Landlord's successors and assigns, only during their
respective periods of ownership.
29. WAIVERS.
No waiver by Landlord of any provision hereof shall be deemed a waiver
of any other provision hereof or of any subsequent breach by Tenant of the same
or any other provision. Landlord's consent to or approval of any act shall not
be deemed to render unnecessary the obtaining of Landlord's consent to or
approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the
18
particular rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of its acceptance of such rent.
30. INCORPORATION OF PRIOR AGREEMENTS.
This Lease contains all agreements of the parties with respect to any
matter mentioned herein. No prior agreement or understanding pertaining to any
such matter shall be effective. This Lease may be modified only in writing, and
signed by the parties in interest at the time of such modification.
31. TIME.
Time is of the essence in this Lease.
32. SEVERABILITY.
The unenforceability, invalidity, or illegality of any provision of
this Lease shall not render the other provisions hereof unenforceable, invalid
or illegal.
33. ESTOPPEL CERTIFICATES.
Each party, within ten (10) days after notice from the other party,
shall execute and deliver to the other party a certificate stating that this
Lease is unmodified and in full force and effect, or in full force and effect as
modified, and stating the modification. The certificate shall also state the
amount of minimum monthly rent, the dates to which rent has been paid in
advance, and the amount of any security deposit or prepaid rent, if any, as well
as acknowledging that there are not, to that party's knowledge, any uncured
defaults on the part of the other party, or specifying such defaults, if any,
which are claimed. Failure to deliver such a certificate within the ten (10) day
period shall be conclusive upon the party failing to deliver the certificate to
the benefit of the party requesting the certificate that this Lease is in full
force and effect, that there are no uncured defaults hereunder, and has not been
modified except as may be represented by the party requesting the certificate.
34. ACCEPTANCE OF PREMISES.
Tenant acknowledges that it is currently in occupancy of the Premises
and accepts them in an "as is" condition with no renovations or Tenant
Improvements to be performed by the Landlord. If the use or occupancy of the
Premises by Tenant causes the Landlord to be required under the ADA to make
additional modifications or alterations to the Premises or any of the other
areas of the building or its entrances and parking areas, then Tenant shall pay
the cost of such additional modifications or alterations subject to the
provisions of Section 9. Landlord represents and warrants that, to the best of
19
Landlord's knowledge that, except for those areas listed on Exhibit D, the
Premises do not contain any asbestos containing materials.
35. COVENANTS AND CONDITIONS.
Each provision of this Lease performable by Tenant shall be deemed both
a covenant and a condition.
36. SINGULAR AND PLURAL.
When required by the context of this Lease, the singular shall include
the plural.
37. USE.
Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated. Tenant shall fully comply at its sole expense with all laws,
statutes, ordinances and governmental rules, regulations or requirements now in
force or which hereafter may be in force other than such laws or regulations
which require the making of structural changes, changes to the Premises' life
safety system, plumbing, air conditioning, heating and electrical systems.
Tenant shall not be responsible for compliance with any provisions governing
cleanup, remediation, removal or restoration work required by any federal.
state, or local government agency or political subdivision because of hazardous
material present in the soil or ground water on or under the premises except to
the extent that if such cleanup, remediation, removal or restoration is
attributable to Tenant's actions or failure to act. In such case, tenant shall
be fully responsible for compliance and shall indemnify and hold landlord
harmless for any costs, expenses or damages attributable thereto.
38. ADDENDUM.
Any addendum or exhibit attached hereto and either signed or initialed
by the parties shall be deemed a part hereof and shall supersede any conflicting
terms or provisions contained in this Lease.
39. BROKER.
Landlord and Tenant each represent and warrant to the other that it is
not aware of any brokers or finders who may claim a fee or commission in
connection with the consummation of the transactions contemplated by this
Agreement except for The Shellard Group whose fee shall be paid by Landlord. The
said fee for The Shellard Group shall be one dollar ($1.00) per rentable square
foot. Said fee will be payable within thirty (30) days after the Commencement
Date of this Lease Agreement.
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If any other claims for brokers' or finders' fees in connection with
the transactions contemplated by this Agreement arise, then Tenant agrees to
indemnify, protect, hold harmless and defend Landlord (with counsel satisfactory
to Landlord) from and against any such claims if they shall be based upon any
statement, representation or agreement made by Tenant, and Landlord agrees to
indemnify, protect, hold harmless and defend Tenant (with counsel satisfactory
to Tenant) if such claims are based upon any statement, representation or
agreement made by Landlord.
40. ENVIRONMENTAL COMPLIANCE AND REQUIREMENTS
Tenant shall fully comply with the requirements set forth in Exhibit B
attached hereto and incorporated herein.
41. SOLICITATION
Landlord and Tenant agree, that for the term of this Agreement, neither
Landlord or Tenant shall intentionally solicit to hire the employees of the
other party without advance written approval of the other party.
42. QUIET ENJOYMENT
Landlord covenants that Tenant, upon performing the terms, conditions
and covenants of this lease, shall have quiet and peaceful possession of the
Premises as against any person.
43. FAIR DEALING AND CONSENTS
It is mutually understood and agreed to between Landlord and Tenant
that each party will act fairly and reasonably with the other in all matters
pertaining to this Lease Agreement. Where a consent or approval is required, it
will not be unreasonably withheld, denied or delayed by either party.
44. FORCE MAJEURE
Landlord shall be excused for the period of any delay in the
performance of any obligations hereunder, when prevented from so doing by cause
or causes beyond Landlord's control which shall include, without limitation, all
labor disputes, civil commotion, war, war-like operations, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations or
controls, fire or other casualty, inability to obtain any material services or
through acts of God. Tenant shall similarly be excused for delay in the
performance of obligations hereunder provided:
(a) nothing contained in this Paragraph or elsewhere in this Lease
shall be deemed to excuse or permit any delay in the payment of any sums of
money required hereunder, or any delay in the cure of any default which may be
cured by the payment of money;
(b) no reliance by Tenant upon this Paragraph shall limit or restrict
in any way Landlord's right of self-help as provided in this Lease; and
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(c) Tenant shall not be entitled to rely upon this Paragraph unless it
shall advise Landlord in writing, of the existence of any force majeure
preventing the performance of an obligation of Tenant within five (5) days after
becoming aware of the delay resulting from force majeure.
45. SECURITY DEPOSIT
Landlord acknowledges that Tenant has paid Landlord a Security Deposit
of thirty-three thousand five hundred dollars ($33,500.00) prior to the
Commencement Date of this Lease Agreement. If Tenant is in arrears in its Rent
payment or other financial obligations to Landlord, subject Security Deposit may
be applied to current Rent or such other financial obligations owed to Landlord
and Tenant will immediately replenish the Security Deposit in full. After August
1, 1997, if Tenant is not in default, is current in its Rent payments to
Landlord and has met its full financial obligations, within sixty (60) days
after receipt of a written request from Tenant, Landlord will issue a credit of
subject Security Deposit to Tenant's monthly rental payment due Landlord.
46. RIGHT OF NOTICE TO PURCHASE PROPERTY
Not less than sixty (60) days prior to accepting any offer to purchase
or making any offer to sell the Premises or the property of which the Premises
are a part, Landlord shall notify Tenant in writing and advise Tenant of the
price at which Landlord intends to list such property or otherwise is willing to
accept for sale of such property. Landlord agrees to entertain in good faith any
purchase offer made by Tenant for such property after giving such notice, but
this provision shall not be deemed to be an agreement for the sale of any
property on any terms.
The parties hereto have executed this Lease on the date first above written.
TENANT: DYNAMARK, INC.
BY: J.R. Schoeller
------------------------------------
TITLE: Senior Vice President
----------------------------------
DATE: April 27, 1995
----------------------------------
LANDLORD: CONTROL DATA SYSTEMS, INC.
BY: W.D. Seiler
------------------------------------
TITLE: Director of Real Estate
----------------------------------
DATE:
----------------------------------
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EXHIBIT A
PREMISES
(This Exhibit consists of a small-scale map of the leased premises relative to
nearby buildings and roads.)
EXHIBIT B
ENVIRONMENTAL COMPLIANCE AND REQUIREMENTS
1.01 DEFINITIONS. As used in this Appendix and the Lease the following terms
shall have the following meanings:
(a) "CLAIMS" shall mean:
(1) any and all suits, demands, actions, fines, penalties,
claims, enforcement, clean-up, removal, closure plans, contribution or other
actions or proceedings, liens, or other claims by any Governmental Entity at any
time from and after the Commencement Date threatened, instituted or claimed;
(2) any and all claims, liabilities, costs, expenses, damages,
attorneys' fees, experts' fees, costs or expenses arising in connection with any
death or injury to any person or damage to any property occurring on or after
the Commencement Date;
(3) any and all personal injury, property damage, nuisance,
tort, or other claims, actions, or demands arising on or after the Commencement
Date brought at any time by any third parties; and
(4) any and all other judgments, claims, losses, damages,
liabilities, deficiencies, injunctions, attorneys fees, experts' fees, costs or
expenses imposed, threatened, paid or incurred at any time from and after the
Commencement Date arising out of Tenant's use of the Property, whether
foreseeable or unforeseeable, suspected or unsuspected, conditional or
unconditional.
(b) "ENVIRONMENTAL LAWS" shall mean the Comprehensive Environmenta
Response, Compensation and Liability Act, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U. S. C. Section 9601, et. seq.; the
Resource Conservation and Recovery Act, 42 U. S. C. Section 6901, et. seq.; the
Hazardous Materials Transportation Act, 49 U. S. C. 1802, et. seq.; the Toxic
Substances Control Act, 15 U. S. C. Section 2601, et. seq.; the Federal Water
Pollution Control Act, 33 U. S. C. 1251, et. seq.; the Clean Water Act, 33 U. S.
C. Section 1321, et. seq.; the Clean Air Act, 42 U. S. C. Section 7401, et.
seq.; the Minnesota Environmental Response and Liability Act, Minn. Stat.
115B.01, et. seq.; the Minnesota Petroleum Tank Release Cleanup Act, Minn. Stat.
115C.01, et. seq.; and any other federal, state, county, municipal, local or
other statute, law, ordinance, rule, or regulation which may relate to or deal
with human health or the environment, all as may be from time to time amended or
subsequently enacted.
(c) "GOVERNMENTAL ENTITY" shall mean any local, state, federal,
foreign, or international governmental authority, agency, or entity, including,
but not limited to, any court, tribunal, or panel.
(d) "HAZARDOUS SUBSTANCE ACTIVITY" shall mean the generation,
possession, transportation, transfer, recycling, storage, use, treatment,
manufacture, investigation, removal, remediation, release, exposure of others
to, sale, distribution, or disposal (including, but not limited to, landfilling,
incineration, abandonment, evaporation, or dilution) of any Hazardous Substance
or any product containing a Hazardous Substance.
(e) "HAZARDOUS SUBSTANCES" shall mean any material or substance which
is defined or included in the definition of a hazardous or toxic material,
substance or waste, or a pollutant or contaminant, pursuant to any Environmental
Law.
1.02 USE OF HAZARDOUS SUBSTANCES. From and after the Commencement Date, Tenant
shall conduct all Hazardous Substance Activity in compliance with Environmental
Laws.
1.03 REPORTS. At Tenant's expense, Tenant will comply with any period reporting
requirements concerning Hazardous Substance Activity. If required, Tenant shall
file reports on any such Activities with the appropriate Governmental Entity.
If, at any time during the Term of this Lease, any Governmental Entity should
request a report on any Hazardous Substances Tenant has used, stored or disposed
of on or from the Property, Tenant will either cause said report to be made as
soon as possible at its own cost and expense, or, if not made within thirty (30)
days of Landlord's request for the same, will reimburse Landlord, as Additional
Rent, for Landlord's cost of obtaining said report.
1.04 PERMITS. Tenant shall obtain, at Tenant's expense, all approvals, whether
in the form of a license, permit, certification, or other authorization,
required by any Governmental Entity with respect to Hazardous Substance
Activity, maintain all such required approvals for the duration of the Lease
Term, and provide such evidence of such continuing compliance as Landlord may
from time to time request.
1.05 REMOVAL OF STORAGE TANKS. At the expiration of this Lease, Tenant shall
remove, at Tenant's expense, any tanks for storage of Hazardous Substances
installed by Tenant in compliance with all Environmental Laws.
1.06 INDEMNIFICATION OF LANDLORD. Tenant agrees to absolutely indemnify, defend
and hold Landlord harmless of and from any Claims arising out of or in any
manner related to all Hazardous Substance Activities conducted or occurring on
the Property in connection with Tenant's use or arising out of or related to
Hazardous Substances introduced on the Property by Tenant or its employees,
invitees, visitors, or agents during the Lease Term. This indemnification
obligation shall survive the expiration or termination of this Lease.
EXHIBIT C
OPERATING COSTS
Ground Maintenance/Snow Plowing $0.18
Roof/Road Repair $0.36
Chilled Water Availability $0.16
Mechanical/Electrical Maintenance $0.46
Building Insurance $0.04
Security Services $0.51
Real Estate Taxes $1.28
Property Management $0.30
-----
$3.29
EXHIBIT D
ASBESTOS CONTAINING MATERIALS
Description % Asbestos
----------- ----------
Floor Tile 1%
Floor Tile Adhesive 20%
Chilled Water Valve 25%
Chilled Water Elbow 20%
The above information was extracted from a sample analysis report
conducted by Pabershaw & Pike, Inc. dated November 3, 1986.