THIS FIRST
AMENDMENT TO LEASE (this “Amendment”) is made as of the
31 st
day of March, 2009, by and between
Windsor Plaza, LLC , a Minnesota limited liability company,
as landlord (hereinafter “Landlord”) and Virtual
Radiologic Corporation , a Delaware corporation, as tenant
(hereinafter “Tenant”)
WHEREAS, Landlord
and Tenant entered into that certain Lease dated November 30,
2007 (the “Lease”), covering certain premises in
Windsor Plaza in the City of Eden Prairie, County of Hennepin,
State of Minnesota, as described in the Lease
(“Premises”); and
WHEREAS, the
parties to this Amendment hereby wish to amend the Lease as set
forth in this Amendment;
NOW, THEREFORE,
for and in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.
Definitions . Capitalized terms used, but not defined,
herein have the meanings ascribed to them in the Lease, unless
defined otherwise herein.
2. Rent
for VRC-Dedicated Electrical Room and VRC-Generator Room .
Attached hereto as Exhibit A is the updated garage
floor plan for the Project (“Garage Level Floor Plan”).
The Garage Level Floor Plan identifies, among other items, the
VRC-Generator Room and the UPS Room. The UPS Room is the
VRC-Dedicated Electrical Room (as said term is defined in the
Lease), and will be hereinafter defined as the UPS Room. The
location and size of the VRC-Generator Room and UPS Room identified
on Exhibit A attached hereto replaces any reference to
said rooms on Exhibits Q and R of the Lease.
Pursuant to
Section 2.7 of the Lease, Tenant will pay, in addition to the
Base Rent for the Leased Premises (as set forth in the Schedule of
Basic Terms (E)), Twelve and No/100 Dollars ($12.00) per
square foot in gross rent for the VRC-Generator Room and UPS Room,
which amount shall increase by two percent (2%) per year
(cumulatively) during the Lease Term, effective as of each
anniversary of the Rent Commencement Date. Said gross rent will be
calculated as follows:
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a.
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the
UPS Room is 625 square feet. The gross rent to be paid by Tenant
for said room is based on 419 square feet (67% of the total square
footage), which is a stipulated number in recognition of the fact
that the UPS (as defined below) will also be used by Landlord to
power the life safety systems of the Project. The 419 square feet
figure equates to Tenant’s payment of gross rent for the UPS
Room initially being $5,025.00 per year or $419.00 per month, to be
paid along with the Base Rent for the Leased Premises
for
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the
Lease Term. Tenant and Landlord will each have access to the UPS
Room at all times.
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b.
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the
VRC-Generator Room is 1,350 square feet. The gross rent to be paid
by Tenant for said room is based on 905 square feet (67% of the
total square footage), which is a stipulated number in recognition
of the fact that the Generators (as defined below) will also be
used by Landlord to power the life safety systems of the Project.
The 905 square feet figure equates to Tenant’s payment of
gross rent for the VRC-Generator Room initially being $10,860 per
year or $905.00 per month, to be paid along with the Base Rent for
the Leased Premises for the Lease Term. Landlord and Tenant will
each have access to the VRC-Generator Room at all times.
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The obligation to
pay said gross rent will commence on the Rent Commencement Date,
and be paid pursuant to Section 2.3 of the Lease.
3.
Generators . Landlord and Tenant acknowledge that they
jointly determined after the Effective Date (and following
completion of Landlord’s initial plans for the installation
of equipment to supply power for the base building life safety
systems for the Project) that three (3) 250kVA generators, totaling
750kVA (collectively “Generators”) and uninterruptable
power supply equipment (the “UPS”) are needed for the
operation of (i) Tenant’s business within the Leased
Premises (“Tenant’s Generator/UPS Use”) and
(ii) the base building life safety systems of the Project
(“Landlord’s Generator/UPS Use”). The term
“Generator” or “Generators” also includes
any replacement Generators. Landlord’s initial plans called
for only one (1) 166kVA generator to satisfy Landlord’s
Generator/UPS Use. As a result, the Landlord and Tenant agree to
the following with respect to the installation, maintenance,
repair, use and ownership of the Generators, the UPS and related
fixtures and equipment:
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a.
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Tenant will contract directly with
Amcon Construction, LLC (“Amcon”), the general
contractor for the Project (as well as Tenant’s Work), to
install the Generators in the VRC-Generator Room and the UPS in the
UPS Room. A summary of the improvements required for operation of
the Generators and the UPS is set forth on Exhibit B
(collectively referred to as “Generator/UPS
Improvements”) attached hereto and incorporated herein. The
cost of the Generator/UPS Improvements will be paid directly by
Tenant to Amcon, and Landlord will have no responsibility
therefor.
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b.
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Landlord’s Work is hereby
amended to exclude any of the items on Exhibit B which
are part of the Generator/UPS Improvements. Following installation
of the Generator/UPS Improvements, Tenant will own the Generators
and the UPS (collectively, the “Tenant Generator/UPS
Equipment”), and Landlord will own all other Generator/UPS
Improvements, for purposes of depreciation and insurance (and any
applicable provision of the Lease relating to Tenant’s
property).
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c.
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During the Lease Term, Landlord will
be responsible for maintaining, repairing and replacing the
Generator/UPS Improvements, which Landlord shall at all times keep
in good working order, condition and repair. Tenant will reimburse
Landlord for sixty-seven percent (67%) of the costs and expenses
for the same within thirty (30) days after receiving invoices
from Landlord. If not reimbursed within said thirty (30) days,
then Landlord will have all rights and remedies under the Lease,
arising out of a monetary default by
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