Exhibit 10.30
THIS LEASE AGREEMENT is made by and between LIBERTY
PROPERTY LIMITED PARTNERSHIP , a Pennsylvania limited
partnership (“ LANDLORD ”) with its address at
10400 Viking Drive, Suite 130, Eden Prairie, Minnesota 55344,
and CNS, INC. , a corporation organized under the laws
of __________________ (“ TENANT ”) with its
address at 4400 West 78th Street, Bloomington,
Minnesota 55435, and is dated as of the date on which this
lease has been fully executed by Landlord and Tenant.
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1.
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Summary
of Terms and Certain Definitions .
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(a)
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“
PREMISES ”:
Approximate
rentable square feet: 73,000 (Section 2)
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(b)
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“
BUILDING ”: (§2)
Approximate rentable square feet:
93,000
Address:
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(c)
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“
TERM
”: (§5 One
hundred twenty (120)) months plus any partial month from the
Commencement Date
until
the first day of the first full calendar month during the
Term
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(i)
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“
COMMENCEMENT DATE ”: See
Rider
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(ii)
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“
EXPIRATION DATE ”: See Section
5
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(d)
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Minimum
Rent (§6)
& Operating Expenses (§7)
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(i)
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“
MINIMUM ANNUAL RENT ”: $682,550.04
(Six hundred eighty-two thousand five hundred fifty and 04/100
Dollars), payable in monthly installments of $56,879.17 (Fifty-six
thousand eight hundred seventy-nine and 17/100 Dollars), increased
as follows:
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Lease Year
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Annual
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Monthly
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Lease Year
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Annual
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Monthly
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2
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$
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696,201.00
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$
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58,016.75
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6
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$
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753,590.40
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$
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62,799.20
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3
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710,125.08
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59,177.09
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7
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768,662.16
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64,055.18
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4
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724,327.56
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60,360.63
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8
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784,035.36
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65,336.28
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5
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738,814.08
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61,567.84
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9
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799,716.12
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66,643.01
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10
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815,710.44
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67,975.87
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(ii)
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Estimated “ ANNUAL OPERATING EXPENSES
”: $173,010.00 (One Hundred Seventy-three
Thousand Ten and no/l00 Dollars), payable in monthly installments
of $14,417.50 (Fourteen Thousand Four Hundred Seventeen and 50/100
Dollars), based on estimated annual operating expenses of S2.37 per
rentable square feet for calendar year 2000, subject to adjustment
(§7(a))
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(e)
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“
PROPORTIONATE SHARE ” (§7(a)): 78.5% (Ratio of
approximate rentable square feet in the Premises to approximate
rentable square feet in the Building)
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(f)
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“
USE ” (§4): general office, warehouse and
assembly
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(g)
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“
SECURITY DEPOSIT ” (§28): None
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(h)
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CONTENTS : This lease
consists of the Index, pages 1 through 11 containing
Sections 1 through 37
and
the following, all of which are attached hereto and made a part of
this lease:
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Exhibits:
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“A”
– Plan showing Premises
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“E”
– Drawings
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“B”
– Commencement Certificate Form
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“F”
– Exclusions from Operating
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“C”
– Building Rules Expenses
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“G”
– TI Plans
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“D”
– Estoppel Certificate Form
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2.
Premises . Landlord hereby leases
to Tenant and Tenant hereby leases from Landlord the Premises as
shown on preliminary floor plan attached hereto as Exhibit
“A” within the Building to be constructed pursuant to
the provisions of Section 29 hereof (the Building and the
lot on which it is located, the “ PROPERTY ”),
together with the nonexclusive right with Landlord and other
occupants of the Building to use all areas and facilities provided
by Landlord for the use of all tenants in the Property including
any driveways, sidewalks and parking, loading and landscaped areas
(the “ COMMON AREAS ”). The Premises will
consist of approximately 73,000 rentable square feet (29,340
rentable square feet devoted to office use and 43,660 rentable
square feet devoted to warehouse use). Upon substantial completion
of the Premises and Building, (i) at the request of either
party, Landlord and Tenant shall enter into an amendment to this
Lease replacing Exhibit “A” with a drawing outlining
the Premises as constructed, and (ii) Landlord shall cause
Landlord’s architect to determine the as-built square footage
of the Premises and Building, and, if the square footages, as
measured, vary from the square footages set forth in
Section 1 of this Lease, the parties shall enter into
an appropriate amendment to this lease incorporating the actual
square footage, with a corresponding pro rata adjustment to Minimum
Annual Rent and Tenant’s Proportionate Share.
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3.
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Acceptance of Premises
. See the provisions of
Section 32 below.
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(a) Permitted Use.
Tenant shall occupy and use the Premises for and
only for the Use specified in Section 1(f) above and in such a
manner as is lawful and will not create any nuisance or otherwise
interfere with any other tenant’s normal operations or the
management of the Building. Landlord represents that, as of the
Commencement Date, the Property will be zoned to permit the Use
specified in Section 1(f) above. All Common Areas shall be
subject to Landlord’s exclusive control and management at all
times. Tenant shall not use or permit the use of any portion of the
Property for outdoor storage or installations outside of the
Premises nor for
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any use that would interfere with
any other person’s use of any portion of the Property outside
of the Premises.
(b) Compliance.
Landlord represents that, as of the date of this
lease, there is no action required with respect to the Premises or
Common Areas under any laws (including Title III of the ADA),
ordinances, notices, orders, rules, regulations and requirements
applicable to the Premises or to the Common Areas. From and after
the Commencement Date, Tenant shall comply promptly, at its sole
expense, (including making any alterations or improvements) with
all laws (including the ADA), ordinances, notices, orders, rules,
regulations and requirements regulating the Property during the
Term which impose any duty upon Landlord or Tenant specifically
with respect to Tenant’s use, occupancy or alteration of, or
Tenant’s installations in or upon, the Property including the
Premises, (as the same may be amended, the “ LAWS AND
REQUIREMENTS ”) and the building rules attached as
Exhibit “ C ”, as amended by Landlord from
time to time (the “ BUILDING RULES ”).
Notwithstanding the foregoing, Tenant shall not be required to
comply with the Laws and Requirements with respect to the footings,
foundations, structural steel columns and girders forming a part of
the Property unless the need for such compliance arises out of
Tenant’s specific use, occupancy or alteration of the
Property, or by any act or omission of Tenant or any employees,
agents, contractors, licensees or invitees (“ AGENTS
”) of Tenant. With respect to Tenant’s obligations as
to the Property, other than the Premises, at Landlord’s
option and at Tenant’s expense, Landlord may comply with any
repair, replacement or other construction requirements of the Laws
and Requirements and Tenant shall pay to Landlord all costs thereof
as additional rent. Landlord agrees to enforce the Building Rules
in a uniform and nondiscriminatory manner. No amendment to the
Building Rules shall be effective until the date that is
30 days after the date that Landlord notifies Tenant of the
amendment.
(c) Environmental.
Tenant shall comply, at its sole expense, with
all Laws and Requirements as set forth above, all
manufacturers’ instructions and all requirements of insurers
relating to the treatment, production, storage, handling, transfer,
processing, transporting, use, disposal and release of hazardous
substances, hazardous mixtures, chemicals, pollutants, petroleum
products, toxic or radioactive matter (the “ RESTRICTED
ACTIVITIES ”). Tenant shall deliver to Landlord copies of
all notices, filings, permits and any other material written
communications relating to Tenant’s operations from or to
Tenant and any entity regulating any Restricted
Activities.
(d) Notice.
If at any time during or after the Term, Tenant
becomes aware of any inquiry, investigation or proceeding regarding
the Restricted Activities or becomes aware of any material claims,
actions or investigations regarding the ADA, Tenant shall give
Landlord written notice, within 5 days after first learning
thereof, providing all available information and copies of any
notices.
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5.
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Term . See Section 33
below.
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6.
Minimum Annual Rent . Tenant agrees
to pay to Landlord the Minimum Annual Rent in equal monthly
installments in the amount set forth in Section 1(d) (as
increased at the beginning of each lease year as set forth in
Section 1(d)), in advance, on the first day of each
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calendar month during the Term,
without notice, demand or setoff except as expressly provided for
in this lease, at Landlord’s address designated at the
beginning of this lease unless Landlord designates otherwise;
provided that rent for the first full month shall be paid at the
signing of this lease. If the Commencement Date falls on a day
other than the first day of a calendar month, the rent shall be
apportioned pro rata on a per diem basis for the period from the
Commencement Date until the first day of the following calendar
month and shall be paid on or before the Commencement Date. As used
in this lease, the term “ lease year ” means the
period from the Commencement Date through the succeeding
12 full calendar months (including for the first lease year
any partial month from the Commencement Date until the first day of
the first full calendar month) and each successive 12 month
period thereafter during the Term.
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7.
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Operation
of Property; Payment of Expenses .
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(a) Payment of Operating
Expenses. Tenant shall pay to Landlord the
Annual Operating Expenses in equal monthly installments in the
amount set forth in Section 1(d) (prorated for any partial
month), from the Commencement Date and continuing throughout the
Term on the first day of each calendar month during the Term, as
additional rent, without notice, demand or setoff except as
expressly provided for in this lease; provided that the monthly
installment for the first full month shall be paid at the signing
of this lease. Landlord shall apply such payments to the Operating
Expenses owed to Landlord by Tenant pursuant to the following
Sections 7(b)-(f). The amount of the Annual Operating Expenses
set forth in Section 1(d) represents Tenant’s
Proportionate Share of the estimated Operating Expenses during the
first calendar year of the Term on an annualized basis; from time
to time Landlord may adjust such estimated amount if the estimated
Operating Expenses increase. By April 30th of each year (and
as soon as practical after the expiration or termination of this
lease or at any time in the event of a sale of the Property),
Landlord shall provide Tenant with a statement of the actual amount
of such expenses for the preceding calendar year or part thereof
Landlord or Tenant shall pay to the other the amount of any
deficiency or overpayment then due from one to the other or, at
Tenant’s option, Landlord will credit Tenant’s account
for any overpayment. Tenant’s obligation to pay the Annual
Operating Expenses pursuant to this Section 7 shall survive
the expiration or termination of this lease. The term
“Operating Expenses” in this lease means all amounts
owed to Landlord by Tenant pursuant to the following
Sections 7(b)-(f). Any provision to the contrary in this lease
notwithstanding, Operating Expenses shall not include any of the
items listed on attached Exhibit “F”
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(b) Taxes and Other
Impositions. Tenant shall pay prior to
delinquency all levies, taxes (including sales taxes and gross
receipt taxes), assessments, liens, license and permit fees, which
are applicable to the Term, and which are imposed by any authority
or under any law, ordinance or regulation thereof, or pursuant to
any recorded covenants or agreements, and the reasonable cost of
contesting any of the foregoing (the “ IMPOSITIONS
”) upon or with respect to the Premises, or any improvements
thereto, or directly upon this lease or the Rent (defined in
Section 7(f)) or amounts payable by any subtenants or other
occupants of the Premises, or against Landlord because of
Landlord’s estate or interest herein. Additionally, Tenant
shall pay as aforesaid its Proportionate Share of any Imposition
which is not imposed upon the Premises as a separate entity but
which is imposed upon all or part of the Property or upon the
leases or rents relating to the Property.
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(i) Nothing herein contained shall
be interpreted as requiring Tenant to pay any income, excess
profits or corporate capital stock tax imposed or assessed upon
Landlord, unless such tax or any similar tax is levied or assessed
in lieu of all or any part of any Imposition or an increase in any
Imposition.
(ii) If it shall not be lawful for
Tenant to reimburse Landlord for any of the Impositions, the
Minimum Annual Rent shall be increased by the amount of the portion
of such Imposition allocable to Tenant, unless prohibited by
law.
(iii) If Landlord receives any
rebate, refund or similar payment relating to any Impositions paid
by or charged back to Tenant, Landlord shall promptly pay to Tenant
Tenant’s Proportionate Share of such rebate or refund, net of
any expenses incurred by Landlord in obtaining the same. Tenant may
request that Landlord initiate an action to contest or challenge an
Imposition, and Landlord agrees to consult with Tenant regarding
such contest or challenge and to take such action as Landlord deems
reasonable and appropriate under the circumstances as a result of
such consultation. Tenant shall not initiate any action to contest
any Impositions without Landlord’s prior written
consent.
(i) Property.
Landlord shall keep in effect, and Tenant shall
pay to Landlord its Proportionate Share of the cost of, insurance
against loss or damage to the Building or the Property by fire and
such other casualties as may be included within fire, extended
coverage and special form insurance covering the full replacement
cost of the Building (but excluding coverage of Tenant’s
personal property in, and any alterations by Tenant to, the
Premises), and such other insurance as Landlord may reasonably deem
appropriate or as may be required from time-to-time by any
mortgagee. Landlord shall deliver to Tenant on or before the
Commencement Date, a certificate of insurance evidencing such
coverage and the waiver of subrogation described below.
(ii) Liability.
Tenant, at its own expense, shall keep in effect
comprehensive general public liability insurance with respect to
the Premises and the Property, including contractual liability
insurance, with such limits of liability for bodily injury
(including death) and property damage as reasonably may be required
by Landlord from time-to-time, but not less than a combined single
limit of $1,000,000 per occurrence and a general aggregate limit of
not less than $3,000,000 (which aggregate limit shall apply
separately to each of Tenant’s locations if more than the
Premises); however, such limits shall not limit the liability of
Tenant hereunder. The policy of comprehensive general public
liability insurance also shall name Landlord and Landlord’s
agent as insured parties with respect to the Premises, shall
provide that it is primary with respect to any policies carried by
Landlord and that any coverage carried by Landlord shall be excess
insurance, shall provide that it shall not be cancelable or reduced
without at least 30 days prior written notice to Landlord and
shall be issued in form satisfactory to Landlord. The insurer shall
be a responsible insurance carrier which is authorized to issue
such insurance and licensed to do business in the state in which
the Property is located and which has at all times during the Term
a rating of no less than A VII in the most current edition of
Best’s Insurance
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Reports.
Tenant shall deliver to Landlord on
or before the Commencement Date, and subsequently renewals of, a
certificate of insurance evidencing such coverage and the waiver of
subrogation described below.
(iii) Waiver of Subrogation.
Landlord and Tenant shall have included in their
respective property insurance policies waivers of their respective
insurers’ right of subrogation against the other party. If
such a waiver should be unobtainable or unenforceable, then such
policies of insurance shall state expressly that such policies
shall not be invalidated if, before a casualty, the insured waives
the right of recovery against any party responsible for a casualty
covered by the policy.
(iv) Increase of Premiums.
Tenant agrees not to do anything or fail to do
anything which will increase the cost of Landlord’s insurance
or which will prevent Landlord from procuring policies (including
public liability) from companies and in a form satisfactory to
Landlord. If any breach of the preceding sentence by Tenant causes
the rate of fire or other insurance to be increased, Tenant shall
pay the amount of such increase as additional rent promptly upon
being billed.
(d) Repairs and Maintenance;
Common Areas; Building Management. Except as specifically
otherwise provided in this Section (d), Tenant at its sole
expense shall maintain the Premises in good order and condition,
promptly make all repairs necessary to maintain such condition, and
repair any damage to the Premises caused by Tenant or its Agents.
All repairs made by Tenant shall utilize materials and equipment
which are comparable to those originally used in constructing the
Building and Premises. When used in this Section (d), the term
“repairs” shall include replacements and renewals when
necessary.
(i) Landlord, at its sole expense,
shall make all necessary repairs to the footings, foundations,
structural steel columns and girders forming a part of the
Premises. If Tenant becomes aware of the need for such repair,
Tenant shall promptly notify Landlord thereof.
(ii) Landlord, at Tenant’s
sole expense, shall maintain and repair the HVAC systems
exclusively serving the Premises.
(iii) Landlord shall make all
necessary repairs to the roof, exterior portions of the Premises
and the Building, utility and communications lines, equipment and
facilities in the Building, which serve more than one tenant, and
to the Common Areas, the cost of which shall be an Operating
Expense of which Tenant shall pay its Proportionate Share. If
Tenant becomes aware of the need for such repair, Tenant shall
promptly notify Landlord thereof Landlord shall operate and manage
the Property and shall maintain all Common Areas and any paved
areas appurtenant to the Property in a clean and orderly condition.
Landlord reserves the right to make alterations to the Common Areas
from time to time provided that (A) absent Tenant’s
prior written consent, there shall be no material change in the
nature and extent of the Common Areas and the benefits extended to
the Premises by the Common Areas, and (B) any such alterations
must be completed in a manner so as not to unreasonably interfere
with Tenant’s use of the Common Areas or Tenant’s
business activities within the Premises. Operating Expenses
also
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shall include (A) all sums
expended by Landlord for the supervision, maintenance, repair,
replacement and operation of the Common Areas (including the costs
of utility services), (B) any costs of building improvements
made by Landlord to the Property that are required by any
governmental authority or for the purpose of reducing Operating
Expenses and (C) a management and administrative fee (not to
exceed 4% of gross rents) applicable to the overall operation of
the Property.
(iv) Notwithstanding anything herein
to the contrary, repairs and replacements to the Property including
the Premises made necessary by Tenant’s use, occupancy or
alteration of, or Tenant’s installation in or upon the
Property or by any act or omission of Tenant or its Agents shall be
made at the sole expense of Tenant to the extent not covered by any
applicable insurance proceeds paid to Landlord. Tenant shall not
bear the expense of any repairs or replacements to the Property
arising out of or caused by any other tenant’s use, occupancy
or alteration of, or any other tenant’s installation in or
upon, the Property or by any act or omission of any other tenant or
any other tenant’s Agents.
(e) Utility Charges.
Tenant shall pay for water, sewer, gas,
electricity, heat, power, telephone and other communication
services and any other utilities supplied to or consumed in or on
the Premises. Landlord shall not be responsible or liable for any
interruption in utility service, nor shall such interruption affect
the continuation or validity of this lease. Notwithstanding the
foregoing, if any interruption in utility service is the result of
Landlord’s negligence or willful misconduct, and such
interruption prevents Tenant from conducting its business in and
from the Premises, then all Rent hereunder shall abate from the
date of such interruption until such utility service is
restored.
(f) Net lease.
Except for the obligations of Landlord expressly
set forth herein, this lease is a “triple net lease”
and Landlord shall receive the Minimum Annual Rent as net income
from the Premises, not diminished any expenses other than payments
under any mortgages, and Landlord is not and shall not be required
to render any services of any kind to Tenant. The term “
RENT ” as used in this lease means the Minimum Annual
Rent, Annual Operating Expenses and any other additional rent or
sums payable by Tenant to Landlord pursuant to this lease, all of
which shall be deemed rent for purposes of Landlord’s rights
and remedies with respect thereto. Tenant shall pay all Rent to
Landlord within 30 days after Tenant is billed, unless otherwise
provided in this lease, and interest shall accrue on all sums due
but unpaid.
(g) Access to Books and
Records. Tenant shall be entitled at any
reasonable time during regular business hours, but no more than
once in each calendar year, after giving to Landlord at least five
(5) business days prior written notice, to inspect in
Landlord’s business office all Landlord’s records
regarding Operating Expenses for the Building (which records shall
be retained or made available in the Minneapolis/St. Paul
metropolitan area) necessary to satisfy itself that all Operating
Expenses have been correctly allocated to Tenant, for either or
both of the two (2) calendar years immediately preceding the
year during which such notice is given, and to obtain an audit
thereof by an independent certified public accountant (selected by
Tenant with Landlord’s written consent, which shall not be
withheld unreasonably) to determine the accuracy of
Landlord’s certification of the amount of additional rent
charged Tenant. If it is determined that Tenant’s liability
for additional rent for either such calendar year is less than
ninety-five
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percent (95%) of that amount
which Landlord previously certified to Tenant for such calendar
year, Landlord shall pay to Tenant the cost of such audit
(provided, however, that Landlord shall not be required to pay the
cost of any audit based on a contingency fee or percentage of the
amount recovered for Tenant) and regardless of such percentage
Landlord shall refund promptly to Tenant the amount of the
additional rent paid by Tenant for such calendar year which exceeds
the amount for which Tenant actually is liable, as determined
following such audit. If it is determined that Tenant’s
liability for additional rent for either such calendar year is more
than the amount which Landlord previously certified to Tenant for
such calendar year, Tenant shall promptly pay to Landlord (net of
the cost to Tenant of the audit) the amount of the additional rent
underpaid by Tenant, as determined following such audit. Except as
provided above, Tenant shall bear the total cost of any such audit.
Tenant shall keep, and shall cause Tenant’s auditor to keep,
the results of such audit confidential.
8.
Signs . Except for signs which are
located wholly within the interior of the Premises and not visible
from the exterior of the Premises, no signs shall be placed on the
Property without the prior written consent of Landlord. All signs
installed by Tenant shall be maintained by Tenant in good condition
and Tenant shall remove all such signs at the termination of this
lease and shall repair any damage caused by such installation,
existence or removal.
The
foregoing notwithstanding, Tenant shall have the right to procure,
install and maintain, at Tenant’s sole cost and expense, the
following identification signage on or about the
Building:
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(a)
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One
building-mounted identification sign on the south face of the
Building;
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(b)
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Signage on one
monument sign serving the Building; and
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(c)
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Loading dock
signage, signage identifying Tenant’s employee entrance and
signage identifying Tenant on Tenant’s entrance
door(s).
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The
design, size and location of all Tenant signage shall be consistent
with Landlord’s sign criteria and otherwise subject to
Landlord’s approval, which approval shall not be unreasonably
withheld. Tenant shall cause all Tenant signage to comply with all
Laws and Requirements applicable thereto. Upon the expiration or
termination of this Lease, Tenant shall remove the signage and
shall repair any damage occasioned by such removal.
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9.
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Alterations and Fixtures
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(a) Subject to Section 10,
Tenant shall have the right to install its trade fixtures in the
Premises, provided that no such installation or removal thereof
shall materially and adversely affect any structural portion of the
Property nor any utility lines, communications lines, equipment or
facilities in the Building serving any tenant other than Tenant. At
the expiration or termination of this lease and at the option of
Landlord or Tenant, Tenant shall remove such installation(s) and,
in the event of such removal, Tenant shall repair any damage caused
by such installation or removal; if Tenant, with Landlord’s
written consent, elects not to remove such
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installation(s) at the expiration
or termination of this lease, all such installations shall remain
on the Property and become the property of Landlord without payment
by Landlord.
(b) Except for alterations that are
non-structural, that do not materially and adversely affect any of
the electrical, mechanical, HVAC, life-safety, plumbing, security
or other systems serving the Building, and that do not exceed
$25,000 in the aggregate with respect to any project, Tenant shall
not make or permit to be made any alterations to the Premises
without Landlord’s prior written consent, which consent shall
not be unreasonably withheld or delayed. Tenant shall pay the costs
of any required architectural/engineering reviews. In making any
alterations, (i) Tenant shall deliver to Landlord the plans,
specifications and necessary permits, together with certificates
evidencing that Tenant’s contractors and subcontractors have
adequate insurance coverage naming Landlord and Landlord’s
agent as additional insureds, at least 10 days prior to
commencement thereof, (ii) such alterations shall not impair
the structural strength of the Building or any other improvements
or reduce the value of the Property or affect any utility lines,
communications lines, equipment or facilities in the Building
serving any tenant other than Tenant, (iii) Tenant shall
comply with Section 10 and (iv) the occupants of the
Building and of any adjoining property shall not be materially
disturbed thereby. All alterations to the Premises by Tenant shall
be the property of Tenant until the expiration or termination of
this lease; at that time all such alterations shall remain on the
Property and become the property of Landlord without payment by
Landlord unless Landlord gives written notice to Tenant to remove
the same, in which event Tenant will remove such alterations and
repair any resulting damage. At Tenant’s request prior to
Tenant making any alterations, Landlord shall notify Tenant in
writing, whether Tenant is required to remove such alterations at
the expiration or termination of this lease.
10.
Mechanics’ Liens . Tenant
shall pay promptly any contractors and materialmen who supply
labor, work or materials to Tenant at the Property and shall take
all steps permitted by law in order to avoid the imposition of any
mechanic’s lien upon all or any portion of the Property.
Should any such lien or notice of lien be filed for work performed
for Tenant other than by Landlord, Tenant shall bond against or
discharge the same within 10 days after Tenant has notice that
the lien or claim is filed regardless of the validity of such lien
or claim. Nothing in this lease is intended to authorize Tenant to
do or cause any work to be done or materials to be supplied for the
account of Landlord, all of the same to be solely for
Tenant’s account and at Tenant’s risk and expense.
Throughout this lease the term “ mechanic’s lien
” is used to include any lien, encumbrance or charge levied
or imposed upon all or any portion of, interest in or income from
the Property on account of any mechanic’s, laborer’s,
materialman’s or construction lien or arising out of any debt
or liability to or any claim of any contractor, mechanic, supplier,
materialman or laborer and shall include any mechanic’s
notice of intention to file a lien given to Landlord or Tenant, any
stop order given to Landlord or Tenant, any notice of refusal to
pay naming Landlord or Tenant and any injunctive or equitable
action brought by any person claiming to be entitled to any
mechanic’s lien.
11.
Landlord’s Right of Entry .
Tenant shall permit Landlord and its Agents to
enter the Premises at all reasonable times following reasonable
notice (except in the event of an emergency), for the purpose of
inspection, maintenance or making repairs, alterations or additions
as well as to exhibit the Premises for the purpose of sale or
mortgage and, during the
9
last 12 months of the Term,
to exhibit the Premises to any prospective tenant. Landlord will
make reasonable efforts not to inconvenience Tenant in exercising
the foregoing rights, but shall not be liable for any loss of
occupation or quiet enjoyment thereby occasioned.
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12.
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Damage by
Fire or Other Casualty .
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(a) If the Premises or Building
shall be damaged or destroyed by fire or other casualty, Tenant
promptly shall notify Landlord and Landlord, subject to the
conditions set forth in this Section 12, shall repair such
damage and restore the Premises to substantially the same condition
in which they were immediately prior to such damage or destruction,
but not including the repair, restoration or replacement of the
fixtures or alterations installed by Tenant. Landlord shall notify
Tenant in writing, within 30 days after the date of the casualty,
if Landlord anticipates that the restoration will take more than
180 days from the date of the casualty to complete; in such event,
either Landlord or Tenant may terminate this lease effective as of
the date of casualty by giving written notice to the other within
10 days after Landlord’s notice. Further, if a casualty
occurs during the last 12 months of the Term or any extension
thereof, Landlord may cancel this lease unless Tenant has the right
to extend the Term for at least 3 more years and does so
within 30 days after the date of the casualty.
(b) Landlord shall maintain a
12 month rental coverage endorsement or other comparable form
of coverage as part of its fire, extended coverage and special form
insurance. Tenant will receive an abatement of its Minimum Annual
Rent and Annual Operating Expenses to the extent the Premises are
rendered untenantable.
(a) Termination.
If (i) all of the Premises are taken by
a condemnation or otherwise for any public or quasi-public use,
(ii) any part of the Premises is so taken and the remainder
thereof is insufficient for the reasonable operation of
Tenant’s business or (iii) any of the Property is so
taken, and, in Landlord’s opinion, it would be impractical or
the condemnation proceeds are insufficient to restore the remainder
of the Property, then this lease shall terminate and all unaccrued
obligations hereunder shall cease as of the day before possession
is taken by the condemnor.
(b) Partial Taking.
If there is a condemnation and this lease has not
been terminated pursuant to this Section, (i) Landlord shall
restore the Building and the improvements which are a part of the
Premises to a condition and size as nearly comparable as reasonably
possible to the condition and size thereof immediately prior to the
date upon which the condemnor took possession and (ii) the
obligations of Landlord and Tenant shall be unaffected by such
condemnation except that there shall be an equitable abatement of
the Minimum Annual Rent according to the rental value of the
Premises before and after the date upon which the condemnor took
possession and/or the date Landlord completes such
restoration.
(c) Award.
In the event of a condemnation affecting Tenant,
Tenant shall have the right to make a claim against the condemnor
for moving expenses and business dislocation damages to the extent
that such claim does not reduce the sums otherwise payable by
the
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condemnor to Landlord. Except as
aforesaid and except as set forth in (d) below, Tenant hereby
assigns all claims against the condemnor to Landlord.
(d) Temporary Taking.
No temporary taking of the Premises shall
terminate this lease or give Tenant any right to any rental
abatement. Such a temporary taking will be treated as if Tenant had
sublet the Premises to the condemnor and had assigned the proceeds
of the subletting to Landlord to be applied on account of
Tenant’s obligations hereunder. Any award for such a
temporary taking during the Term shall be applied first, to
Landlord’s costs of collection and, second, on account of
sums owing by Tenant hereunder, and if such amounts applied on
account of sums owing by Tenant hereunder should exceed the entire
amount owing by Tenant for the remainder of the Term, the excess
will be paid to Tenant.
14.
Non-Abatement of Rent . Except as
otherwise expressly provided as to damage by fire or other casualty
in Section 12(b) and as to condemnation in Section 13(b)
and except as otherwise specifically provided in this lease, there
shall be no abatement or reduction of the Rent for any cause
whatsoever, and this lease shall not terminate, and Tenant shall
not be entitled to surrender the Premises.
15.
Indemnification . Subject to
Sections 7(c)(iii) and 16, Tenant will protect, indemnify
and hold harmless Landlord and its Agents from and against any and
all claims, actions, damages, liability and expense (including fees
of attorneys, investigators and experts) in connection with loss of
life, personal injury or damage to property in or about the
Premises or arising out of the occupancy or use of the Premises by
Tenant or its Agents or occasioned wholly or in part by any act or
omission of Tenant or its Agents, whether prior to, during or after
the Term, except to the extent such loss, injury or damage was
caused by the negligence of Landlord or its Agents. In case any
action or proceeding is brought against Landlord and/or its Agents
by reason of the foregoing, Tenant, at its expense, shall resist
and defend such action or proceeding, or cause the same to be
resisted and defended by counsel (reasonably acceptable to Landlord
and its Agents) designated by the insurer whose policy covers such
occurrence or by counsel designated by Tenant and approved by
Landlord and its Agents. Tenant’s obligations pursuant to
this Section 15 shall survive the expiration or termination of
this lease.
Subject
to Sections 7(c)(iii) a