Exhibit 10.1
LEASE
By and Between
Utah State Retirement Investment Fund
(“Landlord”)
AND
Winmark
Corporation
(“Tenant”)
Multi-Tenant Office Lease
06-05-97
TABLE OF CONTENTS
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ARTICLE 1 -
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TERM
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ARTICLE 2 -
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USE
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ARTICLE 3 -
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RENTALS
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ARTICLE 4 -
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CONSTRUCTION
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ARTICLE 5 -
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POSSESSION
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ARTICLE 6 -
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TENANT’S PRO RATA SHARE OF REAL ESTATE
TAXES AND OPERATING EXPENSES
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ARTICLE 7 -
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UTILITIES AND SERVICE
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ARTICLE 8 -
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NON-LIABILITY OF LANDLORD
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ARTICLE 9 -
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CARE OF PREMISES
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ARTICLE 10 -
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RESTRICTIONS CONCERNING USE
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ARTICLE 11 -
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INSPECTION
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ARTICLE 12 -
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ALTERATIONS
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ARTICLE 13 -
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SIGNS
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ARTICLE 14 -
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COMMON AREAS
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ARTICLE 15 -
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ASSIGNMENT AND SUBLETTING
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ARTICLE 16 -
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LOSS BY CASUALTY
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ARTICLE 17 -
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WAIVER OF SUBROGATION
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ARTICLE 18 -
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EMINENT DOMAIN
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ARTICLE 19 -
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SURRENDER
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ARTICLE 20 -
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NON-PAYMENT OF RENT, DEFAULTS
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ARTICLE 21 -
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LANDLORD’S DEFAULT
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ARTICLE 22 -
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HOLDING OVER
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ARTICLE 23 -
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SUBORDINATION
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1
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ARTICLE 24 - INDEMNITY, INSURANCE AND
SECURITY
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ARTICLE 25 - NOTICES
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ARTICLE 26 - APPLICABLE LAW
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ARTICLE 27 - MECHANICS’
LIEN
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ARTICLE 28 - INTENTIONALLY
DELETED
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ARTICLE 29 - BROKERAGE
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ARTICLE 30 - INTENTIONALLY
DELETED
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ARTICLE 3l - ESTOPPEL
CERTIFICATES
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ARTICLE 32 - GENERAL
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ARTICLE 33 - EXCULPATION
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ARTICLE 34 - SECURITY DEPOSIT
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ARTICLE 35 – OPTION TO EXTEND
TERM
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ARTICLE 36 – RIGHT TO ADDITIONAL
SPACE
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ARTICLE 37 – STORAGE SPACE
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2
LEASE SUMMARY
SHEET
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1.
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Landlord:
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Utah State Retirement Investment Fund, an
independent agency of the State of Utah
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CB Richard Ellis Investors
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515 South Flower Street
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31 st Floor
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Los Angeles, California
90071-2233
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Attn: Director of Asset
Management
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with a copy to:
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CB Richard Ellis
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510 Marquette Ave.,
Suite 250
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Minneapolis, MN 55435
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Attn: Property Management
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2.
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Tenant:
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Winmark Corporation, a Minnesota
corporation
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3.
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Tenant’s Address:
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A.
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Prior to the commencement of the
Term:
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4200 Dahlberg Drive,
Suite 100
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Golden Valley, MN 55422
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B.
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Subsequent to commencement of the Term if
different from the address of the Premises:
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4.
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Premises:
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605 U.S. Highway 169, Suites 150, 310, 350, 375,
385, and 400
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Plymouth, MN 55441
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Containing approximately 33,513 rentable square
feet as follows:
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·
Suite 150, containing approximately 5,606 rentable square feet
(the “First Floor Space”)
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·
Suites 310, 350, 375, and 385, containing approximately 9,758
rentable square feet (the “Third Floor
Space”)
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·
Suite 400, containing approximately 18,149 rentable square
feet (the “Fourth Floor Space”)
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5.
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Term of Lease:
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Ten (10) years and Six
(6) months.
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3
6.
Rent:
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Months
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Floor
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Minimum
Rental
per
Square
Foot
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Annual Minimum
Rental
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Monthly
Minimum Rental
(divided)
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Total Monthly
Minimum Rental
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1st
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$
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0
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$
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0
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$
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0
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$
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0
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Months 1-6*
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3rd
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$
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0
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$
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0
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$
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0
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$
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0
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4th
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$
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0
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$
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0
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$
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0
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$
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0
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1st
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$
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12.00
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$
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67,272.00
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$
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5,606.00
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Months 7-18
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3rd
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$
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14.50
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$
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141,491.00
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$
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11,790.92
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$
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39,326.96
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4th
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$
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14.50
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$
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263,160.50
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$
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21,930.04
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1st
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$
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12.25
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$
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68,673.50
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$
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5,722.79
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Months 19-30
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3rd
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$
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14.75
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$
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143,930.50
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$
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11,994.21
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$
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40,025.15
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4th
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$
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14.75
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$
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267,697.75
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$
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22,308.15
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1st
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$
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12.50
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$
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70,075.00
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$
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5,839.58
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Months 31-42
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3rd
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$
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15.00
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$
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146,370.00
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$
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12,197.50
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$
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40,723.33
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4th
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$
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15.00
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$
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272,235.00
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$
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22,686.25
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1st
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$
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12.75
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$
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71,476.50
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$
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5,956.38
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Months 43-54
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3rd
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$
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15.25
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$
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148,809.50
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$
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12,400.79
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$
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41,421.52
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4th
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$
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15.25
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$
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276,772.25
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$
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23,064.35
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1st
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$
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13.00
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$
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72,878.00
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$
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6,073.17
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Months 55-66
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3rd
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$
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15.50
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$
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151,249.00
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$
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12,604.08
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$
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42,119.71
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4th
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$
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15.50
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$
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281,309.50
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$
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23,442.46
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1st
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$
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13.25
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$
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74,279.50
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$
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6,189.96
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Months 67-78
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3rd
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$
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15.75
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$
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153,688.50
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$
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12,807.38
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$
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42,817.90
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4th
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$
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15.75
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$
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285,846.75
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$
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23,820.56
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1st
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$
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13.50
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$
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75,681.00
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$
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6,306.75
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Months 79-90
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3rd
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$
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16.00
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$
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156,128.00
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$
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13,010.67
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$
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43,516.09
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4th
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$
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16.00
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$
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290,384.00
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$
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24,198.67
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|
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|
|
|
|
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|
|
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1st
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$
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13.75
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$
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77,082.50
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$
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6,423.54
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|
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Months 91-102
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3rd
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$
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16.25
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$
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158,567.50
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$
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13,213.96
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$
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44,214.27
|
|
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|
4th
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$
|
16.25
|
|
$
|
294,921.25
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$
|
24,576.77
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|
|
|
|
|
|
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|
|
|
|
|
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1st
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$
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14.00
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$
|
78,484.00
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$
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6,540.33
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Months 103-114
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3rd
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|
$
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16.50
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$
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161,007.00
|
|
$
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13,417.25
|
|
$
|
44,912.46
|
|
|
|
|
4th
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$
|
16.50
|
|
$
|
299,458.50
|
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$
|
24,954.88
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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1st
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$
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14.25
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$
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79,885.50
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$
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6,657.13
|
|
|
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|
Months 115-126
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3rd
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|
$
|
16.75
|
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$
|
163,446.50
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$
|
13,620.54
|
|
$
|
45,610.65
|
|
|
|
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4th
|
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$
|
16.75
|
|
$
|
303,995.75
|
|
$
|
25,332.98
|
|
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7.
Security Deposit:
$69,937.78, subject to
reduction pursuant to Section 34 herein.
* In addition to relieving Tenant of any
obligation to make Minimum Rental payments, Tenant’s
obligation to pay Operating Expenses and Real Estate Taxes shall
also be abated during this six (6) month
period.
4
This Lease Summary Sheet information
is incorporated into and made a part of the Lease Agreement
attached hereto. In the event of any conflict between any Summary
Sheet information and the Lease Agreement, the Lease Agreement
shall control. This Lease Agreement includes the following
Exhibits, all of which are made a part of this Lease Agreement.
Exhibits: Exhibit A-1 (Graphic Location of the Premises);
Exhibit A-2 (Legal Description for the Building);
Exhibit B, if attached (Tenant Work Fundings);
Exhibit C (Executive Parking Stalls); Exhibit D
(Rights to Additional Space) .
5
MULTI-TENANT OFFICE LEASE
AGREEMENT (NET)
THIS LEASE AGREEMENT (hereinafter called the
“Lease Agreement”) made as of the 26th day of
September , 2008 , by and between Utah State
Retirement Investment Fund, an independent agency of the State of
Utah , having offices at c/o CB Richard Ellis, 510 Marquette
Ave., Suite 250, Minneapolis (hereinafter called the
“Landlord”), and Winmark Corporation , a
Minnesota corporation (hereinafter called the
“Tenant”).
WITNESSETH
FOR AND IN CONSIDERATION of the sum
of One Dollar ($1.00) in hand paid by each of the parties to the
other, and other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, Landlord does hereby
lease and let unto Tenant, and Tenant does hereby hire, lease and
take from Landlord, those area s outlined in red on
Exhibit A-1 attached hereto, and by this reference
incorporated herein, and described as Suite 150 on the
first floor of the Building, consisting of approximately 5,606
square feet of space (the “First Floor Space”), Suites
310, 350, 375 and 385 on the third floor of the Building,
consisting of approximately 9,758 square feet of space (the
“Third Floor Space”) and, Suite 400 on the fourth
floor of the Building consisting of approximately 18,149 rentable
square feet (the “Fourth Floor Space”), for a total of
33,513 rentable square feet, ( the First Floor Space, the
Third Floor Space and the Fourth Floor Space, are hereinafter
collectively called the “Premises”) at 605
Waterford Park (hereinafter called the “Building”)
in the City of Plymouth , County of Hennepin , State
of Minnesota. The term Building as it is used herein shall consist
of the land and building(s) set forth in Exhibit A-2
hereto.
ARTICLE 1 - TERM
To have and to hold said Premises
for a term of ten (10) years and six
(6) months , commencing on the later of
February 1, 2009, or upon substantial completion of the
leasehold improvements and terminating ten years and six
(6) months thereafter (hereinafter called the
“Term”) upon the rentals and subject to the conditions
set forth in this Lease Agreement, and the Exhibits attached
hereto. The commencement and termination dates are specifically
subject to the provisions of Article 5 hereof.
ARTICLE 2 - USE
The Premises shall be used by the
Tenant solely for the following purposes: general office
use.
ARTICLE 3 - RENTALS
Tenant agrees to pay to Landlord as
minimum rental (hereinafter called “Minimum Rental”)
for the Premises, without notice set-off or demand, the amounts
set forth in the table below , said monthly installments to be
due and payable by Tenant in advance on the first day of each
calendar month during the Term of this Lease Agreement, or any
extension or renewal thereof, at the office of Landlord set forth
in the preamble to this Lease Agreement or at such other place as
Landlord may designate. In the event of any fractional calendar
month, Tenant shall pay for each day in such partial month a rental
equal to 1/30 of the Minimum Rental. For example, if the Tenant
first occupies the Premises on the 19 th of January, the Tenant will pay 12/30 of
the Minimum Rental for the Premises in January.
Tenant agrees to pay, as
Additional Rental, which shall be collectible to the same extent as
Minimum Rental, all amounts which may become due to Landlord
hereunder and any tax, charge or fee that may be levied, assessed
or imposed upon or measured by the rents reserved hereunder by any
governmental authority acting under any present or future law
before any fine, penalty, interest or costs may be added thereto
for
6
non-payment. Pursuant to Article 6 hereof,
Landlord’s estimated Operating Expenses for 2008 , are
$ 3.87 per square foot and estimated Real Estate Taxes
payable in 2008 are $ 7.09 per square
foot.
|
Months
|
|
Floor
|
|
Minimum
Rental per
Square
Foot
|
|
Annual Minimum
Rental
|
|
Monthly
Minimum Rental
(divided)
|
|
Total Monthly
Minimum Rental
|
|
|
|
|
1st
|
|
$
|
0
|
|
$
|
0
|
|
$
|
0
|
|
$
|
0
|
|
|
Months 1-6*
|
|
3rd
|
|
$
|
0
|
|
$
|
0
|
|
$
|
0
|
|
$
|
0
|
|
|
|
|
4th
|
|
$
|
0
|
|
$
|
0
|
|
$
|
0
|
|
$
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st
|
|
$
|
12.00
|
|
$
|
67,272.00
|
|
$
|
5,606.00
|
|
|
|
|
Months 7-18
|
|
3rd
|
|
$
|
14.50
|
|
$
|
141,491.00
|
|
$
|
11,790.92
|
|
$
|
39,326.96
|
|
|
|
|
4th
|
|
$
|
14.50
|
|
$
|
263,160.50
|
|
$
|
21,930.04
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st
|
|
$
|
12.25
|
|
$
|
68,673.50
|
|
$
|
5,722.79
|
|
|
|
|
Months 19-30
|
|
3rd
|
|
$
|
14.75
|
|
$
|
143,930.50
|
|
$
|
11,994.21
|
|
$
|
40,025.15
|
|
|
|
|
4th
|
|
$
|
14.75
|
|
$
|
267,697.75
|
|
$
|
22,308.15
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st
|
|
$
|
12.50
|
|
$
|
70,075.00
|
|
$
|
5,839.58
|
|
|
|
|
Months 31-42
|
|
3rd
|
|
$
|
15.00
|
|
$
|
146,370.00
|
|
$
|
12,197.50
|
|
$
|
40,723.33
|
|
|
|
|
4th
|
|
$
|
15.00
|
|
$
|
272,235.00
|
|
$
|
22,686.25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st
|
|
$
|
12.75
|
|
$
|
71,476.50
|
|
$
|
5,956.38
|
|
|
|
|
Months 43-54
|
|
3rd
|
|
$
|
15.25
|
|
$
|
148,809.50
|
|
$
|
12,400.79
|
|
$
|
41,421.52
|
|
|
|
|
4th
|
|
$
|
15.25
|
|
$
|
276,772.25
|
|
$
|
23,064.35
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st
|
|
$
|
13.00
|
|
$
|
72,878.00
|
|
$
|
6,073.17
|
|
|
|
|
Months 55-66
|
|
3rd
|
|
$
|
15.50
|
|
$
|
151,249.00
|
|
$
|
12,604.08
|
|
$
|
42,119.71
|
|
|
|
|
4th
|
|
$
|
15.50
|
|
$
|
281,309.50
|
|
$
|
23,442.46
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st
|
|
$
|
13.25
|
|
$
|
74,279.50
|
|
$
|
6,189.96
|
|
|
|
|
Months 67-78
|
|
3rd
|
|
$
|
15.75
|
|
$
|
153,688.50
|
|
$
|
12,807.38
|
|
$
|
42,817.90
|
|
|
|
|
4th
|
|
$
|
15.75
|
|
$
|
285,846.75
|
|
$
|
23,820.56
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st
|
|
$
|
13.50
|
|
$
|
75,681.00
|
|
$
|
6,306.75
|
|
|
|
|
Months 79-90
|
|
3rd
|
|
$
|
16.00
|
|
$
|
156,128.00
|
|
$
|
13,010.67
|
|
$
|
43,516.09
|
|
|
|
|
4th
|
|
$
|
16.00
|
|
$
|
290,384.00
|
|
$
|
24,198.67
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st
|
|
$
|
13.75
|
|
$
|
77,082.50
|
|
$
|
6,423.54
|
|
|
|
|
Months 91-102
|
|
3rd
|
|
$
|
16.25
|
|
$
|
158,567.50
|
|
$
|
13,213.96
|
|
$
|
44,214.27
|
|
|
|
|
4th
|
|
$
|
16.25
|
|
$
|
294,921.25
|
|
$
|
24,576.77
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st
|
|
$
|
14.00
|
|
$
|
78,484.00
|
|
$
|
6,540.33
|
|
|
|
|
Months 103-114
|
|
3rd
|
|
$
|
16.50
|
|
$
|
161,007.00
|
|
$
|
13,417.25
|
|
$
|
44,912.46
|
|
|
|
|
4th
|
|
$
|
16.50
|
|
$
|
299,458.50
|
|
$
|
24,954.88
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1st
|
|
$
|
14.25
|
|
$
|
79,885.50
|
|
$
|
6,657.13
|
|
|
|
|
Months 115-126
|
|
3rd
|
|
$
|
16.75
|
|
$
|
163,446.50
|
|
$
|
13,620.54
|
|
$
|
45,610.65
|
|
|
|
|
4th
|
|
$
|
16.75
|
|
$
|
303,995.75
|
|
$
|
25,332.98
|
|
|
|
ARTICLE 4 - CONSTRUCTION
If any initial improvements
to the Premises (“Tenant Improvements”) are to be made,
the provisions governing the planning, construction, scope of work
and terms and payment, shall be set forth
* In addition to relieving Tenant of any
obligation to make Minimum Rental payments, Tenant’s
obligation to pay Operating Expenses and Real Estate Taxes shall
also be abated during this six (6) month
period.
7
in Exhibit B, which, if attached hereto, is
incorporated herein by this reference. If the parties have agreed
to plans and/or a description for said Tenant Improvements, the
same will be attached hereto as Exhibit A-3 and, if so
attached, is incorporated herein by this reference.
ARTICLE 5 - POSSESSION
A.
Except as otherwise provided,
Landlord shall deliver possession of the Premises on or before the
date hereinabove specified for commencement of the Term, but
delivery of possession prior to such commencement date shall not
affect the expiration date of this Lease Agreement.
Failure of Landlord to deliver possession of the Premises by
the date hereinabove provided, due to any cause beyond
Landlord’s control, or time required for construction delays
due to material shortages, strikes, or acts of God, shall
automatically postpone the date of commencement of the Term of this
Lease Agreement and shall extend the termination date by periods
equal to those which shall have elapsed between and including the
date hereinabove specified for commencement of the Term hereof and
the date on which possession of the Premises is delivered to the
Tenant. Landlord agrees to use commercially reasonable
efforts to ensure that the entire Premises is free of any other
tenants by November 1, 2008.
B.
The rentals herein reserved shall
commence on the first day of the Term, provided, Landlord
provides Tenant with notice on or before October 28, 2008 that
the entire Premises has been vacated of other tenants and that the
entire Premises is available for purposes of constructing the
improvements described in Exhibit B, such construction to be
substantially completed within ninety (90) days of the notice,
subject to force majeure. In the event Landlord is delayed
from providing such notice and said delay continues until
December 31, 2008, Tenant may, at its option, by notice in
writing to Landlord within ten (10) days thereafter, cancel
this Lease, in which event the parties shall be discharged from all
obligations hereunder; provided further, however, that if such
written notice of Tenant is not received by Landlord within said
ten (10) day period, Tenant’s right to cancel this Lease
under this Article 5 shall terminate and be of no further
force or effect . Provided further, that if
Landlord shall be delayed in delivery of the Premises to Tenant due
to Tenant’s failure to reasonably agree to the Plans,
or by Tenant’s failure to pay for the costs of the Tenant
Improvements, then in such case the rental shall be accelerated by
the number of days of such delay, and the rentals shall commence
the same as if occupancy had been taken by Tenant. Prior to the
commencement of the Term, Landlord shall have no responsibility or
liability for loss or damage to fixtures, facilities or equipment
installed or left on the Premises. By occupying the Premises as a
Tenant as outlined in Article 1 , Tenant shall be
conclusively deemed to have accepted the same and to have
acknowledged that the Premises are in the condition required by
this Lease Agreement. Should the commencement of the rental
obligations of Tenant under this Lease Agreement occur for any
reason on a day other than the first day of a calendar month, then
in that event solely for the purposes of computing the Term of this
Lease Agreement, the commencement date of the Term shall become and
be the first day of the first full calendar month following the
date when Tenant’s rental obligation commences, or the first
day of the first full calendar month following the commencement
date set out in Article 1 (if such is other than the first
date of a calendar month), whichever date is later, and the
termination date shall be adjusted accordingly; provided however,
that the termination date shall be the last day of a calendar
month, which date shall in no event be earlier than the termination
date set out in Article 1. Immediately after Tenant’s
occupancy of the Premises the Landlord and Tenant shall execute a
ratification agreement
8
which shall set forth the final
commencement and termination dates for the Term and shall
acknowledge the Minimum Rental, the square footage of the Premises,
and delivery of the Premises in the condition required by this
Lease Agreement. Landlord represents and warrants that the
Premises is structurally sound and up to all relevant occupancy
standards, has quality windows and a proper and sufficient HVAC
system, both of which are in good working order, and has obtained
all necessary easements, zoning, and other permits to provide
Tenant with a commercial space designed for general office
use. Except as specifically provided in the foregoing
sentence, Tenant accepts the Premises and any improvements thereto
in their “AS IS – WITH ALL FAULTS” condition upon
delivery of the same from Landlord and, except as set forth in
Exhibit B, Landlord shall not bear the cost or expense for any
improvements, hook-ups or other items necessitated by
Tenant’s initial occupancy of the Premises.
ARTICLE 6 - TENANT’S PRO RATA SHARE OF
REAL ESTATE TAXES AND OPERATING EXPENSES
A. Subject to
the abatement of Real Estate Taxes and Operating Expenses set forth
in Article 3 herein or Article 5 herein, d uring each
full or partial calendar year during the Term of this Lease
Agreement, Tenant shall pay to Landlord, as Additional Rental, an
amount equal to the Real Estate Taxes and Operating Expenses (both
as hereinafter defined) per square foot of rentable area in the
Building multiplied by the number of square feet of rentable area
in the Premises prorated for the period that Tenant occupied the
Premises. Notwithstanding the preceding sentence, Tenant’s
share of the following Operating Expenses shall be computed on the
basis of the cost of said expenses per rentable square foot of area
within the Building actually occupied: cleaning, management, and
energy expenses.
B. Landlord shall,
each year during the Term of this Lease Agreement, give Tenant an
estimate of Operating Expenses and Real Estate Taxes payable per
square foot of rentable area for the coming calendar year. Tenant
shall pay, as Additional Rental, along with its monthly Minimum
Rental payments required hereunder, one-twelfth (1/12) of such
estimated Operating Expenses and Real Estate Taxes and such
Additional Rental shall be payable until subsequently adjusted for
the following year pursuant to this Article.
C. As soon as
possible after the expiration of each calendar year, Landlord shall
determine and certify to Tenant the actual Operating Expenses and
Real Estate Taxes for the previous year per square foot of rentable
area in the Building and the amount applicable to the Premises. If
such statement shows that Tenant’s share of Operating
Expenses and Real Estate Taxes exceeds Tenant’s estimated
monthly payments for the previous calendar year, then Tenant shall,
within twenty (20) days after receiving Landlord’s
certification, pay such deficiency to Landlord. In the event of an
overpayment by Tenant, such overpayments shall be refunded to
Tenant, at the time of certification, in the form of an adjustment
in the Additional Rental next coming due, or if at the end of the
Term by a refund.
D. Tenant shall
have the right, once each calendar year, to reasonably review
supporting data for any portion of a Landlord’s Statement in
accordance with the following procedure:
9
1. Tenant
shall, within sixty (60) days after any such Landlord’s
Statement is delivered, deliver a written notice to Landlord
specifying that Tenant desires to review Landlord’ records
supporting such Landlord’s Statement, provided that Tenant
shall pay to Landlord all amounts due from Tenant to Landlord as
specified in the Landlord’s Statement within the time period
specified above. Except as expressly set forth in subsection
(3) below and elsewhere in this Lease, in no event shall
Tenant be entitled to withhold, deduct, or offset any monetary
obligation of Tenant to Landlord under the Lease (including,
without limitation, Tenant’s obligation to make all payments
of Base Rent and all payments for Tenant’s share of Property
Taxes and Operating Expenses) pending the completion of and
regardless of the results of any review of records under this
Section. The right of Tenant under this Section may only
be exercised once for any Landlord’s Statement, and if Tenant
fails to meet any of the above conditions as a prerequisite to the
exercise of such right, the right of Tenant under this
Section 4.03 for a particular Landlord’s Statement shall
be deemed waived.
2. Tenant
agrees that any review of the records under this Section shall
be at the sole expense of Tenant. Tenant may exercise the
right to audit only during normal business hours at the offices of
Landlord’s manager. Tenant acknowledges and agrees that
any records reviewed under this Section constitute
confidential information of Landlord, which shall not be disclosed
to anyone other than the persons performing the review, the legal
counsel of Tenant, principals of Tenant who receive the results of
the review, and governmental authorities or courts of competent
jurisdiction if disclosure is required by Applicable Laws, by court
order, or pursuant to legal action. In addition, Tenant shall
not be obligated to keep such information confidential if said
information becomes publicly available through no act or omission
of Tenant.
3. Any
errors disclosed by the review shall be promptly corrected by
Landlord, provided, however, that if Landlord disagrees with any
such claimed errors, Landlord shall have the right to cause another
review to be made by an independent firm of certified public
accountants of national standing. In the event of a
disagreement, the review that discloses the least amount of
deviation from the Landlord’s Statement shall be deemed to be
correct. In the event that the results of the review of
records (taking into account, if applicable, the results of any
additional review caused by Landlord) reveal that Tenant has
overpaid obligations for a preceding period, the amount of such
overpayment shall be credited against Tenant’s subsequent
installment obligations to pay the estimated Tax and Operating
Expense Adjustment. In the event that such results show that
Tenant has underpaid its obligations for a preceding period, Tenant
shall pay the amount of such underpayment to Landlord within 30
days.
E. For the
purposes of this Article, the term “Real Estate Taxes”
means the total of all taxes, fees, charges and assessments,
general and special, ordinary and extraordinary, foreseen or
unforeseen, which become due or payable upon the Building. All
costs and expenses incurred by Landlord during negotiations for or
contests of the amount of Real Estate Taxes shall be included
within the term “Real Estate Taxes.” For purposes of
this Article, the term “Operating Expenses” shall be
deemed to mean all costs and expenses directly related to the
Building incurred by Landlord in the repair, operation, management
and maintenance of the Building including interior and exterior and
common area
10
maintenance, management fees,
cleaning expenses, energy expenses, insurance premiums, and the
amortization of capital investments made to reduce operating costs
or that are necessary due to governmental requirements, all in
accordance with generally accepted accounting
principles.
F.
Landlord may at any time designate a fiscal year in lieu of a
calendar year and in such event, at the time of such a change,
there may be a billing for the fiscal year, which is less than 12
calendar months.
G.
Landlord reserves, and Tenant hereby assigns to Landlord, the sole
and exclusive right to contest, protest, petition for review, or
otherwise seek a reduction in the Real Estate Taxes.
ARTICLE 7 - UTILITIES AND SERVICE
A. Landlord
agrees to furnish water, electricity, elevator service, and
janitorial service. In the event Tenant’s requirements and/or
usage of such utilities and services is substantially greater than
is customarily supplied to a typical tenant in the Building,
Landlord or Tenant may request that the difference in such
requirement and/or usage be determined and that appropriate
adjustments be made in the Minimum Rental provided for in
Article 3 of this Lease Agreement.
B.
Landlord agrees to furnish heat during the usual heating season
and as reasonably necessary from time to time and air
conditioning during the usual air conditioning season and as
reasonably necessary from time to time , all during normal
business hours as defined in this Lease Agreement.
Additional heating and cooling will be available to Tenant at the
current overtime HVAC rate of $5.00 per hour per heat pump,
provided that this HVAC rate may be reasonably adjusted by Landlord
from time to time.
C. No
temporary interruption or failure of such services incidental to
the making of repairs, alterations or improvements, or due to
accidents or strike or conditions or events not under
Landlord’s control, shall be deemed as an eviction of the
Tenant or relieve the Tenant from any of the Tenant’s
obligations hereunder.
D. For
the purposes of this Article 7, normal business hours shall be
deemed to mean the period of time between 6:00 a.m. to
6:00 p.m. Monday through Friday and
8:00 a.m. to 1:00 p.m. on Saturday , and
specifically excluding Sundays and legal holidays
.
E.
Tenant shall have no right of access to the roof of the Premises or
the Building and shall not install, repair or replace any aerial,
fan, air conditioner, or other device on the roof of the Premises
or the Building without the prior written consent of
Landlord.
ARTICLE 8 - NON-LIABILITY OF
LANDLORD
Except in the event of the
negligence of Landlord, its agents, employees or contractors,
Landlord shall not be liable for any loss or damage for failure to
furnish heat, air conditioning, electricity, elevator service,
water, sprinkler system or janitorial service. Landlord shall not
be liable for personal injury, death or any damage from any cause
about the Premises or the Building except if caused by
Landlord’s negligence.
11
ARTICLE 9 - CARE OF PREMISES
A.
Tenant agrees:
1. To
keep the Premises in as good condition and repair as they were in
at the time Tenant took possession of same, reasonable wear and
tear and damage from fire and other casualty for which insurance is
normally procured excepted;
2. To
keep the Premises in a clean and sanitary condition;
3. Not
to commit any nuisance or waste on the Premises, overload the
Premises or the electrical, water and/or plumbing facilities in the
Premises or Building, throw foreign substances in plumbing
facilities, or waste any of the utilities furnished by
Landlord;
4. To
abide by such rules and regulations as may from time to time
be reasonably promulgated by Landlord;
5. To
obtain Landlord’s prior approval of the interior design of
any portion of the Premises visible from the common areas or from
the outside of the Building. “Interior design” as used
in the preceding sentence shall include but not be limited to floor
and wall coverings, furniture, office design, artwork and color
scheme ; and
6.
With respect to the First Floor Space, Tenant acknowledges and
agrees that a portion of the First Floor Space is visible to the
public from the atrium/entrance area of the Building and that
Landlord wishes to maintain the visible integrity and professional
appearance of said atrium/entrance area. Tenant hereby agrees
to work with Landlord to maintain the visible integrity and
professional and tidy appearance of the Building using reasonable
means as agreed upon by Landlord and Tenant, such as window
coverings obstructing the public’s view of the interior of
the First Floor Space or locating and arranging the storage items
inside of the First Floor Space in such a way as to appear tidy
from the atrium/entrance area of the Building.
B. If
Tenant shall fail to keep and preserve the Premises in the state of
condition required by the provisions of this Article 9, the
Landlord may at its option put or cause the same to be put into the
condition and state of repair agreed upon, and in such case the
Tenant, on demand, shall pay the cost thereof.
ARTICLE 10 - RESTRICTIONS CONCERNING
USE
Tenant covenants not to introduce
any hazardous or toxic materials onto the Premises without
complying with all applicable Federal, State and local laws or
ordinances pertaining to the transportation, storage, use or
disposal of such materials, including but not limited to obtaining
proper permits. If Tenant’s transportation, storage, use or
disposal of hazardous or toxic materials on the Premises results in
the contamination of the soil or surface or ground water or loss or
damage to person(s) or property, then Tenant agrees
to:
i)
Notify Landlord immediately of any contamination, claim or
contamination, loss or damage;
ii)
After consultation with the Landlord, clean up the contamination in
full compliance with all applicable statutes, regulations and
standards; and
12
iii)
Indemnify, defend and hold Landlord harmless from and against any
claims, suits, causes of action, costs and fees, including
attorneys’ fees and costs, arising from or connected with any
such contamination, claim of contamination, loss or
damage.
This provision shall survive termination,
cancellation or expiration of this Lease Agreement. For purposes of
this Article, the terms “hazardous materials” or
“toxic materials” shall mean any substance or material
which has been determined by any state, federal or local
governmental authority to be capable of posing a risk of injury to
health, safety or property, including all of those materials and
substances designated as hazardous or toxic by the city in which
the Premises are located, the U.S. Environmental Protection Agency,
the Consumer Product Safety Commission, the Food and Drug
Administration, and any federal agencies that have overlapping
jurisdiction with such state agencies, or any other governmental
agency now or hereafter authorized to regulate materials and
substances in the environment.
ARTICLE 11 - INSPECTION
The Landlord or its employees or
agents shall have the right , with Tenant’s prior written
consent, such consent not to be unreasonably withheld (except in
case of emergency, where no consent shall be required), and
without any diminution of rent or other charges payable hereunder
by Tenant, to enter the Premises at all reasonable times for the
purpose of exhibiting the Premises to prospective tenants or
purchasers, inspection, cleaning, repairing, testing, altering or
improving the same or said Building, but nothing contained in this
Article shall be construed so as to impose any obligation on
the Landlord to make any repairs, alterations or
improvements.
ARTICLE 12 - ALTERATIONS
Tenant will neither disturb or in
any way change any locks, plumbing, or wiring nor make structural
changes without the prior written consent of the Landlord.
Tenant will also not make any alterations, repairs, additions
or improvements in or to the Premises in excess of $10,000
without the prior written consent of the Landlord as to the
character of the alterations, additions or improvements to be made,
the manner of doing the work, and the contractor doing the work.
All such consents shall not be unreasonably withheld or
delayed. All such work shall comply with the applicable
governmental laws, ordinances, rules and regulations. The
Landlord as a condition to said consent may require a surety
performance and/or payment bond from the Tenant for said actions.
Tenant agrees to indemnify and hold Landlord free and harmless from
any liability, loss, cost, damage or expense (including
attorney’s fees) by reasons of any said alteration, repairs,
additions or improvements.
ARTICLE 13 - SIGNS
Tenant agrees that no signs or other
advertising materials shall be erected, attached or affixed to any
portion of the exterior of the Premises or the Building without the
express prior written consent of Landlord. Notwithstanding
the foregoing, Tenant shall be allowed to place a sign on the
exterior of the space in front of each suite entry of the Premises
at Tenant’s sole cost and expense, provided:
1. Such entry signage
conforms to the building standard signage (provided Tenant may
affix its logo to such building standard signage);
and
2. Said signage shall
comply with the terms and conditions of the rules for the
Building as may be set from time to time, and with all governmental
laws, rules, regulations and ordinances; and
3. Said signage is not visible
from the exterior of the Premises.
13
Notwithstanding the foregoing, for so long as
Tenant is the sole occupant of the entire fourth floor, Tenant may
install its own signage in the lobby of the Fourth Floor Space, so
long as such signage is not visible from the exterior of the
Premises
In addition to the foregoing, Tenant shall have
the right to install prominent exterior building signage on the
existing exterior pylon sign and exterior of the building similar
to the existing signage of other tenants on the Building, subject
to Landlord’s approval, which shall not be unreasonably
withheld and subject to municipal codes. Tenant shall pay for
the design, installation, construction, maintenance, repair, and
any other costs associated with the signage. Landlord shall
have the right to approve the design of the exterior signs prior to
Tenant’s installation of said signs. Any change to any
of Tenant’s signage subsequent to Landlord’s approval
must be re-approved by Landlord.
ARTICLE 14 - COMMON AREAS
A. Tenant
agrees that the use of all corridors, passageways, elevators,
toilet rooms, parking areas and landscaped area in and around said
Building, by the Tenant or Tenant’s employees, visitors or
invitees, shall be subject to such rules and regulations as
may from time to time be made by Landlord for the safety, comfort
and convenience of the owners, occupants, tenants and invitees of
said Building. Tenant agrees that no awnings, curtains, drapes or
shades shall be used upon the Premises except as may be approved by
Landlord.
B. In
addition to the Premises, Tenant shall have the right of
non-exclusive use, in common with others, of: (a) all
unrestricted automobile parking areas (subject to the provisions
set forth below), driveways and walkways; and (b) loading
facilities, freight elevators and other facilities as may be
constructed in the Building, all to be subject to the terms and
conditions of this Lease Agreement and to reasonable rules and
regulations for the use thereof as prescribed from time to time by
Landlord.
C.
Landlord shall have the right to make changes or revisions in the
site plan and in the Building so as to provide additional leasing
area. Landlord shall also have the right to construct additional
buildings on the land described on Exhibit A-2 for such
purposes as Landlord may deem appropriate. Landlord also reserves
all airspace rights above, below and to all sides of the Premises,
including the right to make changes, alterations or provide
additional leasing areas.
D.
Landlord and Tenant agree that Landlord will not be responsible for
any loss, theft or damage to vehicles, or the contents thereof,
parked or left in the parking areas of the Building and Tenant
agrees to so advise its employees, visitors or invitees who may use
such parking areas.
E. The
parking areas shall include those areas designated by Landlord, in
its reasonable discretion, as either restricted or
unrestricted parking areas. Tenant, its employees and invitees
shall have the right to park in the unrestricted parking areas in
common with other tenants of the Building upon such terms and
conditions adopted by Landlord from time to time, but those
conditions shall not include the imposition of a parking
charge. Tenant agrees not to overburden the unrestricted
parking areas and agrees to cooperate with Landlord and other
tenants in the use of the unrestricted parking areas.
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Landlord reserves the right in its
absolute discretion to determine whether the parking areas are
becoming overburdened and to allocate and assign parking spaces
among Tenant and other tenants, and to reconfigure the parking
areas and modify the existing ingress to and egress from the
parking areas as Landlord shall deem appropriate. Landlord
agrees that all of its rights pursuant to this
