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SUBLEASE
[CB RICHARD ELLIS LETTERHEAD]
Exhibit 10.12
1. PARTIES.
This Sublease, dated May 27, 1999 is made between ADESSO SPECIALTY
SERVICES ORGANIZATION, INC. ("Sublessor"), and AGILITI, INC., a
Minnesota corporation ("Sublessee").
2. MASTER LEASE.
Sublessor is the lessee under a written lease dated September 25, 1997,
wherein WHPX-S REAL ESTATE LIMITED PARTNERSHIP ("Lessor") leased to
Sublessor the real property located in the City of Plymouth, County
of Hennepin, State of Minnesota, described as 3025 Harbor Lane, Suite
400, ("Master Premises"). Said lease has been amended by the
following amendments _________________________________________________
______________________________________________________________________
said lease and amendments are herein collectively referred to as the
"Master Lease" and are attached hereto as Exhibit "A."
3. PREMISES.
Sublessor hereby subleases to Sublessee on the terms and conditions set
forth in this Sublease the following portion of the Master Premises
("Premises"): Approximately 12,662 rentable square feet - Suite 400.
4. WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease
has not been amended or modified except as expressly set forth herein,
that Sublessor is not now, and as of the commencement of the Term
hereof will not be, in default or breach of any of the provisions of
the Master Lease, and that Sublessor has no knowledge of any claim by
Lessor that Sublessor is in default or breach of any of the provisions
of the Master Lease.
5. TERM.
The Term of this Sublease shall commence on June 1999 ("Commencement
Date"), or when Lessor consents to this Sublease (if such consent is
required under the Master Lease), whichever shall last occur, and end
on November 30, 2002 ("Termination Date"), unless otherwise sooner
terminated in accordance with the provisions of this Sublease. In the
event the Term commences on a date other than the Commencement Date,
Sublessor and Sublessee shall execute a memorandum setting forth the
actual date of commencement of the Term. Possession of the Premises
("Possession") shall be delivered to Sublessee on the commencement of
the Term. If for any reason Sublessor does not deliver Possession to
Sublessee on the commencement of the Term, Sublessor shall not be
subject to any liability for such failure, the Termination Date shall
not be extended by the delay, and the validity of this Sublease shall
not be impaired, but rent shall abate until delivery of Possession.
Notwithstanding the foregoing, if Sublessor has not delivered
Possession to Sublessee within thirty (30) days after the Commencement
Date, then at any time thereafter and before delivery of Possession,
Sublessee may give written notice to Sublessor of Sublessee's intention
to cancel this Sublease. Said notice shall set forth an effective date
for such cancellation which shall be at least ten (10) days after
delivery of said notice to Sublessor. If Sublessor delivers Possession
to Sublessee on or before such effective date, this Sublease shall
remain in full force and effect. If Sublessor fails to deliver
Possession to Sublessee on or before such effective date, this Sublease
shall be canceled, in which case all consideration previously paid by
Sublessee to Sublessor on account of this Sublease shall be returned to
Sublessee, this Sublease shall thereafter be of no further force or
effect, and Sublessor shall have no further liability to Sublessee on
account of such delay or cancellation. If Sublessor permits Sublessee
to take Possession prior to the commencement of the Term, such early
Possession shall not advance the Termination Date and shall be subject
to the provisions of this Sublease, including without limitation the
payment of rent.
6. RENT.
6.1 MINIMUM RENT. Sublessee shall pay to Sublessor as minimum
rent, without deduction, setoff, notice, or demand, at
__________________________________________________ or at
such other place as Sublessor shall designate from time to
time by notice to Sublessee, the sum of Eleven Thousand
Seventy-Nine and 25/100 Dollars ($ 11.079.25) per month for
the initial twelve (12) months of occupancy and then pays the
sum of Eleven Thousand Three Hundred Forty-Three and 04/100
Dollars ($ 11,343.04) per month for the remainder of the
Sublease Term, in advance on the first day of each month of
the Term. Sublessee shall pay to Sublessor upon execution of
this Sublease the sum of Eleven Thousand Seventy-Nine and
25/100 Dollars ($ 11,079.25) as rent for June 1, 1999 to
June 30, 1999. If the Term begins or ends on a day other than
the first or last day of a month, the rent for the partial
months shall be prorated on a per diem basis. Additional
provisions:
____________________________________________________________
____________________________________________________________
6.2 OPERATING COSTS. If the Master Lease requires Sublessor to pay
to Lessor all or a portion of the expenses of operating the
building and/or project of which the Premises are a part
("Operating Costs"), including but not limited to taxes,
utilities, or insurance, then Sublessee shall pay to Sublessor
as additional rent One Hundred percent (100 %) of the amounts
payable by Sublessor for Operating Costs incurred during the
Term. Such additional rent shall be payable as and when
Operating Costs are payable by Sublessor to Lessor. If the
Master Lease provides for the payment by Sublessor of
Operating Costs on the basis of an estimate thereof, then as
and when adjustments between estimated and actual Operating
Costs are made under the Master Lease, the obligations of
Sublessor and Sublessee hereunder shall be adjusted in a like
manner; and if any such adjustment shall occur after the
expiration or earlier termination of the Term, then the
obligations of Sublessor and Sublessee under this Subsection
6.2 shall survive such expiration or termination. Sublessor
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shall, upon request by Sublessee, furnish Sublessee with
copies of all statements submitted by Lessor of actual or
estimated Operating Costs during the Term. The 1999 estimated
taxes and operating expenses is $5.91 per rentable square
foot. This equals to a monthly payment of $6,236.04. Sublessee
shall be responsible for any increases in taxes and operating
expenses.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease
the sum of Eleven Thousand Seventy-Nine and 25/100 Dollars
($11,079.25) as security for Sublessee's faithful performance of
Sublessee's obligations hereunder ("Security Deposit"). If Sublessee
fails to pay rent or other charges when due under this Sublease, or
fails to perform any of its other obligations hereunder, Sublessor may
use or apply all or any portion of the Security Deposit for the payment
of any rent or other amount then due hereunder and unpaid, for the
payment of any other sum for which Sublessor may become obligated by
reason of Sublessee's default or breach, or for any loss or damage
sustained by Sublessor as a result of Sublessee's default or breach. If
Sublessor so uses any portion of the Security Deposit, Sublessee shall,
within ten (10) days after written demand by Sublessor, restore the
Security Deposit to the full amount originally deposited, and
Sublessee's failure to do so shall constitute a default under this
Sublease. Sublessor shall not be required to keep the Security Deposit
separate from its general accounts, and shall have no obligation or
liability for payment of interest on the Security Deposit. In the event
Sublessor assigns its interest in this Sublease, Sublessor shall
deliver to its assignee so much of the Security Deposit as is then held
by Sublessor. Within ten (10) days after the Term has expired, or
Sublessee has vacated the Premises, or any final adjustment pursuant to
Subsection 6.2 hereof has been made, whichever shall last occur, and
provided Sublessee is not then in default of any of its obligations
hereunder, the Security Deposit, or so much thereof as had not
theretofore been applied by Sublessor, shall be returned to Sublessee
or to the last assignee, if any, of Sublessee's interest hereunder. In
the event Sublessee elects to terminate this Sublease as provided for
in #10 below, the remaining security deposit after any appropriate
deductions will be used to offset termination penalty.
8. USE OF PREMISES.
The Premises shall be used and occupied only for general office use,
and for no other use or purpose.
9. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any
part of the Premises without the prior written consent of Sublessor
(and the consent of Lessor, if such is required under the terms of the
Master Lease).
10. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Master Lease are
incorporated into and made a part of this Sublease as if Sublessor were
the lessor thereunder, Sublessee the lessee thereunder, and the
Premises the Master Premises, except for the following: At the twelfth
(12th) month of occupancy (5/30/00), Sublessee shall have a one-time
right to terminate the Sublease provided that Sublessee gives Sublessor
four (4) months advance written notice (2/1/00) and pay a termination
fee of $22,158.50. If Sublessee elects to terminate the Sublease then
the Sublessee shall have the ability to extend the termination date by
up to three (3) months by giving Sublessor notice by February 1, 2000.
Sublessee shall rent the furniture in the suite per the attached
furniture Rental Agreement.
Sublessee assumes and agrees to perform the lessee's obligations under
the Master Lease during the Term to the extent that such obligations
are applicable to the Premises, except that the obligation to pay rent
to Lessor under the Master Lease shall be considered performed by
Sublessee to the extent and in the amount rent is paid to Sublessor in
accordance with Section 6 of this Sublease. Sublessee shall not commit
or suffer any act or omission that will violate any of the provisions
of the Master Lease. Sublessor shall exercise due diligence in
attempting to cause Lessor to perform its obligations under the Master
Lease for the benefit of Sublessee. If the Master Lease terminates,
this Sublease shall terminate and the parties shall be relieved of any
further liability or obligation under this Sublease, provided however,
that if the Master Lease terminates as a result of a default or
breach by Sublessor or Sublessee under this Sublease and/or the Master
Lease, then the defaulting party shall be liable to the nondefaulting
party for the damage suffered as a result of such termination.
Notwithstanding the foregoing, if the Master Lease gives Sublessor any
right to terminate the Master Lease in the event of the partial or
total damage, destruction, or condemnation of the Master Premises or
the building or project of which the Master Premises are a part, the
exercise of such right by Sublessor shall not constitute a default or
breach hereunder.
11. ATTORNEYS' FEES.
If Sublessor, Sublessee, or Broker shall commence an action against the
other arising out of or in connection with this Sublease, the
prevailing party shall be entitled to recover its costs of suit and
reasonable attorney's fees.
12. AGENCY DISCLOSURE:
Sublessor and Sublessee each warrant that they have dealt with no
other real estate broker in connection with this transaction except:
CB RICHARD ELLIS, INC., who represents BOTH, SUBLESSOR with David J.
Marschinke and Brian A. Helmken of CB RICHARD ELLIS, INC., who
represents SUBLESSEE. In the event that CB RICHARD ELLIS, INC.
represents both Sublessor and Sublessee, Sublessor and Sublessee
hereby confirm that they were timely advised of the dual
representation and that they consent to the same, and that they do
not expect said broker to disclose to either of them the confidential
information of the other party.
13. COMMISSION.
Upon execution of this Sublease, and consent thereto by Lessor (if such
consent is required under the terms of the Master Lease), Sublessor
shall pay Broker a real estate brokerage commission in accordance with
Sublessor's contract with Broker for the subleasing of the Premises, if
any, and otherwise in the amount of Twenty-Eight Thousand Eight Hundred
Twenty-Four and No/100 Dollars ($ 28,824.00), for services rendered
in effecting this Sublease. Broker is hereby made a third party
beneficiary of this Sublease for the purpose of enforcing its right to
said commission.
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14. NOTICES.
All notices and demands which may or are to be required or permitted to
be given by either party on the other hereunder shall be in writing.
All notices and demands by the Sublessor to Sublessee shall be sent by
United States Mail, postage prepaid, addressed to the Sublessee at the
Premises, and to the address hereinbelow, or to such other place as
Sublessee may from time to time designate in a notice to the Sublessor.
All notices and demands by the Sublessee to Sublessor shall be sent by
United States Mail, postage prepaid, addressed to the Sublessor at the
address set forth herein, and to such other person or place as the
Sublessor may from time to time designate in a notice to the Sublessee.
To Sublessor: Lee Harris, Adesso Specialty Services, 101 Park Center
Plaza, #1200, San Jose, CA 95113
To Sublessee: Jean Giltner, Agiliti, Inc., 3025 Harbor Lane, Suite 400,
Plymouth, MN 55447
15. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF FORCE OR EFFECT UNLESS CONSENTED TO BY LESSOR
WITHIN 10 DAYS AFTER EXECUTION HEREOF, IF SUCH CONSENT IS REQUIRED
UNDER THE TERMS OF THE MASTER LEASE.
16. COMPLIANCE.
The parties hereto agree to comply with all applicable federal, state
and local laws, regulations, codes, ordinances and administrative
orders having jurisdiction over the parties, property or the subject
matter of this Agreement, including, but not limited to, the 1964 Civil
Rights Act and all amendments thereto, the Foreign Investment In Real
Property Tax Act, the Comprehensive Environmental Response Compensation
and Liability Act, and The Americans With Disabilities Act.
Sublessor: ADESSO SPECIALTY SERVICES Sublessee: AGILITI, INC.,
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ORGANIZATION, INC. a Minnesota corporation
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By: /s/ Brian Barnard By: /s/ Michael Thomas
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Title: CEO Title: EXECUTIVE VICE PRESIDENT
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By: By:
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Title: Title:
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Date: May 21, 1999 Date: 5/18/99
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LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Master Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master Lease
concerning further assignment or subletting. Lessor certifies that, as of the
date of Lessor's execution hereof, Sublessor is not in default or breach of any
of the provisions of the Master Lease, and that the Master Lease has not been
amended or modified except as expressly set forth in the foregoing Sublease.
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CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by CB Richard Ellis,
Inc. as to the legal sufficiency or tax consequences of this document or the
transaction to which it relates. These are questions for your attorney or
accountant.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
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LANDLORD'S CONSENT TO SUBLEASE
This Landlord's Consent to Sublease (this "AGREEMENT") is executed as of May 27,
1999 between WHPX-S REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited
partnership ("LANDLORD") and ADESSO SPECIALTY SERVICES ORGANIZATION, INC., a
California corporation, ("TENANT") and AGILITI, INC., a Minnesota
corporation, ("SUBTENANT").
RECITALS
A. Tenant and Landlord entered into the Lease Agreement dated as of
September 25, 1997, (as amended to date, the "LEASE"), under which
Landlord is leasing to Tenant Suite 400 in the 3025 Harbor Lane
building, commonly known as HARBOR PLACE CORPORATE CENTER in Plymouth,
Minnesota. Capitalized terms used herein but not defined shall be given
the meanings assigned to them in the Lease.
B. Tenant desires to sublet the entire Premises to Subtenant, and
Subtenant desires to assume all of Tenant's obligations under the
Lease, subject to the terms and conditions contained herein.
AGREEMENTS
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. CONSENT: Subject to the terms and conditions in this Agreement,
Landlord hereby consents to the subletting by Tenant of the entire
Premises to Subtenant pursuant to the Sublease Agreement between
Tenant, as sublandlord, and Subtenant, as subtenant, the exact form of
which is attached hereto as Exhibit A (the "SUBLEASE"). Landlord's
consent contained herein shall not waive such party's rights as to any
subsequent assignment, sublease or other transfer.
2. ASSUMPTION OF LIABILITIES: Tenant and Subtenant shall be jointly and
severally liable to Landlord for all of the obligations of the "Tenant"
under the Lease, including, without limitation, Tenant's
indemnification obligations; however, Subtenant shall be liable to
Landlord only for the amount of rent (including any pass-through
expenses) agreed to be paid by each such party under the terms of the
Sublease.
3. INDEMNIFICATION: To the fullest extent allowed by law and in addition
to Section 9(c) of the Lease, Subtenant shall indemnify, defend and
hold harmless Landlord from and against any and all loss, liability,
attorney's fees, expenses and claims arising out of any injury to
person or damage to property on or about the Premises caused by any act
or omission of Subtenant, its agents, servants, contractors, employees
or invitees, or any other person entering upon the Premises under the
express or implied invitation of Subtenant.
4. NO OBLIGATIONS CREATED: Each of the parties to this Agreement agree and
acknowledge that Landlord shall have no obligation or liability under
the terms of the Sublease. Without limiting the generality of the
foregoing, Landlord shall have no liability (and shall not be bound by)
any modifications, deletions or waivers of any provision of the Lease
which Landlord has not agreed to specifically in writing. Additionally,
Landlord shall have no obligation to give notice of any default under
the Lease except to Tenant (and only to the extent required under the
Lease) and shall have no obligation to deal with any party other than
Tenant with respect to the Lease or the Premises.
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5. CONDITION OF PREMISES: Landlord makes no representations or warranties,
express or implied, concerning the condition of the Premises and
Subtenant accepts the Premises in their "as-is" condition as of the
date hereof.
6. CONDITIONS PRECEDENT: Subtenant's delivery to Landlord of the following
items NO LATER THAN 3:00 P.M. CENTRAL STANDARD TIME ON MAY 21, 1999,
shall be conditions precedent to the effectiveness of this Agreement:
(a) $100.00, representing Landlord's attorney's fees incurred in
connection with this agreement, (b) certificate(s) of insurance from
Subtenant satisfying all the requirements of the Lease, (c) a photocopy
of the original executed Lease.
7. NOTICES: All notices and other communications given pursuant to the
Lease and this Agreement shall be in writing and shall be: (a) mailed
by first class, United States, postage prepaid, certified, with return
receipt requested, and addressed to the parties hereto at the address
listed below, (b) hand-delivered to the intended address, or (c) sent
by prepaid telegram, cable, facsimile transmission, or telex followed
by a confirmatory letter. Notice sent by certified mail, postage
prepaid, shall be effective three (3) business days after being
deposited in the United States mail; all other notices shall be
effective upon delivery to the address of the addressee. The parties
hereto may change their addresses by giving notice thereof to the other
in conformity with this provision. Without limiting the provisions of
Section 4 hereof, the addressees for notice set forth below shall
supersede and replace any addresses for notice set forth in the Lease.
Landlord: WHPX-S Real Estate Limited Partnership
c/o Archon Group
600 Las Colinas Boulevard, Suite 1900
Irving, TX 75039
Attention: Asset Manager
Telecopy No: 972-830-7609
Tenant: Adesso Specialty Services Organization, Inc.
101 Park Center Plaza, Suite 1200
San Jose, CA 95113
Attention: President
Subtenant: Agiliti, Inc.
3025 Harbor Lane
Suite 400
Plymouth, MN 55447
Attention: Jean Giltner
8. RATIFICATION: Tenant and Subtenant hereby ratify and confirm their
respective obligations under the Lease, and represent and warrant to
Landlord that, as of the date hereof, they have no defenses thereto.
Additionally, Tenant, and Subtenant further confirm and ratify that, as
of the date hereof, (a) the Lease is and remains in good standing and
in full force and effect, and (b) neither of such parties has any
claims, counterclaims, setoffs or defenses against Landlord arising out
of the Lease or in any way relating thereto or arising out of any other
transaction between Landlord, Tenant or Subtenant.
9. BINDING EFFECT: GOVERNING LAW: Except as modified hereby, the Lease
shall remain in full effect and this Agreement shall be binding upon
Landlord, Tenant, and Subtenant and their respective successors and
assigns. If any inconsistency exists or arises between the terms of
this Agreement and the terms of the Lease, the terms of this Agreement
shall prevail. This Agreement shall be governed by Minnesota law.
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10. AMENDMENT; ENTIRE AGREEMENT: This Agreement shall not be amended or
modified except by an instrument in writing signed by all the parties
hereto and contains all of the agreements, understandings,
representations and warranties of the parties with respect to the
subject matter hereof.
11. COUNTERPARTS: This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, but all of which shall
constitute one document.
EXECUTED as of the date first written above.
LANDLORD: TENANT:
ADESSO SPECIALTY SERVICES
WHPX-S REAL ESTATE LIMITED PARTNERSHIP, A ORGANIZATION, INC., a
DELAWARE LIMITED PARTNERSHIP California corporation
BY: WHPX-S GEN-PAR, INC., A DELAWARE CORP.,
GENERAL PARTNER By: /s/ Brian Barnard
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BY: /s/ Michael J. Ludden Its: CEO
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MICHAEL J. LUDDEN, ASST.
VICE PRESIDENT Title: May 21, 1999
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SUBTENANT:
AGILITI, INC., a Minnesota corporation
By: /s/ Michael Thomas
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Its: EXEC. VICE PRESIDENT
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Title: 5/21/99
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CONSULT YOUR ATTORNEY This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker as to the legal
sufficiency, legal effect, or tax consequence of this document or the
transaction to which it relates. These are questions for your attorney and
financial advisors.
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