<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 28, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________________________to ______________
Commission file number 012378
CARLETON CORPORATION
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(Exact name of registrant as specified in its charter)
MINNESOTA 41-1349953
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(State or other jurisdiction of (I. R. S. Employer Identification Number)
incorporation or organization)
7275 FLYING CLOUD DRIVE, EDEN PRAIRIE, MINNESOTA 55344
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (612) 828-0300
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common Stock, $.05 par value 16,715,744
- ---------------------------- -----------------------------------
Class Shares outstanding on July 31, 1998
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Consolidated Statement of Operations - Three Months Ended
June 28, 1998 and June 29, 1997................................. 1
Consolidated Balance Sheets - June 28, 1998 and March 29,
1998............................................................ 2
Consolidated Statements of Cash Flows - Three Months Ended
June 28, 1998 and June 29, 1997................................. 3
Notes to Financial Statements................................... 4
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Liquidity and Capital Resources................................. 5
Results of Operations........................................... 5
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS....................................... 7
ITEM 2. CHANGES IN SECURITIES................................... 7
ITEM 3. DEFAULTS UPON SENIOR SECURITIES......................... 7
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY
HOLDERS................................................. 7
ITEM 5. OTHER INFORMATION....................................... 7
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K........................ 7
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
THREE MONTHS ENDED
-----------------------
JUN 28, JUN 29,
1998 1997
-----------------------
Revenues
Sales $ 915 $191
Service 407 88
----------------------
Total 1,322 279
Costs and Expenses
Cost of revenues 626 439
Research, development and engineering 961 489
Selling, general and administrative 1,508 931
----------------------
Total 3,095 1,859
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Loss from operations (1,773) (1,580)
Investment income 152 127
Interest expense and other (16) 3
----------------------
Loss from continuing operations before income taxes (1,637) (1,450)
Income taxes 0 2
----------------------
Net loss from continuing operations (1,637) (1,452)
Discontinued operations:
Income from operations of discontinued
Internet Solutions Division 0 925
----------------------
Net Loss ($1,637) ($527)
======================
Income (Loss) per Share:
Continuing Operations ($0.10) ($0.10)
Discontinued Operations 0.00 0.06
----------------------
Total ($0.10) ($0.04)
======================
Weighted Average Shares Outstanding 16,615 14,159
======================
See accompanying Notes to Financial Statements.
<PAGE>
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
(UNAUDITED)
JUNE 28, MARCH 29,
1998 1998
-----------------------
ASSETS
<S> <C> <C>
Current Assets
Cash and cash equivalents $ 9,406 $ 11,111
Cash in escrow 181 730
Accounts receivable - net 1,450 1,517
Other 165 76
--------------------
Total cuurent assets 11,202 13,434
Property and equipment 4,675 4,649
Accumulated depreciation (3,362) (3,256)
--------------------
Property and equipment - net 1,313 1,393
--------------------
$ 12,515 $ 14,827
====================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Accounts payable $ 203 $ 319
Accrued expenses 2,357 3,067
Deferred revenue 935 809
Note payable 1,000 1,000
--------------------
Total current liabilities 4,495 5,195
Long-term Notes Payable 598 602
Shareholders' Equity
Common stock - authorized, 30,000,000 shares at $.05 par value; issued and
outstanding at June 28, 1998 - 16,686,031 shares;
March 29, 1998 - 16,526,815 shares 834 826
Additional paid-in capital 62,744 62,723
Retained deficit (56,156) (54,519)
--------------------
Total shareholders' equity 7,422 9,030
--------------------
Total $ 12,515 $ 14,827
====================
</TABLE>
See accompanying Notes to Financial Statements.
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-----------------------
JUN 28, JUN 29,
1998 1997
-----------------------
<S> <C> <C>
OPERATING ACTIVITIES:
Net loss $(1,637) $ (527)
Adjustments to reconcile net loss to net cash used in operations:
Depreciation and amortization 106 521
Accounts receivable 67 (811)
Installment receivables 0 244
Inventory 0 18
Other assets (89) 26
Accounts payable, accrued expenses, deferred income and
income taxes (700) (3,081)
-------- --------
Net cash flows used in operating activities (2,253) (3,610)
INVESTING ACTIVITIES:
Purchases of property and equipment (net) (26) (35)
Change in cash held in escrow 549 (10)
-------- --------
Net cash flows from (used in) investing activities 523 (45)
FINANCING ACTIVITIES:
Repayments of debt (4) 0
Stock options/restricted stock activity (net) 29 0
-------- --------
Net cash flows from (used in) financing activities 25 0
-------- --------
Net decrease in cash and cash equivalents (1,705) (3,655)
Beginning cash and cash equivalents 11,111 13,865
-------- --------
Ending cash and cash equivalents $ 9,406 $10,210
======== ========
Supplemental disclosures of cash flow information:
Cash paid for interest $ 19 $ 7
Cash paid for income taxes 8 19
</TABLE>
See accompanying Notes to Financial Statements.
<PAGE>
NOTES TO FINANCIAL STATEMENTS
(Unaudited)
1. MANAGEMENT REPRESENTATION AND NAME CHANGE
The accompanying unaudited interim financial statements have been prepared in
accordance with the instructions to Form 10-Q and do not include all the
information and footnotes required by generally accepted accounting principles
for complete financial statements. In the opinion of management, all adjustments
(consisting of normal recurring accruals) considered necessary for a fair
presentation have been included. The results of operations for any interim
period are not necessarily indicative of results for the year. These statements
should be read in conjunction with the financial statements and related notes
included in the Company's Annual Report on form 10-K for the year ended March
29, 1998.
Note also that the Company changed its name from Apertus Technologies
Incorporated to Carleton Corporation effective August 1, 1998. The Company's
common stock continues to trade on NASDAQ but the symbol changed from APTS to
CARL.
2. DISCONTINUED OPERATIONS
The operating results of the Internet Solutions Division for the quarter ended
June 29, 1997 have been reflected as discontinued operations in the Consolidated
Statement of Operations. The Internet Solutions Division had been sold to
Computer Network Technology Corporation in October 1997 as previously reported
by the Company in Form 10-Q's and in Form 10-K for the year ended March 28,
1998.
3. PRO FORMA RESULTS
The Company had acquired a Massachusetts corporation then also known as
"Carleton Corporation" in October 1997. The transaction was accounted for under
the purchase method of accounting and the operating results of the former
"Carleton Corporation" has been included with the consolidated results
subsequent to the acquisition.
Pro forma consolidated results of continuing operations for the three months
ended June 29, 1997 as if "Carleton Corporation" had been acquired at the
beginning of fiscal 1997 are:
Revenues $ 969
Net loss (2,134)
Net loss per share (.13)
4. NET LOSS PER SHARE
Net loss per share is computed using the weighted average number of common stock
shares outstanding during the applicable period. There is no impact to the
calculation of the net loss per share resulting from adoption of Financial
Accounting Standards Board Statement No. 128, "Earnings Per Share."
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE HARBOR" PROVISIONS OF THE PRIVATE
SECURITIES LITIGATION REFORM ACT OF 1995
This Quarterly Report on Form 10-Q contains forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995. These
forward-looking statements involve risks and uncertainties that may cause the
Company's actual results to differ materially from the results discussed in the
forward-looking statements. Factors that might cause such differences include,
but are not limited to, the following: decreased demand for the Company's
products; heightened competition; market acceptance risk; risk of lengthening
sales cycles; risk of technological obsolescence of the Company's products;
inability to manage the Company's cost structure; risks associated with sales of
products outside the United States; increased expenses; failure to obtain new
customers or retain existing customers; inability to carry out marketing and
sales plans; inability to attract and retain key personnel resources; risks
associated with the Company's dependence on proprietary technology, including
those related to adequacy of copyright, trademark and trade secret protection;
risks associated with single sources of supply for certain components used in
the Company's products; and changes in interest rates. The forward-looking
statements herein are qualified in their entirety by the cautions and risk
factors set forth under "Cautionary Statement" filed as Exhibit 99 to this
Quarterly Report on Form 10-Q.
LIQUIDITY AND CAPITAL RESOURCES
The consolidated balance sheet at June 28, 1998, shows net working capital of
$6,707 including cash and cash equivalents of $9,406. The Company currently
anticipates minimal capital expenditures in the near future. These expenditures
will be primarily for computers for any new hires. The Company believes the cash
position will be adequate to support its anticipated short-term operating
losses, make capital investments and fund working capital needs into fiscal
1999-2000. The Company currently does not have any outside credit arrangement
other than the $1 million note that is secured by investments. The Company will
need to achieve profitability and generate positive cash flow in fiscal
1999-2000 and beyond to meet its expected future operating and capital cash
needs.
RESULTS OF OPERATIONS
The consolidated statements of operations reflect the effect of the discontinued
operations (see Note 2 to the financial statements) by restating the quarter
ended June 29, 1997 and showing the operations of the Internet Solutions
Division as a single line item.
The consolidated statement of operations for the quarter ended June 28, 1998
includes the results of the former "Carleton Corporation" which was acquired by
the Company in October 1997 (see Note 3 to the financial statements).
Revenues for the three months ended June 28, 1998 reflect a significant increase
over the historical revenues from the same period in the prior year and reflect
an increase of more than 36% over the pro forma revenues from the same period in
the prior year. However, the revenues were below the Company's expectations and
<PAGE>
resulted in an operating loss that was higher than planned. The costs and
expenses were lower than planned due to lower headcount than anticipated and
lower marketing expenses. The increased costs compared to the historical level
of similar costs in the prior year are explained primarily from the additional
costs in adding the former "Carleton Corporation" infrastructure. The Company
expects its revenues to increase in the coming quarters so that the losses
become smaller until the Company again achieves profitability. The Company plans
to continue to invest in development and engineering to make product
enhancements for increased funcitonality and to address ease of use concerns.
Additional investment will also be made in expanding business partner
relationships, implementing marketing programs and increasing market image and
awareness.
During the current quarter, the Company made strong progress as a newly created
data warehousing company. Although revenues were below expectations, the Company
did: win new license business, expanded its business partner base, continued
providing quality implementation services on significant projects of its
customers, established reference accounts, improved product performance through
increased functionality and features, and increased its marketing promotion. The
focus going forward will be to continue to improve its products and to build
sales momentum through expanding its sales force, broadening business partner
alliance programs and continued marketing promotion.
Year 2000
The Year 2000 effect is not expected to have a material impact on the Company.
The various software packages that the Company uses to process its internal
records and to support its operations are obtained from outside vendors. These
vendors have communicated that the packages are either already Year 2000
compliant or that Year 2000 modifications will be made available under
maintenance contracts. The Company believes it will be able to address any Year
2000 concerns without any significant spending requirements.
Almost all new business opportunities inquire about the Company's products being
Year 2000 compliant. The Company believes that the products it sells are Year
2000 compliant. The Company continues with on-going internal testing to verify
that its software products are Year 2000 compliant. The testing of
Enterprise/Integrator has been successfully completed and the testing of
Passport will be completed shortly. The Company will then be in a position to
certify that, based upon such testing, its products are Year 2000 compliant.
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company has filed its Answer and Counterclaim relating to the
complaint filed by Case Associates, NV and Carleton Europe, NV noted in
the Company's Annual Report on Form 10-K for the year ended March 29,
1998. The Company has reviewed the initial claims and believes they are
without merit. The Company plans to vigorously defend itself against
any claims made and to pursue its counterclaims.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
An annual meeting of shareholders was held on July 23, 1998. Two Class
Three directors, Robert W. Fischer and Michael Dexter-Smith were
elected receiving 14,515,639 (87%) and 15,084,361 (90%) votes for,
respectively, with 13% and 10% against, abstaining, or withholding
authority, respectively. The second matter was approval of an amendment
to the Company's Articles of Incorporation to provide for a change in
the Company's name from "Apertus Technologies Incorporated" to
"Carleton Corporation." The amendment was approved with 15,159,769 for
and 122,910 against and 8% abstaining or withholding authority. The
third matter was the ratification of the Board of Directors appointment
of Ernst and Young as the Company's independent auditors for the
current fiscal year. The proposal was approved with 15,225,652 for and
63,598 against and 8% abstaining or withholding authority.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibit 10 Industrial Lease between Bren Associates LLC and
Apertus Technologies Incorporated dated June 23, 1998.
Exhibit 99 Cautionary Statement
(b) No reports on Form 8-K have been filed during this quarter.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CARLETON CORPORATION
Date: August 7, 1998 By /s/ Steven Thimjon
------------------------------
Steven Thimjon
Vice President and Chief Financial Officer
<PAGE>
EXHIBIT 10
INDUSTRIAL LEASE
BETWEEN
BREN ASSOCIATES LLC
A MINNESOTA LIMITED LIABILITY COMPANY
(LANDLORD)
AND
APERTUS TECHNOLOGIES INCORPORATED
---------------------------------
A MINNESOTA CORPORATION
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(TENANT)
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<PAGE>
TABLE OF CONTENTS
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INDUSTRIAL LEASE
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ARTICLE TITLE PAGE
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1 Definitions 1
2 Premises 2
3 Term 2
4 Rental; Adjustments 2
5 Security Deposit 5
6 Use of Premises 5
7 Utilities and Services 7
8 Maintenance and Repairs 8
9 Alterations, Additions and Improvements 9
10 Indemnification and Insurance 9
11 Damage or Destruction 11
12 Condemnation 12
13 Relocation 12
14 Assignment and Subletting 12
15 Default and Remedies 14
16 Attorneys' Fees; Costs of Suit 15
17 Subordination and Attornment 16
18 Quiet Enjoyment 16
19 Parking 16
20 Rules and Regulations 17
21 Estoppel Certificates 17
22 Entry by Landlord 17
23 Landlord's Lease Undertakings-Exculpation
from Personal Liability; Transfer of Landlord's Interest 17
24 Surrender; Holdover Tenancy 18
25 Notices 18
26 Brokers 18
27 Communications and Computer Lines 18
28 Miscellaneous 19
29 Floor Load Limits 20
EXHIBITS
--------
Exhibit A Floor Plan of the Premises
Exhibit B Work Letter Agreement
Exhibit C Suite Acceptance Letter
Exhibit D Tenant Operations Inquiry
Schedule I to Exhibit D List of Permissible Hazardous Materials and
Quantities for Tenant
Exhibit E List of Additional Insureds
Exhibit F Rules and Regulations
<PAGE>
INDUSTRIAL LEASE
----------------
[FORM NET LEASE/MULTI-TENANT]
THIS LEASE ("Lease"), dated June 23, 1998, is made and entered into by
and between BREN ASSOCIATES LLC, a Minnesota Limited Liability Company
("Landlord") and APERTUS TECHNOLOGIES INCORPORATED, a Minnesota Corporation
("Tenant") upon the following terms and conditions:
ARTICLE I - DEFINITIONS
-----------------------
Unless the context otherwise specifics or requires, the following terms
shall have the meanings specified herein:
1.01 BUILDING. The term "Building" shall mean that certain
office/warehouse building located at 10729 Bren Road East, Minnetonka,
Minnesota, together with all related site land, improvements, parking
facilities, common areas, driveways, sidewalks and landscaping. If the Building
is in a development containing one or more other buildings, such buildings
together with all related site land, improvements, parking facilities, common
arm, driveways, sidewalks and landscaping, and together with the Building, shall
be referred to herein as the "Project".
1.02 PREMISES. The term "Premises" shall mean Space No. 10729 in the
Building, as more particularly outlined on the drawing attached hereto as
Exhibit A and incorporated herein by reference.
1.03 RENTABLE AREA OR THE PREMISES. The term "Rentable Area of the
Premises" shall mean 23,803 square feet, which Landlord and Tenant have
stipulated as the Rentable Area of the Premises. Tenant acknowledges that the
Rentable Area of the Premises includes the usable area, without deduction for
columns or projections, multiplied by a load factor to reflect a share of
certain areas, which may include lobbies, corridors, mechanical, utility,
janitorial, boiler and service rooms and closets, restrooms and other public,
common and service areas of the Building. The rentable area of the Building is
approximately 44,844 square feet.
1.04 LEASE TERM. The terms "Lease Term" or "Term" shall mean the period
between the Commencement Date and the Expiration Date (as such terms are
hereinafter defined), unless sooner terminated or renewed as otherwise provided
in this Lease.
1.05 COMMENCEMENT DATE. Subject to adjustment as provided in Article 3,
the term "Commencement Date" shall mean September 1, 1998.
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<PAGE>
1.06 EXPIRATION DATE. Subject to adjustment as provided in Article 3,
the term "Expiration Date" shall mean August 31, 2003 (See Addendum to Lease).
1.07 BASE RENT. Subject to adjustment as provided in Article 4, the
term "Base Rent" shall mean Eighteen Thousand Eight Hundred Forty-Four and
04/100 Dollars ($18,844.04) per month.
1.08 TENANT'S PERCENTAGE SHARE. The term "Tenant's Percentage Share"
shall mean fifty-three and 08/100 percent (53.08%) with respect to Operating
Expenses (as hereinafter defined), fifty-three and 08/100 percent (53.08%) with
respect to Property Taxes (as hereinafter defined), fifty-three and 08/100
percent (53.08%) with respect to Insurance Expenses (as hereinafter defined) and
fifty-three and 08/100 (53.08%) with respect to Tenant's law compliance
obligations under Section 6.02(C) of this Lease and for all other purposes under
this Lease. Landlord may reasonably redetermine Tenant's Percentage Share from
time to time to reflect reconfigurations, additions or modifications to the
Building, provided such redetermination shall be based on the method used to
initially determine Tenant's Percentage Share.
1.09 SECURITY DEPOSIT. The term "Security Deposit" shall mean
Twenty-Five Thousand Three Hundred Thirty and 36/100 Dollars ($25,330.36).
1.10 TENANT'S PERMITTED USE. The term "Tenant's Permitted Use" shall
mean general office, warehousing and distribution of software and related
activities and no other use.
1.11 LANDLORD'S ADDRESS FOR NOTICES. The term "Landlord's Address for
Notices" shall mean BREN ASSOCIATES LLC, 600 South Hwy. 169, Suite 1970,
Minneapolis, MN 55426, with a copy to: CB RICHARD ELLIS, INC., 11455 Viking
Drive, Suite 300, Eden Prairie, MN 55344.
1.12 TENANT'S ADDRESS FOR NOTICES. The term "Tenant's Address for
Notices" shall mean 10729 Bren Road East, Minnetonka, MN 55343.
1.13 BROKER. The term "Broker" shall mean Landlord's Representative: CB
RICHARD ELLIS, INC.; Tenant's Representative: WELSH COMPANIES.
ARTICLE II - PREMISES
---------------------
2.01 LEASE OR PREMISES. Landlord hereby leases the Premises to Tenant,
and Tenant hereby leases the Premises from Landlord, upon all of the terms,
covenants and conditions contained in this Lease. On the Commencement Date
described herein, Landlord shall deliver the Premises to Tenant in the condition
described in Section 2.02 below and in substantial conformance with the Work
Letter Agreement attached hereto as Exhibit B, if any.
-3-
<PAGE>
2.02 ACCEPTANCE OR PREMISES. With the exception of Landlord's express
undertakings in this Lease, Tenant acknowledges that Landlord has not made any
representation or warranty with respect to the condition of the Premises or the
Building or with respect to the suitability or fitness of either for the conduct
or Tenant's Permitted Use or for any other purpose, except that Landlord shall
ensure that any existing heating, ventilating and air conditioning ("HVAC")
equipment serving the Premises is in good working order and repair as of the
Commencement Date. Prior to Tenant's taking possession of the Premises, Landlord
or its designee and Tenant will walk the Premises for the purpose of reviewing
the condition of the Premises (and the condition of completion and workmanship
of any tenant improvements which Landlord is required to construct in the
Premises pursuant to this Lease); after such review, Tenant shall execute a
Suite Acceptance Letter in the form and content of Exhibit C, accepting the
Premises. Except as is expressly set forth in this Section 2.02 or the Work
Letter Agreement attached hereto, if any, or as may be expressly set forth in
said Suite Acceptance Letter, Tenant agrees to accept the Premises in its "as
is" physical condition without any agreements, representations, understandings
or obligations on the part of Landlord to perform any alterations, repairs or
improvements (or to provide any allowance for same).
2.03 COMMON AREAS. Tenant and Tenant employees and invitees may use the
common areas of the Building, and the Project, if applicable, on a non-exclusive
basis in common with all other parties to whom the right to use such common
areas has been or is hereafter granted. Tenant shall not interfere in any way
with the use of the common areas by such other parties, and Tenant's use of the
common areas shall be subject to the other provisions of this Lease. Landlord
shall administer, operate, clean, maintain and repair the common areas of the
Building, and the Project, if applicable, in a neat and clean condition and the
costs and expenses thereof shall be included in the definition of "Operating
Expenses" set forth below. If the Building is in a Project containing one or
more other buildings, Landlord may designate separate common areas for the
Building, for the Project as a whole ("Project Common Areas"), and for other
portions of the Project ("Other Common Areas"). In such case, Tenant and
Tenant's employees and invitees shall not use the Other Common Areas.
ARTICLE III - TERM
------------------
3.01 Except as otherwise provided in this Lease, the Lease Term shall
be for the period described in Section 1.04 of this Lease, commencing on the
Commencement Date described in Section 1.05 of this Lease and ending on the
Expiration Date described in Section 1.06 of this Lease; provided, however,
that, if, for any reason, Landlord is unable to deliver possession of the
Premises on the date described in Section 1.05 of this Lease, Landlord shall not
be liable for any damage caused thereby, nor shall the Lease be void or
voidable, but, rather, the Lease Term shall commence upon, and the Commencement
Date shall be, the date that possession of the Premises is so tendered to
-4-
<PAGE>
Tenant (except for Tenant-caused delays which shall not be deemed to delay
commencement of the Lease Term), the Expiration Date described in Section 1.06
of this Lease shall be extended by an equal number of days.
ARTICLE IV - RENTAL; ADJUSTMENTS
--------------------------------
4.01 DEFINITIONS. As used herein,
(A) "Property Taxes" shall mean the aggregate amount of all
real estate taxes, assessments (whether they be general or special),
sewer rents and charges, transit taxes, taxes based upon the receipt of
rent and any other federal, state or local government charge, general,
special, ordinary or extraordinary (but not including income, excess
profits or franchise taxes, capital stock, inheritance, estate, gift,
or any other taxes imposed upon or measured by Landlord's gross income
or profits, unless the same shall be imposed in lieu of real estate
taxes or other ad valorem taxes), which Landlord shall pay or become
obligated to pay in connection with the Building or the Project, if
applicable, or any part thereof. Property Taxes shall also include all
fees and costs, including reasonable attorneys' fees, appraisals and
consultants' fees, incurred by Landlord in seeking to obtain a
reassessment, reduction of, or a limit on the increase in, any Property
Taxes, regardless of whether any reduction or limitation is obtained.
Property Taxes for any calendar year shall be Property Taxes which are
due for payment or are paid during such year. Property Taxes shall
include any tax, assessment, levy, imposition or charge imposed upon
Landlord, and measured by or based in whole or in part upon the
Building or the Project, if applicable, or the rents or other income
from the Building or the Project, if applicable, to the extent that
such items would be payable if the Building or the Project, if
applicable, was the only property of Landlord subject to same and the
income received by Landlord from the Building or the Project, if
applicable, was the only income of Landlord. Property Taxes shall also
include any personal property taxes imposed upon the furniture,
fixtures, machinery, equipment, apparatus, systems and appurtenances of
Landlord which is not leased to other Tenants and is used in connection
with the Building or the Project, if applicable.
(B) "Operating Expenses" shall mean all costs, fees,
disbursements and expenses paid or incurred by or on behalf of Landlord
in the operation, ownership, maintenance, administration, insurance
management, replacement and repair of the Building or the Project, if
applicable, (excluding Property Taxes). If the Building is part of a
Project containing one or more other buildings: (i) Landlord may
reasonably allocate expenses (or categories thereof) incurred in
connection with the Project Common Areas between such buildings (based
on the relative square footage thereof or such other factors as
Landlord reasonably deems appropriate), in which case the amount
allocated to the Building shall be added to "Operating Expenses" for
the Building for such year,
-5-
<PAGE>
or (ii) Landlord may determine expenses (or categories thereof)
incurred in connection with the Project Common Areas as a whole, in
which case Tenant's Percentage Share of "Operating Expenses" shall be
based on the Rentable Area of the Premises as a percentage of the total
rentable area occupied by tenants in all buildings in the Project
(excluding single tenant buildings for which the tenants maintain the
Other Common Areas applicable thereto) and Tenant shall pay Tenant's
Percentage Share of Operating Expenses for the Project.
Operating Expenses shall not include costs of alteration of
the premises of tenants of the Building or the Project, if applicable,
depreciation charges, interest and principal payments on mortgages,
ground rental payments, real estate brokerage and leasing commissions,
expenses incurred in enforcing obligations of tenants of the Building
or the Project, if applicable, salaries and other compensation of
executive officers of the Landlord or the managing agent of the
Building or the Project, if applicable, senior to the Building manager,
costs of any special service provided to any one tenant of the Building
or the Project, if applicable, but not to tenants of the Building or
the Project, if applicable, generally, and costs of marketing or
advertising the Building or the Project, if applicable.
(C) "Insurance Expenses" shall mean all costs, fees,
disbursements and expenses paid or incurred by or on behalf of Landlord
for premiums for hazard, "all risk", casualty, rent interruption and
liability insurance and all other insurance, obtained by Landlord in
connection with or relating to the Building or the Project, if
applicable, and attributable to time periods within the term of the
Lease.
4.02 BASE RENT. During the Lease Term, Tenant shall pay to Landlord as
rental for the Premises the Base Rent described in Section 1.07 above, subject
to the following adjustments (herein collectively called the "Rent
Adjustments"):
(A) During each twelve (12) month period subsequent to the
first complete twelve (12) month period occurring during the Lease
Term, the Base Rent payable by Tenant to Landlord as described in
Section 1.07 shall be increased to the sum of (i) Base Rent payable
during the immediately previous 12-month period; plus (ii) two and
one-half (2.5%) percent of Base Rent payable during such immediately
previous 12-month period.
(B) During each calendar year during the Lease Term, the Base
Rent payable by Tenant to Landlord, as adjusted pursuant to Section
4.02(A) above, shall be increased by Tenant's Percentage Share of the
Property Taxes for such year (the "Tax Adjustment").
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(C) During each calendar year during the Lease Tenn, the Base
Rent payable by Tenant to Landlord, as adjusted pursuant to Section
4.02(A) above, also shall be increased by Tenant's Percentage Share of
the Operating Expenses paid or incurred by Landlord during such year
(the "Operating Expense Adjustment").
(D) During each calendar year during the Lease Term, the Base
Rent payable by Tenant to Landlord, as adjusted pursuant to Section
4.02(A) above, also shall be increased by Tenant's Percentage Share of
the Insurance Expenses for such year (the "Insurance Adjustment").
(E) The Tax Adjustment, the Operating Expense Adjustment and
the Insurance Adjustment are hereinafter referred to collectively as
the "Tax, Operating Expense and Insurance Adjustments".)
4.03 ADJUSTMENT PROCEDURE; ESTIMATES. The Tax, Operating Expense and
Insurance Adjustments specified in Sections 4.02(B), 4.02(C) and 4.02(D) shall
be determined and paid as follows:
(A) During each calendar year during the Lease Term, Landlord
shall give Tenant written notice of Landlord's estimate of amounts
payable under Sections 4.02(B), 4.02(C) and 4.02(D) for that calendar
year. On or before the first day of each calendar month during the
calendar year, Tenant shall pay to Landlord one-twelfth (1/12th) of
such estimated amounts; provided, however, that, not more often than
quarterly, Landlord may, by written notice to Tenant, revise its
estimate for such year, and subsequent payments by Tenant for such year
shall be based upon such revised estimate.
(B) Within one hundred twenty (120) days after the close of
each calendar year in which any Rent Adjustment is made or as soon
thereafter as is practicable, Landlord shall deliver to Tenant a
statement of that year's Property Taxes, Operating Expenses an
Insurance Expenses, and the actual Tax, Operating Expense and Insurance
Expense Adjustments to which Landlord is entitled pursuant to Sections
4.02(B), 4.02(C) and 4.02(D) for such calendar year, as determined and
certified by Landlord (the "Landlord's Statement") and such Landlord's
Statement shall be binding upon Tenant, except as provided in Section
4.04 below. If the amount of the actual Tax Adjustment, Insurance
Adjustment or Operating Expense Adjustment is more than the estimated
payments for the Tax Adjustment, Insurance Adjustment or Operating
Expense Adjustment for such calendar year made by Tenant, Tenant shall
pay the deficiency to Landlord within 10 days of receipt of Landlord's
Statement. If the amount of the actual Tax Adjustment, Insurance
Adjustment or Operating Expense Adjustment is less than the estimated
payments for such calendar year made by Tenant, any excess shall be
credited against Rent (as hereinafter
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defined) next payable by Tenant under this Lease or, if the Lease Term
has expired, any excess thereof shall be paid to Tenant. No delay in
providing the statements described in this Section 4.03(B) shall act as
a waiver of Landlord's right to payment under Sections 4.02(B), 4.02(C)
or 4.02(D) above. Notwithstanding the foregoing, Tenant's right to
receive any credit or payment pursuant to the preceding sentences of
this Section 4.03(B) is conditioned on Tenant not being in default
under this Lease on the date such credit or payment is due.
(C) If this Lease shall terminate on a day other than the end
of a calendar year, the amount of the Tax, Operating Expense and
Insurance Adjustments to be paid pursuant to Sections 4.02(B), 4.02(C)
and 4.02(D) that is applicable to the calendar year in which such
termination occurs shall be prorated on the basis of the number of days
from January 1 of the calendar year to the termination date bears to
365. The termination of this Lease shall not affect the obligations of
Landlord and Tenant pursuant to Section; 4.03(B) and 4.03(C) to be
performed after such termination.
4.04 REVIEW OF LANDLORD'S STATEMENT. Provided this Lease is in full
force and effect, but including 90 days after the receipt of the last Landlord's
statement, and that Tenant is not then in default under this Lease and provided
further that Tenant strictly complies with the provisions of this Section 4.04,
Tenant shall have the right, once each calendar year, to reasonably review
supporting data for any portion of a Landlord's Statement that Tenant claims is
incorrect, in accordance with the following procedure:
(A) Tenant shall, within ten (10) business days after any such
Landlord's Statement is delivered, deliver a written notice to Landlord
specifying the portions of the Landlord's Statement that Tenant wishes
to verify, and Tenant shall simultaneously pay to Landlord all amounts
due from Tenant to Landlord as specified in the Landlord's Statement.
Except as expressly set forth in subsection (C) below, 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
including the adjustment under Section 4.02(A) and all payments of
Tenant's Tax, Operating Expense and Insurance Adjustments) pending the
completion of and regardless of the results of any review of records
under this Section 4.04. The right of Tenant under this Section 4.04
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 4.04 for
a particular Landlord's Statement shall be deemed waived.
(B) Tenant acknowledges that Landlord maintains its records
for the Building or the Project, if applicable, at Landlord s manager s
corporate offices
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and Tenant agrees that any review of records under this Section 4.04
shall be at the sole expense of Tenant and shall be conducted by
Tenant's certified public accountants. Tenant acknowledges and agrees
that any records reviewed under this Section 4.04 constitute
confidential information of Landlord, which shall not be disclosed to
anyone other than the accountants performing the review and the
principals of Tenant who receive the results of the review. The
disclosure of such information to any other person, whether or not
caused by the conduct of Tenant, shall constitute a material breach of
this Lease, except in connection with litigation to enforce the
provisions of this Lease.
(C) 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 Landlord's certified public accountants.
In the event of a disagreement between the two accounting firms, the
review that discloses the least amount of deviation from the Landlord's
Statement in terms of amount 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, Operating
Expense and Insurance Adjustments. In the event that such results show
that Tenant has underpaid its obligations for a preceding period, the
amount of such underpayment shall be paid by Tenant to Landlord with
the next succeeding installment obligation of estimated Tax, Operating
Expense and Insurance Adjustments.
4.05 PAYMENT. Concurrently with the execution hereof, Tenant shall pay
Landlord Base Rent for the first calendar month of the Lease Term. Thereafter
the Base Rent described in Section 1.07, as adjusted in accordance with Section
4.02, shall be payable in advance on the first day of each calendar month. If
the Commencement Date is other than the first day of a calendar month, the
prepaid Base Rent for such partial month shall be prorated in the proportion
that the number of days this Lease is in effect during such partial month bears
to the total number of days in the calendar month. All Rent, and all other
amounts payable to Landlord by Tenant pursuant to the provisions of this Lease,
shall be paid to Landlord, without notice, demand, abatement (except as
expressly provided otherwise), deduction or offset, in lawful money of the
United States at Landlord's office in the Building or to such other person or at
such other place as Landlord may designate from time to time by written notice
given to Tenant. No payment by Tenant or receipt by Landlord of a lesser amount
than the correct Rent due hereunder shall be deemed to be other than a payment
on account; nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed to effect or evidence an accord and
satisfaction; and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance or pursue any other remedy in this Lease
or at law or in equity provided.
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4.06 LATE CHARGE; INTEREST. Tenant acknowledges that the late payment
of Base Rent or any other amounts payable by Tenant to Landlord hereunder (all
of which shall constitute additional rent to the same extent as Base Rent) will
cause Landlord to incur administrative costs and other damages, the exact amount
of which would be impracticable or extremely difficult to ascertain. Landlord
and Tenant agree that if Landlord does not receive any such payment on or before
five (5) days after the date the payment is due, Tenant shall pay to Landlord,
as additional rental, (a) a late charge equal to five percent (5%) of the
overdue amount to cover such additional administrative costs; and (b) interest
on the delinquent amounts at the lesser of the maximum rate permitted by law if
any or twelve percent (12%) per annum from the date due to the date paid.
4.07 ADDITIONAL RENT. For purposes of this Lease, all amounts payable
by Tenant to Landlord pursuant to this Lease, whether or not denominated as
such, shall constitute additional rental hereunder. Such additional rental,
together with the Base Rent and Rent Adjustments, shall sometimes be referred to
in this Lease as "Rent".
4.08 ADDITIONAL TAXES. Subject to the limitations stated in Section
4.01(A) of this Lease, in addition to the Rent and other charges to be paid by
Tenant hereunder, Tenant shall reimburse Landlord upon demand for all taxes
payable by or imposed upon Landlord upon or with respect to: any fixtures or
personal property located in the Premises; any leasehold improvements made in or
to the Premises by or for Tenant; the Rent payable hereunder, including, without
limitation, any gross receipts tax, license fee or excise tax levied by any
governmental authority; the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy of any portion of the Premises
(including, without limitation, any applicable possessory interest taxes); or
this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises.
ARTICLE V - SECURITY DEPOSIT
----------------------------
5.01 Upon the execution of this Lease, Tenant shall deposit with
Landlord the Security Deposit described in Section 1.09 above. The Security
Deposit is made by Tenant to secure the faithful performance of all the terms,
covenants and conditions of this Lease to be performed by Tenant. If Tenant
shall default with respect to any covenant or provision hereof, Landlord may
use, apply or retain all or any portion of the Security Deposit to cure such
default or to compensate Landlord for any loss or damage which Landlord may
suffer thereby. If Landlord so uses or applies all or any portion of the
Security Deposit, Tenant shall immediately upon written demand deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to the full
amount hereinabove stated. Landlord shall not be required to keep the Security
Deposit separate from its general accounts and Tenant shall not be entitled to
interest on the Security Deposit. Within thirty (30) days after the expiration
of the Lease Term
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and the vacation of the Premises by Tenant, the Security Deposit, or such part
as has not been applied to cure the default, shall be returned to Tenant. In the
event of any bankruptcy or other proceeding initiated by or against Tenant, it
is agreed that all such Security Deposit held hereunder shall be deemed to be
applied by Landlord to rent, sales tax and all other charges due from Tenant to
Landlord for the last month of the Term and each preceding month until such
Security Deposit is fully applied.
ARTICLE VI - USE OF PREMISES
----------------------------
6.01 TENANT'S PERMITTED USE. Tenant shall use the Premises only for
Tenant's Permitted Use as set forth in Section 1.10 above and shall not use or
permit the Premises to be used for any other purpose. Tenant shall, at its sole
cost and expense, obtain all governmental licenses and permits required to allow
Tenant to conduct Tenant's Permitted Use. Landlord disclaims any warranty that
the Premises are suitable for Tenant's use and Tenant acknowledges that it has
had a full opportunity to make its own determination in this regard.
6.02 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS.
(A) Tenant shall cause Tenant's use of the Premises to comply
in all material respects with all laws, ordinances, regulations and
directives of any governmental authority having jurisdiction including
without limitation any certificate of occupancy and any law, ordinance,
regulation, covenant, condition or restriction affecting the Building
or the Premises which in the future may become applicable to the
Premises (collectively "Applicable Laws").
(B) Tenant shall not use the Premises, or permit the Premises
to be used, in any manner which: (a) violates any Applicable Law; (b)
causes or is reasonably likely to cause damage to the Building, the
Project, if applicable, or the Premises; (c) violates a requirement or
condition of any standard fire and extended insurance policy covering
the Building or the Project, if applicable, and/or the Premises, or
increases the cost of such policy; (d) constitutes a nuisance,
annoyance or inconvenience to other tenants or occupants of the
Building or the Project, if applicable, or their equipment, facilities
or systems; (e) interferes with, or is reasonably likely to interfere
with, the transmission or reception of microwave, television, radio,
telephone or other communication signals by antennae or other
facilities located in the Building or the Project, if applicable; or (0
violates the Rules and Regulations described in Article XX.
(C) In addition to any other amounts payable by Tenant to
Landlord hereunder, Tenant shall pay to Landlord, as and when billed to
Tenant and as additional rental, Tenant's Percentage Share of the cost
of any improvements, capital expenditures, repairs or replacements to
the Building or the Project, if applicable, or any equipment or
machinery used in connection with the Building
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or the Project, if applicable, if any such item is required under any
Applicable Law as of the date of this Lease and throughout the Lease
Term; provided, however, that any such costs which are properly charged
to a capital account (together with reasonable financing charges) shall
be amortized for purposes of this Lease over their useful lives,
according to GAAP, and only the annual amortization amount (prorated
based on the number of days of the Lease term in the calendar year)
shall be payable by the Tenant with respect to any calendar year.
6.03 HAZARDOUS MATERIALS.
(A) No Hazardous Materials (as defined herein) shall be
Handled (as defined herein) upon, about, above or beneath the Premises
or any portion of the Building or the Project, if applicable, by or on
behalf of a Responsible Party (as defined herein), except in compliance
with applicable laws. Any such Hazardous Materials so Handled, or the
presence or migration of which is a result of the act or omission of a
Responsible Party, shall be known as Tenant's Hazardous Materials.
Notwithstanding the foregoing, Landlord acknowledges that, due to
Tenant's permitted use of the Premises, as indicated in Paragraph 6.01
of this Lease, Tenant will occasionally Handle Hazardous Materials on
the Premises which are in transit to their final destination; however,
such presence and Handling of Hazardous Materials shall be in
compliance with all applicable federal, state, local and environmental
laws and regulations and the following guidelines: (i) no nuclear or
explosive materials will be Handled by Tenant on the Premises, except
such radioactive isotopes as Tenant may Handle from time to time;
provided that such Handling shall be in accordance with the U.S.
Department of Transportation regulations and the International
Airtransport Association Dangerous Goods regulations; (ii) all
Hazardous Materials will be Handled in a well-marked area which is
segregated from other storage and handling areas and is used
exclusively for hazardous materials; (iii) Hazardous Materials will be
Handled in such a way that any such Materials which are incompatible or
reactive to each other shall be kept separate at all times such
Materials are on the Premises; (iv) Tenant shall provide written
documents or other written evidence to Landlord upon execution of the
Lease that all personnel who are responsible for the Handling or other
contact with Hazardous Materials have been properly trained, in
accordance with any applicable laws and/or regulations, to handle
spills of Hazardous Materials and that the required, appropriate spill
response equipment is maintained on site; (v) Tenant will provide
Landlord with written evidence that it is maintaining the appropriate
insurance coverage for the occasional presence or such Hazardous
Materials on the Premises upon execution of this Lease; and (vi) Tenant
will provide Landlord with written evidence that all of its employees
whose responsibilities include driving Tenant's trucks or other
vehicles are licensed in accordance with state, federal and local laws
and regulations to transport and
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Handle Hazardous Materials. Also, notwithstanding the foregoing, normal
quantities of those Tenant Hazardous Materials customarily used in the
conduct of general administrative and executive office activities
(e.g., copier fluids and cleaning supplies) may be Handled at the
Premises without Landlord's prior written consent, in compliance with
all applicable laws, but otherwise without the requirement of complying
with the foregoing restrictions.
(B) Tenant's Hazardous Materials shall be Handled at all times
in compliance with the manufacturer's instructions therefor and all
applicable Environmental Laws (as defined herein). Tenant's Hazardous
Materials shall not be disposed of, released, discharged or permitted
to spill, leak or migrate upon about, above or beneath the Premises or
any portion of the Building.
(C) With the exception to hazardous materials used for office
purposes, Tenant agrees to maintain only the Hazardous Materials listed
in Schedule I to Exhibit D in or at the Premises or the Building and
only in the quantities listed in Schedule I to Exhibit D. Tenant
further agrees that changes to the type and quantities of such Tenant's
Hazardous Materials may be done only with the prior written consent of
the Landlord, which consent shall not be unreasonably withheld. Tenant
further agrees that Landlord shall have the right to inspect the
Building to verify the types and quantities of the materials stored
therein.
(D) Notwithstanding the obligation of Tenant to indemnify
Landlord pursuant to this Lease, Tenant shall, at its sole cost and
expense, promptly take all actions required by any Regulatory
Authority, which requirements arise from the Handling, presence or
migration of Tenant's Hazardous Materials upon, about, above or beneath
the Premises or any portion of the Building, or the Project, if
applicable. Such actions shall include, but not be limited to, the
investigation of the environmental condition of the Premises or any
portion of the Building, or the Project, if applicable, the preparation
of any feasibility studies or reports and the performance of any
cleanup, remedial, removal or restoration work. Tenant shall take all
actions necessary to restore the Premises or any portion of the
Building or the Project, if applicable, to the condition existing prior
to the introduction of Tenant's Hazardous Materials, notwithstanding
any less stringent standards or remediation allowable under applicable
Environmental Laws. Tenant shall nevertheless obtain Landlord's written
approval prior to undertaking any actions required by this Section,
which approval shall not be unreasonably withheld so long as such
actions would not potentially have a material adverse long-term or
short-term effect on the Premises or any portion of the Building or the
Project, if applicable.
(E) Tenant shall immediately notify Landlord of: (i) its
knowledge of any disposal, release, discharge, spill, leak on, about,
above, or beneath, or any migration to or from the Premises or the
Building of Tenant's Hazardous
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Materials, (ii) any inspection, enforcement, cleanup or other
regulatory action taken or threatened by any Regulatory Authority with
respect to any of Tenant's Hazardous Materials on, about, above,
beneath or from the Premises or the Building or the migration thereof
from or to other property, (iii) any demands or claims made or
threatened by any party relating to any loss or injury claimed to have
resulted from any Hazardous Materials on, about, above, beneath or from
the Building, and (iv) any matters where Tenant is required by Law to
give a notice to any Regulatory Authority concerning Hazardous
Materials on or from the Premises or the Building. Landlord shall have
the right but not the obligation to notify Regulatory Authorities
concerning actual and claimed violations of this Article.
(F) Tenant agrees to execute affidavits, representations and
the like from time to time at Landlord's request stating Tenant's best
knowledge and belief regarding the presence of Tenant's Hazardous
Materials in the Premises or in or at the Building.
(G) "Environmental Laws" means and includes all now and
hereafter existing statutes, laws, ordinances, codes, regulations,
rules, rulings, orders, decrees, directives, policies and requirements
by any federal, state or local governmental authority regulating,
relating to, or imposing liability or standards of conduct concerning
public health and safety or the environment. Upon Tenant's written
request, Landlord agrees to provide Tenant with copies of any
environmental assessment in Lender's possession.
(H) "Hazardous Materials" means: (a) any material or
substance: (i) which is defined or becomes defined as a "hazardous
substance," "hazardous waste," "infectious waste," "chemical mixture or
substance," or "air pollutant" under Environmental Laws; (ii)
containing petroleum, crude oil or any fraction thereof; (ii)
containing polychlorinated biphenyls (PCB's); (iv) containing asbestos;
(v) which is radioactive; (b) any other material or substance
displaying toxic, reactive, ignitable or corrosive characteristics, as
all such terms are used in their broadest sense, and are defined or
become defined by Environmental Laws, or (c) materials which cause a
nuisance upon or waste to the Premises or any portion of the Building
or the Project, if applicable.
(I) "Handle," "handle," "Handled," "handled," "Handling" or
"handling" shall mean any installation, handling, generation, storage,
treatment, use, disposal, discharge, release, manufacture, refinement,
emission, abatement, removal, transportation, or any other activity of
any type in connection with or involving Hazardous Materials.
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(J) "Responsible Party" shall mean Tenant, its subtenants and
its assignees, and their respective contractors, clients, officers,
directors, employees, agents, and invitees, or any of them, as the case
may be.
(K) "Regulatory Authority" shall mean any federal, state or
local governmental agency, commission, board or political subdivision.
ARTICLE VII - UTILITIES AND SERVICES
------------------------------------
7.01 SERVICES. Landlord shall permit Tenant to use any existing utility
service connection into the Premises and Tenant, at its sole expense, shall
arrange with the appropriate utility company to install all necessary
connections and without fail to maintain in continuous operation during the
entire term of the Lease, all such utility service, whether or not Tenant is in
actual possession of the Premises. Tenant shall pay to the appropriate utility
company or other provider directly, or at Landlord's election as provided in
Section 7.02 below, to Landlord, for all water, gas, heat, electricity, light,
power, sweeping and other janitorial services, rubbish and trash disposal, pest
and rodent control, sewer, steam, fire protection, alarm or other security
services and any other utilities and services supplied in, about or related to
the Premises, together with any taxes thereon, connection charges and deposits,
and also shall pay for all electrical light bulbs, lamps and tubes in connection
therewith. Landlord reserves the right during the Term of this Lease to grant
easements or public utility purposes on, over, or below the Premises without any
abatement in rent, provided that said easements do not unreasonably interfere
with the Premises or the normal operation of the business conducted by Tenant in
the Premises. Landlord shall not be required to pay for any service, supplies or
upkeep in connection with the Premises. Tenant shall arrange for and pay for all
telephone and other communication services and equipment, including any
additions or alterations to the existing telephone service boards and conduit,
which shall be completed without interference to the service and/or equipment of
other tenants in the Building or the Project, if applicable, and which shall be
appropriately labeled upon the termination of this Lease.
7.02 SEPARATE METERING. If any utilities are not separately metered for
the Premises, Landlord may: (i) require that Tenant make reasonable arrangements
to share such utilities with the other parties whose premises are on such meter,
(ii) require that Tenant pay Landlord a share of such utilities based on the
Rentable Area of the Premises as a percentage of the total rentable area of
occupied space that is jointly metered, equitably adjusted for excessive utility
use by other tenants, or (iii) require that Tenant pay Landlord a share of such
utilities based on reasonable consumption estimates of Landlord's engineer or
consultant. In such case, either Landlord or Tenant may elect to install
separate meters (but the costs of installing, maintaining and reading such
meters shall be borne by Tenant). Landlord may reasonably estimate in advance
any amounts payable by Tenant to Landlord hereunder and Tenant shall pay such
amounts within ten (10) days after the same are billed,
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subject to periodic adjustment (and additional payment by Tenant or credit or
refund by Landlord) after the actual amounts have been determined.
7.03 INSTALLATION, CONNECTION AND USE OF UTILITY EQUIPMENT. Tenant
shall install and connect all equipment and lines required to supply such
utilities to the extent not already available at or serving the Premises, or at
Landlord's option shall repair, alter or replace any such existing items (or
Tenant shall share the costs thereof for any equipment shared with other
tenants), subject to the terms of Section 2.02 hereof. Tenant shall maintain,
repair and replace all such items, serving the Premises, exclusively, operate
the same, and keep the same in good working order, condition and repair, as
provided in Section 8.02. Tenant shall not install any equipment or fixtures, or
use the same, so as to exceed the safe and lawful capacity of any utility
equipment or lines serving the same. The installation, alteration, replacement
or connection of any utility equipment and lines shall be subject to the
requirements for Alterations of the Premises set forth in Article 9. Tenant
shall ensure that any supplemental HVAC equipment is installed and all HVAC
equipment is operated at all times in a manner to prevent roof leaks, damage or
noise due to vibrations or improper installation, maintenance or operation.
Tenant shall at all times keep the Premises sufficiently heated to avoid
freezing of pipes.
7.04 INTERRUPTION OR SERVICES. Landlord shall not be liable for any
failure to furnish, stoppage of, or interruption in furnishing any of the
services or utilities described in Section 7.01, when such failure is caused by
accident, breakage, repairs, strikes, lockouts, disputes, labor disturbances,
governmental regulation, civil disturbances, acts of war, moratorium or other
governmental action, or any other cause beyond Landlord's reasonable control,
and, in such event, Tenant shall not be entitled to any damages nor shall any
failure or, interruption abate or suspend Tenant's obligation to pay Base Rent
and additional rent required under this Lease or constitute or be construed as a
constructive or other eviction or Tenant. Further, in the event any governmental
authority or public utility promulgates or revises any law, ordinance, rule or
regulation, or issues mandatory controls or voluntary controls relating to the
use or conservation of energy, water, gas, light or electricity, the reduction
of automobile or other emissions, or the provision of any other utility or
service, Landlord may take any reasonably appropriate action to comply with such
law, ordinance, rule, regulation, mandatory control or voluntary guideline and
Tenant's obligations hereunder shall not be affected by any such action of
Landlord, provided Tenant's use of the Premises is not materially impaired. The
parties acknowledge that safety and security devices, services and programs
provided by Landlord, if any, while intended to deter crime and ensure safety,
may not in given instances prevent theft or other criminal acts, or ensure
safety of persons or property. The risk that any safety or security device,
service or program may not be effective, or may malfunction, or be circumvented
by a criminal, is assumed by Tenant with respect to Tenant's property and
interests, and Tenant shall obtain insurance coverage to the extent Tenant
desires protection against such criminal acts
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and other losses, as further described in this Lease. Tenant agrees to cooperate
in any reasonable safety or security program developed by Landlord or required
by Law.
Any amounts which Tenant is required to pay to Landlord pursuant to
this Article VII shall be payable within 30 days after written demand by
Landlord and shall constitute additional rent or Rent under this Lease.
ARTICLE VIII - MAINTENANCE AND REPAIRS
--------------------------------------
8.01 LANDLORD'S OBLIGATIONS.
(A) During the Lease Term, Landlord shall, at its expense,
maintain only the landscaped areas, parking lots, driveways, walkways,
foundation and the structural soundness of the exterior walls
(excluding all windows, plate glass, doors and pest control and
extermination) of the portion of the Building containing the Premises
in good working order, repair and condition except for reasonable wear
and tear. Landlord also shall maintain, at its expense, subject to
reimbursement as part of Operating Expenses, the roof, downspouts and
fire safety sprinkler system of the Building, and all HVAC systems that
do not exclusively serve the Premises. If Tenant determines that any
such repair or maintenance by Landlord is required, Tenant shall
promptly give written notice to Landlord of the need for such repair or
maintenance and unless Landlord in good faith disagrees with such
determination by Tenant, Landlord shall proceed with reasonable
promptness to perform such maintenance. Landlord shall not be liable to
Tenant, except as otherwise expressly provided in this Lease, for any
damage or inconvenience. Tenant shall not be entitled to any abatement
or reduction of Rent by reason of any repairs, alterations or additions
made by Landlord under this Lease, provided the same do not
unreasonably interfere with Tenant's use of the Premises.
(B) Tenant shall, at its sole cost, pay for any damage to the
foundation and/or external walls of the Building, or the Project, if
applicable, caused by any act, omission, negligence or fault of Tenant
or any employee, agent or contractor of Tenant.
8.02 TENANT'S OBLIGATIONS. During the Lease Term, Tenant shall, at its
risk and at its own sole cost and expense, maintain all other parts of the
Premises and other improvements in or on the Premises in good working order,
repair and condition (including all necessary replacements), including, but not
limited to, HVAC systems exclusively serving the Premises, all glass elements,
doors (including dock doors), dock bumpers, light bulbs, light fixtures, regular
mowing of any grass, trimming, weed removal, and regular removal of debris.
However, in a multi-occupancy Building, Landlord shall perform lawn and other
common area maintenance (including, without limitation, exterior painting and
maintenance of any HVAC system serving the
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common areas of the Building or serving the Premises, as well as other premises
in the Building) and in such instance Tenant agrees to pay Landlord for lawn and
other common area maintenance (including, without limitation, exterior painting
and HVAC maintenance) based on Tenant's Percentage Share with respect to
Operating Expenses, as provided in Article IV hereof (or, with respect to HVAC
maintenance, based on the ratio of the Rentable Area of the Premises to the
rentable area of all premises served by said HVAC system). Tenant shall take
good care of all property and its fixtures and suffer no waste. Tenant shall
engage a certified pest control firm to perform regular extermination for pests
as necessary. Should Tenant neglect to keep and maintain the Premises as
required herein, the Landlord shall have the right, but not the obligation, to
have the work done and any reasonable costs plus a ten percent (10%) overhead
charge therefor shall be charged to Tenant as additional rental and shall become
payable by Tenant with the payment of the rental next due under this Lease. In
connection with Tenant's maintenance and repair of the HVAC systems, Tenant
shall provide Landlord during the Term of this Lease and any renewal hereof with
a duplicate original of a maintenance contract, in form and substance acceptable
to Landlord, with an HVAC maintenance firm acceptable to Landlord. Further,
Tenant shall be responsible for, and upon demand by Landlord shall promptly
reimburse Landlord for, any damage to any portion of the Project, if applicable,
the Building or the Premises caused by (a) Tenant's activities in the Building
or the Premises; (b) the performance or existence of any alterations, additions
or improvements made by Tenant in or to the Premises; (c) the installation, use,
operation or movement of Tenant's property in or about the Building or the
Premises; or (d) any act or omission by Tenant or its officers, partners,
employees, agents, contractors or invitees.
8.03 REPAIR DAMAGE. Tenant shall, at its own cost and expense, repair
or replace any damage or injury to all or any part of the Premises, the Building
and the Project, if applicable, caused by Tenant or Tenant's agents, employees,
invitees, licensees or visitors; provided, however, if Tenant fails to make such
repairs or replacements promptly, Landlord may, at its option, make such repairs
or replacements and Tenant shall reimburse the cost, plus a ten percent (10%)
overhead charge therefor, to Landlord on demand.
8.04 NO WASTE. Tenant shall not commit or allow any waste or damage to
be committed on any portion of the Premises.
8.05 LANDLORD'S RIGHTS. Landlord and its contractors shall have the
right, at all reasonable times and upon reasonable prior oral or telephone
notice to Tenant at the Premises, other than in the case of any emergency in
which case no notice shall be required, to enter upon the Premises to make any
repairs to the Premises or the Building reasonably required or deemed reasonably
necessary by Landlord and to erect such equipment, including scaffolding, as is
reasonably necessary to effect such repairs. During the pendency of such
repairs, Landlord shall use reasonable efforts to minimize any material
interruption of Tenant's business.
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ARTICLE IX - ALTERATIONS, ADDITIONS AND IMPROVEMENTS
----------------------------------------------------
9.01 LANDLORD'S CONSENT; CONDITIONS. Tenant shall not make or permit to
be made any alterations, additions, or improvements in or to the Premises
("Alterations") without the prior written consent of Landlord, which consent,
with respect to non-structural alterations, shall not be unreasonably withheld.
Landlord may impose as a condition to making any Alterations such requirements
as Landlord in its reasonable discretion deems necessary or desirable including
without limitation: Tenant's submission to Landlord, for Landlord's prior
written approval, of all plans and specifications relating to the Alterations;
Landlord's prior written approval of the time or times when the Alterations are
to be performed; Landlord's prior written approval of the contractors and
subcontractors performing work in connection with the Alterations; employment of
union contractors and subcontractors who shall not cause labor disharmony;
Tenant's receipt of all necessary permits and approvals from all governmental
authorities having jurisdiction over the Premises prior to the construction of
the Alterations; Tenant's delivery to Landlord of such bonds and insurance as
Landlord shall reasonably require; and Tenant's payment to Landlord of all costs
and expenses incurred by Landlord because of Tenant's Alterations, including but
not limited to costs incurred in reviewing the plans and specifications for, and
the progress of, the Alterations. Tenant is required to provide Landlord written
notice of whether the Alterations include the Handling of any Hazardous
Materials and whether these materials are of a customary and typical nature for
industry practices. Upon completion of the Alterations, Tenant shall provide
Landlord with copies of as-built plans. Neither the approval by Landlord of
plans and specifications relating to any Alterations nor Landlord's supervision
or monitoring of any Alterations shall constitute any warranty by Landlord to
Tenant of the adequacy of the design for Tenant intended use or the proper
performance of the Alterations.
9.02 PERFORMANCE OR ALTERATIONS WORK. All work relating to the
Alterations shall be performed in compliance with the plans and specifications
approved by Landlord, all applicable laws, ordinances, rules, regulations and
directives of all governmental authorities having jurisdiction and the
requirements of all carriers of insurance on the Premises and the Building, the
Board of Underwriters, Fire Rating Bureau, or similar organization. All work
shall be performed in a diligent, first class manner and so as not to
unreasonably interfere with any other tenants or occupants of the Building or
the Project, if applicable. All reasonable costs incurred by Landlord relating
to the Alterations shall be payable to Landlord by Tenant as additional rent
upon demand. No asbestos-containing materials shall be used or incorporated in
the Alterations. No lead-containing surfacing material, solder, or other
construction materials or fixtures where the presence of lead might create a
condition or exposure not in compliance with Environmental Laws shall be
incorporated in the Alterations.
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9.03 LIENS. If reasonably required by Landlord, for alterations costing
$2,500 or more, Tenant shall pay when due all costs for work performed and
materials supplied to the Premises. Tenant shall keep Landlord, the Premises and
the Building free from all liens, stop notices and violation notices relating to
the Alterations or any other work performed for, materials furnished to or
obligations incurred by or for Tenant and Tenant shall protect, indemnify, hold
harmless and defend Landlord, the Premises and the Building of and from any and
all loss, cost, damage, liability and expense, including attorneys' fees,
arising out of or related to any such liens or notices. Further, Tenant shall
give Landlord not less than seven (7) business days prior written notice before
commencing any Alterations in or about the Premises to permit Landlord to post
appropriate notices of non-responsibility. Tenant shall also secure, prior to
commencing any Alterations, at Tenant's sole expense, a completion and lien
indemnity bond satisfactory to Landlord for such work. During the progress of
such work, Tenant shall, upon Landlord's request, furnish Landlord with sworn
contractor's statements and lien waivers covering all work theretofore
performed. Tenant shall satisfy, bond over to Landlord's satisfaction, or
otherwise discharge all liens, stop notices or other claims or encumbrances
within 15 days after Landlord notifies Tenant in writing that any such lien,
stop notice, claim or encumbrance has been filed. If Tenant fails to pay and
remove such lien, claim of encumbrance within such 15 days, Landlord, at its
election, may pay and satisfy the same and in such event the sums so paid by
Landlord, with interest from the date of payment at the rate set forth in
Section 4.06 hereof for amounts owed Landlord by Tenant shall be deemed to be
additional rent due and payable by Tenant at once without notice or demand.
9.04 REMOVAL OR ALTERATIONS. With the exception of Tenant's trade
fixtures, all Alterations shall become a part of the Premises and shall become
the property of Landlord upon the expiration or earlier termination of this
Lease, unless Landlord shall, by written notice given to Tenant, require Tenant
to remove some or all of Tenant's Alterations (whether installed during the Term
of this Lease or any previous occupancy of the Premises by Tenant), in which
event Tenant shall promptly remove the designated Alterations and shall promptly
repair any resulting damage, all at Tenant's sole expense. All business and
trade fixtures, machinery and equipment, furniture, movable partitions and items
of personal property owned by Tenant or installed by Tenant at its expense in
the Premises shall be and remain the property of Tenant; upon the expiration or
earlier termination of this Lease, Tenant shall, at its sole expense, remove all
such items and repair any damage to the Premises or the Building caused by such
removal. If Tenant fails to remove any such items or repair such damage promptly
after the expiration or earlier termination of the Lease, Landlord may, but need
not, do so with no liability to Tenant, and Tenant shall pay Landlord the
reasonable cost thereof upon demand. Notwithstanding the foregoing to the
contrary, in the event Landlord gives its consent, pursuant to the provisions of
Section 9.01 of this Lease, to allow Tenant to make an Alteration in the
Premises, Landlord agrees to notify Tenant in writing at the time of the giving
of such consent whether Landlord will require Tenant, at Tenant's cost, to
remove such Alteration at the end of the Lease Term.
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ARTICLE X - INDEMNIFICATION AND INSURANCE
-----------------------------------------
10.01 INDEMNIFICATION.
(A) Tenant agrees to protect, indemnify, hold harmless and
defend Landlord and any Mortgagee, as defined herein, and each of their
respective partners, directors, officers, agents and employees,
successors and assigns, regardless of any negligence of, or imputed to
Landlord as owner of the Building, Premises or underlying real
property, from and against:
(i) any and all loss, cost, damage, liability or
expense as incurred (including but not limited to actual
attorneys' fees and legal costs) arising out of or related to
any claim, suit or judgment brought by or in favor of any
person or persons for damage, loss or expense due to, but not
limited to, bodily injury, including death, or property damage
sustained by such person or persons which arises out of, is
occasioned by or is in any way attributable to the use or
occupancy of the Premises or any portion of the Building or
the Project, if applicable, by Tenant or the acts or omissions
of Tenant or its agents, employees, contractors, clients,
invitees or subtenants except that caused by the sole active
negligence of Landlord or its agents or employees. Such loss
or damage shall include, but not be limited to, any injury or
damage to, or death of, Landlord's employees or agents or
damage to the Premises or any portion of the Building or the
Project, if applicable.
(ii) any and all environmental damages which arise
from: (i) the Handling, presence or migration of any Tenant's
Hazardous Materials, as defined in Section 6.03 or (ii) the
breach of any of the provisions of this Lease. For the purpose
of this Lease, "environmental damages" shall mean (a) all
claims, judgments, damages, penalties, fines, costs,
liabilities, and losses (including without limitation,
diminution in the value of the Premises or any portion of the
Building or the Project, if applicable, damages for the loss
of or restriction on the use of rentable or usable space or of
any amenity of the Premises or any portion of the Building or
the Project, if applicable, and from any adverse impact of
Landlord's marketing of space); (b) all reasonable sums paid
for settlement of claims, attorneys' fees, consultants' fees
and experts' fees; and (c) all costs incurred by Landlord in
connection with investigation or remediation relating to the
Handling of Tenant's Hazardous Materials, whether or not
required by Environmental Laws, necessary for Landlord to make
full economic use of the Premises or any portion of the
Building or the Project, if applicable, or otherwise required
under this Lease. To the extent that Landlord is strictly
liable under any Environmental Laws, Tenant's
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obligation to Landlord and the other indemnities under the
foregoing indemnification shall likewise be without regard to
fault on Tenant's part with respect to the violation of any
Environmental Law which results in liability to the
indemnitee. Tenant's obligations and liabilities pursuant to
this Section 10.01 shall survive the expiration or earlier
termination of this Lease.
(iii) any and all testing or investigation as may be
requested by any governmental agency or lender for the purpose
of investigating the presence of Tenant's Hazardous Materials
that may not be in compliance with Environmental Laws.
(B) Notwithstanding anything to the contrary contained herein,
nothing shall be interpreted or used to in any way affect, limit,
reduce or abrogate any insurance coverage provided by any insurers to
either Tenant or Landlord.
(C) Notwithstanding anything to the contrary contained in this
Lease, nothing herein shall be construed to infer or imply that Tenant
is a partner, joint venturer, agent, employee, or otherwise acting by
or at the direction of Landlord.
10.02 PROPERTY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure
and maintain, at its sole expense, "all-risk" property insurance, for
damage or other loss caused by fire or other casualty or cause
including, but not limited to, vandalism and malicious mischief, theft,
water damage of any type, including sprinkler leakage, bursting of
pipes, explosion, in an amount not less than one hundred percent (100%)
of the replacement cost covering (a) all leasehold improvements in and
to the Premises and (b) Tenant's trade fixtures, equipment, business
records and other personal property from time to time situated in the
Premises, including, without limitation, all floor and wall coverings.
The proceeds of such insurance shall be used for the repair or
replacement of the property so insured, except that if not so applied
or if this Lease is terminated following a casualty, the proceeds
applicable to restoration of the leasehold improvements shall be paid
to Landlord and the proceeds applicable to Tenant's personal property
and trade fixtures shall be paid to Tenant.
(B) At all times during the Lease Term, Tenant shall procure
and maintain business interruption insurance in such amount as will
reimburse Tenant for direct or indirect loss of earnings attributable
to all perils insured against in Section 10.02(A).
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(C) Landlord shall at all times during the Lease Term procure
and maintain "all-risk" property insurance in the amount not less than
one hundred percent (100%) of the insurable replacement cost covering
the Building in which the Premises are located and such other insurance
as may be required by a Mortgagee or otherwise desired by Landlord.
10.03 LIABILITY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure
and maintain, at its sole expense, commercial general liability
insurance applying to the use and occupancy of the Premises and the
business operated by Tenant. Such insurance shall have a minimum
combined single limit of liability of at least One Million Dollars
($1,000,000) per occurrence and a general aggregate limit of at least
Two Million Dollars, ($2,000.000). All such policies shall be written
to apply to all bodily injury, property damage, personal injury losses
and shall be endorsed to include Landlord and its agents,
beneficiaries, partners, employees, and any deed of trust holder or
mortgagee of Landlord or any ground lessor as additional insureds. (A
list of the current persons and entities to be named as additional
insureds is attached hereto as Exhibit E.) Such liability insurance
shall be written as primary policies, not excess or contributing with
or secondary to any other insurance as may be available to the Landlord
or additional insureds.
(B) Prior to the sale, storage, use or giving away of
alcoholic beverages on or from the Premises by Tenant or another
person, Tenant, at its own expense, shall obtain a policy or policies
of insurance issued by a responsible insurance company and in a form
acceptable to Landlord saving harmless and protecting Landlord and the
Premises against any and all damages, claims, liens, judgments,
expenses and costs, including actual attorney's fees, arising under any
present or future law, statute, or ordinance of the State of Minnesota
or other governmental authority having jurisdiction of the Premises, by
reason or any storage, sale, use or giving away of alcoholic beverages
on or from the Premises. Such policy or policies or insurance shall
have a minimum combined single limit of One Million Dollars
($1,000,000) per occurrence and shall apply to bodily injury, fatal or
nonfatal; injury to means of support; and injury to property of any
person. Such policy or policies of insurance shall name the Landlord
and its agents, beneficiaries, partners, employees and any mortgagee of
Landlord or any ground lessor of Landlord as additional insureds. (A
list of the current persons and entities to be named as additional
insureds is attached hereto as Exhibit E.)
(C) Landlord shall, at all times during the Lease Term,
procure and maintain commercial general liability insurance for the
Building and Common Area in which the Premises are located. Such
insurance shall have minimum combined single limit of liability of
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at least Two Million ($2,000,000) per occurrence, and a general
aggregate limit of at least Two Million Dollars ($2,000,000).
10.04 WORKERS' COMPENSATION INSURANCE. At all times during the Lease
Term, Tenant shall procure and maintain Workers' Compensation Insurance in
accordance with the laws of the State of Minnesota, and Employers' Liability
insurance with a limit not less than ($500,000) Bodily Injury Each Accident;
($500,000) Bodily Injury By Disease - Each person; and ($500,000) Bodily Injury
by Disease - Policy Limit.
10.05 Deleted.
10.06 PLATE GLASS INSURANCE. At any time during the Lease Term when
there is plate glass in or on the Premises, Tenant shall procure and maintain,
at its sole expense, plate glass insurance covering all the plate glass of the
Premises in amounts satisfactory to Landlord.
10.07 WAREHOUSEMAN'S INSURANCE. At any time during the Lease Term when
Tenant's use of the Premises includes or involves any activity as a bonded
agent, consignee or warehouseman, Tenant shall procure and maintain, at its sole
expense, insurance covering all goods and materials held at the Premises in such
capacity, providing protection against all damage, loss, theft, or other peril
which may occur in connection therewith in an amount not less than Five Million
Dollars ($5,000,000.00).
10.08 POLICY REQUIREMENTS. All insurance required to be maintained by
Tenant shall be issued by insurance companies authorized to do insurance
business in the State of Minnesota and rated not less than A-VIII in Best's
Insurance Guide or a Standard and Poor's claims paying ability rating of not
less than AA. A certificate of insurance (or, at Landlord's option, copies of
the applicable policies) evidencing the insurance required under this Article X
shall be delivered to Landlord not less than thirty (30) days prior to the
Commencement Date. No such policy shall be subject to cancellation or
modification without thirty (30) days prior written notice to Landlord and to
any deed of trust holder, mortgagee or ground lessor designated by Landlord to
Tenant. Tenant shall furnish Landlord with a replacement certificate with
respect to any insurance not less than thirty (30) days prior to the expiration
of the current policy. Tenant shall have the right to provide the insurance
required by this Article X pursuant to blanket policies, but only if such
blanket policies expressly provide coverage to the Premises and the Landlord as
required by this Lease.
10.09 WAIVER OR CLAIMS. Except for claims arising from Landlord's
intentional or grossly negligent acts of Landlord's breach of this Lease that
are not covered by Tenant's insurance hereunder, Tenant waives all claims
against Landlord for injury or death to persons, damage to property or to any
other interest of Tenant sustained by Tenant or any party claiming through
Tenant resulting from: (i) any occurrence in or
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upon the Premises, (ii) leaking of roofs, bursting, stoppage or leaking of
water, gas, sewer or steam pipes or equipment, including sprinklers, (iii) wind,
rain, snow, ice, flooding, freezing, fire, explosion, earthquake, excessive heat
or cold, fire or other casualty, (iv) the Building, Premises, systems or
equipment therefor being defective, out of repair, or failing, and (v)
vandalism, malicious mischief, theft or other acts or omissions of any other
parties including, without limitation, other tenants, contractors and invitees.
To the extent that Tenant is required to or does carry insurance hereunder,
Tenant agrees that Tenant's property loss risks shall be borne by such
insurance, and Tenant agrees to look solely to and seek recovery only from its
insurance carriers in the event of such losses; for purposes hereof, any
deductible amount shall be treated as though it were recoverable under such
policies.
10.10 WAIVER OR SUBROGATION. Each party hereby waives any right of
recovery against the other for injury or loss covered by insurance or required
to be covered, to the extent of the injury or loss covered thereby. Any policy
of insurance to be provided by Tenant pursuant to this Article X shall contain a
clause denying the insurer any right of subrogation against Landlord.
10.11 FAILURE TO INSURE. If Tenant fails to maintain any insurance
which Tenant is required to maintain pursuant to this Article X, Tenant shall be
liable to Landlord for any loss or cost resulting from such failure to maintain.
Tenant may not self-insure against any risks required to be covered by insurance
without Landlord's prior written consent.
ARTICLE XI - DAMAGE OR DESTRUCTION
----------------------------------
11.01 TOTAL DESTRUCTION. Except as provided in Section 11.03 below,
this Lease shall automatically terminate if the Building is totally destroyed.
11.02 PARTIAL DESTRUCTION OR PREMISES. If the Premises are damaged by
any casualty and, in Landlord's opinion, the Premises (exclusive of any
Alterations made to the Premises by Tenant) can be restored to its preexisting
condition within two hundred forty (240) days after the date of the damage or
destruction using only the insurance proceeds made available to Landlord,
Landlord shall, upon written notice from Tenant to Landlord of such damage,
except as provided in Section 11.03, promptly and with due diligence use
available insurance proceeds to repair any damage to the Premises (exclusive of
any Alterations to the Premises made by Tenant, which shall be promptly repaired
by Tenant at its sole expense) and, until such repairs are completed, the Rent
shall be equitably abated from the date of damage or destruction in the same
proportion that the rentable area of the portion of the Premises which is
unusable by Tenant in the conduct of its business bears to the total rentable
area of the Premises. If such repairs cannot, in Landlord's opinion, either (i)
be made within said two hundred forty (240) day period, or (ii) be completed
using only the insurance proceeds made available to Landlord, then Landlord may,
at its option, exercisable by written notice given to
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Tenant within thirty (30) days after the date of the damage or destruction,
elect to make the repairs within a reasonable time after the damage or
destruction, in which event this Lease shall remain in full force and effect but
the Rent shall be abated as provided in the preceding sentence; if Landlord does
not so elect to make the repairs, then either Landlord or Tenant shall have the
right, by written notice given to the other within sixty (60) days after the
date of the damage or destruction, to terminate this Lease as of the date of the
damage or destruction.
11.03 EXCEPTIONS TO LANDLORD'S OBLIGATIONS. Notwithstanding anything to
the contrary contained in this Article XI, Landlord shall have no obligation to
repair the Premises if either: (a) the Building in which the Premises are
located is so damaged as to require repairs to the Building exceeding twenty
percent (20%) of the full insurable value of the Building; or (b) Landlord
elects to demolish the Building in which the Premises are located; or (c) the
damage or destruction occurs less than two (2) years prior to the Expiration
Date, exclusive of option periods. In addition, Landlord's obligation to repair
as set forth in this Article XI shall be limited to the extent of insurance
proceeds made available to Landlord. Further, Tenant's Rent shall not be abated
if either (i) the damage or destruction is repaired within five (5) business
days after Landlord receives written notice from Tenant of the casualty, or (ii)
Tenant, or any officers, partners, employees, agents or invitees of Tenant, or
any assignee or subtenant of Tenant, is, in whole or in part, responsible for
the damage or destruction.
11.04 WAIVER. The provisions contained in this Lease Article XI shall
supersede any contrary laws (whether statutory, common law or otherwise) now or
hereafter in effect relating to damage, destruction, self-help or termination.
ARTICLE XII - CONDEMNATION
--------------------------
12.01 TAKING. If the entire Premises or so much of the Premises as to
render the balance unusable by Tenant for the permitted uses stated in this
Lease shall be taken by condemnation, sale in lieu of condemnation or in any
other manner for any public or quasi-public purpose (collectively
"Condemnation"), and if the Landlord, at its option, is unable or unwilling to
provide substitute premises reasonably acceptable to Tenant and containing at
least as much rentable area as described in Section 1.02 above, then this Lease
shall terminate, including Tenant's obligation to pay rent, on the date that
title or possession to the Premises is taken by the condemning authority,
whichever is earlier.
12.02 AWARD. In the event of any Condemnation, the entire award for
such taking shall belong to Landlord. Tenant shall have no claim against
Landlord or the award for the value of any unexpired term of this Lease or
otherwise. Tenant shall be entitled to independently pursue a separate award in
a separate proceeding for Tenant's relocation costs directly associated with the
taking.
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12.03 TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or entitle Tenant to any abatement of the Rent payable to
Landlord under this Lease; provided, further, that any award for such temporary
taking shall belong to Tenant to the extent that the award applies to any time
period during the Lease Term and to Landlord to the extent that the award
applies to any time period outside the Lease Term. The phrase "temporary taking"
shall mean a taking that interferes with Tenant's use of the Premises for no
more than 180 days. The rent payable hereunder shall abate equitably during any
temporary taking.
ARTICLE XIII - DELETED
----------------------
ARTICLE XIV - ASSIGNMENT AND SUBLETTING
---------------------------------------
14.01 RESTRICTION. Without the prior written consent of Landlord,
Tenant shall not, either voluntarily or by operation of law, assign, encumber,
or otherwise transfer this Lease or any interest herein, or sublet the Premises
or any part thereof, or permit the Premises to be occupied by anyone other than
Tenant or Tenant's employees (any such assignment, encumbrance, subletting,
occupation or transfer is hereinafter referred to as a "Transfer"). For purposes
of this Lease, the term "Transfer" shall also include (a) if Tenant is a
partnership, the withdrawal or change, voluntary, involuntary or by operation or
law, of a majority of the partners, or a transfer of a majority of partnership
interests, within a twelve month period, or the dissolution of the partnership,
and (b) if Tenant is a closely held corporation (i.e. whose stock is not
publicly held and not traded through an exchange or over the counter), or a
limited liability company, the dissolution, merger, consolidation, division,
liquidation or other reorganization or Tenant, or within a twelve month period:
(i) the sale or other transfer of more than an aggregate of 50% of the voting
securities of Tenant (other than to immediate family members by reason of gift
or death) or (ii) the sale, mortgage, hypothecation or pledge of more than an
aggregate of 50% of Tenant's net assets. An assignment, subletting or other
action in violation or the foregoing shall be void and, at Landlord's option,
shall constitute a material breach of this Lease. Notwithstanding anything
contained in this Article XIV to the contrary, Tenant shall have the right to
assign the Lease or sublease the Premises, or any part thereof, to an
"Affiliate" without the prior written consent of Landlord, but upon at least
twenty (20) days prior written notice to Landlord, provided that the use of the
Premises by said Affiliate is identical to the use in Section 1.10 of the Lease.
For purposes of this provision, the term "Affiliate" shall mean any corporation
or other entity controlling, controlled by, or under common control with
(directly or indirectly) Tenant, including, without limitation, any parent
corporation controlling Tenant or any subsidiary that Tenant controls. The term
"control", as used herein, shall mean the power to direct or cause the direction
of the management and policies of the controlled entity through the ownership of
more than fifty percent (50%) of the voting securities in such controlled
entity. Notwithstanding anything contained in this Article XIV to the contrary,
Tenant expressly covenants and agrees not to enter into any lease,
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sublease, license, concession or other agreement for use, occupancy or
utilization of the Premises which provides for rental or other payment for such
use, occupancy or utilization based in whole or in part on the net income or
profits derived by any person from the property leased, used, occupied or
utilized (other than an amount based on a fixed percentage or percentages of
receipts or sales), and that any such purported lease, sublease, license,
concession or other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use, occupancy or
utilization or any part of the Premises.
14.02 NOTICE TO LANDLORD. If Tenant desires to assign this Lease or any
interest herein, or to sublet all or any part of the Premises, then at least
thirty (30) days but not more than one hundred eighty (180) days prior to the
effective date of the proposed assignment or subletting, Tenant shall submit to
Landlord in connection with Tenant's request for Landlord's consent:
(A) A statement containing (i) the name and address of the
proposed assignee or subtenant; (ii) such financial information with
respect to the proposed assignee or subtenant as Landlord shall
reasonably require; (iii) the type of use proposed for the Premises;
and (iv) all of the principal terms of the proposed assignment or
subletting; and
(B) Four (4) originals of the assignment or sublease on a form
approved by Landlord and four (4) originals of the Landlord's Consent
to Sublease or Assignment and Assumption of Lease and Consent.
14.03 Deleted.
14.04 LANDLORD'S CONSENT; STANDARDS. Landlord's consent to a proposed
assignment or subletting shall not be unreasonably withheld; but, in addition to
any other grounds for denial Landlord's consent shall be deemed reasonably
withheld if, in Landlord's good faith judgment: (i) the proposed assignee or
subtenant does not have the financial strength to perform its obligations under
this Lease or any proposed sublease; (ii) the business and operations of the
proposed assignee or subtenant are not compatible with the business and
operations being conducted by other tenants in the Building; (iii) the proposed
assignee or subtenant intends to use any part of the Premises for a purpose not
permitted under this Lease; (iv) either the proposed assignee or subtenant, or
any person which directly or indirectly controls, is controlled by, or is under
common control with the proposed assignee or subtenant occupies space in the
Building or the Project, if applicable, or is negotiating with Landlord to lease
space in the Building or the Project, if applicable; (v) the proposed assignee
or subtenant is disreputable; or (vi) the use of the Premises or the Building by
the proposed assignee or subtenant would, in Landlord's reasonable judgment
impact the Building in a negative manner including, but not limited to,
significantly increasing the pedestrian traffic, parking capacity and
requirements, and truck traffic in and out of
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the Building or requiring any alterations to the Building to comply with
applicable laws; (vii) the space to be sublet is not regular in shape with
appropriate means of ingress and egress suitable for normal renting purposes
(viii) the transferee is a government (or agency or instrumentality thereof) or
(ix) Tenant has failed to cure a default at the time Tenant requests consent to
the proposed Transfer.
14.05 ADDITIONAL RENT. If Landlord consents to any such assignment or
subletting, 50% of all sums or other economic consideration received by Tenant
in connection with such assignment or subletting, whether denominated as rental
or otherwise, which exceeds, in the aggregate, the total sum which Tenant is
obligated to pay Landlord under this Lease (prorated to reflect obligations
allocable to less than all of the Premises under a sublease, and a net of
Tenant's costs, including realtor commissions) shall be paid to Landlord
promptly after receipt as additional Rent under the Lease without affecting or
reducing any other obligation of Tenant hereunder.
14.06 LANDLORD'S COSTS. If Tenant shall Transfer this Lease of all or
any part of the Premises or shall request the consent of Landlord to any
Transfer, Tenant shall pay to Landlord as additional rent Landlord's reasonable
costs related thereto, including Landlord's reasonable attorneys' fees.
14.07 CONTINUING LIABILITY OR TENANT. Notwithstanding any Transfer,
including an assignment or sublease to an affiliate, Tenant shall remain as
fully and primarily liable for the payment of Rent and for the performance of
all other obligations of Tenant contained in this Lease to the same extent as if
the Transfer had not occurred; provided, however, that any act or omission of
any transferee that violates the terms of this Lease shall be deemed a violation
of this Lease by Tenant.
14.08 NON-WAIVER. The consent by Landlord to any transfer shall not
relieve Tenant, or any person claiming through or by Tenant, of the obligation
to obtain the consent of Landlord, pursuant to this Article XIV, to any further
Transfer. In the event of an assignment or subletting, Landlord may collect rent
from the assignee or the subtenant without waiving any rights hereunder and
collection of the rent from a person other than Tenant shall not be deemed a
waiver of any of Landlord's rights under this Article XIV, an acceptance of
assignee or subtenant as Tenant, or a release of Tenant from the performance of
Tenant's obligations under this Lease. If Tenant shall default under this Lease
and fail to cure within the time permitted, Landlord is irrevocably authorized,
as Tenant's agent and attorney-in-fact, to direct any assignee or subtenant to
make all payments under or in connection with the Transfer directly to Landlord
(which Landlord shall apply towards Tenant's obligations under this Lease) until
such default is cured.
ARTICLE XV - DEFAULT AND REMEDIES
---------------------------------
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15.01 EVENTS OF DEFAULT BY TENANT. The occurrence of any of the
following shall constitute a material default and breach of this Lease by
Tenant:
(A) The failure by Tenant to pay Base Rent or make any other
payment required to be made by Tenant hereunder as and when due.
(B) The abandonment of the Premises by Tenant or the vacation
of the Premises by Tenant for thirty (30) consecutive days (with or
without the payment of Rent).
(C) The making by Tenant of any assignment of this Lease or
any sublease or all or part of the Premises, except as expressly
permitted under Article XIV of this Lease.
(D) The failure by Tenant to observe or perform any other
provision of this Lease to be observed or performed by Tenant, other
than those described in Sections 15.01(A), 15.01(B) or 15.01(C) above,
if such failure continues for thirty (30) days after written notice
thereof by Landlord to Tenant; provided, however, that if the nature of
the default is such that it cannot be cured within the thirty (30) day
period, no default shall be deemed to exist if Tenant commences the
curing of the default promptly within such thirty (30) day period and
thereafter diligently prosecutes the same to completion and achieves
the same within ninety (90) days after the occurrence of such default.
The thirty (30) day notice described herein shall be in lieu of, and
not in addition to, any notice required under law now or hereafter in
effect requiring that notice of default be given prior to the
commencement of an unlawful detainer or other legal proceeding.
(E) The making by Tenant of any general assignment for the
benefit of creditors, the filing by or against Tenant or any one or
more of the Guarantors, if any, of a petition under any federal or
state bankruptcy or insolvency laws (unless, in the case of a petition
filed against Tenant or any one or more of the Guarantors, if any, the
same is dismissed within thirty (30) days after filing); the
appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets at the Premises or Tenant's
interest in this Lease or the Premises, when possession is not restored
to Tenant within thirty (30) days; the attachment, execution or other
seizure of substantially all of Tenant's assets located at the Premises
or Tenant's interest in this Lease or the Premises, if such seizure is
not discharged within thirty (30) days; or the death or the dissolution
of Tenant or any one or more of the Guarantors, if any.
(F) Any material misrepresentation herein, or material
misrepresentation or omission in any financial statements or other
materials provided by Tenant or any Guarantor in connection with
negotiating or entering into this Lease or in connection with any
Transfer under Section 14.01.
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<PAGE>
15.02 LANDLORD'S RIGHT TO TERMINATE UPON TENANT DEFAULT. In the event
of any default by Tenant as provided in Section 15.01 above, Landlord shall have
the right to terminate this Lease or to terminate Tenant's right to possession
of the Premises without terminating this Lease, and in either event Landlord
shall be entitled to receive from Tenant:
(A) The worth at the time of award of any unpaid Rent which
had been earned at the time of such termination; plus
(B) The worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss Tenant proves
could have been or was reasonably avoided; plus
(C) The worth at the time of award of the amount by which the
unpaid Rent for the balance of the Term after the time of award exceeds
the amount of such rental loss that Tenant proves could be reasonably
avoided; plus
(D) Any other amount necessary to compensate Landlord for all
the actual damages proximately caused by Tenant's failure to perform
its obligations under this Lease; and
(E) At Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by
applicable law.
As used in subparagraphs (A) and (B) above, "worth at the time of
award" shall be computed by allowing interest on such amounts at the then
highest lawful rate of interest, but in no event to exceed one percent (1%) per
annum plus the rate established by the Federal Reserve Bank of Chicago on
advances made to member banks under Sections 13 and 13a of the Federal Reserve
Act ("discount rate") prevailing at the time of the award. As used in paragraph
(C) above, "worth at the time of award" shall be computed by discounting such
amount by (i) the discount rate of the Federal Reserve Bank of Chicago
prevailing at the time of award plus (ii) one percent (1%).
15.03 MITIGATION OR DAMAGES. If Landlord terminates this Lease or
Tenant's right to possession of the Premises, Landlord shall have no obligation
to mitigate Landlord's damages except to the extent required by applicable law.
If Landlord has not terminated this Lease or Tenant's right to possession of the
Premises, Landlord shall have no obligation to mitigate under any circumstances
and may permit the Premises to remain vacant or abandoned. If Landlord is
required to mitigate damages as provided herein: (i) Landlord shall be required
only to use reasonable efforts to mitigate, which shall not exceed such efforts
as Landlord generally uses to lease other space in the Building, (ii) Landlord
will not be deemed to have failed to mitigate if Landlord or its
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affiliates lease any other portions of the Building, Project or other projects
owned by Landlord or its affiliates in tile same geographic area, before
reletting all or any portion of the Premises, and (iii) any failure to mitigate
as described herein with respect to any period of time shall only reduce the
Rent and other amounts to which Landlord is entitled hereunder by the reasonable
rental value of the Premises during such period. In recognition that the value
of the Building depends on the rental rates and terms of leases therein,
Landlord's rejection of a prospective replacement tenant based on an offer of
rentals below Landlord's published rates for new leases of comparable space at
the Building at the time in question, or at Landlord's option, below the rates
provided in this Lease, or containing terms less favorable than those contained
herein, shall not give rise to a claim by Tenant that Landlord failed to
mitigate Landlord's damages.
15.04 LANDLORD'S RIGHT TO CONTINUE LEASE UPON TENANT DEFAULT. In the
event of a default of this Lease and abandonment of the Premises by Tenant, if
Landlord does not elect to terminate this Lease as provided in Section 15.02
above, Landlord may from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease. Without limiting the foregoing,
Landlord may continue this Lease in effect after Tenant's breach and abandonment
and recover Rent as it becomes due. In the event Landlord re-lets the Premises,
to the fullest extent permitted by law, the proceeds of any reletting shall be
applied first to pay to Landlord all reasonable costs and expenses of such
reletting (including without limitation, costs and expenses of retaking or
repossessing the Premises, removing persons and property therefrom, securing new
tenants, including expenses for redecoration, alterations and other costs in
connection with preparing the Premises for the new tenant, and if Landlord shall
maintain and operate the Premises, the costs thereof) and receivers' fees
incurred in connection with the appointment of and performance by a receiver to
protect the Premises and Landlord's interest under this Lease and any necessary
or reasonable alterations; second, to the payment of any indebtedness of Tenant
to Landlord other than Rent due and unpaid hereunder; third, to the payment of
Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of other or future obligations of Tenant to
Landlord as the same may become due and payable, and Tenant shall not be
entitled to receive any portion of such revenue.
15.05 RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense. If Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder or shall fail to perform any other act
on its part to be performed hereunder, Landlord may, but shall not be obligated
to, make any payment or perform any such other act on Tenant's part to be made
or performed, without waiving or releasing Tenant of its obligations under this
Lease. Any sums so paid by Landlord and all necessary incidental costs, together
with interest thereon at the lesser of the maximum rate permitted by law if any
or twelve percent (12%) per annum from the date of such payment, shall be
payable to Landlord as additional rent on demand
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and Landlord shall have the same rights and remedies in the event of nonpayment
as in the case of default by Tenant in the payment of Rent.
15.06 DEFAULT UNDER OTHER LEASES. If the term of any lease, other than
this Lease, heretofore or hereafter made by Tenant for any space in the Building
or the Project, if applicable, shall be terminated or terminable after the
making of this Lease because of any default by Tenant under such other lease,
such fact shall empower Landlord, at Landlord's sole option, to terminate this
Lease by notice to Tenant or to exercise any of the rights or remedies set forth
in Section 15.02.
15.07 NON-WAIVER. Nothing in this Article shall be deemed to affect
Tenant's or Landlord's rights to indemnification for liability or liabilities
arising prior to termination of this Lease or Tenant's right to possession of
the Premises for personal injury or property damages under the indemnification
clause or clauses contained in this Lease. No acceptance by Landlord of a lesser
sum than the Rent then due shall be deemed to be other than on account of the
earliest installment of such Rent due, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or such installment or
pursue any other remedy in the Lease provided. The delivery of keys to any
employee of Landlord or to Landlord's agent or any employee thereof shall not
operate as a termination of this Lease or a surrender of the Premises, unless
Landlord in writing both accepts such surrender and acknowledges such
termination.
15.08 CUMULATIVE REMEDIES. The specific remedies to which Landlord may
resort under the terms of the Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by Tenant of any provisions
of the Lease. In addition to the other remedies provided in the Lease, including
the right to terminate this Lease or to terminate Tenant's right of possession
of the Premises and reenter and repossess the Premises and remove all persons
and property from the Premises without terminating this Lease as provided in
Section 15.02, Landlord shall be entitled to a restraint by injunction of the
violation or attempted or threatened violation of any of the covenants,
conditions or provisions of the Lease or to a decree compelling specific
performance of any such covenants, conditions or provisions.
15.09 DEFAULT BY LANDLORD. Landlord's failure to perform or observe any
of its obligations under this Lease shall constitute a default by Landlord under
this Lease only if such failure shall continue for a period of thirty (30) days
(or the additional time, if any, not to exceed (90) days or such longer period
caused by weather, that is reasonably necessary to promptly and diligently cure
the failure) after Landlord receives written notice from Tenant specifying the
default. The notice shall give in reasonable detail the nature and extent of the
failure and shall identify the Lease
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<PAGE>
provision(s) containing the obligation(s). If Landlord shall default in the
performance of any of its obligations under this Lease (after notice and
opportunity to cure as provided herein), Tenant may pursue any remedies
available to it under the law and this Lease, including injunctive relief or
other equitable remedies, except that, in no event, shall Landlord be liable for
punitive damages, lost profits, business interruption, speculative,
consequential or other such damages.
ARTICLE XVI - ATTORNEYS FEES; COSTS OF SUIT
-------------------------------------------
If either Landlord or Tenant shall commence any action or other
proceeding against the other arising out of, or relating to, this Lease or the
Premises, the prevailing party shall be entitled to recover from the losing
party, in addition to any other relief, its actual attorneys fees irrespective
of whether or not the action or other proceeding is prosecuted to judgment and
irrespective of any court schedule of reasonable attorneys' fees. In addition,
Tenant shall reimburse Landlord, upon demand, for all reasonable attorneys' fees
incurred in collecting Rent or otherwise seeking enforcement against Tenant, its
sublessees and assigns, of Tenant's obligations under this Lease.
Should Landlord be made a party to any litigation instituted by Tenant
against a party other than Landlord, or by a third party against Tenant, Tenant
shall indemnify, hold harmless and defend Landlord from any and all loss, cost,
liability, damage or expense incurred by Landlord, including attorneys' fees, in
connection with the litigation, unless a final non-appealable judgment is
rendered against Landlord in such litigation.
ARTICLE XVII - SUBORDINATION AND ATTORNMENT
-------------------------------------------
17.01 SUBORDINATION. This Lease, and the rights of Tenant hereunder,
are and shall be subject and subordinate to the interests of (i) all present and
future ground leases and master leases of all or any part of the Building, (ii)
present and future mortgages and deeds of trust encumbering all or any part of
the Building or the underlying real estate; (iii) all past and future advances
made under any such mortgages or deeds of trust; and (iv) all renewals,
modifications, replacements and extensions of any such ground leases, master
leases, mortgages and deeds of trust; provided, however, that any lessor under
any such ground lease or master Lease or any mortgagee or beneficiary under any
such mortgage of deed of trust (any such lessor, mortgagee or beneficiary is
hereinafter referred to as a "Mortgagee") shall have the right to elect, by
written notice given to Tenant, to have this Lease made superior in whole or in
part to any such ground lease, master lease, mortgage or deed of trust (or
subject and subordinate to such ground Lease, master lease, mortgage or deed of
trust but superior to any junior mortgage or junior deed of trust). Upon demand,
Tenant shall execute, acknowledge and deliver any instruments reasonably
requested by Landlord or any such Mortgagee to effect the purposes of this
Section 17.01. Such instruments may contain, among other things, provisions to
the effect that such
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Mortgagee (hereafter, for the purposes of this Section 17.01, a "Successor
Landlord") shall (i) not be liable for any act or omission of Landlord or its
predecessors, if any, prior to the date of such Successor Landlord's succession
to Landlord's interest under this Lease; (ii) not be subject to any offsets or
defenses which Tenant might have been able to assert against Landlord or its
predecessors, if any, prior to the date of such Successor Landlord's succession
to Landlord's interest under this Lease: (iii) not be liable for the return of
any security deposit under the Lease unless the same shall have actually been
deposited with such Successor Landlord; and (iv) be entitled to receive notice
of any Landlord default under this Lease plus a reasonable opportunity to cure
such default prior to Tenant having any right or ability to terminate this Lease
as a result of such Landlord default; (v) not be bound by any rent or additional
rent which Tenant might have paid for more than the current month to Landlord;
(vi) not be bound by any amendment or modification of the Lease or any
cancellation or surrender of the same made without Successor Landlord's prior
written consent; (vii) not be bound by any obligation to make any payment to
Tenant which was required to be made prior to the time such Successor Landlord
succeeded to Landlord's interest and (viii) not be bound by any obligation under
the Lease to perform any work or to make any improvements to the demised
Premises. Any obligations of any Successor Landlord under its respective lease
shall be non-recourse as to any assets of such Successor Landlord other than its
interest in the Premises and the Building.
17.01 Deleted.
17.03 MORTGAGE AND GROUND LESSOR PROTECTION. Tenant agrees to give any
Mortgagee, by registered or certified mail, a copy of any notice of default
served upon the Landlord by Tenant, provided that prior to such notice Tenant
has been notified in writing (by way of service on Tenant of a copy of
Assignment of Rents and Leases, or otherwise) of the address of such Mortgagee
(hereafter the "Notified Party"). Tenant further agrees that if Landlord shall
have failed to cure such default within twenty (20) days after such notice to
Landlord (or if such default cannot be cured or corrected within that time, then
such additional time as may be necessary if Landlord has commenced within such
twenty (20) days and is diligently pursuing the remedies or steps necessary to
cure or correct such default), then the Notified Party shall have an additional
thirty (30) days within which to cure or correct such default (or if such
default cannot be cured or corrected within that time, then such additional time
as may be necessary if the Notified Party has commenced within such thirty (30)
days and is diligently pursuing the remedies or steps necessary to cure or
correct such default and does so within ninety (90) days). Until the time
allowed, as aforesaid, for the Notified Party to cure such default has expired
without cure, Tenant shall have no right to, and shall not, terminate this Lease
on account of Landlord's default.
ARTICLE XVIII - QUIET ENJOYMENT
-------------------------------
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18.01 Provided that Tenant performs all of its obligations hereunder,
Tenant shall have and peaceably enjoy the Premises during the Lease Term free of
claims by or through Landlord, subject to all of the terms and conditions
contained in this Lease.
ARTICLE XIX - PARKING
---------------------
19.01 Tenant, its employees and invitees, are hereby granted the
non-exclusive privilege to use parking spaces adjacent to the demised premises
on the upper parking level (approx. 74 stalls). Tenant shall abide by all
reasonable rules and regulations regarding the use of the parking area as may
now exist or as may hereinafter be promulgated by Landlord. Landlord reserves
the right to modify, restripe and otherwise change the location of drives,
parking spaces and parking area in the "Building" provided at least 74 parking
stalls shall at all times be available on a non-exclusive basis to Tenant.
Landlord may, but shall have no obligation to, designate certain parking spaces
for trucks, handicapped persons or designated tenants as Landlord, in its sole
discretion, may deem necessary for the professional and efficient operation of
the parking area and the Building or the Project, if applicable. Landlord shall
have the right to reasonably restrict the number and location of truck/tractor
trailers for the overall benefit of all tenants, it being agreed by Tenant that
it is not the intent of this Lease to provide unrestricted parking for
truck/tractor trailers. Tenant agrees not to overburden the parking facilities
and agrees to cooperate with Landlord and other tenants in the use of parking
facilities. Tenant will reimburse Landlord upon demand for any damage caused to
the parking surfaces or facilities caused by Tenant's or any of its employees',
agents' or invitees' trucks/tractor trailers or any other vehicles. Landlord
reserves the right in its absolute discretion to determine whether parking
facilities are becoming crowded and, in such event, to allocate parking spaces
among Tenant and other tenants. At no time shall the parking of any vehicle be
permitted in the fire lanes or handicapped parking areas servicing the Building
or the Project, if applicable.
ARTICLE XX - RULES AND REGULATIONS
-----------------------------------
20.01 The Rules and Regulations attached hereto as Exhibit F are hereby
incorporated by reference herein and made a part hereof. Tenant shall abide by,
and faithfully observe and comply with the Rules and Regulations and any
reasonable and non-discriminatory amendments, modifications and/or additions
thereto as may hereafter be adopted and published by written notice to tenants
by Landlord for the safety, care, security, good order and/or cleanliness of the
Premises, the Building and/or the Project, if applicable. Landlord shall not be
liable to Tenant for any violation of such rules and regulations by any other
tenant or occupant of the Building or the Project, if applicable.
ARTICLE XXI - ESTOPPEL CERTIFICATES
-----------------------------------
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21.01 Tenant agrees at any time and from time to time but no more
frequently than three times per year and upon not less than ten (10) business
days' prior written notice from Landlord to execute, acknowledge and deliver to
Landlord a statement in writing addressed and certifying to Landlord, to any
current or prospective Mortgagee or any assignee thereof, prospective purchaser
of the land, improvements or both comprising the Building and to any other party
designated by Landlord, that this Lease is unmodified and in full force and
effect (or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications); that Tenant has accepted
possession of the Premises, which are acceptable in all respects (or indicating
any claimed defects) and that any improvements required by the terms of this
Lease to be made by Landlord have been completed to the satisfaction of Tenant;
that Tenant is in full occupancy of the Premises; that no rent has been paid
more than thirty (30) days in advance; that the first month's Base Rent has been
paid; that Tenant is entitled to no free Rent or other concessions except as
stated in this Lease; that Tenant has not been notified of any previous
assignment of Landlord's or any predecessor landlord's interest under this
Lease; the dates to which Base Rent, additional rental and other charges have
been paid; that Tenant, as of the date of such certificate, has no charge, lien
or claim of setoff under this Lease or otherwise against Base Rent, additional
rental or other charges due or to become due under this Lease; that Landlord is
not in default in performance of any covenant, agreement or condition contained
in this Lease; or any other matter relating to this Lease or the Premises or, if
so, specifying each such default. If there is a Guaranty under this Lease, said
Guarantor shall confirm the validity of the Guaranty by joining in the execution
of the Estoppel Certificate or other documents so requested by Landlord or
Mortgagee. In addition, in the event that such certificate is being given to any
Mortgagee, such statement may contain certifications of such other matters, and
any other provisions, customarily required by such Mortgagee including, without
limitation, an agreement on the part of Tenant to furnish to such Mortgagee,
written notice of any Landlord default and a reasonable opportunity for such
Mortgagee to cure such default prior to Tenant being able to terminate this
Lease. Any such statement delivered pursuant to this Section may be relied upon
by Landlord or any Mortgagee, or prospective purchaser to whom it is addressed
and such statement, if required by its addressee, may so specifically state. If
Tenant does not execute, acknowledge and deliver to Landlord the statement as
and when required herein, Landlord is hereby granted an irrevocable
power-of-attorney, coupled with an interest, to execute such statement on
Tenant's behalf, which statement shall be binding on Tenant to the same extent
as if executed by Tenant (and such grant shall not be in limitation of
Landlord's other remedies for such failure by Tenant).
ARTICLE XXII - ENTRY BY LANDLORD
--------------------------------
22.01 Landlord may enter the Premises at all reasonable times to:
inspect the same; exhibit the same to prospective purchasers, Mortgagees or
tenants; determine whether Tenant is complying with all of its obligations under
this Lease; supply janitorial and other services to be provided by Landlord to
Tenant under this Lease;
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post notices of non-responsibility and make repairs or improvements in or to the
Building or the Premises; provided, however, that all such work and any such
entry shall be done as promptly as reasonably possible and so as to cause as
little interference to Tenant as reasonably possible. Tenant hereby waives any
claim for damages for any injury or inconvenience to, or interference with,
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned by such entry provided the same is accomplished
without unreasonably interfering with Tenant's business. As provided for in
clause (xiii) of Section 27.19 of this Lease, Landlord shall at all times have
the right, but not the obligation, to obtain from Tenant and retain a key with
which to unlock all of the doors in, on or about the Premises (excluding
Tenant's vaults, safes and similar areas designated by Tenant in writing in
advance), and Landlord shall have the right to use any and all means by which
Landlord may deem proper to open such doors to obtain entry to the Premises, and
any entry to the Premises obtained by Landlord by any such means, or otherwise,
shall not under any circumstances be deemed or construed to be a forcible or
unlawful entry into or a detainer of the Premises or an eviction, actual or
constructive, of Tenant from any part of the Premises provided the same is
accomplished without unreasonably interfering with Tenant's business. Such entry
by Landlord shall not act as a termination of this Lease. If Landlord shall be
required to obtain entry by means other than a key provided by Tenant, the cost
of such entry shall be payable by Tenant to Landlord as additional rent.
ARTICLE XXIII
-------------
LANDLORD'S LEASE UNDERTAKINGS - EXCULPATION
-------------------------------------------
FROM PERSONAL LIABILITY;
------------------------
TRANSFER OF LANDLORD'S INTEREST
-------------------------------
23.01 LANDLORD'S LEASE UNDERTAKINGS. Notwithstanding anything to the
contrary contained in this Lease or in any exhibits, Riders or addenda hereto
attached (collectively the "Lease Documents"), it is expressly understood and
agreed by and between the parties hereto that: (a) the recourse of Tenant or its
successors or assigns against Landlord with respect to the alleged breach by or
on the part of Landlord of any representation, warranty, covenant, undertaking
or agreement contained in any of the Lease Documents or otherwise arising out of
this transaction or Tenant's use of the Premises or the Building or the Project,
if applicable (collectively, "Landlord's Lease Undertakings") shall extend only
to Landlord's interest in the real estate of which the Building and Premises
demised under the Lease Documents are a part ("Landlord's Real Estate"), and not
to any other assets of Landlord or of its constituent partners; and (b) except
to the extent of Landlord's interest in Landlord's Real Estate, no personal
liability or personal responsibility of any sort with respect to any of
Landlord's Lease Undertakings or any alleged breach thereof is assumed by, or
shall at any time be asserted or enforceable against, Landlord, Bren Associates
LLC or CB Commercial Real Estate Group Inc., or against any of their respective
directors, officers, shareholders,
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employees, agents, constituent partners, beneficiaries, trustees or
representatives. This Section shall not be interpreted to restrict Tenant from
maintaining an action for injunctive relief or other equitable remedies.
23.02 TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer of
Landlord's interest in the Building, Landlord shall be automatically freed and
relieved from all applicable liability with respect to performance of any
covenant or obligation on the part of Landlord after the date of such transfer,
provided any deposits or advance rents held by Landlord are turned over to the
grantee and said grantee expressly assumes, subject to the limitations of this
Section 23, all the terms, covenants and conditions of this Lease to be
performed on the part of Landlord, it being intended hereby that the covenants
and obligations contained in this Lease on the part of Landlord shall, subject
to all the provisions of this Section 23, be binding on Landlord, its successors
and assigns, only during their respective successive periods of ownership.
ARTICLE XXIV - SURRENDER; HOLDOVER TENANCY
------------------------------------------
24.01 CONDITION OR PREMISES AND REMOVAL OF PROPERTY. At the expiration
or earlier termination of this Lease or Tenant's right to possession of the
Premises, Tenant shall: (a) surrender possession of the Premises in broom-clean
condition and good repair, free of debris, and otherwise in the condition
required under Section 8.02, ordinary wear and tear excepted, (b) ensure that
all signs, movable trade fixtures and personal property (except items originally
provided by Landlord) have been removed from the Premises as required under
Section 9.04 hereof (subject to Article XXIX hereof), (c) ensure that all
Alterations required to be removed from the Premises pursuant to Section 9.04
have been removed from the Premises, (d) ensure that any damage caused by such
removal has been repaired in a good and workmanlike manner as required under
Section 9.04 hereof (and Landlord may deny permission to remove items where such
removal may damage the structural integrity of the Building), and (c) ensure
that all actions required under the Rules and Regulations set forth in Exhibit F
to this Lease have been taken. Tenant understands that "ordinary wear and tear"
does not mean Tenant shall be relieved of performing its obligations under this
Lease relating to maintenance, repairs and replacements as provided for in the
Lease. The cost and expense of any repairs necessary to restore the condition of
the Premises shall be borne by Tenant, and if Landlord undertakes to restore the
Premises, it shall have a right of reimbursement against Tenant.
24.02 ABANDONED PROPERTY. If Tenant shall fail to perform any repairs
or restoration, or fail to remove any items from the Premises as required
hereunder, Landlord may do so at Tenant's expense as provided in Sections 9.04
and 15.04 hereof and Tenant shall pay Landlord' reasonable charges therefor upon
demand. All property removed from the Premises by Landlord hereunder may be
handled, discarded or stored by Landlord at Tenant's expense, and Landlord shall
in no event be responsible for the value, preservation or safekeeping thereof.
All such property shall
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at Landlord's option be conclusively deemed to have been conveyed by Tenant to
Landlord as if by bill of sale without payment by Landlord. If Landlord arranges
for storage of any such property, Landlord shall have a lien against such
property for costs incurred in removing and storing the same.
24.03 HOLDOVER TENANCY. If Tenant holds possession of the Premises
after the expiration or termination of the Lease Term, by lapse of time or
otherwise, Tenant shall become a tenant on a month to month upon all of the
terms contained herein, except as to Lease Term and Rent. During such holdover
period, Tenant shall pay to Landlord a monthly rental equivalent to one hundred
fifty percent (150%) of the Rent payable by Tenant to Landlord with respect to
the last month of the Lease Term. The monthly rent payable for such holdover
period shall in no event be construed as a penalty or as liquidated damages for
such retention of possession. Without limiting the foregoing, Tenant hereby
agrees to indemnify, defend and hold harmless Landlord, its beneficiary, and
their respective agents, contractors and employees, from and against any and all
claims, liabilities, actions, losses, damages (including without limitation,
direct, indirect, incidental and consequential) and expenses (including, without
limitation, court costs and reasonable attorneys' fees) asserted against or
sustained by any such party and arising from or by reason of such retention of
possession, which obligations shall survive the expiration or termination of the
Lease Term.
ARTICLE XXV - NOTICES
---------------------
25.01 All notices which Landlord or Tenant may be required, or may
desire, to serve on the other may be served, as an alternative to personal
service, by mailing the same by registered or certified mail, postage prepaid,
or may be sent by overnight courier, addressed to the Landlord at the address
for Landlord set forth in Section 1.11 above and to Tenant at the address for
Tenant set forth in Section 1.12 above, or, from and after the Commencement
Date, to the Tenant at the Premises whether or not Tenant has departed from,
abandoned or vacated the Premises, or addressed to such other address or
addresses as either Landlord or Tenant may from time to time designate to the
other in writing. Any notice shall be deemed to have been given and served when
delivered personally or otherwise two business days after the time the same was
posted, except that any notice given by overnight courier shall be deemed given
on the first business day following the date such notice is delivered by such
courier provided such courier verifies delivery thereof.
ARTICLE XXVI - BROKERS
----------------------
26.01 The parties recognize as the Broker(s) who procured this Lease
the firm(s) specified in Section 1.13 and agree that Landlord shall be solely
responsible for the payment of any brokerage commissions to said Broker(s), and
that Tenant shall have no responsibility therefor unless written provision to
the contrary has been made a part of this Lease. If Tenant has dealt with any
other person or real estate broker in respect to
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leasing, subleasing or renting space in the Building or the Project, if
applicable, Tenant shall be solely responsible for the payment of any fee due
said person or firm and Tenant shall protect, indemnify, hold harmless and
defend Landlord from any liability in respect thereto.
ARTICLE XXVII - COMMUNICATIONS AND COMPUTER LINES
-------------------------------------------------
27.01 Tenant may, in a manner consistent with the provisions and
requirements of this Lease, install, maintain, replace, remove or use any
communications or computer wires, cables and related devices (collectively the
"Lines") at the Building in or serving the Premises; provided: (a) Tenant shall
obtain Landlord's prior written consent, which consent may reasonably be
conditioned as required by Landlord, (b) if Tenant at any time uses any
equipment that may create an electromagnetic field exceeding the normal
insulation ratings of ordinary twisted pair riser cable or cause radiation
higher than normal background radiation, the Lines therefor (including riser
cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, and (c) Tenant shall pay all costs in
connection therewith. Landlord reserves the right to require that Tenant remove
any Lines which are installed in violation of these provisions.
Landlord may (but shall not have the obligation to): (i) install new
Lines at the property, and (ii) create additional space for Lines at the
property, and adopt reasonable and uniform rules and regulations with respect to
the Lines.
Notwithstanding anything to the contrary contained in Article IX,
Landlord reserves the right to require that Tenant remove any or all Lines
installed by or for Tenant within or serving the Premises upon termination of
this Lease. Tenant shall not, without the prior written consent of Landlord in
each instance, grant to any third party a security interest or lien in or on the
Lines, and any such security interest or lien granted without Landlord's written
consent shall be null and void. Except to the extent arising from the
intentional or negligent acts of Landlord or Landlord's agents or employees.
Landlord shall have no liability for damages arising from, and Landlord does not
warrant that the Tenant's use of any Lines will be free from the following
(collectively called "Line Problems"): (x) any eavesdropping or wire-tapping by
unauthorized parties, (y) any failure of any Lines to satisfy Tenant's
requirements, or (z) any shortages, failures, variations, interruptions,
disconnections, loss or damage caused by the installation, maintenance,
replacement, use or removal of Lines by or for other tenants or occupants at the
property. Under no circumstances shall any Line Problems be deemed an actual or
constructive eviction of Tenant, render Landlord liable to Tenant for abatement
of Rent, or relieve Tenant from performance of Tenant's obligations under this
Lease. Landlord in no event shall be liable for damages by reason of loss of
profits, business interruption or other consequential damage arising from any
Line Problems.
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ARTICLE XXVIII - MISCELLANEOUS
------------------------------
28.01 ENTIRE AGREEMENT. This Lease contains all of the agreements and
understandings relating to the leasing of the Premises and the obligations of
Landlord and Tenant in connection with such leasing. Landlord has not made, and
Tenant is not relying upon, any warranties, or representations, promises or
statements made by Landlord or any agent of Landlord, except as expressly set
forth herein. This Lease supersedes any and all prior agreements and
understandings between Landlord and Tenant and alone expresses the agreement of
the parties.
28.02 AMENDMENTS. This Lease shall not be amended, changed or modified
in any way unless in writing executed by Landlord and Tenant. Landlord shall not
have waived or released any of its rights hereunder unless in writing and
executed by the Landlord.
28.03 SUCCESSORS. Except as expressly provided herein, this Lease and
the obligations of Landlord and Tenant contained herein shall bind and benefit
the successors and assigns of the parties hereto.
28.04 FORCE MAJEURE. Landlord shall incur no liability to Tenant with
respect to, and shall not be responsible for any failure to perform, any of
Landlord's obligations hereunder if such failure is caused by any reason beyond
the control of Landlord including, but not limited to strike, labor trouble,
governmental rule, regulations, ordinance, statute or interpretation, fire,
earthquake, civil commotion, or failure or disruption of utility services. The
amount of time for Landlord to perform any of Landlord's obligations shall be
extended by the amount of time Landlord is delayed in performing such obligation
by reason of any force majeure occurrence whether similar to or different from
the foregoing types of occurrences.
28.05 SURVIVAL OR OBLIGATIONS. Any obligations of Landlord or Tenant
accruing prior to the expiration of the Lease shall survive the expiration or
earlier termination of the Lease, and Tenant shall promptly perform all such
obligations whether or not this Lease has expired or been terminated.
28.06 LIGHT AND AIR. No diminution or shutting off of any light, air or
view by any structure now or hereafter erected by parties other than Landlord
shall in any manner affect this Lease or the obligations of Tenant hereunder, or
increase any of the obligations of Landlord hereunder.
28.07 GOVERNING LAW. This Lease shall be governed by, and construed in
accordance with, the laws of the State of Minnesota.
28.08 SEVERABILITY. In the event any provision of this Lease is found
to be unenforceable, the remainder of this Lease shall not be affected, and any
provision
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found to be invalid shall be enforceable to the extent permitted by law. The
parties agree that in the event two different interpretations may be given to
any provision hereunder, one of which will render the provision unenforceable,
and one of which will render the provision enforceable, the interpretation
rendering the provision enforceable shall be adopted.
28.09 CAPTIONS. All captions, headings, titles, numerical references
and computer highlighting are for convenience only and shall have no effect on
the interpretation of this Lease.
28.10 INTERPRETATION. Tenant acknowledges that it has read and reviewed
this Lease and that it has had the opportunity to confer with counsel in the
negotiation of this Lease. Accordingly, this Lease shall be construed neither
for nor against Landlord or Tenant, but shall be given a fair and reasonable
interpretation in accordance with the meaning of its terms and the intent of the
parties.
28.11 INDEPENDENT COVENANTS. Each covenant, agreement, obligation or
other provision of this Lease to be performed by Tenant are separate and
independent covenants of Tenant, and not dependent on any other provision of the
Lease.
28.12 NUMBER AND GENDER. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include the appropriate number and gender, as the context may require.
28.13 TIME IS OF THE ESSENCE. Time is of the essence of this Lease and
the performance of all obligations hereunder.
28.14 JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one
person or entity, or if this Lease is guaranteed by any party, all such persons
shall be jointly and severally liable for payment of rents and the performance
of Tenant's obligations hereunder.
28.15 EXHIBITS AND SCHEDULES. Exhibits A (Outline of Premises), B (Work
Letter Agreement), C (Suite Acceptance Letter), D (Tenant Operations Inquiry), E
(List of Additional Insureds), F (Rules and Regulations) and G (Guaranty), and
Schedule I to Exhibit D (List of Permissible Hazardous Materials and Quantities)
are incorporated into this Lease by reference and made a part hereof.
28.16 OFFER TO LEASE. The submission of this Lease to Tenant or its
broker or other agent, does not constitute an offer to Tenant to lease the
Premises. This Lease shall have no force and effect until (a) it is executed and
delivered by Tenant to Landlord and (b) it is executed by Landlord.
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28.17 WAIVER; NO COUNTERCLAIM; CHOICE OR LAWS. To the extent permitted
by applicable law, Tenant hereby waives the right to a jury trial in any action
or proceeding regarding this Lease and the tenancy created by this Lease. It is
mutually agreed that in the event Landlord commences an unlawful detainer
action, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding. In addition, Tenant hereby submits to local
jurisdiction in the State of Minnesota and agrees that any action by Tenant
against Landlord shall be instituted in the State of Minnesota and that Landlord
shall have personal jurisdiction over Tenant for any action brought by Landlord
against Tenant in the State of Minnesota. To the extent permitted by applicable
law, Tenant hereby waives any and all rights of redemption granted by any
present or future laws.
28.18 ELECTRICAL SERVICE TO THE PREMISES. Anything set forth in Section
7.01 or elsewhere in this Lease to the contrary notwithstanding, electricity to
the Premises shall not be furnished by Landlord, but shall be furnished by the
approved electric utility company serving the Building. Landlord shall permit
Tenant to receive such service directly from such utility company at Tenant's
cost (except as otherwise provided herein) and shall permit Landlord's wire and
conduits, to the extent available, suitable and safely capable, to be used for
such purposes.
28.19 RIGHTS RESERVED BY LANDLORD. Landlord reserves the following
rights exercisable without notice (except as otherwise expressly provided to the
contrary in this Lease) and without being deemed an eviction or disturbance of
Tenant's use or possession of the Premises or giving rise to any claim for
set-off or abatement of Rent: (i) to change the name of the Building; (ii) to
install, affix and maintain all signs on the exterior and/or interior of the
Building, (iii) to designate and/or approve prior to installation, all types of
signs, window shades, blinds, drapes, awnings or other similar items, and all
internal lighting that may be visible from the exterior of the Premises; (iv) to
change the arrangement of entrances, doors, corridors, elevators and/or stairs
in the Building, provided no such change shall materially adversely affect
access to the Premises; (v) to grant any party the exclusive right to conduct
any business or render any service in the Building, provided such exclusive
right shall not operate to prohibit Tenant from using the Premises for the
purposes permitted under this Lease; (vi) to prohibit the placement of vending
or dispensing machines of any kind in or about the Premises other than for use
by Tenant's employees; (vii) to prohibit the placement of video or other
electronic games in the Premises; (viii) to have access for Landlord and other
tenants of the Building to any mail chutes and boxes located in or on the
Premises according to the rules of the United States Post Office; (ix) to close
the Building after normal business hours, except that Tenant and its employees
and invitees shall be entitled to admission at all times under such rules and
regulations as Landlord prescribes for security purposes; (x) to install,
operate and maintain security systems which monitor, by close circuit television
or otherwise, all persons entering or leaving the Building; (xi) to install and
maintain pipes, ducts, conduits, wires and structural elements located in the
Premises which serve other parts or other tenants of the
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Building provided such installation does not interfere with Tenant's use of the
Premises; and (xii) to retain at all times master keys or pass keys to the
Premises.
28.20 TENANT OPERATIONS INQUIRY. As a material inducement to Landlord
to enter into this Lease (i) Tenant has completed Exhibit D hereto, and (ii)
Tenant represents and warrants to Landlord that Exhibit D is true and correct in
all material respects and is not misleading in any material respect.
ARTICLE XXIX - FLOOR LOAD LIMITS
--------------------------------
29.01 FLOOR LOAD LIMITS. Tenant shall not place a load upon any floor
of the Premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Landlord reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment in the Building. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and annoyance to occupants of the Building,
the Project, if applicable, or any adjacent property.
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IN WITNESS WHEREOF, the parties hereto have executed this lease as of
the date first above written.
TENANT: LANDLORD:
APERTUS TECHNOLOGIES BREN ASSOCIATES LLC
INCORPORATED a Minnesota Limited Liability
a Minnesota Corporation Company
By:_____________________ By:________________________
Its:_____________________ Its:_______________________
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EXHIBIT A
FLOOR PLAN OR LAYOUT OR PREMISES
(Approximately 23,803 Sq. Ft.)
(Office 23,803 Sq. Ft.)
(Warehouse _______ Sq. Ft.)
TENANT: APERTUS TECHNOLOGIES INCORPORATED
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EXHIBIT B
WORK LETTER AGREEMENT
---------------------
(Tenant Improvement Allowance)
Tenant: Apertus Technologies Incorporated
Landlord shall provide the Tenant up to $119,015 in reimbursements for
improvements made to the "Premises" upon the satisfaction of all of the
following terms and conditions:
1. Tenant shall have submitted for Landlord's prior written approval, detailed
architectural and necessary engineering plans and specifications covering the
work. Landlord must approve said plan prior to commencement of any work, such
approval not to be unreasonably withheld or delayed. All plans and work shall
comply with current municipal, state and federal building codes.
2. Tenant must submit names and addresses of all contractors and subcontractors.
Landlord must approve all contractors and subcontractors before they commence
any work, such approval not to be unreasonably withheld or delayed.
3. All contractors and subcontractors performing work to the "premises" shall be
licensed and insured and will provide evidence of such insurance listing
Landlord as additional insured prior to the commencement of any work.
4. After completion of work, Tenant shall provide Landlord with Lien Waivers
from all contractors (and subcontractors if applicable) that have performed work
on the "premises".
5. Tenant shall provide Landlord with copies of paid receipts from all
contractors and subcontractors that have performed work.
6. Tenant shall be entitled to receive such improvement allowance during the
entire initial Term of this Lease, and such allowance shall be payable in whole
or in part as Tenant completes improvement work.
7. Tenant shall be entitled to maintain an exterior sign designed by Tenant and
identifying Tenant's business in the location indicated on page 2 of this
Exhibit B, subject to Landlord's reasonable approval and compliance with
governmental regulations.
It is expressly understood that all contractors and subcontractors shall take
steps to minimize any disruptions to neighboring Tenants and that all
construction activities
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shall conform with the reasonable expectations of the occupants of a fully or
substantially lease, first-class office facility.
TENANT: LANDLORD:
APERTUS TECHNOLOGIES BREN ASSOCIATES LLC
INCORPORATED, A MINNESOTA A MINNESOTA LIMITED LIABILITY
CORPORATION COMPANY
By:______________________ By:________________________
Its:_______________________ Its:_________________________
Date:_____________________ Date:_______________________
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EXHIBIT C
SUITE ACCEPTANCE AGREEMENT
Building Name/Address: 10729 Bren Road East
----------------------------------------------------------
Tenant Name: APERTUS TECHNOLOGIES INCORPORATED
--------------------------------------------------------------------
Tenant Code:_____________________ Suite #:______________
Management's Tenant Contact:_________ Phone #:______________
Gentlemen:
As a representative of the above referenced tenant, I/we have physically
inspected the suite noted above and its improvements with _________________
____, a representative of ___________________.
Lease Commencement Date:___________ Occupancy Date: ________________
Lease Rent Start Date *:______________ Actual Rent Start *: ____________
Lease Expiration Date:_______________ Actual Expiration Date __________
Date Keys Delivered:__________________
Items requiring attention:______________________________________________________
* If these dates are not the same, attach documentation.
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NOTE: This inspection is to be made prior to tenant move-in.
Very truly yours, Distribution
------------
____________________ Tenant
By:__________________ Tenant Lease File
Its:__________________ Leasing Manager:
CB RICHARD ELLIS, INC.
Date:_________________ Steve Lysen
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EXHIBIT D
Tenant Operations
Inquiry Form
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SCHEDULE I TO EXHIBIT D
List or Permissible
Hazardous Materials and Quantities
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EXHIBIT E
ADDITIONAL INSUREDS
Additional insureds pursuant to the requirements outlined in Article X of the
Lease:
BREN ROAD ASSOCIATES LLC and CB COMMERCIAL REAL ESTATE GROUP, INC.
and their respective partners, agents and employees.
The Insurance Certificate should be sent to:
CB COMMERCIAL REAL ESTATE GROUP, INC.
11455 Viking Drive
Suite 300
Eden Prairie, MN 55344
Attn: Property Manager, Gary Lidstone
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EXHIBIT F
RULES AND REGULATIONS
0.0.1 No storage outside the Premises of any material, pallets,
disabled vehicles, showcases or other items will be permitted, including but not
limited to trash, except in containers approved by Landlord. Tenant, its
officers, agents, servants and employees shall not allow anything to remain in
any common area passageway, hallway, stairway, sidewalk, court, corridor, ramp,
entrance, exit, loading area, or other area outside the Premises, or permit such
areas to be used at any time except for ingress or egress of Tenant, its
officers, agents, servants, employees, patrons, licensees, customers, visitors
or invitees. Common utility closets, telephone closets, and other such closets,
rooms and areas shall be used only for the purposes and in the manner designated
by Landlord, and may not be used by Tenant, or its contractors, agents,
employees, or other parties without Landlord's prior written consent.
0.0.2 The movement of furniture, equipment, machines, merchandise or
materials within, into or out of the Premises or the Building not in the
ordinary course of Tenant's business as permitted herein, shall be restricted to
time, method and routing of movement as determined by Landlord upon request from
Tenant and Tenant shall assume all liability and risk to property, the Premises,
the Building and, if applicable, the Project in such movement. The movement of
furniture, equipment, machines, merchandise or materials within, into or out of
the Premises in the ordinary course of Tenant's permitted business shall also be
at Tenant's sole risk and responsibility and shall be conducted in such a
fashion as not to cause damage or injury to the Premises or the Building or to
disturb other occupants thereof. Tenant shall not move furniture, machines,
equipment, merchandise or materials within, into or out of the Premises or the
Building not in the ordinary course of Tenant's permitted business without
having first obtained a written permit from Landlord twenty-four (24) hours in
advance. Safes and other heavy fixtures, equipment or machines intended to be
kept permanently in the Premises shall be moved into the Premises or the
Building only with Landlord's written consent and placed where directed by
Landlord.
0.0.3 Landlord will not be responsible for lost or stolen personal
property, equipment, money or any article taken from Premises, regardless of how
or when loss occurs.
0.0.4 Tenant, its officers, agents, servants and employees shall not
install or operate any refrigerating or HVAC apparatus or carry on any
mechanical operation without written permission of Landlord. Tenant shall give
Landlord prompt notice of all damage to or defects in HVAC equipment, plumbing,
electric facilities or any part of appurtenance of the Premises.
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0.0.5 Tenant, its officers, agents, servants or employees shall not use
the Premises for housing, lodging or sleeping purposes or for the cooking or
preparation of food (other than microwave ovens) without written permission of
Landlord.
0.0.6 Tenant, its officers, agents, servants, employees, patrons,
licensees, customers, visitors or invitees shall not bring into the Premises or
keep on Premises any fish, fowl, reptile, insect or animal without the prior
written consent of the Landlord.
0.0.7 No locks shall be placed on any door in the Building without the
prior written consent of Landlord. Landlord will furnish two keys to each lock
on doors in the Premises and Landlord, upon request of Tenant, shall provide
additional duplicate keys at Tenant's expense. Tenant, its officers, agents,
servants and employees shall, before leaving the Premises unattended, close and
lock all doors and shut off all lights, business equipment and machinery. Damage
resulting from failure to do so shall be paid by Tenant.
0.0.8 If Tenant desires signal, communication, alarm or other utility
or service connection installed or changed, such work shall only be done at
expense of Tenant, with the written approval and under the direction of
Landlord. Tenant, without the prior written consent of Landlord, shall not lay
linoleum or other similar floor covering within the Premises. Tenant shall not
install any antenna, satellite dish or aerial wires, radio or television
equipment or any other type of equipment inside or outside of the Building,
without Landlord's prior approval in writing. No showcases, awnings or other
articles or projections shall be affixed to any part of the exterior of the
Building, without the prior written consent of Landlord.
0.0.9 Tenant, its officers, agents, servants and employees shall not
permit the operation of any musical or sound-producing instruments or device
which may be heard outside the Premises, or which may emanate electrical waves
or x-rays or other emissions which will be hazardous to health, well-being or
condition of persons or property.
0.0.10 All plate and other glass now in the Premises or Building which
is broken through cause attributable to Tenant, its officers, agents, servants,
employees, patrons, licensees, customers, visitors or invitees shall be replaced
by and at expense of Tenant under the direction of Landlord.
0.0.11 The plumbing facilities (including, without limitation, toilet
rooms, urinals, wash bowls, drains and sewers) shall not be used for any other
purpose than that for which they are constructed, and no foreign substance of
any kind shall be thrown therein, and the expense of any breakage, stoppage or
damage resulting from a violation of this provision shall be borne by Tenant,
who shall, or whose officers, employees, agents, servants, patrons, customers,
licensees, visitors or invitees shall,
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have caused it. Landlord shall not be responsible for any damage due to
stoppage, backup or overflow of the drains or other plumbing fixtures.
0.0.12 All contractors and/or technicians performing work for Tenant
within the Premises, Building or Project shall be referred to Landlord for
written approval before performing such work. This shall apply to all work
including, but not limited to, installation of telephones, telegraph equipment,
electrical devices and attachments, and all installations affecting floors,
walls, windows, doors, ceilings, equipment or any other physical feature of the
Building, the Premises or the Project. None of this work shall be done by Tenant
without Landlord's prior written approval.
0.0.13 Neither Tenant nor any officer, agent employee, servant, patron,
customer, visitor, licensee or invitee of any Tenant shall go upon the roof of
the Building, without the written consent of the Landlord.
0.0.14 Canvasing, soliciting, distribution of hand-bills or any other
written material peddling in the Building or the Project are prohibited, and
Tenant shall cooperate to prevent the same. Tenant shall not advertise the
business, profession or activities of Tenant in any manner which violates the
letter or spirit of any code of ethics adopted by any recognized association or
organization pertaining thereto, use the name of the Building for any purpose
other than that of the business address of Tenant or use any picture or likeness
of the Building or the Project name in any letterheads, envelopes, circulars,
notices, advertisements, containers or wrapping material without Landlord's
express consent in writing.
0.0.15 Tenant shall not conduct its business and/or control its
officers, agents, employees, servants, patrons, customers, licensees and
visitors in such a manner as to commit waste or suffer or permit waste to be
committed in Premises. Tenant shall not do or permit anything in or about the
Premises that is immoral, obscene, pornographic, disreputable or dangerous to
life, limb or property, or do any act tending to injure the reputation of the
Project. No activity creating dust or fumes that may be hazardous shall be
performed in the Premises except in an environment controlled by air-handling
equipment properly and lawfully designed and utilized, which shall be maintained
and operated at all times to prevent hazardous accumulations of pollutants in
the atmosphere within the Premises or Project.
0.0.16 Tenant shall not install in the Premises any equipment which
uses a substantial amount of electricity without the advance written consent of
the Landlord. The Tenant shall ascertain from the Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into account
the capacity of the electric wiring in the Building and the Premises and the
needs of other tenants in the Building and the Project and shall not use more
than such safe capacity. The Landlord's consent to the installation of electric
equipment shall not relieve the Tenant from the obligation not to use more
electricity than such safe capacity.
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<PAGE>
0.0.17 Tenant shall not use, or permit any other party to use, the
Premises for any distress, fire, bankruptcy, close-out, "lost our lease" or
going-out-of-business sale or auction. Tenant shall not display any signs
advertising the foregoing anywhere in or about the Premises. This prohibition
shall also apply to Tenant's creditors.
0.0.18 Tenant agrees to park in only those parking stalls designated as
tenant parking. Tenant shall hold Landlord harmless for the removal and charges
related thereto when Tenant, or its employees, park in spaces designated as
reserved parking (other than reserved for Tenant), visitor parking, handicapped
parking, or red or yellow curb areas.
0.0.19 Tenant shall not maintain armed security in or about the
Premises nor possess any weapons, explosives, combustibles or other hazardous
devices in or about the Building and/or Premises.
0.0.20 All of Tenant's signs shall: (i) be professionally designed,
prepared and installed, (ii) not advertise any product, (iii) comply with any
sign criteria developed by Landlord from time to time, and (iv) be subject to
all Applicable Laws and any covenants, conditions and restrictions applicable to
the Project or Building. Tenant shall maintain all signs hereunder in good
repair and sightly first class condition. Tenant shall not use strobe or
flashing lights in or on the Premises or in any signs therefor.
0.0.21 Tenant shall conduct its labor relations and relations with
employees so as to avoid strikes, picketing, and boycotts of, on or about the
Premises or Project. If any employees strike, or if picket lines or boycotts or
other visible activities objectionable to Landlord are established, conducted or
carried out against Tenant, other occupants of the Premises or their employees,
agents, transferees or contractors in or about the Premises or Project, Tenant
shall immediately close the Premises and remove or cause to be removed all such
occupants, employees, agents, transferees and contractors, as may be permitted
by law, until the dispute has been settled.
0.0.22 Upon expiration or earlier termination or this Lease, in
addition to the requirements under Article 24 of this Lease, Tenant shall ensure
that:
a. All interior and exterior lights and bulbs are operational.
b. All exhaust, ceiling and overhead fans are operational.
c. Warehouse floor areas are broom swept and clean of all trash
and materials.
d. Warehouse floor areas are cleaned of oils, fluids and other
foreign materials.
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<PAGE>
e. All electrical, plumbing and other utilities which are
terminated are disconnected, capped and/or terminated
according to applicable building codes and all other
governmental requirements.
f. All electrical and telecommunications conduit and wiring
installed by or for Tenant specifically for Tenant's equipment
is removed to the originating panel if Landlord so requires.
g. Overhead interior and exterior doors are operational and in
good condition.
h. Any bolts secured to the floor are cut off flush and scaled
with epoxy.
i. Warehouse fencing or partitions are removed if Landlord so
requires.
j. All furniture, trash and debris are removed.
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<PAGE>
ADDENDUM
TO
INDUSTRIAL LEASE
THIS ADDENDUM TO INDUSTRIAL LEASE ("ADDENDUM") is made as of June 23,
1998 between BREN ASSOCIATES LLC, a Minnesota limited liability company
("LANDLORD") and APERTUS TECHNOLOGIES INCORPORATED, a Minnesota corporation
("TENANT"), in amendment to and modification of that certain Industrial Lease of
even date herewith (the "BASE LEASE") between Landlord and Tenant.
NOW THEREFORE, Landlord and Tenant hereby agree as follows:
1. INTERPRETATION OF ADDENDUM. The Base Lease, as amended by this
Addendum, is the "Lease". To the extent of any inconsistency or conflict between
the terms of the Base Lease and the terms of this Addendum, the terms of this
Addendum shall control. Except as expressly defined otherwise in this Addendum,
all initially capitalized terms in this Addendum shall have the meanings given
them in the Base Lease.
2. OPTION TO EXTEND. Tenant, if not in default of any terms or
conditions of the Lease, shall have one option to extend the Term of the Lease
for a period of five years commencing immediately upon the expiration of the
initial Term, by giving Landlord written notice of its intent to extend this
Lease at least six months before the expiration of the initial Term. If Tenant
fails to so notify Landlord of its intent to exercise this option by at least
six months prior to the scheduled expiration of the initial Tenn, this option
shall become null and void. The rental rates for the extension period shall be
based upon the then-current Base Rent for similar space; however, in no event
shall the rental rate be less than Tenant paid in the previous rental period.
With the exception of the modification of Base Rent as provided in the preceding
sentence, the extension of the Term under this Section 2 shall be upon all terms
and conditions of the Lease, including, without limitation, Tenant's obligation
to pay Tenant's Percentage Share of Operating Expenses, Property Taxes and
Insurance Expenses.
3. AMENDMENTS TO BASE LEASE. The following provisions of the Base Lease
are hereby amended as follows:
a. The following is hereby added at the end of Section 1.08:
"In determining Tenant's Percentage Share and the percentage
share of Operating Expenses, Property Taxes and Insurance
Expenses payable by the other tenant or tenants of the
Building, Landlord shall use the same total Building area for
all tenants, and shall use the same method of determining the
area of each tenant's premises."
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<PAGE>
b. The following is hereby added at the end of.Section 2.02:
"Prior to Tenant's taking possession of the Premises, Landlord
shall provide to Tenant a certification from a contractor
selected by Landlord that the existing HVAC equipment serving
the Premises is in good working order."
c. The following is hereby added at the end of Section 3.01:
"Notwithstanding that the scheduled commencement date of the
Lease is September 1, 1998, Landlord shall use its
commercially reasonable best efforts to tender possession of
the Premises to Tenant as soon as is reasonable after the
current tenant has vacated the Premises. In the event Landlord
so tenders possession of the Premises to Tenant prior to
September 1, 1998, such early occupancy by Tenant shall be
subject to all terms and provisions of the Lease, except that
Tenant shall have no obligation to pay Base Rent or any
portion of the Operating Costs with respect to such period of
occupancy prior to September 1, 1998. Notwithstanding anything
else in the Lease to the contrary, but subject to delays
caused by Tenant, if Landlord does not tender possession of
the Premises to Tenant on or before September 15, 1998, Tenant
shall be entitled to terminate the Lease upon 5 days' prior
written notice delivered to Landlord, provided that if
Landlord tenders possession of the Premises within 5 days
after receipt of such notice, such termination notice shall be
null and void and the Lease shall remain in full force and
effect."
d. The following is hereby added at the end of Section
4.01(A):
"Notwithstanding any provision of this Lease apparently to the
contrary, in the case of special assessments levied against
the Building or the Project after the date of this Lease,
regardless of whether Landlord elects to pay such assessments
in installments, such special assessments shall be payable by
Tenant only to the extent and as if Landlord had elected to
pay the same in installments over the longest period of time
available to Landlord to repay such special assessments, and
only those installments (or partial installments) which are
due and payable during the term of this Lease shall be payable
by Tenant."
e. The following is hereby added at the end of Section
4.01(B):
"The following expenses shall also be excluded from Operating
Expenses: costs incurred by Landlord in correcting defects in
the original construction of the Building or the Project
(including corrections required as a result of the original
design or construction of the Building or the
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<PAGE>
Project not being in compliance with the Americans With
Disabilities Act when constructed); property manager's fees in
excess of five percent (5%) of gross rents for the Building or
the Project; any repair or other work necessitated by
condemnation, fire or other casualty; and expense for which
Landlord is compensated through proceeds of insurance; any
costs and expenses associated with the removal and clean-up of
hazardous wastes or toxic substances for which Tenant is not
responsible under the provisions of this Lease (except for the
costs of handling and disposing cleaning supplies and
materials (such as cleaning chemicals, batteries, light bulbs,
etc.) used in the normal course of operating and maintaining
the Building); any costs, fines or penalties resulting from
Landlord's violation of any governmental rule or regulation;
costs for improving, painting or decorating vacant premises or
premises occupied by other tenants; and any expense paid
directly by Tenant."
f. The following is hereby added at the end of Section 4.02:
" (F) If the Term commences on a day other than January 1, the
amount of the Tax, Operating Expense and Insurance Adjustments
to be paid pursuant to Sections 4.02(B), (C) and (D) that is
applicable to the calendar year in which the Commencement Date
occurs shall be pro rated on the basis of the number of days
from the Commencement Date to December 31 of the year in which
the Commencement Date occurs bears to 365."
g. The following is hereby added at the end of Section
4.04(C):
"Landlord shall also refund to Tenant (after deduction of
Landlord's reasonable attorneys' fees and costs incurred in
obtaining any refund or rebate) Tenant's Percentage Share of
the amount of any refund, rebate or the like received by
Landlord of Property Taxes that were paid by Tenant (directly
or as a Tax Adjustment) regardless of whether such refund,
rebate or the like is received by Landlord before or after the
expiration of the Term."
h. The following is hereby added at the end of Section
6.02(C):
"Notwithstanding the foregoing, Tenant shall not be obligated
to pay Landlord any portion of the cost of any improvements,
capital expenditures, repairs or replacements to the Building
or the Project that are required directly as a result of any
particular business activities of other tenants of the
Building or the Project (i.e. uses of such premises other than
for normal office/warehouse/distribution activities) and/or
are payable by other tenants of the Building or the Project
pursuant to the
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<PAGE>
terms of such other tenants' leases. Landlord is not currently
planning any capital improvements.
i. The following is hereby added after "or other eviction of
Tenant" in the seventh line of Section 7.04:
"Notwithstanding the foregoing, in the event the services or
utilities which Landlord is required to provide under Section
7.01 are not restored within 10 business days after
suspension, for reasons beyond Landlord's commercially
reasonable control, and such suspension of services or
utilities prevents Tenant from using all or substantially all
of the Premises for the permitted use, all Base Rent and
Operating Costs payable under this Lease shall equitably abate
until such services or utilities have been restored so as to
permit Tenant to use all or substantially all of the Premises
for the permitted use, under this Lease."
j. The following is hereby added at the end of Section 8.02:
"Notwithstanding anything in this Section 8.02 to the
contrary, Landlord shall maintain all HVAC systems for the
Building (regardless of whether such HVAC systems serve only
one tenant or multiple tenants in common), and the cost of
such maintenance shall be included in Operating Expenses."
k. The following is hereby added at the end of Section 10.0 1:
" (D) Landlord hereby agrees to indemnify Tenant in the same
manner as Tenant has agreed to indemnify Landlord above in
Section 10.01(A), except that: (a) such indemnity shall only
apply with respect to occurrences in the areas of the Project
which are under Landlord's control and are intended by
Landlord for use in common by Tenant and the other tenants of
the Project; and (b) Landlord shall not be liable hereunder
for any environmental damages, testing or investigation as
described in Sections 10.01 (A)(ii) and (iii) except to the
extent directly caused by Hazardous Materials introduced into
the Project by Landlord (and not by any predecessor to
Landlord as owner of the Project)."
l. The following is hereby added at the end of Section 10.09:
"To the extent that either Landlord or Tenant is required
under this Lease to carry insurance or does carry insurance,
such party shall not seek recovery from the other party, and
shall seek recovery only from its own insurance carriers; for
the purposes hereof, any deductible amount shall be treated as
though it were recoverable under its insurance policies."
-63-
<PAGE>
m. The following is hereby added at the end of Section 12.02:
"Notwithstanding the foregoing, Tenant shall be entitled to
also make a separate claim for the taking of Tenant's personal
property (including fixtures paid for by Tenant), loss or
disruption of Tenant's business resulting from such taking and
any other award recoverable by Tenant, provided that, and only
to the extent that, such claim will not reduce in any manner
the award payable to Landlord, and Landlord shall not be
entitled to any part of the condemnation award recoverable by
Tenant."
n. The following is hereby substituted for Section 17.02:
" Section 17.02 Attornment. Notwithstanding the provisions of
Section 17.01 to the contrary, this Lease shall not be
subordinate to any mortgage first recorded against the Project
after the date of this Lease until Landlord delivers to Tenant
a commercially reasonable subordination, non-disturbance and
attornment agreement signed by such mortgagee providing that
this Lease shall be subject and subordinate to such mortgage,
provided that while Tenant is not in default under this Lease,
notwithstanding any foreclosure or deed in lieu of
foreclosure, such mortgagee shall not disturb Tenant's
occupancy of the Premises pursuant to the terms of this Lease,
and including such other provisions as are customarily
obtained by such mortgagee. Tenant shall promptly execute and
deliver any such subordination, non-disturbance and attornment
agreement, provided that if Tenant falls to execute and
deliver such agreement within 15 business days after receipt,
this Lease shall automatically be subject and subordinate to
the mortgage described in such agreement upon the terms of
Section 17.01. Landlord agrees to make reasonable efforts to
obtain a subordination, non-disturbance and attornment
agreement from the current mortgagee of the Project, provided
that this Lease shall remain subject and subordinate to such
mortgagee's mortgage under the terms of Section 17.01 until
Landlord has obtained such agreement."
o. The following is hereby added at the end of Section 21.01:
"Notwithstanding anything in this Section to the contrary,
Tenant's execution of any Estoppel Certificate shall not be
construed to modify or amend the Lease in any manner, provided
that Tenant may be required to acknowledge and confirm in any
Estoppel Certificate all modifications and amendments of the
Lease which Landlord and Tenant have then entered into or
agreed to."
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<PAGE>
p. The following is inserted at the end of clause (ii) of
Section 28.19 in the fifth line of Section 28.19:
", provided Tenant shall be entitled to maintain, at Tenant's
sole cost and expense, an exterior sign of the design and in
the location specified in Exhibit B to this Lease, which
Tenant shall, at Tenant's sole cost, remove prior to the end
of the Term, and return the area where the sign was located to
its condition prior to installation;".
IN WITNESS WHEREOF, Landlord and Tenant have executed this Addendum to
Industrial Lease as of the date first stated above.
TENANT:
APERTUS TECHNOLOGIES
INCORPORATED
By:
----------------------------
Its:
------------------------
LANDLORD:
BREN ASSOCIATES LLC
By:
----------------------------
Its:
------------------------
-65-
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<PAGE>
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<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-28-1999
<PERIOD-START> MAR-30-1998
<PERIOD-END> JUN-28-1998
<CASH> 9,587
<SECURITIES> 0
<RECEIVABLES> 1,635
<ALLOWANCES> 185
<INVENTORY> 0
<CURRENT-ASSETS> 11,202
<PP&E> 4,675
<DEPRECIATION> 3,362
<TOTAL-ASSETS> 12,515
<CURRENT-LIABILITIES> 4,495
<BONDS> 598
0
0
<COMMON> 834
<OTHER-SE> 6,588
<TOTAL-LIABILITY-AND-EQUITY> 12,515
<SALES> 915
<TOTAL-REVENUES> 1,322
<CGS> 626
<TOTAL-COSTS> 626
<OTHER-EXPENSES> 2,469
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 16
<INCOME-PRETAX> (1,637)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,637)
<DISCONTINUED> 0
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<NET-INCOME> (1,637)
<EPS-PRIMARY> (.10)
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<PAGE>
Exhibit 99
CAUTIONARY STATEMENT
Carleton Corporation (the "Company"), or persons acting on behalf of the
Company, or outside reviewers retained by the Company making statements on
behalf of the Company, or underwriters, from time to time, may make, in writing
or orally, "forward-looking statements" as defined under the Private Securities
Litigation Reform Act of 1995 (the "Act"). This Cautionary Statement is for the
purpose of qualifying for the "safe harbor" provisions of the Act and is
intended to be a readily available written document that contains factors which
could cause results to differ materially from those projected in such
forward-looking statements. These factors are in addition to any other
cautionary statements, written or oral, which may be made or referred to in
connection with any such forward-looking statement.
The following matters, among others, may have a material adverse effect on the
business, financial condition, liquidity, results of operations or prospects,
financial or otherwise, of the Company. Reference to this Cautionary Statement
in the context of a forward-looking statement shall be deemed to be a statement
that any one or more of the following factors may cause actual results to differ
materially from those which might be projected, forecast, estimated or budgeted
by the Company in such forward-looking statement or statements:
CONTINUED INTEGRATION OF OPERATIONS
The Company must continue to build upon the integration of the former "Carleton
Corporation", which was acquired in October 1997. The process of rationalizing
management services, administrative organizations, facilities, management
information systems and other aspects of operations, while managing a larger and
geographically expanded entity, will continue to present challenges to
management. Although no significant problems have arisen to date, there can be
no assurances that the integration process will continue to be successful and
that the anticipated benefits of the acquisition will be fully realized. The
dedication of management resources to such integration may detract attention
from the day-to-day business of the Company. There can be no assurances that
there will not be substantial costs associated with the continued integration or
that there will not be other material adverse effects from these integration
efforts.
DEPENDENCE ON PRINCIPAL PRODUCTS
Substantially all of the Company's revenues are derived from the sale of data
integration tools, primarily the Passport and Enterprise/Integrator products,
and related support services. Accordingly, any event that adversely affects fees
derived from the sale of such tools, such as competition from other products,
significant flaws in the Company's software products or incompatibility with
third party hardware or software products, negative publicity or evaluation, or
obsolescence of the hardware platforms or software environments in which the
systems run, could have a material adverse effect on the Company's business and
operations. The Company's future financial performance will depend on the
continued development and introduction of new and enhanced version of its
products, and on customer acceptance of such new and enhanced products.
<PAGE>
RAPID TECHNOLOGICAL CHANGE AND NEW PRODUCTS
The market for the Company's software products is characterized by rapid
technological advances, evolving industry standards, changes in end-user
requirements and frequent new product introductions and enhancements. The
introduction of products embodying new technologies and the emergence of new
industry standards could render the Company's existing products and products
under development obsolete and unmarketable. Accordingly, the Company's future
success will depend upon its ability to enhance its current products and develop
and introduce new products that keep pace with technological developments,
satisfy varying end-user requirements and achieve market acceptance. Any failure
by the Company to anticipate or respond adequately to technological developments
or end-user requirements, or any significant delays in product development or
introduction, could damage the Company's competitive position and have an
adverse effect on revenues. There can be no assurance that the Company will be
successful in developing and marketing new products or product enhancements on a
timely basis or that the Company will not experience significant delays in the
future, which could have a material adverse effect on the Company's business and
operations. In addition, there can be no assurance that new products or product
enhancements developed by the Company will achieve market acceptance.
Furthermore, software programs as complex as those offered by the Company may
contain undetected errors or "bugs" when first introduced or as new versions are
released that, despite testing by the Company, are discovered only after a
product has been installed and used by customers. There can be no assurance that
errors will not be found in future releases of the Company's software, or that
any such errors will not impair the market acceptance of these products and
adversely affect operating results. Problems encountered by customers installing
and implementing new releases or with the performance of the Company's products
could have a material adverse effect on the Company's business and operations.
DEPENDENCE ON INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
The Company relies on a combination of copyright, trademark and trade secret
laws, employee and third-party nondisclosure agreements and other industry
standard methods for protecting ownership of its proprietary software. There can
be no assurance, however, that, in spite of these precautions, an unauthorized
third party will not copy or reverse-engineer certain portions of the Company's
products or obtain and use information that the Company regards as proprietary.
Although the Company's licenses contain confidentiality and nondisclosure
provisions, there can be no assurance that such customers will take adequate
precautions to protect the Company's source codes or other confidential
information. In addition, the laws of some foreign countries do not protect the
Company's proprietary rights to the same extent as do the laws of the United
States. There can be no assurance that the mechanisms used by the Company to
protect its software will be adequate or that the Company's competitors will not
independently develop software products that are substantially equivalent or
superior to the Company's software products.
Furthermore, the Company may receive notices from third parties claiming that
the Company's products infringe third party proprietary rights. The Company
expects that, as the number of software products in the industry increases and
the functionality of these products further overlaps, software products will
increasingly be subject to such claims. Any such claim, with or without merit,
could result in costly litigation and require the Company to enter into royalty
or licensing arrangements. Such royalty or license arrangements, if required,
may not be available on terms acceptable to the Company or at all.
<PAGE>
PRODUCT LIABILITY
The Company incurs risks of professional and other liability given the nature of
the products it develops and markets. No assurance can be given that the
limitations of liability set forth in the Company's license agreements and other
contracts would be enforceable or would otherwise protect the Company from
liability for damages to a customer resulting from a defect in one of the
Company's products or arising as a result of professional services rendered by
the Company. Such a claim, if successful and of sufficient magnitude, could have
a material adverse effect on the Company's business and operations.
COMPETITION
The computer software industry is intensely competitive, rapidly changing and
significantly affected by new product offerings and other market activities. A
number of companies offer products similar to the Company's products. Many of
the Company's existing competitors, as well as a number of potential
competitors, have more established and larger marketing and sales organizations,
significantly greater financial and technical resources and a larger base of
customers than the Company. The Company has no proprietary barriers to entry
which would limit competitors from developing similar products or selling
competing products in the Company's markets. Accordingly, there can be no
assurance that such competitors will not offer or develop products that are
superior to the Company's products or that achieve greater market acceptance.
Competition is likely to increase, which may result in price reductions and loss
of market share. The Company will also continue to face competition from
potential customers who will decide to try meet their needs through the use of
internal resources. There can be no assurance that the Company will be able to
compete successfully against its competitors or that the competitive pressures
faced by the Company will not adversely affect its financial performance.
The Company's principal markets are highly fragmented and consist of a few large
multinational suppliers and a much larger number of small, regional competitors.
The Company believes that its industry will experience consolidation as
management information systems become more complex and as more manufacturers
adopt sophisticated management information systems, forcing smaller companies in
the industry to specialize or merge with their competitors. In order to compete
effectively in the broad markets which the Company presently targets, the
Company will need to continue to grow and attain sufficient size to ensure that
it can develop new products on a timely basis in response to evolving technology
and new customer demands and can sell such products on a timely basis to a
variety of industries worldwide. No assurance can be given that the Company will
be able to grow sufficiently to enable it to compete effectively.
In order to be successful in the future, the Company must respond effectively to
customer needs and properly select and incorporate those technologies and
application functionalities that will meet the challenges posed by competitors'
innovations. To accomplish this critical objective, the Company must continue to
invest in enhancing its current products and, when necessary, introduce new
products to remain competitive.
<PAGE>
DEPENDENCE ON KEY EMPLOYEES
The Company is dependent upon the continued services and management experience
of Robert Gordon and other key employees. If Mr. Gordon or any of such other key
employee were to leave the Company, the Company's operating results could be
adversely affected. In addition, the Company's continued growth depends on its
ability to attract and retain skilled employees and on the ability of its
officers and key employees to manage growth successfully. The loss of certain
key employees or the Company's inability to attract and retain other qualified
employees could have a material adverse effect on the Company's business and
operations.
ABILITY TO RECRUIT SALES, SERVICE AND IMPLEMENTATION PERSONNEL
The ability to achieve anticipated revenues is substantially dependent on the
ability of the Company to attract, on a timely basis, and retain skilled
personnel, especially sales, service and implementation personnel. In addition,
the Company believes that its future success will depend in large part on its
ability to attract and retain highly skilled technical, managerial, marketing
and professional services personnel to ensure the quality of products and
services provided to its customers. Competition for such personnel, in
particular for product development, sales and implementation personnel, is
intense, and the Company competes in the market for such personnel against
numerous companies, including larger, more established companies with
significantly greater financial resources than the Company. There can be no
assurance that the Company will be successful in attracting and retaining
skilled personnel. The Company's inability to attract and retain qualified
employees could have a material adverse effect on its business and operations.
DEPENDENCE ON THIRD PARTY SUPPLIERS
The Company's products incorporate and use software products developed by other
entities. There can be no assurance that all of these entities will remain in
business, that such entities will continue to support these product lines, that
their product lines will remain viable or that these products will otherwise
continue to be available to the Company. If any of these entities ceases to do
business or abandons or fails to enhance a particular line, the Company may need
to seek other suppliers or make material changes to its own products, which
could have a material adverse effect on the Company's business and operations.
RECENT OPERATING LOSSES
The Company has sustained operating losses from continuing operations in each of
its past two fiscal years. The losses were due to many factors. The most
significant factors were the low sales volume generated from the continuing
business as it was developing and the fixed component of the operational
infrastructure. The Company's ability to return to profitability is dependent
upon the continued development and successful marketing of its products. There
can be no assurance, however, that the Company will be able to return to
profitability.
<PAGE>
ADDITIONAL BUSINESS RISKS
The future success of the Company's business and operations are subject to
several additional business risks, including (i) risk of lengthening sales
cycles; (ii) higher service, administrative or general expenses occasioned by
the need for additional advertising, marketing, administrative or management
information systems expenditures; (iii) inability to carry out marketing and
sales plans; and (iv) changes in interest rates causing a reduction of
investment income.
The foregoing review of factors pursuant to the Act should not be construed as
exhaustive or as any admission regarding the adequacy of disclosures made by the
Company prior to the effective date of the Act.
