<PAGE> 1
LAKE CALHOUN
EXECUTIVE CENTER
This LEASE AGREEMENT ("Lease"), made as of this 5th day of May, 2000,
between HARVARD PROPERTY (LAKE CALHOUN), L.P., a Texas limited partnership
("Landlord"), and Zamba Corporation, a Minnesota corporation ("Tenant");
WITNESSETH, THAT
1. Premises. Landlord, subject to the terms and conditions hereof,
hereby leases to Tenant certain premises ("Premises") shown crosshatched on the
floor plan attached hereto as Exhibit A, containing approximately 26,770 net
rentable square feet on the second floor, Suite 200, located in the building
situated at 3033 Excelsior Boulevard, Minneapolis, Minnesota 55416 (the
"Building"), situated on property legally described on Exhibit B attached hereto
and made a part hereof (the "Land").
2. Use. Tenant shall use the Premises only as business offices for
Tenant's business of general office and shall not use the Premises for any other
use or purpose without the prior written consent of Landlord.
3. Term. Tenant takes the Premises from Landlord, upon the terms and
conditions herein contained for the term ("Term") of five (5) year and four (4)
months commencing on the 1st day of August, 2000 (the "Commencement Date") and
ending on the 30th day of November, 2005 unless sooner terminated as herein
provided.
Notwithstanding the foregoing if the Premises shall, on the scheduled
Commencement Date of the Term, not be ready for occupancy by the Tenant due to
the possession or occupancy thereof by any person not lawfully entitled thereto,
or because construction has not yet been completed, or by reason of any Building
operations, repair or remodeling to be done by Landlord, Landlord shall complete
such construction, Building operations, repair or remodeling and to deliver
possession of the Premises to Tenant. Landlord, using such good faith efforts,
shall not in any way be liable for failure to obtain possession of the Premises
for Tenant or to timely complete such construction, building operations, repair
or remodeling, but the Base Rent, Operating Costs and Additional Rent (all as
defined below) payable by Tenant hereunder shall abate until the date Landlord
is able to tender possession of the Premises to Tenant, which date shall
thenceforth be deemed the "Commencement Date;" and the Term of this Lease shall
be automatically extended so as to include the full number of months
hereinbefore provided except that if the Commencement Date is other than the
first day of a calendar month, such Term shall also be extended for the
remainder of the calendar month in which possession is tendered.
If Tenant's possession is delayed in whole or in part as a result of:
(i) Tenant's failure to agree to plans and specifications; (ii) Tenant's request
for materials, finishes or installations other than Landlord's standard; (iii)
Tenant's changes in plans; or (iv) the performance or completion by a party
employed by Tenant, the Commencement Date shall be deemed to be the date on
which Landlord would have been able to tender possession of the Premises to
Tenant, but for such delay.
The taking of possession by Tenant shall be deemed conclusively to
establish that the Premises have been completed in accordance with the plans and
specifications and are in good and satisfactory condition as of when possession
was so taken (except for such items as Landlord is permitted to complete at a
later date, which items shall be specified by Landlord to Tenant in writing).
The date stated in Article 3 above shall be deemed to be the Commencement Date
unless Landlord and Tenant execute a Commencement Letter identifying a change in
that date, such letter to be in the form attached hereto as Exhibit E. In the
event of any dispute as to when and whether the work performed or required to be
performed by Landlord has been substantially completed, the certificate of an
A.I.A. registered architect approved by Tenant or a temporary or final
certificate of occupancy issued by the local governmental authority shall be
conclusive evidence of such completion, effective on the date of the delivery of
a copy of any such certificate to Tenant. Tenant shall have ninety (90) days
from the Commencement Date to develop a "Punch List" of incomplete or incorrect
items which shall be remedied by the Landlord within thirty (30) days from the
date of receipt of such "Punch List."
-1-
<PAGE> 2
4. Security Deposit. On or before the Commencement Date, Tenant shall
deposit with Landlord the sum of Thirty-one Thousand Two Hundred Fifty Dollars
($31,250.00) (the "Security Deposit") as security for the full and faithful
performance of this Lease to be performed by Tenant. If Tenant defaults with
respect to any provision of this Lease, including, without limitation, the
provisions relating to the payment of Base Rent, Operating Costs or Additional
Rent, the repair of damage to the Premises and/or cleaning or restoring the
Premises upon termination of this Lease, Landlord may use, apply or retain all
or any part of this Security Deposit for the payment of any Base Rent, Operating
Costs or Additional Rent or other sum in default and any amounts which Landlord
may spend or become obligated to spend by reason of Tenant's default to the full
extent permitted by law. If any portion of said deposit is so used, applied or
retained, Tenant shall, within ten (10) days after written demand therefore,
deposit cash with Landlord in an amount sufficient to restore the Security
Deposit to an amount equal to one monthly installment of the then-applicable
Base Rent, plus the monthly amount of estimated Operating Costs and other
charges payable hereunder by Tenant multiplied by the number of months worth of
Base Rent represented by the initial Security Deposit, and Tenant's failure to
do so shall be a material default and breach of this Lease. Landlord shall not
be required to keep any Security Deposit separate from its general funds, and
Tenant shall be entitled to interest on any such deposit. If Tenant shall fully
and faithfully perform every provision of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Tenant or to the
last assignee of Tenant's interest hereunder within sixty (60) days after the
expiration of the Term.
5. Base Rent. Tenant agrees to pay to Landlord during the Term a Base
Rent (the "Base Rent") per annum, payable in equal monthly installments, due and
payable in advance on the Commencement Date and on the first day of each month
thereafter during the Term, without deduction or setoff of any kind, and
delivered or sent to Landlord's managing agent, Harvard Property (Lake Calhoun),
L.P., c/o Lanmark Property Advisors, P.O. Box 249, Rochester, MN, 55903, or at
such other place as may from time to time be designated by Landlord. Base Rent
is as follows:
<TABLE>
<S> <C>
8/1/00 - 7/31/01 $21,393.67 per month
8/1/01 - 7/31/02 $33,462.50 per month
8/1/02 - 7/31/03 $34,533.30 per month
8/1/03 - 7/31/04 $35,604.10 per month
8/1/04 - 11/30/05 $36,808.75 per month
</TABLE>
6. Additional Rent Amounts. Any amounts in addition to Base Rent and
Operating Costs payable to Landlord by Tenant hereunder, including, without
limitation, amounts payable pursuant to Section 9 and Exhibit C, and any costs
set forth in the Addendum to Lease, if any, described in Section 38 hereof
(collectively the "Additional Rent") shall be an obligation of Tenant hereunder
and all such Additional Rent shall be due and payable upon demand.
7. Operating Costs. In addition to Base Rent and Additional Rent,
Tenant shall, for the entire Term, pay to Landlord, without any setoff or
deduction therefrom, its Proportionate Share (as hereinafter defined) of costs
which Landlord may incur in owning, maintaining and operating the Building
during each calendar year of the Term (such costs hereinafter "Operating
Costs"), which Operating Costs shall be paid with each installment of Base Rent
due and payable hereunder. "Proportionate Share" is defined as all Operating
Costs incurred by Landlord with respect to the Building (Proportionate Share
being expressed as the decimal equivalent of a fraction, the numerator of which
is the net rentable square feet of the Premises and the denominator of which is
the net rentable square feet of the entire Building, each as reasonably
determined by Landlord). Operating Costs include all expenses and costs (but not
specific costs which are separately billed to and paid by individual tenants
including Tenant) of every kind and nature which the Landlord shall pay or
become obligated to pay because of or in connection with the ownership and
operation of the Building, supporting facilities of the Building and the Land,
including but not limited to all real estate taxes and special or other
assessments payable with respect to the Building and the Land, and all other
taxes, service payments in lieu of taxes, excises, levies, fees, or charges,
general and special, ordinary and extraordinary, of any kind, which are
assessed, levied, charged, confirmed or imposed by any public authority upon the
Building or the Land, the operations of the Building or the Land or the Rent (as
defined below) provided for in this Lease including, but not limited to, the
amount of any gross receipts tax, sales tax or similar tax, or any tax imposed
in lieu of real property taxes (but excluding therefrom any income tax), or tax
arising out of ownership of the Building or the Land, which tax is payable or
which will be payable by Landlord, by reason of the receipt of the Base Rent,
Operating Costs or Additional Rent and adjustments thereto; costs of any contest
of such taxes (including attorneys' fees), accounting fees, management fees,
insurance premiums, utility costs, janitorial costs, Building security costs,
costs of wages, salaries and fringe benefits for all individuals providing
services to the Building through the level of property manager or similar
position, maintenance costs (relating to the Building, the Land and adjacent
land including sidewalks, landscaping and parking or service areas, common
areas, service contracts, equipment and supplies), any costs incurred by
Landlord in providing valet parking and all other costs of any nature whatsoever
so long as directly related to the operation of the Building which for federal
tax purposes may be expensed rather than
-2-
<PAGE> 3
capitalized, but exclusive only of leasing commissions, depreciation, principal
and interest, and costs of tenant improvements. Operating Costs shall also
include the yearly amortization of capital costs incurred by the Landlord for
improvements or structural repairs to the Building required to comply with any
laws, rules or regulations of any governmental authority having jurisdiction or
for purposes of reducing Operating Costs, which costs shall be amortized over
the useful life of such improvements or repairs, as reasonably estimated by
Landlord or as required by law.
As soon as reasonably practicable prior to the commencement of each
calendar year during the Term, Landlord shall furnish to Tenant an estimate of
Operating Costs for the ensuing calendar year and the amount of Tenant's
Proportionate Share thereof. Commencing on January 1 of said ensuing calendar
year, Tenant shall pay, together with each installment of Base Rent, one-twelfth
(1/12th) of its estimated annual Proportionate Share of Operating Costs. As soon
as reasonably practicable after the end of each calendar year during the Term,
Landlord shall furnish to Tenant a statement of the actual Operating Costs for
the previous calendar year, including Tenant's Proportionate Share of Operating
Costs, and within thirty (30) days thereafter Tenant shall pay to Landlord or
Landlord shall credit against the next Base Rent payment due Landlord from
Tenant or Landlord shall pay, if the Lease has expired, as the case may be, any
difference between the actual Operating Costs and the estimated Operating Costs
paid by Tenant for such year. Tenant's Proportionate Share of Operating Costs
for each of the years in which this Lease commences and terminates shall be
prorated by multiplying the actual Operating Costs by a fraction, the numerator
of which is the number of days of each such year of the Term and denominator of
which is 365, provided that the denominator shall be 366 for the 2000 calendar
year and every fourth year thereafter. Tenant's obligation to pay Operating
Costs for the year in which this Lease expires or otherwise terminates shall
survive the expiration or earlier termination of this Lease, and shall be
prorated to reflect that portion of the calendar year during which Tenant was
obligated to pay Operating Costs. Notwithstanding any other provision herein to
the contrary, it is agreed that in the event that the Building is not fully
occupied at any time during the Term, an adjustment shall be made in computing
the Operating Costs for such year so that the Operating Costs shall be computed
for such year as though the Building had been fully occupied during such year
(including, for real estate tax purposes, as if fully occupied and assessed as a
completed Building during such year). Notwithstanding the foregoing, if Landlord
shall from time to time reasonably determine that the use of any utility or
service in the Premises by Tenant is disproportionate to the use of other
tenants, Landlord may adjust Tenant's share of the cost thereof from a date
reasonably determined by Landlord to take equitable account of the
disproportionate use. At Landlord's option, Landlord may install and maintain at
Tenant's expense metering devices for measuring the use of any such utility or
service in the Premises.
8. Quiet Enjoyment. Landlord covenants that Tenant, upon paying all
Base Rent, Operating Costs and Additional Rent (the Base Rent, Operating Costs
and Additional Rent may collectively be referred to herein as the "Rent") and
performing all covenants and agreements on its part to be performed, shall have
quiet enjoyment and possession of the Premises during the Term, subject to the
terms and conditions of this Lease and to any agreements to which this Lease is
or may become subordinate, provided that Landlord shall endeavor to obtain
certificates of non-disturbance from all mortgagees and assignees that
acknowledge Tenant's right to remain in the Premises without restriction or
modification, provided that Tenant is not in default.
9. Service. Subject to a right of reimbursement from Tenant through its
Proportionate Share of Operating Costs, and so long as Tenant is not in default
hereunder, Landlord shall:
(a) maintain, repair and replace as needed all heating,
ventilating, air conditioning, mechanical, electrical and plumbing
systems, facilities and equipment in the Premises and the Building;
(b) replace Building-standard fluorescent electric lamps and
ballasts used in the Premises;
(c) maintain, repair and replace as needed all data
communication and telecommunication systems provided by Landlord within
the Building to a similar level of quality and quantity as existed at
the Commencement Date.
(d) furnish Tenant: (i) hot and cold water, at those points of
supply provided for general use of tenants; (ii) heated and
refrigerated air conditioning in season at such times as Landlord
normally furnishes these services to all tenants of the Building, and
at such temperatures and in such amounts as are in accordance with any
applicable statutes, rules or regulations and are considered by
Landlord to be standard, such service at other times and on Saturdays,
Sundays, and holidays to be optional on the part of Landlord (Landlord
hereby reserves the right to charge Tenant for any such optional
service requested by Tenant on such basis as Landlord, in its sole
discretion, determines); (iii) janitor service to the Premises on
weekdays other than holidays; (iv) such window washing as may from time
to time in the Landlord's judgment be reasonably required; and (v)
operator-less
-3-
<PAGE> 4
passenger elevators for ingress and egress to the floor on which the
Premises are located, provided Landlord may reasonably limit the number
of elevators to be in operation on Saturdays, Sundays, and holidays.
Failure to any extent to furnish, or any stoppage or interruption of these
defined services, resulting from any cause, shall not render Landlord liable in
any respect for damages to any person, property, or business, nor be construed
as an eviction of Tenant or work an abatement of Rent, nor relieve Tenant from
fulfillment of any covenant or agreement hereof, provided Landlord endeavors to
correct the situation as promptly as possible. Should any equipment or machinery
furnished by Landlord cease to function properly, Landlord shall use reasonable
diligence to repair the same promptly upon receipt of notice from Tenant, but
Tenant shall have no claim for an abatement of Rent or damages on account of any
interruptions in service occasioned thereby or resulting therefrom. Whenever
heat generating machines or equipment are used by Tenant in the Premises which
disproportionately affect the temperature otherwise maintained by the air
conditioning equipment, Landlord reserves the right to install supplementary air
conditioning units in the Premises (or for the use of the Premises) and the
expense of such purchase, installation, maintenance, operation and repair shall
be paid by Tenant upon demand as Additional Rent.
Notwithstanding the foregoing, if services required to be performed by
Landlord pursuant to (a), (b) (c) or (d) above must be performed due to the
negligence or willful misconduct of Tenant, its agents, servants or employees,
the costs of such services shall not be a part of Operating Costs, but shall be
Tenant's sole responsibility, and shall be Additional Rent payable in accordance
with Section 6.
10. Covenants of Tenant. In addition to all of its other obligations
pursuant to the Lease, Tenant hereby covenants with Landlord as follows:
(a) Laws and Regulations. Tenant shall observe such
governmental ordinances, laws and regulations as may from time to time
apply to the Building or the Premises or the Tenant's use or occupancy
thereof, and Tenant shall further observe such Building rules and
regulations, including, without limitation, those set forth in Exhibit
F, which from time to time may be put into effect by Landlord for the
general safety, comfort, and convenience of Landlord, occupants and
tenants of the Building and their licensees and invitees, including,
without limitation, Building signage and graphics standards, use of
designated common areas and other Building areas, security measures,
and similar matters.
(b) Surrender of Premises; Goods and Effects. Upon the
termination of this Lease in any manner whatsoever, Tenant shall remove
its goods and effects and those of any other person claiming under
Tenant, and quit and deliver up the Premises to Landlord peaceably and
quietly in as good order and condition as the same were in on the
Commencement Date, reasonable use and wear excepted. Goods and effects
not removed by Tenant at the termination of this Lease, however
terminated, shall be considered abandoned, and Landlord may dispose of
the same as it deems expedient, at Tenant's expense. Tenant shall be
responsible for payment of all costs incurred by Landlord for any
restoration of the Premises needed by virtue of the removal of Tenant's
goods and effects whether removed by Tenant or Landlord.
(c) Assignment and Subletting. Tenant shall not assign this
Lease or sublet all or any part of the Premises voluntarily,
involuntarily or by operation of law, or through change in the
ownership of Tenant, if Tenant is a corporation, partnership, limited
liability company or other form of legal entity, without first
obtaining Landlord's written consent thereto and regardless of whether
such consent is granted by Landlord, Tenant shall pay all costs and
expenses incurred by Landlord as a result of such request, not to
exceed $1,500, including attorneys' fees. Landlord's consent will not
be unreasonably withheld, conditioned or delayed, provided that: (i)
occupancy of any such assignee or sublessee is not, in Landlord's
reasonable judgment, inconsistent with the character of the Building;
(ii) such assignee or sublessee shall assume in writing the performance
of the covenants and obligations of Tenant hereunder; (iii) a fully
executed copy of any such assignment or sublease shall be immediately
delivered to Landlord but the making of such assignment or sublease
shall not be deemed to release Tenant from the payment and performance
of any of its obligations under this Lease; (iv) Tenant shall promptly
disclose and pay to Landlord as Additional Rent hereunder 50% of any
rent or other payments pursuant to any sublease which exceed the
amounts payable hereunder and any other consideration paid, or to be
paid, by reason of the assignment or sublease, after subtracting all
costs and expenses incurred by Tenant to procure such assignment or
sublease; (v) such assignment or subletting is approved by any
mortgagee holding a mortgage covering the Premises which reserves such
right unto the mortgagee; (vi) Tenant is not in default of this Lease
on the date of the assignment or sublease; and (vii) such assignee or
sublessee meets the credit standards required by Landlord for tenants
of similar size and type in the Building. Any assignment or sublease or
purported assignment or sublease made without Landlord's prior written
consent shall be void, and of no force and effect, whether or not
-4-
<PAGE> 5
Landlord had actual or constructive notice of such assignment or
sublease. Landlord agrees to respond to all written requests within a
reasonable time.
(d) Signs. Tenant shall not place signs on or about the
Premises or the Building or install signs, advertising or other
material on the interior (if any) or exterior windows of the Premises
without first obtaining Landlord's written consent thereto.
(e) Damage to Building. Tenant shall not overload, damage or
deface the Premises or the Building or do any act which may make void
or voidable any insurance on the Premises or the Building, or which may
render an increased or extra premium payable for insurance.
(f) Hazardous Substances. Tenant shall not cause or permit to
occur (i) any violation of any federal, state or local law, ordinance
or regulation now or hereafter enacted relating to environmental
conditions in, under or about the Premises or arising from Tenant's use
or occupancy of the Premises; or (ii) without Landlord's prior written
consent, which consent may be given or withheld in Landlord's sole
discretion, use, generate, release, manufacture, refine, produce,
process, store or dispose of any Hazardous Substance (as hereinafter
defined) in, under or about the Premises, or transport any Hazardous
Substance to or from the Premises. For the purposes of this Lease,
Hazardous Substance shall include, but not be limited to flammables,
explosives, radioactive materials, asbestos, polychlorinated biphenyls
(PCB's), petroleum, petroleum products, chemicals known to cause cancer
or adversely affect reproduction, pollutants, contaminants, hazardous
wastes, toxic products and substances declared to be hazardous or toxic
under any law or regulation concerning the environment now or hereafter
enacted or promulgated by any governmental authority with jurisdiction.
(g) Mechanic's Liens. Tenant shall keep the Premises and the
Building free from any mechanics', materialmen's, contractors' or other
liens arising from, or any claims for damages growing out of, any work
performed, materials furnished or obligations incurred by or on behalf
of Tenant. In the event of such a lien being filed against the
Premises, the Building or the Land as a result of work performed,
materials furnished or obligations incurred by or on behalf of Tenant,
Tenant, at its sole cost and expense, shall cause such lien to be
removed within ten (10) days after Tenant becomes aware of the filing
of such lien. Tenant hereby indemnifies and holds Landlord harmless
from and against any such lien, or claim or action thereon, and agrees
that it shall reimburse Landlord promptly upon demand therefore by
Landlord for costs of suit and reasonable attorneys' fees incurred by
Landlord in connection with any such lien, claim or action.
(h) Insurance. Tenant shall maintain at its expense at all
times during the Term: (i) a policy or policies of commercial liability
insurance with respect to the premises and the business of Tenant,
written on an occurrence basis and naming Landlord as an additional
insured thereon with limits of not less than $2,000,000 combined single
limit; provided, however, that if Tenant's policy or policies of
insurance is or are subject to an annual aggregate clause, Tenant shall
provide Landlord with evidence demonstrating that the $2,000,000
coverage required by this subparagraph (i) applies solely to the
Premises; and (ii) a policy or policies of all-risk coverage insurance
insuring Tenant's leasehold improvements, trade fixtures and other
personal property for the full replacement cost value thereof, and
naming Landlord as a loss payee as its interest may appear. All such
insurance policies shall be placed with companies with a Best rating of
A+ VII or better and qualified to do business in the State of
Minnesota, provide for at least thirty (30) days prior written notice
to Landlord before cancellation or amendment, name Landlord as an
additional insured thereon, and current, endorsed copies of such
policies or certificates thereof shall be filed with Landlord prior to
Tenant's occupancy of the Premises and on each anniversary of the
Commencement Date during the Term.
(i) Vending Machines. Tenant shall not install, operate, or
permit any vending machines or coin-operated devices upon the Premises
without Landlord's prior written consent. Tenant may include devices
such as free pop machines for which Tenant receives no payment.
(j) Maintenance of Premises. Except to the extent that
Landlord is specifically responsible therefor under Paragraph 9(a) of
this Lease, Tenant shall maintain the Premises and its surrounding
walls, ceiling and floor and all improvements therein in good order and
condition, including repairs and replacements thereto. Notwithstanding
the foregoing, if any of Tenant's obligations pursuant to this
subparagraph (j) involve any structural portion of the Building, or any
building system, including, but not limited to, heating, ventilating
and air conditioning, Tenant shall not undertake any maintenance,
repair or replacement thereof without Landlord's prior written consent.
-5-
<PAGE> 6
(k) Waste. Tenant shall not commit waste on the Premises, nor
allow waste to be committed by any of Tenant's agents, employees,
licensees, invitees or contractors.
(l) Liquidation Sale. Tenant shall not conduct, or permit to
be conducted on or from the Premises, any auction of Tenant's personal
property, any liquidation sale, any going-out-of-business sale or other
similar activity.
(m) Financial Statements. Upon request of Landlord, Tenant
shall within ten (10) days thereafter, provide Landlord with the then
most current public financial statements of Tenant, including a balance
sheet and statement of income and expense, which shall be certified by
Tenant, and if required by the Securities and Exchange Commission for
that period's statement, audited by a certified public accountant.
Tenant's obligations under this Section 10 to do or not to do a specified act
shall extend to and include all of Tenant's employees, agents, contractors,
licensees and invitees.
11. Installation of Improvements; Alterations. Subject to Tenant's
performance of its obligations hereunder, Landlord agrees to install at
Landlord's cost and expense the improvements described in Exhibit C attached
hereto. All work performed by Landlord will be constructed (a) in a first-class
manner consistent with the Building; and (b) in accordance with all governmental
laws, ordinances, rules and regulations. All other improvements to the Premises
shall be installed at the cost and expense of Tenant (which cost shall be
payable on demand by Landlord as Additional Rent), only with the prior written
approval of Landlord and in accordance with plans and specifications which have
been previously submitted to and approved in writing by Landlord, and only by
Landlord or by contractors and subcontractors approved in writing by Landlord
(which approval shall not be unreasonably withheld). All alterations, additions,
improvements and partitions erected by Tenant shall be and remain the property
of Tenant and Tenant shall, unless permanently affixed to the Premises, remove
all alterations, additions, improvements and partitions erected by Tenant and
restore the Premises to its original condition by the date of expiration or
termination of this Lease or upon earlier vacating of the Premises, reasonable
wear and tear excepted. All such removals and restoration shall be accomplished
in a good workmanlike manner so as not to damage the primary structure or
structural qualities of the Building. Following expiration or termination of the
Lease, Tenant shall be released from any obligation to fix any improvements that
are allowed to remain, which shall be received by Landlord in "As is" condition.
All alterations, additions or improvements proposed by Tenant shall be
constructed (a) in a first-class manner consistent with the Building; and (b) in
accordance with all governmental laws, ordinances, rules and regulations. Tenant
shall, prior to construction of future improvements, provide such assurances to
Landlord, including but not limited to, waivers of lien, surety company
performance and payment bonds and personal guaranties of individuals of
substance, as Landlord shall require to assure payment of the costs thereof and
to protect Landlord against any loss from mechanics', laborers', materialmen's
or other liens. If such improvements are not being performed by Landlord, Tenant
shall permit Landlord, if Landlord so desires, at no expense or delay to Tenant,
subject to Force Majeure, to supervise construction operations in connection
with such work and to "post" the work in accordance with Minn. Stat. Section
514.06. In no event will such supervision or right to supervise by Landlord, nor
shall any approvals given by Landlord under this Lease, constitute any warranty
by Landlord to Tenant of the adequacy of the design, workmanship or quality of
such work or materials for Tenant's intended use or impose any liability upon
Landlord in connection with the performance of such work.
12. Casualty Loss. In case of damage to the Premises or the Building by
fire or other casualty, Tenant shall give immediate written notice thereof to
Landlord, who shall within thirty (30) days after such notice give notice to
Tenant that: (1) Landlord elects to terminate this Lease as hereinafter
provided, or (2) Landlord will cause the damage to be repaired with reasonable
speed, which shall not exceed six (6) months from the date of the damage, at the
expense of the Landlord, but Landlord shall have no obligation to restore or
replace any property owned by Tenant; and to the extent that any portion of the
Premises are rendered untenantable, the Base Rent and Operating Costs shall
proportionately abate, except in the event such damage resulted from or was
contributed to by the act, fault or neglect of Tenant, Tenant's employees,
invitees, contractors, licensees or agents, in which event there shall be no
abatement of Rent. If the damage shall be so extensive that the Landlord shall
decide not to repair or rebuild, this Lease shall, at the option of Landlord, be
terminated as of the date of such damage by written notice from Landlord to
Tenant, and the Base Rent and Operating Costs shall be adjusted to the date of
such damage and Tenant shall thereupon promptly vacate the Premises. If Landlord
elects to repair the damage, Landlord shall be obligated to repair only to the
extent insurance proceeds are made available therefore. In case of damage to the
Premises or the Building by fire or other casualty that (a) renders more than
fifty percent (50%) untenantable, in the reasonable opinion of Tenant or
Landlord, or (b) occurs during the final twelve (12) months of any term, then
Tenant or Landlord may at its discretion provide the other party with written
notice of termination, which shall terminate the Lease as of the date of the
damage, and Tenant may promptly re-enter the facility to recover any of its
property that can be re-used in Tenant's business operations.
-6-
<PAGE> 7
In the event of any damage or destruction to the Building or the
Premises by any peril covered by the provisions of this Section 12, Tenant
shall, upon notice from Landlord, remove forthwith, at its sole cost and
expense, such portion or all of the property belonging to Tenant or its
assignees, sublessees or licensees from such portion or all of the Building or
the Premises as Landlord shall request and Tenant hereby indemnifies and holds
Landlord harmless from any loss, liability, costs, and expenses, including
attorneys' fees, arising out of any claim of damage or injury as a result of any
alleged failure to properly secure the Premises prior to such removal and/or
such removal.
13. Condemnation. If the entire Premises are taken under power of
eminent domain (which shall include the exercise of any similar governmental
power or any purchase or other acquisition in lieu thereof), this Lease shall
automatically terminate as of the date of taking, which shall be the date Tenant
is required to yield possession thereof to the condemning authority. If a
portion of the Premises is taken under power of eminent domain, Landlord shall
have the right to terminate this Lease as of the date of taking by giving
written notice thereof to Tenant on or before the date of taking. If Landlord
does not elect to terminate this Lease, it shall, at its expense, restore or
cause to be restored the Premises, exclusive of any improvements or other
changes made therein by Tenant, to as near the condition which existed
immediately prior to the date of taking as reasonably possible, and taking into
account any reduction in the square footage of the Premises, and to the extent
that the Premises are rendered untenantable, the Base Rent and Operating Costs
shall proportionately abate. All damages awarded for a taking under the power of
eminent domain shall belong to and be the exclusive property of Landlord,
whether such damages be awarded as compensation for diminution in value of the
leasehold estate hereby created or to the fee of the Premises; provided,
however, that Landlord shall not be entitled to any separate award made to
Tenant for the value and cost of removal of its personal property and fixtures
or any relocation payment or allowance made to Tenant.
14. Liability and Indemnity. Save for its gross negligence or willful
misconduct, Landlord shall not be responsible or liable to Tenant for any loss
or damage resulting to Tenant, its agents, servants, employees, contractors,
licensees or invitees, or its property from any cause whatsoever, including but
not limited to loss or damage that may be occasioned by or through the acts or
omissions of persons occupying any part of the Building or any persons
transacting any business in or about the Building or persons present in or about
the Building for any other purpose, whether lawful or unlawful or the inability
of Tenant to conduct its business in the Premises due to the failure of Tenant's
telephone system as a result of work performed on another tenant's telephone
system or on the Building telephone system. Tenant shall defend, indemnify and
save Landlord harmless from and against all liabilities, damages, claims, costs,
charges, judgments and expenses, including, but not limited to, reasonable
attorneys' fees, which may be imposed upon or incurred or paid by or asserted
against Landlord, the Premises or any interest therein or in the Building by
reason of or in connection with any use, nonuse, possession or operation of the
Building or the Premises, or any part thereof, any negligent or tortious act on
the part of Tenant or any of its agents, contractors, servants, employees,
licensees or invitees, any accident, injury, death or damage to any person or
property occurring in, on or about the Premises or any part thereof, and any
failure on the part of Tenant to perform any of the terms or conditions of this
Lease; provided, however, that nothing contained in this paragraph shall be
deemed to require Tenant to indemnify Landlord with respect to any gross
negligence or willful misconduct committed by Landlord or to any extent
prohibited by law.
15. Default. Tenant hereby agrees that the occurrence of any one or
more of the following shall constitute an Event of Default under this Lease:
(a) The failure of Tenant to make any payment due hereunder
within five (5) days after the due date thereof, with Landlord agreeing
to provide written notice to Tenant of such failure to pay;
(b) The failure of Tenant to insure and provide evidence
thereof in accordance with Section 10(h) hereof;
(c) The failure of Tenant to perform any of the other
agreements, covenants, terms and conditions of this Lease;
(d) The commencement of any proceeding by or against Tenant in
bankruptcy or for appointment of a receiver; or
The insolvency of Tenant, or the making by Tenant of a general
assignment for the benefit of creditors, or the filing by Tenant for
protection under any statute regarding bankruptcy now or hereafter in
force,
-7-
<PAGE> 8
then, in any such event, Landlord, in addition to all other rights and remedies
available to Landlord, by law or by other provisions hereof, may, with or
without process of law, but in accordance with law, re-enter immediately into
the Premises and remove all persons and property therefrom, and, at Landlord's
option, annul and cancel this Lease or terminate Tenant's right to possession of
the Premises without terminating this Lease, and Tenant hereby expressly waives
the service of any notice in writing of intention to re-enter as aforesaid. Upon
any termination of Tenant's right to possession only without termination of the
Lease, Landlord may, at Landlord's option, enter into the Premises, remove
Tenant's signs and other evidences of tenancy, and take and hold possession
thereof as provided above, without such entry and possession terminating the
Lease or releasing Tenant, in whole or in part, from any obligation including
Tenant's obligation to pay the Base Rent, Operating Costs and Additional Rent
hereunder for the full Term. In any such case, Tenant shall pay forthwith to
Landlord, if Landlord so elects, a sum equal to the entire amount of the Base
Rent, and estimates of Operating Costs and Additional Rent, for the residue of
the Term hereof plus any other sums provided herein to be paid by Tenant for the
remainder of the Term. Tenant acknowledges and agrees that in the event of a
default by it under this Lease, Landlord may, in addition to any and all other
remedies available to it, give Tenant's name to any credit bureau, Better
Business Bureau or like entity, describing Tenant as being in default of its
obligations under this Lease, all without any liability accruing to Landlord and
without obligation by Landlord to modify or update such report at any time.
Notwithstanding the foregoing, upon any default by Tenant in any of its
obligations hereunder except the obligations set forth in subparagraphs (a) and
(b) above, if Tenant, within ten (10) days after notice from Landlord, commences
to cure such default and prosecutes such cure diligently to completion, Tenant
shall not be in default hereunder; provided, however, that such cure period
shall in no event exceed thirty (30) days.
Upon default, Landlord may, but need not, relet the Premises or any
part thereof for such rent and upon such terms as Landlord, in its sole
discretion, shall determine (including the right to relet the Premises for a
greater or lesser term than that remaining under this Lease, the right to relet
the Premises as part of a larger area, and the right to change the character or
use made of the Premises) and Landlord shall not be required to accept any
tenant offered by Tenant or to observe any instructions given by Tenant about
such reletting. In any such case, Landlord may make repairs, alterations and
additions in or to the Premises, and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall, upon demand, pay the cost
thereof, together with Landlord's expenses of reletting including, without
limitation, any broker's commission and attorneys' fees incurred by Landlord. If
the consideration collected by Landlord upon any such reletting plus any sums
previously collected from Tenant are not sufficient to pay the full amount of
all Base Rent and any amounts of Operating Costs and Additional Rent and other
sums reserved in this Lease for the remaining term hereof, together with the
costs of repairs, alterations, additions, redecorating, and Landlord's expenses
of reletting and the collection of the rent accruing therefrom (including
attorneys' fees and brokers' commissions), Tenant shall pay to Landlord the
amount of such deficiency upon demand and Tenant agrees that Landlord may file
suit to recover any sums due and payable under this Section 15 from time to
time.
Neither acceptance of Rent by Landlord, with or without knowledge of
breach, nor failure of Landlord to take action on account of any breach hereof
or to enforce its rights hereunder shall be deemed a waiver of any breach, and
absent written notice or consent, said breach shall be a continuing one at
Landlord's sole option.
Any and all remedies to which Landlord may resort under this Lease, at
law or in equity are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which Landlord may be entitled under this
Lease, at law or in equity.
16. Late Payment. If Tenant fails to pay any installment of Rent, or
other sums hereunder as and when such installment or other charge is due, Tenant
shall pay to Landlord on demand a late charge in an amount equal to five percent
(5%) of such installment or other charge overdue in any month and five percent
(5%) each month thereafter until paid in full to help defray the additional cost
to Landlord for processing such late payments, and such late charge shall be
Additional Rent hereunder and the failure to pay such late charge within ten
(10) days after demand therefore shall be an additional Event of Default
hereunder. The provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
17. Notices. All bills, statements, notices or communications,
including change of address of either party, which either party may desire or be
required to give to the other shall be deemed sufficiently given or rendered if
in writing and either delivered to the other party personally, sent by
registered or certified mail, return receipt requested, sent by national air
courier service, addressed to Tenant at the Building, or to Landlord at the
address where the last installment of Base Rent due hereunder was payable or, as
to either party, upon receipt of notice in accordance with this Section, to the
last address furnished by such party. The time of rendition thereof or the
giving of such notice or communication shall be deemed to be the time when the
same is personally delivered to the other party, deposited in the mail, or
delivered to the
-8-
<PAGE> 9
other party by a national air courier service as herein provided. Any notice or
the return of any access cards, keys, or otherwise to be given from Tenant to
Landlord must be delivered in the manner set forth above to Landlord's managing
agent.
18. Holding Over. Tenant will, at the termination of this Lease by
lapse of time or otherwise, yield up immediate possession of the Premises to
Landlord. If Tenant retains possession of the Premises or any part thereof after
such termination, then Landlord may, at its option, serve written notice upon
Tenant that such holding over constitutes either (a) creation of a month to
month tenancy, upon the terms and conditions set forth in this Lease, or (b)
creation of a tenancy at sufferance; provided, however, that the Base Rent
prorated on a daily basis if subparagraph (b) is elected, shall, in addition to
all other sums which are to be paid by Tenant hereunder including, but not
limited to Operating Costs, whether or not as Additional Rent, be equal to 1.5
times the Base Rent being paid monthly to Landlord under this Lease immediately
prior to such termination (prorated in the case of (b) on the basis of a 365 day
year for each day Tenant remains in possession). If no such notice is served,
then a tenancy at sufferance shall be deemed to be created at the Rent in the
preceding sentence. Tenant shall also pay to Landlord all damages sustained by
Landlord resulting from retention of possession by Tenant including the loss of
any proposed subsequent Tenant for any portion of the Premises. The provisions
of this paragraph shall not constitute a waiver by Landlord of any right of
re-entry as herein set forth; nor shall receipt of any Rent or any other act in
apparent affirmance of the tenancy operate as a waiver of the right to terminate
this Lease for a breach of any of the terms, covenants, or obligations herein on
Tenant's part to be performed.
19. Subordination. The rights of Tenant shall be and are subject and
subordinate at all times to the lien of any mortgage now or hereafter in force
against the Building, and Tenant shall execute and deliver to Landlord within
ten (10) days of Landlord's request therefore, such further instruments
subordinating this Lease to the lien of any such mortgage as shall be requested
by Landlord. If Landlord's interest in the Building is transferred to any person
or entity by reason of (a) a foreclosure or other proceeding to enforce a
mortgage against the Building; (b) delivery by Landlord of a deed in lieu of
foreclosure; or (c) a sale, conveyance or assignment of the Building, then in
any such case, Tenant shall immediately and automatically attorn to such person
or entity without the execution of any further instruments evidencing Tenant's
attornment. If requested by Tenant, Landlord agrees to use reasonable efforts to
obtain an agreement of non-disturbance from the holder of any mortgage against
the Building wherein Tenant's occupancy of the Premises will not be disturbed in
the event that such mortgage holder, its successors or assigns succeeds to the
interest of Landlord so long as Tenant is not in default under this Lease, such
agreement to be in a form acceptable to such mortgage holder.
20. Estoppel Certificate. Tenant shall at any time and from time to
time within ten (10) days after written request from Landlord execute and
deliver to Landlord or any prospective landlord or mortgagee or prospective
mortgagee a sworn and acknowledged Estoppel Certificate, in form reasonably
satisfactory to Landlord and/or Landlord's mortgagee and/or any prospective
landlord or prospective mortgagee certifying and stating as follows: (i) this
Lease has not been modified or amended (or if modified or amended, setting forth
such modifications or amendments); (ii) this Lease (as so modified or amended)
is in full force and effect (or if not in full force and effect, the reasons
therefor); (iii) the Tenant has no offsets or defenses to its performance of the
terms and provisions of this Lease, including the payment of Rent (or if there
are any such defenses or offsets, specifying the same); (iv) Tenant is in
possession of the Premises, if such be the case; (v) if an assignment of rents
or leases has been served upon Tenant by a mortgagee or prospective mortgagee,
Tenant has received such assignment and agrees to be bound by the provisions
thereof; and (vi) any other accurate statements reasonably required by Landlord
or its mortgagee or prospective mortgagee. It is intended that any such
statement delivered pursuant to this subsection may be relied upon by any
prospective purchaser or mortgagee and their respective successors and assigns
and Tenant shall be liable for all loss, cost or expense resulting from the
failure of any sale or funding of any loan caused by any material misstatement
contained in such Estoppel certificate. Tenant hereby irrevocably appoints
Landlord as attorney-in-fact for the Tenant with full power and authority to
execute and deliver in the name of Tenant such Estoppel Certificate if Tenant
fails to deliver the same within such ten (10) day period and such certificate
as signed by Landlord shall be fully binding on Tenant, if Tenant fails to
deliver a contrary certificate within five (5) days after receipt by Tenant of a
copy of the certificate executed by Landlord on behalf of Tenant, but Tenant
shall not have any liability arising out of or related to Estoppel Certificates
prepared by Landlord on behalf of Tenant.
21. Binding Effect. The word "Tenant," wherever used in this Lease,
shall be construed to mean tenants in all cases where there is more than one
tenant, and the necessary grammatical changes required to make the provisions
hereof apply to corporations, partnerships or individuals, men or women, shall
in all cases be assumed as though in each case fully expressed. Each provision
hereof shall extend to and shall, as the case may require, bind and inure to the
benefit of Landlord and Tenant and their respective heirs, legal
representatives, successors and assigns, provided that this Lease shall not
inure to the benefit of any assignee, heir, legal representative, transferee or
successor of Tenant except upon the express written consent or election of
Landlord.
-9-
<PAGE> 10
22. Transfer of Landlord's Interest. In the event of any transfer or
transfers of Landlord's interest in the Premises or the Building, other than a
transfer for security purposes only, the transferor shall be automatically
relieved of any and all obligations and liabilities on the part of Landlord
accruing from and after the date of such transfer, including, without
limitation, the obligation of Landlord under Section 4 hereof to return the
security deposit as provided therein following assignment or transfer thereof to
such assignee of Landlord's interest.
23. Expense of Enforcement. Each party shall pay its own attorneys'
fees and expenses.
24. Access; Changes in Building Facilities; Name.
(a) All portions of the Building, except space within the
inside surfaces of all walls and doors bounding the Premises, and any
space in or adjacent to the Premises used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities and the use thereof, as well as access to such
facilities through the Premises for the purposes of operation,
maintenance, renovation, decoration and repair are reserved to Landlord
and Landlord's managing agent;
(b) Tenant shall give Landlord and Landlord's managing agent
access to the Premises at any time during emergencies and at all other
reasonable times upon reasonable notice, without charge or diminution
of Rent, to enable Landlord to examine or, during the last six (6)
months of any then-current term of the Lease, exhibit the same and to
make such inspections, repairs, additions and alterations to the
Building or the Premises as Landlord deems necessary or may be required
to make hereunder. Specifically, and without limiting the generality of
the foregoing, Tenant understands and agrees that Landlord may, at any
time, and from time to time during the Term, perform renovation and/or
repair work in and to the Building or the systems (including, but not
limited to, heating, ventilating and air-conditioning, mechanical,
electrical and plumbing systems) serving the Building, any of which may
require access to the same from within the Premises. In such case,
Landlord shall incur no liability to Tenant, nor shall Tenant be
entitled to any abatement of Rent on account of any effect on Tenant's
business at the Premises which shall arise out of said access by
Landlord or by the performance by Landlord of the aforesaid work at the
Building; provided however that Landlord shall use reasonable efforts
(which shall not include any obligation to employ labor at overtime
rates) to avoid disruption of Tenant's business during any such entry
upon the Premises by Landlord.
(c) Landlord reserves the right, at any time, without
incurring any liability to Tenant therefor, and without any obligation
to provide Tenant with notice thereof, to make such changes in or to
the Building and the fixtures, systems and equipment appurtenant
thereto, as well as in or to the street entrances, halls, passages,
concourse(s), elevators, stairways and other improvements, as it may
deem necessary or desirable from time to time, including, without
limitation, the right to modify the number of square feet in the
Building, provided that any such change does not affect Tenant to a
greater degree than any other Tenant.
(d) Landlord may adopt any name for the Building and Landlord
reserves the right to change the name and/or address of the Building at
any time. Subject to Landlord's approval of the appearance of the sign,
Tenant may put a sign containing the company name, logo, and similar
information on the windows of its space over the main entryway for the
Building.
25. Right of Landlord to Perform. If Tenant shall fail to pay any sum
of money other than Base Rent, Operating Costs or Additional 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 so obligated, and without
waiving or releasing Tenant from any obligations of Tenant, after the end of the
fifth business day after notifying Tenant in writing of Tenant's obligation to
perform, make any such payment or perform any such other act on Tenant's part to
be made or performed hereunder; provided, however, that in the event of
emergency, Landlord shall have the right to perform Tenant's obligations prior
to the expiration of the five-day period specified above and shall have the
right to use the Security Deposit to pay such expenses, or pay such expenses
directly and reimburse itself from the Security Deposit. Tenant shall, promptly
and upon demand therefor by Landlord, reimburse Landlord for all sums so paid by
Landlord and all necessary incidental costs, and Landlord shall have the same
rights and remedies in the event of the failure by Tenant to pay such amounts as
Landlord would have in the event of a default by Tenant in the payment of Rent.
26. Brokers. Each of the parties (i) represents and warrants to the
other that it has only dealt with CB Richard Ellis, Inc. with regard to leasing
or renting space in the Building; and (ii) indemnifies and holds the other
harmless from any and all losses, liability, costs or expenses (including
attorney's fees) incurred as a result of an alleged breach of the foregoing
warranty and representation.
-10-
<PAGE> 11
27. [Intentionally left blank]
28. Modifications for Lender. If, in connection with obtaining
financing for the Building or the Premises, any lender shall request reasonable
modifications in this Lease as a condition to such financing, Tenant shall
promptly execute any instrument submitted to Tenant by Landlord containing such
modifications; provided, however, that such modifications shall not increase the
obligations of Tenant hereunder or materially adversely affect the leasehold
interest hereby created.
29. Limitation of Liability. If Landlord is ever adjudged by any court
to be liable to Tenant in damages, Tenant specifically agrees to look solely to
Landlord's interest in the Building for the recovery of any judgment from
Landlord, it being agreed that Landlord, or if Landlord is a partnership, its
partners whether general or limited, or if Landlord is a corporation, its
directors, officers, or shareholders, shall never be personally liable for any
such judgment. The provision contained in the foregoing sentence is not intended
to, and shall not, limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or Landlord's successor in interest, or to
maintain any other action not involving the personal liability of Landlord (or
if Landlord is a partnership, its partners whether general or limited, or if
Landlord is a corporation, its directors, officers, or shareholders), or to
maintain any suit or action in connection with enforcement or collection of
amounts which may become owing or payable under or on account of insurance
maintained by Landlord. Notwithstanding anything to the contrary in this Lease,
Landlord shall not be liable to Tenant, Tenant's agents, servants or employees,
or to any person or entity claiming by or through Tenant, for any consequential,
indirect, special or similar types of damages. Except as may be otherwise
expressly stated herein, Tenant shall not be liable to Landlord, Landlord's
agents, servants or employees, or to any person or entity claiming by or through
Landlord, for any consequential, indirect, special or similar types of damages.
30. [Intentionally left blank]
31. Waiver of Subrogation. Each of Landlord and Tenant hereby releases
the other from any liability or responsibility to the other or anyone claiming
through or under them by way of subrogation or otherwise for any loss or damage
to property caused by the fault or negligence of the other party, or anyone for
whom such party may be responsible.
32. Incorporation of Exhibits. The following exhibits to this Lease are
hereby incorporated by reference for all purposes as fully as if incorporated
herein:
Exhibit A Premises Location Drawing
Exhibit B Building Legal Description
Exhibit C Leasehold Improvements Plans and Specifications
Exhibit D [Intentionally Omitted]
Exhibit E Commencement Letter
Exhibit F Building Rules and Regulations
33. Force Majeure. All of the obligations of Landlord and of Tenant
under this Lease are subject to and shall be postponed for a period equal to any
delay or suspension resulting from fires, strikes, acts of God, and other causes
beyond the control of the party delayed in its performance hereunder, this Lease
remaining in all other respects in full force and effect and the Term not
thereby extended, provided that Tenant may terminate any of its remaining
obligations under this Lease if any Force Majeure condition persists
substantially unremedied for more than three (3) consecutive months.
Notwithstanding the foregoing, the unavailability of funds for payment or
performance of Tenant's obligations hereunder shall not give rise to any
postponement or delay in such payment or performance of Tenant's obligations
hereunder.
34. General. The submission of this Lease for examination does not
constitute the reservation of or an option for the Premises, and this Lease
becomes effective only upon execution and delivery hereof by Landlord and
Tenant. This Lease does not create the relationship of principal and agent or of
partnership, joint venture or any association between Landlord and Tenant, the
sole relationship between Landlord and Tenant being that of lessor and lessee.
No waiver of any default of Tenant hereunder shall be implied from any omission
by Landlord to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. The topical headings of the several paragraphs and
clauses are for convenience only and do not define, limit or construe the
contents of such paragraphs or clauses. All preliminary negotiations are merged
into and incorporated in this Lease, and this Lease constitutes the entire
agreement between the parties. Landlord has made no representations or
warranties to Tenant with
-11-
<PAGE> 12
regard to this Lease, the Premises or the Building which are not expressly set
forth herein. This Lease can only be modified or amended in writing, which
writing shall be signed by the parties hereto, their successors or assigns (and
mortgagees if required by such mortgage). All provisions hereof shall be binding
upon the heirs, successors and assigns of each party hereto.
-12-
<PAGE> 13
35. Severability. The invalidity of any provision, clause or phrase
herein contained shall not serve to render the balance of this Lease ineffective
or void and the same shall be construed as if such had not been herein set
forth.
36. Governing Law. This Lease shall be governed in accordance with the
laws of the State of Minnesota.
37. Cross-Default. Tenant agrees that a default under any
Parking/Storage Lease between Landlord and Tenant shall constitute a default
under this Lease, which default shall entitle Landlord to pursue any and all of
its remedies hereunder and thereunder.
38. Additional Provisions.
(a) Landlord will provide one (1) five-year renewal option.
Tenant shall be required to provide written notice to Landlord of its
exercise of the renewal option not later than twelve (12) months in
advance of expiration of the term of this Lease. The net rate will be
at the prevailing market for similar tenants renewing in similar
facilities, but in no case lower than the last year's rate.
(b) Tenant needs to express to Landlord anticipated office
space requirements. Landlord will make every effort to accommodate
Tenant's request for future expansion space, subject to existing
tenants' rights. Base Rental Rates for any expansion space will reflect
Tenant's then current Base Rent and will run coterminous with initial
lease. Tenant improvements will be at the amount stated in Exhibit C,
prorated based on remaining term.
(c) Landlord will provide four (4) indoor parking stalls in
the garage free of charge for the first year of occupancy (8/1/00 -
7/31/01). Thereafter, these stalls shall be available by separate
agreement at the then current market rate.
(d) Tenant shall, at its own expense, be permitted to install
one communications antenna on the roof of the Building, subject to
Landlord's specifications and prior approval as to the means, method,
size, and location of placement, installation, maintenance, operation,
and removal, and provided that if such antenna interferers with the
communications or business operations of Landlord or any tenant, Tenant
shall remove or remedy such interference promptly after notice of the
same.
IN WITNESS WHEREOF, the respective parties hereto have caused this
Lease to be executed as of the day and year first above written.
LANDLORD: TENANT:
HARVARD PROPERTY (LAKE CALHOUN), L.P. ZAMBA CORPORATION
By: HP L Calhoun, Inc.,
a Texas corporation
Its: Authorized Representative
By: /s/ Robert Behringer By: /s/ Mike Carrel
Its: President Its: CFO
By:
--------------------
Its:
---------------
-13-
