EX - 10.4
THIS LEASE, made this 24th day of April, 2001, between
Parties XXXXX MINNESOTA STREET, L.P.
(hereinafter called "Lessor"), first party, and
OTHNET
(hereinafter called "Tenant"), second party,
WITNESSETH, That:
Description
of Premises
1. Lessor, in consideration of the rents to be paid
and the terms, covenants and conditions hereof to
be
performed and observed by Tenant, leases to Tenant
the premises known and described as Suite North
100 consisting of approximately 3,128 rentable
square feet as outlined on the attached Exhibit
"A" on the first floor in the FIRST NATIONAL
BANK BUILDING, (hereinafter referred to as "the
building"), in Saint Xxxx, Minnesota, (the
premises aforedescribed being hereinafter referred
to as "the premises"), to be used by Tenant for
the purpose of general office and for no other
purpose.
Term
2. Tenant takes from Lessor the premises upon the
rents, terms, covenants and conditions herein
contained, TO HAVE AND TO HOLD the same for the
term of five (5) years and zero (0) months,
commencing on the first day of August, 2001, and
ending on the last day of July, 2006 unless sooner
terminated as herein provided.
Rent
3. Tenant covenants and agrees to pay Lessor the
yearly rental during said term according to the
schedule set forth in paragraph 26 of this Lease
document in equal monthly installments, in
advance, on the first day of each calendar month.
Tenant agrees to pay a prorated monthly
installment at the current rental rate for any
fraction of a month if the term shall begin on any
day except the first day or shall be terminated on
any day except the last day of any month. All
payments shall be made at the office of the Lessor
in Saint Xxxx, Minnesota, or at such other place
as may from time to time be designated by Lessor.
Heat and Air
Conditioning
4. LESSOR AGREES THAT IT SHALL:
(a) Furnish through the equipment presently
installed within the premises heat and air
conditioning to provide a temperature and
humidity condition required in the Lessor's
judgment for comfortable occupancy of the
premises under normal business operations,
daily from 8:00 a.m. to 6:00 p.m., and from
8:00 a.m. to 1:00 p.m. on Saturdays, Sundays
and Holidays excepted, based on occupancy by
not more than one person for any one hundred
square feet of space. Whenever heat-
generating machines or equipment are used in
the premises by the Tenant, which affect the
temperature or humidity otherwise maintained
by the air conditioning system, Lessor
reserves the right to install supplementary
air conditioning equipment in the premises,
and the cost, operation and maintenance
thereof shall be paid by Tenant to Lessor on
the monthly rent payment dates at such rates
as may be determined by Lessor.
Elevator
Service
(b) Provide passenger elevator service daily for use
in common with others as in the Lessor's judgment is
reasonably necessary for the use and occupancy of the
premises. Provide freight elevator service for use
in common with others, daily from 8:00 a.m. to 4:00
p.m., Saturdays, Sundays and Holidays excepted.
Janitor
Service
(c) Provide janitor service in and about the
premises reasonably required in Lessor's judgment,
Saturdays,
Sundays and Holidays excepted. Cleaning
services are as outlined on the attached Exhibit "B."
Normal
Repairs
(d) Make all normal repairs to the premises
arising by reason of wear and tear of normal use and
occupancy,
excluding repairs necessitated by the
negligent or willful act or omission of Tenant, its
agents, employees
or visitors, or arising by reason of any breach
of the terms and conditions of this lease and the
rules and
regulations pertaining to the building, and
excluding,
also, repairs to any special treatment of walls,
floors or ceilings
or to any other special improvements,
alterations, additions, and fixtures made or
installed by Tenant or
at the request of Tenant.
Water
(e) Provide water for drinking, lavatory and
toilet purposes when drawn through fixtures
installed by Lessor.
Electricity
(f) Provide electricity so long as Lessor shall
distribute electric current in the building,
in which event Tenant shall obtain all
electric current for the premises from Lessor
and shall pay Lessor for such service as
metered by Lessor at rates not in excess of
prevailing local public utility rates for
comparable load, quantity and service. Upon
thirty (30) days' notice, Lessor may cease to
furnish current without responsibility to
Tenant, except to connect within the thirty
(30) day period the electrical wiring system
of the premises with another source of
current, and Tenant shall pay supplier
thereafter for such service. Tenant shall pay
on the first day of the month for all
electricity consumed by Tenant the previous
month, including current consumed during
janitor service, alterations or repairs in the
premises.
Venetian
Blinds
(g) Provide Venetian or similar type blinds for
exterior windows. Tenant, at its own expense, may
install drapes
and window covering (and if installed, shall
maintain them in attractive and safe condition);
provided, however,
they are determined by Lessor to be in harmony
with the exterior and interior appearance of the
building and
to create no safety or fire hazard.
Interruption
of Service
5. Tenant agrees that Lessor does not warrant that
any of the services referred to in paragraph 4
hereof will be free from interruption for causes
beyond the reasonable control of Lessor; and that
interruption of or failure in such services shall
not be deemed an eviction or disturbance of
Tenant's use and possession of the premises, nor
shall such interruption or failure render the
Lessor liable for damages to person, property or
business suffered by Tenant or any other person,
nor work an abatement of rent or otherwise relieve
Tenant from performance of the obligations of this
lease. If Tenant is unable to carry out its
normal business for any period of over 24 hours in
any area greater that 10% of the lease premises,
Lessor agrees to refund to Tenant a pro rata
portion of its rent for the period and portion of
the leased premises rendered unusable by such
unexcused interruption of service. Tenant shall
pay all other rent and do all other things
required of it under this Lease and shall have no
claim for consequential damages against Lessor.
Building
Rules and
Regulations
6. TENANT AGREES THAT IT SHALL:
(a) Observe and comply with, in all respects, the
rules and regulations of the building printed
hereon, which said rules and regulations are
hereby made a part of this lease, and to
observe and comply with such reasonable rules
and regulations as may be established from
time to time by Lessor.
Lessor's
Access
(b) Lessor and its agents shall have the right to
enter the premises, to examine the same and, at its
election, to make
such repairs and alterations as it shall deem
necessary for the safety, preservation and
improvement thereof or of any other portion of
the building, but nothing herein shall be
construed to require Lessor to make such
repairs or alterations, and Lessor shall not
be liable to Tenant or any other person for
failure or delay in making repairs or for
damage or injury to person or property or
Tenant's business caused in or by the making
thereof or the doing of such work. Unless
there is an emergency, Lessor will make an
effort to provide advance notice.
Maintenance
and Waste
(c) Keep the premises and all fixtures and
appliances therein in good order and condition and
replace all glass
broken by Tenant with glass of the same
quality as that broken, and commit no waste on the
premises.
Electric
Lamps
(d) Pay for all electricity, electric lamps,
starters and ballasts used in the premises.
Surrender Upon
Termination
(e) Upon the termination of this lease in any
manner or for any reason whatsoever, to quit and
deliver up the
premises and all keys thereto to Lessor
peaceably and quietly in as good order and
condition as the same are
now in or hereafter may be put in by Lessor or
Tenant, reasonable use and wear thereof excepted
and to furnish
Lessor with the combination to any vault on the
premises. Goods and effects not removed by Tenant
at expiration of occupancy shall be considered
abandoned and Lessor may dispose of the same as it
deems
expedient.
Assignment and
Subletting
(f) Not assign this lease or any interest therein,
nor sublet any part of the premises, or permit
any person, whether jointly with Tenant or
otherwise to occupy any part thereof without
first obtaining, on each occasion, the written
consent of Lessor, which shall not be
unreasonably withheld, which consent, however,
if given, will not release Tenant from
Tenant's obligations hereunder. Should Tenant
make such an assignment or subletting or
permit any such occupancy without such
written consent, neither acceptance of rent by
Lessor thereafter from Tenant or any other
person, nor failure on the part of Lessor for
any particular period to take action on
account of such breach or enforce its rights,
shall be deemed a waiver of the breach, but
the same shall be a continuing breach as long
as such assignment, subtenancy or occupancy
exists.
Alterations and
Improvements
(g) Not make any alterations, additions or
improvements in or to the premises without the
written approval of
Lessor; and all alterations, additions or
improvements made in or to the premises by or at the
request of
Tenant, except removable trade fixtures installed at
the expense of Tenant, shall be paid for by Tenant
and be and remain
the property of Lessor. Any damage to the
premises resulting from removal of Tenant's trade
fixtures shall
be repaired at the expense of Tenant.
Waste of
Utilities
(h) Not allow any waste of water, heat, air-
conditioning, or other agencies serving the
premises, nor misuse or
neglect the fixtures, appliances and
apparatus pertaining thereto, or the vault doors, and
promptly notify
Lessor, in writing, of any accidents to or defects in
any of the foregoing agencies and the fixtures,
appliances and
apparatus pertaining thereto.
Increase
of Hazard
(I) Not do or permit to be done upon the premises
anything which will increase the fire hazard
or cause the insurance rates on the premises
and the building to be increased or invalidate
the insurance policies thereon, nor anything
that may be dangerous to life, limb or
property.
Damage and
Nuisance
(j) Not overload, damage or deface the premises
nor permit any objectionable noise or odors to
escape or be
emitted therefrom, nor do or permit anything
to be done upon the premises in any way tending to
create a
nuisance or disturb any other tenant, or to
injure the reputation of the building.
Compliance, cooking or
with Law
(k) Comply with all laws, ordinances and
regulations respecting the use and occupancy of the
premises and the
business to be conducted thereon, and not use
the premises for lodging, sleeping immoral purposes.
Tenant agrees that Tenant's obligations under
this paragraph 6 to do or not do a specified
act shall extend to and include Tenant's
obligation to see to it that Tenant's agents,
employees and visitors shall do or not do such
acts, as the case may be.
Damage or
Destruction
of Premises
7. In case the premises or any part thereof, or the
whole or any part of the building of which they
are a part, shall be destroyed or rendered
untenantable by fire or other casualty after the
execution hereof and before expiration of the
term, then this lease and the said term shall
terminate at the election of Lessor and upon
written notice to Tenant from Lessor. In case of
such destruction or damage, if the premises shall
become and remain untenantable for a period of
ninety-one (91) days, and if Lessor shall not have
entered into a contract for the substantial
restoration of the premises, which contract may
contain the usual allowance of time in case of
strikes or delays for which allowance is usually
made in building contracts, then Tenant may, by
written notice served upon Lessor, terminate this
lease. If this lease is not so terminated in case
of any such destruction or damage to the premises,
a just proportion of the rent reserved, according
to the nature and extent of the injuries sustained
by the premises, shall be abated until the
premises shall have been put in proper condition
for use and occupation, except in the event such
damage resulted from or was contributed to by the
act, fault or neglect of Tenant, Tenant's
employees or agents, in which event there shall be
no abatement of rent.
Taking for
Public Use
8. Tenant agrees in case the premises or any part
thereof, or the whole or any part of the building
of which they are a part, shall be taken by right
of eminent domain or by other authority of law,
after the execution hereof and before expiration
of said term, this lease may, at the election of
Lessor, be thereby terminated. All damages
allowed or awarded for any such taking, either to
Lessor or to Tenant, shall be and remain the
property of Lessor, whether the lease be
terminated or remain in force, and Tenant hereby
assigns to Lessor all right or claim which Tenant
may at any time have to any such damages.
Injury to Property
of Tenant or
to Persons
9. Tenant agrees that all property of any kind that
may be on the premises or in the building shall be
at the sole risk of Tenant or those claiming
through or under Tenant. Lessor, its officers and
employees, shall not be liable for any loss of
property by theft or burglary, nor for any damage
to person or property in or about the premises or
the building or to Tenant's business resulting
from any accident, or from the operation or
failure of any service, facility or equipment, or
from water, rain, snow, steam or any other agency
which come into, leak, issue or flow from any part
of the premises or the building, or which may be
caused by Lessor's employees or any tenant or any
other person, or any other cause whatever, and
Tenant hereby covenants and agrees to make no
claim for any such loss or damage at any time, and
to hold Lessor harmless from and indemnified
against any such claim.
Lien on Fixtures
and Personal
Property
10. OMIT
Lease Subordinate
to Mortgages
11. The rights of Tenant shall be and are subject and
subordinate at all times to the lien of any
mortgage or mortgages now or hereafter in force
against the real estate of which the premises are
a part, and Tenant shall execute such further
instruments subordinating this lease to the lien
of liens of any such mortgage or mortgages as
shall be requested by Lessor. Tenant shall
deliver to Lessor, within ten (10) days after
written request, any estoppel letter which Lessor
may reasonably request.
Rights Upon
Tenant's
Default
12. It is further agreed by Lessor and Tenant that
this lease is made upon the condition that if
Tenant shall neglect or fail to pay the rent
within five (5) days of the due date and to keep,
observe and perform any of the covenants and
agreements contained in this lease, which are to
be kept, observed or performed by Tenant, or if
the leasehold interest of Tenant shall be taken on
execution or by other process of law, or if Tenant
shall petition to be or be declared bankrupt or
insolvent according to law, or if any receiver of
the property of Tenant is appointed, or if any
assignment shall be made of Tenant's property for
the benefit of creditors, or if Tenant shall
vacate the premises or abandon the same during the
term of this lease, then and in any of said cases
Lessor, in addition to all other rights and
remedies available to Lessor by law or by other
provisions hereof, may immediately or at any time
thereafter, and without further notice or demand,
enter into and upon the premises, or any part
thereof, in the name of the whole, remove all
persons and property therefrom and take absolute
possession of the same, without such reentry
working a forfeiture of the rents to be paid and
the covenants to be performed by Tenant for the
full term of this lease, and may, at Lessor's
election, lease or sublet the premises, or any
part thereof, on such terms and conditions and for
such rents and for such time as Lessor may elect,
and after crediting the rent actually collected by
Lessor from such reletting on the rentals
stipulated to be paid under this lease by Tenant,
from time to time collect from Tenant any balance
remaining due from time to time on the rent
reserved under this lease, charging to Tenant such
costs and expenses as Lessor may sustain in
restoring and repairing the premises and putting
the same in rentable condition, the costs of
renting to another tenant and all reasonable
attorneys' fees and expenses incurred in enforcing
any of the terms of this lease.
Or the Lessor may, at its election and upon
written notice to Tenant, declare this lease
forfeited and void, and may thereupon reenter and
take full and absolute possession of the premises
as the owner thereof, and free from any right or
claim of Tenant or any person or persons claiming
through or under Tenant; and such election, notice
and reentry, last mentioned, shall be and
constitute an absolute bar to any right to enter
by Tenant upon the payment of all arrearages of
rent and costs after a dispossession. Tenant
further agrees that in the case of any such
forfeiture and cancellation of said lease, Tenant
will indemnify Lessor against all loss of rents
and other damage which Lessor may incur by reason
of such termination, including, but not being
limited to, costs of restoring and repairing the
premises and putting the same in rentable
condition, costs of renting the premises to
another tenant, loss or diminution of rents and
other damage which Lessor may incur by reason of
such termination, and all reasonable attorneys'
fees and expenses incurred in enforcing any the
terms of this lease.
No Light or
Air Rights
13. This lease does not grant any rights to light and
air over property except public streets and alleys
adjoining the land on which the building is
situated.
Premises
Not Ready
14. If the premises shall not be vacant or ready for
occupancy on the first day of the term, Lessor
shall not be liable for damages, but a
proportionate part of the rent shall be abated
until the premises are ready for occupancy.
Indemnity Against
Expenses and
Attorneys' Fees
15. a. Tenant agrees to pay, and save Lessor harmless
from, any and all costs, damages, expenses and
attorneys' fees resulting
from Tenants failure to perform any of the terms, covenants and
agreements of this lease.
b. Except as provided under paragraph 5 hereof,
Lessor agrees to pay, and save Tenant harmless
from any and all costs, damages, expenses and
attorney's fees resulting from Lessor's
failure to perform any
of the terms, covenants and agreements of
this Lease.
Giving of Notice
16. All bills, statements, notices or communications
which Lessor may desire or be required to give to
Tenant shall be deemed sufficiently given or
rendered if in writing and either delivered to
Tenant personally or sent by certified mail,
addressed to Tenant at the building, and the time
of rendition thereof or the giving of such notice
or communication shall be deemed to be the time
when the same is delivered to Tenant as herein
provided. Any notice by Tenant to Lessor must be
served by
registered or certified mail, addressed to Lessor
at the address where the last previous rental
hereunder was payable, or in case of subsequent
change upon notice given, to the latest address
furnished.
Non-Waiver
17. Neither acceptance of rent by Lessor, with or
without knowledge of breach, nor failure of Lessor
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.
Construction
of Lease
Provisions
18. 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 more
than one person, partnership, association or
corporation signs as a party hereto, then the
necessary grammatical changes required to make the
provisions hereof apply to corporations,
partnerships, associates 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 Lessor
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
expressed written consent or election of Lessor.
There are no understandings or agreements other
than those stated in this lease, and if any
covenant, agreement or condition in this lease
shall be adjudged void, such adjudication shall
not affect the validity, obligation or performance
of any other covenant, agreement or provision
which is valid, and no controversy concerning the
same shall delay performance of any other
covenant, agreement or provision.
Rental
Adjustment
19. The yearly rental as set forth under paragraph 3
is subject to adjustment in accordance with the following:
(a) Definitions: As used in paragraph (B) of
this paragraph 19 and elsewhere in this
Lease:
(1) The "rentable square feet of the building"
shall mean and be deemed to be 662,845
square feet.
(2) The "square feet of the premises" shall
mean and be deemed to be 3,128 rentable
square feet.
(3) "Operating Expenses" shall mean and
include (exclusive of "Taxes" as
hereinafter defined) all expenditures,
costs, disbursements and reimbursements of
every kind and nature whatsoever, foreseen
or unforeseen, and incurred or accrued or
for which Lessor shall pay or become
obligated to pay, and relating to the
Lease term, because of or in connection
with the ownership, maintenance, repair or
operation of the premises or the building
as a whole or the rights, privileges,
franchises or permits appurtenant thereto,
including without limitation,
expenditures, costs, disbursements and
reimbursements for or with respect to
wages, salaries, labor, fringe benefits,
employee taxes, insurance, management
fees (not to exceed five percent of gross
receipts), professional fees, materials,
supplies, fees for license permits and
inspection, maintenance and service
contracts, security, utilities, heat,
water, air conditioning, window washing,
cleaning, maintenance, repair and cleaning
of skyways and common areas and rubbish
removal and other contract services.
Excluded from Operating expenses shall be
(a) debt service on loans (but not hereby
excluding costs associated with normal
maintenance, repair and replacement that
may be deemed interest, such as finance
charges), (b) any expenses to the extent
Lessor is reimbursed by insurance or
otherwise (other than reimbursement by
Tenant or other tenants for their
proportionate share thereof) and (c) the
cost of any items which, under generally
accepted accounting principals
consistently applied as pertaining to
buildings such as the building in which
the premises are situated, are properly
classified as capital items (except to the
extent such items have been historically
treated otherwise with respect to the
building in which the premises are
situated), but not treating as capital
items replacements or renovations
necessary for ordinary operation of the
building and requiring such replacement or
renovation in the normal course, such as,
for example, refurnishing, recarpeting or
repairing in common areas; provided,
however, that in the event Lessor makes
any capital improvements to the building
which are intended to or have the effect
of reducing Operating Expenses, the
Operating Expenses may be adjusted upward
only by an amount equal to Lessor's
reasonable estimate of annual savings
attributable to the capital improvements
(not to exceed the cost of such capital
improvements).
(4) "Taxes" shall mean real estate taxes,
assessments (whether general or special),
sewer rents, rates and charges, taxes
based upon the receipt of rent, and any
other federal, state or local governmental
charge, general, special, ordinary or
extraordinary (but not including income or
franchise taxes, or any other taxes
imposed upon or measured by the Lessor's
income or profits, unless the same shall
be imposed in lieu of real estate taxes or
other ad valorem taxes), which may now or
hereafter be levied, assessed or imposed
against the building or the land on which
the building is located, or both, and are
due and payable during the Lease term.
"Taxes" shall also include the amount of
any gross receipts tax, sales tax or
similar tax (but excluding therefrom any
income tax) payable, or which will be
payable, by Lessor by reason of the
receipt of Rent. Notwithstanding the
foregoing, if at any time during the Lease
term the method of taxation then
prevailing shall be altered so that any
new tax, assessment, levy, imposition or
charge or any part thereof shall be
imposed upon Lessor in place or partly in
place of any such Taxes, or contemplated
increase therein, and shall be measured by
or be based in whole or in part upon the
building, the land on which the building
is located or the rents or other income
therefrom, then all such new taxes,
assessments, levies, impositions or
charges or part thereof, to the extent
that they are so measured or based, shall
be included in Taxes.
(b) Additional Rent. In addition to
Yearly Rent, Tenant covenants and
agrees to pay to Lessor for that
portion of calendar year 2001,
commencing on January l, 2002, and
for each calendar year thereafter
during the Lease term, a sum equal to
the amount by which Taxes and
Operating Expenses per rentable
square foot of the building (Taxes
and Operating Expenses divided by
662,845) for such calendar year
exceed the actual Taxes and Operating
Expenses per square foot for calendar
year 2001 (Base Cost) multiplied by
the rentable square feet of the
premises ("Additional Rent"). Prior
to January l, 2002, and prior to each
January l thereafter during the Lease
term, Lessor shall notify Tenant in
writing of the estimated Additional
Rent to be paid by Tenant during the
forthcoming calendar year.
Notwithstanding the foregoing, Lessor
shall use its best efforts to inform
Tenant of the estimated Additional
Rent for the subsequent calendar year
before December l5, of each year
during the lease term. Unless the
area of the premises changes during
such calendar year or this Lease
expires or is terminated before the
end of such calendar year, Tenant
shall pay the estimated Additional
Rent for such calendar year in twelve
(l2) equal monthly installments on
the first day of January and the
first day of each month thereafter
during the calendar year. Additional
Rent for any fraction of a calendar
year falling within the Lease term
shall be prorated on the basis of the
number of days of the Lease term
within the calendar year compared to
365. Monthly installments of
Additional Rent for any such fraction
of a calendar year shall be
determined as if the entire calendar
year were included in the Lease Term,
but shall be paid only on the first
day of the months within the Lease
term, subject to proration for
fractional months. After the end of
each calendar year, any part of which
is included in the Lease term,
beginning with calendar year 2001,
Lessor shall notify Tenant in writing
of Lessor's determination of the
actual Additional Rent payable by
Tenant during such completed calendar
year. Within sixty (60) days after
Lessor's notice to Tenant, if the
estimated Additional Rent paid by
Tenant is less than the actual
Additional Rent, Tenant shall pay the
deficiency to Lessor. If the
estimated Additional Rent is in
excess of the actual Additional Rent,
the excess shall be applied to any
rent due or next coming due under
this Lease. Tenant shall not be
entitled to any credit or payment
from Lessor if Taxes and Operating
Expenses are less than the Base Cost
for any calendar year.
Holding Over
20. If Tenant shall remain in possession of the
premises after termination of this lease or
expiration of the Lease term without Lessor's
written agreement as to such possession, then
Tenant shall be deemed a tenant-at sufferance
and shall pay rent, prorated on a daily basis,
equal to two times the highest yearly rental
and Additional Rent provided for under
paragraphs 3 and 19 for each day Tenant
remains in the premises, and Tenant shall also
pay to Lessor or demand all damages,
consequential as well as direct, incurred by
Lessor as a result of such holding over. Such
holding over shall not constitute an extension
or renewal of this
Lease and shall not create a tenancy at will
or any other lawful tenancy. Nothing in this
paragraph
contained shall be construed or operate as a
waiver of Lessor's right of re-entry or any other
right or
remedy of Lessor under this Lease or at law or
in equity.
Tenant's
Insurance
21. During the Lease term, Tenant shall maintain
at its own expense:
(a) Fire insurance with extended coverage and
water damage insurance in amounts
sufficient to fully
cover Tenant's furniture, fixtures,
equipment, records and personal property and all
other property in
the premises which is not owned by
(b) For the mutual benefit of Lessor and
Tenant, comprehensive general public
liability insurance,
including Contractual Liability coverage
insuring the indemnity obligations of Tenant
contained in
this lease. Such insurance policy or policies
shall
cover claims for personal injury, wrongful death
and
property damage occurring in or on the premises or
arising out of the use or
occupancy of the premises or any part
thereof. Such insurance shall afford protection
in amounts which are
reasonably acceptable
to Lessor from time to
time, but shall never be less than a combined
single limit of $l,000,000.00
for personal injury or death and property damage
in
any one occurrence. Lessor shall be named as an
insured, and each such policy shall contain a
cross-liability endorsement.
A certificate of insurance as to each policy of
insurance required to be procured by Tenant shall
be
delivered to the Lessor before Tenant's occupancy
of
the premises. A certificate of insurance as to
each renewal policy to be procured by Tenant shall
be
delivered to Lessor at least twenty (20) days
the expiration date of the policy then in
force. Each policy of insurance required to be
maintained by Tenant hereunder shall contain an
endorsement requiring thirty (30) days' written
notice
from the insurance company to Lessor before
cancellation or change in the
coverage, scope or amount
of any such policy.
Indemnity
22. Tenant will (to the full extent permitted by
applicable law) protect, indemnify and save harmless
Lessor, any
agent or beneficiary of Lessor, and any partner,
officer, director or share holder of any of the foregoing
(each an
"Indemnified Party") from and against all claims,
judgements causes of action, liabilities, costs,
expenses
and damages (including, without limitation,
attorneys'
fees and expenses) imposed upon or
or asserted against any Indemnified Party or
against any Indemnified Party's interest in the
building by reason of any accident, injury to or death of
any person or
persons or loss of or damage to
property occurring
on or in, or arising out of the use or occupancy of, the
premises or any part
hereof by Tenant, unless caused solely by the willful
misconduct
or gross negligence of such Indemnified Party.
Lessor will (to the full extent permitted by applicable
law) protect, indemnify and save harmless Tenant,
any agent or beneficiary of Tenant, and any partner,
officer, director or share holder of any of the
foregoing
(each an "Indemnified Party") from and against all
claims,
judgements causes of action, liabilities, costs,
expenses and damages (including, without limitation,
attorneys' fees and
expenses) imposed upon or
incurred by or asserted against any Indemnified Party or
against any Indemnified Party's interest in the
building by reason of any accident, injury to or death
of any person or
persons or loss of or damage to
property occurring
on or in, or arising out of the use or occupancy of, the
premises or any part
hereof by Lessor, unless caused solely by the willful
misconduct or
gross negligence of Tenant.
Waiver of Claims
and Subrogation
23. Each party hereto hereby waives all claims, causes of
action, and rights of recovery against the other and
the
other's officers, agents, employees and partners for
loss
occurring to the building, the premises and
the improvements, betterments, equipment, trade
fixtures,
merchandise, records, inventory and other
personal property owned by Lessor or Tenant therein or
thereon if and to the extent the owner of such
property is reimbursed for such loss by insurance
proceeds, except Lessor does
not waive against Tenant
the right to claim and receive insurance proceeds from
policies of insurance carried by Tenant on behalf
of Lessor. Each party agrees to use its best efforts
to have its property insurance policies endorsed to
provide for waiver of subrogation by the insurance
carriers.
Late Payments
24. Tenant covenants and agrees to pay to Lessor,
immediately
on demand, a late payment charge equal to one percent
(1%) of the amount of any installment of yearly rental
or
estimated Additional Rent which is made five days
after
the due date for such installment, as set forth in
paragraphs 3 and 19 of this lease. Tenant agrees that
such a charge is reasonable to compensate Lessor for
its
additional administrative costs and expenses
associated
with late payments. Nothing contained in this
paragraph
24 shall affect the remedies provided
for in paragraph 12 or elsewhere in this lease or at
law
or in equity for defaults by Tenant.
Early
Occupancy
25. Tenant may occupy the premises starting May 1, 2001
and
rent shall be abated for May, June and
July, 2001. Tenant would pay for electricity that is
metered and billed
monthly, starting April 15, 2001.
Rent
Schedule
26. The following monthly rent schedule shall apply to
Suite N100:
MONTHLY
Year 1 $2,500.00 Effective August 1, 2001
Year 2 $2,500.00 Effective August 1, 2002
Year 3 $3,910.00 Effective August 1, 2003
Year 4 $3,910.00 Effective August 1, 2004
Year 5 $3,910.00 Effective August 1, 2005
Early
Termination
27. Tenant may end the Lease after the second year on July
31st
by providing ninety (90) day prior written
notice of intent and a payment of $33,840.00 or
$16,920.00
at the third year or $8,460.00 after the
fourth year.
Leasehold
Improvements
28. The Lessor will provide the following leasehold
improvements at no cost to Tenant:
a. Paint walls a color similar to the existing.
b. Clean carpeting.
c. Remove test cubicles in the entry area and patch
floor
covering.
d. Repair window blinds.
The marginal headings are for purposes of identification only
and do not limit
or enlarge the provisions of this lease.
IN WITNESS WHEREOF, the respective parties hereto have executed
this lease, or caused this lease to be executed by their duly
authorized representatives, the day and year first above
written, the Tenant hereby acknowledging that at the
time of making and delivery of this instrument the Lessor
delivered to Tenant a full true and complete copy of same.
OTHNET, TENANT, PARTY OF THE XXXXX MINNESOTA STREET, L.P.
SECOND PART LESSOR, PARTY OF THE FIRST PART
MINNESOTA STREET ASSOCIATES,
INC.
ITS MANAGING AGENT
