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EXHIBIT 10.15
LEASE AGREEMENT
This LEASE AGREEMENT, made as of this 30th day of April, 1998, between ▇▇▇▇
Companies US, Inc., a Minnesota corporation ("Landlord"), and VERITAS Software
Corporation, a Delaware corporation ("Tenant");
WITNESSETH, THAT
1. PREMISES: Landlord, subject to the terms and conditions hereof, hereby leases
to Tenant certain premises ("Premises") consisting of the building to be built
at _________________________, Centre Pointe Drive, Roseville, Minnesota
("Building"), the land underlying and contiguous thereto and all improvements
thereon ("Project"). The legal description of the land is attached hereto as
Exhibit A-1. A schematic depiction of the Project is attached hereto as Exhibit
A-2.
2.1 TERM: Tenant takes the Premises from Landlord, upon the terms and conditions
herein contained for the term ("Term") of ten (10) years and zero (0) months
commencing on the date upon which a) construction which is the responsibility of
Landlord (including all leasehold improvements under Section 8.1) is
substantially complete and ready for Tenant's occupancy, with only minor
punchlist items, such as minor paint touch-up, replacement of damaged ceiling
tile, and the like, b) a Certificate of Occupancy for the Premises is issued by
the City of Roseville and terminating on the last day of the one hundred
twentieth full calendar month following commencement unless sooner terminated as
herein provided. Landlord has represented to Tenant that the Building and the
Premises will be complete, subject only to delay permitted under Section 29, on
October 1, 1998. If the Term has not commenced by December 1, 1998, (and with
Tenant having had at least two (2) weeks early access pursuant to Section 8.2
prior thereto) then Tenant may, at its election, delay the commencement of the
Term to any date thereafter which is prior to January 15, 1999. No Base Rent or
Additional Rent shall accrue prior to October 1, 1998, regardless of whether or
not the Term has commenced.
2.2. OPTION TO EXTEND: Tenant shall have the option to extend the Term of this
Lease with respect to the entire Premises for two (2) additional terms of five
(5) years, each, (collectively, the "Extended Terms", and individually, an
"Extended Term"). Each Extended Term shall be upon the same terms as provided in
this Lease for the Term, except for the Base Rent which shall be as set forth in
Section 1.3 of Exhibit C for each Extended Term. Landlord shall, not less than
twelve (12) months before the end of the then Term, give notice to Tenant of
Tenant's upcoming extension option and of Landlord's best estimate of the Market
Rent for the Extended Term covered thereby. Tenant shall exercise its option by
giving notice of such exercise to Landlord, not less than the later of thirty
(30) days after receipt of Landlord's notice of the option and estimate of
Market Rent or twelve (12) months prior to the end of the Term, or the then
current Extended Term, as the case may be. Should Tenant fail to exercise any
option to extend the term of this Lease within the time provided in this
Section, all of Tenant's rights to further extend the term hereof shall expire.
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3.1 MONTHLY BASE RENT: Tenant agrees to pay to Landlord during the Term a
monthly Base Rent ("Base Rent") as specified on Exhibit C hereto payable on the
first day of each month in advance, without deduction or setoff of any kind,
except as specifically authorized herein, to Landlord and delivered to
Landlord's managing agent , ▇▇▇▇ Properties, Inc., 700 International Centre, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may
from time to time be designated by Landlord.
4. USE: Tenant may use the Premises for any lawful business use. Landlord
represents and warrants that the Project is zoned B-4 Retail office , which does
not include outdoor storage but does permit as permitted uses, without necessity
of any conditional, special or other use permit and without variance of other
special authorization, the uses contemplated by Tenant for the Premises, which
are office, laboratory, equipment testing, and storage.
5. OPERATING COSTS: Tenant shall, for the entire Term, pay to Landlord as an
item of additional rent, without any setoff or deduction therefrom, except as
expressly provided, costs ("Operating Costs") which Landlord may incur in
maintaining and operating the Project during each calendar year of the Term.
"Operating Costs" are defined to include all reasonable expenses and costs (but
not specific costs which are separately billed to and paid by Tenant) which the
Landlord shall pay or become obligated to pay because of or in connection with
the operation and maintenance of the Project, including but not limited to all
real estate taxes and annual installments of special assessments payable in such
calendar year with respect to the Project; costs of any contest of such taxes,
including reasonable attorney's fees; management fees, insurance premiums,
utility costs, security costs, costs of wages, maintenance costs (relating to
the Project including sidewalks, landscaping and parking or service areas,
common areas, service contracts, equipment and supplies) which for federal tax
purposes may be expensed rather than capitalized, all in accordance with
Generally Accepted Accounting Principles, consistently applied but exclusive of
leasing commissions, depreciation, costs of leasehold improvements and all costs
of a capital nature except as provided in the next sentence and payments of
principal and interest on any mortgages, deeds of trusts, or other security
devices covering the Project. Operating Costs shall also include the yearly
amortization of capital costs incurred by the Landlord for improvements to the
Project required to comply with any change after the commencement date in the
laws, rules or regulations of any governmental authority having jurisdiction,
or, but only with Tenant's consent in its absolute discretion, for purposes of
reducing Operating Costs (other than by replacement of worn out and obsolete
equipment or building components, which shall in any event be excluded from
Operating Costs), which costs shall be amortized over the useful life of such
improvements as reasonably estimated by the Landlord, but in no event shall the
annual amortization be in excess of the savings. The management fee shall be
$0.55 per rentable square foot for the first twelve (12) months on the Term, and
shall not increase more than three percent (3%) per year during the remainder of
the Term, but in any event such increase shall not result in a fee in excess of
competitive market fees.
The following shall be excluded from Operating Costs:
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A. Landlord's costs and obligations under Section 7.D;
B. Costs directly or indirectly resulting from or relating to
(including repairs, restoration, security measures, emergency or
temporary services, inspection and, during the period of such
repair or restoration, any increase in operating expenses
resulting from) fire, windstorm or other casualty or damage or
destruction from any other cause, whether or not insured or
insurable;
C. Costs of correcting defects in, or inadequacy of, the design or
construction of the Building or the materials used in the
construction of the Building or in the Building equipment or
appurtenances thereto, except that, for the purposes of this
paragraph, conditions resulting from ordinary wear and tear and
use shall not be deemed defects;
D. Amounts which would otherwise be included in Operating Costs
which are payable to affiliates of Landlord, for services on or
to the Building or the Project to the extent that the costs of
such services exceed average competitive costs for such services
rendered by persons or entities of similar skill, competence and
experience, other than an affiliate of Landlord.
E. Financing and refinancing costs, interest or debt or
amortization payments on any mortgage or mortgages, and rental
under any ground or underlying leases or lease, together with
all costs incidental thereto;
F. Costs of Landlord's general corporate overhead and general
administrative expenses (including costs and expenses paid to
third parties to collect rents, prepare tax returns and
accounting reports and obtain financing);
G. Rentals and other related costs, if any, incurred in leasing air
conditioning, security, or other building operation or
management systems, elevators or other equipment of facilities
which, if purchased and owned by Landlord, would ordinarily be
considered to be of a capital nature;
H. Costs resulting from the negligence or misconduct of Landlord or
its employees, agents or contractors;
I. Costs in any manner associated with hazardous materials and
substances (as described in Section 17.1), except that routine
fees for disposal of building standard fluorescent lamps and
similar items may be included in Operating Costs;
J. Travel, entertainment and related expenses incurred by Landlord
or its personnel.
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As soon as reasonably practicable prior to the Commencement Date and the
commencement of each calendar year during the Term, Landlord shall, with input
and direction from Tenant, determine an estimate of, and budget for, Operating
Costs for the ensuing calendar year. All levels of service, operation and
maintenance, to the extent controllable, shall be determined from time to time
by Tenant in its discretion, but at all times consistent with similar Projects.
The budget, as initially established for any year, shall be adjusted to reflect
Tenant's determinations as to such levels. No expenditure in excess of any line
item in the budget (or which will, with reasonably anticipated expenses, cause
such excess) shall be made without Tenant's consent and an adjustment to the
budget, except in case of emergency where Landlord may take reasonable necessary
action without such prior authorization. Tenant shall pay, as additional rent
hereunder together with each installment of Base Rent, one-twelfth (1/12th) of
estimated Operating Costs less real estate taxes and installments of special
assessments. Real estate taxes and installments of special assessments shall be
due on or before the later of (a) ten (10) days after receipt of Landlord's
invoice or (b) twenty (20) days prior to the last date such taxes and
installments of special assessments are due without penalty. As soon as
reasonably practicable after the end of each calendar year during the Term and
in any event within 120 days, Landlord shall furnish to Tenant a statement of
the actual Operating Costs for the previous calendar year, and within thirty
(30) days thereafter Tenant shall pay to Landlord, or Landlord shall credit to
the next rent payments due Landlord from Tenant, as the case may be, any
difference between the actual Operating Costs and the estimated Operating Costs
paid by Tenant. Operating Costs for 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 that year of the Term
and the denominator of which is 365.
For a period of three (3) years following Tenant's receipt of Landlord's
statement of actual Operating Costs, Landlord shall keep available for Tenant's
inspection and/or audit complete books and records relating to Operating Costs.
During this period Tenant may copy, inspect and/or audit Landlord's Operating
Costs books and records upon reasonable notice to Landlord. The audit must be
performed during regular business hours in the offices where Landlord maintains
its accounting records. No subtenant will have the right to audit under this
provision. An assignee may have the right to audit as provided herein, however,
such right shall only apply to the assignee's term pursuant to the Lease. In the
event a discrepancy of five percent (5%) or more is found in favor of Tenant,
Landlord shall pay the cost of such audit. If the audit discloses an overcharge
by Landlord, Landlord shall reimburse Tenant for such overcharge within twenty
(20) days, unless Landlord disputes the result of the audit.
6. ADDITIONAL TAXES: Tenant shall pay as additional rent to Landlord, together
with each installment of Base Rent, the amount of any gross receipts tax, sales
tax or similar tax (but excluding therefrom any income, estate, inheritance,
corporate or franchise tax), payable by Landlord, on or measured by the receipt
of Base Rent and adjustments thereto. If any such tax is a progressive tax with
higher tax rates on higher receipts, then Tenant shall only pay the amount of
tax that would be payable if the Base Rent payable by Tenant were the only
amount subject to such tax.
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7. OBLIGATIONS OF LANDLORD: Landlord agrees that Tenant shall quietly enjoy the
Premises in accord with the provisions hereof, subject only to Section 18.
Landlord shall:
A. Furnish heat and air conditioning to provide an environment that
in Tenant's reasonable judgment is comfortable for occupancy of
the Premises for Tenant's business operations and in accordance
with any applicable regulations.
B. Provide passenger elevator service at all times.
C. Provide janitorial service in and about the Premises as
determined by Tenant in is reasonable judgment.
D. Keep the structure of the Building, and all structural
components thereof, including without limitation, footings,
foundations, columns, exterior walls, interior weight bearing
walls, floor and ceiling slabs, and roof (and all elements of
the roof, whether structural or non-structural), in good repair,
ordinary wear and tear excepted, and make all necessary or
appropriate replacements thereto, all at Landlord's sole cost
and without inclusion in Operating Costs.
E. Provide water for process, drinking, lavatory and toilet
purposes drawn through fixtures installed by Landlord.
F. Provide electricity to the Premises for lighting and operation
of small business office equipment (but not equipment using
amounts of power in excess of that for which the Premises are
presently designed and rated).
G. Landlord shall, consistent with the budget approved by Tenant,
operate, maintain and manage the Project, including grounds and
parking areas in a manner mutually satisfactory to Landlord and
Tenant or as reasonably requested by Tenant. All such
maintenance which is provided by Landlord shall be provided as
reasonably necessary for the comfortable use and occupancy of
the Premises during Tenant's business hours, upon the condition
that the Landlord shall not be liable for damages for failure to
do so due to causes beyond its control.
H. Maintain in full force and effect during the term hereof, a
policy of all-risk insurance, insuring the improvements for
their full replacement value.
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It is understood that Landlord does not warrant that any of the services and
utilities referred to above will be free from interruption from causes beyond
the reasonable control of Landlord. Such interruption of service or utilities
shall never be deemed an eviction or disturbance of Tenant's use and possession
of the Premises or any part thereof or render Landlord liable to Tenant for
damages by abatement of rent or otherwise or relieve Tenant from performance of
Tenant's obligations under this Lease, provided Landlord uses all reasonable
efforts to restore such services and utilities as soon as possible.
Following the transfer of Landlord's interest in the Project, other than a
transfer for security purposes only, to an entity which is not controlled by
▇▇▇▇ Companies US, Inc., its parent, subsidiary or affiliate, or to an entity
which is not controlled by the principals of ▇▇▇▇, its parent, subsidiary or
affiliates, Tenant may at any time during the Term, upon at least sixty (60)
days prior notice, elect to assume the obligation of Landlord to operate,
maintain and manage the Project (other than the obligations of Landlord under
Sections 7D, 12 and 13 and for capital improvements that may be included in
Operating Costs, which Landlord shall retain), in which event Operating Costs
shall be prorated as of the date Tenant assumes such obligations and Landlord
shall not thereafter be entitled to any management fee.
8.1. LEASEHOLD IMPROVEMENTS: Landlord shall make and install or provide for the
installation of leasehold improvements in accordance with the plans,
specifications, terms and conditions set forth in Exhibit C. Except as
specifically provided for in this Lease, Landlord shall have no obligation to
repair, improve, redecorate or remodel the Premises.
All contractors and subcontractors performing work at the Premises during the
initial build-out of the Building, whether for Landlord or Tenant, must be
recognized and approved by the AFL-CIO Building Trades Council having
jurisdiction and each such contractor or subcontractor must be bound by and a
signatory to an applicable bargaining agreement and observe area standards for
wages and other terms and conditions of employment, including fringe benefits;
provided, however, that this requirement does not apply to or affect any
maintenance or similar type of workers performing services at the Premises or
employees of Tenant after the Premises are complete.
Landlord shall make a commercially reasonable effort to enter into a Project
Labor Agreement for the Project with the AFL-CIO Building Trades Council having
jurisdiction.
8.2. EARLY ACCESS: Tenant and its vendors shall have early access to the
Premises at least two (2) weeks prior to the commencement of the Term to install
its equipment, telephone and data lines prior to completion of its move-in and
occupancy of the Premises in coordination with Landlord's work and schedule for
completion of the Building provided, however, that, without limiting the
foregoing, Landlord shall cooperate in all reasonable respects with Tenant in
the installation of its equipment.
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9. COVENANTS OF TENANT: Tenant agrees that it shall:
A. Observe such rules and regulations as from time to time may be
put in effect by Landlord for the general safety of Tenant and
the Building, subject, however, to Tenant's approval of such
rules and regulations, which approval shall not be unreasonably
withheld.
B. Give Landlord access to the Premises at all reasonable times,
accompanied by Tenant, without change or diminution of rent or
interference with Tenant's business, to enable Landlord to
examine the same and to make such repairs, additions and
alterations as Landlord may deem advisable, and during the nine
(9) months prior to the expiration of the Term, to exhibit the
Premises to prospective tenants and to place upon the door or in
the windows of the Premises any usual or ordinary "For Lease"
signs. Tenant may deny Landlord access to certain areas
reasonably designated by Tenant, from time to time, by reason of
security, confidentiality or function.
C. Pay as part of Operating Costs for all replacement electric
lamps, starters and ballasts used in the Premises.
D. Upon the termination of this Lease in any manner whatsoever,
remove Tenant's personal property and such of its equipment and
trade fixtures as it desires 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 are now in or hereafter may be put in by Landlord or
Tenant, reasonable use and wear thereof and repairs which are
Landlord's obligation and damage by fire or other casualty
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. Tenant shall not be required to repair damage
(other than damage to the exterior of the Building or structural
damage) to the Premises caused by removal of such items provided
that it uses reasonable means to remove the same.
F. Not assign this Lease or sublet all or any part of the Premises
voluntarily, involuntarily or by operation of law, without first
obtaining Landlord's written consent thereto. Landlord shall,
within ten (10) days of its receipt of Tenant's request, approve
or reject the assignment or sublease and, if rejected, Landlord
shall specify its reason(s) for withholding approval. Landlord's
failure to respond within ten (10) days shall be deemed
approval. Landlord's consent will not be withheld provided that
(i) the occupancy of any such
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assignee or sublessee is not inconsistent with the character of
the Building; (ii) such assignee (but not any sublessee) shall
assume in writing the performance of the covenants and
obligations of Tenant hereunder which arise after the effective
date of the assignment; (iii) a fully executed copy of any such
assignment or sublease shall be immediately delivered to
Landlord and (iv) in the case of an assignment (but not
sublease), the assignee is reasonably creditworthy given the
financial obligations imposed by this Lease, 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. Notwithstanding the foregoing,
Landlord's consent shall not be required for any assignment or
sublease made in connection with any merger, consolidation, or
sale of all or substantially all of the assets of Tenant which
are related to the business or division then operating at the
Premises or to any affiliate of Tenant. In the event of an
assignment, Landlord agrees to release Tenant from its
obligations under this Lease if the net worth and net operating
income of the assignee is reasonably sufficient, in Landlord's
reasonable business judgment, to meet the obligations of the
Tenant under this Lease.
G. Tenant may, at its sole expense (except as provided for in
Exhibits C and D), erect exterior signage not in excess of that
permitted by applicable code and regulation for the Premises.
H. Not 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 any insurance deemed necessary or
advisable by Landlord, provided, however, that upon notice from
Landlord, Tenant may elect to pay such additional cost.
I. Not make any structural alterations or additions to the Premises
without obtaining the prior written approval of the Landlord
thereto, and all alterations, additions or improvements
(including carpeting or other floor covering which has been
glued or otherwise affixed to the floor) which may be made by
either of the parties hereto upon the Premises, shall be the
property of Landlord, and shall remain upon and be surrendered
with the Premises, as a part thereof, at the termination of this
Lease. Office furniture, trade fixtures and equipment shall be
the property of Tenant and may be removed by Tenant and the
termination of this Lease.
J. Except for the initial construction which is the obligation of
Landlord under Section 8.1 and Exhibits C and D, keep the
Premises and the Project 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
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or on behalf of Tenant. Provided, however, that Tenant shall
have the right to contest any such lien, in which event such
lien shall not be considered a default under this Lease until
the existence of the lien has been finally adjudicated and all
appeal periods have expired. Tenant shall indemnify and hold
harmless Landlord from and against any such lien, or claim or
action thereon, reimburse Landlord promptly upon demand therefor
by Landlord for costs of suit and reasonable attorneys' fees
incurred by Landlord in connection with any such lien, claim or
action, and, upon written request of Landlord if Landlord
reasonably deems itself insecure with the prospect for payment
by Tenant, provide Landlord with a bond, letter of credit, cash
deposit or other reasonable security in an amount necessary to
obtain a release of the Premises or the Project from such lien
if the lien claimant ultimately prevails.
K. Tenant shall, at its own expense, comply with the requirements,
as to Tenant's particular use, of insurance underwriters and
insurance rating bureaus and governmental authorities having
jurisdiction, provided that Landlord shall be responsible for
assuring that the initial construction of the improvements
comply with the foregoing requirements.
L. Maintain in full force and effect during the term hereof, a
policy of public liability insurance under which Landlord is
named as additional insured. The minimum limits of liability of
such insurance shall be $1,000,000.00 combined single limit as
to bodily injury and property damage. Tenant agrees to deliver a
certificate of insurance evidencing such coverage to Landlord.
Such policy shall contain a provision requiring thirty (30) days
written notice to Landlord before cancellation of the policy can
be effected.
10. AMERICANS WITH DISABILITIES ACT: The parties agree that the liabilities and
obligations of Landlord and Tenant under that certain federal statute commonly
known as the Americans With Disabilities Act as well as the regulations and
accessibility guidelines promulgated thereunder as each of the foregoing is
supplemented or amended from time to time (collectively, the "ADA") shall be
apportioned as follows:
A. If any of the common areas of the Project, including, but not limited
to, exterior and interior routes of ingress and egress, off-street
parking and all rules and regulations applicable to the Premises, the
Building or the Project, fails to comply with the ADA, or if the
Building and the Premises as initially constructed does not conform to
the requirements of the ADA in effect at the time of substantial
completion thereof, then in any such case such nonconformity shall be
promptly made to comply by Landlord at its sole expense. Landlord shall
also cause its manager of the Building and the Project (the "Manager")
to comply with the ADA in its operation of the Building and the Project.
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B. From and after the commencement date of the Lease, Tenant covenants and
agrees to conduct its operations within the Premises in compliance with
the ADA. If any of the Premises fails to comply with the ADA (other than
by reason of a change in the ADA after the substantial completion of the
Premises, which shall be the responsibility of Landlord), such
nonconformity shall be promptly make to comply by Tenant. In the event
that Tenant elects to undertake any alterations to, for or within the
Premises, excluding initial build-out work, Tenant agrees to cause such
alterations to be performed in compliance with the ADA.
11. PARKING AND DRIVES: Tenant, its employees, and invitees shall have the
exclusive right to use the driveways and parking lots, except that the driveway
area designated on Exhibit B as "Shared Driveway" shall be for access to the
land and the parcel which is located Southerly of the land. Tenant, may, at its
own expense, designate parking spaces as being for visitors of Tenant. Any
changes, additions or deletions to such signage shall be at Tenant's expense.
Tenant further agrees not to use, or permit the use by its employees, the
parking areas for the long term storage of automobiles or other vehicles without
the written consent of Landlord. Landlord represents and warrants that the Site
Plan attached as Exhibit B shows parking sufficient to satisfy a parking ratio
of 4.5 spaces per 1000 square feet of rentable area in the Building with an area
designated on the Site Plan as "Future Parking" which is available to add
sufficient spaces to satisfy a parking ratio of five spaces per 1000 square feet
of area, all in accordance with applicable legal requirements. Landlord shall
not make any changes to the Site Plan or the improvements depicted thereon
without the approval of Tenant in its absolute discretion.
12. CASUALTY LOSS: If the Building is damaged in part or whole from any cause
and the Building can be substantially repaired and restored within the Repair
Period (as defined below) from the date of the damage using standard working
methods and procedures, Landlord shall at its expense promptly and diligently
repair and restore the Building, including all leasehold improvements, to
substantially the same condition as existed before the damage. This repair and
restoration shall be made within the Repair Period unless the delay is due to
causes beyond Landlord's reasonable control. As soon as reasonably possible and
in any event within thirty (30) days after the damage, Landlord shall notify
Tenant in writing of the number of days required for the completion of repairs
from the date of the damage, including a date certain for the completion thereof
(the "Repair Completion Date"). If the Repair Completion Date is more than 120
days, but less than 365 days, from the date of damage, Tenant may, at its
election made by giving written notice thereof to Landlord within ten (10) days
after receipt of Landlord's notice, extend the time for completion of repair
through the Repair Completion Date. As used herein, the "Repair Period" means
the period commencing with the date of damage and ending on the Repair
Completion Date unless, in any case where the Repair Completion Date is more
than 120 days after the date of the damage, Tenant does not elect, or does not
have the right to elect, as provided above to extend the time permitted for
repair beyond said 120 day period, in which event the Repair Period shall end
120 days after the date of the damage.
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If the Building cannot be repaired and restored within the Repair Period, then
either party may, within ten (10) days after the determination of the Repair
Period as provided above, cancel the Lease by giving notice to the other party.
If Landlord does not commence repairs within 30 days after the damage or
continue to prosecute such repair continuously with reasonable diligence, or if
the Building is not repaired and restored within the Repair Period, then Tenant
may cancel the Lease at any time thereafter and prior to completion of the
repair. Tenant shall not be able to cancel this Lease if its willful misconduct
caused the damage unless Landlord is not promptly and diligently repairing and
restoring the Premises.
The Base Rent and Additional Rent shall ▇▇▇▇▇ to the extent fair and equitable
and the abatement shall include any period that Tenant is unable to occupy or
use the Building, or its occupancy or use is materially adversely affected by
reason of any casualty or cause, whether or not the Premises are "untenantable"
and whether or not the Premises themselves are damaged. The abatement shall
consider the nature and extent of interference to Tenant's ability to conduct
business in the Premises and the need for access and essential services. The
abatement shall continue from the date the damage occurred until thirty (30)
business days after Landlord completes the repairs and restoration, or until
Tenant again uses the Premises or the part rendered unusable, whichever is
first.
Notwithstanding anything else in Section 13, Landlord is not obligated to repair
or restore damage to Tenant's trade fixtures, furniture, equipment, or other
personal property.
If the Lease is in the last twelve (12) months of its Term when material damage
to the Building occurs, then Landlord may cancel this Lease unless Tenant makes
one of the following elections and gives notice thereof within ten (10) days
after receipt of notice of such cancellation from Landlord: 1) elects to extend
the Term of the Lease for the next available Extended Term, if any, or 2) elects
to continue its occupancy for the balance of the Term without requiring Landlord
to repair the damage. Material is defined as costing more than 25% of the
replacement cost of the Building. To cancel, Landlord must give notice to Tenant
within ten (10) days after the Landlord knows of the damage. The notice must
specify the cancellation date, which shall be at least thirty (30) but not more
than sixty (60) days after the date notice is given.
13. CONDEMNATION: If the entire Premises is taken by eminent domain or
transferred under threat of such taking, this Lease shall automatically
terminate as of the date of taking. If a portion of the Premises, or any portion
of the Building or common area, including parking, or good and sufficient access
thereto, is taken by eminent domain and it is unfeasible, in Tenant's reasonable
judgment, for Tenant to continue to operate its business in the portion of the
Premises remaining, Tenant shall have the right to terminate this Lease as of
the date of taking by giving written notice thereof to Landlord within ninety
(90) days after date of taking. If Landlord or Tenant does not elect to
terminate this Lease, Landlord shall, at its expense, restore the Premises,
including 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 to the extent that the Premises or the Project ,
including the common areas and access thereto or the use thereof
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by Tenant is adversely affected, the rent shall equitably ▇▇▇▇▇. 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 its
personal property and fixtures or for relocation benefits.
14.1 DELAY IN POSSESSION: Landlord has not and shall not grant to any third
party the right to possess or occupy the Project. If the Term has not commenced
pursuant to Section 2.1 by October 1, 1998, 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 use due diligence to complete
such construction, building operations, repair or remodeling and to deliver
possession of the Premises to Tenant. The Landlord, using such due diligence,
shall not be liable for failure to obtain possession of the Premises for Tenant
or to timely complete such construction, building operations, repair or
remodeling, and the rental and other charges payable by Tenant hereunder shall
be abated until the Premises shall, on Landlord's part, be ready for occupancy
by Tenant, this Lease remaining in all other respects in full force and effect.
14.2 If the Term has not commenced, pursuant to Section 2.1 by November 1, 1998,
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
use due diligence to complete such construction, building operations, repair or
remodeling and to deliver possession of the Premises to Tenant. Landlord, using
such due diligence, shall be liable only for an amount equal to one day's Base
Rent and Operating Costs for each day of delay, such amount to be credited to
the Base Rent and Operating Costs first due under the terms of this Lease.
Subject to Section 14.3 and such use of due diligence, such credit shall be
Tenant's sole remedy for Landlord's failure to obtain possession of the Premises
for Tenant on or before March 31, 1999, this Lease remaining in all other
respects in full force and effect. Such day for day credit shall apply from and
after November 1, 1998 regardless of the cause for delay in commencement of the
Term and shall include the period during which Tenant elects to delay the
commencement of the Term pursuant to Section 2.1 even if the Term would have,
but for such election, commenced during such period.
14.3 If the Term has not commenced by March 31, 1999, ( and regardless of
whether such delay is permitted under Section 29), Tenant may, in addition to
any other rights or remedies, at its election upon notice given to Landlord,
terminate this Lease at any time thereafter but prior to substantial completion
and commencement of the Term of this Lease. If Tenant terminates this Lease
pursuant to this Section 14.3 and, but for the delays permitted under Section
29, the Premises could have been completed prior to March 31, 1999, Landlord
shall be liable to Tenant for damages.
13
14.4 As used in the preceding Sections of this Article 14, the phrase "using due
diligence" means having used due diligence from the date hereof through the date
in question and thereafter continuing to use due diligence to complete the
Landlord's obligations within the time required.
15. LIABILITY AND INDEMNITY: Save for its negligence and that of its agents,
Landlord shall not be responsible or liable to Tenant for any loss or damage (i)
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 or
(ii) for any loss or damage resulting to Tenant or its property from burst,
stopping or leaking water, sewer, sprinkler or steam pipes or plumbing fixtures
or from any failure of or defect in any electric line, circuit or facility.
Subject to Section 16, 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 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, the
Premises or any part thereof, provided, however, that nothing contained in this
paragraph shall be deemed to require Tenant to indemnify Landlord with respect
to any negligence or tortious act or omission committed by Landlord or its
agents or any other tenant, occupant, licensee or invitee, or to any extent
prohibited by law.
Subject to Section 16, Landlord shall defend, indemnify and save Tenant 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 Tenant, the Premises
or any interest therein or in the Building by reason of or in connection with
any negligent or tortious act on the part of Landlord or any of its agents,
contractors, servants, employees, licensees or invitees, any accident, injury,
death or damage to any person or property occurring in, the Premises or any part
thereof, provided, however, that nothing contained in this paragraph shall be
deemed to require Landlord to indemnify Tenant with respect to any negligence or
tortious act or omission committed by Tenant or its agents or any other tenant,
occupant, licensee or invitee, or to any extent prohibited by law.
16. MUTUAL RELEASE/WAIVER OF SUBROGATION: Each of Landlord and Tenant hereby
releases the other from any and all 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 any of the all risk casualties insurable
under an all risk property insurance policy, even if such casualty shall have
been caused by the fault or negligence of the other party, or anyone for whom
such party may be responsible.
Landlord shall maintain at all times from and after the date hereof and through
the Term commercial general liability insurance in the amount of not less than
$1,000,000 on a combined single limit basis and name the Tenant as an additional
named insured thereon.
14
17.1 HAZARDOUS SUBSTANCES: Tenant shall use all reasonable efforts to not
(either with or without negligence) cause or permit the escape, disposal or
release of any biologically or chemically active or other hazardous substances
or materials. Tenant shall not allow the storage or use of such substances or
materials in any manner in violation of law or materially below the accepted
standards prevailing in the industry for the storage and use of such substances
or materials, nor allow to be brought into the Project any such materials or
substances except to use in the ordinary course of Tenant's business. After
written notice from Landlord requesting the identity of such substances or
materials, Tenant shall provide Landlord with a list of the same. Without
limitation, hazardous substances and materials shall include those described in
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 et. seq., and applicable state or local laws
and the regulations adopted under these acts. If any lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Premises and Tenant has caused the release. In
addition, Tenant shall certify on a reasonable basis from time to time at
Landlord's request concerning Tenant's best knowledge and belief regarding the
presence of hazardous substances or materials brought by Tenant on to the
Premises. In all events, Tenant shall indemnify Landlord in the manner elsewhere
provided in this Lease from any release of hazardous materials on the Premises
(but only if brought by Tenant or permitted by Tenant to be brought) occurring
while Tenant is in possession, or on adjoining land if caused by Tenant or
persons acting under Tenant. The within covenants shall survive the expiration
or earlier termination of the Term.
In all events, Landlord shall indemnify Tenant in the manner elsewhere provided
in this Lease from any release of hazardous materials on the Premises now
existing in, on, under or about the Premises or incorporated in the Project or
caused or permitted by Landlord, or on adjoining land if caused by Landlord or
persons acting under Landlord. The within covenants shall survive the expiration
or earlier termination of the Term.
17.2 To the best of Landlord's knowledge, there does not exist any toxic or
hazardous waste or material, or any pollutant or any substance regulated by any
environmental law in, under or above the Project or the Expansion Landlord (as
defined in Section 4.1 of Exhibit C) or any part thereof.
18. DEFAULT: Tenant hereby agrees that in case Tenant shall default in making
its payments hereunder or any of them or in performing any of the other
agreements, terms and conditions of this Lease and such default continues for
five days after written notice thereof as to the payment of Base Rent and
regular monthly installments of fixed estimates of operating costs (a "Monetary
Default") or thirty (30) days (or such longer period as Tenant, acting
diligently, may reasonably require) after written notice thereof as to all other
defaults, 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 after
five days written notice, with due process, re-enter immediately into the
Premises and remove all
15
persons and property therefrom, and, at Landlord's option, annul and cancel this
Lease as to all future rights of Tenant and Tenant hereby expressly waives the
service of any notice in writing of intention to re-enter as aforesaid. Tenant
further agrees that in case of any such termination Tenant will indemnify the
Landlord against all loss of rents and other damage which Landlord incurs by
reason of such termination, including, but not being limited to, costs of
restoring and repairing the Premises as required by this Lease, costs of renting
the Premises to another tenant, loss or diminution of rents and other damage
which Landlord may incur by reason of such termination, and all reasonable
attorney's fees and expenses incurred in enforcing any of the terms of the
Lease. 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.
19. NOTICES: All bills, statements, notices or communications which Landlord may
desire or be required to give to Tenant shall be deemed sufficiently given or
rendered if in writing and sent by registered or certified mail, or sent by a
nationally recognized overnight courier service addressed to Tenant at corporate
headquarters: VERITAS Software, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
and, from and after the date Tenant occupies and commences business operations
at the Premises and until further notice from Tenant, at the Premises and the
time of rendition thereof of the giving of such notice or communication shall be
deemed to be the time when the same is deposited in the mail or with such
overnight courier as herein provided. Any notice by Tenant to Landlord must be
served by registered or certified mail, or sent by a nationally recognized
overnight courier service addressed to Landlord 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. Either Landlord or Tenant may,
upon ten (10) days prior written notice to the other as herein provided, change
its address for notices under this Lease.
20. HOLDING OVER: Should Tenant continue to occupy the Premises after expiration
or termination for any reason of the Term or any renewal or renewals thereof
such tenancy shall be from month to month and in no event from year to year or
for any longer term, and shall be on all the terms and conditions hereof
applicable to a month to month tenancy except that Base Rent shall equal one
hundred percent (100%) if in the initial term and one hundred twenty-five
percent (125%) if in an Extended Term of the Base Rent payable at the time of
such expiration or termination. In addition, Tenant shall continue to pay
Operating Costs. Nothing in this Section 20, however, shall prevent Landlord
from removing Tenant forthwith and seeking all remedies available to Landlord in
law or equity.
21. SUBORDINATION: Subject to the non-disturbance provided for below, the rights
of Tenant shall be and are subject and subordinate at all times to the lien of
any first mortgage now or hereafter in force against the Project, and Tenant
shall, within twenty days (20) after request, execute such further instruments
subordinating this Lease to the lien of any such mortgage as shall be requested
by Landlord, which shall include
16
agreement by Tenant to attorn to the holder of such mortgage, covenant of
nondisturbance of Tenant's occupancy by such holder in the event that such
holder, its successors or assigns, succeeds to the interest of Landlord and such
holder consent to the application of insurance proceeds to restoration of
casualty loss damage, subject to such reasonable conditions as such holder may
impose. All such instruments shall be in form and substance satisfactory to
Landlord and Tenant, both acting reasonably.
22. ESTOPPEL CERTIFICATE: Tenant and Landlord shall each at any time and from
time to time, upon not less than ten (10) days prior written notice from the
other, execute, acknowledge and deliver to the other and any other parties
designated by the other, a statement in writing certifying (a) that this Lease
is in full force and effect and is unmodified (or, if modified, stating the
nature of such modification), (b) the date to which the rental and other charges
payable hereunder have been paid in advance, if any, and (c) that there are, to
such party's actual knowledge, no uncured defaults on the part of the other
hereunder (or specifying such defaults if any are claimed). Any such statement
may be furnished to and relied upon by any prospective purchaser or
encumbrancer, assignee or sublessee of all or any portion of the Project.
23. SERVICE CHARGE: Tenant agrees to pay interest at the per annum rate equal to
two percent (2%) plus the prime rate announced as such from time to time in the
Wall Street Journal under the section "Money Rates" of any payment of monthly
Base Rent or additional charge payable by Tenant hereunder which is not paid
within five (5) days from the date due.
24. BINDING EFFECT: The work "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.
25. TRANSFER OF LANDLORD'S INTEREST: In the event of any transfer or transfers
of Landlord's interest in the Premises or the Project, 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, provided that the transferee assumes this Lease
and agrees to pay and perform the obligations of Landlord which accrue
thereafter.
26. LIMITATION OF LIABILITY: In the event that Landlord is ever adjudged by any
court to be liable to Tenant in damages, Tenant specifically agrees to look
solely to Landlord for the recovery of any judgment from Landlord, it being
agreed that 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 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
17
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, requiring its directors, officers or shareholders to respond in
monetary damages from assets other than Landlord's in the Building) 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.
27. ADDITIONAL RENT AMOUNTS: Any amounts in addition to Base Rent payable to
Landlord by Tenant hereunder, including without limitation amounts payable
pursuant to Sections 5, 9K, 15, 17.1 and Exhibit C, and hereof ("Additional
Rent") shall be an obligation of Tenant hereunder and all such Additional Rent
shall be due and payable within twenty (20) days after receipt of written demand
thereof, accompanied by reasonable substantiation in case of amounts which are
not fixed under this Lease.
28. INCORPORATION OF EXHIBITS: The following exhibits to this Lease are hereby
incorporated by reference for all purposes as fully set forth at length herein:
Exhibit A-1 Legal Description
Exhibit A-2 Schematic Depiction
Exhibit B Site Plan
Exhibit C Additional Terms and Conditions
Exhibit D Outline Plans and Specifications
Exhibit E Construction Schedule
Exhibit F Elevation Plan
29. 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 fire, 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. Landlord shall, with respect to the initial construction of
the Building and the Premises (including all leasehold improvements), notify
Tenant within five (5) days after Landlord or its general contractor actually
knows of the commencement of a cause beyond its control which will constitute a
permitted postponement of the time for performance of its obligations under this
Section, failing which such cause shall not constitute an excused delay under
this Section. With respect to any delay not caused by Tenant in such initial
construction of the Building and Premises (including all leasehold improvements)
otherwise excused under this Section, the period of postponement allowed
Landlord shall not exceed one day for each day that the cause of delay exists
and Landlord in any event shall, at its sole cost and expense, exercise its best
effort to make up for any such delay, including by working overtime.
30. BROKERS: Landlord acknowledges and agrees that it is obligated to pay a
brokerage fee to ▇▇▇▇▇ Real Estate Company in the amount of $181,364.00 and to
CB Commercial Real Estate in the amount of $90,682.00, payable one-half on the
first
18
construction draw made by Landlord and the second-half payable upon occupancy by
Tenant.
31. 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. This Lease can only be modified or amended
by an agreement in writing signed by the parties hereto, their successors or
assigns. All provisions hereof shall be binding upon the heirs, successors and
assigns of each party hereto.
Tenant may exercise and continue to exercise all of its rights under this Lease
upon the occurrence and during the continuance of any default under this Lease
up to the point of termination of this Lease, including but not limited to the
Right of First Refusal and the options to extend the Term.
Whenever the consent or approval of the Landlord or Tenant is required by this
Lease, such consent or approval shall not be unreasonably withheld or delayed.
Time is of the essence under this Lease.
32. 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.
33. ADDITIONAL PROVISIONS:
A. If Tenant shall pay any Base Rent, Additional Rent or any other
amount under protest and later shall be deemed to have not owed
all or some part of the amount paid under protest, then Tenant
may recover the same from Landlord or offset against
installments of Base Rent, Additional Rent and other amounts
payable by Tenant hereunder the amount paid under protest and
determined not to have been owed, together with interest thereon
from and after the date of payment under protest to the date of
recovery or offset at the rate of interest equal to two percent
(2%) plus the prime rate announced as such from time to time in
the Wall Street Journal under the section "Money Rates".
B. Landlord represents and warrants to Tenant that:
19
a) Landlord has good title to the Project and the Expansion
Land free and clear of any encumbrances that materially
affects Tenant's rights or obligations under this Lease.
b) Landlord has full power, right and authority to execute
and perform this Lease and all corporate action
necessary so to do has been duly taken.
If requested by Tenant, Landlord and Tenant shall enter into a short form
memorandum of lease in form and substance reasonably acceptable to Landlord and
Tenant for the purpose of reflecting on the record title to the Project and the
Expansion Land, Tenant's leasehold estate and other rights under this Lease.
IN WITNESS WHEREOF, the respective parties hereto have caused this Lease to be
executed the day and year first above written.
LANDLORD:
▇▇▇▇ COMPANIES US, INC.
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Its: Vice President
--------------------------------------
TENANT:
VERITAS SOFTWARE CORPORATION
BY: /s/ ▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Its: VICE PRESIDENT AND GENERAL COUNSEL
--------------------------------------
20
EXHIBIT A-1
LEGAL DESCRIPTION:
Southerly Parcel of Lot 3 and Northerly Parcel of Lot 4
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying southerly of the
following described line: Commencing at the northeast corner of said Lot 3;
thence South 30 degrees 00 minutes 00 seconds East, assumed bearing, 171.23
feet along the easterly line of said Lot 3; thence southerly 143.99 feet along
said east line of Lot 3 on a tangential curve concave to the west with a radius
of 275.00 feet and with a central angle of 30 degrees 00 minutes 00 seconds;
thence on a bearing of South 90.00 feet tangent to said curve along said east
line of Lot 3 to the point of beginning of the line to be described; thence on
a bearing West 408.50 feet to a point on the west line of Lot 3 and said line
there terminating.
ALSO
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying northerly and
northeasterly of a line described as follows: Commencing at the northwest
corner of said Lot 4; thence South 00 degrees 00 minutes 00 seconds West,
assumed bearing, along the west line of said Lot 4 a distance of 98.78 feet to
the beginning of the line to be described; thence North 90 degrees 00 minutes
00 seconds East a distance of 194.99 feet; thence South 45 degrees 00 minutes
00 seconds East a distance of 89.36 feet to the easterly line of said Lot 4 and
said line there terminating.
CERTIFICATE OF SURVEY
FOR:
▇▇▇▇
COMPANIES
US, INC.
EXHIBIT B-1
Combination for
new Lot
[MAP]
21
[LOGO] WESTWOOD I hereby certify that this Plan was prepared by me
Westwood Professional Services, Inc. or under my direct supervision and that I am a
▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇ duly registered PROFESSIONAL LAND SURVEYOR under
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ the laws of the State of Minnesota.
▇▇▇ ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇ ▇. GYLAM
-----------------------------------
▇▇▇▇▇ ▇. Gylam, L.S.
Minnesota Reg. No. 23002 Date 4/20/98
----------
Revised legal 4/20/98
22
OPTION PIECE
EXHIBIT A-3
CERTIFICATE OF SURVEY FOR:
▇▇▇▇ COMPANIES US, INC.
EXHIBIT C-1
Combination for New Lot
[MAP]
LEGAL DESCRIPTION
Southerly Parcel of Lot 4 and Northerly Parcel of Lot 5
-------------------------------------------------------
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying southerly and
southwesterly of a line described as follows: Commencing at the northwest
corner of said Lot 4, thence South 00 degrees 00 minutes 00 seconds West,
assumed bearing, along the west line of said Lot 4 a distance of 98.78 feet to
the beginning of the line to be described; thence North 90 degrees 00 minutes
00 seconds East a distance of 194.88 feet; thence South 45 degrees 00 minutes
00 seconds East a distance of 99.36 feet to the easterly line of said Lot 4 and
said line there terminating.
ALSO
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying northerly of a line
described as follows: Commencing at the most northerly northwest corner of said
Lot 5; thence South 00 degrees 00 minutes 00 seconds West, assumed bearing,
along a west line of said Lot 5 a distance of 56.35 feet to the beginning of the
line to be described; thence North 90 degrees 00 minutes 00 seconds East a
distance of 271.80 feet to the northeasterly line of said Lot 5 and said line
there terminating.
23
[LOGO] WESTWOOD I hereby certify that this Plan was prepared by me
Westwood Professional Services, Inc. or under my direct supervision and that I am a
▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇ duly registered PROFESSIONAL LAND SURVEYOR under
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ the laws of the State of Minnesota.
▇▇▇ ▇▇▇-▇▇▇▇
/s/ ▇▇▇▇▇ ▇. GYLAM
-----------------------------------
▇▇▇▇▇ ▇. Gylam, L.S.
Minnesota Reg. No. 23002 Date 4/20/98
----------
Revised legal 4/20/98
24
EXHIBIT C
ADDITIONAL TERMS AND CONDITIONS
For the purpose of this Exhibit C, Landlord and Tenant agree as follows:
1. DEFINITIONS:
A) "Total Project Cost" shall mean the sum of the following costs:
a) Land, at a fixed cost of $747,533.00
b) Actual Construction Costs of the Landlord's Work, at a
cost not to exceed $3,443,135.00
c) Actual Construction Costs of Leasehold
Improvements, at a cost budgeted to be $2,048,013.00
d) Legal counsel for Landlord and Lender, at a fixed cost
of $35,000.00
e) Title Expenses, including mortgage registration tax,
title insurance, title disbursement fee, closing,
recording and miscellaneous costs, at a fixed cost of $41,736.00
f) Financing fee, including interim and permanent financing
and commitment fee, at a fixed cost of $115,992.00
g) Marketing, including functions and travel, at a fixed
cost of $7,500.00
h) Interim Interest, at a fixed cost of $168,152.00
i) Survey costs, including boundary, plat process and
as-built lender, at a fixed cost of $15,000.00
j) Miscellaneous costs, including appraisal, environmental,
inspecting architect, park dedication, interim real
estate taxes and moving allowance (which Landlord hereby
agrees to pay Tenant in the amount of $120,910.00,
one-half upon execution and one-half upon $155,410.00
occupancy), at a fixed cost of
k) Leasing, development and design fee (which Landlord
hereby agrees to pay at Tenant's option to Tenant or
Tenant's designee in the amount of $26,000.00, payable
upon execution, at a fixed cost of $373,007.00
l) Project contingency, at a fixed cost of $40,000.00
TOTAL PROJECT COSTS $7,190,478.00
The above stated Actual Construction Costs of the Landlord's
Work and Actual Construction Costs of the Leasehold Improvements
already include the following fees: Contingency - 3%; Design Fee
- 3%;
25
Contractor's Fee - 3%; Overhead - 3%, in each case as a
percentage of Actual Construction Costs, exclusive of all such
percentage fees. Any savings in the 3% contingency shall benefit
Tenant 70% and Landlord 30%.
Subject only to the Leasehold Improvement Cost, said
$7,190,478.00 is the absolute, guaranteed maximum Total Project
Costs and shall not be increased for any reason; if the Actual
Construction Costs of the Landlord's Work are less than
$3,443,135.00, then the Total Project Costs shall be reduced by
Seventy Percent (70%) of such savings.
B) ACTUAL CONSTRUCTION COSTS: The term Actual Construction Costs
shall mean costs necessarily incurred by Landlord in the proper
performance of the work described in Exhibit D. Such work
consists of the Landlord's Work (as defined in Section 3.1
below) and the Leasehold Improvements (as defined in Section
3.4(a) below). The Actual Construction Costs of the Landlord's
Work and the Leasehold Improvements shall be determined without
duplication; all Actual Construction Costs in respect of
coordination of the Landlord's Work with the Leasehold
Improvements shall be included in the Actual Construction Costs
of the Landlord's Work. In the event of any ambiguity, conflict
or inconsistency between the Landlord's Work or the Leasehold
Improvements or as to the allocation of the Actual Construction
Costs thereof, the same shall be deemed part of the Landlord's
Work and included in the Actual Construction Costs thereof. All
so-called "general conditions" to the extent permitted to be
included in Actual Construction Costs shall be included in the
Actual Construction Costs for the Landlord's Work. Such costs
shall be at rates not higher than the standard paid at the place
of the Property except with prior consent of Tenant. The Actual
Construction Costs shall include only the following items.
(a) Landlord's Labor Costs.
(i) Wages of construction workers directly employed by
Landlord to perform the construction of the Landlord's
Work and Leasehold Improvements at the site or at
off-site workshops. Landlord will not self perform any
of the construction without written approval for such
self performed work by the Tenant except for general
conditions, all rough carpentry work and installation of
all wood doors, hollow metal doors and related hardware.
(ii) Wages or salaries of Landlord's supervisory and
administrative personnel when stationed at the Property.
(iii) INTENTIONALLY DELETED
26
(iv) Wages and salaries of Landlord's supervisory or
administrative personnel engaged, at factories,
workshops or on the road, in expediting the production
or transportation of materials or equipment required for
the Landlord's Work and Leasehold Improvements, but only
for that portion of their time required for the
Landlord's Work and Leasehold Improvements.
(v) Costs paid or incurred by Landlord for taxes,
insurance, contributions, assessments and benefits
required by law or collective bargaining agreements and,
for personnel not covered by such agreements, customary
benefits such as sick leave, transportation costs,
medical and health benefits, holidays, vacations and
pensions, provided such costs are based on wages and
salaries included in the Actual Construction Costs as
provided above. The cost of Landlord's contributions for
F.I.C.A. taxes, state unemployment taxes, federal
unemployment taxes, worker's compensation insurance and
general liability insurance shall be an amount equal to
39% the employee's taxable wages. Such amount shall only
apply to Landlord's field labor force and does not apply
to its project management or design personnel.
(b) Subcontract Costs. Payments made by Landlord to
subcontractors in accordance with the requirements of the
subcontracts.
(c) Costs of Materials and Equipment Incorporated in the
Completed Construction.
(i) Costs, including transportation, of materials and
equipment incorporated or to be incorporated in the
completed construction.
(ii) Costs of materials described in the preceding
Clause 1(c)(i) in excess of those actually installed but
required to provide reasonable allowance for waste and
for spoilage. Unused excess materials, if any, shall be
handed over to Tenant at the completion of the
Landlord's Work and Leasehold Improvements or, at
Tenant's option, shall be sold by Landlord. Amounts
realized, if any, from such sales shall be credited to
Tenant as a deduction from the Actual Construction
Costs.
(d) Costs of Other Materials and Equipment, Temporary Facilities
and Related Items
(i) Costs, including transportation, installation,
maintenance, dismantling and removal of materials,
supplies, temporary facilities, machinery, equipment,
and hand tools not customarily owned by the construction
workers, which are provided by Landlord at the site
27
and fully consumed in the performance of the
Improvements; and cost less salvage value on such items
if not fully consumed, whether sold to others or
retained by Landlord. Cost for items previously used by
Landlord shall mean fair market value.
(ii) Rental charges for temporary facilities, machinery,
equipment, and hand tools not customarily owned by the
construction workers, which are provided by Landlord at
the site, whether rented from Landlord or others, and
costs of transportation, installation, minor repairs and
replacements, dismantling and removal thereof. Rates and
quantities for equipment rental shall be per a rental
rate schedule reasonably approved by Tenant.
(iii) Costs of removal of debris from the site.
(iv) Costs of telegrams and long-distance telephone
calls, postage and parcel delivery charges, telephone
service at the site and reasonable ▇▇▇▇▇ cash expenses
of the site office.
(v) Costs of temporary utilities (such as electricity,
gas, sewer, water and other such items) utilized to
construct the Property.
(vi) That portion of the reasonable travel and
subsistence expenses of Landlord's personnel incurred
while traveling in discharge of duties connected with
the Improvements.
(e) Miscellaneous Costs
(i) Premiums for insurance and bonds.
(ii) Sales, use, gross receipts or similar taxes imposed
by a governmental authority which are related to the
Improvements and for which Landlord is liable.
(iii) Fees and assessments for the building permit and
for other permits, licenses and inspections.
(iv) Fees of testing laboratories for tests and
inspections.
(v) Royalties and license fees paid for the use of a
particular design, process or product required by
Tenant; the cost of defending suits or claims for
infringement of patent rights arising from such
requirements; payments made in accordance with legal
judgments against Landlord resulting from such suits or
claims and payments of settlements made with Tenant's
consent; provided, however, that such costs of legal
defenses, judgment and settlements shall not be
28
included in the calculation of the Actual Construction
Costs, and provided that such royalties, fees and costs
are not otherwise excluded.
(vi) Deposits lost for causes other than Landlord's
fault or negligence.
(vii) Legal and paralegal costs incurred by Landlord in
resolving subcontractor disputes that are not the result
of Landlord's negligence.
(viii) Any deductibles paid by Landlord as a result of
casualty losses.
(ix) Other costs incurred in the performance of the
Landlord's Work and Leasehold Improvements if and to the
extent approved in writing by Tenant in its sole
discretion.
(f) Emergencies. The Actual Construction Costs shall also
include costs which are incurred by Landlord in taking action to
prevent threatened damage, injury or loss in case of an
emergency affecting the safety of persons or property.
(g) Design, Engineering and Other Professional Services
(i) Costs incurred by Landlord to provide engineering,
soil investigation and other professional services that
are not performed by Landlord's design personnel.
(ii) Costs of travel, housing and subsistence of design
professionals.
(iii) Costs of reproduction of any drawings,
specification or submittal.
C) COSTS NOT TO BE REIMBURSED: The Actual Construction Costs shall not
include:
(i) Salaries and other compensation of Landlord's
personnel stationed at Landlord's principal office or
offices other than the site office, except as
specifically provided in Paragraph 1(g).
(ii) Expenses of Landlord's principal office and offices
other than the site office.
29
(iii) Overhead and general expenses, except as may be
expressly included herein.
(iv) Landlord's capital expenses, including interest on
Landlord's capital employed for the Improvements.
(v) Rental costs of machinery and equipment, except as
specifically provided in Clause 1(d)(ii).
(vi) Any cost not specifically and expressly described
under Actual Construction Costs.
2.1. BASE RENT: For the period from the Commencement Date through the
sixtieth full calendar month of the Term, Monthly Base Rent shall be
one-twelfth of the sum of:
a) 10.11% of the Total Project Cost, exclusive of the Actual
Construction Costs of Leasehold Improvements Cost;
b) 15.727% of the Actual Construction Costs Leasehold Improvements
Cost;
c) $15,113.75
2.2. For the period from the sixty-first month through the one-hundred
twentieth month of the Term, Monthly Base Rent shall be 115% of the
Monthly Base Rent for the sixtieth month.
2.3. For each of the Extended Terms, if applicable, Monthly Base Rent shall
be an amount equal to 90% of Market Rent.
2.4. MARKET RENT. The term "Market Rent" means the rent per square foot that
a willing landlord would accept and a willing tenant would pay, neither
being under any compulsion or unusual consideration, for space
comparable to the portion of the Building and for a term equivalent to
the term for which the Market Rent is then being determined hereunder
and for a lease which is "net" to the same extent as, and otherwise
consistent with, this Lease, and taking into account all relevant
considerations, including transactions in comparable buildings in the
Northern Minneapolis Suburban corridor, all tenant or landlord
concessions, costs and allowances, such as (but without limitation)
leasehold improvement allowance, free rent and leasing commissions,
including reduction in such rental rate to take into account that Tenant
will not receive any allowance or concession.
In the event Landlord and Tenant are unable to agree on Market Rent
within twenty (20) days of Tenant's exercise of any extension option,
then the Market Rent shall be determined by arbitration in accordance
with the Commercial Arbitration
30
Rules of the American Arbitration Association. Within forty-five (45)
days after appointment, the arbitrator shall determine the current
Market Rent. The cost of the arbitration shall be borne equally by
Landlord and Tenant.
Within twenty (20) days after receipt by Tenant of the written
determination of Market Rent by arbitration, Tenant may, by written
notice to Landlord, rescind its exercise of the extension option in
question, provided that, if exercise of the rescission right is less
than twelve (12) months before the end of the then Term, the Term shall
be deemed extended at the Base Rent then in effect for a period of
twelve (12) months after the date of such exercise of rescission. The
determination and award by the arbitrator shall be final and binding on
Landlord and Tenant.
3.1. CONSTRUCTION BY LANDLORD: Landlord shall, at its sole cost and expense,
construct the Building and other improvements, including all common area
improvements and landscaping contemplated by the Outline Specifications
attached to the Lease as Exhibit D ("Landlord's Work"). Landlord's Work
includes all design, engineering, labor and material referenced in,
reasonably inferable from or otherwise necessary to complete the
improvements contemplated by the Outline Specifications and as the same
are extended in the Final Plans and Specifications, with exterior design
and finish consistent with the elevations attached as Exhibit F. The
Landlord's Work shall be performed in a good and workmanlike manner,
consistent with best practices in the industry and in compliance with
all applicable legal requirements. All of the provisions of Section 3.4
shall apply as well to the Landlord's Work, whether or not expressly so
stated in Section 3.4.
3.2. ADJUSTMENTS AND CREDITS: Any adjustment to the contract price under the
Outline Specifications shall be borne by Landlord and shall not increase
the cost to Tenant, provided that any discretionary change order issued
by Tenant pursuant to Section 3.4.(f) below which result in an increase
in the cost of Landlord's Work shall be at Tenant's cost to the extent
provided in Section 3.4.(f) below.
3.3. TENANT APPROVAL: Landlord shall consult with Tenant during the
preparation of, and shall submit to Tenant for its approval, the final
plans and specifications for the Landlord's Work and the Leasehold
Improvements, which approval shall not be unreasonably withheld.
3.4. LEASEHOLD IMPROVEMENTS:
(a) Landlord shall construct and complete all of the work set forth
in the plans and specifications prepared by Landlord and
approved by Tenant (the "Leasehold Improvements"). Landlord
shall at all times provide knowledgeable personnel to perform
its duties with respect to such construction, and acknowledges
and accepts the position of trust and confidence which it holds
with respect to Tenant in respect thereof.
31
Landlord shall be responsible for all aspects of the Leasehold
Improvements, other than as specifically directed by Tenant in
writing, necessary for the complete construction thereof, ready
to turn over to Tenant on a "turnkey basis"; for coordination of
plans prepared by or on behalf of Tenant with the base building
and Landlord's Work; processing and documenting change orders
requested by Tenant; securing all necessary approvals and
authorizations, including but not limited to building permits
for Leasehold Improvements; securing competitive bids;
negotiation of all construction contracts; monitoring and
inspecting the work and the progress thereof to the extent being
performed by others; and preparation of a "punch list" of
incomplete or defective work, including as required under any
construction contract or this Lease.
(b) Landlord (or an affiliate of Landlord) will act as general
contractor for the Leasehold Improvements. Such work shall be
performed at a cost not to exceed the competitive cost thereof.
(c) The portion of the Leasehold Improvements not to be performed by
Landlord's own forces shall be bid separately from Landlord's
Work and shall be fixed price contract, unless otherwise agreed
by Tenant. Except for discretionary changes in the Leasehold
Improvements which are requested in writing by Tenant and
documented by a written change order executed by Tenant setting
forth the net cost to Tenant of such change (excluding changes
requested by Tenant due to defective or inadequate construction
or other deficiencies not the fault of Tenant), the cost to
Tenant for the Leasehold Improvements shall not exceed the
accepted bid price thereof.
(d) Landlord shall submit to Tenant for Tenant's reasonable approval
a bid list of at least three qualified subcontractors to perform
each division of the Leasehold Improvements. Tenant shall have
the right to submit and add qualified contractors to such bid
list, subject to Landlord's reasonable approval. Landlord shall
be responsible to solicit a minimum of three bids for the work
in such format and in accordance with such bid requirements and
specifications as may be reasonably approved by Tenant,
including without limitation the itemization of the entire or
designated portions of each bid. Landlord shall be responsible
to review and tabulate the bids, to consult with Tenant
regarding the bids, and shall recommend to Tenant, for Tenant's
approval, the lowest and best bid to be selected. Tenant may
require all bids to be rejected or may, with or without making
changes to the Leasehold Improvements in order to reduce the
cost thereof, negotiate, or direct Landlord to negotiate, with
one or more of such in order to achieve an acceptable price for
the Leasehold Improvements.
32
(e) All construction contracts entered into by Landlord for the
Leasehold Improvements shall have warranties which are
reasonably acceptable to Tenant and shall not provide for
liquidated damages or other penalty or specific monetary failure
to complete, or any bonus for completion of, the Landlord's Work
or the Leasehold Improvements by a particular time. Any premium
cost included in any construction contract for the Leasehold
Improvements above the cost to perform the work without overtime
and in the ordinary course shall be borne by Landlord.
(f) Tenant may from time to time require changes in the Landlord's
Work and the Leasehold Improvements by submitting a written
change order therefor to Landlord. No change order shall (a)
increase the Actual Construction Cost to Tenant or the
guaranteed maximum cost or (b) extend the time by which any of
such work shall be substantially completed unless Landlord
states in such change order, in the case of (a) the net increase
in Actual Construction Costs to Tenant and provides an
explanation thereof in reasonable detail and, in the case of (b)
the delay in substantial completion directly attributable to
such delay, provided that (i) no such statement shall be binding
on Tenant unless Tenant specifically accepts such statement in
such change order and (ii) there shall be no increase in Actual
Construction Costs to Tenant and no extension of the time for
completion of any such work to the extent the change order is
not discretionary, such as a change order which directs the
correction of defective or inadequate construction or other
deficiencies (including but not limited to failure to comply
with applicable legal requirements) not the fault of Tenant.
(g) Landlord shall permit Tenant's space planner, architects and
other consultants to inspect the Premises and Landlord's Work
and the Leasehold Improvements at all reasonable times after the
date hereof. No inspection by Tenant or any such person, and no
approval or failure to reject any of the Landlord's Work or the
Leasehold Improvements, shall waive or release the obligation of
Landlord to construct and deliver the Premises with the
Landlord's Work and the Leasehold Improvements completed in
accordance with the requirements of this Lease, including as the
same may be changed pursuant to change orders made in accordance
with this Lease.
(h) Upon receipt by Landlord of any application for payment from any
contractors engaged by Landlord, or any communication, whether
oral or written, from such contractors, inspecting architects or
engineers, governmental authorities which may have a material
effect on the Landlord's Work or the Leasehold Improvements
(including but not limited to any deficiency or irregularity
with respect thereto), Landlord shall provide copies of such
application or written communication to Tenant and otherwise
advise Tenant of the substance of any such oral communication.
33
(i) Landlord shall make and retain for a period of four (4) years,
complete books and records, with substantiating evidence of
costs, application for payment and the like, in respect of the
Landlord's Work and Leasehold Improvements.
3.5. SCHEDULE FOR SUBMISSIONS, APPROVALS, ETC.: Attached hereto as Exhibit E
is a construction schedule for the design, bidding and construction of
the Project and the Leasehold Improvements. Additionally, 1) Tenant
shall deliver to Landlord Design Development plans for Leasehold
Improvements by May 26, 1998; 2) Landlord shall deliver to Tenant the
HVAC system plan and Leasehold Improvement Construction plan to Tenant
by May 31, 1998; 3) Tenant shall approve (or detail in writing its
reasonable objections to) the HVAC system plan and the Leasehold
Improvement Construction plan by June 6, 1998. Landlord and Tenant shall
each perform their respective responsibilities consistent with such
schedule. If Tenant fails to perform its responsibilities within the
time provided, and to give approvals in a timely fashion consistent with
such schedule, then, except to the extent any such failure is
attributable to the fault of Landlord, the time for performance by
Landlord shall be extended by one (1) day for each day by which such
failure by Tenant continues, but in any event only if and to the extent
Landlord is actually delayed by such failure.
4.1. OPTION TO EXPAND: ▇▇▇▇ Companies US, Inc., ("▇▇▇▇"), subject to the
terms and conditions hereof, hereby grants to Tenant the exclusive
option ("Expansion Option") to lease certain premises ("Expansion
Premises") to be built on land ("Expansion Land") adjacent to the
Project as illustrated on the Site Plan attached as Exhibit B. Landlord
hereby represents and warrants that a two story building of not less
than 45,000 square feet, with surface parking for not less than 225 cars
is permissible as a matter of right and without variance, or conditional
or other use permit under applicable zoning regulations and building
codes in effect as of the date of this Lease that such building may be
used for the same purposes permitted under this Lease and that there is
sufficient area available on the Expansion Land, and the configuration
of the Expansion Land is such that, such building, parking and related
improvements can be constructed on the Expansion Land in compliance with
zoning regulations and building codes consistent with the requirements
of this Lease. The legal description of the Expansion Land is attached
hereto as Exhibit A-3.
▇▇▇▇ hereby agrees that, prior to the termination of, or exercise of
(and completion of its obligations in respect of) the Expansion Option,
it shall not transfer its interest in the Project, other than a transfer
(1) for security purposes only or (2) to an entity controlled by it or
(3) to an entity controlled by its principals and that such transferree
shall remain controlled by or under common control with ▇▇▇▇, with such
control continuing, and the Project shall at all such times be under
such
34
common control with the Expansion Land. No such transfer shall release
▇▇▇▇ from any obligation under this Article 4, which shall remain
directly and primarily liable therefore and shall not be discharged by
any matter that would, but for this provision, release a party in the
position of, or comparable to, a surety. Without limiting the foregoing,
▇▇▇▇ hereby guarantees, absolutely and unconditionally, the full and
timely payment and performance of this Article 4 by any such transferee.
Except as otherwise expressly provided herein, the obligations of
Landlord under this Article 4 shall be the personal, independent
obligations of ▇▇▇▇ and shall not be binding upon any future owner of
the interest of Landlord hereunder. Any failure by ▇▇▇▇ to perform its
obligations under this Article 4 shall not constitute a default by
Landlord under this Lease or entitle Tenant to terminate this Lease or
withhold or offset against Rent. Notwithstanding the foregoing or any
other provisions of this Lease, the obligations of ▇▇▇▇ under this
Article 4 shall be binding upon ▇▇▇▇ and any future owner of the
Expansion Land, and their respective successors and assigns. Landlord
agrees to permit the Expansion Premises to be laid out in coordination
with the improvements on the Premises so that the same may be used as an
integrated project by Tenant, and to permit connecting walkways
(including an enclosed walkway), provided that (a) the same are approved
by Landlord, which approval shall not be unreasonably withheld or
delayed and (b) Landlord may condition its approval on the removal of
connecting walkways from the Premises upon the expiration or sooner
termination of this Lease.
4.2. TERM OF OPTION: The Expansion Option shall expire on the last day of the
forty-eighth month of the Term of this Lease, unless sooner terminated
as provided herein.
4.3. CONSIDERATION: Tenant may, at its election, pay to ▇▇▇▇, as
consideration for continuation after the twenty-fourth month of the
Expansion Option, on or before the later of (a) ten (10) days after
receipt of Ryan's invoice accompanied by a notice stating the Expansion
Option under this Lease will terminate if the invoice is not paid within
said ten (10) day period, or (b) the first day of each of the
twenty-fifth month and thirty-seventh months of the Term the sum of One
Hundred Seventy Five Thousand and no/100 Dollars ($175,000.00). Tenant
to pay to ▇▇▇▇, as additional consideration on or before the later of
(a) ten (10) days after receipt of Ryan's invoice or (b) twenty (20)
days prior to the last date such taxes and installments of special
assessments, on a due and payable basis, are due without penalty, the
amount of real estate taxes and installments of special assessments
allocable to the Expansion Land for the period from the twenty-fifth
month through the forty-eighth month of the Term. Notwithstanding the
foregoing, (1) no amount shall be payable under this Section if Tenant
exercises the Expansion Option on or before the end of the twenty-fourth
(24th) month of the Term, (2) each $175,000 amount paid by Tenant under
this Section shall be prorated as of the date the Expansion Option is
exercised, based on a period of 365 days and the
35
number of days elapsed from the date the payment is due to but excluding
the date the Expansion Option is exercised, and (3) any real estate
taxes and installments of special assessments prorated and allocable (on
a due and payable basis) to the period commencing with exercise of the
option shall be included in Total Project Costs (clause j. of the
definition thereof) for the Expansion Building and paid by ▇▇▇▇, not
Tenant.
Tenant hereby agrees that in the event Tenant shall not make the
payments under this Section and such failure continues for five days
after written notice or if this Lease shall otherwise terminate and
Landlord shall recover possession whether or not based on default, and
such default shall not be cured as provided for in the Lease, this
Expansion Option shall terminate without further action on the part of
▇▇▇▇. If this Lease is terminated on any basis other than Tenant's
default, any payment made by Tenant under the first paragraph of this
Section 4.3 which was due and payable within twelve (12) months of such
termination shall be refunded to Tenant. If this Lease is terminated for
Landlord's default or if ▇▇▇▇ defaults in its obligations under this
Article 4, then all amounts paid by Tenant under this Article 4 shall
immediately be refunded to Tenant with interest from the date paid by
Tenant at the rate specified in Section 23 of this Lease.
4.4. Tenant shall exercise the Expansion Option by written notice to ▇▇▇▇
given at any time prior to expiration of the Expansion Option, provided
that Landlord shall have up to one (1) year after exercise of the
Expansion Option to complete construction and cause the commencement
date of such lease to occur. Tenant shall in such notice of exercise
state the approximate square footage of the expansion building (which
shall not be less than 45,000 square feet and not more than 60,000
square feet) and shall also, but not as a condition of such exercise
notice, state the date of its desired occupancy of Expansion Premises.
The actual building size shall be as so stated by Tenant unless (a) such
size cannot legally be constructed on the Expansion Land, but if such
size is 45,000 square feet only if the same cannot be constructed by
reason of a change in applicable legal requirements after the date
hereof, or (b) if the stated size is less than 60,000 square feet, such
greater size as ▇▇▇▇ ▇▇▇ elect up to a maximum of 60,000 square feet,
but only to the extent that the same may be constructed (i) without
variance, or conditional or special use or other permit that would delay
commencement of construction, and (ii) a parking ratio of 5 spaces per
1,000 square feet of building area is provided on the basis of surface
parking only all of which shall be located on the Expansion Land. No
more than sixty (60) days following receipt of Tenant's notice, ▇▇▇▇
shall deliver to Tenant, in reasonable detail, a statement setting forth
Ryan's estimate of (m) the costs and schedule to construct the Expansion
Premises in a manner equivalent in quality, materials and workmanship to
the construction of the Premises and (n) the Base Rent, with an
explanation in reasonable detail of the basis for such estimates,
including the amounts comprising the Total Project Costs as set forth in
Section 1A (with supporting detailed information) of this Exhibit C and
the financing upon which the debt service constant is based. The debt
service
36
constant shall be mutually acceptable to Landlord and Tenant, and shall
be based on a loan which shall provide for no less than a 25 year
amortization schedule, a loan to value ratio no greater than 80%, no
less than a five year term, no more than a one percent fee, and be
non-recourse. No more than thirty (30) days following receipt of Ryan's
estimate, Tenant shall notify ▇▇▇▇ in writing of its acceptance or
rejection of Ryan's estimate. If Tenant rejects Ryan's estimate, then
▇▇▇▇ and Tenant shall consult with each other to try to resolve the
difference, which may include, and ▇▇▇▇ agrees to accept, reasonable
alternate financing provided or arranged by Tenant.
4.5. Upon acceptance of Ryan's estimate, ▇▇▇▇ and Tenant shall enter into a
new Lease for the Expansion Premises upon the same terms and conditions
as contained in this Lease and with Base Rent calculated in the same
manner as Base Rent for the Premises, except that the constant applied
to the Total Project Cost shall be equal to the debt service constant
plus 70 basis points.
5. ADDITIONAL OPTION TO EXTEND: Upon execution of the lease for the
Expansion Premises and the determination of initial term thereof
pursuant to the provisions thereof, Tenant shall have the option to
extend the initial Term of this Lease with respect to the entire
Premises for the period from the last day of the initial Term of this
Lease to the last day of the initial Term of the lease for the Expansion
Premises with the effect that Tenant shall retain the two-five year
options provided in Section 2.2. Such term shall be upon the same terms
as provided in this Lease for the Term, except for the Base Rent which
shall be as set forth in Section 2.3 of Exhibit C. Landlord shall, not
less than twelve (12) months before the end of the then Term, give
notice to Tenant of Tenant's upcoming extension option and of Landlord's
best estimate of the Market Rent for the Extended Term covered thereby.
Tenant shall exercise its option by giving notice of such exercise to
Landlord, not less than the later of thirty (30) days after receipt of
Landlord's notice of the option and estimate of Market Rent or twelve
(12) months prior to the end of the Term, or the then current Extended
Term, as the case may be. Such exercise is subject to rescission as
provided in Section 2.4 of Exhibit C. Tenant's exercise or failure to
exercise this option to extend the term of this Lease within the time
provided in this Section shall not affect Tenant's rights under Section
2.2 of the Lease.
37
OPTION AGREEMENT
----------------
THIS AGREEMENT is made and entered into this 30th day of April, 1998, by
and between ▇▇▇▇ COMPANIES US, INC., a Minnesota corporation ("Owner"), and
VERITAS SOFTWARE CORPORATION, a Delaware corporation ("Tenant").
RECITALS
--------
A. Owner and Tenant have entered into a Lease Agreement of even date
herewith (the "Lease"). Pursuant to said Lease, Owner has granted to Tenant an
option to have Owner construct a building upon the land described in Exhibit A
attached hereto (the "Land") and lease such Land and building from Owner (the
"Expansion Option").
B. If Tenant exercises the Expansion Option and Owner fails or refuses to
perform its obligations under the Lease with respect thereto (an "Expansion
Option Default"), then Owner is willing to sell the Land to Tenant.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the Lease, Owner and Tenant agree as
follows:
1. If, but only if, an Expansion Option Default occurs and is not cured
within thirty (30) days after written notice thereof by Tenant to Owner or by
Owner to Tenant, then Tenant shall have the right and option to purchase the
Land at any time within ninety (90) days after the expiration of such 30-day
period, but in no event later than July, 1, 2003 (the "Option Period").
2. The total purchase price to be paid by Tenant for the Land shall be
the sum of $4.25 times the number of square feet in the land. Tenant may
exercise its option to purchase the Land by paying such purchase price to Owner
prior to the expiration of the Option Period, whereupon Owner shall convey the
Land to Tenant by warranty deed, with State Deed Tax paid thereon, free and
clear of all liens and encumbrances except easements, restrictions and
reservations which are of record on the date hereof, real estate taxes and
special assessments which are not delinquent and a Declaration of Common
Driveway Easement in the form of Exhibit B attached hereto. Real estate taxes
which are payable during the year in which the conveyance occurs shall be
prorated as of the date thereof. Owner shall pay all special assessments which
are levied or pending as of the date hereof.
3. Time is of the essence hereof. At such time as either (a) an
Expansion Option Default can not longer arise, or (b) the Option Period has
expired and Tenant has failed to exercise its option hereunder to purchase the
Land, Tenant shall upon the request of Owner acknowledge the termination of this
Agreement by written agreement in recordable form. It is agreed that an
Expansion Option Default cannot occur if Owner and Tenant enter into a lease for
the Land and Owner commences construction of a building thereon pursuant to said
lease.
38
IN TESTIMONY WHEREOF, Owner and Tenant have caused this Agreement to be
duly executed as of the date first above written.
▇▇▇▇ COMPANIES US, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Its Vice President
VERITAS SOFTWARE CORPORATION
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Vice President and General Counsel
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 4th day of May,
1998, by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ the Vice President of ▇▇▇▇ COMPANIES US, INC., a
Minnesota corporation, on behalf of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
[SEAL] ----------------------------------------
Notary Public
STATE OF CALIFORNIA )
)ss.
COUNTY OF SANTA ▇▇▇▇▇)
The foregoing instrument was acknowledged before me this 1 day of May,
1998, by ▇▇▇ ▇. ▇▇▇▇▇ the VP & General Counsel of VERITAS SOFTWARE CORPORATION,
a Delaware corporation, on behalf of said corporation.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
[SEAL] ----------------------------------------
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
▇▇▇▇▇▇ Burratti, Esq.
▇▇▇▇ Companies US, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
2
39
EXHIBIT A
THE LAND
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying southerly and
southwesterly of a line described as follows: Commencing at the northwest
corner of said Lot 4; thence South 00 degrees 00 minutes 00 seconds West,
assumed bearing, along the west line of said Lot 4 a distance of 98.78 feet to
the beginning of the line to be described; thence North 90 degrees 00 minutes
00 seconds East a distance of 194.99 feet; thence South 45 degrees 00 minutes
00 seconds East a distance of 89.36 feet to the easterly line of said Lot 4 and
said line there terminating.
ALSO
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying northerly of a line
described as follows: Commencing at the most northerly northwest corner of said
Lot 5; thence South 00 degrees 00 minutes 00 seconds West, assumed bearing,
along the west line of said Lot 5 a distance of 56.35 feet to the beginning of
the line to be described; thence North 90 degrees 00 minutes 00 seconds East a
distance of 271.60 feet to the northeasterly line of said Lot 5 and said line
there terminating.
40
EXHIBIT B
DECLARATION OF COMMON DRIVEWAY EASEMENT
THIS DECLARATION is made this 4th day of May, 1998, by ▇▇▇▇ COMPANIES US,
INC., a Minnesota corporation ("▇▇▇▇").
RECITALS
▇. ▇▇▇▇ is the owner of the premises described in Exhibit 1 attached
hereto ("Parcel 1"), and is also the owner of the adjoining premises described
in Exhibit 2 attached hereto ("Parcel 2").
▇. ▇▇▇▇ desires to create an easement for common driveway purposes over
and across that portion of Parcel 1 and Parcel 2 which is described in Exhibit
3 attached hereto (the "Easement Parcel").
NOW, THEREFORE, ▇▇▇▇ does hereby declare as follows:
1. An easement for vehicular ingress and egress is hereby established
over, upon and across the Easement Parcel, which easement shall be for the
benefit of the owners and tenants of Parcel 1 and Parcel 2 and their invitees.
2. The owner of Parcel 1 shall keep and maintain the Easement Parcel in
good condition and state of repair, and shall cause snow to be removed
therefrom within a reasonable time. The owner of Parcel 2 shall, within 30 days
after receipt of an invoice therefor, reimburse the owner of Parcel 1 for 50%
of all costs incurred for such maintenance. Amounts not paid when due shall
bear interest at the rate of 8% per annum, and the owner of Parcel 2 shall also
bear all costs of collection, including attorneys' fees.
3. The easements and covenants herein contained shall run with the land
and be binding upon all future owners of Parcel 1 and Parcel 2.
IN WITNESS WHEREOF, ▇▇▇▇ has caused this Declaration to be duly executed
as of the date first above written.
▇▇▇▇ COMPANIES US, INC.
By ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Its Vice President
41
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 4th day of May,
1998, by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ the Vice President of ▇▇▇▇ COMPANIES US, INC., a
Minnesota corporation, on behalf of said corporation.
[SEAL]
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
NOTARY PUBLIC - MINNESOTA /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
My Comsn. Expires Jan. 31, 2000 ----------------------------------
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ Companies US, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
42
EXHIBIT 1
---------
PARCEL 1
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying southerly of the
following described line: Commencing at the northeast corner of said Lot 3;
thence South 30 degrees 00 minutes 00 seconds East, assumed bearing, 171.23
feet along the easterly line of said Lot 3; thence southerly 143.99 feet along
said east line of Lot 3 on a tangential curve concave to the west with a radius
of 275.00 feet and with a central angle of 30 degrees 00 minutes 00 seconds;
thence on a bearing of South 90.00 feet tangent to said curve along said east
line of Lot 3 to the point of beginning of the line to be described; thence on
a bearing West 408.50 feet to a point on the west line of Lot 3 and said line
there terminating.
ALSO
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying northerly and
northeasterly of a line described as follows: Commencing at the northwest corner
of said Lot 4; thence South 00 degrees 00 minutes 00 seconds West, assumed
bearing, along the west line of said Lot 4 a distance of 98.78 feet to the point
of beginning of the line to be described, thence North 90 degrees 00 minutes 00
seconds East a distance of 194.99 feet; thence South 45 degrees 00 minutes 00
seconds East a distance of 89.36 feet to the easterly line of said Lot 4 and
said line there terminating.
43
EXHIBIT 2
PARCEL 2
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying southerly and
southwesterly of a line described as follows: Commencing at the northwest
corner of said Lot 4; thence South 00 degrees 00 minutes 00 seconds West,
assumed bearing, along the west line of said Lot 4 a distance of 98.78 feet to
the beginning of the line to be described; thence North 90 degrees 00 minutes
00 seconds East a distance of 194.99 feet; thence South 45 degrees 00 minutes
00 seconds East a distance of 89.36 feet to the easterly line of said Lot 4 and
said line there terminating.
ALSO
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying northerly of a line
described as follows: Commencing at the most northerly northwest corner of said
Lot 5; thence South 00 degrees 00 minutes 00 seconds West, assumed bearing,
along a west line of said Lot 5 a distance of 56.35 feet to the beginning of
the line to be described; thence North 90 degrees 00 minutes 00 seconds East a
distance of 271.60 feet to the northeasterly line of said Lot 5 and said line
there terminating.
44
EXHIBIT 3
EASEMENT PARCEL
45
OPTION AGREEMENT
THIS AGREEMENT is made and entered into this 3rd day of June, 1998, by and
between ▇▇▇▇ COMPANIES US, INC., a Minnesota corporation ("Owner"), and VERITAS
SOFTWARE CORPORATION, a Delaware corporation ("Tenant").
RECITALS
A. Owner and Tenant have entered into a Lease Agreement dated April 30,
1998, as amended by a First Amendment to Lease Agreement dated June 1, 1998
(together, the "Lease"). Pursuant to said Lease, Owner has granted to Tenant an
option to have Owner construct a building upon the land described in Exhibit A
attached hereto (the "Land") and lease such Land and building from Owner (the
"Expansion Option").
B. If Tenant exercises the Expansion Option and Owner fails or refuses
to perform its obligations under the Lease with respect thereto (an "Expansion
Option Default"), then Owner is willing to sell the Land to Tenant.
AGREEMENT
NOW, THEREFORE, in consideration of the Lease, Owner and Tenant agree as
follows:
1. If, but only if, an Expansion Option Default occurs and is not cured
within thirty (30) days after written notice thereof by Tenant to Owner or by
Owner to Tenant, then Tenant shall have the right and option to purchase the
land at any time within ninety (90) days after the expiration of such 30-day
period, but in no event later than July 1, 2003 (the "Option Period").
2. The total purchase price to be paid by Tenant for the Land shall be
the sum of $550,100. Tenant may exercise its option to purchase the Land by
paying such purchase price to Owner prior to the expiration of the Option
Period, whereupon Owner shall convey the Land to Tenant by warranty deed, with
State Deed Tax paid thereon, free and clear of all liens and encumbrances
except easements, restrictions and reservations which are of record on the date
hereof, real estate taxes and special assessments which are not delinquent and
a Declaration of Common Driveway Easement in the form of Exhibit B attached
hereto. Real estate taxes which are payable during the year in which the
conveyance occurs shall be prorated as of the date thereof. Owner shall pay all
special assessments which have been levied as of the date hereof.
3. Time is of the essence hereof. At such time as either (a) an
Expansion Option Default can no longer arise, or (b) the Option Period has
expired and Tenant has failed to exercise its option hereunder to purchase the
Land, Tenant shall upon the request of Owner acknowledge the termination of
this Agreement by written agreement in recordable form. Any failure or refusal
by Tenant to do so within 30 days after written request by Owner shall
constitute a default by Tenant under the Lease. It is agreed that an Expansion
Option Default cannot occur if Owner and Tenant enter into a lease for the Land
and Owner commences construction of a building thereon pursuant to said lease.
4. This Agreement supersedes and replaces in its entirety the Option
Agreement between Owner and Tenant dated April 30, 1998, which prior Option
Agreement is of no further force or effect.
46
IN TESTIMONY WHEREOF, Owner and Tenant have caused this Agreement to be
duly executed as of the date first above written.
▇▇▇▇ COMPANIES US, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Its Vice President
VERITAS SOFTWARE CORPORATION
By /s/ ▇▇▇ ▇ ▇▇▇▇▇
-----------------------------
Its ▇▇▇ ▇. ▇▇▇▇▇
VICE PRESIDENT AND
GENERAL COUNSEL
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 3 day of June,
1998, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ the Vice President of ▇▇▇▇ COMPANIES US, INC., a
Minnesota corporation, on behalf of said corporation.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Notary Public
[SEAL]
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
NOTARY PUBLIC - MINNESOTA
HENNEPIN COUNTY
My Commission Expires Jan. 31, 2000
STATE OF ______________ )
) ss.
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ____ day of
_________, 1998, by ___________________________ the ___________________________
of VERITAS SOFTWARE CORPORATION, a Delaware corporation, on behalf of said
corporation.
---------------------------------
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ Companies US, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
2
47
EXHIBIT A
THE LAND
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying southerly and
southwesterly of a line described as follows: Commencing at the northwest
corner of said Lot 4; thence South 00 degrees 00 minutes 00 seconds West,
assumed bearing, along the west line of said Lot 4 a distance of 89.34 feet to
the beginning of the line to be described; thence North 90 degrees 00 minutes
00 seconds East a distance of 188.87 feet; thence South 45 degrees 00 minutes
00 seconds East a distance of 99.58 feet to the easterly line of said Lot 4 and
said line there terminating.
ALSO
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying northerly of a line
described as follows: Commencing at the most northerly northwest corner of said
Lot 5; thence South 00 degrees 00 minutes 00 seconds West, assumed bearing,
along a west line of said Lot 5 a distance of 46.92 feet to the beginning of
the line to be described; thence North 90 degrees 00 minutes 00 seconds East a
distance of 265.37 feet to the northeasterly line of said Lot 5 and said line
there terminating.
48
EXHIBIT B
DECLARATION OF COMMON DRIVEWAY EASEMENT
THIS DECLARATION is made this ______ day of __________________, 1998, by
▇▇▇▇ COMPANIES US, INC., a Minnesota corporation ("▇▇▇▇").
RECITALS
▇. ▇▇▇▇ is the owner of the premises described in Exhibit 1 attached
hereto ("Parcel 1"), and is also the owner of the adjoining premises described
in Exhibit 2 attached hereto ("Parcel 2").
▇. ▇▇▇▇ desires to create an easement for common driveway purposes over
and across that portion of Parcel 1 and Parcel 2 which is described in Exhibit 3
attached hereto (the "Easement Parcel").
NOW, THEREFORE, ▇▇▇▇ does hereby declare as follows:
1. An easement for vehicular ingress and egress is hereby established
over, upon and across the Easement Parcel, which easement shall be for the
benefit of the owners and tenants of Parcel 1 and Parcel 2 and their invitees.
2. The owner of Parcel 1 shall keep and maintain the Easement Parcel in
good condition and state of repair, and shall cause snow to be removed
therefrom within a reasonable time. The owner of Parcel 2 shall, within 30 days
after receipt of an invoice therefor, reimburse the owner of Parcel 1 for 50%
of all costs incurred for such maintenance; provided, however, that the owner
of Parcel 2 shall not be responsible for such share of maintenance costs which
are incurred prior to the completion of construction of a building on Parcel 2.
Amounts not paid when due shall bear interest at the rate of 8% per annum, and
the owner of Parcel 2 shall also bear all costs of collection, including
attorneys' fees.
3. The easements and covenants herein contained shall run with the land
and be binding upon all future owners of Parcel 1 and Parcel 2. Owners shall be
responsible only for the obligations which arise hereunder during the periods
of their ownership.
IN WITNESS WHEREOF, ▇▇▇▇ has caused this Declaration to be duly executed
as of the date first above written.
▇▇▇▇ COMPANIES US, INC.
By _____________________________________
Its Vice President
49
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this __ day of
__________, 1998, by ______________________ the ______________________ of ▇▇▇▇
COMPANIES US, INC., a Minnesota corporation, on behalf of said corporation.
_______________________________________
Notary Public
Subordination by Mortgagees
The undersigned, being the holder of the Mortgage on Parcel 2 which is
recorded in the office of the ▇▇▇▇▇▇ County Recorder as Document No. 2994228,
hereby agrees that the lien of said Mortgage shall be subordinate to the
easements and covenants contained in the foregoing Declaration.
CENTURY BANK NATIONAL ASSOCIATION
By _____________________________________
Its _________________________________
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this __ day of
__________, 1998, by ______________________ the ______________________ of
CENTURY BANK NATIONAL ASSOCIATION, a national banking association, on behalf of
said national banking association.
_______________________________________
Notary Public
2
50
The undersigned, being the holder of the Mortgages on Parcel 1 and Parcel
2 which are recorded in the office of the ▇▇▇▇▇▇ County Recorder as Document
Nos. 2994225 and 2994226, hereby agrees that the liens of said Mortgages shall
be subordinate to the easements and covenants contained in the foregoing
Declaration.
CITY OF ROSEVILLE, MINNESOTA
By: ____________________________________
Its Mayor
[SEAL]
And: ___________________________________
Its City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this __ day of
__________, 1998, by ______________________ the Mayor, and _____________________
the City Manager of the CITY OF ROSEVILLE, MINNESOTA, a municipal corporation,
on behalf of said municipal corporation.
_______________________________________
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ Companies US, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
3
51
EXHIBIT 2
PARCEL 2
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying southerly and
southwesterly of a line described as follows: Commencing at the northwest
corner of said Lot 4; thence South 00 degrees 00 minutes 00 seconds West,
assumed bearing, along the west line of said Lot 4 a distance of 89.34 feet to
the beginning of the line to be described; thence North 90 degrees 00 minutes
00 seconds East a distance of 188.87 feet; thence South 45 degrees 00 minutes
00 seconds East a distance of 99.58 feet to the easterly line of said Lot 4 and
said line there terminating.
ALSO
----
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, lying northerly of a line
described as follows: Commencing at the most northerly northwest corner of said
Lot 5; thence South 00 degrees 00 minutes 00 seconds West, assumed bearing,
along a west line of said Lot 5 a distance of 46.92 feet to the beginning of
the line to be described; thence North 90 degrees 00 minutes 00 seconds East a
distance of 265.37 feet to the northeasterly line of said Lot 5 and said line
there terminating.
52
EXHIBIT 3
EASEMENT PARCEL
That part of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, described as follows:
Commencing at the Northwest corner of said Lot 4; thence South 00 degrees 00
minutes 00 seconds West, assumed bearing, along the West line of said Lot 4 a
distance of 89.34 feet; thence North 90 degrees 00 minutes 00 seconds East a
distance of 13.50 feet to the actual point of beginning; thence North 00 degrees
00 minutes 00 seconds East a distance of 18.42 feet; thence North 90 degrees 00
minutes 00 seconds East a distance of 181.93 feet to the Northeasterly line of
said Lot 4; thence South 45 degrees 00 minutes 00 seconds East a distance of
102.69 feet to the Easterly line of said Lot 4; thence Southerly along said
Easterly line along a non-tangential curve concave to the East having a central
angle of 06 degrees 14 minutes 52 seconds and a radius of 325.00 feet for an arc
distance of 35.44 feet; thence North 45 degrees 00 minutes 00 seconds West, not
tangent to said curve, a distance of 88.90 feet; thence Westerly along a
tangential curve concave to the South having a central angle of 45 degrees 00
minutes 00 seconds and a radius of 28.50 feet for an arc distance of 22.38 feet;
thence South 90 degrees 00 minutes 00 seconds West, tangent to said curve, a
distance of 155.51 feet to its intersection with a line which bears South 00
degrees 00 minutes 00 seconds West from the point of beginning; thence North 00
degrees 00 minutes 00 seconds East a distance of 14.58 feet to the point of the
beginning.
