LEASE AGREEMENT
This LEASE AGREEMENT (hereinafter called "LEASE") made as of the
1st day of August, 1997, by and between: Lawin Enterprises, LLC, a Minnesota
Corporation (hereinafter called "Landlord"), and Advanced UroScience, Inc.
(hereinafter called "Tenant").
WITNESSETH
IN CONSIDERATION OF THE TERMS AND CONDITIONS IN THIS LEASE; the parties hereto
mutually agree and covenant as follows:
DATA SHEET
(1) PREMISES: The area set forth on Exhibit "A" hereto, and described
thereon, located in the Lawin Enterprises Building, in the Township of White
Bear Lake, State of Minnesota, Xxxxxx County, with a street address and suite
number of 0000 Xxxxxxx Xxxx, Xxxxx 000, Xx. Xxxx, Xxxxxxxxx 00000.
(2) TERM: Five (5) years, commencing on August 1, 1997, (hereinafter
referred to as the Commencement Date) and terminating on August 1, 2002,
(hereinafter referred to as the Termination Date).
(3) DELIVERY DATE: August 1, 1997.
(4) PERMITTED USE: The Premises shall be used by the Tenant solely for:
Office, Manufacturing and Distribution uses.
(5) TENANT NAME: Tenant shall operate and do business in the Premises and
all signs and advertising shall be under the trade name: Advanced UroScience,
Inc. Any signage displayed by Tenant shall be subject to prior approval of
Landlord, which shall not be unreasonably withheld.
(6) ANNUAL RENT: Tenant shall pay annual rent during the term of this
Lease as specified on Exhibit "B" Annual Rent. Payment of rent will be made in
equal monthly installments as provided in Article 3.
Tenant shall be responsible for all utilities charges related to the Premises.
(7) SECURITY DEPOSIT: Not applicable.
Each reference in this Lease to any of the data contained in this Data
Sheet shall be construed to incorporate the data stated under that title.
ARTICLE 1
DEMISED PREMISES
Landlord does hereby demise and lease to Tenant the premises shown on
Exhibit "A", hereto attached and described thereon and made a part hereof.
ARTICLE 2
TERM
TO HAVE AND HOLD for a Term beginning at the Commencement Date as set forth
on the Data Sheet of this Lease Agreement and continuing until the Termination
Date as set forth on said Data Sheet.
ARTICLE 3
RENTS, UTILITIES AND INTEREST
Tenant covenants and agrees to pay Landlord, without set-off, deduction or
demand, at the address set out in the heading of this Lease, or at such other
place as Landlord may designate in writing to Tenant, rental at the following
rates and times:
(a) Annual Rent: Tenant shall pay annually during the Term of this Lease
the sum specified on Exhibit "B" Annual Rent, which sum shall be payable in
equal monthly installments, on or before the first day of each month, in
advance.
(b) Other Charges; Utilities: Tenant shall pay utilities (including
heat, air-conditioning, gas, water, sewer and electricity) permitted to be
imposed against Tenant under any Article of this Lease concurrently with the
next succeeding monthly installment of Annual Rent following notice of the same,
unless a different time for such payment is specified in this Lease.
(c) Interest: Any amount due from Tenant to Landlord under this Lease
which is not paid when due shall bear interest at the highest legal rate from
the date due until paid; provided, however, the payment of such interest shall
not excuse or cure the default upon which such interest accrued. No interest
shall begin to accrue until ten (10) days after written notice by Landlord to
Tenant, and then only if Tenant has failed to pay such rent.
ARTICLE 4
CONSTRUCTION, IMPROVEMENTS
(a) Parking Facilities
Landlord shall provide reasonable parking space for Tenant's needs. Tenant
shall have use of twenty-five (25) parking spaces during Tenant's normal
business hours.
(b) Improvements
Tenant shall have the right to make leasehold improvements consistent with
its business. All improvements must be approved by the Landlord, which shall
not be reasonably withheld.
ARTICLE 5
DAMAGES
The Tenant shall have no claim whatsoever for damages against Landlord for
any delay in the date on which the premises shall be ready for occupancy for
Tenant.
ARTICLE 6
CONDITION OF PREMISES
(a) Tenant's taking of possession of the premises shall be conclusive
evidence of Tenant's acceptance thereof in good order and satisfactory
condition, unless Tenant gives Landlord notice of any problems or defects in
writing, within sixty (60) days after August 1, 1997.
(b) Landlord represents, warrants, and covenants that the premises and the
building are of good quality, comply with applicable laws and regulations, and
that all structural features and functional systems are in good condition.
ARTICLE 7
COMMON AREAS
(a) Landlord hereby grants to Tenant, its employees, agents, customers and
invitees, the non-exclusive right for and during the term of this Lease and any
renewal thereof to use the parking area, lunch room, and other common areas from
time to time constituted, such use to be common with Landlord and all tenants of
Landlord from time to time, its and their employees, agents, customers and
invitees, except when the same are being repaired.
(b) Landlord agrees to manage, operate and maintain during the term of
this Lease and any renewal thereof, all parking areas, roads, sidewalks,
landscaping, draining and the exterior of the building. The manner in which
such areas and facilities shall be maintained and the expenditures therefore
shall be at the sole discretion of Landlord. However, Landlord will maintain
such area in a first class manner. Tenant shall be responsible to pay its pro
rata share of all Common Area expenses. Tenant will be billed, on a monthly
basis, an estimated
Common Area expense and at the end of each year will receive a final xxxx or
refund for Common Area expense(s).
ARTICLE 8
TAXES
Tenant shall pay it's pro rata share of taxes and assessments against the
land, building or improvements to the building that are levied or assessed by
any lawful authority during each calendar year during the Term of this Lease.
ARTICLE 9
LANDLORD WARRANTIES AND LEASE SUBORDINATION
Landlord hereby warrants, so long as Tenant shall perform each and every
covenant to be performed by Tenant hereunder, Tenant shall have peaceful and
quiet use and possession of the Premises without hindrance on the part of the
Landlord or others, and Landlord shall warrant and defend Tenant in such
peaceful and quiet use and possession.
Landlord reserves the right to subordinate or sell this Lease at all times
to any other party the lien of any mortgage, or mortgages, trust deed or trust
deeds now or hereafter placed upon the premises, and Tenant covenants and agrees
to execute and deliver, upon demand, such reasonable further instruments
subordinating this Lease to the lien of any such mortgage, mortgages, trust deed
or trust deeds as shall be reasonably desired by Landlord, or any mortgagees or
proposed mortgagees or trustees under trust deeds. Landlord shall pay Tenant's
reasonable fees for legal review each time such subordination is requested.
Landlord shall furnish Tenant evidence that Tenant shall have the right to
remain in possession of the Premises under the terms of this Lease and Tenant's
quiet enjoyment of the Premises shall not be adversely affected, not
withstanding any default in any such mortgage, mortgages, trust deed or trust
deeds, or after foreclosure thereof, so long as tenant is not in default under
any of the covenants, conditions, and agreements contained in this lease.
Not withstanding anything herein contained to the contrary, Tenant's
obligations herein shall not be terminated or mitigated in any way by reason of
the foreclosure of any mortgage of the Landlord or its successor in title.
ARTICLE 10
REPAIR AND MAINTENANCE OF PREMISES
Except for any structural matters, roof and exterior walls, Tenant shall,
at Tenant's expense at all times keep the demised premises and appurtenances
thereto in good order, condition, and repair, clean and sanitary and safe,
including the replacement or maintenance of heating, ventilation, air
conditioning, electricals, plumbing, interior equipment, interior fixtures, and
all broken glass
(with glass of the same size and quality) and shall repair and replace all
doors, windows, frames and related items in a manner satisfactory to Landlord.
ARTICLE 11
DAMAGE TO PREMISES
In case the premises are damaged by fire, explosion or other casualty or
occurrence to the extent of twenty-five percent (25%) or less of the insurable
value of the premises, the damage shall promptly be repaired by Landlord at
Landlord's expense in no event longer than 90 days after the casualty event. In
the event the premises shall be damaged to the extent of more than twenty-five
(25%) of the insurable value, or the building of which the premises are a part
is damaged to the extent of twenty-five (25%) or more of the insurable value,
Landlord may elect either to repair or rebuild the premises or the building or
to terminate this Lease upon giving notice of such election in writing to Tenant
within thirty (30) days after the happening of the event causing the damage.
Tenant shall have the same right to elect termination of this Lease. If the
casualty or the repairing or rebuilding shall render the premises untenantable
in whole or in part, a proportionate abatement of the minimum annual rent shall
be allowed from the date when the damage occurred until the date when the
premises are again made tenantable, or until the effective date of termination
as herein provided, said abatement to be computed on the basis of the relation
which the square foot area of the space rendered untenantable bears to the
aggregate square footage of area of the premises. Landlord shall take
reasonable steps to promptly repair all damage. Tenant may elect to terminate
this Lease if repairs are not completed within ninety (90) days after the
casualty event.
ARTICLE 12
TRADE FIXTURES
All trade fixtures owned by Tenant and installed in the Premises shall
remain the property of Tenant and shall be removable from time to time and also
at the expiration of the Term, provided Tenant shall not, at such time, be in
default under any covenant or agreement contained herein; and provided further
that Tenant repair any damage to the Premises caused by the removal of said
fixtures.
ARTICLE 13
LIENS
Tenant agrees to promptly pay for any work done or material furnished in or
about the premises and will not permit or suffer any lien to be attached to the
premises and shall promptly cause any such lien or any claim therefore to be
released; provided however, that in the event Tenant contests any such claim,
Tenant agrees to indemnify and secure Landlord to Landlord's satisfaction.
Tenant shall have no authority or power, express or implied, to create or cause
any lien, charge or encumbrance of any kind against the Premises.
ARTICLE 14
LAWS, ORDINANCES AND GENERAL CONDITIONS
Tenant agrees to promptly comply with all laws, ordinances, orders and
regulations affecting its business and the premises and the cleanliness, safety,
operation and use thereof. Tenant also agrees to comply with the
recommendations of any insurance company, inspection bureau or similar agency
with respect to the premises.
Tenant agrees not to: (a) permit any unlawful or immoral practice to be
carried on or committed on the premises; (b) make any use or allow the
premises to be used in any manner or for any purpose that might invalidate or
increase the rate of insurance thereof: (c) keep or use or permit to be kept
or used on said demised premises any inflammable fluids or explosives without
the written permission of the Landlord first obtained; (d) use the premises for
any purpose whatsoever which might create a nuisance or injure the reputation of
the leased premises or of the premises; (e) deface or injure the building
premises; (f) overload the floors; or (g) commit or suffer any waste. Tenant
agrees to pay as additional rent any increase in cost of insurance on the
building or premises to Landlord or the owner of same as a result of any
unauthorized use of the premises by Tenant, but such payment shall not
constitute in any manner a waiver by Landlord of its right to enforce all of the
covenants and provisions of this Lease.
Tenant agrees not to install any electrical equipment that overloads lines
in the premises. In connection with the installation or use of the electrical
equipment Tenant shall at Tenant's own expense make from time to time whatever
changes are necessary to comply with the requirements of the insurance
underwriters, governmental authorities, or of insurance inspectors designated by
Landlord. Tenant agrees not to use any electrical equipment that contains a
heating element unless same is connected and operated in compliance with the
underwriters' specifications.
Landlord reserves the right at any time to change the name of the building
in which the leased premises are located and to change the address or
designation of the leased premises.
ARTICLE 15
INSURANCE
(a) Tenant agrees to carry during the term hereof public liability
insurance for the premises written by a company satisfactory to Landlord
providing coverage in the minimum amount of Two Hundred Thousand Dollars
($200,000.00) against liability for injury to or death of any one person and Two
Hundred Thousand Dollars ($200,000.00) against liability arising out of any one
accident or occurrence, and also Two Hundred Thousand Dollars ($200,000.00)
against liability arising out of any property damage; Tenant shall also provide
property insurance upon the demised premises in an amount not less than Two
Hundred Thousand Dollars ($200,000.00); said insurance shall include Landlord,
its agents, beneficiaries and employees as additional insured parties and shall
provide that Landlord shall be given a minimum of ten (10) days notice by the
insurance company prior to cancellation, termination or change of such
insurance. Upon request by Landlord, Tenant shall provide Landlord with copies
of the policies or certificates evidencing that such insurance is in full force
and effect and stating the terms thereof.
ARTICLE 16
INDEMNIFICATION
Except for matters related to Landlord's negligence or defects in the
building, Tenant agrees to indemnify, defend and hold harmless Landlord, its
agents, beneficiaries and employees, from and against all claims, liabilities,
losses, damages and expenses for injury to or death of any person or loss of or
damage to property in or upon Premises and including the person and property of
Tenant, its employees, agents, invitees, licenses or others, it being understood
and agreed that all property kept, stored or maintained in or upon the premises,
shall be at the risk of Tenant.
If any damages to the Premises or other property of Landlord results from
any act or neglect of Tenant, its agents or employees, Landlord may at its
option repair such damages, and Tenant shall promptly on demand reimburse
Landlord for the cost thereof to the extent costs are not covered by insurance.
The provisions of this Article shall not be deemed to exempt Landlord from
liability for negligence of Landlord, its agents, servants or employees.
ARTICLE 17
CONDEMNATION
If the premises or any substantial part thereof shall be taken under
eminent domain proceedings, either party may at its option terminate this Lease
as of the date when possession is taken. All damages awarded for such taking
shall belong to and be the property of Landlord.
The Tenant shall have no claim against the Landlord by reason of such
taking or termination but Tenant may pursue an award for its own loss from the
taking authority.
ARTICLE 18
ASSIGNMENT AND SUBLETTING
Tenant shall not sublet the premises in whole or in part and shall not
sell, assign, mortgage, pledge or in any manner transfer this Lease or any
interest therein without first obtaining, in writing, the consent of Landlord,
which shall not be unreasonably withheld.
ARTICLE 19
ACCESS TO PREMISES
Tenant agrees that Landlord, its agents, employees or servants or any
person authorized by Landlord may enter the premises at any reasonable time
during business hours for the purpose of inspecting the condition of the same
and to make such repairs, additions, improvements, changes or alterations to the
premises or the building of which they are a part as Landlord may elect to make,
and exhibit the same to prospective purchasers of the building in which the
premises are contained so long as Tenant is given reasonable advance notice of
such entry, Tenant's quiet enjoyment of the premises and normal conduct of its
business are not interrupted, and confidentiality and security of Tenant's
business are protected.
ARTICLE 20
COST, EXPENSES, ATTORNEY'S FEES
In case Landlord shall, without fault on its part, be made a party to any
litigation commenced by or against Tenant, the Tenant shall pay all costs,
expenses and reasonable attorneys' fees incurred or paid by Landlord in
connection with such litigation; Tenant shall also pay all costs, expenses and
reasonable attorneys' fees that may be incurred or paid by Landlord in enforcing
the covenants and agreements of this Lease.
ARTICLE 21
DEFAULT OF TENANTS
It is agreed that (i) if Tenant vacates or abandons the premises or permits
the same to remain vacant or unoccupied for a period of sixty (60) days, and no
business is conducted or material is stored or rent is paid; or (ii) if the rent
or any part thereof shall be unpaid for five (5) days after written notice
thereof to Tenant, or (iii) if default shall be made in the prompt and full
performance of any covenant, condition or agreement of this Lease to be kept
more than sixty (60) days) after written notice to Tenant, specifying such
default or breach of performance, or (iv) if any proceedings shall be commenced
to declare Tenant bankrupt or insolvent or to obtain relief under any chapter or
provision of any bankruptcy or debtor relief law or act to reduce or modify
Tenant's debts or obligations or to delay or to extend the payment thereof, or
if any assignment of
Tenant's property be made for benefit of creditors, or if a receiver or trustee
be appointed for Tenant or Tenant's property or business, then Landlord may
treat the occurrence of any one or more of the foregoing events as a breach of
this Lease and thereupon at its option without further notice or demand of any
kind to Tenant or any other person, may have, in addition to all other legal or
equitable remedies, the following described remedies:
(a) Landlord may elect to terminate this Lease and the term created hereby
in which event Landlord forthwith may repossess the Premises and Tenant shall
pay at once to Landlord as liquidated damages a sum of money equal to the lesser
of (i) the Annual Rent plus Tenant's share of real estate taxes and Common Area
expenses provided in this Lease to be paid by Tenant to Landlord for the
remaining months of the Lease term, or (ii) the amount of Annual Rent and
Tenant's share of real estate taxes and Common Area expenses provided in this
Lease to be paid by Tenant to Landlord for the next 18 months following the date
of Landlord's termination.
(b) Landlord may elect to terminate Tenant's right of possession without
termination of this Lease in which event Tenant agrees to surrender possession
and vacate the Premises immediately and deliver possession thereof to Landlord.
Upon and after entry into possession without terminating the Lease, Landlord
shall be obligated to relet all or any part of the Premises for such rent and
upon such terms and to such persons, firm or corporation and for such period or
periods as are reasonable to mitigate Tenant damages. If the consideration
collected by Landlord upon any such reletting for Tenant's account is not
sufficient to pay the rental reserved in this Lease, Tenant agrees to pay to
Landlord the deficiency upon demand.
If Landlord fails to perform any obligations in connection with this Lease
and such default is not cured within ninety (90) days after notice from Tenant
to Landlord and Tenant is forced to vacate the premises, then Tenant at its
option may elect to do any or all of the following:
(c) terminate this lease and have no further liability to Landlord, if
such termination is prior to August 1, 2002; or
(d) remedy or attempt to remedy such default by any appropriate
action and collect reimbursement from Landlord, only by court action and not by
offset against the rent, for all costs of Tenant incurred in connection with
such default, including Tenant's attorney's fees whether or not action is
formally undertaken.
ARTICLE 22
SURRENDER OF PREMISES
Tenant, upon expiration or termination of this Lease, either by lapse of
time or otherwise, agrees peaceably to surrender to Landlord the premises,
including the alterations, additions, improvements, changes and fixtures other
than Tenant's movable trade fixtures, in broom-clean condition and in good
repair, except for acts of God and ordinary use and wear and damage by fire;
provided, however, that Tenant's alterations, additions and improvements to the
Premises shall be removed at Tenant's expense upon written request by Landlord.
ARTICLE 23
UNPERFORMED COVENANTS OF TENANT
In the event Tenant shall fail to comply with and perform any of the
covenants, conditions or agreements herein contained on Tenant's part to be
performed after notice and the opportunity to cure as provided in this Lease,
Landlord shall have the right (but not be obligated) to perform any such
covenants, conditions or agreements, and Tenant agrees to pay to the Landlord on
demand, as additional rent hereunder, a sum equal to the amount reasonably
expended by Landlord in the performance of such covenants, conditions or
agreements.
ARTICLE 24
MISCELLANEOUS
(a) Notices: Notices and demands required or permitted to be given
hereunder may be given by personal delivery to either party or any officer or
other representative of the party to be notified, or may be sent by certified
mail addressed, postage prepaid, if to Landlord, to it at the address at which
the last rental payment was made or required to be made, and if to Tenant,
addressed to Tenant at the premises, or such other address as was last specified
respectively in writing by one party to the other. Notices and demands shall be
deemed to have been given when mailed or if made by personal delivery, then upon
such delivery.
(b) Remedies: All rights and remedies of Landlord and Tenant herein
created or otherwise existing at law are cumulative and the exercise of one or
more rights or remedies shall not be taken to exclude or waive the right to the
exercise of any other. All such rights and remedies may be exercised and
enforced concurrently and whenever and as often as Landlord and Tenant,
respectively, deem desirable.
(c) Successors and Assigns: All covenants, promises, conditions,
representations and agreements herein contained shall be binding upon, apply and
insure to the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
(d) Liability: If two or more individuals, corporations, partnerships, or
other business associations (or any combination of two or more thereof) shall
sign this Lease as Tenant, the liability of each such individual, corporation,
partnership, or other business association to pay Rent and perform all other
obligations hereunder shall be deemed to be joint and several. In like manner,
if the Tenant named in this Lease shall be a partnership or other business
association, the members of which are by virtue of statute or general law,
subject to personal liability, the liability of each such member shall be deemed
to be joint and several. Only Tenant's corporate signature shall be required on
this Lease.
(e) Representations: It is understood and agreed by Tenant that Landlord
and Landlord's agents have made no representations or promises with respect to
the premises or the making or entry into this Lease except as in this Lease
expressly set forth and that no claim or liability, or cause for termination
shall be asserted by Tenant against Landlord for, and landlord shall not be
liable by reason of breach of any representations or promises not expressly
stated in this Lease.
(f) Waiver: The failure of Landlord to insist upon strict performance by
Tenant of any of the covenants, conditions and Agreements of this Lease shall
not be deemed a waiver of any of Landlord's rights or remedies and shall not be
deemed a waiver of any subsequent breach or default by Tenant in any of the
covenants, conditions and agreements of this Lease.
(g) Hold Over: Tenant shall pay to Landlord, as liquidated damages, the
same amount of rent specified in Exhibit "B", as a month-to-month Tenant for
the time Tenant retains possession of the premises or any part thereof after
termination of the Lease by lapse of time or otherwise; or, if and only if
Landlord serves written notice upon Tenant of Landlord's election thereof, such
holding over shall constitute renewal of this Lease for one (1) year.
Landlord's acceptance of any rent after holding over begins does not renew this
Lease. This provision does not waive Landlord's rights to re-entry or any other
right hereunder.
(h) Interpretation: The time of the performance of all the covenants,
conditions and agreements of this Lease is of the essence of this Agreement.
Nothing herein shall be construed so as to constitute a joint venture or
partnership between Landlord and Tenant. The captions of the several articles,
contained herein are for convenience only and do not define, limit, describe or
construe the contents of such articles. No amendments or modifications of or
supplements to this Lease, shall be effective unless in writing and executed by
Landlord and Tenant. If any provision of this Lease is held to be invalid, such
invalid provision shall be deemed to be severable from and shall not effect the
validity of the remainder of this Lease.
(i) Bankruptcy: The bankruptcy of Landlord (whether voluntary or
involuntary) shall not affect the rights of Tenant in and to the Premises
pursuant to this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Lease
as of the day and year above written.
LANDLORD:
LAWIN ENTERPRISES, LLC
By /s/ Xxxxxxx Xxxxx
-----------------------
TENANT:
ADVANCED UROSCIENCE, INC.
By /s/ Xxxxxx Xxxxxx
-----------------------
EXHIBIT A
DESCRIPTION OF PREMISES
(See attached)
EXHIBIT B
ANNUAL RENT
Area Cost per Sq. Ft. Square Feet Total
----------------------------------------------------------------
Office $4.30 sq. ft. 5,250 $22,575.00
Warehouse $4.30 sq. ft. 300 $ 1,290.00
Production $5.40 sq. ft. 1,800 $ 9,720.00
Common Area $7.00 sq. ft. 300 $ 2,100.00
----- ----------
TOTAL 7,650 $35,685.00
Pro Rata Share of Real Estate Taxes (approximately 14%)
(estimated at $2.50 sq. ft. for 1998)
Pro Rata Share of Common Area Maintenance Expense (approximately 14%)
(estimated at $1.00 sq. ft. for 1997)
Each Company/Tenant in the building will be responsible for the cleaning,
repairs and maintenance services of its entire rented space.
Rent will increase according to schedule below:
Year 2 2.5%
Year 3 3.0%
Year 4 3.5%
Year 5 4.0%
EXHIBIT A-1
DIAGRAM OF FLOOR PLAN
EXHIBIT A-2
DIAGRAM OF FLOOR PLAN
