AGREEMENT OF LEASE
ENERGY PARK PLACE BUILDING
THIS AGREEMENT OF LEASE ("Lease") is made and entered into as of SEPTEMBER
15, 1993 by and between the PORT AUTHORITY OF THE CITY OF SAINT XXXX, a public
body corporate and politic, created pursuant to Chapter 469 of Minnesota
Statutes ("Lessor") , and ENDOCARDIAL THERAPEUTICS, INC., A MINNESOTA
CORPORATION, ("Tenant").
BACKGROUND
Lessor owns a mixed use building located at 0000 Xxxxxx Xxxx, Xx. Xxxx,
Xxxxxxxxx, commonly known as the Energy Park Place Building. Lessor desires to
lease to Tenant a portion of the Energy Park Place East Building hereinafter
described, and Tenant desires to lease the same from Lessor.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. SUBMISSION OF LEASE. The submission of the Lease for examination does
not constitute a reservation of or option for the Leased Premises, and this
Lease shall become effective as a Lease only upon execution and delivery thereof
by Lessor and Tenant, and Guarantor, if any.
2. THE LEASED PREMISES. Lessor leases to Tenant, and Tenant rents of and
from Lessor, Unit NO. 110E of the Energy Park Place East Building ("Building") ,
consisting of approximately 12,517 rentable square feet (as defined herein) as
described and shown on Exhibit A, attached hereto and made a part hereof. Said
portion of the Building is referred to herein as the "Leased Premises".
3. TERM. The term of this Lease shall be for a period of THREE (3) years
and zero (0) months commencing OCTOBER 1, 1993, or the date of Tenant occupancy,
whichever occurs earlier, and
terminating SEPTEMBER 30, 1996, unless terminated earlier as provided herein.
4. BASE RENT AND SECURITY DEPOSIT. Commencing OCTOBER 1, 1993,
Tenant shall pay to Lessor, payable at the address designated in this Lease for
service of notice upon Lessor, or at such other place as Lessor may designate in
writing to Tenant, as Base Rent, exclusive of any other charge to be paid by
Tenant, the following, payable in equal consecutive monthly installments, in
advance, on the first day of each month through and including SEPTEMBER 30,
1994, the sum of EIGHT THOUSAND EIGHTY-THREE AND 90/100 ($8,083.90) DOLLARS
GROSS RENT plus escalations for the entire term over 1993 base year real estate
taxes, common area maintenance and heating, ventilation, air-conditioning, water
supply of Five and 25/100 ($5.25) Dollars. Tenant is also responsible for the
entire term for separately-metered electrical, garbage and janitorial.
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Commencing October 1, 1994 and continuing through and including September 30,
1995 the monthly sum of Nine Thousand One Hundred Twenty-Six and 98/100 Dollars
($9,126.98) gross plus escalations over 1993 base year.
Commencing October 1, 1995 and continuing through and including September
30, 1996 the monthly sum of Ten Thousand One Hundred Seventy and 06/100 Dollars
($10,170.06) gross plus escalations over 1993 base year.
Lessor and Tenant mutually agree that in the event Tenant takes occupancy
of Premises on a day other than the first day of the Term, as defined in Article
3, Tenant shall pay a pro rated amount of rent for said partial month. The
above monthly rental rates are based on a gross rental rate of $8.75 per square
foot rentable per annum plus escalations, and a presumed 12,517 square foot
rentable area. Upon completion of the improvements, Lessor shall have the space
measured and the rental payment will, if necessary, be adjusted up or down to
reflect the actual rentable square footage occupied by Tenant.
Upon the execution of this Lease, Tenant shall deposit with Lessor a cash
security deposit in the amount of Two Thousand Five Hundred Twenty-Seven and
58/100 Dollars ($2,527.58) and by January 1, 1994 the additional amount of Four
Thousand Nine Hundred Six and 48/100 Dollars ($4,906.48). The amount of One
Thousand Two Hundred and no/100 Dollars ($1,200.00) is on deposit as of August
31, 1993 with the Lessor and shall remain on deposit in addition to the amounts
above. Provided Tenant is not in default beyond the time to cure, at the end of
month twenty-four, this deposit will be applied to Tenant's next month's rent.
5. LESSOR'S WORK. Lessor shall construct, or cause to be constructed,
all improvements described as Lessor's Work on Exhibit B, attached hereto and
made a part hereof ("Lessor' s Work") . Lessor, or its contractor or
contractors, shall commence and complete Lessor's Work as soon as may be done
practically taking into account required approvals and delays beyond the control
of Lessor. Lessor, or its contractor or contractors, shall not be required to
perform any construction or make any installations which are not set forth on
Exhibit B.
All contracts entered into for any such improvements and for Tenant's Work
set forth below shall require the contractor to furnish to Lessor a performance
and payment bond in accordance with Minnesota Statutes Section 574.26.
6. TENANT'S WORK. Tenant, at its cost and expense, and with no right of
reimbursement from Lessor, shall do all work and make all installations
("Tenant's Work") necessary for Tenant's use and occupancy of the Leased
Premises.
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All space planning, pricing plans or construction drawings are at Tenant's
expense. The entire lunchroom and entire warehouse are not air-conditioned.
Tenant's intent is to air-condition a portion of the warehouse and convert some
warehouse area to office. Tenant is aware that they must abide by Energy Park
HVAC regulations. Tenant must separate the HVAC from any of the neighboring
Suites. Tenant will be required to separately meter and electrically subdivide
the Suite at Tenant's cost. Lessor reserves the right to electrically subdivide
Suite with thirty (30) days prior notice to Tenant and charge Tenant for said
work.
7. OPERATING EXPENSES. The Annual Rent shall consist of a Base Rent as
defined in Paragraph 3 and Operating Expenses. Tenant shall pay Tenant's share
of Operating Expenses plus a specified Base Rent.
The term "Operating Expenses" hereby is defined to mean all expenses
incurred or paid in connection with the Building and expenses which for federal
income tax purposes may be deducted as an expense, including, but not limited
to, the following: all real estate taxes and all installments of assessments,
and any taxes in lieu thereof, which may be levied upon or assessed against the
Building and its Common Areas due and payable during each lease year, whether or
not Lessor is required to pay the same; rental taxes; all insurance which Lessor
deems necessary or advisable to obtain and maintain in connection with the
Building and its Common Areas, and all property and interest of Lessor in the
Building and its Common Areas; permit and inspection fees; electricity, except
for electrical service which is separately metered to the Leased Premises and
shall be paid by Tenant; heating; air conditioning; water; sewage usage or
rental, utilities, supplies and materials; labor; maintenance and repairs;
landscaping; janitorial and security services for Common Areas only;
professional fees reasonably related to the operation of the Building's Common
Areas; reasonable fees for management of the Building's Common Areas in an
amount which is within the parameters which is generally accepted in the
Metropolitan St. Xxxx-Minneapolis area for quality management of a comparable
facility. Excluded from operating Expenses for purposes of this paragraph are
capital improvements, depreciation, and leasing commissions.
Each year (subject to change by Lessor upon notice to Tenant) , Lessor
shall make a determination of the Operating Expenses incurred on behalf of
all its tenants for the year ending December 31. The total Operating Expenses
for such year shall be divided by the total Rentable Square Feet of Lessor's
total premises to arrive at a total operating expense per Rentable Square
Foot. Tenant shall pay to Lessor an amount equal to the per Rentable Square
Foot operating expense figure multiplied by the Rentable Square
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Feet of the herein Leased Premises, plus the cost of providing any special
operating expenses to Tenant which are not provided to all other tenants.
Lessor shall provide to Tenant a statement of Tenant's proportionate share
of Operating Expenses after the end of each calendar year and Tenant shall pay
the entire amount shown to be due and owing by Tenant within thirty (30) days
after receipt of such statement. Correspondingly, Lessor shall refund to Tenant
or credit to Tenant's obligations next due under this Lease the amount of any
overpayment within thirty (30) days after delivery of said statement to Tenant
by Lessor. However, Lessor reserves the right to estimate Tenant's
proportionate share of the Operating Expenses for any current calendar year, and
Tenant shall pay monthly to Lessor one-twelfth (1/12) of the amount so
estimated.
Lessor may employ, engage, or contract with or purchase merchandise or
other property from, a person or entity with whom or in which Lessor has a
direct or indirect financial interest, provided, Lessor deals with such person
or entity in good faith and at rates customary in the industry.
8. USE OF LEASED PREMISES. Tenant, and its approved sublessee, shall
use the Leased Premises for general office purposes, light manufacturing and
shipping of medical devices, only.
In the event the particular use of the Leased Premises increased the
premium rate for insurance carried on the Building, Tenant shall pay Lessor,
upon demand, the amount of such premium increase. It is agreed that use of the
Leased Premises for general office purposes does not so increase said premium
rate.
Tenant shall not use, occupy, suffer or permit any use of the Leased
Premises which would (a) violate any law, ordinance, or regulation; (b)
constitute a nuisance; (c) result in excessive noise or emission of unpleasant
odor; (d) violate, suspend or void any policy or policies of insurance insuring
Lessor or the Leased Premises.
Tenant shall not permit the use, generation, release, manufacture,
refining, production, processing, storage, or disposal of any Hazardous
Substance on, under, or about the Leased Premises, or the transportation to or
from the Leased Premises of any Hazardous Substance, except as specifically set
forth in this Lease.
For purposes of this Lease, "Hazardous Substance" means any substance
designated pursuant to the Clean Water Act, Title 33 U.S.C. Section 1321, any
element, compound, mixture, solution or substance designated pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, Title
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42 U.S.C. Section 9602, any hazardous waste having the characteristics
identified under or listed pursuant to the Solid Waste Disposal Act, Title 42,
U.S.C. Section 1317(a), any hazardous air pollutant listed under Section 112 of
the Clean Air Act, Title 42 U.S.C. Section 7412, any imminently hazardous
chemical substance or mixture with respect to which the Administrator of the
Environmental Protection Agency has taken action pursuant to Section 7 of the
Toxic Substances Control Act, Title 15 U.S.C. Section 2606 and any "Hazardous
Waste", "Hazardous Substance," "Pollutant or Contaminant" as defined in the
Minnesota Environmental Response and Liability Act, Minnesota Statutes, Section
115B.02. The term also includes, but is not limited to polychlorinated
biphenyls, asbestos, urea formaldehyde or related substances.
Tenant shall, at Tenant's own expense, comply with all laws regulating the
use, generation, storage, transportation, or disposal of Hazardous Substances
("Laws").
Tenant shall, at Tenant's own expense, make all Submissions to, provide all
information required by, and comply with all requirements of all governmental
authorities (the "Government") under the Laws.
Should any Government or any third party demand that a cleanup plan be
prepared and that a clean-up be undertaken because of any deposit, spill,
discharge, or other release of Hazardous Substances that occurs during the term
of this Lease, at or from the Leased Premises, or which arises at any time from
Tenant's use or occupancy of the Leased Premises, then Tenant shall, at Tenant's
own expense, prepare and submit the required plans and all related bonds and
other financial assurances; and Tenant shall carry out all such cleanup plans.
Tenant shall promptly provide all information regarding the use,
generation, storage, transportation, or disposal of Hazardous Substances that is
requested by the Lessor. If Tenant fails to fulfill any duty imposed under this
Paragraph 8 within a reasonable time, the Lessor may do so and, in such case,
Tenant shall cooperate with the Lessor in order to prepare all documents the
Lessor deems necessary or appropriate to determine the applicability of the Laws
to the Leased Premises and Tenant's use thereof, and for compliance therewith,
and Tenant shall execute all documents promptly upon the Lessor's request. No
such action by the Lessor and no attempt made by the Lessor to mitigate damages
under any law shall constitute a waiver of any of Tenant's obligations under
this Paragraph 8.
Tenant shall indemnify, defend, and hold harmless the Lessor, the manager
of the Building, and their respective officers, directors, beneficiaries,
shareholders, partners, agents, and employees from all fines, suits, procedures,
claims, and actions of every kind, and all costs associated therewith (including
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attorneys, and consultants' fees) arising out of or in any way connected with
any deposit, spill, discharge, or other release of Hazardous Substances that
occurs during the term of this Lease, at or from the Leased Premises, or which
arises at any time from Tenant's use or occupancy of the Leased Premises, or
from Tenant's failure to provide all information, make all submissions, and take
all steps required by the Government under the Laws and all other environmental
laws.
Lessor warrants that there are no "Hazardous Substances" on the premises at
the onset of this Lease. The Lessor is responsible f or removing any existing
Hazardous Substances which are discovered to have been at the rental location
prior to the onset of this Lease. This Lessor's responsibility is in effect
regardless of the reason they need to be removed. The Tenant is responsible
only for Hazardous Substances that the Tenant brings onto the premises.
Tenant's obligations and liabilities under this Paragraph 8 shall survive
the expiration of this Lease.
9. USE OF COMMON AREAS. Tenant shall have the non-exclusive use, in
common with others entitled to use the same, of the Common Areas of the
Building. "Common areas" shall include, without limitation, access facilities,
walkways, stairways, elevators, hallways, lobbies, public restrooms, parking
lots, and sidewalks.
10. RULES AND REGULATIONS. Tenant's exclusive use of the Leased Premises
and non-exclusive use of the Common Areas shall be subject to the terms and
conditions of this Lease; all reasonable rules and regulations prescribed by
Lessor from time to time with respect to the operation of the Building and its
Common Areas. Attached as Exhibit 'IC" are the Rules and Regulations.
11. ACCEPTANCE OF THE LEASED PREMISES. The occupancy by Tenant of the
Leased Premises,, or any part thereof, shall constitute an acknowledgment by
Tenant, and shall be conclusive evidence, that the Leased Premises are in the
condition called for by this Lease and that Lessor, or its contractor or
contractors, has performed all of Lessor's Work, except for such items which are
not completed and do not conform to the requirements of Lessor's Work, and as to
which Tenant shall have given written notice to Lessor within sixty (60) days
after the commencement date and except for latent defects. As to items about
which Tenant has notified Lessor, to the extent such items are Lessor's
responsibility, Lessor, or its contractor or contractors, shall proceed
expeditiously and diligently to complete any such items which are not completed
and/or correct any items which do not conform to Lessor's Work. As a condition
thereof, Tenant shall allow Lessor, its employees or contractors, to enter the
Leased Premises to perform any remedial work required to be performed, and shall
cooperate with Lessor, its employees or contractors, so that such remedial work
can be accomplished as quickly as is reasonable
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under the circumstances, and with the least amount of interruption to the
business of Tenant. Such items, if any, remaining to be completed or corrected
shall not entitle Tenant to refuse to take possession of the Leased Premises,
and the term shall commence on the commencement date, provided, the items
remaining to be completed or corrected are not substantial.
12. REQUIREMENT PAYMENTS ARE "RENT"; INTEREST ON LATE PAYMENTS; BAD
CHECK CHARGE. In addition to Annual Rent, all other payments required to be
paid by Tenant under the provisions of this Lease shall be deemed to be and
shall become additional rent, whether or not the same be designated as such.
All provisions dealing with abatement of rent shall be construed to permit
the abatement of annual Base Rent and additional rent, except to the extent
specifically provided to the contrary.
All payments required to be paid by Tenant under the provisions ofthis
Lease shall bear interest at a rate of eighteen percent (18%) per annum if
Tenant is a corporation, or such lower rate required or higher rate allowed
by said statute, as amended, if Tenant is other than a corporation,
commencing five (5) days after the due date of each payment and continuing
until the date actually paid by Tenant.
13. UTILITIES AND SERVICES. Except on Sundays and holidays, and
provided Tenant is not in default under any of the terms and conditions of
this Lease, Lessor shall furnish such heat and air conditioning in and about
the Leased Premises as shall be necessary for the comfortable use and
occupancy of the Leased Premises by Tenant's employees during customary
business hours for the use set forth in Paragraph 8. "Customary business
hours" hereby are defined to mean 7:00 a.m. to 7:00 p.m., Monday through
Friday, and 9:00 a.m. to 1:00 p.m. on Saturdays. Lessor shall furnish such
electricity, water, sewage usage or rental, and elevator service as shall be
necessary for the comfortable use and occupancy of the Leased Premises for
the use set forth in Paragraph 8. The expenses incident to the furnishing of
such utilities and services shall be operating expenses for the purposes of
Paragraph 7, unless separately metered to and paid by Tenant.
Failure to furnish such utilities and services by reason of emergency,
breakdowns, the necessity for repairs or improvements, fire, other casualty,
accident, riot, strike, act of God, or by any cause beyond Lessor's control,
shall not: (a) be construed as an eviction of Tenant; (b) result in abatement
of rent or other charges; (c) in any way render Lessor liable for damages to
person or property incurred by Tenant or any other person or entity by reason
of such failure; or (d) release Tenant from the prompt fulfillment of any of
its agreements under this Lease.
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If Lessor provides additional electrical power to enable Tenant to operate
any heat generating machines and equipment, computers, or any other types of
machines and equipment requiring additional electrical power, or if Lessor
provides any other utility which is in excess of that contemplated for the use
set forth in Paragraph 3 at the inception of this Lease, Tenant shall pay the
cost thereof on a monthly basis to Lessor. Furthermore, Lessor shall not be
required to provide any additional heat or air conditioning as a result of use
of process equipment by Tenant. Any additional costs for heat or air
conditioning necessary because of the use of process equipment by Tenant shall
be borne by Tenant.
14. RELEASE OF LESSOR; INDEMNIFICATION OF LESSOR. Personal property of
Tenant of any kind that may be on or at the Leased Premises shall be at the
sole risk of Tenant, or those claiming through or under Tenant. Lessor shall
not be liable to Tenant, or to any other person or entity: for any personal
injury or property damage occurring in, on, or about the Leased Premises; for
any negligence on the part of Tenant, its agents, contractors, licensees,, or
invitees; or for any nuisance resulting from the use of the Leased Premises
by Tenant, its agents, contractors, licensees, or invitees, except where
those acts are intentional. Tenant shall indemnify and save harmless Lessor
against all liabilities, damages, claims, fines, penalties, costs and other
expenses, including reasonable attorneys' fees (collectively "Indemnified
Liabilities") , which may be imposed upon, incurred by, or asserted against
Lessor by reason of the following:
(a) Any use of the Leased Premises or any part thereof by Tenant, its
agents, contractors, licensees, or invitees.
(b) Any personal injury, death, or property damage occurring in, on,
or about the Leased Premises.
(c) Any breach or default on the part of Tenant in the performance of
any covenant or agreement on the part of the Tenant to be performed pursuant
to the terms of this Lease, including, without limitation, any claims arising
out of or any way related to the Americans with Disability Act of 1992, 104
Stat. 327 (July 26, 1992).
In the case that any action or proceeding is brought against the Lessor or
any of its agents or assigns by reason of any claim identified in this Section
13, the Tenant shall, upon notice from Lessor, resist or defend such action or
proceeding by counsel reasonably satisfactory to Lessor. Said indemnification
shall not include claims resulting from the gross negligence of Lessor, its
agents or employees.
15. WAIVER OF SUBROGATION. Lessor waives its right of subrogation for
damage to the Building of which the Leased Premises are a part, the contents
therein, loss of use thereof, and/or loss
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of income. Tenant waives its right of subrogation for damage to property in
the Leased Premises, loss of use thereof, loss of income and/or accounts
receivable. Prior to the commencement date, and as often as may be
necessitated thereafter due to change in insurance, Tenant shall provide to
Lessor acknowledgment by Tenant's insurer or insurers of the foregoing waiver
of its right of subrogation; provided, however, the failure by Tenant to
provide such acknowledgment shall not negate Tenant's waiver of its right of
subrogation.
16. CARE OF BUILDING AND COMMON AREAS. Lessor, at Lessor's cost and
expense, shall make all necessary repairs to the foundation, structural
components of exterior walls, structural interior walls, structural beams,
structural columns and structural members. The foregoing to the contrary
notwithstanding, but subject to the waiver of subrogation, any damage to any of
the items which are Lessor's responsibility pursuant to the provisions of this
paragraph caused by any act or negligence of Tenant, its employees, agents,
invitees, licensees, or contractors, shall be repaired or replaced promptly by
Tenant, at its sole cost and expense.
17. CARE OF LEASED PREMISES BY TENANT. Tenant shall maintain the Leased
Premises in a clean, sanitary and safe condition; and shall maintain the Leased
Premises in as good condition and repair as they were in at the commencement of
the term of this Lease, reasonable wear and tear excepted. If after ten (10)
days' notice and opportunity to cure, Tenant fails to keep and preserve the
Leased Premises in the state of condition required by the provisions of this
Lease, Lessor, at its option, may put or cause the same to be put in the
condition and state of repair agreed upon, and in such case, Tenant, on demand,
shall pay the costs thereof plus an amount equal to fifteen percent (15%) of
such expenditures for overhead and supervision.
18. ALTERATIONS AND IMPROVEMENTS BY TENANT. Subsequent to Tenant's Work,
Tenant shall not make any changes, additions, and improvements to the Leased
Premises without the prior written consent of Lessor, except for alternations of
Two Thousand and no/100 Dollars ($2,000.00) or less, in which Tenant warrants
alterations done are by a licensed, bonded and insured vendor, is of good
quality and complies with all government regulations, and complies with the
regulations set forth by the Energy Center. Tenant agrees to keep building free
of liens with each alteration, and abide by alteration of this Lease. All
alterations performed at the direction of Tenant shall be subject to the
requirement of a performance and payment bond as set forth in Paragraph 5 above.
19. MECHANICS LIENS. Tenant shall pay timely for labor and material
furnished to Tenant or claimed to have been furnished to Tenant in connection
with work of any character performed or
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claimed to have been performed on the Leased Premises, at the direction or with
the consent of Tenant. Tenant shall not permit any mechanics or similar liens
to remain upon the Leased Premises incident to the foregoing. However, Tenant
may contest the validity of such lien or claims, provided, Tenant shall give to
Lessor, if required by Lessor, reasonable security to insure payment and to
prevent any sale, foreclosure or forfeiture of the Leased Premises by reason of
such non-payment. Upon a final determination of the validity of any such lien
or claim, Tenant shall immediately pay any judgment or decree rendered against
Tenant or Lessor, including but not limited to, all proper costs and charges,
and shall cause such lien to be released of record without costs to Lessor.
20. LESSOR'S ACCESS. Lessor, its agent, employees and/or contractors,
shall have the right to enter the Leased Premises at all reasonable times for
the purpose of inspection, cleaning, repairing or improving the Leased Premises
or other premises in the Building, including, but not limited to, the right, but
not the obligation, to install, maintain, use, repair, and replace the pipes,
ducts, conduits, and wires leading through the Leased Premises, provided, that
such entry shall be accomplished in a manner that will cause as little
interference with and inconvenience to the Tenant's use as is reasonable under
the circumstances. Any interference with or inconvenience to the Tenant arising
out of the exercise by Lessor of the rights set forth in this paragraph shall
not constitute a breach by Lessor of any of its agreements in this Lease, and
shall not result in any diminution of rent or liability on the part of Lessor by
reason of inconvenience, annoyance or injury to Tenant's business except if said
Lessor interference is beyond one business day, then Lessor will xxxxx Tenant's
rent accordingly. Lessor, or its agents, shall have the right to exhibit the
Leased Premises to noncompetitive prospective tenants or to noncompetitive
prospective purchasers at any time.
21. TENANT'S INSURANCE. Tenant shall obtain and keep in force, at
Tenant's expense, for the term of this Lease, and any extension or renewal
thereof, the following insurance:
A. Such fire and casualty insurance as Tenant shall deem necessary
or desirable covering Tenant's stock in trade, fixtures,
furniture, files, documents, computers, equipment, signs, and all
other installations, improvements and betterments made by or f or
Tenant, on or about the Leased Premises.
B. Commercial general liability insurance, with a combined single
limit of One Million And No/100 Dollars ($1,000,000.00). Said
policy shall name Tenant as the named insured and Lessor as an
additional insured; shall cover the Leased Premises; and shall
cover contractual agreements.
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C. Any other standard insurance policy as may be required reasonably
by Lessor from time to time.
Said insurance required pursuant to the provisions of this paragraph shall
be issued by an insurance company legally authorized to do business in the State
of Minnesota; shall be in a form satisfactory to Lessor; and shall provide for
at least thirty (30) days notice, by certified mail, return receipt requested,
to Lessor before cancellation, termination, non-renewal or change of such
insurance. Evidence of said insurance shall be provided to Lessor upon request
upon occupancy of the premises.
22. LESSOR'S INSURANCE. On or before occupancy by Tenant of the Leased
Premises, Lessor shall obtain, and thereafter shall keep in force for the term
of this Lease, and any renewal or extension thereof, comprehensive general
liability insurance, fire and extended coverage insurance, boiler and pressure
vessel insurance, rents insurance, and such other insurance as Lessor deems
necessary or advisable to obtain and maintain, on the Building and the common
areas and all property and interest of Lessor in the Building, with coverage in
amounts as deemed prudent by Lessor.
23. DAMAGE BY FIRE OR OTHER CASUALTY. Tenant, immediately upon Tenant's
discovery thereof, shall give notice to Lessor of any damage caused to the
Leased Premises by fire or other casualty. If Tenant does not so notify Lessor,
Tenant shall be liable for all consequential damages resulting from its failure
to so notify Lessor, in addition to every other right and remedy which Lessor
may have pursuant to this Lease, at law or in equity.
If the Leased Premises are damaged or destroyed by fire or other casualty,
and such damage or destruction is certified within a reasonable period of time
thereafter, in writing, by a licensed contractor to be repairable within sixty
(60) days after the date of such occurrence, this Lease shall remain in full
force and effect, and Lessor, subject to the provisions hereinafter set forth,
shall proceed with due diligence to repair such damage or destruction, at its
expense, and in that event, there shall be a proportionate abatement of rent and
all other charges for so much of the Leased Premises as may be untenantable
until repair or restoration.
If the Leased Premises are damaged or destroyed by fire or other casualty,
and such damage or destruction cannot be so certified to be repairable within
sixty (60) days after the date of such occurrence, but can be so certified to be
repairable within one hundred twenty (120) days after the date of such
occurrence, and Lessor shall give Tenant notice within fifteen (15) days after
the date of such occurrence of its intention to repair within said one hundred
twenty (120) days, then this Lease shall remain in full force and effect, and
Lessor, subject to the provisions hereinafter set forth, shall proceed with due
diligence
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to repair such damage, at its expense, and in that event, there shall be a
proportionate abatement of rent and all other charges for so much of the Leased
Premises as may be untenantable until repair or restoration. if Lessor does not
give said fifteen (15) days' notice to Tenant of Lessor's intention to repair,
this Lease may be cancelled at the option of Lessor or Tenant if notice is given
by either party to the other within sixty (60) days after the expiration of
Lessor's fifteen (15) days' notice period.
If the Leased Premises are damaged or destroyed by f ire or other casualty,
and such damage or destruction cannot be so certified to be repairable within
one hundred twenty (120) days after the date of such occurrence, this Lease may
be cancelled at the option of Lessor or Tenant if notice is given by either
party to the other within thirty (30) days after it has been determined that the
Leased Premises cannot be so certified to be repairable within said one hundred
twenty (120) days.
In the event Lessor is obligated, or exercises its election, to repair the
Leased Premises, its obligation to so repair shall be contingent upon receipt of
sufficient insurance proceeds to complete such repairs and shall be limited to
repair or replacement of tenant improvements. If for any reason whatsoever,
Lessor does not receive sufficient insurance proceeds to complete such repairs,
notwithstanding any prior elections by Lessor, Lessor shall have no obligation
to make such repairs or reconstruction. If Lessor is obligated, or exercises
its election, to repair the Leased Premises, Tenant shall proceed with due
diligence, at Tenant's sole cost and expense, to repair or replace Tenant's Work
and other improvements installed by Tenant at its own expense. Lessor shall not
be responsible or liable to Tenant for any consequential damages whatsoever
caused by any damage or destruction to the Leased Premises, nor for any delay in
repairing or replacement, nor for inability to repair or replace, nor for any
other cause whatsoever beyond Lessor's control.
24. ASSIGNMENT OR SUBLEASE. Tenant may not, voluntarily or by operation
of law, assign or transfer this Lease, or sublease the whole or any part of the
Leased Premises, without the prior written consent of Lessor. Lessor approves
Tenant's sublease to Children's Museum only, for short-term storage and/or
assembly space.
25. NOVATION IN THE EVENT OF A SALE BY LESSOR. In the event of the sale
of the Leased Premises, Lessor shall be and hereby is relieved of all of the
covenants and obligations created hereby and such sale shall result
automatically in the purchaser assuming and agreeing to carry out all the
covenants and obligations of Lessor herein; provided, however, that Lessor shall
not be released from any claim resulting from a default of Lessor occurring
prior to the date of such sale.
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26. ESTOPPEL CERTIFICATE. Within ten (10) days after request therefore by
Lessor, or in the event that upon any sale, transfer, or financing, an Estoppel
Certificate shall be requested from Tenant, Tenant agrees hereby to deliver in
recordable form an Estoppel Certificate to the Lessor, any proposed purchaser,
transferee or lender, certifying to such correct facts relating to this Lease as
may be requested reasonably by Lessor.
27. REMEDIES OF LESSOR. In the event that during the term of this Lease
any of the following occur:
A. Tenant shall have failed to pay any installment of rent or any other
charge provided herein, or any portion thereof, when the same shall be due and
payable, and the same shall remain unpaid for a period of five (5) days after
the same is due, and the Lessor gives Tenant written notice, and Tenant does not
cure such default within ten (10) days after receipt of such notice;
B. Tenant shall have failed to comply with any other provision of this
Lease, and shall not have cured such failure within thirty (30) days after
Lessor, by written notice, has informed Tenant of such noncompliance; provided,
however, in the case of a default which cannot be cured with due diligence
within a period of thirty (30) days, Tenant shall have such additional time to
cure such default as may be reasonably necessary, provided Tenant proceeds
promptly and with due diligence to cure such default after receipt of said
notice; or
C. Tenant shall make an assignment for the benefit of creditors or be
adjudicated a bankrupt; then Lessor upon written notice to Tenant may elect
either (i) to cancel and terminate this Lease, and this Lease shall not be
treated as an asset of Tenant's estate, or (ii) to terminate Tenant's right to
possession only without cancelling and terminating Tenant's continued liability
under this Lease. Notwithstanding the fact that initially Lessor elects under
(ii) to terminate Tenant's right to possession only, Lessor shall have the
continuing right to cancel and terminate this Lease by serving five (5) days'
written notice on Tenant of such further election, and shall have the right to
pursue any remedy at law or in equity that may be available to Lessor.
In the event of election under (ii) to terminate Tenant's right to
possession only, Lessor may, at Lessor's option, enter into the Leased Premises
and take and hold possession thereof, without such entry and possession
terminating this Lease, or releasing Tenant, in whole or in part, from Tenant's
obligation to pay the rent hereunder for the full stated term. Upon such
reentry, Lessor may remove all persons and property from the Leased Premises,
and such property may be removed and stored in a public warehouse or elsewhere
at the cost of and for the account of Tenant, without becoming liable for any
loss or damage which may be
13
occasioned thereby. Such re-entry shall be conducted in the following manner:
without resort to judicial process or notice of any kind in the situation where
Tenant has abandoned or voluntarily surrendered possession of the Leased
Premises; and, otherwise by resort to judicial process. Upon and after entry
into possession without termination of the Lease, Lessor may, but is not
obligated to, relet the Leased Premises, or any part thereof, to any person,
firm, or corporation, other than Tenant, for such rent, for such time and upon
such terms as Lessor, in Lessor's sole discretion shall determine, but Lessor
shall not be required to accept any tenant offered by Tenant or to observe any
instruction given by Tenant about such reletting. Lessor may make alterations
and repairs, and redecorate the Leased Premises to the extent deemed by Lessor
necessary or desirable.
Upon such re-entry, Tenant shall be liable to Lessor as follows:
A. for the unpaid installments of rent and other unpaid sums which were
due prior to such re-entry, which sums shall be payable forthwith;
B. for the installments of rent and other sums falling due pursuant to
the provisions of this Lease for the periods after re-entry during which the
Leased Premises remain vacant, which sums shall be payable as they become due
hereunder;
C. for all expenses, including leasing commissions, reasonable attorneys'
fees, costs of alterations, repairs and redecorating, which shall be payable by
Tenant as they are incurred;
D. while the Leased Premises are subject to any new lease or leases made
pursuant to this paragraph, for the amount by which the monthly installments
payable under such new lease or leases is less than the monthly installment for
all charges payable pursuant to this Lease, which deficiencies shall be payable
monthly; and
E. for interest upon all of the foregoing as provided in this Lease.
No such re-entry or taking possession of the Leased Premises by Lessor
shall be construed as an election on its part to terminate this Lease unless a
written notice of such intention be given by Tenant.
If Tenant shall default in the performance of any covenant required to be
performed by it under this Lease, taking into consideration the grace periods
provided in this paragraph, Lessor may perform the same for the account and at
the expense of Tenant. If Lessor at any time is compelled to pay, or elects to
pay, any sum of money by reason of the failure of Tenant to comply with any
provision
14
of this Lease, or if Lessor is compelled to incur any expense, including
reasonable attorneys' fees, in instituting, prosecuting or defending any action
or proceeding instituted by reason of any default of Tenant hereunder, the sum
or sums so paid by Lessor shall be due from Tenant to Lessor on the next date
following the payment of such sums upon which a regular monthly rental payment
is due, together with interest, at the rate as specified in this Lease.
No right or remedy herein conferred upon or reserved to Lessor is intended
to be exclusive of any other right or remedy herein or by law provided, but each
shall be cumulative and in addition to every other right or remedy given herein
or now or hereafter existing at law or in equity or by statute.
28. ACCORD AND SATISFACTION. NO payment by Tenant or receipt by Lessor of
a lesser amount than the payments required to be paid by Tenant shall be deemed
to be other than on account of the earliest rent and other charges required to
be paid, nor shall any endorsement or statement on any check or similar payment
be deemed an accord and satisfaction, and Lessor shall accept such check or
payment without prejudice to Lessor's right to recover the balance of such rent
or other required payment, or pursue any other remedy provided in this Lease.
Accord and satisfaction, if any, shall be accomplished by a separate document
executed by Lessor and Tenant.
29. DEFAULT BY LESSOR. Lessor shall not be deemed to be in default under
this Lease until Tenant has given Lessor written notice specifying the nature of
the default which Lessor is obligated to cure, and Lessor does not cure such
default within ten (10) days after receipt of such notice; provided, however, in
the case of a default which cannot be cured, with due diligence, within a period
of ten (10) days, Lessor shall have such additional time to cure such default as
may be reasonably necessary, provided Lessor proceeds promptly and with due
diligence to cure such default after receipt of said notice.
Lessor shall not be deemed to be in default in the performance of any of
the provisions of this Lease if such nonperformance is due to any strike,
lock-out or other labor trouble, material shortages, governmental
restrictions, fire, acts of God, the elements, war, riot, rebellion or any
other cause beyond the reasonable control of Lessor. In the event Lessor
fails to perform any of its obligations under this Lease and Lessor fails to
cure such default within the ten (10) day period provided for above, Tenant's
sole remedy shall be to terminate this Lease, by written notice to Lessor,
and vacate the Leased Premises. Tenant shall have no right to claim or
collect any damages from Lessor or to pursue any equitable remedies, other
than termination of this Lease.
15
30. SIGNS; WINDOW COVERINGS. No signs, promotional material or
identification of any type shall be placed in, or on externally visible from an
entry, window, outer door or exterior surface without the written consent of
Lessor and the City of Saint Xxxx. The Lessor reserves the right to remove all
unauthorized signs at the expense of Tenant.
31. CONDITION OF LEASED PREMISES AND LESSOR'S PROPERTY AT TERMINATION. At
termination of this Lease, Tenant shall vacate and deliver the Leased Premises,
all partitions, improvements, alterations and other property of Lessor to Lessor
in as good order and condition as the same were in on the commencement date or
were thereafter placed in by Lessor or Tenant, reasonable wear and tear
excepted. On or before the last day of the term of this Lease or the sooner
termination thereof, Tenant, at its expense, shall remove all of its equipment
from the Leased Premises, and any property not removed shall be deemed
abandoned. To the extent Tenant's property is removed pursuant to this
paragraph, Tenant, at its cost and expense, shall repair any damage done to the
Leased Premises by such removal. If Tenant chooses not to remove its property,
Lessor may require Tenant, at Tenant's cost and expense, to remove its property
and restore the Leased Premises to good condition and repair. All alterations,
additions and fixtures, other than Tenant's movable trade fixtures and
equipment, which have been made or installed by either Lessor or Tenant upon the
Leased Premises shall remain as Lessor's property and shall be surrendered with
the Leased Premises as a part thereof. Tenant shall surrender promptly all keys
for the Leased Premises or locks therein to Lessor at the place then fixed for
payment of rent. If Tenant fails to deliver the Leased Premises and Lessor's
property to Lessor in the condition required by the provisions of this paragraph
after ten (10) days' written notice and opportunity to cure, Lessor, at its
option, may make such repairs, and any expenditures made in connection with such
work shall be due and payable from Tenant upon demand, plus an amount equal to
ten percent (10%) of such expenditures for overhead and supervision. If the
Leased Premises are not surrendered at the end of the term or sooner termination
thereof, Tenant shall indemnify Lessor against loss or liability resulting from
delay by Tenant in so surrendering the Leased Premises, including, but not
limited to, any claim made by any succeeding tenant based upon such delay.
32. RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by a third party to create the
relationship of principal and agent or of partnership or of joint venture or of
any association whatsoever between Lessor and Tenant, it being expressly
understood and agreed that neither the method of computation of rent, nor any
other provisions contained in this Lease, nor any act or acts of the parties
hereto, shall be deemed to create any relationship between Lessor and Tenant
other than the relationship of Lessor and Tenant.
16
33. NOTICES. All notices and communications of similar legal import from
either Lessor or Tenant to the other shall be in writing and shall be considered
to have been duly given or served if sent by first class certified or registered
mail, return receipt requested, postage prepaid, to the Chief Executive Officer
(except notices of default shall include the Guarantors) at its address set
forth below, or to such other address as such party may hereafter designate BY
written notice to the other party or parties.
A. If to Lessor, to: Port Authority of the
City of Saint Xxxx
1900 Landmark Towers
000 Xx. Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
and to: CB Commercial Real Estate
Management Services
Minnesota Center
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
B. If to Tenant, to: Endocardial Therapeutics, Inc.
ATTN: Chief Executive officer
0000 Xxxxxx Xxxx, Xxxxx 000X
Xx. Xxxx, XX 00000
C. If to Guarantors, to: Xxxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxx, #000
Xx. Xxxx, XX 00000
Xxxxxxx X. Xxxx
0000 Xxxxxx Xxxxxx
Xx. Xxxx, XX 00000
34. DEFINITION OF LESSOR, TENANT AND GUARANTOR; JOINT AND SEVERAL
LIABILITY. The words "Lessor",, "Tenant" and "Guarantor" used herein shall
include the plural thereto and the necessary changes required to make the
provisions hereof apply to corporations, partnerships, associations, or men or
women shall be construed as if made. If two or more parties are referred to
collectively under one designation, the liability of each shall be joint and
several.
35. CORPORATE TENANT OR GUARANTOR. If Tenant or its Guarantor, if any, is
a corporation, the persons executing this Lease on behalf of Tenant and such
Guarantor hereby covenant, represent and warrant: that Tenant and such
Guarantor, as the case may be, is duly incorporated, is in good standing, and is
duly qualified to do business in Minnesota; suitable evidence thereof shall be
supplied to Lessor upon execution of this Lease by the parties hereto; that each
person executing this Lease on behalf of Tenant and such Guarantor, as the case
may be, is an officer of
17
Tenant and such Guarantor, as the case may be, and that he, she or they, as such
officer, are duly authorized to execute and deliver this Lease; and an
appropriate certified copy of corporate resolution or authorization shall be
supplied to Lessor upon execution OF this Lease by the Tenant and such
Guarantor, as the case may be.
36. WAIVER. The receipt of rent by Lessor with knowledge of any breach of
this Lease by Tenant or of any default on the part of Tenant in the observance
or performance of any of the obligations or covenants of this Lease shall not be
deemed to be a waiver of any provisions of the Lease. Payment of rent by Tenant
with knowledge of any breach of this Lease by Lessor or of any default on the
part of Lessor in the observance or performance of any of the obligations or
covenants of this Lease shall not be deemed to be a waiver of any provision of
this Lease. No failure on the part of Lessor or Tenant, as the case may be, to
enforce any obligation or covenant herein contained, nor any waiver of any right
hereunder by Lessor or Tenant, as the case may be, unless in writing, shall
discharge or invalidate such obligation or covenant or affect the right of
Lessor or Tenant, as the case may be, to enforce the same in the event of any
subsequent breach or default.
37. INVALIDITY. If any part of this Lease or any part of any provision
hereof shall be adjudicated to be void or invalid, then the remaining provisions
hereof not specifically so adjudicated to be invalid shall be executed without
reference to the part or portion so adjudicated insofar as such remaining
provisions are capable of execution.
38. GOVERNING LAW. This Lease shall be subject to and governed by the
laws of the State of Minnesota, and all questions concerning the meaning and
intention of the terms of this Lease and concerning the validity hereof and
questions relating to performance hereunder shall be adjudicated and resolved in
accordance with the laws of that state, notwithstanding the fact that one or
more of the parties now is or may hereafter become a resident of a different
state.
39. HEADINGS. The headings of the paragraphs and subparagraphs of this
Lease are for convenience of reference only and do not form a part hereof and
shall not be interpreted or construed to modify, limit or amplify such
paragraphs and subparagraphs.
40. CONDEMNATION. If all or substantially all of the Property is taken in
condemnation proceedings instituted under the power of eminent domain or is
conveyed in lieu thereof under threat of condemnation, this Lease shall
terminate as of the date the condemning authority acquires title to the
Property. Nothing in this paragraph shall disqualify Tenant from relocation
rights and other provisions thereof.
18
41. PARTIES IN INTEREST. This Lease shall inure to the benefit of and be
binding upon the heirs, executors, administrators, successors and assigns of
Lessor; and shall inure to the benefit of, subject to the provisions of
Paragraph 24, and be binding upon the successors and assigns of Tenant.
42. SHORT FORM LEASE. Neither party shall record this Lease without the
written consent of the other party; however, upon the request of either Lessor
or Tenant, the other party shall join in the execution of a memorandum or so-
called "short form" of this Lease for the purpose of recordation. Said
memorandum or short form of this Lease shall describe the parties, the Leased
Premises, the term of this Lease, any special provisions, and shall incorporate
this Lease by reference. Any fees required to be paid in order to record such
memorandum or short form of this Lease shall be paid by the party desiring to
record such memorandum or short form of this Lease.
43. ENTIRE AGREEMENT; EXHIBITS. This Lease, including the Exhibits,
contains the entire agreement of the parties. It may not be changed orally, but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension, or discharge is sought.
44. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
45. PARKING. Notwithstanding language to the contrary contained in this
Lease, Tenant shall be entitled to use the vehicle parking spaces adjacent to
said Building as reasonably allocated by Lessor from time to time, based upon an
equitable allotment of vehicle parking spaces in comparison to square footage
leased. Tenant's vehicle parking shall not be reserved and shall be subject to
reasonable rules and regulations promulgated from time to time by Lessor.
Lessor will use reasonable efforts to accommodate Tenant's excess parking needs,
but does not covenant to have sufficient parking to meet such needs. If Lessor
deems that the parking needs of Tenant exceed the parking spaces available,
Tenant agrees to make alternative off-site parking arrangements, at Tenant's
sole cost and expense. Tenant shall notify its employees and invitees of such
alternative off-site parking arrangements, at Tenant's sole cost and expense and
agrees to use its reasonable efforts to cause observance of the provisions
herein. The vehicle parking obligation set forth above and the rules
regulations promulgated from time to time shall apply to Tenant, its sublessees
and assigns, as well as its invitees. Tenant's breach of the above covenant
shall be considered a material breach under said Lease, if Lessor gives Tenant
written notice of such a breach and Tenant does not cure such breach within ten
(10) days after receipt of such notice.
19
46. HOLDING OVER. If after expiration of the Lease Term, Tenant remains
in possession of the Leased Premises with Lessor's permission (express or
implied), Tenant shall become a tenant from month to month only, upon all the
provisions of this Lease (except as to term and Base Rent), but the Base Rent
payable by Tenant shall be increased to one hundred fifty percent (150%) of the
Base Rent payable by Tenant at the expiration of the Lease Term. Such monthly
Base Rent shall be payable in advance on or before the first day of each month.
If either party desires to terminate such month to month tenancy, it shall give
the other party not less than thirty (30) days advance written notice of the
date of termination.
47. QUIET ENJOYMENT. Upon Tenant performing its obligations and covenants
under this Lease, Lessor hereby represents and warrants that Tenant shall have
quiet enjoyment of the Leased Premises and all of the rights and privileges
hereunder free from any disturbance or interference but subject to rules,
ordinances, directives of governing authorities, the powers of eminent domain
and to the terms and provisions of this Lease.
48. RELOCATION OF TENANT. Lessor shall have the right to relocate Tenant
from said Leased premises to another part of the Building in accordance with the
following terms and conditions:
a. The new premises shall be substantially the same in size, dimensions,
configuration, decor and nature as said Leased Premises, and if this
relocation occurs after said Commencement Date said new premises shall
be placed in that condition by Lessor at its sole cost and expense. If
new Premises to be relocated to does not have an open office area for
employees, two offices for the officers of the company, and a heated
light assembly and storage area, Tenant can terminate lease with ninety
(90) day prior written notice only within sixty (60) days after said
notice of relocation from Landlord.
x. Xxxxxx shall give Tenant ninety (90) days written notice of Lessor's
intention to relocate Tenant to new premises.
X. Xxxxxx shall use its best efforts to relocate Tenant to said new
premises on a weekend and Lessor shall use its best efforts to
complete said move before the following Monday. If said relocation
has not been completed as set forth above, Base Rent shall xxxxx in
full from the time said relocation commences to the time said
relocation is completed. Upon completion of said relocation, the new
premises shall become the "Leased Premises" under said Lease.
x. Xxxxxx shall pay all reasonable costs incurred by Tenant as a result
of this relocation, including reasonable costs for changing business
cards and letterhead.
20
e. If the new premises is smaller than said Leased Premises, Base Rent
shall be reduced proportionately.
x. Xxxxxx and Tenant mutually agree to execute an amendment to said Lease
setting forth the reduction of Base Rent, if the relocation premises
is smaller than the current Premises. In no event, unless otherwise
agreed BY Lessor and Tenant, will the Rent on the relocation premises
be higher than previously agreed terms in this Lease.
x. Xxxxxx cannot relocate Tenant in months 25 through 36 without
providing an extended minimum term of three (3) years at such new
location.
49. CONFIDENTIALITY. The terms of this Lease are confidential and Tenant
agrees not to share these terms with the other tenants in Energy Park Place, or
prospective tenants of the Lessor or cooperative Brokers.
50. RIGHT OF CANCELLATION. On September 30, 1994 and provided Tenant is
not in default under, beyond the time to cure, this Lease, Lessor hereby agrees
to grant Tenant the one time right to cancel this Lease subject to the following
conditions:
a. Tenant hereby agrees to give Lessor four (4) months prior written
notice of its desire to cancel this Lease on September 30, 1994.
Tenant also agrees to submit the payment required under paragraph (b)
below in order for said notice to be effective.
b. In the event Tenant cancels this Lease on the terms stated above prior
to the expiration of the Lease Term, Tenant hereby agrees to pay
Lessor Thirty-Two Thousand Five Hundred Ninety-One and 96/100 Dollars
($32,591.96). Tenant hereby agrees to submit said payment with the
notice required under sub-paragraph (a) above and understands that
said notice shall not become effective unless and until said payment
is made.
On September 30, 1995 and provided Tenant is not in default, beyond the
time to cure, under this Lease, Lessor hereby agrees to grant Tenant the one
time right to cancel this Lease subject to the following conditions:
a. Tenant hereby agrees to give Lessor four (4) months prior written
notice of its desire to cancel this Lease on September 30, 1995.
21
Tenant also agrees to submit the payment required under paragraph (b)
below in order for said notice to be effective.
b. In the event Tenant cancels this Lease on the terms stated above prior
to the expiration of the Lease Term, Tenant hereby agrees to pay
Lessor Twenty-Three Thousand Five Hundred Fifty-Five and 63/100
Dollars ($23,555.63). Tenant hereby agrees to submit said payment with
the notice required under sub-paragraph (a) above and understands that
said notice shall not become effective unless and until said payment
is made.
Provided Tenant is not in default, except beyond the time to cure, Tenant
will receive a reduction in the cancellation penalty in the amount of one half
of the cost of a pre-approved addition by Tenant of a heating and air-
conditioning system for the warehouse area, not to exceed Ten Thousand and
no/100 Dollars ($10,000.00) with prior fully paid invoices and lien releases.
SURVIVAL The respective rights and obligations of Landlord and Tenant with
respect to the Lease and the Premises shall be preserved and shall survive the
termination of this Lease as to all matters arising or accruing prior to the
date of termination.
EXECUTION OF INSTRUMENTS Within fifteen (15) days of receipt from Landlord,
Tenant shall execute and deliver to Landlord those instruments Landlord may
request to evidence the termination of this Lease.
52. EXPANSION SPACE. Provided Tenant is not in default, beyond the time
to cure, Tenant will have the first right of refusal at market rates, "as- is,"
on the adjacent Suite #12 and #13 of 2,805 rentable square feet, subject to the
existing tenant's rights to renew. Market rate is defined as the rate which was
offered to the current or prospective tenant. Tenant will have a five (5) day
first right response time from Lessor's notice of another interested party.
TERMS A lease of space under this Article shall contain the following:
(a) Occupancy Costs shall be determined in the manner set out in
Landlord's then-current standard form of lease for the Building;
(b) Commencement Date for the lease of Space shall be determined by
Landlord;
(c) Term shall end on the expiration or earlier
22
termination of this Lease,, and the right is not subject to the
same option to extend (if any) of this Lease, and such term of
First Right of Space shall be for a minimum of three (3) years,
or coterminous, whichever is longer in term;
(d) the other terms and conditions shall be as set out in this Lease.
DOCUMENTATION Within five (5) days of receipt from Landlord, Tenant shall
execute and deliver to Landlord those instruments Landlord may request to
evidence any lease of space under this Article.
NON-SEVERABILITY The rights of Tenant under this Article shall not be
severed from this Lease or separately sold, assigned, or otherwise transferred,
and shall expire on the expiration, or earlier, termination of this Lease.
53. EXTENSION OF TERM.
XXXXX Xxxxxx hereby grants to Tenant the one-time option to extend the Term
upon the terms and conditions set out in this Article, if
(a) Tenant is not in default under this Lease, beyond the time to
cure, at the time such option is exercised and at the time such
extension is to commence, and
(b) Tenant delivers to Landlord, not later than twelve (12) months
prior to the end of the original Term, written notice exercising
its option to extend the Term.
TERM During the extended Term:
(a) Annual Rent shall be equal to Market Rent as of the commencement
of that extended Term, but in no event greater than the amount of
$4.95 net per rentable square foot or $10.20 gross plus
escalations, using base year 1993, plus electrical, janitorial
and garbage, based on 12,517 rentable square feet. Year two not
to exceed $5.10 per rentable square foot net. Year three not to
exceed $5.25 per rentable square foot net.
(b) Occupancy costs shall be as determined in the manner set out in
Landlord's then-current standard form of Lease for the Building.
23
(c) the Term shall be three (3) years, commencing upon expiration of
the original Term; and
(d) the other terms and conditions shall be at set out in this Lease,
except that there shall be no further right of renewal.
DOCUMENTATION Landlord and Tenant shall execute and deliver appropriate
documentation to evidence extension of the Term and terms and conditions of this
Lease during the extended Term.
NON-SEVERABILITY The rights of Tenant under this Article will not be
severed from this Lease or separately sold, assigned, or otherwise
transferred, and shall expire on the expiration or earlier termination of
this Lease.
54. MARKET RENT
DEFINITION "Market Rent" means the amount of cash (exclusive of Occupancy
Costs) which a landlord would receive annually by then renting the space in
question assuming the landlord to be a prudent person willing to lease but being
under no compulsion to do so, assuming the tenant to be a prudent person willing
to lease but being under no compulsion to do SO, assuming a lease term equal to
the term in question, and assuming a lease containing the same terms and
provisions as those contained in this Lease.
DETERMINATION OF MARKET RENT Whenever Annual Rent under this Lease is based
on the Market Rent, Landlord shall initially determine the Market Rent and shall
thereupon give Tenant notice of the amount of Annual Rent and the basis on which
Landlord made its determination of that amount. Upon receipt of that notice,
Tenant shall pay the Annual Rent stated in that notice in the manner set out in
Article 4.00.
DISAGREEMENT ON MARKET RENT
(a) If Tenant does not agree with the Landlord's determination of
Market Rent, Tenant shall nevertheless pay to Landlord the amount
set out in the notice Landlord gives under this Article and
Tenant shall give notice to Landlord of that disagreement within
ten (10) days of receipt of that notice from Landlord.
(b) If Tenant gives Landlord notice of disagreement, Landlord shall
immediately refer the matter to an individual with at least five
years of experience as a leasing agent or MAI appraiser in the
St. Xxxx area (the "Expert") selected by Landlord, subject to
approval by Tenant, such approval not to be unreasonably
withheld, who shall be deemed to be
24
acting as an expert and not as an arbitrator. The Expert shall
make a determination of Market Rent as expeditiously as possible.
(c) If the Market Rent as determined by the Expert is greater than
the Tenant has paid in accordance with the notice given under
this Article, Tenant shall immediately pay to Landlord the
difference and shall after that make the payments of Annual Rent
as determined by the Expert. If the Market Rate as determined by
the Expert is less than Tenant has paid in accordance with the
notice given under this Article, Landlord shall immediately pay
to Tenant the difference and Tenant shall after that make the
payments of Annual Rent as determined by the Expert.
(d) If the Market Rent as determined by the Expert is less than 95%
of the amount set out in the notice under this Article, Landlord
shall bear the costs
and reasonable expenses of the Expert. If the Market Rent as
determined by the Expert is 95% or more of the amount set out in
the notice under this Article, Tenant shall bear the costs and
reasonable expenses of the Expert.
55. BROKERAGE Tenant covenants, warrants and represents to Landlord that
there was no broker instrumental in consummating this Lease and that no
conversation or prior negotiations were had by Tenant with any broker other than
CB Commercial Real Estate Services Group, Inc. concerning the renting of the
Demised Premises. Tenant agrees to protect, indemnify, save and keep harmless
Landlord against and from all liabilities, claims, losses, costs, damages and
expenses, including attorney's fees, arising out of, resulting from or in
connection with a breach of the foregoing covenant, warranty and representation.
25
The parties hereto have duly executed this Agreement of Lease effective as of
the date and year first above written.
PORT AUTHORITY OF THE
TENANT: CITY OF SAINT XXXX
By: By:
------------------------------- ---------------------------------
Xxxxxxx X. Xxxx Its President
Its Vice President
By:
------------------------------
Xxxxxxx X. Xxxxxx
Its President
Drafted by:
Port Authority of the
City of Saint Xxxx
1900 Landmark Towers
000 Xx. Xxxxx Xx.
Xx. Xxxx, XX 00000
(000) 000-0000
Signature page to that certain Agreement of Lease between the Port Authority of
the City of Saint Xxxx and ENDOCARDIAL THERAPEUTICS, INC., A MINNESOTA
CORPORATION, dated SEPTEMBER 15, 1993.
00
XXXXX XX XXXXXXXXX xx.
XXXXXX XX XXXXXX
Xx this ___day of October ________________, 1993, before me, a Notary
Public within and for said County, personally appeared Xxxxxxx X. Xxxxxxx, to me
personally known, who being by me duly sworn, did say that he is the President
of the PORT AUTHORITY OF THE CITY OF SAINT XXXX, the public corporation named in
the foregoing instrument and that said instrument was signed on behalf of said
corporation by authority of its Board of Commissioners, and said Xxxxxxx X.
Xxxxxxx acknowledged said instrument to be the free act and deed of said
corporation.
_______________________
Notary Public
STATE OF MINNESOTA
COUNTY OF XXXXXX
On this 6th day of OCTOBER, 1993 before me, a Notary Public within and for said
County, personally appeared XXXXXXX X. XXXX and XXXXXXX X. XXXXXX, to me
personally known, who being each by me duly sworn, did say that they are,
respectively the VICE PRESIDENT and the PRESIDENT of ENDOCARDIAL THERAPEUTICS,
INC. one of the corporations named in the foregoing instrument, and that said
instrument was signed on behalf of said corporation by authority of its Board of
Directors, and said XXXXXXX X. XXXX and XXXXXXX X. XXXXXX acknowledged said
instrument to be the free act and deed of said corporation
______________________________
Notary Public
27
EXHIBIT A
EXHIBIT "B"
LESSOR'S WORK
None
EXHIBIT C
ENERGY PARK PLACE
TENANT MANUAL
CB COMMERCIAL MANAGEMENT SERVICES
- ENERGY PARK -
0000 XXXXXXX XXXXXXXXX XXXXX, XXXXX 000
XX. XXXX, XXXXXXXXX 00000
(000) 000-0000
TABLE OF CONTENTS
General Building Informationz. . . . . . . . . . . . . . 1.1
Rental Remittance . . . . . . . . . . . . . . . . . . . 1.2
Emergency Numbers and Procedures . . . . . . . . . . . . 1.3
Building Access and Security . . . . . . . . . . . . . . 2.1
Security After Hours . . . . . . . . . . . . . . . . . . 2.2
Reporting Thefts . . . . . . . . . . . . . . . . . . . . 2.3
U.S. Mail Service . . . . . . . . . . . . . . . . . . . 3.1
Deliveries : . . . . . . . . . . . . . . . . . . . 3.2
Restaurants and Shopping . . . . . . . . . . . . . . . . 3.3
Maintenance . . . . . . . . . . . . . . . . . . . . . . 4.1
Construction of Service Work . . . . . . . . . . . . . . 4.2
Key Policy . . . . . . . . . . . . . . . . . . . . . . . 5.1
Signs . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
Additional Tenant Identification Plaques . . . . . . . . 6.2
Directory Listing . . . . . . . . . . . . . . . . . . . 6.3
Moving Policy . . . . . . . . . . . . . . . . . . . . . 7.1
Emergency Procedures . . . . . . . . . . . . . . . . . . 8.1
Fire Safety Plan . . . . . . . . . . . . . . . . . . . . 8.2
Types of Fires, Extinguishers, Hoses . . . . . . . . . . 8.3
Emergency Telephone Numbers . . . . . . . . . . . . . . 8.4
Rules and Regulations . . . . . . . . . . . . . . . . . 9.1
Janitorial Specifications . . . . . . . . . . . . . . . 10.1
1.1 GENERAL BUILDING INFORMATION
Energy Park Place
0000-0000 Xxxxxx Xxxx
Xx. Xxxx, XX 00000
Managed by:
CB Commercial Management Services
0000 Xxxxxxx Xxxx. X., #000
Xx. Xxxx, XX 00000
(000) 000-0000
Real Estate Manager: Xxxxx Xxxxxxx
Telephone: (000) 000-0000 (voicemail)
(000) 000-0000
Property Secretary: Xxxxx Xxxxxxx
1.2 RENTAL REMITTANCE
Rent bills are sent to all tenants prior to the first of each month. All
checks should be made payable to:
CB Commercial Management Services
and mailed to:
CB Commercial
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
1.3 EMERGENCY NUMBERS AND PROCEDURES
In the event of fire, bomb threat, medical assistance or other emergencies,
use the appropriate number below:
A. FIRE - Notify the St. Xxxx FIRE DEPARTMENT (911), give them your
address and suite number, and pull the nearest fire alarm in the
building. Notify CB Commercial Management Services - 646-2296. They
will inform you as to what evacuation procedure to follow.
B. BOMB THREAT - Notify the St. Xxxx POLICE DEPARTMENT (911) and give
them your address and suite number. Notify CB Commercial Management
Services - 646-2296.
-1-
C. MEDICAL ASSISTANCE - Call PARAMEDICS (91 1) and give them your address
and suite number. Notify CB Commercial Management Services - 646-
2296.
2.1 BUILDING ACCESS AND SECURITY
A. Each tenant is responsible for the accessibility and security of their
space.
B. All outside doors should be locked after hours. Please be sure that
they are secure when leaving the building after hours.
2.2 SECURITY AFTER HOURS
Energy Park Place provides a patrol security service for the entire
property on a scheduled basis once per night.
2.3 REPORTING THEFTS
Any property which is determined to have been stolen should be reported
immediately to the St. Xxxx Police Department and CB Commercial Management
Services and your insurance company if applicable.
3.1 U.S. MAIL SERVICE
MAIL PICK-UP
In front of 1350 Building:
2:00 p.m. & 4:45 p.m. - Monday through Friday 1:00 p.m. - Saturday
In front of 1380 Building near Energy Park Plaza, Bus Stop:
2:30 p.m. & 4:45 p.m. - Monday through Friday 1:00 p.m. - Saturday
EXPRESS NEXT DAY AIR: In front of 1350 Building 4:30 p.m. - Monday through
Friday
St. Xxxx Xxxx Xxxxxx
0000 Xxxxxxx
Xx. Xxxx, XX 00000
(000) 000-0000
-2-
3.2 DELIVERIES
Routine deliveries may be made between 8:00 a.m. and 6:00 p.m. weekdays.
Please instruct your delivery personnel in advance as to the appropriate
department or individual to accept deliveries prior to arrival.
3.3 RESTAURANTS AND SHOPPING
For your convenience, restaurants and shopping are located at Bandana
Square, Rosedale Mall and Har Mar Mall. University Avenue and Grand Avenue
also contain a combination of sit down, lunch counter and fast food
restaurants and specialty shopping.
4.1 MAINTENANCE
Custodial service will be performed Monday - Friday in all property public
areas. Standard services are provided. However, if additional or special
services are required, contact CB Commercial Management Services. Only an
authorized representative of the tenant will be allowed to request
additional building services of any nature.
4.2 CONSTRUCTION OR SERVICE WORK
All construction and service work (carpet cleaning, extra window cleaning,
etc.) must be scheduled and approved by CB Commercial Management Services.
All proposed alterations, remodeling or repair work must be approved in
writing by CB Management. The contractors performing the work will be
selected from the approved contractor list. Contractors performing such
work must provide evidence of insurance in addition to the necessary
building permits.
5.1 KEY POLICY
Two (2) suite entrance keys will be issued to the tenant upon completion of
their space. If additional keys are required, keys may be obtained from CB
Commercial Management Services. Only a designated representative of the
tenant will be authorized to request additional keys.
6.1 SIGNS
There are to be no signs of any type on the interior or exterior of the
building without prior written approval of CB Commercial Management
Services.
- 3 -
6.2 ADDITIONAL TENANT IDENTIFICATION PLAQUES
All plaques must be ordered through and installed by CB Commercial
Management Services.
6.3 DIRECTORY LISTING
The Property directory is located in the atrium area of each building.
7.1 MOVING POLICY
The following rules pertain to moving furniture, equipment and supplies in
and out of Energy Park Place.
ANY MOVERS THAT DO NOT ADHERE TO THE FOLLOWING RULES WILL NOT BE ALLOWED TO
ENTER THE PREMISES OR WILL BE REQUIRED TO DISCONTINUE THE MOVE.
A. Clean masonite sections will be used as runners on all finished floor
areas where heavy furniture or equipment is being moved with wheel or
sled type dollies. The masonite must be at least one-fourth inch
thick, 4x8 wide sheets in the corridors and 32" wide sheets of
masonite must be taped together to inhibit sliding.
B. All wall, door facings, and other areas along the route to be followed
will be inspected by the movers and the Property Manager before and
after the move. The mover must provide and install protective
coverings on all walls, door facings, and other areas along the route
to be followed during the move.
C. Any damage to the building or fixtures caused by the move will be
repaired and/or paid for by the moving company and/or the Tenant.
The moving company is hereby required to provide CB Commercial with a current
Certificate of Insurance indicating The St. Xxxx Port Authority and CB
Commercial Management Real Estate Group, Inc., as additionally insured.
8.1 EMERGENCY PROCEDURES
Please refer to Section 1.3.
- 4 -
8.2 FIRE SAFETY PLAN
Each office will appoint one or several persons responsible for checking
their particular area in cases of fire of bomb threat. They will then
report their findings to the Fire Department and CB Commercial. All new
employees need to be made aware of emergency procedures.
Good housekeeping is the key to prevention of most fires which occur in
office buildings. Waste baskets and loosely stacked papers provide fuel
for fires, so keep your work areas as neat possible. Provide plenty of
safety ashtrays which automatically extinguish a cigarette if it xxxxx too
close to the edge. Ashtrays should never be emptied into a waste basket,
however, if neatness demands it, be absolutely sure that ashes are
completely cold before emptying. Observe "NO SMOKING" signs wherever
posted. Many office fires are caused by overloading electrical circuits.
Do not create an "octopus" by inserting a series of 2-way or 3-way plugs
into the same outlet. Call CB Commercial Management Services for advice on
circuit capacity. Also, inspect electrical cords frequently and promptly
replace any frayed wires. Never hang an electrical cord over a nail or
sharp edge.
Precautions to be observe:
1) Do not open a door without first checking to see if it is hot. If it
is hot, undoubtedly there will be fire on the other side. Choose
another route of egress.
2) Close all doors after you have walked through them.
3) Do not return for personal belongings.
4) When smoke is present, stay low. The cleanest air is closest to the
floor.
8.3 TYPES OF FIRES, EXTINGUISHERS, HOSES
Multipurpose ABC fire extinguishers are located along the corridors of
Energy Park Place in accordance with the St. Xxxx Fire Department
regulations. You are urged to inspect these locations personally. Read
and memorize instructions on the label.
Fires and the fire extinguishers to fight those fires are divided into
three categories or classes; A, B, and C.
CLASS A - Fires involving ordinary combustibles such as paper, wood,
cloth, rubber, and many plastics which are normally extinguished by
cooling.
CLASS B - Fires involving flammable liquids such as gasoline, oil,
alcohol, some paints, grease or solvents which are best extinguished
by smothering.
- 5 -
CLASS C - Fires involving electrical equipment, fuse boxes, appliances
and wiring in which the use of a non-conductive extinguishing agent
prevents injury.
It is important to use the correct type of extinguisher on a fire.
The wrong type of fire extinguisher may fail not only to extinguish
the fire, but also may cause great personal hazard from electrical
shock, poisonous fumes, spreading fire or explosion. All
extinguishers in the corridors are ABC extinguishers, meaning that
they can be utilized to extinguish Class A, B, and C fires.
THE THREE "P's" ABOUT USING FIRE EXTINGUISHERS
A leading Fire Safety Officer tells us to remember the three "P's" when
using a fire extinguisher:
A. PULL the pin.
B. POINT the nozzle (at the base of the fire).
C. PRESS the handle (sweep from side to side at the base of the fire).
Take an emergency walk NOW to establish the locations of the Emergency
exits and fire fighting apparatus and xxxx them on your Floor Plan. Read
the instructions carefully marked on each extinguisher to assure proper
usage. YOU WILL NOT HAVE TO READ INSTRUCTIONS DURING AN EMERGENCY.
8.4 EMERGENCY TELEPHONE NUMBERS (AFTER HOURS)
Please list the name and home phone numbers of three (3) persons from you
firm whom we can contact in case of emergency. We will call in the
sequence listed until we contact someone. These numbers are for EMERGENCY
USE ONLY and will be held CONFIDENTIAL.
COMPANY/TENANT NAME:__________________________________
SUITE NUMBER:____________________________________________
#1 - NAME:_________________________________________________
HOME PHONE:_____________________________________________
#2 - NAME:________________________________________________
HOME PHONE:_____________________________________________
#3 - NAME:________________________________________________
HOME PHONE: ____________________________________________
- 6 -
9.1 RULES AND REGULATIONS
A. The entrances, halls, corridors and loading areas of the building
shall not be obstructed or used as a waiting or lounging place by
Tenants, and their agents, servants, employees, invitees, licensees
and visitors. All entrance doors leading from any demised premises to
the hallways are to be kept closed at all times. The outside areas
immediately adjoining the leased premises shall be kept clear at all
times by Tenant, and Tenant shall not place or permit any
obstructions, garbage, refuse, merchandise or display in such areas.
B. Keys for doors in the leased premises will be furnished at the
commencement of the Lease by the Property Manager. All duplicate keys
shall be purchased only from CB Commercial. Tenants shall not alter
any lock, or install new or additional locks or bolts on any door
without the prior written approval of CB Commercial. In the event
such alteration or installation is approved by CB Commercial, Tenants
malting such alteration or installation shall supply CB Commercial
with a key for any such lock or bolt. Each Tenant, upon the
expiration or termination of tenancy, shall deliver to CB Commercial
all keys in Tenant's possession for all locks, bolts, cabinets, safes
or vaults, or the means of opening any lockable device.
C. In order that the building may be kept in a state of cleanliness, each
Tenant shall, during the term of each respective Lease, keep their
space in neat and clean order. No Tenant shall cause any unnecessary
labor by reason of such Tenant's carelessness or indifference in the
preservation of good order and cleanliness of the demised premises.
Tenants will see that (1) the doors are securely locked, and (2) all
water faucets and other utilities are shut off (so as to prevent waste
or damage) each day before leaving the demised premises. In the event
Tenant must dispose of crates, boxes, etc., which will not fit into
office waste baskets, it will be the responsibility of Tenant to
dispose of same. In no event shall Tenant set such items in the
public hallways or other areas of the property, excepting Tenant's own
leased premises, for disposal.
D. All deliveries are to be made through dock/rear entrances for those
tenants who have these areas. Otherwise, tenants who have front
entrances only can have deliveries made through the closest door and
causes the least disturbance to other tenants. All damage done to
building by the delivery or removal of such items, or by reason of
their presence in the building, shall be paid to CB Commercial upon
demand, by Tenant, by, through or under whom such damage was done.
The tenants are to assume all risks as to the damage to articles moved
and injury to persons or public engaged or
-7-
not engaged in such movements, including equipments, property and
personnel of CB Commercial or owner if damaged or injured as a result
of acts in connection with carrying out this service for a Tenant from
the time of entering the property to completion of work. Owner shall
not be liable for acts of any persons engaged in, or any damage or
loss to any of said property or persons resulting from any act in
connection with such service performed by tenant. There shall not be
use in any space, or in the public halls of the building, either by
Tenant or by jobbers of others, in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires.
CB Commercial retains the right to prescribe the weight and position
of safes or other heavy equipment.
E. The restrooms, toilets, urinals, wash bowls and water apparatus shall
not be used for any purpose other than for those for which they were
constructed or installed, and no sweeping, rubbish chemicals or other
unsuitable substances shall be thrown or placed therein. The expense
of any breakage, stoppage or damage resulting from violation(s) of
this rule shall be borne by the Tenant by whom, or by whose agents,
servants, employees, invitees, licensees, or visitors, such breakage,
stoppage or damage shall have been caused.
F. No sign, light, name placard, poster advertisement or notice visible
from the exterior of any demised premises, shall be placed, inscribed,
painted or affixed by any Tenant on any part of the building without
the prior written approval of Landlord. All signs or letterings on
doors or otherwise, approved by Landlord, shall be inscribed, painted
or affixed at the sole cost and expense of the Tenant, or by a person
approved by Landlord. A directory containing the names of all Tenants
of the building shall be provided by Landlord at an appropriate place.
G. No signaling, telegraphic or telephonic instruments or devices, or
other wires, instruments or devices, shall be installed in connection
with any demised premises without the prior written approval of
Landlord. Such installations, and the boring or cutting for wires,
shall be made at the sole cost and expense of Tenant and under control
and direction of Landlord.
Landlord retains, in all cases, the right to require (1) the
installation and use of such electrical protecting devices that
prevents the transmission of excessive current of electricity into or
through the building, (2) the changing of wires and of their
installation and arrangement underground or otherwise as Landlord may
direct, and (3) compliance on the part of all using or seeking access
to such wires with such rules as Landlord may establish relating
thereto. All such wires used by Tenants must be clearly tagged at the
distribution boards and junction box and elsewhere in the building
with (1) the number of the demised premises to which said wires are
used, (2) the purpose for which said wires are used, and (3) the name
of the company operating same.
-8-
H. Tenant, their agents, servants, employees, invitees, licensees, or
visitors shall not:
1) enter into or upon the roof of the building or any storage,
electrical or telephone closet, or heating, ventilation, air
conditioning, housing areas;
2) use any additional method of heating or air conditioning;
3) sweep or throw any dirt or other substances into the
corridors or from the building;
4) bring in or keep in or about the demised premises any
vehicles, bicycles, motorcycles or animals of any kind; NO
PETS ALLOWED.
5) install any radio or television antennas or any other device
or item on the roof, exterior walls, windows or window xxxxx
of the building;
6) deposit any trash, refuse, cigarettes, or other substance of
any kind within or out of the building, except in the refuse
containers provided thereof.
7) use any demised premises:
a) for any immoral or unlawful purpose;
b) for lodging or sleeping
c) for cooking or the distribution of food, except for the
use by any Tenant Underwriter's Laboratory equipment
for brewing coffee, tea, and similar beverages,
provided that such use is in compliance with law.
8) be permitted to operate any device that may produce an
offensive odor, cause noise, vibrations or air waves to be
heard or felt outside the leased premises or which may omit
electrical waves that will impair radio, television or any
other forms of communication system.
I. In no event shall any person bring into the building inflammables such
as gasoline, kerosene, naphtha and benzine, or explosives or firearms
or any other article of intrinsically dangerous nature. If by reason
of the failure of Tenant to comply with the provisions of this
paragraph, any insurance premium payable by Landlord for all or any
part of the building shall at any time be increased above normal
insurance premiums for insurance not covering the items aforesaid.
Landlord shall have the option to either terminate the Lease or to
require Tenant to make immediate payment for the whole of the
increased insurance premium.
J. Tenant shall comply with all applicable federal, state and municipal
laws, ordinances and regulations and building rules, and shall not
directly or
- 9 -
indirectly make use of the premises which may be prohibited thereby or
which -
shall be dangerous to person or property or shall increase the cost of
insurance or require additional insurance coverage.
K. If Tenant desires signal, communication, alarm or other utility or
service connection installed or changed, the same shall be made at the
expense of Tenant, with approval and under direction of Landlord.
L. No canvassing, soliciting, distribution of handbills or other written
material shall be permitted in the building.
M. No auction, selling-out, bankruptcy or fire sales shall be conducted
on or about the leased premises without the prior written consent of
Landlord.
N. Tenant shall give Landlord prompt notice of all accidents to or
defects in air conditioning equipment, plumbing, electrical facilities
or any part of appurtenances of the leased premises.
O. If the leased premises demised to any Tenant becomes infested with
vermin, such tenant, at its sole cost and expense shall cause its
leased premises to be exterminated from time to time to the
satisfaction of Landlord.
P. Tenant shall not use the name of Energy Park Place, or use pictures or
illustrations of Energy Park Place in advertising, notices,
correspondence, or other publicity, without prior written consent of
Landlord.
Q. Tenant shall not waste electricity or water and agrees to cooperate
fully with Landlord to assure the most effective operation of the
building's heating and air conditioning system, and shall not adjust
any controls.
R. Tenant assumes full responsibility for protecting its space from
theft, robbery, and pilferage, which includes keeping doors locked and
other means of entry to the space closed and secure. Landlord shall
be in no way responsible to the Tenants, their agents, employees, or
invitees for any loss of property from the leased premises or public
areas or for any damages for any property thereon from any cause
whatsoever.
S. Tenant shall not install and operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of
the premises without the written permission of the Landlord.
T. No person or contractor not employed by Landlord shall be used to
perform window washing, cleaning, decorating, repair or other work in
the premises without the express written consent of Landlord. No
hook, nails or screws shall be driven into or inserted in any part of
the building except by building maintenance personnel.
- 10 -
U. Landlord or its agents or employees shall have the right to enter the
leased premises to examine the same or to make such repairs,
alterations, or additions as Landlord shall deem necessary for the
safety, preservations, or improvement of the premises and building.
V. Tenant shall not permit picketing or other union activity involving
its employees in the building except in those locations and subject to
time and other limitations as to which Landlord may give prior written
consent.
W. Prior written approval, which shall be at Landlord's sole discretion,
must be obtained for installation of any solar screen material, window
shades, blinds, drapes, or other similar equipment and any window
treatment of any kind whatsoever other than the building standard
window treatment. Landlord will control internal lighting that may be
visible from the exterior of the building and shall have the right to
change any unapproved lighting, without notice to Tenant, at Tenant's
expense.
X. The common areas of the building are not for the use of the general
public, and Landlord shall in all cases retain the right to control or
prevent access thereto by all persons whose presence, in the judgement
of the Landlord, shall be prejudicial to the safety, character,
reputation or interests of the building and its Tenants.
Y. Tenant shall not store any vehicles in or around the property without
the written approval of CB Commercial.
Z. Landlord reserves the right to rescind, make reasonable amendments,
modifications and additions to the rules and regulations heretofore
set forth, and to make additional reasonable rules and regulations as
in Landlord's sole judgement, may from time to time be needed for the
safety, care, cleanliness and preservation of good order of the
building. Landlord shall not be responsible for any violation of the
foregoing rules and regulations by other Tenants of the building and
shall have no obligation to enforce the same against other Tenants.
10.1 JANITORIAL SERVICE SPECIFICATIONS
These specifications are listed as a guide for the tenant when securing
janitorial services for their space. The tenant is responsible for the
nightly, weekly, monthly, quarterly, semi-annually and annual janitorial
services within their space.
A. TENANT OCCUPIED SUITES
1. NIGHTLY SERVICES
- 11 -
a) Secure all lights as soon as possible each night.
b) Vacuum all carpets.
c) Dust mop all resilient and composition floors with treated dust
mops. Damp mop to remove spills and water stains as
required.
d) Dust all desks and office furniture with treated dust cloths.
e) Papers and folders on desks are not to be moved.
f) Sanitize all telephone receivers.
g) Empty all ashtrays and ash urns. Clean and sanitize as required.
h) Empty all waste baskets and other trash containers.
i) Remove all trash from floors to the designated trash areas.
j) Remove fingerprints, dirt smudges, graffiti, etc., from all
doors, frames, windows, light switches, walls.
k) Return chairs and waste baskets to proper positions.
1) Clean, sanitize and polish drinking fountains.
m) Polish all interior public corridor planters.
n) Dust and remove debris from all metal door thresholds.
o) Wipe clean smudged bright work.
p) Spot clean all carpets, resilient and composition floors as
required.
q) Service all walk-off mats as required.
r) Close all blinds at exterior windows.
s) Check for burned out lights and replace them.
2. WEEKLY SERVICES
a) Dust all low reach areas including, but limited to, chair rungs,
structural and furniture ledges, baseboards, window
- 12 -
xxxxx, door louvers, wood paneling molding, etc.
b) Dust inside of all door jambs.
c) Clean and polish all metal door thresholds.
d) Wipe clean and polish all bright work.
e) Sweep all service stairwells.
f) Dust all vinyl baseboards.
g) Edge all carpeted areas.
h) Move all plastic carpet protectors and thoroughly vacuum under
and around all desks and office furniture.
i) Clean and spray buff all building standard resilient and/or
composite flooring.
j) Sweep floor terraces.
3. MONTHLY SERVICES
a) Dust all high reach areas including, but not limited to, tops of
door frames, structural and furniture ledges, air conditioning
diffusers and return grills, tops of partitions, picture frames,
etc.
b) Vacuum upholstered furniture.
c) Wash waste basket.
d) Dust, in place, all pictures and wallhangings.
e) Dust or vacuum all air grills.
4. QUARTERLY SERVICES
a) Shower-scrub or otherwise recondition all resilient or
composition flooring to provide a level of appearance equivalent
to a completely refinished floor.
b) Wipe down all vertical blinds at exterior windows as recommended
by manufacturer.
- 13 -
5. SEMI-ANNUAL SERVICES
a) Steam extraction shampoo all carpeted floors in public areas
only. Submit proposed cleaning schedule.
6. ANNUAL SERVICES
a) Dust ceiling surfaces, other than acoustical ceiling material.
B. RESTROOM SERVICE SPECIFICATIONS (COMMON AREAS)
1. NIGHTLY SERVICE
a) Restock all restrooms with supplies from the janitorial
contractor's stock including paper towels, toilet tissue, seat
covers, and hand soap, as required.
b) Restock all sanitary napkin and tampon dispensers from
contractor's stock, as required. Supplies for and proceeds from
this service are the sole responsibility of the janitorial
contractor. The proceeds of this service are to be given to the
owner.
c) Wash and polish all mirrors, dispensers, faucets, flushometers,
and bright work with non-scratch disinfectant cleaners.
d) Wash and sanitize all toilets, toilet seats, urinals and sinks
with non-scratch disinfectant cleaner. Wipe dry all sinks.
e) Remove stains, descale toilets, urinals and sinks as requested.
f) Mop all restrooms floors with disinfectant germicidal solution.
g) Empty and sanitize all waste and sanitary napkin and tampon
receptacles.
h) Remove all restroom trash from building.
i) Spot clean fingerprints, marks and graffiti from walls,
partitions, glass, aluminum and light switches as required.
j) Empty and damp wipe all ashtrays.
k) Report all fixtures not working property to the supervisor.
- 14 -
Janitorial supervisor to send the list to the Building Manager.
* Tenants who share restrooms with an adjacent space are both
responsible for cleaning and supplies.
2. WEEKLY SERVICES
a) Dust all low reach and high reach areas including but not limited
to, structural ledges, mirror tops, partition tops and edges, air
conditioning diffusers and return air grills.
3. MONTHLY SERVICES
a) Wipe down all tile walls and metal partitions. Partitions shall
be left in an unstreaked condition after this work.
b) Clean all ventilation frills.
Dust all doors and door jambs.
4. QUARTERLY SERVICES
a) Thoroughly clean and reseal all ceramic tile floors, using
approved sealers.
C. CLEANING STORE ROOMS, SERVICE CORRIDORS, ROOF AND SERVICE CLOSETS
NOTE:
Nightly and periodic services for offices, corridors, locker rooms and
restrooms included in the above areas shall be per the specifications
previously outlined for tenant areas and common areas on tenant floors.
Additional work not previously specified shall be as follows:
1. NIGHTLY SERVICE
a) Remove trash from all of the above areas.
b) Maintain an orderly arrangement of all janitorial supplies and
paper products in the storage rooms and service closets.
- 15 -
c) Maintain an orderly arrangement of all equipment stored in these
areas such as mops, buckets, brooms, vacuum cleaners, scrubbers,
etc.
d) Clean and disinfect service sinks.
e) Sweep and damp mop service closet floors. Deodorize and
disinfect as required.
f) Sweep store room floors.
g) Receive and store all janitorial supplies in an orderly manner.
2. Weekly Services
a) Damp mop all composition floors in store rooms. Deodorize and
disinfect as required.
b) High dusting of these areas including all pipes, ducts, conduit,
ventilating diffusers and grills and mechanical, electrical
equipment, exposed beneath the hung-ceilings outside of the
mechanical equipment room.
D. EXTERIOR STRUCTURE AND GROUNDS SERVICES SPECIFICATIONS
The Owner is responsible for the exterior cleanliness of the property. The
following specifications apply to these areas.
1. Nightly Services
a) Police entire perimeter of building including landscaped areas,
storm drain grills, and ventilation grills, including public
sidewalks.
b) Spot sweep accumulations of dirt, papers and leaves in all xxxxx
areas where wind tends to cause a collection of this debris.
c) Spot clean and dust all architectural aluminum and ledges around
entrances to the building.
d) Spot clean all exterior glass at building entrances.
e) Sweep sidewalk, steps and landscaped area, walks and benches
- 16 -
leading to the main entry doors.
f) Clean building entrances periodically.
- 17 -
ENERGY PARK PLACE LEASE
GUARANTY
This Guaranty is attached to a Lease dated as of the 15 day of SEPTEMBER
1993, by and between the PORT AUTHORITY OF THE CITY OF SAINT XXXX ("Lessor") and
ENDOCARDIAL THERAPEUTICS, INC., a Minnesota corporation, ("Tenant").
The undersigned, in consideration of the leasing of the Leased Premises
described in the attached Lease to the Tenant therein mentioned, at the request
of the undersigned and on the faith of this Guaranty, hereby absolutely,
unconditionally and irrevocably guarantee to Lessor the full and complete
performance of all of the Tenant's covenants and obligations under said Lease,
including extension, renewal or holdover thereof, and the full payment by Tenant
of all Annual Base Rent, Annual Percentage Rent, additional rent and all other
charges and amounts required to be paid under the Lease, and the undersigned
will pay all Lessor's expenses,, including attorney's fees, incurred in
enforcing the obligation of Tenant under said Lease, or incurred in enforcing
this Guaranty.
The undersigned hereby waive all requirements of notice of the acceptance
of this Guaranty A. The undersigned's obligation hereunder shall remain fully
binding although: (a) Lessor may have waived one or more defaults by Tenant,,
extended the time of performance by Tenant, modified or amended the Lease,
released returned or misapplied other collateral given later as additional
security (including other guaranties) or released Tenant from the performance of
its obligation under such Lease; or (b) Tenant may have assigned, sublet or
otherwise transferred the Lease.
The undersigned shall not be subrogated to any of the rights of Lessor
under the Lease or in or to the Premises described therein, or to any other
rights of Lessor, by reasons of any of the provisions of this Guaranty or by
reason of the performance by the undersigned of any of its or their obligations
under this Guaranty.
This Guaranty shall survive expiration or termination of the Lease.
Without limiting the generality of the foregoing, the undersigned hereby
acknowledge that if the holder of any mortgage, deed of trust, underlying ground
lease, holder of any like encumbrance or purchaser at foreclosure shall succeed
to the interests of Lessor under this Lease, the undersigned shall continue as
guarantors of the Lease and said Guaranty shall remain in full force and effect
for the benefit of any holder of said encumbrances or foreclosure purchaser, as
the case may be.
1
If this Guaranty is signed by more than one person, their obligations shall be
joint and several and the release of one such guarantor shall not release any
other of such guarantors. This Guaranty shall be binding upon the undersigned
and their respective heirs, executors, administrators, representatives,
successors and assigns.
GUARANTOR:
____________________________________
Xxxxxxx X. Xxxx
GUARANTOR:
____________________________________
Xxxxxxx X. Xxxxxx
2
LEASE MODIFICATION AND EXTENSION AGREEMENT
THIS LEASE MODIFICATION AND EXTENSION AGREEMENT is made this 6th day of February
1995, by and between PORT AUTHORITY OF THE CITY OF ST. XXXX, a public body of
Corporate and politic created pursuant to Chapter 469 of Minnesota statutes,
herein called "Lessee" and ENDOCARDIAL SOLUTIONS, INC., a Minnesota Corporation
herein called "Lessee".
RECITALS
WHEREAS, by a lease dated Sept. 15 1993, ENDOCARDIAL THERAPEUTICS, INC. did
lease to Lessee Suite(s) 110E on the first floor(s) in that certain office
building known as ENERGY PARK PLACE EAST BUILDING located at 0000 Xxxxxx Xxxx,
Xx. Xxxx, Xxxxxxxxx 00000 . Said space consists of approximately 12,517 rentable
square feet, is shown in Exhibit A attached to said lease, and is herein called
the "premises" and the "existing space"; and
WHEREAS, Lessee is the successor to the interests of Endocardial Solutions,
Inc. under said lease; and
WHEREAS, the term of said lease is scheduled to expire on September 30 1996
and
WHEREAS, the parties wish to add certain space to the premises, extend the
term of said lease, and make certain changes to said lease.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in said lease, the parties hereto agree as follows:
1. ENLARGEMENT OF PREMISES: Effective as of April 1 1995, the
description of the premises contained in said lease is amended so as to add
Suite(s) 107E consisting of approximately 2,157 rentable square feet and
hereinafter called the "additional space". As of April 1, 1995, the total space
(hereinafter called the "enlarged premises") leased to Lessee under said lease
shall consist of a total area of approximately 14,674 rentable square feet. The
enlarged premises are generally shown on the floor plan(s) attached hereto as
Exhibit "A", which exhibit is made a part hereof by this reference. As of April
1, 1995, that certain Exhibit "A" attached to said lease is hereby superseded
(by Exhibit "A" attached hereto) and of no further force and effect.
2. EXTENSION OF LEASE TERM: The term of said lease is hereby extended
(for the enlarged premises) for period of six (6) months from October 1, 1996 to
and including March 31 ,1997 unless otherwise terminated as provided in said
lease.
3. RENT: As of April 1 1995, the monthly base rent payable under said
lease shall be increased by
$1,188.15/$6. 61psf net) per month for the extended term of said lease, said
rent for Suite 110E for the period 10/1/96-3/31/97 shall be $4.95/psf net
(12,517 rsf). The base rent, as increased herein, shall continue to be, payable
in advance by the first of each month and subject to Lessee's total share of
common area maintenance, taxes, HVAC< electrical, janitorial and garbage. If
the additional space is added to the premises on a date other than the first or
last day of the month, the resulting increase in rent shall be prorated for such
partial month.
4. CONDITION OF EXISTING AND ADDITIONAL SPACE: Lessee is presently in
possession of the existing space and accepts same for said extended term in its
present condition as of the date hereof. Lessee has inspected the additional
space and accepts same in its present condition as of the date hereof. Any
improvements to be done by Lessee to the additional space shall be at Lessee's
sole cost and expense, and shall be performed in accordance with the provisions
of in said lease.
5. OTHER LESSEE(S) IN POSSESSION OF ADDITIONAL SPACE: The additional
space is presently occupied by other lessee(s) who intend(s) to vacate said
additional space prior to February 28, 1995. Lessee agrees not to hold Lessor
in any way responsible for any delay by such other lessee(s) in vacating the
additional space, except that the provisions of this Agreement shall not become
effective until such date as the additional space has been vacated by such other
lessee(s). This Agreement is subject to the full execution of a lease
termination of the existing lessee.
2
6. AUTHORITY: If Lessee is a corporation, each individual executing this
Agreement on behalf of such corporation represents and warrants that Lessee is a
duly authorized and existing corporation, that such corporation has (and is
qualified to do) business in the State of Minnesota, that such corporation has
full right and authority to enter into this Agreement, and that each person
signing this Agreement on behalf of such corporation is authorized to do so.
If Lessee is a division or subsidiary of a corporation:
(a) Each of the persons executing this Agreement on behalf of Lessee
does hereby covenant and warrant that the parent corporation is a duly
authorized and existing corporation, that Lessee or the parent corporation has
(and is qualified to do) business in the State of Minnesota, that Lessee has
full right and authority to enter into this Agreement on behalf of the parent
corporation as well as on its own behalf, and that each person signing this
Agreement on behalf of Lessee was authorized to do so; and
(b) Lessee shall, within 30 days after request by Lessor, deliver to
Lessor a certified copy of a resolution of the Board of Directors of the parent
corporation authorizing or ratifying the execution of this Agreement.
If Lessee is a partnership, each individual executing this
Agreement on behalf of said partnership represents and warrants that he or she
is duly authorized to sign and deliver this Agreement on behalf of said
partnership and that this Agreement is binding upon said partnership in
accordance with its terms.
If this Agreement is signed by only one person on behalf of
Lessee, that person represents and warrants to Lessor that his or her signature
alone is sufficient to bind Lessee to the provisions of this Agreement.
7. MISCELLANEOUS:
(a) The provisions of this Lease Modification and Extension Agreement
shall be fully applicable to the enlarged premises and shall remain in full
force and effect for the duration of the term of said lease, as extended herein.
(b) Except as otherwise set forth herein, all of the terms and
conditions of said lease shall remain in full force and effect, and shall be
fully applicable to the additional space as well as the existing space,
throughout the duration of the term of said lease, as extended herein. Said
lease, as amended and extended herein, constitutes the entire agreement between
the parties hereto, and no further modification of said lease shall be binding
unless evidenced by an agreement in writing signed by Lessor and Lessee.
(c) The captions and paragraph numbers appearing in this Agreement
are inserted only as a matter of convenience and in no way define, limit,
construe, affect or describe the scope or intent of the provisions in this
Agreement.
8. This Lease Modification and Extension Agreement will not be in effect
until duly signed by Lessor and Lessee.
9. IMPROVEMENTS/RENT CREDIT: Provided Lessee is not in default, and
Lessee completes the following at Lessee's expense:
A) Tie in all stray electrical lines in Suite 107E to a common meter
in Suite 110E.
B) Spend a minimum of $7,000 for HVAC economizers in Suite 110E.
C) Spend a minimum of $13,000 for the electrical upgrade to 800 amp
service.
D) Make HVAC modifications already agreed to for Suite 110E per the
September 16, 1994 phase Improvements Agreement with the property
manager,
Lessee shall receive a $20,000 rent credit spread evenly over the
months April 1, 1995 to September 30, 1995.
10. RIGHT OF CANCELLATION: Article 50 is hereby deleted with no further
force or effect.
3
11. EXTENSION OF TERM: Article 53 shall be modified as follows:
Term (A): Add the following: Annual rent for Suite 107E shall be equal
to market rent as of the commencement of that extended term, but in no
event greater than $6.61/psf net plus Lessee's share of all operating
expenses.
Term (C): The term shall be three (3) years commencing upon expiration
of the extended term.
12. LONG TERM EXPANSION: In the event Lessee's expansion needs cannot be
accommodated at 0000 Xxxxxx Xxxx, the Port Authority of the City of Saint Xxxx
will receive a first option of expansion notice for Lessee's new location
requirement and will receive the opportunity to present options to stay in St.
Xxxx. This is a first right, but not an exclusive right and is not a restrictive
right.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Modification
and Extension Agreement as of the day and year first above written
LESSOR LESSEE
PORT AUTHORITY OF THE CITY OF SAINT XXXX ENDOCARDIAL SOLUTIONS, INC.
By By
------------------------------------ ------------------------------
Its Its
------------------------------------ ------------------------------
By By
------------------------------------ ------------------------------
Its Its
------------------------------------ ------------------------------
4
EXHIBIT A
ENERGY PARK PLACE EAST
[MAP]
CB COMMERCIAL
REAL ESTATE GROUP, INC.
February 7, 1995
VIA FAX
FAX: 000-0000
Xx. Xxxx Xxxxxxxxxxx
Vice President Manufacturing
ENDOCARDIAL SOLUTIONS, INC.
0000 Xxxxxx Xxxx
Energy Xxxx Xxxxx Xxxx #000X
Xx. Xxxx, XX 00000
RE: UPDATED LEASE PROPOSAL AT ENERGY PARK PLACE
Dear Dick:
On behalf of The Port Authority of the City of Saint Paul, CB Commercial Real
Estate Group, Inc. is pleased to present this updated proposal to ENDOCARDIAL
SOLUTIONS, INC. (ETI) to expand and extend its lease at Energy Park Place on the
following terms and conditions:
1. SUBJECT SPACE: 0000 Xxxxxx Xxxx, Xx. Xxxx, Xxxxxxxxx 00000 (approximate
square footage):
Expansion: 107E 1,409 RSF Office
748 RSF Warehouse
---
2,157 RSF TOTAL
Existing: 110E 12,517 RSF
------
14,674 RSF TOTAL
2. LEASE TERM: Commencing April 1, 1995, or upon occupancy, whichever shall
first occur. Tenant will have occupancy in Suite 107E for construction of
improvements once the existing tenant vacates (March 1, 1995 estimated).
Expanding coterminous (one year, six months) with the current expiration
9/30/96, plus six (6) additional months for a new master expiration of March 31,
1997.
3 NET LEASE RATES:
Suite Months Rate PSF Blended Net Rate
107E 04/01/95 - 03/31/97 $8* net office $6.61*/RSF Net
(24 months) $4* net warehouse
110E 10-/01/96 - 03/31/97 $4.95* $4.95*/RSF Net
(6 months)
* TENANT ALSO RESPONSIBLE FOR ITS SHARE OF TOTAL ESTIMATED OPERATING EXPENSES
FOR TERM
4. 1995 ESTIMATED OPERATING EXPENSES: Tenant is responsible for its total
share of real estate taxes, common area maintenance (CAM) and heating,
ventilation, air conditioning and water supply (HVAC) costs for the term.
1995: $5.70/RSF ESTIMATED TAX/CAM/HVAC
Xx. Xxxx Xxxxxxxxxxx
February 7, 1995
Page 2
5. IMPROVEMENT: As is. Any improvements will be Tenant's expense. Tenant
must obtain a performance payment bond on all improvements over $10,000 and use
licensed, bonded, insured contractors. Tenant must comply with Energy Park HVAC
regulations. All plans must have prior Landlord approval. Tenant is
responsible for all architectural and demolition costs. Tenant must SEPARATE
the electrical wiring at Tenant's expense, in the expansion space, Suite 107 E,
tying it into one common meter in its existing separately metered Suite 110E, in
the event it is not separately metered. Tenant agrees to spend a minimum of
$7,000 for HVAC economizers in its existing suite, and $13,000 for the
electrical upgrade to 600 amp service by April 1, 1995, for which Tenant will
receive a $20,000 rent credit spread evenly over the months April 1, 1995 to
September 30, 1995. Tenant will also make HVAC modification already agreed to
for their existing space (the September 16, 1994 Phase 11 Imp.) agreement with
the property manager.
6. ELECTRICAL COSTS: Tenant is also responsible for its share of separately
metered electrical from NSP for the entire term.
7. JANITORIAL COSTS/GARBAGE COSTS: Tenant's responsibility.
8. RIGHT OF CANCELLATION: The only remaining Tenant's right of cancellation
will be made null and void with no further force or effect.
9. FIRST MONTH'S RENT: Due is the first month's gross rent when Tenant signs
lease.
10. OPTION TO RENEW: Renewal terms for Suite 107E will be at market, not to
exceed $6.61 per rentable square foot. The current option to renew on the
existing suite will be moved six months out.
11. REPRESENTATION: CB Commercial represents only the Landlord in this
transaction.
12. LEASE FORM: Landlord's standard lease form for your attorney's review.
13. LONG TERM EXPANSION: In the event Tenant's expansion needs cannot be
accommodated at 0000 Xxxxxx Xxxx, the Port Authority will receive a first option
of expansion notice for Tenant's new location requirement and will receive the
opportunity to present options to stay in St. Xxxx. This is a first right, but
not an exclusive right, and is not a restrictive right.
14. CONTINGENCIES: This proposal is contingent upon:
1) A signed proposal by FEBRUARY 10, 1995.
2) A lease execution by February 10, 1995.
3) A lease commencement on April 1, 1995.
3) Final terms and legal language approved by Landlord.
4) Existing tenant signing a termination and relocation agreement by
February 10, 1995.
4) Removal of existing tenant.
5) Other outstanding proposals.
6) Review of Tenant's latest audited corporate financial statements.
7) Landlord reserves the right to withdraw from negotiations at any time
for any reason. Only an executed lease amendment will bind the
parties.
Xx. Xxxx Xxxxxxxxxxx
February 7, 1995
Page 3
This aggressive financial package outlined above, combined with the following
benefits, should make a Lease renewal and expansion at Energy Park Place the
clear choice.
A. Convenient access/central location
B. Professionally landscaped
C. Free parking - subject to availability
D. Bus service - subject to MTC changes
E. Restaurants in the area
F. Neighboring hotels
G. Business services in the area
H. Professional image/mature landscaping
I. Expansion space may be available
J. Conference rooms/two-story atriums on site
K. Vending machines on site
L. Institutional Landlord
M. Professional property management with 24-hour emergency service
N. Sprinklered suites
O. Security service tours property
P. Recycling service available
Dick, we are eager to work with ENDOCARDIAL SOLUTIONS, INC. to put together a
Lease amendment that meets both your needs and those of The Port Authority of
the City of Saint Xxxx. Please sign below with acceptance of this non-binding
proposal, fax a copy, along with the financials, to my attention. If you have
any questions regarding this proposal, please do not hesitate to call me.
Thanks.
Very truly yours, AGREED AND ACCEPTED:
ENDOCARDIAL SOLUTIONS, INC.
Xxxxxx X. Xxxxxxxx
Senior Associate By:
(000) 000-0000 -------------------------------
Its:
------------------------------
Date:
-----------------------------
cc: Xxxxx Xxxx/CB Commercial Brokerage Services
Xxxxx Xxxxxxx/CB Commercial Property Management
Xxxx Xxxxx/Port Authority of the City of St. Xxxx
CONSULT YOUR ADVISORS - THIS DOCUMENT HAS BEEN PREPARED FOR APPROVAL BY YOUR
ATTORNEY. NO REPRESENTATION OR RECOMMENDATION IS MADE BY CB COMMERCIAL AS TO
THE LEGAL SUFFICIENCY OR TAX CONSEQUENCES OF THIS DOCUMENT OR THE TRANSACTION
TO WHICH IT RELATES. THESE ARE QUESTIONS FOR YOUR ATTORNEY.
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT WITH A
PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST OR OTHER PERSON,
WITH EXPERIENCE IN EVALUATING THE CONDITION OF THE PROPERTY, INCLUDING THE
POSSIBLE PRESENCE OF ASBESTOS, HAZARDOUS MATERIALS, LEAD PAINT AND UNDERGROUND
STORAGE TANKS.
THE PARTIES HERETO AGREE TO COMPLY WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL
NEWS, REGULATIONS, CODES, ORDINANCES, AND ADMINISTRATIVE ORDERS HAVING
JURISDICTION OVER THE PARTIES, PROPERTY OR THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, THE 1964 CIVIL RIGHTS ACT AND ALL AMENDMENTS
THERETO, THE FOREIGN INVESTMENT IN REAL ESTATE PROPERTY TAX ACT, THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT AND THE
AMERICANS WITH DISABILITIES ACT.
CB COMMERCIAL
REAL ESTATE GROUP, INC.
February 7, 1995
VIA FAX
FAX: 000-0000
Xx. Xxxx Xxxx
ENDOCARDIAL SOLUTIONS, INC.
0000 Xxxxxx Xxxx
Energy Xxxx Xxxxx Xxxx #000X
Xx. Xxxx, XX 00000
RE: LEASE MODIFICATION AND EXTENSION AGREEMENT DATE FEBRUARY 6,1995
Dear Xxxx:
This letter is to modify your most recent Lease Modification and Extension
Agreement dated February 6, 1995, with the change made to Clause II-C. The
electrical upgrade will now be changed to a 400-amp service.
Additionally, Xxxx Xxxxxxxxxxx has requested to remove the supplemental cooling
unit which is currently being installed into your clean room area if Endocardial
Solutions were ever to vacate in the future. The St. Xxxx Port Authority is in
agreement with this as long as the entire space is adequately heated and cooled
with approved HVAC equipment connected to the Energy Park Utility Plant. All
holes, gaps and any other modifications would be required to restore this area
to an acceptable standard by the Landlord.
As previously mentioned, you have been approved to go ahead with the tenant
improvement work proposed and contracted directly by you and Xxxxxx-Xxxxxxxx Co.
This is in accordance to our discussions and Xxxxxx-Xxxxxxxx contract dated
March 23, 1995. This also includes the Yale Mechanical specs of March 14, 1995.
Please sign below with your approval and return the original copy to me. You
may reach me at the above mentioned numbers with any further questions.
Sincerely, ACCEPTED BY:
---------------------------
Xxxxxxxxx X. Xxxxxxx, CPM Name/Title
----------------------------
Date
LEASE AMENDMENT NUMBER TWO
THIS LEASE AMENDMENT, is made this 16th day of May, 1995, by and between
Port Authority of the City of St. Xxxx, a Public Body Corporate and Politic,
created pursuant to Chapter 469 of Minnesota Statutes, herein called 'Lessor"
and Endocardial Solutions, Inc., an Minnesota Corporation, herein called
"Lessee'.
AGREEMENT
AS AN ADDITION TO CLAUSE NUMBER SEVEN 'OPERATING EXPENSES" in your Lease
dated September 15, 1993, and Lease Modification and Extension Agreement dated
February 6, 1995, the real estate tax language is amended as follows:
The space occupied by Tenant is subject to real estate taxation or a tax in
lieu thereof during the lease term. Nonetheless, the parties acknowledge that
because the Port Authority is a governmental agency, space in the Building not
leased to for-profit entities is exempt from real estate taxes. tenant's share
of Operating Expenses attributable to real estate taxes will be calculated based
on the following formula:
Total Building Real Estate Taxes Payable - Special Assessment = Per square foot rate
-------------------------------------------------------------------------------------
Building's Total Taxable Rentable Square Footage
(Effective June 30th of Each Year and Payable Following Year)
Total Building Special Assessments For Real Estate Taxes = Per square foot rate
--------------------------------------------------------------------------------
Building's Total Square Footage
Total per square foot rate x tenant's square footage = annual payment (paid monthly
per budget
estimate and adjusted to
actual expense each year)
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Amendment as
of the day and year first written above.
LESSOR: LESSEE:
Port Authority of Endocardial Solutions, Inc.
City of Saint Xxxx
By: By:
---------------------------- ------------------------------
Its: Its:
---------------------------- -------------------------------
By: By:
---------------------------- -------------------------------
Its: Its:
----------------------------- -------------------------------
LEASE AMENDMENT NUMBER THREE
THIS LEASE MODIFICATION AND EXTENSION AGREEMENT is made this 4th day of
June, 1996, by and between the PORT AUTHORITY OF THE CITY OF ST. XXXX, a public
body corporate and politic, created pursuant to Chapter 469 of Minnesota
Statues, herein called 'Lessor", and ENDOCARDIAL SOLUTIONS, INC., a Delaware
corporation, herein called 'Tenant'.
RECITALS
WHEREAS, by a lease dated September 15, 1993, Endocardial Therapeutics,
Inc. did lease to Tenant Suite 110E on the first floor in that certain office
building known as Energy Park Place East Building, located at 0000 Xxxxxx Xxxx,
Xx. Xxxx, Xxxxxxxxx. Said space consists of approximately 12,517 rentable
square feet, is shown in Exhibit A attached to said lease, and is herein called
the "premises' and the 'existing space'; and by Lease Modification and Extension
Agreement dated February 6, 1995, Tenant did lease Suite 107E and extended term;
and by Lease Amendment Number Two dated May 16, 1995, the tax clause was
modified; and
WHEREAS, the term of said lease is scheduled to expire on March 31, 1997;
and
WHEREAS, Tenant is the successor to the interests of Endocardial Solutions,
Inc., a Minnesota corporation under said Lease; and
WHEREAS, the parties wish to add certain space to the premises, extend the
term of said lease, and make certain changes to said lease.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in said lease, the parties hereto agree as follows:
1. ENLARGEMENT OF PREMISES: Effective as of July 1, 1996, the description
of the premises contained in said lease is amended so as to add Suite 1113E,
consisting of approximately 2,805 rentable square feet and hereinafter called
the "additional space". As of July 1, 1996, the total space (hereinafter called
the "enlarged premises") leased to Tenant under said lease shall consist of a
total area of approximately 17,479 rentable square feet. The enlarged premises
are generally shown on the floor plan attached hereto as Exhibit "A", which
exhibit is made a part hereof by this reference. As of July 1, 1996, that
certain Exhibit "A" attached to said lease is hereby superseded (by Exhibit "A'
attached hereto) and of no further force and effect.
2. EXTENSION OF LEASE TERM: The term of said lease is hereby extended
(for the enlarged premises) for a period of six (6) months from April 1, 1997,
to and including September 30, 1997, unless otherwise terminated as provided in
said lease.
3. RENT: The following increase in base rent payable shall be as follows
for the extended term of said lease.
SUITE DATES SF NET/SF MONTHLY NET
113E 7/l/96 - 11/30/96 900 $8.00 $600.00 Partial suite
(op. exp.
based only
on 900 SF)
12/l/96 - 9/30/97 2,805 $8.00 $1,870 Entire suite
107E 4/l/97 - 9/30/97 2,157 $6.61 $1,188.15
110E 4/l/97 - 9/30/97 12,517 $4.95 $5,163.26
The base rent, as increased herein, shall continue to be payable in advance by
the first of each month and subject to operating expenses. If the additional
space is added to the premises on a date other than the first or last day of the
month, the resulting increase in rent shall be prorated for such partial month.
4. CONDITION OF EXISTING AND ADDITIONAL SPACE: Tenant is presently in
possession of the existing space and accepts same for said extended term in
its present condition as of the date hereof. Tenant has inspected the
additional space and accepts same in its present condition as of the date
hereof. Any improvements to be done by Tenant to the additional space shall
be at Tenant's sole cost and expense, and shall be performed in accordance
with the provisions of said lease. Pursuant to Sections 5 and 6 of this
lease, and provided Lessor approves plans, and contractors are licensed,
bonded and insured, and HVAC modifications comply with Energy Center
regulations, Tenant shall proceed to complete certain improvements to Suite
113E as shown on attached Exhibit D. Provided Tenant is not in default, and
in consideration of Tenant accepting the premises in "as-is" condition and
completing its own tenant improvements, Lessor agrees to reimburse Tenant for
the cost of building standard improvements, including architectural fees,
permits, performance payment bonds, demolition, and construction financing,
prior to September 1, 1996. The tenant improvement reimbursement shall be
given to Tenant in the form of Net Rent Abatement. Upon completion of tenant
improvements, Tenant shall present Lessor with copies of all invoices,
contractor unconditional lien releases and complete set of "As-Built"
drawings. Then, Tenant and Lessor agree to execute an amendment to this lease
setting forth the amount of Net Rent Abatement which shall be equivalent to
the actual amount Tenant spends on building standard improvements for Suite
113E, not to exceed $20,009.55 in Net Rent. If Tenant does not improve Suite
113E by said amount by September 1, 1996, said rent credit is null and void.
5. ELECTRICAL: Tenant will have access to an additional 200 amp
service, as designated and approved by property manager.
6. PALLET STORAGE: Tenant's pallet storage must comply with government
codes and Energy Park covenants. No exterior pallet storage is allowed.
7. PARKWAY LOT STRIPPING: Tenant will have the exclusive right to park
its automobiles immediately next to its loading dock. In the event
Lessor resurfaces the parking lot, Lessor will stripe automobile
parking stalls in front of Tenant's loading dock.
8. EXTENSION OF TERM: Article 53 of the Master Lease and Article 13 of
the First Amendment are hereby deleted, with no further force and effect, and
replaced with the following:
GRANT. Lessor hereby grants to Tenant the one-time option to extend the
Term upon the terms and conditions set out in this Article, if
(a) Tenant is not in default under this Lease, beyond the time to cure, at
the time such option is exercised and at the time such extension is to
commence, and
(b) Tenant delivers to Lessor, not later than March 31, 1997, written
notice exercising its option to extend the Term.
TERM. During the extended Term:
(a) Annual Rent shall be equal to Market Rent as of the commencement of
that extended Term, but in no event greater than:
SUITE OPTION TERM SF RENT
-------------------------------------------
#113E 10/l/97 - 3/31/99 2,805 Market terms and conditions.
#107E 10/l/97 - 3/31/99 2,157 Market terms and conditions
not to exceed $6.61 Net.
#110E 10/l/97 - 9/30/98 12,517 Market terms and conditions,
not to exceed $5.10/RSF Net.
10/l/98 - 3/31/99 12,517 Market terms and conditions,
not to exceed $5.25/RSF Net.
(b) Occupancy costs shall be as determined in the manner set out in
Lessor's then current standard form of Lease for the Building.
(c) the Term shall be eighteen (18) months, commencing upon expiration of
the original Term; and
(d) the other terms and conditions shall be as set out in this Lease,
except that there shall be no further right of renewal.
DOCUMENTATION. Lessor and Tenant shall execute and deliver appropriate
documentation to evidence extension of the Terms and terms and conditions of
this Lease during the extended Term.
NON-SEVERABILITY. The rights of Tenant under this Article will not be
severed from this Lease or separately sold, assigned or otherwise transferred,
and shall expire on the expiration or earlier termination of this Lease.
9. EXPANSION SPACES Article 52 of the Master Lease is hereby deleted with
no further force or effect.
10. AUTHORITY: If Tenant is a corporation, each individual executing this
Agreement on behalf of such corporation represents and warrants that Tenant is a
duly authorized and existing corporation, that such corporation has (and is
qualified to do) business in the State of Minnesota, that such corporation has
full right and authority to enter into this Agreement, and that each person
signing this Agreement on behalf of such corporation is authorized to do so.
If Tenant is a division or subsidiary of a corporation:
(a) Each of the persons executing this Agreement on behalf of Tenant does
hereby covenant and warrant that the parent corporation is a duly authorized and
existing corporation, that Tenant or the parent corporation has (and is
qualified to do) business in the State of Minnesota, that Tenant has full right
and authority to enter into this Agreement on behalf of the parent corporation
as well as on its own behalf, and that each person signing this Agreement on
behalf of Tenant was authorized to do so; and
(b) Tenant shall, within 30 days after request by Lessor, deliver to
Lessor a certified copy of a resolution of the Board of Directors of the parent
corporation authorizing or ratifying the execution of this Agreement.
If Tenant is a partnership, each individual executing this Agreement on
behalf of said partnership represents and warrants that he or she is duly
authorized to sign and deliver this Agreement on behalf of said partnership and
that this Agreement is binding upon said partnership in accordance with its
terms.
If this Agreement is signed by only one person on behalf of Tenant, that
person represents and warrants to Lessor that his or her signature alone is
sufficient to bind Tenant to the provisions of this Agreement.
11. MISCELLANEOUS:
(a) The provisions of this Lease Modification and Extension Agreement
shall be fully applicable to the enlarged premises and shall remain in full
force and effect for the duration of the term of said lease, as extended herein.
(b) Except as otherwise set forth herein, all of the terms and conditions
of said lease shall remain in full force and effect, and shall be fully
applicable to the additional space as well as the existing space, throughout the
duration of the term of said lease, as extended herein. Said lease, as amended
and extended herein, constitutes the entire agreement between the parties
hereto, and no further modification of said lease shall be binding unless
evidenced by an agreement in writing signed by Lessor and Tenant.
(c) The captions and paragraph numbers appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe,
affect or describe the scope or intent of the provisions in this Agreement.
12. This Lease Modification and Extension Agreement will not be in effect
until duly signed by Lessor and Tenant.
IN WITNESS WHEREOF, Lessor and Tenant have executed this Lease Modification and
Extension Agreement as of the day and year first above written.
LESSOR: TENANT:
PORT AUTHORITY OF THE CITY OF SAINT XXXX ENDOCARDIAL SOLUTIONS, INC.
By: By:
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Its: Its:
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By: By:
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Its: Its:
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MTA009.GPD
CONSULT YOUR ATTORNEY: This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker as to the
legal sufficiency, legal effect, or tax consequence of this document or the
transaction to which it relates. These are questions for your attorney and
financial advisors.
EXHIBIT A
ENLARGED PREMISES
[MAP]
EXHIBIT D
[MAP]
EXHIBIT D
XXXX
XXXXXX
CONSTRUCTION, INC.
XX. XXXX XXXXXXXXXXX
ENDOCARDIAL SOLUTIONS, INC.
0000 XXXXXX XXXX, XXXXX 000
XX. XXXX, XX 00000
ESTIMATE SUMMARY PROJECT: Endocardial Solutions, Inc.
Per plans from Xxxxxxx & Xxxxx Office Expansion
Architects dated February 22, 1996
with changes as noted below DATE: March 13, 1996
FROM: Xxxxxxx Xxxxxx
DESCRIPTION COST
Demolition $3,330
Carpentry $1,610
Millwork New base cabinet, top, and upper in Coffee Rm #110 $760
Doors, Frames, Hardware New hardware only, reuse all doors / frames $463
Drywall $1,640
Tile $760
Acoustical Ceiling $1,828
Flooring Does not include new VCT in Engineering Lab #109 per plan $5,838
Painting $3,315
Mechanical $985
Fire Protection $860
Electrical $6,550
Low Voltage Wiring $4,950
General Conditions Supervision, Permit, Bond, Etc. $2,139
-----------------------------------------------------------------------------------------------------
SUBTOTAL $35,028
Fee 8% $2,802
-----------------------------------------------------------------------------------------------------
ESTIMATE TOTAL $37,830
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CLARIFICATIONS
No. 1: All work to be completed during normal working hours.
No. 2: The floor in the Engineering Lab #109 will be scraped clean. Some
carpet glue residue may remain.
An equal opportunity employer.
