EXHIBIT 10.11
AMENDMENT ONE TO LEASE
THIS AMENDMENT ONE TO LEASE ("Amendment") is made by and
between University Research Park, Inc., a Wisconsin non-stock corporation
(hereinafter referred to as "URP" or "Landlord"), as successor by merger to
University Research Park Facilities Corp. (hereinafter referred to as "URPFC"),
and Third Wave Technologies, Inc., a Wisconsin corporation (hereinafter referred
to as "Tenant").
A. On September 1, 2001, URPFC entered into an Amended and Restated Lease
Agreement (the "Lease Agreement") with Tenant for approximately 94,726
square feet of space in a building located at 000 Xxxxx Xxxx Xxxx,
Xxxxxxxxx 00000 (the "Leased Premises").
B. Effective December 31, 2001, URPFC and URP merged, with URP as the
surviving corporation and successor to all of URPFC's rights and
obligations, including as Landlord under the Lease Agreement.
C. Landlord and Tenant wish to modify certain provisions of the Lease
Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged by each party, the following amendments to the Lease Agreement are
hereby agreed to, effective September 1, 2002 (the "Effective Date").
1. Section 1.4 of the Lease Agreement is deleted in its
entirety.
2. Section 1.5 of the Lease Agreement is deleted in its
entirety and restated as follows:
SECTION 1.5 SECURITY DEPOSIT. Tenant shall maintain with
Landlord a security deposit in the form of a cash (or equivalent)
deposit or acceptable letter of credit, in the amount of the lesser of
$1,300,000 or the amount which is then payable as the Improvement
Prepayment amount, as shown on Exhibit C, attached. This security shall
secure all of the Tenant's obligations under this Lease Agreement or
arising in the event of the Tenant's default.
The cash deposit shall consist of one, or a combination of, (i)
deposit accounts, certificates of deposit or banker's acceptances issued
by an bank organized under the laws of the U.S. or any state thereof,
with capital and undivided surplus of no less than $100,000,000.00 and a
rating by Moody's of its unsecured debt securities of no less than A,
provided that such obligations mature within 365 days from the date of
acquisition thereof; (ii) Investments in United States treasury
securities, provided that such securities mature within 365 days from
the date of acquisition thereof; (iii) investments in commercial paper
given the highest rating by a credit rating agency of recognized
national standing and maturing not more than 270 days from the date of
creation thereof; (iv) investments in mutual funds which are required to
invest only in the foregoing. In each case the deposit shall be the
subject of a pledge or security interest in favor of Landlord, and no
other
security interests or encumbrances, in form and substance satisfactory
to Landlord.
The letter of credit shall be issued by a bank organized under
the laws of the U.S. or any state thereof, with capital and undivided
surplus of no less than $100,000,000.00 and a rating by Moody's of its
unsecured debt securities of no less than A, shall have an initial term
of no less than one year, and shall enable the Landlord to draw upon it
to satisfy any obligations of the Tenant under this Lease Agreement or
to establish a cash security deposit account if the Landlord is not
furnished with a renewal of the letter of credit within fifteen (15)
days before the expiration date of the letter of credit then held.
3. Section 2.1 of the Lease Agreement is deleted in its
entirety and restated as follows:
SECTION 2-1 BASE RENT, PREPAYMENT. Tenant shall pay to
Landlord at its office in Madison, Wisconsin, or such other place as
Landlord may designate in writing, and without any deduction or offset
whatsoever, as base rent, the amounts on or in advance of the first day
of each calendar month as shown on the rent schedule attached hereto as
Exhibit C.
In the event that the interest rate on the Landlord's
financing for the improvements covered by the Improvements rent, which
is now 5.04% per annum, increases at its scheduled adjustment date, in
March, 2005, the Landlord may give written notice to the Tenant,
transmitting a revised Exhibit C, reflecting an increase in the
Improvement rent. The increase in the amount of rent shall be equal to
the increase in the amount of the Landlord's payments on its underlying
financing for the improvements, using the same period of amortization
as now applicable to the financing. Upon giving such notice the
Improvement rent shall be deemed adjusted to the amount shown on the
revised Exhibit C.
The Tenant may prepay all, but not less than all of the
portion of base rent denominated on Exhibit C as the Improvement rent
and the Deferred Base rent by paying the discounted amount shown on
Exhibit C as the Improvement Prepayment Amount and the Deferred Base
Prepayment Amount on or before September 1 of the year for which such
prepayment amount is indicated. On and after the date of such
prepayment no further Deferred Base or Improvement rent payments, as
applicable, shall be required. The Improvement rent may not be
so-prepaid unless the Deferred Base rent has previously been or is
concurrently being repaid.
Exhibit C of the Lease Agreement is deleted in its entirety and restated as
Exhibit C in the form attached hereto.
4. Section 4.3 of the Lease Agreement ii deleted in its
entirety and restated as follows:
SECTION 43 ASSIGNMENT OR SUBLETTING. Tenant agrees not to
sell, assign, mortgage, pledge or in any manner transfer this Lease or
any estate or interest there under and not to sublet the Leased
Premises or any part or parts thereof without the prior written consent
of Landlord in each instance which consent shall not be unreasonably
withheld. Consent by Landlord to one assignment of this Lease or to one
licensing or subletting of the Leased Premises shall not be a waiver of
Landlord's rights hereunder as to subsequent assignment or subletting.
Landlord's rights to assign this Lease are and shall remain
unqualified. For any assignment or sublease of 20,000 square feet or
more in a single or series of related transactions, (i) the Landlord
shall not be required to consent in any event unless the Tenant shall
concurrently pay the applicable Improvement Prepayment Amount and
Deferred Base Prepayment Amount (or a comparably calculated amount for
an assignment date that is in a month other than during a month for
which a prepayment amount is shown), as shown on Exhibit C, attached,
and (ii) the Landlord shall have the option to elect to enter into a
new lease, directly with the proposed assignee or subtenant, on the
same terms and conditions as the proposed sublease or assignment.
5. This Amendment shall not be effective until Tenant
establishes the security deposit provided for in section 1.5, as amended. If the
security deposit ii not established on or before December 30, 2002, this
amendment shall be void and of no effect.
6. Tenant shall promptly upon request reimburse Landlord for
all of its costs and expenses incurred in connection with this Amendment.
7. ALL OTHER TERMS AND CONDITIONS OF THE LEASE AGREEMENT, AS
AMENDED, SHALL
LANDLORD: UNIVERSITY RESEARCH PARK, INC.
BY: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Assistant
Secretary/Treasurer
Date: 12/20/2002
TENANT: THIRD WAVE TECHNOLOGIES, INC.
BY: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, Vice President,
General Counsel & Secretary
Date: 12/23/2002
