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Exhibit 10.21
LEASE
BY AND BETWEEN
WESTERN CENTER PROPERTIES, INC.
AND
FOCUSED RESEARCH, INC.
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ARTICLE 1
TERMS
1.1 Date of Lease: April 1, 2000.
1.2 Landlord: Western Center Properties, Inc., a Wisconsin corporation.
1.3 Landlord's Address: 0000 Xxxxxxxx Xxxx., Xxxxxxxxx, XX 00000.
1.4 Tenant: Focused Research, Inc.
1.5 Tenant's Address: 000 Xxxxxxx Xxxxx, Xxxxx X, Xxxxxxx, XX 00000
1.6 Premises Address: 0000 Xxxxxxxx Xxx, Xxxxxxxxx, XX 00000.
1.7 Premises' Description & Floor Plan: See Exhibit A and Exhibit B
attached hereto and made a part hereof.
1.8 Length of Original Lease Term: Seven (7) lease years. As used herein the
term "lease year" shall mean a period of twelve (12) consecutive months.
The initial lease year shall commence on the first (1st) day of the
month (the "First Day") following the Commencement Date (as defined
below). Each subsequent lease year shall commence on an annual
anniversary of the First Day.
1.9 Option to Extend: Two (2) additional terms of five (5) years each.
1.10 Commencement Date: The initial term of this Lease ("Term") shall begin
on the date ("Commencement Date") sixty (60) days after Landlord has
completed its obligations hereunder to construct the Building Shell in
accordance with the approved plans and specifications and has delivered
the Building Shell to Tenant for the construction of the Tenant
Improvements.
1.11 Termination Date: The seventh (7th) anniversary of the First Day, unless
the term is extended as herein provided [in which case the Termination
Date shall be the last day of the applicable Renewal Period (defined
below)], or unless this Lease is terminated earlier pursuant to the
provisions hereof.
1.12 Rent: The initial annual rent hereunder shall be one hundred fifty seven
thousand six hundred twenty four dollars ($157,624) 7,872 sf at $12.00,
4,488 sf at $7.50 and 5,900 sf at $5.00. On each annual anniversary of
the First Day, the Rent shall be adjusted upward by three percent (3%).
1.13 Rent Concession: Landlord agrees to a rental concession of two (2)
free months of base rent commencing on the Commencement Date.
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ARTICLE 2
CONSTRUCTION
2.1 Initial Improvements: Landlord and Tenant acknowledge that phase four of the
Research Center (the "Building") will be constructed and that Landlord will
complete construction of this addition to the Building in accordance with the
provisions of this Lease. The Building's addition will be a single story
office/warehouse facility. The fourth phase contains approximately 54,000 square
feet and a parking lot ("Related Improvements"). Attached hereto as Exhibit A is
a drawing of the anticipated layout of the Building and Related Improvements
showing the general configuration thereof which has been agreed to by Landlord
and Tenant.
2.2 Premises: Tenant shall occupy within the Building the area designated on the
floor plan attached hereto as Exhibit "A" consisting of 18,260 square feet (the
"Premises"), together with a non-exclusive right, subject to the provisions
hereof, to use all appurtenances thereunto, including but not limited to, any
area and facilities designated by Landlord for use in common by any other
tenants of the Building.
2.3 Delivery Date: The Delivery Date shall not be later than September 1, 2000,
except as provided for herein.
Tenant and Landlord acknowledge that they have been and will be working
jointly with the architect and contractors to develop mutually acceptable plans
and a construction schedule. If a delay in the Delivery Date is caused by fire,
flood, strike or other labor dispute, abnormal weather conditions, failure to
obtain any necessary approvals from governmental authorities, acts of God. , the
Delivery Date shall be extended by one (1) day for each day of delay. In the
event of such occurrence, the Landlord shall, within seven (7) days of the
occurrence, provide the Tenant with a notice stating the extent of the estimated
delay. Notwithstanding the foregoing, if the Delivery Date has not occurred for
any reason by November 1, 2000, Tenant shall have the right to cancel this Lease
by notice to Lessor.
2.4 Tenant Interior Finish: Tenant shall have the right to complete all or a
portion of the Tenant finishes. Tenant must comply with all applicable laws,
codes, regulations, and A.D.A., as provided in sections 8.2, 8.3, and 8.4.
Landlord reserves the right to approve all contractors, plans, specifications,
and all work done. Landlord shall construct shell building only . Space shall be
turned over to the Tenant for Tenant completion, which includes Tenant
construction of mechanicals and finishes from a shell condition per plans and
specifications of Xxxx Xxxxx & Associates.
2.5 Building Shell: The shell shall be delivered to the Tenant, as follows:
Office space shall include roof top HVAC unit with no distribution, drop ceiling
with standard 2x4 tile, no lights, one electrical distribution panel, two
bathrooms with basic finish, demising walls (taped and ready for paint) and 10'
on center stubbed in outlets.
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Lab space shall include the Building shell only with no concrete floor and no
services.
Warehouse space includes a concrete floor, hanging Modine heaters, no lighting
or electrical distribution.
One dock and one overhead door shall be provided.
2.5 Tenant Improvement Allowance: Landlord will provide Tenant with a tenant
improvement allowance equal to twelve dollars ($12.00) per square foot of office
space. Tenant Improvements shall be paid first by Landlord from the Tenant
Improvement Allowance, then by Tenant in each case within ten (10) business days
after the receipt or invoice for work or materials, all pursuant to contract
between Tenant and its contractor. Landlord shall provide to Tenant an
additional Tenant Improvement Allowance of three dollars ($3.00) per square foot
of office space within thirty (30) days after Tenant exercises its first option
to extend and a like amount within thirty (30) days after Tenant exercises its
second extension option. Landlord shall have the right to inspect the Premises
to confirm that invoiced work has been done and invoiced materials have been
delivered.
ARTICLE 3
GRANT AND TERM
3.1 Premises: In consideration of the rents, terms, covenants and agreements to
be performed and observed by Tenant, as hereinafter set forth, Landlord rents to
Tenant and Tenant rents from Landlord, the Premises, together with all rights
and appurtenances belonging to or appertaining thereto and all improvements now
or hereafter located thereon.
3.2 Lease Term: The term of this Lease shall be for the term of lease years set
forth in Section 1.8, subject to extension as provided in Section 3.3 below. The
term shall commence on the Commencement Date. The original term shall end at
12:00 a.m. midnight on the Termination Date unless otherwise terminated earlier
hereunder.
3.3 Option to Extend: Tenant shall have the option to extend the Term of this
Lease for two (2) additional terms of five (5) years ( each such period shall
hereinafter be referred to as a "Renewal Period" and each year within a Renewal
Period shall be referred to as either a "Renewal Year" or as a lease year), on
the following terms and conditions:
a. No Default. No default by Tenant (with respect to which any
applicable cure period has expired), may be existing or continuing
in the performance of any of the terms of this Lease.
b. Terms. The Renewal Period shall be on the same terms, covenants, and
conditions as provided in this Lease; provided, however, that there
shall be no option to renew the term of this Lease for any period
beyond the expiration of the Renewal Period. This Lease may be
extended beyond
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the final Renewal Period only upon the written agreement of the
parties hereto.
c. Rents: On the First Day of the Renewal Period and on each
anniversary of the First Day, the Rent shall be adjusted upward by
three percent (3%).
i. Manner of Renewal. Tenant shall exercise its rights to renew
in the following manner:
(1) At least eight (8) months prior to the expiration of the
initial term of this Lease for the first option to
extend and at least six (6) months prior to the
expiration of the First Renewal Period for the second
option to extend, Tenant shall notify Landlord as
provided in this Lease of its election to exercise its
option to extend the term of this Lease for the
specified Renewal Period.
(2) On the giving of such notice of election to extend as
provided in (1) above, this Lease, subject to the terms
of this provision, shall be deemed to be extended for
the applicable Renewal Period, without any further
lease.
3.4 Surrender of Premises: At the expiration or any termination of this lease,
including any applicable Renewal Period, Tenant shall, without notice or demand,
surrender the Premises, reasonable wear and tear and damage by the elements
excepted, and shall surrender all keys to Landlord. Subject to the provisions of
Article 5 hereof, all alterations, additions and improvements constructed by or
on behalf of Tenant on the Premises and all fixtures shall, upon the expiration
or termination of this lease, become the property of Landlord, provided that
Tenant shall have the right, with respect to any specialty equipment which can
be removed, to remove the same, no matter how installed in the Premises, so long
as Tenant repairs any damage caused by its removal. The specialty items
currently identified are described on Exhibit "B" attached hereto.
ARTICLE 4
RENT
4.1 Rent: During the term of this Lease, Tenant covenants and agrees to pay to
Landlord, in advance, on the first day of each month at Landlord's address,
without demand thereof, one-twelfth (1/12th) of the annual rental determined in
accordance with Section 1.12 above (the "Monthly Rent"), as adjusted pursuant to
the terms of Section 1.12. If the Commencement Date of this Lease occurs on
other than the first (1st) day of a month, Tenant shall pay Landlord a sum equal
to the Monthly Rent, divided by the number of days in the month in which the
Commencement Date occurs, multiplied by the number of days, including the
Commencement Date, from the Commencement Date to the last day of the month in
which the Commencement Date occurs.
4.2 Net Basis: Tenant shall pay all costs, utility expenses, repairs and
maintenance expenses, special assessments, real estate taxes, sales or other
taxes (including sales taxes that may be imposed on the payment of rent),
expenses and obligations of any kind
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relating to the Premises, excepting payments required with respect to Landlord's
financing, which may arise or become due during the term of the Lease. Tenant
herein indemnifies and holds Landlord harmless against such costs, special
assessments (as provided in section 7.2), real estate taxes, sales or other
taxes, expenses and obligations, including its reasonable attorney's fees, in
enforcing this indemnification.
4.3 Common Area Expenses: Tenant shall also pay its prorated share (as defined
in Section 4.4) of all common area utilities, special assessments, real estate
taxes, sales or other taxes (including sales taxes that may be imposed on the
payment of rent), repairs and maintenance costs (including landscape maintenance
costs), management fees ( provided that management fees not be in excess of
reasonable and customary amounts), and water and sewer charges.
4.4 Proration: Tenant's "prorated share" shall be nine point two percent (9.2%)
(18,260 square feet of the 197,769 square foot Building) of the Building. In the
event that the Building is expanded and/or Tenant exercises its Option for
Additional Space contained in Section 3.4, a new prorated percentage shall be
calculated by dividing the total square footage of Tenant's Premises by the
gross square footage of the Building at the time.
4.5 Exceptions to Common Area Expenses: Notwithstanding any other provision of
this Lease, Additional Rent shall not include: (i) depreciation, interest, or
amortization on mortgages or ground lease payments, (ii) legal fees incurred in
negotiating and enforcing tenant leases, (iii) real estate broker's leasing
commissions, (iv) initial improvements or alterations to tenant spaces, (v)
costs of any items to the extent Landlord receives reimbursement for same from
insurance proceeds or a third party, (vi) interest, principal, depreciation
attorney fees, costs of environmental investigations or reports, points, fees,
and other lender costs and closing costs on any mortgage or mortgages, ground
lease payments, or other debt instrument encumbering any portion of the
Building, (vii) costs of (a) partnership or corporate accounting and legal
matters; defending or prosecuting any lawsuit with any mortgagee, lender, ground
landlord, broker, tenant, occupant, or prospective tenant or occupant; selling
or syndicating any of Landlord's interest in the Building; and disputes between
Landlord and Landlord's property manager; (b) the salaries of management
personnel who are not directly related to the Building and primarily engaged in
the operation, maintenance, and repair of the Building, except to the extent
that those costs and expenses are included in the management fees; (c) wages,
salaries, and other compensation paid to any executive employee of Landlord or
Landlord's property manager above the grade of building manager for the
property; (viii) costs incurred because the Building and Related Improvements or
common areas (but excluding the initial Tenant Improvements constructed or
installed by Tenant) fail any valid, applicable building code, regulation, or
law in effect and as interpreted by government authorities before the date on
which this Lease is signed for fines, penalties, interest, and the costs of
repairs, replacements, alterations, or improvements necessary to obtain
compliance, such as sprinkler installation or requirements under the Americans
With Disabilities Act of 1990 (42 USC
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Sections 12101-12213); (ix) costs of initial construction of the Building and
Related Improvements and costs of the initial Tenant Improvements constructed or
installed by Tenant, whether paid by Landlord or Tenant; (x) charitable or
political contributions made by Landlord.
ARTICLE 5
ALTERATIONS
5.1 Alterations, Improvements and Changes: Tenant, at its own expense, shall
have the right to (the following hereinafter referred to as "Alterations" or
singularly, as an "Alteration"): alter and/or improve any improvement hereafter
constructed on the Premises; construct other improvements on the Premises; and
make such construction, alterations, changes and improvements to any such
building and/or other improvements as Tenant may deem necessary. Any Alterations
which involve the structural components of the Premises, its
mechanical/electrical/heating, ventilating and air conditioning systems, or
involve an expenditure of more than ten thousand dollars ($10,000.00) for a
specific Alteration shall be undertaken only after Landlord has, in writing,
consented to such Alteration, which consent shall not be unreasonably withheld.
In all events, and notwithstanding the foregoing, painting, decorating, carpet
replacement and substantially similar cosmetic Alterations shall not require the
consent of Landlord. All Alterations shall be in full compliance with all deed
restrictions and covenants, laws, ordinances, rules and regulations which may
govern the same. Tenant shall hold Landlord harmless against any loss or damage
by reason of Tenant's actions taken in accordance with this Section 5.1. During
the term of this Lease, Tenant agrees to hold Landlord harmless from any and all
liens that might attach to the Premises on account of labor performed or
material furnished to the Premises at the direction of Tenant, and agrees to pay
or discharge any such liens within thirty (30) days. Tenant shall not permit any
construction and/or mechanics liens to attach to the leased premises as a result
of any such work. Tenant shall promptly cause any claim for such lien to be paid
and released or Tenant shall be deemed in default of this Lease. In the event
Tenant desires to contest any such lien, Tenant agrees to provide security to
Landlord in a form and amount determined by Landlord in its sole discretion
pending release of any disputed lien. Tenant shall provide Landlord with a list
of all contractors and subcontractors who will work on the improvement. Tenant
will require the general contractor and any subcontractors to provide Landlord
with copies of any notices relating to an intention to file a claim for lien as
well as copies of any actual Claims for Lien. Tenant to provide Landlord and
lender discretion a letter of credit prior to commencement of construction to
secure the payment of all contractors' claims. Landlord hereby subordinates any
statutory or common law lien it may have on Tenant's personal property and
Tenant's fixtures located on the Premises to any purchase money lien or other
indebtedness of or security interest granted by Tenant (subject to the
limitation provided below) on any property, fixtures and special business/office
equipment located on the Premises or owned by a third party who reserves the
right of removal under agreement with Tenant; provided that any removal shall be
undertaken so as not to damage the Premises. Upon removal of any fixtures or
equipment by the Tenant or any third party, the Premises shall be restored,
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reasonable wear and tear excepted. Landlord shall from time to time execute any
documents necessary to give effect to such subordination or waiver of liens,
which subordination or waiver shall obligate the third party (including a
creditor of Tenant who claims, or intends to claim, a security interest in such
personal property or fixtures) to restore the condition of Premises as described
above upon rightful removal of such personal property or fixtures. Tenant agrees
it is not Landlord's agent in arranging or contracting for any work to be done
or in connection with the Premises.
5.2 Fixtures and Equipment: Tenant shall, at its own expense, furnish and
install such additional business and trade fixtures and signs in and on the
Premises as may be necessary or desirable for Tenant's business (Tenant's
signage shall be subject to the provisions of Section 16.1). Such additional
fixtures and signs shall remain the personal property of Tenant and shall be
removed by Tenant at the expiration or termination of this Lease. Upon removal
of such fixtures and signs, Tenant shall restore the Premises to its condition
at the beginning of this lease, reasonable wear and tear excepted.
ARTICLE 6
MAINTENANCE, REPAIRS AND DESTRUCTION
6.1 No Warranties by Landlord: The parties acknowledge that Tenant will have,
prior to the date of occupancy, a reasonable opportunity to inspect the
Premises, will have in fact done so, and will be familiar with its physical
condition. Tenant has independently made such other and further inquiries as it
deems necessary or desirable to assure itself of the suitability of the Premises
for Tenant's intended use. Accordingly, Tenant takes the Premises pursuant to
this Lease in AS IS condition, without any warranty, express or implied, by
Landlord as to any aspect of the physical condition of and title to the Premises
or its suitability for the Tenant's intended use, except that, as of the
Commencement Date, Landlord warrants and represents that the Building and
Related Improvements, as well as the Premises to the extent of Landlord's
construction and to the extent finished by Tenant in accordance with plans
approved by Landlord will comply with the Americans with Disabilities Act of
1990 ("ADA"), and with applicable federal, state or local laws, rules,
regulations or ordinances concerning the Premises (including such laws, rules,
regulations or ordinances that pertain to environmental matters) and that all
construction by Landlord will be done in a good and workmanlike manner, free of
defects, in substantial compliance with government approved plans and
specifications and that all Building Systems will be in good operating
condition. Landlord further agrees that, notwithstanding the limitations in this
Section, Landlord shall obtain the agreement from contractors constructing the
Building and Related Improvements that Tenant may exercise any rights which
Landlord may have under warranties given by such contractors in connection with
Building and Related Improvements. Notwithstanding any other provisions herein,
throughout the Lease term, Landlord shall maintain, repair and replace at its
sole cost and expense any part of the Building, Related Improvements, and shared
Building systems, equipment and fixtures constructed or installed by Landlord.
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6.2 Maintenance and Repair:
(a) Tenant shall, at its own cost and expense, keep, maintain and repair
the Premises, all non-shared heating, air-conditioning, electrical, ventilating
and plumbing equipment therein, and all appurtenances thereto and shall repair,
restore or replace (at the election of Tenant exercising reasonable discretion)
any such improvements which may become inoperable or be destroyed or damaged by
fire, casualty or any other cause. An annual service contract shall be entered
into with a reputable firm to inspect and service HVAC equipment as necessary.
Tenant is obligated to enter into the said service contract within a reasonable
period of time, from the date of occupancy and provide Landlord with a copy of
said contract and copies of the yearly maintenance performed.
(b) Tenant shall also pay its prorated share (as determined in Section
4.4) of common area snow removal costs, exterior lighting repairs, parking lot
repairs, landscape maintenance and any other common area repairs and maintenance
expenses.
(c) Tenant shall have the right to replace items of equipment or
fixtures with other items of like kind and equal or greater quality and, for
such purposes, Tenant may trade in the replaced equipment or fixture. Prior
written approval of Landlord shall be obtained in each such instance, which
approval shall not be unreasonably withheld. Any such replacement property shall
be the sole and exclusive property of Landlord, and shall not be subject to a
lien of any party. Tenant shall comply with all deed restrictions and all
federal, state, county, municipal and other governmental statutes, ordinances,
laws and regulations affecting the Premises and improvements thereon, or any
activity or condition on or in the Premises.
(d) At all times during the term of this Lease, Landlord shall, at its
sole cost and expense, repair defects in the shell building including, without
limitation, exterior walls (including all exterior glass), supporting pillars,
structural walls, roof structure and foundations of the Building and sewer storm
drainage and plumbing systems inside if shared and outside the Building,
provided that the need for repair is not caused by Tenant, in which event
Landlord shall repair same and Tenant shall reimburse Landlord for the cost and
expense of same except to the extent of insurance proceeds received for same.
Landlord shall replace the roof membrane of the Building, the parking lot
surface, landscaping, drainage, irrigation, sprinkler systems as well as sewer
and plumbing systems outside the Building when the useful life of each has
expired, and Tenant shall pay that portion of the cost of each replacement,
together with interest at the prime rate, which costs and interest shall be
amortized over the useful life of each such replacement applicable to the
balance of the Lease Term, in equal monthly installments due and payable with
installments of Monthly Rent. Subject to Tenant paying its prorated share of the
costs and expense for same, Landlord shall maintain, repair and replace all
improvements outside of the Building, including, without limitation,
landscaping,
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sidewalks, walkways, driveways, curbs, parking lots (including striping),
parking structure, sprinkler systems, lighting and surface water drainage
systems ("common areas").
6.3 Damage or Destruction: In the event the Premises or any portion thereof
shall be partially or wholly destroyed or damaged by fire or other casualty to
the extent of less than fifty percent (50%) of the total value of the Premises
as a whole, then Landlord shall promptly restore or replace the Premises to the
condition existing prior to such damage or destruction; provided such damage
and/or destruction is covered in whole by insurance then in effect (or, if not
so covered, provided that Tenant provides satisfactory evidence to Landlord of
its ability to pay the difference between the available insurance proceeds and
the cost of restoration and/or replacement of the Premises), and this Lease
shall continue in full force and effect without abatement of rent. Such
restoration shall be commenced promptly and pursued by Landlord with reasonable
diligence to completion. All insurance proceeds received by Landlord or Tenant
on account of such damage or destruction shall be applied to payment of said
restoration to the extent that such proceeds will pay the same, with any
deficiency to be paid by Tenant and with any excess insurance proceeds to be
paid to Tenant. To the extent that Landlord's mortgagee requires some or all of
the insurance proceeds to be applied to Landlord's mortgage indebtedness, then
in such event, Landlord shall have the option to either (i) contribute said
amount of the cost of restoration of the Premises, or (ii) terminate this Lease,
without liability to Tenant for such termination. Landlord shall elect one of
the options specified in the previous sentence within thirty (30) days after
payment of some or all of the insurance proceeds to Landlord's mortgagee.
Notwithstanding the foregoing, to the extent the unavailability or shortfall of
insurance proceeds results from Landlord's failure to maintain the insurance it
is required to maintain hereunder, Landlord shall contribute money in an amount
equal to the proceeds which would have been available.
In the event the Premises or any portion thereof shall be partially
or wholly destroyed or damaged by fire or other casualty to the extent of fifty
percent (50%) or more of the total value of the Premises as a whole, then
Landlord shall have the sole and exclusive option to either rebuild or replace
the Premises or not rebuild or replace the Premises. If Landlord elects to
rebuild or replace the Premises, and if all required work is not covered by
insurance then in effect, Landlord may require that Tenant provide satisfactory
evidence to Landlord of its ability to pay the difference between the available
insurance proceeds and the cost of restoration and/or replacement of the
Premises, and this lease shall continue in full force and effect without
abatement of rent. Such restoration shall be commenced promptly and pursued by
Landlord with reasonable diligence to completion. All insurance proceeds
received by Landlord or Tenant on account of such damage or destruction shall be
applied to payment of rebuilding or restoration to the extent that such proceeds
will pay the same, with any deficiency to be paid by Tenant and with any excess
insurance proceeds to be paid to Tenant. To the extent Landlord's mortgagee
requires some or all of the insurance proceeds to be applied to Landlord's
mortgage indebtedness, then in such event, Landlord shall have the option
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to either (i) contribute said amount to the cost of the restoration of the
Premises, or (ii) terminate this Lease, without liability to Tenant for such
termination. Landlord shall elect one of the options specified in the previous
sentence within thirty (30) days after payment of some or all of the insurance
proceeds to Landlord's mortgagee. Landlord shall have the sole and exclusive
right of determining the manner in which any insurance proceeds on the Premises
shall be applied as a result of any fire or other casualty. If Landlord elects
not to rebuild, Landlord shall be entitled to all insurance proceeds payable in
connection with the damage or destruction.
If the Premises are partially or wholly destroyed or damaged by fire or
other casualty, an architect selected by mutual agreement of Landlord and Tenant
and licensed in the State of Wisconsin shall determine the extent of damage or
destruction and will provide Landlord and Tenant with a written determination of
the condition of the Premises. In the event the parties are unable to agree on
the selection of an architect within thirty (30) days after the damage or
destruction, then such selection shall be determined pursuant to arbitration in
accordance with Section 17.15. The determination of the architect shall bind the
parties as to the extent of damages or destruction to the Premises. All of the
fees and costs of the architect making the determination pursuant to this
provision shall be shared equally by the Landlord and Tenant.
ARTICLE 7
UTILITIES AND TAXES
7.1 Utilities: Tenant shall, during the term of this Lease, arrange for and
fully and promptly pay for all water, sewer, gas, heat, light, power, telephone
service and other public utilities of every kind furnished to the Premises and
Landlord has installed meters for same as part of the Building Shell . Landlord
shall be liable for an interruption or failure in the supply of any utilities
only to the extent such interruption or failure results from the negligent or
willful misconduct of Landlord.
Tenant shall also pay its prorated share (as determined in Section 4.4)
of common area utilities.
7.2 Taxes and Assessments: Tenant agrees to pay its prorated share of, before
delinquency, any and all real and personal property taxes levied or assessed and
which become payable during the term hereof (commencing with the Commencement
Date) upon the Premises, Building and Related Improvements, whether said taxes
are assessed against Landlord or Tenant. Tenant agrees to include all
Alterations, additions or leasehold improvements made by or for Tenant on
Tenant's personal property tax return, and if any such Alteration, addition or
leasehold improvement is nevertheless included in Landlord's real estate or
personal property tax assessment and xxxx, Tenant shall reimburse Landlord with
respect thereto. Tenant shall only be responsible for that portion of any
assessments that shall be due and payable during the lease term (including
extensions), assuming the maximum deferment of such assessments under applicable
law.
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In addition to rental and other charges to be paid by Tenant hereunder, Tenant
shall reimburse Landlord, upon demand, for any and all taxes assessed against
Landlord (other than income taxes) whether or not now customary or within the
contemplation of the parties hereto: (i) upon, allocable to, or measured by or
on the rental or other charges payable hereunder, including, without limitation,
any sales or use tax on such rental, or excise tax levied by the State of
Wisconsin, any political subdivision thereof, or the federal government with
respect to the receipt of such rental or other charges or any other similar tax;
(ii) upon or with respect to the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof; (iii) upon or measured by the value of the Premises; (iv)
upon or measured by the value of Tenant's personal property or leasehold
improvements located in the Premises; (v) upon this transaction or any document
to which Tenant is a party creating or transferring an interest or an estate in
the Premises; or (vi) upon Tenant's energy consumption (collectively "Taxes").
Tenant shall not have to reimburse Landlord for any late penalties or default
interest arising from the delinquent payment by Landlord of any of the Taxes
described in the previous sentence.
All Taxes (with the exception of personal property taxes on Tenant's
personal property) shall be prorated at the commencement and expiration of the
term of this Lease.
Tenant shall pay to Landlord in advance on the same dates that monthly
installments of rent are due, an amount equal to one-twelfth (1/12th) of the
estimated Taxes for the Premises, and to the extent received by Landlord,
Landlord shall apply the same to the Taxes when or before they come due.
Tenant shall have the right, at its own cost and expense, to initiate
and prosecute any proceedings permitted by law for the purpose of obtaining an
abatement of or otherwise contesting the validity or amount of Taxes assessed to
or levied upon the Premises and required to be paid against Landlord's estate
and, if required by law, Tenant may take such action in the name of Landlord who
shall cooperate with Tenant to such extent as Tenant may reasonably require;
provided, however, that Tenant shall fully indemnify and save Landlord harmless
from all loss, cost, damage and expense incurred by or to be incurred by
Landlord or Tenant as a result thereof.
ARTICLE 8
CONDUCT OF BUSINESS
8.1 Condition and Use: Tenant shall use the Premises as a general office,
laboratory and warehouse. Tenant may not change Tenant's use of the Premises
without Landlord's prior written approval, which approval shall be granted or
withheld in Landlord's sole discretion provided that Tenant, upon at least ten
(10) business days prior written notice to Landlord, may at any time convert,
upon notice to Landlord, any portion of the Premises from one of the permitted
uses to one or more of the other permitted uses so
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long as the conversion is an upgrade, i.e. laboratory to office and warehouse to
either laboratory or office and, provided further, that effective upon Tenant's
new use of the affected converted portion(s) of the Premises, the Monthly Rent
shall be adjusted to reflect the then applicable rate for the new use pursuant
to Article 1.12. No use shall be permitted, or acts done, which will cause a
cancellation of any insurance policy covering the Premises or which violates any
deed restriction or restrictive covenant governing the Premises. Tenant shall
not sell, permit to be kept, used or sold in or about Premises any article which
may be prohibited by the fire and hazard insurance policies applicable to the
Premises. Tenant shall, at its own expense, comply with all requirements of any
insurance company necessary for the maintenance of insurance required by this
Lease.
8.2 Compliance with Law, etc.: Tenant shall comply with all applicable deed
restrictions, covenants, laws, ordinances and regulations affecting the use and
occupancy of the Premises. Tenant shall not commit or permit to be committed,
any waste or nuisance on the Premises.
8.3 Compliance with ADA: Landlord represents and warrants that the Building and
Related Improvements have been constructed to comply with the ADA. Any ADA
compliance requirements which come into effect following the date hereof are
Tenant's sole and exclusive responsibility. Following the Commencement Date,
Tenant shall comply with the ADA. Within ten (10) days after receipt, Tenant
shall provide Landlord with a copy of any notice alleging violation of the ADA
relating to the Premises; provide written notice of any claims made or
threatened regarding noncompliance with ADA and relating to the Premises; and
provide written notice of any governmental or regulatory actions or
investigations instituted or threatened regarding noncompliance with the ADA and
relating to the Premises. Except for claims where the final determiner of facts
finds that the Building and Related Improvements were not initially constructed
in compliance with the ADA, Tenant shall defend all claims, and shall indemnify
and hold Landlord harmless from and against all costs, expenses, losses and
damages, including, without limitation, attorney's fees, relating to any such
claims. In defending the same, Tenant shall use legal counsel reasonably
acceptable to Landlord.
8.4 Environmental Protection:
a. Definition of Environmental Laws. As used herein, the term
"Environmental Laws" shall mean any federal, state, and local laws
including statutes, regulations, rulings, orders, administrative
interpretations, and other governmental restrictions and
requirements relating to the discharge of air pollutants, water
pollutants, petroleum products, or processed wastewater or otherwise
relating to the environment or Hazardous Substance (as defined
herein) including, but not limited to Chapters 144 and 162 of the
Wisconsin Statutes, the Federal Toxic Substances Control Act, the
Federal Disposal Act, the Federal Clean Air Act, the Federal Clean
Water Act, the Federal Resource Conservation and Recovery Act of
1976 (42 U.S.C. ss 9601, et.seq.), the Federal Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. ss 9601, et.seq.), regulations of the
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Environmental Protection Agency, regulations of the Nuclear
Regulatory Agency, and regulations of the Wisconsin Department of
Natural Resources now or at any time hereafter in effect.
b. Definition of Hazardous Substances. As used herein, the term
"Hazardous Substances" shall mean any petroleum product, hazardous
waste or substance, asbestos or asbestos containing material,
pollutant, solid, liquid, gaseous, or thermal irritant or contaminant
(such as smoke, vapor, soot, fumes, acids, alkalis, chemicals, or
waste, including materials to be recycled in the future,
reconditioned or reclaimed), polychlorinated biphenyl (in the form of
electric transformers, fluorescent light fixtures with ballast's,
cooling oils or any other device or form) or urea-formaldehyde
foamed-in-place insulation, all as defined or included under
Environmental Laws.
c. Environmental Covenants. Tenant shall:
i. timely comply with all applicable environmental laws;
ii. provide Landlord, immediately upon receipt thereof, with
copies of any correspondence, notice, pleading, citation,
indictment, complaint, order, decree or other document from
any source asserting or alleging violation upon the Premises
by Tenant of any Environmental Laws, or asserting or alleging
a circumstance or condition upon the Premises which may
require a financial contribution by Tenant or a clean up,
remedial action, or other response by or on the part of Tenant
under any Environmental Laws;
iii. permit Landlord in the event Landlord has reasonable cause to
believe that there exists a condition or circumstances created
by Tenant, its employees or invitees during the term of this
Lease warranting an environmental inspection or audit, at
Tenant's expense, to retain an architect or engineer selected
by Landlord to perform an environmental inspection and/or
audit of the Premises to evaluate Tenant's compliance with
environmental laws, and to test for Hazardous Substances.
Tenant shall permit Landlord and its employees and agents
access to the Premises and the books and records of Tenant as
necessary for the performance of the environmental inspection
and/or audit;
iv. at its expense, remove or contain any Hazardous Substances on
the Premises that were brought onto the Premises by Tenant,
its employees, or invitees during the term of this Lease, or
perform other remediation or corrective action as reasonably
required by Landlord in its sole discretion, if at any time it
is determined that such Hazardous Substances present a health
hazard on the Premises or are required to be removed or
contained or other corrective action is required by any
Environmental Laws. If Tenant fails to perform the necessary
remediation or other corrective action as required by
Landlord, Landlord shall have the right to enter the Premises
for the purpose of performing the necessary remediation or
other
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corrective action, and Tenant shall pay all reasonable costs
and expenses associated with the remediation and other
corrective action.
d. Indemnification. Tenant agrees that it will fully indemnify Landlord
from all losses, costs, damages, and expenses arising from any and
all claims or cleanup activities arising from the discharge or
disposal of any Hazardous Substances on the Premises by Tenant, or
its agents, employees, customers, or vendors occurring on or after
the date on which Tenant first occupies the Premises.
e. Miscellaneous. The parties acknowledge that the foregoing sections
shall survive the termination or expiration of the Lease. If Landlord
receives notice of any legal violation of any Environmental Laws
having been committed or about to be committed by Tenant, such notice
shall be deemed to be an event of default under Section 11.1b hereof.
8.5 Landlord Indemnity: None of Tenant's obligations under this Article 8
shall apply with respect to, and Landlord agrees to indemnify and hold
Tenant harmless from any liabilities, losses, claims, damages,
penalties, fines, attorney fees, expert fees, court costs, remediation
costs, investigation costs, or other expenses resulting from or arising
out of the use , storage, treatment, transportation, release, presence,
generation, or disposal of Hazardous Materials on, from or about the
Building and Related Improvements, and/or subsurface or ground water,
prior to the Commencement Date of from an act or omission of Landlord
(or Landlord's predecessor), its agents, employees, invitees, vendors,
contractors, guests or visitors.
ARTICLE 9
INSURANCE AND INDEMNITIES
9.1 Casualty Insurance: Landlord shall, at all times during the term of this
Lease, subject to Tenant's reimbursement of its prorated share under Section
9.7, keep all improvements which are now or hereafter a part of the Premises
insured against loss or damage by fire and hazards in an amount equal to the
full replacement value thereof, including foundation and excavating costs, with
loss payable to Landlord and Tenant as their interest may appear, and including
a mortgagee's clause as may reasonably be requested by Landlord. Landlord shall
pay the premiums thereon when due and shall comply with the coinsurance
provisions thereof, if any. Upon request, Landlord shall furnish to Tenant
evidence of such insurance and of the payment of premiums related thereto.
9.2 Public Liability Insurance: Tenant shall, at all times during the term of
this Lease, at Tenant's sole expense, keep in full force and effect a policy of
public liability and property damage insurance with respect to the Premises and
all business operated thereon, with combined single limits of public liability
of not less than five million dollars ($5,000,000.00) for injury to or death of
any person and for property damage.
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Such insurance shall name Landlord and Tenant as co-insureds, as their interests
may appear. Landlord may from time to time require the policy limits of any or
all insurance to be maintained pursuant to this Article 9 to be increased to
reflect the effects of inflation and changes in normal commercial insurance
practices. Landlord shall, at all times during the term of this Lease, keep in
full force and effect a policy of public liability and property damage insurance
with respect to the Building and Related Improvements including the Premises and
all business operated thereon, with combined single limits of public liability
of not less than five million dollars ($5,000,000.00) for injury to or death of
any person and for property damage.
9.3 Certificates of Insurance: Tenant shall, with respect to any insurance
coverage required in this Lease, furnish Landlord with certificates of insurance
stating that Landlord will be notified in writing at least thirty (30) days
prior to cancellation, material change or non-renewal of such insurance coverage
Tenant may, at its option, bring its obligations to insure under this Article
within the coverage of any blanket policy or policies of insurance which Tenant
now or may hereafter carry. Insurance required to be provided hereunder shall be
written by companies duly qualified to do business in the State of Wisconsin and
satisfactory to Landlord in its reasonably exercised discretion.
9.4 Tenant's Property: Tenant shall be solely responsible for carrying personal
property insurance sufficient to cover loss of all personal property on the
Premises. Landlord shall not be liable for any damage to or loss of property on
equipment Tenant has installed located on the Premises.
9.5 Hold Harmless and Indemnification: Landlord shall not be liable for any
loss, injury, death or damage to persons or property which at any time may be
suffered or sustained by Tenant or by any person whosoever may at any time be
using or occupying or visiting the Premises or be in, on, or about the same,
whether such loss, injury, death or damage shall be caused by any other matter
or thing whether of the same kind as or of a different kind than the matters or
things above set forth, and Tenant shall indemnify Landlord against all claims,
liability, loss or damage whatsoever on account of any such loss injury, death
or damage. Tenant hereby waives all claims against Landlord for damages to the
Building and Related Improvements that are now on or hereafter placed or built
on the property and to the property of Tenant in, on or about the Premises, and
for injuries to persons or property in or about the Premises, from any cause
arising at any time. The two preceding sentences shall not apply to Landlord for
loss, injury, death or damage arising by reason of negligence or the willful
misconduct of Landlord, its agents, employees or contractors or from any breach
or default on the part of Landlord in the performance of any covenant or
agreement on the part of Landlord to be performed pursuant to the terms of this
Lease.
If any action or proceeding is brought against Landlord by any person
alleging an injury or loss for which the Tenant is liable hereunder, Tenant
shall, upon notice from Landlord, defend, at its expense, such action or
proceeding by counsel reasonably satisfactory to Landlord.
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Tenant agrees to indemnify and save Landlord harmless against any and
all claims, demands, damages, costs and expenses, including reasonable
attorney's fees for the defense thereof, arising from the conduct or management
of the activities conducted by Tenant in the Premises or from any breach or
default on the part of Tenant in the performance of any covenant or agreement on
the part of Tenant to be performed pursuant to the terms of this Lease, or from
any act of negligence of Tenant, its agents, contractors, servants, employees,
sublessees, concessionaires or licensees, in or about the Premises and the
sidewalks and parking areas adjoining the same, provided that the same arises
out of facts and circumstances occurring on or after the date on which Tenant
first occupies the Premises. In case of any action or preceding brought against
Landlord by reason of any such claim, upon notice from landlord, Tenant
covenants to defend such action or proceeding by counsel reasonably satisfactory
to Landlord. Landlord shall not be liable and Tenant waives all claims for
damage to person or property sustained by Tenant or Tenant's employee's, agents,
servants, invitees and customers resulting from the Building or any equipment or
appurtenances thereunto appertaining becoming out of repair, or resulting from
any accident in or about the Premises. The preceding three sentences shall not
apply to Landlord for any claim, loss, injury, death, or damage arising from the
negligence or willful misconduct of Landlord, its agents or employees of from
any breach or default on the part of Landlord in the performance of any covenant
or agreement on the part of Landlord to be performed pursuant to the terms of
this Lease.
9.6 Waiver of Subrogation: Nothing in this Lease shall be construed so as to
authorize or permit any insurer of either party to be subrogated to any right of
the insured against the other party arising under this Lease. The insured hereby
releases the other party to the extent of any perils to be insured against by
the insured under the terms of this Lease, and to the extent of its insurance
coverage for any loss or damage caused by any such casualty, even if such
incidents shall be brought about by the fault or negligence of the other party,
. Each party shall use its best efforts to obtain appropriate waivers of
subrogation from its respective insurance carrier giving effect to this Section
9.6, and if either party is not able to obtain the same, it shall notify the
other party of same and the other party may obtain insurance with such waiver
and be reimbursed by the noticing party, upon demand.
9.7 Tenant Reimbursement for Building Insurance Costs: Tenant shall pay its
prorated share of insurance costs during the term hereof (commencing with the
Commencement Date) upon the Premises, Building and Related Improvements.
ARTICLE 10
CONDEMNATION
10.1 Total Condemnation: In the event the entire Building and Related
Improvements, or such part thereof (including entrances, exits and parking
areas) as will render the remainder unsuitable for Tenant's use, shall be
appropriated or taken or condemned under
18
the power of eminent domain by any public or quasi-public authority, this Lease
shall terminate and expire as of the date of taking. In such event, Tenant shall
have no claim against Landlord for the value of any unexpired term of this Lease
or any other loss, damage or expense that may be incurred by Tenant as a result
thereof.
10.2 Partial Condemnation: In the event of a partial taking or condemnation, not
rendering the remainder of the Building and Related Improvements unsuitable for
Tenant's use (with or without alterations or renovations by Landlord), this
Lease shall remain in full force and effect, with the exception that the Monthly
Rent shall equitably xxxxx as to any portion of the Premises taken. The amount
of the rent abatement shall be as mutually agreed to between Landlord and
Tenant, taking into consideration (without limitation) whether or not the
portion taken includes the Building, whether the Landlord exercised its right to
alter or renovate the Premises as a result of the taking (and the cost thereof),
and the extent and nature of the impact, if any, on the conduct of Tenant's
activities in Premises. Landlord shall be entitled to elect, in its sole,
absolute and unrestricted discretion, whether or not to make any alterations or
renovations to the Premises, Building and/or Related Improvements as a result of
the taking. In the event the parties are unable to agree on the amount of the
rent abatement, the arbitration provisions of Section 16.15 shall apply to the
determination of such rent abatement.
10.3 Award: In all events, Landlord shall be entitled to receive and retain the
entire amount of any award, compensation or damages (the "Award") resulting from
any taking or condemnation for a public or quasi-public use. Tenant shall have
no claim against Landlord by reason of such taking or termination and shall not
have any claim or right to any portion of the Award to be paid Landlord.
Notwithstanding the foregoing, Tenant shall have the right to claim and recover
from the condemning authority, but not from Landlord, such compensation as may
be awarded to Tenant for its leasehold interest including any award for damages
to Tenant by reason of such condemnation, and/or any cost or loss incurred by
Tenant in removing Tenant's trade fixtures, equipment, and furnishings.
ARTICLE 11
DEFAULT
11.1 Events of Default: Each of the following events (and those other events
specifically referred to elsewhere in this Lease) shall constitute a default
under, or breach of, this Lease by Tenant:
a. Payment Default. The failure of Tenant to pay Monthly Rent, or to
otherwise pay or discharge any other monetary obligation of Tenant
hereunder (whether payable to Landlord or a third party), which
failure shall continue for a period of five (5) days after written
notice thereof is given to Tenant;
b. Failure to Comply with Term. The failure of Tenant to perform,
comply with, or observe any other term or condition of this Lease,
which failure shall continue for a period of thirty (30) days after
written notice thereof is given to Tenant and Landlord's mortgagee
by Landlord, or, where such failure cannot
19
reasonably be cured within said thirty (30) days, if Tenant shall
fail to promptly commence such performance or compliance and
complete the same with reasonable diligence.
c. Abandonment. If Tenant shall abandon the Premises while this Lease
is in effect, provided, however, that such abandonment shall not
constitute an event of default hereunder unless (i) it continues for
thirty (30) consecutive days, or (ii) Tenant is otherwise in default
hereunder;
d. Voluntary Bankruptcy. If Tenant shall file a petition in bankruptcy
or insolvency for reorganization under any bankruptcy or insolvency
law, or make an assignment for the benefit of creditors;
e. Involuntary Bankruptcy. If any involuntary proceeding under any
bankruptcy or insolvency law shall be instituted against Tenant, or
if a receiver or trustee shall be appointed of all or substantially
all of the assets of Tenant, and such proceeding shall not be
dismissed or vacated within sixty (60) days after the institution of
the same.
11.2 Effect of Default or Breach: If any default by Tenant shall continue
uncured following notice of default, if any, as required by this Lease, for a
period applicable to the default under the applicable provision of this Lease,
Landlord has the following remedies, in addition to all other rights and
remedies provided by law or equity, to which Landlord may resort cumulatively or
in the alternative.
a. Termination of Lease. Landlord may at Landlord's election terminate
this Lease by giving Tenant notice of termination. On the giving of
the notice, all further obligations of Landlord under this Lease
shall terminate, Tenant shall surrender and vacate the premises in a
broom clean condition, and Landlord may reenter and take possession
of the Premises and eject all parties in possession or eject some
and not others or eject none in a manner provided by law. Landlord
may reenter the Premises and remove the property and personnel of
Tenant, and may store the property of Tenant in any place selected
by Landlord at the expense of Tenant. Termination under this
paragraph shall not relieve Tenant from the payment of any sum then
due to Landlord or from any claim for damages previously accrued or
then accruing against Tenant, including without limitation, any
liquidated damage claim Landlord may have against Tenant.
b. Abandonment of Premises. Should Tenant abandon the Premises and
Landlord elect to reenter as herein provided, this Lease shall, at
Landlord's written election, terminate and Landlord shall be
entitled to recover from the Tenant (i) unpaid rent which has been
earned at the time of termination, and (ii) as a sum of money equal
to the rent and rental loss to be paid by Tenant to Landlord for the
remainder of the term of this Lease, (discounted at the rate charged
by the nearest Federal Reserve bank to its member bank plus one
percent) less any amount that Tenant proves could have been
reasonably avoided.
c. Landlord May Perform. Landlord may elect, but shall not be
obligated, to make any payment required to be made by Tenant
hereunder, or to perform
20
any other term or condition required to be performed by Tenant
hereunder, and Landlord shall have the right to enter the Premises
for the purpose of correcting or remedying any default and to remain
thereon until such default has been corrected or remedied; provided,
however, that any payment or expenditure made by Landlord shall not
be deemed to waive or release the default of Tenant or the right of
Landlord to take any action to which Landlord may otherwise be
entitled to in case of default and provided that any such entry
shall be done without disturbing Tenant's quiet enjoyment of the
Premises. In the event of any such payment or expenditure, in
addition to any other liability hereunder, Tenant shall be liable to
reimburse Landlord therefor, together with interest from and after
the date of payment or expenditure at the rate of twelve percent
(12%) per annum.
d. Termination of Possession. Landlord may at Landlord's sole election
terminate Tenant's right to possession only, without terminating the
Lease, following a breach of the Lease by Tenant, as provided in
section 704.29(4) of the Wisconsin Statutes. Landlord shall be
entitled to recover from Tenant (i) unpaid rent which has been
earned at the time of termination, and (ii) as a sum of money equal
to the rent and rental loss to be paid by Tenant to Landlord for the
remainder of the term of this Lease (discounted at the rate charged
by the nearest Federal Reserve bank to its member bank plus one
percent) less any amount that Tenant proves could have been
reasonably avoided. Notwithstanding any remedial action taken
hereunder by Landlord short of termination, including reletting the
Premises to a substitute Tenant, Landlord may at any time thereafter
elect to terminate this Lease for any previous default.
e. Reletting of Premises. Upon reentry, Landlord may relet the premises
or any part thereof upon any terms or conditions which Landlord may
choose. Landlord may make alterations and repairs to the Premises in
order to prepare the same for re-renting. In the event the Premises
are re-rented, in addition to any other liability hereunder and as
may be provided in section 704.29 of the Wisconsin Statutes, Tenant
shall be liable to Landlord for all losses and damages incurred by
Landlord resulting from Tenant's breach, and all expenses of
reletting the premises and for alterations and repairs made in order
to prepare the Premises for re-renting, plus interest on such
amounts expended by Landlord at the interest rate provided for in
Section 11.2(c).
11.3 Delinquent Rent to Bear Interest: Any Monthly Rent or such other sums, if
any, required to be paid by Tenant to Landlord pursuant to the terms of this
Lease, which are not paid on or prior to the expiration of the cure period set
forth in Section 11.1(a) above, shall bear interest at the rate of eighteen
percent (18%) per annum from the date due until paid. The payment of such
interest shall not excuse or cure any default by Tenant under this Lease. The
failure by Tenant to pay such interest shall constitute an event of default
hereunder.
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11.4 Remedies of Landlord: Any and all rights and remedies herein provided to
Landlord are cumulative and not exclusive, and Landlord shall be entitled to
pursue any rights or remedies enumerated in this Lease or as otherwise provided
or authorized by law or any of the same. Tenant agrees to be liable for and pay
any and all reasonable costs and expenses, including by not limited to
reasonable attorney's fees, incurred by landlord in interpreting and enforcing
any term or condition of this Lease or in pursuing any right or remedy or action
for the enforcement thereof.
11.5 Defaults by Landlord: In the event Landlord is in default under the terms
of this Lease, Landlord shall have reasonable and adequate time in which to
expeditiously cure such default after written notice thereof is given to
Landlord by Tenant.
11.6 Tenant's Remedies: If Landlord shall fail to perform any covenant, term or
condition of this Lease required to be performed by Landlord, if any, and if as
a consequence of such default, Tenant shall recover a money judgment against
Landlord, such judgment shall be satisfied only out of the proceeds of sale
received upon execution of such judgment and levied thereon against the right,
title and interest of Landlord in the Building and Related Improvements and out
of rents or other income from such property receivable by Landlord, or out of
the consideration received by Landlord from the sale or other disposition of all
or any part of Landlord's right, title and interest therein, or from Landlord's
insurance coverage or proceeds therefrom as may be available and Landlord shall
not be personally liable for any deficiency.
ARTICLE 12
INSPECTION BY LANDLORD
12.1 Entry by Landlord: Landlord and Landlord's representatives shall have the
right to enter the Premises for the purpose of inspecting the same and for such
other purposes incidental to the ownership of the Premises and Landlord's rights
and obligations under this Lease.
12.2 Notice: Whenever reasonably possible, inspection of the Premises by
Landlord shall be at reasonable times and upon reasonable advance notice to
Tenant (which notice need not be in writing). No notice to Tenant shall be
required if Landlord reasonably believes an emergency or other exigent condition
exists.
ARTICLE 13
ASSIGNMENT AND SUBLETTING
13.1 Tenant Assignment and Subletting: Tenant shall not assign, pledge, mortgage
or otherwise transfer or encumber this lease or sublet any part or all of the
Premises without Landlord's prior written consent, which subject to the
provisions of this Article, Landlord's prior written consent shall not be
unreasonably withheld. Notwithstanding Landlord's consent to any assignment,
transfer or sublease, Tenant and all guarantors of
22
Tenant's obligations hereunder shall remain liable to Landlord for the payment
of rental then due and thereafter to become due and the performance of all other
obligations of Tenant hereunder for the balance of the term hereof. If Landlord
consents to an assignment of this Lease, and the assignee assumes all of the
Tenant's obligations hereunder, Tenant and each guarantor of Tenant's
obligations hereunder shall nonetheless not be released from their obligations
hereunder and under any guaranty of this Lease. Landlord's consent to any of the
foregoing shall not constitute a consent of any other assignment, pledge,
mortgage, encumbrance, transfer or sublease. If this Lease is assigned, or if
the Premises or any part thereof are subleased or occupied by any person other
than Tenant, whether with or without Landlord's consent, Landlord may collect
from the assignee, sublessee or occupant, any rental or other charges payable by
Tenant under this Lease, and apply the amount collected to the rental and other
charges herein reserved, but such collection by Landlord shall not be deemed an
acceptance of the assignee, sublessee or occupant, nor, a release of Tenant from
the performance by Tenant of this Lease. If Landlord shall approve any
assignment, subletting or other transfer of Tenant's interest in this Lease,
then Tenant shall reimburse Landlord for Landlord's reasonable legal fees and
other reasonable out of pocket expenses incurred in connection with reviewing
Tenant's request for such approval and the drafting and preparation of
appropriate documentation. Any assignment of this Lease or sublease of the
Premises by operation of law or otherwise without the prior written consent of
Landlord shall be null and void and shall, at Landlord's sole option, constitute
an event of default hereunder.
13.2 Transfers to Tenant Affiliates: Without the approval of Landlord, Tenant
may assign or sublet the Premises, or any portion thereof, to any corporation
which controls, is controlled by, or is under common control with Tenant, or to
any corporation resulting from the merger or consolidation with Tenant, or to
any person or entity which acquires all, or substantially all of the assets of
Tenant as a going concern of the business that is being conducted on the
Premises ("Affiliates"), Provided that said assignee or subtenant assumes, in
full, the obligations of Tenant under this Lease and provided further that the
use to which the Premises will be put does not materially change and provided
further, Tenant shall provide Landlord copies of fully executed assignment or
sublease documents and evidence that the transaction is of a type described in
this Section 13.2 and so long as any assignee or subtenant shall have, in the
sole reasonable determination of Landlord, financial statements that are as
strong or stronger than Focused Research, Inc.. Any such assignment or sublease
shall not, in any way, affect or limit the liability of Tenant under the terms
of this Lease.
13.3 Restriction of Profit from Assignment or Subletting: Notwithstanding
anything to the contrary herein, in the event Tenant receives any payment or
other consideration for an assignment or subletting approved by Landlord,
including, but not limited to, a lump sum payment or a monthly payment in excess
of the Monthly Rent due hereunder and in excess of all costs Tenant incurs with
respect to such subletting or assignment, including legal fees, brokerage
commissions, finders fees and costs of any alteration to the Premises, Tenant
shall pay to Landlord seventy-five percent (75%) of the amount due Tenant in
connection with the assignment or sublease, within five (5) days of Tenant's
23
receipt of same. Any failure by Tenant to make the payment due hereunder shall
constitute a payment default under Section 11.1(a) of this Lease and entitles
Landlord to exercise any and all remedies for default as herein provided.
ARTICLE 14
SUBORDINATION
14.1 Subordination: This Lease is subject and subordinate to all mortgages which
may now or hereafter affect the Premises, and to all renewals, modifications,
consolidations, replacements and extensions thereof provided that Landlord shall
obtain and provide to Tenant, written non-disturbance agreements by which each
mortgagee covenants that it (and any successor to it) will observe and perform
all obligations of Landlord hereunder upon succeeding to Landlord's interest
under this Lease and that Tenant's quiet possession will not be disturbed so
long as Tenant is not in default hereunder beyond any applicable notice and cure
period. In confirmation of such subordination, Tenant, without expense to
Landlord, shall promptly execute any instrument or document Landlord may request
which complies with the foregoing provision. Landlord is hereby given Tenant's
power of attorney to execute any and all documents required by any mortgagee of
the Premises to evidence the subordination of this Lease as provided in this
Section. This power of attorney is coupled with an interest and is not revocable
during the term of this Lease. Landlord shall not exercise its rights under this
power of attorney if Tenant delivers a fully and properly executed copy of each
subordination agreement requested of it to Landlord within ten (10) days of
Tenant's receipt of a written request to execute the same. Landlord will not
disturb the possession of Tenant during the term of this lease so long as Tenant
shall comply with all of its obligations hereunder.
ARTICLE 15
FINANCIAL STATEMENTS
15.1 Delivery of Financial Statements: At the request of Landlord, Tenant shall
deliver without expense a detailed statement of income and expense for the
immediately preceding fiscal year of Tenant and a balance sheet as of the close
of such fiscal year reflecting the income and expense and financial condition of
Tenant, which shall be in a form acceptable to Landlord, shall contain
information as may be reasonably required by Landlord and shall be prepared in
accordance with sound and recognized accounting principles consistently applied
throughout the periods involved and are certified in writing by Tenant to be
true, correct and complete (i.e., each financial statement delivered by Tenant
shall be signed by an authorized representative of Tenant). Tenant agrees that
all financial statements and tax returns furnished to Landlord may be furnished
by Landlord to Lenders which currently are loaning, or which Landlord reasonably
anticipates may loan, money to Landlord secured by the Premises. Tenant's
financial statements will be held confidential by Landlord and lending
institutions.
24
ARTICLE 16
MISCELLANEOUS
16.1 Signage: Signage for the Premises shall be installed at Tenant's sole
expense. Signage shall be acceptable to Landlord in its reasonable discretion,
and shall comply with all applicable deed restrictions and covenants, and all
City requirements.
16.2 Accord and Satisfaction: No payment received by Landlord of a lesser
amount than the rent or other charges due shall be deemed to be other than on
account of the earliest stipulated rent or other charges due nor shall any
statement on a check or letter accompanying a payment of rent or other charges
be deemed an accord and satisfaction. Landlord may accept payment without
prejudice to Landlord's right to recover the balance of rent or other charges
due or pursue any remedy in this Lease.
16.3 Entire Agreement: This Lease and any exhibits or addenda attached hereto
set forth all covenants, promises, agreements, conditions, and understandings
between Landlord and Tenant concerning the Premises. There are no covenants,
promises, agreements, conditions, or understandings, either oral or written,
between the parties hereto regarding the Premises, other than as herein set
forth. No subsequent change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them.
16.4 No Partnership: Landlord does not in any way became a partner, joint
venturer, or member of a joint enterprise with Tenant.
16.5 Waiver: The waiver by Landlord or Tenant of any breach of any term,
covenant, or condition herein shall not be deemed a waiver of the term,
covenant, or condition. The acceptance of rent by Landlord shall not be deemed a
waiver of any preceding breach by Tenant of any covenant herein, other than the
failure of Tenant to pay the rent so accepted. No covenant, term, or condition
of this Lease shall be waived by Landlord or Tenant unless the waiver is in
writing.
16.6 Notices: Any notices or communications given or required to be given
hereunder shall be in writing (unless expressly provided otherwise) and shall be
by (i) deposit in United States mail, address to the party to be notified,
postage prepaid and by registered or certified mail, return receipt requested,
or (ii) delivery in person or by Federal Express or similar courier service
providing evidence of delivery. Each notice or communication that is mailed,
delivered, or transmitted in the manner described above shall be deemed
sufficiently given, served, sent and received, in the case of mailed notices, on
the third business day following the date on which it is mailed, and, in the
case notices delivered by hand or courier service, at such time as it is
delivered to or received by the addressee (with the deliver receipt or the
affidavit or messenger delivered to or received by addressee (with the delivery
receipt or the affidavit of messenger being deemed
25
conducive evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation. For purposes of notice, the addresses of the
parties shall be:
If to Landlord: Western Center Properties
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, XX 00000
If to Tenant: Xxxxxx X. Xxxxxxxx, Ph.D, Vice President
Focused Research
0000 Xxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Either party may change its address for notice by written notice given to the
other party as herein provided.
16.7 Partial Invalidity: If any provision of this Lease or any specific
application shall be invalid or unenforceable, the remainder of this Lease, or
the application of the provision in other circumstances, shall not be affected,
and each provision of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
16.8 Memorandum of Lease: Landlord and Tenant, upon the request of either party,
shall execute a Memorandum of Lease in a form approved for recording in the
State of Wisconsin. Either party shall be entitle to record the Memorandum of
Lease with the Register of Deeds for the County of Dane, State of Wisconsin. If
such recording is required by law, each party shall execute and deliver to the
other and/or the appropriate land title registry all documents necessary to
accomplish such recording. The parties shall equally share the costs of any
mandatory recording.
16.9 Quiet Title; Authority: Landlord covenants and warrants that Landlord is
seized in fee title to the Premises. Landlord will provide Tenant with a copy of
a title report for the real estate described in Exhibit A to allow Tenant to
determine the impact, if any, of recorded deed restrictions and covenants on
Tenant's proposed use of the Premises. Subject to the requirements of any
recorded deed restrictions and covenants, so long as Tenant fulfills the
conditions and covenants required of Tenant under this Lease, Tenant shall have
peaceful and quiet possession of the Premises. Landlord further covenants and
warrants that Landlord has good right, full power, and lawful authority to enter
into this Lease and perform and observe all of its obligations hereunder for the
full term hereof. Tenant covenants and warrants the person signing this Lease on
Tenant's behalf is executing this Lease and delivering the same to Landlord.
16.10 Remedies Cumulative: All remedies conferred on Landlord and Tenant by this
Lease shall be deemed cumulative and no one remedy shall be deemed to be
exclusive of the other or of any other remedy conferred by law.
26
16.11 Binding Effect: The covenants and agreements contained in this Lease shall
bind the respective heirs, personal representatives, successors and permitted
assigns of the parties hereto.
16.12 Applicable Law: This Lease shall be governed by the laws of the State of
Wisconsin.
16.13 Holding Over: Any holding over after the expiration of the term of this
Lease with or without Landlord's consent shall be construed to be tenancy from
month to month at one hundred fifty percent (150%) of the monthly rental in
effect for the immediately preceding month, and otherwise on the same terms and
conditions hereof.
16.14 Time of Essence: Time is of the essence with regard to this Lease.
16.15 Arbitration: In cases in which this Lease expressly provides for the
settlement of a dispute or question by arbitration, the same shall, upon request
of either party, be settled by arbitration in accordance with the then existing
rules of the American Arbitration Association. Judgment upon the award rendered
may be entered in any court having jurisdiction thereof. The place of
arbitration shall be Middleton, Wisconsin. Each party to the arbitration shall
pay one-half (1/2) of the costs of the arbitrator(s), but shall be solely
responsible for attorney's fees and other litigation related costs which they
each may incur in connection with the arbitration proceeding.
16.16 Attornment of Tenant: Tenant shall in the event of the sale, assignment,
or other transfer of Landlord's interest in the Premises or in this Lease, or in
the event of any proceedings brought for the foreclosure of, or in the event of
exercise of the power of sale under any mortgage made by Landlord covering the
Premises, attorn to the transferee and recognize such transferee as Landlord
under this Lease provided that such transferees agree in writing with Tenant to
be bound by this Lease and to observe and perform all obligations of Landlord
hereunder.
16.17 Rent Covenant: The covenant to pay rent is hereby declared to be an
independent covenant on the part of Tenant to be kept and performed, and no
offset shall be permitted or allowed.
16.18 Captions: The captions in the Lease are for convenience of reference only
and shall not limit or otherwise affect any of the terms or provisions hereof.
16.19 Number and Gender: Whenever the context requires, references in this Lease
to the singular number shall include the plural, the plural number shall include
the singular and words denoting gender shall include the masculine, feminine and
neuter.
16.20 Lender's Approval: This lease is subject to Lender's approval and signing
off on terms and Tenant's financial statements.
27
16.21 Consents and Approvals: Notwithstanding any other provisions hereof, if
either party is required to give its consent or approval, such consent or
approval shall not be unreasonably withheld, conditioned or delayed.
IN WITNESS WHEREOF, this Lease has been made, executed and delivered as of the
date and year first set forth in Section 1.1.
LANDLORD: TENANT:
Western Center Properties, Inc., Focused Research, Inc.
a Wisconsin corporation a California corporation
By: /s/ XXXXX X. BIENDSEIL By: /s/ XXXXXX X. XXXXXXXX
-------------------------------- ------------------------------
Name: Xxxxx X. Biendseil Name: Xxxxxx X. Xxxxxxxx
-------------------------------- ------------------------------
Title: Vice President Title: Vice President
-------------------------------- ------------------------------
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EXHIBIT "A"
FOCUSED RESEARCH, INC.
[MAP]
29
EXHIBIT "B"
SPECIALTY EQUIPMENT
C-frame HEPA laminar flow hoods
Laser equipment
Glove box
Welding robot
Semiconductor processing equipment including:
Wet benches, vacuum deposition and etching systems, mask aligners,
de-ionized water treatment equipment, gas generators, gas cabinets, gas
handling systems
Phone System
Computer System
Data network hardware
