EXHIBIT 10.1
STANDARD FORM
INDUSTRIAL BUILDING LEASE
(MULTI-TENANT)
1. BASIC TERMS. This SECTION 1 contains the Basic Terms of this Lease
between Landlord and Tenant, named below. Other Sections of the Lease referred
to in this SECTION 1 explain and define the Basic Terms and are to be read in
conjunction with the Basic Terms.
1.1. Date of Lease: __________________________________________
1.2. Landlord: First Industrial, L.P., a Delaware limited
partnership
1.3. Tenant: Vascular Solutions, Inc., a Minnesota corporation
1.4. Premises: Approximately 32,937 rentable square feet in
the building commonly known as Northgate I, 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX
00000 (the "BUILDING").
1.5. Property: See EXHIBIT A.
1.6. Lease Term: Five (5) years Six (6) months ("TERM"),
commencing April 1, 2003 ("COMMENCEMENT Date") and ending September 30, 2008
subject to SECTION 2.3 below, ("EXPIRATION DATE").
1.7. Permitted Uses: (See SECTION 4.1) office/light
manufacturing/warehouse
1.8. Tenant's Guarantor: (if none, so state) NONE
1.9. Brokers: (See SECTION 23; if none, so state)
(A) Tenant's Broker: Xxxxxxx Xxxxx - Northstar Partners, LLC
(B) Landlord's Broker: Xxxxx Xxxxxx/Xxxxx Xxxxx - United
Properties
1.10. Security/Damage Deposit: (See SECTION 4.4) $ 60,605.00
1.11. 2002 Estimated Additional Rent Payable by Tenant: $
9,031.00 per month
1.12. Tenant's Proportionate Share: 41.33%
1.13. Riders to Lease: The following riders are attached to
and made a part of this Lease. (If none, so state) See 24.18
2. LEASE OF PREMISES; RENT.
2.1. LEASE OF PREMISES FOR LEASE TERM. Landlord hereby leases
the Premises to Tenant, and Tenant hereby rents the Premises from Landlord, for
the Term and subject to the conditions of this Lease.
2.2. TYPES OF RENTAL PAYMENTS. Tenant shall pay net base rent
to Landlord in monthly installments, in advance, on the first day of each and
every calendar month during the Term of this Lease (the "BASE RENT") in the
amounts and for the periods set forth below:
LEASE PERIOD ANNUAL BASE RENT MONTHLY BASE RENT
------------ ---------------- -----------------
April 1, 2003 - July 31, 2003 $0.00 $0.00
August 1, 2003 - April 30, 2006 $233,852.70 $19,487.73
May 1, 2006 - September 30, 2008 $255,261.75 $21,271.81
Tenant shall also pay Tenant's Proportionate Share (as set forth in SECTION
1.12) of Operating Expenses (as hereinafter defined), Tenant's Proportionate
Share of any and all Reserve Expenses (as hereinafter defined) and any other
amounts owed by Tenant hereunder [collectively, "ADDITIONAL RENT"]. In the event
any monthly installment of Base Rent or Additional Rent, or both, is not paid
within 10 days of the date when due, a late charge in an amount equal to 5% of
the then delinquent installment of Base Rent and/or Additional Rent [the "LATE
CHARGE"; the Late Charge, Default Interest (as defined in SECTION 22.3 below),
Base Rent and Additional Rent shall collectively be referred to as "RENT"] shall
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be paid by Tenant to Landlord, FIRST INDUSTRIAL, L.P., X/X XXXXX XXXXXXXXXX,
X.X., X.X. XXX 00000, XXXXXXX, XX 00000-0000, OR IF SENT BY OVERNIGHT COURIER,
FIRST NATIONAL BANK OF CHICAGO, 7TH FLOOR MAILROOM, 000 XXXX XXXXXX, XXXXXXX, XX
00000, ATTENTION: FIRST INDUSTRIAL, L.P., LOCKBOX #70044 (or such other entity
designated as Landlord's management agent, if any, and if Landlord so appoints
such a management agent, the "AGENT"), or pursuant to such other directions as
Landlord shall designate in this Lease or otherwise in writing.
2.3. COVENANTS CONCERNING RENTAL PAYMENTS. Tenant shall pay
the Rent promptly when due, without notice or demand, and without any abatement,
deduction or setoff, except as may otherwise be expressly and specifically
provided in this Lease. No payment by Tenant, or receipt or acceptance by Agent
or Landlord, of a lesser amount than the correct Rent shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or letter accompanying any payment be deemed an accord or satisfaction,
and Agent or Landlord may accept such payment without prejudice to its right to
recover the balance due or to pursue any other remedy available to Landlord. If
the Commencement Date occurs on a day other than the first day of a calendar
month, the Rent due for the first calendar month of the Term shall be prorated
on a per diem basis and paid to Landlord on the Commencement Date, and the Term
will be extended to terminate on the last day of the calendar month in which the
Expiration Date stated in SECTION 1.6 occurs.
3. OPERATING EXPENSES.
3.1. DEFINITIONAL TERMS RELATING TO ADDITIONAL RENT. For
purposes of this Section and other relevant provisions of the Lease:
3.1.1. OPERATING EXPENSES. The term "OPERATING
EXPENSES" shall mean all costs and expenses paid or incurred with respect to the
ownership, repair, replacement, restoration, maintenance and operation of the
Property, including, without limitation, the following: (i) services provided
directly by employees of Landlord or Agent in connection with the operation,
maintenance or rendition of other services to or for the Property; (ii) to the
extent not separately metered, billed, or furnished, all charges for utilities
and services furnished to either or both of the Property and the Premises
(including, without limitation, the Common Areas [as hereinafter defined]),
together with any taxes on such utilities; (iii) all premiums for casualty,
workers' compensation, liability, boiler, flood and all other types of insurance
provided by Landlord and relating to the Property, all third party
administrative costs incurred in connection with the procurement and
implementation of such insurance policies, and all deductibles paid by Landlord
pursuant to insurance policies required to be maintained by Landlord under this
Lease; (iv) the cost of all supplies, tools, materials and equipment utilized in
the ownership and operation of the Property, and sales and other taxes thereon;
(v) amounts charged (including, without limitation, those costs and expenses set
forth in SECTION 13.1(I) below) by any or all of contractors, materialmen and
suppliers for services, materials and supplies furnished to Landlord in
connection with any or all of the operation, repair and maintenance of any part
of the Property (together with a reasonable overhead and administrative fee to
Landlord), including, without limitation, the structural elements of the
Property and the Common Areas; (vi) management fees to Landlord or Agent or
other persons or management entities actually involved in the management and
operation of the Property; (vii) any capital improvements made by, or on behalf
of, Landlord to the Property that are either or both (a) designed to reduce
Operating Expenses and (b) required to keep the Property in compliance with all
governmental laws, rules and regulations applicable thereto, from time to time,
the cost of which capital improvements shall be reasonably amortized by Landlord
over the useful life of the improvement, in accordance with generally accepted
accounting principles; (viii) all professional fees incurred in connection with
the operation, management and maintenance of the Property; and (ix) Taxes, as
hereinafter defined in SECTION 3.1.2.
3.1.2. TAXES. The term "TAXES," as referred to in
SECTION 3.1.1(IX) above shall mean (i) all governmental taxes, assessments, fees
and charges of every kind or nature (other than Landlord's income taxes),
whether general, special, ordinary or extraordinary, due at any time or from
time to time, during the Term and any extensions thereof, in connection with the
ownership, leasing, or operation of the Property, or of the personal property
and equipment located therein or used in connection therewith; and (ii) any
reasonable expenses incurred by Landlord in contesting such taxes or assessments
and/or the assessed value of the Property. For purposes hereof, Taxes for any
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year shall be Taxes that are due for payment or paid in that year rather than
Taxes that are assessed, become a lien, or accrue during such year which
obligation shall survive the termination or expiration of this Lease.
3.1.3. OPERATING YEAR. The term "OPERATING YEAR"
shall mean the calendar year commencing January 1st of each year (including the
calendar year within which the Commencement Date occurs) during the Term.
3.1.4 PAYMENT OF OPERATING EXPENSES. Tenant shall
pay, as Additional Rent and in accordance with the requirements of SECTION 2.2
AND 3.2, Tenant's Proportionate Share of the Operating Expenses as set forth in
SECTION 1.12. Additional Rent commences to accrue upon the Commencement Date.
The Tenant's Proportionate Share of Operating Expenses payable hereunder for the
Operating Years in which the Term begins and ends shall be prorated to
correspond to that portion of said Operating Years occurring within the Term.
Tenant's Proportionate Share of Operating Expenses and any other sums due and
payable under this Lease shall be adjusted upon receipt of the actual bills
therefor, and the obligations of this SECTION 3 shall survive the termination or
expiration of the Lease. Notwithstanding anything contained in Section 3
("Additional Rent") hereof to the contrary, the term "Tenant's Proportionate
Share of the Taxes" shall mean Forty-One and Thirty-Three Hundreths percent
(41.33%) of the Real Estate Taxes for applicable Lease Year, and the Term
"Tenant's Proportionate Share of Operating Expenses" shall mean Forty-One and
Thirty-Three Hundreths percent (41.33%) of the Operating Expenses for the
applicable Lease Year. Said percentages have been agreed upon by the parties
hereto after due consideration of the rentable area of the Building; provided,
however, Tenant's above percentages for tenant's Proportionate share of
Operating Expenses and for Tenant's Proportionate Share of Taxes shall be
amended for each Lease Year to the percentage which the average net rentable
area of the Premises bears to ninety-five percent (95%) of the total average net
rentable area of the Building for such LeaseYear or to the total average net
rentable area leased (pursuant to leases under which the term has commenced) in
the Building for such Lease Year (if such total is greater than ninety-five
percent (95%) of the total net rentable area of the Building).
Anything herein to the contrary notwithstanding, it is agreed that in the event
the Building is not fully occupied during any Lease Year, a reasonable and
equitable adjustment shall be made by Landlord in computing the Operating
Expenses for such year so that the Operating Expenses shall be adjusted to the
amount that would have been incurred had the Building been fully occupied during
such year. Tenant's 2002 estimate of Additional Rent for the first operating
year shall be the following amounts:
Real Estate Taxes: $ 6,176.00/Mo.
Operating Expenses: $ 2,855.00/Mo.
3.2. PAYMENT OF ADDITIONAL RENT. Landlord shall have the right
to reasonably estimate the Operating Expenses for each Operating Year. Upon
Landlord's or Agent's notice to Tenant of such estimated amount, Tenant shall
pay, on the first day of each month during that Operating Year, an amount (the
"ESTIMATED ADDITIONAL RENT") equal to the estimate of the Tenant's Proportionate
Share of Operating Expenses divided by 12 (or the fractional portion of the
Operating Year remaining at the time Landlord delivers its notice of the
estimated amounts due from Tenant for that Operating Year). If the aggregate
amount of Estimated Additional Rent actually paid by Tenant during any Operating
Year is less than Tenant's actual ultimate liability for Operating Expenses for
that particular Operating Year, Tenant shall pay the deficiency within 30 days
of Landlord's written demand therefor. If the aggregate amount of Estimated
Additional Rent actually paid by Tenant during a given Operating Year exceeds
Tenant's actual liability for such Operating Year, the excess shall be credited
against the Estimated Additional Rent next due from Tenant during the
immediately subsequent Operating Year, except that in the event that such excess
is paid by Tenant during the final Lease Year, then upon the expiration of the
Term, Landlord or Agent shall pay Tenant the then-applicable excess promptly
after determination thereof. Landlord, for the purpose of paying for repairs,
maintenance and replacements to the Premises or the Property incurred on a
periodic, but less frequent than annual, basis ("RESERVE EXPENSES") will
establish a reserve (the "MAINTENANCE RESERVE") to which Tenant, simultaneously
with the payment of Estimated Additional Rent each month, shall contribute a
monthly deposit in an amount reasonably determined by Landlord. Such deposits
shall be applied on account of Reserve Expenses incurred by Landlord during the
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Term; any deficit shall be paid by Tenant to Landlord upon demand. Upon the
expiration or sooner termination of the Lease, Landlord shall retain such
deposits to fund Reserve Expenses incurred after the Term. No interest shall be
payable to Tenant on account of payments of Estimated Additional Rent or
deposits to the Maintenance Reserve, and such payments may be commingled.
4. USE OF PREMISES AND COMMON AREAS; SECURITY DEPOSIT.
4.1. USE OF PREMISES AND PROPERTY. The Premises shall be used
by the Tenant for the purpose(s) set forth in SECTION 1.7 above and for no other
purpose whatsoever. Tenant shall not, at any time, use or occupy, or suffer or
permit anyone to use or occupy, the Premises, or do or permit anything to be
done in the Premises or the Property, in any manner that may (a) violate any
Certificate of Occupancy for the Premises or the Property; (b) cause, or be
liable to cause, injury to, or in any way impair the value or proper utilization
of, all or any portion of the Property (including, but not limited to, the
structural elements of the Property) or any equipment, facilities or systems
therein; (c) constitute a violation of the laws and requirements of any public
authority or the requirements of insurance bodies or the rules and regulations
of the Property, including any covenant, condition or restriction affecting the
Property; (d) exceed the load bearing capacity of the floor of the Premises; (e)
impair or tend to impair the character, reputation or appearance of the
Property; or (e) unreasonably annoy, inconvenience or disrupt the operations or
tenancies of other tenants or users of the Property. On or prior to the date
hereof, Tenant has completed and delivered for the benefit of Landlord a "Tenant
Operations Inquiry Form" in the form attached hereto as EXHIBIT G describing the
nature of Tenant's proposed business operations at the Premises, which form is
intended to, and shall be, relied upon by Landlord.
4.2. USE OF COMMON AREAS. As used herein, "COMMON AREAS" shall
mean all areas within the Property that are available for the common use of
tenants of the Property and that are not leased or held for the exclusive use of
Tenant or other tenants or licensees, including, but not limited to, parking
areas, driveways, sidewalks, loading areas, access roads, corridors, landscaping
and planted areas. Tenant shall have the nonexclusive right to use the Common
Areas for the purposes intended, subject to such reasonable rules and
regulations as Landlord may uniformly establish from time to time. Tenant shall
not interfere with the rights of any or all of Landlord, other tenants or
licensees, or any other person entitled to use the Common Areas. Without
limitation of the foregoing, Tenant shall not park or store any vehicles or
trailers on, or conduct truck loading and unloading activities in, the Common
Areas in a manner that unreasonably disturbs, disrupts or prevents the use of
the Common Areas by Landlord, other tenants or licensees or other persons
entitled to use the Common Areas. Landlord, from time to time, may change any or
all of the size, location, nature and use of any of the Common Areas although
such changes may result in inconvenience to Tenant, so long as such changes do
not materially and adversely affect Tenant's use of the Premises. In addition to
the foregoing, Landlord may, at any time, close or suspend access to any Common
Areas to perform any acts in the Common Areas as, in Landlord's reasonable
judgment, are desirable to improve or maintain either or both of the Premises
and the Property, or are required in order to satisfy Landlord's obligations
under either or both of SECTIONS 13.1 and 18; provided, however, that Landlord
shall use reasonable efforts to limit any disruption of Tenant's use and
operation of the Premises in connection therewith.
4.3. SIGNAGE. Tenant shall not affix any sign of any size or
character to any portion of the Property, without prior written approval of
Landlord, which approval shall not be unreasonably withheld or delayed. Tenant
shall remove all signs of Tenant upon the expiration or earlier termination of
this Lease and immediately repair any damage to either or both of the Property
and the Premises caused by, or resulting from, such removal.
4.4. SECURITY/DAMAGE DEPOSIT. Simultaneously with the
execution and delivery of this Lease, Tenant shall deposit with Landlord or
Agent the sum set forth in SECTION 1.10 above, in cash (the "SECURITY"),
representing security for the performance by Tenant of the covenants and
obligations hereunder, the amount of which Security was determined by adding the
first two installments of monthly Base Rent and Additional Rent. The Security
shall be held by Landlord or Agent, without interest, in favor of Tenant;
provided, however, that no trust relationship shall be deemed created thereby
and the Security may be commingled with other assets of Landlord. If Tenant
defaults in the performance of any of its covenants hereunder, Landlord or Agent
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may, without notice to Tenant, apply all or any part of the Security, to the
extent required for the payment of any Rent or other sums due from Tenant
hereunder, in addition to any other remedies available to Landlord. In the event
the Security is so applied, Tenant shall, upon demand, immediately deposit with
Landlord or Agent a sum equal to the amount so used. If Tenant fully and
faithfully complies with all the covenants and obligations hereunder, the
Security (or any balance thereof) shall be returned to Tenant within 30 days
after the last to occur of (i) the date the Term expires or terminates or (ii)
delivery to Landlord of possession of the Premises. Landlord may deliver the
Security to any purchaser of Landlord's interest in the Premises [or any
Successor Landlord (defined below), if applicable], and thereupon Landlord and
Agent shall be discharged from any further liability with respect to the
Security. PROVIDED TENANT IS NOT NOR HAS NOT BEEN IN DEFAULT, LANDLORD SHALL
RETURN ONE (1) MONTH'S GROSS RENT ($30,302.50) TO TENANT AT THE END OF THE
SECOND LEASE YEAR (SEPTEMBER 1, 2005).
5. CONDITION AND DELIVERY OF PREMISES.
5.1. CONDITION OF PREMISES. Tenant agrees that Tenant is
familiar with the condition of both the Premises and the Property, and Tenant
hereby accepts the foregoing on an "AS-IS," "WHERE-IS" basis. Tenant
acknowledges that neither Landlord nor Agent, nor any representative of
Landlord, has made any representation as to the condition of the foregoing or
the suitability of the foregoing for Tenant's intended use. Tenant represents
and warrants that Tenant has made its own inspection of the foregoing. Neither
Landlord nor Agent shall be obligated to make any repairs, replacements or
improvements (whether structural or otherwise) of any kind or nature to the
foregoing in connection with, or in consideration of, this Lease, except (a) as
set forth in SECTIONS 13.1 and 18 and (b) with respect to all (if any) repairs
and improvements expressly and specifically described in EXHIBIT C attached
hereto ("LANDLORD'S REPAIRS AND IMPROVEMENTS"). Landlord agrees to make
reasonable efforts to enforce, or cause Agent to enforce, upon Tenant's request,
all manufacturer's or contractor's warranties, if any, issued in connection with
any of the Landlord's Repairs and Improvements.
5.2. DELAY IN COMMENCEMENT. Landlord shall not be liable to
Tenant if Landlord does not deliver possession of the Premises to Tenant on the
Commencement Date. The obligations of Tenant under the Lease shall not be
affected thereby, except that the Commencement Date shall be delayed until
Landlord delivers possession of the Premises to Tenant and the Lease Term shall
be extended by a period equal to the number of days of delay in delivery of
possession of the Premises to Tenant, plus the number of days necessary to end
the Lease Term on the last day of a month. IN THE EVENT LANDLORD IS UNABLE TO
DELIVER POSSESSION OF THE PREMISES TO TENANT ON THE COMMENCEMENT DATE PER THE
LEASE, SUBJECT TO ACCIDENTS, EMERGENCIES, STRIKES, OR ANY OTHER CAUSE BEYOND
LANDLORD'S OR AGENT'S REASONABLE CONTROL, FOR EACH DAY THE LANDLORD IS LATE IN
DELIVERING POSSESSION, LANDLORD SHALL XXXXX ONE DAY OF BASE RENT AND ADDITIONAL
RENT.
6. SUBORDINATION; NOTICES TO SUPERIOR LESSORS AND MORTGAGEES;
ATTORNMENT.
6.1. SUBORDINATION. Provided that Tenant is provided with a
reasonable and customary subordination, nondisturbance and attornment agreement
duly executed by the holder of any mortgage or deed of trust or the landlord
pursuant to any ground lease, this Lease shall be subject and subordinate at all
times to (a) all ground leases or underlying leases that may now exist or
hereafter be executed affecting either or both of the Premises and the Property
and (b) any mortgage or deed of trust that may now exist or hereafter be placed
upon, and encumber, any or all of (x) the Property; (y) any ground leases or
underlying leases for the benefit of the Property; and (z) all or any portion of
Landlord's interest or estate in any of said items. Notwithstanding the
foregoing, Landlord shall have the right to subordinate or cause to be
subordinated any such ground leases or underlying leases that benefit the
Property or any such mortgage or deed of trust liens to this Lease. Tenant shall
execute and deliver, upon demand by Landlord and in the form reasonably
requested by Landlord, any additional documents evidencing the priority of
subordination of this Lease with respect to any such ground leases or underlying
leases for the benefit of the Property or any such mortgage or deed of trust.
6.2. ESTOPPEL CERTIFICATES. Tenant agrees, from time to time
and within 10 days after request by Landlord, to deliver to Landlord, or
Landlord's designee, an estoppel certificate stating such matters pertaining
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to this Lease as may be reasonably requested by Landlord. Failure by Tenant to
timely execute and deliver such certificate shall constitute an acceptance of
the Premises and acknowledgment by Tenant that the statements included therein
are true and correct without exception. Landlord and Tenant intend that any
statement delivered pursuant to this section may be relied upon by any
prospective purchaser or mortgagee of the Property or of any interest therein or
any other Landlord designee.
6.3. TRANSFER FOR LANDLORD. In the event of a sale or
conveyance by Landlord of the Property, the same shall operate to release
Landlord from any future liability for any of the covenants or conditions,
express or implied, herein contained in favor of Tenant, and in such event
Tenant agrees to look solely to Landlord's successor in interest with respect
thereto and agrees to attorn to such successor.
7. QUIET ENJOYMENT. Subject to the provisions of this Lease, so long as
Tenant pays all of the Rent and performs all of its other obligations hereunder,
Tenant shall not be disturbed in its possession of the Premises by Landlord,
Agent or any other person lawfully claiming through or under Landlord; provided,
however, in addition to Landlord's rights under SECTION 16 and elsewhere in this
Lease, Landlord and Landlord's agents, employees, contractors and
representatives shall be provided reasonable access to the Premises such that
Landlord and Landlord's agents, employees, contractors and representatives may
perform the General Maintenance Services (as hereinafter defined) without undue
interruption, delay or hindrance. This covenant shall be construed as a covenant
running with the Property and is not a personal covenant of Landlord. Tenant
shall not unreasonably interrupt, delay, prevent or hinder the performance of
the General Maintenance Services by or on behalf of Landlord. Notwithstanding
the foregoing, however, Tenant acknowledges and agrees that Landlord shall have
the unfettered and unilateral right to use portions of the Common Areas
(inclusive of the roof of the Building) for such purposes and uses as Landlord
may desire; provided, however, that in all events and under all circumstances,
Landlord's use of any portion of the Common Areas shall not interfere, in any
material respect, with any or all of (a) Tenant's rights to occupy and use the
Common Areas (in the manner and for the purposes contemplated hereunder); (b)
Tenant's right to utilize the vehicular parking areas located on the Common
Areas; and (c) Tenant's right of access, ingress and egress to and from the
Common Areas.
8. ASSIGNMENT, SUBLETTING AND MORTGAGING.
8.1. PROHIBITION. Tenant acknowledges that this Lease and the
Rent due under this Lease have been agreed to by Landlord in reliance upon
Tenant's reputation and creditworthiness and upon the continued operation of the
Premises by Tenant for the particular use described in SECTION 4.1 above;
therefore, Tenant shall not, whether voluntarily, or by operation of law, or
otherwise: (a) assign or otherwise transfer this Lease; (b) sublet the Premises
or any part thereof, or allow the same to be used or occupied by anyone other
than Tenant; or (c) mortgage, pledge, encumber, or otherwise hypothecate this
Lease or the Premises, or any part thereof, in any manner whatsoever, without in
each instance obtaining the prior written consent of Landlord, which consent may
be given or withheld in Landlord's sole, but reasonable, discretion SHALL NOT BE
UNREASONABLE WITHHELD OR DELAYED. Any purported assignment, mortgage, transfer,
pledge or sublease made without the prior written consent of Landlord shall be
absolutely null and void. No assignment of this Lease shall be effective and
valid unless and until the assignee executes and delivers to Landlord any and
all documentation reasonably required by Landlord in order to evidence
assignee's assumption of all obligations of Tenant hereunder. Any consent by
Landlord to a particular assignment, sublease or mortgage shall not constitute
consent or approval of any subsequent assignment, sublease or mortgage, and
Landlord's written approval shall be required in all such instances. No consent
by Landlord to any assignment or sublease shall be deemed to release Tenant from
its obligations hereunder and Tenant shall remain fully liable for performance
of all obligations under this Lease.
8.2. RIGHTS OF LANDLORD. If this Lease is assigned, or if the
Premises (or any part thereof) are sublet or used or occupied by anyone other
than Tenant, whether or not in violation of this Lease, Landlord or Agent may
(without prejudice to, or waiver of its rights), collect Rent from the assignee,
subtenant or occupant. Landlord or Agent may apply the net amount collected to
the Rent herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of this SECTION 8.
With respect to the allocable portion of the Premises sublet, in the event that
the total rent and any other considerations received under any sublease by
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Tenant is greater than the total Rent required to be paid, from time to time,
under this Lease, Tenant shall pay to Landlord one hundred percent (100%) of
such excess as received from any subtenant and such amount shall be deemed a
component of the Additional Rent.
8.3. PERMITTED TRANSFERS. The provisions of SECTION 8.1(A)
shall apply to a transfer of a majority (i.e. greater than 50% interest) of the
voting stock of Tenant or to any other change in voting control of Tenant (if
Tenant is a corporation), or to a transfer of a majority of the general
partnership or membership interests in Tenant (if Tenant is a partnership or a
limited liability company) or to a change in the managerial control of Tenant,
or to any comparable transaction involving any other form of business entity,
whether effectuated in one or more transactions, as if such transfer were an
assignment of this Lease; but said provisions shall not apply to such a
transfer, provided, in any of such events, the successor to Tenant (or any party
remaining liable for the obligations of Tenant hereunder): (i) has a net worth
at least equal to the net worth of Tenant as of the Commencement Date or (ii) is
capable of satisfying Tenant's obligations hereunder, in Landlord's reasonable
judgment. Any such permitted transferee shall execute and deliver to Landlord
any and all documentation reasonably required by Landlord in order to evidence
assignee's assumption of all obligations of Tenant hereunder. Notwithstanding
anything to the contrary contained in this SECTION 8.3, in no event may Tenant
assign, mortgage, transfer, pledge or sublease this Lease to any entity
whatsoever if, at the time of such assignment, mortgage, transfer, pledge or
sublease, Tenant is in default under this Lease.
9. COMPLIANCE WITH LAWS.
9.1. COMPLIANCE WITH LAWS. Tenant shall, at its sole expense
(regardless of the cost thereof), comply with all local, state and federal laws,
rules, regulations and requirements now or hereafter in force and all judicial
and administrative decisions in connection with the enforcement thereof
(collectively, "LAWS"), pertaining to either or both of the Premises and
Tenant's use and occupancy thereof. If any license or permit is required for the
conduct of Tenant's business in the Premises, Tenant, at its expense, shall
procure such license prior to the Commencement Date, and shall maintain such
license or permit in good standing throughout the Term. Tenant shall give prompt
notice to Landlord of any written notice it receives of the alleged violation of
any Law or requirement of any governmental or administrative authority with
respect to either or both of the Premises and the use or occupation thereof. The
judgment of any court of competent jurisdiction, or the admission of Tenant in
any action or proceeding against Tenant, whether Landlord is a party thereto or
not, that any such Law pertaining to the Premises has been violated, shall be
conclusive of that fact as between Landlord and Tenant.
9.2. HAZARDOUS MATERIALS. If, at any time or from time to time
during the Term (or any extension thereof), any Hazardous Material (defined
below) is generated, transported, stored, used, treated or disposed of at, to,
from, on or in either or both of the Premises and the Property by, or as a
result of any act or omission of, any or all of Tenant and any or all of
Tenant's Parties (defined below): (i) Tenant shall, at its own cost, at all
times comply (and cause all others to comply) with all laws (federal, state or
local) relating to Hazardous Materials, including, but not limited to, all
Environmental Laws (defined below), and Tenant shall further, at its own cost,
obtain and maintain in full force and effect at all times all permits and other
approvals required in connection therewith; (ii) Tenant shall promptly provide
Landlord or Agent with complete copies of all communications, permits or
agreements with, from or issued by any governmental authority or agency
(federal, state or local) or any private entity relating in any way to the
presence, release, threat of release, or placement of Hazardous Materials on or
in the Premises or any portion of the Property, or the generation,
transportation, storage, use, treatment, or disposal at, on, in or from the
Premises, of any Hazardous Materials; (iii) Landlord, Agent and their respective
agents and employees shall have the right to either or both (x) enter the
Premises and (y) conduct appropriate tests for the purposes of ascertaining
Tenant's compliance with all applicable laws (including Environmental Laws),
rules or permits relating in any way to the generation, transport, storage, use,
treatment, disposal or presence of Hazardous Materials on, at, in or from all or
any portion of either or both of the Premises and the Property; and (iv) upon
written request by Landlord or Agent, Tenant shall provide Landlord with the
results of reasonably appropriate tests of air, water or soil to demonstrate
that Tenant complies with all applicable laws, rules or permits relating in any
way to the generation, transport, storage, use, treatment, disposal or presence
of Hazardous Materials on, at, in or from all or any portion of either or both
of the Premises and the Property. This SECTION 9.2 does not authorize the
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generation, transportation, storage, use, treatment or disposal of any Hazardous
Materials at, to, from, on or in the Premises in contravention of this SECTION
9. Tenant covenants to investigate, clean up and otherwise remediate, at
Tenant's sole expense, any release of Hazardous Materials caused, contributed
to, or created by any or all of (A) Tenant and (B) any or all of Tenant's
officers, directors, members, managers, partners, invitees, agents, employees,
contractors or representatives ("TENANT PARTIES") during the Term. Such
investigation and remediation shall be performed only after Tenant has obtained
Landlord's prior written consent; provided, however, that Tenant shall be
entitled to respond immediately to an emergency without first obtaining such
consent. All remediation shall be performed in strict compliance with
Environmental Laws and to the reasonable satisfaction of Landlord. Tenant shall
be liable for any and all conditions covered hereby, and for all costs relating
thereto, that are caused or created by any or all of Tenant and any or all of
Tenant's Parties. Tenant shall not enter into any settlement agreement, consent
decree or other compromise with respect to any claims relating to any Hazardous
Materials in any way connected to the Premises without first obtaining
Landlord's written consent (which consent may be given or withheld in Landlord's
sole, but reasonable, discretion) and affording Landlord the reasonable
opportunity to participate in any such proceedings. As used herein, the term (x)
"ENVIRONMENTAL LAWS" shall mean any and all laws pertaining to Hazardous
Materials or that otherwise deal with, or relate to, air or water quality, air
emissions, soil or ground conditions or other environmental matters of any kind;
and (y) "HAZARDOUS MATERIALS" shall mean any waste, material or substance
(whether in the form of liquids, solids or gases, and whether or not airborne)
that is or may be deemed to be or include a pesticide, petroleum, asbestos,
polychlorinated biphenyl, radioactive material, urea formaldehyde or any other
pollutant or contaminant that is or may be deemed to be hazardous, toxic,
ignitable, reactive, corrosive, dangerous, harmful or injurious, or that
presents a risk to public health or to the environment, and that is or becomes
regulated by any Environmental Law. The undertakings, covenants and obligations
imposed on Tenant under this SECTION 9.2 shall survive the termination or
expiration of this Lease.
10. INSURANCE.
10.1. INSURANCE TO BE MAINTAINED BY LANDLORD. Landlord shall
maintain (a) "all-risk" property insurance policy covering the Property (at its
full replacement cost), but excluding Tenant's Property (defined below), and (b)
commercial general public liability insurance covering Landlord for claims
arising out of liability for bodily injury, death, personal injury, advertising
injury and property damage occurring in and about the Property and otherwise
resulting from any acts and operations of Landlord, its agents and employees,
and (c) rent loss insurance, all of the above with limits that are required by
any lender(s) of Landlord, or as are otherwise reasonably determined by
Landlord.
10.2. INSURANCE TO BE MAINTAINED BY TENANT. Tenant shall
purchase, at its own expense, and keep in force at all times during this Lease
the policies of insurance set forth below in SECTIONS 10.2.1 and 10.2.2
(collectively, "TENANT'S POLICIES"). All Tenant's Policies shall (a) be issued
by an insurance company with a Best rating of A-X or better and otherwise
reasonably acceptable to Landlord and shall be licensed to do business in the
state in which the Property is located; (b) provide that said insurance shall
not be canceled or materially modified unless 30 days' prior written notice
shall have been given to Landlord; and (c) otherwise be in such form, and
include such coverages, as Landlord may reasonably require. All Tenant's
Policies (or, at Landlord's option, Certificates of Insurance, in a form
reasonably acceptable to Landlord, evidencing said Tenant's Policies), shall be
delivered to Landlord by Tenant upon commencement of the Lease and renewals
thereof shall be delivered at least 30 days prior to the expiration of each
Tenant's Policy. Tenant shall give prompt notice to Landlord and Agent of any
bodily injury, death, personal injury, advertising injury or property damage
occurring in and about the Property.
10.2.1. GENERAL LIABILITY AND AUTO INSURANCE. Tenant
shall purchase and maintain, throughout the Term, a Tenant's Policy(ies) of (i)
commercial general or excess liability insurance, including personal injury and
property damage, in the amount of not less than $2,000,000.00 per occurrence,
and $5,000,000.00 annual general aggregate, per location; (ii) comprehensive
automobile liability insurance covering Tenant against any losses arising out of
liability for personal injuries or deaths of persons and property damage
occurring in or about the Premises in the amount of not less than $1,000,000,
combined single limit. The Tenant's Policies required by this SECTION 10.2.1
shall (a) name Landlord, Agent, and any party holding an interest to which this
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Lease may be subordinated as additional insureds; (b) provide coverage on an
occurrence basis; (c) provide coverage for the indemnity obligations of Tenant
under this Lease; (d) contain a severability of insured parties provision and/or
a cross liability endorsement; (e) be primary, not contributing with, and not in
excess of, coverage that Landlord may carry; and (f) provide coverage with no
exclusion for a pollution incident arising from a hostile fire.
10.2.2. PROPERTY AND WORKERS' COMPENSATION INSURANCE.
Tenant shall purchase and maintain, throughout the Term, a Tenant's Policy or
Policies of (i) "all-risk" property insurance covering Tenant's Property (at its
full replacement cost), and damage to other property resulting from any acts or
operations of Tenant, and (ii) workers' compensation insurance per the
applicable state statutes covering all employees of Tenant.
10.3. WAIVER OF SUBROGATION. To the extent permitted by law,
and without affecting the coverage provided by insurance required to be
maintained hereunder, Landlord and Tenant each waive any right to recover
against the other for (a) damages to property, (b) damages to all or any portion
of either or both of the Premises and the Property, (c) claims arising by reason
of the foregoing, to the extent such damages and claims are insured against, or
required to be insured against, by Landlord or Tenant under this Lease, or (d)
claims paid by Tenant's workers' compensation carrier. This provision is
intended to waive, fully and for the benefit of each party, any rights and/or
claims which might give rise to a right of subrogation by any insurance carrier.
The coverage obtained by each party pursuant to this Lease shall include,
without limitation, a waiver of subrogation by the carrier which conforms to the
provisions of this section.
11. ALTERATIONS.
11.1. PROCEDURAL REQUIREMENTS. Tenant may, from time to time,
at its expense, make alterations or improvements in and to the Premises
(hereinafter collectively referred to as "ALTERATIONS"), provided that Tenant
first obtains the written consent of Landlord in each instance. Landlord's
consent to Alterations shall not be unreasonably withheld, provided that: (a)
the Alterations are non-structural and the structural integrity of the Property
shall not be affected; (b) the Alterations are to the interior of the Premises;
(c) the proper functioning of the mechanical, electrical, heating, ventilating,
air-conditioning ("HVAC"), sanitary and other service systems of the Property
shall not be affected and the usage of such systems by Tenant shall not be
increased; (d) the Alterations have no adverse effect on other leased premises
in the Property; (e) Tenant shall have appropriate insurance coverage,
reasonably satisfactory to Landlord, regarding the performance and installation
of the Alterations; (f) the Alterations shall conform with all other
requirements of this Lease; and (g) Tenant shall have provided Landlord with
reasonably detailed plans for such Alterations in advance of requesting
Landlord's consent. Additionally, before proceeding with any Alterations, Tenant
shall (i) at Tenant's expense, obtain all necessary governmental permits and
certificates for the commencement and prosecution of Alterations; (ii) submit to
Agent, for Landlord's written approval, working drawings, plans and
specifications and all permits for the work to be done and Tenant shall not
proceed with such Alterations until it has received said approval; and (iii)
cause those contractors, materialmen and suppliers engaged to perform the
Alterations to deliver to Landlord certificates of insurance (in a form
reasonably acceptable to Landlord) evidencing policies of commercial general
liability insurance (providing the same coverages as required in SECTION 10.2.1
above) and workers' compensation insurance. Such insurance policies shall
satisfy the obligations imposed under SECTION 10.2.1(A) through (D) and (F).
After obtaining Landlord's approval to the Alterations, Tenant shall give
Landlord at least five days' prior written notice of the commencement of any
Alterations at the Premises, and Landlord may elect to record and post notices
of non-responsibility at the Premises. Notwithstanding anything to the contrary
contained in this SECTION 11.1, Landlord's consent shall not be required for
Alterations satisfying clauses (a) through (f) above and costing $10,000.00 or
less in any one instance (up to a maximum aggregate of $25,000.00 over the Term)
provided that Tenant notifies Landlord of such Alterations prior to commencing
thereon and obtains all approvals and permits necessary for the commencement and
prosecution of such Alterations.
11.2. PERFORMANCE OF ALTERATIONS. Tenant shall cause the
Alterations to be performed in compliance with all applicable permits, laws and
requirements of public authorities, and with Landlord's reasonable rules and
regulations or any other restrictions that Landlord or Agent may impose on the
Alterations. Tenant shall cause the Alterations to be diligently performed in a
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good and workmanlike manner, using new materials and equipment at least equal in
quality and class to the standards for the Property established by Landlord or
Agent. Tenant shall obtain all necessary permits and certificates for final
governmental approval of the Alterations and shall provide Landlord with "as
built" plans, copies of all construction contracts, governmental permits and
certificates and proof of payment for all labor and materials, including,
without limitation, copies of paid invoices and final lien waivers.
11.3. LIEN PROHIBITION. Tenant shall pay when due all claims
for labor and material furnished to the Premises in connection with the
Alterations. Tenant shall not permit any mechanics or materialmen's liens to
attach to the Premises or the Property. Tenant, at its expense, shall procure
the satisfaction or discharge of record of all such liens and encumbrances
within 30 days after the filing thereof; or, within such thirty (30) day period,
Tenant shall provide Landlord, at Tenant's sole expense, with endorsements
(satisfactory, both in form and substance, to Landlord and the holder of any
mortgage or deed of trust) to the existing title insurance policies of Landlord
and the holder of any mortgage or deed of trust, insuring against the existence
of, and any attempted enforcement of, such lien or encumbrance. In the event
Tenant has not so performed, Landlord may, at its option, pay and discharge such
liens and Tenant shall be responsible to reimburse Landlord, on demand and as
Additional Rent under this Lease, for all costs and expenses incurred in
connection therewith, together with interest thereon at the rate set forth in
SECTION 22.3, which expenses shall include reasonable fees of attorneys of
Landlord's choosing, and any costs in posting bond to effect discharge or
release of the lien as an encumbrance against the Premises or the Property.
12. LANDLORD'S AND TENANT'S PROPERTY.
12.1. LANDLORD'S PROPERTY. Subject to SECTION 12.2, all
fixtures, machinery, equipment, improvements and appurtenances attached to, or
built into, the Premises at the commencement of, or during the Term, whether or
not placed there by or at the expense of Tenant, shall become and remain a part
of the Premises; shall be deemed the property of Landlord (the "LANDLORD'S
PROPERTY"), without compensation or credit to Tenant; and shall not be removed
by Tenant at the Expiration Date unless Landlord requests their removal.
Further, any personal property in the Premises on the Commencement Date, movable
or otherwise, unless installed and paid for by Tenant, shall be and shall remain
the property of Landlord and shall not be removed by Tenant. In no event shall
Tenant remove any of the following materials or equipment without Landlord's
prior written consent (which consent may be given or withheld in Landlord's sole
discretion): any power wiring or power panels, lighting or lighting fixtures,
wall or window coverings, carpets or other floor coverings, heaters, air
conditioners or any other HVAC equipment, fencing or security gates, or other
similar building operating equipment and decorations.
12.2. TENANT'S PROPERTY. All movable non-structural
partitions, business and trade fixtures, machinery and equipment, communications
equipment and office equipment that are installed in the Premises by, or for the
account of, Tenant and without expense to Landlord and that can be removed
without structural damage to the Property, and all furniture, furnishings and
other articles of movable personal property owned by Tenant and located in the
Premises (collectively, the "TENANT'S PROPERTY") shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the Term,
provided Tenant repairs or pays the cost of repairing any damage to the Premises
or to the Property resulting from the installation and/or removal thereof. At or
before the Expiration Date, or the date of any earlier termination, Tenant, at
its expense, shall remove from the Premises all of Tenant's Property and any
Alterations (except such items thereof as constitute Landlord's Property; or as
Landlord shall have expressly permitted, in writing, to remain, which property
shall become the property of Landlord), and Tenant shall repair (to Landlord's
reasonable satisfaction) any damage to the Premises or the Property resulting
from any installation and/or removal of Tenant's Property. Any other items of
Tenant's Property that shall remain in the Premises after the Expiration Date,
or following an earlier termination date, may, at the option of Landlord, be
deemed to have been abandoned, and in such case, such items may be retained by
Landlord as its property or be disposed of by Landlord, in Landlord's sole and
absolute discretion and without accountability, at Tenant's expense.
Notwithstanding the foregoing, if Tenant is in default under the terms of this
Lease, Tenant may remove Tenant's Property from the Premises only upon the
express written direction of Landlord.
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13. REPAIRS AND MAINTENANCE.
13.1. TENANT REPAIRS AND MAINTENANCE. Throughout the Term,
Tenant shall, at its sole cost and expense: (i) both (x) maintain and preserve,
in first-class condition (subject to normal and customary wear and tear), and
(y) perform any and all repairs and replacements required in order to so
maintain and preserve, in first class condition, the Premises and the fixtures
and appurtenances therein (including, but not limited to, the Premises' plumbing
and HVAC systems, all doors, overhead or otherwise, glass and levelers located
in the Premises or otherwise available in the Property for Tenant's sole use;
and excluding, however, only those specific components of the Premises for which
Landlord is expressly responsible under Section 13.2); and (ii) except to the
extent Landlord elects to repair and maintain the HVAC systems as part of
General Maintenance Services (as hereinafter defined), maintain, in full force
and effect, a preventative maintenance and service contract with a reputable
service provider for maintenance of the HVAC systems of the Premises (the "HVAC
Maintenance Contract"). The terms and provisions of any such HVAC Maintenance
Contract shall require that the service provider maintain the Premises' HVAC
system in accordance with the manufacturer's recommendations and otherwise in
accordance with normal, customary and reasonable practices in the geographic
area in which the Premises is located and for HVAC systems comparable to the
Premises' HVAC system. In addition to Tenant's obligations under (i) and (ii)
above, Tenant shall also be responsible for all costs and expenses incurred to
perform any and all repairs and replacements (whether structural or
non-structural; interior or exterior; and ordinary or extraordinary), in and to
the Premises and the Property and the facilities and systems thereof, if and to
the extent that the need for such repairs or replacements arises directly or
indirectly from any or all of: (a) the performance or existence of any
Alterations, (b) the installation, use or operation of Tenant's Property in the
Premises, (c) the moving of Tenant's Property in or out of the Property, and (d)
any act, omission, misuse, or neglect of Tenant, any of its subtenants, or
others entering into the Premises by act or omission of Tenant or any subtenant.
PROVIDED, HOWEVER, TENANT SHALL NOT BE REQUIRED TO PAY FOR ANY REPAIRS TO THE
HVAC SYSTEM SERVING THE OFFICE AREA ONLY DURING THE FIRST LEASE YEAR OF THE
TERM. LANDLORD SHALL HAVE ALL THE HVAC EQUIPMENT SERVICED AND CERTIFIED PRIOR TO
THE EARLY OCCUPANCY DATE. Any repairs or replacements required to be made by
Tenant to any or all of the structural components of the Property and the
mechanical, electrical, sanitary, HVAC, or other systems of the Property or
Premises shall be performed by appropriately licensed contractors approved by
Landlord, which approval shall not be unreasonably withheld. All such repairs or
replacements shall be subject to the supervision and control of Landlord, and
all repairs and replacements shall be made with materials of equal or better
quality than the items being repaired or replaced.
13.1.1. GENERAL MAINTENANCE SERVICES. Notwithstanding
any of the foregoing, however, from time to time during the Term, Landlord may
elect, in its sole discretion and by delivery of written notice to Tenant, to
perform on behalf of Tenant, all or some portion of the repairs, maintenance,
restoration and replacement in and to the Premises required to be performed by
Tenant under this Lease (any such repairs, maintenance, restoration and/or
replacement activities that Landlord elects to perform on behalf of Tenant are
herein collectively referred to as "General Maintenance Services"). Tenant shall
reimburse Landlord for the cost or value of all General Maintenance Services
provided by Landlord as Additional Rent, simultaneously with the payment of
Operating Expenses as part of Estimated Additional Rent (on a monthly estimated
basis subject to annual reconciliation, as described in Section 3.3 above).
Unless and until Landlord affirmatively elects to provide General Maintenance
Services, nothing contained herein shall be construed to obligate Landlord to
perform any General Maintenance Services or, except as otherwise expressly
provided in Section 13.2, to repair, maintain, restore or replace any portion of
the Premises. Landlord may from time to time, in its sole discretion, (x) reduce
or expand the scope of the General Maintenance Services that Landlord has
elected to provide or (y) revoke its election to provide any or all of the
General Maintenance Services, in either event, upon delivery of not less than
thirty (30) days' prior written notice to Tenant.
13.1.2. HVAC MAINTENANCE CONTRACT. If Landlord does
not elect to repair and maintain the HVAC systems as part of General Maintenance
Services, or revokes such election at any time after having made such election,
then, within 30 days following either (a) the Commencement Date or (b) the date
on which Landlord advises Tenant that Landlord will no longer provide General
Maintenance Services for the HVAC system, whichever date is applicable, Tenant
shall procure and deliver to Landlord the HVAC Maintenance Contract.
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Thereafter, Tenant shall provide to Landlord a copy of renewals or replacements
of such HVAC Maintenance Contract no later than 30 days prior to the
then-applicable expiry date of the existing HVAC Maintenance Contract. If Tenant
fails to timely deliver to Landlord the HVAC Maintenance Contract (or any
applicable renewal or replacement thereof), then Landlord shall have the right
to contract directly for the periodic maintenance of the HVAC systems in the
Premises and to charge the cost thereof back to Tenant as Additional Rent.
13.2. LANDLORD REPAIRS. Notwithstanding anything contrary
herein, Landlord shall repair, replace and restore the foundation, exterior and
interior load-bearing walls, roof structure and roof covering and tuckpointing
of the Property; provided, however, that (i) all costs and expenses so incurred
by Landlord to repair, replace and restore the above items shall constitute
Operating Expenses; provided, however, that with respect to any costs incurred
in the replacement context, those costs shall not constitute an Operating
Expense except to the extent that such costs so qualify under Section
3.1.1(vii); and (ii) notwithstanding (i) above, in the event that any such
repair, replacement or restoration is necessitated by any or all of the matters
set forth in Sections 13.1(a) through (d) above (collectively, "Tenant
Necessitated Repairs"), then Tenant shall be required to reimburse Landlord for
all costs and expenses that Landlord incurs in order to perform such Tenant
Necessitated Repairs, and such reimbursement shall be paid, in full, within 10
days after Landlord's delivery of demand therefor. Landlord agrees to commence
the repairs, replacements or restoration described in this Section 13.2 within a
reasonable period of time after receiving from Tenant written notice of the need
for such repairs.
14. UTILITIES. Tenant shall purchase all utility services and shall
provide for scavenger, cleaning and extermination services. As provided in
SECTION 3.1.1. above, utility charges are included within Operating Expenses;
therefore, when and as Tenant pays estimated Operating Expenses, those estimated
monthly payments shall include monthly estimated installments of utility
charges; nevertheless, at Landlord's election or with Landlord's consent, Tenant
may pay the utility charges for its Premises directly to the utility or
municipality providing such service, and in that event: (a) all charges shall be
paid by Tenant before they become delinquent; and (b) utility charges for the
Premises shall not be included in estimated Operating Expenses. Tenant shall be
solely responsible for the repair and maintenance of any meters necessary in
connection with such services. Tenant's use of electrical energy in the Premises
shall not, at any time, exceed the capacity of either or both of (i) any of the
electrical conductors and equipment in or otherwise servicing the Premises; and
(ii) the HVAC systems of either or both of the Premises and the Property.
15. INVOLUNTARY CESSATION OF SERVICES. Landlord reserves the right,
without any liability to Tenant and without affecting Tenant's covenants and
obligations hereunder, to stop service of any or all of the HVAC, electric,
sanitary, elevator (if any), and other systems serving the Premises, or to stop
any other services required by Landlord under this Lease, whenever and for so
long as may be necessary by reason of (i) accidents, emergencies, strikes, or
the making of repairs or changes which Landlord or Agent, in good faith, deems
necessary or (ii) any other cause beyond Landlord's reasonable control. Further,
it is also understood and agreed that Landlord or Agent shall have no liability
or responsibility for a cessation of services to the Premises or to the Property
that occurs as a result of causes beyond Landlord's or Agent's reasonable
control. No such interruption of service shall be deemed an eviction or
disturbance of Tenant's use and possession of the Premises or any part thereof,
or render Landlord or Agent liable to Tenant for damages, or relieve Tenant from
performance of Tenant's obligations under this Lease, including, but not limited
to, the obligation to pay Rent; provided, however, that if any interruption of
services persists for a period in excess of five (5) consecutive business days
Tenant shall, as Tenant's sole remedy, be entitled to a proportionate abatement
of Rent to the extent, if any, of any actual loss of use of the Premises by
Tenant.
16. LANDLORD'S RIGHTS. Landlord, Agent and their respective agents,
employees and representatives shall have the right to enter and/or pass through
the Premises at any time or times upon reasonable prior notice (except in the
event of emergency): (a) to examine and inspect the Premises and to show them to
actual and prospective lenders, prospective purchasers or mortgagees of the
Property or providers of capital to Landlord and its affiliates; and (b) to make
such repairs, alterations, additions and improvements in or to all or any
portion of either or both of the Premises and the Property, or the Property's
facilities and equipment as Landlord is required or desires to make. Landlord
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and Agent shall be allowed to take all materials into and upon the Premises that
may be required in connection with any repairs, alterations, additions or
improvements, without any liability to Tenant and without any reduction or
modification of Tenant's covenants and obligations hereunder; provided, however,
that Landlord shall use reasonable efforts to limit interference with Tenant's
business operations and Tenant's occupancy and use of the Premises. During the
period of six months prior to the Expiration Date (or at any time, if Tenant has
vacated or abandoned the Premises or is otherwise in default under this Lease),
Landlord and its agents may exhibit the Premises to prospective tenants.
Additionally, Landlord and Agent shall have the following rights with respect to
the Premises, exercisable without notice to Tenant, without liability to Tenant,
and without being deemed an eviction or disturbance of Tenant's use or
possession of the Premises or giving rise to any claim for setoff or abatement
of Rent: (i) to designate and approve, prior to installation, all types of
signs; (ii) to have pass keys, access cards, or both, to the Premises; and (iii)
to decorate, remodel, repair, alter or otherwise prepare the Premises for
reoccupancy at any time after Tenant vacates or abandons the Premises for more
than 30 consecutive days or without notice to Landlord of Tenant's intention to
reoccupy the Premises.
17. NON-LIABILITY AND INDEMNIFICATION.
17.1. NON-LIABILITY. Except as provided in SECTION 17.2.2,
none of Landlord, Agent, any other managing agent, or their respective
affiliates, owners, partners, directors, officers, agents and employees shall be
liable to Tenant for any loss, injury, or damage, to Tenant or to any other
person, or to its or their property, irrespective of the cause of such injury,
damage or loss. Further, except as provided in SECTION 17.2.2, none of Landlord,
Agent, any other managing agent, or their respective affiliates, owners,
partners, directors, officers, agents and employees shall be liable to Tenant
(a) for any damage caused by other tenants or persons in, upon or about the
Property, or caused by operations in construction of any public or quasi-public
work; (b) with respect to matters for which Landlord is liable, for
consequential or indirect damages purportedly arising out of any loss of use of
the Premises or any equipment or facilities therein by Tenant or any person
claiming through or under Tenant; (c) any defect in the Premises or the
Property; (d) injury or damage to person or property caused by fire, or theft,
or resulting from the operation of heating or air conditioning or lighting
apparatus, or from falling plaster, or from steam, gas, electricity, water,
rain, snow, ice, or dampness, that may leak or flow from any part of the
Property, or from the pipes, appliances or plumbing work of the same.
17.2. INDEMNIFICATION.
17.2.1. TENANT INDEMNIFICATION. Tenant hereby
indemnifies, defends, and holds Landlord, Agent and their respective affiliates,
owners, partners, directors, officers, agents and employees (collectively,
"LANDLORD INDEMNIFIED PARTIES") harmless from and against any and all Losses
(defined below) arising from or in connection with any or all of: (a) the
conduct or management of either or both the Property and the Premises or any
business therein, or any work or Alterations done, or any condition created by
any or all of Tenant and Tenant's Parties in or about the Premises during the
Term or during the period of time, if any, prior to the Commencement Date that
Tenant is given access to the Premises; (b) any act, omission or negligence of
any or all of Tenant and Tenant's Parties; (c) any accident, injury or damage
whatsoever (unless caused by Landlord's negligence) occurring in, at or upon
either or both of the Property and the Premises and caused by any or all of
Tenant and Tenant's Parties; (d) any breach by Tenant of any of its warranties
and representations under this Lease; (e) any actions necessary to protect
Landlord's interest under this Lease in a bankruptcy proceeding or other
proceeding under the Bankruptcy Code; (f) any violation or alleged violation by
any or all of Tenant and Tenant's Parties of any Law including, without
limitation, any Environmental Law; (g) any breach of the provisions of SECTION 9
by any or all of Tenant and Tenant's Parties; (h) claims for work or labor
performed or materials supplies furnished to or at the request of any or all of
Tenant and Tenant's Parties; (i) claims arising from any breach or default on
the part of Tenant in the performance of any covenant contained in this Lease;
(j) any Hazardous Materials used, exposed, emitted, released, discharged,
generated, manufactured, sold, transported, handled, stored, treated, reused,
presented, disposed of or recycled in, at, near or under all or any portion of
the Premises as a result of the acts or omissions of any or all of Tenant and
Tenant's Parties; and (k) the violation of any Environmental Law or any permit,
application or consent required in connection with any Environmental Law by any
or all of Tenant and Tenant's Parties with respect to the Premises during the
Term, excluding, however, any violation of any Environmental Law resulting
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directly from the acts or omissions of Landlord and Landlord's employees, agents
and contractors (collectively, "TENANT'S INDEMNIFIED MATTERS"). In case any
action or proceeding is brought against any or all of Landlord and the Landlord
Indemnified Parties by reason of any of Tenant's Indemnified Matters, Tenant,
upon notice from any or all of Landlord, Agent or any Superior Party (defined
below), shall resist and defend such action or proceeding by counsel reasonably
satisfactory to, or selected by, Landlord. The term "LOSSES" shall mean all
claims, demands, expenses, actions, judgments, damages (actual, but not
consequential), penalties, fines, liabilities, losses of every kind and nature
(including, without limitation, property damage, diminution in value of
Landlord's interest in the Premises or the Property, damages for the loss or
restriction on use of any space or amenity within the Premises or the Property,
damages arising from any adverse impact on marketing space in the Property, sums
paid in settlement of claims and any costs and expenses associated with injury,
illness or death to or of any person), suits, administrative proceedings, costs
and fees, including, without limitation, attorneys' and consultants' reasonable
fees and expenses, and the costs of cleanup, remediation, removal and
restoration, that are in any way related to any matter covered by the foregoing
indemnity. The provisions of this SECTION 17.2.1 shall survive the expiration or
termination of this Lease.
17.2.2. LANDLORD INDEMNIFICATION. Landlord hereby
indemnifies, defends and holds Tenant harmless from and against any and all
Losses actually suffered or incurred by Tenant as the sole and direct result of
any negligent, willful or intentional acts or omissions of any or all of
Landlord, Agent and any parties within the direct and sole control of either or
both of Landlord and Agent. In the event that any action or proceeding is
brought against Tenant, and the foregoing indemnity is applicable to such action
or proceeding, then Landlord, upon notice from Tenant, shall resist and defend
such action or proceeding by counsel reasonably satisfactory to Tenant.
Notwithstanding anything to the contrary set forth in this Lease, however, in
all events and under all circumstances, the liability of Landlord to Tenant
shall be limited to the interest of Landlord in the Property, and Tenant agrees
to look solely to Landlord's interest in the Property for the recovery of any
judgment or award against Landlord, it being intended that Landlord shall not be
personally liable for any judgment or deficiency. The provisions of this SECTION
17.2.2 shall survive the expiration or termination of this Lease.
17.3. FORCE MAJEURE. The obligations of Tenant hereunder shall
not be affected, impaired or excused, and Landlord shall have no liability
whatsoever to Tenant, with respect to any act, event or circumstance arising out
of (a) Landlord's failure to fulfill, or delay in fulfilling any of its
obligations under this Lease by reason of labor dispute, governmental preemption
of property in connection with a public emergency or shortages of fuel,
supplies, or labor, or any other cause, whether similar or dissimilar, beyond
Landlord's reasonable control; or (b) any failure or defect in the supply,
quantity or character of utilities furnished to the Premises, or by reason of
any requirement, act or omission of any public utility or others serving the
Property, beyond Landlord's reasonable control.
18. DAMAGE OR DESTRUCTION.
18.1. NOTIFICATION AND REPAIR. Tenant shall give prompt notice
to Landlord and Agent of (a) any fire or other casualty to the Premises or the
Property, and (b) any damage to, or defect in, any part or appurtenance of the
Property's sanitary, electrical, HVAC, elevator or other systems located in or
passing through the Premises or any part thereof. Tenant shall be liable for any
claim, loss, damage, cost or expense resulting from Tenant's failure to give
Landlord the foregoing notice in a timely manner. Subject to the provisions of
SECTION 18.3 below, if either or both of the Property and the Premises is
damaged by fire or other insured casualty, Landlord shall repair (or cause Agent
to repair) the damage and restore and rebuild the Property and/or the Premises
(except for Tenant's Property) with reasonable dispatch after (x) notice to it
of the damage or destruction and (y) the adjustment of the insurance proceeds
attributable to such damage. Subject to the provisions of SECTION 18.3 below,
Tenant shall not be entitled to terminate this Lease and no damages,
compensation or claim shall be payable by Landlord for purported inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Premises or of the Property pursuant to this Section. Landlord
(or Agent, as the case may be) shall use its diligent, good faith efforts to
make such repair or restoration promptly and in such manner as not to
unreasonably interfere with Tenant's use and occupancy of the Premises, but
Landlord or Agent shall not be required to do such repair or restoration work
except during normal business hours of business days.
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18.2. RENTAL ABATEMENT. Provided that any damage to either or
both of the Property and the Premises is not caused by, or is not the result of
acts or omissions by, any or all of Tenant and Tenant's Parties, if (a) the
Property is damaged by fire or other casualty thereby causing the Premises to be
inaccessible or (b) the Premises are partially damaged by fire or other
casualty, the Rent shall be proportionally abated to the extent of any actual
loss of use of the Premises by Tenant.
18.3. TOTAL DESTRUCTION. If the Property or the Premises shall
be totally destroyed by fire or other casualty, or if the Property shall be so
damaged by fire or other casualty that (in the reasonable opinion of a reputable
contractor or architect designated by Landlord): (i) its repair or restoration
requires more than 180 days or (ii) such repair or restoration requires the
expenditure of more than 50% of the full insurable value of the Property
immediately prior to the casualty or (iii) the damage (x) is less than the
amount stated in (ii) above, but more than 10% of the full insurable value of
the Property; and (y) occurs during the last two years of Lease Term, Landlord
and Tenant shall each have the option to terminate this Lease (by so advising
the other, in writing) within 10 days after said contractor or architect
delivers written notice of its opinion to Landlord and Tenant, but in all events
prior to the commencement of any restoration of the Premises or the Property by
Landlord. In such event, the termination shall be effective as of the date upon
which either Landlord or Tenant, as the case may be, receives timely written
notice from the other terminating this Lease pursuant to the preceding sentence.
If neither Landlord nor Tenant timely delivers a termination notice, this Lease
shall remain in full force and effect. Notwithstanding the foregoing, if (A) any
holder of a mortgage or deed of trust encumbering the Property or landlord
pursuant to a ground lease encumbering the Property (collectively, "SUPERIOR
PARTIES") or other party entitled to the insurance proceeds fails to make such
proceeds available to Landlord in an amount sufficient for restoration of the
Premises or the Property, or (B) the issuer of any casualty insurance policies
on the Property fails to make available to Landlord sufficient proceeds for
restoration of the Premises or the Property, then Landlord may, at Landlord's
sole option, terminate this Lease by giving Tenant written notice to such effect
within 30 days after Landlord receives notice from the Superior Party or
insurance company, as the case may be, that such proceeds shall not be made
available, in which event the termination of this Lease shall be effective as of
the date Tenant receives written notice from Landlord of Landlord's election to
terminate this Lease. Landlord shall have no liability to Tenant, and Tenant
shall not be entitled to terminate this Lease by virtue of any delays in
completion of repairs and restoration. For purposes of this SECTION 18.3 only,
"FULL INSURABLE VALUE" shall mean replacement cost, less the cost of footings,
foundations and other structures below grade.
18.4. INSURANCE PROCEEDS. Landlord shall not be obligated to
expend in repairs and restoration an amount in excess of the proceeds of
insurance recovered with respect to any casualty. Tenant acknowledges that
Landlord shall be entitled to the full proceeds of any insurance coverage,
whether carried by Landlord or Tenant, for damage to either or both of the
Premises and the Property (excluding any proceeds for damage to Tenant's
Property). In the event that either or both of the Premises and the Property are
not repaired or reconstructed, all proceeds of insurance (excluding any proceeds
covering Tenant's Property), whether carried by Landlord or Tenant, shall be
payable to Landlord. Landlord's duty to repair the Premises and the Property
(excluding Tenant's Property) is limited to repairing the Premises to the
condition existing immediately prior to such fire or other casualty.
19. EMINENT DOMAIN. If the whole, or any substantial (as reasonably
determined by Landlord) portion, of the Property is taken or condemned for any
public use under any Law or by right of eminent domain, or by private purchase
in lieu thereof, and such taking would prevent or materially interfere with the
Permitted Use of the Premises, this Lease shall terminate effective when the
physical taking of said Premises occurs. If less than a substantial portion of
the Property is so taken or condemned, or if the taking or condemnation is
temporary (regardless of the portion of the Property affected), this Lease shall
not terminate, but the Rent payable hereunder shall be proportionally abated to
the extent of any actual loss of use of the Premises by Tenant. Landlord shall
be entitled to any and all payment, income, rent or award, or any interest
therein whatsoever, which may be paid or made in connection with such a taking
or conveyance, and Tenant shall have no claim against Landlord for the value of
any unexpired portion of this Lease. Notwithstanding the foregoing, any
compensation specifically and independently awarded to Tenant for loss of
business or goodwill, or for its personal property, shall be the property of
Tenant.
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20. SURRENDER AND HOLDOVER. On the last day of the Term, or upon any
earlier termination of this Lease, or upon any re-entry by Landlord upon the
Premises, (a) Tenant shall quit and surrender the Premises to Landlord
"broom-clean" and in good order, condition and repair (as defined by EXHIBIT C,
attached hereto and incorporated herein by reference), except for ordinary wear
and tear and such damage or destruction as Landlord is required to repair or
restore under this Lease, (b) Tenant shall remove all of Tenant's Property
therefrom, except as otherwise expressly provided in this Lease, and (c) Tenant
shall surrender to Landlord any and all keys, access cards, computer codes or
any other items used to access the Premises. Landlord shall be permitted to
inspect the Premises in order to verify compliance with this SECTION 20 at any
time prior to (x) the Expiration Date, (y) the effective date of any earlier
termination of this Lease, or (z) the surrender date otherwise agreed to in
writing by Landlord and Tenant. The obligations imposed under the first sentence
of this SECTION 20 shall survive the termination or expiration of this Lease. If
any repairs are required to be performed in, to or at the Premises (pursuant to
the first sentence of this SECTION 20 or any other applicable provision of this
Lease) upon the expiration or termination of the Term, Tenant shall cause such
repairs to be performed, to Landlord's reasonable satisfaction, within 10
business days after the date on which this Lease is terminated or expired. If
Tenant fails to timely comply with the preceding sentence, then Landlord shall
have the right to cause the repairs to be performed, at Tenant's expense, and
all such expenses so incurred by Landlord shall bear interest (at the rate
specified in the second sentence of SECTION 22.3) from the date the expense is
incurred until the date paid, in full, by Tenant (inclusive of interest). If
Tenant remains in possession after the Expiration Date hereof or after any
earlier termination date of this Lease or of Tenant's right to possession: (i)
Tenant shall be deemed a tenant-at-will; (ii) Tenant shall pay 200% of the
aggregate of the Base Rent and Additional Rent last prevailing hereunder, and
also shall pay all actual damages sustained by Landlord, directly by reason of
Tenant's remaining in possession after the expiration or termination of this
Lease; (iii) there shall be no renewal or extension of this Lease by operation
of law; and (iv) the tenancy-at-will may be terminated by either party hereto
upon 30 days' prior written notice given by the terminating party to the
non-terminating party. The provisions of this SECTION 20 shall not constitute a
waiver by Landlord of any re-entry rights of Landlord provided hereunder or by
law.
21. EVENTS OF DEFAULT.
21.1. BANKRUPTCY OF TENANT. It shall be a default by Tenant
under this Lease if Tenant makes an assignment for the benefit of creditors, or
files a voluntary petition under any state or federal bankruptcy or insolvency
law, or an involuntary petition alleging an act of bankruptcy or insolvency is
filed against Tenant under any state or federal bankruptcy or insolvency law
that is not dismissed within 90 days, or whenever a petition is filed by or
against (to the extent not dismissed within 90 days) Tenant under the
reorganization provisions of the United States Bankruptcy Code or under the
provisions of any state or federal law of like import, or whenever a petition
shall be filed by Tenant under the arrangement provisions of the United States
Bankruptcy Code or similar state or federal law, or whenever a receiver of
Tenant, or of, or for, the property of Tenant shall be appointed, or Tenant
admits it is insolvent or is not able to pay its debts as they mature.
21.2. DEFAULT PROVISIONS. Each of the following shall
constitute a default by Tenant under this Lease: (a) if Tenant fails to pay Rent
or any other payment when due hereunder within five days after written notice
from Landlord of such failure to pay on the due date; provided, however, that if
in any consecutive 12 month period, Tenant shall, on two (2) separate occasions,
fail to pay any installment of Rent on the date such installment of Rent is due,
then, on the third such occasion and on each occasion thereafter on which Tenant
shall fail to pay an installment of Rent on the date such installment of Rent is
due, Landlord shall be relieved from any obligation to provide notice to Tenant,
and Tenant shall then no longer have a five day period in which to cure any such
failure; or (b) if Tenant fails, whether by action or inaction, to timely comply
with, or satisfy, any or all of the obligations imposed on Tenant under this
Lease (other than the obligation to pay Rent) for a period of 30 days after
Landlord's delivery to Tenant of written notice of such default under this
SECTION 21.2(B); provided, however, that if the default cannot, by its nature,
be cured within such 30 day period, but Tenant commences and diligently pursues
a cure of such default promptly within the initial 30 day cure period, then
Landlord shall not exercise its remedies under SECTION 22 unless such default
remains uncured for more than 60 days after the initial delivery of Landlord's
original default notice; or (c) Tenant vacates or abandons the Premises during
the Term.
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22. RIGHTS AND REMEDIES.
22.1. LANDLORD'S CURE RIGHTS UPON DEFAULT OF TENANT. If Tenant
defaults in the performance of any of its obligations under this Lease, and
fails to cure such default on a timely basis (pursuant to SECTION 21.2),
Landlord, without thereby waiving such default, may (but shall not be obligated
to) perform the same for the account, and at the expense of, Tenant.
22.2. LANDLORD'S REMEDIES. In the event of any default by
Tenant under this Lease, Landlord, at its option, and after any applicable
notice and cure period (as required pursuant to SECTION 21.2), but without
additional notice or demand from Landlord, if any, as provided in SECTION 21.2
has expired, may, in addition to all other rights and remedies provided in this
Lease, or otherwise at law or in equity: (a) terminate this Lease and Tenant's
right of possession of the Premises; or (b) terminate Tenant's right of
possession of the Premises without terminating this Lease; provided, however,
that Landlord may, whether Landlord elects to proceed under Subsections (a) or
(b) above, relet the Premises, or any part thereof for the account of Tenant,
for such rent and term and upon such terms and conditions as are acceptable to
Landlord. In addition, for purposes of any reletting, Landlord is authorized to
decorate, repair, alter and improve the Premises to the extent deemed necessary
by Landlord, in its sole discretion. In the event of the termination of this
Lease by Landlord pursuant to (a) above, Landlord shall be entitled to recover
from Tenant (i) all damages and other sums that Landlord is entitled to recover
under any provision of this Lease or at law or in equity, including, but not
limited to, all fixed dollar amounts of Base Rent and Additional Rent accrued
and unpaid for the period up to and including such termination date; (ii) all
other additional sums payable by Tenant, or for which Tenant is liable, or in
respect of which Tenant has agreed to indemnify Landlord, under any of the
provisions of this Lease, that may be then owing and unpaid; (iii) all costs and
expenses (including, without limitation, court costs and attorneys' reasonable
fees) incurred by Landlord in the enforcement of its rights and remedies under
this Lease; and (iv) any damages provable by Landlord as a matter of law
including, without limitation, an amount equal to the positive difference, if
any, between (x) the discounted present value (at 6% per annum) of the Base Rent
provided to be paid for the remainder of the Term (measured from the effective
termination date of this Lease) and (y) the fair market rental value of the
Leased Premises (determined at the date of termination of this Lease) after
deduction (from such fair market rental value) of the projected costs and
expenses of reletting the Premises (including the anticipated costs of repairs,
alterations, improvements, additions, legal fees and brokerage commissions) as
reasonably estimated by Landlord. If Landlord elects to pursue its rights and
remedies under Subsection (b) above, and the Premises are relet and a sufficient
sum is not realized therefrom, then to satisfy the payment, when due, of Base
Rent and Additional Rent reserved under the Lease for any monthly period (after
payment of all Landlord's reasonable expenses of reletting), Tenant shall, in
Landlord's sole judgment, either (i) pay any such deficiency monthly or (ii) pay
such deficiency on an accelerated basis, which accelerated deficiency shall be
discounted at a rate of 6% per annum. If Landlord elects to pursue its rights
and remedies under Subsection (b) above, and Landlord fails to relet the
Premises, then Tenant shall pay to Landlord the sum of (x) the projected costs
of Landlord's expenses of reletting (including the anticipated costs of repairs,
alterations, improvements, additions, legal fees and brokerage commissions) as
reasonably estimated by Landlord and (y) the accelerated amount of Base Rent and
Additional Rent due under the Lease for the balance of the Term, discounted to
present value at a rate of 6% per annum. Tenant agrees that Landlord may file
suit to recover any sums due to Landlord hereunder from time to time and that
such suit or recovery of any amount due Landlord hereunder shall not be any
defense to any subsequent action brought for any amount not theretofore reduced
to judgment in favor of Landlord. If Landlord elects to pursue its rights and
remedies under Subsection (b), then Landlord shall at any time have the further
right and remedy to rescind such election and pursue its rights and remedies
under Subsection (a). In the event Landlord elects, pursuant to clause (b) of
this SECTION 22.2, to terminate Tenant's right of possession only, without
terminating this Lease, Landlord may, at Landlord's option, enter into the
Premises, remove Tenant's Property, Tenant's signs and other evidences of
tenancy, and take and hold possession thereof, as provided in SECTION 20 hereof;
provided, however, that such entry and possession shall not terminate this Lease
or release Tenant, in whole or in part, from Tenant's obligation to pay the Base
Rent and Additional Rent reserved hereunder for the full Term, or from any other
obligation of Tenant under this Lease. Any and all property that may be removed
from the Premises by Landlord pursuant to the authority of the Lease or of law,
to which Tenant is or may be entitled, may be handled, removed or stored by
Landlord at the sole risk, cost and expense of Tenant, and in no event or
circumstance shall Landlord be responsible for the value, preservation or
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safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken from storage by Tenant within
30 days after the end of the Term, however terminated, shall be conclusively
presumed to have been conveyed by Tenant to Landlord under this Lease as in a
xxxx of sale, without further payment or credit by Landlord to Tenant.
22.3. ADDITIONAL RIGHTS OF LANDLORD. Any and all costs,
expenses and disbursements, of any kind or nature, incurred by Landlord or Agent
in connection with the enforcement of any and all of the terms and provisions of
this Lease, including attorneys' reasonable fees (through all appellate
proceedings), shall be due and payable (as Additional Rent) upon Landlord's
submission of an invoice therefor. All sums advanced by Landlord or Agent on
account of Tenant under this Section, or pursuant to any other provision of this
Lease, and all Base Rent and Additional Rent, if delinquent or not paid by
Tenant and received by Landlord when due hereunder, shall bear interest at the
rate of 5% per annum above the "prime" or "reference" or "base" rate (on a per
annum basis) of interest publicly announced as such, from time to time, by the
Bank One, or its successor ("DEFAULT INTEREST"), from the due date thereof until
paid, and such interest shall be and constitute Additional Rent and be due and
payable upon Landlord's or Agent's submission of an invoice therefor. The
various rights, remedies and elections of Landlord reserved, expressed or
contained herein are cumulative and no one of them shall be deemed to be
exclusive of the others or of such other rights, remedies, options or elections
as are now or may hereafter be conferred upon Landlord by law.
22.4. EVENT OF BANKRUPTCY. In addition to, and in no way
limiting the other remedies set forth herein, Landlord and Tenant agree that if
Tenant ever becomes the subject of a voluntary or involuntary bankruptcy,
reorganization, composition, or other similar type proceeding under the federal
bankruptcy laws, as now enacted or hereinafter amended, then: (a) "adequate
assurance of future performance" by Tenant pursuant to Bankruptcy Code Section
365 will include (but not be limited to) payment of an additional/new security
deposit in the amount of three times the then current Base Rent payable
hereunder; (b) any person or entity to which this Lease is assigned, pursuant to
the provisions of the Bankruptcy Code, shall be deemed, without further act or
deed, to have assumed all of the obligations of Tenant arising under this Lease
on and after the effective date of such assignment, and any such assignee shall,
upon demand by Landlord, execute and deliver to Landlord an instrument
confirming such assumption of liability; (c) notwithstanding anything in this
Lease to the contrary, all amounts payable by Tenant to or on behalf of Landlord
under this Lease, whether or not expressly denominated as "Rent", shall
constitute "rent" for the purposes of Section 502(b)(6) of the Bankruptcy Code;
and (d) if this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other considerations
payable or otherwise to be delivered to Landlord or Agent (including Base Rent,
Additional Rent and other amounts hereunder), shall be and remain the exclusive
property of Landlord and shall not constitute property of Tenant or of the
bankruptcy estate of Tenant. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord or Agent shall be held in trust by Tenant or Tenant's
bankruptcy estate for the benefit of Landlord and shall be promptly paid to or
turned over to Landlord.
23. BROKER. Tenant covenants, warrants and represents that the broker
set forth in SECTION 1.9(A) was the only broker to represent Tenant in the
negotiation of this Lease ("TENANT'S BROKER"). Landlord covenants, warrants and
represents that the broker set forth in SECTION 1.9(B) was the only broker to
represent Landlord in the negotiation of this Lease ("LANDLORD'S BROKER").
Landlord shall be solely responsible for paying the commission of Landlord's
Broker. Each party agrees to and hereby does defend, indemnify and hold the
other harmless against and from any brokerage commissions or finder's fees or
claims therefor by a party claiming to have dealt with the indemnifying party
and all costs, expenses and liabilities in connection therewith, including,
without limitation, reasonable attorneys' fees and expenses, for any breach of
the foregoing. The foregoing indemnification shall survive the termination or
expiration of this Lease.
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24. MISCELLANEOUS.
24.1. MERGER. All prior understandings and agreements between
the parties are merged in this Lease, which alone fully and completely expresses
the agreement of the parties. No agreement shall be effective to modify this
Lease, in whole or in part, unless such agreement is in writing, and is signed
by the party against whom enforcement of said change or modification is sought.
24.2. NOTICES. Any notice required to be given by either party
pursuant to this Lease, shall be in writing and shall be deemed to have been
properly given, rendered or made only if personally delivered, or if sent by
Federal Express or other comparable commercial overnight delivery service,
addressed to the other party at the addresses set forth below (or to such other
address as Landlord or Tenant may designate to each other from time to time by
written notice), and shall be deemed to have been given, rendered or made on the
day so delivered or on the first business day after having been deposited with
the courier service:
If to Landlord: First Industrial, L.P.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Senior Vice President - Portfolio Management
With a copy to: First Industrial Realty Trust, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx X
Xxxx Xxxxxxx, XX 00000
Attn: Regional Manager
With a copy to: Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx-Xxxxx
If to Tenant: Vascular Solutions, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxx Xxxxxxxxxxx
24.3. NON-WAIVER. The failure of either party to insist, in
any one or more instances, upon the strict performance of any one or more of the
obligations of this Lease, or to exercise any election herein contained, shall
not be construed as a waiver or relinquishment for the future of the performance
of such one or more obligations of this Lease or of the right to exercise such
election, but the Lease shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission. The receipt and acceptance by
Landlord or Agent of Base Rent or Additional Rent with knowledge of breach by
Tenant of any obligation of this Lease shall not be deemed a waiver of such
breach.
24.4. LEGAL COSTS. Any party in breach or default under this
Lease (the "DEFAULTING PARTY") shall reimburse the other party (the
"NONDEFAULTING PARTY") upon demand for any legal fees and court (or other
administrative proceeding) costs or expenses that the Nondefaulting Party incurs
in connection with the breach or default, regardless whether suit is commenced
or judgment entered. Such costs shall include legal fees and costs incurred for
the negotiation of a settlement, enforcement of rights or otherwise.
Furthermore, in the event of litigation, the court in such action shall award to
the party in whose favor a judgment is entered a reasonable sum as attorneys'
fees and costs, which sum shall be paid by the losing party. Tenant shall pay
Landlord's attorneys' reasonable fees incurred in connection with Tenant's
request for Landlord's consent under provisions of this Lease governing
assignment and subletting, or in connection with any other act which Tenant
proposes to do and which requires Landlord's consent.
24.5. PARTIES BOUND. Except as otherwise expressly provided
for in this Lease, this Lease shall be binding upon, and inure to the benefit
of, the successors and assignees of the parties hereto. Tenant hereby releases
Landlord named herein from any obligations of Landlord for any period subsequent
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to the conveyance and transfer of Landlord's ownership interest in the Property.
In the event of such conveyance and transfer, Landlord's obligations shall
thereafter be binding upon each transferee (whether Successor Landlord or
otherwise). No obligation of Landlord shall arise under this Lease until the
instrument is signed by, and delivered to, both Landlord and Tenant.
24.6. RECORDATION OF LEASE. Tenant shall not record or file
this Lease (or any memorandum hereof) in the public records of any county or
state.
24.7. SURVIVAL OF OBLIGATIONS. Upon the expiration or other
termination of this Lease, neither party shall have any further obligation nor
liability to the other except as otherwise expressly provided in this Lease and
except for such obligations as, by their nature or under the circumstances, can
only be, or by the provisions of this Lease, may be performed after such
expiration or other termination.
24.8. GOVERNING LAW; CONSTRUCTION. This Lease shall be
governed by and construed in accordance with the laws of the state in which the
Property is located. If any provision of this Lease shall be invalid or
unenforceable, the remainder of this Lease shall not be affected but shall be
enforced to the extent permitted by law. The captions, headings and titles in
this Lease are solely for convenience of reference and shall not affect its
interpretation. This Lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this Lease to be
drafted. Each covenant, agreement, obligation, or other provision of this Lease
to be performed by Tenant, shall be construed as a separate and independent
covenant of Tenant, not dependent on any other provision of this Lease. All
terms and words used in this Lease, regardless of the number or gender in which
they are used, shall be deemed to include any other number and any other gender
as the context may require. This Lease may be executed in counterpart and, when
all counterpart documents are executed, the counterparts shall constitute a
single binding instrument.
24.9. TIME. Time is of the essence for this Lease. If the time
for performance hereunder falls on a Saturday, Sunday or a day that is
recognized as a holiday in the state in which the Property is located, then such
time shall be deemed extended to the next day that is not a Saturday, Sunday or
holiday in said state.
24.10. AUTHORITY OF TENANT. If Tenant is a corporation,
partnership, limited liability company, association or any other entity, it
shall deliver to Landlord, concurrently with the delivery to Landlord of an
executed Lease, certified resolutions of Tenant's directors or other governing
person or body (i) authorizing execution and delivery of this Lease and the
performance by Tenant of its obligations hereunder and (ii) certifying the
authority of the party executing the Lease as having been duly authorized to do
so.
24.11. WAIVER OF TRIAL BY JURY. THE LANDLORD AND THE TENANT,
TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY
IN ANY ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO
THIS LEASE, THE PREMISES, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE
PREMISES.
24.12. RELOCATION. Landlord shall have the right to relocate
Tenant from the Premises to comparable (as to size, configuration and
improvements) alternative space in the Property ("REPLACEMENT PREMISES") upon 90
days' prior written notice to Tenant. In the event of such a relocation,
Landlord shall make reasonable, good faith efforts to coordinate with Tenant a
mutually acceptable plan (as to scope and timing) for such relocation, and
Landlord shall be responsible for the third party costs incurred to accomplish
the physical relocation of Tenant (e.g. movers and telephone company charges).
If the Replacement Premises are larger in size than the original Premises, there
shall be no adjustment in Tenant's Base Rent; however, Tenant's Proportionate
Share shall be appropriately modified, thereby resulting in a potential increase
in Tenant's Additional Rent. If, however, the Replacement Premises is a smaller
size (as to rentable square feet) than the original Premises, Landlord shall
appropriately adjust both Tenant's Base Rent and its Proportionate Share.
24.13. FINANCIAL INFORMATION. From time to time during the
Term, Tenant shall deliver to Landlord information and documentation describing
and concerning Tenant's financial condition, and in form and substance
reasonably acceptable to Landlord, within ten (10) days following Landlord's
written request therefor.
20
24.14. CONFIDENTIAL INFORMATION. Tenant agrees to maintain in
strict confidence the economic terms of this Lease and any or all other
materials, data and information delivered to or received by any or all of Tenant
and Tenants' Parties either prior to or during the Term in connection with the
negotiation and execution hereof. The provisions of this SECTION 24.14 shall
survive the termination of this Lease.
24.15. SUBMISSION OF LEASE. Submission of this Lease to Tenant
for signature does not constitute a reservation of space or an option to lease.
This Lease is not effective until execution by and delivery to both Landlord and
Tenant.
24.16. JOINT AND SEVERAL LIABILITY. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant hereunder.
24.17. RIDERS. All Riders and Exhibits attached hereto and
executed (or initialed) both by Landlord and Tenant shall be deemed to be a part
hereof and hereby incorporated herein.
24.18. OTHER PROVISIONS. The following are made a part hereof
with the same force and effect as if specifically set forth herein.
1. Premises and Property - Exhibit A
2. Floor Plan - Exhibit A-1
3. Legal Description - Exhibit B
4. Landlord's Repair and Improvements - Exhibit C
5. Building Rules and Regulations - Exhibit D
6. Rider to Industrial Building Lease - Exhibit E
7. Tenant Sign Criteria - Exhibit F
8. Tenant Operations Inquiry - Exhibit G
9. Plan
[Signature Page to Follow]
21
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
LANDLORD:
FIRST INDUSTRIAL, L.P., a Delaware limited
partnership
By: First Industrial Realty Trust, Inc., a
Maryland corporation, its general partner
By:
------------------------------------
Name:
------------------------------------
Its:
------------------------------------
TENANT:
Vascular Solutions Inc.,
------------------------------------------
a Minnesota, corporation
------------------------------------------
By:
------------------------------------
Name:
------------------------------------
Its:
------------------------------------
22
EXHIBIT A
PROPERTY
(NORTHGATE I/VASCULAR SOLUTIONS, INC.)
Premises: Approximately 32,937 rentable square feet in the building
commonly known as Northgate I ("the building"). (Exhibit A-1).
Property: See legal description attached hereto. (Exhibit B).
Initials:
Landlord:
------------
Tenant:
--------------
23
LEASE EXHIBIT A-1
(NORTHGATE I/VASCULAR SOLUTIONS, INC.)
Initials:
Landlord:
------------
Tenant:
--------------
24
LEASE EXHIBIT B
LEGAL DESCRIPTION
(NORTHGATE I/VASCULAR SOLUTIONS, INC.)
The land referred to is situated in the State of Minnesota, County of Hennepin
and is described as:
Xxx 0, Xxxxx 0, Xxxxxxxxx Xxxxx Xxxx, according to the recorded plat thereof.
Initials:
Landlord:
------------
Tenant:
--------------
25
LEASE EXHIBIT C
LANDLORD'S REPAIRS AND IMPROVEMENTS
(NORTHGATE I/VASCULAR SOLUTIONS, INC.)
26
BROOM CLEAN CONDITION AND REPAIR REQUIREMENTS
UPON LEASE TERMINATION
(NORTHGATE I/VASCULAR SOLUTIONS, INC.)
* All walls must be clean and free of holes.
* Overhead door must be free of any broken panels, cracked lumber or dented
panels. The overhead door springs, rollers, tracks, motorized door
operator, and all other items pertaining to the overhead door must also be
in good working condition.
* HVAC system must be in good working order. Filters must be changed, and all
thermostats must be in working order. Tenant must supply Landlord with
maintenance records.
* All floors (warehouse and office) must be clean and free of excessive dust,
dirt, grease, oil and stains.
* Drop grid ceiling must be free of excessive dust from lack of changing
filters. (No ceiling tiles may be missing or damaged.)
* All trash must be removed from both inside and outside of the Building.
* All lightbulbs and ballasts must be working.
* All signs in front of Building and on glass entry door and rear door must
be removed.
* Hot water heater must work.
* All plumbing fixtures, equipment and drains must be clean and in working
order.
* Windows must be clean.
* All mechanical and electrical systems must be in good working condition.
Initials:
Landlord:
------------
Tenant:
--------------
27
LEASE EXHIBIT D
BUILDING RULES AND REGULATIONS
(NORTHGATE I/VASCULAR SOLUTIONS, INC.)
1. Any sign, lettering, picture, notice or advertisement installed on or in any
part of the Premises and visible from the exterior or interior common area of
the Building, or visible from the exterior of the Premises, shall be installed
at Tenant's sole cost and expense, and in such manner, character and style as
Landlord may approve in writing. Anything herein to the contrary
notwithstanding, approval as to signs shall be subject to Landlord's approval,
which may be withheld, in Landlord's sole discretion. In the event of a
violation of the foregoing by Tenant, Landlord may remove the same without any
liability and may charge the expense incurred by such removal to Tenant.
2. No awning or other projection shall be attached to the outside walls of the
Building. No curtains, blinds, shades or screens visible from the exterior
Premises shall be attached to or hung in, or used in connection with any such
curtains, blinds, shades, screens or other fixtures must be of a quality, type,
design and color, and attached in the manner approved by Landlord.
3. Tenant, its employees, customers, invitees and guests shall not obstruct
sidewalks, entrances, passages, corridors, vestibules, halls or stairways in and
about the Building which are used in common with other Tenants and their
employees, customers, guests and invitees, and which are not a part of the
Premises of Tenant. Tenant shall not place objects against glass partitions or
doors or windows that would be unsightly from the Building corridors or from the
exterior of the Building and will promptly remove any such objects upon notice
from Landlord.
4. Tenant shall not make excessive noises, cause disturbances or vibrations or
use or operate any electrical or mechanical devices that emit excessive sound or
other waves or disturbances or create obnoxious odors, any of which may be
offensive to the other tenants and occupants of the Building, or that would
interfere with the operation of any device equipment, radio, television
broadcasting or reception from or within the Building or elsewhere and shall not
place or install any projections, antennas, aerials or similar devices inside or
outside of the Premises or on the Building, except in accordance with an Antenna
License Agreement between Landlord and Tenant.
5. Tenant shall not waste electricity, water or air conditioning furnished by
Landlord, if any, and shall cooperate fully with Landlord to ensure the most
effective operation of the Building's heating and air conditioning systems.
6. 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 Premises closed and secured after normal business hours.
7. In no event shall Tenant bring into the Building flammables, such as
gasoline, kerosene, naphtha and benzene, or explosives or any other article of
intrinsically dangerous nature. If, by reason of the failure of Tenant to comply
with the provisions of this subparagraph, any insurance premium for all or any
part of the Building shall at any time be increased, Tenant shall make immediate
payment of the whole of the increased insurance premium, without waiver of any
of Landlord's other rights at law or in equity for Tenant's breach of this
Lease.
8. Tenant shall comply with all applicable federal, state and municipal laws,
ordinances and regulations, and building rules and shall not directly or
indirectly make any use of the Premises which may be prohibited by any of the
foregoing or which may be dangerous to persons or property or may increase the
cost of insurance or require additional insurance coverage.
9. Landlord shall have the right to prohibit any advertising by Tenant which in
Landlord's reasonable opinion tends to impair the reputation of the Building or
its desirability as a building for office, office/showroom and office/warehouse
use, and upon written notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
10. The Premises shall not be used for cooking (as opposed to heating of food),
lodging, sleeping or for any immoral or illegal purpose.
28
11. Tenant and Tenant's employees, agents, visitors and licensees shall observe
faithfully and comply strictly with the foregoing rules and regulations and such
other and further appropriate rules and regulations as Landlord or Landlord's
agent may from time to time adopt. Reasonable notice of any additional rules and
regulations shall be given in such manner as Landlord may reasonably elect.
12. Unless expressly permitted by the Landlord, no additional locks or similar
devices shall be attached to any door or window and no keys other than those
provided by Landlord shall be made for any door. If Tenant desires more than two
keys for one lock, Landlord may provide the same upon payment by Tenant. Upon
termination of this Lease or of Tenant's possession, Tenant shall surrender all
keys of the Premises and shall explain to Landlord all combination locks on
safes, cabinets and vaults.
13. Any carpeting cemented down shall be installed with a reasonable adhesive.
In the event of a violation of the foregoing by Tenant, Landlord may charge the
expense incurred by such removal to Tenant.
14. The restrooms, drinking fountains and other plumbing fixtures shall not be
used for any purpose other than those for which they are constructed, and no
sweepings, rubbish, rags, coffee grounds or other substances shall be thrown
therein. All damages resulting from any misuse of the fixtures shall be borne by
Tenant who, or whose employees, agents, visitors or licensees have caused the
same. No person shall waste water by interfering or tampering with the faucets
or otherwise.
15. No electric or other wires for any purpose shall be brought into the
Premises without Landlord's written permission specifying the manner in which it
may be done. Tenant shall not overload any utilities serving the Premises.
16. No dog, excluding guide dogs, or other animal shall be allowed in the
Building.
17. All loading, unloading, receiving or delivery of goods, supplies or disposal
of garbage or refuse shall be made only through entryways provided for such
purposes. Tenant shall be responsible for any damage to the Building or the
property of its employees or others and injuries sustained by any person
whomsoever resulting from the use or moving of such articles in or out of the
Premises, and shall make all repairs and improvements required by Landlord or
governmental authorities in connection with the use or moving of such articles.
18. All safes, equipment or other heavy articles shall be carried in or out of
the Premises only in such manner as shall be prescribed in writing by Landlord,
and Landlord shall in all cases have the right to specify the proper position of
any such safe, equipment or other heavy article, which shall only be used by
Tenant in a manner which will not interfere with or cause damage to the Premises
or Building in which they are located, or to the other tenants or occupants of
the Building. Tenant shall be responsible for any damage to the building or the
property of its employees or others and injuries sustained by any person
whomsoever resulting from the use or moving of such articles in or out of the
Premises, and shall make all repairs and improvements required by Landlord or
governmental authorities in connection with the use or moving of such articles.
19. Canvassing, soliciting, and peddling in or about the Building is prohibited
and each Tenant shall cooperate to prevent the same.
20. Wherever in these Building Rules and Regulations the word "Tenant" occurs it
is understood and agreed that it shall mean Tenant's associates, employees,
agents, clerks, invitees, and visitors. Wherever the word "Landlord" occurs, it
is understood and agreed that it shall mean Landlord's assigns, agents, clerks,
and visitors.
21. Tenant, it employees, customers, invitees and guests shall, when using the
parking facilities in and around the Building, observe and obey all signs
regarding fire lanes and no parking zones, and when parking, always park between
the designated lines. Landlord reserves the right to tow away, at the expense of
the owner, any vehicle that is improperly parked or parked in a no parking zone.
All vehicles shall be parked at the sole risk of the owner, and Landlord assumes
no responsibility for any damage to or loss of vehicles. No vehicles shall be
parked overnight.
29
22. In case of invasion, mob, riot, public excitement, or other commotion,
Landlord reserves the right to prevent access to the Building during the
continuance of the same by closing the doors or otherwise, for the safety of
Tenant or the protection of the Building and the property therein. Landlord
shall in no case be liable for damage for any error or other action taken with
regard to the admission to or exclusion for the Building of any person.
23. All entrance doors to the Premises shall be locked when the Premises are not
in use. All common corridor doors, if any, shall also be closed during times
when the air conditioning equipment in the Building is operating so as not to
dissipate the effectiveness of the system or place an overload thereon.
24. Landlord reserves the right at any time and from time to time to rescind,
alter or waive, in whole or in part, any of these Rules and Regulations when it
is deemed necessary, desirable, or proper, in Landlord's judgment, for its best
interest or for the best interest of the tenants of the Building, provided the
same are uniformly enforced.
25. No tenant, employees, guests or visitors will be permitted to smoke in the
front of the building. Smoking will only be permitted at the back of the
Building so long as it does not interfere with anyone else.
26. Landlord shall have access at all times to the Riser Room within Tenant's
Premises.
Initials:
Landlord:
------------
Tenant:
--------------
30
LEASE EXHIBIT E
RIDER TO INDUSTRIAL BUILDING LEASE
(NORTHGATE I/VASCULAR SOLUTIONS, INC.)
A. LOCK BOX: Landlord may from time to time designate a lock box collection
agent for the collection of rents or other charges due Landlord. In such event,
the payment made by Tenant to the lock box shall be deemed to have been made by
Tenant as of the date of receipt by the lock box collection agent of such
payment (or the date of collection of any such sum if payment is made in the
form of a negotiable instrument thereafter dishonored upon presentment);
however, for the purpose of this Lease, no such payment or collection shall be
deemed a waiver by Landlord of any breach by Tenant of any term, covenant or
condition of this Lease nor a waiver of any of Landlord's rights or remedies and
any payments of amounts other than that deemed due and proper by Landlord shall
not prejudice Landlord in any manner nor constitute a waiver and Landlord shall
hereby be authorized to retain the proceeds of any payments by Tenant, whether
constructively endorsed or otherwise, and apply same to the amounts due and
payable from Tenant under this Lease without waiver.
B. PRIOR PROPOSALS: All prior proposals in respect to this Lease are hereby
terminated.
C. NOTIFICATION TO TENANT: Landlord hereby notifies Tenant that the person(s)
authorized to manage the Premises is First Industrial Realty Trust, Inc., which
corporation has been appointed to act as the agent in leasing, management and
operation of the Building for the owner of the Building which is First
Industrial, L.P., First Industrial Realty Trust, Inc., with its office at 0000
Xxxxxx Xxxxxxxx Xxxxx, Xxxxx X, Xxxx Xxxxxxx, XX 00000, is authorized to accept
service of process and receive and give receipts for notices and demands on
behalf of said owner.
D. SEPARATE METERING OF UTILITIES: All electricity and gas used in the Premises
shall be separately metered and paid for directly by Tenant upon receipt of
invoice. Further, the cost of all electricity and gas used in all areas of the
Building rented to tenants shall not be included in "Operating Expenses";
provided, however, the cost of all other electricity and gas consumed in the
Building, including, but not limited to, electricity for building systems,
building equipment and lighting for Common Areas, shall be included in
"Operating Expenses". Tenant agrees to refrain from overloading the electrical
system designed for the Premises. All electric lighting bulbs, tubes, ballasts
and starters within the Premises shall be replaced by Tenant at the expense of
Tenant.
In the event that a utility to be separately metered is actually metered over an
area other than only the Premises, Landlord shall make an appropriate equitable
adjustment by prorating each such utility over the area actually served on a per
square foot basis and Tenant shall pay its share as equitably and reasonably
determined by Landlord. Should any such allocation be or become unfair or
unreasonable to Landlord or Tenant by reason of or part of the Building which is
served by said utility meter being or becoming vacant or by reason or
disproportionate use by the applicable tenants or the fact that part of the
Building which is served by such meter is being utilized at other than normal
business hours or otherwise, Landlord may reasonably apportion such utility
charges to Tenant and to other areas of the Building served through such meter,
which apportionment shall then become the basis for charges to be paid by
Tenant.
E. RENT ABATEMENT: Landlord shall xxxxx the initial four (4) months of Base Rent
(April 1, 2003 - July 31, 2003).
F. RELOCATION ALLOWANCE: Landlord shall pay Tenant, upon the commencement date
of the Lease, Sixty-Eight Thousand and 00/100 Dollars ($68,000.00) as
reimbursement for Tenant's moving/relocation expenses.
G. OPTION TO EXTEND: Tenant shall have the right, to be exercised as hereinafter
provided, to extend the term of this Lease for One (1) period of Three (3)
years, on the following terms and conditions and subject to the limitations
hereinafter set forth, such Three (3) year renewal period being in this Lease
sometimes herein referred to as "Renewal Terms."
31
a) That at the respective time hereinafter set forth for the exercise of
each renewal option, this Lease shall be in full force and effect and
Tenant shall not be in default in the performance of any of the terms,
covenants and conditions herein contained in respect to a matter as to
which notice of default has been given hereunder which has not been
remedied within the time limited in this Lease, but Landlord shall
have the right at its sole discretion to waive the non-default
conditions herein.
b) That such Renewal Term, shall be upon the same terms, covenants and
conditions as in this Lease provided; however, the Base Rent for such
Renewal Term shall be at the then current market Base Rental rate for
new leases for similar office/production/warehouse space in the market
or building; however, the Base Rent for such applicable Renewal Term
shall in no event be less than the Base Rental rate (exclusive of
temporary abatements) payable by Tenant immediately prior to
commencement of the applicable Renewal Term. Upon determination of the
Base Rent for the applicable Renewal Term, the amount thereof shall be
evidenced by an amendment of this Lease executed by Landlord and
Tenant.
c) Tenant shall exercise its right to extend the term of this Lease for
the aforesaid Renewal Term by notifying Landlord, in writing, of its
election to exercise the right to renew and extend the term of this
Lease at least nine (9) months prior to expiration of the applicable
Renewal Term.
H. EARLY OCCUPANCY: Tenant shall have the right to enter the Premises on
February 1, 2003, for the purposes of setting up the Cleanrooms, installing
furniture, equipment, telephone and computer cabling; provided, however, that
tenant is subject to all of the building codes, terms, conditions and covenants
of this lease, including specifically Section 10 ("Insurance"), and paying
Tenant's utilities Section 14 ("Utilities"), except for the obligations of
Section 2 ("Rent") and Section 3 ("Operating Expenses"), as to the payment of
Base Rent and Additional Rent; provided, however, Tenant's entering the Premises
shall not interfere with any remaining construction work.
I. PARKING RIGHTS OF TENANT: Tenant shall have the right in common with other
tenants to have the use for its employees and invitees of the common parking
facilities (exclusive of "handicapped" stalls which shall be open for all those
legally permitted to use same) at the Building, such use to be in common with
the other tenants in the Building. Landlord reserves the right to designate
areas of the appurtenant common parking facilities where Tenant, its agents,
employees and invitees shall park and may exclude tenant, its agents, employees
and invitees from parking in other areas as designated by Landlord; provided,
however, Landlord shall not be liable to Tenant for the failure of any Tenant,
its invitees, employees, agents and customers to abide by Landlord's
designations or restrictions. Landlord shall have the right to designate
seventy-eight (78) parking stalls in the parking area for the exclusive use of
Tenant and Tenant shall thereupon have the right to use the common parking
spaces as the parking spaces to be used by Tenant, its agent and employees.
Tenant, its agents, employees and invitees shall not use more (in absolute
numbers) of the common parking facilities at the Building than Tenant could use
if Landlord made the designations permitted herein. Notwithstanding anything
contained in this Lease to the contrary, all costs and expenses of such special
parking control, signs in connection therewith, and costs of any enforcement
shall be an Operating Expense pursuant to the provisions of Section 3 hereof.
Tenant shall pay reasonable costs and expenses in connection with signs or
traffic control devices for Tenant's exclusively designated parking area, if
any.
J. SECURITY/CABLING REIMBURSEMENT: Landlord shall pay Tenant, upon the
commencement date of the Lease, Twenty-Three Thousand and 00/100 Dollars
($23,000.00) as reimbursement for security and cabling expenses.
Initials:
Landlord:
------------
Tenant:
--------------
32
LEASE EXHIBIT F
TENANT SIGN CRITERIA
(NORTHGATE I/VASCULAR SOLUTIONS, INC.)
NORTHGATE ONE
1. FRONT OF BUILDING - EXTERIOR SIGN
A) Main Tenant Identification Signs - Exterior
1) All front exterior signs to be limited to area above the glass line.
With individual entrances, sign letters shall be centered vertically
and horizontally over tenant entry doorway/sidelight, or centered
above the tenant's space if the door is off center. Where tenants
share an entrance the letters are to be installed on the appropriate
side of entrance.
2) Building standard sign letters are 2" deep reverse channel aluminum
letters. Face and channels to have paint finish and are to be
Burgundy.
3) Letter height may not exceed 18" tall. Overall height for two lines
of text may not exceed 30". All sign letter layouts must be approved
by the Landlord. The total width of the letter area may not exceed
50% of the front facade of that portion of the building occupied by
the tenant.
4) The building standard letter style is Helvetica Medium. Tenant may
select from other type styles only with approval of the landlord.
Individual letters may be upper or lower case. Logos are acceptable
in the same letter color and finish.
5) Method of attaching sign letters to building to be standard
non-corrosive studs spaced to correspond with horizontal grout lines
spaced 4" on center. Silicone adhesive to be used to secure studs
and fill holes.
B) Front doors - Exterior/Interior
1) Exterior Front Doors
a) Suite numbers are required on the main glass entrance door. Text
to be 4" tall premium adhesive vinyl film, white, Helvetica
medium style, applied first surface.
b) For individual entranced, numbers shall be centered on the door
glass. For shared entrance doors, numbers shall be centered on
the appropriate half and 4" below the top of the glass.
c) Suite numbers are assigned by the Owner.
2) Interior Doors
a) The name of the business and suite number shall appear on the
interior vestibule door in all upper case letters; 4" address
and 2 1/2" name. Graphics shall be, premium adhesive vinyl film,
white, Helvetica Medium style, applied first surface.
2. TRUCK COURT DOORS - EXTERIOR / INTERIOR SIGNS
A) Exterior Service Door: Tenant provides graphics applied directly to
door. All upper case 4" address, 2 1/2" name. Graphics shall be, premium
adhesive vinyl film, white, Helvetica Medium style, applied first
surface. The first tenant shall place its name and numbers at top of
door. A maximum of two tenants per door.
B) Interior vestibule service door, if applicable: Graphics identical with
front interior door.
33
3. PROHIBITED SIGNS
A) Signs on glass visible from exterior except as identified in this
criteria.
B) Root top signs.
C) Freestanding signs other than the project identification sign and
appropriately authorized real estate sign(s).
D) The use of electrical components that flash, illuminate, revolve,
rotate, or make noise.
E) Auxiliary signage, including banners.
F) Parking space signs without approval of the owner 3 sq. ft. maximum.
G) Signs on vehicles when parked other than in a parking stall.
4. APPROVAL PROCESS
A) Three copies of a sign layout drawing must be submitted by the tenant to
the building owner. Approval must be granted in writing by the building
owner prior to sign installation.
B) Tenant is responsible for all sign permits required by the City.
5. MISCELLANEOUS
A) Tenant is responsible for cost of sign removal upon vacating space.
Initials:
Landlord:
------------
Tenant:
--------------
34
LEASE EXHIBIT G
TENANT OPERATIONS INQUIRY
(NORTHGATE I/VASCULAR SOLUTIONS, INC.)
Tenant Name:___________________________________
Tenant SIC Code/Description:___________________
Property Address:______________________________
Property Number/Region:________________________
1. Name of Company (if different from above) _____________________________
2. Address (local): ______________________________________________________
Phone (local)_________________________
3. Address (corporate): __________________________________________________
Phone (corporate)_____________________
4. What is your business (brief description): ____________________________
_______________________________________________________________________
_______________________________________________________________________
5. What operations will you maintain at the proposed facility? ___________
_______________________________________________________________________
_______________________________________________________________________
6. Has your business received any Notices of Violation of environmental
laws from municipal or state agencies regarding operations at your
current facility? If so, explain: _____________________________________
_______________________________________________________________________
_______________________________________________________________________
7. Describe any assembly, manufacturing, machining, painting, printing or
mechanical repair activities that will be part of your business
operations at the proposed facility: __________________________________
_______________________________________________________________________
_______________________________________________________________________
8. Will your employees operate electrical equipment that contains PCB's?
YES NO
9. Will your business operate one or more Underground Storage Tanks
(UST's) at the proposed facility? YES NO
10. Will your business operate one or more Aboveground Storage Tanks
(AST's) at the proposed facility? YES NO
11. TENANT CHEMICAL INVENTORY AT PROPOSED FACILITY - (make additional
copies, if required). You may exclude small quantities of toner and
other office supplies)
35
-----------------------------------------------------------------------------------------------------------------------
Chemicals What will be the What will be the What will be the annual How will the chemicals
(by name where average quantity on maximum quantity on quantity used? be stored?
available) the proposed premises? the proposed premises?
-----------------------------------------------------------------------------------------------------------------------
----------------- -------------------- ---------------------- --------------------- ---------------------
----------------- -------------------- ---------------------- --------------------- ---------------------
----------------- -------------------- ---------------------- --------------------- ---------------------
----------------- -------------------- ---------------------- --------------------- ---------------------
----------------- -------------------- ---------------------- --------------------- ---------------------
----------------- -------------------- ---------------------- --------------------- ---------------------
----------------- -------------------- ---------------------- --------------------- ---------------------
----------------- -------------------- ---------------------- --------------------- ---------------------
----------------- -------------------- ---------------------- --------------------- ---------------------
-----------------------------------------------------------------------------------------------------------------------
Storage Methods (use all that apply): A) 55 gallon drum; B) 20 gallon drum;
C)2-5 gallon pallet/container; D) bulk dry packages; E) cartoned small
containers (less than 2 gallons or 10 pounds) on pallets; F) on floor; G) on
racks; H)Underground Storage Tank (UST); I) Above Ground Storage Tank (AST);
J) other(please describe).
12. Describe any pollution control equipment that will be used at the
proposed facility (example: paint spray booth, fume hood, waste water
treatment). ___________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
36
13. Will your operations How will the How will the wastes
generate any chemical chemical wastes be disposed?
wastes that require be stored on-site? (example: recycled,
special disposal? landfilled, incinerated)
(example: waste oil,
waste solvent)
___________________ ____________________ ________________________
___________________ ____________________ ________________________
___________________ ____________________ ________________________
___________________ ____________________ ________________________
___________________ ____________________ ________________________
14. Does your business have an EPA Hazardous Waste Generator ID Number?
YES NO
15. What spill prevention and containment measures will be in place for the
chemicals and wastes stored at the proposed facility? (describe
briefly) ______________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
16. Does your business have an Emergency Response or Contingency Plan in
place in the event of a chemical incident (please provide a copy)
YES NO
17. Does your business have any type of Hazardous Materials training
program for your employees? (describe briefly): _______________________
_______________________________________________________________________
_______________________________________________________________________
18. Do you have copies of all Material Safety Data Sheets (MSDS) at your
facility for the chemicals listed in question #7? (Please provide
copies): YES NO
19. Does your business carry environmental insurance coverage in the event
of a chemical incident?
YES NO
20. Will you be required to make filings and notices or obtain permits as
required by Federal and/or State regulations for the operations at the
proposed facility? Specifically:
a. XXXX Title III Section 312 (Tier II) reports YES NO
(> 10,000lbs. of hazardous materials STORED at any one time)
b. XXXX Title III Section 313 (Tier III) Form R reports YES NO
(> 10,000lbs. of hazardous materials USED per year)
c. NPDES or SPDES Stormwater Discharge permit YES NO
(answer "No" if "No-Exposure Certification" filed)
37
21. This form was prepared by the undersigned as a complete and correct
description of Tenant's proposed operations at the location noted, and
the Landlord may rely on this information.
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Signature Print Name
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Date
38
