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EXHIBIT 10.25
LEASE
THIS LEASE is made and entered into this __ day of October, 2000, by
and between LCB, LLC, a Wisconsin limited liability company (hereinafter called
the "LANDLORD"), and Third Wave Technologies, Inc. (hereinafter call the
"TENANT").
ACKNOWLEDGING CONSIDERATION, the parties hereby agree as follows:
ARTICLE I
DESCRIPTION OF LEASED PREMISES
Section 1.1. Leased Premises. The LANDLORD hereby leases to the TENANT,
and the TENANT hereby leases from the LANDLORD, a portion of the
Office/Warehouse Building, 8123 Forsythia Street, Middleton, Wis. (the
"Building"). There is, more or less, 33,020 square feet in the leased premises.
An outline of the leased premises is attached to this lease ("Lease") as EXHIBIT
A.
Section 1.2. Common Area. Tenant is also hereby granted the
non-exclusive right to use the parking areas on the west side of the building.
ARTICLE II
TERM OF LEASE
Section 2.1. Original Term. The original term of this Lease shall
commence on the date first set forth above, and shall terminate at midnight on
October 31, 2003, unless extended pursuant to Section 2.2.
Section 2.2. Extension of Term. The TENANT shall have an option to
renew the Lease for one(1) term(s) of five(5) year(s) each upon delivery of
notice of renewal to LANDLORD. Notice of renewal must be delivered not more than
six (6) months nor less than ninety (90) days prior to the expiration of the
original or extended term of the Lease, TIME BEING OF THE ESSENCE WITH RESPECT
TO DELIVERY OF SAID NOTICE. TENANT must not be in default of any term or
covenant under the lease at the time of delivery of the notice or the renewal
option shall be forfeited by TENANT. In the event of renewal, all terms of the
lease shall remain except the number of renewal terms remaining and the rent
which will include a 3.5% escalator, calculated annually at renewal on the
current years rent.
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ARTICLE III
RENT
Section 3.1 Base Rent. Commencing November 1, 2000, and on the same day
each month thereafter during the term of this Lease, TENANT shall pay to
LANDLORD at its address as contained in Article XXVI hereof, or at such other
place as the LANDLORD shall from time to time designate in writing, `base rent"
in the amount of $5.50/square foot of the leased premises as shown on the floor
plan attached as Exhibit A hereto, or $181,610.00 per year, in monthly rental
payments of $15,134.17, plus monthly estimated payments of $3,025.00 for
allocation of taxes, insurance and maintenance. Maintenance items covered in
this allocation include only snow removal and lawn maintenance.
Section 3.4. Security Deposit. The TENANT shall pay a security deposit
in the amount of $15,000.00.
ARTICLE IV
USE OF PREMISES
Section 4.1. Quiet Enjoyment. The LANDLORD covenants and warrants that
it has full right to make this Lease and will deliver possession of the leased
premises to the TENANT at the commencement of the term hereof; and that the
TENANT, upon paying the rental and performing the covenants hereof on its part
to be performed, shall and may peaceably and quietly have, hold, and enjoy the
leased premises throughout the term hereof.
Section 4.2. Use of Premises. The TENANT shall use the leased premises
for office, laboratory, light manufacturing, warehouse and distribution purposes
all in accordance with the lease terms and conditions. Any other use of the
lease premises shall be subject to the written consent of the LANDLORD.
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ARTICLE V
UTILITY CHARGES, TAXES, MAINTENANCE AND REPAIR
TENANT shall be responsible to pay for all utilities which are
separately metered. All other costs i.e.: real estate taxes, exterior
maintenance and LANDLORD'S insurance are included in the monthly allocation and
shall be adjusted prior to the last months rent at the end of each year of the
original term and the renewal term to actual expenditures, which tenant shall
pay before vacating and which may be deducted, at LANDLORD'S option, from the
security deposit. Such shall be defined as "rent" hereunder.
The TENANT shall use, maintain and occupy the leased premises in a
careful, safe and proper manner, and shall keep the leased premises in a clean
and safe condition and in accordance with all applicable statutes, ordinances,
rules and regulations. The TENANT shall not do or omit any act which will
contravene the LANDLORD'S policies insuring against loss or damage by fire or
other hazards, or which will prevent the LANDLORD from procuring such policies
in companies acceptable to the LANDLORD. TENANT shall provide its own janitorial
and trash removal service. LANDLORD shall only be responsible for maintenance of
exterior structural walls and roof, accept those which have been modified
specifically for the tenant's use. TENANT shall have the obligation for all
maintenance and repair to all improvements now existing or hereafter built, both
interior and exterior, excepting the primary structural support components of
the building, foundation, including slab, walls and any plumbing, sewer or
utilities installed beneath the slab prior to commencement of the lease.
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ARTICLE VI
ALTERATIONS OR IMPROVEMENTS BY TENANT
Section 6.1 TENANT'S Improvements. The TENANT shall, subject to
applicable codes and regulations and to the receipt of written consent from the
LANDLORD, which consent shall not be unreasonably withheld, have the right
during the term of this Lease to make such interior alterations or improvements
as may be proper and necessary for the conduct of its business. The TENANT shall
promptly pay all costs, expenses and charges associated therewith and shall make
such alterations and improvements in accordance with applicable laws and
building codes and in a good and workmanlike manner, and shall promptly pay all
costs, expenses and charges associated therewith and shall fully and completely
indemnify the LANDLORD against any construction liens or claims in connection
with the making of such alterations or improvements to the building made by the
TENANT. TENANT shall be responsible for the cost of any changes required to be
made in the Building by State or Federal laws governing accessibility for
handicapped persons which might arise from, or be occasioned by, TENANT'S
aforesaid improvements. TENANT shall cause the premises to remain in compliance
with all deed restrictions governing the premises see EXHIBIT C ATTACHED.
Section 6.2. TENANT'S Fixtures. All trade fixtures, furniture,
furnishings and signs installed in the building by the TENANT and paid for by it
shall remain the property of the TENANT and may be removed by the TENANT upon
the expiration of this Lease or its earlier termination, provided that the
TENANT has fully performed all of the covenants and agreements to be performed
by it under the provisions of this Lease. If the TENANT fails to remove such
items from the building prior to the expiration or earlier termination of this
Lease, all such trade fixtures, furniture, furnishings and signs shall become
the property of the LANDLORD unless the LANDLORD elects to require their
removal, in which case the TENANT shall promptly remove the same and repair any
damage caused by such removal. Any items as are affixed to the building and
require severance shall be the property of the LANDLORD and may not be removed
by the TENANT.
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ARTICLE VII
SIGNS & CANOPY
With the LANDLORD'S prior written consent, the TENANT shall have the
right to identify and advertise its location by installing a sign upon the lease
premises and remove the same upon the termination of this Lease, provided that
such sign shall comply with applicable laws and regulations, and further
provided that upon removing the same the TENANT shall restore the leased
premises to the condition that the same were prior to the installation of such
signs. TENANT shall be responsible for properly maintaining the
lighting/condition of its sign. LANDLORD may provide a common identification
sign for multiple tenants' use.
ARTICLE VIII
PUBLIC LIABILITY INSURANCE
The TENANT shall carry at its own expense throughout the term of this Lease
public liability insurance covering the leased premises and the TENANT'S use
thereof, in companies and in a form satisfactory to the Lessor, with a minimum
of $1,000,000 on account of bodily injuries to or death of one or more persons
as a result of any occurrence and with $50,000 coverage for property damage, and
shall deliver evidence of this coverage to LANDLORD prior to the date of any use
or occupancy of the leased premises by the TENANT. The policy or policies shall
name the LANDLORD and the TENANT as insureds and shall bear endorsements to the
effect that the insurer agrees to notify the LANDLORD not less than thirty (30)
days in advance of any cancellation, discontinuance, or alteration. If the
TENANT fails to carry such public liability insurance, the LANDLORD may at its
option (but shall not be required to do so) cause public liability insurance as
aforesaid to be issued, and in such event the TENANT agrees to pay the premium
for such insurance promptly upon the LANDLORD'S demand.
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ARTICLE IX
FIRE AND EXTENDED COVERAGE INSURANCE
Section 9.1. TENANT'S Property. The TENANT shall be solely responsible
for carrying insurance against fire and other such risks on its own personal
property, including trade fixtures, furniture, furnishings, signs, and
equipment.
Section 9.2. Limitations on LANDLORD'S Liability. The LANDLORD shall
not be liable for any damage to property of the TENANT or of others located on
the leased premises, nor for the loss of or damage to any property of the TENANT
or of others by theft or otherwise. The LANDLORD shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water, rain or snow, or leaks from any part of
the leased premises, or from the pipes, appliances or plumbing works or from the
roof, street or subsurface or from any other place or by any other cause of
whatsoever nature. The LANDLORD shall not be liable for any damage caused by
other persons on or about the leased premises, occupants of adjacent property,
or the public, or caused by construction of any private, public or quasi-public
work. The LANDLORD shall not be liable for any latent defect in the leased
premises. All property of the TENANT kept or stored on the leased premises shall
be so kept or stored at the risk of the TENANT only and the TENANT shall hold
the LANDLORD harmless from any claims arising out of damage to the same,
including subrogation claims by the TENANT'S insurance carrier, unless such
damage shall be caused by the willful act or gross neglect of the LANDLORD.
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ARTICLE X
DAMAGE OR DESTRUCTION OF LEASED PREMISES
Section 10.1. Repair or Replacement. In the event that the building is
damaged to an extent that the repair cost thereof will be less than twenty-five
percent (25%) of its full insurable replacement value, then the LANDLORD shall,
upon receipt of the insurance proceeds covering such damage, promptly repair the
same. In the event the building is damaged to an extent that the repair cost
thereof will be equal to or greater than twenty-five percent (25%) of its full
insurable replacement value, then the LANDLORD shall, for a period of sixty (60)
days following such damage, have the option to terminate this Lease, effective
as of the date of such damage, this option to be made in writing and to be
delivered to the TENANT within the said sixty (60) day period. In the event that
no election to terminate this Lease is made, then the LANDLORD shall, upon
receipt of the insurance proceeds covering such damage, promptly repair the
same. If the amount of such insurance proceeds is insufficient to pay the cost
of the necessary repair of such damage, the LANDLORD shall pay any additional
sums required, and if the amount of such insurance proceeds is in excess of the
cost thereof, the amount of excess shall be retained by the LANDLORD.
Section 10.2. Rent Abatement. Rent payments following such damage shall
continue on a timely basis and shall not be abated or rebated during such
periods unless the Lease Premises are rendered completely unfit for TENANT'S use
in which case the rent shall xxxxx from the date of the occurrence until the
Leased Premises are restored.
ARTICLE XI
GRACE PERIOD
No default whatsoever or breach of covenant hereunder shall be deemed
to have occurred on the part of either party to this Lease, with the exception
of TENANT'S nonpayment of rent, until ten (10) days after written notice of such
breach or default shall have been given to either the LANDLORD or the TENANT, as
the case by be, and the party engaging in such breach or default shall, within
the times specified above, have failed to remedy such breach or default.
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ARTICLE XII
LANDLORD'S REMEDIES
Section 12.1. If the TENANT shall fail to perform any affirmative
covenant to be performed by it pursuant to the terms of this Lease, or if the
TENANT shall fail to make any payment which it agrees to make or is obligated to
make pursuant to the terms of this Lease, then in the event of the failure of
the TENANT to perform such affirmative covenant or make such payment within a
period of ten (10) days after the LANDLORD shall have given written notice to
the TENANT of its failure to perform such affirmative covenant or make any such
payment (except that if such affirmative covenant cannot be performed within
said ten (10) day period with reasonable speed and diligence, then if the TENANT
shall fail to commence performance of such affirmative covenant within said ten
(10) day period with reasonable speed and diligence and continue thereafter with
reasonable speed and diligence until such affirmative covenant is performed), or
without such notice, if in the LANDLORD'S opinion an emergency exists, the
LANDLORD may, at the LANDLORD'S option, perform any such affirmative covenant or
make any such payment, and the full amount of the cost and expense entailed or
of the payment so made, shall immediately be owing by the TENANT to the LANDLORD
as an additional rent payment, in which event the LANDLORD shall have the
remedies for default in the payment thereof provided by this Lease.
Section 12.2. If the leased premises shall be deserted or vacated, or
if proceedings are commenced against the TENANT in any court under a bankruptcy
act or for the appointment of a trustee or receiver of the TENANT'S property,
either before or after the commencement of the Lease term, or if there shall be
a default in the payment of rent or any part thereof for more than five (5) days
after written notice of such default by LANDLORD, or if there shall be a default
in the performance of any other covenant, agreement, condition, rule or
regulation herein contained or hereafter established on the part of the TENANT
for more than ten (10) days after written notice of such default by the
LANDLORD, this Lease (if the LANDLORD so elects) shall thereupon become null and
void, and the LANDLORD shall have the right to reenter or repossess the leased
premises and dispossess and remove therefrom the TENANT, or other occupants
thereof, and their effects. In such case, the
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LANDLORD may, at its option, re-let the leased premises or any part thereof, as
the agent of the TENANT, and the TENANT shall pay the LANDLORD the difference
between the rental hereby reserved and agreed to be paid by the TENANT for the
portion of the term remaining at the time of re-entry or repossession and the
amount, if any, received or to be received under such re-letting for such
portion of the term. The TENANT hereby by expressly waives the service of notice
of intention to re-enter or of instituting legal proceedings to that end.
Section 12.3. Further, if the LANDLORD shall incur reasonably necessary
expenses, including reasonable attorney's fees, in instituting, prosecuting, or
defending any action or proceeding initiated by reason of any default of the
TENANT, then the amount of such expenses shall immediately be owing by the
TENANT to the LANDLORD, and the LANDLORD shall have the right to add the amount
thereof to the rentals then due or thereafter coming due hereunder.
Section 12.4. The options in this Article are for the sole purpose of
the LANDLORD, and their existence shall not release the TENANT from the
obligation to perform any of the covenants herein provided to be performed by
the TENANT or make any of the payments herein required, or deprive the LANDLORD
of any legal right which it may have by reason of any such default by the
TENANT. The provisions of this Article shall survive the termination of this
Lease.
ARTICLE XIII
TENANT'S REMEDIES
Section 13.1. If the LANDLORD shall fail to perform any affirmative
covenant to be performed by it pursuant to the terms of this Lease, of if the
LANDLORD shall fail to make any payment which it agrees to make or is obligated
to make pursuant to the terms of this Lease, then in the event of the failure of
the LANDLORD to perform such affirmative covenant or make such payment within a
period of ten (10) days after the TENANT shall have given written notice to the
LANDLORD of its failure to perform such affirmative covenant or make any such
payment (except that if such affirmative covenant cannot be performed within
said ten (10) day period with reasonable speed and diligence, then if the
LANDLORD shall fail to commence performance of such affirmative covenant
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within said ten (10) day period with reasonable speed and diligence and continue
thereafter with reasonable speed and diligence until such affirmative covenant
is performed), or without such notice, if in the TENANT'S opinion an emergency
exists, the TENANT may, at the TENANT'S option, perform any such affirmative
covenant or make any such payment, and the full amount of the cost and expense
entailed or of the payment so made, shall immediately be owing by the LANDLORD
to the TENANT and the TENANT shall have the right to deduct the amount thereof
from rentals then due or thereafter coming due hereunder.
Section 13.2. Further, if the TENANT shall incur reasonably necessary
expenses, including reasonable attorney's fees, in instituting, prosecuting, or
defending any action or proceeding initiated by reason of any default of the
LANDLORD, then the amount of such expenses shall immediately be owing by the
LANDLORD to the TENANT, and the TENANT shall have the right to subtract the
amount thereof from the rentals then due or thereafter coming due hereunder.
Section 13.3. The options in this Article are for the sole protection
of the TENANT, and their existence shall not release the LANDLORD from the
obligation to perform any of the covenants herein provided to be performed by
the LANDLORD or make any of the payments herein required, or deprive the TENANT
of any legal right which it may have by reason of any such default by the
LANDLORD. The provisions of this Article shall survive the termination of this
Lease.
ARTICLE XIV
MORTGAGE SUBORDINATION
Upon written request by the LANDLORD, the TENANT shall subordinate its
rights under this Lease to the lien or liens of any mortgages or deeds of trust
that my be placed upon the leased premises, provided that the mortgagee or
trustee named in the mortgages or deeds of trust agrees to recognize this Lease
in the event of foreclosure if the TENANT is not in default. The TENANT shall,
upon the request of the LANDLORD or any mortgagee, or any trustee, execute and
deliver whatever instruments may be required to carry out the intent of this
Article. If the TENANT fails to do so, the LANDLORD may, as attorney in fact for
the TENANT, execute and deliver such instruments. The
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TENANT shall in the event of the sale or assignment of the LANDLORD'S interest
in the leased premises, or in the event of any proceedings brought for the
foreclosure of the same, or in the event of the exercise of a power of sale
under any mortgage covering the leased premises, attorn to and recognize such
purchaser or mortgagee as the LANDLORD under this Lease.
ARTICLE XV
EMINENT DOMAIN
If the leased premises or any part is taken or condemned either
permanently or temporarily for any public or quasi-public use or purpose by any
competent authority in appropriation proceedings or by any right of eminent
domain, the entire compensation award including, but not limited to, all damages
as compensation for diminution in value of the leasehold reversion and fee,
shall belong to the LANDLORD without any deduction for any present or future
estate of the TENANT, and the TENANT hereby assigns to the LANDLORD all its
rights, title and interest to any such award. Although all damages in the event
of any condemnation are to belong to the LANDLORD, the TENANT shall have the
right to claim and recover from the condemning authority, but not from the
LANDLORD, such compensation as may be separately awarded to or recoverable by
the TENANT in the TENANT'S own right on account of any and all damage to the
TENANT'S business and for or on account of any cost or loss to which the TENANT
might be put in removing the TENANT'S merchandise, furniture, fixtures,
leasehold improvements and equipment.
If the whole or any part of the leased premises is taken by the
exercise of the power of eminent domain so as to render the leased premises
unsuitable for business, in the opinion of the TENANT and LANDLORD, then the
term of this Lease shall terminate as of the date possession is taken by the
condemnor. In the event of a partial taking or condemnation which is not
extensive enough to render the premises unsuitable for business, in the opinion
of the TENANT and LANDLORD, then the LANDLORD shall promptly restore the
remaining portion of the leased premises to a condition as comparable as
possible to its condition immediately preceding such condemnation, and this
Lease shall continue in force and effect, and the minimum rent shall be reduced
in proportion to any reduction in the square footage of the building following
such taking and restoration.
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ARTICLE XVI
ESTOPPEL CERTIFICATES
At any time and from time to time, the TENANT shall, upon request in
writing from the LANDLORD, execute, acknowledge and deliver to the LANDLORD, or
the LANDLORD'S mortgagee or financial institution, a statement in writing and in
form and substance satisfactory to the LANDLORD, certifying to all or any part
of the following information as is true and ascertainable: (i) that this Lease
constitutes the entire agreement between the LANDLORD and the TENANT and is
unmodified and in full force and effect (or if there have been modifications,
that the Lease is in full force and effect as modified and stating the
modification); (ii) the dates to which the rent and other charges have been
paid, and the amount of any security deposited with the LANDLORD; (iii) that the
TENANT has accepted possession, is occupying the leased premises and knows of no
default under the Lease by the LANDLORD and there are no defaults or offsets
which the TENANT has against enforcement of this Lease by the TENANT; and (iv)
the actual commencement date of the Lease and the expiration date of the Lease.
ARTICLE XVII
INDEMNIFICATION
The TENANT will indemnify the LANDLORD against all liabilities,
damages, and other expenses, including reasonable attorney's fees, which may be
imposed upon, incurred by, or asserted against the LANDLORD by reason of any of
the following occurrences during the term of this Lease:
a) Any use or condition of the leased premises or any part thereof.
b) Any negligence on the part of the TENANT or its employees, agents,
contractors, licensees, or invitees.
c) Any personal injury or property damage occurring in or about the
leased premises.
d) Any failure on the part of the TENANT to timely perform or comply
with any covenant required to be performed or complied with by the
TENANT hereunder.
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If any action or proceeding is brought against the LANDLORD by reason
of any such occurrences, the TENANT, upon written notice from the LANDLORD, will
at the TENANT'S expense resist or defend such action or proceeding by its
present corporate counsel or other counsel, approved in writing by the LANDLORD,
such approval not to be withheld unreasonably.
ARTICLE XVIII
WAIVER
No extension of time, forbearance, neglect, receipt of payment(s) from
TENANT or waiver on the part of the LANDLORD or the TENANT with respect to any
one or more of the covenants, terms, or conditions of this Lease shall be
construed as a waiver of any of the covenants, terms, or conditions of this
Lease, or as an estoppel against the LANDLORD or the TENANT, nor shall any
extension of time, forbearance, or waiver on the part of the LANDLORD or the
TENANT in any one or more instances or particulars be constructed to be a waiver
or estoppel in respect to any other instances or particulars covered by this
Lease.
ARTICLE XIX
BANKRUPTCY, INSOLVENCY, ETC.
Neither bankruptcy nor insolvency of the TENANT, nor assignment for the
benefit of creditors of the LANDLORD, not the appointment of a receiver or
trustee for the LANDLORD shall affect this lease so long as the covenants on the
part of the TENANT to be performed are being performed by the TENANT, and
providing that there is no default in the payment of rent or any other
obligation of the TENANT hereunder.
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ARTICLE XX
ASSIGNMENT AND SUBLETTING
Section 20.1. LANDLORD'S Assignment. The LANDLORD shall have the right
to transfer and assign, in whole or part, all and every feature of the
LANDLORD'S rights and obligations hereunder and in the premises, the building or
any portion thereof, provided that such transfer and assignment are made subject
to this Lease. Such transfers or assignments however made in all things be
respected and recognized by the TENANT; and, in the event of any such transfer
or assignment, whether by absolute conveyance, lease or otherwise, the LANDLORD
shall be relieved of any and all obligations, covenants and duties under this
Lease, provided that such had been assumed by the transferee or assignee is
financially responsible.
Section 20.2. TENANT'S Sublease. The TENANT may not assign this Lease
or sublet the leased premises or any part thereof without the written approval
of the LANDLORD, which approval shall not be unreasonably withheld.
ARTICLE XXI
SALE OF LEASED PREMISES
The LANDLORD shall have the right at any time to sell, transfer or
convey its interest in the leased premises, or any part thereof, and upon such
sale, transfer or conveyance, the LANDLORD shall cease to be liable under any
covenant, condition or obligation imposed upon it by this Lease; provided,
however, that any such sale, transfer or conveyance shall be subject to this
Lease, and that all of the LANDLORD'S covenants and obligations set forth herein
and relating to the portion of the leased premises sold, transferred or conveyed
shall be binding upon the subsequent owner(s) of the leased premises.
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ARTICLE XXII
LANDLORD'S ENTRY FOR INSPECTION
The LANDLORD shall have the right, upon reasonable notice and at
reasonable times, to enter into and upon the leased premises for the purpose of
examining and inspecting the same and of showing the said premises to
prospective tenants or purchasers, said inspection not, however, unreasonably to
interfere with the business of the TENANT. The TENANT will permit the usual "For
Rent" signs to be placed upon the premises at any time within ninety (90) days
prior to the expiration of the term of this Lease.
ARTICLE XXIII
SURRENDER AT END OF TERM
The TENANT covenants, upon the last day of the term of this Lease or of
any extensions hereof or of any sooner termination of this Lease as herein
provided, peaceably and quietly to surrender and yield up to the LANDLORD the
entire leased premises, in as good order and condition as the same were at the
commencement of the term of this Lease, reasonable wear and tear excepted,
provided, however, that the condition of the leased premises following the
removal by the TENANT of any trade fixtures, furniture, furnishings and signs
belonging to the TENANT shall be governed by the provisions of Article VII
hereof, and in accordance with EXHIBIT B ATTACHED.
ARTICLE XXIV
HOLDING OVER
If the TENANT holds over or remains in possession or occupancy of the
leased premises after the expiration of the term of this Lease or after any
sooner termination hereof without a new lease of the leased premises being
actually made and entered into between the LANDLORD and the TENANT, such holding
over or continued possession or occupancy after the term hereof shall, if rent
is paid by the TENANT and accepted by the LANDLORD for or during any period of
time it holds or remains in
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possession or occupancy, create only a tenancy from month to month at the last
previous monthly rental multiplied by a factor of 1.5 and upon the agreements,
covenants, and conditions of this Lease (other than the term herein provided),
which may at any time be terminated by either the LANDLORD or the TENANT by
giving appropriate notice pursuant to Chapter 704 of the Wisconsin Statutes.
ARTICLE XXV
ASSIGNMENT OF LEASE OR RENTS
The TENANT hereby consents to any assignment of this Lease or of the
rents due pursuant to this Lease, to secure any present or future mortgage
indebtedness of the LANDLORD.
ARTICLE XXVI
NOTICES
Section 26.1. All notices to the LANDLORD shall be personally delivered
to the LANDLORD or shall be sent by registered or certified mail, addressed to
the LANDLORD at the following address, or at such other address as the LANDLORD
shall hereinafter designate in writing to the TENANT:
LANDLORD:
LCB, LLC
c/o Madison Golf and Development Group, LLC
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
Contact: Xxxxxx Xxxxxxx, (000) 000-0000
All notices to the TENANT shall be personally delivered to the TENANT
or shall be sent by registered or certified mail, addressed to the TENANT at the
following address, or at such other address as the TENANT shall hereinafter
designate in writing to the LANDLORD:
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TENANT:
Third Wave Technologies, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Att: Xxxx Xxxxxxxxx (000) 000-0000
ARTICLE XXVII
ENTIRE AGREEMENT
This Lease sets forth the entire understanding between the parties and
all prior contracts, agreements, or understandings are deemed to be incorporated
herein, there being no terms, conditions, warranties, or representations other
than those contained herein, and no amendments hereto shall be valid unless made
in writing and signed by the parties hereto.
ARTICLE XXVIII
SEVERABILITY
If any provision of this Lease or the application thereof to any person
or circumstance shall be invalid or unenforceable to any extent, the remainder
of this Lease and the application of such provisions to such other persons or
circumstances shall not be affected thereby, and shall be enforced to the
greatest extent permitted by law.
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ARTICLE XXIX
BINDING EFFECT
This Lease shall be binding upon and shall inure to the benefit of the
heirs, personal representatives, successors, and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Lease so as to be
effective on the date first above written.
LANDLORD: LCB, LLC TENANT: THIRD WAVE TECHNOLOGIES, INC.
By:
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Xxxxxx X. Xxxxx, Member By Its:
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By Its:
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SUMMARY OF ATTACHMENTS TO LEASE
FIRST ADDENDUM TO LEASE, 10/16/00
EXHIBIT A
LEASED PREMISES
EXHIBIT B
TENANT IMPROVEMENTS LIST
EXHIBIT C
PROPERTY DEED RESTRICTIONS
ATTACHMENT OF SPECIFIC TENANT IMPROVEMENTS - TO BE PROVIDED
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FIRST ADDENDUM TO LEASE
THIS FIRST ADDENDUM TO LEASE ("Addendum") is dated for reference
purposes as of October 16, 2000, and is made between LCB, LLC ("Landlord") and
Third Wave Technologies, Inc., a Wisconsin corporation ("Tenant") to be a part
of that certain Lease, of even date herewith between Landlord and Tenant (herein
the "Lease Form") concerning approximately 33,020 square feet of space (the
"Premises"), located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx (the
"Building"). Landlord and Tenant agree that notwithstanding anything in the
Lease Form, the Lease Form is modified and supplemented by this Addendum. Each
term used herein with initial capital letters shall have the meaning ascribed to
such term in the Lease Form unless specifically otherwise defined herein. In the
event of any inconsistency between this First Addendum and the Lease Form, the
terms of this First Addendum shall prevail. As used herein, the term "Lease"
shall mean the Lease Form, this Addendum and all riders, exhibits, rules,
regulations, covenants, conditions and restrictions referred to in the Lease
Form or this Addendum.
2.1 TERM.
A. The Lease shall commence (the "Commencement Date") on the date by
which Landlord has delivered possession of the Premises to Tenant. Landlord
shall deliver possession of the Premises to Tenant upon execution of this Lease.
If the Commencement Date has not occurred for any reasons whosoever on or before
the tenth (10th) day after the parties hereto have fully executed this Lease,
then in addition to Tenant's other rights or remedies, Tenant may terminate this
Lease by written notice to landlord, whereupon any monies previously paid by
Tenant to Landlord shall be reimbursed to Tenant.
3.1 RENT. Rent for the first sixty (60) days of the Term shall be one-half the
Rent under Article 3 of the Lease (i.e. $7,567.08 per month). No rent shall be
due for the period from the Commencement Date through October 31, 2000.
4.1 CONDITION OF PREMISES. Landlord warrants and represents that as of the
Commencement Date the Premises will be in good condition and repair, the roof
shall be in good condition and watertight, and the electrical, mechanical, HVAC,
plumbing, elevator and other systems serving the Premises will be in good
condition and repair. Tenant intends to install a 1600 amp service or larger.
Installation of the 1600 amp service will be at Tenant's sole expense.
4.2 USE. The Premises shall be used for office, laboratory, light manufacturing,
warehouse and distribution purposes all in accordance with the lease terms and
conditions.
7.1. COMPLIANCE WITH LAWS. Tenant shall not be required to comply with or cause
the Premises to comply with any laws, rules or regulations requiring alterations
or improvements unless the compliance with any of the foregoing is necessitated
solely due to Tenant's particular use of the Premises or Tenant's construction
on the Premises.
7.2 TENANT IMPROVEMENTS. Tenant shall have the right to add exterior parking lot
illumination at Tenant's sole cost and expense.
7.3. ALTERATIONS. In no event shall Tenant be required to remove those Tenant
Improvements listed on Exhibit ___ from the Premises at the end of the Term.
Should Tenant terminate the Lease
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at the conclusion of the three (3) year initial term, Tenant shall pay to
Landlord $15,000 for the sole purpose of reimbursing Landlord a portion of the
costs to remove or modify Tenant Improvements. No such payment shall be made if
Tenant exercises its five (5) year option.
7.4. INSTALLATION OF GENERATOR. Tenant shall have the right to install, maintain
and operate, at no additional Rent to Tenant, a back-up power generator and
diesel fuel tank in the location shown on Exhibit ____ attached to the Lease or
such other location as approved reasonably acceptable to Landlord. The generator
shall at all times be and remain an item of Tenant's Property and shall not be
considered an alteration, addition or improvement under Article VI of the Lease.
Tenant may at any time remove the generator from its location, provided that
Tenant repairs all damage caused by such removal. Tenant shall pay all costs
associated with compliance with all laws, regulations and restrictive covenants,
including but not limited to, construction of required spill prevention, noise
abatement and visual screening.
10.2 AND ARTICLE XVII. LOSS OR DAMAGE TO PROPERTY. Landlord shall not be
released or indemnified from, and shall indemnify, defend, protect and hold
harmless Tenant from, all losses, damages, liabilities, judgments, actions,
claims, attorneys' fees, consultants' fees, payments, costs and expenses arising
from the negligence or willful misconduct of Landlord or its agents,
contractors, licensees or invitees.
Tenant shall not be released or indemnified from, and shall indemnify, defend,
protect and hold harmless Landlord from, all losses, damages, liabilities,
judgments, actions, claims, attorneys' fees, consultants' fees, payments, costs
and expenses arising from the negligence or willful misconduct of Tenant or its
agents, contractors, licensees or invitees.
10.2. LOSS OR DAMAGE TO PROPERTY. If there is any interruption, failure,
stoppage or interference of the utilities or services to the Premises under the
Lease or due to the presence of any Hazardous Materials on or about the Building
(except to the extent released or emitted by Tenant), which events are within
Landlord's control or due to Landlord's actions or inactions, or a latent defect
in the Premises for which Landlord is obligated to make repairs results in an
interruption, and such interruption continues for ten (10) consecutive calendar
days, then Tenant shall be entitled to an equitable abatement of rent to the
extent of the interference with Tenant's use of the Premises occasioned thereby.
If the interference persists for more than forty-five (45) consecutive calendar
days, then Tenant shall have the right to terminate the lease.
10.3 HAZARDOUS MATERIAL.
A. To the best knowledge of Landlord, (a) no Hazardous Material is
present in, under or about the Building, soil, surface water or groundwater
thereof, (b) no underground storage tanks are present in, under or about the
Building, and (c) no action, proceeding or claim is pending or threatened
regarding the Building concerning any Hazardous Material or pursuant to any
environmental law. Under no circumstances shall Tenant be liable for, and
Landlord shall indemnify, defend, protect and hold harmless Tenant, its agents,
contractors, stockholders, directors, successors, representatives, and assigns
from and against all losses, costs, claims, liabilities and damages (including
attorney's and consultants' fees) of every type and nature, directly or
indirectly arising out of or in connection with Hazardous Material present on
the Commencement Date in, under or about the Building, or the soil, air,
improvements, groundwater or surface water thereof, or the violation of any
laws, orders or regulations, relating to any such Hazardous Material, and to the
extent that any of the foregoing actually results from the release or emission
of Hazardous Material
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by Landlord or its agents or employees after the Commencement Date in violation
of applicable environmental laws.
B. Tenant shall be entitled to use and store in or adjacent to the
Premises Hazardous Material necessary for the operation of its business on the
Premises. Any storage outside building must be approved by the Landlord not
withstanding the foregoing, Landlord does approve of the installation of above
ground chemical storage tanks external to the Premises. Landlord hereby approves
of Tenant's construction a chemical storage vault in or adjacent to the
Premises. Upon termination of the Lease, Tenant shall be responsible for the
proper removal, restoration and cleanup of the chemical storage vault and all
hazardous materials stored on or adjacent to the Premises. Tenant shall provide
Landlord with an Environmental Phase I report documenting proper removal,
restoration and cleanup.
11.1. In the event the premises, or any part thereof, shall be destroyed or
damaged, and such destruction or damage may be reasonably repaired within 120
days from the happening of such destruction or damage, Tenant shall not be
entitled to surrender possession of the Premises, or any part thereof, nor shall
Tenant's liability to pay rent under this Lease cease, but in the case of any
such destruction or damage, Landlord shall repair the same with all reasonable
speed and shall complete such repairs within 120 days from the happening of such
destruction or damage subject to delays beyond Landlord's reasonable control. If
Tenant shall thereby be deprived of the occupancy of any part of the Premises, a
proportionate allowance shall be made to Tenant from the rent corresponding to
the time during which and to the part of the Premises of which Tenant shall be
so-deprived on account of such destruction or damage or the making of such
repairs. In the event that any destruction or damage can not reasonably be
repaired within 120 days from the happening of such destruction or damage,
either Landlord or Tenant shall have the right to terminate this Lease by giving
written notice within 30 days from the happening of such destruction or damage.
In the event Landlord determines that any destruction or damage can be
reasonably repaired within 120 days, but such destruction or damage is not in
fact repaired within that period, Tenant may terminate the Lease by written
notice to Landlord within 30 days after the expiration of such period.
13. RIGHT OF FIRST OFFER. If Landlord from time to time determines to lease any
adjacent space in the building outside of the Premises (each space an "Expansion
Space"), then Landlord shall first notify Tenant of the terms on which Landlord
is willing to lease such Expansion Space. If Tenant, within five (5) business
days after receipt of Landlord's written notice indicates in writing its
agreement to lease the Expansion Space on the terms stated in Landlord's notice,
then landlord shall lease to Tenant and Tenant shall lease from Landlord the
Expansion Space on the terms stated in Landlord's notice. If Tenant does not
indicate in writing its agreement to lease the Expansion Space on the terms
contain in Landlord's notice within said five (5) business day period, then
landlord thereafter shall have the right to lease such Expansion Space to a
third party on the same terms stated in Landlord's notice. If Landlord does not
lease the Expansion Space within ninety (90) days after the expiration of said
five (5) business day period, any further transactions shall be deemed a new
determination by Landlord to lease such Expansion Space and the provisions of
the paragraph shall again be applicable with respect to such Expansion Space.
21.1. ASSIGNMENT AND SUBLETTING. Notwithstanding anything to the contrary in the
Lease, Tenant may, without Landlord's prior written consent, sublet the Premises
or assign the Lease to: (i) a subsidiary, affiliate, division or corporation
controlling, controlled by or under common control with Tenant; (ii) a successor
corporation related to Tenant by merger, consolidation, nonbankruptcy
reorganization, joint venture, government action, or a purchase of all or
substantially all
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of the business assets of Tenant's business. For the purpose of this Lease, sale
of Tenant's capital stock shall not be deemed an assignment, subletting, or any
other transfer of the lease or the Premises.
ARTICLE V. TAXES. "Taxes" shall not include and Tenant shall not be required to
pay any portion of any tax or assessment expense or any increase therein (a) in
excess of the amount which would be payable if such tax or assessment expense
were paid in installments over the longest possible term; (b) imposed on land
and improvements other than the land and improvements on which the leased
Premises and Tenant's parking areas are located; (c) attributable to Landlord's
net income, inheritance, gift, transfer, estate or state taxes; or (d) resulting
from a change of ownership or transfer of any or all of the Building (excluding
tax reassessments as a result of the sale of the Building).
ARTICLE VI. NO LIEN. Trade fixtures, furniture, equipment and other personal
property installed in the Premises ("Tenant's Property") shall at all times be
and remain Tenant's property. Tenant may at any time remove Tenant's Property
from the Premises, provided that Tenant repairs all damage caused by such
removal. Provided Tenant is not in breach of this Agreement, Landlord shall have
no security interest or lien on any item of Tenant's Property. Landlord waives
any right of distraint, distress for rent or Landlord's lien that may arise at
law.
ARTICLE VI. IMPROVEMENTS.
A. Landlord acknowledges that Tenant will be constructing certain
improvements in the Premises necessary for the operation of its business in the
Premises (the "Initial Improvements"). Landlord hereby approves of the Initial
Improvements described on the preliminary plans and specifications attached to
the Lease as Exhibit ____.
B. In the event Tenant is unsuccessful in obtaining all required
consents, approvals and permits under the Lease and under applicable law in
connection with the Initial Improvements or in connection with the operation of
Tenant's business in the Premises, or in the event Tenant determines in its sole
discretion that it can not obtain all such consents, approvals and permits in a
commercially reasonable manner, then Tenant may terminated this Lease upon
thirty (30) days written notice, provided such written notice to terminate the
Lease is delivered to Landlord on or before December 1, 2000. In such event,
Tenant shall restore the Premises to its original condition.
ARTICLE VII. SIGNAGE. Tenant shall be entitled to space on Landlord's monument
signage for the building with the design and specifications reasonably
acceptable to Landlord. Tenant shall also be entitled, at its sole cost and
expense, to building exterior signage bearing Tenant's name and corporate logo
with a location, design and specifications reasonably acceptable to Landlord and
approved by City of Middleton. All signage must be in compliance with and
approved by the Landlord.
ARTICLE XXII. RIGHTS RESERVED BY LANDLORD. Landlord, except in the case of
emergency, shall provide Tenant with twenty-four (24) hours' notice prior to
entry of the Premises. Any such entry by Landlord shall comply with all
reasonable security measures of Tenant and shall not impair Tenant's operations
more than reasonably necessary. Landlord shall not exercise its rights under
this Article of the Lease if such actions would unreasonably interfere with
Tenant's use of the Premises or increase the obligations or decrease the rights
of Tenant under the Lease. In taking such actions, Landlord shall at all times
use its best efforts to minimize any disruption to Tenant.
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ARTICLE XXIV. SUBORDINATION. Within thirty (30) days of the Commencement Date,
Landlord shall cause all mortgagees, lenders, ground lessors and other parties
currently holding security interest affecting the Premises or Building to
execute a recognition and nondisturbance agreement which (i) provides that this
Lease shall not be terminated so long as Tenant is not in default under this
Lease and (ii) recognizes all of Tenant's rights under the Lease. Landlord
agrees to diligently attempt to obtain the agreement of Mortgagees and Lenders.
If the Mortgagees and/or Lenders refuse to execute such an agreement, failure to
obtain such an agreement will not be a breach or default of this Lease by
Landlord.
ARTICLE XXVI. NOTICES. Any notice required under the Lease that is sent by mail
shall be deemed received, if properly addressed, three (3) business days after
any such notice is deposited in the United Sates mail certified,
postage-prepaid, return-receipt requested.
Landlord: Tenant:
LCB, LLC THIRD WAVE TECHNOLOGIES, INC.
By: By:
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Printed name: Printed name:
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Title: Title:
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Date: Date:
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