EXHIBIT 10.7
ESPERION THERAPEUTICS, INC.
LEASE
This agreement is made and entered into this 30th day of November,
1998, by and between State-94 LIMITED PARTNERSHIP, a Michigan limited
partnership, whose address is 000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxx 00000, hereinafter referred to as "Lessor," and Esperion Therapeutics,
Inc., a Michigan corporation, whose address is 0000 X. Xxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxx 00000, hereinafter referred to as "Lessee";
WITNESSETH:
PREMISES
Section 10.1. Lessor, for and in consideration of the rents herein
reserved and of the covenants and agreements herein contained on the part of the
Lessee, to be kept, observed and performed, does by these presents, demise and
lease to Lessee, and Lessee hereby hires and lets from Lessor the real estate
located at premises commonly known as Suite 69J, KMS comprising of approximately
12,400 square feet being a portion of 0000 X. Xxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxx,
as more particularly described on attached and incorporated in Exhibit A, and
improvements now located or to be erected thereon, subject to easements and
restrictions of record, which easements and restrictions do not interfere with
the use of the demised premises for the purposes described herein.
Section 102. Said real estate and improvements are sometimes herein
referred to as "demised premises."
TERM
Section 201. The term of this Lease shall be two (2) years from and
after the 1st day of January, 1999. Tenant shall have an option to extend the
term of this Lease for an additional period of two (2) years in accordance with
the provisions of Section 3501 of this Lease.
Section 302. Lessee shall be solely responsible for the completion of
any improvements which it may require to be made to the premises.
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Section 303. Lessee agrees to accept the demised premises in their"
as-is" condition, except for any existing environmental contamination resulting
from the previous activities of KMS Industries and/or the United States
Department of Energy.
RENTAL
Section 401. In consideration of the leasing of the demised premises
from Lessor, Lessee agrees to pay Lessor fixed monthly rental payments in
advance in the amount of Fifteen thousand five hundred and 00/100 ($15,500)
Dollars commencing on the first day of the term and continuing on the first day
of each and every month thereafter for the next succeeding twenty-three (23)
months.
Section 402. In the event any installment of rent is paid more than ten
(10) days after the due date thereof, and such amounts of delinquent rent shall
bear interest at the rate of twelve (12%) percent per annum until paid.
Section 404. Additional Rent. In addition to the monthly rental as set
forth in Section 401, above, Lessee shall also pay Lessor as additional rent an
amount equal to Lessee's pro-rata portion of any increase in real estate taxes
on the entire premises of which the demised premises are a part, using real
estate taxes due in calendar year 1999 as the base year; said additional rental
to be paid semi-annually in the months of July and December of each year in
accordance with the statement provided by Lessor to Lessee such statement to be
accompanied by photocopies of the applicable real estate tax bills and a
computation of the method of proration of any tax increase. For purposes of this
computation, the Lessee's pro-rata share of taxes shall mean 9.876 percent
(9.876%), which is the quotient (expressed as a percentage) derived by dividing
the rentable area of the premises (12,400) by the rentable area of the building
(125,554).
Section 405. Increased Operating Expenses. Commencing with the first
full calendar year after the commencement of the original term of this Lease,
and during each successive calendar year thereafter, the Lessee shall pay, as
additional rent, its proportionate share of the amount by which operating
expenses for such calendar year exceed the cost for such items during the base
year. Lessee shall be billed semi-annually on or about June 30 and December 31
for its proportionate share of increases in utilities and operating expenses
based upon a space factor of 9.876%. The semi annual xxxxxxxx provided by Lessor
shall be based upon Lessors reasonable estimate of such charges, and Lessor
shall provide Lessee with a reconciliation of the amounts billed for such
increases as compared to the charges actually incurred for such increases, such
reconciliation to be provided within ninety (90) days after the end of each
calendar year. Lessee shall pay all xxxxxxxx for increases in utilities and
operating expenses at the same time as Lessee pays its rent on the next regular
monthly due date for rent following receipt of Lessor's billing. Delinquency in
the payment of xxxxxxxx for increases in utilities and operating expenses shall
bear interest during any period when such sums are not paid in the same manner
as interest will accrue on delinquent installments of rent under the provisions
of paragraph 402.
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For the purposes of this paragraph: (a) The term utilities shall not
include the cost of gas, electric and water and sewer to be paid by Tenants
under Paragraph 601 of the lease.
The term "operating expenses: shall include all charges incurred in the
normal operation of the building including repair and maintenance of mechanical
equipment halls, lobby and bathroom maintenance, window washing, trash
collection, supplies, property and liability insurance, management fees for
building management, minor repairs and replacement of consumable items and other
expenses of a similar nature as may be required in order that the building
maintain a first class professional appearance and use; provided, however, that
the term: "operating expenses" shall not include Lessors expenses for leasing
commissions, real property taxes and assessments as covered under paragraph 404
above, legal and accounting costs, Lessor's general administrative overhead in
the operation of its office or building, or the costs for replacement of any
equipment, portion of the building, or other capital items.
The term base year shall be 1999.
TAXES AND ASSESSMENTS
Section 501. Lessor shall be responsible for the payment of all real
estate taxes and special assessments on the premises.
UTILITIES
Section 601. Lessee shall be solely responsible to pay all charges for
utility services provided to the premises during the term of the Lease. Normal
electrical service to provide electricity for uses other than overhead lighting
and HVAC shall be separately metered and charged directly to Lessee. Utility
services which are not separately metered, including electricity for overhead
lighting and HVAC, gas, water, sewer, will be prorated to Lessee by Lessor on a
reasonable basis to be agreed, then based upon the evaluation of an engineer
jointly by the parties for this purpose. Shared utility services shall be billed
quarterly by Lessor to Lessee, and Lessee shall pay such bills within thirty
(30) days.
USE
Section 701. The demised premises shall be used for
research/office/light industrial and for other related or similar purposes which
are permitted by the zoning laws and record restrictions applicable to the
demised premises. Lessee shall not use or occupy the demised premises or permit
the demised premises to be used or occupied contrary to any statute, rule,
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order, ordinance, requirement, or regulation applicable thereto or in any manner
which would violate any certificate of occupancy affecting the same, or which
would cause structural injury to the improvements or which would constitute a
public or private nuisance or waste, and Lessee agrees that it will promptly
upon discovery of any such use, take all necessary steps to compel the
discontinuance of such use.
Lessor agrees that the demised premises may be used as Lessee has been
using same prior to this Lease.
MAINTENANCE OF PREMISES
Section 801. Lessor shall make all necessary repairs and replacements
to the building in which the leased premises are located, to the heating, air
conditioning and electrical systems located therein, and to the common areas,
including parking areas, and removal of snow and ice and Lessor shall also make
all repairs to the leased premises which are structural in nature, provided,
however, that Lessee shall make all repairs and replacements arising from its
willful misconduct or default and that of its agents, servants and employees.
Lessee shall be responsible to provide its own janitorial services and
light bulb maintenance.
INSURANCE AND INDEMNIFICATION:
Section 901. Lessee shall indemnify the Lessor and save it harmless
from and against any and all claims liability and expense for damages to any
person or property in or on the leased premises from any cause whatsoever.
Lessee shall procure and keep in effect during the entire term hereof public
liability and property damage insurance protecting Lessor and Lessee from all
causes in which limits of public liability shall not be less than Five hundred
thousand ($500,000) Dollars for damages resulting to one person, One million
($1,000,000) Dollars for damages resulting from one casualty, and Fifty thousand
($50,000) Dollars property damage resulting from one occurrence. Lessee shall
deliver policies of such insurance or certificates thereof to Lessor and upon
renewals not less than thirty (30) days prior to the expiration of such
coverage, and in the event Lessee shall fail to procure such insurance, Lessor
may at its option procure the same for the account of Lessee, and the cost
thereof shall be paid to Lessor immediately upon receipt by the Lessee of bills
therefor.
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FIRE INSURANCE
Section 1001. Lessor shall, at all times during the term of this Lease,
at its expense, keep in effect insurance on all buildings and improvements
against loss by fire, the risks covered by what is commonly known as "extended
coverage," malicious mischief and vandalism, in an amount no less than the
replacement cost of the building and improvements.
Section 1002. It is specifically understood and agreed that Lessor
shall maintain fire and extended coverage insurance on the building improvements
only, and that Lessor shall have no responsibility whatsoever for the loss of
Lessee's property on the leased premises; it being the Lessee's responsibility
to obtain such insurance on its own property as Lessee deems to be required.
Lessor and Lessee hereby waive and release any right of subrogation which either
of them might have against the opposite party for any loss or damage sustained
to their respective interest, to the extent that such loss or damage is covered
by an applicable insurance policy or policies.
Lessor and Lessee agree to carry policies with waivers of subrogation.
DAMAGE OR DESTRUCTION
Section 1101. In the event the demised premises are damaged or
destroyed in whole or in part by fire or other casualty during the term hereof,
Lessor shall, at its own cost and expense, repair and restore the same to the
pre-casualty condition with reasonable dispatch, and the rent herein provided
for shall xxxxx entirely in case the entire leased premises are untenantable,
and pro-rata for the portion rendered untenantable, in the event of a partial
untenantability, until such time as the leased premises are restored to the
pre-casualty condition. In the event the building in which the leased premises
are located is destroyed to the extent of more than one- half (1/24) of the then
value thereof, then the Lessor, or Lessee, in their sole discretion, shall have
the right to terminate this Lease upon written notice to the Lessee, and any
rent paid in advance of the date of such damage and destruction shall be
refunded to Lessee. If the leased premises are damaged due to fire or other
casualty, Lessee shall at its own cost and expense remove such of its furniture
and other belongings from the leased premises as the Lessor shall require in
order to repair and restore the leased premises. If the leased premises cannot
be restored within a period of ninety (90) days, then Lessee shall have the
right to terminate.
LIENS
Section 1201. Lessee shall not do any act which shall in any way
encumber the title of Lessor in and to said demised premises, nor shall the
interest or estate of Lessor in said demised premises be in any way subject to
any claim by way of lien or encumbrance, whether by
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operation of law or by virtue of any express or implied contract by Lessee, and
any claim to or lien upon said demised premises arising from any act or omission
of Lessee shall accrue only against the leasehold estate of Lessee and shall in
all respects be subject and subordinate to the paramount title and rights of
Lessor in and to said premises and the buildings and improvements thereon.
Lessee will not permit the demised premises to become subject to any mechanics',
laborers', or materialmen's lien on account of labor or material furnished to
Lessee in connection with work of any character performed or claimed to have
been performed on the demised premises by or at the direction of sufferance of
Lessee; provided, however, that Lessee shall have the right to contest in good
faith and with reasonable diligence, the validity of any such lien or claimed
lien if Lessee shall give to Lessor such security as may be reasonably demanded
by Lessor to insure payment thereof and to prevent any sale, foreclosure or
forfeiture of the demised premises by reason of nonpayment thereof, provided, on
final determination of the lien or claim for lien, Lessee will immediately pay
any Judgment rendered, with all proper costs and charges, and will, at its own
expense, have the lien released and any judgment satisfied.
Section 1202. In case Lessee shall fail to contest the validity of any
lien or claimed lien and give security to Lessor to insure payment thereof, or
having commenced to contest the same and having given such security, shall fail
to prosecute such contest with diligence, or shall fail to have the same
released and satisfy any judgement rendered thereon, then Lessor may, at its
election (but shall not be required so to do), remove or discharge such lien or
claim for lien (with the right, in its discretion, to settle or compromise the
same), and any amounts advanced by Lessor for such purposes shall be so much
additional rental due from Lessee to Lessor at the next rent day after any such
payment, with interest at the rate of ten (10%) percent per annum from the date
of payment thereof.
CONDEMNATION
Section 1301. In the event the whole of the demised premises, or so
much thereof shall be taken or condemned for a public or quasi-public use or
purpose by any competent authority, and as a result thereof the balance of said
premises cannot be used for the same purpose as before such taking or
condemnation, (which determination shall be made by Tenant) then and in either
of such events, the terms of this lease shall terminate when possession of the
demised premises shall be required for such use or purpose, and in any award,
compensation or damages (hereinafter sometimes called the "award") shall be paid
to and be the property of Lessor; except for the portion of any award
attributable to damages suffered by the Tenant.
Section 1302. In the event only a part of the demised premises shall be
taken or condemned for a public or quasi-public use or purpose by any. competent
authority, and as a result thereof the balance of said premises can be used for
the same purpose as before such taking of condemnation, (which determination
shall be made by Tenant) this lease shall not terminate; and Lessor, at its sole
cost and expense, shall repair and restore the premises and all improvements
thereon. Any award paid as a consequence of such taking or condemnation shall
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be paid to Lessor and be applied to the cost said repairing and restoration. Any
sums remaining after such application shall be paid to Lessor. In no event shall
Lessee have any obligation to expend more dm the condemnation award. There shall
be no abatement or reduction in the fixed rental because of such taking, unless
such taking shall reduce the area of the leased premises, in which case there
shall be a pro rata abatement, or reduction in the rental.
HAZARDOUS MATERIALS
Section 1401. Lessor and Lessee acknowledge that Lessee is required to
handle or otherwise deal with small amounts of Hazardous Materials within the
demised premises in the course of its business. Lessee hereby specifically
agrees that it will abide by all Environmental Laws and Regulations in the
handling or otherwise dealing with such Hazardous Materials. In the event that
the Lessee's activities with respect to the handling or otherwise dealing with
such hazardous materials result in contamination of the demised premises, or the
contamination of any other property whatsoever, then Lessee shall indemnify,
defend and hold Lessor, harmless from (i) any and all claims or losses
including, without limitation, all cleanup costs and expenses associated
therewith and, (ii) diminution in value of the demised premises or any other
premises and the restriction of use of rentable space or usable space or any
amenity of the demised premises, and (iii) sums paid in settlement of claims,
reasonable attorney fees, reasonable consultant fees and reasonable expert fees
which arise during or after the Lease term as a result of such contamination
provided Lessee has been notified of such claims at the time they are made and
participated in the defense thereof. This indemnification by Lessee includes,
without limitation, costs incurred in connection with any investigation of site
conditions, or cleanup, remedial, removable or restoration work required by any
federal, state, or local governmental agency or political subdivision because of
hazardous material present in the soil or ground water or on or under the
demised premises which is attributable to Lessee under this paragraph. Without
limiting the foregoing, if the presence of any hazardous materials on the leased
premises caused or permitted by Lessee or its agents, employees contractors,
invitees, subtenants or assignees results in any contamination of the demised
premises or any other premises, Lessee shall promptly take all actions, at its
sole expense, as are necessary to return the demised premises or any other
premises to the condition existing prior to the introduction of any such
hazardous material; provided that Lessor's approval of such actions shall first
be obtained which approval shall not be unreasonably withheld so long as such
actions would not potentially have any material adverse long-term or short-term
effect on the demised premises or the other involved premises. The foregoing
indemnity shall survive the expiration or early termination of this Lease.
Section 1402. The term "Hazardous Materials" as used in Section 1401
includes, without limitation, any materials or substances:
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. Defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 as amended (42 U.S.C. Sections 9601 et
seg.) and amendments thereto and regulations promulgated
thereunder;
. Defined in the Hazardous Materials Transportation Act, as amended
(U.S.C. Sections 1801, et seg.) and amendments thereto and
regulations promulgated thereunder;
. Defined in the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Sections 6901, et seg.) and amendments thereto and
regulations promulgated thereunder;
. Containing gasoline, oil, diesel fuel, or other petroleum
products;
. Containing polychlorinated biphenyl's (PCB's);
. Containing asbestos;
. Which are radioactive;
. Which are biological and which have been classified as hazardous
by the United States Environmental Protection Agency or any other
federal or state agency; or
. The presence of which require investigation or remediation under
any federal, state or local statue, regulation, ordinance or
policy, or under any rules, regulations or policies promulgated
thereunder, or which is or becomes defined as a "hazardous waste"
or "hazardous substance" under any federal, state, or local
statute, regulation or ordinance, and any toxic, explosive,
corrosive or otherwise hazardous substance, material or waste
which is or becomes regulated by any federal, state or local
governmental authority, or which cause a nuisance upon or waste to
the premises.
Section 1403. The term "Environmental Laws" as used in Section 1401
shall include any federal or state law or regulation dealing with Hazardous
Materials as defined in Section 1402.
Section 1404. Lessor hereby represents and warrant to Lessee that it
has disclosed to Lessee all of the information in its possession concerning
existing tritium contamination of the premises as a result of the previous
activities of KMS. Any of the provisions of Sections 1401, 1402, or 1403 to the
contrary notwithstanding, Lessee shall not be responsible for environmental
contamination of the premises caused by the previous activities of KMS and/or
the United States Department of Energy. For the purpose of establishing a
benchmark for the level of contamination of the premises (if any) caused by the
previous activities of KMS and/or the United States Department of Energy, Lessor
and Lessee agree that on or before February 15, 1993, when the KMS/United States
Department of Energy cleanup activities had been completed
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with respect to Rooms 333 and 334, the level of contamination in the premises
(if any) will be measured by a mutually agreed upon consultant, and tins
measurement shall constitute the benchmark by which to measure whether or not
Lessee has caused any contamination of the premises. Lessee shall not move any
radioactive materials onto the premises before February 15, 1993. If the
benchmark does not meet then applicable Nuclear Regulatory Commission Standards
for unrestricted use, then Lessee shall have the right to immediately terminate
this lease and recover its moving costs from Lessor as specified in Section 3401
hereof.
Section 1405. If, following the establishment of the benchmark as
discussed in Section 1404, immediately above, any tritium contamination is
discovered in the premises at levels higher than those then allowed by
applicable government standards for unrestricted public use, and further
presuming that such tritium contamination has not been caused by the activities
of the Lessee, then the Lessor shall immediately take such action at its expense
as may be necessary to lawfully remediate the tritium contamination. In the
event that the Lessor is unable to reduce the tritium contamination, to an
acceptable level for unrestricted public use within ninety (90) days following
the discovery and confirmation of the contamination, then Lessee shall have the
right to terminate this Lease and recover its moving costs and business
interruption cost from Lessor, such costs not to exceed Fifty Thousand ($50,000)
Dollars.
ASSIGNMENT BY LESSEE
Section 1501. Lessee shall not assign this Lease without the written
consent of Lessor, which consent shall not be unreasonably withheld or delayed,
and no such assignment shall relieve Lessee of its obligations hereunder; and
Lessee shall continue to be liable as a principal and not as a guarantor or
surety, to the same extent as though no assignment had been made.
Section 1502. Lessee may, without Lessor's consent, assign this Lease
to any entity which is affiliated with Lessee or to any corporation resulting
from a merger or consolidation of the Lessee, provided that the total assets and
net worth of such assignee after such consolidation or merger shall be more than
that of Lessee immediately prior to such consolidation or merger, and provided
that Lessee is not at such time in default hereunder beyond any notice and cure
period, pursuant to section 2001 hereof, and provided further that such
successor shall execute an instrument in writing fully assuming all of the
obligations and liabilities imposed upon Lessee hereunder and deliver the same
to Lessor, whereupon Lessee shall be discharged from any further liability
hereunder.
ANNUAL STATEMENTS
Section 1601. Lessee, upon the written request of the Lessor, agrees
to furnish Lessor annually within ninety (90) days of the end of each fiscal
year, with a copy of its annual compiled
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statement, and agrees that Lessor may deliver such statements to its mortgagee.
Such statements shall be held in strict confidence by Lessor and its mortgagee.
ATTORNEY FEES.
Section 1701. Lessee further agrees to pay all costs and expenses,
including reasonable attorneys' fees, which may be incurred by or imposed on
Lessor either in enforcing this Lease (but only where Lessor shall prevail) or
in any litigation commenced in connection with this Lease or concerning the
demised premises to which Lessor, may be made a party solely by virtue of the
fact that Landlord is the owner of the building of which the demised premises is
a part; and if paid by Lessor, shall be so much additional rent due on the next
rent date after such payment, together with interest at ten (10%) percent per
annum from the date of payment.
ESTOPPEL CERTIFICATE BY LESSEE
Section 1801. The parties further agree at any time and from time to
time, upon not less than (20) days' prior written request to execute,
acknowledge and deliver a statement in writing certifying that this Lease is
unmodified and in full force and effect (or specifying the modifications, if
any), and the date to which the rental and other charges have been paid in
advance, if any, it being intended that any such statement delivered pursuant to
this Section 1701 may be relied upon by any prospective purchaser of the fee of
any assignee or prospective assignee of this Lease, or mortgagee or assignee of
any mortgage upon the fee of the demised premises.
INSPECTION OF PREMISES
Section 1901. Upon reasonable prior notice (except in the case of an
emergency), Lessee agrees to permit Lessor and the authorized representatives of
Lessor to enter the demised premises at all reasonable times during business
hours for the purpose of inspecting the same. The Lessee may designate a
representative to accompany Lessor during its inspections.
FIXTURES
Section 2001. All buildings and improvements and all plumbing, heating,
lighting, electrical and air conditioning fixtures and equipment and other
articles of personal property used in the operation of such buildings as such
(as distinguished from operations incident to the business of Lessee) now or
hereafter located upon said land, together with all duct electrical
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lines, whether or not attached or affixed to said land or any buildings thereon,
sometimes herein referred to as "building fixtures," shall be and remain a part
of the real estate and shall constitute the property of Lessor.
Section 2002. All of Lessee's trade fixtures and all personal property,
fixtures, apparatus, machinery and equipment now or hereafter located upon said
land, other than building fixtures as defined in Section 2001 hereof, and owned
by Lessee or any other occupants of the demised premises and whether or not the
same are affixed thereto, shall be and remain the personal property of Lessee or
such other occupants, and the same are herein sometimes referred to as "Lessee's
equipment."
Section 2003. Lessee's equipment may be removed from time to time by
Lessee or other occupants of the demised premises; provided, however, that if
such removal shall damage the premises, Lessee shall reasonably repair the
damage and place the premises in the same condition as it would have been if
such equipment had not been installed.
RE-ENTRY UPON DEFAULT
Section 2101. Lessee further agrees that any one or more of the
following events shall be considered events of default as said term is used
herein, that is to say, if-
Lessee shall be adjudged a bankrupt, or a decree or order approving, as
properly filed, a petition or answer asking reorganization of Lessee under the
federal bankruptcy laws as now or hereafter amended, or under the laws of any
such decree or judgement or order shall not have been vacated or stayed or set
aside within thirty (30) days from the date of the entry or granting thereof; or
Lessee shall file or admit the jurisdiction of the court and the
material allegations contained in any petition in bankruptcy, or any petition
pursuant or purporting to be pursuant to the federal bankruptcy laws as now or
hereafter amended, or Lessee shall institute any proceedings or shall give its
consent to the institution of any proceedings for any relief of Lessee under any
bankruptcy or insolvency laws or any laws relating to the relief of debtors
readjustment of indebtedness, reorganization, arrangements, composition or
extension; or
Lessee shall make any assignment for the benefit of creditors or shall
apply for or consent to the appointment of a receiver for Lessee or any of the
property of Lessee; or
A decree or order appointing a receiver of the property of Lessee shall
be made, and such decree or order shall not have been vacated, stayed or set
aside within thirty (30) days from the date of entry of granting thereof, or
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Lessee shall make default in any monthly payments of basic rent
required to be made by Lessee hereunder when due as herein provided, and such
default shall continue for ten (10) days after notice thereof in writing to
Lessee; or
Lessee shall make default in any of the other covenants and agreements
herein contained to be kept, observed and performed by Lessee, and such default
shall continue for thirty (30) days after notice thereof in writing to Lessee.
Upon the occurrence of any one or more of such events of default, it
shall be lawful for Lessor, at its election, to declare the said term ended, and
r with process of law, to re-enter and to expel, remove and put out, Lessee and
all persons occupying said premises under Lessee, using such lawful force as may
be necessary in so doing, and the said premises, again to repossess and enjoy
as in their first and former estate, without such re-entry and repossession
working a forfeiture of the rents to be paid and the covenants to be performed
by Lessee during the full term of this Lease.
If default should be made in any covenant, agreement, condition or
undertaking herein contained to be kept, observed and performed by Lessee, other
dm the payment of rent as herein provided, which cannot with due diligence be
cured within a period of thirty (30) days, and if notice thereof in writing
shall have been given to Lessee, and if Lessee, prior to the expiration of
thirty (30) days from and after the giving of such notice, commences to
eliminate the cause of such default and proceeds diligently and with reasonable
dispatch to take all steps and do all work required to cure such default and
does so cure such default, then Lessor shall not have the right to declare the
said term ended by reason of such default; provided, however, that the curing of
any default in such manner shall not be construed to limit or restrict the right
of Lessor to declare the said term ended and enforce all of its right and
remedies hereunder for any other default not so cured.
Section 2102. The foregoing provisions for the termination of this
Lease for any default in any of its covenants shall not operate to exclude or
suspend any other remedy of Lessor for breach of any of said covenants or for
the recovery of said rent or any advance of Lessor made thereon, and in the
event of the termination of this Lease as aforesaid, Lessee agrees to indemnify
and save harmless Lessor from any loss arising from such termination and
re-entry in pursuance thereof, and to that end Lessee agrees to pay Lessor,
after such termination and re-entry and upon demand, all reasonable expenses of
re-letting, including, without limiting the generality of the foregoing, the
reasonable costs of decorating and restoring the premises, brokers' commissions
and Lessor's attorneys' fees, plus, at the end of each month of the demised
term, the difference between the net income actually received by Lessor from
said demised premises during such month and the rent agreed to be paid by the
terms of this Lease during such month. In the event Lessor re-enters the demised
premises after the vacating thereof by Lessee, the Lessor shall make reasonable
efforts to re-lease the demised premises.
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LESSOR'S PERFORMANCE OF LESSEE'S COVENANTS
Section 2201. Should Lessee at any time fail to do any of the things
required to be done by it under the provisions of this Lease, Lessor, at its
option and after giving notice to Lessee pursuant to the provisions relating to
notice contained in Section 2101, may (but shall not be required to) do the same
or cause the same to be done, and the amounts paid by Lessor in connection
therewith shall be so much additional rent due on the next rent date after such
payment, together with interest at twelve (12%) percent per annum from the date
of payment. Should Lessor at any time fail to do any of the things required to
be done by it under the provisions of this Lease, Lessee, at its option and
pursuant to the provisions relating to notice contained in Section 2101, may
(but shall not be required to) do the same or cause the same to be done, and the
amounts paid by Lessee in connection therewith shall immediately be payable by
the Lessor to the Lessee, together with interest at twelve (12%) percent per
annum from the date of payment.
SUBORDINATION-NON-DISTURBANCE
Section 2301. This Lease shall be subject and subordinate to the
existing first mortgage on the demised premises held by NBD Bank, N.A., and any
substitute mortgage hereafter placed upon the demised premises provided that NBD
Bank N.A., and subsequent mortgagee agrees in writing with Lessee or adequate
provision is made in such mortgage, that, regardless of any default or breach
under such mortgage or of any possession or sale of the whole or any part of the
premises under or through such mortgage, that this Lease and Lessee's possession
shall not be disturbed by mortgagee or any other party claiming under or through
such mortgage; provided, however, that Lessee shall continue to observe and
perform Lessee's obligations under this Lease and pay rent to whomsoever may be
lawfully entitled to same from time to time. Lessee hereby agrees to execute, if
same is required, any and all instruments in writing which may be requested by
Lessor to subordinate Lessee's rights acquired by this Lease to the lien or any
such mortgage, all as aforesaid.
REMIEDIES TO BE CUMULATIVE
Section 2401. No remedy herein or otherwise confer-red upon or reserved
to Lessor shall be considered exclusive of any other remedy, but the same shall
be cumulative and shall be m addition to every other remedy given hereunder now
or hereafter existing at law or in equity or by statute, and every power and
remedy given by this Lease to Lessor may be exercised from time to time and as
often as occasion may arise or as may be deemed expedient. No delay or omission
of Lessor to exercise any right or power arising from any default shall impair
any such right or power or shall be construed to be a waiver of any such default
or an acquiescence therein.
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Section 2402. No waiver of any breach of any of the covenants of this
Lease shall be construed, taken or held to be a waiver of any other breach or
waiver, acquiescence in or consent to any further or succeeding breach of the
same covenant.
Section 2403. Neither the rights herein given to receive, collect, xxx
for or distrain for any rent or rents, moneys or payments, or to enforce the
terms, provisions an conditions of this Lease, or to prevent the breach or
non-observance thereof, or the exercise of any such right or of any other right
or remedy hereunder or otherwise granted or arising, shall in any way affect or
impair or toll the right or power of Lessor to declare the term hereby granted
ended, and to terminate this Lease as provided for in this Lease, because of any
default in or breach of the covenants, provisions or conditions of this Lease.
SURRENDER OF POSSESSION
Section 2501. Whenever the said term herein demised shall be
terminated, whether by lapse of time, forfeiture or in any other way, Lessee
agrees that it will at once surrender and deliver up said premises, including
the buildings and improvements thereon the fixtures and equipment belonging to
Lessor therein contained, peaceably to Lessor; and if Lessee shall thereafter
remain in possession thereof, it shall be deemed guilty of forcible detainer of
the premises under the statute and shall be subject to all the conditions and
provisions above named and to ejection and removal, forcibly and otherwise, with
or without process of law as above stated.
COVENANT OF QUIET ENJOYMENT
Section 2601. Lessor further agrees that at all times when Lessee is
not in default under the terms of and during the term of this Lease, Lessee's
quiet and peaceable enjoyment of the demised premises shall not be disturbed or
interfered with by Lessor or any person or entity.
SHORT FORM LEASE
Section 2701. This Lease shall not be recorded, but the parties agree,
at the request of either of them, to execute a Short Form Lease for recording,
containing the name of the parties, the legal description and the term of the
Lease.
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NOTICE OF DEMANDS
Section 2901. All notices to or demands upon Lessor or Lessee desired
or required to be given under any of the provisions hereof shall be in writing.
Any notices or demands from Lessor to Lessee shall be deemed to have been duly
and sufficiently given if a copy thereof has been personally served or mailed by
United States registered or certified mail in an envelope property stamped and
addressed to Lessee at 0000 X. Xxxxx Xxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxx, Attn:
XXXXX X. XXXXXX or at such other address as Lessee may theretofore have
furnished by written notice to Lessor, and any notice or demands from Lessee to
Lessor shall be deemed to have been duly and sufficiently given if mailed by
United States registered mail or certified mail in an envelope properly stamped
and addressed to Lessor at 000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxx, or such other address as Lessor may theretofore have furnished by
written notice to Lessee. The effective date of such notice shall be three (3)
business days after delivery of the same to the United States Post Office for
mailing.
COVENANTS RUN WITH LAND
Section 3001. All of the covenants, agreements, conditions, and
undertakings in this Lease contained shall extend and inure to and be binding
upon the heirs, personal representatives, successors and assigns of the
respective parties hereto, the same as if they were in every case specifically
named, and shall be construed as covenants running with the land, and wherever
in this lease reference is made to either of the parties hereto, it shall be
held to include and apply to wherever applicable, the heirs, personal
representatives, successors and assigns of such party. Nothing herein contained
shall be construed to grant or confer upon any person or persons, firm,
corporation or governmental authority, other than the parties hereto, their
heirs, personal representatives, successors and assigns, any right, claim or
privilege by virtue of any covenant, agreement, condition or undertaking in this
lease contained.
Section 3002. The term "Lessor" as used in this Lease, so far as
covenants or obligations on the part of Lessor are concerned, shall be limited
to mean and include only the owner or owners at the time in question of the fee
of the demised premises, and in the event of any transfer or transfers of the
title to such fee, Lessor herein named (and in case of any subsequent transfers
or conveyances, the then grantor) shall be automatically freed and relieved,
from and after the date of such transfer or conveyance, of all personal
liability as respects the performance of any covenants or obligations on the
part of Lessor contained in this Lease thereafter to be performed ( provided
Lessor is not in default at the time of such transfer); and provided that any
funds in the hands of such Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be turned over to the grantee,
and any amount then due and payable to Lessee by Lessor or the then grantor at
the time of such transfer, in which Lessee has an interest, shall be turned over
to grantee, and any amount then due and payable to Lessee by Lessor or the then
grantor under any provisions of this Lease shall be paid to Lessee.
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TIME OF ESSENCE
Section 3101. Time is of the essence of this Lease, and all provisions
herein relating thereto shall be strictly construed.
MISCELLANEOUS
Section 3201. The captions of this Lease are for convenience only and
are not to as defining or limiting in any way the scope or intent of the
provisions hereof.
Section 3202. If any term or provision of this Lease shall to any
extent be held invalid or unenforceable, the remaining terms and provisions of
this Lease shall not be affected thereby, but each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
Section 3203. This Lease shall be construed and enforced in accordance
with the laws of the state where the demised premises are located.
ALTERATIONS
Section 3301. Lessee shall not make any structural alterations to the
demised premises, or any non-structural alteration project, the cost of which is
Twenty-five Thousand dollars ($25,000.00) or more per project, without the
advance written consent of the Lessor,(which consent, in the case of any non-
structural alterations, shall not be unreasonably withheld or delayed) and
provided further that no such alteration shall be undertaken if the result would
be to materially affect the Lessor's future use of the premises for purposes
other than those engaged in by Lessee. The cost of all such alterations and all
responsibilities therefor shall be the Lessee's.
OPTION TO RENEW
Section 3401. Lessor hereby grants Lessee an option to renew this Lease
for one (1) additional term of two (2) years beginning on the day following the
conclusion of the original two (2) year term, on the following terms and
conditions:
Lessee must deliver to Lessor its written notice of exercise of this
option to renew on or before June 30, 2000, thereby providing Lessor with not
less than six (6) months advance notice of the Lessor's exercise of the option
to renew. Lessee may not either (i) give notice of its exercise of the option to
renew, or (ii) begin the renewal term, if Lessee is then in material default of
the terms of this Lease. During said option term, the rent shall be increased to
market rent at the time of expiration, as mutually agreed to by the Lessor and
Lessee.
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Except for the change in monthly rental as set forth above, all other
terms and conditions of the Lease shall continue unchanged during the renewal
term.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed on the day and year first above written by the duly authorized partners
of the Lessor, and by the duly authorized officers of the Lessee.
STATE-94 LIMITED PARTNERSIHP,
a Michigan limited partnership
______________________ By:/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxx, General Partner
Esperion Therapeutics, Inc. a Michigan
corporation
______________________ By:/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Its: PRES/CEO
--------------------------------------
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NBD Bank, N.A., hereby approves this Lease and agrees to be bound by
the terms of Section 2301 entitled "Subordination-Non-Disturbance."
NBD BANK, N.A.
______________________ By: _______________________________
Authorized Officer
18
EXHIBIT A
A Map (of the Property)
19
Second Amendment to the Lease
The Lease dated November 30, 1998 (Lease) by and between State-94 Limited
Partnership (Landlord) and Esperion Therapeutics, Inc. (Tenant), is hereby
amended as follows effective March 28, 2000:
Expansion Space:
Landlord hereby demises and leases to Tenant and Tenant hereby hires and lets
from Landlord an additional 6,413 square feet of office/research space, being a
portion of Suite 695 at 0000 X. Xxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxx, as more
particularly described in Exhibit B attached hereto and incorporated herein, and
improvements now located or to be erected thereon, subject to easements and
restrictions of record, which easements and restrictions do not interfere with
the use of the demised premises for the purposes described in the Lease (the
"Expansion Space"). The total leased premises not consist of 18,813 square feet.
The Lease term for the Expansion Space shall be effective March 28, 2000 (the
"Expansion Effective Date") and shall terminate with the Lease term.
Tenant agrees to accept the Expansion Space in "as is" condition per Section 303
of the Lease.
Term: The Lease is scheduled to expire on December 31, 2000. Tenant and Landlord
shall negotiate a Lease extension, if any, on or before October 1, 2000 and
Section 3401 of the Lease is hereby amended to delete the requirement for Tenant
to provide written notice of exercise of the option to renew.
Rent:
Effective April 1, 2000 Tenant shall pay to Landlord base monthly rent for the
premises including the Expansion Space in equal installments of Twenty-two
thousand nine hundred eighty-two and 00/100 ($22,982) Dollars payable in advance
on the first day of the month and continuing for the term of the Lease, except
for the first full month's rent which shall be payable upon execution by both
parties of this Second Amendment to Lease.
The prorated portion for the rent on the Expansion Space for the period of March
28, 2000 to March 31, 2000 is Seven hundred twenty-four and 00/100 ($724)
Dollars, payable upon execution by both parties of this Second Amendment to
Lease.
Increased Real Property Taxes and Operating Expenses: For the period commencing
with the Expansion Effective Date and ending on the Lease termination date,
Tenant shall pay its pro-rata share of taxes, utilities and operating expenses
in accordance with the Lease. For the purpose of this computation, the Tenant's
pro-rata share shall earn 14.98%.
Tenant shall reimburse Landlord for its share of utility costs per Section 601
of the Lease.
This Second Amendment to Lease, together with the Lease as amended to date, sets
forth the entire agreement between the parties with respect to the matters set
forth herein. There have been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to any rent
abatement, improvement allowance, leasehold improvements, or other work to the
premises, or any similar economic incentives that may have been provided Tenant
in connection with entering into the Lease, unless specifically set forth in
this Second Amendment to Lease or the Lease. Otherwise, all terms and conditions
of the Lease apply to the total premises including the Expansion Space.
Except as herein modified or amended, the provisions, conditions and terms of
the Lease shall remain unchanged and in full force and effect.
In the case of any inconsistency between the provisions of the Lease and this
Second Amendment to Lease, the provisions of this Second Amendment to Lease
shall govern and control.
Submission of this Second Amendment to Lease by Landlord is not an offer to
enter into this Second Amendment to Lease but rather is a solicitation for such
an offer by Tenant. Landlord shall not be bound by this Second Amendment to
Lease until Landlord has executed and delivered the same to Tenant.
Tenant hereby represents to Landlord that Tenant has dealt with no broker in
connection with this Second Amendment to Lease. Tenant agrees to indemnify and
hold Landlord, its members, principals, beneficiaries, partners, officers,
directors, employees, mortgagee(s) and agents, and the respective principals and
members of any such agents (collectively, the "Landlord Related Parties")
harmless from all claims of any brokers claiming to have represented Tenant in
connection with this Second Amendment to Lease. Landlord hereby represents to
Tenant that Landlord has dealt with no broker in connection with this Second
Amendment to Lease. Landlord agrees to indemnify and hold Tenant, its members,
principals, beneficiaries, partners, officers, directors, employees, and agents,
and the respective principals and members of any such agents (collectively, the
"Tenant Related Parties") harmless from all claims of any brokers claiming to
have represented Landlord in connection with this Second Amendment to Lease.
IN WITNESS WHEREOF, each party hereto executes this Second Amendment to Lease on
the date set forth below.
WITNESS/ATTEST:
LANDLORD:
State-94 Limited Partnership
A Michigan Limited Partnership
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------- ---------------------------------------
Xxxxxx X. Xxxxxxxx, General Partner
Date: 4/6/00
--------------------------------------
Esperion Therapeutics, Inc.
---------------------------------- A Delaware Corporation
By: /s/ [SIGNATURE ILLEGIBLE]
---------------------------------------
Its Vice President
-------------------------------
Date: 4-6-00
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