Exhibit 10.65
LEASE
BY AND BETWEEN
THE TRUSTEES UNDER THE WILL AND OF
THE ESTATE OF XXXXX XXXXXXXX, DECEASED,
LANDLORD
AND
ANTARES PHARMA, INC.,
TENANT
THE SUBMISSION OF THIS DOCUMENT FOR EXAMINATION,
NEGOTIATION AND SIGNATURE DOES NOT CONSTITUTE AN OPTION OR
OFFER TO LEASE SPACE AT THE PROPERTY. THIS DOCUMENT SHALL
NOT BE BINDING AND IN EFFECT UNTIL AT LEAST ONE COUNTERPART,
DULY EXECUTED BY ALL PARTIES, HAS BEEN DELIVERED TO
LANDLORD AND TENANT.
TABLE OF CONTENTS
Page
----
1. Premises...................................................................1
2. Term.......................................................................1
3. Base Rent..................................................................1
4. Security Deposit...........................................................1
5. Use........................................................................2
6. Operating Costs............................................................2
7. Landlord's Maintenance Responsibilities....................................4
8. Tenant's Maintenance Responsibilities......................................5
9. Parking....................................................................5
10. Alterations................................................................5
11. Signs/Window Coverings.....................................................6
12. Inspection.................................................................6
13. Utilities..................................................................6
14. Assignment and Subletting..................................................6
15. Fire and Casualty Damage...................................................8
16. Condemnation...............................................................9
17. Indemnification...........................................................10
18. Tenant's Insurance........................................................10
19. Landlord's Insurance......................................................10
20. Holding Over..............................................................11
21. Quiet Enjoyment...........................................................11
22. Events of Default.........................................................11
23. Remedies..................................................................11
24. Mortgages.................................................................13
25. Landlord's Default........................................................13
26. Mechanic's Liens..........................................................13
27. Personal Property Taxes...................................................13
28. Notices...................................................................14
29. Hazardous Substances......................................................14
30. Improvements..............................................................15
31. Miscellaneous.............................................................15
Exhibits
--------
Exhibit "A" -- Description of Premises
Exhibit "B" -- Description of Property
Exhibit "C" -- Rules and Regulations
Exhibit "D" -- Landlord's Work
Exhibit "E" -- Sign Criteria
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DATA SHEET
Landlord: The Trustees Under the Will and of The Estate of Xxxxx
Xxxxxxxx, Deceased, acting in their fiduciary and not in
their individual capacities
Landlord's Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tenant: Antares Pharma, Inc., a Minnesota corporation
Tenant's Address: 00000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Premises: That certain commercial space that consists of
approximately 9,258 rentable square feet that is
designated on Exhibit "A." The parties stipulate that the
Premises consists of 9,258 rentable square feet.
Building: That certain commercial building that is located at 00000
Xxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000.
Commencement Date: May 1, 2004
Termination Date: April 30, 2011
Base Rent: (a) For the period from the Commencement Date
through July 31, 2004, Base Rent shall be
abated.
(b) For the period from August 1, 2004 through
April 30, 2006, Tenant shall pay Base Rent at
an annual rate of $9.15 per rentable square
foot, which shall be payable by Tenant, in
advance, in monthly installments equal to
$7,059.23
(c) For the period from May 1, 2006 through the
April 30, 2008, Tenant shall pay Base Rent at
the annual rate of $9.60 per rentable square
foot, which Base Rent shall be payable, in
advance, in equal monthly installments of
$7,406.40.
(d) For the period from May 1, 2008 to April 30,
2010, Tenant shall pay Base Rent at the annual
rate of $9.85 per rentable square foot, which
Base Rent shall be payable, in advance, in
equal monthly installments of $7,599.28.
(e) For the period from May 1, 2010 to April 30,
2011, Tenant shall pay Base Rent at the annual
rate of $10.25 per
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rentable square foot, which Base Rent shall be
payable, in advance, in equal monthly
installments of $7,907.88.
Proportionate Share: Tenant's Proportionate Share shall be 30.94% which amount
is the percentage obtained by dividing the 9,258 rentable
square feet in the Premises by the 29,927 rentable square
feet in the Building.
Operating Costs: Tenant shall pay its Proportionate Share of Operating
Costs as provided in Paragraph 6 hereof.
Address for Notices: Landlord:
The Estate of Xxxxx Xxxxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Executive Vice President,
Real Estate Investment Management
Tenant:
Antares Pharma, Inc.
Attn: Controller
00000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
With a copy to:
Xxxxxxxx Xxxxxxxxx
Chief Financial Officer
Antares Pharma, Inc.
000 Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Manager's Address for The Estate of Xxxxx Xxxxxxxx
the payment of rent: CM 0000
Xx. Xxxx, XX 00000-0000
Security Deposit: $21,177.69, according to the terms and conditions of
Paragraph 4 hereof.
Permitted Uses: General office and warehouse purposes as provided in
Paragraph 5 hereof, including the design and prototyping
of various medical products.
Landlord's Broker: United Properties
0000 Xxxx 00/xx/ Xxxxxx
Xxxxxxxxxxx, XX 00000
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Attn: Mr. Xxxxx Xxxxx
Tenant's Broker: Equis Corporation
000 Xxxxx 0/xx/ Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxxxx
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LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT is entered into by and between Landlord and Tenant
effective as of the 19 day of February, 2004. Capitalized terms shall have the
same meaning as those contained on the Data Sheet. The provisions of the Data
Sheet are hereby incorporated by reference.
1. Premises. Landlord hereby demises and leases the leased premises
designated on the Data Sheet (the "Premises") to Tenant, and Tenant hereby rents
and takes the Premises from Landlord, subject to and with the benefit of the
terms, covenants, conditions and provisions of this Lease. Landlord shall
deliver possession of the Premises to Tenant on the Commencement Date in their
"as is" condition, subject to the provisions of Exhibit "D" attached hereto and
made a part hereof. The use by Tenant of the Premises shall include a
non-exclusive right of access over and use of the Common Area. The Premises are
located in a certain building (the "Building") that is identified on the Data
Sheet and that is situated on real property (the "Property") that is legally
described on Exhibit "B" attached hereto.
2. Term.
(a) "Commencement Date" shall refer to the date designated on the Data
Sheet. The term of this Lease (the "Lease Term") shall begin upon the
Commencement Date and shall continue until the Termination Date, as
that term is defined in the Data Sheet, unless sooner terminated as
herein set forth.
(b) Tenant shall be permitted to enter the Premises approximately thirty
(30) days prior to the Commencement Date to begin installing Tenant's
furniture, fixtures and equipment in accordance with the terms and
conditions of this subparagraph. Tenant shall not be required to pay
Base Rent or Tenant's Proportionate Share of Operating Costs or other
charges on account of such early occupancy. Tenant acknowledges and
agrees that its early possession of the Premises will be at Tenant's
risk, and that Landlord makes no warranty or representation concerning
the Premises' condition during the time of such early occupancy.
Tenant will take all reasonable efforts necessary to ensure that
Tenant's early occupancy does not interfere with the completion of the
Landlord's Work contemplated in Paragraph 30. Tenant acknowledges
that, except for the obligation to pay Base Rent and Tenant's
Proportionate Share of Operating Costs, Tenant's early possession of
the Premises shall comply in all respects with the terms and
conditions of this Lease.
(c) Notwithstanding any contrary provision herein, Tenant shall have the
option to terminate this Lease effective as of July 31, 2009 (the
"Termination Date") upon the following terms and conditions:
(i) Tenant must deliver written notice to Landlord (the "Tenant's
Termination Notice") of its intention to exercise this option
to terminate, which Tenant's Termination Notice shall be
delivered to Landlord on or before October 31, 2008.
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(ii) Tenant shall not be in default under the Lease as of the date
of Landlord's receipt of the Tenant's Termination Notice; and
(iii) The Tenant's Termination Notice shall be accompanied by a
payment to Landlord (the "Termination Fee") in an amount equal
to the sum of "Four Months' Gross Rent" plus Landlord's
"Unamortized Transaction Costs." As used herein, the phrase
"Four Months' Gross Rent" shall be defined as the product of
four multiplied by the total amount of Base Rent and Operating
Costs payable hereunder by Tenant for the month in which the
Termination Notice is delivered (as calculated based on the
then current budget of Operating Costs). For purposes hereof,
the phrase "Unamortized Transaction Costs" shall be defined as
the product of (i) the number of months remaining in the term
of the Lease as of the Termination Date, including the month in
which the Termination Date occurs, multiplied by (ii) the
monthly installment derived by amortizing the total "Landlord's
Transaction Costs" on a straight line basis over the total
number of full calendar months in the term of this Lease at an
annual interest rate of ten percent (10%). For purposes hereof,
the phrase "Landlord's Transaction Costs" shall collectively
refer to the total principal amount of the following costs
incurred by Landlord in the negotiation and performance of this
Lease: the "Landlord's Leasehold Contribution" (as defined in
Paragraph 30(a) hereof), plus all leasing commissions and all
attorneys' fees paid in connection with the negotiation and
drafting of this Lease. The Termination Fee shall be payable as
additional rent hereunder and shall be in addition to all Base
Rent, Operating Costs and all other charges payable by Tenant
under the Lease through the Termination Date. If not
theretofore provided, Landlord shall provide Tenant a summary
of Landlord's Transaction Costs within ten (10) business days
after receipt of a written request by Tenant; provided,
Landlord shall not be obligated to provide such a summary until
any punch list items have been completed and Landlord has had a
reasonable opportunity to reconcile all costs with its
contractor and such contractor's subcontractors.
(d) Tenant shall have the options to renew this Lease for one (1) three
(3) year period (the "Extension Term") upon the following terms and
conditions: (i) Tenant shall give Landlord written notice of its
election to exercise such option (an "Extension Notice") not later
than July 31, 2010; and (ii) Tenant shall not be in material or
monetary default under the Lease and the Lease shall be in full force
and effect on the date Tenant delivers such Extension Notice. If
Tenant timely and properly exercises the foregoing options, the
following terms and conditions shall also be applicable:
(i) In the event that Tenant delivers an Extension Notice, Tenant
shall pay Base Rent upon the Premises during the Extension Term
at a rate equal to the "Extension Market Rate." For purposes
hereof, the phrase "Extension Market Rate" shall be defined as
the rate of Base Rent for the Premises that a
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willing tenant would pay, and that a willing landlord would
accept, in arms-length bona-fide negotiations if the same were
being leased for the Extension Term to a single tenant "as-is"
and taking into consideration the following: all costs incurred
by Landlord in the negotiation of such extension, including any
brokerage fee payable by Landlord in connection therewith; the
size of the space in question and its utility for leasing to
other occupants conducting different uses; the quality, age and
location of the building; the concessions then generally being
offered in the market for comparable lease extensions
including, but not limited to, free rent and allowances; and
the financial resources of Tenant. Landlord shall, within
fifteen (15) days of the date of its receipt of the Extension
Notice, give Tenant written notice ("Landlord's Extension Rate
Notice") of Landlord's determination of the applicable
Extension Market Rate. If Tenant disagrees with Landlord's
determination of the Extension Market Rate, Tenant shall give
Landlord written notice of that disagreement (the "Tenant's
Dispute Notice") within fifteen (15) days of receipt of
Landlord's Extension Rate Notice, stating the amount which
Tenant believes the Extension Market Rate should be and the
basis for such belief, and Landlord and Tenant shall endeavor
in good faith to agree on the Extension Market Rate. If Tenant
does not deliver the Tenant's Dispute Notice to Landlord within
fifteen (15) days of receipt of Landlord's Extension Rate
Notice, Tenant shall be deemed to agree with Landlord's
determination of the Extension Market Rate. In the event of the
timely delivery of the Tenant's Dispute Notice and if Landlord
and Tenant have not agreed as to the Extension Market Rate
within forty-five (45) days after Tenant's receipt of
Landlord's Extension Rate Notice, either party may, within ten
(10) days of the expiration of said forty-five (45) day period,
deliver to the other party a written notice terminating the
negotiations, in which event, the extension option contemplated
by this Paragraph 2(d) shall be deemed waived and of no further
force or effect.
(ii) Other Provisions. Except as otherwise stated in this Paragraph
2(d), all terms and conditions of the Lease, including Tenant's
obligation to pay its share of Operating Costs and all other
items of additional rent, shall remain in full force and effect
during each year of the Extension Term, if any; provided,
Landlord shall have no obligation to construct, or contribute
to the cost of constructing, leasehold improvements during the
Extension Terms.
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3. Base Rent. Tenant shall pay to Landlord for the entire term hereof, a
fixed rent (herein called "Base Rent") in the amount set forth in the Data
Sheet. Base Rent shall be paid in monthly installments, in advance, on the first
day of each calendar month during the Lease Term. If the initial month of the
Lease Term is less than a full calendar month, Base Rent for such partial month
shall be prorated at the rate of one-thirtieth of the monthly Base Rent for each
day, payable in advance. Tenant shall make payment of said Base Rent, together
with payment of its Proportionate Share of Operating Costs and all other amounts
due to Landlord under this Lease, at the address designated in the Data Sheet,
or to such other party or address as Landlord may designate from time to time by
notice to Tenant, without demand and without deduction, set-off, counterclaim or
abatement, except as expressly provided herein. In the event of an early
termination of this Lease for any cause other than Tenant's default, any rent
paid in advance shall be prorated as of the date of such termination with the
portion properly allocated to the period following termination refunded to
Tenant upon such termination.
4. Security Deposit. Tenant shall deposit the amount, if any, designated
on the Data Sheet as the security deposit (the "Security Deposit") with Landlord
on the date of the full execution and delivery of this Lease, which shall be
held by Landlord, without interest, as security for the performance of Tenant's
covenants and obligations under this Lease, it being expressly understood and
agreed that the Security Deposit is not an advance rental deposit or a measure
of Landlord's damages in case of Tenant's default. Upon the occurrence of any
Event of Default by Tenant, Landlord may, from time to time, without prejudice
to any other remedy provided herein or provided by law, apply all or any portion
of the Security Deposit to any arrears of rent or other payments due Landlord
hereunder, and any other damage, injury, expense or liability caused by such
Event of Default without waiving such default; and Tenant shall pay to Landlord
on demand the amount so applied in order to restore the Security Deposit to its
original amount. Any remaining principal balance of the Security Deposit shall
be returned by Landlord to Tenant at such time after termination of this Lease
that all of Tenant's obligations under this Lease have been fulfilled.
Notwithstanding the foregoing, subject to the condition that there has been no
Event of Default by Tenant with respect to Tenant's obligations to pay Base Rent
and additional rent under this Lease through the date of the expiration of the
eighteenth (18/th/) calendar month of the Lease Term (i.e. October 31, 2005),
then, upon the expiration of the eighteenth (18/th/) calendar month of the Lease
Term, Tenant's obligation to maintain the Security Deposit shall be reduced by
an amount equal to Fourteen Thousand One Hundred Eighteen and 46/100ths Dollars
($14,118.46) (the "Reduction Amount"). Provided the foregoing condition is
satisfied, Landlord shall, on or before the last day of the nineteenth (19/th/)
calendar month (i.e. November 30, 2005), pay to Tenant the Reduction Amount.
Notwithstanding the foregoing, the remaining principal balance of the Security
Deposit shall remain in place throughout the remainder of the term of this
Lease.
5. Use. The Premises shall be used only for general office and warehouse
purposes, including the design and prototyping of various medical products, for
such other uses as may be designated on the Data Sheet and only for such other
lawful purposes as may be incidental thereto. Outside storage including, without
limitation, storage trucks and other vehicles, outside garbage containers and
outdoor furniture are prohibited. Tenant shall be obligated to keep the area
surrounding the garbage dumpster free from trash and debris and in a clean and
sanitary condition. Tenant shall comply with all governmental laws, ordinances
and regulations applicable to the use of the Premises, and shall promptly comply
with all governmental orders and directives for the correction, prevention and
abatement of any nuisance in, upon, or
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connected with, the Premises, all at Tenant's sole expense; provided, however,
Landlord shall, subject to Section 6 hereof, be responsible for complying with
any governmental laws, ordinances, regulations, orders, or directives requiring
physical alterations to the Building or Premises (unless such alterations are
required as a consequence of Tenant's specific use of the Premises or Building,
in which event Tenant shall be solely responsible for all costs of compliance).
Tenant shall not permit any objectionable odors, smoke, dust, gas, noise, or
vibrations to emanate from the Premises, nor take any other action that may
constitute a nuisance or may disturb or endanger any other tenants of the
Building or neighboring buildings, or unreasonably interfere with any other
tenant's use of its premises. Tenant will not permit the Premises to be used for
any purpose or in any manner, including, without limitation, the storage or
parking of automobiles or trailers, nor any method of storage that would render
the insurance on the Building or the Property void or the insured risks more
hazardous. If any increase in the fire and extended coverage insurance premiums
paid by Landlord for the Property is caused by Tenant's use and occupancy of the
Premises, then Tenant shall pay to Landlord as additional rent the amount of
such increase.
6. Operating Costs.
(a) Tenant shall pay to Landlord, as additional rent during the Lease
Term, Tenant's Proportionate Share of Operating Costs as provided
herein. As used in this Lease, the term "Operating Costs" shall mean
any and all expenses, costs and disbursements which Landlord incurs in
connection with the management, maintenance, operation and repair of
the Building or the Property or any improvements situated on the
Property including, without limitation, the following:
(i) the costs of maintaining and repairing parking lots, parking
structures and easements;
(ii) property management fees, including expenses reimbursable to
any manager, maintenance salaries, fringe benefits and related
costs, which for persons also working on properties other than
the Property shall be allocated on the basis of the time spent
working on the Property;
(iii) the cost of insurance coverages obtained by Landlord;
(iv) heating and air conditioning costs for Common Areas (if any);
(v) electricity and other utility cost;
(vi) the costs of routine repairs and maintenance for the Building,
landscape maintenance, snow removal;
(vii) Taxes (as defined in Paragraph 6(e)hereof) , and costs and
expenses incurred by Landlord in protesting any assessments,
levies or the Taxes which Landlord shall pay or become
obligated to pay in respect of a calendar year;
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(viii) the Building's pro rata share (as reasonably determined by
Landlord) of the cost of operating, maintaining and repairing
any areas, facilities or easements which are common to the
Building and any other properties or buildings sharing common
facilities with the Building (such as, but not limited to, snow
plowing, landscaping, Common Area and street lighting,
insurance, taxes, security and management); and
(ix) depreciation or amortization of the cost of capital
improvements made subsequent to the date of this Lease that are
(A) made to reduce Operating Costs or limit increases therein,
(B) required by Landlord's insurance carrier subsequent to the
date of this Lease, or (C) required subsequent to the date of
this Lease by any applicable law, rule, regulation or order of
any governmental or quasi-governmental authority having
jurisdiction; provided, any such amortization or depreciation
shall be calculated based on the useful life of such
improvement and shall utilize a rate of interest that is not in
excess of two percent over the prime rate of interest publicly
announced by U.S. Bank National Association as being available
to its best corporate customers as of the date of the
completion of such improvements or installation.
(b) Notwithstanding anything contained in this Lease, "Operating Costs"
shall not include the following:
(i) costs of alterations of tenants' premises;
(ii) costs of capital improvements and costs of curing construction
defects that are not specifically permitted in the foregoing
definition of Operating Costs (except that periodic
resurfacings, restripings and seal coating of the parking lot
(as distinguished from replacements of the parking lot) shall
be included in Operating Costs, but amortized over the useful
life thereof);
(iii) interest and principal payments on mortgages, and other debt
costs;
(iv) real estate brokers' leasing commissions and costs of
marketing;
(v) attorneys' fees, costs and disbursements and other expenses
incurred by Landlord in negotiation and enforcement of other
leases for the Property;
(vi) any cost or expenditure (or portion thereof) for which Landlord
is reimbursed, whether by insurance proceeds or otherwise;
(vii) wages, salaries or other compensation paid to executive
employees of Landlord or of Landlord's property manager;
(viii) costs associated with the operation of the business of the
entity which constitutes Landlord, which costs are not directly
related to maintaining or operating the Building or Property
(by way of example, the formation of the entity, internal
accounting and legal matters, including but not limited
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to preparation of tax returns and financial statements and
gathering of data therefor, costs of defending any lawsuits
related to maintaining or operating the Building or Property,
costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Building or
Property, and costs of any disputes between Landlord and its
employees);
(ix) any expense representing an amount paid for products or
services (other than overall property management) to a person
or entity relating to or affiliated with Landlord which is in
excess of the fair market value of such services and products;
(x) fees incurred in disputes with tenants;
(x) costs resulting from the negligence of Landlord or its agents
and employees;
(xii) costs of remediation of Hazardous Materials which are (A)
in or on the Building or Property as of the date of this Lease
and which are classified as Hazardous Materials as of the date
of this Lease under laws in effect as of the date of this
Lease, or (B) which are subsequently brought onto the Building
or Property by Landlord or with the express consent of Landlord
and which are on the date of their introduction onto the
Building or Property classified as Hazardous Materials under
laws in effect as of the date of such introduction, excluding
in the case of both (A) and (B) above, lawful use and
disposition of reasonable quantities of supplies used in the
ordinary course of operation and maintenance of like buildings
and property; and
(xiii) special assessments attributable to the initial
construction of the Building.
(c) Calculation of Proportionate Share. Promptly after the Commencement
Date and during December of each year or as soon thereafter as
practicable, Landlord shall give Tenant written notice of its estimate
of Tenant's Proportionate Share of Operating Costs for the ensuing
calendar year. On or before the first day of each month thereafter,
Tenant shall pay to Landlord as additional rent one-twelfth (1/12th)
of such estimated amounts, provided that if such notice is not given
in December, Tenant shall continue to pay on the basis of the prior
year's estimate until the first day of the month after the month in
which such notice is given. If at any time it appears to Landlord that
the actual amount of Tenant's Proportionate Share of Operating Costs
for the then current calendar year will vary from Landlord's estimate
by more than five percent (5%), Landlord may, by written notice to
Tenant, revise its estimate for such year, and subsequent payments by
Tenant for such year shall be based upon such revised estimate. Within
ninety (90) days after the close of each calendar year or as soon
thereafter as practicable, Landlord shall deliver to Tenant a summary
of the total Operating Costs for the previous calendar year and
Tenant's Proportionate Share thereof. If such summary shows an amount
due from Tenant that is less than the estimated payments previously
paid by Tenant, Landlord shall pay the amount of such
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excess to Tenant or apply the difference as a credit against the
installment payments of Tenant's Proportionate Share of Operating
Costs that next become due(except with respect to the last year of the
Lease Term). If such summary shows an amount due from Tenant that is
more than the estimated payments previously paid by Tenant, Tenant
shall pay the deficiency to Landlord, as additional rent, within
thirty (30) days after delivery of the summary.
(d) Books and Records. Tenant shall have the right to examine Landlord's
books and records of Operating Costs during normal business hours
within ninety (90) days following the furnishing of the summary to
Tenant. Unless Tenant takes written exception to any item within
ninety (90) days following the furnishing of the summary to Tenant
(which item shall be paid in any event), such summary shall be deemed
final and accepted by Tenant. If any audit provided for herein shall
disclose an overpayment by Tenant of the Operating Costs in any
calendar year (as calculated after the completion of any year-end
reconciliation by Landlord for such year) that is in excess of five
percent (5%) of the amount actually payable by Tenant for such year,
Landlord shall promptly pay to Tenant the reasonable cost of said
audit. If Landlord, in its sole discretion, selects the accrual
accounting method rather than the cash accounting method for some
operating expense purposes, such Operating Costs shall be deemed to
have been paid when such expenses have accrued.
(e) Taxes. "Taxes" shall mean the aggregate of the real estate taxes,
assessments and other governmental charges, general and special
(including, without limitation, assessments for public improvements or
benefits and interest on unpaid installments thereof) which may be
levied or assessed against, or become liens upon, the Property, or
which arise out of the use, occupancy or possession thereof; provided,
the term "Taxes" shall not include inheritance, estate, succession,
transfer, gift, franchise, corporation, income or profit taxes imposed
upon Landlord, nor interest or penalties imposed upon Landlord for
Landlord's delinquent payment of Taxes. In the event the Taxes on the
Property are not separately assessed, Landlord shall make an equitable
allocation of the Taxes between the Property and any other parcel
included in such assessment. Landlord agrees to pay before they become
delinquent all Taxes lawfully due and payable with respect to the
Building and the Property; provided, Landlord may, at its sole
discretion, pay any special assessments in installments when allowed
by law, in which case each installment included in Taxes shall include
any interest charged. If Landlord elects not to pay any such special
assessments in installments, Taxes in any year shall nonetheless
include only such amounts as would have been included had Landlord
elected to pay such special assessments in installments over the
longest period available, including interest thereon. If at any time
during the term of this Lease the present method of taxation shall be
changed so that in lieu of the whole or any part of any Taxes there
shall be levied, assessed or imposed on Landlord a capital levy or
other tax directly on the rents received therefrom and/or a franchise
tax, assessment, levy or charge measured by or based, in whole or in
part, upon such rents for the present, or any future, building or
buildings on the Property, then all such taxes, assessments, levies or
charges, or the part thereof so measured or based, shall be deemed to
be included within the
8
term Taxes for the purposes of this Lease. Landlord shall appeal the
assessment of the Property when Landlord deems it appropriate and
Tenant shall not prosecute an appeal of the assessment of the Building
without Landlord's prior written consent.
7. Landlord's Maintenance Responsibilities. Landlord shall maintain in
good repair, reasonable wear and tear and casualty excepted, all parts of the
Common Area, the exterior of the Building and all structural elements of the
Building, including footings, foundation, walls, downspouts, gutters, and roof,
and shall promptly make all necessary repairs and replacements, whether ordinary
or extraordinary, structural or nonstructural. Landlord shall also make all
necessary repairs to the portions of the Building systems (plumbing, sewage,
heating, air conditioning and electrical) providing service jointly to the
Premises and other portions of the Building. Tenant shall be responsible for all
other portions of the Building systems serving the Premises. "Common Area" shall
refer to all areas designed and designated by Landlord for common use or
benefit, including but not by way of limitation, parking lots, landscaped and
vacant areas, passages for trucks and automobiles, roads, walks, curbs and
corridors. The Common Area shall not include commercial areas intended for
renting as the same shall exist from time to time, or roads within the outer
property limits, while maintained by public authority. The Common Area and/or
the Building may be expanded, contracted or changed by Landlord from time to
time as deemed desirable by Landlord in its sole discretion; provided, such
changes shall not materially impair the utility of the Premises for the conduct
of Tenant's intended use. With respect to the Common Area, Landlord shall
regularly mow any grass, remove weeds and perform general landscape maintenance,
and maintain and repair the parking lot and driveway areas, keeping the same
free from an unreasonable accumulation of ice and snow. Tenant shall immediately
give Landlord written notice of any defect or need for such repairs, and after
receipt of such written notice from Tenant, Landlord shall have a reasonable
opportunity to repair the same or cure such defect. The term "walls" as used in
this Paragraph shall not include windows, glass or plate glass, doors, special
storefronts or office entries.
8. Tenant's Maintenance Responsibilities. Tenant shall, at its own cost
and expense, keep and maintain all parts of the Premises in good condition,
reasonable wear and tear and casualty excepted, and shall promptly make all
necessary repairs and replacements, including, but not limited to, windows,
glass and plate glass, doors, any special entry, interior walls and finish work,
floors and floor coverings, water heaters, dock boards, truck doors, dock
bumpers, termite and pest extermination, regular removal of trash and debris and
keeping the whole of the Premises in a clean and sanitary condition.
Notwithstanding the foregoing, Tenant shall not be obligated to repair any
damage caused by fire, tornado or other casualty or occurrence to the extent
that such damage is covered by the insurance maintained by Landlord. Tenant
shall, at its own cost and expense, maintain and repair the heating and air
conditioning systems that exclusively serve the Premises ("HVAC System") and
Tenant shall enter into a regularly scheduled (at least quarterly) preventive
maintenance/service contract with a maintenance contractor for servicing all
heating and air conditioning systems and equipment serving the Premises. The
maintenance contractor must be approved by Landlord in advance, which approval
shall not be unreasonably withheld. The service contract must include all
services suggested by the equipment manufacturer in the operation/maintenance
manual, including, without limitation, replacement of parts as they become worn
or damaged and must become effective (and a copy thereof delivered to Landlord)
within thirty (30) days of the date Tenant takes possession of the Premises.
Landlord warrants that, as of the Commencement Date, the
9
HVAC Systems servicing the Premises shall be in good working order and that it
will be responsible for the cost of repairing or replacing any HVAC Systems that
are not functioning properly as of the Commencement Date. Notwithstanding the
foregoing, if Landlord reasonably determines that any existing HVAC System that
is more than ten (10) years old as of the Commencement Date requires replacement
during the Term of the Lease, Landlord shall pay the costs of such replacement;
provided, however, Tenant shall, at its sole cost and expense, replace any HVAC
System requiring replacement if: (a) the HVAC System is less than ten (10) years
old on the Commencement Date; (b) the replacement is required as a result of
misuse or abuse of the HVAC System by Tenant; or (c) Tenant has not caused
regularly scheduled maintenance to be performed on the HVAC System in accordance
with the terms and conditions of this Paragraph 8.
9. Parking. Tenant shall have the nonexclusive right to use, in common
with the other tenants occupying the Building, common parking areas, driveways
and alleys adjacent to the Building, subject to such reasonable rules and
regulations as Landlord may from time to time prescribe. Landlord shall provide
parking for occupants of the Building that is sufficient to satisfy all
applicable codes and ordinances. Landlord represents that the number of surface
parking stalls upon the property is at least sufficient to satisfy a ratio of 4
stalls per 1,000 square feet of rentable space in the Building and agrees that
Tenant shall have the non-exclusive right to use of the entirety of said stalls
during the term hereof.
10. Alterations. Tenant shall not make any alterations, additions, or
improvements to the Premises (including, but not limited to, roof and wall
penetrations), without the prior written consent of Landlord, which consent
shall not be unreasonably withheld. Tenant may, without the consent of Landlord,
but at its own cost and expense and in a good workmanlike manner, erect such
shelves, bins, machinery and trade fixtures as it may deem advisable, without
altering the basic character of the Premises or Building and without overloading
or damaging the Premises or Building, and, in each case, complying with all
applicable governmental laws, ordinances, regulations and other requirements.
Prior to commencing any such alterations, additions or improvements, Tenant
shall provide such assurance to Landlord, as Landlord shall reasonably require,
to protect Landlord against any loss from mechanics' or other liens. All
alterations, additions, improvements and partitions erected by Tenant (other
than movable furniture, furnishings, trade fixtures and the personal property of
Tenant, including a demountable clean room), shall become the property of
Landlord as of the date of the expiration or earlier termination of this Lease
and shall be delivered to Landlord with the Premises; provided, however, that if
Landlord so elects, such alterations, additions, improvements and partitions
shall be removed by Tenant and Tenant shall restore the Premises to its original
condition by the date of termination of this Lease, reasonable wear and tear and
damage by casualty excepted. All such removals and restoration (including the
patching of holes in the wall or floor left by the removal of Tenant's
improvements or property) shall be accomplished in a good and workmanlike manner
and shall not damage the primary structure or structural elements of the
Building.
11. Signs/Window Coverings. Tenant shall not, without the prior written
consent of Landlord, install or affix any window coverings, blinds, draperies,
signs, window or door lettering or advertising media of any type. Landlord's
consent to Tenant's proposed signage shall not be unreasonably withheld provided
such signage complies with the sign criteria attached hereto as Exhibit "E."
Tenant shall obtain all necessary permits for its signage. Any
10
signs or window coverings permitted by Landlord shall be installed by Tenant or
Tenant's contractor, paid for by Tenant, shall comply with all signage criteria
as established by Landlord for the Building from time to time, and shall be
subject to all applicable governmental laws, ordinances, regulations and other
requirements. Tenant shall remove any permitted signs and window coverings upon
the expiration or earlier termination of this Lease. Any such installations and
removals shall be made in such manner as to avoid injury or defacement of the
Building and Tenant shall repair any such injury or defacement, including,
without limitation, discoloration, caused by such installation and/or removal.
12. Inspection. Landlord and Landlord's agents and representatives shall
have the right to enter and inspect the Premises with reasonable prior notice at
any reasonable time for the purpose of ascertaining the condition of the
Premises, to make such repairs as may be required or permitted to be made by
Landlord under the terms of this Lease or for any other reasonable purpose.
Landlord shall have the right to enter the Premises at any reasonable time with
reasonable prior notice during the last year of the Lease Term, for the purpose
of showing the Premises to prospective tenants and shall have the right to erect
on the Premises a suitable sign indicating the Premises are available. Landlord
shall use reasonable efforts not to unreasonably interfere with the conduct of
Tenant's business. Tenant shall participate in a meeting with Landlord for a
joint inspection of the Premises prior to vacating. In the event of Tenant's
failure to attend such joint inspection, Landlord's inspection at or after
Tenant's vacating the Premises shall be presumptively deemed correct for
purposes of determining Tenant's responsibility for repairs and restoration.
13. Utilities. Tenant shall pay for all water, gas, heat, light, power,
telephone, sewer and sprinkler charges and other utilities and services provided
to the Premises, together with any taxes, penalties, surcharges or the like
pertaining thereto, and Tenant shall furnish and install all replacement
electric light bulbs and tubes. In the event that such services are not
separately metered, Tenant's responsibility therefore shall be reasonably
estimated by Landlord. In no event shall Landlord be liable for any interruption
or failure of utility services on the Premises.
14. Assignment and Subletting.
(a) Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises, whether voluntarily or
by operation of law, or permit the use or occupancy of the Premises by
anyone other than Tenant, without the prior written consent of
Landlord. Landlord's consent shall not be unreasonably withheld;
provided, in addition to any other grounds for denial, Landlord's
consent shall be deemed reasonably withheld if, in Landlord's good
faith judgment: (i) the proposed assignee or subtenant does not have
the financial strength to perform its obligations under this Lease or
any proposed sublease; (ii) the business and operations of the
proposed assignee or subtenant are not comparable to the business and
operations being conducted by other tenants in the Building; (iii) the
proposed assignee or subtenant intends to use any part of the Premises
for a purpose not permitted under this Lease; (iv) either the proposed
assignee or subtenant, or any person which directly or indirectly
controls, is controlled by, or is under common control with the
proposed assignee or subtenant, occupies space in the Building, or is
negotiating with Landlord to lease space in the Building; (v) the
proposed assignee or subtenant is disreputable;
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(vi) the use of the Premises or the Building by the proposed assignee
or subtenant would, in Landlord's reasonable judgment, significantly
increase the vehicular traffic in and out of the Property or would
require any alterations to the Building to comply with applicable
laws; or (vii) the proposed assignee or subtenant fails to execute an
assumption and attornment agreement with Landlord that is reasonable
in form.
(b) Notwithstanding anything contained herein to the contrary, Tenant may,
with fifteen (15) days' notice, but without the necessity of the
consent of Landlord, at any time assign or otherwise transfer this
Lease or any portion thereof to any of the following (each of which
being defined herein as "Permitted Assignee"): to any parent,
subsidiary or affiliate corporation or entity of Tenant; any
corporation resulting from the consolidation or merger of Tenant into
or with any other entity; or any person, firm, entity or corporation
acquiring a majority of Tenant's issued and outstanding capital stock
or all or substantially all of Tenant's assets or of the business
conducted at the Premises; provided, that the following conditions are
satisfied: (i) the successor or transferee shall assume those
obligations of the Tenant hereunder that arise from and after the date
of such transfer by a written assumption agreement delivered to, and
directly enforceable by, Landlord; and (ii) Tenant shall not be
released from any present or future obligation under the Lease. As
used herein, the expression "affiliate corporation or entity" means a
person or business entity, corporate or otherwise, that directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under control with Tenant. The word "control"
means the right and power, direct or indirect, to direct or cause the
direction of the management and policies of a business entity,
corporation or otherwise. Tenant shall furnish to Landlord
documentation sufficient to verify permitted transfers.
(c) Notwithstanding any permitted assignment or subletting, Tenant shall
at all times remain directly, primarily and fully responsible and
liable for the payment of the rent herein specified and for compliance
with all of its other obligations under the terms, provisions and
covenants of this Lease throughout the Lease Term. Upon the occurrence
of an Event of Default (as hereinafter defined), if the Premises, or
any part thereof, are then assigned or sublet, Landlord, in addition
to any other remedies herein provided or provided by law, may, at its
option, collect directly from such assignee or subtenant rents due and
becoming due to Tenant under such assignment or sublease and apply
such rent against any sums due to Landlord from Tenant hereunder, and
no such collection shall be construed to constitute a novation or
release of Tenant from the further performance of Tenant's obligations
hereunder.
(d) Notice to Landlord. In the event Tenant desires to sublet the
Premises, or any portion thereof, or assign this Lease, Tenant shall
give written notice thereof to Landlord within fifteen (15) days prior
to the proposed commencement date of such subletting or assignment,
which notice shall set forth the name of the proposed subtenant or
assignee, all relevant terms of any sublease or assignment and copies
of financial reports and other relevant financial information of the
proposed subtenant or assignee.
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(e) Sublease Rent. If Landlord grants its consent to any sublease or
assignment, Tenant shall pay Landlord, as additional Base Rent, the
entirety of any difference between the total amount of all rent
(together with any escalation) payable to Tenant under the sublease or
assignment minus the total amount of Rent payable hereunder on a
monthly basis and not as a one-time payment. The amount paid to
Landlord shall take into consideration any costs reasonably increased
by Tenant in the negotiation and performance of the sublease or
assignment, which costs shall be amortized over the term thereof on a
straight line basis at Tenant's cost of funds and deducted from any
such excess rent, and which costs may include, without limitation,
leasing commissions, attorneys' fees, tenant improvement allowances,
cabling allowances and free rent. If Landlord grants its consent to
any sublease or assignment pursuant to the foregoing provisions of
this Section 14, Tenant shall pay all attorney's fees of Landlord
reasonably incurred with respect to such assignment or sublease, not
to exceed $2,000.00. In addition, if Tenant has any options to extend
the term of this Lease, such options shall not be available to any
subtenant or assignee, directly or indirectly.
(f) Recapture. In addition to, but not in limitation of, Landlord's right
to approve any subtenant or assignee that is not a Permitted Assignee,
Landlord shall have the option, in its sole discretion, in the event
of any such proposed subletting or assignment, to terminate this
Lease, or in the case of a proposed subletting of less than the entire
Premises, to recapture the portion of the Premises to be sublet, as of
the date the subletting or assignment is to be effective. The option
shall be exercised, if at all, by Landlord giving Tenant written
notice thereof within thirty (30) days following Landlord's receipt of
Tenant's written notice as required above. If this Lease shall be
terminated with respect to the entire Premises pursuant to this
subparagraph, the Lease Term shall end on the date stated in Tenant's
notice as the effective date of the sublease or assignment as if that
date had been originally fixed in this Lease for the expiration of the
Lease Term. If Landlord recaptures only a portion of the Premises
under this subparagraph, the Base Rent and additional rent payable
during the unexpired term shall xxxxx proportionally based on the rent
contained in this Lease as of the date immediately prior to such
recapture.
15. Fire and Casualty Damage.
(a) If the Building or Premises are rendered partially or wholly
untenantable by fire or other casualty, and if such damage cannot be
materially restored within one hundred eighty (180) days of such
damage, as such date of material restoration is estimated in good
faith by a reputable general contractor promptly selected by Landlord
and approved by Tenant, then Landlord or Tenant may terminate this
Lease as of the date of such fire or other casualty. Either party
shall exercise its option provided herein by written notice to the
other within sixty (60) days of such fire or other casualty. For
purposes hereof, the Building or Premises shall be deemed "materially
restored" if they are in such condition as would not prevent or
materially interfere with Tenant's use of the Premises for the
purposes for which it was then being used.
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(b) If this Lease is not terminated pursuant to Paragraph 15(a), then
Landlord shall proceed with all due diligence to repair and restore
the Building or Premises, as the case may be.
(c) If this Lease shall be terminated pursuant to this Paragraph 15, the
term of this Lease shall end on the date of such damage as if that
date had been originally fixed in this Lease for the expiration of the
Lease Term. If this Lease shall not be terminated by Tenant or
Landlord pursuant to this Paragraph 15, and if the Premises are
untenantable in whole or in part following such damage, the Rent
payable during the period in which the Premises are untenantable shall
be reduced to the extent of such untenantability until the repairs are
substantially completed. In the event that Landlord should fail to
complete such repairs and material restoration within one hundred
eighty (180) days after the date of such damage, Tenant may, at its
option and as its sole remedy, terminate this Lease by delivering
written notice to Landlord, whereupon the Lease shall end on the date
of such notice as if the date of such notice were the date originally
fixed in this Lease for the expiration of the Lease Term; provided,
however, that if construction is delayed because of changes, deletions
or additions in construction requested by Tenant, strikes, lockouts,
casualties, acts of God, war, material or labor shortages,
governmental regulation or control, or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or
rebuilding shall be extended for the amount of time Landlord is so
delayed.
(d) In no event shall Landlord be required to rebuild, repair or replace
any part of the equipment, racking, shelving, partitions, fixtures,
additions or other personal property or improvements which may have
been placed in or about the Premises by Tenant. Any insurance which
may be carried by Landlord or Tenant against loss or damage to the
Building or Premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
(e) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage covering the
Premises, Building or Property requires that any insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to
terminate this Lease by delivering written notice of termination to
Tenant within fifteen (15) days after such requirement is made by any
such holder, whereupon the Lease shall end on the date of such damage
as if the date of such damage were the date originally fixed in this
Lease for the expiration of the Lease Term.
(f) In the event of any damage or destruction to the Building or the
Premises by fire or other casualty, or in the event of termination as
a consequence of condemnation as contemplated in Paragraph 16 hereof,
Tenant shall, upon notice from Landlord, remove with all due
diligence, at its sole cost and expense, the property belonging to
Tenant from such portion of the Building as Landlord shall request.
(g) Notwithstanding any contrary provision herein, Tenant hereby waives
any claims against Landlord relating to, and Landlord shall not be
liable to Tenant for, any
14
damage to any equipment, inventory, tenant fixture or other personal
property situated in the Premises or in, on or about the Property due
to any condition, design or defect in the Building or leakage of the
roof, windows and pipes, or of damage from gas, oil, water, steam,
smoke or electricity, or due to any other cause whatsoever, including
Landlord's negligence, and Tenant assumes all risks of damage to such
property; provided, the waiver and assumption contemplated by this
sentence shall apply only to the extent covered by insurance in place
or required to be maintained by the terms of this Lease. Landlord
hereby waives any claims against Tenant relating to, and Tenant shall
not be liable to Landlord for, any damage to any property occurring
in, on or about the Property due to any reason, including Tenant's
negligence, and Landlord assumes all risks of damage to such property;
provided, the waiver and assumption contemplated by this sentence
shall apply only to the extent any such damage is covered by insurance
in place or required to be maintained by the terms of this Lease.
16. Condemnation.
(a) If the whole or any substantial part of the Building, Property or
Premises should be taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, this Lease shall
terminate effective when the condemning authority acquires possession
in the same manner as if the date of such taking were the date
originally fixed in this Lease for the expiration of the Lease Term.
As used herein, a taking of the whole or any substantial part of the
Building, Property or Premises shall mean a taking of such portion of
the Building, Property or Premises as would prevent or materially
interfere with the use of the Building, Property or Premises for the
purpose for which they are then being used. Any dispute between the
parties as to whether any particular taking constitutes a taking of
the whole or any substantial part of the Building, Property or
Premises shall be determined by arbitration in accordance with the
rules of the American Arbitration Association as then in effect and
any determination therein shall be final and binding on the Landlord
and Tenant.
(b) If part of the Building, Property or Premises shall be taken by right
of eminent domain, or by private purchase in lieu thereof, and this
Lease is not terminated as provided in Paragraph 16(a) above, this
Lease shall not terminate but the Rent payable hereunder during the
unexpired portion of this Lease shall be permanently reduced by the
proportionate area of the Premises permanently taken and temporarily
reduced to the extent Tenant's use is temporarily reduced or limited.
At such time as the restoration with respect to any temporary
reduction in use is completed, the rent abatement with respect thereto
shall cease. In such event, Landlord shall undertake to restore the
Building, Property and Premises to a condition suitable for Tenant's
use, as near to the condition thereof immediately prior to the taking
of such improvements as is reasonably feasible under all the
circumstances.
(c) Upon any such taking or purchase, Landlord shall be entitled to
receive and retain the entire award or consideration for the affected
lands and improvements, subject
15
to the rights of the holder of any mortgage of Landlord's interest in
the Property or the Building, and Tenant shall not have nor advance
any claims against Landlord or the condemning authority for the value
of its property or its leasehold estate or the unexpired Lease Term,
or business interruption expense or any other damages arising out of
such taking or purchase; provided, the foregoing shall not be
construed to preclude Tenant from seeking and recovering on its own
account from the condemning authority any separate award or
compensation attributable solely to the taking or purchase of Tenant's
chattels or trade fixtures or attributable to Tenant's relocation
expenses or loss of business provided that any such separate claim by
Tenant shall not reduce or adversely affect the amount of Landlord's
award. If any such award made or compensation paid to either party
specifically includes an award or amount for the other, the party
first receiving the same shall promptly account therefor to the other.
17. Indemnification. Subject to the waiver of claims set forth in
Paragraph 15(g) hereof, Tenant shall indemnify Landlord from and against any and
all demands and liabilities arising from or relating to injury or loss of life
to persons or damage to or loss of property to the extent occurring in the
Premises or arising from Tenant's negligence or intentional misconduct;
provided, Tenant's obligation to indemnify Landlord for injury or damage
occurring in the Premises from causes other than Tenant's negligence or
intentional acts shall be limited to the extent of insurance proceeds, if any,
available pursuant to the terms of policies of liability insurance maintained by
Tenant or required to be maintained by Tenant by the terms of this Lease.
Subject to the provisions of Paragraph 15(g) hereof and to the foregoing
sentence, Landlord shall indemnify Tenant from and against any and all demands
and liabilities for or relating to injury or loss of life to persons or damage
to or loss of property to the extent occurring on the Common Areas or arising
from Landlord's negligence or intentional misconduct. The duties to indemnify
contemplated hereby include the duty to pay all reasonable and necessary
attorneys' fees and costs incurred by the indemnitee in connection with any such
proceedings and shall survive the termination of the Lease; provided, such
duties shall only be applicable to the extent that they are not limited by the
waiver of claims provision of Paragraph 15(g) of the Lease.
18. Tenant's Insurance.
(a) Liability Insurance. Tenant shall, at its sole cost and expense,
maintain in effect at all times during the Lease Term a "Commercial
General Liability Insurance" policy, on an "occurrence" rather than on
a "claims made" basis, with a total policy limit of at least
$1,000,000.00 (each occurrence/aggregate), which policy shall include,
but not be limited to, coverage for Bodily Injury, Property Damage,
Personal Injury and Contractual Liability (applying to this Lease), or
an equivalent form (or forms), so long as such equivalent form (or
forms) affords coverage which is at least as broad. An Insurance
Services Office "Comprehensive General Liability" policy which
includes a Broad Form Endorsement GL 0404 (Insurance Services Office
designation) shall be considered to be an equivalent policy form.
Tenant's liability insurance coverage may be subject to a
"deductible," "retention" or "participation" (or other similar
provision) requiring the Tenant to remain responsible for a stated
amount or percentage of each covered loss; provided, however, that
such amount shall not
16
exceed $1,000.00 each occurrence. Such policy shall name Landlord as
an Additional Insured thereunder.
(b) Property Insurance. Tenant shall, at its sole cost and expense,
maintain in effect at all times during the Lease Term insurance
covering all of Tenant's improvements, fixtures, inventory and other
personal property in the Premises against loss by fire and other
hazards covered by the so-called "all-risk" form of policy, in an
amount equal to the actual replacement cost thereof.
(c) Policy Provisions. Policies for the liability and property insurance
coverage contemplated by this Paragraph shall be in a form and with an
insurer reasonably acceptable to Landlord and shall require at least
ten (10) days prior written notice to Landlord of termination or
material alteration. The liability insurance under Paragraph 18(a)
shall be primary with respect to Landlord and its agents and not
participating with any other available insurance. Tenant shall deliver
on the Commencement Date, and on the anniversary thereof, to Landlord
a certificate evidencing such policies, or other evidence reasonably
satisfactory to Landlord, confirming the terms of such insurance and
confirming that the policies are in full force and effect. If Tenant
has a blanket insurance policy in force providing coverage for several
properties of Tenant, including the Premises, Landlord will accept a
certificate of such insurance; provided, the certificate sets forth
the amounts of insurance and coverage, such amounts are at least equal
to the amounts required herein-above, and otherwise such policy
complies with the requirements hereof. Proceeds of any insurance
carried by Tenant on any furniture, furnishings, merchandise and other
contents of the Premises, and any fixtures, equipment, improvements or
other changes made by Tenant to the Premises, shall be payable
directly to Tenant and Tenant shall have the exclusive right to adjust
and settle losses with respect thereto.
19. Landlord's Insurance. Landlord agrees to purchase in advance, and to
carry in full force and effect the following insurance:
(a) "All risk" property insurance coverage on the Building and Property,
exclusive of Tenant's leasehold improvements, in such amount as
Landlord deems prudent.
(b) "Commercial General Liability Insurance" insuring Landlord in and
around the Building and the Property, with policy limits of at least
$1,000,000 (per occurrence\aggregate), and written on an "occurrence"
basis.
20. Holding Over. Tenant will, at the termination of this Lease by lapse
of time or otherwise, yield up immediate possession of the Premises to Landlord.
Unless otherwise elected by Landlord pursuant to Paragraph 10 hereof, Tenant
shall leave in place all leasehold improvements in their then "as is" condition,
without any obligation to remove or restore any alterations, or to repair or
replace finish work, such as wallcoverings, paint and carpeting; provided,
Tenant shall patch, repair or cover holes in the wall or floor left by the
removal of Tenant's property in a manner reasonably acceptable to Landlord.
Tenant shall be entitled to remove on the expiration or sooner termination of
this Lease all movable furniture, furnishings, trade fixtures and personal
property installed in the Premises at the direct expense of Tenant. If
17
Tenant retains possession of the Premises, or any part thereof after such
termination and without Landlord's written consent, then Landlord may, at its
option, serve written notice upon Tenant that such holding over constitutes the
creation of a month to month tenancy upon the terms and conditions set forth in
this Lease; provided, however, that the monthly Base Rent shall, in addition to
all other sums which are to be paid by Tenant hereunder, whether or not as
additional rent, be equal to 150% of the Base Rent being paid monthly to
Landlord under this Lease immediately prior to such termination. If Tenant's
holdover is without the consent of Landlord, neither this Paragraph nor the
acceptance of any rent hereunder shall prevent Landlord from exercising any
remedy available at law or in equity, including any right to regain immediate
possession of the Premises.
21. Quiet Enjoyment. Landlord represents and warrants that it has full
right and authority to enter into this Lease and that Tenant, while paying the
rental and performing its other covenants and agreements herein set forth, shall
peaceably and quietly have, hold and enjoy the Premises for the Lease Term
without hindrance or molestation subject to the terms and provisions of this
Lease.
22. Events of Default. The following events shall be deemed to be events
of default by Tenant under this Lease (individually, an "Event of Default" and
collectively, "Events of Default"):
(a) Rent. Tenant shall fail to pay any installment of Base Rent, its
Proportionate Share of Operating Costs, or any other payment to
Landlord required herein (collectively, "Rent") when due, and such
failure shall continue for a period of five (5) days thereafter,
except that such failure shall not be deemed an Event of Default on
the first occasion in which such failure occurs in a calendar year
unless such failure shall continue for a period of ten (10) days after
actual receipt of written notice thereof; or
(b) Other Breach. Tenant shall fail to comply with any term, provision or
covenant of this Lease, and shall not cure such failure within thirty
(30) days after actual receipt of written notice thereof; provided, in
the event such default cannot reasonably be cured within such thirty
(30) day period, an Event of Default shall not be deemed to have
occurred so long as Tenant commences an effective cure within said
thirty (30) day period and prosecutes such cure diligently to
completion.
23. Remedies. Upon the occurrence of any of such Events of Default,
Landlord may, at its election and in addition to all other remedies available at
law or in equity, terminate this Lease through the delivery of written notice to
that effect to Tenant or terminate Tenant's right to possession only, without
terminating the Lease.
(a) Re-Entry Without Termination. Upon any termination of Tenant's right
to possession of the Premises without termination of this Lease,
Landlord may, at Landlord's option, enter into the Premises, remove
Tenant's signs and other evidence of tenancy, and take and hold
possession thereof without such entry and possession terminating this
Lease or releasing Tenant, in whole or in part, from any obligation,
including Tenant's obligation to pay Base Rent, its Proportionate
18
Share of Operating Costs and all other sums payable by Tenant
hereunder, for the full Lease Term. Landlord may, but need not, relet
the Premises or any part thereof for such rent and upon such terms as
Landlord, in its sole discretion, shall determine (including the right
to relet the Premises as part of a larger area and the right to change
the character or the use made of the Premises), and Landlord shall not
be required to accept any tenant offered by Tenant or to observe any
instructions given by Tenant about such reletting. In any such case,
Landlord may make repairs, alterations and additions in or to the
Premises, and redecorate the same to the extent Landlord deems
necessary or desirable, in its sole discretion. All rentals and other
sums received by Landlord from any such reletting shall be applied as
follows: first, to the payment of any indebtedness other than Rent due
hereunder from Tenant to Landlord; second, to the payment of any costs
and expenses of such alterations and repairs; third, to the payment of
Landlord's expenses of reletting, including, without limitation,
broker's commissions, attorneys' fees and lease inducements, such as
moving or leasehold improvement allowances; fourth, to the payment of
Rent due and unpaid hereunder; and the residue, if any, shall be held
by Landlord and applied in payment of future Rent as the same may
become due and payable hereunder. If such rentals and other sums
received from such reletting during any month are less than the Rent
due during said month by Tenant hereunder, Tenant shall pay such
deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. Notwithstanding any such re-entry by Landlord, Landlord may
at any time hereafter elect to terminate this Lease for such previous
breach.
(b) Damages in the Event of Termination. It is acknowledged that the
damages that would be incurred by Landlord in connection with the
termination of this Lease following an Event of Default would be
difficult to estimate or ascertain. In the event Landlord elects to
terminate this Lease, Landlord may, in addition to other remedies
available at law or in equity, recover from Tenant, as and for
liquidated and agreed final damages for Tenant's default, an amount
equal to the sum of the following: (i) all unpaid Rent that is payable
by Tenant hereunder and that has accrued as of the effective date of
termination less the net proceeds, if any, of any reletting effected
pursuant to the provisions of Paragraph 23(a) after deducting all of
Landlord's expenses in connection with such reletting, including,
without limitation, all repossession costs, brokerage and management
commissions, operating expenses, legal expenses, attorneys' fees,
alteration costs, and expenses of preparation for such reletting; plus
(ii) a sum of money equal to the excess of the Rent that would be
payable under the Lease for the lesser of the following two periods,
which amount shall be immediately due and payable upon demand but
which shall be discounted to present value using a discount rate equal
to the discount rate of the Federal Reserve Bank of Minneapolis as of
the date of termination plus one percent (1 %): (A) the one year
period commencing upon the effective date of termination, or (B) the
period commencing upon the effective date of termination and ending
upon the original date of the expiration of the Lease Term. For
purposes of calculating the amount of Rent that would be payable under
the Lease for the period succeeding the effective date of termination,
such Rent shall be computed on the basis of the average monthly amount
of Rent accruing during the twenty-four (24) month period immediately
19
preceding the default to which such termination relates (exclusive of
any months in which Tenant was entitled to any full or partial abated
rent); provided, however, if the default occurs prior to the
expiration of the first twenty-four (24) months of the Lease, then the
Rent shall be computed on the basis of the average monthly amount of
Rent accruing during all months preceding the month in which said
default occurred (exclusive of any months in which Tenant received
"free" or abated rent concessions).
(c) Entry for Maintenance. Landlord may, at Landlord's option, enter the
Premises upon five (5) days written notice, or such shorter time as
may be reasonable under the circumstances in the event of an emergency
condition, if Landlord reasonably determines that Tenant is not acting
within a commercially reasonable time to maintain, repair or replace
anything for which Tenant is responsible hereunder and correct the
same, without being deemed in any manner guilty of trespass, eviction
or forcible entry and detainer, and Tenant agrees to reimburse
Landlord, on demand, as additional rent, for any expenses that
Landlord may incur in effecting compliance with Tenant's obligations
under this Lease.
(d) Tenant's Property. Any personal property of Tenant remaining in the
Premises after the expiration or earlier termination of the Lease or
of Tenant's right to possession of the Premises shall be deemed
abandoned. Any and all such abandoned property may be handled, removed
and stored, as the case may be, by or at the direction of Landlord at
the sole risk, cost and expense of Tenant, and Landlord shall in no
event be responsible for the value, preservation or safekeeping
thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such
property so long as the property shall be in Landlord's possession or
under Landlord's control. Any such property of Tenant not retaken by
Tenant from storage within thirty (30) days after removal from the
Premises shall, at Landlord's option, be deemed conveyed by Tenant to
Landlord under this Lease as by a xxxx of sale without further payment
or credit by Landlord to Tenant.
(e) Late Charge. In the event Tenant fails to pay any portion of the Rent
payable by Tenant hereunder within five (5) days of the date that such
amount is due, Tenant shall pay to Landlord on demand, after the
second occurrence during the Lease Term, a late charge in an amount
equal to five percent (5%) of such installment or other charge that is
so overdue in any month, and two percent (2%) each month thereafter
until paid in full, to help defray the additional cost to Landlord for
processing such late payments. Such late charge shall be additional
rent hereunder and the failure to pay such late charge within ten (10)
days after actual receipt of written demand therefor shall be an Event
of Default hereunder. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder and
shall not be construed as liquidated damages or as limiting Landlord's
remedies in any manner.
(f) Miscellaneous. Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the remedies herein provided or any other
remedies available at law or in equity, nor shall pursuit of any
remedy herein provided constitute a
20
forfeiture or waiver of any Rent due to Landlord hereunder or of any
damages accruing to the non-breaching party by reason of the violation
of any term, provision and/or covenant herein contained. No agreement
to accept a surrender by Tenant of its right or possession of the
Premises shall be valid unless in writing signed by Landlord. No
waiver by either party of any violation or breach of any term,
provision and/or covenant herein contained shall be deemed or
construed to constitute a waiver of any other violation or breach of
any term, provision and/or covenant herein contained. Landlord's
acceptance of the payment of rental or other payments hereunder after
the occurrence of an Event of Default shall not be construed as a
waiver of such default, unless Landlord so notifies Tenant in writing.
Forbearance by either party to enforce one or more of the remedies
with respect to any default shall not constitute a waiver thereof, or
a waiver of any remedy in connection with any subsequent default,
unless such waiver is acknowledged in writing. In the event of any
litigation to enforce or interpret the terms hereof, the prevailing
party shall be entitled to an award of its reasonable attorneys' fees
and disbursements.
24. Mortgages. Tenant accepts this Lease subject and subordinate to any
mortgage(s) now or at any time hereafter constituting a lien or charge upon the
Property or the Premises; provided, however, that if the holder of any such
mortgage elects to have Tenant's interest in this Lease superior to any such
instrument, then, by notice to Tenant from such holder, this Lease shall be
deemed superior to such lien, whether this Lease was executed before or after
said mortgage. Tenant shall at any time hereafter on demand execute any
instruments, releases or other documents that may be required by any mortgagee
for the purpose of subjecting and subordinating this Lease to the lien of any
such mortgage, confirming the matters set forth in this Paragraph, but not
otherwise materially modifying Tenant's rights under this Lease; provided, it
shall be a condition to Tenant's obligation to subordinate to any future
mortgage encumbering the Building that Tenant receives an agreement from the
holder of any such mortgage that, in the event that such holder acquires the
Landlord's interest in the Building, this Lease shall remain in full force and
effect and such holder and any purchaser at foreclosure sale thereof shall
recognize the validity of this Lease and shall not disturb Tenant's possession
hereunder so long as Tenant is not in default hereunder beyond any applicable
cure periods.
25. Landlord's Default. In the event of any default by Landlord, Tenant
will give Landlord written notice specifying the default with particularity, and
Landlord shall thereupon have thirty (30) days in which to cure any such
default; provided, in the event such default cannot reasonably be cured within
such thirty (30) day period, an event of default shall not be deemed to have
occurred so long as Landlord commences an effective cure within said thirty (30)
day period and prosecutes such cure diligently to completion. Any trustee
executing this Lease on behalf of the Landlord is acting in a representative
capacity and any liability which may arise as a consequence of this instrument
by or on behalf of the Trustees Under the Will and of The Estate of Xxxxx
Xxxxxxxx, Deceased, shall be the liability of the Estate of Xxxxx Xxxxxxxx and
not the personal liability of any trustee, corporate officer of a trustee, or
employee of The Estate of Xxxxx Xxxxxxxx. Notwithstanding any contrary provision
herein, if Landlord shall fail to perform any covenant, term or condition of
this Lease required to be performed by Landlord, if any, and if as a consequence
of such default Tenant shall recover a money judgment against Landlord, such
judgment shall be satisfied only out of proceeds of sale received upon execution
of such judgment and levied thereon against the right, title and interest of
Landlord in the
21
Building and Property and out of rents or other income from such property
receivable by Landlord, or out of the consideration received by Landlord from
the sale or other disposition of all or any part of Landlord's right, title and
interest in the Building or Property, and neither Landlord nor any officer,
agent, trustee, beneficiary or general or limited partner of Landlord shall be
personally liable for any deficiency; provided, the foregoing shall not limit
any right that Tenant might have to obtain injunctive relief against Landlord or
to maintain any suit or action in connection with the enforcement or collection
of damages to the extent that such damages are payable under policies of
liability insurance maintained by Landlord.
26. Mechanic's Liens; Contests.
(a) Tenant shall have no authority, express or limited, to create or place
any lien or encumbrance of any kind or nature whatsoever upon, or in
any manner to bind, the interest of Landlord or Tenant in the
Building, the Property or the Premises, including those who may
furnish materials or perform labor for any construction or repairs.
Tenant shall pay all sums legally due and payable on account of any
labor performed or materials furnished in connection with any work
performed on the Premises by Tenant or at Tenant's instance, subject
to contest by Tenant as provided herein, and Tenant shall indemnify
Landlord from any and all loss, cost and expense, including reasonable
attorneys' fees, based on or arising out of such claims or liens
asserted against the Tenant's leasehold estate or against the right,
title and interest of the Landlord in the Building, the Property or
the Premises. Tenant shall give Landlord immediate written notice of
the placing of any such lien or encumbrance against the Building, the
Property or the Premises.
(b) After written notice to Landlord, Tenant may at its expense contest,
by appropriate proceedings conducted in good faith and with due
diligence (all such proceedings together with appeals therefrom being
hereinafter referred to as "Contests") the amount, validity or
application, in whole or in part, of any tax, mechanics' lien,
encumbrance, charge or any other adverse claim, excluding amounts owed
by Tenant to Landlord under this Lease, for which Tenant is
responsible under this Lease (hereinafter collectively "claims")
provided that:
(i) In the case of an unpaid claim, such contest shall operate to
suspend the collection of the same from Landlord and Tenant
therein;
(ii) Tenant shall have furnished such security, if any, as may be
required in the proceedings; and
(iii) Neither the Premises nor any part thereof nor any interest
therein shall be, in the reasonable opinion of Landlord, in
imminent danger of being forfeited or lost.
(c) During the period Tenant carries forward any such Contest in good
faith, Tenant shall be relieved from its obligations herein contained
to pay the claims, or to clear the liens with respect to which such
Contest is conducted. Notwithstanding anything contained herein to the
contrary, in the event of a Contest involving any lien which could
result in the loss or forfeiture of Landlord's interest in the
22
Premises, Tenant shall bond over said lien during the period of the
Contest to the extent necessary to prevent such loss or forfeiture. If
and to the extent Tenant shall not prevail in any such Contest, Tenant
shall immediately pay and discharge the claim in question to such
extent.
27. Personal Property Taxes. Tenant shall be liable for all taxes levied
or assessed against personal property, furniture or fixtures owned by Tenant or
placed by Tenant on, in or at the Premises. If any such taxes for which Tenant
is liable are levied or assessed against Landlord or Landlord's property and if
Landlord elects to pay the same, or if the assessed value of Landlord's property
is increased by inclusion of such personal property, furniture or fixtures
placed by Tenant on, in or at the Premises, and Landlord elects to pay the taxes
based on such increase, Tenant shall pay to Landlord upon demand that portion of
such taxes.
28. Notices. All bills, statements, notices or communications, including
changes of address of either party, which either party may desire or be required
to give to the other shall be deemed sufficiently given or rendered if in
writing and either delivered to the other party personally, sent by registered
or certified mail, return receipt requested, sent by national air courier
service, addressed to either party at the Notice Address shown on the Data
Sheet. The time of rendition thereof or the giving of such notice or
communication shall be deemed to be the time when the same is personally
delivered to the other party, deposited in the mail, or delivered to the other
party by a national air courier service as herein provided. Any notice or the
return of any access cards, keys, or otherwise to be given from Tenant to
Landlord must be delivered in the manner set forth above.
29. Hazardous Substances. Tenant shall at all times comply with applicable
local, state and federal laws, ordinances and regulations relating to Hazardous
Substances. "Hazardous Substances" means (1) any oil, flammable substances,
explosives, radioactive materials, hazardous wastes or substances, toxic wastes
or substances or any other wastes, materials or pollutants that (A) pose a
hazard to the Premises, Building or Property or to persons on or about the
Premises, Building or Property or (B) cause the Premises, Building or Property
to be in violation of any hazardous materials laws; (2) asbestos in any form
which is or could become friable, urea formaldehyde foam insulation,
transformers or other equipment that contains dielectric fluid containing
polychlorinated biphenyl, or radon gas; (3) any chemical, materials or substance
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous waste," "restricted
hazardous waste," or "toxic substances," or words of similar import under any
applicable local, state or federal law or under the regulations adopted or
publications promulgated pursuant thereto, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Sections 9601, et seq. , the Hazardous Materials
Transportation Act, as amended, 42 U.S.C. Sections 6901, et seq. , the Federal
Water Pollution Control Act, as amended, 33 U.S.C. Sections 1251, et seq.; (4)
any other chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority or may or could pose a hazard
to the health and safety of the occupants of the Premises, Building or Property
or the owners and/or occupants of property adjacent to or surrounding the
Property, or any other person or entity coming upon the Property or adjacent
property; and (5) any other chemical, material or substance that may or could
pose a hazard to the environment. Tenant shall not: (i) use the Premises,
Building or Property for the storage of Hazardous Substances except for such
activities that are part of the course of Tenant's ordinary business
23
(the "Permitted Activities"); provided, such Permitted Activities are conducted
in accordance with all applicable laws, orders, regulations and ordinances; (ii)
use the Premises, Building or Property as a landfill or dump; or (iii) install
any underground tanks of any type at the Property. Tenant shall at its own
expense maintain in effect any and all permits, licenses or other governmental
approvals, if any, required for Tenant's use of the Premises and require the
same of any subtenants. Tenant shall make and cause any subtenant to make all
disclosures required of Tenant by any laws, and shall comply and cause subtenant
to comply with all orders concerning Tenant's use of the Premises issued by any
governmental authority having jurisdiction over the Premises and take all action
required by such governmental authorities to bring the Tenant's activities on
the Premises into compliance with all environmental and other laws, rules,
regulations and ordinances affecting the Premises. If at any time Tenant shall
become aware, or have reasonable cause to believe, that any Hazardous Substance
has been released or has otherwise come to be located on or beneath the
Property, Tenant shall, give written notice of that condition to Landlord.
Tenant shall be responsible for, and shall indemnify, defend and hold Landlord
harmless from and against, all environmental claims, demands, damages and
liabilities, including, without limitation, court costs and reasonable
attorneys' fees, if any, arising out of, or in connection with the generation,
storage, disposal or other presence of any Hazardous Substance in, on or about
the Premises, Building or Property that occurred during the Lease Term and that
was caused or permitted by Tenant or its subtenants. Landlord shall be
responsible for, and shall indemnify, defend and hold Tenant harmless from and
against, all environmental claims, demands, damages and liabilities, including,
without limitation, court costs and reasonable attorneys' fees, if any, arising
out of, or in connection with the generation, storage, disposal or other
presence of any Hazardous Substance in, on or about the Premises, Building or
Property as of the date hereof and that was caused by Landlord. The
indemnification provided by this Paragraph shall survive the termination of this
Lease.
30. Improvements.
(a) Landlord's Work. Landlord shall proceed with reasonable due diligence
to complete the improvements to the Premises designated on Exhibit "D"
attached hereto (the improvements designated on Exhibit "D" shall be
defined herein, collectively, as the "Landlord's Work"); provided,
Tenant shall be solely responsible for the payment of the amount, if
any, by which the costs of completing the Landlord's Work exceed
$200,000.00 (the "Landlord's Leasehold Contribution"). Tenant shall
pay such excess costs to Landlord, as additional Rent hereunder,
immediately upon receipt of a statement from Landlord itemizing such
excess costs incurred by Landlord in completing the Landlord's Work.
Landlord shall complete the Landlord's Work in a good, workmanlike
manner and in accordance with all applicable laws, codes and
ordinances. Any portion of the Landlord's Leasehold Contribution that
remains undisbursed following the substantial completion of, and full
payment for, the Landlord's Work (the "Undisbursed Allowance"), will
be available for disbursement to Tenant to reimburse Tenant for the
cost of constructing or installing leasehold improvements in the
Premises, subject to the following terms and conditions:
24
i. Tenant shall request any such Undisbursed Allowance in a
written request (a "Draw Request") that contains an itemization
of the nature and cost of all work covered by the Draw Request,
a designation of the identity of all contractors or
subcontractors supplying labor or materials in connection with
such work, full lien waivers from all contractors who supply in
excess of $10,000.00 of labor and materials, and a
certification from Tenant that all work contemplated in the
Draw Request is completed and approved by Tenant;
ii. Any Draw Request prepared by Tenant must be delivered to
Landlord within 180 days after the Commencement Date; and
iii. The Undisbursed Allowance shall only be available to fund the
cost of leasehold improvements that were approved by Landlord
pursuant to the terms of this Lease, and shall not be available
to fund the cost of equipment, furniture, cabling or other
items of personal property of Tenant.
(b) Tenant's Work. Tenant may, at its sole cost, install fixtures,
equipment and furnishings in or to the Premises, including new signage
in compliance with the sign criteria set forth in Exhibit "E", in a
first-class manner consistent with Tenant's permitted use. Such trade
fixture and furnishing activities shall be defined herein collectively
as the "Tenant's Work". Tenant may, promptly after the date hereof,
and at its sole cost, deliver to Landlord plans and specifications for
the Tenant's Work (the "Plans"). The Plans shall be subject to
Landlord's approval and the approval of all local governmental
authorities with jurisdiction. Landlord agrees not to unreasonably
withhold its approval of said Plans. If Landlord notifies Tenant that
changes are required to the final Plans submitted by Tenant, Tenant
shall promptly submit to Landlord, for its approval, the Plans amended
in accordance with the changes so required. The Plans shall also be
revised, and the Tenant's Work shall be changed, to incorporate any
work required in the Premises by any local governmental field
inspector. Landlord's approval of the Plans shall in no way be deemed
to be (i) an acceptance or approval of any element therein contained
which is in violation of any applicable laws, ordinances, regulations
or other governmental requirements, or (ii) an assurance that work
done pursuant to the Plans will comply with all applicable laws (or
with the interpretations thereof) or satisfy Tenant's objectives and
needs. Landlord shall deliver written notice (the "Approval Notice")
to Tenant upon Landlord's approval of the Plans. Upon the delivery of
the Approval Notice, and provided the Date of Delivery has occurred,
Tenant shall proceed, at its sole cost and with due diligence, to
complete all aspects of the Tenant's Work. Tenant shall use only new
or like-new, first-class materials in the Tenant's Work. All Tenant's
Work shall be done in a good and workmanlike manner and in accordance
with all applicable statutes, laws, codes and regulations. Tenant and
Tenant's contractors shall make all efforts and take all steps
reasonably appropriate to assure that no Tenant's Work unreasonably
interferes with the operation of the Building and the ability of other
occupants of the Building to conduct business in a routine manner.
Tenant shall have no authority to
25
materially deviate from the approved Plans in the performance of the
Tenant's Work, except as authorized by Landlord in writing. Tenant
shall provide notice to Landlord of the date of the occurrence of the
substantial completion of the performance of the entirety of Tenant's
Work, which notice shall be accompanied by a certificate from Tenant's
architect or general contractor (the "Completion Certificate")
attesting to the occurrence of such substantial completion and setting
forth an itemized statement of the nature and cost of all labor and
materials used in the completion of the Tenant's Work and a copy of a
full and final lien waiver from Tenant's general contractor. Upon
receipt of said notice, Landlord shall inspect the Tenant's Work and
note any deficiencies or unfinished items which, if so noted, Tenant
shall complete with due diligence.
31. Miscellaneous.
(a) Interpretation. Words of any gender used in this Lease shall be held
and construed to include any other gender, and words in the singular
number shall be held to include the plural, unless the context
otherwise requires. This Lease is intended to be construed in
accordance with the law of the State in which the Property is
situated.
(b) Successors and Assigns. The terms, provisions and covenants and
conditions contained in this Lease shall apply to, inure to the
benefit of, and be binding upon, the parties hereto and upon their
respective heirs, legal representatives, successors and permitted
assigns, except as otherwise herein expressly provided. Landlord shall
have the right to assign any of its rights and obligations under this
Lease. The term "Landlord" shall mean only the owner, from time to
time, of fee title to the Premises, and in the event of the transfer
by such owner of its interest in the Premises, Landlord's grantee or
Landlord's successor shall, upon such transfer, become "Landlord"
hereunder, thereby freeing and relieving the grantor or assignor of
all covenants and obligations of "Landlord" hereunder thereafter
accruing, but such covenants and obligations shall be binding during
the term of this Lease upon each new owner for the duration of such
owner's ownership; provided, however, that no successor Landlord shall
be responsible for the return of any Security Deposit provided for
pursuant to Paragraph 4 unless such successor received the Security
Deposit. In the event that such successor does not receive the
Security Deposit, the predecessor Landlord shall remain liable for its
return to Tenant, if Tenant is entitled to such return in accordance
with the terms hereof. Tenant agrees to furnish promptly upon demand,
a corporate resolution, proof of due authorization by partners, or
other appropriate documentation evidencing the due authorization of
Tenant to enter into this Lease. Nothing herein contained shall give
any other tenant in the Building any enforceable rights either against
Landlord or Tenant as a result of the covenants and obligations of
either party set forth herein.
(c) Captions. The captions inserted in this Lease are for convenience only
and in no way define, limit or otherwise describe the scope of the
intent of this Lease, or any provision hereof, or in any way affect
the interpretation of this Lease.
26
(d) Estoppel Certificate. Each party agrees from time to time within ten
(10) days after its receipt of a written request therefore from the
other party, to deliver to the requesting party, or such party's
designee, an estoppel certificate concerning the terms of the Lease
and the status of the performance of each party's obligations
hereunder that is in a form reasonably designated by the requesting
party.
(e) Amendments. This Lease constitutes the entire agreement of the parties
with respect to its subject matter and may not be altered, changed or
amended except by an instrument in writing signed by both parties
hereto.
(f) Survival. All obligations of Tenant hereunder not fully performed as
of the expiration or earlier termination of the Lease Term shall
survive the expiration or earlier termination of the Lease Term,
including, without limitation, all payment obligations with respect to
Operating Costs and all obligations concerning the condition of the
Premises. Upon the expiration or earlier termination of the Lease
Term, Tenant shall pay to Landlord the amount, as estimated by
Landlord, necessary (i) to repair and restore the Premises as provided
herein; and (ii) to discharge Tenant's obligation for Operating Costs
or other amounts due Landlord. All such amounts shall be used and held
by Landlord for payment of such obligations of Tenant, with Tenant
being held liable for any additional costs upon demand by Landlord, or
with any excess to be returned to Tenant after all such obligations
have been determined and satisfied. Any security deposit held by
Landlord shall be credited against the amount payable by Tenant under
this subparagraph.
(g) Joint and Several. If there is more than one Tenant, the obligations
hereunder imposed upon Tenant shall be joint and several.
(h) Brokers. Tenant represents and warrants that it has engaged no broker,
agent or other person in connection with this transaction other than
the Tenant's Broker designated in the Data Sheet. Landlord represents
and warrants that it has engaged no broker, agent or other person in
connection with this transaction other than the Landlord's Broker
designated in the Data Sheet.
(i) Severability. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during
the Lease Term, then, and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected
thereby, and it is also the intention of the parties to this Lease
that in lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there shall be added as a part of
this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
(j) Construction. If this Lease is ever construed by a court of law, such
court shall not construe this Lease or any provision hereof against
any party as drafter.
(k) Recording. Neither party shall record this Lease in the real estate
records of the County in which the Property is situated without the
prior written consent of the other party.
[Signature Page to Follow.]
27
THIS LEASE AGREEMENT is executed and delivered as of the day and year first
above written.
TENANT: LANDLORD:
ANTARES PHARMA, INC, THE TRUSTEES UNDER THE WILL AND OF
a Minnesota corporation THE ESTATE OF XXXXX XXXXXXXX,
DECEASED, acting in their fiduciary and
not in their individual capacities
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx Xxxxxx Xxxxxxxx
----------------------------------- -------------------------------------
Printed: Xxxxx X. Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx
------------------------------ Executive Vice President
Its: Vice President Devices Group Real Estate Investment Management
----------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx, CCIM
Vice President Regional Manager
Approved as to form only, which approval
is for the sole benefit of Landlord and
does not constitute the assumption of
any obligations hereunder:
FABYANSKE, XXXXXX & XXXX, P.A.
By: /s/ X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
President
28
EXHIBIT "A"
Description of Premises
-----------------------
[To Be Supplied.]
29
EXHIBIT "B"
Description of Property
-----------------------
Xxx 0, Xxxxx 0, Xxxxxxx Xxxxxx 8/th/ Addition, according to the
recorded plat thereof, Hennepin County, Minnesota
30
EXHIBIT "C"
Rules and Regulations
---------------------
1. No awning or other projection shall be attached to the outside walls
of the Building. No curtains, blinds, shades, or screens visible from the
exterior of the Premises shall be attached to or hung in, or used in connection
with any window or door of the Premises without the prior written consent of
Landlord. Such curtains, blinds, shades, screens or other fixtures must be of a
quality, type, design and color, and shall be attached in a manner, approved in
advance by Landlord.
2. Tenant, its servants, employees, customers, invitees, and guests,
shall not obstruct sidewalks, entrances, passages, corridors, vestibules, or
halls in and about the Building which are used in common with other tenants and
their servants, employees, customers, guests and invitees, and which are not a
part of the Premises.
3. Tenant shall not make excessive noises, cause disturbances or
vibrations, or use or operate any electrical or mechanical devices that emit
excessive sound or other waves or disturbances or create obnoxious odors, any of
which may be offensive to the other tenants and occupants of the Building,
except as incidental to the Permitted Uses of the Premises.
4. Tenant assumes full responsibility for protecting its space from
theft, robbery, and pilferage , which includes keeping doors locked and other
means of entry to the Premises closed and secured after normal business hours.
5. In no event shall Tenant bring into the Building flammables, such as
gasoline, kerosene, naphtha and benzene, or explosives or any other article of
intrinsically dangerous nature. If, by reason of failure of Tenant to comply
with the provisions of this paragraph, any insurance premium for all or any part
of the Building shall at any time be increased , Tenant shall be required to
make immediate payment of the whole of the increased insurance premiums.
6. The water and wash closets, drinking fountains and other plumbing
fixtures shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds or other substances
shall be thrown therein. All damages resulting from any misuse of the fixtures
shall be borne by Tenant who shall have caused the same. No person shall waste
water by interfering or tampering with the faucets or otherwise.
7. Tenant shall keep the Premises at a temperature sufficiently high to
prevent freezing of water in pipes and fixtures.
8. The outside areas immediately adjoining the Premises shall be kept
clean by Tenant and Tenant shall not place or permit any obstructions or
merchandise in such areas.
9. The use of parking shall be subject to reasonable regulations as
Landlord may promulgate from time to time uniformly to all Tenants. Tenant
agrees that it will not use more than its prescribed number of stalls at any one
time, and will not use or permit the use by its employees of the Premises or the
parking area for the overnight storage of automobiles or other
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vehicles. There will not be any assigned exclusive parking spaces available to
any tenant of the Building except with the prior, written consent of Landlord.
10. Tenant and its servants, employees, agents, visitors, and licensees
shall observe faithfully and comply strictly with the foregoing rules and
regulations and such other and further reasonable rules and regulations as
Landlord or its agent may from time to time adopt. Landlord shall give written
notice of any additional rules and regulations.
11. Landlord reserves the right at any time and from time to time as
reasonably necessary to rescind, alter, or waive, in whole or in part, any of
these rules and regulations when it is deemed necessary, desirable, or
appropriate, in Landlord's judgment, for its best interest or for the best
interest of tenants of the Building.
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EXHIBIT "D"
Landlord's Work
---------------
[attached]
33
EXHIBIT "E"
SIGN CRITERIA
00000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx
All Tenants are required to comply with the following established sign criteria
which must be approved by Landlord prior to installation:
1. Front Entrance Door (To be applied to glass entrance door suite)
-------------------
. Ivory vinyl applied letters only
. Must be 2" height
. Times Roman letter style
. Suite number only can be posted
. No logs, script or color variations
2. Rear Overhead Door (To be applied to exterior of overhead door)
------------------
. Ivory vinyl applied letters only
. 6" height
. Times Roman letter style
. Upper and lower case
. Using one line only
. No logos, script or color variations
3. Rear Entrance/Man Door (To be applied to exterior door)
----------------------
. Ivory vinyl applied letters only
. 2" height
. Times Roman letter style
. Upper and lower case
. One line only
. No logos, script or color variations
4. Building Mounted Signage
------------------------
. 14" x 1" (Deep) fabricated aluminum letters painted gold
polyurethane
. Times bold typestyle
. Upper case letters only
. Stud mounted to brick
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