PHG/LAS/dl
05/04/01
LEASE AGREEMENT
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THIS LEASE (the "Lease") is executed this _____ day of ___________, 2001,
by and between DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an Indiana limited
partnership ("Landlord"), and CMED CATHETER & DISPOSABLES TECHNOLOGY, INC., a
Minnesota corporation ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
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Section 1.01. Basic Lease Provisions and Definitions.
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A. Leased Premises (shown outlined on Exhibit A attached hereto): Westpoint
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Business Center, 00000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx
00000; Building No. C (the "Building");
B. Rentable Area: approximately 11,048 square feet;
Landlord shall use commercially reasonable standards, consistently applied,
in determining the Rentable Area and the rentable area of the Building.
Landlord's determination of Rentable Area shall conclusively be deemed
correct for all purposes hereunder.
C. Tenant's Proportionate Share: 17.38%;
D. Minimum Annual Rent:
05/01/01-04/30/02 $63,525.96
05/01/02-04/30/03 $64,906.98
05/01/03-04/30/04 $66,288.00;
E. Monthly Rental Installments:
05/01/01-10/31/02 $ 5,293.83 per month
11/01/02-04/30/04 $ 5,524.00 per month;
F. Landlord's Share of Expenses: Not Applicable;
G. Lease Term: Three (3) years;
H. Commencement Date: May 1, 2001;
I. Security Deposit: None;
J. Guarantor: Cardio Tech International, Inc., a Massachusetts corporation;
K. Broker: Duke-Weeks Realty Limited Partnership representing Landlord;
L. Permitted Use: General office and laboratory use and related purposes;
M. Addresses for notices:
Landlord: Duke-Weeks Realty Limited Partnership
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Tenant: CMED Catheter & Disposables Technology, Inc.
00000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Address for rental and other payments:
Duke-Weeks Realty Limited Partnership
NW 7210
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000-0000
Section 1.02. Leased Premises. Landlord hereby leases to Tenant and
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Tenant leases from Landlord, under the terms and conditions herein, the Leased
Premises.
ARTICLE 2 - TERM AND POSSESSION
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Section 2.01. Term. The term of this Lease ("Lease Term") shall be for
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the period of time and shall commence on the Commencement Date described in the
Basic Lease Provisions. Upon delivery of possession of the Leased Premises to
Tenant, Tenant shall execute a letter of understanding acknowledging (i) the
Commencement Date of this Lease, and (ii) that Tenant has accepted the Leased
Premises. If Tenant takes possession of and occupies the Leased Premises,
Tenant shall be deemed to have accepted the Leased Premises and that the
condition of the Leased Premises and the Building was at the time satisfactory
and in conformity with the provisions of this Lease in all respects.
Section 2.02. Construction of Tenant Improvements. Tenant has personally
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inspected the Leased Premises and accepts the same "AS IS" without
representation or warranty by Landlord of any kind and with the understanding
that Landlord shall have no responsibility with respect thereto except to
construct in a good and workmanlike manner the improvements designated as
Landlord's obligations on the attached Exhibit B. Landlord and Tenant agree
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that all work on any subsequent tenant finish improvements shall be performed by
Duke Construction Limited Partnership or a subsidiary or affiliate of Landlord
which shall receive a construction management fee of ten percent (10%) of total
project cost as Landlord's construction manager or general contractor.
Notwithstanding the foregoing, Tenant shall be entitled to construct, install or
renovate at its own cost and expense and in compliance with all applicable laws,
codes, and regulations, a "clean room" or "FDA Lab Space" subject to Landlord's
advance written approval of plans, specifications and contractors or
subcontractors, which consent shall not be unreasonably withheld, conditioned or
delayed and no construction management fee shall be charged by Landlord with
respect to such work.
Section 2.03. Surrender of the Premises. Upon the expiration or earlier
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termination of this Lease, Tenant shall immediately surrender the Leased
Premises to Landlord in broom-clean condition and in good condition and repair.
Tenant shall also remove its personal property, trade fixtures and any of
Tenant's alterations designated by Landlord, promptly repair any damage caused
by such removal, and restore the Leased Premises to the condition existing upon
the Commencement Date, reasonable wear and tear excepted. If Tenant fails to do
so, Landlord may restore the Leased Premises to such condition at Tenant's
expense, Landlord may cause all of said property to be removed at Tenant's
expense, and Tenant hereby agrees to pay all the costs and expenses thereby
reasonably incurred. All Tenant property which is not removed within ten (10)
days following Landlord's written demand therefor shall be conclusively deemed
to have been abandoned by Tenant, and Landlord shall be entitled to dispose of
such property at Tenant's cost without thereby incurring any liability to
Tenant. The provisions of this section shall survive the expiration or other
termination of this Lease.
Section 2.04. Holding Over. If Tenant retains possession of the Leased
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Premises after the expiration or earlier termination of this Lease, Tenant shall
become a tenant from month to month at twice of the Monthly Rental Installment
in effect at the end of the Lease Term, and otherwise upon the terms, covenants
and conditions herein specified, so far as applicable. Acceptance by Landlord
of rent in such event shall not result in a renewal of this Lease, and Tenant
shall vacate and surrender the Leased Premises to Landlord upon Tenant being
given thirty (30) days' prior written notice from Landlord to vacate whether or
not said notice is given on the rent paying date. This Section 2.04 shall in no
way constitute a consent by Landlord to any holding over by Tenant upon the
expiration or earlier termination of this Lease, nor limit Landlord's remedies
in such event.
ARTICLE 3 - RENT
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Section 3.01. Base Rent. Tenant shall pay to Landlord the Minimum Annual
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Rent in the Monthly Rental Installments, in advance, without deduction or
offset, beginning on the Commencement Date and on or before the first day of
each and every calendar month thereafter during the Lease Term. The Monthly
Rental Installment for partial calendar months shall be prorated.
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Section 3.02. Additional Rent. In addition to the Minimum Annual Rent,
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Tenant shall pay to Landlord for each calendar year during the Lease Term, as
"Additional Rent," Tenant's Proportionate Share of all costs and expenses
incurred by Landlord during the Lease Term for Real Estate Taxes and Operating
Expenses for the Building and common areas (collectively "Common Area Charges").
"Operating Expenses" shall mean all of Landlord's expenses for operation,
repair, replacement and maintenance to keep the Building and common areas in
good order, condition and repair (including all additional direct costs and
expenses of operation and maintenance of the Building which Landlord reasonably
determines it would have paid or incurred during such year if the Building had
been fully occupied), including, but not limited to, service and other charges
incurred in the operation and maintenance of the electrical systems, heating,
ventilation and air conditioning systems and sprinkler and plumbing systems;
management or administrative fees; utilities; stormwater discharge fees;
license, permit, inspection and other fees; fees and assessments imposed by any
covenants or owners' association; security services; insurance premiums and
deductibles; and maintenance, repair and replacement of the driveways, parking
areas (including snow removal), exterior lighting, landscaped areas, walkways,
curbs, drainage strips, sewer lines, exterior walls, foundation, structural
frame, roof and gutters. The cost of any capital improvement shall be amortized
over the useful life of such improvement (as reasonably determined by Landlord),
and only the amortized portion shall be included in Operating Expenses.
"Real Estate Taxes" shall include any form of real estate tax or assessment
or service payments in lieu thereof, and any license fee, commercial rental tax,
improvement bond or other similar charge or tax (other than inheritance,
personal income or estate taxes) imposed upon the Building or common areas (or
against Landlord's business of leasing the Building) by any authority having the
power to so charge or tax, together with costs and expenses of contesting the
validity or amount of Real Estate Taxes which at Landlord's option may be
calculated as if such contesting work had been performed on a contingent fee
basis (whether charged by Landlord's counsel or representative; provided,
however, that said fees are reasonably comparable to the fees charged for
similar services by others not affiliated with Landlord, but in no event shall
fees exceed thirty-three percent (33%) of the good faith estimated tax savings).
Additionally, Tenant shall pay, prior to delinquency, all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all personal property
of Tenant contained in the Leased Premises.
Section 3.03. Payment of Additional Rent. Landlord shall estimate the
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total amount of Additional Rent to be paid by Tenant during each calendar year
of the Lease Term, pro-rated for any partial years. Commencing on the
Commencement Date, Tenant shall pay to Landlord each month, at the same time the
Monthly Rental Installment is due, an amount equal to one-twelfth (1/12) of the
estimated Additional Rent for such year. Within a reasonable time after the end
of each calendar year, Landlord shall submit to Tenant a statement of the actual
amount of such Additional Rent and within thirty (30) days after receipt of such
statement, Tenant shall pay any deficiency between the actual amount owed and
the estimates paid during such calendar year. In the event of overpayment,
Landlord shall credit the amount of such overpayment toward the next
installments of Minimum Rent.
Section 3.04. Late Charges. Tenant acknowledges that Landlord shall incur
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certain additional unanticipated administrative and legal costs and expenses if
Tenant fails to timely pay any payment required hereunder. Therefore, in
addition to the other remedies available to Landlord hereunder, if any payment
required to be paid by Tenant to Landlord hereunder shall become overdue, such
unpaid amount shall bear interest from the due date thereof to the date of
payment at the prime rate (as reported in the Wall Street Journal) of interest
("Prime Rate") plus six percent (6%) per annum.
ARTICLE 4 - SECURITY DEPOSIT
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Intentionally omitted.
ARTICLE 5 - USE
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Section 5.01. Use of Leased Premises. The Leased Premises are to be used
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by Tenant solely for the Permitted Use and for no other purposes without the
prior written consent of Landlord.
Section 5.02. Covenants of Tenant Regarding Use. Tenant shall (i) use and
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maintain the Leased Premises and conduct its business thereon in a safe,
careful, reputable and lawful manner, (ii) comply with all laws, rules,
regulations, orders, ordinances, directions and requirements of any governmental
authority or agency, now in force or which may hereafter be in force, including
without limitation those which shall impose upon Landlord or Tenant any duty
with respect to or triggered by a change in the use or occupation of, or any
improvement or alteration to, the Leased Premises, and (iii) comply with and
obey all reasonable directions of the Landlord, including any rules and
regulations that may be adopted by Landlord from time to time. Tenant shall not
do or permit anything to be done in or about the Leased Premises or common areas
which constitutes a nuisance or which interferes with the rights of other
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tenants or injures or annoys them. Landlord shall not be responsible to Tenant
for the nonperformance by any other tenant or occupant of the Building of its
lease or of any rules and regulations. Tenant shall not overload the floors of
the Leased Premises. All damage to the floor, structure or foundation of the
Building due to improper positioning or storage of items or materials shall be
repaired by Landlord at the sole expense of Tenant, who shall reimburse Landlord
immediately therefor upon demand. Tenant shall not use the Leased Premises, or
allow the Leased Premises to be used, for any purpose or in any manner which
would invalidate any policy of insurance now or hereafter carried on the
Building or increase the rate of premiums payable on any such insurance policy
unless Tenant reimburses Landlord as Additional Rent for any increase in
premiums charged.
Section 5.03. Landlord's Rights Regarding Use. In addition to the rights
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specified elsewhere in this Lease, Landlord shall have the following rights
regarding the use of the Leased Premises or the common areas, each of which may
be exercised without notice or liability to Tenant (a) Landlord may install such
signs, advertisements, notices or tenant identification information as it shall
deem necessary or proper; (b) Landlord shall have the right at any time to
control, change or otherwise alter the common areas as it shall deem necessary
or proper; and (c) Landlord or Landlord's agent shall be permitted to inspect
or examine the Leased Premises at any reasonable time upon reasonable notice
(except in an emergency when no notice shall be required), and Landlord shall
have the right to make any repairs to the Leased Premises which are necessary
for its preservation; provided, however, that any repairs made by Landlord shall
be at Tenant's expense, except as provided in Section 7.01 hereof. Landlord
shall incur no liability to Tenant for such entry, nor shall such entry
constitute an eviction of Tenant or a termination of this Lease, or entitle
Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND SERVICES
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Tenant shall obtain in its own name and pay directly to the appropriate
supplier the cost of all utilities and services serving the Leased Premises.
However, if any services or utilities are jointly metered with other property,
Landlord shall make a reasonable determination of Tenant's proportionate share
of the cost of such utilities and services (at rates that would have been
payable if such utilities and services had been directly billed by the utilities
or services provided to Tenant) and Tenant shall pay such share to Landlord
within fifteen (15) days after receipt of Landlord's written statement.
Landlord shall not be liable in damages or otherwise for any failure or
interruption of any utility or other building service and no such failure or
interruption shall entitle Tenant to terminate this Lease or withhold sums due
hereunder. In the event of utility "deregulation", Landlord may choose the
service provider.
ARTICLE 7 - MAINTENANCE AND REPAIRS
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Section 7.01. Landlord's Responsibility. During the term of this Lease,
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Landlord shall maintain in good condition and repair, and replace as necessary,
the electrical systems, heating and air conditioning systems, sprinkler and
plumbing systems, roof, exterior walls, foundation and structural frame of the
Building and the parking and landscaped areas, the costs of which shall be
included in Operating Expenses; provided, however, that to the extent any of the
foregoing items require repair because of the negligence, misuse, or default of
Tenant, its employees, agents, customers or invitees, Landlord shall make such
repairs solely at Tenant's expense.
Section 7.02. Alterations. Tenant shall not permit alterations in or to
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the Leased Premises unless and until the plans have been approved by Landlord in
writing. As a condition of such approval, Landlord may require Tenant to remove
the alterations and restore the Leased Premises upon termination of this Lease;
otherwise, all such alterations shall at Landlord's option become a part of the
realty and the property of Landlord, and shall not be removed by Tenant. Tenant
shall ensure that all alterations shall be made in accordance with all
applicable laws, regulations and building codes, in a good and workmanlike
manner and of quality equal to or better than the original construction of the
Building. No person shall be entitled to any lien derived through or under
Tenant for any labor or material furnished to the Leased Premises, and nothing
in this Lease shall be construed to constitute a consent by Landlord to the
creation of any lien. If any lien is filed against the Leased Premises for work
claimed to have been done for or material claimed to have been furnished to
Tenant, Tenant shall cause such lien to be discharged of record within thirty
(30) days after filing. Tenant shall indemnify Landlord from all costs, losses,
expenses and attorneys' fees in connection with any construction or alteration
and any related lien.
ARTICLE 8 - CASUALTY
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Section 8.01. Casualty. In the event of total or partial destruction of
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the Building or the Leased Premises by fire or other casualty, Landlord agrees
to promptly restore and repair same; provided, however, Landlord's obligation
hereunder shall be limited to the reconstruction of such of the tenant finish
improvements as were originally required to be made by Landlord, if any. Rent
shall proportionately xxxxx during the time that the Leased Premises or part
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thereof are unusable because of any such damage. Notwithstanding the foregoing,
if the Leased Premises are (i) so destroyed that they cannot be repaired or
rebuilt within one hundred eighty (180) days from the casualty date; or (ii)
destroyed by a casualty which is not covered by the insurance required hereunder
or, if covered, such insurance proceeds are not released by any mortgagee
entitled thereto or are insufficient to rebuild the Building and the Leased
Premises; then, in case of a clause (i) casualty, either Landlord or Tenant may,
or, in the case of a clause (ii) casualty, then Landlord may, upon thirty (30)
days' written notice to the other party, terminate this Lease with respect to
matters thereafter accruing.
Section 8.02. All Risk Coverage Insurance. During the Lease Term,
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Landlord shall maintain all risk coverage insurance on the Building, but shall
not protect Tenant's property on the Leased Premises; and, notwithstanding the
provisions of Section 9.01, Landlord shall not be liable for any casualty damage
to Tenant's property, regardless of cause, including the negligence of Landlord
and its employees, agents and invitees. Tenant hereby expressly waives any
right of recovery against Landlord for casualty damage to any property of Tenant
located in or about the Leased Premises, however caused, including the
negligence of Landlord and its employees, agents and invitees. Notwithstanding
the provisions of Section 9.01 below, Landlord hereby expressly waives any
rights of recovery against Tenant for casualty damage to the Leased Premises or
the Building which is insured against under Landlord's all risk coverage
insurance. All insurance policies maintained by Landlord or Tenant as provided
in this Lease shall contain an agreement by the insurer waiving the insurer's
right of subrogation against the other party to this Lease.
ARTICLE 9 - LIABILITY INSURANCE
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Section 9.01. Tenant's Responsibility. Landlord shall not be liable to
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Tenant or to any other person for (i) damage to property or injury or death to
persons due to the condition of the Leased Premises, the Building or the common
areas, or (ii) the occurrence of any accident in or about the Leased Premises or
the common areas, or (iii) any act or neglect of Tenant or any other tenant or
occupant of the Building or of any other person, unless such damage, injury or
death is directly and solely the result of Landlord's negligence; and Tenant
hereby releases Landlord from any and all liability for the same. Tenant shall
be liable for, and shall indemnify and defend Landlord from, any and all
liability for (i) any act or neglect of Tenant and any person coming on the
Leased Premises or common areas by the license of Tenant, express or implied,
(ii) any damage to the Leased Premises, and (iii) any loss of or damage or
injury to any person (including death resulting therefrom) or property occurring
in, on or about the Leased Premises, regardless of cause, except for any loss or
damage covered by Landlord's all risk coverage insurance as provided in Section
8.02 and except for that caused solely and directly by Landlord's negligence.
This provision shall survive the expiration or earlier termination of this
Lease.
Section 9.02. Tenant's Insurance. Tenant shall carry general public
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liability and property damage insurance, issued by one or more insurance
companies acceptable to Landlord, with the following minimum coverages:
(a) Worker's Compensation: minimum statutory amount.
(b) Commercial General Liability Insurance, including blanket, contractual
liability, broad form property damage, personal injury, completed operations,
products liability, and fire damage: Not less than $3,000,000 Combined Single
Limit for both bodily injury and property damage.
(c) All Risk Coverage, Vandalism and Malicious Mischief, and Sprinkler
Leakage insurance, if applicable, for the full cost of replacement of Tenant's
property.
(d) Business interruption insurance.
The insurance policies shall protect Tenant and Landlord as their interests may
appear, naming Landlord and Landlord's managing agent and mortgagee as
additional insureds, and shall provide that they may not be canceled on less
than thirty (30) days' prior written notice to Landlord. Tenant shall furnish
Landlord with Certificates of Insurance evidencing all required coverages on or
before the Commencement Date. If Tenant fails to carry such insurance and
furnish Landlord with such Certificates of Insurance after a request to do so,
Landlord may obtain such insurance and collect the cost thereof from Tenant.
ARTICLE 10 - EMINENT DOMAIN
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If all or any substantial part of the Building or common areas shall be
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving written notice to Tenant on or before the date that actual possession
thereof is so taken. If all or any part of the Leased Premises shall be
acquired by the exercise of eminent domain so that the Leased Premises shall
become unusable by Tenant for the Permitted Use, Tenant may terminate this Lease
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as of the date that actual possession thereof is so taken by giving written
notice to Landlord. All damages awarded shall belong to Landlord; provided,
however, that Tenant may claim dislocation damages if such amount is not
subtracted from Landlord's award.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
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Tenant shall not assign this Lease or sublet the Leased Premises in whole
or in part without Landlord's prior written consent, which consent shall not be
unreasonably withheld, delayed or denied (provided that it shall not be
unreasonable for Landlord to withhold or deny its consent with respect to any
proposed assignment or subletting to a third party that is already a tenant in
the Building or in another building owned by Landlord in the vicinity). In the
event of any assignment or subletting, Tenant shall remain primarily liable
hereunder, and any extension, expansion, rights of first offer, rights of first
refusal or other options granted to Tenant under this Lease shall be rendered
void and of no further force or effect. The acceptance of rent from any other
person shall not be deemed to be a waiver of any of the provisions of this Lease
or to be a consent to the assignment of this Lease or the subletting of the
Leased Premises. Without in any way limiting Landlord's reasonable right to
refuse to consent to any assignment or subletting of this Lease, Landlord
reserves the right to refuse to give such consent if in Landlord's opinion (i)
the Leased Premises are or may be in any way adversely affected; (ii) the
business reputation of the proposed assignee or subtenant is unacceptable; or
(iii) the financial worth of the proposed assignee or subtenant is insufficient
to meet the obligations hereunder. Landlord further expressly reserves the
right to refuse to give its consent to any subletting if the proposed rent is to
be less than the then current rent for similar premises in the Building. Tenant
agrees to reimburse Landlord for reasonable accounting and attorneys' fees
incurred in conjunction with the processing and documentation of any such
requested assignment, subletting or any other hypothecation of this Lease or
Tenant's interest in and to the Leased Premises.
ARTICLE 12 - TRANSFERS BY LANDLORD
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Section 12.01. Sale of the Building. Landlord shall have the right to
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sell the Building at any time during the Lease Term, subject only to the rights
of Tenant hereunder; and such sale shall operate to release Landlord from
liability hereunder after the date of such conveyance.
Section 12.02. Subordination and Estoppel Certificate. Landlord shall
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have the right to subordinate this Lease to any mortgage presently existing or
hereafter placed upon the Building by so declaring in such mortgage. Within ten
(10) days following receipt of a written request from Landlord, Tenant shall
execute and deliver to Landlord, without cost, any instrument which Landlord
deems necessary or desirable to confirm the subordination of this Lease and an
estoppel certificate in such form as Landlord may reasonably request certifying
(i) that this Lease is in full force and effect and unmodified or stating the
nature of any modification, (ii) the date to which rent has been paid, (iii)
that there are not, to Tenant's knowledge, any uncured defaults or specifying
such defaults if any are claimed, and (iv) any other matters or state of facts
reasonably required respecting the Lease. Such estoppel may be relied upon by
Landlord and by any purchaser or mortgagee of the Building. Notwithstanding the
foregoing, if the mortgagee shall take title to the Leased Premises through
foreclosure or deed in lieu of foreclosure, Tenant shall be allowed to continue
in possession of the Leased Premises as provided for in this Lease so long as
Tenant shall not be in Default.
ARTICLE 13 - DEFAULT AND REMEDY
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Section 13.01. Default. The occurrence of any of the following shall be a
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"Default":
(a) Tenant fails to pay any Monthly Rental Installment or Additional
Rent within five (5) days after the same is due, or Tenant fails to pay any
other amounts due Landlord from Tenant within ten (10) days after the same is
due.
Notwithstanding the foregoing sentence, Landlord shall provide Tenant with
a written notice of such Default and Tenant shall have an additional five (5)
days from Tenant's receipt of such notice to cure such Default before Landlord
exercises its remedies hereunder; provided, however, that Landlord shall not be
required to give such notice more than one (1) time with respect to any
particular Default, nor more than two (2) times in any consecutive twelve (12)
month period with respect to any payment Defaults in the aggregate.
(b) Tenant fails to perform or observe any other term, condition,
covenant or obligation required under this Lease for a period of thirty (30)
days after notice thereof from Landlord; provided, however, that if the nature
of Tenant's default is such that more than thirty days are reasonably required
to cure, then such default shall be deemed to have been cured if Tenant
commences such performance within said thirty-day period and thereafter
diligently completes the required action within a reasonable time.
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(c) Tenant shall assign or sublet all or a portion of the Leased
Premises in contravention of the provisions of Article 11 of this Lease.
(d) All or substantially all of Tenant's assets in the Leased Premises
or Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment for the benefit of
creditors; Tenant takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Tenant or its assets if
such receivership has not been vacated or set aside within thirty (30) days
thereafter; or, dissolution or other termination of Tenant's corporate charter
if Tenant is a corporation.
Section 13.02. Remedies. Upon the occurrence of any Default, Landlord
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shall have the following rights and remedies, in addition to those allowed by
law or in equity, any one or more of which may be exercised without further
notice to Tenant:
(a) Landlord may re-enter the Leased Premises and cure any default of
Tenant, and Tenant shall reimburse Landlord as additional rent for any costs and
expenses which Landlord thereby incurs; and Landlord shall not be liable to
Tenant for any loss or damage which Tenant may sustain by reason of Landlord's
action.
(b) Landlord may terminate this Lease or, without terminating this
Lease, terminate Tenant's right to possession of the Leased Premises as of the
date of such Default, and thereafter (i) neither Tenant nor any person claiming
under or through Tenant shall be entitled to possession of the Leased Premises,
and Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Upon
the termination of this Lease, Landlord may declare the present value
(discounted at the Prime Rate) of all rent which would have been due under this
Lease for the balance of the Lease Term to be immediately due and payable,
whereupon Tenant shall be obligated to pay the same to Landlord, together with
all loss or damage which Landlord may sustain by reason of Tenant's default
("Default Damages"), which shall include without limitation expenses of
preparing the Leased Premises for re-letting, demolition, repairs, tenant finish
improvements, brokers' commissions and attorneys' fees, it being expressly
understood and agreed that the liabilities and remedies specified in this
subsection (b) shall survive the termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Tenant
shall be immediately obligated to pay to Landlord as liquidated damages the
present value (discounted at the Prime Rate) of the difference between the rent
provided for herein and that provided for in any lease covering a subsequent
re-letting of the Leased Premises, for the period which would otherwise have
constituted the balance of the Lease Term, together with all of Landlord's
Default Damages.
(d) Landlord may xxx for injunctive relief or to recover damages for
any loss resulting from the Default.
Section 13.03. Landlord's Default and Tenant's Remedies. Landlord shall
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be in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty days, such default shall be deemed to have
been cured if Landlord commences such performance within said thirty-day period
and thereafter diligently undertakes to complete the same. Upon the occurrence
of any such default, Tenant may xxx for injunctive relief or to recover damages
for any loss directly resulting from the breach, but Tenant shall not be
entitled to terminate this Lease or withhold, offset or xxxxx any sums due
hereunder.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall fail
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to perform any term, condition, covenant or obligation required to be performed
by it under this Lease and if Tenant shall, as a consequence thereof, recover a
money judgment against Landlord, Tenant agrees that it shall look solely to
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Landlord's right, title and interest in and to the Building for the collection
of such judgment; and Tenant further agrees that no other assets of Landlord
shall be subject to levy, execution or other process for the satisfaction of
Tenant's judgment.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay in
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exercising any of its rights or remedies or other provisions of this Lease shall
constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
Section 13.06. Attorneys' Fees. If either party defaults in the
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performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the non-defaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party for reasonable attorneys' fees incurred in
connection therewith.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
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Intentionally Omitted.
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
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ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES
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Section 15.01. Definitions.
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(a) "Environmental Laws" - All present or future federal, state and
municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, the rules and
regulations of the Federal Environmental Protection Agency or any other federal,
state or municipal agency or governmental board or entity having jurisdiction
over the Leased Premises.
(b) "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws.
Section 15.02. Compliance. Tenant, at its sole cost and expense, shall
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promptly comply with the Environmental Laws including any notice from any source
issued pursuant to the Environmental Laws or issued by any insurance company
which shall impose any duty upon Tenant with respect to the use, occupancy,
maintenance or alteration of the Leased Premises whether such notice shall be
served upon Landlord or Tenant.
Section 15.03. Restrictions on Tenant. Tenant shall operate its business
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and maintain the Leased Premises in compliance with all Environmental Laws.
Tenant shall not cause or permit the use, generation, release, manufacture,
refining, production, processing, storage or disposal of any Hazardous
Substances on, under or about the Leased Premises, or the transportation to or
from the Leased Premises of any Hazardous Substances, except as necessary and
appropriate for its Permitted Use in which case the use, storage or disposal of
such Hazardous Substances shall be performed in compliance with the
Environmental Laws and the highest standards prevailing in the industry.
Section 15.04. Notices, Affidavits, Etc. Tenant shall immediately notify
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Landlord of (i) any violation by Tenant, its employees, agents, representatives,
customers, invitees or contractors of the Environmental Laws on, under or about
the Leased Premises, or (ii) the presence or suspected presence of any Hazardous
Substances on, under or about the Leased Premises and shall immediately deliver
to Landlord any notice received by Tenant relating to (i) and (ii) above from
any source. Tenant shall execute affidavits, representations and the like
within five (5) days of Landlord's request therefor concerning Tenant's best
knowledge and belief regarding the presence of any Hazardous Substances on,
under or about the Leased Premises.
Section 15.05. Landlord's Rights. Landlord and its agents shall have the
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right, but not the duty, upon advance notice (except in the case of emergency
when no notice shall be required) to inspect the Leased Premises and conduct
tests thereon to determine whether or the extent to which there has been a
violation of Environmental Laws by Tenant or whether there are Hazardous
Substances on, under or about the Leased Premises. In exercising its rights
herein, Landlord shall use reasonable efforts to minimize interference with
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Tenant's business but such entry shall not constitute an eviction of Tenant, in
whole or in part, and Landlord shall not be liable for any interference, loss,
or damage to Tenant's property or business caused thereby.
Section 15.06. Tenant's Indemnification. Tenant shall indemnify Landlord
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and Landlord's managing agent from any and all claims, losses, liabilities,
costs, expenses and damages, including attorneys' fees, costs of testing and
remediation costs, incurred by Landlord in connection with any breach by Tenant
of its obligations under this Article 15. The covenants and obligations under
this Article 15 shall survive the expiration or earlier termination of this
Lease.
Section 15.07. Landlord's Representation. Notwithstanding anything
-------------- --------------------------
contained in this Article 15 to the contrary, Tenant shall not have any
liability to Landlord under this Article 15 resulting from any conditions
existing, or events occurring, or any Hazardous Substances existing or
generated, at, in, on, under or in connection with the Leased Premises prior to
the Commencement Date of this Lease except to the extent Tenant exacerbates the
same.
ARTICLE 16 - MISCELLANEOUS
--------------------------
Section 16.01. Benefit of Landlord and Tenant. This Lease shall inure to
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the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
Section 16.02. Governing Law. This Lease shall be governed in accordance
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with the laws of the State where the Building is located.
Section 16.03. Guaranty. In consideration of Landlord's leasing the
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Leased Premises to Tenant, Tenant shall provide Landlord with a Guaranty of
Lease executed by the guarantor(s) described in the Basic Lease Provisions, if
any.
Section 16.04. Force Majeure. Landlord and Tenant (except with respect to
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the payment of any monetary obligation) shall be excused for the period of any
delay in the performance of any obligation hereunder when such delay is
occasioned by causes beyond its control, including but not limited to work
stoppages, boycotts, slowdowns or strikes; shortages of materials, equipment,
labor or energy; unusual weather conditions; or acts or omissions of
governmental or political bodies.
Section 16.05. Examination of Lease. Submission of this instrument for
-------------- ----------------------
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
Section 16.06. Indemnification for Leasing Commissions. The parties
-------------- ------------------------------------------
hereby represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are the Brokers. Each party shall
indemnify the other from any and all liability for the breach of this
representation and warranty on its part and shall pay any compensation to any
other broker or person who may be entitled thereto.
Section 16.07. Notices. Any notice required or permitted to be given
-------------- -------
under this Lease or by law shall be deemed to have been given if it is written
and delivered in person or by overnight courier or mailed by certified mail,
postage prepaid, to the party who is to receive such notice at the address
specified in Article 1. If delivered in person, notice shall be deemed given as
of the delivery date. If sent by overnight courier, notice shall be deemed
given as of the first business day after sending. If mailed, the notice shall
be deemed to have been given on the date which is three business days after
mailing. Either party may change its address by giving written notice thereof
to the other party.
Section 16.08. Partial Invalidity; Complete Agreement. If any provision
-------------- ---------------------------------------
of this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change supplement, modification, amendment or addition shall be
made to any term or provision of this Lease or shall be binding or enforceable
except by a written agreement executed by Landlord and Tenant.
Section 16.09. Financial Statements. In the event that Tenant's parent
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company ceases to be publicly traded with its financial reports available as a
consequence of required filings with the Securities and Exchange Commission,
during the Lease Term and any extensions thereof, Tenant shall provide to
Landlord on an annual basis, within ninety (90) days following the end of
Tenant's fiscal year, a copy of Tenant's most recent financial statements
(certified and audited if the Minimum Annual Rent hereunder exceeds $100,000.00)
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prepared as of the end of Tenant's fiscal year. Such financial statements shall
be signed by Tenant who shall attest to the truth and accuracy of the
information set forth in such statements. All financial statements provided by
Tenant to Landlord hereunder shall be prepared in conformity with generally
accepted accounting principles, consistently applied.
Section 16.10. Representations and Warranties. The undersigned represent
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and warrant that (i) such party is duly organized, validly existing and in good
standing (if applicable) in accordance with the laws of the state under which it
was organized; and (ii) the individual executing and delivering this Lease has
been properly authorized to do so, and such execution and delivery shall bind
such party.
Section 16.11. Signs. Tenant may, at its own expense, erect a sign
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concerning the business of Tenant which shall be in keeping with the decor and
other signs on the Building. All signage (including the signage described in
the preceding sentence) in or about the Leased Premises shall be first approved
by Landlord and shall be in compliance with the applicable codes and any
recorded restrictions applicable to the Building. Tenant agrees to maintain any
sign in good state of repair, and upon expiration of the Lease Term, Tenant
agrees to promptly remove such signs and repair any resulting damage to the
Leased Premises or the Building.
Section 16.12. Option to Extend.
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X. Xxxxx and Exercise of Option. Provided that (i) Tenant has not been
----------------------------
in Default hereunder beyond any applicable notice and cure period more than 2
times during the Term of this Lease (the "Original Term"), (ii) the
creditworthiness of Tenant has not substantially diminished since the
Commencement Date, (iii) Tenant originally named herein remains in possession of
and has been continuously operating in the entire Leased Premises throughout the
Original Term and (iv) the current use of the Leased Premises has not materially
changed since the Commencement Date, Tenant shall have one (1) option to extend
the Original Term for one (1) additional period of three (3) years (the
"Extension Term"). The Extension Term shall be upon the same terms and
conditions contained in the Lease for the Original Term except (i) Tenant shall
not have any further option to extend and (ii) the Minimum Annual Rent shall be
adjusted as set forth herein ("Rent Adjustment"). Tenant shall exercise such
option by delivering to Landlord, no later than one hundred eighty (180) days
prior to the expiration of the Original Term, written notice of Tenant's desire
to extend the Original Term. Tenant's failure to properly exercise such option
shall waive it. If Tenant properly exercises its option to extend, Landlord and
Tenant shall execute an amendment to the Lease (or, at Landlord's option, a new
lease on the form then in use for the Building) reflecting the terms and
conditions of the Extension Term.
B. Rent Adjustment. The Minimum Annual Rent for the Extension Term
----------------
shall be an amount equal to the Minimum Annual Rent then being quoted by
Landlord to prospective new tenants of the Building for space of comparable size
and quality and with similar or equivalent improvements as are found in the
Building, and if none, then in similar buildings in the Park/vicinity, excluding
-------------
free rent and other concessions; provided, however, that in no event shall the
Minimum Annual Rent during the Extension Term be less than the highest Minimum
Annual Rent payable during the Original Term. The Monthly Rental Installments
shall be an amount equal to one-twelfth (1/12) of the Minimum Annual Rent for
the Extension Term and shall be paid at the same time and in the same manner as
provided in the Lease.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
LANDLORD:
DUKE-WEEKS REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke-Weeks Realty Corporation,
its general partner
By:___________________________
Xxxxx X. Xxxx
Senior Vice President
Minneapolis Industrial
TENANT:
CMED CATHETER & DISPOSABLES
TECHNOLOGY, INC., a Minnesota corporation
By:________________________________
Printed:___________________________
Title:_____________________________
STATE OF ______________ )
) SS:
COUNTY OF _____________ )
Before me, a Notary Public in and for said County and State, personally
appeared _________________________, by me known and by me known to be the
________________________ of CMED Catheter & Disposables Technology, Inc., a
Minnesota corporation, who acknowledged the execution of the above and foregoing
"Lease Agreement" for and on behalf of said corporation.
WITNESS my hand and Notarial Seal this _____ day of ___________, 2001.
_________________________________
Notary Public
_________________________________
(Printed Signature)
My Commission Expires: __________________
My County of Residence: _________________
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