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EXHIBIT 10.18
LEASE AGREEMENT
LANDLORD: UNIVERSITY RESEARCH PARK FACILITIES CORP.
TENANT: THIRD WAVE TECHNOLOGIES, INC.
PROPERTY: ___ Xxxx Road Madison, Wisconsin
DATE: April 1, 1997
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LEASE AGREEMENT
TABLE OF CONTENTS
PAGE
ARTICLE I
PREMISES AND TERM .............................................................. 1
Section 1.1 Leased Premises .................................................... 1
Section 1.2 Term of Lease ...................................................... 2
Section 1.3. Option to Extend Tetra ............................................ 2
Section 1.4 First Option To Lease Additional Buildings ......................... 2
Section 1.5 Security Deposit ................................................... 3
Section 1.6. Additional Improvements ........................................... 3
ARTICLE 2
RENT ........................................................................... 4
Section 2.2 Additional Rent .................................................... 5
Section 2.3 Past Due Rent ...................................................... 5
Section 2.4 Real Estate Taxes .................................................. 5
ARTICLE 3
INSTALLATIONS, REPAIRS AND MAINTENANCE OF LEASE PREMISES ....................... 6
Section 3.1 Maintenance by Tenant .............................................. 6
Section 3.2 Maintenance by Landlord ............................................ 7
Section 3.3 Exterior Signs ..................................................... 7
Section 3.4. Alterations, Changes and Installations by Tenant .................. 8
Section 3.5 Fixtures and Equipment ............................................. 8
Section 3.6 Liens and Obligations .............................................. 8
ARTICLE 4
CONDUCT OF BUSINESS ............................................................ 9
Section 4.1 Business Use ....................................................... 9
Section 4.2 Utility Charges .................................................... 10
Section 4.3 Assignment or Subletting ........................................... 10
Section 4.4 Rules and Regulations .............................................. 10
Section 4.5. ADA Compliance .................................................... 11
Section 4.6 Surrender .......................................................... 12
ARTICLE 5
COMMON USE AREAS AND FACILITIES ................................................ 13
Section 5.1. Common Area ....................................................... 13
Section 5.2. Use of Common Area ................................................ 14
Section 5.3. Operation and Maintenance ......................................... 15
Section 5.4. Preventing Public Rights .......................................... 15
Section 5.5. Charge for Common Area and Facilities ............................. 15
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Section 5.6. Formula For Pro Rata Share ........................................ 16
Section 5.7. Basis For Changes ................................................. 16
ARTICLE 6
INSURANCE ...................................................................... 17
Section 6.1. Casualty Insurance ................................................ 17
Section 6.2. Public Liability Insurance ........................................ 17
Section 6.3. Tenant's Contents ................................................. 18
Section 6.4. Increase in Fire Insurance ........................................ 18
Section 6.5. Hold Harmless ..................................................... 19
Section 6.6. Waiver of Subrogation ............................................. 20
ARTICLE 7
DESTRUCTION OF LEASED PREMISES ................................................. 21
Section 7.1. Destruction of Leased Premises .................................... 21
Section 7.2. Rebuilding by Landlord ............................................ 21
Section 7.3. Abatement of Rent Upon Destruction of Premises .................... 21
ARTICLE 8
EFFECT OF CONDEMNATION ......................................................... 22
Section 8.1. Total Condemnation ................................................ 22
Section 8.2. Partial Condemnation .............................................. 22
Section 8.3. Landlord's Damages ................................................ 22
Section 8.4. Tenant's Damages .................................................. 22
ARTICLE 9
REMEDIES ....................................................................... 23
Section 9.1. Events of Default by Tenant ....................................... 23
Section 9.2. Re-Entry by Landlord .............................................. 23
Section 9.3. Right to Relet .................................................... 23
Section 9.4. Parties May Remedy Defaults ....................................... 24
Section 9.5. Landlord's Remedies: Liquidated Damages ........................... 25
Section 9.6. Expenses of Landlord .............................................. 27
Section 9.7. Waiver of Redemption .............................................. 27
Section 9.8. Defaults of Landlord .............................................. 27
Section 9.9. Rights Cumulative ................................................. 27
ARTICLE 10
MISCELLANEOUS .................................................................. 27
Section 10.1. Subordination .................................................... 27
Section 10.2. Sale of Landlord's Interest ...................................... 28
Section 10.3. Offset Statement ................................................. 30
Section 10.4. Attornment ....................................................... 30
Section 10.5. Recording ........................................................ 30
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Section 10.6. Excavations ...................................................... 30
Section 10.7. Access to Premises ............................................... 31
Section 10.8. Quiet Enjoyment .................................................. 31
Section 10.9. Notices .......................................................... 31
Section 10.10. Holding Over .................................................... 32
Section 10.11. Consents by Landlord ............................................ 32
Section 10.12. Successors and Assigns .......................................... 32
Section 10.13. Governmental Regulations ........................................ 32
Section 10.14. Certain Expenses of Landlord .................................... 32
Section 10.15. Force Majeure ................................................... 33
Section 10.16. General ......................................................... 33
Section 10.17. Effect of Ground Lease .......................................... 34
ARTICLE 11
ATTACHMENTS .................................................................... 34
Section 11.1. Attachments ...................................................... 34
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UNIVERSITY RESEARCH PARK
LEASE AGREEMENT
This Lease is made as of the later of dates set forth below the
signatures on the last page hereof, by and between University Research Park
Facilities Corp., a Wisconsin corporation (hereinafter referred to as
"Landlord") and Third Wave Technologies, Ire., a Wisconsin corporation
(hereinafter referred to as "Tenant").
WITNESSETH:
IT IS HEREBY AGREED, by and between the parties hereto, in consideration
of the covenants and agreements set forth in this Lease, as follows:
ARTICLE 1
PREMISES AND TERM
SECTION 1.1 LEASED PREMISES. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord on the terms and provisions and subject to the
conditions hereinafter set forth in this Lease, the following described
premises:
______ Xxxx Road, Xxxxxxx, Xxxx County, Wisconsin, (herein referred to
as the "Leased Premises") consisting of approximately 25,000 square feet
of space and all necessary parking, landscaped and common areas located
in and around that certain building (the "Building") situated upon the
property described in Exhibit A attached hereto (the property described
in Exhibit A is referred to herein as the "Landlord's Property"). The
location of the Building on Landlord's Property is indicated on the site
plan attached hereto as Exhibit B.
It is understood and acknowledged by both parties that Landlord, at the
time of execution of this Lease, holds all or a portion of the Leased Premises
as a tenant under a ground lease
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SECTION 1.2 TERM OF LEASE. The term of this Lease ("the term") shall
begin on ("the commencement date") (a) the date on which a certificate of
occupancy is issued by the City of Madison for the Building in which the Leased
Premises are to be located (which date is expected to be between November 1,
1997 and December 15, 1997); or (b) when Tenant occupies and commences use of
the Leased Premises, whichever date shall be earlier. Subject to the provisions
of Section 1.3 below, the term shall end at midnight on the date five (5) years
thereafter; provided, however, that if the commencement date falls on other than
the first day of a calendar month, the term shall end at midnight five (5) years
after the last day of the calendar month in which the commencement date occurs.
SECTION 1.3. OPTION TO EXTEND TERM. Tenant is hereby granted an option
to extend the term of this Lease for three (3) five (5) year periods, each such
extended terms to begin upon the expiration of the original term or prior
extended term, as the case may be; and all terms, covenants and provisions of
this Lease shall apply to the extended terms with the exception that after the
exercise of such options Tenant shall not have any further options to extend. If
Tenant elects to exercise any option to extend, Tenant shall do so only by
giving Landlord notice in writing of its intention to do so not later than
twelve (12) months prior to the expiration of the original term, or the then
current extended term, as the case may be.
SECTION 1.4 FIRST OPTION TO LEASE ADDITIONAL BUILDINGS. The Building may
be part of a multi-building development on property adjacent to Landlord's
Property (the "Expansion Property") which is also described on Exhibit A. Tenant
shall have the first option to lease space in any buildings constructed on the
"Expansion Property." Construction of such additional buildings shall proceed on
a schedule determined by Landlord provided occupancy of any such
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additional building shall not be prior to December 31, 2002. Prior to entering
into any binding obligation to lease space in any such additional buildings,
Landlord shall first offer such space to Tenant in writing on Landlord's then
current lease terms. Tenant shall have sixty (60) days to accept such offer. If
Tenant does not accept such offer in writing within such time period, Tenant
shall have no further rights with respect to the space thus offered. The
foregoing notwithstanding, prior to the time when Landlord has entered into
binding obligations to lease space in either or both additional buildings,
Tenant may request that Landlord construct additional buildings for occupation
by Tenant at Landlord's then current lease rates but Landlord shall not be
obligated to construct any such buildings. In addition, if Landlord does agree
to construct any such additional building, it shall not be required to commence
construction until Tenant has executed a lease with respect to any such
additional space on Landlord's then current lease terms.
SECTION 1.5 SECURITY DEPOSIT. Tenant shall provide to Landlord upon
execution of this Lease an irrevocable letter of credit in the sum of Six
Hundred Twenty-five Thousand Dollars ($625,000.00) issued by a financial
institution and on a form acceptable to Landlord as security for the performance
of the obligations hereof by Tenant. This letter of credit may provide for a
reduction of the face amount on a schedule corresponding to the remaining amount
of unpaid additional rent under Section 2.1(b) and shall be released as of the
end of the initial team of this Lease, provided Tenant is not then in default.
SECTION 1.6 ADDITIONAL IMPROVEMENTS. The Leased Premises are to be
located in the Building to be constructed by Landlord on Landlord's Property
which Building shall be approximately 25,000 gross square feet and shall be
constructed substantially in compliance with
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the plans and specifications attached hereto as Exhibit C. Landlord shall
provide tenant improvements for the Leased Premises as provided on Exhibit C,
provided the cost of such tenant improvements, not including HVAC, electrical
and plumbing distribution, does not exceed $504,000.00. Any such costs in excess
of $504,000.00 shall be Tenant's sole responsibility.
ARTICLE 2
RENT
SECTION 2.1 BASE RENT. Tenant shall pay to Landlord at its office in
Madison, Wisconsin, or such other place as Landlord may designate in writing,
and without any deduction or offset whatsoever, as base rent, the following
amounts on or in advance of the first day of each calendar month:
(a) The sum of Nine Dollars ($9.00) per square foot per year in 12
equal monthly installments during the first year of this Lease;
and
(b) The sum of $122,632.00 per year in 12 equal monthly installments
during the initial term of this Lease; and
(c) The base rent-provided for in paragraph 2.1(a) above shall be
increased by four (4%) percent compounded annually. The first
such increase shall take place on January 1, 1999.
For purposes of paragraph 2.1(a), the number of square fax in the Leased
premises shall be the actual gross square footage of the Leased Premises as
certified by Xxxxxx, Inc. If the term of this Lease does not commence on the
first day of a calendar month, the base rent for such fractional month shall be
computed pro rata on the basis of thirty (30) days per month and
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paid to Landlord on the first day of the next succeeding calendar month along
with the rent for such succeeding month.
SECTION 2.2 ADDITIONAL RENT. In addition to base rent, Tenant shall pay
as part of the consideration for this Lease and as additional rent, hereinafter
designated "additional rent," all additional amounts hereinafter provided for
and the same shall be payable upon Landlord's demand except as otherwise
expressly provided.
SECTION 2.3 PAST DUE RENT. If Tenant shall fail to pay when due any base
rent or additional rent and such amount shall not be paid within ten (10) days
after the date when due, such unpaid amounts shall bear interest from the due
date thereof to the date of payment at the rate of ten (10%) percent per annum
or the prime interest rate then charged by the Firstar Bank Wisconsin or its
successors or assigns, whichever is greater.
SECTION 2.4 REAL ESTATE TAXES. Landlord shall pay all real estate taxes
on Landlord's Property, including all general real estate taxes, personal
property taxes on Landlord's Property and installments for special assessments
arising during the term of the Lease. Tenant agrees to reimburse Landlord for
Tenant's pro rata share of such taxes. Until substantial completion of
additional buildings on the Expansion Property, Tenant's pro rata share of such
taxes shall be 100%.
Tenant's obligation for each tax described in this section shall be
further prorated for the first year of this Lease between Landlord and Tenant as
of the commencement date of this Lease.
Along with Tenant's monthly teat, Tenant shall pay to Landlord an amount
equal to one twelfth (1/12) of its pro rata share of the estimated annual real
estate taxes, personal property
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taxes and installments for special assessments for Landlord's Property. Such
payment shall be applied by Landlord to the payment of the taxes on the
Landlord's Property. Tenant shall be responsible for the prompt payment of its
pro rata share of any deficiency so that all such taxes shall be paid before the
same become delinquent. At the termination of this Lease, Tenant shall promptly
pay Landlord for Tenant's pro rata share of the estimated taxes for that portion
of the termination year during which the Lease is in effect. Such estimate shall
be based upon the taxes for the preceding year.
Tenant's pro rata share of taxes shall be adjusted from time to time as
additional buildings are included in the Project as substantially completed
described in Article 5 hereof.
ARTICLE 3
INSTALLATIONS, REPAIRS AND MAINTENANCE OF LEASE PREMISES
SECTION 3.1 MAINTENANCE BY TENANT. Tenant shall at all times keep the
Used Premises and all tenant improvements, partitions, doors, fixtures,
electrical and lighting fixtures, equipment and appurtenances thereof (including
but not limited to lighting, electrical and plumbing equipment, fixtures and
lines located outside the Leased Premises, but excluding such equipment,
fixtures and lines to the extent they serve the entire Building or areas in
addition to the Leased Premises) in good order, condition and repair, including
periodic painting as determined by Landlord. If Tenant refuses or neglects to
repair property as required hereunder and to the reasonable satisfaction of
Landlord as soon as reasonably possible after written demand, Landlord may make
such repairs without liability to Tenant for any loss or damage that may accrue
to Tenant's property or to Tenant's business by reason thereof, and upon
completion thereof, Tenant shall pay Landlord's costs for making such repairs
plus twenty (20%) percent
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for overhead, upon presentation of xxxx therefor, as additional rent. When used
in this paragraph, the term "repairs" shall include replacements and renewals
when necessary and all such repairs shall be equal in quality and class of
original work.
SECTION 3.2 MAINTENANCE BY LANDLORD. Landlord shall keep foundations,
exterior walls, roof and all other structural members, both interior and
exterior, of the Leased Premises and all common areas in good repair and shall
have access to the Leased Premises for such purpose, but Landlord shall not be
required to make any such repairs which become necessary or desirable by reason
of the negligence of Tenant, its agents, servants, employees or customers.
Landlord shall also keep and maintain heating, ventilating, air conditioning,
plumbing and electrical lines, fixtures and equipment (except those which are
the responsibility of Tenant) and Landlord's cost therefor shall be reimbursed
by Tenant along with common area charges pursuant to Section 5.5 below. When
used in this paragraph, the term "repairs" shall include replacements and
renewals when necessary and all such repairs shall be equal in quality and class
of original work. Landlord shall not be required to make any such repairs which
become necessary or desirable by reason of the negligence of Tenant, its agents,
servants, employees or customers.
SECTION 3.3 EXTERIOR SIGNS. All signs to be installed by Tenant shall be
approved in advance in writing by the Design Review Board appointed by the Board
of Regents of the University of Wisconsin System. All signs to be installed by
Landlord shall be approved in advance in writing by the Design Review Board.
Tenant shall remove all signs installed by Tenant at the termination of
this Lease. Such installations and removals shall be made in such a manner as to
avoid injury, defacement or any
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other damages to the buildings and improvements. The cost of repairing any
damage to the building caused by the installation, removal, or maintenance of
the sign shall be borne by the Tenant.
The cost of all signs, other than those furnished by Landlord, including
the installation, maintenance, and removal thereof, shall be the responsibility
of the Tenant.
SECTION 3.4. ALTERATIONS, CHANGES AND INSTALLATIONS BY TENANT. Tenant
shall not make or cause to be made any alterations, additions or improvements to
the Leased Premises, or cause to be installed any fixtures, interior or exterior
lighting, plumbing equipment or mechanical equipment, without the prior written
consent of Landlord.
SECTION 3.5 FIXTURES AND EQUIPMENT. Subject to Section 3.4, Tenant may,
at its own expense, furnish and install such equipment and business and trade
fixtures in and on the Premises as may be necessary or desirable for Tenant's
business. Any such equipment and fixtures shall remain the personal property of
Tenant and may be removed by Tenant during or at the expiration of the term of
this Lease provided Tenant shall repair damage caused by such removal and
restore the Leased Premises to the condition existing prior to installation of
such equipment or fixtures, reasonable wear and tear excepted.
SECTION 3.6 LIENS AND OBLIGATIONS. Tenant agrees not to create or to
permit others to create any lien or obligations against Landlord or the Leased
Premises in making alterations, repairs or in installing materials, fixtures or
equipment, agrees to cause any claim for such lien to be released, and further
agrees to hold Landlord harmless from all claims and demands by any third party
in any manner connected with such alterations, repairs or installations or with
Tenant's occupancy for such purpose. Tenant shall comply with all laws and all
directions, rules
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and regulations of all governmental regulatory bodies or officials having
jurisdiction over such alterations, repairs or installations, except that Tenant
shall not be required to comply with any laws, regulations or orders by
governmental authority necessitating structural alterations, changes, repairs or
additions, unless made necessary by the act or work performed by Tenant, in
which case Tenant shall so comply, at its own expense, after first procuring
the written consent of Landlord.
ARTICLE 4
CONDUCT OF BUSINESS
SECTION 4.1 BUSINESS USE. It is understood and agreed that the Leased
Premises shall be used and occupied by Tenant as an office, laboratory and light
manufacturing. Tenant shall not use the Leased Premises for any use not
identified as a permitted use by any zoning ordinance or other governmental
regulation relating to the Leased Premises or approved as a conditional use by
the governmental bodies having zoning authority. No use shall be permitted, or
acts done, which will cause a cancellation of any insurance policy covering the
Leased Premises. Tenant shall not sell, permit to be kept, used or sold in or
about the Leased Premises any article which may be prohibited by the standard
form of fire insurance policy. In the event Tenant's use of the Leased Premises
results in an increase in the cost of any insurance relating to the Landlord's
Property, Tenant shall pay such additional cost to Landlord upon demand. Tenant
shall comply with all applicable laws, ordinances, regulations and/or deed and
plat restrictions affecting the use and occupancy of the Leased Premises. Tenant
shall not commit, or permit to be committed, any waste or nuisance on the Leased
Premises.
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SECTION 4.2 UTILITY CHARGES. Tenant shall be responsible for all charges
for heat, water, gas, sewer, electricity or any other utility used or consumed
in the Leased Premises including supplemental heating and charges for operation
of heating, ventilating and air conditioning equipment. If Tenant is not the
sole occupant of the Building and if utilities are not separately metered,
utility costs shall be prorated on a reasonable basis. In no event shall
Landlord be liable for an interruption or failure in the supply of any such
utilities to the Leased Premises.
SECTION 4.3 ASSIGNMENT OR SUBLETTING. Tenant agrees not to sell, assign,
mortgage, pledge or in any manner transfer this Lease or any estate or interest
thereunder and not to sublet the Leased Premises or any part or parts thereof
without the prior written consent of Landlord in each instance which consent
shall not be unreasonably withheld. Consent by Landlord to one assignment of
this Lease or to one licensing or subletting of the Leased Premises shall not be
a waiver of Landlord's rights hereunder as to subsequent assignment or
subletting. Landlord's rights to assign this Lease are and shall remain
unqualified.
SECTION 4.4 RULES AND REGULATIONS. The rules and regulations appended to
this Lease as Exhibit D are hereby made a part of this Lease, and Tenant agrees
to comply with and observe the same. Tenant's failure to keep and observe said
rules and regulations shall constitute a breach of the terms of this Lease in
the manner as if the same were contained herein as covenants. Landlord reserves
the right from time to time to amend or supplement said rules and regulations
and to adopt and promulgate additional rules and regulations applicable to
Leased Premises and the Expansion Property, provided that such additional rules
and regulations do not unreasonably interfere with Tenant's use and enjoyment of
the Leased Premises. Notice of such additional rules and regulations, and
amendments and supplements, if any, shall be given to
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Tenant, and Tenant agrees thereupon to comply with and observe all such rules
and regulations and amendments thereto and supplements thereof.
SECTION 4.5. ADA COMPLIANCE. In the event the Building, or any portion
thereof, shall be deemed a "public accommodation" under Title III of the
Americans With Disabilities Act ("ADA", 42 U.S.C. Sections 12181-12213, 47
U.S.C. Sections 225,611) the responsibilities of Landlord with Tenant with
respect to compliance with provisions of Title III of the ADA shall be as
follows:
(a) Initial Construction. Landlord hereby certifies that the common
areas of the Building and all interior doorways (including door
hardware), passageways, aisles, and exits as initially
constructed, comply with the Accessibility Guidelines under the
ADA.
(b) Barrier Removal. Tenant shall be responsible for complying with
the "barrier removal" provisions of the ADA with respect to the
Leased Premises. In addition, to the extent such barrier removal
would require actions by Tenant, which actions are subject to
Landlord's approval, Landlord shall provide such approval upon
presentation by Tenant of evidence reasonably satisfactory to
Landlord that such barrier removal is reasonable in scope and
nature in-order for Tenant to fulfill its obligations under the
ADA. To the extent any modifications or alternations by Tenant
within the Leased Premises creates an obligation by Landlord to
provide a "path of travel," the cost of creating such path of
travel shall be paid entirely by Tenant.
(c) Auxiliary Aids and Services. Landlord shall be responsible for
providing any required "auxiliary aids and services" in the
common areas of the Building.
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Tenant shall be responsible for providing any required auxiliary
aids and services in the Leased Premises.
(d) Nondiscrimination. Tenant shall comply with all of the
nondiscrimination provisions of the ADA with respect to the
leased Premises and its business operations.
SECTION 4.6 SURRENDER. On the last day of the term of this Lease,
including any option term, or upon the sooner termination thereof, Tenant shall
peaceably and quietly surrender the Leased Premises and all improvements thereon
in the same condition as at the commencement of this Lease, in good order,
condition and repair, fire and other unavoidable casualty, and reasonable wear
and tear excepted. Except as provided in Section 3.5, all alterations,
additions, improvements and fixtures which may be made or installed by either
Landlord or Tenant upon the Leased Premises shall remain the property of
Landlord and shall remain upon and be surrendered with the Leased Premises as a
part thereof, without disturbance, molestation or injury at the termination of
the term of this Lease, whether by the elapse of time or otherwise, all without
compensation or credit to Tenant. Any personal property not removed shall be
deemed abandoned and shall become the property of Landlord; provided, that the
Landlord shall have the option to effect said removals and Tenant shall pay
Landlord, on demand, the cost thereof, with interest at the rate of ten (10%)
percent per annum from the date of such removal by Landlord, or the prime
interest rate established by the Firstar Bank Wisconsin or its successors or
assigns, whichever is higher.
If, prior to surrender of the premises or within twenty (20) days
thereafter, Landlord so directs by written notice to Tenant, Tenant shall repair
any damage occasioned by such removals
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or Tenant will pay to Landlord, on demand, the cost thereof with interest from
the date of completion of such repairs by Landlord, at the rate specified in the
immediately preceding paragraph of this Lease.
The delivery to Landlord at the place then fixed for the payment of rent
of the keys to the Leased Premises shall constitute surrender of the premises by
Tenant and acceptance of the keys by Landlord shall constitute acceptance by
Landlord of such surrender. Such acceptance by Landlord shall not constitute a
waiver of any rights to recover damages under terms of this Lease. This method
of surrender shall not be exclusive and shall be in addition to all other
methods of surrender.
Anything in this section to the contrary notwithstanding, at any
termination of this Lease, Landlord shall have a lien upon all of the property
of Tenant then located in or upon the leased Premises to secure the payment of
any amounts due from Tenant to Landlord by reason of this Lease or to secure the
payment of damages, and Landlord may retain possession of such property until
payment in full of said amounts. Said lien shall not be defeated by placing such
property in storage. If Tenant has not redeemed said property within ninety (90)
days after the termination of said Lease, Landlord may sell such property at
public or private sale without further notice to Tenant, and shall apply in a
reasonable manner determined by Landlord the proceeds of sale to reduce the
amounts then owed from Tenant to Landlord.
ARTICLE 5
COMMON USE AREAS AND FACILITIES
SECTION 5.1. COMMON AREA. The Building is part of a planned
multi-building development including Landlord's Property and the Expansion
Property. This multi-building
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development is referred to herein as the "Project." As used herein, "common
area" shall include all of those portions of the Building and Landlord's
Property and portions of additional buildings and areas located on the Expansion
Property and designated by Landlord as part of the Project which are designed
for common use and benefit, exclusive of space designed for rental to Tenants
for commercial purposes as the same may exist from time to time. Landlord
reserves the right to construct additional buildings on the Expansion Property
as part of the Project and include the costs of maintaining the common area of
such buildings and property with the costs of the Building. Landlord also
reserves the right to develop such additional buildings on the Expansion
Property independent of the Building and not include the costs of maintaining
the common area of such buildings with the costs of maintaining the common area
of the Building. In the event Landlord does include the cost of maintaining the
common area of one or more other buildings with the cost of maintaining the
common area of the Building, the tenants of all buildings for which costs are
included shall contribute to the costs of such maintenance on the same basis.
The foregoing notwithstanding, reasonable and adequate access and parking shall
be provided for the Leased Premises and Tenant's use and enjoyment of the Leased
Premises shall not be materially adversely affected at all times.
SECTION 5.2. USE OF COMMON AREA. Landlord hereby grants to Tenant, its
employees, agents, customers and invitees, the nonexclusive right during the
term of this Lease to use the common area, as such may from time to time be
constituted, such use to be in common with Landlord and all tenants of the
Project from time to time, their employees, agents, customers and invitees,
except when the same are being repaired.
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SECTION 5.3. OPERATION AND MAINTENANCE. The common area shall at all
times be subject to the exclusive control and management of Landlord and
Landlord shall manage, operate, repair and maintain the common area and its
facilities in a clean and sightly condition. The manner in which such area and
facilities shall be maintained and the expenditures therefor shall be at the
Landlord's sole discretion.
SECTION 5.4. PREVENTING PUBLIC RIGHTS. If Landlord deems it necessary in
order to prevent the acquisition of special rights, Landlord may from time to
time close all or any portion of the common area or take such action as shall be
reasonably appropriate for that purpose.
SECTION 5.5. CHARGE FOR COMMON AREA AND FACILITIES. During the term of
this Lease Tenant shall pay to Landlord an annual charge which shall be Tenant's
pro rata share of the Landlord's actual cost of operating, repairing, and
maintaining the common area and its facilities which shall include, but is not
limited to parking areas, landscaped and vacant areas, area-ways, drives, walks,
curbs, corridors, stairwells, gardens, sanitary and storm sewers, signs, public
facilities (such as washrooms, drinking fountains and toilets), the cost of
operating and repairing common area lighting, heating, ventilating and air
conditioning systems, cleaning, painting, removing of snow, ice and debris,
policing and inspecting, insurance for hazards and other risks, maintenance,
including but not limited to such repair of paving, curbs, walkways, driveways,
landscaping and drainage and lighting facilities as may be necessary from time
to time to keep the same in good condition and repair, a reasonable allowance
for the depreciation of maintenance equipment, a reasonable allowance for
Landlord's overhead costs in conjunction with the foregoing, and all costs and
expenses other than those of a capital nature, but excluding
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legal fees recovered by Tenant from Landlord in any litigation relating to this
Lease. Landlord shall provide Tenant with an itemized statement of such costs
upon request.
SECTION 5.6. FORMULA FOR PRO RATA SHARE. The annual charge for common
area maintenance and facilities shall be computed on the basis of twelve (12)
consecutive calendar months commencing and ending on dates designated by the
Landlord and shall be paid in advance in monthly installments on the first day
of each calendar month in an amount estimated by Landlord. Within sixty (60)
days after the end of each such twelve (12) month period, Landlord shall
determine and furnish to Tenant a computation of the actual amount charged for
such period; and the amounts so estimated and paid during such period shall be
adjusted promptly (including adjustments on a pro rata basis for any partial
such period at either end of the Lease term) by one party's paying to the other
whatever amount is necessary to effectuate such adjustment.
As of the commencement date, the Tenant's pro rata share of the
Landlord's actual costs defined in this Article shall be that portion which the
area in the Leased Premises bears to the total leasable area in the Building.
After substantial completion of such additional buildings in the Project, or the
Tenant's pro rata share of the Landlord's actual costs defined in this Article
shall be that portion which the area in the Leased Premises bears to the total
leasable area in all such buildings substantially completed.
SECTION 5.7. BASIS FOR CHANGES. Changes in any particular floor area
occurring during any calendar month shall be effective on the first day of the
next succeeding calendar month and the amounts of any floor area in effect for
the whole of any year shall be the average of the total amounts in effect on the
first day of each calendar month in such year.
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ARTICLE 6
INSURANCE
SECTION 6.1. CASUALTY INSURANCE. Landlord shall at all times during the
term of this Lease keep all improvements which are now or hereafter located on
the Landlord's Property insured against loss or damage by fire and the extended
coverage hazards at full insurance value with loss payable to Landlord,
Landlord's mortgagee and such other parties as Landlord may designate, as their
interests may appear.
Tenant agrees to reimburse Landlord for its pro rata share of the cost
of such insurance based upon that portion of the policy year during which this
Lease is in effect. As of the commencement date, the Tenant's pro rata share of
the Landlord's actual costs shall be that portion which the area in the Leased
Premises bears to the total leasable area in the Building. After substantial
completion of any such additional buildings in the Project, or the Tenant's pro
rata share of the Landlord's actual costs shall be that portion which the area
in the Leased Premises bears to the total leasable area in all such buildings
substantially completed. Each month Tenant shall pay to Landlord an amount
equal to one-twelfth (1/12) of its pro rata share of the estimated annual
casualty insurance premium. Upon Landlord's receipt of any premium notice,
Tenant shall upon demand make up any deficiency to the extant of its pro rata
share.
SECTION 6.2. PUBLIC LIABILITY INSURANCE. Landlord shall at all times
during the term of this Lease keep in full force and effect a policy of public
liability and property damage insurance with respect to the Landlord's Property
acrd all business operated thereon, with limits of public liability not less
than Three Million and No/100 ($3,000,000.00) Dollars for injury or death in any
one occurrence, and property damage liability insurance in the amount of Three
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Hundred Thousand and No/100 ($300,000.00) Dollars. The policies shall name
Landlord, Tenant and Landlord's mortgagees and the lessor on the underlying
ground lease as co-insureds as their interests may appear. Upon written request
by Tenant, Landlord shall provide the Tenant with evidence of such insurance,
including identification of the Tenant as a co-insured. Landlord may from time
to time during the term of this Lease increase the above stated coverage in its
discretion. Tenant shall reimburse Landlord for its pro rata share of the cost
of such insurance in the same manner as provided in Section 6.1 regarding
casualty insurance.
SECTION 6.3. TENANT'S CONTENTS. Tenant shall be responsible for
obtaining such insurance as it may deem advisable for all property located in
the Leased Premises. It is understood that the insurance carried by Landlord
does not cover the risk of loss or damage to Tenant's property. Tenant waives
any claim against Landlord and shall save Landlord harmless from any claim for
loss or damage to contents, merchandise, fixtures, equipment or work done by
Tenant regardless of the cause of any such damage or loss.
SECTION 6.4. INCREASE IN FIRE INSURANCE. Tenant agrees that it will not
keep or use, in or upon the Leased Premises any article which may be prohibited
by the standard form fire insurance policy. If Tenant's use or occupancy causes
any increase in premiums for fire or casualty insurance on the Landlord's
Property, or the Leased Premises, or any part thereof, above the rate of the
least hazardous type of occupancy legally permitted in the Leased Premises,
Tenant shall pay the additional premium on such insurance. No part of such
additional premium resulting from the use or occupancy of another tenant shall
be charged to Tenant under Sections 6.1 and/or 6.2 of this Lease. The Tenant
shall also pay in such event any additional premium on any rent insurance policy
that may be carried by the Landlord for its protection against rent
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loss through fire or other casualty. Bills for such additional premiums shall be
rendered by Landlord to Tenant at such times as Landlord may elect, and shall be
due and payable by Tenant when rendered, and the amount thereof shall be deemed
to be, and be paid as, additional rent.
SECTION 6.5. HOLD HARMLESS. Landlord shall not be liable for any loss,
injury, death or damage to persons or property which at any time may be suffered
or sustained by Tenant or by any person whosoever may at any time be using or
occupying or visiting the Leased Premises or be in, on, or about the same,
whether such loss, injury, death, or damage shall be caused by or in any way
result from or arise out of any act, omission, or negligence of Tenant or of any
occupant, subtenant, visitor, or user of any portion of the Leased Premises, or
shall result from or be caused by any other matter or thing whether of the same
kind as or of a different kind than the matters or things above set forth, and
Tenant shall indemnify Landlord against all claims, liability, loss or damage
whatsoever on account of any such loss, injury, death, or damage. Tenant shall
indemnify Landlord against all claims, liability, loss or damage arising by
reason of the negligence or misconduct of Tenant, its agents or employees.
Tenant hereby waives all claims against Landlord for damages to the building and
improvements that are now on or hereafter placed or built on the Landlord's
Property and to the property of Tenant in, on, or about the Landlord's
Property, and for injuries to persons or property in or about the Landlord's
Property, from any cause arising at any time. The preceding sentences shall not
apply to loss, injury, death, or damage arising by reason of the negligence or
misconduct of Landlord, its agents, or employees.
Tenant shall not be liable for any loss, injury, death, or damage to
persons or property which at any time may be suffered or sustained by third
parties, including Landlord's agents,
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employees or contractors, or whosoever may at any time be using or occupy or
visiting portions of the Landlord's Property other than the Leased Premises, or
be in, on, or about the same, to the extent such loss, injury, death, or damage
shall be caused by or in any way result from or arise out of any act, omission,
or negligence of Landlord, its agents, employees or contractors, or of any
occupant, tenant, visitor, or user of any portion of the Landlord's Property,
other than the Leased Premises, and Landlord shall indemnify Tenant against all
claims, liability, loss, or damage whatsoever on account of any such loss,
injury, death or damage. The preceding sentence shall not apply to loss, injury,
death or damage to the extent caused by the negligence or misconduct of Tenant
or its agents, employees or contractors.
SECTION 6.6. WAIVER OF SUBROGATION. Landlord and Tenant hereby release
each other from any and all liability or responsibility to the other (or to
anyone claiming through or under them by way of subrogation or otherwise) for
any loss or damage to property caused by fire or any of the extended coverage or
supplementary insurance contract casualties, even if such fire or other casualty
shall have been caused by the fault or negligence of the party or anyone for
whom such party may be responsible, provided, however, that this release shall
be applicable and in force and effect only in respect to loss or damage
occurring during such time as the releaser's policies shall contain a clause or
endorsement to the effect that any such release shall not adversely effect or
impair or prejudice the right of the releaser to recover thereunder. Landlord
and Tenant each agree that their policies will include such a clause or
endorsement so long as the same is obtainable and if not obtainable, shall so
advise the other in writing and such notice shall release both parties from the
obligation to obtain such a clause or endorsement.
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ARTICLE 7
DESTRUCTION OF LEASED PREMISES
SECTION 7.1. DESTRUCTION OF LEASED PREMISES. If the Building is damaged
or partially destroyed by fire or other casualty to the extent of less than
one-quarter (1/4) of the then cost of replacement thereof above foundation, the
same shall be repaired as quickly as is practicable, by Landlord, except that
the obligation of Landlord to rebuild shall be limited to repairing or
rebuilding of Landlord's improvements. If the Building is so destroyed or
damaged to the extent of one-quarter (1/4) or more of the then replacement cost
thereof, then Landlord may elect not to repair or rebuild by giving notice in
writing terminating this Lease, in which event this Lease shall be terminated as
of the date of such notice.
SECTION 7.2. REBUILDING BY LANDLORD. If Landlord shall undertake to
restore or repair the Building, it shall initiate and pursue the necessary work
with all reasonable dispatch, in a manner consistent with sound construction
methods.
SECTION 7.3. ABATEMENT OF RENT UPON DESTRUCTION OF PREMISES. If such
damage or partial destruction renders the Leased Premises wholly untenantable,
the base rent shall xxxxx until the Leased Premises have been restored and
rendered tenantable. If such damage or partial destruction renders the premises
untenantable only in part, the base rent shall xxxxx proportionately as to the
portion of the Leased Premises rendered untenantable. Rent shall not xxxxx under
this section if the damage or destruction is caused by the negligence or
misconduct of Tenant, its agents, employees, customers or invitees.
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ARTICLE 8
EFFECT OF CONDEMNATION
SECTION 8.1. TOTAL CONDEMNATION. In the event that the Leased Premises
or such part of the Leased Premises as will render the remainder untenantable,
shall be appropriated or taken under the power of eminent domain by any public
or quasi-public authority, this Lease shall terminate and expire as of the date
of taking.
SECTION 8.2. PARTIAL CONDEMNATION. In the event of partial condemnation,
not rendering the remainder of the Leased Premises untenantable or significantly
impairing the operation of Tenant's business, this Lease shall remain in full
force and effect, with the exception that the base rent shall be reduced in
proportion to the area of the Leased Premises lost by condemnation.
SECTION 8.3. LANDLORD'S DAMAGES. In the event of any condemnation or
taking, whether whole or partial, the Tenant shall not be entitled to any part
of the award paid for such condemnation and Landlord is to receive the full
amount of such award, the Tenant hereby expressly waiving any rights or claim to
any part thereof.
SECTION 8.4. TENANT'S DAMAGES. Although all damages in the event of any
condemnation are to belong to the Landlord whether such damages are awarded as
compensation for diminution in value of the leasehold or to the fee of the
Leased Premises, Tenant shall have the right to claim and recover from the
condemning authority, but not from Landlord, such compensation as may be
separately awarded or recoverable by Tenant in Tenant's own right on account of
any and all damage to Tenant's business by reason of the condemnation, and for
or on account of any cost or loss to which Tenant might be put in removing
Tenant's property.
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ARTICLE 9
REMEDIES
SECTION 9.1. EVENTS OF DEFAULT BY TENANT. Upon the failure by Tenant to
pay rent when due, Landlord may terminate this Lease or Tenant's right to use
and occupy the Leased Premises by ten (10) days' written notice to Tenant unless
Tenant within such ten (10) days pays all rent due. Upon the happening of any
one or more of the following events: (a) the levying of a writ of execution or
attachment on or against the property of Tenant; (b) the taking of any action
for the voluntary dissolution of Tenant; (c) the commencement of a mechanic's
lien foreclosure action against Tenant as a result of a mechanic's lien or claim
therefor against the land or Building of which the Leased Premises are a part;
and (d) the failure of Tenant to perform any other of the terms, provisions, and
covenants of this Lease, Landlord may terminate this Lease or Tenant's right to
use and occupy the Leased Premises by thirty (30) days' written notice to Tenant
unless Tenant, within such thirty (30) day period, cures the specified default
or, if the default is of a character which cannot be cured within thirty (30)
days, the Tenant commences and diligently pursues the cure of such default
within thirty (30) days.
SECTION 9.2. RE-ENTRY BY LANDLORD. Upon such termination of the Lease or
termination of Tenant's right to use and occupy the Leased Premises as
aforesaid, or if Tenant at any time during the term of this Lease vacates the
premises or ceases operating said business in the entire or any appreciable part
of the Lid Premises, except for causes beyond its control, Landlord may reenter
the Leased Premises.
SECTION 9.3. RIGHT TO RELET. Should Landlord elect to reenter, as herein
provided, or should it take possession pursuant to legal proceedings or pursuant
to any notice provided for
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by law, it may either terminate this Lease or it may from time to time without
terminating this Lease, make such alterations and repairs as may be necessary in
order to relet the Leased Premises, and relet the Leased Premises or any part
thereof for such term or terms (which may be for a term extending beyond the
term of this Lease) and at such rental or rentals upon such other terms and
conditions as Landlord in its sole discretion may deem advisable upon each such
reletting. All rentals received by the Landlord from such reletting shall be
applied, first, to the payment of any indebtedness other than rent due hereunder
from Tenant to Landlord; second, to the payment of any costs of such alterations
and repairs; third, to the payment of rent due and unpaid future rent as the
same may become due and payable hereunder. If such rentals received from such
reletting during the month be less than that to be paid during that month by
Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of said premises by Landlord shall be construed as an election in its
part to terminate this Lease unless a written notice of such intention be given
to Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect to terminate this Lease for such previous
breach. Should Landlord at any time reenter or terminate this Lease for any
breach, in addition to any other remedies it may have, it may recover from
Tenant all damages it may incur by reason of such breach, including the cost of
recovering the Leased Premises and reasonable attorney's fees. All of which
amounts shall be immediately due and payable from Tenant to Landlord.
SECTION 9.4. PARTIES MAY REMEDY DEFAULTS. In the event of any breach
hereunder by either party, and in lieu of Landlord's terminating this Lease as
herein provided, Landlord or
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Tenant respectively may immediately or at any time thereafter, after having
given the other party the requisite notice to correct the same and that time for
such correction having elapsed, cure such breach for the account and at the
expense of the other party. If Landlord or Tenant at any time, by reason of such
breach, is compelled to pay, or elects to pay, any sum of money or do any act
which will require the payment of any sum of money, or incurs any expense,
including reasonable attorney's fees, in instituting or prosecuting any action
or proceeding to enforce such party's rights hereunder, the sum or sums so paid
or incurred by such party, if paid or incurred by Landlord, shall be deemed to
be additional rent hereunder and shall be due from Tenant to Landlord on the
first day of the month following the payment of such respective sums, and if
paid or incurred by Tenant, shall be due and payable by Landlord on demand
without interest. This option given to the parties is intended for their
protection and its existence shall not release the parties from the obligation
to perform the terms and covenants herein provided to be performed by the
respective parties or deprive Landlord of any legal rights which it may have by
reason of any default of Tenant.
SECTION 9.5. LANDLORD'S REMEDIES: LIQUIDATED DAMAGES. In the event that
at any time, whether before or after the commencement of the term hereof, a
bankruptcy petition shall be filed by Tenant or against Tenant and Tenant shall
thereafter be adjudicated a bankrupt, or such petition shall be approved by the
court, in any court or pursuant to any statute either of the United States or of
any State, whether in bankruptcy, insolvency, for reorganization under Chapter
XI or XIII of the Bankruptcy Act or under any other provisions of the Bankruptcy
Act, or under the provisions of any law of like impact, for the appointment of a
receiver or trustee of Tenant or for the property of Tenant, or if Tenant shall
make an assignment of Tenant's
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property for the benefit of its creditors, or if proceedings are instituted in a
court of competent jurisdiction for the reorganization, liquidation or
involuntary dissolution of Tenant, then immediately upon the happening of any
such event, and without any entry or other act by Landlord, this Lease and the
term and estate hereby granted (whether or not the term shall therefore have
commenced) shall expire, terminate and come to an end in the same manner and
with the same force and effect as if the date of such occurrence were the date
hereinbefore fixed for the expiration of the term hereof. In the event of the
termination of the term hereof by the happening of any such event, Landlord
shall forthwith upon such termination, and any other provisions of this Lease to
the contrary notwithstanding, become entitled to recover as and for liquidated
damages caused by such breach of the provisions of this Lease an amount equal to
the difference between the then cash value of the rent reserved hereunder for
the unexpired portion of the demised term and the then cash rental value of the
Leased Premises for such unexpired portion of the term hereby demised unless the
statute which governs or shall govern the proceeding in which such damages are
to be provided limits or shall be entitled to prove as and for liquidated
damages an amount equal to that allowed by or under such statute. The provision
of this paragraph shall be without prejudice to Landlord's right to prove in
full damages for rent accrued prior to the termination of this Lease but not
paid. This provision of this Lease shall be without prejudice of any rights
given Landlord by any pertinent statute to prove any amounts allowed thereby. In
making such computation, the then cash rental value of the Leased Premises shall
be deemed prima facie to be the rent realized upon any reletting, if such
reletting can be accomplished by Landlord within a reasonable time after such a
termination of this Lease.
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SECTION 9.6. EXPENSES OF LANDLORD. Upon the occurrence of an event of
default, notwithstanding anything herein to the contrary and whether or not
Landlord terminates this Lease, Tenant shall promptly, upon request, reimburse
Landlord for all costs and expenses reasonably incurred in enforcing this Lease,
including reasonable attorneys' fees.
SECTION 9.7. WAIVER OF REDEMPTION. Tenant hereby expressly waives any
and all rights of redemption granted by or under any present or future laws in
the event of Tenant's being evicted or dispossessed for any cause, or in the
event of Landlord's obtaining possession of the Leased Premises, by reason for
the violation by Tenant of any of the covenants or conditions of this Lease, or
otherwise.
SECTION 9.8. DEFAULTS OF LANDLORD. Should Landlord be in default under
the terms of this Lease, Landlord shall cure such default within thirty (30)
days after written notice of such default from Tenant, or in the event such
default is of such a character as to require more than thirty (30) days to cure,
Landlord shall use due diligence to cure such default.
SECTION 9.9. RIGHTS CUMULATIVE. All rights and remedies of Landlord and
Tenant herein enumerated shall be cumulative and none shall exclude any other
right or remedy allowed by Law, and said rights and remedies may be exercised
and enforced concurrently and whenever and as often as occasion therefor arises.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. SUBORDINATION. At Landlord's option, this Lease shall be
subordinated to any existing mortgages covering the Leased Premises, any
extension or renewal thereof, or to any new mortgages which may be placed
thereon from time to time, provided, however,
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anything to the contrary contained herein notwithstanding, every such mortgage
shall contain a provision that the mortgagee shall recognize the validity of
this Lease in the event of foreclosure of the Landlord's interest so long as
Tenant shall not be in default under the terms of this Lease. Tenant shall
execute whatever instruments may be required to effect such subordination.
SECTION 10.2. SALE OF LANDLORD'S INTEREST. Prior to a transfer by
Landlord of its interest in the Premises and this Lease, the following shall
occur:
(a) First Right. In the event Landlord determines to dispose of its
interest in the Premises and this Lease, Landlord shall notify
Tenant in writing of its intention and shall offer to sell the
Premises to Tenant at the price and on terms stated in such
notice. Tenant shall have sixty (60) days in which to accept or
decline such offer. If Tenant fails to accept Landlord's offer
in writing within such period, Landlord may then sell the
Premises, subject to (b) below, to a third party.
(b) Right of First Refusal. In the event Landlord shall receive from
a third party at any time during the term of this lease, or any
extension thereof, a bona fide offer to purchase the Building or
Landlord's Property, which offer Landlord desires to accept,
Landlord shall promptly give to Tenant notice thereof
accompanied by an affidavit setting out the full terms of such
offer and Landlord's desire to sell for the price and on the
terms offered. Tenant shall have the right of first refusal to
purchase the property described in such offer at such price and
on such terms. Tenant may exercise said right of first refusal
by giving Landlord written notice of Tenant's election to do so
within sixty (60) days of Tenant's receipt of said notice and
affidavit. If Tenant shall not so elect within said period of
sixty (60)
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days, Landlord may then sell the property described in the
offer, subject to this Lease, but excluding this right of first
refusal, to such third party on the terms and conditions and for
the price set forth in the said notice and affidavit to Tenant.
Landlord shall complete such sale within 180 days of the date of
the notice and affidavit or the terms of this paragraph (b)
shall apply again to such sale.
(c) Scope and Limitations. The rights of Tenant in this Section 10.2
shall be cumulative and consecutive. Tenant's first right and
right of first refusal shall only apply to a separate and
individual transfer of the Building to an unrelated third party
not affiliated or in anyway benefiting the University of
Wisconsin. Tenant's right of first refusal and first right shall
not apply to a transfer necessary to maintain Landlord's tax
exempt status, or as part of a transfer of all or substantially
all of Landlord's interest in all land in the University
Research Park. However, any subsequent transfer not to such an
entity or not for a similar purpose shall be subject to Tenant's
rights.
(d) Effect of Sale. Upon any sale, transfer or conveyances, Landlord
shall cease to be liable under any covenant, condition or
obligation imposed upon it by this Lease, or any of the terms
and provisions thereof; provided, however, that any such sale,
transfer or conveyance not to Tenant shall be subject to this
Lease and that all of the Landlord's covenants and obligations
contained herein shall be binding upon the subsequent owner or
owners thereof; and provided further that
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such transferee from Landlord shall in writing assume the
obligations of Landlord hereunder.
SECTION 10.3. OFFSET STATEMENT. Within ten (10) days after request
therefor by Landlord, or in the event that upon any sale, assignment or
hypothecation of the Leased Premises and/or all or any portion(s) of the
Landlord's Property by Landlord an offset statement shall be required by Tenant;
Tenant agrees to deliver in recordable form a certificate to any proposed
mortgagee or purchaser, or to Landlord, certifying (if such be the case) that
thus Lease is in full force and effect and that there are no defenses or offsets
thereto, or stating those claimed by Tenant.
SECTION 10.4. ATTORNMENT. Tenant shall, in the event any proceedings are
brought for the foreclosure of, or in the event of exercise of the power or sale
under any mortgage made by the Landlord covering the Leased Premises, attorn to
the purchaser upon any such foreclosure or sale and recognize such purchaser as
the Landlord under this Lease.
SECTION 10.5. RECORDING. Tenant shall not record this Lease without the
written consent of Landlord; however, upon the request of either party hereto
the other party shall join in the execution of memorandum or so called "short
form" of this Lease for the purpose of recordation. Said memorandum or short
form of this Lease shall describe the parties, the Leased Premises and the term
of this Lease and shall incorporate this Lease by reference.
SECTION 10.6. EXCAVATIONS. In case any excavation shall be made for
buildings or improvements or for any other purpose upon the land adjacent to or
near the Leased Premises, Tenant will afford to Landlord, or the person or
persons, firms or corporations causing or making such excavation, license to
enter upon the Leased Premises for the purpose of doing such
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work as Landlord or such person or persons, firms or corporations shall deem to
be necessary to preserve the walls or structures of the building from injury,
and to protect the building by proper securing of foundations. Insofar as
Landlord may have control over the same, all such work shall be done in a manner
as will not materially interfere with the operation of Tenant's business in the
Leased Premises.
SECTION 10.7. ACCESS TO PREMISES. Landlord reserves for itself and the
landlord under the underlying ground lease, the right to enter upon the Leased
Premises at all reasonable hours, upon reasonable advance notice, for the
purpose of inspecting the same, or of making repairs, additions or alterations
to the building in which the Leased Premises are located, to exhibit the Leased
Premises to prospective tenants, purchasers or others, to display during the
last ninety (90) days of the term, without hindrance or molestation by Tenant,
"For Rent" or similar signs on the exterior of the Leased Premises. The exercise
by Landlord of any of its rights under this provision shall not be deemed an
eviction or disturbance of Tenant's use and possession of the Leased Premises.
SECTION 10.8. QUIET ENJOYMENT. If and so long as Tenant pays the rent
reserved by this Lease and performs and observes all of the covenants and
provisions hereof, Tenant shall quietly enjoy the Leased Premises, subject,
however, to the terms of this Lease.
SECTION 10.9. NOTICES. Any notice required or permitted under this Lease
shall be deemed sufficiently given or served if sent by certified mail to Tenant
at the address of the Leased Premises, and to Landlord at its office or such
other place as it may designate in writing, and either party may by like written
notice at any time and from time to time designate a
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different address to which notices shall subsequently be sent. Notices given in
accordance with these provisions shall be deemed received when mailed.
SECTION 10.10. HOLDING OVER. In the event Tenant remains in possession
of the leased Premises after the expiration of this Lease and without the
execution of a new Lease, it shall be deemed to be occupying said premises as a
Tenant from month-to-month, subject to all conditions, provisions and
obligations of this Lease insofar as the same are applicable to a month-to-month
tenancy. Nothing in this section shall operate to preclude Landlord from
removing Tenant from the Leased Premises upon the expiration of this Lease.
SECTION 10.11. CONSENTS BY LANDLORD. Whenever under this Lease provision
is made for Tenant securing the written consent or approval of Landlord, such
consent or approval will not be unreasonably withheld.
SECTION 10.12. SUCCESSORS AND ASSIGNS. The terms, covenants and
conditions hereof shall be binding upon and inure to the successors in interest
and assigns of the parties hereto.
SECTION 10.13. GOVERNMENTAL REGULATIONS. Tenant shall, at Tenant's sole
cost and expense, comply with all of the requirements of all city, county,
municipal, state, federal and other applicable governmental authorities, now in
force, or which may hereafter be in force, pertaining to signs, installations,
repairs and business operations in the Leased Premises and shall faithfully
observe all statutes now in force or which may hereafter be in force.
SECTION 10.14. CERTAIN EXPENSES OF LANDLORD. Any out-of-pocket expenses
reasonably insured by Landlord for purposes of considering or acting upon any
request for consent or waiver under, or modification of, any of the provisions
of this Lease, including reasonable attorney's fees, shall be promptly
reimbursed by Tenant upon Landlord's request.
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SECTION 10.15. FORCE MAJEURE. In the event that either Landlord or
Tenant shall be delayed or hindered in or prevented from the performance of any
act required hereunder by reason of strikes, lock outs, labor disputes,
inability to procure materials, failure of power, restrictive governmental laws
or regulations, riots, insurrection, war or other reason of alike nature not
attributable to the negligence or fault of the party delayed in performing work
or doing acts required under the terms of this Lease, then performance of such
act shall be excused for the period of the unavoidable delay and the period for
the performance of any such act shall be extended for an equivalent period.
Provided, however, that this provision shall not operate to excuse Tenant from
the timely payment of rent and other payments required by the terms of this
Lease.
SECTION 10.16. GENERAL. Nothing contained in this Lease shall be deemed
or construed by the parties hereto or by any third party to create the
relationship of principal and agent or of partnership or of joint venture or of
any association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of rent nor any other provisions
contained in this Lease nor any acts of the parties hereto shall be deemed to
create any relationship between Landlord and Tenant other than the relationship
of landlord and tenant. No waiver of any default of Tenant or Landlord hereunder
shall be implied from any omission by Landlord or Tenant any action on account
of such default if such default persists or is repeated, and no express waiver
shall affect any default other than the default specified in the express waiver
and that only for the time and to the extent therein stated. One or more waivers
of any covenant, term or condition of this Lease by Landlord or Tenant shall not
be construed as a waiver of a subsequent breach of the same covenant, term or
conditions. The consent or
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approval by Landlord to or of any act by Tenant requiring the Landlord's consent
or approval shall not be deemed to waive or render unnecessary Landlord's
consent or approval to or of any subsequent similar act by Tenant. The
invalidity or unenforceability of any provision hereof shall not affect or
impair any provision. The plural sense where there is more than one tenant and
to either corporations, associations, partnership or individuals, male or
females, shall in all instances be assumed as though in each case fully
expressed. The laws of the State of Wisconsin shall govern the validity,
performance and enforcement of this Lease. The submission of this Lease for
examination does not constitute a reservation of or option for the Leased
Premises and this Lease becomes effective as a Lease only upon execution and
delivery thereof by Landlord and by Tenant. The headings contained herein are
for convenience only and do not define, limit or construe the contents of the
provisions hereof. All negotiations, representations and understandings between
the parties are incorporated herein and may be modified or altered only by
agreement in writing between the parties.
SECTION 10.17. EFFECT OF GROUND LEASE. Tenant acknowledges that Landlord
is presently leasing Landlord's Property under a ground lease having a term
equal to or greater than the term of this Lease. Tenant further acknowledges
that all of its rights under this Lease are specifically subordinate to the
rights of the landlord named in said ground lease and its successors and
assigns.
ARTICLE 11
ATTACHMENTS
SECTION 11.1. ATTACHMENTS. The following are attached hereto and made a
part hereof with the same force and effect as if set forth in full herein:
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Exhibit A: Legal Description of Landlord's Property.
Exhibit B: Location of Building
Exhibit C: Plans and Specifications.
Exhibit D: Rules and Regulations.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease and
affixed their respective seals as of the day, month and year first above
written.
LANDLORD: TENANT:
UNIVERSITY RESEARCH PARK THIRD WAVE TECHNOLOGIES, INC.
FACILITIES CORP.
By: /s/ XXXXX X. XxXXXX By: [SIGNATURE ILLEGIBLE]
------------------------------ ------------------------------
Xxxxx X. XxXxxx, Assistant
Secretary/Treasurer Title: President & CEO
Date: 4/1/97 Dated: 3-21-97
---------------------------- ---------------------------
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EXHIBIT A
[PROPERTY FLOOR PLAN]
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EXHIBIT B
LOCATION
Xxxxxx Project No. 97-007, Site Plan dated March 17, 1997, Sheet
A1.1-A1.S and A2.1-A2.3.
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EXHIBIT C
PLANS AND SPECIFICATIONS
Xxxxxx Project No. 97-007, dated March 17, 1997, Tenant Improvement
Reference Plans, Sheets A9.1 and A9.2.
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EXHIBIT D
RULES AND REGULATIONS
None adopted.
