MIAMI LAKES BUSINESS PARK-EAST FIRST AMENDMENT TO LEASE
Exhibit 10.01
MIAMI LAKES BUSINESS PARK-EAST
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the “First Amendment”) is made as of the 30th day of September,
2010 by and between JDRP ASSOCIATES NO. 1, LTD. (“Lessor”) and HEARTWARE, INC. (“Lessee”).
RECITALS:
WHEREAS, Lessor and Lessee are parties to that certain Lease Agreement dated April 17, 2008
(the “Lease”). Pursuant to the Lease, Lessor leased to Lessee and Lessee from Lessor an “agreed
upon” 59,165 square feet of gross rentable area located at 00000-00000 XX 00xx Xxxxx,
Xxxxx Xxxxx, Xxxxxxx 00000 (the “Demised Premises” or “Premises”). The Demised Premises is located
in a Building (the “Building”) within the business park commonly known as Miami Lakes Business Park
— East; and
WHEREAS, the Lease Term (the “Lease Term”) is scheduled to expire May 31, 2011; and
WHEREAS, Lessor and Lessee desire to: (i) extend the Lease Term for a period of Twenty-Five
(25) months; and (ii) make certain other modifications to the Lease.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of ten and no/100 dollars ($10.00) in hand paid by each party
to the other, the mutual promises herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, and intending to be legally bound, the parties
agree as follows:
1. Recitals. The recitals contained above are true to the best of the parties’
knowledge and are incorporated by reference herein.
2. Defined Terms. Except as otherwise defined herein, all terms and phrases used in
this First Amendment that are defined in the Lease shall have the same meaning as set forth in the
Lease. In the event of any conflict between the Lease and this First Amendment, the terms of this
First Amendment shall control.
3. Lease Term. The Lease Term, as hereby amended, is extended to expire on the last
day of June, 2013 and, except as otherwise provided herein, Lessee hereby waives and forever
releases any option to renew or extend the Lease Term subsequent to June 30, 2013.
4. Base Rent. Commencing June 1, 2011, the Base Rent payable by Lessee shall be as
follows:
June 1, 2011 through May 31, 2012: Equal monthly installments of $44,373.75 plus sales tax
and any other charges pursuant to the Lease.
June 1, 2012 through June 30, 2013: Equal monthly installments of $45,704.96 plus sales tax
and any other charges pursuant to the Lease.
Base Rent shall be payable in monthly installments in advance on the first day of each month
of the Lease Term, as hereby extended.
5. Lessee’s Proportionate Share. Notwithstanding that this First Amendment is being
executed after June 1, 2010, the parties hereby agree that effective as of June 1, 2010, the Base
Year (as defined in Section 27 of the Lease) shall be changed from calendar year 2008 to calendar
year 2010.
6. Security Deposit; Guaranty. Pursuant to Section 31 a. of the Lease, Lessor and
Lessee acknowledge that Lessor currently holds a Security Deposit in the form of a letter of
credit (the “Letter of Credit”) in the amount of Two Hundred Eighty-Eight Thousand Four Hundred
Twenty-Nine and 38/100 Dollars ($288,429.38). Simultaneously with the execution of this First
Amendment, Lessee shall deliver to Lessor either (a) an amendment to the Letter of Credit extending
the expiry date thereof through the date that is ninety (90) days after the expiration of the Lease
Term, as extended hereby (i.e., September 30, 2013), or (b) a substitute letter of credit in the
amount of $288,429.38, with an expiry date that is ninety (90) days after the expiration of the
Lease Term, as extended hereby (i.e., September 30, 2013), and otherwise in strict conformity with
the terms of Section 31 b of the Lease, in which latter event the original Letter of Credit will be
promptly returned to Lessee. If required by the issuing bank, Lessor shall, at no cost to Lessor,
execute such reasonable documents as may be reasonably necessary to terminate such original Letter
of Credit. As additional security under the Lease (as amended by this First Amendment),
concurrently with Lessee’s execution and delivery of this First Amendment to Lessor, Heartware
International, Inc. (“Guarantor”) shall execute and deliver to Lessor that certain Guaranty of
Lease attached hereto and made a part hereof as Exhibit A.
7. Option To Renew. Lessor hereby grants to Lessee the conditional right, exercisable
at Lessee’s option, to renew the term of this Lease for two — three (3) year terms (each, a
“Renewal Term”) in “as is” condition at 100% of the Market Rent (as defined below). If exercised,
and if the conditions applicable thereto have been satisfied, each Renewal Term shall commence
immediately following the end of the then current Lease Term. The right of renewal herein granted
to Lessee shall be subject to, and shall be exercised in accordance with, the following terms and
conditions:
a. Lessee shall exercise its right of renewal with respect to a Renewal Term by giving Lessor
written notice of such election not later than two hundred seventy (270) days prior to the
expiration of the then current Lease Term. The parties shall have thirty (30) calendar days after
Lessor’s timely receipt of such notice in which to negotiate in good faith the initial base rent,
escalation factor and additional rent (collectively, “Market Rent”) which shall be payable during
such Renewal Term. Among the factors to be considered by the parties during such negotiations in
determining applicable Market Rent shall be the general market rent for renewal leases in the Miami
Lakes submarket of Miami-Dade County, the rental rates for renewal leases then being quoted by
Lessor to comparable tenants for comparable space in the Building, the rents for renewal leases
being charged similar tenants for similar space in multi-tenanted buildings in the Miami Lakes
submarket of Miami-Dade County, and whether or not Lessee will receive a construction allowance
and/or a rental abatement for the Renewal Term. If during such thirty (30) calendar day period,
the parties agree on the Market Rent during the Renewal Term, then Lessee shall execute an
amendment to this Lease stating the Market Rent so agreed upon within ten (10) business days after
receipt of an amendment from Lessor. If during such thirty (30) calendar day period the parties
are unable, after a good faith attempt by both parties to reach an agreement, for any reason
whatsoever, to agree on such Market Rent, then within ten (10) business days after expiration of
such thirty (30) calendar day period, Lessee shall elect by written notice to Lessor, to either:
(i) accept Lessor’s determination of Market Rent or (ii) rescind its renewal notice. If Lessee
fails timely to so elect, Lessee shall be deemed to have elected to rescind its renewal notice. If
Lessee’s renewal notice is not given timely or Lessee fails to execute an amendment to this Lease
within the time period specified above, then, at Lessor’s option, Lessee’s right of renewal shall
lapse and be of no further force and effect.
b. If Lessee has been in monetary default more than two (2) times in any Lease Year or is in
default after the giving of any applicable notice and expiration of any applicable cure period
under this Lease on the date Lessee sends a renewal notice or any time thereafter until a Renewal
Term is to commence, then, at Lessor’s election, such Renewal Term shall not commence and the term
of this Lease shall expire at the expiration of the then current Lease Term.
c. If at any time fifty percent (50%) or more of the square feet of rentable area of the
Premises have been subleased or assigned or if this Lease has been terminated with respect to any
such portion, then Lessee’s rights pursuant to this Section shall lapse and be of no further force
or effect.
d. Lessee’s right of renewal under this Section may be exercised only by Lessee and may not be
exercised by any other transferee, sublessee or assignee of Lessee.
e. If Lessee’s right of renewal with respect to the first Renewal Term lapses for any reason,
then Lessee’s right of renewal with respect to the second Renewal Term shall similarly lapse and be
of no further force or effect.
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8. Expansion Right. If any space in the Building becomes available for lease at any
time during the Lease Term, including any Renewal Terms exercised by Lessee pursuant to Section 7
hereof (“Expansion Space”), then Lessee shall have a continuing first right to lease such space in
its then “as is” condition as of the date the space is offered to Lessee, subject to and in
accordance with the following terms and conditions:
a. Within a reasonable period of time after Lessor determines that Expansion Space is or will
be coming available, Lessor shall notify Lessee in writing (the “Notification”) of the availability
of any Expansion Space and the determination of the base rent and other terms and conditions.
Among the factors to be considered by Lessor in determining the base rent and other terms and
conditions shall be the rental rates, construction allowances, rent abatements, concessions, length
of term, renewal options and other terms and conditions then being agreed to by tenants and Lessor
for comparable tenants for comparable space in the Building, and the rental rates, construction
allowances, rent abatements, concessions, length of term, renewal options and other terms and
conditions then being agreed to by similar tenants and landlords for similar space in
multi-tenanted, comparable buildings in the Miami Lakes submarket of Miami-Dade County. The
Notification shall also include (i) the location and square footage of the Expansion Space, and
(ii) the date on which Lessor expects the Expansion Space to become available. Notwithstanding
anything to the contrary contained herein, the term for such Expansion Space shall be coterminous
with the Lease Term then in effect for the remainder of the Premises. For a period of ten (10)
business days after Lessee’s receipt of the Notification from Lessor, Lessee shall have the right
to accept the base rent and all other terms and conditions of a lease for such space. If during
such ten (10) business day period, Lessee does not accept the base rent and all other terms and
conditions of a lease for such space or does not respond within the aforesaid ten (10) business day
period, then Lessee’s right to lease such space shall lapse and be of no further force or effect.
If during such ten (10) business day period Lessee accepts the base rent and all other terms and
conditions of a lease for such space, then Lessee shall promptly execute an amendment to the Lease
within ten (10) business days after receipt thereof. The “Base Year” with respect to the renting
of the Expansion Space shall be the calendar year in which the commencement date for the Expansion
Space occurs; and Lessee’s allocation of parking spaces pursuant to Section 23 of the Lease shall
increase in proportion to the size of the Expansion Space.
b. Lessee’s rights under this Section are subject and subordinate to Lessor’s right to renew
expiring leases pursuant to rights contained in such expiring leases or pursuant to the mutual
agreement of Lessor and tenants under such leases. In addition to the foregoing, and
notwithstanding anything in the Lease to the contrary, delivery of possession of the Expansion
Space to Lessee and commencement of the term thereof is and shall be subject to Lessor’s obtaining
possession from any prior tenant or occupant who holds over beyond the applicable lease expiration
date, and Lessee shall have no claim against Lessor (for damages or otherwise) and Lessor shall
have no obligation or liability for, on account of or with respect to any holdover in all or any
portion of the Expansion Space; provided, however, that Lessor agrees to use commercially
reasonable efforts to obtain possession of the Expansion Space from such prior tenant or occupant
as soon as reasonably possible, subject to and in accordance with the terms and conditions of the
lease with such prior tenant or occupant.
c. If Lessee has been in monetary default more than two (2) times in any Lease Year or is in
default after the giving of any applicable notice and expiration of any applicable cure period
under the Lease on the date Lessor sends the Notification or any time thereafter until Lessee
occupies the Expansion Space, then, at Lessor’s election, Lessee’s rights pursuant to this Section
shall lapse and be of no further force or effect.
d. If at any time fifty percent (50%) or more of the square feet of rentable area of the
Premises have been subleased or assigned or if this Lease has been terminated with respect to any
such portion, then Lessee’s rights pursuant to this Section shall lapse and be of no further force
or effect. Lessee’s rights under this Section may be exercised only by Lessee and may not be
exercised by any other transferee, sublessee or assignee of Lessee.
e. Lessee has the right under this Section to lease the entire Expansion Space identified in
the Notification only. Lessee has no right to lease less nor more than the entire Expansion Space
so identified.
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f. If any Expansion Space is offered to Lessee hereunder and Lessee fails to lease such
Expansion Space or fails to execute the amendment within the ten (10) business day period described
above or fails to respond to the Notification within the ten (10) business days
described above, then the rights granted to Lessee under this Section with respect to such
Expansion Space shall immediately lapse and expire, and Lessee shall have no further rights
hereunder with respect to such Expansion Space and Lessor shall have the right to lease the
Expansion Space to any third-party tenant at any time on terms and conditions acceptable to Lessor
in its sole discretion. In the event the Expansion Space is leased to a third-party tenant in
accordance with the foregoing and such space again becomes available for lease, Lessee shall have a
continuing first right to lease such space in its then “as is” condition as of the date such space
is re-offered to Lessee, subject to and in accordance with the above terms and conditions.
Lessee’s right to lease any Expansion Space that again becomes available for lease is subject and
subordinate to Lessor’s right to renew expiring leases pursuant to rights contained in such
expiring leases or pursuant to the mutual agreement of Lessor and tenants under such leases.
g. Notwithstanding anything herein to the contrary, if fewer than eighteen (18) months remain
in the Lease Term (as such Lease Term may have been extended by Lessee pursuant to its renewal
rights under Section 7 hereof) from the date the Expansion Space is expected to become available
for lease, then Lessee’s rights under this Section 8 to lease such Expansion Space shall not be
applicable unless, within ten (10) business days after Lessee’s receipt of the Notification, Lessee
exercises its right to renew the term of the Lease for a Renewal Term. Lessor and Lessee shall
then have the 30-day period referenced in Section 7(a) herein to negotiate the Market Rent for the
Renewal Term (it being understood and agreed that Lessee shall retain its rescission right
referenced in Section 7(a) herein) and Lessee shall then have a period of five (5) business days
after Lessor and Lessee agree on the Market Rent for the Renewal Term to accept the terms and
conditions for the Expansion Space set forth in the Notification. If Lessor and Lessee cannot so
agree upon the Market Rent during such period, then Lessee’s rights to lease Expansion Space under
this Section 8 shall not be applicable for the remainder of the then existing Lease Term unless and
until Lessee has irrevocably exercised its right to a Renewal Term. Further notwithstanding
anything herein to the contrary, if fewer than nine (9) months remain in the Lease Term at the time
Lessor is required to offer any Expansion Space to Lessee, then Lessee’s rights under this Section
8 to lease such Expansion Space shall not be applicable unless prior to such date Lessee shall have
exercised its right to renew the term of the Lease pursuant to the terms of Section 7 hereof; it
being understood and agreed that if Lessor and Lessee are then in the process of negotiating the
rent payable by Lessee during a Renewal Term, Lessee shall have a period of five (5) business days
after Lessor and Lessee agree on the Market Rent for the Renewal Term to accept the terms and
conditions for the Expansion Space set forth in the Notification (it being further understood and
agreed that Lessee shall retain its rescission right referenced in Section 7(a) herein).
9. Condition of the Premises. Lessor shall not be required to do any work in or upon
the Premises or the Building to ready the same for Lessee’s continued use or occupancy of the
Premises. Lessee agrees to accept the Premises in its “as-is” condition, it being acknowledged that
Lessee is fully familiar with the condition of the Premises.
10. Brokerage. Lessor and Lessee each warrant and represent that it dealt with no
brokers in connection with this transaction other than CB Xxxxxxx Xxxxx, Inc. and Xxxxx Lang
LaSalle Americas, Inc. (hereinafter referred to as “Brokers”) and had no conversations or dealings
with any broker other than the Brokers in connection with this transaction. Lessee hereby
indemnifies Lessor against any claims of any broker with whom Lessee had any dealings other than
the Brokers and agrees to reimburse Lessor for any damages Lessor might sustain by reason of such
claims, including Lessor’s cost of defending any action in connection therewith and any reasonable
legal fees of Lessor in connection therewith. Lessor is responsible for the payment of all
brokerage commissions to the Brokers. Lessor hereby indemnifies Lessee against any claims of any
broker with whom Lessor had any dealings other than the Brokers and agrees to reimburse Lessee for
any damages Lessee might sustain by reason of such claims, including Lessee’s cost of defending any
action in connection therewith and any reasonable legal fees of Lessee in connection therewith.
11. Ratification. Except as amended hereby, all the terms and conditions of the
Lease, as heretofore in effect, shall remain in full force and effect and all the terms and
conditions of the Lease, as hereby amended, are hereby ratified and confirmed in all respects.
12. Authority. Each of the persons executing this First Amendment on behalf of Lessor
and Lessee hereby covenants and warrants to the other party that Lessor or Lessee, as the case may
be, has full right and authority to enter into this First Amendment, and that the person signing on
behalf of Lessor or Lessee, as the case may be, is authorized to do so.
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13. Partial Invalidity. If any provision of this First Amendment or application
thereof to any person or circumstance shall to any extent be invalid, the remainder of this First
Amendment or the application of such provision to persons or circumstances other than those as to
which it is held invalid shall not be affected thereby and each provision of this First Amendment
shall be valid and enforced to the fullest extent permitted by law.
14. Counterparts. This First Amendment may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which, together, shall constitute but one and the
same instrument.
15. SNDA. Within a commercially reasonable time after the execution and delivery of
this First Amendment by Lessee, Lessor shall obtain from ING USA Annuity & Life Company (“Current
Lender”), the current holder of the deed of trust, deed to secure debt or mortgage secured by the
Building, a subordination, non-disturbance and attornment agreement (“SNDA”) in the form attached
hereto as Exhibit B and made a part hereof. At Lessee’s written request, Lessor shall use
commercially reasonable efforts to obtain from any future holder of any mortgage, deed to secure
debt, or deed of trust on the Building a SNDA on a commercially reasonable form or such holder’s
standard form (provided such form is commercially reasonable). In connection with each SNDA
obtained in favor of Lessee, Lessee shall reimburse Lessor, as additional rent, for the reasonable
costs and expenses incurred by Lessor in connection therewith.
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IN WITNESS WHEREOF, the parties hereto have, or have caused to be, executed this First
Amendment as of the day and year first set forth above.
| WITNESSES: | LESSOR: | |||||
| JDRP ASSOCIATES NO. 1, LTD., | ||||||
| /s/ MA Xxxxxxxxx |
by its Agent, Xxxxx Xxxxxxxx | |||||
Print Name: MA Carlvale
|
Commercial Real Estate, Inc. | |||||
/s/ Xxxxxx Xxxxxx
|
By: | /s/ Xxxxxxxxxx X. Xxxxxx
President |
||||
| WITNESSES: | LESSEE: | |||||
| HEARTWARE, INC., | ||||||
| /s/ Xxxxxx Xxx Xxxxxx |
a Delaware corporation | |||||
Print Name: Louis Xxx Xxxxxx
|
||||||
/s/ Xxxx Xxxxxxxx
|
By: | /s/ Xxxxxxx X. Held
|
||||
| Title: Authorized Signatory | ||||||
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EXHIBIT A
GUARANTY OF LEASE
THIS GUARANTY (the “Guaranty”) is made as of this
_____ 30th _____ day of _September _____,
2010, by HEARTWARE INTERNATIONAL, INC. (the “Guarantor”), having an address at 000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx, XX 00000, in favor of JDRP ASSOCIATES NO. 1, LTD. (the “Lessor”), and is
executed pursuant to that certain First Amendment to Lease, dated of even date herewith (the “First
Amendment”) between Lessor and HEARTWARE, INC. (the “Lessee”). The First Amendment modifies that
certain Lease Agreement, dated April 17, 2008 (as amended by the First Amendment and as may be
further amended, the “Lease”) with respect to those certain Premises, as defined in the Lease,
consisting of an “agreed upon” 59,165 square feet of gross rentable area located at 00000-00000 XX
00xx Xxxxx, Xxxxx Xxxxx, Xxxxxxx 00000 (the “Building”) within the business park
commonly known as Miami Lakes Business Park – East.
In order to induce Lessor to execute the First Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor has
guaranteed and hereby does guaranty the payment and performance of all liabilities, obligations,
and duties (including, without limitation, payment of rent) imposed upon Lessee under the terms of
the Lease, as if Guarantor has executed the Lease as Lessee thereunder, irrespective of the
expiration of the Lease, or the insufficiency, invalidity, or unenforceability of any security
interest which might have been, or be hereafter, given to Lessor to secure Lessee’s obligations
contained in the Lease. This Guaranty is a guaranty of full payment and performance and not merely
collection.
Subject to the Guarantor Cure Period (as hereinafter defined), Guarantor hereby acknowledges,
and waives notice of, acceptance of this Guaranty and all other notices in connection herewith or
in connection with the liabilities, obligations, and duties guaranteed hereby, including, but not
limited to, notices of default by or to Lessee under the Lease, and waives demand for payment,
protest, diligence, presentment, and notice of protest on the part of Lessor in the enforcement of
any liability, obligation, or duty guaranteed hereby. Guarantor further waives, to the fullest
extent permitted by law, all defenses given to sureties and guarantors by statute, at law, or in
equity.
Notwithstanding the foregoing or anything to the contrary contained in this Guaranty, prior to
Lessor exercising any rights as against Guarantor, Lessor shall provide Guarantor with the same
notice and opportunity to cure defaults by Lessee as are required to be provided to Lessee pursuant
to the Lease, plus an additional period of ten (10) business days (the “Guarantor Cure Period”).
Lessor shall provide to Guarantor a simultaneous copy of all notices of default sent to Lessee as a
condition of the commencement of such additional ten (10) business days of the Guarantor Cure
Period.
Guarantor further agrees that Lessor shall not be first required to enforce against Lessee or
any other person any liability, obligation, or duty guaranteed hereby before seeking enforcement
thereto against Guarantor (but which enforcement against Guarantor is subject to the Guarantor Cure
Period). Suit may be brought and maintained against Guarantor by Lessor to enforce any liability,
obligation, or duty guaranteed hereby without joinder of Lessee or any other person. The liability
of Guarantor shall not be affected by any indulgence, compromise, settlement, or variation of terms
which may be extended to Lessee by Lessor or agreed upon by Lessor and Lessee (except as
hereinafter set forth), and shall not be impaired, modified, changed, released, or limited in any
manner whatsoever by any impairment, modification, change, release, or limitation of the liability
of Lessee or its estate in bankruptcy, or of any remedy for the enforcement thereof, resulting from
the operation of any present or future provision of the National Bankruptcy Code, or any similar
law or statute of the United States or any State thereof. Lessor and Lessee, without notice to, or
consent by, Guarantor, may at any time or times enter into such extensions, amendments,
assignments, subleases, or other covenants respecting the Lease as they may deem appropriate,
including, but not limited to, an increase in the rent due under the Lease or any other obligation
thereunder; and Guarantor shall not be released thereby, but shall continue to be fully liable for
the payment and performance of all liabilities, obligations, and duties of Lessee under the Lease
as so extended, amended, assigned, subleased, or otherwise modified. Furthermore, Guarantor’s
obligations and covenants under this Guaranty shall in no way be affected or impaired by reason of
the happening from time to time of any of the following, whether or not Guarantor has been notified
thereof or consented
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thereto: (a) any invalidity, illegality or unenforceability of the Lease, or any termination of the Lease for any
reason whatsoever (including a Bankruptcy); (b) any defenses or rights of set-off or counterclaim
of Lessee or Guarantor; (c) Lessor’s waiver of the performance or observance by Lessee, Guarantor
or any other party of any covenant or condition contained in the Lease or this Guaranty; (d) the
doing or the omission of any act referred to in the Lease or this Guaranty (including the giving of
any consent referred to in the Lease or this Guaranty); (e) Lessor’s failure or delay to exercise
any right or remedy available to Lessor or any action on the part of Lessor granting indulgence or
extension in any form whatsoever; (f) the release of Lessee or Guarantor from the performance or
observance of any covenant or condition contained in the Lease or this Guaranty by operation of
law; or (g) any other matters whatsoever, whether or not similar to those specifically mentioned
herein, other than the full performance of all obligations of Lessee under the Lease.
This Guaranty is absolute, irrevocable, unconditional, and continuing in any event, and shall
not terminate until the payment of all sums and the performance of all obligations evidenced by the
Lease.
No such payment by Guarantor pursuant to any provision of this Guaranty shall entitle
Guarantor, by subrogation, indemnification or otherwise, to the rights of Lessor, to any payment by
Lessee, or to any recovery from any property of Lessee, until after payment in full under this
Guaranty. Guarantor waives any right Guarantor may now or hereafter have against Lessee (and/or
any other guarantor of Lessee’s obligations under the Lease) with respect to this Guaranty
(including, without limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification or similar right, and any right to participate in any claim, right or remedy of
Lessor against Lessee or any security which Lessor now or hereafter has with respect to the Lease),
whether such right arises under an express or implied contract, by operation of law, or otherwise,
until after payment in full under this Guaranty. Guarantor shall be deemed not to be a “creditor”
(as defined in the National Bankruptcy Code) of Lessee by reason of the existence of this Guaranty
in the event that Lessee becomes a debtor in any proceeding under the National Bankruptcy Code.
Should Lessor repay to Lessee or Guarantor, or be obligated by applicable law to repay to Lessee or
Guarantor, any amounts previously paid, then this Guaranty shall be reinstated in the amount Lessor
repays or is so obligated to repay.
If all or any part of the Lease is rejected, disaffirmed or otherwise avoided pursuant to
applicable law affecting creditors’ rights, then Guarantor shall, and does hereby (without the
necessity of any further agreement or act), assume all obligations and liabilities of Lessee under
the Lease to the same extent as if Guarantor were originally named Lessee under the Lease and there
had been no such rejection, disaffirmance or avoidance. Guarantor shall upon Lessor’s request
promptly confirm in writing such assumption.
It is understood that other agreements similar to this Guaranty may, at Lessor’s sole opinion
and discretion, be executed by other persons with respect to the Lease. This Guaranty shall be
joint and several and cumulative of any such agreements and the liabilities and obligations of
Guarantor hereunder shall in no event be affected or diminished by reason of such other agreements.
Moreover, if Lessor obtains the signature of more than one guarantor in this Guaranty, or obtains
additional guaranty agreements, or both, Guarantor agrees that Lessor, in Lessor’s sole discretion,
may (i) bring suit against all guarantors of the Lease jointly and severally or against any one or
more of them, (ii) compound or settle with any one or more of the guarantors for such
considerations as Lessor may deem proper, and (iii) release any one or more of the guarantors from
liability. Guarantor further agrees that no such action shall impair the rights of Lessor to
enforce the Lease against any remaining guarantor or guarantors, including Guarantor (except to the
extent of a separate recovery by Lessor from any such remaining guarantor or guarantors).
Guarantor agrees that if Lessor shall employ an attorney to present, enforce, or defend any or
all of Lessor’s rights or remedies hereunder or under the Lease, Guarantor shall pay any reasonable
attorneys’ fees incurred by Lessor in such connection, whether such fees are incurred before or at
trial or on appeal. Notwithstanding the foregoing, in the event of any litigation between Lessor
and Guarantor arising out of the Lease or this Guaranty, the prevailing party shall be entitled to
recover its costs and expenses incurred in such litigation, including reasonable attorneys’ fees,
at all levels, including appeals.
In the event the Lessor, or any successor owner of the Building, sells, conveys, or otherwise
transfers the Premises or the Lease, this Guaranty shall not be abrogated thereby, and shall
continue in full force and effect. Guarantor hereby agrees to execute any such document or
certificate as may be reasonably requested by Lessor or any successor owner of the Building to
confirm the foregoing and the continuing validity of this Guaranty.
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Any notice which Lessor may elect to send shall be binding upon Guarantor if mailed to
Guarantor’s address set forth above or to the last address known to Lessor, by United States
certified or registered mail, return receipt requested, or by Federal Express or other overnight
courier, and shall be deemed conclusively delivered when same are either hand delivered, or three
(3) business days after deposited in the U.S. mail, postage prepaid, certified, return receipt
requested, or delivered by a nationally recognized courier for overnight delivery with such
delivery charge being prepaid. A courtesy copy of all notices shall also be delivered to Akerman
Senterfitt, Xxx X.X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, Attention Xxxxx X. Xxxxx, Esq.
(Ph# 305-374-5600) however Lessor’s failure to deliver any such courtesy copy shall not invalidate
or otherwise impair the effectiveness of any notice given to Guarantor. Guarantor may, by notice to
Lessor, designate a different address or addresses for notices.
This Guaranty shall be governed by, and construed in accordance with, the laws of the State of
Florida. If any provision of this Guaranty should be held to be invalid or unenforceable, the
validity and enforceability of the remaining provisions of this Guaranty shall not be affected
thereby. Guarantor hereby consents to the exercise of personal jurisdiction over Guarantor by any
federal or local court in the jurisdiction in which the Building is located. Guarantor appoints
Mr. Xxxx Held, having an address at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 (Ph#
508-739-0841), as Guarantor’s agent for receipt of service of process on Guarantor’s behalf in
connection with any suit, writ, attachment, execution or discovery or supplementary proceedings in
connection with the enforcement of this Guaranty. Service shall be effected by any means permitted
by the court in which any action is filed. Service shall be deemed effective upon receipt.
Guarantor shall designate a change of address or agent by written notice given by certified mail,
return receipt requested, at least ten (10) days before such change is to become effective.
Guarantor represents and warrants that Lessor’s execution of the First Amendment is a material
and direct economic benefit to Guarantor and constitutes good, valuable and sufficient
consideration for Guarantor’s execution of this Guaranty, notwithstanding any future rejection or
other termination of all or any part of the Lease. Guarantor represents and warrants that all
financial statements and information regarding Guarantor that have been or will be delivered to
Lessor are true, correct and complete. Each individual signing this Guaranty warrants and
represents that he or she is duly authorized to execute and deliver this Guaranty, and that, if
Guarantor is a corporation, Guarantor is a duly organized corporation in good standing under the
laws of the state of its incorporation, is qualified to do business and is in good standing in the
jurisdiction in which the Building is located, and has the power and authority to enter into this
Guaranty, and that all corporate action requisite to authorize Guarantor to enter into this
Guaranty has been duly taken.
This Guaranty shall be binding upon Guarantor and Guarantor’s successors, heirs, executors,
administrators, and assigns, and shall inure to the benefit of Lessor and Lessor’s successors,
heirs, executors, administrators, and assigns.
No principal, partner, member, officer, director, trustee or affiliate of Guarantor who is a
natural person shall have any personal liability under any provision of this Guaranty.
GUARANTOR AND BY ACCEPTANCE HEREOF, LESSOR, EACH HEREBY WAIVES TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE LEASE OR
THIS GUARANTY.
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EXECUTED as of the day and year first above written, to be effective as of the date of the
First Amendment.
| WITNESSES: | GUARANTOR: | |||||||
| HEARTWARE INTERNATIONAL, INC. | ||||||||
/s/ Xxxxxx Xxx Xxxxxx
|
By: | /s/ Xxxxxxx X. Held | ||||||
| Name: | Xxxxxxx X. Held | |||||||
/s/ L Xxxxxxxx
|
Title: | VP, General Counsel | ||||||
| Address: 000 Xxxxxxx Xx., Xxxxxxxxxx, XX | ||||||||
COMMONWEALTH OF MASSACHUETTS
|
) | |||
| )ss: | ||||
COUNTY OF MIDDLESEX
|
) |
The foregoing instrument was acknowledged before me this 23rd day of September, 2010, by
Xxxxxxx M Held, as VP, General Counsel of HEARTWARE INTERNATIONAL, INC., a Delaware corporation, on
behalf of said corporation. He/She is personally known to me or produced a Mass. Drivers license
as identification.
| /s/ Xxxxxx Xxx Xxxxxx | ||||
Notary Public |
||
/s/ Xxxxxx Xxx Xxxxxx |
||
My commission expires: 5/20/16
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