EXHIBIT 10.31
-------------
LEASE AGREEMENT
(Multi-Tenant Industrial)
INDEX
-----
(S) Section Page
------------------------------------------------------------------------------------------------------------
1. Summary of Terms and Certain Definitions. ................................................... 1
2. Premises..................................................................................... 2
3. Construction of the Base Building; Certification of Square Footage........................... 2
4. Use; Compliance.............................................................................. 3
5. Term ........................................................................................ 5
6. Minimum Annual Rent.......................................................................... 5
7. Operation of Property; Payment of Expenses................................................... 6
8. Signs ...................................................................................... 12
9. Alterations and Fixtures ................................................................... 12
10. Mechanics' Liens ........................................................................... 13
11. Landlord's Right of Entry .................................................................. 13
12. Damage by Fire or Other Casualty ........................................................... 13
13. Condemnation ................................................................................ 14
14. Non-Abatement of Rent ....................................................................... 15
15. Indemnification ............................................................................. 15
16. Waiver of Claims ............................................................................ 16
17. Quiet Enjoyment ............................................................................. 16
18. Assignment and Subletting ................................................................... 16
19. Subordination; Mortgagee's Rights ........................................................... 17
i
20. Recording; Estoppel Certificates ............................................................ 18
21. Surrender; Abandoned Property. .............................................................. 19
22. Curing Tenant's Defaults .................................................................... 19
23. Defaults - Remedies.......................................................................... 20
24. Representations of Tenant ................................................................... 22
25. Liability of Landlord ....................................................................... 22
26. Interpretation; Definitions ................................................................. 23
27. Notices ..................................................................................... 24
28. Tenant Improvements; Tenant Improvement Allowance; Commencement ............................. 24
29. Parking...................................................................................... 28
30. Telecommunications........................................................................... 28
31. Landlord's Environmental Representations..................................................... 28
32. Extension Option............................................................................. 29
33. Right of First Offer: Building............................................................... 30
34. Right of First Offer: Project................................................................ 31
35. Closing Contingency.......................................................................... 31
36. Site Development............................................................................. 32
37. Tenant Contingencies......................................................................... 33
38. Broker's Commission.......................................................................... 33
39. Satellite Dish............................................................................... 34
40. Backup-Generator............................................................................. 35
ii
THIS LEASE AGREEMENT is made by and between LIBERTY PROPERTY LIMITED
PARTNERSHIP, a Pennsylvania limited partnership ("LANDLORD") with its address at
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and MGI PHARMA,
INC., a corporation organized under the laws of Minnesota ("TENANT") with its
address at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and is dated as of the date on which this lease has been fully executed by
Landlord and Tenant.
1. Summary of Terms and Certain Definitions.
(a) "PREMISES": Approximate rentable square feet: 75,000
(Section 2) Suite 100
(b) "BUILDING": Approximate rentable square feet: 103,050
((S)2) Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(c) "TERM" Eighty-four (84) months plus any partial month from
((S)5) the Commencement Date until the first day of the
first full calendar month during the Term
(i) "COMMENCEMENT DATE": See Section 28(f)
(ii) "EXPIRATION DATE": See Section 5
(d) Minimum Rent ((S)6) & Operating Expenses ((S)7)
(i) "MINIMUM ANNUAL RENT": $937,500.00 (Nine Hundred Thirty-seven
Thousand Five Hundred and 00/100 Dollars), payable in monthly
installments of $78,125.00 (Seventy-eight Thousand One Hundred
Twenty-five and 00/100 Dollars), based on $12.50 per rentable
square foot for the first lease year, increased as follows:
Lease Year Annual Monthly PSF
---------- ------ ------- ---
2 957,000.00 $79,750.00 $12.76
3 977,250.00 81,437.50 13.03
4 997,500.00 83,125.00 13.30
5 1,019,250.00 84,937.50 13.59
6 1,040,250.00 86,687.50 13.87
7 1,062,750.00 88,562.50 14.17
(ii) Estimated "ANNUAL OPERATING EXPENSES": $149,250.00 (One Hundred
Forty-nine Thousand Two Hundred Fifty and 00/100 Dollars), based
on estimated annual Operating Expenses of $1.99 per rentable
square foot for calendar year 2001, subject to adjustment
((S)7(a))
1
(e) "PROPORTIONATE SHARE" ((S)7(a)): 72.78% (Ratio of approximate rentable
square feet in the Premises to approximate rentable square feet in the
Building)
(f) "USE" ((S)4): Any permitted use under applicable zoning and city
approvals, subject to the provisions of Section 4
(g) "PROJECT": means the West Bloomington Technology Park, a business park
consisting of one or more buildings that may be developed by Landlord
in accordance with the Site Plan.
(h) "SITE PLAN": means the Site Plan attached to this lease as Exhibit
"G".
(i) CONTENTS: This lease consists of the Index, pages 1 through 11
containing Sections 1 through 38 and the following, all of
which are attached hereto and made a part of this lease:
Exhibits: "A" - Plan showing Premises
"B" - Base Building Plans & Site Improvements
"C" - Building Rules
"D" - Commencement Certificate Form
"E" - Exclusions from Operating Expenses
"F" - Estoppel Certificate Form
"G" - Site Plan
"H" - Sign Criteria
"I" - Tenant's Removable Equipment
"J" - Tenant's Fit Plan
2. Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises as shown on attached Exhibit "A" consisting of
approximately 75,000 rentable square feet within the Building (the Building and
the lot on which it is located, the "PROPERTY") to be constructed by Landlord in
accordance with Section 3 below, together with the nonexclusive right with
Landlord and other occupants of the Building to use all areas and facilities
provided by Landlord for the use of all tenants in the Property including any
driveways, sidewalks and parking, loading and landscaped areas (the "COMMON
AREAS").
3. Construction of the Base Building; Certification of Square Footage. The
base Building shell and the site improvements necessary to the use and occupancy
of the base Building, including parking areas, utilities, driveways and related
infrastructure serving the Building (the "Site Improvements") shall be completed
by Landlord substantially in accordance with the plans listed on attached
Exhibit "B". Exhibit "B" describes in detail the specific Site Improvements that
serve the Building and that must be substantially completed prior to the
Commencement Date. All construction shall be done in a good and workmanlike
manner and shall comply in all material respects with all applicable laws codes,
regulations, rules and requirements of the governmental authorities having
jurisdiction, as applied, enforced and interpreted as of the date the building
permit is issued, including, but not limited to, all requirements of Title III
of the ADA as applicable to commercial facilities. The target date for
substantial completion of the base Building shell is February 1, 2001. Landlord
shall use all
2
reasonable efforts to cause the base Building shell to be substantially
completed by February 1, 2001, but Landlord shall have no liability to Tenant
for any damages, losses, costs or expenses incurred by Tenant as a result of any
delay in the substantial completion thereof.
Prior to the Commencement Date, Landlord will cause Landlord's architect to
determine the actual rentable square footage of the Building and Premises as
constructed, and to deliver to Landlord and Tenant an appropriate certificate
certifying to the as-built rentable square footage and including the
computations on which the certification is based. Such certificate will be
conclusive unless objected to by Landlord or Tenant by written notice to the
other party given within 30 days after receipt of the certificate. If the
as-built rentable square footage of the Building and/or Premises is greater than
or less than the square footages stated in Sections 1(a) and (b), the Minimum
Annual Rent shall be adjusted, as appropriate, based on the Minimum Annual Rent
per rentable square foot set forth in Section 1(d)(i). In such event, Landlord
and Tenant shall enter into an amendment of this lease setting forth the
as-built rentable square footage of the Building and the Premises, the adjusted
schedule of Minimum Annual Rent, the adjusted Tenant's Proportionate Share and
any other appropriate adjustments. Rentable square footage shall be determined
by measuring from the center of any interior demising wall(s) and from the
inside surface of the glass, or outside surface, as the case may be, of the
permanent outer building walls.
4. Use; Compliance.
(a) Permitted Use. Tenant may occupy and use the Premises for and only
for any lawful use permitted under applicable zoning and city approvals provided
that such use is compatible with and appropriate for the business park of which
the Building is a part, as reasonably determined by Landlord. Tenant will use
the Premises in such a manner as is lawful, reputable and will not create a
nuisance or otherwise unreasonably interfere with any other tenant's normal
operations or the management of the Building. All Common Areas shall be subject
to Landlord's exclusive control and management at all times. Tenant shall not
use or permit the use of any portion of the Property for outdoor storage or
installations outside of the Premises nor for any use that would interfere with
any other person's use of any portion of the Property outside of the Premises.
The foregoing notwithstanding, Tenant shall not use the Premises for any
purpose or in any manner that could reasonably be expected to result in odors,
noise, fumes, or vibration that would disturb, in any material respect, any
tenant of space adjacent to the Premises, and Landlord shall not lease space
adjacent to the Premises to any tenant (i) whose use could reasonably be
expected to result in odors, noise, fumes or vibration that would disturb Tenant
in any material respect, or (ii) whose use of parking, when combined with other
tenants, could reasonably be expected to be more than 5 spaces per 1,000
rentable square feet.
(b) Compliance with Laws.
(i) Landlord's Obligations. Except as expressly provided in
subsection (b)(ii) below, Landlord shall be responsible for maintaining the base
Building, including any exterior areas constructed by Landlord as part of
Landlord's initial work, in compliance with all
3
applicable laws, ordinances, notices, orders, rules, regulations and
requirements regulating the Property during the Term (as the same may be
amended, the "LAWS AND REQUIREMENTS"). The foregoing shall not be construed to
obligate Landlord to comply with changes in Laws and Requirements unless and
until the time compliance is required under the applicable Laws and
Requirements. Following the initial construction of the base Building, all
capital expenditures made by Landlord with respect to complying with Laws and
Requirements may be amortized over a stipulated useful life of fifteen years,
and, notwithstanding any provision in this lease to the contrary, such annual
amortization of such costs (including interest) may be included in Operating
Expenses.
(ii) Tenant's Obligations. Tenant shall use and occupy the Premises
and the Common Areas in compliance with all Laws and Requirements and the
building rules attached as Exhibit "C", as reasonably amended by Landlord from
time to time (the "BUILDING RULES").
Moreover, Tenant shall bear the entire cost and expense of complying with
Laws and Requirements (i) relating to Tenant's unique or particular use or
occupancy of the Premises, (ii) relating to the Initial Tenant Improvements or
any alterations to the Premises made by or on behalf of Tenant, (iii) relating
to any property or equipment of Tenant placed or installed on the Premises, (iv)
triggered by any alterations to the Premises made by or on behalf of Tenant, or
(v) resulting from any act or omission of Tenant or any employees, agents,
contractors, licensees or invitees ("AGENTS") of Tenant.
(iii) Accessibility Regulations. The parties acknowledge that the
Americans With Disabilities Act of 1990 (42 U.S.C. (S) 1201 et seq.) and
regulations and guidelines promulgated thereunder, as all of the same may be
amended and supplemented from time to time (collectively referred to herein as
the "ADA") establish requirements under Title III of the ADA ("Title III")
pertaining to business operations, accessibility and barrier removal, and that
such requirements may be unclear and may or may not apply to the Premises and
the Building depending on, among other things: (1) whether Tenant's business
operations are deemed a "place of public accommodation" or a "commercial
facility," (2) whether compliance with such requirements is "readily achievable"
or "technically infeasible," and (3) whether a given alteration affects a
"primary function area" or triggers so-called "path of travel" requirements. The
parties acknowledge and agree that Tenant has been provided an opportunity to
review the plans and specifications for the construction of the base Building
and Site Improvements from the perspective of Tenant's intended use and
occupancy, that Tenant will prepare and review the plans and specifications for
the Initial Tenant Improvements for Tenant's use and occupancy, and that Tenant
has independently determined that such plans and specifications are in
conformance with ADA Accessibility Guidelines ("ADAAG") and any other
requirements of the ADA, except that, notwithstanding the foregoing, Landlord,
and not Tenant, shall be responsible for causing the base Building and Site
Improvements to be designed and constructed in compliance with Title III of the
ADA as applicable to commercial facilities. Tenant further acknowledges and
agrees that to the extent that Landlord prepared, reviewed or approved any of
those plans and specifications, such action shall in no event be deemed any
representation or warranty that the same comply with any requirements of the
ADA, except that Landlord warrants that the base Building and Site Improvements
will comply with the requirements of Title III of the ADA
4
applicable to commercial facilities as applied, enforced and interpreted as of
the date the building permit is issued. Notwithstanding anything to the contrary
in this lease, the parties hereby agree to allocate responsibility for Title III
compliance as follows: (a) Landlord shall be responsible to construct and
maintain the base Building and Site Improvements in compliance with Title III of
the ADA as applicable to commercial facilities, (b) Tenant shall be responsible
for all other Title III compliance and costs in connection with the Premises,
the Initial Tenant Improvements or any work performed or to be performed by or
on behalf of Tenant in the Premises under or in connection with this lease, and
(c) Landlord shall perform, and Tenant shall be responsible for the cost of, any
so-called Title III "path of travel" requirements triggered solely by any
construction activities or alterations in the Premises by or on behalf of Tenant
as referenced in clause (b) above. Except as set forth above with respect to
Landlord's Title III obligations, Tenant shall be solely responsible for all
other requirements under the ADA relating to the Tenant or any affiliates or
persons or entities related to the Tenant (collectively, "Affiliates"),
operations of the Tenant or Affiliates, or the Premises, including, without
limitation, requirements under Title I of the ADA pertaining to Tenant's
employees.
(iv) Environmental. Tenant shall comply, at its sole expense, with
all Laws and Requirements as set forth above, all manufacturers' instructions
and all requirements of insurers relating to the treatment, production, storage,
handling, transfer, processing, transporting, use, disposal and release of
hazardous substances, hazardous mixtures, chemicals, pollutants, petroleum
products, toxic or radioactive matter (the "RESTRICTED ACTIVITIES") by Tenant or
Tenant's Agents. Tenant shall deliver to Landlord copies of all Material Safety
Data Sheets or other written information, if any, prepared by manufacturers,
importers or suppliers of any chemical and all notices, filings, permits and any
other written communications, if any, from or to Tenant and any entity
regulating any Restricted Activities.
(v) Notice. If at any time during or after the Term, Landlord or
Tenant becomes aware of any inquiry, investigation or proceeding regarding the
Restricted Activities affecting or concerning the Property or activities
conducted thereon or becomes aware of any claims, actions or investigations
regarding the ADA affecting or concerning the Property, such party shall give
the other party written notice, within 5 days after first learning thereof,
providing all available information and copies of any notices.
5. Term. The Term of this lease shall commence on the Commencement Date (as
defined in Section 28(f) below) and shall end at 11:59 p.m. on the last day of
the Term (the "EXPIRATION DATE"), without the necessity for notice from either
party, unless sooner terminated in accordance with the terms hereof. At
Landlord's request, Tenant shall confirm the Commencement Date and Expiration
Date by executing a lease commencement certificate in the form attached as
Exhibit "D".
6. Minimum Annual Rent. Tenant agrees to pay to Landlord the Minimum Annual
Rent in equal monthly installments in the amount set forth in Section l(d) (as
increased at the beginning of each lease year as set forth in Section l(d)), in
advance, on the first day of each calendar month during the Term, without
notice, demand or setoff (except as expressly permitted under this lease), at
Landlord's address designated at the beginning of this lease unless Landlord
designates otherwise; provided that rent for the first full month shall be paid
at the signing of this
5
lease. At Landlord's request, Tenant shall pay monthly installments of Minimum
Annual Rent and estimated Annual Operating Expenses via electronic funds
transfer to an account designated by Landlord automatically from an account of
Tenant designated by Tenant. If the Commencement Date falls on a day other than
the first day of a calendar month, the rent shall be apportioned pro rata on a
per diem basis for the period from the Commencement Date until the first day of
the following calendar month and shall be paid on or before the Commencement
Date. As used in this lease, the term "lease year" means the period from the
Commencement Date through the succeeding 12 full calendar months (including for
the first lease year any partial month from the Commencement Date until the
first day of the first full calendar month) and each successive 12-month period
thereafter during the Term.
7. Operation of Property; Payment of Expenses.
(a) Payment of Operating Expenses. Tenant shall pay to Landlord the
Annual Operating Expenses in equal monthly installments in the amount set forth
in Section l(d) (prorated for any partial month), from the Commencement Date and
continuing throughout the Term on the first day of each calendar month during
the Term, as additional rent, without notice, demand or setoff; provided that
the monthly installment for the first full month shall be paid at the signing of
this lease. "Operating Expenses" shall mean all costs, charges and expenses
incurred by Landlord in connection with ownership, operation, security,
maintenance, repair and replacement of the Property, the Common Areas (including
the costs of Common Area utility services) and other appurtenances to the
Property, including but not limited to the expenses to be reimbursed to Landlord
by Tenant pursuant to the following Sections 7(b)-(f). Operating Expenses shall
specifically include a management and administrative fee equal to four (4)
percent of gross rentals (i.e. Minimum Annual Rent plus annual Operating
Expenses) payable hereunder.
To the extent that Operating Expenses include expenses provided under
contracts that include other properties or that are otherwise aggregated and
spread among the Property and other properties owned or managed by Landlord,
Landlord agrees that the allocation of such expenses to the Property shall be
done on a reasonable and uniform basis, appropriate to the level of services
provided to the Property; at Tenant's request, Landlord shall provide Tenant
with information explaining in reasonable detail the basis on which any such
costs are allocated to the Property.
If the Building is or becomes part of a campus of buildings owned by
Landlord in the same vicinity, Landlord, may, at Landlord's option, treat the
entire campus, or any portion thereof, as a single unified project for purposes
of determining and allocating Operating Expenses. In such event, Operating
Expenses shall include the aggregate of all expenses properly includable in
Operating Expenses under this lease for all buildings and their attendant common
areas included in the unified project, and Tenant's Proportionate Share shall be
equal to a fraction, the numerator of which shall be the rentable square footage
of the Premises, and the denominator of which shall be the rentable square
footage of all buildings included in the unified project. Without limiting the
foregoing, Landlord agrees that so long as Landlord owns the entire Project, the
entire Project shall be treated as a single unified project for the purpose of
determining and allocating Operating Expenses.
6
The amount of the Annual Operating Expenses set forth in Section 1(d)
represents Tenant's Proportionate Share of the estimated Operating Expenses
during the first calendar year of the Term on an annualized basis; from time to
time Landlord may adjust such estimated amount if the estimated Operating
Expenses increase. By April 30th of each year (and as soon as practical after
the expiration or termination of this lease or at any time in the event of a
sale of the Property), Landlord shall provide Tenant with a statement of the
actual amount of such expenses for the preceding calendar year or part thereof.
Landlord or Tenant shall pay to the other the amount of any deficiency or
overpayment then due from one to the other or, at Landlord's option during the
term of the lease, Landlord may credit Tenant's account for any overpayment.
Tenant's obligation to pay the Annual Operating Expenses pursuant to this
Section 7 shall survive the expiration or termination of this lease.
Any provision in this Section 7 to the contrary notwithstanding, the items
listed on attached Exhibit "E" shall not be included in Operating Expenses.
Tenant shall be entitled at any reasonable time during regular business
hours, but no more than once in each calendar year, after giving to Landlord at
least five (5) business days prior written notice, to inspect in Landlord's
local business office all Landlord's records necessary to satisfy itself that
all charges have been correctly allocated to Tenant, for any or all of the three
(3) c alendar years immediately preceding the year during which such notice is
given, and to obtain an audit thereof by an independent certified public
accountant (selected by Tenant with Landlord's written consent, which shall not
be withheld unreasonably) to determine the accuracy of Landlord's certification
of the amount of additional rent charged Tenant, provided, however, that Tenant
shall make all payments of additional rent without delay, and that Tenant's
obligation to pay such additional rent shall not be contingent on any such
right. If it is determined that Tenant's liability for additional rent for
either such calendar year is less than ninety-seven percent (97%) of that amount
which Landlord previously certified to Tenant for such calendar year, Landlord
shall pay to Tenant the cost of such audit (provided, however, that Landlord
shall not be required to pay the cost of any audit based on a contingency fee or
percentage of the amount recovered for Tenant) and regardless of such percentage
Landlord shall refund promptly to Tenant the amount of the additional rent paid
by Tenant for such calendar year which exceeds the amount for which Tenant
actually is liable, as determined following such audit. If it is determined that
Tenant's liability for additional rent for either such calendar year is more
than the amount which Landlord previously certified to Tenant for such calendar
year, Tenant shall promptly pay to Landlord (net of the cost to Tenant of the
audit) the amount of the additional rent underpaid by Tenant, as determined
following such audit. Except as provided above, Tenant shall bear the total cost
of any inspection or audit performed by or for Tenant. Tenant shall keep, and
shall cause Tenant's auditor to keep, the results of such audit or inspection
confidential.
(b) Taxes and Other Impositions. Tenant shall pay prior to delinquency
all taxes (including sales and gross receipt taxes, if any, based on rentals),
assessments, license and permit fees, which are applicable to the Term, and
which are imposed by any authority or under any law, ordinance or regulation
thereof, and the reasonable cost of contesting any of the foregoing (the
"IMPOSITIONS") upon or with respect to the Premises, or any improvements
thereto, or
7
directly upon this lease or the Rent (defined in Section 7(f)) or amounts
payable by any subtenants or other occupants of the Premises, or against
Landlord because of Landlord's estate or interest herein. Additionally, Tenant
shall pay as aforesaid its Proportionate Share of any Imposition which is not
imposed upon the Premises as a separate entity but which is imposed upon all or
part of the Property or upon the leases or rents relating to the Property.
Notwithstanding any provision to the contrary in this lease, Tenant's obligation
to pay for any installments of special assessments relating to the acquisition,
original construction or development (including any special assessments or
similar taxes levied as a condition of municipal approvals) of the Building,
Site Improvements or Project (the "Development Special Assessments") shall not
exceed fifteen cents ($.15) per rentable square foot of the Premises per year.
If Landlord enters into a lease with any other tenant in the Project that does
not impose on such tenant a comparable obligation to pay such tenant's
proportionate share of the Development Special Assessments, then Landlord must
notify Tenant thereof and shall reduce Tenant's obligation with respect thereto
so that the obligation of Tenant with respect to Development Special Assessments
(on a rentable square foot per year basis) is no greater than the obligation of
such other tenant.
During any full calendar year that Tenant is leasing 100% of the rentable
area of the Building, Tenant may elect by written notice to Landlord to pay its
Proportionate Share of real estate taxes and installments of special assessments
payable therewith on a semi-annual rather than monthly basis. In such event,
Tenant shall pay its Proportionate Share of real estate taxes and installments
of special assessments to Landlord on or before the later of: (1) 15 days after
Landlord furnishes Tenant a copy of the tax statement received from the taxing
authority, or (2) 20 calendar days prior to the due date of the semi-annual
installments of such real estate taxes and special assessments.
Provided Tenant is then leasing at least 50% of the rentable area of the
Building, Tenant shall have the independent right to contest, at its sole cost
and expense, the valuation of, and real estate taxes assessed against, the
Building for any period falling within the lease Term. Tenant shall provide
Landlord notice of any such contest and copy Landlord on all filings, settlement
offers and counter-offers, correspondence and other documents relating to such
contest. If Tenant is leasing less than 50% of the Building, Tenant shall not
initiate any proceeding to contest or dispute the amount of any real estate
taxes or the assessed value of the Property. However, at the written request of
Tenant, Landlord shall, unless Landlord has reasonable grounds for refusing,
bring proceedings to contest the validity or amount of any real estate taxes or
valuation. Tenant shall cooperate with Landlord with respect to such proceedings
to the extent reasonably necessary and shall pay Landlord Tenant's Proportionate
Share of all reasonable costs, fees and expenses incurred in connection with
such proceedings as additional rent promptly upon being billed.
Landlord shall refund or credit to Tenant Tenant's Proportionate Share of
any rebate received by Landlord with respect to any real estate taxes payable
during the lease Term, regardless of whether the rebate is actually received by
Landlord during the Term or after the expiration of the Term.
8
Nothing herein contained shall be interpreted as requiring Tenant to pay
any income, excess profits or corporate capital stock tax imposed or assessed
upon Landlord, unless such tax or any similar tax is levied or assessed in lieu
of all or any part of any Imposition or an increase in any Imposition. Nothing
herein contained shall be interpreted as requiring Tenant to pay any state deed
tax upon the transfer of the Property by Landlord.
If it shall not be lawful for Tenant to reimburse Landlord for any of the
Impositions, the Minimum Annual Rent shall be increased by the amount of the
portion of such Imposition allocable to Tenant, unless prohibited by law.
(c) Insurance.
(i) Landlord's Insurance. Landlord shall keep in effect, and Tenant
shall pay to Landlord its Proportionate Share of the cost of, (i) insurance
against loss or damage to the Building or the Property by fire and such other
casualties as may be included within fire, extended coverage and special form
insurance covering the full replacement cost of the Building (but excluding
coverage of the Initial Tenant Improvements or of Tenant's personal property in,
and any alterations by Tenant to, the Premises), (ii) commercial general
liability insurance with limits not less than the limits required of Tenant
under subsection (ii) below, and (iii) such other insurance as Landlord may
reasonably deem appropriate or as may be required from time-to-time by any
mortgagee.
(ii) Liability. Tenant, at its own expense, shall keep in effect
comprehensive general public liability insurance with respect to the Premises
and the Property, including contractual liability insurance, with such limits of
liability for bodily injury (including death) and property damage as reasonably
may be required by Landlord from time-to-time, but not less than a combined
single limit of $1,000,000 per occurrence and a general aggregate limit of not
less than $3,000,000 (which aggregate limit shall apply separately to each of
Tenant's locations if more than the Premises); however, such limits shall not
limit the liability of Tenant hereunder. The policy of comprehensive general
public liability insurance also shall name Landlord and Landlord's agent as
insured parties with respect to the Premises, shall be written on an
"occurrence" basis and not on a "claims made" basis (provided, however, that
Tenant may maintain "claims made" liability coverage provided such coverage
contains an extended reporting period of 5 years following the cancellation or
nonrenewal of the insurance policy by either Tenant or the insurer), shall
provide that it is primary with respect to any policies carried by Landlord and
that any coverage carried by Landlord shall be excess insurance, shall provide
that it shall not be cancelable or reduced without at least 30 days prior
written notice to Landlord and shall be issued in form satisfactory to Landlord.
The insurer shall be a responsible insurance carrier which is authorized to
issue such insurance and licensed to do business in the state in which the
Property is located and which has at all times during the Term a rating of no
less than A VII in the most current edition of Best's Insurance Reports. Tenant
shall deliver to Landlord on or before the Commencement Date, and subsequently
renewals of, a certificate of insurance evidencing such coverage and the waiver
of subrogation described below.
(iii) Waiver of Subrogation. Landlord and Tenant shall have included
in their respective property insurance policies waivers of their respective
insurers' right of subrogation
9
against the other party. If such a waiver should be unobtainable or
unenforceable, then such policies of insurance shall state expressly that such
policies shall not be invalidated if, before a casualty, the insured waives the
right of recovery against any party responsible for a casualty covered by the
policy.
(iv) Increase of Premiums. Tenant agrees not to do anything or fail
to do anything which will increase the cost of Landlord's insurance or which
will prevent Landlord from procuring policies (including public liability) from
companies and in a form satisfactory to Landlord. If any breach of the preceding
sentence by Tenant causes the rate of fire or other insurance to be increased,
Tenant shall pay the amount of such increase as additional rent promptly upon
being billed. Landlord acknowledges that under Landlord's present insurance
coverage, the fact that Tenant may use part of the Premises for a wet lab and
dry lab for the formulation and development of pharmaceutical products, will
not, in itself, result in any increase in the cost of Landlord's insurance.
(d) Repairs and Maintenance; Common Areas; Building Management. Except
as specifically otherwise provided in this Section (d), Tenant at its sole
expense shall maintain the Premises in good order and condition, promptly make
all repairs necessary to maintain such condition, and repair any damage to the
Premises caused by Tenant or its Agents. All repairs made by Tenant shall
utilize materials and equipment which are comparable to those originally used in
constructing the Building and Premises. When used in this Section (d), the term
"repairs" shall include replacements and renewals when necessary.
(i) Landlord, at its sole expense, shall make all necessary repairs
to the footings, foundations, structural steel columns and girders forming a
part of the Premises.
(ii) Landlord shall maintain and repair the HVAC systems appurtenant
to the Premises, the cost of which shall be included in Operating Expenses.
(iii) Landlord shall make all necessary repairs to the roof, exterior
portions of the Premises and the Building, and, to the extent not exclusively
serving Tenant, to utility and communications lines, equipment, systems
(including, but not limited to, electrical, mechanical, plumbing, security, fire
suppression [except that Tenant shall maintain any specialized fire suppression
systems serving tenant spaces, such as Tenant's laboratory space, having fire
suppression requirements in excess of normal office space] and life safety
systems) and facilities in the Building, and to the Common Areas, the cost of
which shall, subject to the exclusions set forth in Exhibit "E", be an Operating
Expense of which Tenant shall pay its Proportionate Share. Landlord shall
operate and manage the Property and shall maintain all Common Areas and any
paved areas appurtenant to the Property in a clean and orderly condition.
Landlord reserves the right to make alterations to the Common Areas from time to
time, provided, however, that Landlord shall not, without Tenant's prior written
consent, make any alterations to the Common Areas that would materially and
adversely affect access to the Premises, that would reduce the parking available
to the Premises below the thresholds required under Section 29 of this lease,
that would materially change the proximity of such parking to the Premises, or
that would materially and adversely impact the visibility of the Premises.
Moreover, Landlord shall not
10
convert any leasable space into Common Area without Tenant's consent if such
conversion would result in an increase in Operating Expenses payable by Tenant.
(iv) Notwithstanding anything herein to the contrary, repairs
and replacements to the Property including the Premises made necessary by
Tenant's use, occupancy or alteration of, or Tenant's installation in or upon
the Property or by any act or omission of Tenant or its Agents shall be made at
the sole expense of Tenant to the extent not covered by any applicable insurance
maintained or required to be maintained by Landlord under this Lease. Tenant
shall not bear the expense of any repairs or replacements to the Property
arising out of or caused by any other tenant's use, occupancy or alteration of,
or any other tenant's installation in or upon, the Property or by any act or
omission of any other tenant or any other tenant's Agents.
(v) Both Landlord and Tenant shall, with respect to their
respective maintenance and repair obligations, observe standards that are
consistent with those prevailing among comparable first class suburban single
story flex buildings in the southwest Minneapolis suburban area.
(vi) If Tenant becomes aware of any condition that is
Landlord's responsibility to repair, Tenant shall promptly notify Landlord of
the condition.
(e) Utility Charges. Tenant shall pay for water, sewer, gas,
electricity, heat, power, telephone and other communication services and any
other utilities supplied to or consumed in or on the Premises. Landlord and
Tenant expect that all utilities provided to the Premises, except for water and
sanitary sewer, will be separately metered to Tenant, said metering to be
installed by Tenant as part of the Initial Tenant Improvements. If Tenant's use
of water in the Premises is proportionally greater than Tenant's proportionate
share of space in the Project, Landlord may install a separate sub-meter at
Tenant's expense and ▇▇▇▇ Tenant for Tenant's actual water and sewer usage.
Tenant shall promptly pay all utility bills for separately metered services
without delinquency. Landlord shall not be responsible or liable for any
interruption in utility service, nor shall such interruption affect the
continuation or validity of this lease, provided, however, that if any
interruption in utility service is the result of Landlord's negligence or
willful misconduct, and such interruption renders the Premises untenantable for
more than 24 hours, then all Rent hereunder shall ▇▇▇▇▇ from the date of such
interruption until such utility service is restored.
(f) Net lease. Except for the obligations of Landlord expressly set
forth herein, this lease is a "triple net lease" and Landlord shall receive the
Minimum Annual Rent as net income from the Premises, not diminished by any
expenses other than payments under any mortgages, and Landlord is not and shall
not be required to render any services of any kind to Tenant. The term "RENT" as
used in this lease means the Minimum Annual Rent, Annual Operating Expenses and
any other additional rent or sums payable by Tenant to Landlord pursuant to this
lease, all of which shall be deemed rent for purposes of Landlord's rights and
remedies with respect thereto. Tenant shall pay all Rent to Landlord within 30
days after Tenant is billed, unless otherwise provided in this lease, and
interest shall accrue on all sums due but unpaid.
11
8. Signs. Tenant shall have the right to procure, install and maintain, at
Tenant's sole cost and expense, up to three (3) building-mounted identification
signs on the exterior of the Building. Moreover, Tenant shall be entitled to the
top position on the Project monument sign to be installed by Landlord at the
▇▇▇/▇▇/ ▇▇▇▇▇▇ entrance to the Project (any Tenant signage placed on the sign
monument to be provided at Tenant's expense). The design, size and location of
all Tenant signage shall be consistent with Landlord's sign criteria (as set
forth on Exhibit "H") and otherwise subject to Landlord's approval, which
approval shall not be unreasonably withheld. Tenant shall cause all Tenant
signage to comply with all Laws and Requirements applicable thereto. Except as
permitted above, and except for signs which are located wholly within the
interior of the Premises and not visible from the exterior of the Premises, no
signs shall be placed on the Property without the prior written consent of
Landlord. All Tenant signage shall be maintained by Tenant in good condition.
Upon the expiration or termination of this lease, Tenant shall remove all Tenant
signage and shall restore the Premises and Building to the condition that
existed prior to the installation of Tenant's signage. In the event Tenant
expands in the Project, Tenant shall be entitled to signage consistent with that
granted to other tenant's of the Project and commensurate with the size of
Tenant's expansion premises.
9. Alterations and Fixtures.
(a) Subject to Section 10, Tenant shall have the right to install its
trade fixtures, furniture and equipment in the Premises, provided that no such
installation or removal thereof shall affect any structural portion of the
Property nor any utility lines, communications lines, systems, equipment or
facilities in the Building serving any tenant other than Tenant. At the
expiration or termination of this lease and at the option of Landlord or Tenant,
Tenant shall remove such installation(s) and, in the event of such removal,
Tenant shall repair any damage caused by such installation or removal; if
Tenant, with Landlord's written consent, elects not to remove such
installation(s) at the expiration or termination of this lease, all such
installations shall remain on the Property and become the property of Landlord
without payment by Landlord.
(b) Tenant may, without the need for Landlord's prior consent, make non-
structural alterations in the Premises to the extent that such alterations (i)
do not affect any utility lines, communication lines or Building mechanical,
electrical, HVAC, plumbing, security, life safety or other systems, (ii) do not
exceed a cost of $100,000 in the aggregate, and (iii) do not affect the exterior
appearance of the Building. Tenant shall not make or permit to be made any other
alterations to the Premises without Landlord's prior written consent, which
consent shall not be unreasonably withheld. Tenant shall pay the reasonable
costs of any required architectural/engineering reviews. In making any
alterations, (i) Tenant shall deliver to Landlord the plans, specifications and
necessary permits, together with certificates evidencing that Tenant's
contractors and subcontractors have adequate insurance coverage naming Landlord
and Landlord's agent as additional insureds, at least 10 days prior to
commencement thereof, (ii) Tenant shall comply with Section 10 and (iii) the
occupants of the Building and of any adjoining property shall not be disturbed
thereby. All alterations to the Premises by Tenant shall be the property of
Tenant until the expiration or termination of this lease. If Tenant elects to
remove any Tenant alteration, Tenant shall repair any damage and restore the
Premises to the condition existing prior to the alteration. All Tenant
alterations not removed by Tenant prior to the expiration or termination of this
lease shall be surrendered with the Premises and become the
12
property of Landlord without payment by Landlord. The foregoing notwithstanding,
(i) except for those items listed on attached Exhibit "I", Tenant shall not
remove, and shall not be required to remove, the Initial Tenant Improvements,
and (ii) Landlord reserves the right, as a condition of Landlord's consent to a
proposed alteration, to require Tenant to remove such alteration upon the
expiration or termination of this lease and restore the Premises to the
condition existing prior to such alteration, provided that if Landlord is going
to require Tenant to remove such alteration and restore the Premises, Landlord
must so inform Tenant at the time Landlord gives its consent.
10. Mechanics' Liens. Tenant shall pay promptly any contractors and materialmen
who supply labor, work or materials to Tenant at the Property and shall take all
steps permitted by law in order to avoid the imposition of any mechanic's lien
upon all or any portion of the Property. Should any such lien or notice of lien
be filed for work performed for Tenant other than by Landlord, Tenant shall bond
against or discharge the same within 30 days after Tenant has notice that the
lien or claim is filed regardless of the validity of such lien or claim. Nothing
in this lease is intended to authorize Tenant to do or cause any work to be done
or materials to be supplied for the account of Landlord, all of the same to be
solely for Tenant's account and at Tenant's risk and expense. Throughout this
lease the term "mechanic's lien" is used to include any lien, encumbrance or
charge levied or imposed upon all or any portion of, interest in or income from
the Property on account of any mechanic's, laborer's, materialman's or
construction lien or arising out of any debt or liability to or any claim of any
contractor, mechanic, supplier, materialman or laborer and shall include any
mechanic's notice of intention to file a lien given to Landlord or Tenant, any
stop order given to Landlord or Tenant, any notice of refusal to pay naming
Landlord or Tenant and any injunctive or equitable action brought by any person
claiming to be entitled to any mechanic's lien.
11. Landlord's Right of Entry. Tenant shall permit Landlord and its Agents to
enter the Premises at all reasonable times following not less than 24 hours
notice (except in the event of an emergency), for the purpose of inspection,
maintenance or making repairs, alterations or additions as well as to exhibit
the Premises for the purpose of sale or mortgage and, during the last 9 months
of the Term, to exhibit the Premises to any prospective tenant. The requisite
notice prior to entry contemplated above may be given by telephone or other
informal means. Except in the event of an emergency, Tenant shall have the right
to have an employee or representative of Tenant accompany Landlord and its
Agents to the extent necessary and appropriate to protect and limit access to
trade secrets or other confidential information of Tenant and Tenant's
customers. Landlord will make reasonable efforts to minimize interference with
Tenant in exercising the foregoing rights.
12. Damage by Fire or Other Casualty.
(a) If the Premises or Building shall be damaged or destroyed by fire
or other casualty, Tenant promptly shall notify Landlord and Landlord, subject
to the conditions set forth in this Section 12, shall repair such damage and
restore the Premises to substantially the same condition in which they were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the Initial Tenant Improvements or of other
fixtures or alterations installed by Tenant. Landlord shall notify Tenant in
writing, within 30 days after the date of the casualty, if Landlord anticipates
that the restoration will take more than 180 days
13
from the date of the casualty to complete; in such event, either Landlord or
Tenant may terminate this lease effective as of the date of casualty by giving
written notice to the other within 10 days after Landlord's notice. Moreover, if
Landlord does not give Tenant notice that Landlord anticipates that the
restoration will take more than 180 days from the date of the casualty to
complete, but the actual restoration nevertheless exceeds 180 days, then Tenant
may give Landlord written notice of Tenant's intent to terminate this lease; if
Landlord fails to substantially complete Landlord's repair and restoration
obligations within 30 days following Tenant's notice, Tenant may, by further
written notice given before substantial completion of Landlord's repair and
restoration, terminate this lease. Further, if a casualty occurs during the last
12 months of the Term or any extension thereof, Landlord or Tenant may cancel
this lease unless Tenant has the right to extend the Term for at least 3 more
years and does so within 30 days after the date of the casualty.
(b) Landlord shall maintain a 12-month rental coverage endorsement or
other comparable form of coverage as part of its fire, extended coverage and
special form insurance. Tenant will receive an abatement of its Minimum Annual
Rent and Annual Operating Expenses to the extent the Premises are rendered
untenantable. The foregoing notwithstanding, Tenant's rental abatement period
shall extend for a reasonable period (not to exceed 60 days) following
substantial completion of Landlord's restoration of the base Building, in order
to afford Tenant time to restore tenant improvements.
13. Condemnation.
(a) Termination. If (i) all of the Premises are taken by a condemnation or
otherwise for any public or quasi-public use, (ii) any part of the Premises is
so taken and the remainder thereof is insufficient for the reasonable operation
of Tenant's business or (iii) any of the Property is so taken, and, in
Landlord's opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Property, then this lease shall
terminate and all unaccrued obligations hereunder shall cease as of the day
before possession is taken by the condemnor.
(b) Partial Taking. If there is a condemnation and this lease has not been
terminated pursuant to this Section, (i) Landlord shall restore the Building and
the improvements which are a part of the Premises to a condition and size as
nearly comparable as reasonably possible to the condition and size thereof
immediately prior to the date upon which the condemnor took possession and (ii)
the obligations of Landlord and Tenant shall be unaffected by such condemnation
except that there shall be an equitable abatement of the Minimum Annual Rent
according to the rental value of the Premises before and after the date upon
which the condemnor took possession and/or the date Landlord completes such
restoration.
(c) Award. In the event of a condemnation affecting Tenant, Tenant shall
have the right to make a claim against the condemnor for moving expenses and
business dislocation damages and any other damages available to Tenant, but only
to the extent that such claim does not reduce the sums otherwise payable by the
condemnor to Landlord. Without limiting the foregoing, in no event shall Tenant
have the right to make any claim for the value of Tenant's leasehold estate.
Except as aforesaid and except as set forth in (d) below, Tenant hereby assigns
14
all claims against the condemnor (including any claims for the value of Tenant's
leasehold estate) to Landlord.
(d) Temporary Taking. No temporary taking of the Premises shall terminate
this lease or give Tenant any right to any rental abatement. Such a temporary
taking will be treated as if Tenant had sublet the Premises to the condemnor and
had assigned the proceeds of the subletting to Landlord to be applied on account
of Tenant's obligations hereunder. Any award for such a temporary taking during
the Term shall be applied first, to Landlord's costs of collection and, second,
on account of sums owing by Tenant hereunder, and if such amounts applied on
account of sums owing by Tenant hereunder should exceed the entire amount owing
by Tenant for the remainder of the Term, the excess will be paid to Tenant.
14. Non-Abatement of Rent. Except as otherwise expressly provided as to damage
by fire or other casualty in Section 12(b), as to condemnation in Section 13(b),
as to utility interruption as provided in Section 7(e), and as to payment by
Landlord of the Allowance for Initial Tenant Improvements as provided in Section
28(d), there shall be no abatement or reduction of the Rent for any cause
whatsoever, and this lease shall not terminate, and Tenant shall not be entitled
to surrender the Premises.
15. Indemnification. Subject to Sections 7(c)(iii) and 16, Tenant will protect,
indemnify and hold harmless Landlord and its Agents from and against any and all
claims, actions, damages, liability and expense (including reasonable fees of
attorneys, investigators and experts) in connection with loss of life, personal
injury or damage to property in or about the Premises or arising out of the
occupancy or use of the Premises by Tenant or its Agents or occasioned wholly or
in part by any act or omission of Tenant or its Agents, whether prior to, during
or after the Term, except to the extent such loss, injury or damage was caused
by the negligence of Landlord or its Agents. In case any action or proceeding is
brought against Landlord and/or its Agents by reason of the foregoing, Tenant,
at its expense, shall resist and defend such action or proceeding, or cause the
same to be resisted and defended by counsel (reasonably acceptable to Landlord
and its Agents) designated by the insurer whose policy covers such occurrence or
by counsel designated by Tenant and approved by Landlord and its Agents.
Tenant's obligations pursuant to this Section 15 shall survive the expiration or
termination of this lease.
Subject to Sections 7(c)(iii) and 16, Landlord will protect, indemnify and
hold harmless Tenant and its Agents from and against any and all claims,
actions, damages, liability and expense (including reasonable fees of attorneys,
investigators and experts) in connection with loss of life, personal injury or
damage to property caused to any person in or about the Property occasioned
wholly or in part by the negligence of Landlord or its Agents, except to the
extent such loss, injury or damage was caused by the negligence of Tenant or its
Agents. In case any action or proceeding is brought against Tenant and/or its
Agents by reason of the foregoing, Landlord, at its expense, shall resist and
defend such action or proceeding, or cause the same to be resisted and defended
by counsel (reasonably acceptable to Tenant and its Agents) designated by the
insurer whose policy covers such occurrence or by counsel designated by Landlord
and approved by Tenant and its Agents. Landlord's obligations pursuant to this
Section shall survive the expiration or termination of this lease.
15
16. Waiver of Claims. Any provision to the contrary in this lease
notwithstanding, Landlord and Tenant each hereby waive, and release each other
from and against, all claims for recovery against the other for any loss or
damage to the property of such party arising out of fire or other casualty
coverable by a standard "Causes of Special Loss" property insurance policy with,
in the case of Tenant, such endorsements and additional coverages as are
considered good business practice in Tenant's business, even if such loss or
damage shall be brought about by the fault or negligence of the other party or
its Agents. This waiver and release is effective regardless of whether the
releasing party actually maintains the insurance described above in this
paragraph and is not limited to the amount of insurance actually carried, or to
the actual proceeds received after a loss.
17. Quiet Enjoyment. Landlord covenants that Tenant, upon performing all
of its covenants, agreements and conditions of this lease, shall have quiet and
peaceful possession of the Premises as against anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and conditions of
this lease.
18. Assignment and Subletting.
(a) Limitation. Tenant shall not sublet the Premises or assign this
lease, voluntarily or by operation of law, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. The foregoing
notwithstanding, Landlord shall not withhold its consent to a proposed
assignment of this lease or a proposed subletting of all or any part of the
Premises provided that the nature of the proposed tenancy and proposed use of
the Premises are, in Landlord's reasonable judgment, compatible with and
appropriate for the business park of which the Premises are a part. Tenant shall
give Landlord not less than 30 days prior written notice of any proposed
assignment or subletting, together with a description of the business of the
proposed subtenant or assignee, a description of the proposed use of the
Premises and current financial statements or other financial information
reasonably acceptable to Landlord with respect to the proposed subtenant or
assignee.
Any transfer not in conformity with this Section 18 shall be void at
the option of Landlord, and Landlord may exercise any or all of its rights under
Section 23. A consent to one transfer shall not be deemed to be a consent to any
subsequent transfer.
(b) Conditions. Notwithstanding the above, the following shall
apply to any transfer of Tenant's interest in this lease or the Premises, with
or without Landlord's consent:
(i) As of the date of any transfer, Tenant shall not be in
default under this lease nor shall any act or omission have occurred which would
constitute a default with the giving of notice and/or the passage of time.
(ii) Except as provided in subsection (c) below, No transfer
shall relieve Tenant of its obligation to pay the Rent and to perform all its
other obligations hereunder. The acceptance of Rent by Landlord from any person
shall not be deemed to be a waiver by Landlord of any provision of this lease or
to be a consent to any transfer.
16
(iii) Each transfer shall be by a written instrument in form
and substance reasonably satisfactory to Landlord which shall (A) include an
assumption of liability by any transferee of all Tenant's obligations and the
transferee's ratification of and agreement to be bound by all the provisions of
this lease, (B) afford Landlord the right of direct action against the
transferee pursuant to the same remedies as are available to Landlord against
Tenant and (C) be executed by Tenant and the transferee.
(iv) Tenant shall pay, within 10 days of receipt of an
invoice, Landlord's reasonable attorneys' fees and costs in connection with the
review, processing and documentation of any transfer for which Landlord's
consent is requested.
(v) Except as provided below, in the event that the rent due
and payable by a subtenant under any such permitted sublease (or a combination
of the rent payable under such sublease plus any bonus or other consideration
therefor or incident thereto) exceeds the rent payable under this lease, or if
with respect to a permitted assignment, permitted license, or other transfer by
Tenant permitted by Landlord or this lease, the consideration payable to Tenant
by the assignee, licensee, or other transferee exceeds the rent payable under
this lease, then Tenant shall be bound and obligated to pay Landlord 50% of such
excess rent and other excess consideration, after deduction of (i) Annual
Minimum Rent and Operating Expenses paid by Tenant during any time the Premises
being assigned or sublet were vacant, and (ii) reasonable leasing costs incurred
by Tenant in connection with such assignment or subletting, including marketing
costs, attorneys' fees, leasing commissions, and leasehold improvements or
allowances. The excess rent or other excess consideration so payable to Landlord
shall be remitted by Tenant to Landlord within ten (10) days following receipt
thereof by Tenant from such sublessee, assignee, licensee, or other transferee,
as the case may be. The foregoing notwithstanding, Tenant shall not be obligated
to pay Landlord the excess rent or other excess consideration described in this
subsection in the case of (i) a subletting by Tenant of less than 25,000
rentable square feet, (ii) an assignment or subletting by Tenant to any entity
controlled by, under common control with or controlling Tenant, or (iii) an
assignment or subletting by Tenant to any successor to the interests of Tenant
by merger or consolidation or to any person or entity acquiring all or
substantially all of the assets of Tenant as a going concern.
(c) Release. In the event of a permitted assignment of this lease
by Tenant to any assignee having a tangible net worth of $55,000,000 or greater,
Landlord shall, upon Tenant's request, release Tenant from all liability under
this lease with respect to matters and obligations arising from and after the
date of the assignment. Such release must be in writing, and will be issued by
Landlord upon receipt of reasonable documentation from Tenant confirming the net
worth of the assignee.
19. Subordination; Mortgagee's Rights.
(a) This lease shall be subordinate to any first mortgage or other
primary encumbrance now or hereafter affecting the Premises, provided, however,
that Tenant's right of possession of the Premises shall not be disturbed by the
Mortgagee so long as Tenant is not in default under this lease. Although the
subordination is self-operative, within 10 days after written request, Tenant
shall execute and deliver any further reasonable instruments confirming
17
such subordination of this lease and any further reasonably necessary
instruments of attornment that may be requested by any such mortgagee or
Landlord. However, any mortgagee may at any time subordinate its mortgage to
this lease, without Tenant's consent, by giving written notice to Tenant, and
thereupon this lease shall be deemed prior to such mortgage without regard to
their respective dates of execution and delivery; provided, however, that such
subordination shall not affect any mortgagee's right to condemnation awards,
casualty insurance proceeds, intervening liens or any right which shall arise
between the recording of such mortgage and the execution of this lease.
(b) It is understood and agreed that any mortgagee shall not be liable
to Tenant for any funds paid by Tenant to Landlord unless such funds actually
have been transferred to such mortgagee by Landlord.
(c) Notwithstanding the provisions of Sections 12 and 13 above, (i)
Landlord's obligation to restore the Premises after a casualty or condemnation
shall be subject to the consent and prior rights of Landlord's first mortgagee,
and (ii) if (A) Landlord's first mortgagee refuses to make casualty insurance
proceeds or the condemnation awards available for restoration, and (B) Landlord
does not otherwise have sufficient funds to complete its restoration of the
Premises, then Landlord shall promptly so notify Tenant, and Landlord or Tenant
shall have the right to terminate this lease by giving written notice of
termination to the other not more than 10 days following Landlord's notice.
20. Recording; Estoppel Certificates.
(a) All parties will, upon the request of any other party, execute a
short form lease ("Memorandum of Lease"), in a form suitable for recording. Such
Memorandum of Lease will be dated as of the date of this lease and will disclose
the parties, the Term of this lease, a description of the Premises, extension
rights, expansion rights and such other terms and conditions as the parties
agree upon. The party requesting the execution of such Memorandum will bear all
costs of the Memorandum, including any recording fees. All parties will,
following any termination of this lease and upon the written request of any
other party, execute a document setting forth the date of termination, in a form
suitable for recording. Failure of a party to execute such a document will not
affect the termination, and in such event the party requesting the document may
execute and file an affidavit setting forth the date of termination. The party
requesting the execution of a document setting forth the date of termination
will bear all costs thereof, including any recording fees.
(b) Within 10 days after Landlord's written request from time to time:
(i) Tenant shall execute, acknowledge and deliver to Landlord
a written statement certifying the Commencement Date and Expiration Date of this
lease, that this lease is in full force and effect and has not been modified and
otherwise as set forth in the form of estoppel certificate attached as Exhibit
"F" or with such modifications as may be necessary to reflect accurately the
stated facts and/or such other certifications as may be requested by a mortgagee
or purchaser. Tenant understands that its failure to execute such documents may
cause Landlord serious financial damage by causing the failure of a financing or
sale transaction.
18
(ii) Tenant shall furnish to Landlord, Landlord's mortgagee,
prospective mortgagee or purchaser reasonably requested financial information.
(c) Within 10 days after Tenant's written request from time to time,
Landlord shall execute, acknowledge and deliver to Tenant an estoppel
certificate containing such reasonable and customary certifications regarding
the lease as Tenant may request.
21. Surrender; Abandoned Property.
(a) Subject to the terms of Sections 9(b), 12(a) and 13(b), at the
expiration or termination of this lease, Tenant promptly shall yield up in the
same condition, order and repair in which they are required to be kept
throughout the Term, the Premises and all improvements thereto, and all fixtures
and equipment servicing the Building, ordinary wear and tear excepted. The
foregoing notwithstanding, Tenant shall be entitled to remove from the Premises
the fixtures and equipment listed on attached Exhibit "I", provided Tenant shall
repair any damage resulting from such removal and shall restore the Premises to
the condition existing prior to the installation of such Tenant fixtures or
equipment.
(b) Upon or prior to the expiration or termination of this lease,
Tenant shall remove any personal property from the Property. Any personal
property remaining thereafter shall be deemed conclusively to have been
abandoned, and Landlord, at Tenant's expense, may remove, store, sell or
otherwise dispose of such property in such manner as Landlord may see fit and/or
Landlord may retain such property as its property. If any part thereof shall be
sold, then Landlord may receive and retain the proceeds of such sale and apply
the same, at its option, against the expenses of the sale, the cost of moving
and storage and any Rent due under this lease.
(c) If Tenant, or any person claiming through Tenant, shall continue to
occupy the Premises after the expiration or termination of this lease or any
renewal thereof, such occupancy shall be deemed to be under a month-to- month
tenancy under the same terms and conditions set forth in this lease, except that
the monthly installment of the Minimum Annual Rent during such continued
occupancy shall be 150% of the amount applicable to the last month of the Term.
Anything to the contrary notwithstanding, any holding over by Tenant without
Landlord's prior written consent shall constitute a default hereunder and shall
be subject to all the remedies available to Landlord.
22. Curing Tenant's Defaults. If Tenant shall be in default in the
performance of any of its obligations hereunder, Landlord, without any
obligation to do so, in addition to any other rights it may have in law or
equity, may elect to cure such default on behalf of Tenant after written notice
(except in the case of emergency) to Tenant and after affording Tenant the
opportunity to cure required under Section 23 (c) below. Tenant shall reimburse
Landlord upon demand for any sums paid or costs incurred by Landlord in curing
such default, including interest thereon from the respective dates of Landlord's
incurring such costs, which sums and costs together with interest shall be
deemed additional rent.
19
23. Defaults - Remedies.
(a) Defaults. It shall be an event of default:
(i) If Tenant does not pay in full when due any and all Rent;
(ii) If Tenant fails to observe and perform or otherwise breaches
any other provision of this lease;
(iii) If Tenant abandons the Premises; or
(iv) If Tenant becomes insolvent or bankrupt in any sense or
makes a general assignment for the benefit of creditors or offers a settlement
to creditors, or if a petition in bankruptcy or for reorganization or for an
arrangement with creditors under any federal or state law is filed by or against
Tenant, or a ▇▇▇▇ in equity or other proceeding for the appointment of a
receiver for any of Tenant's assets is commenced, or if any of the real or
personal property of Tenant shall be levied upon; provided, however, that any
proceeding brought by anyone other than Landlord or Tenant under any bankruptcy,
insolvency, receivership or similar law shall not constitute a default until
such proceeding has continued unstayed for more than 60 consecutive days.
(b) Remedies. Then, and in any such event, Landlord shall have the
following rights:
(i) To charge a late payment fee equal to the greater of $100
or 4% of any amount owed to Landlord pursuant to this lease which is not paid
within 10 days after the due date.
(ii) To enter and repossess the Premises, by breaking open
locked doors if necessary, and remove all persons and all or any property
therefrom, by action at law or otherwise, without being liable for prosecution
or damages therefor, and Landlord may, at Landlord's option, make alterations
and repairs in order to relet the Premises and relet all or any part(s) of the
Premises for Tenant's account. Tenant agrees to pay to Landlord on demand any
deficiency that may arise by reason of such reletting. In the event of reletting
without termination of this lease, Landlord may at any time thereafter elect to
terminate this lease for such previous breach.
(iii) To terminate this lease and the Term and to require
Tenant to pay to Landlord all past due amounts under this lease plus the present
value (as of the date of such election) of the amount, if any, by which (1) the
Minimum Annual Rent which would have been payable during the period (the
"Remaining Period") from the date of such election through the last day of the
Term if this lease had remained in effect exceeds (2) the fair market minimum
annual rent as determined by Landlord in its reasonable discretion for the
Premises for the Remaining Period. For purposes of calculating the present value
of such excess, a discount rate equal to the annual yield on U.S. Treasury Bonds
with a remaining term that most closely approximates the Remaining Period shall
be employed, and it shall be assumed that the excess will be payable in equal
monthly installments over the Remaining Period.
20
(iv) To terminate this lease and the Term without any right on
the part of Tenant to save the forfeiture by payment of any sum due or by other
performance of any condition, term or covenant broken.
(c) Grace Period. Notwithstanding anything hereinabove stated,
neither party will exercise any available right because of any default of the
other, except those remedies contained in subsection (b)(i) of this Section,
unless such party shall have first given 10 days written notice thereof to the
defaulting party, and the defaulting party shall have failed to cure the default
within such period; provided, however, that:
(i) No such notice shall be required if Tenant fails to comply
with the provisions of Sections 10 or 20(a), in the case of emergency as set
forth in Section 22 or in the event of any default enumerated in subsections
(a)(iii) and (iv) of this Section.
(ii) Landlord shall not be required to give such 10 days notice
more than 2 times during any 12 month period.
(iii) If the default consists of something other than the failure
to pay money which cannot reasonably be cured within 10 days, neither party will
exercise any right if the defaulting party begins to cure the default within the
10 days and continues actively and diligently in good faith to completely cure
said default.
(iv) Tenant agrees that any notice given by Landlord pursuant to
this Section which is served in compliance with Section 27 shall be adequate
notice for the purpose of Landlord's exercise of any available remedies.
(d) Non-Waiver; Non-Exclusive. No waiver by Landlord of any breach by
Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Efforts
by Landlord to mitigate the damages caused by Tenant's default shall not
constitute a waiver of Landlord's right to recover damages hereunder. No right
or remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy provided herein or by law, but each shall
be cumulative and in addition to every other right or remedy given herein or now
or hereafter existing at law or in equity. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the total amount due Landlord
under this lease shall be deemed to be other than on account, nor shall any
endorsement or statement on any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of Rent due, or Landlord's right to
pursue any other available remedy.
(e) Costs and Attorneys' Fees. If either party commences an action
against the other party arising out of or in connection with this lease, the
prevailing party shall be entitled to have and recover from the losing party
reasonable attorneys' fees, costs of suit, investigation expenses and discovery
costs, including costs of appeal.
21
24. Representations of Tenant. Tenant represents to Landlord and agrees that:
(a) The word "Tenant" as used herein includes the Tenant named above as
well as its successors and assigns, each of which shall be under the same
obligations and liabilities and each of which shall have the same rights,
privileges and powers as it would have possessed had it originally signed this
lease as Tenant. Each and every of the persons named above as Tenant shall be
bound jointly and severally by the terms, covenants and agreements contained
herein. However, no such rights, privileges or powers shall inure to the benefit
of any assignee of Tenant immediate or remote, unless Tenant has complied with
the terms of Section 18 and the assignment to such assignee is permitted or has
been approved in writing by Landlord. Any notice required or permitted by the
terms of this lease may be given by or to any one of the persons named above as
Tenant, and shall have the same force and effect as if given by or to all
thereof.
(b) If Tenant is a corporation, partnership or any other form of business
association or entity, Tenant is duly formed and in good standing, and has full
corporate or partnership power and authority, as the case may be, to enter into
this lease and has taken all corporate or partnership action, as the case may
be, necessary to carry out the transaction contemplated herein, so that when
executed, this lease constitutes a valid and binding obligation enforceable in
accordance with its terms. Tenant shall provide Landlord with corporate
resolutions or other proof in a form acceptable to Landlord, authorizing the
execution of this lease at the time of such execution.
25. Liability of Landlord. The word "Landlord" as used herein includes the
Landlord named above as well as its successors and assigns, each of which shall
have the same rights, remedies, powers, authorities and privileges as it would
have had it originally signed this lease as Landlord. Any such person or entity,
whether or not named herein, shall have no liability hereunder after it ceases
to hold title to the Premises except for obligations already accrued (and, as to
any unapplied portion of Tenant's Security Deposit, Landlord shall be relieved
of all liability therefor upon transfer of such portion to its successor in
interest) and Tenant shall look solely to Landlord's successor in interest for
the performance of the covenants and obligations of the Landlord hereunder which
thereafter shall accrue. Neither Landlord nor any principal of Landlord nor any
owner of the Property, whether disclosed or undisclosed, shall have any personal
liability with respect to any of the provisions of this lease or the Premises,
and if Landlord is in breach or default with respect to Landlord's obligations
under this lease or otherwise, Tenant shall look solely to the equity of
Landlord in the Property for the satisfaction of Tenant's claims.
Notwithstanding the foregoing, no mortgagee or ground lessor succeeding to the
interest of Landlord hereunder (either in terms of ownership or possessory
rights) shall be (a) liable for any previous act or omission of a prior
landlord, (b) subject to any rental offsets or defenses against a prior landlord
unless specifically provided for in this lease or unless (and only to the extent
that) the default giving rise to the defense or offset is continuing, or (c)
bound by any amendment of this lease made without its written consent, or by
payment by Tenant of Minimum Annual Rent in advance in excess of one monthly
installment.
22
26. Interpretation; Definitions.
(a) Captions. The captions in this lease are for convenience only and are
not a part of this lease and do not in any way define, limit, describe or
amplify the terms and provisions of this lease or the scope or intent thereof.
(b) Entire Agreement. This lease represents the entire agreement between
the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease. This lease shall not be
modified in any manner except by an instrument in writing executed by the
parties. The masculine (or neuter) pronoun and the singular number shall include
the masculine, feminine and neuter genders and the singular and plural number.
The word "including" followed by any specific item(s) is deemed to refer to
examples rather than to be words of limitation. Both parties having participated
fully and equally in the negotiation and preparation of this lease, this lease
shall not be more strictly construed, nor any ambiguities in this lease
resolved, against either Landlord or Tenant.
(c) Covenants. Each covenant, agreement, obligation, term, condition or
other provision herein contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making the same, not
dependent on any other provision of this lease unless otherwise expressly
provided. All of the terms and conditions set forth in this lease shall apply
throughout the Term unless otherwise expressly set forth herein.
(d) Interest. Wherever interest is required to be paid hereunder, such
interest shall be at the "prime rate" plus four percent (4%). "Prime rate"
herein means the rate of interest per annum from time to time published in The
Wall Street Journal (or comparable financial publication if The Wall Street
Journal ceases to be published or ceases to publish a prime rate) as the "High
Prime Rate", or the "Prime Rate" if only one "Prime Rate" is published, as the
same may fluctuate from time to time.
(e) Severability; Governing Law. If any provisions of this lease shall be
declared unenforceable in any respect, such unenforceability shall not affect
any other provision of this lease, and each such provision shall be deemed to be
modified, if possible, in such a manner as to render it enforceable and to
preserve to the extent possible the intent of the parties as set forth herein.
This lease shall be construed and enforced in accordance with the laws of the
state in which the Property is located.
(f) "Mortgage" and "Mortgagee." The word "mortgage" as used herein includes
any lien or encumbrance on the Premises or the Property or on any part of or
interest in or appurtenance to any of the foregoing, including without
limitation any ground rent or ground lease if Landlord's interest is or becomes
a leasehold estate. The word "mortgagee" as used herein includes the holder of
any mortgage, including any ground lessor if Landlord's interest is or becomes a
leasehold estate. Wherever any right is given to a mortgagee, that right may be
23
exercised on behalf of such mortgagee by any representative or servicing agent
of such mortgagee.
(g) "Person." The word "person" is used herein to include a natural person,
a partnership, a corporation, an association and any other form of business
association or entity.
27. Notices. Any notice or other communication under this lease shall be in
writing and addressed to Landlord or Tenant at their respective addresses
specified at the beginning of this lease, except that after the Commencement
Date Tenant's address shall be at the Premises, (or to such other address as
either may designate by notice to the other) with a copy to any mortgagee
(provided Landlord or the mortgagee has notified Tenant of the mortgage and of
the notice address for the mortgagee) or other party designated by Landlord.
Each notice or other communication shall be deemed given if sent by prepaid
overnight delivery service or by certified mail, return receipt requested,
postage prepaid or in any other manner, with delivery in any case evidenced by a
receipt, and shall be deemed received on the day of actual receipt by the
intended recipient or on the business day delivery is refused. The giving of
notice by Landlord's or Tenant's attorneys, representatives and agents under
this Section shall be deemed to be the acts of Landlord or Tenant, as the case
may be; however, the foregoing provisions governing the date on which a notice
is deemed to have been received shall mean and refer to the date on which a
party to this lease, and not its counsel or other recipient to which a copy of
the notice may be sent, is deemed to have received the notice.
28. Tenant Improvements; Tenant Improvement Allowance; Commencement.
(a) Initial Tenant Improvements. The initial tenant improvements (the
"Initial Tenant Improvements") shall be constructed by Tenant in accordance with
the Tenant Improvement Plans as defined in Section 28(b) below and in accordance
with the terms and conditions of this Section 28.
(b) Tenant Improvement Plans. Landlord and Tenant have approved the space
plans for the Initial Tenant Improvements prepared by Tenant's architect and
attached to this lease as Exhibit "J" (the "Fit Plan") (the parties acknowledge
that the Fit Plan is preliminary, and Tenant may propose refinements thereto for
Landlord's approval, which approval shall not be unreasonably withheld). Tenant
will provide Landlord, on or before January 16, 2001, complete construction
drawings and specifications for the Initial Tenant Improvements. The
construction drawings and specifications shall be consistent with the approved
Fit Plan. Within 3 business days after its receipt of the construction drawings
and specifications, Landlord shall notify Tenant of its approval or disapproval
thereof (which approval shall not be unreasonably withheld), and if Landlord
disapproves thereof, the revisions that Landlord requires in order to obtain
such approval. It is agreed that Landlord will not object to construction
drawings and specifications to the extent that they conform to the approved Fit
Plan. As promptly as reasonably possible thereafter, but no later than 3
business days after Landlord's response, Tenant shall submit to Landlord
modified construction drawings incorporating appropriate revisions. Upon
approval of the final construction drawings and specifications, Landlord's and
Tenant's authorized representatives shall each evidence such approval by
initialing the top of
24
each sheet of the approved construction drawings and specifications. The
approved construction drawings and specifications are herein termed the "Tenant
Improvement Plans".
(c) Construction. Tenant shall cause the Initial Tenant Improvements to be
constructed (i) pursuant to the approved Tenant Improvement Plans by C-70
Construction, ▇▇▇▇▇▇, or other general contractor approved by Landlord (which
approval shall not be unreasonably withheld), (ii) in a good and workmanlike
manner in compliance with all applicable Laws and Requirements and (iii) in
accordance with the provisions of Sections 9 and 10 of this lease. Tenant shall
deliver to Landlord copies of all certificates of occupancy, permits and
licenses required to be issued by any authority in connection with Tenant's
construction.
(d) Tenant Allowances.
(i) Space Planning Services. Landlord shall provide Tenant an
allowance of up to $60,000 toward architectural fees for preliminary space
planning services. Landlord shall reimburse Tenant within 30 days following
submission by Tenant to Landlord of a written request for payment and
documentation reasonably acceptable to Landlord evidencing Tenant's costs.
Landlord shall have the right to condition payment on receipt of lien waivers.
Landlord shall have no obligation to disburse this allowance, or any other
allowance, unless and until the contingencies in favor of Tenant set forth in
Section 37 below have lapsed or have been waived by Tenant, except that Landlord
shall reimburse Tenant up to eight cents ($.08) per rentable square foot toward
architectural fees payable by Tenant for Tenant's Fit Plan if Tenant terminates
this lease pursuant to Section 37(a).
(ii) Tenant Improvement Allowance. Landlord shall provide Tenant a
leasehold improvement allowance of up to $30.00 per rentable square foot of the
Premises (the "Allowance") toward the cost of the Initial Tenant Improvements
(including the cost of architectural, engineering and construction drawings, of
reasonable moving expenses, of obtaining necessary permits and of constructing
the interior improvements, except that Tenant may not use the Allowance to pay
for trade fixtures, equipment, furniture or other removable personal property of
Tenant). The Allowance shall be disbursed to Tenant by Landlord promptly after
submission by Tenant to Landlord of evidence of the costs and expenses of the
Initial Tenant Improvements, evidence of payment thereof by Tenant, lien waivers
from all persons supplying labor or materials to the Initial Tenant
Improvements, and any other information or documentation that Landlord may
reasonably request (including the requirements for final disbursement listed in
the following paragraph). If the costs and expenses of the Initial Tenant
Improvements, whether constructed by Landlord or by Tenant, exceed the
Allowance, Tenant shall be solely responsible for payment of any excess.
Landlord shall not charge Tenant a construction supervision or similar fee in
connection with any oversight by Landlord of the construction of the Initial
Tenant Improvements and Landlord shall not charge Tenant any fee for Landlord's
review of plans or construction drawings for the Initial Tenant Improvements.
If Tenant requests, Landlord agrees to disburse the Allowance pursuant to
monthly "draws", in accordance with this paragraph. To request a disbursement
from the Allowance, Tenant may submit (no more frequently than monthly) an
application for payment prepared by Tenant's contractor for the Initial Tenant
Improvement work completed and Landlord will pay a pro rata
25
portion (if the estimated costs for the construction of the Initial Tenant
Improvements exceed the Allowance; Tenant shall be responsible to pay at that
time its pro rata portion of the cost of the work covered by the application for
payment) of a properly submitted application for payment based on the total
estimated costs for the Initial Tenant Improvements. A properly submitted
application for payment must include a general contractor's affidavit and
unconditional lien waivers and subcontractor's lien waivers and an affidavit
from Tenant's general contractor certifying the cost and stating that it has
delivered to Landlord all lien waivers and that the contractor has paid all
debts for Initial Tenant Improvements, all in form and substance reasonably
acceptable to Landlord and such other documentation as Landlord may reasonably
request. Landlord will pay its pro rata portion of a properly submitted
application for payment within 30 days of receipt. Landlord will only pay the
last installment of the Allowance upon final completion of the Initial Tenant
Improvements, the issuance of a certificate of occupancy by the appropriate
governmental authorities, receipt of Tenant's signed statement that it is
satisfied with the Initial Tenant Improvements and that all contractors have
been paid, receipt of a certificate of completion signed by Tenant's architect,
and receipt of a complete set of "as built" plans and specifications. Landlord
shall have no obligation to make any final disbursement of the Allowance,
unless, in connection therewith, Tenant delivers to Landlord a statement signed
by Tenant acknowledging that the entire Allowance has been disbursed in full to
Tenant and that the offset rights provided in the following paragraph are of no
further force or effect.
If Landlord shall default in its obligation to fund the Allowance, Tenant may
provide Landlord written notice of default, which notice shall specify the
amount of the Allowance Tenant claims Landlord has failed to pay. If Landlord
fails to cure the default within 30 days following Tenant's notice, Tenant may
set off the Allowance owed to Tenant against Minimum Annual Rent (but not
payments of Operating Expenses) payable under this lease subject to the
following condition: if Landlord disputes in good faith (by written notice to
Tenant) Tenant's right to the claimed unfunded Allowance, Tenant shall have no
right of setoff hereunder unless and until Tenant has obtained a final,
non-appealable money judgment in favor of Tenant.
If the total Allowance disbursed by Landlord to Tenant (the "Actual Allowance")
is less than $30.00 multiplied by the rentable square footage of the Premises
(the "Available Allowance"), the Minimum Annual Rent payable with respect to
each lease year during the initial Term will be decreased by an amount equal to
(i) the difference between the Available Allowance and the Actual Allowance
disbursed, multiplied by (ii) .2055. For example, if the Actual Allowance
disbursed is $100,000 less than the Available Allowance of $30 per rentable
square foot, the Minimum Annual Rent payable in each lease year of the initial
Term shall be decreased by $20,550 ($100,000 times .2055).
At Tenant's request (which request must be made prior to February 15, 2001),
Landlord will increase the Allowance by an amount not to exceed $2.00 per
rentable square foot (the "Increase"). In such event, the Minimum Annual Rent
will be increased by an amount equal to the Increase multiplied by .2316. For
example, if the Increase in the Allowance is $150,000, the Minimum Annual Rent
will increase by $34,740 ($150,000 times .2316).
26
(e) Access. From and after the satisfaction or waiver of the Tenant
contingencies set forth in Section 37, Landlord will afford Tenant access, at
Tenant's own risk, expense and responsibility, for purposes of installing the
Initial Tenant Improvements, and Tenant's furniture, trade fixtures and
equipment; provided, however, that until the base Building is substantially
completed, Tenant will schedule its access through, and coordinate its
construction activities with, Landlord and the base Building contractor so that
the construction of the Initial Tenant Improvements do not interfere with or
delay the completion of the base Building. Also, upon Tenant's timely request
with respect to any component of the Initial Tenant Improvements that need to be
installed or constructed prior to the completion of the base Building shell or a
particular component thereof, Landlord will afford Tenant limited access to the
Premises, subject to coordination with and the cooperation of the base Building
contractor, for the construction or installation of such component. In
connection with all access by Tenant or its contractors prior to the
Commencement Date, Tenant shall abide by the terms and conditions of this lease
including carrying the insurance specified by the lease, as if the term of this
lease had already commenced, except that Tenant shall have no obligation to pay
the Minimum Annual Rent or Annual Operating Expenses until the Commencement
Date. Tenant shall, however, pay the charges for all utilities furnished to the
Premises during Tenant's early-access period and after the substantial
completion of the Base Building, as reasonably estimated by Landlord (with due
consideration and care to estimate and exclude the expenses of any utilities
relating to base Building construction or furnished to space outside of the
Premises).
(f) Commencement Date. The "Commencement Date" of this lease shall be the
earlier of (i) the date Tenant occupies all or any portion of the Premises for
the purpose of conducting business therein, or (ii) May 7, 2001 (provided,
however, that this date shall be extended day for day by reason of any delay
past March 1, 2001, in the substantial completion of the base Building shell,
other than delay caused by Tenant or its contractors. In order for Landlord to
assert a Tenant delay in the completion of the base Building pursuant to the
preceding sentence, Landlord must notify Tenant in writing of any circumstance
constituting a Tenant delay within 2 business days of Landlord's knowledge that
such circumstance has resulted or is likely to result in a delay.
The outside Commencement Date of May 7, 2001 shall also be extended day for
day for any Excused Delay in the construction of the Initial Tenant
Improvements. Excused Delay shall be mean delay in the substantial completion of
the Initial Tenant Improvements resulting from the following, and only the
following events or circumstances: floods, fire, tornado, earthquake or other
casualties or natural disasters, war or national emergency, governmental
restrictions and limitations or any cause similar to the foregoing beyond the
reasonable control of Tenant or Tenant's contractors, subcontractors or
suppliers, except that the term Excused Delay shall expressly exclude delays due
to snow, cold weather or similar adverse weather conditions, strikes or other
labor troubles or due to scarcity or unavailability of fuel, labor or materials
(unless directly related to one of the expressly enumerated causes above). In
order for Tenant to claim an extension of the Commencement Date resulting from
an Excused Delay, Tenant must (i) notify Landlord in writing of any circumstance
constituting an Excused Delay within 2 business days of Tenant's knowledge that
such circumstance has resulted or is likely to result in a delay, and (ii)
submit to Landlord a certification by Tenant's architect of the length of the
delay resulting from such circumstance, which certification shall be subject to
the reasonable review
27
and approval of Landlord's architect. In no event shall Excused Delays, in the
aggregate, exceed 60 days.
(g) Move-in. Landlord, at Landlord's expense, shall cause the floor of the
warehouse area to be cleaned by power washing prior to Tenant's move-in.
29. Parking. Landlord shall provide, and Tenant shall be entitled to the use
of, not less than 4.2 unreserved parking spaces for each 1,000 rentable square
feet of the Premises. Except as provided below, such parking shall be
nonexclusive, undesignated and unreserved parking provided as part of the
Building's common area parking facilities. In the event that Tenant does not
require use of the loading area of the Building, Tenant's parking ratio shall be
increased to 4.9 unreserved parking spaces for each 1,000 rentable square feet
of the Premises. Tenant shall have the right at its expense to have up to two
parking spaces in front of Tenant's entrance striped as a "no parking area", and
Landlord will sign, at Tenant's expense, up to three parking spaces as Tenant's
visitor parking, such signage to conform to Landlord's sign criteria for the
Project. The striped and signed parking shall be part of, and not in addition
to, the parking allocated to Tenant based on the ratios set forth above in this
paragraph.
30. Telecommunications. Landlord will provide 400 pair copper service to D-▇▇▇▇
in the main electrical room of the Building. Landlord shall run conduit to the
property line stubbed for future cabling for Tenant's use in accordance with
Exhibit "B". Landlord acknowledges that Tenant may, as part of the Initial
Tenant Improvements and subject to Landlord's review and approval of Tenant's
Plans with respect thereto, install T1 and ISDN lines to the Premises.
31. Landlord's Environmental Representations.
(a) Landlord has provided Tenant a copy of the following environmental
assessments and reports regarding the Property:
. Environmental Site Assessment, ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ Addition,
prepared by American Engineering Testing, Inc. dated February 25,
2000 (AET #03-00646)
. Phase I Environmental Site Assessment Update; ▇▇▇ ▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, prepared by American
Engineering Testing, Inc., dated September 12, 2000
. Review of Phase I Environmental Site Assessment and Phase I Update;
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇▇▇▇, ▇▇; prepared by
LawGibb Group, dated September 19, 2000
Landlord represents to Tenant that the foregoing is a complete list of
all studies and reports in Landlord's possession or under Landlord's
control with respect to hazardous substances or Restricted Activities
(as defined in Section 4 of the lease) on or about the Property.
Landlord will provide Tenant a copy of any additional or updated
environmental assessments obtained by Landlord in connection with
28
its acquisition or development of the Property. Except as may be
disclosed in the reports listed above, Landlord has no actual knowledge
of the presence of any hazardous substances on or about the Property.
Landlord has no actual knowledge of, and has received no notice from
any governmental authority regarding, any inquiry, investigation or
proceeding regarding hazardous substances or Restricted Activities on
or about the Property.
(b) Landlord represents that the base Building will be constructed in
compliance, in all material respects, with all applicable environmental
Laws and Requirements as applied, enforced and interpreted as of the
date the building permit is issued.
32. Extension Option. Tenant shall have the right and option to extend the Term
of this lease for two (2) additional extension terms of three (3) years each.
Each extension option must be exercised, if at all, by giving Landlord prior
written notice, at least nine (9) months in advance of the expiration date of
the initial lease Term or first extension Term, as the case may be, of Tenant's
election to extend the lease Term. Except as follows, and subject to the
following conditions, each extension Term shall be under the same terms and
conditions as provided in the lease:
(a) Tenant's extension option shall be void at Landlord's option if there
exists any event of material default by Tenant under this lease beyond any
applicable notice and cure period at the time Tenant exercises an extension
option or as of the commencement date of the extension term;
(b) there shall be no options to extend the Term beyond the second
extension term;
(c) Tenant shall accept the Premises in their "as is" condition, without
any obligation on the part of Landlord to provide any tenant improvements or
tenant improvement allowance; and
(d) the Minimum Annual Rent for the extension term shall be as follows:
First Extension Term
--------------------
Lease Year Annual Monthly PSF
---------- ------ ------- ---
8 $1,085,250.00 $ 90,437.50 $14.47
9 1,108,500.00 92,375.00 14.78
10 1,132,500.00 94,375.00 15.10
Second Extension Term
---------------------
Lease Year Annual Monthly PSF
---------- ------ ------- ---
11 $1,157,250.00 $ 96,437.50 $15.43
12 1,182,000.00 98,500.00 15.76
13 1,207,500.00 100,625.00 16.10
29
Upon the timely exercise of an extension option, at the request of either party
the parties hereto will enter into an appropriate amendment to the lease
incorporating the terms of the lease extension.
33. Right of First Offer: Building. The term "Building Offer Space" herein
means any rentable space in the 5775 Building not included in the Premises.
Landlord agrees that Landlord will not, without Tenant's prior written consent,
enter into any initial lease of all or part of the Building Offer Space to any
third party having a term (including all tenant extension options) that extends
beyond the expiration date of the initial Term of this lease. Landlord further
agrees that if Landlord enters into any initial lease of the Building Offer
Space consisting of 6,000 rentable square feet or less, the term (including all
tenant extension options) of such lease shall not exceed 60 months. After the
initial leasing of the Building Offer Space, in the event such Building Offer
Space becomes available for lease at any time during the Term because of the
expiration or termination of an existing lease (Landlord shall not extend or
renew any existing lease other than pursuant to options provided in such lease
without first offering the space to Tenant under this Section), Landlord shall
give Tenant written notice of the availability of such Building Offer Space and
of the Minimum Annual Rent for such Building Offer Space (determined as provided
below), and Tenant shall have the right, at its option, to lease such Building
Offer Space provided (a) Tenant delivers to Landlord written notice exercising
its right to lease such Building Offer Space within 30 days of receipt of
Landlord's notice of availability of such Building Offer Space, and (b) Tenant
is not in default in any material respect under this lease at the time Tenant
exercises its right to lease such Building Offer Space and at the time Tenant is
to take possession of such Building Offer Space. If Tenant fails to exercise
timely its right to lease such Building Offer Space with respect to a particular
notice of availability given by Landlord, Tenant will have no further right to
lease such Building Offer Space, and this right of first offer shall terminate
with respect to such Building Offer Space, provided, however, that any portion
of such Building Offer Space that remains unleased as of the date that is six
months following Landlord's notice of availability must be re-offered to Tenant
in accordance with this Section. If Tenant elects to exercise its right to lease
such Building Offer Space, the terms, conditions and covenants applicable to
such Building Offer Space shall be as set forth in this lease, except that the
Minimum Annual Rent regarding such space shall be equal to 102% of the Minimum
Annual Rent that was scheduled to be paid (without accounting for abatement,
offset or any other reduction) by the prior tenant of the Offer Space over the
last lease year in which the prior tenant paid or was to pay full Minimum Annual
Rent, and such Minimum Annual Rent shall increase 2% (compounded) per lease year
during the term of this lease with respect to the Offer Space, and the Building
Offer Space shall be delivered to Tenant in an "as is" condition. The
commencement date for the lease covering such space shall be the date following
the exercise of such option on which such space is first made available to
Tenant. If Tenant exercises its right to lease such space, Landlord and Tenant
shall execute and deliver an appropriate amendment to this lease regarding the
lease of such space. The foregoing notwithstanding, Tenant shall have no right
to lease any Building Offer Space unless at least two (2) full years remain in
the Term hereof or unless Tenant has the right to extend the Term and does so in
connection with its lease of the Building Offer Space. As noted above, Tenant
shall not have any offer rights with respect to the initial leasing of any space
in the Building, but these offer rights shall apply when such initial leases
expire or terminate.
30
34. Right of First Offer: Project. The term "Project Offer Space" herein means
any rentable space in the Project, excluding the "Building Offer Space". Tenant
shall not have any offer rights with respect to the initial leasing of any
Project Offer Space, but these offer rights shall apply when such initial leases
expire or terminate. After the initial leasing of the Project Offer Space, in
the event any Project Offer Space becomes available for lease at any time during
the Term and the party, if any, in possession of such Project Offer Space does
not desire to remain in possession, Landlord shall give Tenant written notice of
the availability of such Project Offer Space and of the proposed Minimum Annual
Rent for such Project Offer Space (determined as provided below), and Tenant
shall have the right, at its option, to lease such Project Offer Space provided
(a) Tenant delivers to Landlord written notice exercising its right to lease
such Project Offer Space within 30 days of receipt of Landlord's notice of
availability of such Project Offer Space, and (b) Tenant is not in default in
any material respect under this lease at the time Tenant exercises its right to
lease such Project Offer Space and at the time Tenant is to take possession of
such Project Offer Space. If Tenant fails to exercise timely its right to lease
such Project Offer Space with respect to a particular notice of availability
given by Landlord, Tenant will have no further right to lease such Project Offer
Space, and this right of first offer shall terminate with respect to such
Project Offer Space, provided, however, that any portion of such Project Offer
Space that remains unleased as of the date that is six months following
Landlord's notice of availability must be re-offered to Tenant in accordance
with this Section. If Tenant elects to exercise its right to lease such Project
Offer Space, the terms, conditions and covenants applicable to such Project
Offer Space shall be as set forth in this lease, except that the Minimum Annual
Rent regarding such space shall be equal to 102% of the Minimum Annual Rent that
was scheduled to be paid (without accounting for abatement, offset or any other
reduction) by the prior tenant of the Offer Space over the last lease year in
which the prior tenant paid or was to pay full Minimum Annual Rent, and such
Minimum Annual Rent shall increase 2% (compounded) per lease year during the
term of this lease with respect to the Offer Space, and the Project Offer Space
shall be delivered to Tenant in an "as is" condition. The commencement date for
the lease covering such space shall be the date following the exercise of such
option on which such space is first made available to Tenant. If Tenant
exercises its right to lease such space, Landlord and Tenant shall execute and
deliver an appropriate amendment to this lease regarding the lease of such
space. The foregoing notwithstanding, Tenant shall have no right to lease any
Project Offer Space unless at least two (2) full years remain in the Term hereof
or unless Tenant has the right to extend the Term and does so in connection with
its lease of the Project Offer Space. As noted above, Tenant shall not have any
offer rights with respect to the initial leasing of any space in the Project,
but these offer rights shall apply when such initial leases expire or terminate.
35. Closing Contingency. Pursuant to that certain Purchase Agreement (the
"Purchase Agreement") by and between West Bloomington Technology Park, LLC, as
Seller, and Landlord, as Buyer, dated September 18, 2000, Landlord has the right
and obligation to purchase the Property upon the substantial completion of the
Building by Landlord's seller, West Bloomington Technology Park, LLC. This
lease, and Landlord's obligation hereunder, is contingent upon Landlord closing
on its acquisition of the Property, provided, however, that if this lease is
terminated based on this contingency, Landlord shall remain obligated to pay to
Tenant that portion of the Tenant Improvement Allowance necessary to fully
reimburse Tenant
31
for all costs and expenses incurred by Tenant with respect to the construction
of the Initial Tenant Improvements through the date of termination. Landlord
covenants and agrees that it will perform its obligations as buyer under the
Purchase Agreement, and that Landlord will close on its acquisition of the
Property, provided that West Bloomington Technology Park, LLC performs its
obligations under the Purchase Agreement. In connection with the foregoing
contingency, Landlord represents that (i) Landlord has completed its due
diligence with respect to the Property, and, absent any material adverse change
with regard to the Property between the date hereof and the closing of the
purchase, the only contingency to Landlord's obligation to close on the
acquisition of the Property is that West Bloomington Technology Park, LLC cause
the base Building and site improvements to be substantially completed in
accordance with the provisions of the Purchase Agreement and that West
Bloomington Technology Park LLC perform its other material obligations under the
Purchase Agreement, and (ii) Landlord is not currently aware of any events or
circumstances that are likely to prevent the substantial completion of the base
Building on or before the target date of February 1, 2001. Landlord agrees that
if Landlord becomes aware of any fact or circumstance that would be likely to
cause the substantial completion of the base Building to be delayed past the
target completion date of February 1, 2000, Landlord shall promptly give Tenant
written notice thereof.
The foregoing notwithstanding, Tenant agrees that in the event Landlord fails to
close on its acquisition of the Property, Landlord may, at the request of West
Bloomington Technology Park, LLC, assign this lease, with Tenant's consent, to
West Bloomington Technology Park, LLC, in which event this lease shall continue
in full force and effect so long as West Bloomington Technology Park, LLC
assumes and agrees to perform the obligations of Landlord hereunder, including,
but not limited to, the construction obligations of Landlord set forth in
Section 3 of this lease. Tenant further agrees (i) that it will not unreasonably
withhold its consent to such assignment, and (ii) there shall be no restrictions
on Landlord's right to assign this lease or transfer its interest in the
Property after Landlord becomes the fee owner of the Property.
36. Site Development. Landlord represents to Tenant that pursuant to the
Purchase Agreement described in Section 35 above, that West Bloomington
Technology Park, LLC is obligated to Landlord to construct the Project in three
Phases in accordance with, and as shown on, the Site Plan. Landlord further
represents that so long as West Bloomington Technology Park, LLC performs its
obligations under the Purchase Agreement, Landlord is obligated to purchase the
Project Phase by Phase as construction proceeds. Landlord may, however, elect to
stop the construction of Buildings in a Phase of the Project if Landlord's
leasing of the previous Phase has not reached certain thresholds. Landlord
represents to Tenant that if this lease is fully executed (with all
contingencies in favor of Tenant waived or expired) on or before the date that
Landlord purchases Phase I (this is the Phase that includes the Building) as
shown on the Site Plan, that the parties to the Purchase Agreement are obligated
thereunder to proceed with the construction of the Phase II Buildings. Landlord
represents to Tenant that if Phase II is 50% leased on terms acceptable to
Landlord at the time Landlord purchases the Phase II Buildings, then the parties
are obligated under the Purchase Agreement to proceed with the construction of
the Phase III Building. In connection with the development of the Project,
Landlord and Tenant agree that (i) Landlord will not make any changes to the
Site Plan that would materially and adversely affect access to the Building,
that would reduce the parking available to the Building below the thresholds
required under Section 29 of this lease, that would materially change the
32
proximity of such parking to the Building, or that would materially and
adversely impact the visibility of the Building, without in each instance first
obtaining Tenant's written consent, (ii) although Landlord presently intends to
proceed with Phase II and Phase III of the Project, and may be contractually
obligated to do so under the Purchase Agreement, Landlord shall have no
liability to Tenant if Landlord for any reason, elects not to proceed with the
construction and acquisition of the Phase II and Phase III buildings, or,
subject to clause (i) of this sentence, elects to develop the remainder of the
Project in a manner different from that shown on the Site Plan.
Tenant acknowledges that, when Landlord acquires Phase I, Landlord will acquire
fee title to the Building and the lot on which the Building is located, which
lot approximates the Building footprint. A declaration of easements and
operating covenants (the "Declaration") will provide parking, access, utilities
and other Common Area rights and amenities appurtenant to the Building. Landlord
represents to Tenant that, pursuant to the Declaration, Landlord shall have the
requisite right and interest in the Project to grant to Tenant all appurtenant
rights granted to Tenant in this lease, including, but not limited to parking,
utilities and access. Landlord agrees that Landlord shall not enter into any
amendment or modification of the Declaration that will materially and adversely
affect or diminish any such rights afforded Tenant under this lease. Landlord
may include in Operating Expenses any costs and expenses to which the Property
may be subject under the Declaration, but subject in all cases to the exclusions
and limitations on Operating Expenses set forth in Exhibit "E" attached to this
lease.
37. Tenant Contingencies.
(a) City Approval. Tenant may terminate this lease by written notice to
Landlord given on or before 5 p.m. Central Time on January 10, 2001,
time being of the essence, if Tenant has not by that date and time
received City of Bloomington approval or other City assurances
acceptable to Tenant confirming that Tenant's proposed plans and uses
are permitted under applicable zoning and development approvals. If
Tenant fails to timely give notice of termination as provided above,
this lease shall remain in full force and effect, binding upon Tenant
in accordance with its terms.
(b) Board Approval. This lease is contingent upon the approval of this
lease by Tenant's Board of Directors. Tenant will notify Landlord of
such approval by the end of the business day following the date on
which such approval is adopted, and will provide with such notice
certified resolutions or other evidence reasonably acceptable to
Landlord of such Board approval. If such Board approval is not granted
by January 17, 2001, either Landlord or Tenant may terminate this lease
by giving written notice to the other. At the request of either party
following such approval, Landlord and Tenant agree to confirm in
writing that this contingency has been satisfied.
38. Broker's Commission. In connection with the leasing of space in the
Project, Woodbridge Partners, Inc. ("Broker") has introduced MGI Pharma, Inc.
("MGI Pharma") as a prospective tenant of the Project and will be entitled to
the payment of a Commission ("Commission") in connection with the leasing of
space in the Project by Liberty Property Trust,
33
the Landlord of the Project ("Landlord"), to MGI Pharma according to the terms
as set forth herein.
Landlord shall pay Broker a Commission, as provided below, with respect to the
Premises initially leased by MGI Pharma (the "Initial Space") pursuant to this
lease, with respect to any expansion space leased to MGI Pharma in the Project
("Expansion Space"), and with respect to any renewal or extension of any lease
(whether pursuant to an express extension right granted in this lease or
otherwise) by MGI Pharma for any space in the Project ("Lease Renewal").
The Commission for the Initial Space shall be $3.00 per rentable square foot.
The Commission for any Expansion Space shall be paid at the rate of sixty cents
($0.60) per rentable square foot per year for the term of the Expansion Space,
not to exceed in any event $3.00 per rentable square foot. The Commission for
any Lease Renewal shall be paid at the rate of sixty cents ($0.60) per rentable
square foot per year of the renewal lease term, not to exceed for any single
renewal event $3.00 per rentable square foot. The Commission with respect to the
Initial Space shall be payable one-half upon the waiver or satisfaction of the
Tenant contingencies provided in Section 37, and one-half upon the commencement
of payments by MGI Pharma of the full minimum annual rent and additional rent
hereunder. The Commission with respect to any Expansion Space shall be payable
one-half upon the full execution and delivery of the lease amendment adding
Expansion Space, and one-half upon the commencement of payments by MGI Pharma of
the full minimum annual rent and additional rent thereunder. The Commission with
respect to a Lease Renewal shall be payable one-half upon the full execution and
delivery of the document binding Landlord and MGI Pharma to the renewal or
extension term, and one-half upon the commencement of payments by MGI Pharma of
the full minimum annual rent and additional rent for the renewal or extension
term.
Landlord acknowledges that Woodbridge Partners, Inc. represents MGI Pharma and
that Landlord does not rely on Woodbridge Partners, Inc. for advice or
representation. If MGI Pharma notifies Landlord in writing that MGI Pharma has
retained a real estate broker other than Woodbridge Partners, Inc. to represent
it in connection with any extension, renewal, expansion or new lease in the
Project, Landlord shall not be obligated to pay Woodbridge Partners, Inc. a
commission with respect to any such lease transaction consummated following such
notice.
MGI Pharma represents and warrants to Landlord that Woodbridge Partners, Inc. is
the only broker or finder that MGI Pharma has had any dealings, negotiations or
consultations with relating to the Premises or this transaction and that no
other broker or finder called the Premises to MGI Pharma's attention for lease
or took any part in any dealings, negotiations or consultations relating to the
Premises or this lease. MGI Pharma agrees to be responsible for, indemnify,
defend and hold harmless Landlord from and against all costs, fees (including,
without limitation, attorney's fees), expenses, liabilities and claims incurred
or suffered by Landlord arising from any breach by MGI Pharma of MGI Pharma's
foregoing representation and warranty, excluding any other broker retained by
MGI Pharma in connection with an expansion or renewal of whom MGI Pharma
notifies Landlord.
39. Satellite Dish. Provided that Tenant is not in material default (beyond
applicable cure periods) under this lease, Tenant shall have the right to
install, maintain and repair up to three (3)
34
satellite dish antennae (the "Antennae") on the Property under and subject to
the following conditions:
(a) Tenant shall comply with all Laws and Requirements.
(b) Tenant shall obtain Landlord's prior approval of the location of the
Antennae on the Property and of the specifications for the Antennae. If
Landlord approves installation of the Antennae on the roof of the
Building, Tenant agrees to consult with Landlord's roofing contractor
prior to installation and strictly to comply with the roofing
contractor's recommendations and requirements. Tenant shall pay all
costs incurred by Landlord in connection with the Antennae including
without limitation all architectural, engineering, contractors' and
legal fees.
(c) Tenant shall comply with the provisions of Sections 9(b)(i) through
(iv) of this lease.
(d) At least 3 business days prior to installation, Tenant shall notify
Landlord of the date and time of the installation. Tenant shall install
the Antennae only if Landlord is present with Tenant at the
installation.
(e) Tenant shall maintain the Antennae in a safe, good and orderly
condition. The installation, maintenance, repair and removal of the
Antennae shall be performed at Tenant's sole expense in a manner which
will not impair the integrity of, damage or adversely affect the
warranty applicable to, the roof or any other portion of the Property.
(f) No later than the expiration or sooner termination of the Term, at
Tenant's sole expense, Tenant shall remove the Antennae and repair any
resulting damage.
(g) Tenant's indemnification of Landlord pursuant to Section 15 of this
lease also applies to the Antennae and Tenant's use of any portion of
the Property therefor. Without limiting the foregoing, Tenant solely
shall be responsible for any damages or injury caused by or in any way
relating to the Antennae, including, but not limited to, damage or
injury caused by reason of the Antennae collapsing or being blown from
the roof or any other portion of the Property.
(h) Use of the Antennae shall be limited to the personal use of Tenant or
the personal use of any subtenant or assignee occupying the Premises;
Tenant shall have no right to license, lease or sublet the use of the
Antennae to any third party; without limiting the foregoing, the
Antennae shall not be used to provide any collocation rights or
services or otherwise for commercial purposes by any company in the
communications business.
40. Back-up Generator. Subject to Landlord's reasonable approval of the size
and location thereof, Tenant shall have the right, at its expense, to install,
maintain, operate, repair and replace as necessary a back-up generator serving
the Premises. Tenant shall be responsible
35
for obtaining any necessary permits or other approvals for the installation and
operation of the generator, and shall comply with all Laws and Requirements
applicable thereto. Upon the expiration or termination of this lease, Tenant, at
its expense, shall remove the generator and any related installations, shall
repair any damage resulting from such removal, and shall restore the Property to
the condition existing prior to the installation.
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
lease and for other good and valuable consideration, and intending to be legally
bound, Landlord and Tenant have executed this lease.
Date signed: Landlord:
1/03/01 LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, Sole General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
Regional Director
--------------------------
___Regional Manager
___Leasing Representative
___Property Manager
--------------------------
Date signed: Tenant:
12-21-00 MGI PHARMA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Its: CEO
----------------------------
[Initials 1/2/01 and 12/20/00]
36
