EXHIBIT 10.54
UNIVERSITY RESEARCH PARK GROUND LEASE
This Lease is made, executed and delivered as of the 1st day of
October, 1998, by and between University Research Park, Inc., a Wisconsin
nonprofit corporation with its principal place of business located at 1265 XXXX
Building, 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 0000X ("Landlord") and PanVera
Corporation, a Wisconsin corporation, located at 000 Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxx 00000 ("Tenant").
ARTICLE X. XXXXX AND TERM
SECTION 1.01. PREMISES. In consideration of rents, terms, covenants and
agreements to be performed and observed by Tenant, as hereinafter set forth,
Landlord rents to Tenant, and Tenant rents from Landlord, certain real estate
located in the City of Madison, Dane County, Wisconsin, described in EXHIBIT A,
attached hereto, together with all rights and appurtenances belonging or
appertaining thereto and all improvements now or hereafter located thereon
("Premises"). Landlord and Tenant acknowledge that improvements constructed by
Tenant on the Premises pursuant to this Lease do not constitute a part of the
Premises subject to this Lease and, except as provided in Section 1.05 hereof,
such improvements shall be the property of Tenant.
SECTION 1.02. ORIGINAL TERM. The original term of this Lease shall be
for fifty (50) years and approximately three (3) months. The original term shall
commence on, October 7, 1998 and shall end at 12:00 midnight on December 31,
2048, unless otherwise terminated earlier hereunder.
SECTION 1.03. LEASE YEAR. The term "lease year" shall mean a period of
twelve (12) consecutive calendar months. The first lease year shall begin on
January 1, 1999. The portion of the lease term prior to that date shall not be
considered a lease year.
SECTION 1.04. OPTION TO EXTEND. Tenant is hereby granted one (1) option
to extend the term of this Lease for twenty (20) years, such extended term to
begin upon the expiration of the original term of this Lease; and all terms,
covenants and provisions of this Lease shall apply to the extended term with the
exception that Tenant shall not have any further option to extend following the
exercise of the option to extend. If Tenant elects to exercise the option to
extend, Tenant shall do so only by giving Landlord notice in writing of its
intention to do so not later than eighteen (18) months prior to the expiration
of the original term.
SECTION 1.05. SURRENDER OF PREMISES. At the expiration or any
termination of this Lease, Tenant shall surrender the Premises to Landlord in
the same condition as at the commencement of the term with the exception of
improvements constructed in accordance with the terms of this Lease. Subject to
the provisions of Section 3.03, all alterations, additions and improvements
constructed by or on behalf of Tenant on the Premises and all permanent fixtures
shall, upon the expiration or termination of this Lease, become the property of
the Landlord.
Notwithstanding the foregoing, on Landlord's written demand given not
less than six (6) months prior to the end of the term of this Lease, Tenant
shall demolish and remove all such improvements as shall be directed by
Landlord. The costs of demolition and removal shall be paid by Tenant. All
demolition and removal shall be completed within ninety (90) days after the
termination or expiration of the I ease.
ARTICLE II. RENT
SECTION 2.01. BASE RENT. Commencing on the commencement date and
continuing during the term of this Lease, Tenant covenants and agrees to pay to
Landlord, in advance on the first day of each month at Landlord's address set
forth in Section 11.05(a), without demand therefor, base monthly rent as
follows:
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(a) Lease year one (1) - no rent (but all other amounts due as
additional rent shall be paid in full during such time); lease
year two (2) - $6,055.75 per month; lease year three (3) -
$7,872.50 per month; lease year four (4) - $9,689.17 per
month, and lease year (5) - $12,111.50 per month. There shall
be no rent for any month or portion of a month prior to the
first (1st) lease year (but all other amounts due as
additional rent shall be paid in full during such time).
(b) Lease years six (6) through ten (10) - an amount per month
equal to the amount of rent payable in the last month of the
fifth (5th) lease year increased or decreased by a percentage
equal to the "Consumer Price Index Increase or Decrease" as
defined in Section 2.03.
(c) Lease years seven (7) through fifteen (15) - an amount per
month equal to the amount of rent payable in the last month of
the tenth (10th) lease year increased or decreased by a
percentage equal to the "Consumer Price Index Increase or
Decrease" as defined in Section 2.03.
(d) Lease years sixteen (16) through twenty (20) - an amount per
month equal to the amount of rent payable in the last month of
the fifteenth (15th) lease year increased or decreased by a
percentage equal to the "Consumer Price Index Increase or
Decrease" as defined in Section 2.03.
(e) Lease years twenty-one (21) through twenty-five (25) - an
amount per month equal to the amount of rent payable in the
last month of the twentieth (20th) lease year increased or
decreased by a percentage equal to the "Consumer Price Index
Increase or Decrease" as defined in Section 2.03.
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(f) Lease years twenty-six (26) through thirty (30) - an amount
per month computed and established as provided in Section
2.04.
(g) Lease years thirty-one (31) through thirty-five (35) - an
amount per month equal to the amount of rent payable in the
last month of the thirtieth (30th) lease year increased or
decreased by a percentage equal to the "Consumer Price Index
Increase or Decrease" as defined in Section 2.03.
(h) Lease years thirty-six (36) through forty (40) - an amount per
month equal to the amount of rent payable in the last month of
the thirty-fifth (35th) lease year increased or decreased by a
percentage equal to the "Consumer Price Index Increase or
Decrease" as defined in Section 2.03.
(i) Lease years forty-one (41) through forty-five (45) - an amount
per month equal to the amount of rent payable in the last
month of the fortieth (40th) lease year increased or decreased
by a percentage equal to the "Consumer Price Index Increase or
Decrease" as defined in Section 2.03.
(j) Lease years forty-six (46) through fifty (50) - an amount per
month equal to the amount of rent payable in the last month of
the forty-fifth (45th) lease year increased or decreased by a
percentage equal to the "Consumer Price Index Increase or
Decrease" as defined in Section 2.03.
(k) Lease years fifty-one (51) through fifty-five (55) - an amount
per month computed and established as provided in Section
2.04.(1)
(l) Lease years fifty-six (56) through sixty (60) - an amount per
month equal to the amount of rent payable in the last month of
the fifty-fifth (55th) lease year increased
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(1) Provided Tenant has properly exercised its option to extend pursuant to
Section 1.04 of this Lease.
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or decreased by a percentage equal to the "Consumer Price
Index Increase or Decrease" as defined in Section 2.03.(2)
(m) Lease years sixty-one (61) through sixty-five (65) - an amount
per month equal to the amount of rent payable in the last
month of the sixtieth (60th) lease year increased or decreased
by a percentage equal to the "Consumer Price Index Increase or
Decrease" as defined in Section 2.03.(3)
(n) Lease years sixty-six (66) through seventy (70) - an amount
per month equal to the amount of rent payable in the last
month of the sixty-fifth (65th) lease year increased or
decreased by a percentage equal to the "Consumer Price Index
Increase or Decrease" as defined in Section 2.03.(4)
SECTION 2.02. PAST DUE RENT. If Tenant fails to pay rent when the same
is due, the unpaid amount shall, at Landlord's option and without waiving any
other right of Landlord, bear interest from the due date to the date of payment
at a rate of interest equal to the prime interest rate then in effect from time
to time. The term "prime rate" shall mean the announced consensus prime rate of
interest charged by large commercial banks located in New York or other dominant
financial centers in the United States. If such a consensus prime rate of
interest is not then promulgated, the prime rate shall be a similar index
reflecting the yield obtained by sophisticated investors on short-term
high-grade commercial debt investments.
SECTION 2.03. "CONSUMER PRICE INDEX INCREASE OR DECREASE". The term
"Consumer Price Index Increase or Decrease" as used in Section 2.01 shall be the
percentage increase or decrease in the Cost of Living Index between the Cost of
Living Index for the last month of the lease year preceding the just completed
five (5) year period and the Cost of Living Index for the
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(2) Provided Tenant has properly exercised its option to extend pursuant to
Section 1.04 of this Lease.
(3) Provided Tenant has properly exercised its option to extend pursuant to
Section 1.04 of this Lease.
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last month of such five (5) year period. In no event, however, shall the
Consumer Price Index Increase or Decrease for any five (5) year period be more
than forty percent (40%).
The term "Cost of Living Index" as used herein shall be the index
number in the above-stated month in the column of "All Items" in the table
entitled "Consumer Price Index - All Urban Consumers - U.S. City Average
1967=100" as published in the Monthly Labor Review by the Bureau of Labor
Statistics of the U.S. Department of Labor.
In the event that the Bureau of Labor Statistics ceases to publish the
Cost of Living Index or materially changes the method of its computations,
Landlord and Tenant shall accept comparable statistics relative to the
purchasing power of the dollar as published at the time of such discontinuation
or change by a responsible financial periodical or recognized authority to be
then chosen by Landlord.
Examples of rent computations hereunder are contained in EXHIBIT B
attached hereto.
SECTION 2.04. ESTABLISHMENT OF RENT FOR LEASE YEARS TWENTY-SIX (26)
THROUGH THIRTY (30) AND FOR LEASE YEARS FIFTY-ONE (51) THROUGH FIFTY-FIVE (55).
Monthly rent for lease years twenty-six (26) through thirty (30) and fifty-one
(51) through fifty-five (55) shall be established as follows:
(a) At least eighteen (18) months before the commencement of the
twenty-sixth (26th) lease year, and at least twenty-five (25)
months before the commencement of the fifty-first (51st) lease
year, Landlord and Tenant shall each select an independent
qualified appraiser to render a written fair market value
appraisal of the real estate comprising the Premises excluding
all improvements thereon. The two appraisers shall select a
third appraiser to render a written fair market value
appraisal of the real estate comprising the Premises excluding
all improvements thereon. The appraisals
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(4) Provided Tenant has properly exercised its option to extend pursuant to
Section 1.04 of this Lease
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shall be submitted jointly to Landlord and Tenant at least
twelve (12) months prior to the end of the twenty-fifth (25th)
lease year, and at least nineteen (19) months prior to the end
of the fiftieth (50th) lease year. Landlord and Tenant shall
pay the costs and expenses charged by the respective
appraisers selected by them and shall equally share the costs
and expenses of the third appraiser.
(b) The average of the three appraisals shall constitute the
agreed upon "appraised value" of the real estate. In the event
that either party neglects or refuses to select an appraiser,
the agreed upon "appraised value" of the real estate shall be
the appraised value as established by the appraiser selected
by the other party.
(c) The appraised value shall be multiplied by ten (10%) percent.
The resulting figure shall then be divided by twelve (12). The
result shall be the monthly rent for lease years twenty-six
(26) through thirty (30) and fifty-one (51) through fifty-five
(55); provided that the rent for lease years twenty-six (26)
through thirty (30) shall in no event be more than one hundred
and ten percent (110%), nor the rent for years fifty-one (51)
through fifty-five (55) be more than one hundred twenty-five
percent (125%), of the hypothetical increased rent that would
have resulted from determining the rent for such periods by
applying the "Consumer Price Index Increase or Decrease."
(d) Examples of computations hereunder are contained in EXHIBIT C
attached hereto.
ARTICLE III. CONSTRUCTION, ALTERATIONS, FIXTURES, EQUIPMENT
SECTION 3.01. PLANS AND SPECIFICATIONS. Tenant shall, at its own
expense, prepare plans and specifications for a new building and improvements to
be constructed on the Premises, which shall provide for a two story, concrete
and steel type construction of approximately 66,000 gross square
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feet. The plans and specifications shall comply with the Architectural Design
Criteria attached hereto as EXHIBIT D and shall contain provision for
landscaping which complies with the Landscaping Standards and Criteria attached
hereto as EXHIBIT F. Within one hundred eighty (180) days of the date of this
Lease, Tenant shall submit the plans and specifications to Landlord for written
approval or disapproval. The approval agent for Landlord is the University
Research Park Design Review Board. Landlord shall in writing approve or
disapprove the plans and specifications within forty-five (45) days of receipt
thereof. If Landlord disapproves of the plans and specifications, Landlord shall
give Tenant an itemized statement of the reason therefor, and Tenant shall make
necessary changes and resubmit the plans and specifications for approval prior
to the commencement of construction. Approved plans and specifications for the
initial construction shall be attached to this Lease as EXHIBIT E at the time of
approval.
SECTION 3.02. CONSTRUCTION, ALTERATIONS, IMPROVEMENTS AND CHANGES.
Tenant, at its own expense, shall construct a building and/or other improvements
on the Premises pursuant to the plans approved under Section 3.01 for the use
set forth in Section 6.01. After the completion of such initial construction,
Tenant shall have the right to make such alterations, improvements and changes
to such building and/or other improvements as Tenant may deem necessary. Prior
to undertaking any subsequent structural or exterior alterations, improvements
or changes after the initial construction, Tenant shall obtain Landlord's prior
approval of plans and specifications. Any building and/or other improvements
(including initial construction) shall be constructed in full compliance with
any and all laws, ordinances, rules and regulations which may govern the same,
including applicable provisions of the Americans With Disabilities Act, and
shall be constructed in accordance with plans and specifications approved by
Landlord. Tenant shall be solely liable for obtaining and paying the costs of
all governmental permits, licenses and/or approvals necessary to
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construct the improvements and/or to operate Tenant's business therein. Tenant
shall promptly pay all contractors and materialmen for work and supplies and
shall not permit any lien to be attached to the Premises. Should any lien be
made, Tenant shall bond against or discharge the same within thirty (30) days
and hold Landlord harmless against any loss or damage by reason of Tenant's
construction of any building or improvement on the Premises. Prior to commencing
construction Tenant shall provide Landlord with satisfactory evidence of
Tenant's ability to pay all costs of construction.
Subject to the provisions of Section 11.04, initial construction shall
commence no later than September 30, 1999, and shall be substantially completed
no later than eighteen (18) months after the date of commencement. In the event
that such construction is not commenced or completed by Tenant within the
aforesaid time periods, Landlord shall have the option to terminate this Lease
on thirty (30) days' written notice to Tenant given within thirty (30) days
after the expiration of the specified construction commencement or completion
period, as applicable. Said option shall be in addition to any other rights to
Landlord hereunder.
SECTION 3.03. FIXTURES AND EQUIPMENT. Tenant may, at its own expense,
furnish and install such business and trade fixtures and equipment in and on the
Premises as may be necessary or desirable for Tenant's business. Such fixtures
and equipment shall remain the personal property of Tenant and shall be removed
by Tenant at the expiration or termination of this Lease. Upon removal of such
fixtures and equipment, Tenant shall restore the Premises to its condition at
the beginning of the term, reasonable wear and tear excepted. Tenant's
obligation hereunder shall survive the expiration or termination of this Lease.
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ARTICLE IV. MAINTENANCE, REPAIR, LANDSCAPING AND DESTRUCTION
SECTION 4.01. MAINTENANCE AND REPAIR BY TENANT. Tenant shall, at its
own cost and expense, keep, maintain and repair the Premises, including all
buildings and improvements of every kind which may be a part thereof, (whether
interior or exterior, structural or non-structural); all heating, electrical,
air conditioning, ventilating and plumbing equipment therein; and all
appurtenances thereto, including sidewalks and parking areas adjacent thereto,
in good condition and repair, and shall repair, restore and replace any such
improvements which may become inoperable or be destroyed or damaged by fire,
casualty or any other cause. Tenant shall comply with all federal, state,
county, municipal and other governmental statutes, ordinances, laws and
regulations affecting the Premises and improvements thereon, or any activity or
condition on or in the Premises. Tenant shall, at its own expense, keep the
Premises in sanitary, clean and neat order and keep the sidewalks and parking
area free of snow and trash.
At Landlord's option, subsequent to reasonable notice given by Landlord
to Tenant, either generally or with regard to a specific circumstance, Landlord
may undertake to keep and maintain sidewalks, parking areas, and other exterior
improvements other than the exterior portions of buildings upon Tenant's failure
to do so, at Tenant's expense.
Without limiting any of its other rights hereunder Landlord retains the
right to landscape, construct and maintain drainage and storm water control
xxxxxx, construct a fence, and erect signs in accord with applicable landscaping
standards and criteria in the area of the Premises which borders on and is
within fifty feet of roadways or which is designated as a water detention area.
In addition, any lands in restored prairie areas shall be kept and maintained by
Landlord at Landlord's expense and Landlord reserves the right to enter such
areas for the purpose of maintaining the same.
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SECTION 4.02. LANDSCAPING. Within one hundred twenty (120) days
following Tenant's substantial completion of construction of improvements
pursuant to Section 3.02, Tenant shall, at Tenant's sole cost and expense
complete landscaping of the Premises in accordance with the Landscaping
Standards and Criteria attached hereto as EXHIBIT F and the plans and
specifications approved pursuant to Section 3.01.
Tenant shall at all times during the term of this Lease, keep and
maintain landscaping on the Premises in accordance with the Landscaping
Standards and Criteria set forth in EXHIBIT F and in accordance with such
further and/or additional Standards and Criteria which may be reasonably
established by the Landlord.
At Landlord's option, subsequent to reasonable notice given by Landlord
to Tenant, either generally or with regard to a specific circumstances, Landlord
may undertake to keep and maintain the landscaping on the Premises, at Tenant's
expense.
Without limiting any of its other rights hereunder Landlord retains the
right to landscape, construct a fence, and erect signs in accord with applicable
landscaping standards and criteria in the area of the Premises which borders on
and is within fifty feet of roadways or which is designated as a water detention
area. In addition, any lands in restored prairie areas shall be kept and
maintained by Landlord at Landlord's expense and Landlord reserves the right to
enter such areas for the purpose of maintaining the same.
SECTION 4.03. DAMAGE OR DESTRUCTION. The damage, destruction or partial
destruction of any building or other improvement on the Premises shall not
release Tenant from any obligation under this Lease. In the event of such damage
or destruction, Tenant shall, at its own cost and expense, promptly repair and
restore the same to a condition as good or better than that which existed prior
to the damage or destruction. The foregoing notwithstanding, in the event the
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improvements constructed by Tenant are substantially damaged or destroyed at any
time when there remains fewer than five years in the term of this Lease,
including any renewal term then in effect, Tenant may terminate this Lease by
written notice to Landlord provided Tenant is not in default and otherwise
complies with this Lease. Upon such termination and upon the written request of
Landlord, Tenant shall demolish and remove all such improvements as shall be
directed by Landlord. The costs of demolition and removal shall be paid by
Tenant. All demolition and removal shall be completed within ninety (90) days
after the written request of Landlord. In the event Tenant elects to terminate
pursuant to this paragraph any insurance proceeds otherwise payable to Tenant as
a result of the damage to or destruction of the improvements, net of the costs
of demolition and removal, shall become the property of the Landlord.
ARTICLE V. UTILITIES AND TAXES
SECTION 5.01. UTILITIES AND EXPENSES. Tenant shall, during the term of
this Lease, fully and promptly pay for all water, sewer, gas, heat, light,
power, telephone services and other public utilities of every kind furnished to
the Premises and used by Tenant. Tenant shall also pay for hook-up and/or
lateral charges, if any, required to bring utilities from public streets and
access ways. Landlord shall not be liable to Tenant for any interruption in the
aforesaid utility service.
SECTION 5.02. REAL PROPERTY TAXES. Tenant shall during the term of this
Lease pay and discharge as they become due, promptly and before delinquency, all
taxes, assessments, special assessments, rates, license fees, municipal liens,
levies, excises or imports of every nature and kind levied, assessed, charged or
imposed on or against the Premises, Tenant's leasehold interest in the Premises,
personal property of any kind owned or placed in the Premises by Tenant, or,
except for taxes measured by Landlord's total income, the rents from, or
privilege of renting, the Premises. All
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such taxes and charges (with the exception of personal property taxes on
Tenant's personal property) shall be prorated if necessary at the commencement
and expiration of the Lease term. Tenant shall provide Landlord with copies of
paid tax receipts within five (5) days of the date when such taxes, or any
installment thereof, become due. Notwithstanding the foregoing, Tenant shall be
obligated to pay installments of special assessments (using the longest
amortization schedule available) coming due during the term of this Lease.
In addition, in the event the holder of any mortgage on the Premises or
any improvements thereon does not require, and in the event Tenant shall be in
default with respect to payment of any amounts hereunder, at Landlord's request,
Tenant shall pay monthly, as additional rent, along with regular base rent
payments, an amount equal to one-twelfth (1/12) of Tenant's estimated annual
real estate tax, personal property tax or special assessment obligation next
becoming due with respect to the Premises. Tenant's estimated annual real estate
tax obligation shall not be less than its prior year's real estate-tax
obligation. Landlord shall hold such additional rent payments in escrow, with no
obligation to pay interest thereon, for the sole purpose of satisfying Tenant's
real estate tax obligation.
Tenant shall have the right at its own cost and expense to initiate and
prosecute any proceedings permitted by law for the purpose of obtaining an
abatement of or otherwise contesting the validity or amount of taxes assessed to
or levied upon the Premises and required to be paid against Landlord's estate
and, if required by law, Tenant may take such action in the name of Landlord who
shall cooperate with Tenant to such extent as Tenant may reasonably require,
provided, however, that Tenant shall fully indemnity and save Landlord harmless
from all loss, cost, damage and expense incurred by or to be incurred by
Landlord as a result thereof, and further
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provided Tenant shall, at Landlord's request, escrow or post a bond for the full
amount of the tax claimed pending such proceedings.
ARTICLE VI. CONDUCT OF BUSINESS
SECTION 6.01. CONDITION AND USE. Tenant shall use the Premises only for
a laboratory and office or for any other use permitted under applicable zoning
regulations and recorded building and use restrictions, except with Landlord's
prior written approval. No use shall be permitted, or acts done, which will
cause a cancellation of any insurance policy covering the Premises. Tenant shall
not sell, permit to be kept, used or sold in or about the Premises any article
which may be prohibited by the standard form of fire insurance policy unless
Tenant shall first have furnished Landlord with written confirmation that Tenant
has procured extended insurance coverage permitting such use, storage, or sale,
and thereafter, for as long as such use, storage, or sale continues, furnishes
such confirmation at the time of any renewal of such insurance. Tenant shall, at
its own expense, comply with all requirements of any insurance company necessary
for the maintenance of insurance required in this Lease.
SECTION 6.02. WASTE AND NUISANCE. Tenant shall comply with all
applicable laws, ordinances, regulations and/or deed and plat restrictions
affecting the use and occupancy of the Premises. Tenant shall not commit, or
permit to be committed, any waste or nuisance on the Premises.
SECTION 6.03. RIGHT OF ENTRY. Tenant shall permit Landlord and its
agents and employees, upon prior notice, to enter into and upon the Premises at
all reasonable times during business hours for the purpose of inspecting the
same.
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ARTICLE VII. INSURANCE AND INDEMNITIES
SECTION 7.01. CASUALTY INSURANCE. Tenant shall, at all times during the
term of this Lease, at Tenant's sole expense, keep all improvements, which are
now or hereafter located on a part of the Premises, insured against loss or
damage by fire and the extended coverage hazards at full insurable value with
loss payable to Tenant and Landlord as their interests may appear. Tenant shall
pay the premiums thereon when due and shall comply with the co-insurance
provisions thereof, if any.
SECTION 7.02. PUBLIC LIABILITY INSURANCE. Tenant shall, at all times
during the term of this Lease, at Tenant's sole expense, keep in full force and
effect a policy of public liability and property damage insurance with respect
to the Premises and all business operated thereon, with limits of public
liability not less than One Million ($1,000,000.00) Dollars for injury or death
to any one person, and One Million ($1,000,000.00) Dollars for injury or death
in any one occurrence, and property damage liability insurance in the amount of
Three Hundred Thousand ($300,000.00) Dollars. The policies shall name Tenant and
Landlord as co-insureds. Landlord may from time to time during the term of this
Lease require increases in the above-stated coverage limits consistent with
prudent business practices.
Tenant shall, with respect to any insurance coverage required in this
Lease, furnish Landlord with certificates of insurance stating that Landlord
will be notified in writing thirty (30) days prior to cancellation, material
change or non-renewal of insurance.
SECTION 7.03. LOSS AND DAMAGE. Tenant shall be solely responsible for
carrying personal property insurance sufficient to cover loss of all personal
property on the Premises. Landlord shall not be liable for any damage to or loss
of property of Tenant or others located on the Premises.
SECTION 7.04. HOLD HARMLESS. Landlord shall not be liable for any loss,
injury, death, or damage to persons or property which at any time may be
suffered or sustained by Tenant or by any
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person whosoever may at any time be using or occupying or visiting the Premises
or be in, or about the same, whether such loss, injury, death, or damage shall
be caused by or in any way result from or arise out of any act, omission, or
negligence of Tenant or of any occupant, subtenant, visitor, or user of any
portion of the Premises, or shall result from or be caused by any other matter
or thing whether of the same kind as or of a different kind than the matters or
things above set forth, and Tenant shall indemnify Landlord against all claims,
liability, loss, or damage whatsoever on account of any such loss, injury, death
or damage. Tenant hereby waives all claims against Landlord for damages to the
building and improvements that are now on or hereafter placed or built on the
Premises and to the property of Tenant in, on, or about the Premises, and for
injuries to persons or property in or about the Premises, from any cause arising
at any time. The two preceding sentences shall not apply to loss, injury, death,
or damage arising by reason of the negligence or misconduct of Landlord, its
agents, or employees.
ARTICLE VIII. EFFECT OF CONDEMNATION
SECTION 8.01. TOTAL CONDEMNATION. In the event that the entire
Premises, or such part of the Premises as will render the remainder untenantable
shall be appropriated or taken under the power of eminent domain by any public
or quasi-public authority, this Lease shall terminate and expire as of the date
of taking.
SECTION 8.02. PARTIAL CONDEMNATION. In the event of partial
condemnation, not rendering the remainder of the Premises untenantable, this
Lease shall remain in full force and effect, with the exception that the base
rent shall be reduced in proportion to the area of the Premises lost by
condemnation. The foregoing notwithstanding, in the event of such a partial
condemnation at any time when there remains fewer than five years in the term of
this Lease, including any renewal term then in effect, Tenant may terminate this
Lease by written notice to Landlord provided
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Tenant is not in default and otherwise complies with this Lease. Upon such
termination and upon the written request of Landlord, Tenant shall demolish and
remove all such improvements as shall be directed by Landlord. The costs of
demolition and removal shall be paid by Tenant. All demolition and removal shall
be completed within ninety (90) days after the written request of Landlord. In
the event Tenant elects to terminate pursuant to this paragraph any condemnation
awards otherwise payable to Tenant as a result of the partial condemnation, net
of the costs of demolition and removal and net of any award to the Tenant for
relocation expenses, shall become the property of the Landlord.
SECTION 8.03. CONDEMNATION AWARD. In the event of any condemnation and
notwithstanding any provision of this Lease or by operation of law that
leasehold improvements may be or shall become the property of Landlord at the
expiration of the term hereof, but subject to Section 8.02, above, the loss of
all improvements paid for by Tenant, the loss of Tenant's leasehold estate, and
such additional relief as may be provided by law shall be the basis of Tenant's
damages against the condemning authority, if a separate claim therefor is
allowable under applicable law, or the basis of Tenant's claim to a portion of
the total award if only one award is made.
ARTICLE IX. DEFAULT
SECTION 9.01. NOTICE OF DEFAULT TO TENANT. Tenant shall not be deemed
to be in default hereunder in the payment of base rent or in the payment of any
other charges or with respect to any other terms, covenants or conditions as
herein required unless Landlord shall first give Tenant thirty (30) days'
written notice of such default, and Tenant fails to cure the default within
thirty (30) days, or if the default is of such a nature that it cannot
reasonably be cured within thirty (30) days, Tenant fails to commence to cure
the default within thirty (30) days or fails thereafter to proceed to the curing
of such default with all possible diligence. Notwithstanding the foregoing, if
Tenant has
17
previously failed to pay base rent when due and Landlord shall have given
written notice of such failure for both of the two (2) immediately prior base
rent payments or shall have previously, over the term of this Lease, given an
aggregate of ten (10) prior notices with respect to a failure of Tenant to pay
base rent when due, then no further notice or right to cure shall be required.
SECTION 9.02. TENANT'S DEFAULT. In the event of Tenant's default in the
payment of base rent or any other charges or with respect to any other terms,
covenants or conditions as herein required, and Tenant's failure to cure,
Landlord, in addition to any other rights or remedies it may have, shall have
the immediate right of re-entry and may remove all persons and property from the
Premises; such property may be removed and stored in a public warehouse or
elsewhere at the cost of, and for the account of, Tenant. Should Landlord elect
to re-enter, as herein provided, or should it take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, Landlord may either
terminate this Lease or it may from time to time, without terminating this
Lease, re-let the Premises, or any part thereof, for such term or terms and at
such rental or rentals and on such other terms and conditions as Landlord, in
its sole discretion, may deem advisable, with the right to make alterations and
repairs to the improvements located on the Premises. On each such re-letting:
(a) Tenant shall be immediately liable to pay to Landlord, in
addition to any indebtedness other than rent due hereunder,
the expenses of such re-letting and of such alterations and
repairs incurred by Landlord, and the amount, if any, by which
the rent reserved in this Lease for the period of such
re-letting (up to, but not beyond, the term of this Lease)
exceeds the amount agreed to be paid as rent for the Premises
for such period on such re-letting; or
18
(b) At the option of Landlord, rents received by Landlord from
such re-letting shall be applied first, to the payment of any
indebtedness, other than rent due hereunder from Tenant to
Landlord; second, to the payment of any expenses of such
re-letting and of such alterations and repairs, third, to the
payment of rent due and unpaid hereunder, and the residue, if
any, shall be held by Landlord and applied in payment of
future rent as the same may become due and payable hereunder.
If Tenant has been credited with any rent to be received by such
re-letting under option (a) hereof, and such rent shall not be promptly paid to
Landlord by the new tenant, or if such rentals received from such re-letting
under option (b), hereof, during any month is less than that to be paid during
the month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly.
No such re-entry or taking possession of the Premises by Landlord shall
be constructed as an election on the part of Landlord to terminate this Lease
unless a written notice of such intention is given to Tenant or unless the
termination thereof is decreed by a court of competent jurisdiction.
Notwithstanding any such re-letting without termination, Landlord may, at any
time thereafter, elect to terminate this Lease for such previous breach. Should
Landlord at any time terminate this Lease for any breach, in addition to any
other remedy it may have, Landlord may recover from Tenant all damages incurred
by reason of such breach, including the cost of recovering the Premises and
including the worth at the time of such termination of the excess, if any, of
the amount of rent and charges equivalent to rent reserved in this Lease for the
remainder of the stated term over the then reasonable rental value of the
Premises for the remainder of the stated term, all of which amounts shall be
immediately due and payable from Tenant to Landlord.
19
SECTION 9.03. NOTICE OF LANDLORD'S DEFAULT. Landlord shall not be
deemed to be in default hereunder with respect to any of the terms, covenants,
or conditions of this Lease unless Tenant shall first give to Landlord thirty
(30) days' written notice of such default, and Landlord fails to cure the
default within the thirty (30) days, or if the default is of such a nature that
it cannot reasonably be cured within thirty (30) days, Landlord fails to
commence to cure such default within such period of thirty (30) days or fails
thereafter to proceed to the curing of such default with all possible diligence.
SECTION 9.04. PARTIES MAY REMEDY DEFAULTS. In the event of any breach
hereunder by either party (and in lieu of Landlord's terminating this Lease as
hereinbefore provided), Landlord and Tenant respectively, may immediately or at
any time thereafter, after having given the other party the requisite notice to
cure the same and the time for such correction having elapsed, cure such breach
for the account and at the expense of the other party. If Landlord or Tenant at
any time, by reason of such breach, are compelled to pay, or elect to pay, any
sum of money, or incur any expense, including reasonable attorney's fees, in
instituting or prosecuting any action or proceeding to enforce such party's
rights under this paragraph, the sum or sums so paid or incurred by such party,
if paid or incurred by Landlord shall be deemed to be rent hereunder, and shall
be due from Tenant to Landlord on the first day of the month following the
payment of such respective sums, and, if paid or incurred by Tenant shall be
deductible, with interest at the Prime Rate, to the extent thereof from
subsequent payments of rent. This option given to the parties is intended for
their protection and its existence shall not release the parties from the
obligation to perform the terms and covenants herein provided or deprive
Landlord or Tenant of any legal rights which they may have by reason of other
party's default.
20
ARTICLE X. ASSIGNMENT AND SUBLETTING
SECTION 10.01. TENANT'S ASSIGNMENT. Tenant shall not assign or transfer
this Lease without Landlord's prior written consent. Notwithstanding the
foregoing or anything to the contrary in Section 10.02, below, Tenant shall have
the right, without the consent of Landlord, to assign this Lease or sublet all
or any part of the Premises to (A) any entity succeeding to substantially all
the business and assets of Tenant, or (B) any corporation or entity which is a
parent, subsidiary or division of Tenant, whether by merger, consolidation,
purchase of assets or otherwise. Any such assignment or subletting shall not
release the named Tenant hereunder form any and all obligation under this Lease.
SECTION 10.02. TENANT'S SUBLEASING. Tenant shall have the right to
sublease portions of the Premises without Landlord's prior approval provided
that such subleasing meets the following requirements:
(a) The aggregate total area of the Premises subject to sublease
(whether by virtue of one or more subleases) shall not at any
time exceed twenty-five percent (25%) of the total floor area
of the Premises; and
(b) The term of the sublease shall not exceed the original term of
this Lease plus any renewal options which have then been
exercised; and
(c) The sublessee shall execute and deliver to Landlord a document
in form and content acceptable to Landlord, acknowledging this
Lease and agreeing that a termination or expiration of this
Lease shall at Landlord's sole option constitute a termination
or expiration of the sublease; and
(d) The sublessee's use of the Premises shall be limited to use in
conformance with Section 6.01 and Section 6.02.
21
Any sublease which does not meet all of the above-stated requirements
shall be subject to Landlord's prior written approval. Tenant shall promptly
provide Landlord with copies of all executed subleases affecting the Premises.
No sublease shall operate to relieve Tenant of any obligation under this Lease.
SECTION 10.03. LANDLORD'S ASSIGNMENT. Landlord shall have the right to
assign or transfer its interests in this Lease at any time, provided that the
assignee or transferee assumes and agrees to be bound by the terms of this Lease
and further provided that Landlord notifies Tenant of such assignment and
provides Tenant with an executed copy of the agreement whereby the assignee or
transferee agrees to be bound by the terms hereof.
SECTION 10.04. MORTGAGE BY TENANT.
(a) The Tenant and every successor tenant is given and has the
right to mortgage or assign its interests in this Lease
without the Landlord's prior consent, provided that no other
mortgage of this Lease is outstanding at the time such
mortgage is granted. If the Tenant or any successor or assign
shall mortgage this leasehold, then so long as such mortgage
shall remain in effect the following provisions will apply:
(i) NONBINDING EFFECT ON LANDLORD. No mortgage, or
assignment of this Lease shall be binding upon the
Landlord in the enforcement of its rights under this
Lease, nor shall the Landlord be deemed to have any
notice thereof, unless and until a fully conformed
copy of each instrument affecting such mortgage or
assignment, in form proper for record, shall have
been delivered to the Landlord.
22
(ii) LEASE SURRENDER. There shall be no cancellation,
surrender, acceptance of surrender, or modification
of this Lease, without the prior consent in writing
of the leasehold mortgagee.
(iii) NOTICE OF DEFAULT, CURE. The Landlord shall, upon
serving on the Tenant any notice of default or any
other notice under this Lease, simultaneously serve a
copy of such notice upon the leasehold mortgagee, and
no notice of such default shall be deemed to have
been duly given unless and until a copy thereof has
been so served. The mortgagee shall thereupon have
the same time within which to remedy or cause to be
remedied the defaults complained of as is allowed to
the Tenant, and the Landlord shall accept such
performance by or at the instigation of the mortgagee
as if such performance had been accomplished by the
Tenant.
(iv) EXTENSION OF TIME TO CURE. If the Landlord elects to
terminate this Lease by reason of any default of the
Tenant, the leasehold mortgagee shall not only have
and be subrogated to all rights of the Tenant with
respect to curing such default, but shall also have
the right to postpone and extend the specified date
for the termination of this Lease as fixed by the
Landlord in its notice of termination, for a period
of not more than six months, provided that: (1) the
mortgagee shall cure any then existing default and,
meanwhile, pay the rent and additional rent and
perform all of the other requirements of this Lease
required to be performed by the Tenant; (2) no
further defaults shall accrue hereunder during such
extended period; and (3) the mortgagee
23
forthwith takes steps to acquire the Tenant's
interest in this Lease by foreclosure of its
mortgagee or otherwise.
(v) INSURANCE. The name of the leasehold mortgagee may be
added to the loss payable endorsement of any and all
insurance policies required to be carried by the
Tenant hereunder. Subject to the provisions of any
fee mortgage, the Landlord will make available
jointly to the Tenant and to the leasehold mortgagee,
all insurance or condemnation proceeds to which the
Tenant may be entitled hereunder, for purposes of
restoration of the leased property.
(vi) ESTOPPEL CERTIFICATE. The Landlord, within ten days
after a request in writing by the Tenant or the
leasehold mortgagee, shall furnish a written
statement, duly acknowledged, that this Lease is in
full force and effect and that there is no default
hereunder by the Tenant, or if there is a default
such statement shall specify the default which the
Landlord claims to exist.
(vii) EXTENSION OF LEASE. If the Tenant fails to exercise
any extension or renewal option provided to it in
this Lease, the Landlord shall send the leasehold
mortgagee notice thereof, and such mortgagee, within
ten days after such notice, may exercise any such
option on behalf of the Tenant.
(b) Landlord shall agree to subordinate its interest in the
Premises and improvements thereon to such mortgage provided
all of the following requirements are met:
(i) USE OF FUNDS. The proceeds of the same are used for
the construction of improvements on the Premises or
financing or refinancing such improvements.
24
(ii) AMOUNT. The appraised value of all improvements on
the Premises, including improvements to be
constructed with the proceeds of such mortgage,
determined in accord with Section 11.11, at the time
any such mortgage is created, modified, extended,
renewed, increased, or revised shall be no less than
1.33 times the maximum principal amount then secured
by such mortgage.
(iii) TERM. Such mortgage shall not be for a term or
maturity extending beyond thirty (30) years and shall
be satisfied and cease to be a lien on the Premises
not later than the earlier of thirty (30) years or
one (1) year prior to the expiration of the original
term of this Lease and the term of any extension or
renewal which is in effect at the time such mortgage
is created.
(iv) AMORTIZATION. The principal amount secured by such
mortgage shall be amortized at least as rapidly as
thirty (30) year level payment (including both
principal and interest) amortization and the maximum
required principal and interest payment in any lease
year shall be no more than 1.5 times the lowest
required principal and interest payment in any lease
year.
(v) INSTITUTIONAL LENDER. Such mortgage shall be held by
an institutional lender, namely a bank, savings and
loan association, credit union, insurance company,
pension fund, annuity fund, or government agency
engaged in the business of making commercial first
mortgage loans.
(vi) DEBT SERVICE COVERAGE. If Tenant or an assignee
permitted under Section 10.01 is not to be the
occupant of the Premises, then, on a proforma basis,
cash available for debt service during the five (5)
lease years succeeding the
25
creation of any such mortgage shall be no less than
1.15 times the debt service for such period. Debt
service shall include interest and principal
amortization on all indebtedness secured by the
Premises or incurred for purposes of operating the
Premises plus amounts payable on any leases having a
term of one (1) year or more, including base rents
under this Lease. Cash available for debt service
shall mean net income from the Premises determined in
accord with generally accepted accounting principles
plus depreciation plus interest included in debt
service plus any lease payments included in debt
service but also included as an expense in
determining net income. Compliance with the foregoing
shall be demonstrated by a feasibility study and
analysis completed within sixty (60) days prior to
the creation of such mortgage by a nationally
recognized commercial property management consultant
or nationally recognized independent firm of
certified public accountants satisfactory to
Landlord.
(vii) DOCUMENTS. Landlord shall be provided with true and
correct copies of all mortgage documents.
(viii) NOTICE OF DEFAULT AND RIGHT TO CURE. The documents
for such mortgage shall provide that Landlord shall
receive the same notice of default, cure, and
extension of time to cure from mortgagee in regard to
the mortgage as Landlord is required to furnish to a
mortgagee under Section 10.04(a)(iii) and Section
10.04(a)(iv) with regard to this Lease.
(ix) SECOND MORTGAGE AND ASSIGNMENT OF RENTS AND LEASES.
At Landlord's request, Tenant shall execute and
deliver to Landlord a second mortgage in
26
an amount equal to the appraised value of the real
estate constituting the Premises without improvements
at the time of the creation of such mortgage and an
assignment of rents and leases securing the
Landlord's interests in the Premises.
(x) NONRECOURSE. Such mortgage shall be nonrecourse in
that it is not secured by the personal liability of
any individual or partner but, rather, is secured
only by the Premises and the income generated
therefrom.
Notwithstanding anything herein to the contrary Tenant
covenants to comply with the terms and requirements of any
mortgage on the Premises and that a default on any mortgage
shall constitute a default hereunder.
ARTICLE XI. MISCELLANEOUS
SECTION 11.01. ACCORD AND SATISFACTION. No payment received by Landlord
of a lesser amount than the rent or other charges due hereunder shall be deemed
to be other than on account of the earliest stipulated rent or other charges nor
shall any statement on a check or any letter accompanying a payment of rent or
other charges be deemed an accord and satisfaction. Landlord may accept payment
without prejudice to Landlord's right to recover the balance of rent or other
charges or pursue any remedy in this Lease.
SECTION 11.02. ENTIRE AGREEMENT. This Lease and EXHIBITS A, B, C, D, E
AND F attached hereto, set forth all covenants, promises, agreements, conditions
and understandings between Landlord and Tenant concerning the Premises. There
are no covenants, promises, agreements, conditions or understandings, either
oral or written, between the parties hereto other than as herein set forth. No
subsequent change or addition to this Lease shall be binding upon Landlord or
Tenant unless reduced to writing and signed by them.
27
SECTION 11.03. NO PARTNERSHIP. Landlord does not in any way become a
partner, joint venturer or member of a joint enterprise with Tenant.
SECTION 11.04. FORCE MAJEURE. If either party is delayed from the
performance of any act required hereunder (except the payment of money) by
reason of labor troubles, inability to procure materials, failure of power,
restrictive governmental regulations, riots, insurrection, war or like reasons
not the fault of the party delayed, then the period for performance of the act
shall be extended for a period equivalent to the period of the delay.
SECTION 11.05. WAIVER. The waiver by Landlord or Tenant of any breach
of any term, covenant, or condition herein shall not be deemed a waiver of the
term, covenant or condition. The acceptance of rent by Landlord shall not be
deemed a waiver of any preceding breach by Tenant of any covenant herein, other
than the failure of Tenant to pay the rent so accepted. No covenant, term or
condition of this Lease shall be waived by Landlord or Tenant, unless the waiver
be in writing.
(a) NOTICES. Any notice given or required to be given to Landlord
shall be sent or personally delivered as follows:
UNIVERSITY RESEARCH PARK, INC.
0000 XXXX XXXXXXXX
000 XXXXXX XXXXXX
XXXXXXX, XX 00000
With a copy to:
XXXXXX X. XXXXXXX
XXXXXXX BILLING & XXXXXXX, S.C.
XX XXX 0000,
XXX XXXXX XXXXXXXX XXXXXX, XXXXX 000
MADISON, WI 53701-1644
28
Any notices given or required to be given to Tenant shall be sent or
personally delivered as follows:
PANVERA CORPORATION
000 XXXXXXX XXXXX
XXXXXXX, XX 00000
ATTN: PRESIDENT
Any notices given or required to be given to Tenant's mortgagee shall
be sent or personally delivered as follows:
ASSOCIATED BANK SOUTH CENTRAL
0000 XXXXXX XXXXXX
X.X. XXX 0000
XXXXXXX, XX 00000-0000
Notices shall be deemed given when deposited in the U.S. Mail, postage
prepaid and correctly addressed, certified mail, to the respective
parties or when personally delivered. Either party may change its
respective above-stated address by written notice to the other party.
SECTION 11.06. PARTIAL INVALIDITY. If any provision of this Lease or
any specific application shall be invalid or unenforceable, the remainder of
this Lease, or the application of the provision in other circumstances, shall
not be affected, and each provision of this Lease shall be valid and enforceable
to the fullest extent permitted by law.
SECTION 11.07. MEMORANDUM OF LEASE. At the commencement of the lease
term, Landlord and Tenant upon the request of either party shall execute a
Memorandum of Lease in a form approved for recording by the laws of the State of
Wisconsin. Either party at its sole cost shall be entitled to record the
Memorandum of Lease with the Office of the Register of Deeds for Dane County,
Wisconsin.
29
SECTION 11.08. CONSENT NOT TO BE UNREASONABLY WITHHELD. Where any
provision of this Lease requires prior written consent by either party, such
consent shall not be unreasonably withheld nor unduly delayed.
SECTION 11.09. QUIET TITLE. Landlord covenants and warrants that, as of
the date Landlord is to deliver occupancy of the Premises, Landlord will be
seized in fee title to the Premises free and clear of all encumbrances,
easements, right of way, reservations, restrictions, covenants, limitations and
conditions which might prohibit or materially restrict or affect the
construction, maintenance or operation of Tenant's business as stated in Section
6.01 with its necessary appurtenances; and that for so long as Tenant fulfills
the conditions and covenants required of Tenant under this Lease, Tenant shall
have peaceful and quiet possession of the Premises subject only to the
provisions hereof and of any recorded restrictions, covenants, and easements,
including, without limitation, Landlord's right to install utilities and other
permitted improvements in easement areas. Landlord further covenants and
warrants that Landlord has good right, full power and lawful authority to enter
into this Lease for the full term and extensions hereof.
SECTION 11.10. CERTAIN EXPENSES OF LANDLORD. Any out-of-pocket expenses
reasonably incurred by Landlord for purposes of considering or acting upon any
request for consent or waiver under, or modification of, any of the provisions
of this Lease, including reasonable attorney's fees, shall be promptly
reimbursed by Tenant upon Landlord's request.
SECTION 11.11. REMEDIES CUMULATIVE. All remedies conferred on Landlord
and Tenant by this Lease shall be deemed cumulative and no one exclusive of the
other or of any other remedy conferred by law.
SECTION 11.12. BINDING EFFECT. The covenants and agreements contained
in this Lease shall bind the respective successors, heirs and legal
representatives of the parties hereto.
30
SECTION 11.13. APPLICABLE LAW. This Lease shall be governed by the laws
of the State of Wisconsin.
SECTION 11.14. HOLDING OVER. Any holding over after the expiration of
the term or any extended term of this Lease with Landlord's consent shall be
construed to be a tenancy from month to month at twice the base rental and
otherwise on the same terms and conditions hereof.
SECTION 11.15. COUNTERPARTS. This Lease may be executed in any number
of counterparts, each of which when executed and delivered shall be deemed an
original, but such counterparts together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, this Lease has been made, executed, and delivered
as of the date and year first set forth above.
LANDLORD: TENANT:
University Research Park, Inc. PanVera Corporation
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX XXXXXX
-------------------------------- ---------------------------
Xxxxx X. XxXxxx
Assistant Secretary/Treasurer
Date: 10-7-98 Date: 00/0/00
XXXXXXXX XXXXXXXXXXXXXX
XXXXX XX XXXXXXXXX )
)ss.
COUNTY OF DANE )
Personally came before me this 7th day of October, 1998. Xxxxx X. XxXxxx,
Assistant Secretary/Treasurer, of University Research Park, Inc., to me known to
be the person who executed the foregoing instrument, and to me known to be such
Assistant Secretary/Treasurer of said corporation, and acknowledged that he
executed the foregoing instrument as such officer as the deed of said
corporation, by its authority.
/s/ [ILLEGIBLE]
---------------------------------
NOTARY PUBLIC, State of Wisconsin
My Commission is permanent
00
XXXXXX XXXXXXXXXXXXXX
XXXXX XX XXXXXXXXX )
)ss.
COUNTY OF DANE )
Personally came before me this 7th day of October, 1998, Xxxxx Xxxxxx, the
President, of the above-named corporation, to me known to be the person who
executed the foregoing instrument, and to me known to be such President of said
corporation, and acknowledged that he/she executed the foregoing instrument as
such officer as the deed of said corporation, by its authority.
/s/ [ILLEGIBLE]
---------------------------------
NOTARY PUBLIC, State of Wisconsin
My Commission is permanent
Exhibits
A - Legal Description
B - Rent Computations - CPI Adjustment
C - Rent Computations - Reappraisal Adjustment
D - Architectural Design Criteria
E - Approved Plans and Specifications
F - Landscaping Standards and Criteria
32
