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EXHIBIT 10.1
LEASE
THIS LEASE (the "Lease") is entered into as of the 12th day of
February, 1994, by and between PROMEGA CORPORATION ("Landlord"), whose address
is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and OPHIDIAN PHARMACEUTICALS, INC.
("Tenant"), whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
ARTICLE I
GRANT AND TERM
SECTION 1.01. PREMISES. Landlord leases to Tenant, and Tenant leases
from Landlord, that part of the BioPharmaceutical Technology Center (the "BTC")
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, now or hereafter to be constructed which
consists of an office outlined in red on the site plan attached as Exhibit A
(the "Premises"), containing approximately ten thousand (10,000) square feet.
The Premises leased to Tenant do not include the land under the BTC or the roof
or outer walls of the building or buildings comprising the BTC. Landlord
reserves the right to place, maintain, repair and replace utility lines, pipes,
tunneling and the like in, under, over, upon or through the Premises as may be
reasonably necessary or advisable for the servicing of the Premises or other
existing or future portions of the BTC provided that, in the exercise of such
rights, Landlord shall use its diligent efforts to minimize any disruption to
Tenant's use and enjoyment of the Premises. Included as part of the Premises
are the use of the following facilities:
(a) Steelcase office furniture itemized on Exhibit B
attached hereto and made a part hereof; and
(b) Cold rooms 1114, 1122 and 1123 located within the BTC
(the "Cold Rooms").
Landlord is acquiring the Steelcase office furniture and the Cold Rooms
pursuant to installment sale contracts. At any time during the term of this
Lease, Tenant can acquire title to the Steelcase office furniture by prepaying
the unpaid balance of the purchase prices for such items. Upon such
prepayment, title shall pass to Tenant and such item shall be subject to
Section 4.04 and rent attributable to such item under Section 3.02(b) shall
cease. Furthermore, if Tenant extends the term of this Lease under Section
1.02(b), then, upon the last payment of Minimum Rent for the Option Term, title
to the Steelcase office furniture shall pass to Tenant and such items shall be
subject to Section 4.04. Furthermore, Landlord grants to Tenant, during the
term of this Lease, the right to use, and to have access to, an autoclave
located in the manufacturing area of the BTC.
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SECTION 1.02. LEASE TERM.
(a) Original Term. The term of this Lease shall be for
five (5) Lease Years, unless terminated sooner pursuant to any of the
provisions of this Lease. The term of this Lease and Tenant's
obligation to pay rent and other charges due hereunder and to perform
all other obligations set forth herein shall begin on January 1, 1994
(the "Commencement Date"). The term of this Lease shall end on the
last day of the last full Lease Year (as defined in Section 1.03)
unless terminated sooner pursuant to any of the provisions hereof.
(b) Option to Extend. Provided that Tenant shall not
then be in default under this Lease, Tenant shall have an option (the
"Option") to extend this Lease for an additional period of five (5)
Lease Years beyond the lease term set forth in Section 1.02(a) (the
"Option Term"). The Option shall be exercised by delivery of written
notice by Tenant to Landlord not later than July 1, 1998. If written
notice is not given by Tenant to Landlord by the deadline set forth
herein, then this Lease shall terminate at the end of the lease term
set forth in Section 1.02(a). If this Lease is extended pursuant to
this Section 1.02(b), all terms, covenants and conditions of this
Lease shall remain in full force and effect, except, however, that:
(i) the term of this Lease shall be
extended for the period of the Option Term;
(ii) Minimum Rent for the Option
Term shall be computed in accordance with Section 3.03, below;
and
(iii) the Termination Date shall,
notwithstanding Section 1.02(a), be deemed to be December 31,
2003.
SECTION 1.03. LEASE YEAR. The term "Lease Year" means each calendar
year during the term hereof. The first Lease Year shall begin on January 1,
1994.
SECTION 1.04. SURRENDER. On the last day of the term of this Lease,
or any extension or renewal thereof, or on any sooner termination, Tenant shall
surrender the Premises in the same condition as the Premises existed on the
Commencement Date, broom clean, reasonable wear and tear excepted, and shall
surrender all keys to Landlord.
SECTION 1.05. RIGHT OF ENTRY. Landlord and its authorized
representatives shall have the right to enter the Premises at all reasonable
times, upon reasonable prior oral or written notice to Tenant, (or without
notice at any time during or after an emergency) to inspect the Premises or to
show the Premises to prospective purchasers or tenants or to ▇▇▇▇▇ nuisances,
to cure dangerous conditions, repair waste and to make repairs, alterations,
improvements or additions to the Premises or to
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the building of which the Premises are a part, as Landlord may reasonably deem
necessary, including those to be performed by Tenant, without the same
constituting an eviction of Tenant in whole or in part, and rent shall not
▇▇▇▇▇ as a result of such entry. Landlord shall use its reasonable efforts in
making any repairs, alterations, improvements or additions to the Premises or
the building of which the Premises are a part to keep the disruption of
Tenant's business to a minimum. Nothing herein shall impose any duty upon
Landlord to do any work or perform any other act which Tenant may be required
to perform under this Lease, and the performance thereof by Landlord shall not
constitute a waiver of Tenant's default in failing to perform it. During the
six (6) months prior to the expiration of the term of this Lease, Landlord may
place upon the Premises notice "To Let" or "For Rent." If Tenant is not
present to permit entry into the Premises, Landlord may, in case of emergency,
enter by master key, or may forcibly enter, without rendering Landlord liable
therefor.
SECTION 1.06. SHIPPING AND RECEIVING. Landlord will facilitate
Tenant's shipping and receiving functions in a mutually agreeable manner.
ARTICLE II
SECURITY DEPOSIT
[INTENTIONALLY DELETED]
[THIS SPACE WAS INTENTIONALLY LEFT BLANK]
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ARTICLE III
RENT
SECTION 3.01. GENERAL. Tenant shall, for the entire term of this
Lease, pay to Landlord, at such place as Landlord may from time to time in
writing designate, an annual minimum rent (the "Minimum Rent") in equal monthly
installments, payable in advance on the first day of each calendar month,
without any setoff, counterclaim or deduction whatsoever or any prior demand.
SECTION 3.02. ORIGINAL LEASE TERM. Minimum Rent per month during the
first five (5) Lease Years shall be equal to the sum of the following amounts:
(a) Seventeen Thousand Three Hundred Forty-Nine Dollars
($17,349), representing rent for the Premises exclusive of the
Steelcase office furniture and Cold Rooms. This amount shall increase
by three percent (3%) per annum compounded annually, on the first day
of the second, third, fourth and fifth Lease Years.
(b) One Thousand Four Hundred Dollars ($1,400),
representing rent for the Steelcase office furniture.
(c) Six Hundred Fifty-Four Dollars ($654), representing
rent for the Cold Rooms.
SECTION 3.03. OPTION TERM. Minimum Rent per month during the Option
Term shall be equal to the sum of the following amounts:
(a) Twenty Thousand One Hundred Twelve Dollars ($20,112),
representing rent for the Premises exclusive of the Steelcase office
furniture and Cold Rooms. This amount shall increase by three percent
(3%) per annum, compounded annually, on the first day of the seventh,
eighth, ninth and tenth Lease Years.
[THIS SPACE WAS INTENTIONALLY LEFT BLANK]
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(b) As rent for the Steelcase office furniture, the
amount that results when Thirteen Thousand Forty-Two Dollars ($13,042)
is amortized over sixty (60) months at a rate equal to the prime rate
most recently announced as of the first day of the Option Term by
Firstar Bank Madison, N.A. (or, if such bank is not then announcing
its prime rate, by any other state or national bank chosen by Landlord
and having an office in Madison, Wisconsin).
(c) As rent for the Cold Rooms, the amount that results
when Three Thousand Five Hundred Thirty-Two Dollars ($3,532) is
amortized over sixty (60) months at a rate equal to the prime rate
most recently announced as of the first day of the Option Term by
Firstar Bank Madison, N.A. (or, if such bank is not then announcing
its prime rate, by any other state or national bank chosen by Landlord
and having an office in Madison, Wisconsin).
SECTION 3.04. SCHEDULE OF RENTS. A complete schedule of Minimum Rent
payable during the original term and the Option Term of this Lease is attached
hereto as Exhibit C.
SECTION 3.05. PARTIAL MONTHS. Minimum Rent for any period during the
term of this Lease which is less than one (1) month shall be a pro rata portion
of the monthly installment.
ARTICLE IV
ALTERATIONS AND ADDITIONS
SECTION 4.01. ALTERATIONS. Tenant shall not, without Landlord's
prior written consent, make any alterations, improvements, additions or utility
installations upon the Premises, except for minor nonstructural alterations.
The term "utility installations," as used herein, shall include without
limitation power panels, space heaters, fluorescent fixtures, conduits and
wiring.
SECTION 4.02. ACCEPTANCE OF PREMISES. By moving into the Premises,
Tenant shall be deemed to have accepted the physical condition of the same "as
is," subject, however, to Landlord's obligations under Article V.
SECTION 4.03. CONSTRUCTION LIENS. Tenant shall pay when due, and
indemnify, defend and hold Landlord harmless from, all claims for labor or
materials furnished or alleged to have been furnished to Tenant for use in the
Premises, which claims are or may be secured by any construction lien against
the Premises or any interest therein. Tenant shall not permit any liens under
the construction lien law to be filed against the Premises or any interest
therein and shall immediately obtain a release from any lien so filed. Nothing
in the Lease shall be construed in any way as constituting the consent or
request of Landlord to any contractor, subcontractor, laborer, or materialman
for the performance of any labor or the furnishing of any
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materials for any alteration, addition, improvement or repair to the Premises
or any other part of the BTC nor as giving Tenant any right, power or authority
to contract for or permit the rendering of services or the furnishing of
materials that would give rise to the filing of a construction lien against the
Premises or the BTC.
SECTION 4.04. REMOVAL OF IMPROVEMENTS. All items of improvements to
the Premises that exist upon the Commencement Date, all heating and air-
conditioning equipment and all alterations and other improvements by Tenant
shall become the property of Landlord and shall not be removed from the
Premises, unless request is made by Landlord to Tenant to remove the same. All
trade fixtures, furniture, furnishings and signs installed in the Premises by
Tenant and paid for by Tenant shall remain the property of Tenant and may be
removed upon the expiration or termination of this Lease; provided that any of
such items as are affixed to the Premises and require severance may be removed
only if Tenant repairs any damage caused by such removal and that Tenant shall
have fully performed all of the terms, conditions and covenants to be performed
by Tenant under this Lease. If Tenant fails to remove such items from the
Premises by the expiration or earlier termination of this Lease, all such trade
fixtures, furniture, furnishings and signs shall become the property of
Landlord, unless Landlord elects to require their removal, in which case Tenant
shall, at its sole cost and expense, promptly remove the same and restore the
Premises to their prior condition. The covenants contained in this Section
shall survive the expiration or termination of this Lease.
ARTICLE V
REPAIRS AND MAINTENANCE
Landlord shall keep the exterior of the BTC and the interior of the
Premises (except interior walls erected by Tenant) in good condition and
repair, except for repairs required thereto by reason of the acts or omissions
of Tenant, Tenant's employees, agents, invitees, licensees or contractors.
Landlord shall also be responsible for the maintenance and repair of the Common
Areas (as defined in Section VI). If Landlord is required to make exterior or
structural repairs by reason of Tenant's acts or omissions, Landlord shall have
the right, but shall not be obligated, to make such repairs or replacements on
behalf of and for the account of Tenant. In such event, such work shall be
paid for in full by Tenant upon billing therefor. The provisions of this
Section shall not apply in the case of damage or destruction by fire or other
casualty or by condemnation, in which events the obligations of Landlord shall
be controlled by Articles IX and X, respectively.
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ARTICLE VI
COMMON AREAS
SECTION 6.01. USE OF COMMON AREAS. Use by Tenant of the Premises
shall include the non-exclusive use, in common with others, of the Common
Areas, as defined herein, and subject to the provisions of Section 6.02.
SECTION 6.02. CONTROL OF COMMON AREAS. Tenant shall have the
reasonable non-exclusive right to use, under a revocable license and not as a
part of the Premises (and in common with Landlord and other tenants of the BTC
and all others to whom Landlord has or may hereafter grant rights to use the
same) such parking areas, sidewalks, roadways, public and common washrooms,
elevators, stairways, corridors and other common areas and facilities as may
from time to time exist and be generally available to all occupants of the BTC
(the "Common Areas"). Landlord shall at all times have full control,
management and direction of the Common Areas and reserves the right at any time
and from time to time to reduce, increase, enclose or otherwise change the
size, number, location, layout and nature of the Common Areas so as to
construct additional rentable areas through use and/or enclosure of the common
areas, and to place signs on the BTC; provided, however, that Landlord shall
not impair access to the Premises or make the Premises significantly less
desirable or attractive. Shipping and receiving areas are not Common Areas.
ARTICLE VII
COVENANTS OF TENANT
SECTION 7.01. USE OF PREMISES. Tenant covenants and agrees that it
shall continuously and without interruption use and occupy the entire Premises
(and not less than one hundred percent (100%) of the Premises) solely as
office, laboratory, manufacturing and related uses, and for no other purpose.
Tenant's business in the Premises shall be conducted under the following trade
name: Ophidian Pharmaceuticals, Inc.
SECTION 7.02. OPERATION OF BUSINESS. Tenant, acknowledging that the
BTC is being developed and maintained by Landlord as a first-class office and
laboratory building and as a further inducement to Landlord to enter into this
Lease, covenants and agrees:
(a) Appearance. To keep the Premises clean and
attractive in appearance at all times and to keep any refuse in proper
containers in the interior of the Premises out of sight until the same
is removed;
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(b) Insurance. To neither do nor suffer anything to be
done or kept in or about the Premises which contravenes Landlord's
insurance policies or increases the premiums therefor;
(c) Sound. To permit no reproduction of sound which is
audible outside the Premises nor permit odors to be unreasonably
dispelled from the Premises;
(d) Loading. To load, unload and permit the loading or
unloading of merchandise, equipment or other property only via the
BTC's shipping and receiving areas, or the Pilot Plant access areas;
(e) Heating and Cooling. To adequately heat and cool the
Premises;
(f) Compliance with Laws. To comply with all applicable
ordinances, rules, regulations, orders and requirements of all
federal, state and municipal governments which relate to the Premises
or the business Tenant conducts on or from the Premises and with any
direction, pursuant to law, of any public officer which shall impose
upon Tenant any duty with respect to the Premises or the use and
occupation thereof.
SECTION 7.03. SIGNS. Tenant covenants and agrees that it shall not,
without the prior written consent of Landlord, paint, erect or install any
signs, lettering or placards or make any additions, alterations or changes to
the exterior of the Premises, or place or permit to be placed any sign,
advertising material or lettering upon the interior surface of any door or show
window or any point inside the Premises from which the same may be visible from
outside the Premises.
SECTION 7.04. UTILITIES. Landlord shall supply to the Premises, at
Landlord's cost, heat, sewer, water, gas and electric service. Tenant agrees,
in the use of such utilities, to use appropriate energy conservation methods
and not to use excessive amounts of, or waste, any such utility service.
Landlord shall be liable for an interruption or failure in the supply of any
utilities only to the extent that such interruption or failure results from the
negligent, reckless or willful misconduct of Landlord.
SECTION 7.05. MUNICIPAL, COUNTY, STATE OR FEDERAL TAXES. Tenant
covenants and agrees that it shall pay, before delinquency, all municipal,
county and state or federal taxes assessed against any leasehold interest of
Tenant or any fixtures, furnishings, equipment, merchandise, improvements,
alterations, stock-in-trade or other personal property of any kind owned,
installed or upon the Premises. Landlord covenants and agrees that it shall
pay, before delinquency, all real estate taxes and assessments levied or
assessed against the BTC and the lands upon which the BTC is located.
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SECTION 7.06. DIRECTORY AND SIGNS. Tenant shall be entitled to have
its name shown upon the directory board of the BTC; but the design and style of
such identification, and the location of such directory board and allocation of
the space thereon among the tenants and occupants of the BTC, shall be
determined at Landlord's sole discretion.
SECTION 7.07. ENVIRONMENTAL.
(a) Definitions.
(i) As used herein, "Environmental Laws" shall
mean any federal, state and local laws including statutes,
regulations, rulings, orders, administrative interpretations,
guidance documents or memoranda and other governmental
restrictions and requirements relating to the creation or
discharge of solid waste, hazardous substances, hazardous
waste, air pollutants, water pollutants or process wastewater
or otherwise relating to the environment or Hazardous
Substances (as defined herein) including, but not limited to,
Chapters 144, 160 and 162 of the Wisconsin Statutes, the
Federal Toxic Substances Control Act, the Federal Solid Waste
Disposal Act, the Federal Clean Air Act, the Federal Clean
Water Act, the Federal Resource and Conservation and Recovery
Act of 1976, the Federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the
Superfund Amendment and Reauthorization Act of 1986,
regulations of the Federal Environmental Protection Agency or
state environmental protection agency or Department of Natural
Resources or Environmental Quality now or at any time
hereafter in effect.
(ii) As used herein, "Hazardous Substances" shall
mean any hazardous waste or substance or material, asbestos or
asbestos-containing material pollutant, solid, liquid,
gaseous, or thermal irritant or contaminant (such as smoke,
vapor, soot, fumes, acids, alkalis, chemicals, oils, solvents
or waste, including materials to be recycled in the future,
reconditioned or reclaimed), polychlorinated biphenyl (in the
form of electrical transformers, fluorescent light fixtures
with ballasts, cooling oils or any other device or form) or
urea-formaldehyde foamed-in-place insulation, all as defined
or included under Environmental Laws.
(b) Environmental Covenants. During the term of this
Lease, Tenant shall:
(i) timely comply with all applicable
Environmental Laws;
(ii) provide Landlord, immediately upon receipt
thereof, with copies of any correspondence, notice, pleading,
citation, notice of
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noncompliance, notice of violation, indictment, complaint,
order, decree or other document from any source asserting or
alleging violation upon the Premises by Tenant of any
Environmental Laws, or asserting or alleging a circumstance or
condition upon the Premises which may require a financial
contribution by Tenant or a cleanup, remedial action or other
response, including investigation, by or on the part of Tenant
under any Environmental Laws;
(iii) permit Landlord, in the event Landlord has
reasonable cause to believe that there exists a condition or
circumstance created by Tenant, its employees or invitees
during the term of this Lease warranting an environmental
inspection or audit, at Tenant's expense to retain an
architect, environmental consultant or professional engineer
selected by Landlord to perform an environmental inspection
and/or audit of the Premises to evaluate Tenant's compliance
with Environmental Laws, and to test for Hazardous Substances
on the Premises, and for risks associated with exposure to
Hazardous Substances. Tenant shall permit Landlord and its
employees and agents access to the Premises and the books and
records of Tenant as necessary for the performance of the
environmental inspection and/or audit;
(iv) at its expense, remove or contain any
Hazardous Substances on the Premises that were brought onto
the Premises by Tenant, its employees or invitees during the
term of this Lease, or perform other investigation or
remediation or corrective action as required by Landlord in
its sole discretion, if at any time it is determined that such
Hazardous Substances present a health hazard on the Premises
or are required to be investigated, removed, contained or
remediated or other corrective action is required by any
Environmental Laws or regulatory authority.
SECTION 7.08. CONFIDENTIALITY.
(a) As used herein, "Confidential Information" means
information possessed by or developed for either party hereto, which
relates to such party's existing or potential business, which is
generally not known to the public, which such party seeks to protect
from disclosure to its existing or potential competitors or others.
The term shall include, without limitation: financial or business
plans and projections, visitor lists and directories, marketing plans,
negotiation strategies, customer lists, customer names, or other
customer information, author lists, names or other information,
pricing lists, pricing information, works in progress, works under
consideration, previously published works, patents, patented material,
copyrights, copyrighted material, trademarks, tradenames, computer
programs, and the like. Confidential Information also includes
information received by either party hereto from others which such
party has an obligation to treat as confidential.
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(b) Each party hereto covenants and agrees that neither
it nor its sublessees, agents, customers, invitees, contractors,
occupants or employees shall directly or indirectly use or disclose
any Confidential Information of the other, whether during the term of
this Lease or after this Lease terminates or expires. This
prohibition does not apply to Confidential Information after it
becomes generally known in the industry in which the party possessing
the same conducts its business. Each party hereto shall take all
reasonable measures to prevent its sublessees, agents, customers,
invitees, contractors, occupants and employees from acquiring, using
or disclosing any Confidential Information.
ARTICLE VIII
INSURANCE AND INDEMNITIES
SECTION 8.01 INSURANCE BY TENANT. Tenant shall obtain, at Tenant's
expense, beginning on the Commencement Date, and shall maintain through the
expiration or termination of this Lease, the following insurance coverages:
(a) Public Liability. A policy of comprehensive public
liability insurance naming Landlord, Tenant and any other party
designated by Landlord as the insured, to insure against injury to
property, person or loss of life arising out of the ownership, use,
occupancy or maintenance of the Premises with limits of public
liability not less than $1,000,000 per accident and/or occurrence, and
$2,000,000 general aggregate. The policy shall contain a supplemental
endorsement covering contractual liability voluntarily assumed by the
insured under this Lease.
(b) Other. All other insurance, if any, customarily
maintained by businesses of like type, or required by any ordinance,
law, or governmental regulation to be carried or maintained by Tenant,
as may be reasonably required by Landlord or by any ordinance, law or
governmental regulation.
SECTION 8.02. INSURANCE BY LANDLORD. Landlord shall obtain before
the Commencement Date, and shall maintain through the expiration or termination
of this Lease, the following insurance coverages:
(a) Public Liability. A policy of comprehensive public
liability insurance on the Common Areas with limits of public
liability not less than $1,000,000 per person for death and/or bodily
injury, including personal injury, $1,000,000 per accident and/or
occurrence, and limits of property damage liability not less than
$1,000,000 per accident or occurrence.
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(b) Comprehensive. A comprehensive policy of coverage
containing fire, extended coverage, vandalism, malicious mischief and
other endorsements deemed advisable by Landlord insuring the leasehold
improvements of the BTC, including the Premises and all appurtenances
thereto (excluding Tenant's merchandise, trade fixtures, furnishings,
equipment and personal property) for the full insurable replacement
value thereof, with such deductibles as Landlord deems advisable.
Tenant shall be solely responsible for carrying personal property
insurance sufficient to cover the loss or damage to Tenant's personal
property.
SECTION 8.03. INSURANCE POLICIES. Insurance required of Tenant under
Section 8.01 shall be written by companies duly qualified to do business in the
State of Wisconsin, with a general policyholder's rating of at least "A" and a
financial rating of at least Class XI, as rated in the latest edition of Best's
Insurance Guide, and shall be satisfactory in all respects to Landlord and the
holder of any mortgage against the BTC. Tenant shall provide Landlord with
copies of all such policies for Landlord's review prior to the Commencement
Date. Tenant shall deliver to Landlord copies of such policies or certificates
evidencing the existence and amounts of such insurance with loss payable
clauses satisfactory to Landlord. No such policy shall be cancelable or
subject to reduction of coverage or modification except after thirty (30) days'
prior written notice to Landlord. At least thirty (30) days prior to the
expiration of Tenant's policies, Tenant shall furnish Landlord with renewals or
"binders" thereof, or Landlord may order such insurance and charge the cost to
Tenant as additional rent. Tenant shall not do or permit anything to be done
which will invalidate the insurance policies furnished by Tenant or Landlord
pursuant to Sections 8.01 and 8.02. If Tenant does or permits anything to be
done which shall increase the cost of the insurance policies furnished by
Landlord, Tenant shall pay to Landlord, as additional rent, the amount of any
such additional premiums. Landlord may from time to time require that the
policy limits of any or all such insurance be increased to reflect the effects
of inflation and changes in normal commercial insurance practices. If Tenant
fails to comply with the requirements of this Section or Section 8.01, Landlord
may obtain such insurance and maintain it in effect, and Tenant shall pay
Landlord the premium cost and any other costs or expenses incurred by Landlord
as additional rent.
SECTION 8.04. EXEMPTION OF LANDLORD FROM LIABILITY. Tenant hereby
agrees that Landlord shall not be liable for injury to Tenant's business or any
loss of income or other consequential damages or for damage to the inventory,
fixtures, furnishings, improvements or other property of Tenant, Tenant's
employees, invitees, customers, sublessees, agents, occupants, contractors, or
any other person in or about the Premises, nor shall Landlord be liable for
injury to the person of Tenant, Tenant's employees, agents, contractors,
occupants, invitees, customers, sublessees, or any other person in or about the
Premises, whether such damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinkler, wires, appliances, plumbing,
air-conditioning or lighting fixtures, or from any other cause whatsoever,
whether said
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damage or injury results from conditions arising upon the Premises, or from
other sources or places, and regardless of whether the cause of such damage or
injury or the means of repairing the same is inaccessible to Tenant; except,
however, to the extent such injury, loss or damages result from Landlord's
reckless, negligent or wilful misconduct. Landlord shall not be liable for any
damages arising from any act or neglect of any other tenant of the BTC.
SECTION 8.05 INDEMNIFICATION. Tenant shall indemnify, defend and
hold harmless Landlord from and against any and all claims arising from
Tenant's use of the Premises, or from the conduct of Tenant's business or from
any activity, work or things done, permitted or suffered by Tenant in or about
the Premises or elsewhere and shall further indemnify, defend and hold harmless
Landlord from and against any and all claims arising from any breach or default
in the performance of any obligation on Tenant's part to be performed under the
terms of this Lease, or arising from any negligence of the Tenant, or any of
Tenant's sublessees, agents, customers, invitees, contractors, occupants, or
employees, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon; except, however, to the extent such claim arises
from Landlord's reckless, negligent or willful misconduct; and in case any
action or proceeding be brought against Landlord by reason of any such claim,
Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by
counsel satisfactory to Landlord. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons, in, upon or about the Premises arising from any cause;
except to the extent caused by Landlord's reckless, negligent or willful
misconduct, and Tenant hereby waives all claims in respect thereof against
Landlord.
SECTION 8.06. MUTUAL WAIVER OF SUBROGATION. Nothing in this Lease
shall be construed so as to authorize or permit any insurer of Landlord or
Tenant to be subrogated to any right of Landlord or Tenant against the other
party arising under this Lease. Landlord and Tenant each hereby release the
other to the extent of any perils to be insured against by either of the
parties under the terms of this Lease, whether or not such insurance has
actually been secured, and to the extent of their respective insurance coverage
for any loss or damage caused by any such casualty, even if such incidents
shall be brought about by the fault or negligence of either party or persons
for whose acts or negligence the other party is responsible. All insurance
policies to be provided under this Article VIII by either Landlord or Tenant
shall contain a provision that they are not invalidated by the foregoing
waiver. Such waiver shall, however, cease to be effective if the existence
thereof precludes either Landlord or Tenant from obtaining any such policy.
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ARTICLE IX
DAMAGE OR DESTRUCTION
In the event (i) the Premises are damaged by fire, explosion or other
casualty insured under Landlord's fire and extended coverage insurance policy
(an "Insured Casualty") to the extent of twenty-five percent (25%) or more of
the insurable value thereof immediately preceding the casualty, (ii) the BTC is
damaged by an Insured Casualty to the extent of fifty percent (50%) or more of
the insurable value thereof immediately preceding the casualty, (iii) the
Premises or the BTC are damaged by a casualty or occurrence other than Insured
Casualty, or (iv) the Premises or the BTC are damaged by a casualty or
occurrence and Landlord's mortgagee does not authorize the disbursement of
insurance proceeds to repair or replace the same, Landlord may terminate this
Lease by giving Tenant written notice of termination within sixty (60) days
after the happening of the event causing the damage. In the event the damage
is not extensive enough to give rise to Landlord's option to terminate this
Lease or Landlord does not elect to terminate this Lease, Landlord shall
promptly repair and replace the roof, exterior walls, foundation and any other
improvements furnished or existing on the Commencement Date, to the condition
existing immediately preceding such fire, explosion or other casualty. During
any period of reconstruction or repair of the Premises, Tenant shall operate
its business in the Premises to the extent practicable. Rent or other sums
payable under this Lease shall be reduced or abated during the period of such
repair and restoration (to the extent of any rent insurance proceeds actually
received by Landlord therefor).
ARTICLE X
CONDEMNATION
SECTION 10.01. TAKING OF WHOLE. In the event (i) the whole of the
Premises shall be taken or condemned for a public or quasipublic use or purpose
by a competent authority, or (ii) such a portion of the Premises shall be taken
so that the balance cannot be used for the same purpose and with substantially
the same utility to Tenant as immediately prior to such taking, this Lease
shall terminate upon delivery of possession to the condemning authority, and
any award, compensation or damages payable as compensation for the fee estate
in the Premises (the "Award") shall be paid to and be the sole property of
Landlord, and Tenant hereby assigns to Landlord all of Tenant's right, title
and interest in and to any and all of the Award. Tenant shall have no claim
against Landlord by reason of such taking or termination and shall not have any
claim or right to any portion of the Award to be paid to Landlord. Tenant
shall continue to pay rent and other charges hereunder until the Lease is
terminated.
SECTION 10.02. PARTIAL TAKING. In the event only a part of the
Premises or BTC is taken or condemned but the Premises or the part remaining
can still be used for the same purpose and with substantially the same utility
to Tenant as immediately prior
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to such taking, this Lease shall not terminate and Landlord shall repair and
restore the Premises provided the cost and expense of such repair and
restoration does not exceed the amount of the Award. If the cost of such
repair and restoration exceeds the amount of the Award, Landlord may terminate
this Lease by giving Tenant written notice of termination to Tenant within
sixty (60) days of the delivery of possession to the condemning authority. If
Landlord is obligated to repair and restore the Premises as herein provided,
there shall be no abatement or reduction in any rental because of such taking
or condemnation.
ARTICLE XI
DEFAULTS; REMEDIES
SECTION 11.01. DEFAULTS. The occurrence of any one or more of the
following events shall constitute a default and breach of this Lease by Tenant:
(a) Abandonment. The abandonment of the Premises or the
cessation of business by Tenant.
(b) Failure to Pay. The failure of Tenant to make any
payment of rent or any other payment required to be made by Tenant
under this Lease, when due, and such failure shall continue for a
period of five (5) days.
(c) Failure to Observe Other Covenants. The failure by
Tenant to repair any waste or to observe or perform any of the terms,
covenants or conditions of this Lease to be observed or performed by
Tenant where such failure shall continue for a period of twenty (20)
days after written notice thereof from Landlord to Tenant (or without
notice where, as a result of Tenant's failure to observe any term,
covenant or condition of this Lease, Landlord has delivered three (3)
or more notices of default under this subsection (c) within a single
twelve (12)-month period). Except as otherwise provided herein, in
the event of a breach of a term, covenant or condition of this Lease
which requires more than the payment of money to cure and which cannot
because of the nature of such default be cured within said twenty (20)
days, then Tenant is deemed to be complying with said notice if,
promptly upon receipt of such notice, Tenant immediately takes steps
to cure the default as soon as reasonably possible and proceeds
thereafter continuously with due diligence to cure the default within
a period of time which, under all prevailing circumstances, shall be
reasonable. Failure to send a notice shall not be construed as a
waiver of such breach or as to any subsequent breach.
(d) Insolvency. (i) The making by Tenant of any general
assignment, or general arrangement for the benefit of creditors; (ii)
the filing by or against Tenant of a petition to have Tenant adjudged
a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within sixty (60)
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days); (iii) the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where possession is
not restored to Tenant within sixty (60) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease,
where such seizure is not discharged within sixty (60) days.
SECTION 11.02. LANDLORD'S REMEDIES. If any default by Tenant shall
continue uncured following notice of default, if any, as required by this
Lease, for a period applicable to the default under the applicable provision of
this Lease, Landlord has the following remedies, in addition to all other
rights and remedies provided by law or equity, to which Landlord may resort
cumulatively or in the alternative.
(a) Termination of Lease. Landlord may at Landlord's
election terminate this Lease by giving Tenant notice of termination.
On the giving of the notice, all further obligations of Landlord under
this Lease shall terminate, Tenant shall surrender and vacate the
Premises in a broom clean condition, and Landlord may reenter and take
possession of the Premises and eject all parties in possession or
eject some and not others or eject none. Termination under this
paragraph shall not relieve Tenant from the payment of any sum then
due to Landlord or from any claim for damages previously accrued or
then accruing against Tenant. Should Tenant abandon the Premises and
Landlord elect to reenter as herein provided, or if Tenant's right to
possession is terminated by Landlord because of a breach of the Lease
by Tenant, this Lease shall, at Landlord's written election, terminate
and Landlord shall be entitled to recover from the Tenant (i) unpaid
rent which has been earned at the time of termination, and (ii) as
liquidated damages and not as a penalty a sum of money equal to the
rent and rental loss to be paid by Tenant to Landlord for the
remainder of the term of this Lease.
(b) Termination of Possession. Landlord may at
Landlord's election terminate Tenant's right to possession only,
without terminating the Lease, following a breach of the Lease by
Tenant. Upon termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate
the Premises immediately and possession thereof to Landlord, and
Tenant hereby grants to Landlord the immediate right to enter into the
Premises, remove Tenant's signs and other evidences of tenancy, and
take and hold possession thereof with or without process of law, and
to repossess the Premises as Landlord's former estate and to expel or
remove Tenant and any others who may be occupying or within the
Premises, without being deemed in any manner guilty of trespass,
eviction, or forcible entry or detainer, without incurring any
liability for any damage resulting therefrom, without such entry and
possession terminating the Lease or releasing Tenant from Tenant's
obligation to pay the rent and to fulfill all other of Tenant's
obligations under this lease for the full term of this Lease.
Landlord shall be entitled to recover from Tenant (i)
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unpaid rent which has been earned at the time of termination, and (ii)
as liquidated damages and not as a penalty a sum of money equal to the
rent and rental loss to be paid by Tenant to Landlord for the
remainder of the term of this Lease. Notwithstanding any remedial
action taken hereunder by Landlord short of termination, including
reletting the Premises to a substitute Tenant, Landlord may at any
time thereafter elect to terminate this Lease for any previous
default.
(c) Storage. Landlord may at Landlord's election store
Tenant's personal property and trade fixtures for the account and at
the cost of Tenant.
(d) Reletting of Premises. If Landlord terminates Tenant's
right to possession but does not terminate this Lease as the result of
Tenant's default hereunder, Landlord shall use reasonable efforts to
relet the Premises and shall have the right to relet the Premises as a
part of a larger area, the right to change the character or use of the
Premises and the right to restrict prospective tenants to those whose
merchandise and business is compatible with the nature and character
of the BTC. For the purpose of such reletting, Landlord may decorate
or may make any repairs, changes, alterations or additions in or to
the Premises that may be necessary or convenient. If the Premises are
relet and a sufficient sum shall not be realized from such reletting
after paying all of the expenses of such decorations, repairs,
changes, alterations and additions, the expenses of such reletting and
the collection of the rent accruing therefrom (including, but not
limited to, attorneys' fees and brokers' commissions), to satisfy the
rent and other charges herein provided to be paid for the remainder of
the term of this Lease, Tenant shall pay to Landlord promptly any
deficiency, and Tenant agrees that Landlord may file suit to recover
any sum falling due under the terms of this paragraph from time to
time.
SECTION 11.03. LANDLORD MAY PERFORM. Landlord shall have the right
at any time, after ten (10) days notice to Tenant (or without notice in case of
emergency or a hazardous condition or in case any fine, penalty, interest or
cost may otherwise be imposed or incurred), to make any payment or perform any
act required of Tenant under any provision in this Lease, and in exercising
such right, to incur necessary and incidental costs and expenses, including
reasonable attorneys' fees. Nothing herein shall obligate Landlord to make any
payment or perform any act required of the Tenant, and this exercise of the
right to so do shall not constitute a release of any obligation or a waiver of
any default. All payments made and all costs and expenses incurred in
connection with any exercise of such right shall be reimbursed to Landlord by
Tenant as additional rent.
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ARTICLE XII
ASSIGNMENT AND SUBLETTING
SECTION 12.01. ASSIGNMENT BY TENANT. Tenant shall not voluntarily or
by operation of law assign, transfer, mortgage, lease, sublet, grant license or
rights to a concessionaire or otherwise transfer or encumber all or any part of
Tenant's interest in this Lease or in the Premises, or permit the use or
occupancy of the Premises or any part thereof by anyone other than Tenant,
without Landlord's prior written consent, which shall not be unreasonably
withheld or delayed. It shall be reasonable for Landlord to withhold its
consent if the proposed assignee or subtenant is not creditworthy or if such
assignee's or subtenant's character or proposed use of the Premises is
incompatible with the character and tenant mix of the BTC. Any attempted
assignment, transfer, mortgage, use, lease, occupancy, encumbrance or
subletting without such consent shall be void and shall constitute a default
under this Lease.
SECTION 12.02. NO RELEASE OF TENANT. Notwithstanding anything to the
contrary contained in this Lease, and regardless of Landlord's consent, no such
assignment, encumbrance, subletting, transfer, lease or other permission for
the use or occupancy of all or any part of the Premises shall release Tenant of
Tenant's obligation to pay the rent and to perform all other obligations to be
performed by Tenant under this Lease, and Tenant and each respective assignor
hereby waives notice of default in the payment and performance by the tenant in
possession of the rents, covenants and conditions of this Lease. Tenant and
each such assignor further agree that Landlord may deal with the tenant in
possession without notice to, and without the consent of, Tenant or any such
assignor, and any and all extensions of time, modifications, or waivers shall
be deemed to be made with the consent of Tenant and any such assignor. The
acceptance of rent by Landlord from any other person shall not be deemed to be
a waiver by Landlord of any provision hereof. Consent to one assignment shall
not be deemed consent to any subsequent assignment.
ARTICLE XIII
GENERAL PROVISIONS
SECTION 13.01. ESTOPPEL CERTIFICATE.
(a) Tenant shall at any time, upon not less than ten (10)
days after the giving of written notice by Landlord, execute,
acknowledge and deliver to Landlord or to such person designated by
Landlord, a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or if modified, stating the
nature of such modification and certifying that this Lease, as so
modified, is in full force and effect) and the date to which the rent
and other charges are paid in advance, if any, (ii) acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part
of Landlord hereunder,
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nor any offsets, counterclaims or defenses to the Lease on the part of
Tenant, or specifying such defaults if any are claimed, and (iii)
certifying as to any other matters as may be reasonably requested by
Landlord. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises.
(b) If Landlord desires to sell or finance or refinance
the Premises, or any part thereof, Tenant shall deliver to any
purchaser and/or lender designated by Landlord such financial
information concerning Tenant as may be reasonably required by such
purchaser and/or lender. Such statements shall include, but shall not
be limited to, the past three (3) years' financial statements of
Tenant. All such financial information shall be received by Landlord
in confidence and shall be used only for the purposes herein set
forth.
SECTION 13.02. LANDLORD'S LIABILITY. The term "Landlord" as used in
this Lease, shall mean only the owner or owners at the time in question of the
fee title or a tenant's interest in a ground lease of the Premises, it being
expressly acknowledged by the parties hereto that none of the terms or
conditions to be performed or observed by Landlord under this Lease are
personal to the party originally named "Landlord" hereunder. In the event of
any transfer of such title or interest, Landlord shall be released from all
liability as respects Landlord's obligations thereafter to be performed,
provided that any funds held by Landlord at the time of such transfer, in which
Tenant has an interest, shall be delivered to the grantee.
SECTION 13.03. SEVERABILITY. The invalidity of any provision of this
Lease, or of its application to any person or circumstance as determined by a
court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof and each term, covenant, condition and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
SECTION 13.04. TIME OF ESSENCE. Time is of the essence.
SECTION 13.05. CAPTIONS. Article, section and paragraph captions are
not a part of this Lease.
SECTION 13.06. INCORPORATION OF PRIOR AGREEMENTS. This Lease and the
attached exhibits set forth all the agreements, terms, covenants and conditions
between Landlord and Tenant concerning the Premises and there are no
agreements, terms covenants or conditions, oral or written, between them other
than those herein contained. No amendment, change or addition to this Lease
shall be binding upon Landlord or Tenant unless it is in writing and signed by
each party.
SECTION 13.07. TENANT'S REMEDIES. If Landlord shall fail to perform
any covenant, term or condition of this Lease required to be performed by
Landlord, if any, and if as a consequence of such default, Tenant shall recover
a money judgment
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against Landlord, such judgment shall be satisfied only out of the proceeds of
sale received upon execution of such judgment and levied thereon against the
right, title and interest of Landlord in the Premises and out of rents or other
income from such property receivable by Landlord, or out of the consideration
received by Landlord from the sale or other disposition of all or any part of
Landlord's right, title and interest in the Premises, and Landlord shall not be
personally liable for any deficiency.
SECTION 13.08. ATTORNMENT OF TENANT. Tenant shall in the event of
the sale, assignment, or other transfer of Landlord's interest in the Premises
or in this Lease, or in the event of any proceedings brought for the
foreclosure of, or in the event of exercise of the power of sale under any
mortgage made by Landlord covering the Premises, attorn to the transferee and
recognize such transferee as Landlord under this Lease.
SECTION 13.09. RENT COVENANT. The covenant to pay rent, whether
Minimum or Additional, is hereby declared to be an independent covenant on the
part of Tenant to be kept and performed, and no offset shall be permitted or
allowed. Tenant's covenant to pay such rent shall survive the expiration or
earlier termination of this Lease.
SECTION 13.10. DELINQUENT RENT TO BEAR INTEREST. Any rent, whether
Minimum or Additional, or such other sums, if any, required to be paid by
Tenant pursuant to the terms of this Lease which are not paid when due shall
bear interest at the rate of eighteen percent (18%) per annum, or the maximum
rate permitted by law, whichever is less, from the date due until paid. The
payment of such interest shall not excuse or cure any default by Tenant under
this Lease.
SECTION 13.11. NOTICES. All notices and demands hereunder shall be
in writing, and shall be given by registered or certified mail, return receipt
requested, and shall be deemed given if (a) hand delivered; (b) sent by Express
Mail or a national commercial courier service (e.g., Purolator Delivery Service
or Federal Express) for next day delivery, to be confirmed in writing by said
courier or service; or (c) when deposited in the United States Mail with
sufficient postage prepaid thereon to carry it to its addressed destination;
and when addressed as follows:
LANDLORD: Promega Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
COPY TO: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Best & Friedrich
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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TENANT: Ophidian Pharmaceuticals, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
COPY TO: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & Sinykin
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The above names and addresses may be changed at any time or from time to time
by notice as above provided.
SECTION 13.12. WAIVERS. No waiver by Landlord of any provision of
this Lease shall be deemed a waiver of any other provision hereof or of any
subsequent breach by Tenant of the same or any other provision. Landlord's
consent to or approval of any act shall not be deemed to render unnecessary the
obtaining of Landlord's consent to or approval of any subsequent act by Tenant.
The acceptance of rent hereunder by Landlord shall not constitute a waiver of
any breach by Tenant even if Landlord knows of such breach at the time of
acceptance of such rent. No payment by Tenant or receipt by Landlord of a
lesser amount than the rent then due shall be deemed to be other than on
account of the earliest rent due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord shall accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy in this Lease provided.
SECTION 13.13. RECORDING. Tenant shall not record this Lease without
Landlord's prior written consent and such recordation shall, at the option of
Landlord, constitute a non-curable default of Tenant hereunder. Either party
shall, upon request of the other, execute, acknowledge and deliver to the other
a "short form" memorandum of this Lease for recording purposes.
SECTION 13.14. HOLDING OVER. Tenant shall surrender the Premises
upon the expiration or termination of the Lease as provided for in Section
1.04. Any holdover not consented to by Landlord shall not result in a new
tenancy or interest and, in such case, Landlord may treat Tenant as a
trespasser.
SECTION 13.15. CUMULATIVE REMEDIES. No remedy or election hereunder
shall be deemed exclusive but shall, wherever possible, be cumulative with all
other remedies at law or in equity.
SECTION 13.16. COVENANTS AND CONDITIONS. Each provision of this
Lease performable by Tenant shall be deemed both a covenant and a condition.
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SECTION 13.17. BINDING EFFECT; CHOICE OF LAW. This Lease shall bind
the parties, their heirs, personal representatives, successors and assigns.
This Lease shall be governed by and be construed and interpreted in accordance
with the laws of the State of Wisconsin.
SECTION 13.18. SUBORDINATION. This Lease shall be subject and
subordinate to all mortgages which may now or hereafter affect Landlord's
interest in the Premises, whether such mortgages cover only the Premises or by
blanket mortgage cover other premises in addition to the Premises, and to any
renewals, modifications, consolidations, replacements and extensions thereof,
to the full extent of all amounts secured by the mortgages, provided such
mortgagees agree to respect Tenant's rights to possession of the Premises under
this Lease so long as Tenant is not in default hereunder. Tenant shall, within
ten (10) days after the giving of written notice by Landlord, execute,
acknowledge and deliver to Landlord any certificate that Landlord may request
to confirm such subordination. Tenant shall attorn to and recognize any
purchaser at a foreclosure sale under any mortgage, or any transferee who
acquires Landlord's interest in the Premises by deed in lieu of foreclosure,
and the successors and assigns of such purchasers and transferees, as its
landlord for the unexpired balance (and any extensions, if exercised) of the
term of the Lease upon the same terms and conditions set forth in this Lease.
SECTION 13.19. ATTORNEY'S FEES. If either party brings an action to
enforce the terms of or declare rights under this Lease, the prevailing party
in any such action shall be entitled to recover reasonable costs, attorneys'
fees and expenses.
SECTION 13.20. CORPORATE AUTHORITY. If Tenant is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of said corporation, in accordance with a duly adopted resolution of the
Board of Directors of said corporation, and that this Lease is binding upon
said corporation in accordance with its terms. If Tenant is a corporation,
Tenant shall, within thirty (30) days after execution of this Lease, deliver to
Landlord a certified copy of a resolution of the Board of Directors of said
corporation authorizing or ratifying the execution of this Lease.
SECTION 13.21. MORTGAGE FINANCING. In the event Landlord desires to
obtain mortgage financing and Landlord's mortgagee or mortgagees request
certain mortgage modifications or amendments to this Lease, then Tenant, on
demand, agrees to execute such modifications or amendments as required.
Notwithstanding the foregoing, Tenant shall not be required to execute any
modifications or amendments to this Lease which shall modify the provisions of
this Lease relating to the amount of rent or other charges to be paid by
Tenant, the size of the Premises, the duration of the term of this Lease, or
otherwise subject Tenant to additional cost or expense. Tenant agrees to
cooperate with Landlord's efforts in obtaining said mortgage financing.
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SECTION 13.22. EXPANSION OF BTC. Tenant acknowledges and agrees that
the BTC may, from time to time, be expanded to include additional land,
buildings and improvements. The term "BTC," as used in this Lease, refers to
the BioPharmaceutical Technology Center and any such expansion or enlargement
thereof.
IN WITNESS WHEREOF, Tenant and Landlord have executed this instrument
as of the date set forth above.
PROMEGA CORPORATION ("LANDLORD")
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
OPHIDIAN PHARMACEUTICALS, INC. ("TENANT")
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: President
------------------------------------
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EXHIBIT A
Floor Plan of Premises
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EXHIBIT B
Itemization of Steelcase Furniture
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EXHIBIT C
Schedule of Rents for Original Term and Option Term
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