LEASE AGREEMENT BETWEEN GLENBOROUGH FLANDERS PARK, LLC,

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Exhibit 10.1

BETWEEN

GLENBOROUGH FLANDERS PARK, LLC,

a Delaware limited liability company

(“LANDLORD”)

AND

COGENTIX MEDICAL, INC.,

a Delaware corporation

(“TENANT”)

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TABLE OF CONTENTS

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THIS LEASE AGREEMENT (the “Lease”) is made and entered into as of April 2, 2015, by and between GLENBOROUGH FLANDERS PARK, LLC, a Delaware limited liability company (“Landlord”), and COGENTIX MEDICAL, INC., a Delaware corporation (“Tenant”).

The following exhibits and attachments are incorporated into and made a part of the Lease: Exhibit A (Outline and Location of Premises), Exhibit B (Expenses and Taxes), Exhibit C (Work Letter), Exhibit D (Commencement Letter), Exhibit E (Building Rules and Regulations), Exhibit F (Additional Provisions, if required) and Exhibit G (W-9 Form).

1.	Basic Lease Information.

 

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*As referred to above in this Section 1.03, Lease Month 1 shall commence on the Commencement Date and Lease Months 1 - 6 and the Free Base Rent Period shall mean the one hundred eighty (180) day period commencing on the Commencement Date. If the last date of the Free Base Rent Period shall not be the last day of a calendar month, then Lease Month 7 shall be deemed to include the portion of the calendar month in which the last day of the Free Base Rent Period occurs (the “Partial Lease Month 7 Period”) plus the immediately succeeding full calendar month (the “Full Lease Month 7 Period”) and Tenant shall pay the Monthly Base Rent for the Partial Lease Month 7 Period on a prorated basis at the rate of $7,500.00 per month and the full Monthly Base Rent (i.e., $7,500.00) for the Full Lease Month 7 Period. Notwithstanding the foregoing to the contrary (a) the Rentable Square Footage of the Premises set forth in the above Base Rent chart is only being stated therein at various amounts for purposes of establishing the Base Rent due for the referenced periods and not as an indication of what the actual Rentable Square Footage of the Premises is at any given time, which shall be 24,400 square feet for all other purposes under this Lease, (b) Tenant shall be responsible for the payment of all Expenses and Taxes under Exhibit B for and during the Free Base Rent Period, (c) Tenant shall be responsible for the payment of all utilities consumed by Tenant in the Premises during the Free Base Rent Period, and (d) in the event that this Lease is terminated due to the occurrence of a Default (as hereinafter defined) by Tenant, Landlord shall have the right to recover the Base Rent that would have otherwise been payable by Tenant during the Free Base Rent Period as part of Landlord’s damages under this Lease.

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Glenborough Flanders Park, LLC

c/o Normandy Real Estate Management, LLC

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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇

And a copy to:

Glenborough Flanders Park, LLC

c/o Normandy Real Estate Management, LLC

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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attn: General Counsel

And a copy to:

▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP

Seaport West

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Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.

Landlord’s Rent Address:

Glenborough Flanders Park, LLC

c/o Normandy Real Estate Management, LLC

▇.▇. ▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇

 

Tenant’s Notice Address:

Tenant at the Building with a copy to:

Cogentix Medical, Inc.

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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attn: Chief Executive Officer

 

With a copy (which shall not constitute notice) to:

▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.

General Counsel

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2.	Lease Grant.

The Premises are hereby leased to Tenant from Landlord, together with the right to use any portions of the Building and Property that are from time to time designated by Landlord for the common use of tenants and others (the “Common Areas”). Nothing contained herein shall affect Landlord’s right to add to, subtract from, or alter the Common Areas, so long as the same does not materially adversely affect Tenant’s access to the Premises. Landlord may adopt any name for the Building and Landlord reserves the right to change the name or address of the Building at any time; provided, that, Landlord shall use reasonable efforts to notify Tenant at least ninety (90) days prior to any such change of address.

Subject to force majeure and Tenant’s adherence to after hours access procedures and security or other monitoring procedures as Landlord may reasonably require, Tenant shall have access to and use of the Premises twenty-four (24) hours per day and three hundred sixty-five (365) days per year.

3.	Adjustment of Commencement Date; Possession.

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(b) Landlord represents and warrants to Tenant that, as of the date of this Lease: (i) Landlord has full power and authority to enter into this Lease and the person executing this Lease on behalf of Landlord is authorized to do so; (ii) there are no Mortgages (defined in Section 22.01) which in any way prohibit or interfere with the Permitted Use of the Premises by Tenant and Landlord shall not permit or suffer any such Mortgages to encumber the Building which would prohibit or interfere with such Permitted Use; and (iii) Landlord has not received any written notice from any governmental authority that the Building is in violation of applicable Laws (defined in Section 5).

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4.

Rent.

Tenant shall pay Tenant’s Pro Rata Share of Taxes and Tenant's Pro Rata Share of Expenses in accordance with Exhibit B of this Lease.

5.	Compliance with Laws; Use.

The Premises shall be used for the Permitted Use and for no other use whatsoever. Tenant shall comply with all statutes, codes, ordinances, orders, rules and regulations of any municipal or governmental entity whether in effect now or later, including the Americans with Disabilities Act (the “Law(s)”), regarding the Premises or the operation of Tenant’s business and the use, condition, configuration, and occupancy of the Premises and any mechanical systems serving the Premises to the extent applicable. In addition, Tenant shall, at its sole cost and expense, promptly comply with any Laws that relate to the “Base Building” (defined below) or Alterations (as defined in Article 9) or improvements in the Premises performed or requested by Tenant. “Base Building” shall include the structural portions of the Building, and the Building non-space specific mechanical, electrical and plumbing systems and equipment located in the internal core of the Building. Tenant shall promptly provide Landlord with copies of any notices it receives regarding an alleged violation of Law. Landlord shall promptly provide Tenant with copies of any notices it receives regarding an alleged violation of Law to the extent such notice affects the Premises or Tenant’s operations at the Premises. Tenant shall comply with the rules and regulations of the Building attached as Exhibit E and such other reasonable rules and regulations adopted by Landlord from time to time, including rules and regulations for the performance of Alterations (collectively, the “Rules and Regulations”).

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6.	Security Deposit.

The Security Deposit shall be delivered to Landlord upon the execution of this Lease by Tenant and held by Landlord without liability for interest (unless required by Law) as security for the performance of Tenant’s obligations. The Security Deposit is not an advance payment of Rent or a measure of damages. Landlord may use all or a portion of the Security Deposit to cure any Default by Tenant, including, without limitation, in connection with any Monetary Default (defined in Section 18). If Landlord uses any portion of the Security Deposit, Tenant shall, within five (5) days after demand, restore the Security Deposit to its original amount. Landlord shall return any unapplied portion of the Security Deposit to Tenant within forty-five (45) days after the later to occur of: (a) determination of the final Rent due from Tenant; or (b) the later to occur of the Termination Date or the date Tenant surrenders the Premises to Landlord in compliance with Article 24. Landlord may assign the Security Deposit to a successor or transferee and, following the assignment, Landlord shall have no further liability for the return of the Security Deposit. Landlord shall not be required to keep the Security Deposit separate from its other accounts.

7.	Utilities; Service Interruption.

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Landlord reserves the right at any time and from time to time before or during the Term to contract with an electric service provider (the “Electric Service Provider”) of its choice to provide electricity service for the Building; provided, that, the rates offered by such Electric Service Provider are materially consistent with those in the general area of the Building, and that no rebates or other benefits are payable to Landlord, except to the extent shared pro rata by Landlord with Tenant. Tenant shall cooperate with Landlord and the Electric Service Provider at all times and, as reasonably necessary, shall allow Landlord and the Electric Service Provider reasonable access to the Building’s electric lines, feeders, risers, wiring and other machinery within the Premises.

8.	Leasehold Improvements.

All improvements in and to the Premises (but excluding Tenant’s furniture, trade fixtures, signage and equipment), including any Alterations (collectively, “Leasehold Improvements”) shall remain upon the Premises at the end of the Term without compensation to Tenant. Landlord, however, by written notice to Tenant at least thirty (30) days prior to the Termination Date, may require Tenant, at its expense, to remove (a) any Cable (defined in Section 9.01) installed by or for the benefit of Tenant, and (b) any Alterations (including, without limitation, the Tenant’s Work) that, in Landlord’s reasonable judgment, are of a nature that would require removal and repair costs that are materially in excess of the removal and repair costs associated with standard office and manufacturing improvements (collectively referred to as “Required Removables”). Required Removables shall include, without limitation, internal stairways, raised floors, vaults, rolling file systems and structural alterations and modifications. The designated Required Removables shall be removed by Tenant before the Termination Date. Tenant shall repair damage caused by the installation or removal of Required Removables. If Tenant fails to perform its obligations in a timely manner, Landlord may perform such work at Tenant’s expense. Tenant, at the time it requests approval for a proposed Alteration, may request in writing that Landlord advise Tenant whether the Alteration or any portion of the Alteration is a Required Removable. Within ten (10) days after receipt of Tenant’s request, Landlord shall advise Tenant in writing as to which portions of the Alteration are Required Removables. However, it is agreed that Required Removables shall not include any usual office or manufacturing improvements such as gypsum board, partitions, ceiling grids and tiles, floor tiles, fluorescent lighting panels, HVAC equipment, Building standard doors and non-glued down carpeting.

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9.	Repairs and Alterations.

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10.	Entry by Landlord.

Landlord may enter the Premises to inspect, show the Premises or to perform or facilitate the performance of repairs, alterations or additions to the Premises or any portion of the Building. Except in the case of emergencies, Landlord agrees to follow reasonable and customary protocols of which Landlord has prior written notice when entering Tenant’s so-called “clean room” areas, whether or not during normal business hours. Except in emergencies or to provide Building services, Landlord shall (a) provide Tenant with reasonable prior verbal notice of entry, (b) use reasonable efforts to minimize any interference with Tenant’s use of the Premises, and (c) provide Tenant with a reasonable opportunity to have a representative of Tenant present during such entry. If reasonably necessary, Landlord may temporarily close all or a portion of the Premises to perform repairs, alterations and additions. However, except in emergencies, Landlord will not close the Premises if the work can reasonably be completed on weekends and after Building Service Hours. Entry by Landlord shall not constitute a constructive eviction or entitle Tenant to an abatement or reduction of Rent.

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11.	Assignment and Subletting.

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12.

Liens.

Tenant shall not permit mechanics’ or other liens to be placed upon the Property, Premises or Tenant’s leasehold interest in connection with any work or service done or purportedly done by or for the benefit of Tenant or its transferees. Tenant shall give Landlord notice at least fifteen (15) days prior to the commencement of any work in the Premises to afford Landlord the opportunity, where applicable, to post and record notices of non-responsibility. Tenant, within ten (10) days of notice from Landlord, shall fully discharge any lien by settlement, by bonding or by insuring over the lien in the manner prescribed by the applicable lien Law. If Tenant fails to do so, Landlord may bond, insure over or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount paid by Landlord, including, without limitation, reasonable attorneys’ fees. Landlord shall have the right to require Tenant to post a performance or payment bond in connection with any work or service done or purportedly done by or for the benefit of Tenant. Tenant acknowledges and agrees that all such work or service is being performed for the sole benefit of Tenant and not for the benefit of Landlord.

13.	Indemnity and Waiver of Claims.

Tenant indemnifies Landlord and its trustees, members, principals, beneficiaries, partners, officers, directors, employees, Mortgagees (defined in Article 22) and agents (the “Landlord Related Parties”) from claims for injury to or death of persons or damage to property in any manner related to: (a) acts of third parties engaged by or at the direction of Tenant (other than Landlord, or any agent or contractor of Landlord); or (b) the inadequacy or failure of any security services, personnel or equipment used or controlled by Tenant. In addition to the foregoing, Tenant agrees that Landlord shall have no responsibility or liability whatsoever for any loss or damage, however caused, to Alterations, Leasehold Improvements, furnishings, fixtures, equipment, or other personal property of Tenant or of any persons claiming by, through, or under Tenant or of any resulting loss of income associated with any such loss or damage. Notwithstanding anything to the contrary set forth in this Article 13, any insurance deductibles or self-insured retentions shall be considered insurance for all purposes under this Article 13 and the waiver hereunder shall apply to the same.

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Except to the extent caused by the negligence or willful misconduct of Landlord or any of Landlord’s contractors, employees, or agents, and subject to the terms and provisions of Section 15, Tenant shall indemnify, defend and hold Landlord and Landlord Related Parties harmless against and from liabilities, obligations, damages, penalties, claims, actions, costs, charges and expenses, including, without limitation, reasonable attorneys’ fees and other professional fees (if and to the extent permitted by Law) (collectively referred to as “Losses”), which may be imposed upon, incurred by or asserted against Landlord or any of the Landlord Related Parties by any third party and arising out of or in connection with any damage to personal property or physical injury occurring in the Premises or any acts or omissions (including violations of Law) of Tenant, the Tenant Related Parties or any of Tenant’s transferees, contractors, licensees, employees or agents. Except to the extent caused by the negligence or willful misconduct of Tenant or any Tenant Related Parties or any of Tenant’s transferees, contractors, licensees, employees or agents, and subject to the terms and provisions of Section 15, Landlord shall indemnify, defend and hold Tenant, its trustees, members, principals, beneficiaries, partners, officers, directors, and employees (“Tenant Related Parties”) harmless against and from all Losses which may be imposed upon, incurred by or asserted against Tenant or any of the Tenant Related Parties by any third party and arising out of or in connection with the acts or omissions (including violations of Law) of Landlord or any of Landlord’s contractors, employees or agents.

14.	Insurance.

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15.	Subrogation.

Landlord and Tenant agree to have all property insurance policies which are required to be carried by either of them hereunder endorsed to provide that the insurer waives all rights of subrogation which such insurer might have against the other party and Landlord’s mortgagee, if any. By this clause, the parties intend and hereby agree that the risk of loss or damage to property shall be borne by the parties’ insurance carriers. It is hereby agreed that Landlord and Tenant shall look solely to, and seek recovery from, only their respective insurance carriers in the event a loss is sustained for which Property Insurance is carried or is required to be carried under this Lease. Without limiting any release or waiver of liability or recovery contained in any other Section of this Lease but rather in confirmation and furtherance thereof, Landlord waives all claims for recovery from Tenant, and Tenant waives all claims for recovery from Landlord, and their respective agents, partners and employees, for any loss or damage to any of its property insured under the insurance policies required hereunder including but not limited to any business interruption, loss of income or special, indirect or consequential damages; subject, however, to Tenant’s liability for such damages under the last sentence of Section 21 in the event of a holdover by Tenant. Notwithstanding anything to the contrary set forth in this Article 15, any insurance deductibles or self-insured retentions shall be considered insurance for all purposes under this Article 15 and the waiver hereunder shall apply to the same. The provisions of this Section 15 will survive the expiration or earlier termination of this Lease.

16.	Casualty Damage.

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17.	Condemnation.

Either party may terminate this Lease if any material part of the Premises is taken or condemned for any public or quasi public use under Law, by eminent domain or private purchase in lieu thereof (a “Taking”). Landlord shall also have the right to terminate this Lease if there is a Taking of any portion of the Building or Property which would have a material adverse effect on Landlord’s ability to profitably operate the remainder of the Building. The terminating party shall provide written notice of termination to the other party within forty-five (45) days after it first receives notice of the Taking. The termination shall be effective on the date the physical taking occurs. If this Lease is not terminated, Base Rent and Tenant’s Pro Rata Share shall be appropriately adjusted to account for any reduction in the square footage of the Building or Premises. All compensation awarded for a Taking shall be the property of Landlord; provided, however that Tenant may file a separate claim for Tenant’s Property and Tenant’s relocation expenses.

18.	Events of Default.

Each of the following occurrences shall be a “Default”: (a) Tenant’s failure to pay any portion of Rent when due, if the failure continues for five (5) days after written notice to Tenant (“Monetary Default”); (b) Tenant’s failure (other than a Monetary Default) to comply with any term, provision, condition or covenant of this Lease, if the failure is not cured within thirty (30) days after written notice to Tenant provided, however, if Tenant’s failure to comply cannot reasonably be cured within thirty (30) days, Tenant shall be allowed additional time (not to exceed ninety (90) days) as is reasonably necessary to cure the failure so long as Tenant begins the cure within ten (10) days after such notice to Tenant and diligently pursues the cure to completion; (c) Tenant becomes insolvent, makes a transfer in fraud of creditors, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts when due or forfeits or loses its right to conduct business; (d) the leasehold estate is taken by process or operation of Law; or (e) Tenant does not take possession of or abandons all or any portion of the Premises. If Landlord provides Tenant with notice of Tenant’s failure to comply with any specific provision of this Lease on three (3) separate occasions during any twelve-(12)-month period, Tenant’s subsequent violation of such provision shall, at Landlord’s option, be an incurable Default by Tenant. All notices sent under this Article shall be in satisfaction of, and not in addition to, notice required by Law.

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19.

Remedies.

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20.	Limitation of Liability.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) SHALL BE LIMITED TO LANDLORD’S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST LANDLORD OR ANY LANDLORD RELATED PARTY. NEITHER TENANT, LANDLORD, NOR ANY LANDLORD RELATED PARTY OR TENANT RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY, AND IN NO EVENT SHALL TENANT OR LANDLORD OR ANY LANDLORD OR TENANT RELATED PARTY OR ANY MORTGAGEES BE LIABLE FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS OR ANY FORM OF SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGE, EXCEPT AS PROVIDED FOR TENANT IN THE CASE OF A HOLDOVER BY TENANT AS PROVIDED UNDER THE LAST SENTENCE OF SECTION 21. BEFORE FILING SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES (DEFINED IN ARTICLE 23 BELOW), NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT’S INTENDED COMMERCIAL PURPOSE, AND TENANT’S OBLIGATION TO PAY RENT HEREUNDER IS NOT, EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED HEREIN, DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.

21.	Holding Over.

If Tenant fails to surrender all or any part of the Premises at the termination of this Lease, occupancy of the Premises after termination shall be that of a tenancy at sufferance. Tenant’s occupancy shall be subject to all the terms and provisions of this Lease and Tenant shall pay an amount (on a per month basis without reduction for partial months during the holdover) equal to one hundred fifty percent (150%) of the sum of the Base Rent and Additional Rent due for the period immediately preceding the holdover. No holdover by Tenant or payment by Tenant after the termination of this Lease shall be construed to extend the Term or prevent Landlord from immediate recovery of possession of the Premises by summary proceedings or otherwise. If Landlord is unable to deliver possession of the Premises to a new tenant or to perform improvements for a new tenant as a result of Tenant’s holdover, Tenant shall be liable for all damages that Landlord suffers from the holdover.

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22.	Subordination to Mortgages; Estoppel Certificate.

23.

Notice.

All demands, approvals, consents or notices (collectively referred to as a “notice”) shall be in writing and delivered by hand or sent by registered or certified mail with return receipt requested or sent by overnight or same day courier service at the party’s respective Notice Address(es) set forth in Article 1. Each notice shall be deemed to have been received on the earlier to occur of actual delivery or the date on which delivery is refused, or, if Tenant has vacated the Premises or any other Notice Address of Tenant without providing a new Notice Address, three (3) days after notice is deposited in the U.S. mail or with a courier service in the manner described above. Either party may, at any time, change its Notice Address (other than to a post office box address) by giving the other party written notice of the new address.

24.	Surrender of Premises.

At the termination of this Lease or Tenant’s right of possession, Tenant shall remove Tenant’s Property from the Premises, and quit and surrender the Premises to Landlord, broom clean, and in good order, condition and repair, ordinary wear and tear and damage which Landlord is obligated to repair hereunder excepted. If Tenant fails to remove any of Tenant’s Property within ten (10) days after termination of this Lease or Tenant’s right to possession, Landlord, at Tenant’s sole cost and expense, shall be entitled (but not obligated) to remove and store Tenant’s Property. Landlord shall not be responsible for the value, preservation or safekeeping of Tenant’s Property. Tenant shall pay Landlord, upon demand, the expenses and storage charges incurred. If Tenant fails to remove Tenant’s Property from the Premises or storage, within thirty (30) days after notice, Landlord may deem all or any part of Tenant’s Property to be abandoned and title to Tenant’s Property shall vest in Landlord.

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25.	Miscellaneous.

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26.	OFAC Compliance.

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27.

Parking.

Landlord shall provide non-reserved vehicle access to the surface parking lot areas on the Property in areas designated by Landlord from time-to-time at a ratio of three (3) vehicle spaces per each 1,000 rentable square feet of the Premises (i.e., non-reserved parking for seventy-three (73) motor vehicles based upon the Tenant’s occupancy of 24,400 rentable square feet; the foregoing referred to herein as “Tenant’s Parking”). Tenant’s Parking shall be non-transferable (directly or indirectly) to any other institutions, entities or individuals. Overnight parking (other than a limited number of such Tenant’s Parking spaces for delivery or other service vehicles or for Tenant employees working the overnight shift or travelling for or on behalf of Tenant for a reasonable duration of time in connection with such purposes) at the Building or on the Property shall be strictly prohibited.

Landlord shall not be responsible for money, jewelry, automobiles or other personal property lost in or stolen from the parking lot. Landlord shall not be liable for any loss, injury or damage to persons using the parking lot or automobiles or other property thereon, it being agreed that, to the fullest extent permitted by law, the use of the parking lot and the parking spaces shall be at the sole risk of Tenant and its employees. Except for emergency repairs, Tenant and its employees shall not perform any work on any automobiles while located in the parking lot.

Tenant’s Parking shall be subject to such reasonable rules and regulations therefor as may be set and changed with reasonable prior notice by the Landlord from time to time and uniformly enforced by Landlord during the Term. Landlord agrees that such rules and regulations shall be established and applied by Landlord in a non-discriminatory fashion, such that all rules and regulations shall be generally applicable to all other tenants of the Building of a similar nature of Tenant. Tenant’s Parking is non-assignable and intended solely for the use of Tenant’s employees working from and business invitees to the Premises; and as such Tenant shall not offer them for “use” or “license” to any other entity, the general public, or any other tenants of the Building. All such appurtenant rights for parking as set forth in this Article are automatically terminated upon termination of this Lease, and shall have no separate independent validity or legal standing. Landlord reserves the right to relocate and/or temporarily close any or all of the parking facilities to the extent necessary in the event of a casualty or governmental taking or for maintenance and repairs of the parking facility provided Landlord shall reopen the same or provide replacement parking facilities as soon as practicable thereafter. Landlord shall use reasonable efforts to minimize interference with Tenant’s business operations at the Premises in connection with any such maintenance, repair, replacement, improvement and/or work which Landlord is obligated to perform or desires to perform, in and to the parking facility and/or the Premises pursuant to the terms, covenants, conditions, provisions and agreements of this Lease.

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28.	Request for Taxpayer Identification Number and Certification (W-9 Form).

Tenant shall, at the time that Tenant executes and delivers this Lease to Landlord, execute a W-9 Form, in the form attached hereto as Exhibit G.

[SIGNATURES ON FOLLOWING PAGE]

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Landlord and Tenant have executed this Lease as of the day and year first above written.

 

	LANDLORD:
	GLENBOROUGH FLANDERS PARK, LLC,
	a Delaware limited liability company
	By:	/s ▇▇▇▇▇▇ ▇▇▇▇▇
	Name:	▇▇▇▇▇▇ ▇▇▇▇▇
	Title:	Vice President
	TENANT:
	COGENTIX MEDICAL, INC., a Delaware corporation
	By:	/s ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Title:	SVP and CFO
	Tenant’s Tax ID Number (SSN or FEIN)

 

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EXHIBIT A

This plan is intended only to show the general outline of the Premises as of the date of this Lease. Any depiction of interior windows, walls, cubicles, modules, furniture and equipment on this plan is for illustrative purposes only, but does not mean that such items exist. Landlord is not required to provide, install or construct any such items. It does not in any way supersede any of Landlord’s rights set forth in this Lease with respect to arrangements and/or locations of public parts of the Building. It is not necessarily to scale; any measurements or distances shown should be taken as approximate. The inclusion of elevators, stairways, electrical and mechanical closets, and other similar facilities for the benefit of occupants of the Building does not mean such items are part of the Premises.

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EXHIBIT B

This Exhibit is attached to and made a part of the Lease by and between Glenborough Flanders Park, LLC, a Delaware limited liability company (“Landlord”), and Cogentix Medical, Inc, a Delaware corporation (“Tenant”), for space in the Building located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.

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It is understood that Expenses shall be reduced by all cash discounts, trade discounts or quantity discounts received by Landlord in the purchase of any goods, utilities or services in connection with the operation of the Building.

In no event shall the aggregate of proportionate shares of all of the tenants and occupants of the Building exceed one hundred (100%) percent.

All contracts and other agreements entered into by Landlord relating to Expenses shall be so-called “arms length.”

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If any Taxes (including assessments) are payable in installments, then Tenant shall only be liable and responsible for those installments which occur during the Term of this Lease.

To the extent possible and permissible, Landlord agrees to pay all Taxes (including assessments) over the longest period permitted by applicable Law.

Landlord represents and warrants to Tenant that, as of the date hereof: (A) Landlord has not received any written notice from any governmental or quasi-governmental authority imposing any special assessments against the Building; and (B) the Building is not located in any business improvement district or special economic redevelopment/incentive zone.

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EXHIBIT C

This Exhibit is attached to and made a part of the Lease by and between Glenborough Flanders Park, LLC, a Delaware limited liability company (“Landlord”), and Vision Sciences, Inc., a Delaware corporation (“Tenant”), for space in the Building located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.

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EXHIBIT D

 

Re:

Commencement Letter with respect to that certain Lease dated as of the _____ day of April, 2015, by and between Glenborough Flanders Park, LLC, a Delaware limited liability company, as Landlord, and Cogentix Medical, Inc., a Delaware corporation, as Tenant, for approximately 24,400 rentable square feet on the first (1st) floor of the Building located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.

In accordance with the terms and conditions of the above referenced Lease, Tenant accepts possession of the Premises and agrees:

Please acknowledge your acceptance of possession and agreement to the terms set forth above by signing all 3 counterparts of this Commencement Letter in the space provided and returning 2 fully executed counterparts to my attention.

Sincerely,

___________________________________

Authorized Signatory

Agreed and Accepted:

Tenant:

COGENTIX MEDICAL, INC., a Delaware corporation

By:     _______________________________________

Name:_______________________________________

Title:  _______________________________________

Date:  _______________________________________

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EXHIBIT E

The following Rules and Regulations shall apply, where applicable, to the Premises, the Building, the parking facilities (if any), the Property and the appurtenances. In the event of a conflict between the following Rules and Regulations and the remainder of the terms of the Lease, the remainder of the terms of the Lease shall control. Capitalized terms have the same meaning as defined in the Lease.

1.

Sidewalks, doorways, vestibules, halls, stairways and other similar areas shall not be obstructed by Tenant or used by Tenant for any purpose other than ingress and egress to and from the Premises. No rubbish, litter, trash, or material shall be placed, emptied, or thrown in those areas. At no time shall Tenant permit Tenant’s employees to loiter in Common Areas or elsewhere about the Building or Property.

2.

Plumbing fixtures and appliances shall be used only for the purposes for which designed and no sweepings, rubbish, rags or other unsuitable material shall be thrown or placed in the fixtures or appliances. Damage resulting to fixtures or appliances by Tenant, its agents, employees or invitees shall be paid for by Tenant and Landlord shall not be responsible for the damage.

3.

No signs, advertisements or notices shall be painted or affixed to windows, doors or other parts of the Building, except those of such color, size, style and in such places as are first approved in writing by Landlord. All tenant identification and suite numbers at the entrance to the Premises shall be installed by Landlord, at Tenant’s cost and expense, using the standard graphics for the Building. Except in connection with the hanging of lightweight pictures and wall decorations, no nails, hooks or screws shall be inserted into any part of the Premises or Building except by the Building maintenance personnel without Landlord’s prior approval, which approval shall not be unreasonably withheld.

4.	Intentionally Omitted.

5.

Tenant shall not place any lock(s) on any door in the Premises or Building without Landlord’s prior written consent, which consent shall not be unreasonably withheld, and Landlord shall have the right at all times to retain and use keys or other access codes or devices to all locks within and into the Premises. A reasonable number of keys to the locks on the entry doors in the Premises shall be furnished by Landlord to Tenant at Tenant’s cost and Tenant shall not make any duplicate keys. All keys shall be returned to Landlord at the expiration or early termination of the Lease.

6.

All contractors, contractor’s representatives and installation technicians performing work in the Building shall be subject to Landlord’s prior approval, which approval shall not be unreasonably withheld, and shall be required to comply with Landlord’s standard rules, regulations, policies and procedures, which may be revised from time to time. Landlord has no obligation to allow any particular telecommunication service provider to have access to the Buildings or to the Premises. If Landlord permits access, Landlord may condition the access upon the payment to Landlord by the service provider of fees assessed by Landlord in Landlord’s sole discretion.

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7.

Movement in or out of the Building of furniture or office equipment, or dispatch or receipt by Tenant of merchandise or materials requiring the use of elevators, stairways, lobby areas or loading dock areas, shall be restricted to hours reasonably designated by Landlord only if Tenant occupies less than 100% of the Building. Tenant shall obtain Landlord’s prior approval by providing a detailed listing of the activity, which approval shall not be unreasonably withheld. If approved by Landlord, the activity shall be under the supervision of Landlord, without unreasonable delay, and performed in the manner required by Landlord. Tenant shall assume all risk for damage to articles moved and injury to any persons resulting from the activity. If equipment, property, or personnel of Landlord or of any other party is damaged or injured as a result of or in connection with the activity, Tenant shall be solely liable for any resulting damage, loss or injury.

8.

Landlord shall have the right to approve the weight, size, or location of heavy equipment or articles in and about the Premises, which approval shall not be unreasonably withheld. Damage to the Building by the installation, maintenance, operation, existence or removal of Tenant’s Property shall be repaired at Tenant’s sole expense.

9.	Corridor doors, when not in use, shall be kept closed.

10.

Tenant shall not: (1) make or permit any improper, objectionable or unpleasant noises or odors in the Building, or otherwise interfere in any way with other tenants or persons having business with them; (2) solicit business or distribute or cause to be distributed, in any portion of the Building, handbills, promotional materials or other advertising; or (3) after notice conduct or permit other activities in the Building that might, in Landlord’s sole reasonable opinion, constitute a nuisance.

11.	No animals, except those assisting handicapped persons, shall be brought into the Building or kept in or about the Premises.

12.

No inflammable, explosive or dangerous fluids or substances shall be used or kept by Tenant in the Premises, Building or about the Property, except for those substances as are typically found in similar premises used for (a) general office, and (b) subject to Landlord’s reasonable approval following Tenant’s submission to Landlord of a reasonably detailed list of such substances, medical device testing and manufacturing purposes; provided, that, in each case, such substances are being used by Tenant in a safe manner and in accordance with all applicable Laws. Tenant shall not, without Landlord’s prior written consent, use, store, install, spill, remove, release or dispose of, within or about the Premises or any other portion of the Property, any asbestos-containing materials or any solid, liquid or gaseous material now or subsequently considered toxic or hazardous under the provisions of 42 U.S.C. Section 9601 et seq., M.G.L. c. 21C, M.G.L. c. 21E or any other applicable environmental Law which may now or later be in effect. Tenant shall comply with all Laws pertaining to and governing the use of these materials by Tenant and shall remain solely liable for the costs of abatement and removal.

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▇▇.	Tenant shall not use or occupy the Premises in any manner or for any purpose which might injure the reputation or impair the present or future value of the Premises or the Building. Tenant shall not use, or permit any part of the Premises to be used for lodging, sleeping or for any illegal purpose.

14.

Tenant shall not take any action which would violate Landlord’s labor contracts or which would cause a work stoppage, picketing, labor disruption or dispute or interfere with Landlord’s or any other tenant’s or occupant’s business or with the rights and privileges of any person lawfully in the Building (“Labor Disruption”). Tenant shall take the actions necessary to resolve the Labor Disruption, and shall have pickets removed and, at the request of Landlord, immediately terminate any work in the Premises that gave rise to the Labor Disruption, until Landlord gives its written consent for the work to resume. Tenant shall have no claim for damages against Landlord or any of the Landlord Related Parties nor shall the Commencement Date of the Term be extended as a result of the above actions.

15.

Tenant shall not install, operate or maintain in the Premises or in any other area of the Building, electrical equipment that would overload the electrical system beyond its capacity for proper, efficient and safe operation as determined solely by Landlord. Tenant shall not furnish cooling or heating to the Premises, including, without limitation, the use of electronic or gas heating devices, without Landlord’s prior written consent. Tenant shall not use more than its proportionate share of telephone lines and other telecommunication facilities available to service the Building.

16.

Tenant shall not operate or permit to be operated a coin or token operated vending machine or similar device (including, without limitation, telephones, lockers, toilets, scales, amusement devices and machines for sale of beverages, foods, candy, cigarettes and other goods), except for machines for the exclusive use of Tenant’s employees and invitees.

17.	Bicycles and other vehicles are not permitted inside the Building or on the walkways outside the Building, except in areas designated by Landlord.

18.	Landlord may from time to time adopt systems and procedures for the security and safety of the Building, its occupants, entry, use and contents. Tenant, its agents, employees, contractors, guests and invitees shall comply with Landlord’s systems and procedures.

19.

Landlord shall have the right to prohibit the use of the name of the Building or any other publicity by Tenant that in Landlord’s sole opinion may impair the reputation of the Building or its desirability. Upon written notice from Landlord, Tenant shall refrain from and discontinue such publicity immediately.

20.

Neither Tenant nor its agents, employees, contractors, guests or invitees shall smoke or permit smoking in the Common Areas, unless a portion of the Common Areas have been declared a designated smoking area by Landlord, nor shall the above parties allow smoke from the Premises to emanate into the Common Areas or any other part of the Building. Landlord shall have the right to designate the Building (including the Premises) as a non-smoking building.

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21.

Landlord shall have the right to designate and approve standard window coverings for the Premises and to establish rules to assure that the Building presents a uniform exterior appearance. Tenant shall ensure, to the extent reasonably practicable, that window coverings are closed on windows in the Premises while they are exposed to the direct rays of the sun.

22.

Deliveries to and from the Premises shall be made during normal business hours or otherwise only at the times in the areas and through the entrances and exits reasonably designated by Landlord. Tenant shall not make deliveries to or from the Premises in a manner that might interfere with the use by any other tenant of its premises or of the Common Areas, any pedestrian use, or any use which is inconsistent with good business practice.

23.

Tractor trailers which must be unhooked or parked must use steel plates under dolly wheels to prevent damage to asphalt paving surface. In addition, wheel blocking must be available for use. Tractor trailers are to be removed from the loading areas after unloading. No parking or storing of such trailers will be permitted at the Building or the Property.

24.	No antennae or satellite dishes or other equipment shall be erected on the roof or exterior walls of the Building or the Premises without the prior written consent of Landlord.

25.

Tenant shall not permit or suffer merchandise of any kind at any time to be placed, exhibited or displayed outside its Premises, nor shall Tenant use the exterior sidewalks or exterior walkways of its Premises to display, store or place any merchandise. No sale of merchandise by tenant sale, truck load sale or the like, shall be permitted in the parking areas or other Common Areas.

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EXHIBIT F

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EXHIBIT G

[SEE ATTACHED]

 

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