Exhibit 10.221
LEASE
BY AND BETWEEN
WESTERN CENTER PROPERTIES INC.
AND
PPD DEVELOPMENT, LLC
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ARTICLE 1
TERMS
1.1 Date of Lease : April 30th,
2001
1.2 Landlord : Western Center Properties
Inc., a Wisconsin corporation.
1.3 Landlord’s Address : 8401
Greenway Blvd., Middleton, WI 53562.
1.4 Tenant : PPD Development, LLC,
successor in interest by Conversion from PPD Development,
Inc.
1.5 Tenant’s Address : 3151 South
17 th Street, Wilmington, NC
28412
1.6 Premises Address : 8551 Research Way,
Middleton, WI 53562.
1.7 Length of Original Lease Term : Ten
(10) years and Seven (7) months. As used herein the term
“lease year” shall mean a period of twelve
(12) consecutive months. The initial lease year shall commence
on the Commencement Date as stated below. Each subsequent lease
year shall commence on an annual anniversary of the First
Day.
1.8 Commencement Date : The initial term
of this Lease (“Term”) shall commence on May 1,
2001.
1.9 Termination Date : This lease shall
terminate on November 30, 2011.
1.10 Rent : The initial annual rent
hereunder shall be Nine dollars and seventy cents ($9.70) per
square foot or One hundred thirty-nine thousand seven hundred
sixty-seven dollars and thirty cents ($139,767.30) annually which
sum shall be payable in equal consecutive monthly installments of
Eleven thousand six hundred forty-seven dollars and twenty-seven
cents ($11,647.27).
1.11 Increases in Rent . On each annual
anniversary of the Commencement Date, the rent shall be adjusted
upward by three percent (3%) per annum.
1.12 Rent Commencement : Landlord agrees
that payment of rent shall commence on August 1,
2001.
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ARTICLE 2
CONSTRUCTION
2.1 Premises : Tenant shall occupy within
the Building the area designated on the floor plan attached hereto
as Exhibit “A” consisting of approximately 14,409
square feet (the “Premises”), together with a
non-exclusive right, subject to the provisions hereof, to use all
appurtenances thereunto, including but not limited to, any area and
facilities designated by Landlord for use in common by any other
tenants of the Building. Phase IV of the Greenway Research Center
has on a non-reserved basis approximately 5.4 parking stalls per
1,000 square feet of usable space which should provide adequate
Parking for employees and guests.
2.2 Delivery Date : The premises are
currently ready to begin Tenant Improvements. Tenant shall occupy
the premises as soon as the Tenant Improvements have been
Completed
2.3 Tenant Interior Finish : Tenant shall
have the right to upfit the space to meet Tenant’s needs,
including but not limited to interior Walls, electrical, HVAC
systems, plumbing, etc. Tenant must comply with all applicable
laws, codes, regulations, and A.D.A., as provided in sections 8.2,
8.3, and 8.4. Landlord reserves the right to approve all
contractors, plans, specifications, and all work done. Landlord
shall construct shell building only . Space shall be turned over to
the Tenant for Tenant completion, which includes Tenant
construction of mechanicals and finishes from a shell condition per
plans and specifications of Gary Brink &
Associates.
2.4 Tenant Improvement Allowance :
Landlord will provide Tenant with a tenant improvement allowance
equal to seven dollars ($7.00) per square foot, totaling One
hundred thousand eight hundred sixty-three dollars ($100,863.00).
Tenant will retain a qualified general contractor whose general
conditions, profit and overhead are competitive with current
marketplace for the construction of Tenant’s premises. Tenant
will provide to Landlord copies of all construction contracts,
building permits, and as built architectural drawings. The Tenant
Improvement allowance shall be paid to Tenant upon receipt of final
lien waivers and after inspection.
ARTICLE 3
GRANT AND TERM
3.1 Premises : In consideration of the
rents, terms, covenants and agreements to be performed and observed
by Tenant, as hereinafter set forth, Landlord rents to Tenant and
Tenant rents from Landlord, the Premises together with all rights
and appurtenances belonging to or appertaining thereto and all
improvements flow or hereafter located thereon.
3.2 Lease Term : The term of this Lease
shall be for the term of lease years set forth in Section 1.7.
The term shall commence on the Commencement Date. The original term
shall end at 12:00 a.m. midnight on the Termination Date unless
otherwise terminated earlier hereunder.
3.3 Surrender of Premises : At the
expiration or any termination of this lease, including
any
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applicable Renewal Period, Tenant shall, without
notice or demand, surrender the Premises, reasonable wear and tear
and damage by the elements excepted, and shall surrender all keys
to Landlord. Subject to the provisions of Article 5 hereof, all
alterations, additions and improvements constructed by or on behalf
of Tenant on the Premises and all fixtures shall, upon the
expiration or termination of this lease, become the property of
Landlord provided that Tenant shall have the right, with respect to
any specialty equipment which can be removed, to remove the same,
no matter how installed in the Premises, so long as Tenant repairs
any damage caused by its removal.
ARTICLE 4
RENT
4.1 Rent : During the term of this Lease,
Tenant covenants and agrees to pay to Landlord, in advance, on the
first day of each month at Landlord’s address, without demand
thereof, one-twelfth (1/12th) of the annual rental determined
in accordance with Section 1.10 above (the “Monthly
Rent”), as adjusted pursuant to the terms of Section
1.11.
4.2 Late Charge : Tenant agrees to pay
Landlord a late charge of $150.00 on each monthly rental received
after the tenth of the month plus 18% Percent annual interest on
any outstanding balances.
4.3 Net Basis : Tenant shall pay its
pro-rate share of all non-structural costs, utility expenses,
repairs and maintenance expenses, special assessments, real estate
taxes, building insurance, sales or other taxes (including sales
taxes that may be imposed on the payment of rent), expenses and
obligations of any kind relating to the Premises, excepting
payments required with respect to Landlord’s financing, which
may arise or become due during the term of the Lease. Tenant herein
indemnifies and holds Landlord harmless against such costs, special
assessments (as provided in section 7.2), real estate taxes, sales
or other taxes (other than those based upon income), expenses and
obligations, including its reasonable attorney’s fees, in
enforcing this indemnification.
4.4 Common Area Expenses : Tenant shall
also pay its prorated share (as defined in Section 4.5) of all
Common area utilities, special assessments, real estate taxes,
building insurance, sales or other taxes (including sales taxes
that may be imposed on the payment of rent), repairs and
maintenance costs (including landscape maintenance costs),
management fees ( provided that management fees not be in excess of
reasonable and customary amounts), and water and sewer charges.
Landlord will bill Tenant for common area expenses
monthly.
4.5 Proration : Tenant’s
“prorated share” of the Building is seven point seven
percent (7.7%, 14,409 square feet divided by 187,061 gross square
feet of the Building). In the event that the Building is expanded,
a new prorated percentage shall be calculated by dividing the total
square footage of Tenant’s Premises by the gross square
footage of the Building at the time.
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ARTICLE 5
ALTERATIONS
5.1 Alterations, Improvements and Changes
: Tenant, at its own expense, shall have the right to (the
following hereinafter referred to as “Alterations” or
singularly, as an “Alteration”): alter and/or improve
any improvement hereafter constructed on the Premises; construct
other improvements on the Premises; and make such construction,
alterations, changes and improvements to any such building and/or
other improvements as Tenant may deem necessary. Any Alterations
which involve the structural components of the Premises, its
mechanical/electrical/heating, ventilating and air conditioning
systems, or involve an expenditure of more than ten thousand
dollars ($10,000.00) for a specific Alteration shall be undertaken
only after Landlord has, in writing, consented to such Alteration,
which consent shall not be unreasonably withheld. In all events,
and notwithstanding the foregoing painting, decorating, carpet
replacement and substantially similar cosmetic Alterations shall
not require the consent of Landlord. All Alterations shall be in
full compliance with all deed restrictions and covenants, laws,
ordinances, rules and regulations which may govern the same. Tenant
shall hold Landlord harmless against any loss or damage by reason
of Tenant’s actions taken in accordance with this Section
5.1. During the term of this Lease, Tenant agrees to hold Landlord
harmless from any and all liens that might attach to the Premises
on account of labor performed or material furnished to the Premises
at the direction of Tenant, and agrees to pay or discharge any such
liens within thirty (30) days. Tenant shall not permit any
construction and/or mechanics liens to attach to the leased
premises as a result of any such work. Tenant shall promptly cause
any claim for such lien to be paid and released or Tenant shall be
deemed in default of this Lease. In the event Tenant desires to
contest any such lien, Tenant agrees to provide security to
Landlord in a form and amount determined by Landlord in its sole
discretion pending release of any disputed lien. Tenant shall
provide Landlord with a list of all contractors and subcontractors
who will work on the improvement. Tenant will require the general
contractor and any Subcontractors to provide Landlord with copies
of any notices relating to an intention to file a claim for lien as
well as copies of any actual Claims for Lien. Landlord hereby
subordinates any statutory or common law lien it may have on
Tenant’s personal property and Tenant’s fixtures
located on the Premises to any purchase money lien or other
indebtedness of or security interest granted by Tenant (subject to
the limitation provided below) on any property, fixtures and
special business/office equipment located on the Premises or owned
by a third party who reserves the right of removal under agreement
with Tenant; provided that any removal shall be undertaken so as
not to damage the Premises. Upon removal of any fixtures or
equipment by the Tenant or any third party, the Premises shall be
restored, reasonable wear and tear excepted. Landlord shall from
time to time execute any documents necessary to give effect to such
subordination or waiver of liens, which subordination or waiver
shall obligate the third party (including a creditor of Tenant who
claims, or intends to claim, a security interest in such personal
property or fixtures) to restore the condition of Premises as
described above upon rightful removal of such personal property or
fixtures. Tenant agrees it is not Landlord’s agent in
arranging or contracting for any work to be done or in connection
with the Premises.
5.2 Fixtures and Equipment : Tenant
shall, at its own expense furnish and install such additional
business and trade fixtures and signs in and on the Premises as may
be necessary or desirable for Tenant’s business
(Tenant’s signage shall be subject to the provisions of
Section
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16.1). Such additional fixtures and signs shall
remain the personal property of Tenant and shall be removed by
Tenant at the expiration or termination of this Lease. Upon removal
of such fixtures and signs, Tenant shall restore the Premises to
its condition at the beginning of this lease, reasonable wear and
tear excepted.
ARTICLE 6
MAINTENANCE, REPAIRS AND DESTRUCTION
6.1 No Warranties by Landlord : The
parties acknowledge that Tenant will have, prior to the date of
occupancy, a reasonable opportunity to inspect the Premises, will
have in fact done so, and will be familiar with its physical
condition. Tenant has independently made such other and further
inquiries as it deems necessary or desirable to assure itself of
the suitability of the Premises for Tenant’s intended use.
Landlord does not warranty, either expressed or implied, that the
Premises are suitable for the Tenant’s use. Landlord does
warranty the building shell, as it exists on the date of lease
execution, for a period of one year to be free from any defects in
materials and workmanship. As of the Commencement Date, Landlord
warrants and represents that the Building and Related Improvements,
as well as the Premises to the extent of Landlord’s
construction and to the extent finished by Tenant in accordance
with plans approved by Landlord will comply with the Americans with
Disabilities Act of 1990 (“ADA”), and with applicable
federal, state or local laws, rules, regulations, or ordinances
concerning the Premises (including such laws, rules, regulations or
ordinances that pertain to environmental matters) and that all
construction by Landlord will be done in a good and workmanlike
manner, free of defects, in substantial compliance with government
approved plans and specifications and that all Building Systems
will be in good operating condition. Landlord further agrees that,
notwithstanding the limitations in this Section, Landlord shall
obtain the agreement from contractors constructing the Building and
Related Improvements that Tenant may exercise any rights which
Landlord may have under warranties given by such contractors in
connection with Building and Related Improvements. Notwithstanding
any other provisions herein, throughout the Lease term, Landlord
shall maintain, repair and replace at its sole cost and expense any
part of the Building, Related Improvements, and shared Building
systems, equipment and fixtures constructed or installed by
Landlord.
6.2 Maintenance and Repair
:
(a)Tenant shall, at its own cost and
expense, keep, maintain and repair the Premises, all non-shared
heating, air-conditioning, electrical, ventilating and plumbing
equipment therein, and all appurtenances thereto and shall repair,
restore or replace (at the election of Tenant exercising reasonable
discretion) any such improvements which may become inoperable or be
destroyed or damaged by fire, casualty or any other cause. An
annual service contract shall be entered into with a reputable firm
to inspect and service HVAC equipment as necessary Tenant is
obligated to enter into the said service contract within a
reasonable period of time, from the date of occupancy and provide
Landlord with a copy of said contract and copies of the yearly
maintenance performed.
(b)Tenant shall also pay its
prorated share (as determined in Section 4.5) of common area
snow removal costs, exterior lighting repairs, parking lot repairs,
landscape maintenance and any other common area repairs and
maintenance expenses.
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(c)Tenant shall have the right to
replace items of equipment or fixtures with other items of like
kind and equal or greater quality and, for such purposes, Tenant
may trade in the replaced equipment or fixture. Prior written
approval of Landlord shall be obtained in each such instance, which
approval shall not be unreasonably withheld. Any such replacement
property shall be the sole and exclusive property of Landlord, and
shall not be subject to a lien of any party. Tenant shall comply
with all deed restrictions and all federal, state, county,
municipal and other governmental statutes, ordinances, laws and
regulations affecting the Premises and improvements thereon, or any
activity or condition on or in the Premises.
6.3 Damage or Destruction : In the event
the Premises or any Portion thereof shall be partially or wholly
destroyed or damaged by fire or other casualty to the extent of
less than fifty percent (50%) of the total value of the
Premises as a whole, then Landlord shall promptly restore or
replace the Premises to the condition existing prior to such damage
or destruction; provided such damage and/or destruction is covered
in whole by insurance then in effect (or, if not so covered,
provided that Tenant provides satisfactory evidence to Landlord of
its ability to pay the difference between the available insurance
proceeds and the cost of restoration and/or replacement of the
Premises), and this Lease shall continue in full force and effect.
Tenant may abate rent to the extent that the premises are not
useable. Such restoration shall be commenced Promptly and pursued
by Landlord with reasonable diligence to completion. All insurance
proceeds received by Landlord or Tenant on account of such damage
or destruction shall be applied to payment of said restoration to
the extent that such proceeds will pay the same, with any
deficiency to be paid by Tenant and with any excess insurance
proceeds to be paid to Tenant. To the extent that Landlord’s
mortgagee requires some or all of the insurance proceeds to be
applied to Landlord’s mortgage indebtedness, then in such
event, Landlord shall have the Option to either (i) contribute
said amount of the cost of restoration of the Premises, or
(ii) terminate this Lease, without liability to Tenant for
such termination. Landlord shall elect one of the options specified
in the previous sentence within thirty (30) days after payment
of some or all of the insurance proceeds to Landlord’s
mortgagee. Notwithstanding the foregoing, to the extent the
unavailability or shortfall of insurance proceeds results from
Landlord’s failure to maintain the insurance it is required
to maintain hereunder, Landlord shall contribute money in an amount
equal to the proceeds which would have been available.
In the event the Premises or any
portion thereof shall be destroyed or damaged by fire or other
casualty to the extent of fifty percent (50%) or more of the
total value of the Premises, then Landlord shall have the option,
with Tenant’s consent, which may not be unreasonably
withheld, to either rebuild or replace the Premises or not rebuild
or replace the Premises. If Landlord with the Tenant’s
consent, which may be unreasonably withheld elects to rebuild or
replace the Premises then this Lease shall remain in full force and
effect, and Landlord shall commence said rebuilding or replacement
immediately following the exercise of such option and shall proceed
with the same with reasonable diligence to completion. Rent shall
be equitably reduced until restoration of the Premises is
completed. If Landlord, with Tenant’s consent, which may not
be unreasonably withheld, elects not to rebuild or replace the
premises, then this Lease shall terminate upon the exercise of such
option by Landlord. Landlord shall notify Tenant in writing of the
election to rebuild or replace or not to rebuild or replace the
Premises and obtain Tenant’s consent,
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which may not be unreasonably withheld, to same
within sixty (60) days following the event causing the damage
to or destruction of the Premises. Landlord shall have the sole and
exclusive right of determining the manner in which any insurance
proceeds shall be applied as a result of any fire or other
casualty.
Notwithstanding to the contrary
contained herein, if the Premises leased by the Tenant are more
than fifty percent (50%) destroyed the Tenant shall have the
option to either abate their rent until the Premises are restored
or cancel this lease.
If the Premises are partially or
wholly destroyed or damaged by fire or other casualty, an architect
selected by the Landlord and licensed in the State of Wisconsin
shall determine the extent of damage or destruction and will
provide Landlord with a written determination of the condition of
the Premises.
ARTICLE 7
UTILITIES AND TAXES
7.1 Utilitie s: Tenant shall, during the
term of this Lease, arrange for and fully and Promptly pay for all
water, sewage, gas, heat, light, power, telephone service and other
public utilities of every kind furnished to the Premises and
Landlord has installed meters for same as part of the Building
Shell. Landlord shall be liable for an interruption or failure in
the supply of any utilities only to the extent such interruption or
failure results from the negligent or willful misconduct of
Landlord. Premises shall be connected, on a non-exclusive basis, to
the emergency backup power generator provided for Phase IV of the
Research Center.
Tenant shall also pay its prorated
share (as determined in Section 4.5) of common area
utilities.
7.2 Taxes and Assessments : Tenant agrees
to pay its prorated share of, before delinquency, any and all real
and personal property taxes levied or assessed and which become
payable during the term hereof (commencing with the Commencement
Date) upon the Premises, Building and Related Improvements, whether
said taxes are assessed against Landlord or Tenant. Tenant agrees
to include all alterations, additions or leasehold improvements
made by or for Tenant to the extent allowed by law on
Tenant’s personal property tax return, and if any such
Alteration, addition or leasehold improvement is nevertheless
included in Landlord’s real estate or personal property tax
assessment and bill, Tenant shall reimburse Landlord with respect
thereto. Tenant shall only be responsible for that portion of any
assessments that shall be due and payable during the lease term
(including extensions), assuming the maximum deferment of such
assessments under applicable law. In addition to rental and other
charges to be paid by Tenant hereunder, Tenant shall reimburse
Landlord, upon demand, for any and all taxes assessed against
Landlord (other than income taxes) whether or not now Customary or
within the contemplation of the parties hereto: (i) upon,
allocable to, or measured by or on the rental or other charges
payable hereunder, including, without limitation, any sales or use
tax on such rental, or excise tax levied by the State of Wisconsin,
any political subdivision thereof, or the federal government with
respect to the receipt of such rental or other charges or any other
similar tax; (ii) upon or with respect to the possession,
leasing, operation, management, maintenance alteration, repair, use
or occupancy by Tenant of the
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Premises or any portion thereof; (iii) upon
or measured by the value of the Premises; (iv) upon or
measured by the value of Tenant’s personal property or
leasehold improvements located in the Premises; (v) upon this
transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises; or
(vi) upon Tenant’s energy consumption (collectively
“Taxes”). Tenant shall not have to reimburse Landlord
for any late penalties or default interest arising from the
delinquent payment by Landlord of any of the Taxes described in the
previous sentence.
All Taxes (with the exception of
personal property taxes on Tenant’s personal property) shall
be prorated at the commencement and expiration of the term of this
Lease.
Tenant shall pay to Landlord in
advance on the same dates that monthly installments of rent are
due, an amount equal to one-twelfth (1/12th) of the estimated
pro-rata share (See Section 4.5) of Taxes for the Premises,
and to the extent received by Landlord, Landlord shall apply the
same to the Taxes when or before they come due.
Tenant shall have the right, at its
own cost and expense, to initiate and prosecute any proceedings
permitted by law for the purpose of obtaining an abatement of or
otherwise contesting the validity or amount of Taxes assessed to or
levied upon the Premises and required to be paid against
Landlord’s estate and, if required by law, Tenant may take
such action in the name of Landlord who shall cooperate with Tenant
to such extent as Tenant may reasonably require; provided, however,
that Tenant shall fully indemnify and save Landlord harmless from
all loss, cost, damage and expense incurred by or to be incurred by
Landlord or Tenant as a result thereof.
ARTICLE 8
CONDUCT OF BUSINESS
8.1 Condition and Use : Tenant shall use
the Premises as a laboratory. Tenant may not change Tenant’s
use of the Premises without Landlord’s prior written
approval, which approval shall be granted or withheld in
Landlord’s sole discretion provided that Tenant, upon at
least ten (10) business days prior written notice to Landlord.
No use shall be permitted, or acts done, which will cause a
cancellation of any insurance policy covering the Premises or which
violates any deed restriction or restrictive covenant governing the
Premises. Tenant shall not sell, permit to be kept, used or sold in
or about Premises any article which may be prohibited by the fire
and hazard insurance policies applicable to the Premises. Tenant
shall, at its own expense, comply with all requirements of any
insurance company necessary for the maintenance of insurance
required by this Lease.
8.2 Compliance with Law, etc. : Tenant
shall comply with all applicable deed restrictions, covenants,
laws, ordinances and regulations affecting the use and occupancy of
the Premises. Tenant shall not commit or permit to be committed,
any waste or nuisance on the Premises.
8.3 Compliance with ADA : Landlord
represents and warrants that the Building and Related Improvements
have been constructed to comply with the American with Disabilities
Act (“ADA”).
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Any ADA compliance requirements which come into
effect following the date hereof are Tenant’s sole and
exclusive responsibility. Following the Commencement Date, Tenant
shall comply with the ADA. Within ten (10) days after receipt,
Tenant shall provide Landlord with a copy of any notice alleging
violation of the ADA relating to the Premises; provide written
notice of any claims made or threatened regarding noncompliance
with ADA and relating to the Premises; and provide written notice
of any governmental or regulatory actions or investigations
instituted or threatened regarding noncompliance with the ADA and
relating to the Premises. Except for claims where the final
determiner of facts finds that the Building and Related
Improvements were not initially constructed in compliance with the
ADA, Tenant shall defend all claims, and shall indemnify and hold
Landlord harmless from and against all costs, expenses, losses and
damages, including,