Exhibit 10.5
STATE OF GEORGIA
COUNTY OF FULTON:
RENTAL AGREEMENT
THIS RENTAL AGREEMENT (hereinafter
referred to as “Agreement”), is made and entered into
as of this August 17, 2005, (hereinafter referred to as the
“Effective Date”), by and between Georgia Advanced
Technology Ventures , (hereinafter referred to as
“Landlord”), whose address for purposes of this
Agreement is 75 Fifth Street, NW, Atlanta, Georgia 30308 and,
CardioMems, Inc , (hereinafter referred to as
“Tenant”), whose address for purposes of this Agreement
is 75 Fifth Street NW, Atlanta, GA 30308 suite 440.
WITNESSETH:
PREMISES
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1.1
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For and in
consideration of the rental, terms, provisions and conditions
hereinafter set forth to be kept and performed by Tenant, Landlord
hereby rents unto Tenant, and Tenant hereby takes and hires from
Landlord, upon the terms, provisions, and conditions hereinafter
set forth, the following described real property (hereinafter
referred to as “Premises”):
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Suite – 440 5246 rentable
square feet of office space
(Measured per BOMA standards based
on an 18% common area factor)
in the building known as the ATDC
Headquarters at Centergy One located at 75 Fifth Street, N.W.,
Atlanta, Georgia 30308. Tenant shall have reasonable access to
restrooms, conference rooms, and loading dock facilities on a
first-come, first-serve basis. A conference room calendar will be
maintained on the ATDC Intranet site.
USE OF PREMISES
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2.1
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Tenant shall
use the Premises solely for the purposes of the general office
operations of CardioMems, Inc . Tenant must obtain
the prior written approval of Landlord for any other use of the
Premises. At Tenant’s own expense, Tenant shall promptly
comply with all building code and other requirements of any local,
state or federal law or regulation required by Tenant’s
occupancy of the Premises.
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2.2
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Tenant shall
not (i) use the Premises for any illegal purpose, nor for any
purpose that is injurious to the health, safety, and welfare of the
public or that may jeopardize Tenant’s insurance coverage of
the Premises; or (ii) commit, or suffer to be committed, any
waste in or on the Premises; or (iii) create or permit any
nuisance in or on the Premises. Tenant hereby covenants to Landlord
that no hazardous substances, as defined by any federal, state, or
local law, will be used or generated on the Premises without prior
written notice to Landlord and without strict compliance with all
local, state, and federal laws and regulations regarding the
same.
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2.3
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Tenant agrees
to abide by all occupancy rules for Centergy One set forth by the
building owner, TUFF ATDC, LLC and its assignees (Exhibit
A).
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RENTAL TERM
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3.1
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The Rental
Term of this Agreement shall be ninety (90) days commencing on
September 1, 2005.
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3.2
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Ten days prior
to the expiration of the current term, the Rental Term shall be
automatically renewed for an additional ninety (90) days
unless termination notification is provide by the Landlord or by
the Tenant at least ninety (90) days prior to the expiration
to the current term.
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3.4
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At any point in
the initial or subsequent Rental Terms, the Landlord may give 90
days notice of lease termination or Tenant may give 90 days notice
of lease termination without penalty.
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RENTAL
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4.1
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For and as
rental for the Premises, Tenant agrees to pay Landlord, on or
before the first day of each month during the initial and
subsequent rental terms,, a Base Monthly Rental amount of $
9836.25, calculated upon the following formula, and to keep and
perform each and every provision of this Agreement required to be
kept and performed by Tenant, each of which shall constitute rental
for the Premises. The Base Monthly Rental amount may be increased
during subsequent rental periods.
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Base Monthly Rental = $
22.50 per RSF per year x 5246 RSF of office space / 12
months
=
$ 9836.25
Additional furniture and wall at
$2,271.55 per month. Total monthly rental amount of
$12,107.80
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4.2
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Tenant shall
pay to Landlord promptly all rent, and all other charges as
provided by this Agreement, as the same become due and payable
without offset, deduction, notice or demand. If such sums are not
paid within five (5) days of the due date of such sum, Tenant
shall pay to Landlord, as additional rent, a late charge equal to
1.5 percent of such overdue sum. If any check delivered by Tenant
to Landlord is dishonored, Tenant shall pay to Landlord a charge
equal to the maximum amount lawfully charged for dishonored checks.
Any payment made by a dishonored check shall be deemed to be late.
Returned checks may not be redeemed by a personal check, but must
be redeemed by cash, cashier’s check, certified check or
money order. All charges under this section 4.2 shall be deemed to
constitute additional rent due and payable upon notice from
Landlord to Tenant, and Landlord shall have all the rights and
remedies with respect thereto as Landlord has for the nonpayment of
rent.
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4.3
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Checks shall be
made payable to Georgia Advanced Technology Ventures and
shall be sent to the attention of the Facilities Manager, Georgia
Advanced Technology Ventures, Suite 100, 75 Fifth Street, NW,
Atlanta, GA 30308.
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SECURITY DEPOSIT
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5.1
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As security for
the full and faithful performance by Tenant of each and every one
of its duties and obligations under this Agreement, Tenant agrees
to deposit with Landlord, on the date hereof, and to maintain at
all times with Landlord during the entire term of this Agreement, a
security deposit equal to one month’s rental.
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5.2
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Upon default by
Tenant of any of its obligations under this Agreement, not cured
within fifteen (15) days of the date of such written notice of
default, Landlord may use, apply or retain the whole or any part of
the security deposit for the payment of any rent in default, or for
any expenditure made by Landlord by reason of Tenant’s
default of any of Tenant’s obligations of this Agreement,
including, but not limited to, any damages or deficiency due to
reletting of the Premises, whether such damages or deficiency
accrue before or after summary proceedings or other reentry by
Landlord. In the event Landlord uses, applies, or retains the whole
or any part of Tenant’s security deposit, Tenant shall pay to
Landlord immediately such amount that will fulfill Tenant’s
obligation hereunder to maintain at all times a security deposit
equal to one month’s rental.
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5.3
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If upon the
termination of this Agreement, Tenant shall have kept all of its
duties and obligations hereunder, Landlord shall return to Tenant
all the security so deposited with Landlord.
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PARKING
Additional parking spaces may be
purchased as available from the Landlord. Parking fees are due and
payable on the 1 st of each month. The current rate for
the Centergy One deck is $720.00 per year per space
($60.00 per month per space) .
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6.1.1
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Tenant shall
comply with all parking rules and regulations of the Centergy
development and the Georgia Institute of Technology.
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UTILITIES
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7.1
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Landlord shall
be responsible for the payment of all utility bills for normal
office use of the Premises by Tenant, including water, sewer,
natural gas. Normal office use of electricity shall include use of
computer terminals, desk calculators, and lab testing equipment
using not more than 110 volts, 15 amps power. Landlord retains the
option to meter separately or to estimate any utility usage in
excess of normal office use, and Tenant shall be exclusively
responsible for payment of the such excess usage. Tenant shall be
solely responsible for obtaining, maintaining, and paying for
telephone and data network service for the Premises.
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7.2
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Heating,
ventilating and air conditioning systems shall be kept operating by
Landlord during normal business hours Monday through Friday, 8 AM
– 6 PM and Saturday, 8 AM - Noon. After hour HVAC is
available; however, Tenant shall be responsible for additional
energy use charges during after hour use. Charges will be set by
Centergy Development.
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7.3
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Landlord shall
provide a garbage receptacle and garbage pick-up at
Landlord’s expense. Landlord shall provide janitorial service
for the Premises.
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MAINTENANCE AND REPAIRS
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9.1
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Landlord agrees
to maintain and keep in good repair the roof, foundations, and
exterior walls of the building in which the Premises are located,
and the structure of the walls surrounding the Premises, exclusive
of any repairs made necessary by the actions of Tenant or
Tenant’s agents, employees, or invitees.
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9.2
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Landlord
warrants that the premises shall meet and remain current with all
ADA Standards as of the commencement date of the lease through
it’s Expiration and/or Extension.
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9.3
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Landlord gives
to Tenant exclusive control of the Premises and shall not be
required to supply any maintenance or repair to or for the Premises
or to inspect the same. Tenant shall report promptly to Landlord
all items that Tenant contends Landlord is under a duty to provide
maintenance and repair.
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9.4
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Tenant shall
not make improvements or alterations to the Premises without the
prior express written consent of Landlord, which consent will not
be unreasonably withheld. Any such improvements or alterations
approved by Landlord must comply with all existing federal, state,
and local laws and must be maintained and repaired by Tenant. Upon
the expiration or termination of this Agreement, all improvements
or additions placed in or erected on the Premises by Tenant,
whether or not affixed or attached to the Premises, shall vest in
and become the property of Landlord, without further notice, action
taken, or instrument executed; provided, however, Tenant may remove
all of Tenant’s personal property from the Premises on or
before the expiration or termination of this Agreement. Tenant
shall repair all damage to the Premises resulting from the removal
of Tenant’s personal property. Tenant agrees that all of
Tenant’s personal property in or on the Premises is located
there at Tenant’s risk and Landlord shall not be liable for
any damage thereto or loss thereof.
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9.5
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Any property
acquired by Tenant through Landlord or acquired by Landlord for the
use of Tenant shall become and remain the property of Landlord and
shall not be removed by Tenant, or its employees, agents,
licensees, or invitees, from the Premises.
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9.6.1
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Landlord’s obligations under this
paragraph 9 are subject to reduction depending upon the
availability of funds appropriated for the purposes
herein.
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INSPECTION
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10.1
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Tenant shall
permit Landlord, its agents and employees, without prior notice, to
enter into and upon the Premises at all reasonable times for the
purpose of inspecting the Premises and making any necessary repairs
or alterations to electrical wiring, heating and cooling systems,
or plumbing, and other similar repairs and alterations.
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INSURANCE AND INDEMNITY
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11.1
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Indemnification
Agreement:
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Tenant hereby waives, releases,
relinquishes, discharges and agrees to indemnify, protect, save
harmless, Georgia Advanced Technology Ventures, Inc., the
University System of Georgia and Board of Regents, the State of
Georgia and its departments, agencies and instrumentalities
(including the State Tort Claims Trust Fund, the State Authority
Liability Trust Fund, the State Employee Broad Form Liability Fund,
the State Insurance and Hazard Reserve Fund, and other self insured
funds, hereinafter collectively referred to as the
“Fund”) and all of their respective officers,
employees, directors and agents (hereinafter collectively referred
to as the “Indemnitees”) of and from any and all
claims, demands, liabilities, losses, costs or expenses for any
loss including but not limited to bodily injury (including death),
personal injury, property damage, expenses, and attorneys’
fees, caused by, growing out of, or otherwise happening in
connection with this contact, due to any act or omission (whether
intentional or negligent) on the part of the Tenant, it’s
agents, employees or others working at the direction of Tenant or
on its behalf, or due to any breach of this contract by the Tenant,
or due to the application or violation of any pertinent Federal,
State, or local law, rule or regulation. This indemnification
extends to the successors and assigns of the Tenant, and this
indemnification survives the termination of the contract and the
dissolution or, to the extent allowed by law, the bankruptcy of the
Tenant. If and to the extent such damage or loss (including costs
and expenses as covered by this indemnification is covered by the
Fund established and maintained by the State of Georgia Department
of Administrative Services (DOAS), the Tenant agrees to reimburse
the Fund for such monies paid out of the Fund.
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11.1.1
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This
indemnification applies whether: (a) the activities involve
third parties or employees or agents of the Tenant or of the
Indemnitees.
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11.1.2
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This
indemnification does not apply to the extent of the sole negligence
of the Indemnitees. This indemnification is subject to an overall
limitation of $1,000,000.00 so long as the insurance required in
Section 11.2.2(a) is in full force and effect.
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11.1.3
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To the full
extent permitted by the Constitution and the laws of the State of
Georgia and the terms of the Fund, the Tenant and its insurers
waive any right of subrogation against the Indemnitees, the Fund
and insurers participating thereunder, to the full extent of this
indemnification.
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11.2
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Insurance
Requirements:
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11.2.1
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Insurance
Certificates . The Tenant
shall procure the insurance policies identified below at the
Tenant’s own
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expense and shall furnish the
Landlord an insurance certificate listing the agency as the
certificate holder. The insurance certificate must document that
the liability insurance coverage purchased by the Tenant includes
contractual liability coverage to insure the indemnity agreement as
stated. In addition, the insurance certificate must provide the
following:
(a) Name and address of authorized
agent
(b) Name and address of
insured
(c) Name of insurance
company
(d) Description of coverage in
standard terminology
(e) Policy name
(f) Policy number
(g) Limits of liability
(h) Name and address of Landlord as
certificate holder
(i) Acknowledgment of notice of
cancellation to Landlord
(j) Signature of authorized
agent
(k) Telephone number of authorized
agent
(l) Details of special policy
exclusions in comments section of Certificate
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11.2.2
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Insurance
Coverages . The Tenant
also agrees to purchase and have the authorized agent state on the
insurance certificate that the following types of insurance
coverages, issued pursuant to O.C.G.A. Section 50-21-37, have
been purchased by the Tenant:
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(a) Commercial General Liability
Insurance Policy (CGL) . Tenant shall procure and maintain a
primary Commercial General Liability Insurance Policy, including
products and completed operation liability and contractual
liability coverage, with limits of not less than $1,000,000 per
person and $1,000,000 per occurrence covering bodily injury,
property damage liability and personal injury. The policy or
policies shall name the officers, agents, and employees of the
Board of Regents as additional insureds, but only with respect to
claims which are not covered by the Georgia Tort Claims act,
O.C.G.A. Section 50-21-20 et seq. The CGL policy must provide
primary limits over any other liability policy provided by the
State for any claims not covered by the Georgia Tort Claims Act.
However, the CGL policy must indemnify the State for any claims
covered by the Georgia Tort Claims Act. The policy of policies must
be on an “occurrence” basis unless waived by the State.
The CGL policy shall include contractual liability coverage, which
shall be endorsed to state that indemnity obligations specified in
this agreement are insured by the carrier. The CGL policy purchased
by the Tenant must be issued by a company authorized to conduct
business in the State of Georgia or by a company acceptable to the
State if the company is an alien insurer. The CGL policy must be
endorsed to include separate aggregate limits per
project.
(b) Tenant is responsible for
insuring at its sole expense its own property which may be brought
upon the Premises, and subtenant shall be responsible for insuring
any of their property brought upon the Premises.
DESTRUCTION OR DAMAGE TO
PREMISES
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12.1
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If the Premises
are totally destroyed or rendered untenantable by storm, fire,
earthquake, hurricane, or other natural catastrophe, this Agreement
shall terminate as of the date of such total destruction or
untenantability, with no obliga
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