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Exhibit
10.1
TENTH AMENDMENT TO
LEASE
THIS TENTH AMENDMENT TO LEASE
(the “ Tenth Amendment ”) is entered into as of
this 22nd day of October, 2007, by and between PARKERS LAKE I
REALTY LLC, a Delaware limited liability company, with an address
in care of Great Point Investors LLC, Two Center Plaza, Suite 410,
Boston, MA 02108 (“ Lessor ”), and UROLOGIX,
INC., a Minnesota corporation, with an address of 14405 21
st
Avenue N., Suite 111,
Plymouth, MN 55447 (“ Lessee
”).
WITNESSETH:
WHEREAS, Parkers Lake Pointe
I Limited Partnership (“ LP ”), as landlord, and
Lessee entered into a Lease dated January 20, 1992, as amended
by Addendum to Lease Agreement dated January 20, 1992 by and
between LP and Lessee, Addendum to Lease Agreement dated
June 20, 1994 by and between LP and Lessee, Addendum to Lease
Agreement dated April 5, 1995 by and between LP and Lessee,
Addendum to Lease Agreement dated March 7, 1996 by and between
LP and Lessee, Addendum to Lease Agreement dated September 30,
1996 by and between LP and Lessee, Addendum to Lease Agreement
dated November 15, 1996 by and between LP and Lessee, Addendum
to Lease Agreement dated October 31, 1997 by and between LP
and Lessee, Amendment to Lease dated March 12, 1998 by and
between Parkers Lake I Realty Corp., successor to LP (“
Predecessor ”) and Lessee, Amendment to Lease dated as
of March 26, 1998 by and between Predecessor and Lessee (the
“ Eighth Amendment ”), Amendment of Lease
Agreement dated October 4, 2002 by and between Predecessor and
Lessee (the “ Ninth Amendment ”), as affected by
Form of Consent to Sublease dated August 14, 2003 by and
between Predecessor, Lessee and Incisive Surgical, Inc. (as amended
and affected, collectively, the “ Lease ”),
whereby Lessee is currently leasing from Lessor approximately
36,962 rentable square feet of floor area in the development known
as the Parkers Lake Pointe Business Centre, having a street address
of 14405 21 st Avenue N., Plymouth, Minnesota (the “ Leased
Premises ”); and
WHEREAS, Lessor has succeeded
to the rights of Predecessor as landlord under the Lease;
and
WHEREAS, in accordance with
and subject to the terms, conditions and other provisions of this
Tenth Amendment, the parties desire to extend the Term of the Lease
such that the Lease will expire on March 31, 2011;
and
WHEREAS, in accordance with
that certain Form of Consent to Sublease dated August 14,
2003, Lessor consented to Lessee’s subleasing to Incisive
Surgical, Inc. (“Sublessee”) of approximately 10,950
square feet (the “Subleased Premises”) of the Leased
Premises, which provided that the Sublease would terminate on or
about March 30, 2008; and
WHEREAS, Lessor wishes to
enter into a new Lease Agreement with Incisive Surgical, Inc. with
respect to the Leased Premises which will replace, in its entirety,
the existing sublease between Lessee and Sublessee, and Lessee and
Sublessee have agreed that the Sublease between such parties shall
terminate at 11:59 p.m. on October 31, 2007; and
WHEREAS, Lessee has requested
that, as of November 1, 2007, the Lease apply to 26,012
rentable square feet of the Premises only, and in connection
therewith, not later than 11:59 p.m. on October 31, 2007,
Lessee will surrender to Lessor approximately 10,950 rentable
square feet of the Premises, as shown on Exhibit A hereto
(the “ Excess Space ”), and such request is
acceptable to Lessor, as set forth herein; and
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WHEREAS, Lessor and Lessee
desire to amend the Lease to extend the term of the Lease, and, as
of November 1, 2007, to terminate Lessee’s obligations
under the Lease relating to the Excess Space only, to set forth the
terms and conditions of such extension and partial termination, and
to make other modifications to the terms and provisions of the
Lease.
NOW, THEREFORE, in
consideration of the mutual promises herein contained and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, Lessor and
Lessee agree as follows:
1. Capitalized terms not
otherwise expressly defined herein shall have the meanings ascribed
to them in the Lease. The term “ Lease ”, as
used in the Lease, shall include the Lease, as amended by all
amendments thereto, including this Tenth Amendment.
2. Lessee acknowledges that
Predecessor has transferred its interest in the Lease, as landlord,
to Lessor. As of November 1, 2004, all references in the Lease
to LP or Predecessor and their addresses are hereby deleted and
replaced with the following:
“Parkers Lake I Realty
LLC
c/o Great Point Investors
LLC
Two Center Plaza,
Suite 410 Boston, MA
02108
Attn: Joseph A.
Versaggi
with a copy to:
United Properties
LLC
3500 American Boulevard
West
Suite 200
Bloomington, MN
55431
Attn: Lisa
Dongoske
Rent payments to be
sent:
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(a) |
if by regular mail, to: |
Parkers Lake II Realty LLC
14577
Collections Center Drive
Chicago, IL 60693
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(b) |
if by overnight mail or courier, to: |
Bank of America Lockbox
Services 14577
Collections Center Drive
Chicago, IL 60693”
3. Term .
Notwithstanding any provisions of the Lease to the contrary, the
Term of the Lease shall continue through, and expire on,
March 31, 2011.
4. Leased Premises .
Notwithstanding any provisions of the Lease to the contrary,
provided that (a) on or before 11:59 p.m. on October 31,
2007 (the “Termination Date”) Lessee vacates the Excess
Space; (b) on or before the Termination Date, Lessor and
Incisive Surgical, Inc. have finally executed a mutually
acceptable, written amendment to lease agreement pertaining to
Incisive Surgical’s leasing of all
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of the Excess Space, and
(c) on October 31, 2007 Lessee is not in default under
the terms and conditions of the Lease and no condition exists that
with the passage of time and/or giving of notice would constitute a
default under the Lease, then, from and after November 1,
2007, (x) the Leased Premises shall be defined as follows:
“That certain space known and numbered Suite 111 and
containing a total of approximately 26,012 rentable square feet of
space (approximately 16,222 rentable square feet of office space
and approximately 9,790 rentable square feet of warehouse space) in
Parkers Lake Pointe I, located at 14405 21 st Avenue N., Plymouth, MN”; and
(y) the plan of the Premises as shown on Exhibit A
attached hereto which shall replace all prior plans of the premises
attached to the Lease.
5. Minimum Rent .
Subject to the condition precedent stated in paragraph 11 of this
Tenth Amendment, Section 4 of the Lease, last amended by
paragraph 2 of the Ninth Amendment, is amended by deleting
subsection (g) of said Section 2 of the Ninth Amendment
and replacing such subsection in its entirety, and adding new
subsections (h), (i), (j), (k) and (l), each to read as
follows:
“(g) For the period
commencing on April 1, 2007 through and including
October 31, 2007, seven (7) monthly installments each in
the amount of $28,959.21, payable in advance; and
(h) For the period commencing
on November 1, 2007 and continuing through and including
October 31, 2008, the sum of $224,743.68 per annum, payable in
equal monthly installments, in advance, of $18,728.64;
and
(j) For the period commencing
on November 1, 2008 and continuing through and including
October 31, 2009, the sum of $231,485.99 per annum, payable in
equal monthly installments, in advance, of $19,290.50 per month;
and
(k) For the period commencing
on November 1, 2009 and continuing through and including
October 31, 2010, the sum of $238,430.57 per annum, payable in
equal monthly installments, in advance, of $19,869.21 per month;
and
(l) For the period commencing
on November 1, 2010 and continuing through and including
March 31, 2011, five (5) monthly installments, payable in
advance, each in the amount of $20,465.29 per
month.”
For the avoidance of doubt,
Lessor acknowledges that Lessee has paid and satisfied the
“minimum rent” obligations set forth in subparagraph
(g) above, for the period through and including
October 31, 2007.
6. Additional Rent .
Provided that Lessee vacates the Excess Space on or before 11:59
p.m. on October 31, 2007, as of November 1, 2007,
Lessee’s share of Real Estate Taxes and Operating Expenses,
last set forth in paragraph 2 of the Eighth Amendment, shall be
reduced to, and shall become, 65.62% of said Real Estate Taxes and
Operating Expenses.
7. Insurance .
Section 11 of the Lease is amended to add the following
sentence thereto: “Notwithstanding anything to the contrary
contained herein, the required types and amounts of insurance are
subject to periodic revision reasonably specified by Lessor based
upon inflation, increased liability awards, recommendation of
Lessor’s professional insurance advisers, and other relevant
factors.”
8. Alterations .
Lessee intends to make certain improvements to the Premises, all of
which shall be made pursuant to Section 16 of the Lease, and
in addition, prior to commencement of such construction, Lessee
shall obtain Lessor’s approval of Lessee’s contractor
(such approval not to be unreasonably withheld), and such
contractor (prior to commencement of construction) shall
provide
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Lessor with insurance certificates
listing Lessor and Lessor’s property manager as additional
insureds and certificate holders (such insurance to be of such
types and in such amounts as are reasonably required by Lessor).
Provided Lessee is not then in default of any of the terms,
conditions and covenants of the Lease, Lessor shall contribute up
to $131,768.00 (the “ Tenant Improvement Allowance
”) toward the cost of Lessee’s additions, alterations
or improvements to the internal portions of the Premises (“
Tenth Amendment Work ”), such improvements to be
performed by Lessee in accordance with the terms and provisions of
this Lease. All work with respect to any addition, alteration or
improvement by Lessee shall be done in a good and workmanlike
manner by properly qualified and licensed personnel. All such work
shall be diligently prosecuted to completion and shall comply with
applicable laws. Lessor is responsible for all costs of demising
the Excess Space from the remaining Premises including the costs of
separating the utilities between the Excess Space and the remaining
Premises. Upon Lessee’s presentation to Les
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