**Exhibit 10.2**

 

**LEASEAGREEMENT**

 

**LIBERTYPROPERTY LIMITED PARTNERSHIP**

**Landlord**

 

**AND**

 

**ev3, INC.**

**Tenant**

 

**AT**

 

**9600 54thAvenue North**

**Plymouth,MN 55441**

 

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**LEASEAGREEMENT**

 
| **INDEX** | ** ** | ** **                                       | ** ** |
|-----------|------------|--------------------------------------------------|------------|
|      |       |                                             |       |
| 1.        |       | Basic Lease Terms and Definitions                |       |
| 2.        |       | Premises                                         |       |
| 3.        |       | Use                                              |       |
| 4.        |       | Term; Possession                                 |       |
| 5.        |       | Rent                                             |       |
| 6.        |       | Operating Expenses                               |       |
| 7.        |       | Utilities                                        |       |
| 8.        |       | Insurance; Waivers; Indemnification              |       |
| 9.        |       | Maintenance and Repairs                          |       |
| 10.       |       | Compliance                                       |       |
| 11.       |       | Signs                                            |       |
| 12.       |       | Alterations                                      |       |
| 13.       |       | Mechanics’ Liens                            |       |
| 14.       |       | Landlord’s Right of Entry                   |       |
| 15.       |       | Damage by Fire or Other Casualty                 |       |
| 16.       |       | Condemnation                                     |       |
| 17.       |       | Quiet Enjoyment                                  |       |
| 18.       |       | Assignment and Subletting.                       |       |
| 19.       |       | Subordination; Mortgagee’s Rights           |       |
| 20.       |       | Tenant’s Certificate; Financial Information |       |
| 21.       |       | Surrender                                        |       |
| 22.       |       | Defaults - Remedies                              |       |
| 23.       |       | Authority                                        |       |
| 24.       |       | Liability of Landlord                            |       |
| 25.       |       | Miscellaneous                                    |       |
| 26.       |       | Notices                                          |       |
| 27.       |       | Security Deposit/Letter of Credit                |       |
| 28.       |       | Automatic Funds Transfer                         |       |
| 29.       |       | Initial Tenant Improvements                      |       |
| 30.       |       | Parking                                          |       |
| 31.       |       | Right of First Offer                             |       |
| 32.       |       | Leasing Restriction                              |       |
| 33.       |       | Building Name                                    |       |
| 34.       |       | Extension Options                                |       |

 

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**THIS LEASE AGREEMENT**is made by and between **LIBERTY PROPERTYLIMITED PARTNERSHIP**, a Pennsylvania limited partnership (“Landlord”)and **ev3, INC.**, a corporationorganized under the laws of Delaware (“Tenant”), and is dated as of the date onwhich this Lease has been fully executed by Landlord and Tenant.

 

# **1.             Basic Lease Terms andDefinitions.**

#  

## **(a)           Premises:**  Suite 100, consisting of approximately31,718 rentable square feet as shown on **Exhibit “A”**.

##  

| **(b)** | **Building:**  Approximate rentable square feet: 50,021    |
|---------|------------------------------------------------------------|
|    | Address: 9600 54th Avenue North, Plymouth, Minnesota 55441 |

##  

## **(c)           Term:** 52 months (plus any partial month fromthe Commencement Date until the first day of the next full calendar monthduring the Term).

##  

## **(d)           CommencementDate:**  November 1,2005

##  

## **(e)           ExpirationDate:**  The lastday of the Tenn.

##  

## **(f)            MinimumAnnual Rent:**  Payablein monthly installments as follows: 

 

| **Period**              | ** ** | **Annual** | ** ** | **Monthly** |
|-------------------------|------------|------------|------------|-------------|
| 11/1/05 – 10/31/06 |       | $          | 347,946.48 |        | $ | 28,995.54 |
| 11/1/06 – 10/31/07 |       | 356,645.16 |       | 29,720.43   |
| 11/1/07 – 10/31/08 |       | 365,561.28 |       | 30,463.44   |
| 11/1/08 – 10/31/09 |       | 347,700.24 |       | 31,225.02   |
| 11/1/09 – 2/28/10  |       | 384,067.80 |       | 32,005.65   |
|                         |            |            |            |             |  |  |

 

## **(g)           AnnualOperating Expenses:**  $131,312.52, payable in monthly installmentsof $10,942.71, subject to adjustment as provided in this Lease.

##  

## **(h)           Tenant’sShare:**  63.41%(also see Definitions)

##  

## **(i)            Use:** General office, production andmanufacturing, research, shipping, receiving, normal business distribution andwarehousing, all to the extent permitted under applicable zoning, provided thatno more than 18,324 rentable square feet shall be used as office.

##  

## **(j)            SecurityDeposit:**  $33,000letter of credit

 

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## **(k)           AddressesFor Notices:**

 
| Landlord: | Liberty  Property Limited Partnership  10400 Viking Drive, Suite 130  Eden Prairie, MN 55344 Attn: Vice President/City Manager |   | Tenant: |   | Before the  Commencement Date:  ev3, Inc.  4600 Nathan Lane North  Plymouth, MN 55442-2920  Attn: Legal |
|-----------|-------------------------------------------------------------------------------------------------------------------------------------|--------|---------|--------|--------------------------------------------------------------------------------------------------------------|
|      |                                                                                                                                |   |    |   |                                                                                                         |
|      |                                                                                                                                |   |    |   | On or after  the Commencement Date:  Premises  Attn: Legal                                                   |

 

## **(l)            Guarantor:** N/A

##  

## **(m)          AdditionalDefined Terms:**  SeeRider 1 for the definitions of other capitalized terms.

##  

## **(n)           Contents:** The following are attached to and made apart of this Lease:

 
| Rider 1 – Additional  Definitions |   | Exhibits: |   | “A” – Plan  showing Premises  “B” – Building Rules  “C” – Estoppel Certificate Form  “D” – Exclusions from Operating Expenses  “E” – Initial Tenant Improvements  “F” – Tenant’s Exclusive Parking Area |
|----------------------------------------|--------|-----------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

# **2.             Premises. **Landlord leases toTenant and Tenant leases from Landlord the Premises, together with the right incommon with others to use the Common Areas. Tenant accepts the Premises, Building and Common Areas “AS IS”, withoutrelying on any representation, covenant or warranty by Landlord except as setforth in Section 29 (Initial Tenant Improvements) and other than asexpressly set forth in this Lease.  Landlordand Tenant stipulate and agree to the rentable square footage set forth in Section l(a) abovewithout regard to actual measurement.

#  

# **3.             Use.**  Tenant shall occupy and use the Premises onlyfor the Use specified in Section 1 above. Tenant shall not permit any conduct or condition which may endanger,disturb or otherwise interfere with any other Building occupant’s normaloperations or with the management of the Building.  Tenant shall not use or permit the use of anyportion of the Property for outdoor storage or installations outside of thePremises.  Tenant may use all CommonAreas only for their intended purposes.  Landlordshall have exclusive control of all Common Areas at all times.

#  

# **4.             Term;Possession.** The Term of this Lease shall commence on the Commencement Date and shallend on the Expiration Date, unless sooner terminated in accordance with thisLease or unless renewed by Tenant in accordance with Section 34 of thisLease.  Subject to the provisions of Section 29below, if Landlord is delayed in delivering possession of all or any portion ofthe Premises to Tenant as of the Commencement Date, Tenant will take possessionon the date

 

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# Landlorddelivers possession, which date will then become the Commencement Date (and theExpiration Date will be extended so that the length of the Term remains unaffectedby such delay).

#  

# **5.             Rent.**  Tenant agrees to pay to Landlord, withoutdemand, deduction or offset, Minimum Annual Rent and Annual Operating Expensesfor the Term.  Tenant shall pay theMonthly Rent, in advance, on the first day of each calendar month during theTerm as set forth in Paragraph 28 unless Landlord designates otherwise;provided that Monthly Rent for the first full month shall be paid at thesigning of this Lease.  If theCommencement Date is not the first day of the month, the Monthly Rent for thatpartial month shall be apportioned on a per diem basis and shall be paid on orbefore the Commencement Date.  Tenantshall pay Landlord a service and handling charge equal to 5% of any Rent notpaid within 5 business days after the date due, provided that no such handlingcharge shall be charged until the second late payment during any twelve (12)month period.  In addition, any Rent,including such charge, not paid within 5 days after the due date will bearinterest at the Interest Rate from the date due to the date paid.  If any taxes, special assessments, fees orother charges are imposed against Landlord by any authority with respect to theRent, Tenant will pay these amounts to Landlord when due.

#  

# **6.             OperatingExpenses.**  Theamount of the Annual Operating Expenses set forth in Section 1(g) aboverepresents Tenant’s Share of the estimated Operating Expenses for the calendaryear in which the Term commences.  Landlordmay adjust such amount from time to time if the estimated Annual Operating Expensesincrease or decrease.  By March 31stof each year (and as soon as practical after the expiration or termination ofthis Lease or, at Landlord’s option, after a sale of the Property), Landlordshall provide Tenant with a statement of Operating Expenses for the precedingcalendar year or part thereof.  Within 30days after delivery of the statement to Tenant, Landlord or Tenant shall pay tothe other the amount of any overpayment or deficiency then due from one to theother or, at Landlord’s option, Landlord may credit Tenant’s account for anyoverpayment.  If Tenant does not giveLandlord notice within 30 days after receiving Landlord’s statement that Tenantdisagrees with the statement and specifying the items and amounts in dispute,Tenant shall be deemed to have waived the right to contest the statement.  Landlord’s and Tenant’s obligation to pay anyoverpayment or deficiency due the other pursuant to this Section shallsurvive the expiration or termination of this Lease.  Notwithstanding any other provision of thisLease to the contrary, Landlord may, in its reasonable discretion, determinefrom time to time the method of computing and allocating Operating Expenses,including the method of allocating Operating Expenses to various types of spacewithin the Building to reflect any disparate levels of services provided todifferent types of space.  If theBuilding is not fully occupied during any period, Landlord may make areasonable adjustment based on occupancy in computing the Operating Expenses forsuch period so that Operating Expenses are computed as though the Building hadbeen fully occupied (this provision is intended to fully allocate to Tenantthose services provided to Tenant, but in no event shall this provision operatein a manner that would require Tenant to pay for any services provided to orproperly chargeable to any vacant leaseable space in the Building).

#  

In the event that Landlord contests any taxes, the net refunds receivedby Landlord for any period included in the Operating Expenses paid by Tenantshall be credited against the Operating Expenses due from Tenant during theimmediately subsequent period, except that in the event that any such refund ispaid during the final lease year of the Term (or any renewal Term, if

 

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applicable), then upon the expiration of the Term (or renewal Term, ifapplicable), Landlord shall promptly pay to Tenant any net refund actuallyreceived by Landlord after deducting therefrom the costs of contestingTaxes.  Tenant shall not initiate anyaction to reduce or contest real estate taxes on the Property.  However, Landlord agrees to initiate such anaction upon Landlord’s reasonable determination that the assessor hasovervalued the Property, and that a contest is likely to be successful.  If Tenant so requests, Landlord agrees toconsult with and cooperate with Tenant in evaluating the merits of initiating atax contest.

 

Tenant shall be entitled at any reasonable time during regular businesshours, but no more than once in each calendar year, after giving to Landlord atleast ten (10) business days prior written notice, to inspect in Landlord’sbusiness office all Landlord’s records necessary to satisfy itself that AnnualOperating Expenses has been correctly determined and allocated to Tenant, forthe calendar year immediately preceding the year during which such notice isgiven, and to obtain an audit thereof by an independent certified publicaccountant (selected by Tenant with Landlord’s written consent, which shall notbe withheld unreasonably) to determine the accuracy of Landlord’s certificationof the amount of Annual Operating Expenses charged Tenant, provided, however,that Tenant shall make all payments of Annual Operating Expenses without delay,and that Tenant’s obligation to pay such Annual Operating Expenses shall not becontingent on any such right.  If it isdetermined that Tenant’s liability for Annual Operating Expenses for eithersuch calendar year is less than ninety-five percent (95%) of that amount whichLandlord previously certified to Tenant for such calendar year, Landlord shallpay to Tenant the cost of such audit (provided, however, that Landlord shallnot be required to pay the cost of any audit based on a contingency fee or percentageof the amount recovered for Tenant) and regardless of such percentage Landlordshall refund promptly to Tenant the amount of the Annual Operating Expensespaid by Tenant for such calendar year which exceeds the amount for which Tenantactually is liable, as determined following such audit.  If it is determined that Tenant’s liabilityfor Annual Operating Expenses for either such calendar year is more than theamount which Landlord previously certified to Tenant for such calendar year,Tenant shall promptly pay to Landlord (net of the cost to Tenant of the audit)the amount of the Annual Operating Expenses underpaid by Tenant, as determinedfollowing such audit.  Except as providedabove, Tenant shall bear the total cost of any inspection or audit performed byor for Tenant.  Tenant shall keep, andshall cause Tenant’s auditor to keep, the results of such audit or inspectionconfidential.

 

# **7.             Utilities.**  Tenant shall pay for water, sewer, gas,electricity, heat, power, telephone and other communication services and anyother utilities supplied to the Premises. Except to the extent Landlord elects to provide any such services andinvoice Tenant for the cost or include the cost in Operating Expenses, Tenantshall obtain service in its own name and timely pay all charges directly to theprovider.  Landlord shall not beresponsible or liable for any interruption in such services, nor shall suchinterruption affect the continuation or validity of this Lease, unless suchinterruption in service was caused by the Landlord’s negligence or willfulmisconduct.  Landlord shall have theexclusive right to select, and to change, the companies providing such servicesto the Building or Premises, provided that the services are substantiallysimilar to the services existing as of the Commencement Date.  Any wiring, cabling or other equipmentnecessary to connect Tenant’s telecommunications equipment shall be Tenant’sresponsibility, and shall be installed in a manner approved by Landlord.  In the event Tenant’s consumption of anyutility or other service included in Operating Expenses is excessive whencompared with other occupants of the Property, Landlord may invoice Tenantseparately for, and

 

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# Tenant shallpay on demand, the cost of Tenant’s excessive consumption, as reasonablydetermined by Landlord.

#  

# **8.             Insurance; Waivers;Indemnification.**

#  

## **(a)          **Landlordshall maintain insurance against loss or damage to the Building or the Propertywith coverage for perils as set forth under the “Causes of Loss-Special Form”or equivalent property insurance policy in an amount equal to the fullinsurable replacement cost of the Building (excluding coverage of Tenant’spersonal property and any Alterations by Tenant), and such other insurance,including rent loss coverage, as Landlord may reasonably deem appropriate or asany Mortgagee may require.

##  

## **(b)          **Tenant,at its expense, shall keep in effect commercial general liability insurance,including blanket contractual liability insurance, covering Tenant’s use of theProperty, with such coverages and limits of liability as Landlord mayreasonably require, but not less than combined single limits of $5,000,000 peroccurrence and in the aggregate for bodily injury or property damage; however, suchlimits shall not limit Tenant’s liability hereunder.  Any general aggregate limit shall apply on a “perlocation” basis.  The policy shall nameLandlord, Liberty Property Trust and any other associated or affiliated entityas their interests may appear and at Landlord’s request, any Mortgagee(s), asadditional insureds with respect to the Premises, shall be written on an “occurrence”basis and not on a “claims made” basis and shall be endorsed to provide that itis primary to and not contributory to any policies carried by Landlord and toprovide that it shall not be cancelable or reduced without at least 30 daysprior notice to Landlord.  The insurershall be authorized to issue such insurance, licensed to do business andadmitted in the state in which the Property is located and rated at least A VIIin the most current edition of *Best’sInsurance Reports*.  Tenantshall deliver to Landlord on or before the Commencement Date or any earlierdate on which Tenant accesses the Premises, and at least 30 days prior to thedate of each policy renewal, a certificate of insurance evidencing suchcoverage.

##  

## **(c)          **Landlordand Tenant each waive, and release each other from and against, all claims forrecovery against the other for any loss or damage to the property of such partyarising out of fire or other casualty coverable by a standard “Causes ofLoss-Special Form” property insurance policy with, in the case of Tenant, suchendorsements and additional coverages as are considered good business practicein Tenant’s business, even if such loss or damage shall be brought about by thefault or negligence of the other party or its Agents; provided, however, suchwaiver by Landlord shall not be effective with respect to Tenant’s liabilitydescribed in Sections 9(b) and 10(d) below.  This waiver and release is effectiveregardless of whether the releasing party actually maintains the insurancedescribed above in this subsection and is not limited to the amount ofinsurance actually carried, or to the actual proceeds received after a loss.  Each party shall have its insurance companythat issues its property coverage waive any rights of subrogation, and shallhave the insurance company include an endorsement acknowledging this waiver, ifnecessary.  Tenant assumes all risk of damageof Tenant’s property within the Property, including any loss or damage causedby water leakage, fire, windstorm, explosion, theft, act of any other tenant,or other cause.

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## **(d)          **Subjectto subsection (c) above, and except to the extent caused by the negligenceor willful misconduct of Landlord or its Agents, Tenant will indemnify, defend,and hold

 

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## harmless Landlord and its Agents from andagainst any and all claims, actions, damages, liability and expense (includingfees of attorneys, investigators and experts) which may be asserted against,imposed upon, or incurred by Landlord or its Agents and arising out of or inconnection with loss of life, personal injury or damage to property in or aboutthe Premises or arising out of the occupancy or use of the Property by Tenantor its Agents or occasioned wholly or in part by any act or omission of Tenantor its Agents, whether prior to, during or after the Term.  Tenant’s obligations pursuant to this subsection shallsurvive the expiration or termination of this Lease.

##  

## **(e)          **Subjectto subsection (c) above, and except to the extent caused by thenegligence or willful misconduct of Tenant or its Agents, Landlord willindemnify, defend, and hold harmless Tenant and its Agents from and against anyand all claims, actions, damages, liability and expense (including reasonablefees of attorneys) which may be asserted against, imposed upon, or incurred byTenant or its Agents and arising out of or in connection with loss of life,personal injury or damage to property in or about the Property to the extentoccasioned wholly or in part by any negligence or willful misconduct ofLandlord or its Agents, whether prior to, during or after the Term.  Landlord’s obligations pursuant to this subsection shallsurvive the expiration or termination of this Lease.

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# **9.             Maintenance and Repairs.**

#  

## **(a)          **Landlordshall Maintain the:  (i) Buildingfootings, foundations, structural steel columns and girders at Landlord’s soleexpense; (ii) Building roof and exterior walls; (iii) BuildingSystems; and (iv) Common Areas.  Costsincurred by Landlord under the foregoing subsections (ii), (iii) and (iv) willbe included in Operating Expenses, provided that to the extent any heating,ventilation and air conditioning system, or other Building System, equipment orfixture exclusively serves the Premises, Landlord may elect either to Maintainthe same at Tenant’s sole expense and bill Tenant directly or by notice toTenant require Tenant to Maintain the same at Tenant’s expense.  Costs incurred by the Landlord under theforegoing subsection (i) shall not be included in Operating Expenses.  If Tenant becomes aware of any condition thatis Landlord’s responsibility to repair, Tenant shall promptly notify Landlordof the condition.

##  

## **(b)          **Exceptas provided in subsection (a) above, Tenant at its sole expense shallMaintain the Premises and all fixtures and equipment in the Premises.  All repairs and replacements by Tenant shallutilize materials and equipment which are comparable to those originally usedin constructing the Building and Premises. Alterations, repairs and replacements to the Property, including thePremises, made necessary because of Tenant’s Alterations or installations, anyuse or circumstances special or particular to Tenant, or any act or omission ofTenant or its Agents shall be made by Landlord or Tenant as set forth above,but at the sole expense of Tenant.

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# **10.          Compliance.**

#  

## **(a)          **Tenantwill, at its expense, promptly comply with all Laws now or subsequentlypertaining to the Premises or Tenant’s use or occupancy.  Landlord will, at its expense, comply withall Laws pertaining to the Premises prior to Tenant’s use or occupancy.  Tenant shall have no responsibility forcomplying with Laws for portions of the Building which do not include Tenant’sPremises.  Tenant will pay any taxes orother charges by any authority on Tenant’s

 

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## property or trade fixtures or relating toTenant’s use of the Premises.  NeitherTenant nor its Agents shall use the Premises in any manner that under any Lawwould require Landlord to make any Alteration to or in the Building or CommonAreas (without limiting the foregoing, Tenant shall not use the Premises in anymanner that would cause the Premises or the Property to be deemed a “place ofpublic accommodation” under the ADA if such use would require any suchAlteration).  Tenant shall be responsiblefor compliance with the ADA, and any other Laws regarding accessibility, withrespect to the Premises, except to the extent that violations of the ADA andsaid Laws existed prior to Tenant’s use or occupancy of the Premises.

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## **(b)          **Tenantwill comply, and will cause its Agents to comply, with the Building Rules.

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## **(c)          **Tenantagrees not to do anything or fail to do anything which will increase the costof Landlord’s insurance or which will prevent Landlord from procuring policies(including public liability) from companies and in a form satisfactory toLandlord.  If any breach of the precedingsentence by Tenant causes the rate of fire or other insurance to be increased,Tenant shall pay the amount of such increase as additional Rent within 30 daysafter being billed.

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## **(d)          **Tenantagrees that (i) no activity will be conducted on the Premises that willuse or produce any Hazardous Materials, except for activities which are part ofthe ordinary course of Tenant’s business and are conducted in accordance with allEnvironmental Laws (“Permitted Activities”); (ii) the Premises will not beused for storage of any Hazardous Materials, except for materials used in thePermitted Activities which are properly stored in a manner and locationcomplying with all Environmental Laws; (iii) no portion of the Premises orProperty will be used by Tenant or Tenant’s Agents for disposal of HazardousMaterials; (iv) Tenant will deliver to Landlord copies of all MaterialSafety Data Sheets and other written information prepared by manufacturers,importers or suppliers of any chemical; and (v) Tenant will immediatelynotify Landlord of any violation by Tenant or Tenant’s Agents of anyEnvironmental Laws or the release or suspected release of Hazardous Materialsin, under or about the Premises, and Tenant shall immediately deliver toLandlord a copy of any notice, filing or permit sent or received by Tenant withrespect to the foregoing.  If at any timeduring or after the Term, any portion of the Property is found to becontaminated by Tenant or Tenant’s Agents or subject to conditions prohibitedin this Lease caused by Tenant or Tenant’s Agents, Tenant will indemnify,defend and hold Landlord harmless from all claims, demands, actions,liabilities, costs, expenses, attorneys’ fees, damages and obligations of anynature arising from or as a result thereof, except to the extent caused, inwhole or in part, by the Landlord or Landlord’s Agents, and Landlord shall havethe right to direct remediation activities, all of which shall be performed atTenant’s cost.  Tenant’s obligationspursuant to this subsection shall survive the expiration or termination ofthis Lease.  Notwithstanding anythingherein to the contrary, Tenant shall not be responsible for costs associatedwith any Hazardous Materials to the extent that such Hazardous Materials (A) wereexisting on the Premises or Building prior to the Commencement Date or (B) weregenerated, transported, stored, used, treated, or disposed of at, to, from, on,or in the Premises or Building by the Landlord.

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## **(e)          **Landlordrepresents to Tenant that Landlord has received no notice alleging that theProperty is in violation of any Laws, including, but not limited to zoningregulations and the ADA.

 

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# **11.          Signs.**  Tenant shall not place any signs on theProperty without the prior consent of Landlord, other than signs that arelocated wholly within the interior of the Premises and not visible from theexterior of the Premises.  Tenant shallhave the exclusive right to place a sign panel identifying Tenant on theBuilding’s monument sign fronting Highway 169. Tenant shall also be entitled to place building-mounted identificationsignage above Tenant’s main entrance.  Tenant’ssignage shall be consistent with Landlord’s sign criteria and otherwise subjectto Landlord’s approval, which approval shall not be unreasonably withheld.  Tenant shall cause all Tenant signage tocomply with all Laws.  Tenant shallmaintain all signs installed by Tenant in good condition.  Tenant shall remove its signs at thetermination of this Lease, shall repair any resulting damage, and shall restorethe Property to its condition existing prior to the installation of Tenant’ssigns.

#  

# **12.          Alterations.**  Except for cosmetic Alterations (such aspainting, wall covering and floor covering) that (i) are not visible fromthe exterior of the Premises, (ii) do not affect the structure of theBuilding or any Building System, (iii) do not require penetrations intothe floor, ceiling or walls, and (iv) do not require work within thewalls, below the floor or above the ceiling, Tenant shall not make or permitany Alterations in or to the Premises without first obtaining Landlord’sconsent, which consent shall not be unreasonably withheld.  With respect to any Alterations made by or onbehalf of Tenant (whether or not the Alteration requires Landlord’s consent):  (i) not less than 10 days prior tocommencing any Alteration, Tenant shall deliver to Landlord the plans,specifications and necessary permits for the Alteration, together withcertificates evidencing that Tenant’s contractors and subcontractors haveadequate insurance coverage naming Landlord, Liberty Property Trust and anyother associated or affiliated entity as their interests may appear asadditional insureds, (ii) Tenant shall obtain Landlord’s prior writtenapproval of any contractor or subcontractor which approval shall not be unreasonablywithheld, conditioned, or delayed, (iii) the Alteration shall beconstructed with new materials, in a good and workmanlike manner, and incompliance with all Laws and the plans and specifications delivered to, and, ifrequired above, approved by Landlord, which approval shall not be unreasonablywithheld, conditioned, or delayed, (iv) Tenant shall pay Landlord allreasonable costs and expenses in connection with Landlord’s review of Tenant’splans and specifications, and of any supervision or inspection of theconstruction Landlord deems necessary, but not to exceed ten percent (10%) ofthe anticipated cost of the Alteration, and (v) upon Landlord’s requestTenant shall, prior to commencing any Alteration, provide Landlord reasonablesecurity against liens arising out of such construction.  Any Alteration by Tenant shall be theproperty of Tenant until the expiration or termination of this Lease; at thattime without payment by Landlord the Alteration shall remain on the Propertyand become the property of Landlord unless Landlord gives notice to Tenant toremove it, in which event Tenant will remove it, will repair any resultingdamage and will restore the Premises to the condition existing prior to Tenant’sAlteration except for reasonable normal wear and tear.  At Tenant’s request prior to Tenant makingany Alterations, Landlord will notify Tenant whether Tenant is required toremove the Alterations at the expiration or termination of this Lease.  Tenant may install its trade fixtures,furniture and equipment in the Premises, provided that the installation andremoval of them will not affect any structural portion of the Property, anyBuilding System or any other equipment or facilities serving the Building orany occupant.  Notwithstanding anythingherein to the contrary, Tenant is permitted to make Alterations that (i) arenot visible from the exterior of the Premises, (ii) do not affect thestructure of the Building or the operation of any Building System, (iii) donot require penetrations into the floor, ceiling or walls, (iv) do notrequire work within the walls,

 

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# below thefloor, or above the ceiling, and (v) cost less than $5,000 for anyparticular Alteration (“Minor Alteration”) without the advance written consentof the Landlord, provided that Tenant advises Landlord of the Minor Alterationprior to commencing the work.

#  

# **13.          Mechanics’Liens.**  Tenantpromptly shall pay for any labor, services, materials, supplies or equipmentfurnished to Tenant in or about the Premises. Tenant shall keep the Premises and the Property free from any liensarising out of any labor, services, materials, supplies or equipment furnishedor alleged to have been furnished to Tenant. Tenant shall take all steps permitted by law in order to avoid theimposition of any such lien.  Should anysuch lien or notice of such lien be filed against the Premises or the Property,Tenant shall discharge the same by bonding or otherwise within 15 days afterTenant has notice that the lien or claim is filed regardless of the validity ofsuch lien or claim.  Notwithstandinganything to the contrary, Tenant shall have no responsibility or liens causedby Landlord or Landlord’s Agents.

#  

# **14.          Landlord’sRight of Entry.** Tenant shall permit Landlord and its Agents to enter the Premises at allreasonable times following reasonable notice (except in an emergency) toinspect, Maintain, or make Alterations to the Premises or Property, to exhibitthe Premises for the purpose of sale or financing, and, during the last 12months of the Term, to exhibit the Premises to any prospective tenant.  Landlord will make reasonable efforts not toinconvenience Tenant in exercising such rights, but Landlord shall not beliable for any interference with Tenant’s occupancy resulting from Landlord’sentry.  Landlord acknowledges that Tenanthas developed certain knowledge and information concerning know-how, methods ofdoing business, methods of construction, marketing information, financialrecords, material specifications, cost information, supplier, customer andvendor information, design methods and other information relative to themedical device industry which Tenant regards as proprietary, confidential,and/or trade secret information, whether in oral, written, or other tangibleform (collectively referred to as “Confidential Information”).  Access to the Premises shall not entitle theLandlord or its Agents to gather, copy, disclose or otherwise disseminate anyConfidential Information and at all times such Confidential Information shallbe held in strict confidence by Landlord and Landlord’s Agents.

#  

# **15.          Damage by Fire or OtherCasualty.**  Ifthe Premises or Common Areas shall be damaged or destroyed by fire or othercasualty, Tenant shall promptly notify Landlord, and Landlord, subject to theconditions set forth in this Section, shall repair such damage and restore thePremises or Common Areas to substantially the same condition in which they wereimmediately prior to such damage or destruction, but not including the repair,restoration or replacement of the fixtures, equipment, or Alterations installedby or on behalf of Tenant.  Landlordshall notify Tenant, within 30 days after the date of the casualty, if Landlordanticipates that the restoration will take more than 180 days from the date ofthe casualty to complete; in such event, either Landlord or Tenant (unless thedamage was caused by Tenant) may terminate this Lease effective as of the dateof casualty by giving notice to the other within 10 days after Landlord’snotice.  If a casualty occurs during thelast 12 months of the Term, Landlord may terminate this Lease unless Tenant hasthe right to extend the Term for at least 2 more years and does so within 30days after the date of the casualty.  Moreover,Landlord may terminate this Lease if the loss is not covered by the insurancerequired to be maintained by Landlord under this Lease.  Tenant will receive an abatement of MinimumAnnual Rent and Annual Operating Expenses to the extent the Premises arerendered untenantable as a result of the casualty.

 

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# **16.          Condemnation.**  If (a) all of the Premises are Taken, (b) anypart of the Premises is Taken and the remainder is insufficient in Landlord’sopinion for the reasonable operation of Tenant’s business, or (c) any ofthe Property is Taken, and, in Landlord’s opinion, it would be impractical orthe condemnation proceeds are insufficient to restore the remainder, then thisLease shall terminate as of the date the condemning authority takes possession.  If this Lease is not terminated, Landlordshall restore the Building to a condition as near as reasonably possible to thecondition prior to the Taking, the Minimum Annual Rent shall be abated for theperiod of time all or a part of the Premises is untenantable in proportion tothe square foot area untenantable, and this Lease shall be amendedappropriately.  The compensation awardedfor a Taking shall belong to Landlord.  Exceptfor any relocation benefits to which Tenant may be entitled, Tenant herebyassigns all claims against the condemning authority to Landlord, including, butnot limited to, any claim relating to Tenant’s leasehold estate.

#  

# **17.          QuietEnjoyment.**  Landlordcovenants that Tenant, upon performing all of its covenants, agreements andconditions of this Lease, shall have quiet and peaceful possession of thePremises as against anyone claiming by or through Landlord, subject, however,to the terms of this Lease.

#  

# **18.          Assignment and Subletting.**

#  

## **(a)          **Exceptas provided in Section (b) below, Tenant shall not enter into norpermit any Transfer voluntarily or by operation of law, without the priorconsent of Landlord, which consent shall not be unreasonably withheld.  Without limitation, Tenant agrees thatLandlord’s consent shall not be considered unreasonably withheld if (i) theproposed transferee is an existing tenant of Landlord or an affiliate ofLandlord, (ii) the business, business reputation or creditworthiness ofthe proposed transferee is unacceptable to Landlord, (iii) Landlord hascomparable space available in the Building for lease by the proposed transfereeor (iv) an Event of Default shall exist on the part of Tenant under thisLease.  A consent to one Transfer shallnot be deemed to be a consent to any subsequent Transfer.  In no event shall any Transfer relieve Tenantfrom any obligation under this Lease.  Landlord’sacceptance of Rent from any person shall not be deemed to be a waiver byLandlord of any provision of this Lease or to be a consent to any Transfer.  Any Transfer not in conformity with this Section 18shall be void at the option of Landlord.

##  

## **(b)          **Landlord’sconsent shall not be required in the event of any Transfer by Tenant to anAffiliate provided that (i) the Affiliate has a tangible net worth atleast equal to that of Tenant as of the date of this Lease, (ii) Tenantprovides Landlord notice of the Transfer at least 15 days prior to theeffective date, together with current financial statements of the Affiliatecertified by an executive officer of the Affiliate, and (iii) in the caseof an assignment or sublease, Tenant delivers to Landlord an assumptionagreement reasonably acceptable to Landlord executed by Tenant and theAffiliate, together with a certificate of insurance evidencing the Affiliate’scompliance with the insurance requirements of Tenant under this Lease.

##  

## **(c)          **Theprovisions of subsection (a) above notwithstanding, if Tenantproposes to Transfer all of the Premises (other than to an Affiliate), Landlordmay terminate this Lease, either conditioned on execution of a new leasebetween Landlord and the proposed transferee or without that condition.  If Tenant proposes to enter into a Transferof less than all of the Premises

 

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## (other than to an Affiliate), Landlord mayamend this Lease to remove the portion of the Premises to be transferred,either conditioned on execution of a new lease between Landlord and theproposed transferee or without that condition. If this Lease is not so terminated or amended, Tenant shall pay toLandlord, immediately upon receipt, the excess of (i) all compensationreceived by Tenant for the Transfer over (ii) the Rent allocable to thePremises transferred.  If Landlord electsto terminate this Lease upon any such Transfer, Tenant shall be foreverreleased from any and all obligations under this Lease arising from and afterthe date of termination.

##  

## **(d)          **IfTenant requests Landlord’s consent to a Transfer, Tenant shall provideLandlord, at least 15 days prior to the proposed Transfer, current financialstatements of the transferee certified by an executive officer of thetransferee, a complete copy of the proposed Transfer documents, and any otherinformation Landlord reasonably requests. Immediately following any approved assignment or sublease, Tenant shalldeliver to Landlord an assumption agreement reasonably acceptable to Landlordexecuted by Tenant and the transferee, together with a certificate of insuranceevidencing the transferee’s compliance with the insurance requirements ofTenant under this Lease.  Tenant agreesto reimburse Landlord for reasonable administrative and attorneys’ fees inconnection with the processing and documentation of any Transfer for whichLandlord’s consent is requested.

##  

# **19.          Subordination; Mortgagee’sRights.**

#  

## **(a)          **Tenantaccepts this Lease subject and subordinate to any Mortgage now or in the futureaffecting the Premises, provided that Tenant’s right of possession of thePremises shall not be disturbed by the Mortgagee so long as Tenant is not indefault under this Lease.  This clauseshall be self-operative, but within 10 days after request, Tenant shall executeand deliver any further instruments confirming the subordination of this Leaseand any further instruments of attornment that the Mortgagee may reasonablyrequest.  However, any Mortgagee may atany time subordinate its Mortgage to this Lease, without Tenant’s consent, by givingnotice to Tenant, and this Lease shall then be deemed prior to such Mortgagewithout regard to their respective dates of execution and delivery; providedthat such subordination shall not affect any Mortgagee’s rights with respect tocondemnation awards, casualty insurance proceeds, intervening liens or anyright which shall arise between the recording of such Mortgage and theexecution of this Lease.

##  

## **(b)          **NoMortgagee shall be (i) liable for any act or omission of a prior landlord,(ii) subject to any rental offsets or defenses against a prior landlord, (iii) boundby any amendment of this Lease made without its written consent, or (iv) boundby payment of Monthly Rent more than one month in advance or liable for anyother funds paid by Tenant to Landlord unless such funds actually have beentransferred to the Mortgagee by Landlord.

##  

## **(c)          **Theprovisions of Sections 15 and 16 above notwithstanding, Landlord’s obligationto restore the Premises after a casualty or condemnation shall be subject tothe consent and prior rights of any Mortgagee.

##  

# **20.          Tenant’s Certificate;Financial Information.**  Within 10 days after Landlord’s request fromtime to time, (a) Tenant shall execute, acknowledge and deliver toLandlord, for the benefit of Landlord, Mortgagee, any prospective Mortgagee,and any prospective purchaser of

 

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# Landlord’sinterest in the Property, an estoppel certificate in the form of attached **Exhibit “C”** (or other form requestedby Landlord), modified as necessary to accurately state the facts represented,and (b) Tenant shall furnish to Landlord, Landlord’s Mortgagee,prospective Mortgagee and/or prospective purchaser reasonably requestedfinancial information.

#  

# **21.          Surrender.**

#  

## **(a)          **Onthe date on which this Lease expires or terminates, Tenant shall returnpossession of the Premises to Landlord in good condition, except for ordinarywear and tear, and except for casualty damage or other conditions that Tenantis not required to remedy under this Lease. Prior to the expiration or termination of this Lease, Tenant shallremove from the Property all furniture, trade fixtures, equipment, wiring andcabling (unless Landlord directs Tenant otherwise), and all other personalproperty installed by Tenant or its assignees or subtenants.  Tenant shall repair any damage resulting fromsuch removal and shall restore the Property to good order and condition.  Any of Tenant’s personal property not removedas required shall be deemed abandoned, and Landlord, at Tenant’s expense, mayremove, store, sell or otherwise dispose of such property in such manner asLandlord may see fit and/or Landlord may retain such property or sale proceedsas its property.  If Tenant does notreturn possession of the Premises to Landlord in the condition required underthis Lease, Tenant shall pay Landlord all resulting damages Landlord maysuffer.

##  

## **(b)          **IfTenant remains in possession of the Premises after the expiration ortermination of this Lease, Tenant’s occupancy of the Premises shall be that ofa tenancy at will.  Tenant’s occupancyduring any holdover period shall otherwise be subject to the provisions of thisLease (unless clearly inapplicable), except that the Monthly Rent shall be 150%of the Monthly Rent payable for the last full month immediately preceding theholdover.  No holdover or payment byTenant after the expiration or termination of this Lease shall operate toextend the Term or prevent Landlord from immediate recovery of possession ofthe Premises by summary proceedings or otherwise.  Any provision in this Lease to the contrarynotwithstanding, any holdover by Tenant shall constitute a default on the partof Tenant under this Lease entitling Landlord to exercise, without obligationto provide Tenant any notice or cure period, all of the remedies available toLandlord in the event of a Tenant default, and Tenant shall be liable for alldamages, including consequential damages, that Landlord suffers as a result ofthe holdover.

##  

# **22.          Defaults- Remedies.**

#  

## **(a)          **Itshall be an Event of Default:

##  

### (i)            If Tenant does notpay in full when due any and all Rent and, except as provided in Section 22(c) below,Tenant fails to cure such default on or before the date that is 5 business daysafter Landlord gives Tenant notice of default;

###  

### (ii)           If Tenant entersinto or permits any Transfer in violation of Section 18 above;

###  

### (iii)          If Tenant fails toobserve and perform or otherwise breaches any other provision of this Lease,and, except as provided in Section 22(c) below, Tenant fails to curethe default on or before the date that is 10 days after Landlord gives Tenantnotice of default;

 

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### provided, however, if the default cannotreasonably be cured within 10 days following Landlord’s giving of notice,Tenant shall be afforded additional reasonable time (not to exceed 30 daysfollowing Landlord’s notice) to cure the default if Tenant begins to cure thedefault within 10 days following Landlord’s notice and continues diligently ingood faith to completely cure the default; or

###  

### (iv)          If Tenant becomesinsolvent or makes a general assignment for the benefit of creditors or offersa settlement to creditors, or if a petition in bankruptcy or for reorganizationor for an arrangement with creditors under any federal or state law is filed byor against Tenant, or a bill in equity or other proceeding for the appointmentof a receiver for any of Tenant’s assets is commenced, or if any of the real orpersonal property of Tenant shall be levied upon; provided that any proceedingbrought by anyone other than Landlord or Tenant under any bankruptcy,insolvency, receivership or similar law shall not constitute an Event ofDefault until such proceeding has continued unstayed for more than 60consecutive days.

###  

## **(b)          **Ifan Event of Default occurs, Landlord shall have the following rights andremedies:

##  

### (i)            Landlord, withoutany obligation to do so, may elect to cure the default on behalf of Tenant, inwhich event Tenant shall reimburse Landlord upon demand for any sums paid orcosts incurred by Landlord (together with an administrative fee of 15% thereof)in curing the default, plus interest at the Interest Rate from the respectivedates of Landlord’s incurring such costs, which sums and costs together withinterest at the Interest Rate shall be deemed additional Rent;

###  

### (ii)           To enter andrepossess the Premises, by breaking open locked doors if necessary, and removeall persons and all or any property, by action at law or otherwise, withoutbeing liable for prosecution or damages. Landlord may, at Landlord’s option, make Alterations and repairs inorder to relet the Premises and relet all or any part(s) of the Premises forTenant’s account.  Tenant agrees to payto Landlord on demand any deficiency (taking into account all costs incurred byLandlord) that may arise by reason of such reletting.  In the event of reletting without terminationof this Lease, Landlord may at any time thereafter elect to terminate thisLease for such previous breach;

###  

### (iii)          To accelerate thewhole or any part of the Rent for the balance of the Term, and declare the sameto be immediately due and payable, less any Rent that Landlord may reasonablybe expected to collect from any replacement tenant or occupant at prevailingmarket rates; and

###  

### (iv)          To terminate thisLease and the Term without any right on the part of Tenant to save theforfeiture by payment of any sum due or by other performance of any condition,term or covenant broken.

###  

## **(c)          **Anyprovision to the contrary in this Section 22 notwithstanding, (i) Landlordshall not be required to give Tenant the notice and opportunity to cureprovided in Section 22(a) above more than twice in any consecutive 12-monthperiod, and thereafter Landlord may declare an Event of Default withoutaffording Tenant any of the notice and cure rights provided under

 

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## this Lease, and (ii) Landlord shall notbe required to give such notice prior to exercising its rights under Section 22(b) ifTenant fails to comply with the provisions of Sections 13, 20 or 27 or in anemergency.

##  

## **(d)          **Nowaiver by Landlord of any breach by Tenant shall be a waiver of any subsequentbreach, nor shall any forbearance by Landlord to seek a remedy for any breachby Tenant be a waiver by Landlord of any rights and remedies with respect tosuch or any subsequent breach.  Effortsby Landlord to mitigate the damages caused by Tenant’s default shall notconstitute a waiver of Landlord’s right to recover damages hereunder.  No right or remedy herein conferred upon orreserved to Landlord is intended to be exclusive of any other right or remedyprovided herein or by law, but each shall be cumulative and in addition toevery other right or remedy given herein or now or hereafter existing at law orin equity.  No payment by Tenant orreceipt or acceptance by Landlord of a lesser amount than the total amount dueLandlord under this Lease shall be deemed to be other than on account, norshall any endorsement or statement on any check or payment be deemed an accordand satisfaction, and Landlord may accept such check or payment withoutprejudice to Landlord’s right to recover the balance of Rent due, or Landlord’sright to pursue any other available remedy.

##  

## **(e)          **Ifeither party commences an action against the other party arising out of or inconnection with this Lease, the prevailing party shall be entitled to have andrecover from the other party attorneys’ fees, costs of suit, investigationexpenses and discovery costs, including costs of appeal.

##  

## **(f)           **Landlordand Tenant waive the right to a trial by jury in any action or proceeding basedupon or related to, the subject matter of this Lease.

##  

# **23.          Authority.**  Tenant represents and warrants to Landlordthat:  (a) Tenant is duly formed,validly existing and in good standing under the laws of the state under whichTenant is organized, and qualified to do business in the state in which theProperty is located, and (b) the person(s) signing this Lease are dulyauthorized to execute and deliver this Lease on behalf of Tenant.  Landlord represents and warrants to Tenantthat:  (a) Landlord is duly formed,validly existing and in good standing under the laws of the state under whichLandlord is organized and qualified to do business in the state in which theProperty is located, (b) has the legal right to lease to Tenant thePremises and (c) the person(s) signing this Lease are duly authorized toexecute and deliver this Lease on behalf of Landlord.

#  

# **24.          Liabilityof Landlord.** The word **“Landlord”** in thisLease includes the Landlord executing this Lease as well as its successors andassigns, each of which shall have the same rights, remedies, powers,authorities and privileges as it would have had it originally signed this Leaseas Landlord.  Any such person or entity,whether or not named in this Lease, shall have no liability under this Leaseafter it ceases to hold title to the Premises except for obligations alreadyaccrued (and, as to any unapplied portion of Tenant’s Security Deposit,Landlord shall be relieved of all liability upon transfer of such portion toits successor in interest).  Tenant shalllook solely to Landlord’s successor in interest for the performance of thecovenants and obligations of the Landlord hereunder which subsequently accrue.  Landlord shall not be deemed to be in defaultunder this Lease unless Tenant gives Landlord notice specifying the default andLandlord fails to cure the default within a reasonable period following Tenant’snotice.  In no

 

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# event shallLandlord be liable to Tenant for any loss of business or profits of Tenant orfor consequential, punitive or special damages of any kind.  Neither Landlord nor any principal ofLandlord nor any owner of the Property, whether disclosed or undisclosed, shallhave any personal liability with respect to any of the provisions of this Leaseor the Premises; Tenant shall look solely to the equity of Landlord in theProperty for the satisfaction of any claim by Tenant against Landlord.

#  

# **25.          Miscellaneous.**

#  

## **(a)          **Thecaptions in this Lease are for convenience only, are not a part of this Leaseand do not in any way define, limit, describe or amplify the terms of thisLease.

##  

## **(b)          **ThisLease represents the entire agreement between the parties hereto and there areno collateral or oral agreements or understandings between Landlord and Tenantwith respect to the Premises or the Property. No rights, easements or licenses are acquired in the Property or anyland adjacent to the Property by Tenant by implication or otherwise except asexpressly set forth in this Lease.  ThisLease shall not be modified in any manner except by an instrument in writingexecuted by the parties.  The masculine(or neuter) pronoun and the singular number shall include the masculine, feminineand neuter genders and the singular and plural number.  The word “including” followed by any specificitem(s) is deemed to refer to examples rather than to be words of limitation.  The word “person” includes a natural person,a partnership, a corporation, a limited liability company, an association andany other form of business association or entity.  Both parties having participated fully andequally in the negotiation and preparation of this Lease, this Lease shall notbe more strictly construed, nor any ambiguities in this Lease resolved, againsteither Landlord or Tenant.

##  

## **(c)          **Eachcovenant, agreement, obligation, term, condition or other provision containedin this Lease shall be deemed and construed as a separate and independentcovenant of the party bound by, undertaking or making the same, not dependenton any other provision of this Lease unless otherwise expressly provided.  All of the terms and conditions set forth inthis Lease shall apply throughout the Term unless otherwise expressly set forthherein.

##  

## **(d)          **Ifany provisions of this Lease shall be declared unenforceable in any respect,such unenforceability shall not affect any other provision of this Lease, andeach such provision shall be deemed to be modified, if possible, in such a manneras to render it enforceable and to preserve to the extent possible the intentof the parties as set forth herein.  ThisLease shall be construed and enforced in accordance with the laws of the statein which the Property is located.

##  

## **(e)          **ThisLease shall be binding upon and inure to the benefit of Landlord and Tenant andtheir respective heirs, personal representatives and permitted successors andassigns.  All persons liable for theobligations of Tenant under this Lease shall be jointly and severally liablefor such obligations.

##  

## **(f)           **Tenantshall not record this Lease or any memorandum without Landlord’s prior consent.

##  

# **26.          Notices.**  Any notice, consent or other communicationunder this Lease shall be in writing and addressed to Landlord or Tenant attheir respective addresses specified in Section 1 above

 

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# (or to suchother address as either may designate by notice to the other) with a copy toany Mortgagee or other party designated by Landlord.  Each notice or other communication shall bedeemed given if sent by prepaid overnight delivery service or by certifiedmail, return receipt requested, postage prepaid or in any other manner, withdelivery in any case evidenced by a receipt, and shall be deemed to have beengiven on the day of actual delivery to the intended recipient or on thebusiness day delivery is refused.  Thegiving of notice by Landlord’s attorneys, representatives and agents under thisSection shall be deemed to be the acts of Landlord.

#  

# **27.          Security Deposit/Letter ofCredit.**  Uponexecution of this Lease, Tenant shall deposit with Landlord and shall maintainat all times on deposit with Landlord and keep whole and unencumbered anirrevocable, assignable, non-documentary standby letter of credit in form, andissued by, a financial institution acceptable to Landlord in the amount ofThirty-three Thousand Dollars ($33,000.00), as security for the faithfulperformance by Tenant of every term and condition of this Lease, it beingexpressly understood and agreed that Tenant may not direct Landlord to applysaid security in payment of Rent for any month during the Lease Term.  If there shall be a breach or default byTenant in respect of any term or condition of this Lease, and such breach or defaultis not cured within the applicable cure period, if any, Landlord may draw uponall or any part of the letter of credit to perform the same for the account ofTenant, or for any damages, whether such damages or default accrue before orafter summary proceedings or re-entry by Landlord.  Landlord shall not be required so to use,apply or retain the whole or any part of said security nor shall the provisionsherein contained limit the rights and remedies of Landlord under this Lease.  If Tenant shall fully and faithfully complywith all of the provisions of this Lease, then, upon the termination orexpiration of this Lease by lapse of time or otherwise and Tenant’s surrenderof the Premises in the condition required under this Lease, said security orany balance thereof remaining, shall be returned to Tenant within 30 days aftersuch termination or expiration and surrender, as applicable.  In the event of any sale, transfer orassignment of Landlord’s interest under this Lease, Landlord may transfer or assignsaid security to the transferee, and Landlord thereupon shall be released fromall liability with respect to said security provided that the transfereeaccepts responsibility for said security. Without affecting the non-documentary status of the letter of credit andwithout involving the issuer of the letter of credit in any matters affectingthis Lease, Landlord shall not present a draft under the letter of credit forpayment unless (1) a default exists on the part of Tenant beyond anyapplicable notice and cure period or (2) the letter is scheduled to expirebefore the time specified above for the return of the security to Tenant, andat least 20 days before the expiration of the letter of credit a renewal letterof credit shall not have been delivered to Landlord.  Tenant agrees to keep renewing the letter ofcredit until the time specified above for the return of the security to Tenant,without any need on the part of Landlord to give Tenant any notice that it isin default in supplying that renewal, any provision of this Lease as to noticeof default to Tenant to the contrary notwithstanding.  The employment of a letter of credit is anaccommodation to Tenant and the object of this Section is to preserveLandlord’s rights to deal with the security as if it were cash.  Without limiting the foregoing, the issuer ofthe letter of credit has no interest in, or concern with, this Lease or theperformance under it by either party.  Theissuer’s sole obligation is to honor a sight draft timely drawn and presented.

#  

# **28.          AutomaticFunds Transfer.** Monthly Rent payments shall be made automatically via electronic fundstransfer to an account designated by Landlord.

 

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# **29.          Initial Tenant Improvements.**

#  

## **(a)           PlanApproval.**  Landlordand Tenant hereby approve the plans and specifications dated July 28, 2005prepared by WCL Associates, Inc., for the initial leasehold improvementsto be constructed by Landlord (the “Initial Tenant Improvements”) attached tothis Lease as **Exhibit ”E”**(the “Plans”).  The Initial TenantImprovements to be constructed by Landlord do not include any of the alternateslisted on the Plans.

##  

## **(b)           Completionby Landlord.**  Landlordshall complete the Initial Tenant Improvements, at Landlord’s expense, in accordancewith the Plans.  The Initial TenantImprovements shall be substantially completed ready for use and occupancy byTenant on or about **November 1, 2005**(the “Target Completion Date”), subject to extension for delays due to anycause beyond the reasonable control of Landlord or Landlord’s contractors orsuppliers.  All construction shall bedone in a good and workmanlike manner.  Tenant’soccupancy of the Premises shall constitute Tenant’s acceptance of Landlord’swork, subject only to punch list items agreed to between Landlord and Tenantprior to such occupancy.  The InitialTenant Improvements do not include any improvements other than as shown on thePlans and do not include any of Tenant’s trade fixtures, equipment or personalproperty, all of which shall be Tenant’s sole cost and responsibility.

##  

## **(c)           Access.**  Prior to the completion of the Initial TenantImprovements, Tenant shall be afforded access to the Premises, at Tenant’s ownrisk, expense and responsibility, for purposes of installing Tenant’s tradefixtures and equipment, provided Tenant does not interfere with Landlord’stimely completion of the Initial Tenant Improvements.  In connection with access by Tenant, if any,prior to the Commencement Date, Tenant shall abide by the terms and conditionsof this Lease including carrying the insurance specified by the Lease, as ifthe Term of this Lease had already commenced, except that Tenant shall have noobligation to pay Minimum Annual Rent or Operating Expenses for the periodpreceding the Commencement Date.  Tenantshall also pay the charges for all utilities furnished to the Premises duringTenant’s pre-commencement access period, if any, as reasonably estimated byLandlord.  This Lease, and Monthly Rent,shall commence on **November 1, 2005**,and the Commencement Date is not tied to the completion by Landlord of theInitial Tenant Improvements.  Landlordshall have the right to restrict Tenant’s access, whether before or after theCommencement Date, as reasonably necessary to complete the Initial TenantImprovements.

##  

# **30.          Parking.**  Tenant shall be entitled to the exclusive useof 90 parking spaces (based on 2.83 spaces per 1,000 rentable square feet), asshown on attached **Exhibit “F”**.  Tenant may sign (in a manner consistent withLandlord’s sign criteria) a portion of Tenant’s exclusive parking for Tenantvisitor parking and Tenant reserved parking. Tenant shall not utilize parking in excess of the ratio afforded Tenantin this lease.

#  

Tenant desires to expand its office use of the Premises beyond thatcurrently permitted under Section 1(i) of this Lease and under theCity parking requirements.  In thatregard, Tenant, with Landlord’s consent and assistance, is seeking an InterimUse Permit from the City of Plymouth that would permit Tenant to expand itsoffice space within the Premises by providing off-site parking for Tenant’semployees at certain premises Tenant leases from Landlord at 4600 Nathan Lane (“AdditionalParking”).  If Tenant obtains the InterimUse Permit, and so long as the

 

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Interim Use Permits remains in force, Tenant may build out and use suchportion of the Premises for office uses as the City may permit pursuant to theInterim Use Permit.  Tenant shall besolely responsible for obtaining the Interim Use Permit at its sole cost andexpense, and shall be solely responsible for complying with all requirementsand conditions imposed by the City in connection with the Interim Use Permit.  Landlord agrees to cooperate (without out-of-pocketexpense to Landlord) with Tenant in obtaining the Interim Use Permit and anyother permit required by the City to obtain the Additional Parking.  Any rights Tenant may have to park vehiclesat 4600 Nathan Lane shall terminate upon the expiration or termination ofTenant’s tenancy in that property.

 

In the event that the City does not issue all permits necessary for theexpansion of Tenant’s office for the Additional Parking on or before September 30,2005, Tenant may, at its discretion, elect to terminate this Lease by givingwritten notice of termination on or before October 3, 2005, time being ofthe essence (if Tenant fails to timely give notice of termination, thistermination right shall be deemed waived and shall be of no further force oreffect).  If Tenant elects to terminatethis Lease, Landlord shall immediately stop work on the Initial TenantImprovements and shall not incur any additional expenses not already incurredor committed by the Landlord in connection with this Lease.  Tenant shall thereafter pay to Landlord allexpenses and costs incurred by the Landlord in connection with the InitialTenant Improvements and the costs incurred by the Landlord, if any, inobtaining the Special Use Permit for the Additional Parking, such costs,however, (cumulatively) not to exceed Two Hundred Thousand Dollars ($200,000).  Landlord shall provide to Tenant alldocumentation reasonably necessary to substantiate that Landlord has incurredor is committed to the above costs.  Landlordshall have the right to suspend construction of the Initial Tenant Improvementsonce the $200,000 threshold described above is reached, unless Tenant waives inwriting this termination right.  Any suchsuspension shall not delay the Commencement Date of this Lease.

 

In the event the City fails to issue the Interim Use Permit, and in theevent Tenant does not terminate this Lease as provided above, upon Tenant’srequest Landlord will cooperate with Tenant with respect to exploring optionsfor alternative space to be provided by Landlord to Tenant, which may include abuild-to-suit property to be constructed by Landlord and leased to Tenant.  This paragraph does not constitute a bindingcommitment on the part of Landlord to provide Tenant alternative space, and noobligation on the part of Landlord to provide, or Tenant to accept, alternativespace shall exist unless and until Landlord and Tenant enter into a definitiveagreement relating to the acquisition, construction and/or leasing of suchalternative space, as applicable.  It isanticipated that any such agreement will provide for the termination of thisLease effective as of the date Tenant has occupied the alternative space underthe new lease with Landlord and commenced payment of rent to Landlordthereunder.  This paragraph shall applyonly while Liberty Property Limited Partnership is the Landlord under thisLease, and this paragraph shall terminate upon the sale or other disposition ofLiberty’s interest in the Building.  Withoutlimiting the foregoing, the obligations under this paragraph shall not bind anyMortgagee of the Building.

 

# **31.          Rightof First Offer.** The term “Offer Space” herein means any space contiguous to the Premisesthat becomes available in the Building.  Inthe event any Offer Space is available for lease at any time during the Term ofthis Lease, and the party, if any, in possession of such Offer Space does notdesire to remain in possession, Landlord shall give Tenant written notice ofthe

 

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# availabilityof such Offer Space and of the proposed Minimum Annual Rent for such OfferSpace (which shall be the then prevailing rate for comparable space in theBuilding as reasonably determined by Landlord), and Tenant shall have theright, at its option, to lease such Offer Space provided (a) Tenantdelivers to Landlord written notice exercising its right to lease such OfferSpace within 20 business days of receipt of Landlord’s notice of availabilityof such Offer Space, and (b) Tenant is not in default in any materialrespect under this Lease at the time Tenant exercises its right to lease suchOffer Space and at the time Tenant is to take possession of such Offer Space.  If Tenant fails to exercise timely its rightto lease such Offer Space with respect to a particular notice of availabilitygiven by Landlord, Tenant will have no further right (ahead of any other personor entity) to lease such Offer Space, and this right of first offer shallterminate with respect to such Offer Space. If Tenant elects to exercise its right to lease such Offer Space, theterms, conditions and covenants applicable to such Offer Space shall be as setforth in this Lease, except that the Minimum Annual Rent regarding such spaceshall be at the then prevailing rate for comparable space in the Building asdetermined by Landlord and as stated in the offer notice, and the Offer Spaceshall be delivered to Tenant in an “as is” condition.  The commencement date for the lease coveringsuch space shall be the date following the exercise of such option on whichsuch space is first made available to Tenant. If Tenant exercises its right to lease such space, Landlord and Tenantshall execute and deliver an appropriate amendment to this Lease regarding thelease of such space.  The foregoingnotwithstanding, Tenant shall have no right to lease any Offer Space unless atleast two (2) full years remain in the Term hereof or unless Tenant hasthe right to extend the Term and does so in connection with its lease of theOffer Space.  The rights provided Tenantin this Section shall be subject to any prior rights of any existingtenant of the Building.  If Tenantexercises its rights to lease such Offer Space, then Tenant shall be affordedan additional 2.83 parking spaces per 1,000 rentable square feet of the OfferSpace.

#  

Without limiting the foregoing, Landlord will use reasonable efforts torelocate the current tenant of Suite 140 to another property owned byLandlord.  The relocation will be subjectto Landlord entering into an agreement acceptable to Landlord, in its solediscretion, with said tenant for the termination of its current lease for Suite 140and for the leasing of the replacement premises.  If Landlord is able to reach agreement withthe tenant, Landlord will offer Suite 140 to Tenant on the terms andconditions of this Section, provided, however, that Tenant’s time to respond toLandlord’s offer of Suite 140 shall be reduced from 20 business days to 5business days.

 
| **Landlord’s approval:** | /s/ Robert  L. Kiel                          |   |
|-------------------------------|----------------------------------------------|--------|
|                          | **Senior Vice President, Regional Director** |

 

# **32.          LeasingRestriction.** Landlord agrees that it will not lease any space in the Building to aCompetitor of Tenant without first obtaining Tenant’s prior written consent.  For purposes of this Section, “Competitor”means any company engaged in the manufacturing, sale, distribution, researchand development, or marketing of medical devices.  This restriction shall be effective only solong as Tenant is occupying at least 50% of the Premises, and shall expire uponthe subleasing by Tenant of 50% or more of the Premises (other than to anAffiliate of Tenant) or upon an assignment of this Lease (other than to anAffiliate of Tenant).

 

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# **33.          BuildingName.**  Landlordshall not change the name of the Building without Tenant’s consent.  Landlord shall not grant any other tenant oroccupant of the Building the right to name the Building without Tenant’sconsent.

#  

# **34.          ExtensionOptions**.  Providedthat there then exists no event of default by Tenant under this Lease beyondany applicable notice and cure period, Tenant shall have the right and optionto extend the Term of this Lease for two (2) additional extension terms ofthree (3) years each.  Each optionmust be exercised, if at all, by giving Landlord prior written notice, noearlier than twelve (12) months and no later than (9) months in advance ofthe expiration date of the then current lease Term, of Tenant’s election toextend the lease Term; it being agreed that time is of the essence.  Each extension Term shall be under the sameterms and conditions as provided in the Lease except as follows:

#  

## **(a)          **thereshall be no further options to extend the term;

##  

## **(b)          **Tenantshall accept the Premises in their “as is” condition, without any obligation onthe part of Landlord to provide any tenant improvements or tenant improvementallowance; and

##  

## **(c)          **theMinimum Annual Rent for the extension term shall be negotiated between Landlordand Tenant as follows:

##  

Landlord shallprovide Tenant written notice of Landlord’s good faith determination of thefair market Minimum Annual Rent (“Landlord’s Rent Determination Notice”) notmore than 30 days following receipt of Tenant’s notice of exercise.  If Tenant disputes Landlord’s determinationand wishes to negotiate the Minimum Annual Rent, Tenant shall so notifyLandlord (“Tenant’s Objection Notice”) within 15 days following Tenant’sreceipt of Landlord’s Rent Determination Notice; Tenant’s Objection Notice shallinclude Tenant’s good faith determination of fair market Minimum Annual Rent.  If Tenant fails to timely send Tenant’sObjection Notice, Tenant shall be deemed to have extended this Lease on theterms set forth in Landlord’s Rent Determination Notice.  If Tenant timely gives Tenant’s ObjectionNotice, Landlord and Tenant shall have until that date that is (7) monthsin advance of the expiration date of the then current lease Term by which toreach a written agreement regarding the Minimum Annual Rent for the applicableextension term.  If Tenant and Landlordfail to reach agreement by that date, Tenant’s exercise of its extension optionshall be deemed rescinded, and this lease shall expire on the expiration dateof the then current lease Term.

 

Upon the effective exercise of an extension option, at the request ofeither party the parties hereto will enter into an appropriate amendment to theLease incorporating the terms of the Lease extension.

 

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Landlord and Tenant have executed this Lease on the respective date(s)set forth below.

 
|         |   | **Landlord:**                                     |
|--------------|--------|---------------------------------------------------|
|         |   |                                              |
|         |   | **LIBERTY PROPERTY LIMITED PARTNERSHIP**          |
|         |   |                                              |
|         |   | By: Liberty  Property Trust, Sole General Partner |
| Date signed: |   |                                              |
|         |   |                                              |
| 8/30/05      |   |                                              |   | By: | /s/ Robert  L. Kiel |   |
|         |   |                                              |   | Name:  Robert L. Kiel |
|         |   |                                              |   | Title:  Senior Vice President, Regional Director |
|         |   |                                              |
|         |   |                                              |
| Date signed: |   | **Tenant:**                                       |
|         |   | ** **                                        |
|         |   |                                              | **ev3, INC.** |
|         |   | ** **                                        |
|         |   | ** **                                        |
|         |   | By:                                               | /s/ Patrick  D. Spangler |   |
|         |   |                                              | Name:  Patrick D. Spangler |
|         |   |                                              | Title:  CFO |
|              |        |                                                   |  |  |  |  |  |  |

 

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