Exhibit 10.2


 


LEASE
AGREEMENT


 


LIBERTY
PROPERTY LIMITED PARTNERSHIP


Landlord


 


AND


 


ev3, INC.


Tenant


 


AT


 


9600 54th
Avenue North


Plymouth,
MN 55441


 





















 


LEASE
AGREEMENT


 


	
  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

  	
   

  



 


i





















 


THIS LEASE AGREEMENT
is made by and between LIBERTY PROPERTY
LIMITED PARTNERSHIP, a Pennsylvania limited partnership (“Landlord”)
and ev3, INC., a corporation
organized under the laws of Delaware (“Tenant”), and is dated as of the date on
which this Lease has been fully executed by Landlord and Tenant.


 


1.             Basic Lease Terms and
Definitions.


 


(a)           Premises:  Suite 100, consisting of approximately
31,718 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 from
the Commencement Date until the first day of the next full calendar month
during the Term).


 


(d)           Commencement
Date:  November 1,
2005


 


(e)           Expiration
Date:  The last
day of the Tenn.


 


(f)            Minimum
Annual Rent:  Payable
in 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)           Annual
Operating Expenses:  $131,312.52, payable in monthly installments
of $10,942.71, subject to adjustment as provided in this Lease.


 


(h)           Tenant’s
Share:  63.41%
(also see Definitions)


 


(i)            Use: General office, production and
manufacturing, research, shipping, receiving, normal business distribution and
warehousing, all to the extent permitted under applicable zoning, provided that
no more than 18,324 rentable square feet shall be used as office.


 


(j)            Security
Deposit:  $33,000
letter of credit


 


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(k)           Addresses
For 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)          Additional
Defined Terms:  See
Rider 1 for the definitions of other capitalized terms.


 


(n)           Contents: The following are attached to and made a
part 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 to
Tenant and Tenant leases from Landlord the Premises, together with the right in
common with others to use the Common Areas. 
Tenant accepts the Premises, Building and Common Areas “AS IS”, without
relying on any representation, covenant or warranty by Landlord except as set
forth in Section 29 (Initial Tenant Improvements) and other than as
expressly set forth in this Lease.  Landlord
and Tenant stipulate and agree to the rentable square footage set forth in Section l(a) above
without regard to actual measurement.


 


3.             Use.  Tenant shall occupy and use the Premises only
for 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 normal
operations or with the management of the Building.  Tenant shall not use or permit the use of any
portion of the Property for outdoor storage or installations outside of the
Premises.  Tenant may use all Common
Areas only for their intended purposes.  Landlord
shall 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 shall
end on the Expiration Date, unless sooner terminated in accordance with this
Lease or unless renewed by Tenant in accordance with Section 34 of this
Lease.  Subject to the provisions of Section 29
below, if Landlord is delayed in delivering possession of all or any portion of
the Premises to Tenant as of the Commencement Date, Tenant will take possession
on the date


 


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Landlord
delivers possession, which date will then become the Commencement Date (and the
Expiration Date will be extended so that the length of the Term remains unaffected
by such delay).


 


5.             Rent.  Tenant agrees to pay to Landlord, without
demand, deduction or offset, Minimum Annual Rent and Annual Operating Expenses
for the Term.  Tenant shall pay the
Monthly Rent, in advance, on the first day of each calendar month during the
Term as set forth in Paragraph 28 unless Landlord designates otherwise;
provided that Monthly Rent for the first full month shall be paid at the
signing of this Lease.  If the
Commencement Date is not the first day of the month, the Monthly Rent for that
partial month shall be apportioned on a per diem basis and shall be paid on or
before the Commencement Date.  Tenant
shall pay Landlord a service and handling charge equal to 5% of any Rent not
paid within 5 business days after the date due, provided that no such handling
charge 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 bear
interest at the Interest Rate from the date due to the date paid.  If any taxes, special assessments, fees or
other charges are imposed against Landlord by any authority with respect to the
Rent, Tenant will pay these amounts to Landlord when due.


 


6.             Operating
Expenses.  The
amount of the Annual Operating Expenses set forth in Section 1(g) above
represents Tenant’s Share of the estimated Operating Expenses for the calendar
year in which the Term commences.  Landlord
may adjust such amount from time to time if the estimated Annual Operating Expenses
increase or decrease.  By March 31st
of each year (and as soon as practical after the expiration or termination of
this Lease or, at Landlord’s option, after a sale of the Property), Landlord
shall provide Tenant with a statement of Operating Expenses for the preceding
calendar year or part thereof.  Within 30
days after delivery of the statement to Tenant, Landlord or Tenant shall pay to
the other the amount of any overpayment or deficiency then due from one to the
other or, at Landlord’s option, Landlord may credit Tenant’s account for any
overpayment.  If Tenant does not give
Landlord notice within 30 days after receiving Landlord’s statement that Tenant
disagrees 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 any
overpayment or deficiency due the other pursuant to this Section shall
survive the expiration or termination of this Lease.  Notwithstanding any other provision of this
Lease to the contrary, Landlord may, in its reasonable discretion, determine
from time to time the method of computing and allocating Operating Expenses,
including the method of allocating Operating Expenses to various types of space
within the Building to reflect any disparate levels of services provided to
different types of space.  If the
Building is not fully occupied during any period, Landlord may make a
reasonable adjustment based on occupancy in computing the Operating Expenses for
such period so that Operating Expenses are computed as though the Building had
been fully occupied (this provision is intended to fully allocate to Tenant
those services provided to Tenant, but in no event shall this provision operate
in a manner that would require Tenant to pay for any services provided to or
properly chargeable to any vacant leaseable space in the Building).


 


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


 


3





















 


applicable), then upon the expiration of the Term (or renewal Term, if
applicable), Landlord shall promptly pay to Tenant any net refund actually
received by Landlord after deducting therefrom the costs of contesting
Taxes.  Tenant shall not initiate any
action to reduce or contest real estate taxes on the Property.  However, Landlord agrees to initiate such an
action upon Landlord’s reasonable determination that the assessor has
overvalued the Property, and that a contest is likely to be successful.  If Tenant so requests, Landlord agrees to
consult with and cooperate with Tenant in evaluating the merits of initiating a
tax contest.


 


Tenant shall be entitled at any reasonable time during regular business
hours, but no more than once in each calendar year, after giving to Landlord at
least ten (10) business days prior written notice, to inspect in Landlord’s
business office all Landlord’s records necessary to satisfy itself that Annual
Operating Expenses has been correctly determined and allocated to Tenant, for
the calendar year immediately preceding the year during which such notice is
given, and to obtain an audit thereof by an independent certified public
accountant (selected by Tenant with Landlord’s written consent, which shall not
be withheld unreasonably) to determine the accuracy of Landlord’s certification
of 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 be
contingent on any such right.  If it is
determined that Tenant’s liability for Annual Operating Expenses for either
such calendar year is less than ninety-five percent (95%) of that amount which
Landlord previously certified to Tenant for such calendar year, Landlord shall
pay to Tenant the cost of such audit (provided, however, that Landlord shall
not be required to pay the cost of any audit based on a contingency fee or percentage
of the amount recovered for Tenant) and regardless of such percentage Landlord
shall refund promptly to Tenant the amount of the Annual Operating Expenses
paid by Tenant for such calendar year which exceeds the amount for which Tenant
actually is liable, as determined following such audit.  If it is determined that Tenant’s liability
for Annual Operating Expenses for either such calendar year is more than the
amount 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 determined
following such audit.  Except as provided
above, Tenant shall bear the total cost of any inspection or audit performed by
or for Tenant.  Tenant shall keep, and
shall cause Tenant’s auditor to keep, the results of such audit or inspection
confidential.


 


7.             Utilities.  Tenant shall pay for water, sewer, gas,
electricity, heat, power, telephone and other communication services and any
other utilities supplied to the Premises. 
Except to the extent Landlord elects to provide any such services and
invoice Tenant for the cost or include the cost in Operating Expenses, Tenant
shall obtain service in its own name and timely pay all charges directly to the
provider.  Landlord shall not be
responsible or liable for any interruption in such services, nor shall such
interruption affect the continuation or validity of this Lease, unless such
interruption in service was caused by the Landlord’s negligence or willful
misconduct.  Landlord shall have the
exclusive right to select, and to change, the companies providing such services
to the Building or Premises, provided that the services are substantially
similar to the services existing as of the Commencement Date.  Any wiring, cabling or other equipment
necessary to connect Tenant’s telecommunications equipment shall be Tenant’s
responsibility, and shall be installed in a manner approved by Landlord.  In the event Tenant’s consumption of any
utility or other service included in Operating Expenses is excessive when
compared with other occupants of the Property, Landlord may invoice Tenant
separately for, and


 


4





















 


Tenant shall
pay on demand, the cost of Tenant’s excessive consumption, as reasonably
determined by Landlord.


 


8.             Insurance; Waivers;
Indemnification.


 


(a)           Landlord
shall maintain insurance against loss or damage to the Building or the Property
with coverage for perils as set forth under the “Causes of Loss-Special Form”
or equivalent property insurance policy in an amount equal to the full
insurable replacement cost of the Building (excluding coverage of Tenant’s
personal property and any Alterations by Tenant), and such other insurance,
including rent loss coverage, as Landlord may reasonably deem appropriate or as
any 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 the
Property, with such coverages and limits of liability as Landlord may
reasonably require, but not less than combined single limits of $5,000,000 per
occurrence and in the aggregate for bodily injury or property damage; however, such
limits shall not limit Tenant’s liability hereunder.  Any general aggregate limit shall apply on a “per
location” basis.  The policy shall name
Landlord, Liberty Property Trust and any other associated or affiliated entity
as their interests may appear and at Landlord’s request, any Mortgagee(s), as
additional 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 it
is primary to and not contributory to any policies carried by Landlord and to
provide that it shall not be cancelable or reduced without at least 30 days
prior notice to Landlord.  The insurer
shall be authorized to issue such insurance, licensed to do business and
admitted in the state in which the Property is located and rated at least A VII
in the most current edition of Best’s
Insurance Reports.  Tenant
shall deliver to Landlord on or before the Commencement Date or any earlier
date on which Tenant accesses the Premises, and at least 30 days prior to the
date of each policy renewal, a certificate of insurance evidencing such
coverage.


 


(c)           Landlord
and Tenant each waive, and release each other from and against, all claims for
recovery against the other for any loss or damage to the property of such party
arising out of fire or other casualty coverable by a standard “Causes of
Loss-Special Form” property insurance policy with, in the case of Tenant, such
endorsements and additional coverages as are considered good business practice
in Tenant’s business, even if such loss or damage shall be brought about by the
fault or negligence of the other party or its Agents; provided, however, such
waiver by Landlord shall not be effective with respect to Tenant’s liability
described in Sections 9(b) and 10(d) below.  This waiver and release is effective
regardless of whether the releasing party actually maintains the insurance
described above in this subsection and is not limited to the amount of
insurance actually carried, or to the actual proceeds received after a loss.  Each party shall have its insurance company
that issues its property coverage waive any rights of subrogation, and shall
have the insurance company include an endorsement acknowledging this waiver, if
necessary.  Tenant assumes all risk of damage
of Tenant’s property within the Property, including any loss or damage caused
by water leakage, fire, windstorm, explosion, theft, act of any other tenant,
or other cause.


 


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


 


5





















 


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


 


(e)           Subject
to subsection (c) above, and except to the extent caused by the
negligence or willful misconduct of Tenant or its Agents, Landlord will
indemnify, defend, and hold harmless Tenant and its Agents from and against any
and all claims, actions, damages, liability and expense (including reasonable
fees of attorneys) which may be asserted against, imposed upon, or incurred by
Tenant 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 extent
occasioned wholly or in part by any negligence or willful misconduct of
Landlord or its Agents, whether prior to, during or after the Term.  Landlord’s obligations pursuant to this subsection shall
survive the expiration or termination of this Lease.


 


9.             Maintenance and Repairs.


 


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


 


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


 


10.          Compliance.


 


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


 


6





















 


property or trade fixtures or relating to
Tenant’s use of the Premises.  Neither
Tenant nor its Agents shall use the Premises in any manner that under any Law
would require Landlord to make any Alteration to or in the Building or Common
Areas (without limiting the foregoing, Tenant shall not use the Premises in any
manner that would cause the Premises or the Property to be deemed a “place of
public accommodation” under the ADA if such use would require any such
Alteration).  Tenant shall be responsible
for compliance with the ADA, and any other Laws regarding accessibility, with
respect to the Premises, except to the extent that violations of the ADA and
said Laws existed prior to Tenant’s use or occupancy of the Premises.


 


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


 


(c)           Tenant
agrees not to do anything or fail to do anything which will increase the cost
of Landlord’s insurance or which will prevent Landlord from procuring policies
(including public liability) from companies and in a form satisfactory to
Landlord.  If any breach of the preceding
sentence 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 days
after being billed.


 


(d)           Tenant
agrees that (i) no activity will be conducted on the Premises that will
use or produce any Hazardous Materials, except for activities which are part of
the ordinary course of Tenant’s business and are conducted in accordance with all
Environmental Laws (“Permitted Activities”); (ii) the Premises will not be
used for storage of any Hazardous Materials, except for materials used in the
Permitted Activities which are properly stored in a manner and location
complying with all Environmental Laws; (iii) no portion of the Premises or
Property will be used by Tenant or Tenant’s Agents for disposal of Hazardous
Materials; (iv) Tenant will deliver to Landlord copies of all Material
Safety Data Sheets and other written information prepared by manufacturers,
importers or suppliers of any chemical; and (v) Tenant will immediately
notify Landlord of any violation by Tenant or Tenant’s Agents of any
Environmental Laws or the release or suspected release of Hazardous Materials
in, under or about the Premises, and Tenant shall immediately deliver to
Landlord a copy of any notice, filing or permit sent or received by Tenant with
respect to the foregoing.  If at any time
during or after the Term, any portion of the Property is found to be
contaminated by Tenant or Tenant’s Agents or subject to conditions prohibited
in 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 any
nature arising from or as a result thereof, except to the extent caused, in
whole or in part, by the Landlord or Landlord’s Agents, and Landlord shall have
the right to direct remediation activities, all of which shall be performed at
Tenant’s cost.  Tenant’s obligations
pursuant to this subsection shall survive the expiration or termination of
this Lease.  Notwithstanding anything
herein to the contrary, Tenant shall not be responsible for costs associated
with any Hazardous Materials to the extent that such Hazardous Materials (A) were
existing on the Premises or Building prior to the Commencement Date or (B) were
generated, transported, stored, used, treated, or disposed of at, to, from, on,
or in the Premises or Building by the Landlord.


 


(e)           Landlord
represents to Tenant that Landlord has received no notice alleging that the
Property is in violation of any Laws, including, but not limited to zoning
regulations and the ADA.


 


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11.          Signs.  Tenant shall not place any signs on the
Property without the prior consent of Landlord, other than signs that are
located wholly within the interior of the Premises and not visible from the
exterior of the Premises.  Tenant shall
have the exclusive right to place a sign panel identifying Tenant on the
Building’s monument sign fronting Highway 169. 
Tenant shall also be entitled to place building-mounted identification
signage above Tenant’s main entrance.  Tenant’s
signage shall be consistent with Landlord’s sign criteria and otherwise subject
to Landlord’s approval, which approval shall not be unreasonably withheld.  Tenant shall cause all Tenant signage to
comply with all Laws.  Tenant shall
maintain all signs installed by Tenant in good condition.  Tenant shall remove its signs at the
termination of this Lease, shall repair any resulting damage, and shall restore
the Property to its condition existing prior to the installation of Tenant’s
signs.


 


12.          Alterations.  Except for cosmetic Alterations (such as
painting, wall covering and floor covering) that (i) are not visible from
the exterior of the Premises, (ii) do not affect the structure of the
Building or any Building System, (iii) do not require penetrations into
the floor, ceiling or walls, and (iv) do not require work within the
walls, below the floor or above the ceiling, Tenant shall not make or permit
any Alterations in or to the Premises without first obtaining Landlord’s
consent, which consent shall not be unreasonably withheld.  With respect to any Alterations made by or on
behalf of Tenant (whether or not the Alteration requires Landlord’s consent):  (i) not less than 10 days prior to
commencing any Alteration, Tenant shall deliver to Landlord the plans,
specifications and necessary permits for the Alteration, together with
certificates evidencing that Tenant’s contractors and subcontractors have
adequate insurance coverage naming Landlord, Liberty Property Trust and any
other associated or affiliated entity as their interests may appear as
additional insureds, (ii) Tenant shall obtain Landlord’s prior written
approval of any contractor or subcontractor which approval shall not be unreasonably
withheld, conditioned, or delayed, (iii) the Alteration shall be
constructed with new materials, in a good and workmanlike manner, and in
compliance with all Laws and the plans and specifications delivered to, and, if
required above, approved by Landlord, which approval shall not be unreasonably
withheld, conditioned, or delayed, (iv) Tenant shall pay Landlord all
reasonable costs and expenses in connection with Landlord’s review of Tenant’s
plans and specifications, and of any supervision or inspection of the
construction Landlord deems necessary, but not to exceed ten percent (10%) of
the anticipated cost of the Alteration, and (v) upon Landlord’s request
Tenant shall, prior to commencing any Alteration, provide Landlord reasonable
security against liens arising out of such construction.  Any Alteration by Tenant shall be the
property of Tenant until the expiration or termination of this Lease; at that
time without payment by Landlord the Alteration shall remain on the Property
and become the property of Landlord unless Landlord gives notice to Tenant to
remove it, in which event Tenant will remove it, will repair any resulting
damage and will restore the Premises to the condition existing prior to Tenant’s
Alteration except for reasonable normal wear and tear.  At Tenant’s request prior to Tenant making
any Alterations, Landlord will notify Tenant whether Tenant is required to
remove 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 and
removal of them will not affect any structural portion of the Property, any
Building System or any other equipment or facilities serving the Building or
any occupant.  Notwithstanding anything
herein to the contrary, Tenant is permitted to make Alterations that (i) are
not visible from the exterior of the Premises, (ii) do not affect the
structure of the Building or the operation of any Building System, (iii) do
not require penetrations into the floor, ceiling or walls, (iv) do not
require work within the walls,


 


8





















 


below the
floor, or above the ceiling, and (v) cost less than $5,000 for any
particular Alteration (“Minor Alteration”) without the advance written consent
of the Landlord, provided that Tenant advises Landlord of the Minor Alteration
prior to commencing the work.


 


13.          Mechanics’
Liens.  Tenant
promptly shall pay for any labor, services, materials, supplies or equipment
furnished to Tenant in or about the Premises. 
Tenant shall keep the Premises and the Property free from any liens
arising out of any labor, services, materials, supplies or equipment furnished
or alleged to have been furnished to Tenant. 
Tenant shall take all steps permitted by law in order to avoid the
imposition of any such lien.  Should any
such 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 after
Tenant has notice that the lien or claim is filed regardless of the validity of
such lien or claim.  Notwithstanding
anything to the contrary, Tenant shall have no responsibility or liens caused
by Landlord or Landlord’s Agents.


 


14.          Landlord’s
Right of Entry. 
Tenant shall permit Landlord and its Agents to enter the Premises at all
reasonable times following reasonable notice (except in an emergency) to
inspect, Maintain, or make Alterations to the Premises or Property, to exhibit
the Premises for the purpose of sale or financing, and, during the last 12
months of the Term, to exhibit the Premises to any prospective tenant.  Landlord will make reasonable efforts not to
inconvenience Tenant in exercising such rights, but Landlord shall not be
liable for any interference with Tenant’s occupancy resulting from Landlord’s
entry.  Landlord acknowledges that Tenant
has developed certain knowledge and information concerning know-how, methods of
doing business, methods of construction, marketing information, financial
records, material specifications, cost information, supplier, customer and
vendor information, design methods and other information relative to the
medical device industry which Tenant regards as proprietary, confidential,
and/or trade secret information, whether in oral, written, or other tangible
form (collectively referred to as “Confidential Information”).  Access to the Premises shall not entitle the
Landlord or its Agents to gather, copy, disclose or otherwise disseminate any
Confidential Information and at all times such Confidential Information shall
be held in strict confidence by Landlord and Landlord’s Agents.


 


15.          Damage by Fire or Other
Casualty.  If
the Premises or Common Areas shall be damaged or destroyed by fire or other
casualty, Tenant shall promptly notify Landlord, and Landlord, subject to the
conditions set forth in this Section, shall repair such damage and restore the
Premises or Common Areas to substantially the same condition in which they were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the fixtures, equipment, or Alterations installed
by or on behalf of Tenant.  Landlord
shall notify Tenant, within 30 days after the date of the casualty, if Landlord
anticipates that the restoration will take more than 180 days from the date of
the casualty to complete; in such event, either Landlord or Tenant (unless the
damage was caused by Tenant) may terminate this Lease effective as of the date
of casualty by giving notice to the other within 10 days after Landlord’s
notice.  If a casualty occurs during the
last 12 months of the Term, Landlord may terminate this Lease unless Tenant has
the right to extend the Term for at least 2 more years and does so within 30
days after the date of the casualty.  Moreover,
Landlord may terminate this Lease if the loss is not covered by the insurance
required to be maintained by Landlord under this Lease.  Tenant will receive an abatement of Minimum
Annual Rent and Annual Operating Expenses to the extent the Premises are
rendered untenantable as a result of the casualty.


 


9





















 


16.          Condemnation.  If (a) all of the Premises are Taken, (b) any
part of the Premises is Taken and the remainder is insufficient in Landlord’s
opinion for the reasonable operation of Tenant’s business, or (c) any of
the Property is Taken, and, in Landlord’s opinion, it would be impractical or
the condemnation proceeds are insufficient to restore the remainder, then this
Lease shall terminate as of the date the condemning authority takes possession.  If this Lease is not terminated, Landlord
shall restore the Building to a condition as near as reasonably possible to the
condition prior to the Taking, the Minimum Annual Rent shall be abated for the
period of time all or a part of the Premises is untenantable in proportion to
the square foot area untenantable, and this Lease shall be amended
appropriately.  The compensation awarded
for a Taking shall belong to Landlord.  Except
for any relocation benefits to which Tenant may be entitled, Tenant hereby
assigns all claims against the condemning authority to Landlord, including, but
not limited to, any claim relating to Tenant’s leasehold estate.


 


17.          Quiet
Enjoyment.  Landlord
covenants that Tenant, upon performing all of its covenants, agreements and
conditions of this Lease, shall have quiet and peaceful possession of the
Premises as against anyone claiming by or through Landlord, subject, however,
to the terms of this Lease.


 


18.          Assignment and Subletting.


 


(a)           Except
as provided in Section (b) below, Tenant shall not enter into nor
permit any Transfer voluntarily or by operation of law, without the prior
consent of Landlord, which consent shall not be unreasonably withheld.  Without limitation, Tenant agrees that
Landlord’s consent shall not be considered unreasonably withheld if (i) the
proposed transferee is an existing tenant of Landlord or an affiliate of
Landlord, (ii) the business, business reputation or creditworthiness of
the proposed transferee is unacceptable to Landlord, (iii) Landlord has
comparable space available in the Building for lease by the proposed transferee
or (iv) an Event of Default shall exist on the part of Tenant under this
Lease.  A consent to one Transfer shall
not be deemed to be a consent to any subsequent Transfer.  In no event shall any Transfer relieve Tenant
from any obligation under this Lease.  Landlord’s
acceptance of Rent from any person shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any Transfer.  Any Transfer not in conformity with this Section 18
shall be void at the option of Landlord.


 


(b)           Landlord’s
consent shall not be required in the event of any Transfer by Tenant to an
Affiliate provided that (i) the Affiliate has a tangible net worth at
least equal to that of Tenant as of the date of this Lease, (ii) Tenant
provides Landlord notice of the Transfer at least 15 days prior to the
effective date, together with current financial statements of the Affiliate
certified by an executive officer of the Affiliate, and (iii) in the case
of an assignment or sublease, Tenant delivers to Landlord an assumption
agreement reasonably acceptable to Landlord executed by Tenant and the
Affiliate, together with a certificate of insurance evidencing the Affiliate’s
compliance with the insurance requirements of Tenant under this Lease.


 


(c)           The
provisions of subsection (a) above notwithstanding, if Tenant
proposes to Transfer all of the Premises (other than to an Affiliate), Landlord
may terminate this Lease, either conditioned on execution of a new lease
between Landlord and the proposed transferee or without that condition.  If Tenant proposes to enter into a Transfer
of less than all of the Premises


 


10





















 


(other than to an Affiliate), Landlord may
amend this Lease to remove the portion of the Premises to be transferred,
either conditioned on execution of a new lease between Landlord and the
proposed transferee or without that condition. 
If this Lease is not so terminated or amended, Tenant shall pay to
Landlord, immediately upon receipt, the excess of (i) all compensation
received by Tenant for the Transfer over (ii) the Rent allocable to the
Premises transferred.  If Landlord elects
to terminate this Lease upon any such Transfer, Tenant shall be forever
released from any and all obligations under this Lease arising from and after
the date of termination.


 


(d)           If
Tenant requests Landlord’s consent to a Transfer, Tenant shall provide
Landlord, at least 15 days prior to the proposed Transfer, current financial
statements of the transferee certified by an executive officer of the
transferee, a complete copy of the proposed Transfer documents, and any other
information Landlord reasonably requests. 
Immediately following any approved assignment or sublease, Tenant shall
deliver to Landlord an assumption agreement reasonably acceptable to Landlord
executed by Tenant and the transferee, together with a certificate of insurance
evidencing the transferee’s compliance with the insurance requirements of
Tenant under this Lease.  Tenant agrees
to reimburse Landlord for reasonable administrative and attorneys’ fees in
connection with the processing and documentation of any Transfer for which
Landlord’s consent is requested.


 


19.          Subordination; Mortgagee’s
Rights.


 


(a)           Tenant
accepts this Lease subject and subordinate to any Mortgage now or in the future
affecting the Premises, provided that Tenant’s right of possession of the
Premises shall not be disturbed by the Mortgagee so long as Tenant is not in
default under this Lease.  This clause
shall be self-operative, but within 10 days after request, Tenant shall execute
and deliver any further instruments confirming the subordination of this Lease
and any further instruments of attornment that the Mortgagee may reasonably
request.  However, any Mortgagee may at
any time subordinate its Mortgage to this Lease, without Tenant’s consent, by giving
notice to Tenant, and this Lease shall then be deemed prior to such Mortgage
without regard to their respective dates of execution and delivery; provided
that such subordination shall not affect any Mortgagee’s rights with respect to
condemnation awards, casualty insurance proceeds, intervening liens or any
right which shall arise between the recording of such Mortgage and the
execution of this Lease.


 


(b)           No
Mortgagee 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) bound
by any amendment of this Lease made without its written consent, or (iv) bound
by payment of Monthly Rent more than one month in advance or liable for any
other funds paid by Tenant to Landlord unless such funds actually have been
transferred to the Mortgagee by Landlord.


 


(c)           The
provisions of Sections 15 and 16 above notwithstanding, Landlord’s obligation
to restore the Premises after a casualty or condemnation shall be subject to
the consent and prior rights of any Mortgagee.


 


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


 


11





















 


Landlord’s
interest in the Property, an estoppel certificate in the form of attached Exhibit “C” (or other form requested
by 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 requested
financial information.


 


21.          Surrender.


 


(a)           On
the date on which this Lease expires or terminates, Tenant shall return
possession of the Premises to Landlord in good condition, except for ordinary
wear and tear, and except for casualty damage or other conditions that Tenant
is not required to remedy under this Lease. 
Prior to the expiration or termination of this Lease, Tenant shall
remove from the Property all furniture, trade fixtures, equipment, wiring and
cabling (unless Landlord directs Tenant otherwise), and all other personal
property installed by Tenant or its assignees or subtenants.  Tenant shall repair any damage resulting from
such removal and shall restore the Property to good order and condition.  Any of Tenant’s personal property not removed
as required shall be deemed abandoned, and Landlord, at Tenant’s expense, may
remove, store, sell or otherwise dispose of such property in such manner as
Landlord may see fit and/or Landlord may retain such property or sale proceeds
as its property.  If Tenant does not
return possession of the Premises to Landlord in the condition required under
this Lease, Tenant shall pay Landlord all resulting damages Landlord may
suffer.


 


(b)           If
Tenant remains in possession of the Premises after the expiration or
termination of this Lease, Tenant’s occupancy of the Premises shall be that of
a tenancy at will.  Tenant’s occupancy
during any holdover period shall otherwise be subject to the provisions of this
Lease (unless clearly inapplicable), except that the Monthly Rent shall be 150%
of the Monthly Rent payable for the last full month immediately preceding the
holdover.  No holdover or payment by
Tenant after the expiration or termination of this Lease shall operate to
extend the Term or prevent Landlord from immediate recovery of possession of
the Premises by summary proceedings or otherwise.  Any provision in this Lease to the contrary
notwithstanding, any holdover by Tenant shall constitute a default on the part
of Tenant under this Lease entitling Landlord to exercise, without obligation
to provide Tenant any notice or cure period, all of the remedies available to
Landlord in the event of a Tenant default, and Tenant shall be liable for all
damages, including consequential damages, that Landlord suffers as a result of
the holdover.


 


22.          Defaults
- Remedies.


 


(a)           It
shall be an Event of Default:


 


(i)            If Tenant does not
pay 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 days
after Landlord gives Tenant notice of default;


 


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


 


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


 


12





















 


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


 


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


 


(b)           If
an Event of Default occurs, Landlord shall have the following rights and
remedies:


 


(i)            Landlord, without
any obligation to do so, may elect to cure the default on behalf of Tenant, in
which event Tenant shall reimburse Landlord upon demand for any sums paid or
costs incurred by Landlord (together with an administrative fee of 15% thereof)
in curing the default, plus interest at the Interest Rate from the respective
dates of Landlord’s incurring such costs, which sums and costs together with
interest at the Interest Rate shall be deemed additional Rent;


 


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


 


(iii)          To accelerate the
whole or any part of the Rent for the balance of the Term, and declare the same
to be immediately due and payable, less any Rent that Landlord may reasonably
be expected to collect from any replacement tenant or occupant at prevailing
market rates; and


 


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


 


(c)           Any
provision to the contrary in this Section 22 notwithstanding, (i) Landlord
shall not be required to give Tenant the notice and opportunity to cure
provided in Section 22(a) above more than twice in any consecutive 12-month
period, and thereafter Landlord may declare an Event of Default without
affording Tenant any of the notice and cure rights provided under


 


13





















 


this Lease, and (ii) Landlord shall not
be required to give such notice prior to exercising its rights under Section 22(b) if
Tenant fails to comply with the provisions of Sections 13, 20 or 27 or in an
emergency.


 


(d)           No
waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent
breach, nor shall any forbearance by Landlord to seek a remedy for any breach
by Tenant be a waiver by Landlord of any rights and remedies with respect to
such or any subsequent breach.  Efforts
by Landlord to mitigate the damages caused by Tenant’s default shall not
constitute a waiver of Landlord’s right to recover damages hereunder.  No right or remedy herein conferred upon or
reserved to Landlord is intended to be exclusive of any other right or remedy
provided herein or by law, but each shall be cumulative and in addition to
every other right or remedy given herein or now or hereafter existing at law or
in equity.  No payment by Tenant or
receipt or acceptance by Landlord of a lesser amount than the total amount due
Landlord under this Lease shall be deemed to be other than on account, nor
shall any endorsement or statement on any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord’s right to recover the balance of Rent due, or Landlord’s
right to pursue any other available remedy.


 


(e)           If
either party commences an action against the other party arising out of or in
connection with this Lease, the prevailing party shall be entitled to have and
recover from the other party attorneys’ fees, costs of suit, investigation
expenses and discovery costs, including costs of appeal.


 


(f)            Landlord
and Tenant waive the right to a trial by jury in any action or proceeding based
upon or related to, the subject matter of this Lease.


 


23.          Authority.  Tenant represents and warrants to Landlord
that:  (a) Tenant is duly formed,
validly existing and in good standing under the laws of the state under which
Tenant is organized, and qualified to do business in the state in which the
Property is located, and (b) the person(s) signing this Lease are duly
authorized to execute and deliver this Lease on behalf of Tenant.  Landlord represents and warrants to Tenant
that:  (a) Landlord is duly formed,
validly existing and in good standing under the laws of the state under which
Landlord is organized and qualified to do business in the state in which the
Property is located, (b) has the legal right to lease to Tenant the
Premises and (c) the person(s) signing this Lease are duly authorized to
execute and deliver this Lease on behalf of Landlord.


 


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


 


14





















 


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


 


25.          Miscellaneous.


 


(a)           The
captions in this Lease are for convenience only, are not a part of this Lease
and do not in any way define, limit, describe or amplify the terms of this
Lease.


 


(b)           This
Lease represents the entire agreement between the parties hereto and there are
no collateral or oral agreements or understandings between Landlord and Tenant
with respect to the Premises or the Property. 
No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in this Lease.  This
Lease shall not be modified in any manner except by an instrument in writing
executed by the parties.  The masculine
(or neuter) pronoun and the singular number shall include the masculine, feminine
and neuter genders and the singular and plural number.  The word “including” followed by any specific
item(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 and
any other form of business association or entity.  Both parties having participated fully and
equally in the negotiation and preparation of this Lease, this Lease shall not
be more strictly construed, nor any ambiguities in this Lease resolved, against
either Landlord or Tenant.


 


(c)           Each
covenant, agreement, obligation, term, condition or other provision contained
in this Lease shall be deemed and construed as a separate and independent
covenant of the party bound by, undertaking or making the same, not dependent
on any other provision of this Lease unless otherwise expressly provided.  All of the terms and conditions set forth in
this Lease shall apply throughout the Term unless otherwise expressly set forth
herein.


 


(d)           If
any provisions of this Lease shall be declared unenforceable in any respect,
such unenforceability shall not affect any other provision of this Lease, and
each such provision shall be deemed to be modified, if possible, in such a manner
as to render it enforceable and to preserve to the extent possible the intent
of the parties as set forth herein.  This
Lease shall be construed and enforced in accordance with the laws of the state
in which the Property is located.


 


(e)           This
Lease shall be binding upon and inure to the benefit of Landlord and Tenant and
their respective heirs, personal representatives and permitted successors and
assigns.  All persons liable for the
obligations of Tenant under this Lease shall be jointly and severally liable
for such obligations.


 


(f)            Tenant
shall not record this Lease or any memorandum without Landlord’s prior consent.


 


26.          Notices.  Any notice, consent or other communication
under this Lease shall be in writing and addressed to Landlord or Tenant at
their respective addresses specified in Section 1 above


 


15





















 


(or to such
other address as either may designate by notice to the other) with a copy to
any Mortgagee or other party designated by Landlord.  Each notice or other communication shall be
deemed given if sent by prepaid overnight delivery service or by certified
mail, return receipt requested, postage prepaid or in any other manner, with
delivery in any case evidenced by a receipt, and shall be deemed to have been
given on the day of actual delivery to the intended recipient or on the
business day delivery is refused.  The
giving of notice by Landlord’s attorneys, representatives and agents under this
Section shall be deemed to be the acts of Landlord.


 


27.          Security Deposit/Letter of
Credit.  Upon
execution of this Lease, Tenant shall deposit with Landlord and shall maintain
at all times on deposit with Landlord and keep whole and unencumbered an
irrevocable, assignable, non-documentary standby letter of credit in form, and
issued by, a financial institution acceptable to Landlord in the amount of
Thirty-three Thousand Dollars ($33,000.00), as security for the faithful
performance by Tenant of every term and condition of this Lease, it being
expressly understood and agreed that Tenant may not direct Landlord to apply
said security in payment of Rent for any month during the Lease Term.  If there shall be a breach or default by
Tenant in respect of any term or condition of this Lease, and such breach or default
is not cured within the applicable cure period, if any, Landlord may draw upon
all or any part of the letter of credit to perform the same for the account of
Tenant, or for any damages, whether such damages or default accrue before or
after 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 provisions
herein contained limit the rights and remedies of Landlord under this Lease.  If Tenant shall fully and faithfully comply
with all of the provisions of this Lease, then, upon the termination or
expiration of this Lease by lapse of time or otherwise and Tenant’s surrender
of the Premises in the condition required under this Lease, said security or
any balance thereof remaining, shall be returned to Tenant within 30 days after
such termination or expiration and surrender, as applicable.  In the event of any sale, transfer or
assignment of Landlord’s interest under this Lease, Landlord may transfer or assign
said security to the transferee, and Landlord thereupon shall be released from
all liability with respect to said security provided that the transferee
accepts responsibility for said security. 
Without affecting the non-documentary status of the letter of credit and
without involving the issuer of the letter of credit in any matters affecting
this Lease, Landlord shall not present a draft under the letter of credit for
payment unless (1) a default exists on the part of Tenant beyond any
applicable notice and cure period or (2) the letter is scheduled to expire
before the time specified above for the return of the security to Tenant, and
at least 20 days before the expiration of the letter of credit a renewal letter
of credit shall not have been delivered to Landlord.  Tenant agrees to keep renewing the letter of
credit 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 is
in default in supplying that renewal, any provision of this Lease as to notice
of default to Tenant to the contrary notwithstanding.  The employment of a letter of credit is an
accommodation to Tenant and the object of this Section is to preserve
Landlord’s rights to deal with the security as if it were cash.  Without limiting the foregoing, the issuer of
the letter of credit has no interest in, or concern with, this Lease or the
performance under it by either party.  The
issuer’s sole obligation is to honor a sight draft timely drawn and presented.


 


28.          Automatic
Funds Transfer. 
Monthly Rent payments shall be made automatically via electronic funds
transfer to an account designated by Landlord.


 


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29.          Initial Tenant Improvements.


 


(a)           Plan
Approval.  Landlord
and Tenant hereby approve the plans and specifications dated July 28, 2005
prepared by WCL Associates, Inc., for the initial leasehold improvements
to be constructed by Landlord (the “Initial Tenant Improvements”) attached to
this Lease as Exhibit ”E”
(the “Plans”).  The Initial Tenant
Improvements to be constructed by Landlord do not include any of the alternates
listed on the Plans.


 


(b)           Completion
by Landlord.  Landlord
shall complete the Initial Tenant Improvements, at Landlord’s expense, in accordance
with the Plans.  The Initial Tenant
Improvements shall be substantially completed ready for use and occupancy by
Tenant on or about November 1, 2005
(the “Target Completion Date”), subject to extension for delays due to any
cause beyond the reasonable control of Landlord or Landlord’s contractors or
suppliers.  All construction shall be
done in a good and workmanlike manner.  Tenant’s
occupancy of the Premises shall constitute Tenant’s acceptance of Landlord’s
work, subject only to punch list items agreed to between Landlord and Tenant
prior to such occupancy.  The Initial
Tenant Improvements do not include any improvements other than as shown on the
Plans and do not include any of Tenant’s trade fixtures, equipment or personal
property, all of which shall be Tenant’s sole cost and responsibility.


 


(c)           Access.  Prior to the completion of the Initial Tenant
Improvements, Tenant shall be afforded access to the Premises, at Tenant’s own
risk, expense and responsibility, for purposes of installing Tenant’s trade
fixtures and equipment, provided Tenant does not interfere with Landlord’s
timely 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 conditions
of this Lease including carrying the insurance specified by the Lease, as if
the Term of this Lease had already commenced, except that Tenant shall have no
obligation to pay Minimum Annual Rent or Operating Expenses for the period
preceding the Commencement Date.  Tenant
shall also pay the charges for all utilities furnished to the Premises during
Tenant’s pre-commencement access period, if any, as reasonably estimated by
Landlord.  This Lease, and Monthly Rent,
shall commence on November 1, 2005,
and the Commencement Date is not tied to the completion by Landlord of the
Initial Tenant Improvements.  Landlord
shall have the right to restrict Tenant’s access, whether before or after the
Commencement Date, as reasonably necessary to complete the Initial Tenant
Improvements.


 


30.          Parking.  Tenant shall be entitled to the exclusive use
of 90 parking spaces (based on 2.83 spaces per 1,000 rentable square feet), as
shown on attached Exhibit “F”.  Tenant may sign (in a manner consistent with
Landlord’s sign criteria) a portion of Tenant’s exclusive parking for Tenant
visitor parking and Tenant reserved parking. 
Tenant shall not utilize parking in excess of the ratio afforded Tenant
in this lease.


 


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


 


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


 


In the event that the City does not issue all permits necessary for the
expansion 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 giving
written notice of termination on or before October 3, 2005, time being of
the essence (if Tenant fails to timely give notice of termination, this
termination right shall be deemed waived and shall be of no further force or
effect).  If Tenant elects to terminate
this Lease, Landlord shall immediately stop work on the Initial Tenant
Improvements and shall not incur any additional expenses not already incurred
or committed by the Landlord in connection with this Lease.  Tenant shall thereafter pay to Landlord all
expenses and costs incurred by the Landlord in connection with the Initial
Tenant Improvements and the costs incurred by the Landlord, if any, in
obtaining 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 all
documentation reasonably necessary to substantiate that Landlord has incurred
or is committed to the above costs.  Landlord
shall have the right to suspend construction of the Initial Tenant Improvements
once the $200,000 threshold described above is reached, unless Tenant waives in
writing this termination right.  Any such
suspension shall not delay the Commencement Date of this Lease.


 


In the event the City fails to issue the Interim Use Permit, and in the
event Tenant does not terminate this Lease as provided above, upon Tenant’s
request Landlord will cooperate with Tenant with respect to exploring options
for alternative space to be provided by Landlord to Tenant, which may include a
build-to-suit property to be constructed by Landlord and leased to Tenant.  This paragraph does not constitute a binding
commitment on the part of Landlord to provide Tenant alternative space, and no
obligation on the part of Landlord to provide, or Tenant to accept, alternative
space shall exist unless and until Landlord and Tenant enter into a definitive
agreement relating to the acquisition, construction and/or leasing of such
alternative space, as applicable.  It is
anticipated that any such agreement will provide for the termination of this
Lease effective as of the date Tenant has occupied the alternative space under
the new lease with Landlord and commenced payment of rent to Landlord
thereunder.  This paragraph shall apply
only while Liberty Property Limited Partnership is the Landlord under this
Lease, and this paragraph shall terminate upon the sale or other disposition of
Liberty’s interest in the Building.  Without
limiting the foregoing, the obligations under this paragraph shall not bind any
Mortgagee of the Building.


 


31.          Right
of First Offer. 
The term “Offer Space” herein means any space contiguous to the Premises
that becomes available in the Building.  In
the event any Offer Space is available for lease at any time during the Term of
this Lease, and the party, if any, in possession of such Offer Space does not
desire to remain in possession, Landlord shall give Tenant written notice of
the


 


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availability
of such Offer Space and of the proposed Minimum Annual Rent for such Offer
Space (which shall be the then prevailing rate for comparable space in the
Building as reasonably determined by Landlord), and Tenant shall have the
right, at its option, to lease such Offer Space provided (a) Tenant
delivers to Landlord written notice exercising its right to lease such Offer
Space within 20 business days of receipt of Landlord’s notice of availability
of such Offer Space, and (b) Tenant is not in default in any material
respect under this Lease at the time Tenant exercises its right to lease such
Offer Space and at the time Tenant is to take possession of such Offer Space.  If Tenant fails to exercise timely its right
to lease such Offer Space with respect to a particular notice of availability
given by Landlord, Tenant will have no further right (ahead of any other person
or entity) to lease such Offer Space, and this right of first offer shall
terminate with respect to such Offer Space. 
If Tenant elects to exercise its right to lease such Offer Space, the
terms, conditions and covenants applicable to such Offer Space shall be as set
forth in this Lease, except that the Minimum Annual Rent regarding such space
shall be at the then prevailing rate for comparable space in the Building as
determined by Landlord and as stated in the offer notice, and the Offer Space
shall be delivered to Tenant in an “as is” condition.  The commencement date for the lease covering
such space shall be the date following the exercise of such option on which
such space is first made available to Tenant. 
If Tenant exercises its right to lease such space, Landlord and Tenant
shall execute and deliver an appropriate amendment to this Lease regarding the
lease of such space.  The foregoing
notwithstanding, Tenant shall have no right to lease any Offer Space unless at
least two (2) full years remain in the Term hereof or unless Tenant has
the right to extend the Term and does so in connection with its lease of the
Offer Space.  The rights provided Tenant
in this Section shall be subject to any prior rights of any existing
tenant of the Building.  If Tenant
exercises its rights to lease such Offer Space, then Tenant shall be afforded
an additional 2.83 parking spaces per 1,000 rentable square feet of the Offer
Space.


 


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


 


	
  Landlord’s approval:

  	
  /s/ Robert
  L. Kiel

  	
   

  
	
   

  	
  Senior Vice President, Regional Director

  



 


32.          Leasing
Restriction. 
Landlord agrees that it will not lease any space in the Building to a
Competitor 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, research
and development, or marketing of medical devices.  This restriction shall be effective only so
long as Tenant is occupying at least 50% of the Premises, and shall expire upon
the subleasing by Tenant of 50% or more of the Premises (other than to an
Affiliate of Tenant) or upon an assignment of this Lease (other than to an
Affiliate of Tenant).


 


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33.          Building
Name.  Landlord
shall not change the name of the Building without Tenant’s consent.  Landlord shall not grant any other tenant or
occupant of the Building the right to name the Building without Tenant’s
consent.


 


34.          Extension
Options.  Provided
that there then exists no event of default by Tenant under this Lease beyond
any applicable notice and cure period, Tenant shall have the right and option
to extend the Term of this Lease for two (2) additional extension terms of
three (3) years each.  Each option
must be exercised, if at all, by giving Landlord prior written notice, no
earlier than twelve (12) months and no later than (9) months in advance of
the expiration date of the then current lease Term, of Tenant’s election to
extend the lease Term; it being agreed that time is of the essence.  Each extension Term shall be under the same
terms and conditions as provided in the Lease except as follows:


 


(a)           there
shall be no further options to extend the term;


 


(b)           Tenant
shall accept the Premises in their “as is” condition, without any obligation on
the part of Landlord to provide any tenant improvements or tenant improvement
allowance; and


 


(c)           the
Minimum Annual Rent for the extension term shall be negotiated between Landlord
and Tenant as follows:


 


Landlord shall
provide Tenant written notice of Landlord’s good faith determination of the
fair market Minimum Annual Rent (“Landlord’s Rent Determination Notice”) not
more than 30 days following receipt of Tenant’s notice of exercise.  If Tenant disputes Landlord’s determination
and wishes to negotiate the Minimum Annual Rent, Tenant shall so notify
Landlord (“Tenant’s Objection Notice”) within 15 days following Tenant’s
receipt of Landlord’s Rent Determination Notice; Tenant’s Objection Notice shall
include Tenant’s good faith determination of fair market Minimum Annual Rent.  If Tenant fails to timely send Tenant’s
Objection Notice, Tenant shall be deemed to have extended this Lease on the
terms set forth in Landlord’s Rent Determination Notice.  If Tenant timely gives Tenant’s Objection
Notice, Landlord and Tenant shall have until that date that is (7) months
in advance of the expiration date of the then current lease Term by which to
reach a written agreement regarding the Minimum Annual Rent for the applicable
extension term.  If Tenant and Landlord
fail to reach agreement by that date, Tenant’s exercise of its extension option
shall be deemed rescinded, and this lease shall expire on the expiration date
of the then current lease Term.


 


Upon the effective exercise of an extension option, at the request of
either party the parties hereto will enter into an appropriate amendment to the
Lease 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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