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EXHIBIT 10.12
AMENDMENT TO COMMERCIAL LEASE
THIS AMENDMENT TO COMMERCIAL LEASE is made this 10th day of March, 2000, by and
between XXXXX X. XXXXXX/XXXXXXXXX TRUST, (hereinafter "Landlord") and
NUTRACEUTIX, INC., (hereinafter "Tenant").
WHEREAS, "Landlord" and "Tenant" entered into a Commercial Lease ("Lease")
dated, November 3, 1999 for the lease of certain real estate; and
WHEREAS, "Tenant desires to receive $148,500.00 towards leasehold improvements.
WHEREAS, the parties desire to amend the Lease in the specific respects
hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties have this date agreed that the Lease shall be
amended as follows:
1. Item #5. RENT: Replace paragraph with the following:
RENT. Without prior notice or demand, Tenant agrees to pay to Landlord
as monthly rent for the Premises the sum of $6,982 for months 1-3,
$10,677.22 for months 4-36, $11,165.22 for months 37-60, on or before
the first day of the first full calendar month of the term hereof and a
like sum on or before the first day of each and every successive
calendar month thereafter during the term hereof. Rent for any period
during the term hereof which is for less than one (1) month shall be
prorated portion of the monthly installment herein, based upon a thirty
(30) day month. Rent shall be paid to Landlord at the address to which
notices to Landlord are to be given without deduction of offset in
lawful money of the United States of America, or to such other person or
at such other place as Landlord may from time to time designate in
writing.
2. The parties hereby ratify, affirm, and acknowledge the Lease.
3. Except as amended herein, the terms and provisions of the Lease
shall remain in full force and effect.
AGREED to this 13 day of MARCH, 2000.
LANDLORD: TENANT: NUTRACEUTIX, INC.
by /s/ Xxxxx X. Xxxxxx by /s/ Xxxxxxx X. St. Xxxx
--------------------------------------------------------------------------------
Xxxxx X.Xxxxxx/Xxxxxxxxx Trust
Its: President
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STATE OF WASHINGTON
) ss.
COUNTY OF KING
On this dav personally appeared before me XXXXX X. XXXXXX to me known to
be the individual described in and who executed the within and foregoing
instrument, and acknowledged that, he signed the same as his free and voluntary
act and deed, for the uses and purposes therein mentioned. -
IN WITNESS WHEREOF, I have hereunto subscribed my hand and affixed my
official seal this 14th day of March, 2000.
NOTARY PUBLIC in and for the State of
Washington, residing at Kirkland, WA
NOTARY PUBLIC My commission expires:
15 June 2002
STATE OF WASHINGTON
XXXXX X. XXXXXX
MY APPOINTMENT Expires June 15, 0000
XXXXX XX XXXXXXXXXX
xx.
XXXXXX XX XXXX
Xx this day personally appeared before me XXXXXXX X. ST. XXXX to me
known to be President of NUTRACEUTIX, INC., the corporation that
executed the within and foregoing instrument, and acknowledged said
instrument to be the free and voluntary act and deed of said
corporation, for the uses and purposes therein mentioned, and on oath
stated that he was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto subscribed my hand and
affixed my official seal this 13th day of March, 2000.
NOTARY PUBLIC in and for the State of
Washington, residing at Renton
My commission expires
10-6-01
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STANDARD FORM
MULTI-TENANT, TRIPLE NET LEASE
1. PARTIES. This lease is made this(date)November 3, 1999 between Xxxxx
Xxxxxx/Xxxxxxxxx Trust Tenants in Common hereafter called Landlord, and
Nutraceutix,Inc. hereafter called Tenant.
2. PREMISES. Landlord agrees to lease to Tenant "the Premises" described in
Exhibit A and consisting of approximately 9,620. The Premises are a part
of the "Building," which Building is located on the real property
described in Exhibit B (the "Property"). As used herein, the term
"Building" includes all Buildings located on the Property. The Premises,
Building, and Property are a part of Willows East. Tenant understands
that square footage used in this Lease is approximate and is calculated
from the outside face of the exterior walls of the structure including
overhangs to tile centerline of any interior demizing walls. Tenant and
Landlord mutually hold each other harmless for any discrepancies in the
square footage calculation after execution of the Lease.
3. TERM. The term of this lease shall be 60 months and 0 days commencing
the 1st day of January 2000 and terminating on the 31st day of December,
2004 unless sooner terminated as provided herein; or extended pursuant
to Paragraph 22 herein.
4. POSSESSION.
a) lf the Landlord, for any reason whatsoever, cannot deliver
possession of the Premises to the Tenant at the commencement
date of the term hereof, this Lease shall not be void or
voidable, nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom, but in that event, all rent shall be
abated during tile period between the commencement of said term
and the time when Landlord delivers possession.
b) If Landlord permits Tenant to occupy the Premises prior to the
commencement date of the term, such occupancy shall be subject
to all the provisions of this Lease and shall not advance the
termination date of this Lease. Tenant's Share of Common Costs
and Expenses shall be due and payable from the date of tenant's
occupancy of the Premises.
c) If Tenant should cause any delay in Landlord's completion of the
Premises, thereby delaying Tenant's occupancy of the Premises
beyond the commencement date of this Lease, then the Landlord
may at its option require the Tenant to commence payment of rent
on the stated commencement date as specified herein.
5. RENT. Without prior notice or demand, Tenant agrees to pay to Landlord
as monthly rent for the Premises the sum of $6,982 month 1-36, $7,470
months 37-60, on or before the first day of the first full calendar
month of the term hereof and a like sum on or before the first day of
each and every successive calendar month thereafter during the term
hereof. Rent for any period during the term hereof which is for less
than one (1) month shall be a prorated portion of the monthly
installment herein, based upon a thirty (30) day month. Rent shall be
paid to Landlord at the address to which notices to Landlord are to be
given without deduction or offset in lawful money of the United States
of America, or to such other person or at such other place as Landlord
may from time to time designate in writing.
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X.X. Xxx 0000, Xxxxxxx, XX 00000
6. PREPAID RENT AND TENANT DEPOSIT. Upon execution of Lease, Tenant shall
deposit with Landlord $7,500 (the "Deposit") as prepaid rent and Tenant
deposit. The monies shall be allocated as follows:
a) Prepaid Rent.
$N/A of the Deposit shall be applied to monthly rent due for the
N/A month of the Lease term.
b) Tenant Deposit.
$7,500 of the Deposit shall be applied to the Tenant deposit for the
performance by Tenant of the provisions of the Lease. If Tenant is in
default, Landlord can use the Tenant deposit, or any portion of it, to
cure the default or to compensate Landlord for all damage sustained by
it resulting from Tenant's default. Tenant shall on demand immediately
pay to Landlord the sum necessary to replenish the Tenant deposit to
that initially deposited with Landlord. If Tenant is not in default at
the expiration or termination of this Lease, Landlord shall return the
Tenant deposit to Tenant, less any amounts necessary to return the
Premises to their original condition, reasonable wear and tear excepted.
Landlord's obligations with respect to the Tenant it deposit are those
of a debtor and not a trustee. Landlord may maintain the Tenant deposit
separate and apart from Landlord's general funds or may commingle that
Tenant deposit with Landlord's general and other funds. Landlord shall
not be required to pay Tenant interest on the Tenant deposit. In the
event that this Lease is terminated before the end of full term for any
reason, any rent paid for any period beyond the actual termination date
shall be considered an additional Tenant deposit.
7. USE. Tenant shall use the Premises for Office/production/warehousing and
incidental uses and hereby agrees that it has determined to its
satisfaction that the Premises can be used for those purposes. Tenant
waives any right to terminate this lease in the event the Premises
cannot be used for such purposes during the Lease term. The premises may
not be used for any other purpose without Landlord's written consent.
Tenant shall not do or permit anything to be done in or about the
Premises or bring or keep anything therein which will in any way
increase the existing rate of or affect any fire or other insurance upon
the Building or any of its contents, or cause cancellation of insurance
policy covering the Building or any part thereof or any way obstruct or
interfere with the rights of other tenants or occupants of the Building
or injure or annoy them or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose. Tenant shall not
commit or suffer to be committed any waste in or upon the Premises.
Tenant shall not place upon or install in windows or other openings or
exterior sides of doors or walls of the Premises any signs, symbols,
drapes or other materials without written consent of Landlord.
Tenant shall not, without Landlord's prior written consent, keep any
substances designated as, or containing components designated as,
hazardous, dangerous, toxic, or harmful, and/or subject to regulation
under any federal, state, or local law, regulation, or ordinance on or
around the Premises, common area, or property, except office supplies,
ordinary cleaning products and the like, normally found in general
business offices, which Tenant shall use, store and dispose of in
accordance with manufacturer's and suppliers' recommendations and all
applicable laws. Tenant shall be fully and completely liable to Landlord
for any and all cleanup costs and any and all other charges, fees, fines
expenses and penalties relating to the use, storage,
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disposal, transportation, generation or sale by Tenant (or its
employees, agents, contractors or invitees) of hazardous substances on
the Premises.
Landlord gives Tenant and its employees, authorized representatives, and
business invitees a nonexclusive right to the reasonable use and
enjoyment of the Common Areas, subject to Landlord's rights set forth
herein.
8. TENANT'S SHARE OF COMMON COSTS AND EXPENSES. Tenant shall pay to
Landlord, as additional rent, an amount estimated by Landlord to be
Tenant's Share of Common Costs and Expenses ("Tenant's Share"). Tenant's
Share shall be payable on or before the first day of the first full
calendar month of the term hereof or upon Tenant's occupancy, whichever
first occurs, and on the first day of each and every successive calendar
month thereafter during the term hereof. Tenant's Share for any period
less than one month shall be paid by the Tenant on a per diem basis,
based on a thirty (30) day month.
Tenant's Share shall be equal to 16.6% of the total Common Costs and
Expenses; which percentage is determined by dividing the square footage
of the Premises by the total rentable square footage of the Building.
Should the total rentable square footage of the Building change for any
reason whatsoever, the percentage set forth herein shall be subject to
adjustment accordingly. Tenant's Share is estimated to be equal to
$0.155 for each square foot of the Premises per month for the first
accounting period of the Lease term which is then estimated to equal
$1,491.10 per month for the first accounting period of the Lease term.
An accounting period is a calendar year except the first accounting
period shall commence on the date the Lease term or Tenants occupancy
commences, as the case may be, and the last accounting period shall end
on the date the Lease term expires. The first accounting period of the
Lease term shall be the first full calendar year in which the Lease term
or Tenant's occupancy, as the case may be, commences. Landlord can
adjust the Estimated Common Costs and Expenses at the commencement of
each new accounting period throughout the Lease term, whereupon Tenant's
Share shall be adjusted accordingly. If, at any time during any
accounting period, Landlord determines that the actual Common Costs and
Expenses for such accounting period will vary by more than five percent
(5%) from Landlord's original estimate, Landlord may, by written notice
to Tenant, adjust the Common Costs and Expenses for the remainder of
such accounting period, and accordingly, Tenant's Share to be paid
hereunder. Landlord shall furnish to Tenant, after each accounting
period, a statement showing the actual total Common Costs and Expenses,
the actual Tenant's Share, and the payments made by Tenant as part of
its Tenant's Share during such accounting period. After Landlord
supplies Tenant with a Common Area Costs and Expense Statement for the
previous year, Tenant shall have sixty (60) days to request an audit of
Landlord's books, with respect to this Lease, by an independent
accounting firm acceptable to Tenant and Landlord. The cost of audit
shall be the Tenant's unless the audit discovers an overcharge of more
than 5% in which case Landlord shall pay for audit and pay Tenant the
amount overcharged. If an audit discovers Landlord undercharged the
Tenant, the Tenant shall pay to Landlord additional Common Area costs,
and pay any costs related to the audit. If Tenant does not exercise it's
right to audit within the 60 (sixty) days after receiving the Common
Area Statement, Tenant has accepted Common Area Statement as correct and
waives all rights in the future to audit the year in question. If the
actual Tenant's Share exceeds Tenant's payments, Tenant shall pay to
Landlord the deficiency within thirty (30) days of Tenant's receipt of
such statement. If Tenant's payments made during tile accounting period
exceed the actual Tenant's Share, Landlord may, at Landlord's sole
election pay the excess to Tenant at the time Landlord furnishes said
statement, or credit the excess
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toward Tenant's payments of Tenant's Share in the next succeeding
accounting period.
Common Costs and Expenses shall include the "Property Taxes" and
"Operating Expenses." "Property Taxes" shall include, without
limitation, all real and personal property taxes, charges and
assessments imposed on the Premises, Building, Property or Common Areas;
and any other taxes, charges or assessments assessed against the
Landlord, Premises, Building, Property, or Common Areas in connection
with the use or occupancy of the Premises at any time during tile term
of this Lease. "Operating Expenses" shall mean the annual Operating
Expenses which include, without limitation, all operating costs incurred
by Landlord or on behalf of the Premises in maintaining, operating and
providing services to and for the Building, Property, Common Areas and
the Corporate Park, including, without limitation, the costs of
utilities, supplies, insurance, independent contractors, minor roof
repair, property managers, other suppliers, compensation of all persons
who perform regular and recurring duties connected with the Building,
Property, and Common Areas, its equipment, utilities, sprinkler systems,
and parking facilities including a fund to seal coat and restripe,
thereto, and allowance to Landlord or Landlord's agent for supervision
of such maintenance, operation, services and repair of the Building,
Property, and Common Areas and any and all assessments charged to
Landlord or the Property by or through the Owners Association of the
Corporate Park, if any, in connection with the operation, repair and
maintenance of the Common Areas or the Corporate Park.
9. REPAIR RESPONSIBILITY.
a) By taking possession of the Premises, Tenant shall be deemed to
have accepted the Premises as being in good, sanitary order,
condition and repair. Tenant shall, when and if needed, at
Tenant's sole expense, make repairs to the Premises and every
part thereof, including without limitation the heating,
ventilating and air conditioning system (if any) serving tile
Premises. Tenant shall Surrender the Premises to Landlord in
good condition upon the expiration or sooner termination of this
Lease; provided, however, that Tenant shall not be held
responsible for damage to the Premises from causes beyond the
reasonable control of Tenant, to the extent covered by
Landlord's fire and extended coverage insurance policy, or for
ordinary wear and tear. Except as specifically provided in an
addendum, if any, to this Lease, Landlord shall have no
obligation whatsoever to alter, remodel, improve, repair,
decorate or paint the Premises or any part thereof and the
parties hereto affirm that Landlord has made no representations
to Tenant respecting the condition of the Premises or the
Building except as specifically herein set forth. Truck doors in
Tenant Premises shall be maintained in good condition by
Tenant.
b) Tenant is responsible for maintenance and repair of HVAC
equipment and shall contract to have scheduled maintenance
performed, or Landlord at its option may engage a maintenance
firm to maintain the heating, ventilating and air conditioning
system (if any) servicing the Premises. Tenant shall pay to
Landlord, or, at Landlord's election, directly to the
maintenance firm, Tenant's share of the cost of such
maintenance.
c) Except as provided herein, Tenant shall, at its expense, clean,
maintain and keep in good repair throughout the term of this
Lease the entire Premises and appurtenances, including without
limitation, signs, windows, doors, skylights, light fixtures,
and trade fixtures.
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d) Notwithstanding the provisions of Article 9.a. herein above, but
subject to the provisions of Xxxxxxxxx 00, Xxxxxxxx shall repair
and maintain the structural portions of the Building, including
tile, basic plumbing, air conditioning, heating, and electrical
systems, installed or furnished by Landlord only in so far as
such heating, air conditioning and electrical systems provide
service to the entire Building, unless such maintenance and
repairs are caused in part or in whole by the act, neglect,
fault or omission of any duty by the Tenant, its agents,
servants, employees or invitees, in which case Tenant shall pay
to Landlord the reasonable costs of such maintenance and
repairs. Landlord shall not be liable for any failure to make
any such repairs or to perform any maintenance unless Such
failure shall persist for an unreasonable time after written
notice of the need of such repairs or maintenance is given to
Landlord by Tenant. Except as provided in Articles 14 and 15
hereof, there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with
Tenant's business arising from (the making of any repairs,
alterations or improvements in or to any portion of the Building
or (the Premises or to fixtures, appurtenances and equipment
therein. Tenant waives the right to make repairs at Landlord's
expense under any law, statute or ordinance now or hereafter in
effect.
10. MAINTENANCE AND MANAGEMENT
a) Landlord shall maintain the Common Areas in good condition at
all times. Landlord shall have the right to:
1. Establish and enforce reasonable written rules and
regulations applicable to all tenants concerning the
maintenance, management, use and operation of the Common
Areas.
2. Make reasonable changes to the Common Areas including,
without limitation, changes in the location of
driveways, entrances, exits, vehicular parking spaces,
parking area, or the direction of the flow of traffic.
b) Common Areas, as defined in this Lease, mean all parts of the
Building, and related land areas and facilities outside the
individual Premises but constituting a part of the Property.
Common areas include, without limitation:
1. The property upon which the Premises are located,
pedestrian walkways and patios, landscaped areas,
sidewalks, loading areas, parking areas and roads
located oil the Property.
2. The structural parts of the Building and other
improvements in which the Premises are located, which
structural parts include only (lie foundation, bearing
and exterior walls (excluding glass and doors),
sub-flooring, and roof (excluding skylights).
3. The unexposed electrical, plumbing, and sewage systems
lying outside the Premises.
4. Window frames, gutters, and downspouts on the Building
in which the Premises are located.
5. Those certain open areas, landscaped areas, and
roadways, utility systems and facilities located outside
tile Premises, Property and Building but constituting a
part of the Corporate Park.
c) Landlord shall not be liable, nor shall the rent be abated
because of interruption of services caused by accident, strikes,
necessity for repairs, or for any other reason beyond its
control.
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11. UTILITIES. Tenant shall pay prior to delinquency for heat, light, water
and other utility services supplied to the premises and will pay any
required deposits. Water sewer and other utility charges for which
separate xxxxxxxx are not available shall be prorated by Landlord based
on the ratio for the number of square feet in the building; provided,
however, that Landlord may increase Tenant's pro rata portion of any
such charges to reflect unusual or excessive utility system demands.
Separate charges may be made to reflect unusual or excessive utility
system demands where not separately metered.
12. ALTERATIONS AND ADDITIONS BY TENANT. Tenant may make, at its sole
expense, such additional improvements or alterations to the Premises
which it may deem necessary or desirable. However, any repairs or new
construction by Tenant shall be done in conformity with plans and
specifications approved by Landlord. All work performed shall be done in
a workmanlike manner and with materials (where not specifically
described in the specifications) of tile quality and appearance standard
in the Building and shall become the property of the Landlord. Landlord
may require Tenant to remove any improvements or alterations at the
expiration of tile term, such removal to occur at Tenant's sole cost and
expense.
LIENS. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by Tenant.
Landlord may require, at Landlord's sole option, that Tenant shall
provide to Landlord, at Tenant's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half(1-1/2) times any
and all estimated cost of any improvements, additions, or alterations in
the Premises, to insure Landlord against any liability for mechanics'
and materialmen's liens and to insure completion of the work.
13. INSURANCE. Landlord shall procure throughout the term of the Lease fire
and extended coverage insurance in the amount of the full insurable
value of the Building containing the Premises. Tenant assumes the risk
of loss of its furnishings, trade fixtures, equipment and supplies which
shall not be insured under the above policy. Tenant agrees to procure
and maintain throughout the term of the Lease, at Tenant's sole cost and
expense, liability insurance underwritten by a firm satisfactory to
Landlord covering all persons and property on the Premises in connection
with Tenant's business in the following amounts:
a. $1,000,000 combined Single Limit for Bodily Injury and Property
Damage, or
b. $ 1,000,000 each occurrence for Bodily Injury and $500,000 each
occurrence for Property Damage.
The Landlord and the Property Management Company shall be named as an
additional insured and shall be furnished with a certificate of
insurance. Such coverage shall be primary and noncontributing with any
insurance carried by the Landlord. The liability insurance policy shall
contain endorsements requiring 30 days notice to Landlord prior to any
cancellation or any reduction in amount of the coverage. Tenant, as a
material part of the consideration to be rendered to Landlord, hereby
agrees to defend, indemnify and hold harmless Landlord against any and
ail claims, costs and liabilities, including reasonable attorney's fees,
arising from Tenant's use of the Premises, or from the conduct of
Tenant's business, or from any activity, work or things done, permitted
or suffered by Tenant or any of Tenant's agents, contractors or
employees.
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14. DESTRUCTION. If the Premises of the Building is destroyed or damaged by
fire, earthquake or other casualty to the extent that they are
untenantable in whole or in part, then Landlord may, at Landlord's
option, proceed with reasonable diligence to rebuild and restore the
Premises or such part thereof, provided that within thirty (30) days
after such destruction or injury Landlord shall in writing notify Tenant
of Landlord's intention to do so. During the period from destruction or
damage until restoration, the rent shall be abated in the same ratio as
that portion of the Premises which Landlord determines is unfit for
occupancy shall bear to the whole Premises. If damage is due to the
fault or neglect of Tenant or its agents, employees, invitees or
licensees there shall be no abatement of rent. If Landlord shall fail to
notify Tenant, then this Lease shall, and the expiration of the time for
the giving of notice as herein provided, be deemed terminated and at an
end.
15. CONDEMNATION. If any part of the Premises are take under power of
eminent domain, or sold Xxxxxx the threat the exercise of said power,
this Lease shall terminate as to the part so taken as of the date the
condemning authority takes possession. If more than 25% of the floor
area of Premises is taken by condemnation, Tenant may, by a written
notice within ten (10) days after notice of such taking (or absent of
such notice, within ten (IO) days after the condemning authority takes
possession) terminate this Lease as of the date the condemning authority
takes possession. If Tenant does not so terminate, this Lease shall
remain in effect as to the portion of the Premises remaining except that
the rent shall be reduced in the proportion that the floor area taken
bears to the original total floor area; provided that if circumstances
making abatement based on floor are unreasonable, the rent shall xxxxx
by a reasonable amount to be determined by Landlord. In the event that
Tenant elects not to terminate the Lease with respect to any part of the
Premises remaining after condemnation, Landlord shall have no
responsibility to restore such part of the Premises to its condition
prior to condemnation. Any award for the taking of all or part of the
Premises tinder the power of eminent domain, including payment made
under threat of the exercise of such power, shall be the property of
Landlord, whether made as compensation for diminution in value of the
leasehold or for the taking of the fee or as severance damages;
provided, that Tenant shall be entitled to such compensation as may be
separately awarded or recoverable by Tenant in Tenant's own right for
the loss of or damage to Tenant's trade fixtures and removable personal
property. Landlord shall not be liable to Tenant for tile loss of the
use of all or any part of the Premises taken by condemnation.
16. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, let or sublet this
Lease or any part thereof, either by operation of law or otherwise, or
permit any other party to occupy all or any part of the Premises,
without first obtaining the written consent of Landlord. This Lease
shall not be assignable by operation of law. Landlord reserves the right
to recapture the Premises, or applicable portion thereof, in lieu of
giving its consent by notice given to Tenant within twenty (20) days
after receipt of Tenant's written request for assignment or subletting.
Such recapture shall terminate this Leases to the applicable space
effective on the prospective date of assignment or subletting, which
shall be the last day of a calendar month and not earlier than sixty
(60) days after receipt of Tenant's request. If Landlord elects not to
recapture and thereafter gives its consent, Landlord and Tenant agree
that Landlord may charge Tenant a reasonable sum to reimburse Landlord
for legal and administrative costs incurred in connection with such
consent; and that from tile date of such assignment, let, or sublease of
this Lease, Landlord and Tenant shall share equally in any rental and
other proceeds paid to Tenant in excess of the rent to be paid to
Landlord under the terms of this Lease. If Tenant is a corporation, any
transfer of this Lease from Tenant by merger, consolidation or
liquidation or
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any change in the ownership, or power to vote the majority of the
outstanding voting stock of Tenant shall constitute an assignment for
the purpose of this section. If Tenant is a partnership, any change in
the individuals or entities of which the partnership is composed shall
constitute an assignment for purposes of this section. Subject to the
provisions above, this Lease shall be binding upon and inure to the
benefit of the parties, heirs and successors and assigns.
17. DEFAULT.
a. The occurrence of any one or more of the following events shall
constitute a material default and breach of the Lease by Tenant:
1. Vacation or abandonment of all or any portion of the
Premises.
2. Failure by Tenant to make any payment required as and
when due, where such failure shall continue after three
(3) days written notice from Landlord.
3. Failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease, other
than the making of any payment, where such failure shall
continue for a period of thirty (30) days after written
notice from Landlord.
4. (i) The making by Tenant of any general assignment or
general arrangement for the benefit of creditors;(ii)
the filing by or against Tenant a petition in
bankruptcy, including reorganization or arrangement,
unless, in the case of a petition filed against Tenant,
the same is dismissed with in thirty(30) days;(iii) the
appointment of a trustee or receiver to take possession
of substantially all of tenant's assets located at
Premises or of tenant's interest in this Lease; (iv) the
seizure by any department of any government or any
office thereof of the business or property of tenant;
and (v) adjudication that Tenant is bankrupt.
b. Notice by Tenant of Default. Tenant shall notify Landlord
promptly of any default not by its nature necessarily known to
Landlord.
c. Default by Landlord. Landlord shall not be in default unless
Landlord fails to perform its obligations within thirty (30)
days after notice by Tenant specifying wherein Landlord has
failed to perform; provided that if the nature of Landlord's
obligation is such that more than thirty (30) days are required
for performance, Landlord shall not be in default if Landlord
commences performance within thirty (30) days of Tenant's notice
and thereafter completes Landlord's performance within a
reasonable time.
18. REMEDIES IN DEFAULT. In the event of any default or breach, Landlord
may, at any time without waiving or limiting any other right or remedy,
reenter and take possession of the premises or terminate the Lease, or
pursue any remedy allowed by law or equity. Tenant agrees to pay
Landlord the cost of recovering possession of the Premises, the expenses
of reletting, and any other costs of damages arising out of Tenant's
default, including, without limitation, the costs of removing persons
and property from the Premises, the costs of preparing or altering the
Premises for reletting broker's commissions and legal fees.
Notwithstanding any reentry or termination, the liability of tenant for
the rent provided for herein shall not be extinguished for the balance
of the term of this Lease, and Tenant covenants and agrees to make good
to the Landlord any deficiency arising from reletting the Premises at a
lesser rent than herein agreed to. Tenant shall pay such deficiency each
month as the amount thereof is ascertained by the Landlord.
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19. ACCESS. Tenant shall permit Landlord to enter the Premises at reasonable
times for (lie purpose of inspecting, altering and repairing the
Premises and ascertaining compliance with the provisions hereof by any
Tenant, but nothing herein shall be construed as imposing any obligation
on Landlord to perform any such work or duties. Landlord may also show
the Premises to prospective purchasers or tenants at reasonable times,
provided that Landlord shall not unreasonably interfere with Tenant's
business operation.
20. WAIVER OF SUBROGATION. Tenant and Landlord each releases and relieves
the other and waives its entire right of recovery against the other for
loss or damage arising out of or incident to the perils covered by fire
and extended coverage, and liability insurance endorsements approved for
use in Washington which occur in, on or about the Premises, whether
caused by the negligence of either party, their agents, employees, or
otherwise. Each party shall obtain from its insurer(s) provisions
permitting waiver of any claim against the other party for loss or
damage within the scope of the above insurance. The release and waiver
of recovery contained herein shall be limited by, and shall be
coextensive with, the waiver provisions of the insurance policies
procured and maintained by the parties pursuant to this Lease. Lf either
Landlord or Tenant is unable to obtain its insurer's permission to
waiver of any claim against the other party, such party shall promptly
notify the other party of such inability.
21. HOLD-OVER TENANCY. lf (without execution of a new lease or
written extension) Tenant shall hold over after the expiration of the
term of this Lease with Landlord's written consent, Tenant shall be
deemed to be occupying the Premises as a Tenant from month to month,
which tenancy may be terminated as provided by law. If Tenant shall hold
over after expiration of the term of this Lease without Landlord's
written consent, Tenant's rent payable hereunder shall be increased by
fifty percent (50%) over Tenant's rent required in the last month of the
term of this lease. During any such tenancy, Tenant agrees to be bound
by all of the terms, covenants and conditions as specified, insofar as
applicable.
22. COMPLIANCE WITHIN LAW. Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will in any way
conflict with any law, statute, ordinance or governmental rule or
regulation now in force or which may hereafter be enacted or
promulgated. Tenant shall, at its sole cost and expense, promptly comply
with all laws, statutes, ordinances and governmental rules, regulations
or requirements now in force or which may hereafter be in force and with
the requirements of a board of fire insurance underwriters or other
similar bodies now or hereafter constituted, relating to, or affecting
the conditions, use or occupancy of the premises, excluding structural
changes not related to or affected by Tenant's improvements or acts. The
judgment of any court of competent jurisdiction of the admission of
Tenant in any action against Tenant, whether Landlord be a part thereto
or not, that Tenant has violated any law, statute, ordinance or
governmental rule, regulation or requirement, shall be conclusive of the
fact as between the Landlord and Tenant.
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23. RULES AND REGULATIONS*. Tenant shall faithfully observe and comply with
tile rules and regulations that Landlord shall from time to time
promulgate. Landlord reserves the right from TIME to time to make ail
reasonable modifications to said rules. The additions and modifications
to those rules shall be binding upon Tenant upon delivery of a copy of
them to Tenant. Landlord shall not be responsible to Tenant for the
nonperformance of any said rules by any other tenants or occupants.
*See Exhibit C.
24. PARKING. Tenant shall have the right to use, in common with other
tenants and occupants of the Building, the parking facilities of the
Building subject to the rules and regulations, and any charges of
Landlord for such parking facilities which may be established or altered
by Landlord at any time or from time to time during the term hereof.
25. MORTGAGES, DEEDS OF TRUST, PURCHASERS (ESTOPPEL STATEMENT). It is
understood and agreed that Landlord may sell, mortgage, or grant deeds
of trust with respect to the Premises, the Building or the Property.
Tenant agrees to execute and return, within fifteen (15) days following
Landlord's request, such reasonable certificates as may be required by a
mortgagee or trust deed beneficiary stating that the Lease is in full
force and effect and tile dates to which the rent and charges have been
paid. If Tenant does not return Estoppel Certificate within this period
of time, landlord shall send an Estoppel Certificate to Tenant by
Certified Mail. If Tenant has not responded within Fifteen (15) days
after delivery by Certified Mail of the Estoppel Certificate to Tenant,
it will constitute admission that all information presented on tile
Estoppel Certificate is correct. Tenant shall be responsible for all
costs incurred by landlord for handling Estoppel Certificates after the
initial fifteen (15) day period. Upon a foreclosure or conveyance in
lieu of foreclosure, and a demand by Landlord's successor, Tenant shall
attorn to and recognize such successor as Landlord under this Lease.
26. SUBORDINATION. Tenant agrees that this Lease shall be subordinate to
the lien of any mortgage or deeds of trust now or hereafter placed
against the Property or Building of which the premises comprise a part,
and to all renewals and modifications, supplements, consolidations and
extensions thereof, provided, however, in the event that any mortgagee
or beneficiary shall so elect, Landlord reserves the right to
subordinate said mortgage lien to this case upon tile terms required by
such mortgagee or beneficiary. Notwithstanding the above, so long as
Tenant is not in default herein, this lease shall remain in full force
and effect for the full term hereof.
27. TENANT'S PROPERTY. Furnishings, trade fixtures and equipment installed
by Tenant shall be tile property of tenant. On termination of the Lease,
Tenant shall remove any such property. Tenant shall repair or reimburse
Landlord for the cost of repairing any damage to the Premises resulting
the installment or removal of such properly.
28. REMOVAL OF PROPERTY. All personal property of tenant remaining on the
Premises after reentry or termination of this Lease shall conclusively
be deemed abandoned and may be removed by Landlord. Landlord may store
such property in any place selected by Landlord, including but not
limited to a public warehouse, at the expense and risk of the owner
thereof, with tile right to sell such stored property without notice to
Tenant. The proceeds of such sale shall be applied first to the cost of
such sale, second to the payment of the cost of removal and storage, if
any, and third to the payment of any other sums of
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money which may then be due from Tenant to Landlord under any of the
terms hereof, and the balance, if any, to be paid to Tenant.
29. PERSONAL PROPERTY TAXES. Tenant shall pay, or cause to be paid, before
delinquency, any and all personal property taxes levied or assessed and
which become payable during the term hereof upon Tenant's leasehold
improvements, equipment, furniture, fixtures and personal property
located in the Premises. In the event any or all of the Tenant's
leasehold improvements, equipment, furniture, fixtures and personal
property shall be assessed and taxed with the Building, Tenant shall pay
to Landlord its share of such taxes within ten (10) days after delivery
to Tenant by Landlord of a statement in writing setting forth the amount
of such taxes applicable to Tenant's personal property.
30. NOTICES. All notices under this Lease shall be in writing and shall be
effective when mailed by certified mail or delivered to Landlord, c/o
The Xxxxx Xxxxx Company, X.X. Xxx 0000 Xxxxxxx, XX 00000 or to Tenant at
the following address, or to such other address as either party may
designate to the other in writing from time lo time:
Tenant Mailing address
0000 000xx Xxx. XX
Xxxxxxx, XX 00000
31. GENERAL PROVISIONS.
a. Plats and Riders. Clauses, plats and riders, if any, signed by
tile Landlord and the Tenant and endorsed on or affixed to this
Lease are a part thereof
b. Waiver. The waiver by either party of any term, covenant or
consolidation herein contained shall not be deemed to be a
waiver of such term, covenant or condition on any subsequent
breach of the same or any other term, covenant or condition
herein contained. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this
Lease, other than the failure of the Tenant to pay the
particular rental so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of
such rent. No covenant, term, or condition of this Lease shall
be deemed to have been waived by Landlord unless such waiver
shall be in writing and signed by Landlord's duty authorized
representatives.
c. Joint Obligation. If there be more than one Tenant, the
obligations hereunder imposed upon Tenants shall be joint and
several.
d. Marginal Headings. The marginal headings and Section titles in
the Sections of this Lease are not a part of this Lease and
shall have no effect upon the construction or interpretation of
any part hereof.
c. Time. Time is of the essence of this lease and each and all of
its provisions in which performance is a factor.
Recordation. Tenant shall not record this Lease or a short form
memorandum hereof without the prior written consent of Landlord.
g. Late Charges. Tenant acknowledges that late payment by tenant to
Landlord of rent or other Sums due hereunder will cause Landlord
to incur costs not contemplated by this lease, the exact amount
of which would be extremely difficult and impractical to
ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be
imposed on Landlord by the terms of any mortgage or trust deed
covering the Premises;
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therefore, in the event Tenant should fail to pay any
installment of rent or any other sum due hereunder within
ten(10) days after such amount is due Tenant shall pay to
Landlord as additional rent a late charge equal to 5% of each
installment. A $20.00 charge will be paid by Tenant to Landlord
for each returned check. In addition, any sum due and payable to
Landlord tinder the terms of this lease which is not paid when
due shall bear interest at the rate of 2% plus the published
prime rate of interest of Seattle First National Bank, Main
Office, in effect as of the first day of the calendar month of
such default (and adjusted accordingly as said prime rate of
interest is adjusted) from the date the same becomes due and
payable until paid.
h. Prior Agreements. This Lease contains all of the agreements of
the parties hereto with respect to any matter covered or
mentioned in this Lease, and no prior agreements or
understanding pertaining to any such matters shall be effective
for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties
hereto or their respected successors in interest. This Lease
shall not be effective or binding on any party until fully
executed by both parties hereto.
i. Inability to Perform. This Lease and the obligations of the
Tenant hereunder shall not be affected or impaired because the
Landlord is unable to fulfill any of its obligations hereunder
or is delayed in doing so, if such inability is caused by reason
of strike, labor trouble, acts of God, or any other cause beyond
the reasonable control of the Landlord.
j. Attorney's Fees. In the event either party requires the services
of an attorney in connection with enforcing the terms of this
Lease, or in the event suit is brought for the recovery of any
rent due tinder this Lease, or for the breach of any covenant or
condition of the Lease, or for the restitution of said Premises
to Landlord and/or eviction of Tenant during said term or after
the expiration thereof, the prevailing party will be entitled to
a reasonable sum for attorney's fees, witness fees and court
costs, including costs of appeal.
k. In the event of any sale of the Building or Property, or any
assignment of this lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of all liability under any
and all of its covenants and obligations contained in or derived
from this Lease arising out of any act, occurrence, or omission
occurring after the consummation of such sale or assignment; and
the purchaser or assignee at such sale or assignment or any
subsequent sale or assignment of Lease, the Property or
Building, shall be deemed, without any further agreement between
the parties or their successors in interest or between the
parties and any SUCH purchaser or assignee to have assumed and
agreed to carry out any and all of the covenants and obligations
of the Landlord under this Lease.
l. Name. Tenant shall not use the name of the Building or of the
development in which the Building is situated for any purpose
other than as an address of the business to be conducted by the
Tenant in the Premises.
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m. Severability. Any provision of this Lease which shall be found
to be invalid, void or illegal by a court of competent
jurisdiction shall in no way affect, impair or invalidate any
other provision hereof and such other provision shall remain in
full force and effect.
n. Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative
with all other remedies at law or in equity.
o. Choice of Law. This Lease shall be governed by the laws of the
State in which the Premises are located.
p. Light, Air and View. Landlord does not guarantee the continued
present status of light, air, or view over any improvements
adjoining or in the vicinity of the Building.
q. Interpretation. This Lease has been submitted to the scrutiny of
all parties hereto and their counsel, if desired, and shall be
given a fair and reasonable interpretation in accordance with
tile words hereof, without consideration or weight being given
to its having been drafted by any party hereto or its counsel.
r. Keys. Upon termination of this Lease, Tenant shall surrender all
keys to the Premises to Landlord at the place then fixed for
payment of rent and shall inform Landlord of all combination
locks, safes, and vaults, if any, in the Premises.
32. SIGNS. The sign criteria for the Premises is set forth in Exhibit D.
33. AUTHORITY OF PARTIES.
a. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents
and warrants that he is duly authorized to execute and deliver
this Lease on behalf of said corporation, in accordance with a
duly adopted resolution of the board of directors of said
corporation or in accordance with the by-laws of said
corporation, and that this Lease is binding upon said
corporation in accordance with its terms.
b. Limited Partnerships. If the Landlord herein is a limited
partnership, it is understood and agreed that any claims by
Tenant on Landlord shall be limited to the assets of the limited
partnership, and furthermore, Tenant expressly waives any and
all rights to proceed against the individual partners or the
officers, directors or shareholders of any corporate partner,
except to the extent of their interest in said limited
partnership.
35. COMMISSIONS. Willows East Management shall pay a commission or fee to CB
Xxxxxxx Xxxxx in the amount of per agreement. Each party represents that
it has not had dealings with any other real estate broker or salesman
with respect to this Lease, and each party shall defend, indemnify and
hold harmless tile other party from all costs and liabilities including
reasonable attorney's fees resulting from any claims to the contrary.
THIS LEASE IS SUBJECT TO ACCEPTANCE BY LANDLORD.
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IN WITNESS WHEREOF, the parties hereto have executed this lease the date
and year above written.
EXECUTED BY LANDLORD, this 3rd day of November, 1999.
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Its
EXECUTED BY TENANT, this 29th day of October, 1999.
By /s/ Xxxxxxx X. St. Xxxx
---------------------------------
Title President
This Lease is personally guaranteed by:
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STATE OF WASHINGTON
COUNTY OF KING
I certify that I know or have satisfactory evidence that Xxxxxxx X. St. Xxxx is
the person who appeared before me, and said person acknowledged that (he/she)
signed this instrument, on oath stated that (he/she) was authorized to execute
the instrument and acknowledged it as the President of Nutraceutix, Inc. to be
the free and voluntary act of such person for the uses and purposes mentioned in
the instrument.
Dated 10/29/99
NOTARY PUBLIC in and for the State
of Washington, residing at Seattle
My commission expires: 11/22/2000
STATE OF WASHINGTON
COUNTY OF KING
I certify that I know or have satisfactory evidence that is the person
who appeared before me, and said person acknowledged that (he/she)
signed this instrument, on oath stated that (he/she) was authorized to
execute the instrument and acknowledged it as the of to be the free and
voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated
NOTARY PUBLIC in and for the State
of Washington, residing at
My commission expires:
STATE OF WASHINGTON
COUNTY OF KING
I certify that I know or have satisfactory evidence that is the person
who appeared before me, and said person acknowledged that (He/she)
signed this instrument, on oath stated that (he/she) was authorized to
execute the instrument and acknowledged it as the of to be the free and
voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated
NOTARY PUBLIC in and for the State
of Washington, residing at
My commission expires:
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EXHIBIT C
Attached to and made a part of Lease bearing the
Lease Reference Date of _______________, 1999 between
Xxxxx Xxxxxx/Xxxxxxxxx Trust, as Landlord and
Nutraceutix, Inc. as Tenant.
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, vestibules, stairways,
corridors or flails shall not be obstructed or used for any purpose
other than ingress and egress.
2. No awning or other projection shall be attached to the outside walls of
the Entire Premises without the proper written consent of the Landlord.
No curtains, blinds, shades or screens shall be attached to or hung in,
or used in connection with, any window or door of the Premises, without
the prior written consent of the Landlord. All electrical ceiling
fixtures hung in offices or spaces along the Premises must be approved
by Landlord.
3. No sign, advertisement or notice shall be exhibited, painted, or affixed
by ally Tenant on any part of, or so as to be seen from the outside of,
the Premises or the Entire Premises without the prior written consent of
the Landlord (See Exhibit D - Signage Criteria). In the event of the
violation of tile foregoing by any Tenant, Landlord may remove same
without any liability, and may charge this expense incurred in such
removal to the Tenant violating this rule.
4. The toilets and wash basins and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed,
and no sweepings, rubbish, rags or other substances shall be thrown
therein. All damage resulting from any misuse of such fixtures shall be
home by the Tenant who, or whose servants, employees, agents, visitors
or licensees shall have caused same.
5. No Tenant shall xxxx, paint, drill into, or in any way deface any part
of the Premises or the Entire Premises. No boring, cutting or stringing
of wires or laying of linoleum or other similar floor coverings shall be
permitted except with) prior written consent of the landlord as the
Landlord may direct.
6. No Tenant shall cause or permit any unusual or objectionable odors to
escape from the Premises.
7. No Tenant shall occupy or permit any portion of his Premises to be
occupied for the manufacture of liquor, narcotics, or tobacco in any
form, or as a medical office, or as a xxxxxx shop or manicure shop. No
Tenant shall engage or pay any employees on the Premises except those
actually working for such Tenant on the Premises. The Premises shall
not be used for lodging or sleeping or for any immoral or illegal
purposes.
8. No Tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises or persons having business with them whether by
the use of any musical instrument, radio, phonograph, unusual noise, or
in any other way.
9. No Tenant shall throw anything out of doors or down the passageways.
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10. No Tenant shall at any time bring or keep upon the Premises any
inflammable, combustible or explosive fluid, chemical or substance which
is not in conformance with all governmental regulations.
11. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in
existing locks or the mechanism thereof without Landlord's prior written
approval. Each Tenant must, upon the termination of its tenancy, restore
to the Landlord all keys of stores, offices, and toilet rooms either
furnished to, or Otherwise procured by, such Tenant, and in the event
of the loss of any keys so furnished, such Tenant shall pay to the
Landlord the cost of replacing the same or of changing the lock or locks
opened by such lost key if Landlord shall deem it necessary to make such
change.
12. All removals, or the carrying in or out of any freight, furniture, or
bulky matter of any description other than that which is part of
Tenant's normal business must take place during the hours which the
Landlord may determine from time to time. The moving of said fixtures or
bulky matter of any kind must be made upon previous notice to the
manager of the Entire Premises and under his/her supervision, and tile
person employed by any Tenant for such work must be acceptable to tile
Landlord. The Landlord reserves the right to inspect all freight or
other bulky articles to be brought into the Entire Premises and to
exclude from the Entire Premises all freight or other bulky articles
which violate any of these Rules and Regulations or the Lease of which
these Rules and Regulations are a part. The Landlord reserves the right
to prohibit or impose conditions upon the installation of the Premises
of heavy objects which might overload the building floors.
13. The Landlord shall have the right to prohibit any advertising by any
Tenant which, in Landlord's opinion tends to impair the reputation of
the entire building or its desirability as a building for its intended
use and upon written notice from Landlord any Tenant shall refrain from
or discontinue such advertising.
14. Any persons employed by any Tenant to do janitor work shall, while in
the Entire Premises but outside of the Premises, be subject to and under
tile control of said manager or of tile Landlord, and Tenant shall be
responsible for all acts of such persons.
15. Canvassing, soliciting and peddling within the Entire Premises are
prohibited and each Tenant shall cooperate to prevent same.
16. All office equipment of any electrical or mechanical nature shall be
placed by Tenants in the Premises in settings designed to absorb or
prevent any vibration, noise or annoyance.
17. No air conditioning unit or other similar apparatus shall be installed
or used by Tenant without the written consent of Landlord.
18. All business identification sign designs shall be submitted to the
Landlord for approval prior to fabrication, in the form of an accurately
scaled drawing showing location, size, letter style and color. Submit
two copies. One will be returned to tile Tenant with either comments or
signed approval.
19. No pets of any kind will be allowed.
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EXHIBIT D
SIGNAGE CRITERIA
All proposed tenant signage list to be submitted for review and approval.
Willows East Management
X.X. Xxx 0000
Xxxxxxx, XX 00000
This signage criteria applies to all tenants.
Tenants shall use a licensed sign contractor. Sign shall be approved by
Landlord and Permitted by local jurisdiction.
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ADDENDUM "A" TO LEASE
XXXXX XXXXXX/XXXXXXXXX TRUST AND NUTRACEUTIX, INC.
The following items shall be incorporated into this Lease:
1. Tenant shall have the right to occupy premises (after Lease execution)
prior to commencement date.
2. Tenant, at its expense, is permitted to make any improvements to the
property in accordance with all government authorities and obtaining
prior written approval of Landlord which shall not be unreasonably
withheld.
3. Tenant shall have two (2) three-year Options to Renew at the then
prevailing market rate. Tenant shall provide Landlord six (6) months
written notice of its intent to renew.
4. Tenant shall have the right to sublease or assign the space with
Landlord's written consent, which shall not be unreasonably withheld.
5. Tenant, at its sole expense, shall be permitted building signage,
subject to City of Xxxxxxx and Landlord approval.
6. Landlord shall provide the following for improvements: $3,500 allowance
for new carpet
- $3,000 allowance for new ceiling tiles
- Warrant electrical and plumbing in good working order
- Have Merit Mechanical inspect HVAC and do any repairs required to insure
units are in good working order
- Broom clean warehouse.
- Remove any and all extraneous electric, furniture and debris from
premises
- Clean/replace/repair mini-blinds in office portion of space.
7. Parking shall be provided free of charge for the term of the Lease and
any Lease extension(s).
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. St. Xxxx
------------------------------------ ------------------------------------
Landlord Tenant
