LEASE AGREEMENT, REV. 2
LEASE
AGREEMENT, REV. 2
THIS
REVISION 2 TO THE LEASE AGREEMENT DATED FEBRUARY 9, 2005 and amended by Revision
1 dated May 5, 2005 and made by subsidiaries of the Parties now delineated
as
signatories,
is made
and entered into this 1st day of November, 2005, by and between Nuvotec
USA,
Inc.
(hereinafter “LESSOR”),
a
Washington corporation with its corporate offices located at 000 Xxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, and IsoRay, Inc. (hereinafter “LESSEE”)
a
Delaware corporation with its corporate offices located at 000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, (collectively, the “Parties”
and each
a “Party”).
WHEREAS,
LESSOR
currently owns the premises known as 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxx; and
WHEREAS,
LESSEE
is interested in leasing a portion of said premises; and
WHEREAS,
both
Parties have an interest in transferring this Lease to their respective parent
companies and amending the rent and assignment provisions;
NOW,
THEREFORE,
in
consideration of the mutual promises hereinafter contained, the parties hereto
agree as follows:
PREMISES.
LESSOR
does hereby lease to LESSEE the Waste Storage Bay 3 of the Mixed Waste Building
on the premises commonly known as 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000. Further, LESSEE shall have access to the rest room facilities and
lunchroom located near the Premises, as well as other common areas as
appropriate and necessary.
TERM.
The term
of this Lease shall be for one (1) year, with a one (1) year option, commencing
the first day of March 2005 or upon regulatory licensing approval -
whichever occurs later. By mutual agreement of the parties, this Lease may
be
extended on a month-to-month basis.
RENT.
LESSEE
covenants and agrees to pay LESSOR at the end of the initial term at 000
Xxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 or to such other party or at such other
place as LESSOR may hereinafter designate. The annual rental amount shall
be
paid in IsoRay, Inc. common stock and shall be in the amount of Twenty-four
Thousand Seven (24,007) shares of common stock. In the event this Lease is
terminated before the end of the initial year, the stock paid to LESSOR shall
be
pro-rated accordingly in relation to the number of days the Lease was effective.
In the event that LESSEE elects to exercise the option for an additional
year,
the annual rental amount will be evaluated at that time and mutually agreed
to
by the Parties.
ACCEPTANCE
OF PREMISES.
LESSEE
accepts the Premises “as-is”.
Responsibility for the cost of facility modifications necessary to accommodate
LESSEE shall be mutually agreed to between the parties prior to incurring
the
cost. In those cases wherein LESSOR assumes the responsibility for the cost,
LESSEE shall reimburse LESSOR with IsoRay, Inc. common stock based on a value
of
the current market value of the LESSEE’s
common
stock, measured by the average daily closing price of the stock in the calendar
month in which the LESSOR performed the activities.
PERMITTING.
LESSEE
shall be responsible for the permitting activities required specific to their
operations on the leased premises. LESSOR will facilitate said permitting
efforts.
RELATIONSHIP
OF THE PARTIES.
Nothing
contained in this Lease shall, by express grant, implication, estoppel, or
otherwise, create in either party any right, title, interest, or license
in or
to the inventions, patents, technical data, computer software, or software
documentation of the other party. This Agreement is not intended by the parties
to constitute or create a joint venture, pooling arrangement, partnership,
or
formal business organization of any kind, other than a landlord-tenant
relationship, and the rights and obligations of the parties shall be only
those
expressly set forth herein. Neither party shall have authority to bind the
other
except to the extent authorized herein. Nothing in this Agreement shall be
construed as providing for the sharing of profits or losses arising out of
the
efforts of either or both parties.
OPERATING
COSTS AND EXPENSES.
The Base
Rent provided herein includes real estate taxes, building insurance, and
building maintenance all of which shall be paid by the LESSOR, without any
additional charge to the LESSEE. LESSEE is responsible for providing their
own
office and operating equipment and administrative personnel.
CONTAMINATION.
Notwithstanding any other provision of this Lease, in the event that the
activities of LESSEE contaminate the leased premises and/or any of the premises
commonly known as 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx, LESSEE shall
be
solely responsible for the cost of restoring the contaminated areas to the
same
condition as existed at the inception of this Lease. LESSEE agrees to clean
up
any known contaminates at the time the contamination occurs and to immediately
notify LESSOR of the situation. The premises have been baseline surveyed
by
LESSOR for pre-lease contamination (see attached baseline survey). The premises
will be restored to a condition that is not greater than the attached baseline
survey.
TECHNICAL
SUPPORT.
Related
to this Lease, LESSOR will provide certain staff as technical support to
the
LESSEE. Time for said staff will be billed in accordance with the rates as
delineated in Exhibit A.
UTILITIES.
LESSOR
shall pay all charges for water, sewage disposal, and gas or other fuel utilized
in connection with normal and customary general occupancy of the Premises
without any additional charge to LESSEE. LESSEE shall pay all charges for
telephone, internet, LAN, and other charges specific to the use of the Premises
by LESSEE. Additionally, LESSEE shall be responsible for establishing their
own
mail service -
both
pick-up and drop-off -
as this
function will not be provided by the LESSOR. Further, LESSEE shall be
responsible for all electricity charges consumed by the LESSEE’s
operations. LESSOR will establish a separate meter for LESSEE’s
operations in order to track the LESSEE’s
utility
costs.
JANITORIAL
SERVICES. LESSEE
shall be responsible for and provide janitorial services and supplies to
support
its occupancy.
MAINTENANCE.
The
LESSEE will at all times keep the Premises neat, clean, and sanitary. LESSEE
will perform any duty required to place the Premises in as near a condition
as
at the time of occupancy, normal wear and tear excepted. LESSEE is responsible
for surrendering to LESSOR all keys fitting all locks located on the Premises
that are in the possession of LESSOR.
TAXES.
The
Parties acknowledge that LESSOR shall pay and hold LESSEE harmless for all
state, federal, and local taxes and assessments against the Premises or
leasehold improvements thereto.
INSURANCE.
LESSEE
shall, at its cost and expense, procure and maintain during the term of this
Lease the following insurance coverage:
(1)
Comprehensive general public liability insurance insuring against the risks
of
bodily injury, property damage, and personal injury liability occurring on
the
Premises of arising out of LESSEE’s
negligent use or occupancy of the Premises, with a combined single limit
of
liability of at least $1,000,000.
(2)
Fire
and extended coverage insurance insuring LESSEE’s
personal property in or on the Premises for one hundred percent (100%) of
its
full insurable and replacement costs, without deduction for
depreciation.
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(a)
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LESSEE’s
policy of liability insurance shall list LESSOR as additional insured
and
shall also contain an endorsement that although LESSOR is listed
as
additional insured, LESSOR shall not be entitled to recover under
the
policy for any loss or damage occasioned to it or its agents or
employees
except by reason of LESSEE’s
negligence. Any insurance policy LESSEE is required to procure
and
maintain under this Lease shall be issued by a responsible insurance
company or companies licensed to do business in the State of Washington.
Further, each such policy shall provide that it may not be canceled,
terminated, or changed except after ten (10) days prior written
notice to
LESSOR.
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(b)
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LESSOR
and LESSEE each waives any claim it might have against the other
for
personal injury or death or for damage to or theft, destruction,
loss, or
loss of use of any property, to the extent the same is insured
against
under any insurance policy that covers the Building, LESSOR’s
or LESSEE’s
fixtures, personal property, leasehold improvements, or business,
or is
required to be insured against under the terms hereof, and each
party
shall cause its insurance carrier to endorse all applicable policies
waiving the carrier’s
rights of recovery under subrogation or otherwise against the other
party.
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Caveat:
In
the
event that it is determined that to be in compliance with State regulatory
requirements additional insurance coverage is necessary, the parties agree
to
work together to obtain such.
SUCCESSORS
IN INTEREST.
This
Lease shall be binding upon and inure to the benefit of the heirs, successors,
assigns, and transferees of the parties hereto. This Lease shall not be
assignable in whole or in part without the prior written approval of the
LESSOR.
The Parties acknowledge that LESSEE has obtained a loan from the Hanford
Economic Area Investment Fund Committee (hereinafter “HEAFIC”)
and as
such LESSOR hereby acknowledges that it will, on the basis the
entity/individuals chosen by HEAFIC to continue this Lease are acceptable
to
LESSOR, said acceptance to not be unreasonably withheld, approve of an
assignment of this Lease by LESSEE to HEAFIC pursuant to the terms of the
loan
between LESSEE and HEAFIC.
ACCESS
TO PREMISES.
LESSEE
shall allow LESSOR access at all reasonable times to the leased Premises
for the
purpose of inspection and repairs.
DEFAULT
BY LESSOR.
Should
LESSOR fail to perform any of the terms and conditions required herein, LESSEE
may declare LESSOR to be in default upon thirty (30) days written notice.
Upon
default, LESSEE may terminate this Lease (without liability to pay any amount
for such termination) and/or pursue any and all remedies available to it
under
Washington law. Provided, however, that if such failure to observe or perform
is
remediable but is of such nature that it cannot be remedied within such thirty
(30) day period, then for such longer period as may be reasonably required,
so
long as LESSOR promptly commences and diligently pursues such remedy to
completion.
DEFAULT
BY LESSEE.
Should
LESSEE fail to perform any of the terms and conditions required herein, LESSOR
may declare LESSEE to be in default upon thirty (30) days written notice.
Upon
default, LESSOR may terminate this Lease (without liability to pay any amount
for such termination) and/or pursue any and all remedies available to it
under
Washington law. Provided, however, that if such failure to observe or perform
is
remediable but is of such nature that it cannot be remedied within such thirty
(30) day period, then for such longer period as may be reasonably required,
so
long as LESSEE promptly commences and diligently pursues such remedy to
completion. The occurrence of any one or more of the following events shall
constitute a material default in breach of this Lease by LESSEE: 1) failure
by
LESSEE to make any payment of rent or other sum required herein as and when
due;
and/or, 2) failure by LESSEE to materially observe or perform any of the
covenants, conditions, or provisions of this Lease.
ALTERATIONS/IMPROVEMENTS.
LESSEE
shall not make any alterations or improvements in, on, or about the Premises
without the prior written consent of LESSOR, which shall not be unreasonably
withheld. Upon the expiration or termination of this Lease, the LESSEE
acknowledges that any alterations and/or improvements to the property which
have
been installed by the LESSEE and approved by the LESSOR may or may not be
left
with the Premises. LESSOR may require the LESSEE to remove any alterations
and/or improvements which were made without the LESSOR’s
approval and restore the Premises to their original condition.
THE
LESSEE process and process support equipment shall not be considered Alterations
or improvements and shall be removed by the LESSEE upon Lease termination.
This
equipment includes, but is not limited to:
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hot
cells;
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glove
boxes;
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analytical
equipment;
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radiation
monitoring equipment;
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computers
and peripheral equipment; and,
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ancillary
and support equipment related to the
above.
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Alterations
and improvements are HVAC, electrical modifications (including lighting),
walls,
cabinetry, exterior concrete pad, fencing/gates, and signage. These items
shall
be removed as directed by LESSOR at the end of the Lease.
SIGNAGE.
LESSOR
hereby consents to LESSEE posting one sign on the exterior of the main entrance
to the building (fenceline) and one sign at or near the roadway at the main
road
entrance as approved per the City of Richland. All signs shall be subject
to the
prior review and approval of the LESSOR.
PARKING.
LESSOR
shall provide spaces for automobile parking.
COMMON
AREAS.
Common
areas are defined to include the following interior and exterior areas:
hallways, restrooms, emergency exits, parking areas and the entrances and
exits
thereof, driveways, sidewalks, lunch rooms, rest rooms/locker rooms on east
side
of main building (Building 17), and other areas and facilities provided for
general use.
LESSOR
shall arrange for all required maintenance of both interior and exterior
common
areas including gardening and landscaping, janitorial, repair of common area
facilities, line painting, lighting lamp replacement, sanitary control, removal
of snow, trash rubbish and other refuse, policing, traffic and other
regulations.
HAZARDOUS
MATERIALS.
LESSEE
shall not take or store upon the Premises any pollutants, contaminants,
hazardous, or toxic materials as defined by the law of the State of Washington
or by federal law, except in strict compliance with all applicable rules,
regulations, ordinances, and statutes.
NOTICES.
All
notices, certificates, acknowledgements, and other reports hereunder shall
be in
writing and shall be deemed properly delivered when duly mailed by registered
letter to the other party at its addresses as follows, or to such other address
as either party may, by written notice, designate to the other.
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Novotec
USA,
Inc.
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000
Xxx Xxxxxxx
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000
Xxxxx Xxxxxx, Xxxxx 000
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Attn:
Xxxxxx X. Xxxxxx
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Attn:
Xxxxx X. Xxxxxx
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Phone:
509/000-0000
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Phone:
509/000-0000
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Fax:
509/000-0000
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Fax:
509/000-0000
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CHANGES
TO TERMS.
This
Lease shall not be amended, modified, or extended, nor shall any waiver of
any
right hereunder be effective unless set forth in a document executed by duly
authorized representatives of both the parties. The waiver of any breach
of any
term, covenant, or condition herein contained shall not be deemed to be a
waiver
of such term, covenant, or condition for any subsequent breach of the
same.
INTEGRATION.
This
Lease contains all of the agreements, representations, and understandings
of the
parties hereto and supersedes and replaces any and all previous understandings,
commitments, or agreements, oral or written, related to this Lease Agreement
set
forth herein.
SEVERABILITY.
If any
part, term, or provision of this Lease shall be held void, illegal,
unenforceable or in conflict with any law of a federal, state, or local
government having jurisdiction over this Lease, the validity of the remaining
portions of provisions shall not be affected thereby.
JURISDICTION.
This
Lease shall be enforced and interpreted under the laws of the State of
Washington.
PREVAILING
PARTY.
In the
event that either party hereto brings an action at law or in equity for the
enforcement of any provision of this Lease, the prevailing party shall be
entitled to recover all costs and expenses including reasonable
attorney’s
fees
incurred both at trial and on appeal.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Lease Revision No. 1 on the date first
stated
above.
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NUVOTEC,
USA,
INC.
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By:
/s/
Xxxxxx X. Xxxxxxxx
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By:
Xxxxx X. Xxxxxx
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Name:
Xxxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxx
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Title:
Chairman & Chief Executive
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Title:
Chief Executive Officer Officer
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EXHIBIT
A
Technical
support will be provided at the following hourly billing rates (rates are
listed
at the maximum charge out rate for each category):
Mechanics
$51.61
Instrument
Technicians
$51.61
Electricians
$51.61
Health
Physics Technicians
$53.29
Regulatory
Compliance Manager
$63.52
EHS&Q
Manager
$83.02
