1
EXHIBIT 10.3
FIRST AMENDMENT TO LEASE
THIS AMENDMENT, dated this 10th day of July, 1997, between SFERS REAL ESTATE
CORP. A, a Delaware corporation ("Landlord") and Nutraceutix, Inc. dba Bio
Techniques Laboratories, Inc., a Delaware corporation ("Tenant"), for the
Premises located in the City of Xxxxxxx, County of King, State of Washington,
commonly known as 00000 XX 00xx Xxxxxx, Xxxxxxx Xxxxxxxx Xxxxxx.
WITNESSETH:
WHEREAS, Landlord and Tenant, entered into that certain Lease date August
21, 1995; and
WHEREAS, Landlord and Tenant desire to amend the Lease as more fully set
forth below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. Unless otherwise specifically set forth herein, all capitalized
terms herein shall have the same meaning as set forth in the Lease.
2. Amendments.
The PREMISES as shown on the Reference Page is hereby amended to be
addressed 00000 XX 00xx Xxxxxx. (See Exhibit A for outline of premises,
attached hereto and incorporated herein by reference).
The PREMISES RENTABLE AREA as shown on the Reference Page is hereby
amended to approximately 1,879 square feet.
The TERM OF LEASE as shown on the Reference Page is hereby extended
for three (3) years commencing on August 1, 997 and ending July 31, 2000.
The MONTHLY INSTALLMENT OF RENT as shown on the Reference Page is
hereby amended to:
From: 08/01/97 To: 07/31/98 $1,036.00 NNN
From: 08/01/98 To: 07/31/99 $1,070.00 NNN
From: 08/01/99 To: 07/31/00 $1,110.00 NNN
The TENANT'S PROPORTIONATE SHARE as shown on the Reference Pages is
hereby amended to:
CAM/ESC: 1.14% TAX: 1.14% INS: 1.14%
(based on 1,879 Premises sf/164,202 Building sf)
3. Tenant Improvements. Provided the Lease is in full force and effect and
Tenant is not in default thereunder, Landlord hereby agrees to pay to Tenant
toward the cost of the Work an amount equal to the lessor of: (i) the actual
cost of the Work; or (ii) $3,000.00 (the "Allowance"). Landlord shall pay Tenant
the Allowance within thirty (30) days of completion of the work.
4. Incorporated. Except as modified herein, all other terms and conditions of
the Lease between the parties above described, as attached hereto, shall
continue in full force and effect.
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5. Limitation of Landlord's Liability. Redress for any claim against
Landlord under this Amendment or under the Lease shall only be made
against Landlord to the extent of Landlord's interest in the property to
which the Premises are a part. The obligations of Landlord under this
Amendment and the Lease shall not be personally binding on, nor shall any
resort be had to the private properties of, any of its trustees or board
of directors and officers, as the case may be, the general partners
thereof, or any beneficiaries, stockholders, employees, or agents of
Landlord, or its investment manager.
IN WITNESS WHEREOF, Landlord and Tenant have executed the Amendment as of
the day and year first written above.
LANDLORD: TENANT:
SFERS REAL ESTATE CORP. A, Nutraceutix, Inc.
a Delaware corporation dba Bio Techniques Laboratories, Inc.
a Delaware corporation
By: RREEF MANAGEMENT COMPANY, By: /s/ XXXXXXX X. ST. XXXX
a California corporation ----------------------------------
Xxxxxxx X. St. Xxxx
Its: President
By: /s/ XXXX XXXXXX
------------------------------- Date: July 17, 1997
Xxxx Xxxxxx --------------------------------
Its: District Manager
Date: July 21, 1997
----------------------------- [SEAL]
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EXHIBIT A
attached to and made a part of First Amendment to Lease
dated of July 10, 1997 between
SFERS REAL ESTATE CORP. A, as Landlord and
Nutraceutix, Inc., dba Bio Techniques Laboratories, Inc., as Tenant
for the Premises known as 00000 XX 00xx Xxxxxx
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth with respect to arrangements and/or locations of
public parts of the Building and changes in such arrangements and/or locations.
It is not to be scaled; any measurements or distances shown should be taken as
approximate.
LEGAL DESCRIPTION:
Willows Business Center, building 6 located at 00000 XX 00xx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx, and situated on Lot 3, of the short plat of Xxx 0, Xxxxxxx
Xxxxxxxxxx Xxxxxx, (XX-00-00, Xxxx Xxxxxx, recording number 811029-0435)
Sections 2 & 0, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, X.X., Xxxx Xxxxxx, Xxxxxxxxxx.
SITE PLAN:
[SITE PLAN ILLUSTRATION]
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CORPORATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this day of July 21, 1997, before me, the undersigned, a Notary Public
in and for the State of Washington, personally appeared Xxxx Xxxxxx and
________________ , to be known to be the District Manager and _________________
of RREEF Mgmt. Co., a corporation, and acknowledged to me that they executed the
same of behalf of said corporation freely and voluntarily for the uses and
purposes therein mentioned.
Witness my hand and official seal the day and year in this certificate
first above written.
/s/ XXXXXX X. XXXXX
-------------------------------------
Notary Public in and for the
State of Washington
residing at Seattle
CORPORATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this day of July 17, 1997, before me, the undersigned, a Notary Public
in and for the State of Washington, personally appeared Xxxxxxx X. St. Xxxx, to
be known to be the President and _________________
of NUTRACEUTIX, a corporation, and acknowledged to me that they executed the
same of behalf of said corporation freely and voluntarily for the uses and
purposes therein mentioned.
Witness my hand and official seal the day and year in this certificate
first above written.
[SEAL] /s/ XXXXXXXX GASPERTH
-------------------------------------
Notary Public in and for the
State of Washington
residing at Redmond
INDIVIDUAL ACKNOWLEDGMENT
STATE OF )
) ss.
COUNTY OF )
On this ___ day of _________________, 199__, before me, the undersigned, a
Notary Public in and for the State of __________________, personally appeared
___________________, to me known to be the person(s) named in the foregoing
document, and acknowledged to me that ____________________________ executed the
same freely and voluntarily for the uses and purposes therein mentioned.
Witness my hand and official seal the day and year in this certificate
first above written.
-------------------------------------
Notary Public in and for the
State of ____________________________
residing at _________________________
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5. Limitation of Landlord's Liability. Redress for any claim against Landlord
under this Amendment or under the Lease shall only be made against Landlord to
the extent of Landlord's interest in the property to which the Premises are a
part. The obligations of Landlord under this Amendment and the Lease shall not
be personally binding on, nor shall any resort be had to the private properties
of, any of its trustees or board of directors and officers, as the case may be,
the general partners thereof, or any beneficiaries, stockholders, employees,or
agents of Landlord, or its investment manager.
IN WITNESS WHEREOF, Landlord and Tenant have executed the Amendment as of
the day and year first written above.
LANDLORD: TENANT:
SFERS REAL ESTATE CORP. A, Nutraceutix, Inc.,
a Delaware corporation dba Bio Techniques Laboratories, Inc.,
a Delaware corporation
By: RREEF MANAGEMENT COMPANY, By: /s/ XXXXXXX X. ST. XXXX
a California corporation -----------------------
Xxxxxxx X. St. Xxxx [SEAL]
Its: President
By: /s/ XXXX XXXXXX
------------------------- Date: July 17, 1997
Xxxx Xxxxxx
Its: District Manager
Date: July 21, 1997
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WILLOWS BUSINESS CENTER LEASE
REFERENCE PAGE
BUILDING: WILLOWS BUSINESS CENTER
LANDLORD: SFERS REAL ESTATE CORP. A,
a Delaware corporation
LANDLORD'S ADDRESS: 00000 XX 00xx Xxxxxx, Xxxxxxx, XX 00000
LEASE REFERENCE DATE: August 21, 1995
TENANT: Nutraceutix, Inc., dba Bio Techniques
Laboratories, Inc.,
a Washington corporation
TENANT'S ADDRESS: 0000 000xx Xxxxxx XX
At Lease execution: Xxxxxxx, XX 00000
PREMISES: 00000 XX 00xx Xxxxxx, Xxxxxxxx 0
(see Exhibit A for outline of premises,
attached hereto and incorporated herein
by reference)
PREMISES RENTABLE AREA: Approximately 1,538 square feet
USE: Research and development, manufacturing
and marketing of natural nutraceutical
products.
COMMENCEMENT DATE: September 1, 1995
TERMINATION DATE: August 31, 1997
TERM OF LEASE: Two (2) years, zero (0) months and zero
(0) days beginning on the Commencement
Date and ending on the Termination Date
(unless sooner terminated pursuant to
the Lease)
MONTHLY INSTALLMENT OR RENT: From: 09/01/95 To: 08/31/96 $785.00 NNN
From: 09/01/96 To: 08/31/97 $815.00 NNN
TENANT'S PROPORTIONATE SHARE: *CAM/ESC: 0.94% TAX: 0.94% INS: 0.94%
(based on 1,538 Premises sf/164,202
Building sf)
SECURITY DEPOSIT: $865.00
ASSIGNMENT/SUBLETTING FEE: $750.00
REAL ESTATE BROKER DUE COMMISSION: Xxxxxxx and Wakefield
The Reference Page information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Page information and
the Lease, the Lease shall control. This Lease includes Exhibits A through E,
all of which are made a part of this Lease.
LANDLORD: TENANT:
SFERS REAL ESTATE CORP. A, Nutraceutix, Inc., dba Bio Techniques,
a Delaware corporation Inc., a Delaware Corporation
By: RREEF Management Company, By: /s/ XXXXXXX X. ST. XXXX
a California corporation ------------------------------------
Xxxxxxx X. St. Xxxx
By: Its: President
--------------------------------
Xxxx X. Xxxxxxxx, R.P.A.
Its: District Manager Date: 8-23-95
Date: ----------------------------------
------------------------------
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LEASE
LANDLORD
SFERS REAL ESTATE CORP. A
TENANT
NUTRACEUTIX, INC.,
DBA
BIO TECHNIQUES LABORATORIES, INC.
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TABLE OF CONTENTS
Article Page
1. PREMISES AND TERM.................................................... 1
2. BASE RENT; SECURITY DEPOSIT.......................................... 1
3. USE.................................................................. 1
4. TAXES................................................................ 2
5. REPAIRS.............................................................. 2
6. ALTERATIONS.......................................................... 4
7. INSPECTIONS.......................................................... 4
8. UTILITIES............................................................ 4
9. ASSIGNMENT AND SUBLETTING............................................ 4
10. INDEMNIFICATION PROVISION............................................ 5
11. CASUALTY AND CONDEMNATION............................................ 5
12. LIABILITY............................................................ 6
13. HOLDING OVER......................................................... 7
14. QUIET ENJOYMENT...................................................... 7
15. EVENTS OF DEFAULTS................................................... 7
16. REMEDIES............................................................. 8
17. MORTGAGES............................................................ 9
18. MECHANIC'S AND OTHER LIENS........................................... 9
19. NOTICES.............................................................. 10
20. MISCELLANEOUS........................................................ 10
21. CORPORATE AUTHORITY.................................................. 11
22. LIMITATION OF LANDLORD'S LIABILITY................................... 11
EXHIBIT A - PREMISES, LEGAL DESCRIPTION
EXHIBIT B - INITIAL ALTERATIONS
EXHIBIT C - RULES AND REGULATIONS
EXHIBIT D - HVAC MAINTENANCE AND REPAIR
EXHIBIT E - SIGNAGE CRITERIA
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WILLOWS BUSINESS CENTER LEASE
REFERENCE PAGE
BUILDING: WILLOWS BUSINESS CENTER
LANDLORD: SFERS REAL ESTATE CORP. A,
a Delaware corporation
LANDLORD'S ADDRESS: 00000 XX 00xx Xxxxxx, Xxxxxxx, XX 00000
LEASE REFERENCE DATE: August 21, 1995
TENANT: Nutraceutix, Inc., dba Bio Techniques
Laboratories, Inc., a Washington
corporation
TENANT'S ADDRESS: 0000 000xx Xxxxxx XX
At Lease execution: Xxxxxxx, XX 00000
PREMISES: 00000 XX 00xx Xxxxxx, Xxxxxxxx 0
(see Exhibit A for outline of premises,
attached hereto and incorporated herein
by reference)
PREMISES RENTABLE AREA: Approximately 1,538 square feet
USE: Research and development, manufacturing
and marketing of natural nutraceutical
products.
COMMENCEMENT DATE: September 1, 1995
TERMINATION DATE: August 31, 1997
TERM OF LEASE: Two (2) years, zero (0) months and
zero (0) days beginning on the
Commencement Date and ending on the
Termination Date (unless sooner
terminated pursuant to the Lease)
MONTHLY INSTALLMENT OF RENT: From: 09/01/95 To: 08/31/96 $785.00 NNN
From: 09/01/96 To: 08/31/97 $815.00 NNN
TENANT'S PROPORTIONATE SHARE: *CAM/ESC: 0.94% TAX: 0.94% INS: 0.94%
(based on 1,538 Premises sf/164,202
Building sf)
SECURITY DEPOSIT: $865.00
ASSIGNMENT/SUBLETTING FEE: $750.00
REAL ESTATE BROKER DUE COMMISSION: Xxxxxxx and Xxxxxxxxx
The Reference Page information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Page information and
the Lease, the Lease shall control. This Lease includes Exhibits A through E,
all of which are made a part of this Lease.
LANDLORD: TENANT:
SFER REAL ESTATE CORP. A, Nutraceutix, Inc., dba Bio Techniques
a Delaware corporation Laboratories, Inc., a Delaware Corporation
By: RREEF Management Company, By: /s/ XXXXXXX X. ST. XXXX
a California corporation --------------------------------------
Xxxxxxx X. St. Xxxx
By: --------------------------- Its: President
Xxxx X. Xxxxxxxx, R.P.A.
Its: District Manager Date: 8-23-95
-------------------------------------
Date: ---------------------------
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LEASE AGREEMENT
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises set forth and described in the Reference Page. This Lease is solely a
lease of space in the Building and does not constitute a lease of any land. The
Reference Page, including all terms defined thereon, is hereby incorporated as
part of this Lease.
1. PREMISES AND TERM
1.1 To have and to hold the same for a term (the "Term") commencing on
the Commencement Date (the "Commencement Date") and ending on the Termination
Date (the "Termination Date") described in Reference Page attached herewith
unless sooner terminated pursuant hereto.
1.2 The site plan attached hereto shows the floor plan of the Premises
(the "Approved Plans"). The cost of any changes and/or additions requested by
Tenant after Landlord and Tenant have agreed on the Approved Plans, including
but not limited to the actual cost therefor, the cost of revisions in the plans
and specifications and the cost of any delays in construction, whether or not
such changes are finally agreed to, together with twenty percent (20%) of such
costs for Landlord's overhead and profits, shall be paid as additional rent by
Tenant upon Landlord's presentation of a xxxx therefor.
1.3 Taking of possession by Tenant shall be deemed to establish
conclusively that the Premises have been so completed and that the Premises are
in good and satisfactory condition, as of when possession was so taken (except
for such items Landlord is permitted to complete at a later date because of
weather conditions or other causes beyond Landlord's reasonable control, which
items shall be specified by Landlord to Tenant in writing). Tenant acknowledges
that no representations as to the repair of the Premises have been made by
Landlord, unless expressly set forth in this Lease.
2. BASE RENT; SECURITY DEPOSIT
Tenant agrees to pay to Landlord base rent for Premises for the entire Term at
the rate(s) shown in Reference Page, one such monthly installment shall be due
and payable without demand on or before the first day of each calendar month
during the Term, provided, that the rental payment for any fractional calendar
month shall be prorated. In addition, Tenant agrees to deposit with Landlord on
the date hereof the security deposit shown in Reference Page, which sum shall
be held by Landlord, without obligation for interest, as security for the full,
timely and faithful performance of Tenant's obligations under this Lease, it
being agreed that such deposit is not an advance rental deposit or measure of
Landlord's damages. Upon the occurrence of any event of default by Tenant,
Landlord may, for time to time, without prejudice to any other remedy, use such
fund to make good any arrears of rent or other payments due Landlord hereunder,
and any other damage, injury, expense or liability caused by Tenant's default;
and Tenant shall pay to Landlord on demand the amount so applied in order to
restore the security deposit to its original amount. Any remaining balance
shall be returned at such time after termination of this Lease when Landlord
shall have determined that all Tenant's obligations under this Lease have been
fulfilled.
3 USE
3.1 Research and development, manufacturing and marketing of natural
nutraceutical products. Tenant shall at its own costs and expense obtain any
and all licenses and permits necessary for any such use. The outside storage of
any property (including, without limitation, overnight parking of trucks and
other vehicles) is prohibited. Tenant shall comply with all governmental laws,
ordinances and regulations ("Laws") applicable to its use of the Premises and
its occupancy and shall promptly comply with all governmental orders and
direction for the correction, prevention and abatement of any violations or
nuisances in or upon, or in connection with, the Premises, all at Tenant's sole
expense. If as a result of any change in Laws, the Premises must be altered to
lawfully accommodate the use and occupancy thereof, such alterations shall be
made only with the consent of Landlord, but the entire cost thereof shall be
borne by Tenant; provided, that, the necessity of Landlord's consent shall in
no way create any liability against Landlord for the failure of the Tenant to
comply with such Laws. Tenant and its employees, customers and licensees shall
have the nonexclusive right to use in common with the other parties occupying
the Building, common parking areas, if any, (exclusive of any parking or work
load areas designated or to be designated by Landlord for the exclusive use of
Tenant or other tenants occupying or to be occupying other portions of the
Building), driveways and alleys adjacent to the Building. Landlord shall at all
times have the right to promulgate such reasonable rules and regulations as it
deems advisable for the safety, care and cleanliness of the Premises and for
the preservation of good order therein. Copies of rules and regulations,
changes, and amendments will be forwarded to Tenant. Tenant shall be
responsible for the compliance with such rules and regulations by Tenant's
agents, employees, and invitees. It is understood that the tenant uses
equipment or machinery that produces noise which may penetrate into neighboring
suites. Therefore, the hours of operation for said machinery will be between
5:00 pm and 8:00 am, unless otherwise determined by Landlord at its sole
discretion.
3.2 Tenant agrees that Tenant, its agents and contractors, licensees, or
invitees shall not handle, use, manufacture, store or dispose of any
flammables, explosives, radioactive materials, hazardous wastes or materials,
toxic wastes or materials, or other similar substances, petroleum products or
derivatives (collectively, "Hazardous
5/93 Willows 1
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Materials") on, under, or about the Premises, without Landlord's prior written
consent (which consent may be given or withheld in Landlord's sole discretion),
provided that Tenant may handle, store, use or dispose of products containing
small quantities of Hazardous Materials, which products are of a type
customarily found in offices and households (such as aerosol cans containing
insecticides, toner for copies, paints, paint remover, and the like), provided
further that Tenant shall handle, store, use and dispose of any such Hazardous
Materials in a safe and lawful manner and shall not allow such Hazardous
Materials to contaminate the premises or the environment.
3.3 Without limiting the above, Tenant shall reimburse, defend,
indemnify and hold Landlord harmless from and against any and all claims,
losses, liabilities, damages, costs and expenses, including without limitation,
loss of rental income, loss due to business interruption, and attorneys fees and
costs, arising out of or in any way connected with the use, manufacture,
storage, or disposal of Hazardous Materials by Tenant, its agents or contractors
on, under or about the Premises including, without limitation, the costs of any
required or necessary investigation, repair, cleanup or detoxification and the
preparation of any closure or other required plans in connection herewith,
whether voluntary or compelled by governmental authority. The indemnity
obligations of Tenant under this clause shall survive any termination of the
Lease.
3.4 Notwithstanding anything set forth in this Lease, Tenant shall only
be responsible for contamination of Hazardous Materials or any cleanup resulting
directly therefrom, resulting directly from matters occurring or Hazardous
Materials deposited (other than by contractors, agents or representatives
controlled by Landlord) during the Lease term, and any other period of time
during which Tenant is in actual or constructive occupancy of the Premises.
Tenant shall take reasonable precautions to prevent the contamination of the
Premise with Hazardous Materials by third parties.
3.5 It shall not be unreasonable for Landlord to withhold its consent to
any proposed Assignment or Sublease if (i) the proposed Assignee's or
Sublessee's anticipated use of the premises involves the generation, storage,
use, treatment or disposal of Hazardous Materials; (ii) the proposed Assignee or
Sublessee has been required by any prior landlord, lender, or governmental
authority to take remedial action in connection with Hazardous Materials
contaminating a property if the contamination resulted from such Assignee's or
Sublessee's actions or use of the property in question; or (iii) the proposed
Assignee or Sublessee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal, or storage of a
hazardous material.
4. TAXES
Landlord agrees to pay all general and special taxes, assessments and
governmental charges of any kind and nature whatsoever ("Taxes") lawfully levied
against the Building and improvements. For any real estate tax year applicable
to the Term (or any renewal or extension of such Term), Tenant shall pay to
Landlord as additional rent Tenant's proportionate share of the amount of such
Taxes. Landlord may, at any time, deliver to Tenant its estimate (or revised
estimate) of such additional amounts payable under this Paragraph for each tax
year. On or before the first day of the next month and on or before the first
day of each month thereafter, Tenant shall pay to Landlord as additional rent
such amount as Landlord shall reasonably determine to be necessary to bring and
keep Tenant current. As soon as practicable after the close of each tax year,
Landlord shall deliver to Tenant a statement showing the total amount payable by
Tenant under this Paragraph. If the statement shows an amount due from Tenant
that is less than the estimated payments previously paid by Tenant, the excess
shall be credited against the next monthly installment of rent. If the statement
shows an amount due from Tenant that is more than the estimated payments
previously paid by Tenant, Tenant shall pay the deficiency to Landlord, as
additional rent, within thirty (30) days after delivery of the statement. Any
payment with respect to any partial tax year shall be prorated. In addition,
Tenant shall pay upon demand its proportionate share of any fees, expenses and
costs incurred by Landlord in protesting any assessments, levies or the tax
rate. If at any time during the Term the present method of taxation shall be
changed so that in lieu or in addition to the whole or any part of any taxes,
assessments or governmental charges levied, assessed or imposed on real estate
and the improvements thereon, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the Premises, then all such taxes, assessments, levies or charges,
or the part thereof so measured or based, shall be deemed to be included within
the Term "Taxes" for the purposes hereof.
5. REPAIRS
5.1 Tenant shall at its own cost and expense keep and maintain all parts
of the Premises and such portion of the Building and improvements with the
exclusive control of Tenant in good condition, promptly making all necessary
repairs and replacements, whether ordinary or extraordinary, with materials and
workmanship of the same character, kind and quality as the original. Tenant as
part of its obligations hereunder shall keep the Premises in a clean and
sanitary condition. Tenant will, as far as possible keep all such parts of the
Premises from deterioration due to ordinary wear and from falling temporarily
out of repair, and upon termination of this Lease in any way Tenant will yield
up the Premises to Landlord in good condition and repair, loss by fire or other
casualty covered by insurance to be maintained by Landlord pursuant to
subparagraph 10.1 hereof excepted (but not excepting any damage to glass).
Tenant shall, at its own cost and expense, enter into a regularly scheduled
preventative
5/93 Willows 2
12
maintenance/service contract with a maintenance contractor approved by Landlord
for servicing all heating and air conditioning systems and equipment serving
the Premises (and a copy thereof shall be furnished to Landlord). Tenant shall,
at its own cost and expense, repair any damage to the Premises resulting from
and/or caused in whole or in part by the negligence or misconduct of Tenant,
its agents, employees, invitees or any other person entering upon the Premises
as a result of Tenant's business activities or caused by Tenant's default
hereunder.
5.2 Landlord shall at its expense maintain in good repair,
reasonable wear and tear and any casualty covered by insurance to be maintained
by Landlord pursuant to subparagraph 10.1 excepted, the foundation, roof and
walls of the Building. Tenant shall immediately give Landlord written notice of
any defect or need for repairs, after which Landlord shall have reasonable
opportunity to repair same or cure such defect. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of this Lease shall be limited to the cost of such
repairs or maintenance or the curing of such defect. The term "walls" as used
herein shall not include windows, glass or plate glass, doors, special store
fronts or office entries.
5.3 As used in this Lease, the term "Operating Costs" shall mean
any and all expenses, costs and disbursements (other than Taxes) of any kind
and nature whatsoever incurred by Landlord in connection with the ownership,
leasing, management, maintenance, operation and repair of the Building
including without limitation, the cost of landscaping maintenance for the
grounds around the Building, maintaining and repairing parking areas, driveways,
paved areas, alleys, easements and railroad tracks, cleaning and janitorial
services for the common areas, property management fees, removing snow and ice,
common area utilities, maintaining and repairing electrical, sprinkler,
plumbing, heating, ventilation and air conditioning systems and fixtures for
common areas, decorating for common areas, roof repairs and maintenance,
exterior painting, insurance premiums for all insurance policies and
endorsements deemed by landlord to be reasonably necessary or desirable,
license, permit, and inspection fees, accounting and legal fees, and any sales,
use or services taxes incurred in connection therewith which Landlord shall pay
or become obligated to pay in respect of a calendar year (regardless of when
such Operating Costs were incurred), except the following (i) costs of capital
improvements; (ii) depreciation; and (iii) any cost or expenditure (or portion
thereof) for which Landlord is reimbursed, whether by insurance proceeds or
otherwise, except reimbursements by tenants for Operating Costs.
Notwithstanding anything contained herein to the contrary, depreciation of any
capital improvements made after the date of this Lease which are intended to
reduce Operating Costs or which are required under any Laws which were not
applicable to the Building at the time it was constructed, shall be included in
Operating Costs. The useful life of any such improvement shall be reasonably
determined by Landlord. In addition, interest on the undepreciated costs of any
such improvement (at the prevailing construction loan rate available to
Landlord on the date the cost of such improvement was incurred) shall also be
included in Operating Costs. In the event Landlord elects to self insure or
obtain insurance coverage in which the premium fluctuates in proportion to
losses incurred, then Landlord shall estimate the amount of premium that
Landlord would have been required to pay to obtain insurance coverage (or
insurance coverage without such provision) with a recognized carrier and such
estimated amount shall be deemed to be an Operating Cost. Landlord may, in a
reasonable manner, allocate insurance premiums for so-called "blanket"
insurance policies which insure other properties as well as the Building of
said allocated amount shall be deemed to be an Operating Cost.
5.4 Tenant shall pay upon demand to Landlord for any calendar year
falling partly or wholly within the Term as additional rent its proportionate
share of Operating Costs. Any payment to be made pursuant to this paragraph
with respect to any partial year shall be prorated. In the event during all or
any portion of any calendar year the Building is not fully rented and occupied,
Landlord may elect to make an appropriate adjustment in Operating Costs for
such year, employing sound accounting and management principles, to determine
Operating Costs that would have been paid or incurred by Landlord had the
Building been fully rented and occupied and the amount so determined shall be
deemed to have been Operating Costs for such year. Landlord may, at any time,
deliver to Tenant its estimate (or revised estimate) of such additional amounts
payable under this Paragraph for each calendar year. On or before the first day
of the next month and on or before the first day of each month thereafter,
Tenant shall pay to Landlord as additional rent such amount as Landlord shall
reasonably determine to be necessary to bring and keep Tenant current. As soon
as practicable after the close of each calendar year, Landlord shall deliver to
Tenant a statement showing the Operating Costs payable under subparagraph 5.3
above and Tenant's proportionate share thereof. If the statement shows an
amount due from Tenant that is less than the estimated payments previously paid
by Tenant, the excess shall be credited against the next monthly installment
of rent. If the statement shows an amount due from Tenant that is more than the
estimated payments previously paid by Tenant, Tenant shall pay the deficiency to
Landlord, as additional rent, within thirty (30) days after delivery of the
statement. Any payment with respect to any partial tax year shall be prorated.
5.5 Landlord may at Tenant's expense, enter into and keep in force
during the term of the Lease, a scheduled preventative maintenance/service
contract with a maintenance contractor approved by Landlord, for servicing all
heating and air conditioning systems and equipment within the Premises which
shall include a thorough inspection of all filters, belts, controls and all
functions of the operational equipment and replacement of the aforementioned
components if necessary, and Tenant shall pay Landlord upon demand, as
additional rent hereunder, the cost thereof. Refer to Exhibit D for
preventative maintenance specifications.
_______
Initial
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6. ALTERATIONS
Tenant shall not make any alterations, additions or improvements ("Alterations")
to the Premises without the prior written consent of Landlord, which consent may
in Landlord's sole discretion be withheld. Each request shall be accompanied by
plans detailing the proposed Alteration. In connection with any request,
Landlord may retain the services of an architect and/or engineer and Tenant
shall reimburse Landlord for the reasonable fees of such architect and/or
engineer. If Landlord shall consent to any Alterations, Tenant shall construct
the same in accordance with all Laws and shall, prior to construction, provide
such assurances to Landlord, (including but not limited to, waivers of lien,
surety company performance bonds and personal guarantees of individuals of
substance) as Landlord shall require to protect Landlord against any loss from
any mechanics', materialmen's or other liens. At the time of completion each
Alteration, Tenant shall deliver to Landlord a set of final "as-built" plans.
All Alterations and partitions erected by Tenant shall be and remain the
property of Tenant during the Term and Tenant shall, unless Landlord otherwise
elects at the time of termination, remove all Alterations and partitions erected
by Tenant (but not any improvements erected for the Tenant by Landlord at the
commencement of the Term) and restore the Premises to their original condition
by the date of termination of this Lease or upon earlier vacating of the
Premises. All shelves, bins, machinery and trade fixtures installed by Tenant
shall be removed by the date of termination of this Lease or upon earlier
vacating of the Premises; upon any such removal Tenant shall restore the
Premises to their original condition (including the removal of all fastening
bolts and the patching of the walls and floors where necessary). All such
removals and restoration shall be accomplished in a good workmanlike manner so
as not to damage the primary structure or structural qualities of the Building.
Tenant shall not install any signs upon the Building.
7. INSPECTIONS
Landlord and Landlord's agents and representatives shall have the right to enter
and inspect the Premises at any reasonable time: (i) to ascertain the condition
of the Premises; (ii) to determine whether Tenant is diligently fulfilling
Tenant's responsibilities under this Lease; (iii) to supply any service to be
provided by Landlord to Tenant hereunder; (iv) to make such repairs as may be
required or permitted to be made by Landlord under the terms of this Lease (and
may for that purpose, without abatement of rent, erect, use and maintain
scaffolding, pipes, conduits, and other necessary structures in, through or on
the Premises where reasonably required by the character of the work to be
performed, provided entrance to the Premises shall not be blocked thereby, and
further provided that the business of Tenant shall not be interfered with
unreasonably); (v) to show the Premises to prospective tenants, purchasers or
mortgages; and (vi) to do any other act or thing which Landlord deems reasonable
to preserve the Premises.
8. UTILITIES
Tenant shall pay for all water, gas, heat, light, power, telephone, sewer,
sprinkler system charges and other utilities and services used on or from the
Premises, including without limitation, Tenant's proportionate share as
determined by Landlord of the cost of any central station signaling system
installed in the Premises or the Building together with any taxes, penalties,
and surcharges or the like pertaining thereto and any maintenance charges for
utilities. Tenant shall furnish all electric light bulbs, tubes and ballasts,
battery packs for emergency lighting and fire extinguishers. If any such
services are not separately metered to Tenant, Tenant shall pay such proportion
of all charges jointly metered with other premises as determined by Landlord, in
its sole discretion, to be reasonable. Any such charges paid by Landlord and
assessed against Tenant shall be immediately payable to Landlord on demand and
shall be additional rent hereunder. Landlord shall in no event be liable for any
interruption or failure of utility service on or to the Premises.
9. ASSIGNMENT AND SUBLETTING
9.1 Tenant shall not have the right to assign or pledge this Lease or to
sublet the whole or any part of the Premises, whether voluntarily or by
operation of law, or permit the use or occupancy of the Premises by anyone other
than Tenant, without the prior written consent of Landlord, which may be
withheld in Landlord's sole discretion, and such restrictions shall be binding
upon any assignee or subtenant to which Landlord has consented. In the event
Tenant desires to sublet the Premises, or any portion thereof, or assign this
Lease, Tenant shall give written notice thereof to Landlord within a reasonable
time prior to the proposed commencement date of such subletting or assignment,
which notice shall set forth the name of the proposed subtenant or assignee the
relevant terms of any sublease and copies of financial reports and other
relevant financial information on the proposed subtenant or assignee. In no
event may Tenant sublease, nor will Landlord consent to any sublease of all or
any portion of the Premises if the rent is determined in whole or in part upon
the income of profits derived by the subleasee (other than a rent based upon a
fixed percentage or percentage of receipts or sales). Notwithstanding any
permitted assignment or subletting, Tenant shall at all times remain directly,
primarily and fully responsible and liable for the payment of the rent herein
specified and for compliance with all of its other obligations under this Lease.
Upon the occurrence of an event of default, if the Premises or any part thereof
are then assigned or sublet, Landlord, in addition to any other remedies herein
provided, or provided by law, may, at its option, collect directly from such
assignee or subtenant all rents due and becoming due to Tenant under such
assignment or sublease and
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apply such rent against any sums due to Landlord from Tenant hereunder, and no
such collection shall be construed to constitute a novation or release of Tenant
from the further performance of Tenant's obligations hereunder.
9.2 In addition to, but not in limitation of, Landlord's right to
approve of any subtenant or assignee, Landlord shall have the option, in its
sole discretion, in the event of any proposed subletting or assignment, to
terminate this Lease, or in the case of a proposed subletting of less than the
entire Premises, to recapture the portion of the Premises to be sublet, as of
the date the subletting or assignment is to be effective. The option shall be
exercised, if at all, by Landlord giving Tenant written notice thereof within
sixty (60) days following Landlord's receipt of Tenant's written notice as
required above. If this Lease shall be terminated with respect to the entire
Premises pursuant to this paragraph, the Term shall end on the date stated in
Tenant's notice as the effective date of the sublease or assignment as if that
date had been originally fixed in this Lease for the expiration of the Term. If
Landlord recaptures under this paragraph only a portion of the Premises, the
rent during the unexpired Term shall xxxxx proportionately based on the rent per
square foot contained in this Lease. In the event that Tenant sublets, assigns
or otherwise transfers its interest in this Lease and at any time receives
periodic rent and/or other consideration which exceeds that which Tenant would
at that time be obligated to pay to Landlord, Tenant shall pay to Landlord fifty
percent (50%) of the gross increase in such rent and fifty percent (50%) of any
other consideration as received by Tenant. Tenant shall pay to Landlord on
demand, a reasonable service charge for the processing of the application for
consent and preparation of the consent and/or the assumption documents.
9.3 It shall not be unreasonable for Landlord to withhold its consent to
any proposed assignment or sublease if (i) the proposed assignee's or
sublessee's anticipated use of the Premises involves the generation, storage,
use, treatment or disposal of Hazardous Materials; (ii) the proposed assignee or
sublessee has been required by any prior landlord, lender, or governmental
authority to take remedial action in connection with Hazardous Materials
contaminating a property if the contamination resulted from such assignee's or
sublessee's actions or use of the property in question; or (iii) the proposed
assignee of sublessee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal, or storage of
Hazardous Material.
10. INDEMNIFICATION PROVISION
Landlord shall not be liable and Tenant hereby waives all claims against
Landlord for any damage to any property or any injury to any person in or about
the Premises or the Building by or from any cause whatsoever, (including without
limiting the foregoing, rain or water leakage or any character from the roof,
windows, walls, basement, pipes, plumbing works or appliances, the Building not
being in good condition or repair, gas, fire, oil, electricity or theft); except
that Landlord will indemnify and hold Tenant harmless from such claims to the
extent caused by the negligent or willful act of Landlord, or its agents,
employees or contractors. Tenant shall defend, indemnify, and save Landlord
harmless from and against any and all claims, actions, lawsuits, damages,
liability, and expense (including, without limitation, attorney's fees) arising
from: (i) the act, neglect, fault, or omission to meet the standards imposed by
any duty with respect to the loss, damage, or injury by Tenant, its agents,
servants, employees, contractors, customers or invitees; (ii) the conduct or
management of any work or thing whatsoever done by the Tenant in or about the
Premises or from transactions of the Tenant concerning the Premises; (iii)
Tenant's failure to comply with any and all governmental laws, ordinances and
regulations applicable to the use of the Premises and its occupancy; or (iv) any
breach or default on the part of the Tenant in the performance of any covenant
or agreement on the part of the Tenant to be performed pursuant to the Lease.
The provisions of this Article shall survive the termination of this Lease with
respect to any claims or liability prior to such termination.
11. CASUALTY AND CONDEMNATION
11.1 Landlord shall maintain all insurance policies deemed by Landlord to
be reasonably necessary or desirable and relating in any manner to the
protection, preservation or operation of the Building, including standard fire
and extended coverage insurance covering the Building in an amount not less than
ninety percent (90%) of the replacement cost thereof or, at Landlord's option,
all risk coverage and, if Landlord so elects, earthquake, flood and wind
coverage. Subject to the provisions of subparagraph 10.2 below, such insurance
shall be for the sole benefit of Landlord and under its sole control. Tenant
shall not take out separate insurance concurrent in form or contributing in the
event of loss with that required to be maintained by Landlord hereunder. Tenant
shall maintain insurance on all Alterations erected by or on behalf of Tenant
in, on or about the Premises (but not any improvements erected for Tenant by
Landlord at the commencement of the Term) in an amount not less than ninety
percent (90%) of the replacement cost thereof. Such insurance shall be for the
sole benefit of Tenant and under its sole control provided that Tenant shall be
obligated to immediately commence the rebuilding of the improvements erected by
Tenant and to apply such proceeds in payment of the cost thereof.
11.2 If the Building should be damaged by any peril covered by the
insurance to be provided by Landlord under subparagraph 10.1, but only to such
extent that the Building can in Landlord's estimation be materially restored
within two hundred fifty (250) days after the date upon which Landlord is
notified by Tenant of such damage (except that Landlord may elect not to rebuild
if such damage occurs during the last year of the Term), this Lease shall not
terminate, and Landlord shall at its sole cost and expense thereupon proceed
with reasonable diligence to rebuild and repair the Building to substantially
the condition in which they existed prior to such damage,
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except Landlord shall not be required to rebuild, repair, or replace any or part
of the partitions, fixtures, additions and other improvements which may have
been placed in, on or about the Premises by Tenant. For purposes hereof the
Building shall be deemed "materially restored" if it is in such condition as
would not prevent or materially interfere with Tenant's use of the Premises for
the purpose for which they were then being used. If the Premises are
untenantable in whole or in part following such damage, the rent payable
hereunder during the period in which the Premises are untenantable shall be
reduced to such extent as may be fair and reasonable. In the event that Landlord
should fail to complete such material restoration within the two hundred fifty
(250) days after the date upon which Landlord is notified by Tenant of such
damage, Tenant may at its option terminate this Lease within thirty (30) days
thereafter by delivering written notice of termination to Landlord as Tenant's
exclusive remedy, whereupon the Term shall end on the date of such notice as if
the date of such notice were the date originally fixed in the Lease for the
expiration of the Term; provided, however, that if construction is delayed
because of changes, deletions, or additions in construction requested by Tenant,
strikes, lockouts, casualties, acts of God, war, material or labor shortages,
governmental regulation or control or other causes beyond the reasonable control
of Landlord, the period for restoration, repair or rebuilding shall be extended
for the amount of time Landlord is so delayed. If the Building should be damaged
or destroyed and Landlord is not required to rebuilding pursuant to the
provisions of subparagraph 10.2, this Lease shall terminate upon notice to
Tenant, given within sixty (60) days after Landlord is notified by Tenant of
such damage, effective as of the date of such damage as if the date had been
originally fixed in the Lease for the expiration of the Term.
11.3 Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises or the Building requires that the insurance proceeds be applied to such
indebtedness, than Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such request is made by any such holder, whereupon the Lease shall end on
the date of such damage as if the date of such damage were the date originally
fixed in the Lease for the expiration of the Term.
11.4 Each of Landlord and Tenant hereby releases the other from any and
all liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire, extended coverage perils, vandalism or malicious mischief,
sprinkler leakage, or any other perils insured in policies of insurance covering
such property, even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible, including any other tenants or occupants of the remainder of the
Building; provided, however, that this release shall be applicable and in force
and effect only to the extent that such release shall be lawful at that time and
in any event only with respect to loss or damage occurring during such times as
the releasor's policies shall contain a clause or endorsement to the effect that
any such release shall not adversely affect or impair said policies or prejudice
the right of the releasor to recover thereunder and then only to the extent of
the insurance proceeds payable under such policies. Each of Landlord and Tenant
agrees that it will request its insurance carriers to include in its policies
such a clause or endorsement.
11.5 If the whole or any substantial part of the Premises or Building
should be taken for any public or quasi-public use under any Law or by right of
eminent domain, or by private purchase in lieu thereof (a "Condemnation") and
the taking would prevent or materially interfere with the use of Premises or the
Building for the purpose for which they are then being used, this Lease shall
terminate effective when the physical taking shall occur as if the date of such
taking were the date originally fixed in the Lease for the expiration of the
Term. If part of the Premises shall be Condemned, and this Lease in not
terminated as provided above, this Lease shall not terminate but the rent
payable hereunder during the unexpired portion of this Lease shall be reduced to
such extent as may be fair and reasonable. Landlord shall undertake to restore
the Premises to a condition suitable for Tenant's use, as near to the condition
thereof immediately prior to such taking as is reasonably feasible. In the event
of any such Condemnation, Landlord and Tenant shall each be entitled to receive
and retain such separate awards and/or portion of lump sum awards as may be
allocated to their respective interests in any condemnation proceedings;
provided, that Tenant shall not be entitled to receive any award for Tenant's
loss of its leasehold interest, the right to such award being hereby assigned by
Tenant to Landlord.
12. LIABILITY
12.1 Landlord shall not be liable to Tenant or Tenant's employees,
agents, patrons or visitors, or to any other person whomsoever for any injury to
persons or damage to property on or about the Premises, the Building resulting
from and/or caused in part or whole by the negligence or misconduct of Tenant,
its agents, employees, invitees or any other person entering upon the Premises,
or caused by the Building becoming out of repair, or caused by leakage of gas,
oil, water or steam or by electricity emanating from the Building, or due to any
cause whatsoever, and Tenant hereby covenants and agrees that it will at all
times indemnify and hold safe and harmless the Building and Landlord from any
loss, liability, claims, suits, costs, expenses, including attorney's fees and
damages, both real and alleged, arising out of any such damage or injury; except
injury to persons or damage to property the sole cause of which is the
negligence of Landlord or the failure of Landlord to repair any part of the
Premises which Landlord is obligated to repair and maintain hereunder within a
reasonable time after the receipt of written notice from Tenant of needed
repairs.
12.2 Tenant shall keep in force throughout the Term: (i) a Commercial
General Liability insurance policy or policies to protect Landlord, Landlord's
mortgagee and agent, if any, against any liability to the public or to any
invitee of Tenant or Landlord, Landlord's mortgagee or agent, incidental to the
use of or resulting from any accident
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occurring in or upon the Premises with a limit not less than One Million Dollars
($1,000,000) per occurrence and not less than Two Million Dollars ($2,000,000)
in the annual aggregate or such larger amount as Landlord may prudently require
from time to time covering bodily injury and property damage liability and One
Million Dollars ($1,000,000) products/completed operations aggregate; (ii)
Business Auto Liability covering owned, non-owned and hired vehicles with a
limit of not less than One Million Dollars ($1,000,000) per accident; (iii)
insurance protecting against liability under Worker's Compensation Laws with
limits at least as required by statute; (iv) Employers Liability with limits of
Five Hundred Thousand Dollars ($500,000) each accident, Five Hundred Thousand
Dollars ($500,000) disease policy limit, Five Hundred Thousand Dollars
($500,000) disease -- each employee; (v) All Risk or Special Form coverage
protecting Tenant against loss of or damage to Tenant's alterations, additions,
improvements, carpeting, floor coverings, paneling, decorations, fixtures,
inventory and other business personal property situated in or about the Premises
to the full replacement value of the property so insured; and (vi) Business
Interruption Insurance with limit of liability representing loss of at least
approximately six months of income.
12.3 Each of the aforesaid policies shall (i) be provided at Tenant's
expense; (ii) name the Landlord and building management company, if any, as
additional insured; (iii) be issued by an insurance company with a minimum
Best's rating of "A:VII" during the Term; and (iv) provide that said insurance
shall not be cancelled unless thirty (30) days prior written notice (ten (10)
days for non-payment of premium) shall have been given to Landlord; and said
policy or policies or certificates thereof shall be delivered to Landlord by
Tenant upon the Commencement Date and at least thirty (30) days prior to each
renewal of said insurance.
12.4 Whenever Tenant shall undertake any alterations, additions or
improvements in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damage to property
arising in connection with such Work, without limitation including liability
under any applicable structural work act, and such other insurance as Landlord
shall require; the policies of or certificates evidencing such insurance must be
delivered to Landlord prior to the commencement of any such Work.
13. HOLDING OVER
Tenant will, at the termination of this Lease by lapse of time or otherwise,
yield up immediate possession to Landlord. If Tenant retains possession of the
Premises or any part thereof after such termination, then Landlord may, at its
option, serve written notice upon Tenant that such holding over constitutes any
one of (i) renewal of this Lease for one year, and from year to year thereafter,
or (ii) creation of month to month tenancy, upon the terms and conditions set
forth in this Lease, or (iii) creation of a tenancy at sufferance, in any case
upon the terms and conditions set forth in this Lease; provided, however, that
the monthly rental (or daily rental under clause (iii)) shall, in addition to
all other sums which are to be paid by Tenant hereunder, whether or not as
additional rent, be equal to double the total rental being paid monthly to
Landlord under this Lease immediately prior to such termination (prorated in the
case of clause (iii) on the basis of a 365 day year for each day Tenant remains
in possession). If no such notice is served, then a tenancy at sufferance shall
be deemed to be treated at the rent in the preceding sentence. Tenant shall also
pay to Landlord all damages sustained by Landlord resulting from retention of
possession by Tenant, including the loss of any proposed subsequent tenant for
any portion of the Premises. The provisions of this paragraph shall not
constitute a waiver by Landlord of any right of re-entry nor shall receipt of
any rent or any other act in apparent affirmance of tenancy operate as a waiver
of the right to terminate this Lease.
14. QUIET ENJOYMENT
Landlord covenants that it now has, or will acquire before Tenant takes
possession of the Premises, good title to the Premises. In the event this Lease
is a sublease, then Tenant agrees to take the Premises subject to the provisions
of the prior leases. Landlord represents and warrants that it has full right and
authority to enter into this Lease and that Tenant, upon paying the rental
herein set forth, and performing its other covenants and agreements herein set
forth shall peaceable and quietly have, hold and enjoy the Premises for the Term
without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease. Landlord agrees to make reasonable efforts to protect
Tenant from interference or disturbance by other tenants or third parties;
however, Landlord shall not be liable for any such interference or disturbance,
nor shall Tenant be released from any of the obligations of this Lease because
of such interference or disturbance.
15. EVENTS OF DEFAULT
The following events shall be deemed to be events of default by Tenant under
this Lease:
15.1 Tenant shall fail to pay when or before due any sum of money becoming
due to be paid to Landlord hereunder, whether such sum be any installment of the
rent herein reserved, any other amount treated as additional rent hereunder, or
any other payment or reimbursement to Landlord required herein, and such failure
shall continue for a period of three (3) days, from the date such payment was
due; or
15.2 Tenant shall fail to comply with any term, provision or covenant of
this Lease other than by failing to pay when or before due any sum of money
becoming due to be paid to Landlord hereunder, and shall not cure
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such failure within twenty (20) days (forthwith, if the default involves a
hazardous condition) after written notice thereof to Tenant; or
15.3 Tenant shall fail to immediately vacate the Premises upon
termination of this Lease or upon termination of Tenant's right to possession
only; or
15.4 The leasehold interest of Tenant shall be levied upon under
execution or be attached by process of law or Tenant shall fail to contest
diligently the validity of any lien or claimed lien and give sufficient security
to Landlord to insure payment thereof or shall fail to satisfy any judgement
rendered thereon and have the same released, and such default shall continue
for ten (10) days after written notice thereof to Tenant.
16. REMEDIES
Upon the occurrence of any such events of default described in Paragraph 14
hereof or elsewhere in this Lease, Landlord shall have the option to pursue any
one or more of the following remedies without any notice or demand whatsoever.
16.1 Landlord may, at its election, terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease.
16.2 Upon any such termination of this Lease, or upon any termination of
Tenant's right to possession without termination of the Lease, Tenant shall
surrender possession and vacate the Premises immediately, and deliver possession
thereof to Landlord, and Tenant hereby grants to Landlord full and free license
to enter into and upon the Premises in such event and to repossess Landlord of
the Premises as of Landlord's former estate and to expel or remove Tenant and
any others who may be occupying or within the Premises and to remove any and all
property therefrom without being deemed in any manner guilty or trespass,
eviction or forcible entry or detainer and without incurring any liability for
any damage resulting therefrom, Tenant hereby waiving any right to claim damage
for such re-entry and expulsion, and without relinquishing Landlord's right to
rent or any other right given to Landlord hereunder or by operation of law.
16.3 Upon any termination of this Lease, Landlord shall be entitled to
recover as damages, all rent, including any amounts treated as additional rent
hereunder, and other sums due and payable by Tenant on the date of termination,
plus the sum of (i) an amount equal to the then present value of the rent,
including any amount treated as additional rent hereunder, and other sums
provided herein to be paid by Tenant for the residue of the stated Term, less
the fair rental value of the Premises for such residue (taking into account the
time and expense necessary to obtain a replacement tenant or tenants, including
expenses hereinafter described in subparagraph 15.4 relating to recovery of the
Premises, preparation for reletting and for reletting itself) which the parties
agree shall in no event exceed sixty percent (60%) of the then present value of
the rent for the period, and (ii) the cost of performing any other covenants
which would have otherwise been performed by Tenant.
16.4 Upon any termination of Tenant's right to possession only without
termination of the Lease, Landlord may at Landlord's option, inter into the
Premises, remove Tenant's signs and other evidence of tenancy, and take and hold
possession thereof as provided in subparagraph 15.2 above, without such entry
and possession terminating the Lease or releasing Tenant, in whole or in part,
from any obligation, including Tenant's obligation to pay the rent, including
any amounts treated as additional rent hereunder for the full Term. In any such
case Tenant shall pay forthwith to Landlord, if Landlord so elects, a sum equal
to the entire amount of the rent, including any amounts treated as additional
rent hereunder, for the residue of the stated Term plus any other sums provided
herein to be paid by Tenant for the remainder of the Term.
16.4.1 Landlord may, but need not, relet the Premises or any part
thereof for such rent and upon such terms as Landlord, in its sole discretion,
shall determine (including the right to relet the Premises for a greater or
lesser term than that remaining under this Lease, the right to relet the
Premises as part of a larger area, and the right to change the character or use
made of the Premises). If Landlord decides to relet the Premises or a duty to
relet is imposed upon Landlord by law, Landlord and Tenant agree that Landlord
shall only be required to use the same efforts Landlord then uses to lease other
properties Landlord owns or manages (or if the Premises are then managed for
Landlord, then Landlord will instruct such manager to use the same efforts such
manager then uses to lease other space or properties which it owns or managers);
provided, however, that Landlord (or its manager) shall not be required to give
any preference or priority to the showing or leasing of the Premises over any
other space that Landlord (or its manager) may be leasing or have available and
may place a suitable prospective tenant in any such available space regardless
of when such alternative space becomes available; provided, further, that
Landlord shall not be required to observe any instruction given by Tenant about
such reletting or accept any tenant offered by Tenant unless such offered tenant
has a creditworthiness acceptable to Landlord, leases the entire Premises,
agrees to use the Premises in a manner consistent with the Lease and leases the
Premises at the same rent, for no more than the current Term and on the same
other terms and conditions as in this Lease without the expenditure by Landlord
for tenant improvements or broker's commissions. In any such case, Landlord,
may, but shall not be required to, make repairs, alterations and additions in or
to the Premises and redecorate the same to the extent Landlord deems
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necessary or desirable, and Tenant shall, upon demand, pay the cost thereof
together with Landlord's expenses of reletting, including, without limitation,
any broker's commission incurred by Landlord. If the consideration collected by
Landlord upon any reletting plus any sums previously collected from Tenant are
not sufficient to pay the full amount of all rent, including any amounts
treated as additional rent hereunder, and other sums reserved in this Lease for
the remaining Term, together with the cost of repairs, alterations, additions,
redecorating, and Landlord's expenses of reletting an the collection of the
rent accruing therefrom (including attorney's fees and broker's commissions),
Tenant shall pay to Landlord the amount of such deficiency upon demand and
Tenant agrees that Landlord may file suit from time to time to recover sums
falling due under this section.
16.5 Landlord may at Landlord's option, enter into and upon the Premises
if Landlord determines in its sole discretion that Tenant is not acting with a
commercially reasonable time to maintain, repair or replace anything for which
Tenant is responsible hereunder and correct the same, without being deemed in
any manner guilty of trespass, eviction or forcible entry and detainer and
without incurring any liability for any damage resulting therefrom and Tenant
agrees to reimburse Landlord, on demand, as additional rent, for any expense
which Landlord may incur in thus effecting compliance with Tenant's obligations
under this Lease.
16.6 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of the Lease or of law, to which Tenant is
or may be entitled, may be handled, removed and stored, as the case may be, by
or at the direction of Landlord at the risk, costs and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option,
be deemed conveyed by Tenant to Landlord under this Lease as by a xxxx of sale
without further payment or credit by Landlord by Tenant.
16.6.1 In the event Tenant fails to pay any installment of rent,
including any amount treated as additional rent hereunder, or other sums
hereunder as and when such installment or other charge is due, Tenant shall pay
to Landlord on demand a late charge in an amount equal to five percent (5%) of
such installment or other charge overdue in any month and five percent (5%)
each month thereafter until paid in full to help defray the additional cost to
Landlord for processing such late payments, and such late charge shall be
additional rent hereunder and the failure to pay such late charge within ten
(10) days after demand therefor shall be an additional event of default
hereunder. The provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
16.6.2 Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any other remedies
provided by law (all such remedies being cumulative), nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord or of any damages accruing to Landlord. No act or thing done by
Landlord or its agents during the Term shall be deemed a termination of this
Lease or an acceptance of the surrender of the Premises, and no agreement to
terminate this Lease or accept a surrender of said Premises shall be valid
unless in writing signed by Landlord. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants herein contained shall be
deemed or construed to constitute a waiver of any other violation or breach.
Landlord's acceptance of the payment of rental or other payments hereunder
after the occurrence of an event of default shall not be construed as a waiver
of such default, unless Landlord so notifies Tenant in writing. Forbearance by
Landlord in enforcing one or more of the remedies herein provided upon an event
of default shall not be deemed or construed to constitute a waiver of such
default or of Landlord's right to enforce any such remedies with respect to
such default or any subsequent default. If, on account of any breach or default
by Tenant, it shall become necessary or appropriate for Landlord to employ or
consult with an attorney concerning or to enforce or defend any of Landlord's
rights or remedies hereunder, Tenant agrees to pay any attorney's fees so
incurred.
17. MORTGAGES
Tenant accepts this Lease subject and subordinate to any mortgage(s) and/or
deed(s) of trust now or at any time hereafter constituting a lien or charge upon
the Premises or the Building, provided, however, that if the mortgagee, trustee,
or holder of any such mortgage or deed or trust elects to have Tenant's interest
in this Lease superior to any such instrument, then by notice to Tenant from
such mortgagee, trustee or holder, this Lease shall be deemed superior to such
lien, whether this Lease was executed before or after said mortgage or deed of
trust. Tenant shall at any time hereafter on demand execute any instruments,
releases or other documents which may be required by any mortgagee for the
purpose of evidencing the subjection and subordination of this Lease to the lien
of any such mortgage or for the purpose of evidencing the superiority of this
Lease to the lien of any such mortgage, as may be the case.
18. MECHANIC'S AND OTHER LIENS
Tenant agrees that it will pay or cause to be paid all sums legally due and
payable by it on account of any labor performed or materials furnished in
connection with any work performed on the Premises on which any lien is or
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can be validly and legally asserted against its leasehold interests in the
Premises and that it will save and hold Landlord harmless from any and all loss,
cost or expense based on or arising out of assorted claims or liens against the
leasehold estate or against the right, title and interest of the Landlord in the
Premises or under the terms of this Lease. If any such lien shall remain in
force and effect for twenty (20) days after written notice thereof from
Landlord to Tenant, Landlord shall have the right and privilege at Landlord's
option of paying and discharging the same or any portion thereof without
inquiry as to the validity thereof, and any amounts so paid, including expenses
and interest, shall be so much additional indebtedness hereunder due from
Tenant to Landlord and shall be repaid to Landlord immediately on rendition of
a xxxx therefor. Notwithstanding the foregoing, Tenant shall have the right to
contest any such lien in good faith and with all due diligence so long as such
contest, or action taken in connection therewith, protects the interest of
Landlord and Landlord's mortgagee in the Premises and Landlord and any such
mortgagee are, by the expiration of twenty (20) day period, furnished such
protection and indemnification against any loss, cost or expense related to any
such lien and the contest thereof as are satisfactory to Landlord and any such
mortgagee.
19. NOTICES
Any notice of document required or permitted to be delivered hereunder
shall be deemed to be delivered upon receipt if delivered personally or by
contract carrier or, whether actually received or not, when deposited in the
United States Mail, postage prepaid, Certified or Registered Mail, addressed to
the parties hereto at the respective addresses described in the Reference Page,
or at such other address as they have theretofore specified by written notice
delivered in accordance herewith. If and when included within the term
"Landlord" or "Tenant" as used in this instrument, there are more than once
person, firm or corporation, all shall jointly arrange amount themselves for
their joint execution of such a notice specifying some individual at some
specific address for the receipt of notices and payments. All parties included
within the terms "Landlord" and "Tenant", respectively, shall be bound by
notices given in accordance with the provisions of this paragraph to the same
effect as if each had received such notice.
20. MISCELLANEOUS
20.1 The terms, provisions and covenants and conditions contained in
this Lease shall apply to inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives
successors and permitted assigns, except as otherwise herein expressly
provided. Landlord shall have the right to assign any of its rights and
obligations under this Lease and Landlord's grantee or Landlord's successor, as
the case ma be, shall upon such assignment become Landlord hereunder, thereby
freeing and relieving the grantor or assignor, as the case may be, of all
covenants and obligations of Landlord hereunder.
20.2 Tenant shall at any time and from time to time within ten (10)
days after written request from Landlord execute and deliver to Landlord or any
prospective Landlord, mortgagee or prospective mortgagee a sworn and
acknowledged estoppel certificate, in form reasonably satisfactory to Landlord
and/or such mortgagee certifying and stating accurate statements required by
Landlord or such mortgagee. It is intended that any such statement delivered
pursuant to this subsection may be relied upon by any prospective purchaser or
mortgagee and their respective successors and assigns and Tenant shall be
liable for all loss, cost or expense resulting from the failure of any sale of
funding of any loan caused by any misstatement contained in such estoppel
certificate. If Tenant fails to deliver the same within such ten (10) day
period and such certificate as signed by Landlord or Landlord's beneficiary, as
the case may be, shall be fully binding on Tenant, if Tenant fails to deliver a
contrary certificate within five (5) days after receipt by Tenant of a copy of
the certificate executed by Landlord on behalf of Tenant.
20.3 All obligations of Tenant hereunder not fully performed as of
the expiration or earlier termination of the Term shall survive the expiration
or earlier termination of the Term, including without limitation, all payment
obligations with respect to Taxes, Operation Costs and the like and all
obligations concerning the condition of the Premises. Upon the expiration of
earlier termination of the Term, and prior to Tenant vacating the Premises,
Landlord and Tenant shall jointly inspect the Premises and Tenant shall pay to
Landlord any amount estimated by Landlord as necessary to put the Premises,
including without limitation heating and air conditioning systems and equipment
therein, in good condition and repair. Any work required to be done by Tenant
prior to its vacation of the Premises which has not been completed upon such
vacation, may be completed by Landlord at Tenant's expense. Tenant shall also,
prior to vacating Premises, pay to Landlord the amount, as estimated by
Landlord, of Tenant's obligation hereunder for Taxes and Operating Costs. All
such amounts hall be used and held by Landlord for payment of such obligations
of Tenant hereunder, with Tenant being liable for any additional costs therefor
upon payment of such obligations of Tenant hereunder, with Tenant being liable
for any additional costs therefor upon payment of such obligations of Tenant
hereunder, with Tenant being liable for any additional costs therefor upon
demand by Landlord or with any excess to be returned to Tenant after all such
obligations have been determined and satisfied.
20.4 Tenant's "proportionate share" as used in this Lease shall mean
a fraction, the numerator of which is the rentable area (other than any
designed parking and loading areas) contained in the Premises and the
denominator of which is the rentable area contained in the Building, in each
case as determined by Landlord.
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20.5 Each of the parties (i) represents and warrants to the other that it
has not dealt with any broker or finder in connection with this Lease, except
as described herein; and (ii) indemnifies and holds the other harmless from any
and all losses, liability, costs or expenses (including attorneys' fees)
incurred as a result of any breach of the foregoing warranty.
20.6 Neither party shall record this Lease or a memorandum hereof without
the prior written consent of the other party and the party seeking the
recording shall pay all charges and taxes incident thereto.
20.7 In no event shall Landlord's liability for any breach of any
contractual obligation of this Lease exceed the amount of rental then remaining
unpaid for the then current Term (exclusive of any renewal periods which have
not then actually commenced). This provision is not intended to be a measure or
agreed amount of Landlord's liability with respect to any particular breach,
and shall not be utilized by any court or otherwise for the purpose of
determining any liability of Landlord hereunder, except only as a maximum
amount not to be exceeded in any event.
21. CORPORATE AUTHORITY
If Tenant is a corporation, Tenant represents and warrants that this Lease and
the undersigned's execution of this Lease has been duly authorized and approved
by the corporation's Board of Directors. The undersigned officers and
representatives of the corporation executing this Lease on behalf of the
corporation represent and warrant that they are officers of the corporation
with authority to execute this Lease on behalf of the corporation.
22. LIMITATION OF LANDLORD'S LIABILITY
Redress for any claims against Landlord under this Lease shall only be made
against Landlord to the extent of Landlord's interest in the property to which
the leased Premises are a part. The obligation of Landlord under this Lease
shall not be personally binding on, nor shall any resort be had to the private
properties of, any of its trustees or board of directors and officers, as the
case may be, the general partners thereof or any beneficiaries, stockholders,
employees or agents of Landlord, or the investment manager.
The parties hereto have executed this Lease on the date specified immediately
below their respective signatures.
LANDLORD: TENANT:
SFERS REAL ESTATE CORP. A, Nutraceutix, Inc., dba Bio Techniques
a Delaware corporation Laboratories, Inc., a Delaware
Corporation
By: RREEF Management Company, By: /s/ XXXXXXX X. ST. XXXX
a California corporation ----------------------------------
Xxxxxxx X. St. Xxxx
By: Its: President
------------------------------
Xxxx X. Xxxxxxxx, R.P.A.
Its: District Manager Date: 8-23-1995
--------------------------------
Date:
----------------------------
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EXHIBIT B
attached to and made a part of Lease bearing the
Lease Reference Date of August 21, 1995 between
SFERS REAL ESTATE CORP. A, as Landlord and
Nutraceutix, Inc., dba Bio Techniques Laboratories, Inc., as Tenant
for the Premises known as 00000 XX 00xx Xxxxxx
INITIAL ALTERATIONS
Notwithstanding anything to the contrary contained herein or any Exhibits
attached hereto, both parties agree that the premises are to be delivered to
Tenant in an "as-is" condition. Taking of possession by Tenant shall be deemed
to establish that the Premises are in good and satisfactory condition, as of
when possession was so taken, unless the Landlord is otherwise notified. Tenant
acknowledges that no representations as to the repair of the Premises have been
made by Landlord, unless expressly set forth in this Lease.
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EXHIBIT A
attached to and made a part of Lease bearing the
Lease Reference Date of August 21, 1995 between
SFERS REAL ESTATE CORP. A, as Landlord and
Nutraceutix, Inc., dba Bio Techniques Laboratories, Inc., as Tenant
for the Premises known as 00000 XX 00xx Xxxxxx
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of the
beginning of the Term of this Lease. It does not in any way supersede any of
Landlord's rights set forth in Article 6 with respect to arrangements and/or
locations of public parts of the Center and changes in such arrangements and/or
locations. It is not to be scaled; any measurements or distances shown should
be taken as approximate.
Legal Description:
Willows Business Center, building 6 located at 00000 XX 00xx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx, and situated on Lot 3, of the short plat of Xxx 0, Xxxxxxx
Xxxxxxxxxx Xxxxxx, (XX-00-00, Xxxx Xxxxxx, recording number 811029-0309)
Sections 2 & 3, Township 25 North, Range 0 Xxxx, X.X., Xxxx Xxxxxx, Xxxxxxxxxx
Xxxx Xxxx:
[SITE PLAN ILLUSTRATION]
Building #6 Willows Business Center
Redmond, Washington
23
EXHIBIT D
PREVENTATIVE MAINTENANCE
ROOF TOP PACKAGED A/C EQUIPMENT
Page 2 of 2
o Attach an amprobe meter on operating unit to record operating amperage on
all electrical supply legs to the unit. (Preferably on an elevated
cooling load day.)
o Leak check equipment for refrigerant leaks making sure to check previously
identified leak (marked) repairs for tightness. Write-up a service order
for repair of any new or reoccurring leaks detected.
o Enter conditions, repairs, and changes in the equipment history log.
QUARTERLY
(The following preventative maintenance items should be completed on a
quarterly basis.)
o Replace ventilation side air filter(s). Make sure that correct size and
fit is being used.
o Operationally observe the performance of the unit. Check to be sure the
condenser coils have not fouled-up since last cleaned, the unit doesn't
have excessive vibration, and all unit electrical component covers are in
place.
o Enter conditions, repairs and changes in the equipment history log.
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EXHIBIT E
attached to and made a part of Lease bearing the
Lease Reference Date of August 21, 1995 between
SPERS REAL ESTATE CORP. A, as Landlord and
Nutraceutix, Inc., dba Bio Techniques Laboratories, Inc., as Tenant
for the Premises known as 00000 XX 00xx Xxxxxx
SIGNAGE CRITERIA
All proposed tenant signage must be submitted for review and approval to:
The RREEF Funds
00000 XX 00xx Xxxxxx
Xxxxxxx, XX 00000
This signage criteria applies to all tenants.
Landlord provides a blank sign (12" x 47" off-white background with a teal
boarder, with a french cleave on the back of the sign) to Tenant.
Tenant contacts Xxxxx Xxxxx at Morup Signs (883-6337) and provides them with a
business card, and they will add the tenant logo on the sign.
The lettering on the sign will be black. The size of the lettering varies
depending on the length of the tenant name and tenant logo.
Morup Signs also provides the tenant directory strip in the street directory.
Tenant needs to specify how they would like their name to appear on the
directory.
If Landlord give Tenant a blank sign that has a previous tenant's name on it,
Morup Signs will repaint the sign and charge that portion to Landlord.
Cost of Directory is $25.00.
Cost of the Entrance Sign depends on logo, starting at $75.00 plus. This price
includes pick up and delivery of sign blank.
[LOGO PLACEMENT ON SIGNAGE]
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CORPORATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this day of 23rd August, 1995, before me, the undersigned, a Notary
Public in and for the State of Washington, personally appeared Xxxxxxx St. Xxxx
and ________________ , to be known to be the President and _________________ of
Natural Nutraceutix, a corporation, and acknowledged to me that they executed
the same of behalf of said corporation freely and voluntarily for the uses and
purposes therein mentioned.
Witness my hand and official seal the day and year in this certificate
first above written.
[SEAL] /s/ XXXXXXXX XXXXX
-------------------------------------
Notary Public in and for the
State of Washington
residing at Seattle
CORPORATE ACKNOWLEDGMENT
STATE OF )
) ss.
COUNTY OF )
On this day of _________, 199__, before me, the undersigned, a Notary
Public in and for the State of _______________________, personally appeared
_______________________ and _______________________ , to be known to be the
_______________ and _______________ of _______________, a corporation, and
acknowledged to me that they executed the same of behalf of said corporation
freely and voluntarily for the uses and purposes therein mentioned.
Witness my hand and official seal the day and year in this certificate
first above written.
_____________________________________
Notary Public in and for the
State of ____________________________
residing at _________________________
INDIVIDUAL ACKNOWLEDGMENT
STATE OF )
) ss.
COUNTY OF )
On this ___ day of _________________, 199__, before me, the undersigned, a
Notary Public in and for the State of __________________, personally appeared
___________________, to me known to be the person(s) named in the foregoing
document, and acknowledged to me that ____________________________ executed the
same freely and voluntarily for the uses and purposes therein mentioned.
Witness my hand and official seal the day and year in this certificate
first above written.
_____________________________________
Notary Public in and for the
State of ____________________________
residing at _________________________
