Exhibit 10.25
TABLE OF CONTENTS
| Page | ||||
| 1. | LEASE OF THE PREMISES | 1 | ||
| 2. | LEASE TERM | 1 | ||
| 3. | BASE RENT | 1 | ||
| 4. | COMMON COSTS AS ADDITIONAL RENT | 2 | ||
| A. | Taxes and Assessments | 2 | ||
| B. | CAM Charges | 2 | ||
| C. | Estimated Payments | 2 | ||
| D. | Multiple Tenants - Proration of Taxes, Insurance, and CAM Charges | 3 | ||
| E. | Late Charges | 3 | ||
| 1. | Landlord May Incur Unanticipated Costs | 3 | ||
| 2. | Tenant Owes Late Charge | 3 | ||
| 3. | Late Charge is Fair Estimate | 3 | ||
| 4. | If Tenant’s Check Returned | 3 | ||
| 5. | Charges Become “Additional Rent” | 3 | ||
| 6. | Application of Money From Tenant | 3 | ||
| 7. | Payment by Landlord on Tenant’s Behalf and Associated Charges | 3 | ||
| 8. | Landlord May Pursue Other Remedies | 3 | ||
| 9. | Landlord May Require Advance Quarterly Payment | 3 | ||
| 5. | SECURITY PROVISION | 4 | ||
| 6. | INSURANCE | 4 | ||
| A. | Property Insurance | 4 | ||
| B. | Liability Insurance | 4 | ||
| C. | Form, Amount and Coverage, Etc. | 5 | ||
| D. | Increase in Insurance Premiums | 5 | ||
| E. | Accidents | 5 | ||
| F. | Payment By Landlord | 5 | ||
| G. | Waivers of Claims/Subrogation | 5 | ||
| 7. | USE | 5 | ||
| A. | Use | 5 | ||
| B. | Use of Common Areas | 5 | ||
| C. | Management and Operation of Common Areas | 5 | ||
| 8. | DEFAULT | 6 | ||
| 9. | LANDLORD’S REMEDIES FOR TENANT’S DEFAULT | 6 | ||
| 10. | MISCELLANEOUS DEFAULT PROVISIONS | 7 | ||
| 11. | ASSIGNMENT AND SUBLETTING | 7 | ||
| 12. | HAZARDOUS SUBSTANCES | 8 |
TABLE OF CONTENTS
(continued)
| Page | |||
| 13. | ALTERATIONS | 8 | |
| A. | Changes, Alterations and Additional Construction | 8 | |
| B. | Manner of Construction | 8 | |
| C. | Title to Alterations | 9 | |
| 14. | SURRENDER | 9 | |
| A. | Delivery of Possession | 9 | |
| B. | Holding Over | 9 | |
| C. | Removal of Personal Property | 9 | |
| D. | Retention of Personal Property | 9 | |
| 15. | RIGHT TO MORTGAGE | 9 | |
| 16. | ESTOPPEL CERTIFICATES | 10 | |
| 17. | MAINTENANCE AND REPAIRS | 10 | |
| A. | Utilities | 10 | |
| B. | Cleaning and Upkeep | 10 | |
| C. | Grounds Maintenance | 10 | |
| D. | Snowplowing | 10 | |
| E. | Landlord’s Right of Entry | 10 | |
| F. | Repairs by Landlord | 10 | |
| G. | Repairs by Tenant | 10 | |
| H. | Liens | 11 | |
| 18. | DAMAGE OR DESTRUCTION | 11 | |
| 19. | CONDEMNATION | 12 | |
| A. | Total Taking | 12 | |
| B. | Award on Total Taking | 12 | |
| C. | Partial Taking | 12 | |
| D. | Reconstruction | 12 | |
| E. | Award on Partial Taking | 12 | |
| F. | Temporary Taking | 12 | |
| G. | Settlement Agreement | 12 | |
| H. | Abatement in Base Rent | 12 | |
| 20. | LIABILITY; INDEMNIFICATION OF LANDLORD AND TENANT | 12 | |
| A. | Damage in General | 12 | |
| B. | Indemnification of Landlord | 13 | |
| C. | Indemnification of Tenant | 13 |
TABLE OF CONTENTS
(continued)
| Page | |||
| 21. | MISCELLANEOUS PROVISIONS | 13 | |
| A. | Governing Law | 13 | |
| B. | References | 13 | |
| C. | Binding Effect | 13 | |
| D. | Entire Agreement | 13 | |
| E. | Enforceability of Provisions | 13 | |
| F. | Remedies Not Exclusive | 14 | |
| G. | Landlord’s Right to Tenant’s Financial Information | 14 | |
| H. | Re-Leasing | 14 | |
| I. | Advertising and Signs | 14 | |
| J. | Quiet Enjoyment | 14 | |
| K. | Sale by Landlord | 14 | |
| L. | Limitation of Liability | 14 | |
| M. | Authority | 14 | |
| N. | No Liability for Curtailment, Etc., of Services | 14 | |
| O. | Survival | 15 | |
| P. | Notices | 15 | |
| EXHIBIT A Hazardous and Toxic Materials | A-1 | ||
| EXHIBIT B Rules and Regulations | B-1 | ||
| EXHIBIT C Landlord’s Work | C-1 |
LEASE
THIS LEASE is made effective as of April 10, 2013, between DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company with offices at 500 Hogsback Road, Mason, Michigan 48854 (“Landlord”), and IONETIX CORPORATION, a Delaware corporation, currently located at One Ferry Building, Suite 255, San Francisco, California 94111 (“Tenant”).
**1. **LEASE OF THE PREMISES. Landlord, in consideration of the rents to be paid and the covenants and agreements to be performed by Tenant hereby leases to Tenant for the Term set forth below, the following described property (the “Premises”): Located in Oakwood Executive Park (the “Park”):
Lot 5, Suite D, Oakwood Executive Park, according to the Plat thereof recorded at Liber 50, Page 38 of Plats, Ingham County Records, and commonly known as 3130 Sovereign Drive, Suite 5D, Lansing, Michigan 48911.
Tenant shall be entitled to park in common with other tenants. Tenant will be allowed fourteen (14) parking spaces within the Park. There will be no assigned parking unless Landlord determines that allocation of parking spaces among tenants is appropriate.
Tenant hereby hires the Premises for the Lease Term and covenants to pay, or cause to be paid, to Landlord, at the dates and times set forth herein, the entire Rent.
If an alternate space becomes available in Oakwood Executive Park at any time during the Lease Term and if Tenant wishes to move from the Premises to that alternative space for a period at least as long as this Lease Term, then, upon thirty (30) days prior written notice to Landlord, Tenant may elect to move to the alternative space without penalty at a rental rate to be negotiated by the parties.
If during the Lease Term Landlord shall receive a bona fide offer acceptable to Landlord to lease any contiguous space in the building of which the Premises is a part and if Tenant shall not be in default of any of the terms and covenants of this Lease, then Tenant shall have a right of first refusal to lease the contiguous space upon the same terms as those of the offer. In order to be effective, Tenant must exercise its right of first refusal by providing Landlord with written acceptance of those terms within seven (7) days of Tenant’s receipt of those terms.
**2. **LEASE TERM. The term of this Lease (“Lease Term”) shall be for a term of one (1) years, and shall commence on the first day of May, 2013 (“Commencement Date”). Unless terminated earlier in accordance with the terms of this Lease, this Lease shall terminate on April 30, 2014 (“Termination Date”).
**3. **BASE RENT. During the Lease Term, Tenant shall pay annual Base Rent and all other rent due and owing by Tenant under this Lease (“Additional Rent”) to Landlord at such place as Landlord shall from time to time designate in writing. Annual Base Rent will be payable in equal monthly installments, as follows:
| Lease Period | Monthly Installment | Annual Base Rent | ||||
| 05/01/13-04/30/14 | $1,797.00 | $21,564.00 |
| A. | All Monthly installments of Base Rent shall be payable to Landlord in advance on the first day of each month during the Lease Term without notice, demand, deduction or set off. Tenant shall pay the first month’s installment of Base Rent on the date of Tenant’s execution of this Lease. |
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| B. | As used in this Lease, the term “Rent” shall include all amounts payable pursuant to this Lease and all other additional charges or sums payable to Landlord hereunder. All Rent due and owing by Tenant under this Lease shall be paid by Tenant to Landlord without deduction, set off or abatement. |
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| C. | Tenant’s obligation to pay Base Rent, Additional Rent, and all other charges due and owing by Tenant under this Lease shall survive the expiration or earlier termination of this Lease. |
**4. **COMMON COSTS AS ADDITIONAL RENT.
| A. | Taxes and Assessments. Tenant shall be responsible for and agrees to pay directly to Landlord as Additional Rent all taxes and assessments which may be levied or assessed by any lawful authority during each calendar year during the term of this Lease against the Premises or any part thereof (hereinafter referred to as the “Taxes”). Taxes shall also include all taxes, levies and charges which may be assessed, levied or imposed in replacement of or in addition to all or any part of real property taxes as revenue sources, and which in whole or in part are measured or calculated by or based upon the Premises, the freehold estate of the Landlord in and to the Premises, the leasehold estate of the Tenant created herein, or the rent and other charges payable hereunder. In no event shall Tenant be obligated to pay any income taxes, inheritance, estate, gift, transfer taxes, penalties and interest of Landlord. |
Taxes shall be computed by adding all taxes levied against the Premises during the calendar year regardless of the tax bill’s stated period of coverage. Tenant will be billed its respective share thereof either for the entire year or its prorata share of any partial year in which Tenant occupies the Premises.
| B. | CAM Charges. During the Lease Term, Tenant shall pay to Landlord, as Additional Rent, Tenant’s share of all common area electrical, grounds maintenance, security services (if any) and other common area charges and expenses (the “CAM Charges”), as provided below. The term “grounds maintenance” shall include, without limitation, all landscaping, planting, lawn and grounds care, all maintenance of and improvements to the grounds and other common areas adjacent to the Premises and to all sidewalks, driveways, loading areas, parking areas, and all snow removal. |
| C. | Estimated Payments. Prior to the Commencement Date and prior to January 1 of each subsequent calendar year during the Lease Term, or as soon thereafter as possible, Landlord shall deliver to Tenant an estimate of: (1) the Property Taxes for that calendar year (the “Tax Estimate”); (2) the Insurance costs for that calendar year (the “Insurance Estimate”); and (3) the total CAM Charges for that calendar year (the “CAM Estimate”) and Tenant’s Share thereof. (The Tax Estimate, the Insurance Estimate and the CAM Estimate are sometimes referred to hereinafter collectively as the “Common Cost Estimates”.) Tenant shall thereafter during that calendar year pay to Landlord one-twelfth (1/12) of the amount of Tenant’s Share of the Common Cost Estimates at the same time its monthly installments of Base Rent hereunder are due and payable. In the event Landlord shall not have furnished the Common Cost Estimates to Tenant by January 1 of any calendar year, then until the first day of the month following the month in which the Common Cost Estimates are furnished to Tenant, Tenant shall continue to pay to Landlord on the first day of each calendar month its share of the Common Cost Estimates based on the previous year’s estimate. At such time as Landlord furnishes the Common Cost Estimates to Tenant, Landlord shall give Tenant notice stating whether the aggregate amount of the installments of Tenant’s Share of Tax Increase, Insurance Increase and CAM Charges previously paid for such calendar year is more or less than the aggregate amount of the installments due for such portion of the calendar year as computed in accordance with the Common Cost Estimates, and (1) if there shall be a deficiency, then within ten (10) days after the Tenant receives the Common Cost Estimates, Tenant shall pay the amount of such deficiency, (2) if there shall have been an overpayment, Landlord shall credit Tenant in the amount thereof toward the subsequent installments of the Common Cost Estimates, and (3) on the first day of the first month next following the month in which the Common Cost Estimates are furnished to Tenant, and monthly thereafter for the balance of such calendar year, Tenant shall pay to Landlord one-twelfth (1/12) of the amount of Tenant’s Share of the Common Cost Estimates. Tenant’s right to contest Common Cost Estimates shall be limited to six months from date of notification by Landlord. |
Current monthly Common Cost Estimates, based on 20.17 percent of building occupancy, are Six Hundred Sixty Four Dollars ($664.00).
2| D. | Multiple Tenants - Proration of Taxes, Insurance, and CAM Charges. At any time that more than one Tenant occupies the Premises, real estate taxes, property insurance and CAM Charges shall be prorated based upon the square footage occupied by each tenant in relationship to the total square footage of the Premises, including each tenant’s prorata share of common areas. |
| E. | Late Charges. |
| 1. | Landlord May Incur Unanticipated Costs. Tenant’s failure to pay Rent, Additional Rent, or any other Lease costs when due under this Lease may cause Landlord to incur unanticipated costs. The exact amount of such costs are impractical or extremely difficult to ascertain. Such costs may include, but are not limited to, processing and accounting charges and late charges that may be imposed on Landlord by any ground lease, mortgage, or other lien encumbering the Park. |
| 2. | Tenant Owes Late Charge. Therefore, if Landlord does not receive the Rent, Additional Rent, or any other Lease costs in full on or before the third (3rd) business day of the month it becomes due, Tenant shall pay Landlord a late charge, which shall constitute liquidated damages, equal to Two Hundred Fifty Dollars ($250.00) (“Late Charge”), which shall be paid to Landlord together with such Rent, Additional Rent, or other Lease costs then in arrears. |
| 3. | Late Charge is Fair Estimate. The parties agree that such Late Charge represents a fair and reasonable estimate of the cost Landlord will incur by reason of such late payment. |
| 4. | If Tenant’s Check Returned. For each Tenant payment check to Landlord that is returned by a bank for any reason, Tenant shall pay both a Late Charge (if applicable) and a Returned Check Charge or such amount as shall be customarily charged by Landlord’s bank at the time. |
| 5. | Charges Become “Additional Rent”. All Late Charges and any Returned Check Charge shall then become Additional Rent and shall be due and payable immediately, along with such other Rent, Additional Rent, or other Lease costs then in arrears. |
| 6. | Application of Money From Tenant. Money paid by Tenant to Landlord shall be applied to Tenant’s account in the following order: (a) to any unpaid Additional Rent, including, without limitation, Late Charges, Returned Check Charges, legal fees and/or court costs legally chargeable to Tenant, and Operating/CAM Charges; and then (b) to unpaid Base Rent. |
| 7. | Payment by Landlord on Tenant’s Behalf and Associated Charges. If Tenant fails to make any payment or expenditure required to be paid by it under the terms of the Lease, Landlord may, at its option, make such payment or expenditure on behalf of Tenant. In that event, the amount of any such payment or expenditure together with interest at the rate of ten percent (10%) per annum from due date forward, shall be immediately due and payable to Landlord as Additional Rent. |
| 8. | Landlord May Pursue Other Remedies. Nothing herein contained shall be construed so as to compel Landlord to accept any payment of Rent, Additional Rent, or other Lease costs in arrears or Late Charge or Returned Check Charge should Landlord elect to apply its rights and remedies available under this Lease or at law or equity in the event of default hereunder by Tenant. Landlord’s acceptance of Rent, Additional Rent, or other Lease costs in arrears or Late Charge or Returned Check Charge pursuant to this Clause shall not constitute a waiver of Landlord’s rights and remedies available under this Lease or at law or equity. |
| 9. | Landlord May Require Advance Quarterly Payment. If Rent due hereunder shall be late for three (3) consecutive months, then Landlord shall have the option to require that the Base Rent due shall be paid quarterly, in advance. |
**5. **SECURITY PROVISION. Upon execution of this Lease, Tenant shall submit payment of Two Thousand Five Hundred Dollars ($2,500.00) to Landlord, which it is to retain as security for Tenant’s faithful performance of all the covenants, conditions, and agreements of the Lease.
But in no event shall Landlord be obligated to apply the security upon rents or other charges in arrears or upon damages for Tenant’s failure to perform its obligations. Landlord, at its sole discretion, may elect to apply the security to any delinquent amount owed by Tenant and shall give Tenant notice of the fact. Landlord’s right to possession of the Premises for nonpayment of rent or for any other reason shall not be affected by reason of the fact that Landlord holds this security.
The security, if not applied toward the payment of rent in arrears or toward the payment of damages suffered by Landlord by reason of Tenant’s default under the Lease, is to be returned to Tenant at the expiration of the Term of the Lease provided Tenant is not in default of any provision of the Lease. In no event is the security to be returned until Tenant has vacated the Premises and delivered possession of same in an acceptable condition to Landlord.
If Landlord so uses or applies all or any portion of the security, Tenant shall deposit sufficient cash with the Landlord to restore the security to the full amount within fifteen (15) days after written demand therefore, and failure to do so shall be a material and immediate breach of this Lease.
In the event of the sale or other transfer of the Building and/or Property, Landlord shall have the right to transfer the security to such purchaser or Transferee, and Landlord shall thereupon be released by Tenant from all liability for return of such security. Tenant covenants that it will not assign or encumber or attempt to assign or encumber the monies deposited herein as security.
In the event that Landlord repossesses the Premises because of Tenant’s default, Landlord may apply the security to all damages suffered to the date of repossession and may retain the security to apply to such damages as may be suffered or shall accrue thereafter by reason of Tenant’s default or breach. Landlord shall not be obligated to keep the security as a separate fund but may mix the security with its own funds.
**6. **INSURANCE.
| A. | Property Insurance. During the term of the Lease, Landlord, on behalf of Tenant, shall keep the Premises insured with Broad Form fire and extended coverage insurance in an amount not less than the full replacement cost of the Premises as determined annually. Landlord will bill Tenant monthly, as Additional Rent, one-twelfth (1/12) of the annual insurance premium for the Premises. |
| B. | Liability Insurance. Tenant, at Tenant’s sole cost and expense, shall maintain comprehensive public liability insurance against any claims for bodily injury, death, or property damage, occurring on, in or about the Premises, and against contractual liability for such claims, such insurance to afford minimum protection in the amount of One Million Dollars ($1,000,000.00) or in such higher amount as Landlord may deem reasonably necessary. Landlord and any mortgagee of the Premises designated by Landlord shall be named as co-insured or additional insured parties under all such policies. Tenant may provide public liability insurance under a blanket policy or policies which cover other properties in addition to the Premises. Tenant shall provide Landlord with an Evidence of Insurance form (ACORD25) or, in the alternative and at Landlord’s sole discretion, Landlord may require Tenant to provide a true copy of the actual liability insurance policy. |
| C. | ***Form, Amount and Coverage, Etc.***The form, amount, and coverage of each policy of insurance which Tenant is required to maintain shall be subject to Landlord’s approval, which shall not be unreasonably withheld. Tenant shall not permit any condition to exist on the Premises and shall not commit any act or omission which would wholly or partially invalidate any insurance. |
| D. | Increase in Insurance Premiums. If anything done, omitted to be done, or allowed by Tenant to be kept on the Premises shall cause the rate of fire or other insurance on the Premises, or on other property of Landlord or of other Tenants in the Park, to be increased beyond the minimum rate from time to time applicable to the Premises or such other property, Tenant shall pay, as Additional Rent, the amount of any such increase upon Landlord’s demand. |
| E. | Accidents. Upon the occurrence of any accident, injury, or personal property casualty in or about the Premises, Tenant shall give immediate notice thereof to Landlord, and shall provide Landlord with evidence that any liability of Landlord relating thereto is covered by the insurance which Tenant is required by this Lease to carry. |
| F. | Payment By Landlord. Tenant shall deliver copies of all required policies to Landlord. If Tenant fails to maintain the insurance coverage required under this section, Landlord may, at its option, pay the cost of maintaining the required insurance, which shall be Additional Rent due and payable immediately upon demand. |
| G. | Waivers of Claims/Subrogation. Landlord and Tenant hereby waive all rights of action against the other for any loss, cost, damage, or expense resulting from fire, explosion, or any other casualty or occurrence incurred by either, which loss, cost, damage, or expense is then covered in whole or in part by insurance maintained or required to be maintained pursuant to this Lease, and each party waives any right of subrogation that might otherwise exist in or accrue to any person or account thereof. |
7. USE
| A. | Use. The Premises shall be used for medical device manufacture and distribution purposes only. In the normal course of its business of manufacturing medical devices, Tenant may operate a cyclotron in properly shielded and monitored area, in compliance with all federal state and local regulations. Tenant shall not permit any liens to attach or exist as against the Premises or the Park, nor commit any waste. The Premises shall not be used for any illegal purposes, nor in any manner shall Tenant allow, suffer, or permit any vibration, noise, odor, light or other effect that could constitute a nuisance or trespass for Landlord or any other tenant, their customers, agents, or invitees. Upon notice by Landlord to Tenant that any of the aforesaid is occurring, Tenant agrees to immediately remove or control the same. |
| B. | Use of Common Areas. Landlord grants to Tenant and its agents, employees and customers a non-exclusive license to use the Common Areas in common with others during the Lease Term, subject to the exclusive control and management thereof at all times by Landlord. |
| C. | Management and Operation of Common Areas. Landlord will operate and maintain or will cause to be operated and maintained the Common Areas in a manner deemed by Landlord to be reasonable and appropriate and in the best interests of the Park. Landlord will have the right: (1) to establish, modify, and enforce reasonable rules and regulations with respect to the Common Areas; (2) to enter into, modify, and terminate easements and other Common Areas; (3) to close temporarily any or all portions of the Common Areas; and (4) to do any or perform such other acts in and to said areas and improvements as, in the exercise of good business judgment, Landlord shall determine to be advisable. A copy of the current Rules and Regulations 1s attached as Exhibit B and made a part of this Lease. |
**8. **DEFAULT. The following shall constitute Events of Default under this Lease.
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| A. | Landlord fails to receive any payment of Rent or Additional Rent or any other charges payable hereunder within ten (10) days after the due date for such payment. |
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| B. | Failure of Tenant to perform any of the other terms, conditions or covenants of this Lease to be observed or performed by Tenant for a period of more than thirty (30) days after written notice of such failure is mailed to Tenant. |
However, if a non-monetary default cannot reasonably be cured within thirty (30) days, no default shall take place if Tenant begins to cure said default within the thirty (30) days and diligently prosecutes said cure to completion within an agreed upon time as set forth in writing by Landlord and Tenant.
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| C. | Filing of a voluntary petition in bankruptcy or being filed against is an Event of Default. |
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| D. | If Tenant makes an assignment for the benefit of creditors or enters into an arrangement with creditors. |
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| E. | Tenant’s abandonment or vacating of the Premises at any time during the term of this Lease. |
For the purposes of the Events of Default specified in this Section, the word “Tenant’’ shall include without limitation: (1) any party comprising Tenant, should more than one person or entity execute this Lease as Tenant, or any general partner or joint venturer of Tenant or any such party; and (2) any person or entity now or hereafter liable, whether primarily, secondarily or contingently for the performance of the duties and obligations of Tenant under this Lease, including without limitation any principal, maker, endorser, guarantor, or surety.
**9. **LANDLORD’S REMEDIES FOR TENANT’S DEFAULT. If any Event of Default shall have occurred and shall be continuing beyond those periods of time herein granted to cure the same, then Landlord shall have all of the following rights and remedies:
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| A. | Landlord may, by notice to Tenant, accelerate all Base Rent due hereunder and otherwise payable in installments over the remainder of the Lease Term, and, at Landlord’s option, Additional Rent, including, but not limited to, unearned brokerage commissions paid by Landlord in connection with this Lease, to the extent that Additional Rent can be determined and calculated to a fixed sum; and the amount of accelerated Rent shall be due and payable to Landlord upon Landlord’s demand. Additional Rent which has not been included, in whole or in part, in accelerated Rent shall be due and payable by Tenant during the remainder of the Lease Term, in the amounts and at the times otherwise provided for in this Lease. |
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| B. | Landlord may, at Landlord’s option, with judicial process, enter upon the Premises and remove Tenant and any and all other persons therefrom and take and retain possession thereof and of any and all goods, inventory, equipment, fixtures, and all other personal property of Tenant situated in the Premises without liability for trespass or conversion, and may sell all or any part thereof at public or private sale. Tenant agrees that five (5) days’ prior notice of any public or private sale shall constitute reasonable notice. The proceeds of any such sale shall be applied, first, to the payment of all costs and expenses of conducting the sale or caring for or storing said property, including all attorneys’ fees; second, toward the payment of any indebtedness, including (without limitation) indebtedness for Rent, which may be or may become due from Tenant to Landlord; third, to compensate Landlord for unearned brokerage commissions paid by Landlord in connection with this Lease; and, fourth, to pay the Tenant, on demand in writing, any surplus remaining after all indebtedness of Tenant to Landlord has been fully paid. |
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| C. | Landlord from time to time may re-let the Premises, or any part thereof, for such term or terms and on such conditions as Landlord, in its sole discretion, may determine, and Tenant shall be liable to Landlord for (i) the difference between the amount of Rent and Additional Rent payable hereunder and the net proceeds of such re-letting and (ii) unearned brokerage commissions paid by Landlord in connection with this Lease. In computing the amount of such difference there shall be added thereto such reasonable expenses as Landlord may have incurred in connection with such re-letting, including without limitation, attorneys’ fees, brokerage commissions, and expenses for keeping the Premises in good order and for preparing them for re-letting, including expenses of remodeling and free rent or other rent incentives provided to the new tenant. |
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| D. | Landlord may give Tenant notice of Landlord’s intention to terminate this Lease on a date specified in such notice, on which date this Lease shall terminate. If Landlord shall so elect to terminate this Lease, then Landlord shall be entitled to recover from Tenant, in addition to all accrued Rent and other sums due from Tenant as of such termination date, damages in an amount equal to: (1) the amount of Rent reserved for the balance of the Lease Term, less the fair rental value of the Premises for the balance of the Lease Term, (2) unearned brokerage commissions paid by Landlord in connection with this Lease, and (3) all costs and expenses incurred by Landlord in securing possession from Tenant, in restoring the Premises to the condition in which Tenant is herein obligated to surrender same to Landlord, in preparing to re-let the Premises, in maintaining and safeguarding the Premises in attempting to re-let the Premises, and in recovering said damages from Tenant, which costs and expenses shall include, without limitation, attorneys’ fees and expenses, costs of security services, costs of storing or disposing of property left upon the Premises and cleaning and restoration costs. No act or proceeding done or undertaken by Landlord with respect to an Event of Default shall constitute a termination of this Lease by Landlord unless and until Landlord shall give to Tenant the termination notice specified in the first sentence of this Subsection D. |
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| E. | If Tenant is in monetary default twice in any six (6) month period, Landlord shall have the right to demand automatic wire transfer of Rent from Tenant’s account. |
Landlord’s pursuit of any one or more of the remedies provided in this Lease shall not constitute an election of remedies excluding the election of another remedy or other remedies, or a forfeiture or waiver of any rent or other amounts payable under this Lease by Tenant or of any damages or other sums accruing to Landlord by reason of Tenant’s violation of any provision of this Lease. No action taken by or on behalf of Landlord shall be construed to mean acceptance of a surrender of this Lease. No failure of Landlord to pursue or exercise any of Landlord’s powers, rights or remedies or to insist upon strict and exact compliance by Tenant with any provision of this Lease, and no custom or practice at variance with the term of this Lease, shall constitute a waiver by Landlord of the right to demand strict and exact compliance with the terms and conditions of this Lease.
**10. **MISCELLANEOUS DEFAULT PROVISIONS. The right to enforce all of the provisions of this Lease may at the option of any assignee of Landlord’s rights in this Lease, be exercised by any such assignee.
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| A. | Any notation or statement by Tenant on any draft:, check, or other method of payment of any obligation hereunder, or in any writing accompanying or accomplishing such payment, which notation or statement purports to impose conditions on such payment or to invoke the doctrine of accord and satisfaction, shall be absolutely void and of no effect, and may be ignored by Landlord. |
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| B. | No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy, and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder or now or hereafter existing at law or in equity. Landlord shall be entitled to injunctive relief in case of the violation, or attempted or threatened violation, of any covenant, agreement, condition or provision of this Lease and to a decree compelling performance of any covenant, agreement, condition or provision of this Lease, or to any other remedy allowed by law or in equity. |
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| C. | No failure by a party hereto to insist upon the strict performance of any covenant, agreement, term or condition of this Lease on the part of the other party to be performed, or to exercise any permitted right or remedy consequent upon a default therein, and no acceptance of the other party’s performance or, in the case of Landlord, of Tenant’s payment of full or partial Rent after such default, shall constitute a waiver by the party not in default of such default or of such covenant, agreement, term or condition, or any right or remedy of the party not in default with respect thereto. |
**11. **ASSIGNMENT AND SUBLETTING. Tenant shall not, directly or indirectly, without the prior written consent of Landlord, sell, assign, hypothecate or otherwise transfer this Lease or any interest hereunder, or sublet the Premises or any part thereof, or permit the use of the Premises by any party other than Tenant. Consent to any assignment or sublease shall not be deemed a waiver of the right of Landlord to disapprove any further assignment or subletting. Not withstanding any permitted assignment or subletting, Tenant shall remain liable for the full and complete performance, satisfaction and compliance with each and every agreement, term, covenant, condition, requirement, provision and restriction of this Lease, as principal and not as surety or guarantor, and as if no such assignment or subletting had been made.
Landlord is expressly given the right to assign any or all of its interest in the Premises or this Lease. Landlord shall give written notification to Tenant promptly after any such assignment.
7**12. **HAZARDOUS SUBSTANCES. The term “Hazardous Substances,” as used in this Lease, shall mean pollutants, contaminants, toxic or hazardous wastes, or any other substances, the removal of which is required or the use of which is restricted, prohibited or penalized by any “Environmental Law”, which term shall mean any existing or future federal, state, or local law or ordinance relating to pollution or protection of the environment. Tenant hereby represents and warrants and covenants with Landlord that:
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| A. | Tenant has obtained and shall maintain in good standing all local, state and federal government licenses necessary in order to conduct its operations at the Premises; |
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| B. | No activity shall be conducted on the Premises that will produce any Hazardous Substance, except for such activities that: (1) are part of the ordinary course of Tenant’s business activities; (2) have been approved in advance by Landlord in writing; and (3) are conducted in accordance with all Environmental Laws (the “Permitted Activities”); |
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| C. | The Premises shall not be used in any manner for the storage of any Hazardous Substances except for the temporary storage of such materials that: (1) are used in the ordinary course of Tenant’s business; (2) have been approved in advance by Landlord in writing; and (3) are properly stored in a manner and location meeting the requirements of all Environmental Laws (the “Permitted Materials”); and which are listed on Exhibit A attached to and made a part of this Lease. |
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| D. | No portion of the Premises shall be used as a landfill or a dump; |
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| E. | Tenant shall not install any underground tanks of any type; |
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| F. | Tenant shall not allow any surface or subsurface conditions to exist or come into existence that constitute, or with the passage of time may constitute, a public or private nuisance; |
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| G. | Tenant shall not permit any Hazardous Substances to be brought onto the Premises, except for the Permitted Materials, and if so brought or found thereon, the same shall be immediately removed, with proper disposal, and all required cleanup procedures shall be diligently undertaken pursuant to all Environmental Laws at Tenant’s sole expense. |
The Tenant shall defend, indemnify, and hold harmless the Landlord, its employees, agents, officers, directors, and shareholders from and against any and all claims of every kind of nature, known or unknown, contingent or otherwise, demands, criminal and civil penalties, fines, liabilities, settlements, judgments, damages, costs or expenses, including without limitation, actual reasonable attorneys’ fees, consultants’ fees, investigation and laboratory fees, court costs and all litigation expenses, arising out of or in any way related to: (1) the presence, disposal, release or threatened release of any Hazardous Materials caused by Tenant, on, over, under, from or affecting the Premises or the soil, water, vegetation, buildings, personal property, persons, or animals; (2) any personal injury (including wrongful death) or property damage (real or personal) arising out of or in any way related to the release of such Hazardous Materials on the Premises by Tenant; (3) any lawsuit brought or threatened, settlement reached, or government order relating to the release of such Hazardous Materials by Tenant with respect to the Premises; and/or (4) any violation of Governmental Regulations which are based upon or in any way related to the release of such Hazardous Materials by Tenant.
Landlord shall have the right, at any time, to inspect the Premises for violations of this section.
**13. **ALTERATIONS.
| A. | Changes, Alterations and Additional Construction. Tenant, at its expense, shall be responsible for any improvements to the Premises including but not limited to those required for compliance with fire and building codes, the Americans with Disabilities Act (and any regulations implementing said Act), and any other applicable federal, state, or local law or regulation, provided such improvements are required on account of Tenant’s activities on the Premises. Tenant shall not construct any change alteration or addition in or to the Premises or the Park (any and all of the foregoing being sometimes herein collectively called an “Alteration”) unless and until, in each instance, Tenant shall have submitted to Landlord plans, specifications and other materials for such Alteration as Landlord may request and Landlord shall have approved the same in writing. Notwithstanding anything stated or implied to the contrary in this Section, Landlord shall complete prior to the Commencement Date, at Landlord’s expense, Landlord’s Work as described in Exhibit C, attached hereto and made a part hereof. |
| B. | Manner of Construction. All Alterations which Landlord shall have approved shall be constructed by Tenant, without expense to Landlord, in a good, first class, and workmanlike manner, employing new materials of first class quality, and in compliance with the Landlord-approved plans and specifications therefore and all applicable permits, laws, ordinances and regulations and order, rules and regulations of the Board of Fire Insurance Underwriters or any other body exercising similar functions, and in compliance with the terms and conditions of this Lease. |
| C. | Title to Alterations. Except to the extent otherwise expressly provided herein, upon the completion of construction of each Alteration, such Alteration shall automatically be deemed part of the Premises for purposes of this Lease. Notwithstanding the foregoing, upon any termination of this Lease or Tenant’s right of possession of the Premises, at Landlord’s option, (1) prior to such expiration or termination, all such Alterations, or any parts or parts thereof designated by Landlord, shall be removed from the Premises and the Premises restored substantially to their condition immediately prior to the construction thereof, all at Tenant’s expense, or (2) upon such expiration or termination, title to such Alterations, or any part of parts thereof designated by Landlord, in the condition in which Tenant is obligated to maintain the Alterations pursuant to the provisions of this Lease, shall automatically pass to, vest in, and belong to Landlord without further action on the part of either party and without cost or charge to Landlord. |
**14. **SURRENDER.
| A. | Delivery of Possession. Tenant shall, on the Expiration Date of the Lease Term, or upon any earlier termination of this Lease, or upon any termination of Tenant’s right to possess the Premises pursuant to the provisions of this Lease, surrender and deliver up the Premises into the possession and use of Landlord without fraud or delay and in the condition at the time of occupancy, normal wear and tear excepted, broom clean and free of all debris and hazardous or toxic materials not present on the Commencement Date, and free and clear of all lettings, occupancies, liens and encumbrances, created by or through Tenant. |
| B. | Holding Over. If Tenant holds over in the Premises after the expiration of the Lease Term or any earlier termination of this Lease or of Tenant’s right to possess the Premises in violation of the Lease, then at Landlord’s option, and without limitation to any right or remedy of Landlord with respect to such holding over, such holding over shall create a tenancy from week-to-week only, subject to Tenant’s obligation to pay Rent equal to one hundred fifty percent (150%) of the Base Rent (prorated to a weekly basis) in effect immediately prior to such expiration or termination (as well as any Additional Rent), and subject to all the provisions and conditions of this Lease, other than provisions relating to length of Lease Term, which tenancy may be terminated at any time by Landlord giving notice thereof to Tenant. Landlord’s acceptance of any such rental during the period of Tenant’s holding over shall not waive or otherwise affect any claim or right which Landlord may have with respect to such holding over. |
| C. | Removal of Personal Property. Any and all personal property, machinery, and equipment furnished or installed by or at the expense of Tenant which does not constitute part of the Premises shall be removed by Tenant and all damage to the Premises caused by such removal repaired by Tenant prior to the expiration or earlier termination of the Lease Term or the termination of Tenant’s right to possess the Premises. |
| D. | Retention of Personal Property. Any personal property, machinery, or equipment of Tenant which shall remain on the Premises after the expiration of the Lease Term or earlier termination of this Lease or Tenant’s right to possess the Premises may, at the option of Landlord, be deemed to have been abandoned by Tenant and may be retained by Landlord as Landlord’s property or be disposed of, without liability to Landlord, in such manner as Landlord may see fit, or Landlord, at its option, may require Tenant to remove the same at Tenant’s expense. In case of such removal, all costs of removal and of repairing any damage to the Premises arising from such removal shall be paid by Tenant upon Landlord’s demand. Tenant shall pay to Landlord on demand (1) a reasonable fee for storing and disposing of any such personal property, and (2) all costs and expenses incurred by Landlord in storing and disposing of any such personal property (including, without limitation, counsel fees relating to claims against Landlord by any and all parties claiming interests in such personal property). |
**15. **RIGHT TO MORTGAGE. Landlord reserves the right to subject and subordinate the Lease to the lien of any mortgage or security interest now or hereafter placed upon Landlord’s interest in all or any part of the Premises and upon the land, buildings, and fixtures of which the Premises are a part or upon any buildings hereafter placed upon the land of which the Premises form a part. Tenant covenants and agrees to execute and deliver upon demand such further instruments subordinating this Lease to the lien of any present or future mortgage or security interest or other lien as shall be desired by Landlord.
9**16. **ESTOPPEL CERTIFICATES. Tenant agrees, at any time and from time to time upon not less than ten (10) days’ prior written notice by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing certifying:(1) that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications); (2) whether there are then existing any offsets or defenses against the enforcement of any of the terms, covenants or conditions hereof upon the part of Landlord or Tenant to be performed (and if so specifying the same); and (3) the dates to which the Rent and other charges have been paid in advance if any it being intended that any such statement delivered pursuant to this Section may be relied upon by any prospective purchaser of the Premises. Should Landlord comply with a request by Tenant to provide an Estoppel Certificate on Tenant’s behalf, such compliance shall not estop Landlord from thereafter asserting its rights and remedies regarding any default existing on or before the date on which Landlord executes such Estoppel Certificate of which Landlord did not have actual knowledge on the date of execution thereof.
**17. **MAINTENANCE AND REPAIRS.
| A. | Utilities. Tenant shall promptly pay all charges for utilities and other services furnished to the Premises by Landlord or the applicable utility company, including, but not limited to, gas, water, electricity, fuel, light, heat, and dumpster service. In the event any utilities furnished to the Premises are not separately metered, Tenant shall pay to Landlord, as Additional Rent, Tenant’s share of the utilities. |
| B. | Cleaning and Upkeep. Tenant shall keep the Premises, including any adjoining parking areas, walkways, drives, streets, alleys or yards clean and free of rubbish. If Tenant fails to do so, Landlord’s cost to have it done will be added to Tenant’s CAM Charges. |
| C. | Grounds Maintenance. Tenant shall be responsible for all costs and expenses related to maintaining the lawn, shrubs, and any other landscaping on the Premises up to the standard which Landlord has historically maintained. Cost will be included in Tenant’s CAM Charges. |
| D. | Snowplowing. Tenant shall be responsible for all costs and expenses for keeping the Premises free from ice and snow at all times. Cost will be included in Tenant’s CAM Charges. |
| E. | Landlord’s Right of Entry. Landlord shall have the right to enter upon the Premises at all reasonable hours, with prior notice, for the purpose of inspection and repairs, except in case of emergency in which case no notice shall be required. |
| F. | Repairs by Landlord. Tenant accepts the Premises in their condition at Lease commencement and as suited for the uses intended by Tenant. Except as otherwise expressly provided in this Lease, Landlord shall not be required to make any repairs or improvements to the Premises, except repairs to the foundation, exterior walls or roof of the Building as necessary for safety and tenantability, and then only if not brought about by any act or neglect of Tenant, its agents, employees, contractors, invitees, licensees or assignees. Without limiting the generality of the foregoing limitation, Landlord specifically shall have no obligation to repair any interior or exterior glass or doors (including loading doors) located in or on or constituting a part of the Premises, nor shall Landlord have any obligation to maintain exterior lighting. |
During the first year of the initial Lease only, Landlord shall be obligated to promptly correct any defects in material or workmanship throughout the Premises.
| G. | Repairs by Tenant. Tenant shall repair, maintain, replace as necessary, and keep in good, clean, and safe repair all portions of the Premises and all equipment, fixtures, and systems therein which are not specifically set forth as the responsibility of Landlord elsewhere in this Lease. Tenant’s repairs and replacements shall include, without limitation, all electrical, plumbing, heating and air conditioning systems, parts, components, and fixtures. In connection therewith, Tenant shall maintain in force at all times a maintenance contract for the heating, ventilation and air conditioning equipment: (1) acceptable in form and content to Landlord; (2) with a service organization acceptable to Landlord; and (3) providing for at least semi-annual maintenance of such equipment, and shall provide Landlord with a true copy of such maintenance contract. Tenant shall also promptly repair or replace all partitions and all glass and plate glass within or constituting a part of the Premises immediately when cracked or broken, unless caused by Landlord or Landlord’s employees or agents, and Tenant shall be liable for and shall hold Landlord harmless against all loss, cost, and damage (including reasonable attorneys’ fees) arising from any damage or injury to the Premises or the Park or to any person or property caused or contributed to by any act or negligence of Tenant, any invitee, agent, affiliate, customer or client of Tenant or anyone in Tenant’s control or employ. Landlord gives to Tenant exclusive control of the Premises and shall be under no obligation to inspect the Premises. Tenant shall at once report in writing to Landlord any defective conditions known to Tenant which Landlord is required to repair, and failure to promptly report such defects shall make Tenant liable to Landlord for any liability incurred by Landlord by reason of such defects, and Tenant indemnifies and holds Landlord harmless from and against all loss, costs and damage (including reasonable attorneys’ fees) arising from or related to Tenant’s failure to so report such defective conditions. In no event shall Tenant cause or allow any outside storage of trash, refuse, debris, or anything else on the Premises. All personal property of Tenant or Tenant’s employees, agents, affiliates or invitees located in or brought upon the Premises or any part of the Park shall be at risk of Tenant only, and Landlord shall not be liable to Tenant or any other party for any damage thereto or theft thereof resulting from any cause. |
If Tenant does not comply with this Section, Landlord shall have the right to do or cause to be done all acts necessary to bring Tenant into compliance and bill Tenant for all costs involved.
Tenant shall obtain all necessary governmental permits before making any renovations, improvements, alterations or additions to the Premises. Landlord agrees to cooperate with Tenant in obtaining such permits. However, Landlord shall have no obligation to pay any fees or charges in connection therewith.
10| H. | Liens. If a mechanic’s or construction lien is filed against any portion of the Premises or Park as a result of work undertaken by Tenant, then within fifteen (15) days after receiving notice of any such lien, Tenant shall discharge the lien either by payment of the indebtedness due lien claimant or by filing a bond as provided by statute. |
If Tenant fails to discharge any lien in accordance with the terms hereof, Landlord shall have the right to discharge the lien by filing a bond or paying the indebtedness. In this event, Tenant shall pay the cost of the bond or the amount of the lien indebtedness to Landlord as Additional Rent immediately upon demand. If Tenant does not do so within ten (10) days of demand by Landlord, then Tenant shall be in default under this Lease and Landlord shall have the same remedies as provided for in Section 9.
**18. **DAMAGE OR DESTRUCTION.
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| A. | If the Premises are rendered partially or wholly unfit for occupancy by fire, the elements, act of God, or other casualty (fire, the elements, acts of God, or other casualties hereinafter referred to as a “Casualty”), and if such damage cannot, in Landlord’s reasonable estimation, be materially restored within one hundred twenty (120) days after such Casualty, then Landlord may, at its sole option, terminate this Lease as of the date of such Casualty and the Lease Term shall end on such date as if that date had been originally fixed in this Lease for the expiration of the Lease Term. Landlord shall exercise its election to terminate provided herein by written notice to Tenant within sixty (60) days after such Casualty. For purposes hereof, the Premises shall be deemed “materially restored” if they are in such condition as would not prevent or materially interfere with Tenant’s use of the Premises for the purpose for which it was then being used. |
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| B. | If this Lease is not terminated pursuant to Subsection A above, then Landlord shall proceed with all due diligence to repair and restore the Premises, as the case may be (except that Landlord may elect not to rebuild, and thus terminate this Lease, if such Casualty occurs during the last year of the Lease Term exclusive of any renewal or extension option that is unexercised at the date of such Casualty). If Landlord shall fail to complete such repairs and material restoration within one hundred fifty (150) days after the date of the Casualty, then Tenant may at its option and as its sole remedy terminate this Lease by delivering written notice to Landlord, whereupon the Lease shall end on the date of such notice as if the date of such notice were the date originally fixed in this Lease for the expiration of the Lease Term hereof; provided, however, that if construction is delayed because of changes, deletions, or additions in construction requested by Tenant, or because of strikes, lockouts, casualties, acts of God, war, material or labor shortages, governmental regulation or control, or other causes beyond the reasonable control of Landlord, then the period for restoration, repair or rebuilding shall be extended for the amount of time Landlord is so delayed. In no event shall Landlord be required to rebuild, repair or replace any part of the partitions, fixtures, additions, or other property and improvements that may have been placed in or about the Premises by Tenant. |
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| C. | If this Lease shall not be terminated by Landlord pursuant to this Section and if the Premises are unfit for occupancy in whole or in part following such Casualty, then the Base Rent payable during the period in which the Premises are unfit for occupancy shall abate in proportion to the percentage of the rentable area of the Premises rendered unusable by such Casualty; provided, however, that no such abatement shall be made under the provisions of this Subsection C if such Casualty shall have been caused through the negligence or willful misconduct of Tenant, its agents, employees, contractors, invitees, licensees, tenants, or assignees. |
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| D. | Notwithstanding anything herein to the contrary, if, following any Casualty, the holder of any indebtedness secured by a mortgage or deed to secure debt or similar instrument covering the Premises requires that any insurance proceeds resulting from the Casualty be paid to it rather than to Landlord for the rebuilding or restoration of the Premises, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to Tenant within fifteen (15) days after such requirement is made by any such person, whereupon the Lease shall end on the date of the Casualty as if the date of such Casualty were the date originally fixed in this Lease for the expiration of the Lease Term. |
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| E. | If any Casualty described in this subsection occurs, then Landlord shall not be liable to Tenant for any inconvenience, annoyance, loss of profits; expenses, or any other type of injury or damage resulting from the repair of any such Casualty, or from any repair, modification, arranging or rearranging of any portion of the Premises or for termination of this Lease as provided in this subsection, except to the extent of any bodily injury to persons or damage to property resulting solely from Landlord’s negligence or intentional misconduct in performing such work. |
**19. **CONDEMNATION.
| A. | Total Taking. In the event that the whole of the Premises shall be taken under the exercise of the power of eminent domain or by agreement with any condemnor in lieu of such taking (herein called a “Total Taking”), then this Lease shall terminate as of the earlier of the date when title thereto vests in the condemnor or the date when possession thereof shall be delivered to the condemnor. |
| B. | Award on Total Taking. The entire award with respect to any Total Taking shall be paid to Landlord, except that Tenant shall be entitled to any award which the condemnor may make, and which shall be provided for by law, specifically for Tenant’s moving expenses and business dislocation damages, provided that same are not deducted from the award otherwise payable to Landlord. |
| C. | Partial Taking. In the event that any portion or portions of the Premises shall be taken under the exercise of the power of eminent domain or by agreement with any condemnor in lieu of such taking (herein called a “Partial Taking”), then this Lease, only as to the portion or portions so taken, shall terminate as of the date possession thereof shall be delivered to the condemnor; provided, however, if as a result of such Partial Taking, it is economically unfeasible to reconstruct or operate for Tenant’s business the remaining portion of the Premises because of the insufficiency in size of the remaining portion of the Premises or Tenant’s ability to access the Premises is severely reduced, and Tenant so certifies to Landlord, then (1) this Lease shall terminate thirty (30) days from the date possession of the part taken shall be delivered to the condemnor, and (2) such Partial Taking shall be deemed to be and treated as a Total Taking. |
| D. | Reconstruction. If during the Lease Term there shall be a Partial Taking, and if this Lease shall not be terminated on account thereof pursuant to the provisions of the immediately preceding Subsection C, then (1) Landlord shall repair and restore the remaining portion of the Premises so that they constitute architectural units with the same general character and condition to the nearest extent possible under the circumstances as the previous Premises, and (2) this Lease shall remain in full force and effect with respect to such remaining portion of the Premises. Landlord shall use its best efforts to complete the reconstruction promptly and within the period mutually agreed upon by the parties. |
| E. | Award on Partial Taking. The entire award with respect to any Partial Taking shall be paid to Landlord. |
| F. | Temporary Taking. In the event a taking or condemnation of the Premises, or any part thereof, shall be for temporary use or occupancy or for a term of years only, then: (1) this Lease and all Tenant’s obligations hereunder shall continue in full force and effect (except to the extent that performance by Tenant of Tenant’s covenants and agreements is prevented by such taking); (2) there shall be no reduction or abatement of Rent; (3) Tenant shall be entitled to the entire award with respect to any such taking, except that Landlord shall be entitled to any portion of such award allocable to any period of time beyond the expiration of the Term of this Lease; and (4) the rights of Landlord and Tenant shall be unaffected by the other provisions of this Article and shall be governed by applicable law or Tenant shall have the option to terminate the Lease with no further liability to Landlord. |
| G. | Settlement Agreement. For the purposes of this Lease, all amounts paid pursuant to an agreement with any condemnor in settlement of any condemnation or any eminent domain proceeding affecting the Premises shall be deemed to constitute an award made in such proceeding. |
| H. | Abatement in Base Rent. In a case of a Partial Taking which does not result in a termination of this Lease, the annual Base Rent payable under this Lease, after possession of the portion so taken shall be delivered to the condemnor, shall be reduced in the same proportion as the amount of usable floor area of the Premises shall have been reduced by such Taking, but any such Partial Taking shall not relieve Tenant from Tenant’s liability to pay the full Additional Rent payable under this Lease, or from any of Tenant’s other obligations hereunder, and except as herein expressly provided. |
**20. **LIABILITY; INDEMNIFICATION OF LANDLORD AND TENANT.
| A. | Damage in General. Tenant agrees that Landlord, and its officers, employees and agents and those of all affiliated legal entities shall not be liable to Tenant, and Tenant hereby releases said parties, for any loss, injury, death, or damage (including incidental or consequential damages) to persons, property, or Tenant’s business from any cause whatsoever, unless such damage, loss or injury results from the willful misconduct of Landlord, or its officers, employees or agents. Landlord and its officers, employees, and agents shall not be liable to Tenant for any such damage or loss, whether or not such damage or loss results from willful misconduct, to the extent Tenant is compensated therefore by Tenant’s insurance. |
| B. | Indemnification of Landlord. Tenant agrees to defend with counsel reasonably satisfactory to Landlord, indemnify and save harmless Landlord from and against any and all liabilities, claims, damages, losses, cost and expenses, including without limitation attorneys’ fees, suffered or incurred by Landlord with respect to: (1) the conduct, operation or management of, or any work, act or thing whatsoever by Tenant done in, on or about the Premises; (2) any condition of the Premises, resulting by reason of Tenant’s failure or refusal to perform its obligations under this Lease; (3) any breach or default on the part of Tenant in the observance or performance of any of its agreements or obligations hereunder; (4) any act or omission of Tenant or any sublessee or Assignee of Tenant or any of Tenant’s or such sublessee’s or Assignee’s agents, contractors, servants, employees, business invitees, licensees, visitors or guests with respect to the Premises and/or Park; and (5) any accident, injury to or death of any person or damage to any property caused by Tenant or its officers, employees, agents, contractors or invitees in or on the Premises. Landlord shall give prompt written notice to Tenant of any claim asserted against Landlord which, if sustained, may result in liability of Tenant hereunder, but failure on the part of Landlord to give such notice shall not relieve Tenant from Tenant’s obligation to defend, indemnify and save harmless Landlord as stated, except to the extent that the failure to give such notice results in actual loss or damage to Tenant. |
| C. | Indemnification of Tenant. Landlord agrees to defend with counsel reasonably satisfactory to Tenant, indemnify and save harmless Tenant from and against any and all claims, damages, losses, cost and expenses, including without limitation attorneys’ fees, suffered or incurred by Tenant as the result of any accident, injury to or death of any person or damage to any property solely caused in or about the Premises by the gross negligence or willful misconduct of Landlord or Landlord’s employees or its authorized agents. Tenant shall give prompt written notice to Landlord of any claim against Tenant which, if sustained, may result in liability of Landlord hereunder, but Tenant’s failure to give such notice shall not relieve Landlord from Landlord’s obligation to defend, indemnify and save harmless Tenant as stated, except to the extent that the failure to give such notice results in actual loss or damage to Landlord. |
**21. **MISCELLANEOUS PROVISIONS.
| A. | Governing Law. This Lease shall be construed and interpreted under the laws of the State of Michigan applicable to contracts made and fully performed within the state. |
| B. | References. All references made and pronouns used herein shall be construed in the singular or plural, and in such gender as the sense and circumstances require. All references to Section or paragraph numbers or letters shall refer to sections or paragraphs of this Lease unless otherwise indicated. |
The headings inserted in this Lease are for reference purposes only and shall in no way affect the construction of this Lease or limit the generality of any of its provisions.
| C. | Binding Effect. The terms and conditions of this Lease shall also bind the respective heirs, successors, personal representatives and assigns of the parties. |
| D. | Entire Agreement. Except for the documents listed below, if any, this Lease constitutes the entire agreement between the parties and shall be deemed to supersede and cancel any other agreement between the parties relating to the transaction herein contemplated. None of the prior and contemporaneous negotiations, preliminary drafts or prior versions of this Lease containing conditions not set forth herein shall be used by any of the parties to construe or affect the validity of this Agreement. Each party acknowledges that no representation, inducement or condition not set forth herein has been made or relied upon by either party. |
| E. | Enforceability of Provisions. In case any provision of this Lease or any agreement or instrument executed in connection herewith shall be deemed invalid, illegal or unenforceable, such provision shall be enforced to the fullest extent permitted by applicable law and the validity of the remaining provisions hereof shall not in any way be affected. |
This Lease shall not be construed more strictly against one party as opposed to the other, merely because it may have been prepared by counsel for one of the parties. It is recognized that both Landlord and Tenant have contributed substantially and materially to the preparation of this Lease.
13| F. | Remedies Not Exclusive. All of the rights, remedies and benefits provided by this Lease shall be cumulative and shall not be exclusive of any other rights, remedies, and benefits allowed by law. One or more waivers of any covenant or condition by Landlord shall not be construed as a waiver of a further breach of the same or any other covenant or condition. | |
| G. | Landlord’s Right to Tenant’s Financial Information. Landlord reserves the right to require Tenant to submit annual financial information including but not limited to financial statements and other relevant records. Tenant shall supply Landlord with the requested information within ten (10) business days of receipt of the request unless otherwise agreed upon. |
| H. | Re-Leasing. Tenant agrees that for a period commencing six (6) months prior to the termination of this Lease, Landlord may show the Premises to prospective tenants. Landlord may list the Premises for lease or rent with a broker and may display in and about the Premises the usual and ordinary signs. |
| I. | Advertising and Signs. All signs and advertising displayed on and about the Premises shall only advertise the business carried on upon the Premises. Landlord shall control the character and size of all signs and no sign shall be displayed except those approved in writing by Landlord. |
| J. | Quiet Enjoyment. Landlord covenants that Tenant, upon payment of all the Rent and Additional Rent due under this Lease, and performance of the covenants and obligations under this Lease or otherwise, may peacefully and quietly occupy the Premises for the term of this Lease including any written extensions or modifications of same. |
| K. | Sale by Landlord. In the event of any sale, conveyance, transfer, or assignment by Landlord of its interest in and to the Premises, all obligations under this Lease of the party selling, conveying, transferring, assigning or otherwise disposing shall cease and terminate and Tenant releases said party from same, and Tenant shall thereafter look only and solely to the party to whom or which the Premises were sold, conveyed, transferred, assigned or otherwise disposed of for performance of all of Landlord’s duties and obligations under this Lease. |
| L. | Limitation of Liability. Landlord’s obligation and liability to Tenant with respect to this Lease shall be limited solely to Landlord’s interest in the Premises, and neither Landlord, nor any joint venturer, partner, officer, director or shareholder of Landlord or its affiliated legal entities or any of the joint venturers of Landlord shall have any liability whatsoever with respect to this Lease. |
| M. | Authority. Each party executing this Lease warrants that it has full power, authority and legal right to execute and deliver this Lease, and to keep and observe all of the terms and provisions of this Lease on such party’s part to be observed and performed. Each party warrants that this Lease is its valid and enforceable obligation. |
| N. | No Liability for Curtailment, Etc., of Services. Landlord shall not be liable in damages or otherwise and Tenant waives any claim for the curtailment, delay, or failure in furnishing any services hereunder from any cause whatsoever, except where such curtailment, delay or failure is caused by Landlord’s willful misconduct. In no event will Landlord have any liability for any consequential, incidental, or special damages in connection with furnishing services pursuant to this Lease, nor shall any curtailment, delay, or failure in providing services, regardless of cause, constitute an eviction of Tenant or termination of this Lease. Landlord shall use reasonable efforts to restore promptly the curtailed, delayed or failed service. |
| O. | Survival. All agreements and obligations of Tenant hereunder which require observance or performance after the expiration or termination of this Lease, or which cannot reasonably be ascertained as having been observed or performed at the time of such expiration or termination, shall survive, and be enforceable against Tenant following such expiration or termination. |
| P. | Notices. Whenever a provision is made for notice of any kind, it shall be served by United States first class mail, or personally delivered to the party being put on notice at the addresses listed below or such other addresses as the parties may indicate for themselves by written notice delivered in like manner. |
| If to Landlord: | DART CONTAINER OF MICHIGAN LLC |
| 500 Hogsback Road | |
| Dart Development | |
| Mason, Michigan 48854-9541 | |
| ATTN: Steve A. Mills | |
| If to Tenant: | IONETIX CORPORATION |
| One Ferry Building, Suite 255 | |
| ATTN: Carrie Busch | |
| Title: VP, Corporate Development |
This lease is signed and made effective as of the date first written above.
| LANDLORD: | ||
| DART CONTAINER OF MICHIGAN LLC | ||
| Dated: April 30, 2013 | BY: | /s/ Kevin M. Fox |
| Kevin M. Fox | ||
| ITS: | Authorized Signatory | |
| TENANT: | ||
| IONETIX CORPORATION | ||
| Dated: April 24, 2013 | BY: | /s/ Carrie Busch |
| Carrie Busch | ||
| ITS: | ||
| VP, Corporate Development |
EXHIBIT A
Hazardous and Toxic Materials
A-1
EXHIBIT B
Rules and Regulations
B-1
EXHIBIT C
Landlord’s Work
C-1
FIRST AMENDMENT TO LEASE
** **
THIS FIRST AMENDMENT TO LEASE (the “Amendment”) is made this 15th day of April, 2014, by and between DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company (“Landlord”), and IONETIX CORPORATION, a Delaware corporation, (“Tenant”).
** **
WITNESSETH
** **
WHEREAS, Landlord and Tenant, entered into that certain Lease bearing an effective date of April 10, 2013, for real property known as Lot 5, Suite D, Oakwood Executive Park, and more commonly known as 3130 Sovereign Drive, Suite 5D, Lansing, Michigan 48911 (the “Lease”); and
** **
WHEREAS, Landlord and Tenant desire to amend the Lease as provided for herein.
** **
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and Tenant hereby amend the Lease as follows:
1. Definitions. Unless the context otherwise requires, any capitalized term used herein shall have the meaning set forth in the Lease.
** **
**2. **Integration of Amendment and Lease. This Amendment and the Lease shall be deemed to be, for all purposes, one instrument. In the event of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Lease, the terms and provisions of this Amendment shall, in all instances, control and prevail.
** **
**3. **Lease Term. Paragraph 2 of the Lease is deleted in its entirety and replaced with the following:
“Lease Term. The term of this Lease (“Lease Term” shall be for a term of two (2) years, and shall commence on the first day of May, 2013 (“Commencement Date”). Unless terminated earlier in accordance with the terms of this Lease, this Lease shall terminate on April 30, 2015 (“Termination Date”).”
** **
**4. **Base Rent. The introductory paragraph of paragraph 3 only is deleted in its entirety and replaced with the following:
“Base Rent. During the Lease Term, Tenant shall pay annual Base Rent and all other rent due and owing by Tenant under this Lease (“Additional Rent”) to Landlord at such place as Landlord shall from time to time designate in writing. Annual Base Rent will be payable in equal monthly installments as follows:
| Lease Year | Monthly Installment | Annual Base Rent | ||||
| 05/01/13 – 04/30/14 | $1,797.00 | $21,564.00 | ||||
| 05/01/14 – 04/30/15 | $1,834.00 | $22,008.00” |
**5. **Notices. Paragraph 21 P. is deleted in its entirety and replaced with the following:
“Notices. Whenever a provision is made for notice of any kind, it shall be served by United States first class mail, or personally delivered to the party being put on notice at the addresses listed below or such other addresses as the parties may indicate for themselves by written notice delivered in like manner:
** **
| If to Landlord: | DART CONTAINER OF MICHIGAN LLC | |
| Attn.: Steven A. Mills | ||
| Dart Development | ||
| 3120 Sovereign Drive, Suite 4B | ||
| Lansing, Michigan 48911 | ||
| With a copy to: | DART CONTAINER OF MICHIGAN LLC | |
| Attn.: Jeffrey C. Hicks | ||
| Legal Department | ||
| 500 Hogsback Road | ||
| Mason, Michigan 48854-9541 | ||
| If to Tenant: | IONETIX CORPORATION | |
| Attn.: Carrie Busch | ||
| One Ferry Building, Suite 255 | ||
| San Francisco, California 94111 |
** **
**6. **The following paragraph is hereby added as paragraph 21 Q.
21. Q. Electronic Signatures. Delivery of an executed counterpart documents by facsimile transmission, Adobe Corporation’s Portable Document Format, or other electronic transmission means shall be as effective as delivery of a manually executed counterpart hereof.
** **
**7. **Except as expressly amended herein, all of the terms and provisions of the Lease shall remain in full force and effect as first written and/or previously amended.
** **
**8. **Notwithstanding the execution date of this Amendment, the parties agree that the effective date of this Amendment shall be April 15, 2014.
** **
**9. **Each party executing this Amendment represents and warrants that the party signing on behalf of their respective entity is fully authorized and intends to bind, and does bind, their entity to the foregoing by affixing his/her signature hereto.
** **
**10. **Tenant acknowledges that Landlord is not in default under the Lease, and further represents and warrants to Landlord that Tenant has no knowledge of any violations of any restrictions which bind the Premises or its use.
2| **IONETIX CORPORATION, **a Delaware corporation | DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company | |||
| /s/ Carrie Busch | /s/ Kevin M. Fox | |||
| By: | Carrie Busch | By: | Kevin M. Fox | |
| Its: | V.P. Corporate Development | Its: | Authorized Signatory | |
| Date: April 28, 2014 | Date: April 22, 2014 |
SECOND AMENDMENT TO LEASE
** **
THIS SECOND AMENDMENT TO LEASE (the “Amendment”) is made this 9th day of February, 2015, by and between DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company (“Landlord”), and IONETIX CORPORATION, a Delaware corporation, (“Tenant”).
** **
WITNESSETH
** **
WHEREAS, Landlord and Tenant, entered into that certain Lease bearing an effective date of April 10, 2013 as amended by that certain First Amendment to Lease Agreement dated April 15, 2014, for real property known as Lot 5, Suite D, Oakwood Executive Park, and more commonly known as 3130 Sovereign Drive, Suite SD, Lansing, Michigan 48911 (the “Lease”); and
** **
WHEREAS, Landlord and Tenant desire to further amend the Lease as provided for herein.
** **
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and Tenant hereby amend the Lease as follows:
1. *Definitions. *Unless the context otherwise requires, any capitalized term used herein shall have the meaning set forth in the Lease.
** **
**2. **Integration of Amendment and Lease. This Amendment and the Lease as previously amended shall be deemed to be, for all purposes, one instrument. In the event of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Lease, the terms and provisions of this Amendment shall, in all instances, control and prevail.
** **
**3. **Premises. Tenant shall lease additional space, contiguous to the Premises, containing approximately 12,107 rentable square feet (the “Additional Space”). Commencing on the last to occur of (a) the date upon which Landlord shall deliver possession of the Premises to Tenant with the Tenant Improvements complete or (b) the first day of April 2015 (the “Additional Space Commencement Date”), Tenant’s total leased premises shall be comprised of approximately 16,136 rentable square feet. As such, the last two paragraphs of Section one of the Lease are hereby deleted in their entirety and replaced by the following paragraph:
“As of the Additional Space Commencement Date, Tenant shall also lease the following premises, to be defined herein as the “Additional Space”:
That portion of Lot 5 (according to the Park’s Plat recorded at Liber 50, Page 38 of Plats, Ingham County Records), commonly known as 3130 Sovereign Drive, Lansing, Michigan 48911, Suite 5BC, deemed to be comprised of 12,107 rentable square feet as shown on Exhibit D attached hereto and made a hereof.”
As of the Additional Space Commencement Date, the term “Premises” used throughout the Lease shall be deemed to include the Premises and the Additional Space as set forth above.
** **
4
** **
**4. **Lease Term. Paragraph 2 of the Lease is deleted in its entirety and replaced with the following:
“Lease Term. The term of this Lease (“Lease Term” shall be for a term of six (6) years and eleven (11) months, subject to the Additional Space Commencement Date, and shall commence on the first day of May, 2013 (“Commencement Date”). Unless terminated earlier in accordance with the terms of this Lease, this Lease shall terminate on the last to occur of (a) sixty (60) months after the Additional Space Commencement Date or (b) March 31, 2020 (“Termination Date”).
** **
**5. **Base Rent. The introductory paragraph of paragraph 3 only, is deleted in its entirety and replaced with the following:
“Base Rent. During the Lease Term, Tenant shall pay annual Base Rent and all other rent due and owing by Tenant under this Lease (“Additional Rent”) to Landlord at such place as Landlord shall from time to time designate in writing. Annual Base Rent will be payable in equal monthly installments as follows, subject to the actual Additional Space Commencement Date:
| Lease Year/Months | Monthly Base Rent | Monthly Additional Rent | Annual Total | ||||||
| 05/01/13 - 04/30/14 | $1,797.00 | N/A | $21,564.00 | ||||||
| 05/01/14 - 03/31/15 | $1,834.00 | N/A | $20,174.00 (11 mos.) | ||||||
| 04/01/15 - 03/31/16 | $6,857.80 | $3,477.40 | $124,022.40 | ||||||
| 04/01/16 - 03/31/17 | $7,059.50 | $3,477.40 | $126,442.80 | ||||||
| 04/01/17 - 03/31/18 | $7,274.65 | $3,477.40 | $129,024.60 | ||||||
| 04101/18 - 03/31/19 | $7,489.79 | $3,477.40 | $131,606.28 | ||||||
| 04101/19 - 03/31/20 | $7,718.39 | $3,477.40 | $134,349.48 |
**6. **Additional Rent. The following paragraph is hereby added as paragraph 3 D:
“Landlord has received an estimate of $171,500.00 for the cost of its build-out of the Additional Space to Premises for Tenant, per the attached Exhibit E. Tenant shall pay Landlord, as Additional Rent in compensation of the build-out, one hundred percent of the build-out costs, plus interest at 8% on that amount, in monthly installments of $3,477.40 amortized for 60 months, with the first such amortization payment due and payable on or before the Additional Space Commencement Date (see Exhibit F) and each subsequent payment payable to Landlord in advance on the first day of each month during the Lease Term. All such payments shall be due and payable to Landlord without notice, demand, deduction or set off.”
** **
**7. **Additional Security Deposit. Prior to Additional Space Commencement Date, Tenant shall submit payment of Seven Thousand Five Hundred and NO/100 Dollars ($7,500.00) to Landlord, which shall be governed by the terms and conditions of Section 5 of the Lease.
** **
**8. **Additional Landlord’s Work. Landlord shall complete prior to the Additional Space Commencement Date, at Landlord’s expense, Additional Landlord’s Work as described in Exhibit G, attached hereto and made a part hereof.
** **
5
** **
**9. **Paragraph 21 is amended to include the addition of the following paragraph as section S:
** **
| S. | Right of First Refusal for Additional Contiguous Space. Provided that Tenant shall not be in default under the terms of this Lease, Landlord agrees that Tenant shall have a right of first refusal for the leasing of additional contiguous space within the building located on Lot 5 at Tenant’s then current lease rate, if and when such space shall become available. Tenant’s right of first refusal shall only be exercisable within thirty (30) days’ written notice by Landlord of additional contiguous space becoming available for leasing (“First Refusal Notice Period”). Tenant must exercise its right of first refusal by providing Landlord with written notice within the First Refusal Notice Period. |
In the event that Tenant requires additional contiguous space beyond that which is available within the building on Lot 5, then Tenant shall have the right to relocate to larger space within the Park without penalty at a rental rate to be negotiated by the parties. Tenant’s right shall only be exercisable within thirty (30) days’ written notice by Landlord of space becoming available for leasing (“Relocation Notice Period”). Tenant must exercise its right of first refusal by providing Landlord with written notice within the Relocation Notice Period. Alternatively, Tenant shall have the right to increase the size of the building on Lot 5 via constructing additional square footage. Such right shall be subject to Landlord’s approval, and shall be at a rental rate and by agreement of payment of costs for such expansion of the building to be negotiated by the parties.
** **
**10. **Except as expressly amended herein, all of the terms and provisions of the Lease shall remain in full force and effect as first written and/or previously amended.
** **
**11. **Notwithstanding the execution date of this Amendment, the parties agree that the effective date of this Amendment shall be January 23, 2015.
** **
**12. **Each party executing this Amendment represents and warrants that the party signing on behalf of their respective entity is fully authorized and intends to bind, and does bind, their entity to the foregoing by affixing his/her signature hereto.
** **
**13. **Tenant acknowledges that Landlord is not currently in default under the Lease, and further represents and warrants to Landlord that Tenant has no knowledge of any violations of any restrictions which bind the Premises or its use.
** **
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
6** **
| IONETIX CORPORATION, a Delaware corporation | DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company | |||
| /s/ Carrie Busch | /s/ Kevin M. Fox | |||
| By: | Carrie Busch | By: | Kevin M. Fox | |
| Its: | V.P. Finance | Its: | Authorized Signatory | |
| Date: February 27, 2015 | Date: March 6, 2015 |
** **
7EXHIBIT D
FLOORPLAN
** **
8EXHIBIT E
BUILD OUT ESTIMATE
** **
9EXHIBIT F
AMORTIZATION SCHEDULE
** **
10EXHIBIT G
LANDLORD’S WORK
** **
11THIRD AMENDMENT TO LEASE
** **
THIS THIRD AMENDMENT TO LEASE (the “Amendment”) is made this 21st day of April, 2015, by and between DART CONTAINER OF MICHIGAN LLC a Michigan limited liability company (“Landlord”), and IONETIX CORPORATION, a Delaware corporation, (“Tenant”).
WITNESSETH
** **
WHEREAS, Landlord and Tenant, entered into that certain Lease bearing an effective date of April 10, 2013 as amended by that certain First Amendment to Lease Agreement dated April 15, 2014, and as further amendment by that certain Second Amendment to Lease Agreement dated February 9, 2015, for real property known as Lot 5, Suite D, Oakwood Executive Park, and more commonly known as 3130 Sovereign Drive, Suite 5D, Lansing, Michigan 48911 (the “Lease”); and
** **
WHEREAS, Landlord and Tenant desire to further amend the Lease as provided for herein.
** **
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and Tenant hereby amend the Lease as follows:
1. Definitions. Unless the context otherwise requires, any capitalized term used herein shall have the meaning set forth in the Lease.
2. Integration of Amendment and Lease. This Amendment and the Lease as previously amended shall be deemed to be, for all purposes, one instrument. In the event of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Lease, the terms and provisions of this Amendment shall, in all instances, control and prevail.
3. Definition of “Additional Space Commencement Date”. The Additional Space Commencement Date referenced in the Second Amendment to Lease Agreement dated February 9, 2015 is hereby defined as June 1, 2015.
4. Lease Term. Paragraph 2 of the Lease is deleted in its entirety and replaced with the following:
“Lease Term. The term of this Lease (“Lease Term”)·shall be for a term of seven (7) years and one (1) month and shall commence on the first day of May, 2013 (“Commencement Date”). Unless terminated earlier in accordance with the terms of this Lease, this Lease shall terminate on May 31, 2020 (“Termination Date”).
125. Base Rent. The introductory paragraph of paragraph 3 only is deleted in its entirety and replaced with the following:
“Base Rent. During the Lease Term, Tenant shall pay annual Base Rent and all other rent due and owing by Tenant under this Lease (“Additional Rent”) to Landlord at such place as Landlord shall from time to time designate in writing. Annual Base Rent will be payable in equal monthly installments as follows, subject to the actual Additional Space Commencement Date:
| Lease Year/Months | Monthly Base Rent | Monthly Additional Rent | Annual Total | ||||||
| 05/01/13 - 04/30/14 | $1,797.00 | N/A | $21,564.00 | ||||||
| 05/01/14 - 05/31/15 | $1,834.00 | N/A | $23,842.00 (13 mos.) | ||||||
| 06/01/15 - 05/31/16 | $6,857.80 | $3,477.40 | $124,022.40 | ||||||
| 06/01/16 - 05/31/17 | $7,059.50 | $3,477.40 | $126,442.80 | ||||||
| 06/01/17 - 05/31/18 | $7,274.65 | $3,477.40 | $129,024.60 | ||||||
| 06/01/18 - 05/31/19 | $7,489.79 | $3,477.40 | $131,606.28 | ||||||
| 06/01/19 - 05/31/20 | $7,718.39 | $3,477.40 | $134,349.48” |
6. Except as expressly amended herein, all of the terms and provisions of the Lease shall remain in full force and effect as first written and/or previously amended.
7. Notwithstanding the execution date of this Amendment, the parties agree that the effective date of this Amendment shall be April 21, 2015.
8. Each party executing this Amendment represents and warrants that the party signing on behalf of their respective entity is fully authorized and intends to bind, and does bind their entity to the foregoing by affixing his/her signature hereto.
9. Tenant acknowledges that Landlord is not currently in default under the Lease, and further represents and warrants to Landlord that Tenant has no knowledge of any violations of any restrictions which bind the Premises or its use.
| IONETIX CORPORATION, a Delaware corporation | DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company | |||
| /s/ Carrie Busch | /s/ Kevin M. Fox | |||
| By: | Carrie Busch | By: | Kevin M. Fox | |
| Its: | V.P. Finance | Its: | Authorized Signatory | |
| Date: June 2, 2015 | Date: July 6, 2015 |
FOURTH AMENDMENT TO LEASE
** **
THIS FOURTH AMENDMENT TO LEASE (the “Amendment”) is made this 14th day of July, 2016, by and between DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company (“Landlord”), and IONETIX CORPORATION, a Delaware corporation, (“Tenant”).
WITNESSETH
** **
WHEREAS, Landlord and Tenant, entered into that certain Lease bearing an effective date of April 10, 2013 as amended by that certain First Amendment to Lease Agreement dated April 15, 2014, further amendment by that certain Second Amendment to Lease Agreement dated February 9, 2015, and as further amendment by that certain Third Amendment to Lease Agreement dated April 21, 2015, for real property known as Lot 5, Suite D, Oakwood Executive Park, and more commonly known as 3130 Sovereign Drive, Suite 5D, Lansing, Michigan 48911 (the “Lease”); and
** **
WHEREAS, Landlord and Tenant desire to further amend the Lease as provided for herein.
** **
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and Tenant hereby amend the Lease as follows:
1. Definitions. Unless the context otherwise requires, any capitalized term used herein shall have the meaning set forth in the Lease.
2. Integration of Amendment and Lease. This Amendment and the Lease as previously amended shall be deemed to be, for all purposes, one instrument. In the event of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Lease, the terms and provisions of this Amendment shall, in all instances, control and prevail.
3. Premises. Tenant shall lease additional space, contiguous to the Premises, containing approximately 3,841 rentable square feet (the “Additional Space”). Commencing on the first day of July 2016 (the “Additional Space Commencement Date”), Tenant’s total leased premises shall be comprised of approximately 19,977 rentable square feet. As such, the last two paragraphs of Section one of the Lease are hereby deleted in their entirety and replaced by the following paragraph:
“As of the Additional Space Commencement Date, Tenant shalt also lease the following premises, to be defined herein as the “Additional Space”:
That portion of Lot 5 (according to the Park’s Plat recorded at Liber 50, Page 38 of Plats, Ingham County Records), commonly known as 3130 Sovereign Drive, Lansing, Michigan 48911, Suite 5A, deemed to be comprised of 3,841 rentable square feet as shown on Exhibit D attached hereto and made a hereof.”
14As of the Additional Space Commencement Date, the term “Premises” used throughout the Lease shall be deemed to include the Premises and the Additional Space as set forth above. Tenant acknowledges that it has inspected the Additional Space, is familiar with the condition thereof, and accepts the Additional Space in its “AS IS” condition, without any representation or warranty by Landlord, express or implied. Tenant expressly acknowledges that Landlord shall have no obligation to perform any improvements to the Additional Space to prepare it for Tenant’s occupancy.
4. Lease Term. Paragraph 2 of the Lease remains the same:
“Lease Term.” The term of this Lease (“Lease Term” shall be for a term of seven (7) years and one (1) month and shall commence on the first day of May, 2013 (“Commencement Date”). Unless terminated earlier in accordance with the terms of this Lease, this Lease shall terminate on May 31, 2020 (“Termination Date”).
5. Base Rent. The introductory paragraph of paragraph 3 only, is deleted in its entirety and replaced with the following:
“Base Rent. During the Lease Term, Tenant shall pay annual Base Rent and all other rent due and owing by Tenant under this Lease (“Additional Rent”) to Landlord at such place as Landlord shall from time to time designate in writing. Annual Base Rent will be payable in equal monthly installments as follows, subject to the actual Additional Space Commencement Date:
| Lease Year/Months | Monthly Base Rent | Monthly Additional Rent | Annual Total | ||||||
| 05/01/13 - 04/30/14 | $1,797.00 | N/A | $21,564.00 | ||||||
| 05/01/14 - 05/31/15 | $1,834.00 | N/A | $23,842.00 (13 mos.) | ||||||
| 06/01/15-05/31/16 | $6,857.80 | $3,477.40 | $124,022.40 | ||||||
| 06/01/16 - 06/30/16 | $7,059.50 | $3,477.40 | $10,536.90 (1 mos.) | ||||||
| 07/01/16 - 05/31/17 | $9,732.20 | $3,477.40 | $145,503.55 (11 mos.) | ||||||
| 06/01/17 - 05/31/18 | $9,947.34 | $3,477.40 | $161,096.91 | ||||||
| 06/01/18 - 05/31/19 | $10,210.50 | $3,477.40 | $164,254.82 | ||||||
| 06/01/19 - 05/31/20 | $10,487.11 | $3,477.40 | $167,574.09” |
6. Except as expressly amended herein, all of the terms and provisions of the Lease shall remain in full force and effect as first written and/or previously amended.
7. Notwithstanding the execution date of this Amendment, the parties agree that the effective date of this Amendment shall be June 7, 2016.
8. Each party executing this Amendment represents and warrants that the party signing on behalf of their respective entity is fully authorized and intends to bind, and does bind, their entity to the foregoing by affixing his/her signature hereto.
9. Tenant acknowledges that Landlord is not currently in default under the Lease, and further represents and warrants to Landlord that Tenant has no knowledge of any violations of any restrictions which bind the Premises or its use.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
15| IONETDC CORPORATION, a Delaware corporation | DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company | |||
| /s/ Carrie Busch | /s/ Kevin M. Fox | |||
| By: | Carrie Busch | By: | Kevin M. Fox | |
| Its: | V.P. Corporate Development | Its: | Authorized Signatory | |
| Date: July 15, 2016 | Date: July 15, 2016 |
EXHIBIT D
FLOORPLAN
FIFTH AMENDMENT TO LEASE
** **
THIS FIFTH AMENDMENT TO LEASE (the “Amendment”) is made this 12th day of July, 2018, by and between DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company (“Landlord”), and IONETIX CORPORATION, a Delaware corporation, (“Tenant”).
WITNESSETH
** **
WHEREAS, Landlord and Tenant, entered into that certain Lease bearing an effective date of April 10, 2013 as amended by that certain First Amendment to Lease Agreement dated April 15, 2014, Second Amendment to Lease Agreement dated February 9, 2015, Third Amendment to Lease Agreement dated April 21, 2015, and Fourth Amendment to Lease Agreement dated June 7, 2016, for real property known as Lot 5, Suite D, Oakwood Executive Park, and more commonly known as 3130 Sovereign Drive, Suite 5D, Lansing, Michigan 48911 (collectively, the “Lease”); and
** **
WHEREAS, Landlord and Tenant desire to further amend the Lease as provided for herein.
** **
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and Tenant hereby amend the Lease as follows:
1. Definitions. Unless the context otherwise requires, any capitalized term used herein shall have the meaning set forth in the Lease.
2. Integration of Amendment and Lease. This Amendment and the Lease as previously amended shall be deemed to be, for all purposes, one instrument. In the event of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Lease, the terms and provisions of this Amendment shall, in all instances, control and prevail.
3. Lease Term. Paragraph 2 of the Lease is hereby amended by deleting the same in its entirety and substituting in lieu thereof the following:
“Lease Term. The term of this Lease (“Lease Term” shall be for a term of twelve (12) years and one (1) month and shall commence on the first day of May, 2013 (“Commencement Date”). Unless terminated earlier in accordance with the terms of this Lease, this Lease shall terminate on May 31, 2025 (“Termination Date”).
4. Base Rent. The introductory paragraph of paragraph 3 only, is deleted in its entirety and replaced with the following:
“Base Rent. During the Lease Term, Tenant shall pay annual Base Rent and all other rent due and owing by Tenant under this Lease (“Additional Rent”) to Landlord at such place as Landlord shall from time to time designate in writing. Annual Base Rent will be payable in equal monthly installments as follows, subject to the actual Additional Space Commencement Date:
| Lease Year/Months | Monthly Base Rent | Monthly Additional Rent | Annual Total | ||||||
| 05/01/13 – 04/30/14 | $1,797.00 | N/A | $21,564.00 | ||||||
| 05/01/14 – 05/31/15 | $1,834.00 | N/A | $23,842.00 (13 mos.) | ||||||
| 06/01/15 – 05/31/16 | $6,857.80 | $3,477.40 | $124,022.40 | ||||||
| 06/01/16 – 06/30/16 | $7,059.50 | $3,477.40 | $10,536.90 (1 mos.) | ||||||
| 07/01/16 – 05/31/17 | $9,732.20 | $3,477.40 | $145,503.55 (11 mos.) | ||||||
| 06/01/17 – 05/31/18 | $9,497.34 | $3,477.40 | $161,096.91 | ||||||
| 06/01/18 – 05/31/19 | $10,210.50 | $3,477.40 | $164,254.82 | ||||||
| 06/01/19 – 05/31/20 | $10,487.11 | $3,477.40 | $167,574.09” | ||||||
| 06/01/20 – 05/31/21 | $10,696.85 | TBD | $128,362.09 | ||||||
| 06/01/21 – 05/31/22 | $10,910.79 | TBD | $130,929.47 | ||||||
| 06/01/22 – 05/31/23 | $11,129.01 | TBD | $133,548.06 | ||||||
| 06/01/23 – 05/31/24 | $11,351.59 | TBD | $136,219.02 | ||||||
| 06/01/24 – 05/31/25 | $11,578.62 | TBD | $138,943.40 |
5. Insurance. Paragraph 6 B. is deleted in its entirety and replaced with the following:
6. B. Liability Insurance. Tenant shall procure at its sole cost and expense, and keep in effect during the entire Lease Term, the following types and amounts of insurance coverage:
| a) | Commercial general liability insurance with minimum limits of liability of two million ($2,000,000.00) dollars per occurrence and four million ($4,000,000.00) aggregate with a project and per location aggregate endorsement, for bodily injury and property damage including premises and operations, products and completed operations, personal and advertising injury and contractual liability coverage for the indemnity obligations Tenant assumes in this Lease. Such coverage shall also include premises damage legal liability for fire and water damage with limits of two million ($2,000,000.00) per occurrence for damage to property in the care, custody or control of the Tenant. Such coverage shall be provided on an Insurance Services Office (ISO) form through an insurer admitted in the State of Michigan that is “A+” rated by A.M. Best and shall include the Landlord, its agents, employees, officers, lienholders and mortgagees and other indemnified parties included in the indemnification provisions of this Lease as additional insureds on a primary and noncontributory basis. |
| b) | Commercial automobile insurance for owned, non-owned rented and/or hired motor vehicles with residual combined single liability limits of least $1,000,000 per occurrence. Such coverage shall name the Landlord and its officers, employees and members as well as other indemnified parties included in the indemnification agreement of this Lease as additional insureds. |
| c) | Workers’ compensation and employers’ liability insurance which shall include a waiver of subrogation in favor of Landlord. |
| d) | Commercial umbrella insurance with limits of at least $3,000,000 per occurrence. Such policy shall include the general liability, employer’s liability, business automobile liability policies as scheduled underlying policies and shall extend coverage for the Landlord and the indemnified parties as additional insureds. |
| e) | Property insurance for property of every description and kind owned by Tenant and located on the Premises or for which Tenant is legally liable including, without limitation, furniture, equipment and any other personal property, the Tenant improvements (with the exception of the Landlord’s work) and any subsequent alterations thereto in an amount not less than the full replacement cost thereof. Such coverage shall include business income and extra expense coverage for at least twelve (12) months of tenant’s annual estimated receipts plus 120 days extended period of indemnity. |
Tenant may provide commercial general liability insurance public liability insurance under a blanket policy or policies which cover other properties in addition to the Premises. All insurance required to be procured and maintained by Tenant shall not be subject to cancellation except after thirty (30) days prior written notice to Landlord, and an endorsement shall be obtained on the Tenant’s polic(y)(ies) whereby the Tenant’s insurer is required to provide notice directly to the Landlord. Certificates of insurance (Accord 25) for such polic(y)(ies) shall be provided to Landlord upon the signing of this Lease or, in the alternative and at Landlord’s sole discretion, Landlord may require Tenant to provide a true cop(y)(ies) of the actual insurance polic(y)(ies).
6. As part of the consideration for this amendment, the following paragraph is hereby added to the Lease as paragraph 21 T.
21. T. Construction of Vault. Landlord hereby agrees to allow the Tenant to build an approximately 256 square feet vault within the Premises (the “Vault”) as preliminarily shown on Exhibit E.
1. Tenant shall promptly advise Landlord in writing of, and if applicable provide Landlord with a copy of: (a) any notices of violation or potential or alleged violation of any Environmental Law or any other applicable statue, ordinance, regulation, or order; (b) any and all inquiries, investigations, enforcement, cleanup, removal, other governmental or regulatory actions instituted or threatened relating to Tenant or the Premises; and (c) any contamination due to radioactive activation of the Premises outside of the vault or releases of radioactive effluents above the EPA Constraint Limit (“Radioactive Contamination”) on or about the Premises of which Tenant has notice or actual knowledge.
19Tenant shall promptly take all actions, at its sole expense, as are necessary to return the Premises to the condition existing prior to the release of any such Radioactive Contamination and to comply with all Environmental Laws; provided that Landlord’s approval of all such actions shall first be obtained, which approval shall not be unreasonably withheld.
Tenant shall indemnify Landlord from any and all damage, loss or claim incurred, occasioned or suffered as a result of the construction or use of, and the operations conducted in or associated with the Vault. The above indemnifications by Tenant include, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remedial, removal or restoration work, whether or not required by any federal, state or local governmental agency or political subdivision, because of Radioactive Contamination cause by Ionetix.
Prior to vacating the premises and upon termination of the lease, Tenant shall engage a qualified third-party consultant reasonably acceptable to Landlord to perform a Phase II Investigation of the Premises to identify “recognized environmental conditions” that indicate that there has been an impact to the Premises caused by the Tenant. Tenant shall disclose the results of such investigation(s) to Landlord. Tenant shall remediate issues per NRC regulation 10 CFR 20.1402 caused by Radioactive Contamination by Tenant.
The provisions of this Section shall survive expiration or termination of this Lease.
The construction of the Vault is of the essence of this Amendment, and specifically the extension of the Term of the Lease set forth in Section 3 above. Accordingly, in the event Tenant is unable to construct the Vault prior to May 30, 2020, for any reason outside of the control of Tenant (e.g., in the event Landlord withdraws its approval to the construction thereof or if Tenant is unable to obtain all necessary permits and governmental authorizations needed to construct and operate the Vault as intended), then Tenant shall thereafter be entitled to terminate the Lease without cause upon no less than ninety (90) days prior written notice delivered to Landlord.
7. Assignment and Subletting – Supplemental Language. Paragraph 11 of the Lease is hereby amended by deleting the first sentence thereof and replacing it with the following:
“Other than any transfer or assignment effectuated to an affiliate or subsidiary of Tenant, or to a third party in connection with a sale, merger, consolidation or similar such transaction involving Tenant (in each case which Tenant may effectuate without the prior written consent of but upon thirty (30) days written notice to Landlord), Tenant shall not, directly or indirectly, without the prior written consent of Landlord (which shall not be unreasonably withheld), sell, assign, hypothecate or otherwise transfer this Lease or any interest hereunder, or sublet the Premises or any part thereof, or permit the use of the Premises by any party other than Tenant.”
8. Except as expressly amended herein, all of the terms and provisions of the Lease shall remain in full force and effect as first written and/or previously amended.
9. Notwithstanding the execution date of this Amendment, the parties agree that the effective date of this Amendment shall be June 15, 2018.
10. Each party executing this Amendment represents and warrants that the party signing on behalf of their respective entity is fully authorized and intends to bind, and does bind, their entity to the foregoing by affixing his/her signature hereto.
11. Tenant acknowledges that, to the best of Tenant’s knowledge, Landlord is not currently in default under the Lease, and further represents and warrants to Landlord that Tenant has no knowledge of any violations of any restrictions which bind the Premises or its use.
20| IONETIX CORPORATION, a Delaware corporation | DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company | |||
| /s/ Carrie Busch | /s/ Kevin M. Fox | |||
| By: | Carrie Busch | By: | Kevin M. Fox | |
| Its: | V.P. Finance | Its: | Authorized Signatory | |
| Date: June 12, 2018 | Date: June __, 2018 |
EXHIBIT E
FLOORPLAN
SIXTH AMENDMENT TO LEASE
** **
THIS SIXTH AMENDMENT TO LEASE (the “Amendment”) is made this 22nd day of December 2021, by and between DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company (“Landlord”), and IONETIX CORPORATION, a Delaware corporation, (“Tenant”).
WITNESSETH
** **
WHEREAS, Landlord and Tenant, entered into that certain Lease bearing an effective date of April 10, 2013 as amended by that certain First Amendment to Lease dated April 15, 2014, as further amended by that certain Second Amendment to Lease dated February 9, 2013, as further amended by that certain Third Amendment to Lease dated April 21, 2015, as further amended by that certain Fourth Amendment to Lease dated June 7, 2016, and as further amended by that certain Fifth Amendment to Lease dated July 12, 2018, for real property known as Lot 5, Suite D, Oakwood Executive Park, and more commonly known as 3130 Sovereign Drive, Suite 5D, Lansing, Michigan 48911 (collectively, the “Lease”); and
** **
WHEREAS, Landlord and Tenant desire to further amend the Lease as provided for herein.
** **
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and Tenant hereby amend the Lease as follows:
1. Definitions. Unless the context otherwise requires, any capitalized term used herein shall have the meaning set forth in the Lease.
2. Integration of Amendment and Lease. This Amendment and the Lease as previously amended shall be deemed to be, for all purposes, one instrument. In the event of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Lease, the terms and provisions of this Amendment shall, in all instances, control and prevail.
3. Construction of Second Vault. As part of the consideration for this amendment, the following paragraph is hereby added to the Lease as paragraph 21 U.
21. U. Construction of Second Vault. Landlord hereby agrees to allow the Tenant to build an approximately 700 square feet second vault within the Premises as preliminarily shown on Exhibit A (the “Second Vault”).
1. Tenant shall promptly advise Landlord in writing of: and if provide Landlord with a copy of: (a) any notices of violation or potential or alleged violation of any Environmental Law or any other applicable statue, ordinance, regulation, or order; (b) any and all inquiries, investigations, enforcement, cleanup, removal, other governmental or regulatory actions instituted or threatened relating to Tenant or the Premises; and (c) any contamination due to radioactive activation of the Premises outside of the vault or releases of radioactive effluents above the EPA Constraint Limit (“Radioactive Contamination”) on or about the Premises of which Tenant has notice or actual knowledge.
2. Tenant shall promptly take all actions, at its sole expense, as are necessary to return the Premises to the condition existing prior to the release of any such Radioactive Contamination and to comply with all Environmental Laws; provided that Landlord’s approval of all such actions shall first be obtained, which approval shall not be unreasonably withheld.
233. Tenant shall indemnify Landlord from any and all damage, loss or claim incurred, occasioned or suffered as a result of the construction or use of, and the operations conducted in or associated with the Vault. The above indemnifications by Tenant include, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remedial, removal or restoration work, whether or not required by any federal, state or local governmental agency or political subdivision, because of Radioactive Contamination cause by Ionetix.
4. Prior to vacating the premises and upon termination of the lease, Tenant shall engage a qualified third-party consultant reasonably acceptable to Landlord to perform a Phase II Investigation of the Premises to identify “recognized environmental conditions” that indicate that there has been an impact to the Premises caused by the Tenant. Tenant shall disclose the results of such investigation(s) to Landlord. Tenant shall remediate issues per NRC regulation 10 CFR 20.1402 caused by Radioactive Contamination by Tenant.
5. Tenant’s construction of the Second Vault shall in all other respects comply with the terms of the Lease, including without limitation., paragraph 19 of Exhibit B (Contractors and Service Maintenance) to obtain the appropriate contractor work letter.
6. The provisions of this Section shall survive expiration or termination of this Lease.
4. Other Terms Unchanged. Except as expressly amended herein, all of the terms and provisions of the Lease shall remain in full force and effect as first written and/or previously amended.
5. Effective Date. Notwithstanding the execution date of this Amendment, the parties agree that the effective date of this Amendment shall be December 16, 2021.
6. Authority to Bind. Each party executing this Amendment represents and warrants that the party signing on behalf of their respective entity is fully authorized and intends to bind, and does bind, their entity to the foregoing by affixing his/her signature hereto.
7. No Default. Tenant acknowledges that, to the best of Tenant’s knowledge, Landlord is not currently in default under the Lease, and further represents and warrants to Landlord that Tenant has no knowledge of any violations of any restrictions which bind the Premises or its use.
8. Electronic Signatures. Delivery of executed counterpart documents by facsimile transmission, Adobe Corporation’s Portable Document Format, or other electronic transmission means shall be as effective as delivery of a manually executed counterpart hereof.
9. No Commissions. Landlord and Tenant acknowledge and agree that no real estate brokerage commission or finder’s fee shall be payable by either party in connection with this Amendment. The parties agree to hold one another harmless from and against any claim for a commission occasioned by their actions.
10. Confidentiality. Tenant acknowledges and agrees that the terms of this Amendment and the Lease are confidential and constitute proprietary information of Landlord. Disclosure of the terms could adversely affect the ability of Landlord to negotiate other leases and impair Landlord’s relationship with other tenants. Tenant agrees that it, and its partners, officers, directors, employees, agents, and attorneys, shall not intentionally and voluntarily disclose the terms and conditions of the Lease or any amendment thereto to any third party or any other tenant or apparent prospective tenant of the building or other portion of the premises, or real estate agent, either directly or indirectly, without the prior written consent of Landlord.
24| IONETIX CORPORATION, a Delaware corporation | DART CONTAINER OF MICHIGAN LLC, a Michigan limited liability company | |
| /s/ Randy Hightower | /s/ Chris Kelsey | |
| By: Randy Hightower | By: Chris Kelsey | |
| Its: CFO | Its: Authorized Signatory | |
| Date: 1/3/2022 | Date: |
Exhibit A
Floor Plan
SEVENTH AMENDMENT TO LEASE
** **
THIS SEVENTH AMENDMENT TO LEASE (“Amendment”) is made effective this 1ST day of June 2025 by and between DART CONTAINER OF MICHIGAN LLC (“Landlord”), and IONETIX CORPORATION, a Delaware corporation (“Tenant”).
WITNESSETH
** **
WHEREAS, Landlord and Tenant, entered into that certain Lease dated April 10, 2013 as amended by that certain First Amendment dated April 15, 2014, as amended by that certain Second Amendment dated February 9, 2015, as amended by that certain Third Amendment dated April 21, 2015, as amended by that certain Fourth Amendment dated June 7, 2016, as amended by that certain Fifth Amendment dated July 12, 2018, as amended by that certain Sixth Amendment dated December 22, 2021 for the lease of real property commonly known as 3130 Sovereign Drive, Suite 5D, Lansing, Michigan 48911 (the “Lease”).
** **
WHEREAS, Landlord and Tenant desire to further amend the Lease as provided for herein.
** **
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and Tenant hereby amend the Lease as follows:
1. Incorporation of Terms. The introductory language and recitals set forth above, are incorporated herein by reference.
2. Definitions. Unless the context otherwise requires, any capitalized term used herein shall have the meaning set forth in the Lease.
3. Integration of Amendment and Lease. This Amendment and the Lease shall be deemed to be, for all purposes, one instrument. In the event of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Lease, the terms and provisions of this Amendment shall, in all instances, control and prevail.
4. Lease Term. The Term of the Lease shall be, and is hereby extended, for an additional sixty (60) month term commencing on June 1, 2025 (for purposes of this Amendment, the “Commencement Date”), and ending on, unless terminated earlier in accordance with the terms of the Lease or further extended, May 31, 2030.
Tenant shall have the option to extend the Term of the Lease for an additional two successive thirty-six (36) month terms, provided that Tenant is not in material default beyond any applicable cure period of any of its obligations under the Lease at the time of extension. Each such option to extend the Term may be exercised by Tenant by giving written notice to the Landlord not less than three (3) months prior to the expiration date of the Term or first such extension of such Term, as the case may be.
Any renewal or extension of the Term after both such Tenant extension periods will be by mutual agreement between Landlord and Tenant.
| Amendment to Lease | ||
| 27 | 8/1/2024 |
5. Base Rent. The lease table portion of Paragraph 3 of the Lease is hereby deleted in its entirety and replaced by the following:
| “Lease Year | Monthly Installment | Annual Base Rent | ||||
| 06/01/2025 – 05/31/2026 | $12,149.12 | $145,789.46 | ||||
| 06/01/2026 – 05/31/2027 | $12,513.59 | $150,163.14 | ||||
| 06/01/2027 – 05/31/2028 | $12,889.00 | $154,668.03 | ||||
| 06/01/2028 – 05/31/2029 | $13,275.67 | $159,308.04 | ||||
| 06/01/2029 – 05/31/2030 | $13,673.94 | $164,087.28” |
6. Common Costs As Additional Rent. Paragraph 4 of the Lease is hereby amended by deleting it in its entirety and substituting in lieu thereof the following:
“COMMON COSTS AS ADDITIONAL RENT.
| A. | Additional Rent. This Lease is intended to be a triple-net Lease except as expressly otherwise set forth herein. As such, the provisions contained in this Lease are intended to pass on to Tenant or reimburse Landlord for the costs and expenses reasonably associated with this Lease, the Premises, the Building (as hereafter defined), and Tenant’s operation therefrom. Tenant shall pay to Landlord the Taxes, Insurance and Property Expenses charges (as such terms are hereinafter defined and such terms are at times collectively referred to herein as “Operating Expenses”) incurred by Landlord for and on behalf of the Premises, and any other costs, charges, amounts or expenses (other than Base Rent) due from Tenant to Landlord hereunder (collectively, “Additional Rent”). |
| B. | Taxes. “Taxes” shall mean all taxes, payments in lieu of taxes, assessments, levies and governmental charges or impositions by any lawful authority including assessment districts (herein collectively referred to as “Tax” or “Taxes”) accrued against the Premises during the Lease Term or the rents collected by Landlord therefrom. Landlord or Tenant shall have the right to contest by appropriate legal proceedings the amount, validity, or application of any Taxes, the cost of which shall be deemed to be Additional Rent. If any Tax is levied or assessed directly against Tenant, then Tenant shall be responsible for and shall pay the same at such times and in such manner as the taxing authority shall require. Tenant shall be liable, at Tenant’s sole cost and expense, for all taxes levied or assessed against the rents payable by Tenant to Landlord, if any, Tenant’s personal property, tenant-made alterations or trade fixtures placed in the Premises, whether levied or assessed against Landlord or Tenant. Notwithstanding anything to the contrary in the foregoing, Taxes shall specifically exclude all: (1) federal, state, and local income taxes, (2) franchise, gift, transfer, excise, capital stock, estate, succession, and inheritance taxes, and (3) penalties or interest for late payment of Taxes on rent (unless such late payment is caused by Tenant’s failure to timely pay the same). |
| C. | Insurance. “Insurance” shall mean Landlord’s insurance costs for property, liability/casualty, environmental, and any and all other insurance costs, fees, and charges which Landlord reasonably deems necessary to carry on, for, or in connection with the Premises and the Building, as well as all deductibles relating to such coverage (herein collectively referred to as “Insurance”). In addition, in the event of an increase in any of Landlord’s Insurance costs as a result of any Tenant-related reason, Tenant shall pay to Landlord, upon demand, as Additional Rent, an amount equal to such increase in Insurance. |
| Amendment to Lease | ||
| 28 | 8/1/2024 |
| D. | Property Expenses. Except as otherwise expressly excluded herein, Property Expenses shall mean any and all reasonable costs, expenses and obligations incurred by Landlord in connection with the maintenance, management, repair and replacement of the Premises and the Building (“Property Expenses”), including without limitation the following to the extent incurred for the Premises and the Building: |
| (a) | the maintenance and repair of downspouts, gutters and nonstructural portions of the roof (including, without limitation, roof membrane and skylights); |
| (b) | repair, maintenance, and replacement (including but not limited to paving) of all parking facilities, driveways, truck-ways, sidewalks and passageways that are part of or adjacent to the Premises; |
| (c) | exterior lighting of the Premises; |
| (d) | utilities serving the Premises which are not otherwise paid directly by the Tenant, including electricity; mowing, and landscaping; |
| (e) | snow and ice removal; |
| (f) | fire protection, sprinkler systems, and related equipment; |
| (g) | mechanical, electrical, plumbing and other related systems located in the building in which the Premises are located (“Building”) which are not otherwise Tenant’s sole responsibility under this Lease; |
| (h) | amounts paid to contractors and subcontractors for work or services performed in connection with any of the foregoing; |
| (i) | reserved; |
| (j) | security services/alarm monitoring, if any; |
| (k) | trash collection, sweeping and removal; |
| (l) | additions or alterations made by Landlord to the Premises or the Building in order to comply with Legal Requirements (other than those required due to a Tenant-related Reason) which are first enacted after the Commencement Date; |
| (m) | capital improvements (a) made primarily to reduce Operating Expenses shall be included to the extent they actually reduce Operating Expenses, and only then up until the cost of the actual reduction, or to comply with any laws or other governmental requirements applicable to the Building with which the Building was not required to comply during the first year of this Lease, or to comply with any amendment or other change to the enactment or interpretation of any laws or other governmental requirements from its enactment or interpretation during the first year of this Lease, or (b) for replacements under generally accepted accounting principles consistently applied (as opposed to additions or new improvements) significantly benefiting Tenant (and not only Landlord) which shall be amortized over the useful life of the replacement and allocated as Property Expenses pro-rata on an annual basis; |
| (n) | Tenant’s share of all common area electrical, grounds maintenance, security services (if any) and other common area charges and expenses not already included in the foregoing (a) through (m). The term “grounds maintenance” shall include, without limitation, all landscaping, planting, lawn and grounds care, all maintenance of and improvements to the grounds and other common areas adjacent to the Premises. |
| Amendment to Lease | ||
| 29 | 8/1/2024 |
| E. | Estimated Payments. Prior to the Commencement Date and prior to January 1 of each subsequent calendar year during the Lease Term, or as soon thereafter as reasonably possible, Landlord shall deliver to Tenant an estimate of: (1) the Taxes for that calendar year (the “Tax Estimate”); (2) the Insurance costs for that calendar year (the “Insurance Estimate”); and (3) the total Property Expenses for that calendar year (the “Property Expenses Estimate”) and Tenant’s share thereof. (The Tax Estimate, the Insurance Estimate, and the Property Expenses Estimate are sometimes referred to hereinafter collectively as the “Common Cost Estimates”.) Tenant shall thereafter during that calendar year pay to Landlord one-twelfth (1/12) of the amount of Tenant’s share of the Common Cost Estimates at the same time its monthly installments of Base Rent hereunder are due and payable. In the event Landlord shall not have furnished the Common Cost Estimates to Tenant by January 1 of any calendar year (or prior to the Commencement Date), then until the first day of the month following the month in which the Common Cost Estimates are furnished to Tenant, Tenant shall continue to pay to Landlord on the first day of each calendar month its share of the Common Cost Estimates based on the previous year’s estimate. At such time as Landlord furnishes the Common Cost Estimates to Tenant, Landlord shall give Tenant notice stating whether the aggregate amount of the installments of Tenant’s share of Tax increase, Insurance increase and Property Expenses increase previously paid for such calendar year is more or less than the aggregate amount of the installments due for such portion of the calendar year as computed in accordance with the Common Cost Estimates, and (1) if there shall be a deficiency, then within ten (10) days after the Tenant receives the Common Cost Estimates, Tenant shall pay the amount of such deficiency, (2) if there shall have been an overpayment, Landlord shall credit Tenant in the amount thereof toward the subsequent installments of the Common Cost Estimates, and (3) on the first day of the first month next following the month in which the Common Cost Estimates are furnished to Tenant, and monthly thereafter for the balance of such calendar year, Tenant shall pay to Landlord one-twelfth (1/12) of the amount of Tenant’s share of the Common Cost Estimates. Tenant’s right to contest Common Cost Estimates shall be limited to six months from date of notification by Landlord. |
Tenant’s obligation with respect to any amounts owed to Landlord shall survive the expiration or earlier termination of the Lease and shall be invoiced to Tenant with delivery of the expense reconciliation. For purposes of calculating the Common Cost Estimates, a year shall mean a calendar year except the first year, which shall begin on the Commencement Date, and the last year, which shall end on the expiration of this Lease.
Current monthly Common Cost Estimates, based on one hundred percent (100.00%) of building occupancy, are [Four Thousand Three Hundred Twenty-Eight and 57/100 Dollars ($4,328.57)].
| F. | Multiple Tenants - Proration of Taxes, Insurance, and Property Expenses. At any time that more than one Tenant occupies the Premises, Taxes, Insurance, and Property Expenses shall be prorated based upon the square footage occupied by each tenant in relationship to the total square footage of the Premises, including each tenant’s prorata share of common areas. |
| G. | Late Charges. |
| 1. | Landlord May Incur Unanticipated Costs. Tenant’s failure to pay Rent, Additional Rent, or any other Lease costs when due under this Lease may cause Landlord to incur unanticipated costs. The exact amount of such costs is impractical or extremely difficult to ascertain. Such costs may include, but are not limited to, processing and accounting charges and late charges that may be imposed on Landlord by any ground lease, mortgage, or other lien encumbering the Park. |
| 2. | Tenant Owes Late Charge. Therefore, if Landlord does not receive the Rent, Additional Rent, or any other Lease costs as provided herein in full on or before the third (3rd) business day of the month said amounts become due, without any requirement for notice to Tenant, Tenant shall pay to Landlord a late charge equal to five percent (5%) of such overdue amount (“Late Charge”), which Late Charge shall be paid to Landlord together with such Rent, Additional Rent, or other Lease costs then in arrears. |
| Amendment to Lease | ||
| 30 | 8/1/2024 |
| 3. | Late Charge is Fair Estimate. The parties agree that such Late Charge represents a fair and reasonable estimate of the cost Landlord will incur by reason of such late payment. |
| 4. | If Tenant’s Check Returned. For each Tenant payment check to Landlord that is returned by a bank for any reason, Tenant shall pay both a Late Charge (if applicable) and a Returned Check Charge or such amount as shall be customarily charged by Landlord’s bank at the time. |
| 5. | Charges Become “Additional Rent”. All Late Charges and any Returned Check Charge shall then become Additional Rent and shall be due and payable immediately, along with such other Rent, Additional Rent, or other Lease costs then in arrears. |
| 6. | Application of Money from Tenant. Money paid by Tenant to Landlord shall be applied to Tenant’s account in the following order: (a) to any unpaid Additional Rent, including, without limitation, Late Charges, Returned Check Charges, legal fees and/or court costs legally chargeable to Tenant, and Operating/ Property Expenses; and then (b) to unpaid Base Rent. |
| 7. | Payment by Landlord on Tenant’s Behalf and Associated Charges. If Tenant fails to make any payment or expenditure required to be paid by it under the terms of the Lease, Landlord may, at its option, make such payment or expenditure on behalf of Tenant. In that event, the amount of any such payment or expenditure together with interest at the rate of ten percent (10%) per annum from due date forward, shall be immediately due and payable to Landlord as Additional Rent. |
| 8. | Landlord May Pursue Other Remedies. Nothing herein contained shall be construed so as to compel Landlord to accept any payment of Rent, Additional Rent, or other Lease costs in arrears or Late Charge or Returned Check Charge should Landlord elect to apply its rights and remedies available under this Lease at law and/or equity in the event of default hereunder by Tenant. Landlord’s acceptance of Rent, Additional Rent, or other Lease costs in arrears or Late Charge or Returned Check Charge pursuant to this Clause shall not constitute a waiver of Landlord’s rights and remedies available under this Lease or at law or equity. Landlord may accept any partial payment check with any conditional endorsement without prejudice to Landlord’s right to recover the balance remaining due, or to pursue any other remedy available under this lease. |
| 9. | Landlord May Require Advance Quarterly Payment. If Rent due hereunder shall be late for three (3) months in a given twelve-month period, then Landlord shall have the option of requiring that Base Rent shall be paid quarterly, in advance.” |
7. Construction of Third Vault. As part of the consideration for this Amendment, the following paragraph is hereby added to the Lease as paragraph 21 V.
21 V. Construction of Third Vault. Landlord hereby agrees to allow the Tenant to build an approximately 64 square feet third vault within the Premises as preliminarily shown on Exhibit A-1 (the “Third Vault”), which work must be completed on or before May 31, 2026.
| 1. | Tenant shall promptly advise Landlord in writing of, and provide Landlord with a copy of: (a) any notices of violation or potential or alleged violation of any Environmental Law or any other applicable statue, ordinance, regulation, or order; (b) any and all inquiries, investigations, enforcement, cleanup, removal, other governmental or regulatory actions instituted or threatened relating to Tenant or the Premises; and (c) any contamination due to radioactive activation of the Premises outside of the vault or releases of radioactive effluents above the EPA Constraint Limit (“Radioactive Contamination”) on or about the Premises of which Tenant has notice or actual knowledge. |
| Amendment to Lease | ||
| 31 | 8/1/2024 |
| 2. | Tenant shall promptly take all actions, at its sole expense, as are necessary to return the Premises to the condition existing prior to the release of any such Radioactive Contamination and to comply with all Environmental Laws; provided that Landlord’s approval of all such actions shall first be obtained, which approval shall not be unreasonably withheld. |
| 3. | Tenant shall indemnify Landlord from any and all damage, loss or claim incurred, occasioned or suffered as a result of the construction or use of, and the operations conducted in or associated with the Vault. The above indemnifications by Tenant include, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up, remedial, removal or restoration work, whether or not required by any federal, state or local governmental agency or political subdivision, because of Radioactive Contamination caused by Tenant. |
| 4. | Prior to vacating the Premises and upon termination of the Lease, Tenant shall engage a qualified third-party consultant reasonably acceptable to Landlord to perform a Phase II Investigation of the Premises to identify “recognized environmental conditions” that indicate that there has been an impact to the Premises caused by the Tenant. Tenant shall disclose the results of such investigation(s) to Landlord. Tenant shall remediate issues per NRC regulation 10 CFR 20.1402 caused by Radioactive Contamination by Tenant. |
| 5. | Tenant’s construction of the Third Vault shall in all other respects comply with the terms of the Lease, including without limitation, paragraph 19 of Exhibit B (Contractors and Service Maintenance) to obtain the appropriate contractor work letter. |
| 6. | At least five (5) days prior to commencing work on the Third Vault, Tenant shall notify the property manager of its intention to commence work. The property manager shall be permitted to document the progress of such work during the course of the project by taking photographs. |
| 7. | The provisions of this Section shall survive expiration or termination of this Lease. |
8. Notices. The Landlord notice section of paragraph 21.P. is deleted in its entirety and hereby replaced with the following:
| “If to Landlord: | Dart Container of Michigan LLC | |
| c/o Dart Interests LLC | ||
| Attn. Marsha Zimmerman | ||
| 4020 Maple Avenue, Suite 675 | ||
| Dallas, Texas 75219 | ||
| Email: mzimmerman@dartinterests. | ||
| With a copy to: | Dart Container | |
| Attn: Legal Department | ||
| 500 Hogsback Road | ||
| Mason, MI 48854” |
9. The following paragraph is hereby added to the Lease as paragraph 21.W.
“21.W. Reasonableness. If at any time Tenant believes that Landlord has not acted reasonably in granting or withholding any approval or consent under the Lease or any other document or instrument now or hereafter executed and delivered in connection therewith, as to which approval or consent either (i) Landlord has expressly agreed to act reasonably, or (ii) absent such agreement, applicable law would nonetheless require Landlord to act reasonably, then Tenant’s sole remedy shall be to seek injunctive relief or specific performance, and no action for monetary, consequential, or punitive damages shall in any event or under any circumstance be maintained by Tenant against Landlord.”
| Amendment to Lease | ||
| 32 | 8/1/2024 |
10. The following paragraph is hereby added to the Lease as paragraph 17.I.
“Legal Compliance. Tenant, at Tenant’s sole expense, promptly shall comply with all applicable statutes, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the term or any part of the term hereof, regulating the use by Tenant of the Premises, including, without limitation, the obligation at Tenant’s cost, to alter, maintain, or restore the Premises in compliance and conformation with all laws relating to the condition, use or occupancy of the Premises during the term (including, without limitation, any and all requirements as set forth in the Americans with Disabilities Act) and regardless of (i) whether such laws require structural or non-structural improvements, (ii) whether the improvements were foreseen or unforeseen, and (iii) the period of time remaining in the term. Landlord represents and warrants that as of the Commencement Date Landlord has no knowledge of any noncompliance with any applicable statutes, ordinances, rules, regulations, orders, covenants or restrictions of record, or requirements in effect during the term or any part of the term hereof, regulating the use by Tenant of the Premises that would require any structural or non-structural improvements or other modifications to the Premises, the Building, or any adjacent area.”
11. Brokers. Tenant represents and warrants that it has not dealt with any real estate broker or agent in connection with this Lease or its negotiation except Colliers West Michigan who exclusively serves as “Landlord’s Broker.” Landlord agrees to pay Landlord’s Broker a commission pursuant to separate written agreement. Each party shall indemnify and hold the other harmless from any cost, expense, or liability (including costs of suit and reasonable attorneys’ fees) for any compensation, commission or fees claimed by any other real estate broker or agent in connection with this Lease or its negotiation by liaison of any act or statement of the indemnifying party.
12. Confidentiality. Tenant acknowledges and agrees that the terms of this Amendment and the Lease are confidential and constitute proprietary information of Landlord. Disclosure of the terms could adversely affect the ability of Landlord to negotiate other leases and impair Landlord’s relationship with other tenants. Tenant agrees that it, and its partners, officers, directors, employees, agents, and attorneys, shall not intentionally and voluntarily disclose the terms and conditions of the Lease or any amendment thereto to any third party, any other tenant, or prospective tenant, of the Park, including without limitation any real estate agent, either directly or indirectly, without the prior written consent of Landlord, except to Tenant’s legal counsel and other professional advisers.
13. Other Terms Unchanged. Except as expressly amended herein, all of the terms and provisions of the Lease shall remain in full force and effect as first written and/or previously amended. The Lease is hereby ratified, confirmed and approved in all respects by the parties.
14. Authority to Bind. Each party executing this Amendment represents and warrants that the party signing on behalf of their respective entity is fully authorized and intends to bind, and does bind, their entity to the foregoing by affixing his/her signature hereto.
15. Electronic Signatures. Delivery of executed counterpart documents by facsimile transmission, Adobe Corporation’s Portable Document Format, or other electronic transmission means shall be as effective as delivery of a manually executed counterpart hereof.
16. No Default. Tenant acknowledges that, to the best of Tenant’s knowledge, Landlord is not in default under the Lease and represents and warrants to Landlord that it has no knowledge of any violations of any restrictions which bind the Leased Premises or its use. Tenant further confirms and ratifies that, as of the date hereof, (a) Tenant is in good standing and the Lease is in full force and effect, and (b) Tenant does not have any claims, counterclaims, offsets, or defenses against the Landlord arising out of the Lease or in any way relating thereto or arising out of any other transaction between Landlord and Tenant.
SIGNATURES ON NEXT PAGE
| Amendment to Lease | ||
| 33 | 8/1/2024 |
IN WITNESS WHEREOF, this Amendment is signed and made effective as of the date first written above.
| Landlord: | Tenant: | |||
| DART CONTAINER OF MICHIGAN, LLC | IONETIX CORPORATION | |||
| /s/ Chris Kelsey | /s/ Dominica Palacio | |||
| By: | Chris Kelsey | By: | Dominica Palacio | |
| Its: | Authorized Signatory | Its: | Vice President of Administration | |
| Date: | Date: 9/15/2025 |
| Amendment to Lease | ||
| 34 | 8/1/2024 |
EXHIBIT A-1
THIRD VAULT
| Amendment to Lease | ||
| 35 | 8/1/2024 |