Nebraska-Omaha-12325 Emmet Street Lease - Todd Smith and Transgenomic Inc.
================================================================================
BUSINESS PROPERTY LEASE
(Triple Net)
================================================================================
THIS LEASE is entered into this 20th day of April, 2000, between TODD
SMITH, ("Landlord") and TRANSGENOMIC, INC. ("Tenant").
PREMISES
1. Landlord leases to Tenant at 12325 Emmet Street, Omaha, Douglas
County, Nebraska, (the "Premises"), containing 17,400 usable square feet of area
as depicted by Attachment "A", on the following terms and conditions.
TERM
2. This Lease shall be for a term of eighty four (84) months beginning on
August 1, 2000 , and ending on July 31, 2007 , unless terminated earlier as
provided in this Lease.
Premises shall be delivered to Tenant to complete Tenant's work
commencing on or before April 1, 2000. If Premises are delivered to Tenant by
Landlord on any date prior to April 1, 2000, the Lease will commence upon one
hundred and twenty (120) days after such delivery of the Premises by Landlord to
Tenant in order for Tenant to complete Tenant's work. Upon delivery of Premises
to Tenant, Tenant will transfer all utilities into Tenant's name and Tenant will
pay for his pro rata share of Operating Expenses. The Lease will commence no
later than August 1, 2000.
USE OF PREMISES
3. The Premises are leased to Tenant, and are to be used by Tenant, for
the purpose of a general office and auxiliary uses consistent with City of Omaha
zoning ordinances (CC) for the Property and for no other purpose. Tenant agrees
to use the Premises in such a manner as to not interfere with the rights of
other tenants in the Real Estate, to comply with all applicable governmental
laws, ordinances, and regulations in connection with its use of the Premises, to
keep the Premises in a clean and sanitary condition, to keep the Premises and
all sidewalks and approaches thereto in a safe condition free and clear of all
matter which may be dangerous to the public and free of all obstructions, and to
use all reasonable precaution to prevent waste, damage, or injury to the
Premises.
RENT
4. (a) Base Rent. The total Base Rent under this Lease is one million,
three hundred and twenty five thousand, eight hundred and eighty dollars
($1,325,880.00). Landlord will invoice Tenant for rent due and Tenant agrees to
pay rent to Landlord at 17509 Harney Street, Omaha NE 68118, or at any other
place Landlord may designate in writing, in lawful money of the United States,
in monthly installments in advance, within five business days of first day of
each month, as follows:
For the period from 8/01/00 to 7/31/01: $10.25 per sf ($14,862.50 per month).
For the period from 8/01/01 to 7/31/02: $10.46 per sf ($15,167.00 per month).
For the period from 8/01/02 to 7/31/03: $10.66 per sf ($15,457.00 per month).
For the period from 8/01/03 to 7/31/04: $10.88 per sf ($15,776.00 per month).
For the period from 8/01/04 to 7/31/05: $11.09 per sf ($16,080.50 per month).
For the period from 8/01/05 to 7/31/06: $11.32 per sf ($16,414.00 per month).
For the period from 8/01/06 to 7/31/07: $11.54 per sf ($16,733.00 per month).
Page 1
<PAGE>
(b) OPERATING EXPENSES. In addition to the Base Rent, Tenant shall
pay its Pro Rata share of operating expenses of the real estate of which the
Premises are part, parking areas, and grounds ("Real Estate"). "Operating
expenses" shall mean all costs of maintaining and operating the Real Estate,
including but not limited to all taxes and special assessments levied upon the
Real Estate, fixtures, and personal property used by Landlord at the Real
Estate, all insurance costs, common area utilities, all costs of labor, material
and supplies for maintenance, repair, replacement, and operation of the Real
Estate, including but not limited to line painting, lighting, snow removal,
landscaping, cleaning, depreciation of machinery and equipment used for such
maintenance, repair and replacement, and management costs. Irrespective of the
preceding, during the term of the Lease. Tenant will provide, at its sole cost
and expense, the maintenance of the Common Areas including the grounds and
parking lot in a manner acceptable to Landlord. Tenant will provide the specific
Common Area services to include snow removal, routine lawn and shrubbery care
and maintenance, and routine lot and property clean-up. As long as Tenant
continues to provide those Common Area Services as described, those services and
the related expenses will not be considered a part of the Operating Expenses,
however should Landlord provide those services, such services will be considered
part of Operating Expenses. Landlord reserves the right to maintain the
Building's Common Areas if in Landlord's sole discretion, Tenant is not
maintaining the Common Areas in a manner acceptable to Landlord after Landlord
has provided Tenant written notice with ten (10) days to cure. Operating
Expenses shall not include property additions and capital improvements to the
Real Estate, alterations made for specific tenants, depreciation of the Real
Estate, any expense paid by Tenant, debt service on any debt or income taxes
paid by Landlord.
"Tenant's Pro Rata Share" shall mean the percentage determined by
dividing the square feet of the Premises as shown in paragraph 1 by the square
feet of store area of the Real Estate, as defined by the American National
Standard, published by Building Owners and Managers Association, which at the
date hereof is agreed to be 18,800 square feet.
Tenant's Pro Rata Share of the Operating Expenses shall be determined
on an annual basis for each calendar year ending December 31, and shall be pro
rated for the number of months Tenant occupied the Premises if Tenant did not
occupy the Premises the full year. Tenant shall pay $1,667.50 per month,
representing the estimated Operating Expenses for real estate taxes, insurance,
and those other expenses and services not provided by Tenant, on the first of
each month in advance with rent for Tenant's estimated pro rata share of the
Operating Expenses. Landlord may change this amount at any time upon an
accounting of actual expenses as provided for and incurred on an annual basis
upon written notice to Tenant. As the end of each year, an analysis of the
total year's Operating Expenses shall be presented to Tenant and Tenant shall
pay the amount, if any, by which the Tenant's pro rata share of the Operating
Expenses for the year exceeded the amount of the Operating Expenses paid by
Tenant. Tenant shall pay any such excess charge to the Landlord within thirty
(30) days after receiving the statement. In the event this Lease terminates at
any time other than the last day of the year, the excess Operating Expenses
shall be determined as of the date of termination. Upon termination of this
Lease, any overpayment of Operating Expenses by Tenant shall be applied to the
amounts due Landlord from Tenant under this Lease and any remaining overpayment
shall be refunded to Tenant within thirty (30) days of lease termination.
(c) PAYMENT OF RENT. Tenant agrees to pay the Base Rent when due,
together with Tenant's Operating Expenses and all other amounts as required to
be paid by Tenant under this Lease. In the event of nonpayment of any amounts
due under this Lease, whether or not designated as rent, Landlord shall have all
the rights and remedies provided in this Lease or by law for failure to pay
rent.
(d) LATE CHARGE. If the Tenant fails to pay the Base Rent together
with the Tenant's Operating Expenses and all other amounts required to be paid
by Tenant under this Lease, on or before the fifth business day of each month,
Tenant agrees to pay Landlord a late charge of five percent (5%) of the unpaid
amount or one hundred dollars ($100.00) whichever is less.
Page 2
<PAGE>
(e) SECURITY DEPOSIT. As partial consideration for the execution of
this Lease, the Tenant has delivered to Landlord the sum of $14,862.50 as a
Security Deposit. The Security Deposit will be returned to Tenant within 30
days of the expiration of this Lease if Tenant has fully complied with all
covenants and conditions of this Lease.
SERVICES
5. Landlord shall furnish No Services to the Premises during normal
business hours, and at such other times as Landlord may deem necessary or
desirable, in the manner customary to the Real Estate. Landlord shall have the
right to discontinue any service during any period for which rent is not
promptly paid by Tenant. Landlord shall not be liable for damages, nor shall
the rental be abated, for failure to furnish, or delay in furnishing, any
service when failure to furnish, or delay in furnishing, is occasioned in whole
or in part by needful repairs, renewals, or improvements, or by any strike or
labor controversy, or by any accident or casualty whatsoever, or by any
unauthorized act or default of any employee of Landlord, or for any other cause
or causes beyond the control of Landlord. Tenant shall pay when due, all water,
gas, electricity, sewer use fees, incurred at or chargeable to the Premises.
ASSIGNMENT OR SUBLEASE
6. Tenant shall not assign this Lease or sublet the whole or any part of
the Premises, transfer this Lease by operation of law or otherwise, or permit
any other person except agents, subsidiaries, affiliates and employees of Tenant
to occupy the Premises, or any part thereof, without the prior written consent
of Landlord, as long as such use by an affiliate or subsidiary is consistent
with this lease. Landlord may consider the following in determining whether to
withhold consent: (a) financial responsibility of the new tenant, (b) identity
and business character of the new tenant, (c) nature and legality of the
proposed use of the Premises.
Landlord shall have the right to assign its interest under this Lease
or the rent reserved hereunder.
TENANT'S IMPROVEMENTS
7. Tenant shall have the right to place partitions and fixtures and make
improvements or other alterations in the interior of the Premises at its own
expense. Prior to commencing any such work, Tenant shall first obtain the
written consent of Landlord for the proposed work. Tenant shall give sufficient
security that the Premises will be completed free and clean of liens and in a
manner satisfactory to Landlord. Tenant may remove its trade fixtures at the
termination of this Lease provided Tenant is not then in default and provided
further that Tenant repairs any damage caused by such removal.
Notwithstanding the foregoing, Landlord shall provide to Tenant the
sum of three hundred thousand dollars ($300,000) towards Tenant's improvements
to the Premises, upon the satisfactory evidence of completion of Tenant's work
payable monthly upon receipt of invoices from Transgenomic.
REPAIRS
8. Landlord agrees to maintain in good condition, and repair as necessary
the foundations, exterior walls and the roof of the Premises.
Tenant agrees that it will make, at its own cost and expense, all
repairs and replacements to the Premises not required to be made by Landlord,
including, but not limited to, all interior and exterior
Page 3
<PAGE>
doors, door frames, windows, plate glass, and the heating, air conditioning,
plumbing and electrical systems servicing the Premises. Tenant agrees to do all
redecorating, remodeling, alteration, and painting required by it during the
term of the Lease at its own cost and expense, to pay for any repairs to the
Premises or the Real Estate made necessary by any negligence or carelessness of
Tenant or any of its agents or employees or persons permitted on the Real Estate
by Tenant, and to maintain the Premises in a safe, clean, neat, and sanitary
condition. Tenant shall be entitled to no compensation for inconvenience,
injury, or loss of business arising from the making of any repairs by Landlord,
Tenant, or other tenants to the Premises or the Real Estate.
CONDITION OF PREMISES
9. Except as provided herein, Tenant agrees that no promises,
representations, statements, or warranties have been made on behalf of Landlord
to Tenant respecting the condition of the Premises, or the manner of operating
the Real Estate, or the making of any repairs to the Premises. By taking
possession of the Premises, Tenant acknowledges that the Premises were in good
and satisfactory condition when possession was taken. Tenant shall, at the
termination of this Lease, by lapse of time or otherwise, remove all of Tenant's
property and surrender the Premises to Landlord in as good condition as when
Tenant took possession, normal wear excepted. Not withstanding the foregoing,
Landlord shall have the heating, air conditioning, plumbing, and electrical
systems inspected prior to Tenant's occupancy and such systems shall be in good
working order at the time of possession.
PERSONAL PROPERTY AT RISK OF TENANT
10. All personal property in the Premises shall be at the risk of Tenant
only. Landlord shall not be liable for any damage to any property of Tenant or
its agents or employees in or on the Premises caused by steam, electricity,
sewage, gas or odors, or from water, rain, or snow which may leak into, issue or
flow into the Premises from any part of the Real Estate, or from any other
place, or for any damage done to Tenant's property in moving same to or from the
Real Estate or the Premises. Tenant shall give Landlord, or its agents, prompt
written notice of any damage to or defects in water pipes, gas or warming or
cooling apparatus in the Premises.
LANDLORD'S RESERVED RIGHTS
11. With one day notice to Tenant, without liability to Tenant for damages
or injury to property, person, or business, and without effecting an eviction of
Tenant or a disturbance of Tenant's use or possession or giving rise to any
claim for setoff or abatement of rent, Landlord shall have the right to:
(a) Change the name or street address of the Real Estate with 30 days
prior written notice.
(b) Install and maintain signs on the Real Estate during the last
nine months of occupancy.
(c) At reasonable times, to decorate, and to make, at its own
expense, repairs, alterations, additions, and improvements, structural or
otherwise, in or to the Premises, the Real Estate, or part thereof, and any
adjacent building, land, street, or alley, and during such operations to take
into and through the Premises or any part of the Real Estate all materials
required, and to temporarily close or suspend operation of entrances, doors,
corridors, elevator, or other facilities to do so.
(d) Possess passkeys to the Premises.
(e) Show the Premises to prospective tenants at reasonable times
during the final 9 months of the lease term..
Page 4
<PAGE>
(f) Take any and all reasonable measures, including inspections or
the making of repairs, alterations, and additions and improvements to the
Premises or to the Real Estate, which Landlord deems necessary or desirable for
the safety, protection, operation, or preservation of the Premises or the Real
Estate.
(g) Approve all sources furnishing signs, painting, and/or lettering
to the Premises, and approve all signs on the Premises prior to installation
thereof, which such approval shall not be unreasonably withheld..
INSURANCE
12. Tenant shall not use or occupy the Premises or any part thereof in any
manner which could invalidate any policies of insurance now or hereafter placed
on the Real Estate or increase the risk covered by insurance on the Real Estate
or necessitate additional insurance premiums or policies of insurance, even if
such use may be in furtherance of Tenant's business purposes. In the event any
policies of insurance are invalidated by acts or omissions of Tenant, Landlord
shall have the right to terminate this Lease or, at Landlord's option, to charge
Tenant for extra insurance premiums required on the Real Estate on account of
the increased risk caused by Tenant's use and occupancy of the Premises. Each
party hereby waives all claims for recovery from the other for any loss or
damage to any of its property insured under valid and collectible insurance
policies to the extent of any recovery collectible under such policies.
Provided, that this waiver shall apply only when permitted by the applicable
policy of insurance.
INDEMNITY
13. Tenant shall indemnify, hold harmless, and defend Landlord from and
against, and Landlord shall not be liable to Tenant on account of, any and all
costs, expenses, liabilities, losses, damages, suits, actions, fines, penalties,
demands, or claims of any kind, including reasonable attorney's fees, asserted
by or on behalf of any person, entity, or governmental authority arising out of
or in any way connected with either (a) a failure by Tenant to perform any of
the agreements, terms, or conditions of this Lease required to be performed by
Tenant; (b) a failure by Tenant to comply with any laws, statutes, ordinances,
regulations or orders of any governmental authority; or (c) any accident, death,
or personal injury, or damage to, or loss or theft of property which shall occur
on or about the Premises, or the Real Estate, except as the same may be the
result of the negligence of Landlord, its employees, or agents.
Landlord shall indemnify, hold harmless, and defend Tenant
from and against, and Tenant shall not be liable to Landlord on account of,
any and all costs, expenses, liabilities, losses, damages, suits, actions,
fines, penalties, demands, or claims of any kind, including reasonable
attorney's fees, asserted by or on behalf of any person, entity, or
governmental authority arising out of or in any way connected with either (a)
a failure by Landlord to perform any of the agreements, terms, or conditions
of this Lease required to be performed by Landlord; (b) a failure by Landlord
to comply with any laws, statutes, ordinances, regulations or orders of any
governmental authority; or (c) any accident, death, or personal injury, or
damage to, or loss or theft of property which shall occur on or about the
Premises, or the Real Estate, except as the same may be the result of the
negligence of Tenant, its employees, or agents.
LIABILITY INSURANCE
14. Tenant agrees to procure and maintain continuously during the entire
term of this Lease, a policy or policies of insurance in a company or companies
acceptable to Landlord, at Tenant's own cost and expense, insuring Landlord and
Tenant from all claims, demands or actions: such comprehensive insurance shall
protect and name the Tenant as the Insured and shall provide coverage of at
least $2,000,000, for injuries to any one person, $2,000,000 for injuries to
persons in any one accident and
Page 5
<PAGE>
$2,000,000 for damage to property, made by or on behalf of any person or
persons, firm or corporation arising from, related to, or connected with the
conduct and operation of Tenant's business in the Premises, or arising out of
and connected with the use and occupancy of sidewalks and other Common Areas by
the Tenant. All such insurance shall provide that Landlord shall be given a
minimum of ten (10) days notice by the insurance company prior to cancellation,
termination or change of such insurance. Tenant shall provide Landlord with
copies of the policies or certificates evidencing that such insurance is in full
force and effect and stating the term and provisions thereof. If Tenant fails
to comply with such requirements for insurance, Landlord may, but shall not be
obligated to, obtain such insurance and keep the same in effect, and Tenant
agrees to pay Landlord, upon demand, the premium cost thereof.
DAMAGE BY FIRE OR OTHER CASUALTY
15. If, during the term of this Lease, the Premises shall be so damaged by
fire or any other cause except Tenant's negligent or intentional act so as to
render the Premises untenantable, the rent shall be abated while the Premises
remain untenantable; and in the event of such damage, Landlord shall elect
whether to repair the Premises or to cancel this Lease, and shall notify Tenant
in writing of its election within thirty (30) days after such damage. In the
event Landlord elects to repair the Premises, the work or repair shall begin
promptly and shall be carried on without unnecessary delay. In the event the
necessary repairs cannot be completed within seventy-five (75) days of said
notice to Tenant, Tenant may elect to terminate this lease, effective upon the
date of damage. In the event Landlord elects not to repair the Premises, the
Lease shall be deemed canceled as of the date of the damage Tenant shall be
liable for no further payments, and any amounts due Tenant shall be refunded.
Such damage shall not extend the Lease term.
CONDEMNATION
16. If the whole or any part of the Premises shall be taken by public
authority under the power of eminent domain, then the term of this Lease shall
cease on that portion of the Premises so taken, from the date of possession, and
the rent shall be paid to that date, with a proportionate refund by Landlord to
Tenant of such rent as may have been paid by Tenant in advance. If the portion
of the Premises taken is such that it prevents the practical use of the Premises
for Tenant's purposes, then Tenant shall have the right either (a) to terminate
this Lease by giving written notice of such termination to Landlord not later
than thirty (30) days after the taking; or (b) to continue in possession of the
remainder of the Premises, except that the rent shall be reduced in proportion
to the area of the Premises taken. In the event of any taking or condemnation
of the Premises, in whole or in part, the entire resulting award of damages
shall be the exclusive property of the Landlord, including all damages awarded
as compensation for diminution in value to the leasehold, without any deduction
for the value of any unexpired term of this Lease, or for any other estate or
interest in the Premises now or hereafter vested in Tenant.
DEFAULT OR BREACH
17. Each of the following events shall constitute a default or a breach of
this Lease by Tenant:
(a) If Tenant fails to pay Landlord any rent or other payments when
due herein under;
(b) If Tenant files a petition in bankruptcy or insolvency or for
reorganization under any bankruptcy act, or voluntarily takes advantage of any
such act by answer or otherwise, or makes an assignment for the benefit of
creditors;
(c) If involuntary proceedings under any bankruptcy or insolvency act
shall be instituted against Tenant, or if a receiver or trustee shall be
appointed of all or substantially all of the property of
Page 6
<PAGE>
Tenant, and such proceedings shall not be dismissed or the receivership or
trusteeship vacated within thirty (30) days after the institution or
appointment; or
(d) If Tenant fails to perform or comply with any other term or
condition of this Lease and if such nonperformance shall continue for a period
of ten (10) days after notice thereof by Landlord to Tenant, time being of the
essence.
EFFECT OF DEFAULT
18. In the event of any default or breach hereunder, in addition to any
other right or remedy available to Landlord, either at law or in equity,
Landlord may exert any one or more of the following rights provided, however,
that Landlord shall use all reasonable effort to relet the Premises to another
party:
(a) Landlord may re-enter the Premises immediately and remove the
property and personnel of Tenant, and shall have the right, but not the
obligation, to store such property in a public warehouse or at a place selected
by Landlord, at the risk and expense of Tenant.
(b) Landlord may retake the Premises and may terminate this Lease by
giving written notice of termination to Tenant. Without such notice, Landlord's
retaking will not terminate the Lease. On termination, Landlord may recover
from Tenant all damages approximately resulting from the breach, including the
cost of recovering the Premises and the difference between the rent due for the
balance of the Lease term, as though the Lease had not been terminated, and the
reasonable rental value of the Premises, which sum shall be immediately due
Landlord from Tenant.
(c) Landlord may relet the Premises or any part thereof for any term
without terminating this Lease, at such rent and on such terms as it may choose.
Landlord may make alterations and repairs to the Premises. In addition to
Tenant's liability to Landlord for breach of this Lease, Tenant shall be liable
for all expenses of the reletting, for any alterations and repairs made, and for
the rent due for the balance of the Lease term, which sum shall be immediately
due Landlord from Tenant. The amount due Landlord will be reduced by the net
rent received by Landlord during the remaining term of this Lease from reletting
the Premises or any part thereof. If during the remaining term of this Lease,
Landlord receives more than the amount due Landlord under this sub-paragraph,
the Landlord shall pay such excess to Tenant, but only to the extent Tenant has
actually made payment pursuant to this sub-paragraph.
SURRENDER - HOLDING OVER
19. Tenant shall, upon termination of this Lease, whether by lapse of time
or otherwise, peaceably and promptly surrender the Premises to Landlord. If
Tenant remains in possession after the termination of this Lease, without a
written lease duly executed by the parties, Tenant shall be deemed a trespasser.
If Tenant pays, and Landlord accepts, rent for a period after termination of
this Lease, Tenant shall be deemed to be occupying the Premises only as a Tenant
from month to month, subject to all the terms, conditions, and agreements of
this Lease, except that the rent shall be one and one-half times the monthly
rent specified in the lease immediately before termination.
SUBORDINATION AND ATTORNMENT
20. Landlord reserves the right to place liens and encumbrances on the
Premises superior in lien and effect to this Lease. This Lease, and all rights
of Tenant hereunder, shall, at the option of Landlord, be subject and
subordinate to any liens and encumbrances now or hereafter imposed by Landlord
upon the Premises or the Real Estate or any part thereof, and Tenant agrees to
execute, acknowledge, and deliver to
Page 7
<PAGE>
Landlord, upon request, any and all instruments that may be necessary or proper
to subordinate this Lease and all rights herein to any such lien or encumbrance
as may be required by Landlord.
In the event any proceedings are brought for the foreclosure of any
mortgage on the Premises, Tenant will attorn to the purchaser at the foreclosure
sale and recognize such purchaser as the Landlord under this Lease. The
purchaser by virtue of such foreclosure shall be deemed to have assumed, as
substitute Landlord, the terms and conditions of this Lease until the resale or
other disposition of its interest. Such assumption, however, shall not be
deemed an acknowledgment by the purchaser of the validity of any then existing
claims of Tenant against the prior Landlord.
Tenant agrees to execute and deliver such further assurances and other
documents, including a new Lease upon the same terms and conditions contained
herein, confirming the foregoing, as such purchaser may reasonably request.
Tenant waives any right of election to terminate this Lease because of any such
foreclosure proceedings.
NOTICES
21. Any notice to be given hereunder shall be given in writing and
personally delivered or sent by registered or certified mail to Landlord at
17509 Harney Street, Omaha Nebraska, 68118, Attention Todd Smith and to Tenant
at 12325 Emmet Street, Omaha, Nebraska 68154 or at such other address as either
party may from time to time designate in writing. Each such notice shall be
deemed to have been given at the time it shall be personally delivered to such
address or deposited in the United States mail in the manner prescribed herein.
RULES AND REGULATIONS
22. Tenant and Tenant's agents, employees and invitees shall fully comply
with all rules and regulations of the Real Estate, as amended from time to time,
which are made a part of this Lease as if fully set forth herein. Landlord
shall have the right to amend such rules and regulations, as Landlord deems
necessary or desirable for the safety, care, cleanliness, or proper operation of
the Premises and the Real Estate.
NET LEASE
23. This is a net-net-net Lease and all parties agree and understand that
Tenant shall pay Tenant's proportionate share of the real estate taxes, special
assessments, insurance and all other Operating Expenses as described in
subparagraph 4.b of this Lease.
MISCELLANEOUS
24. (a) BINDING ON ASSIGNS. All terms, conditions, and agreements of
this Lease shall be binding upon, apply, and inure to the benefit of the parties
hereto and their respective heirs, representatives, successors, and assigns.
(b) AMENDMENT IN WRITING. This Lease contains the entire agreement
between the parties and may be amended only by subsequent written agreement.
(c) WAIVER-NONE. The failure of Landlord to insist upon strict
performance of any of the terms, conditions and agreements of this Lease shall
not be deemed a waiver of any of its rights or remedies hereunder and shall not
be deemed a waiver of any subsequent breach or default of any of such terms,
conditions, and agreements. The doing of anything by Landlord which Landlord is
not obligated to
Page 8
<PAGE>
do hereunder shall not impose any future obligation on Landlord nor otherwise
amend any provisions of this Lease.
(d) NO SURRENDER. No surrender of the Premises by Tenant shall be
effected by Landlord's acceptance of the keys to the Premises or of the rent due
hereunder, or by any other means whatsoever, without Landlord's written
acknowledgment that such acceptance constitutes a surrender.
(e) CAPTIONS. The captions of the various paragraphs in this Lease
are for convenience only and do not define, limit, describe, or construe the
contents of such paragraphs.
(f) BROKERS. Landlord has been represented in this transaction by
Grubb & Ellis/Pacific Realty. Tenant has been represented in this transaction by
the P. J. Morgan Company.
(g) APPLICABLE LAW. This Lease shall be governed by and construed in
accordance with the laws of the State of Nebraska.
ADDITIONAL PROVISIONS
25. ADDITIONAL SPACE: Tenant will lease the approximately 1,400 usable
square feet now occupied, on or before August 1, 2001. Additional Space will be
leased at the same terms and conditions as the initial leased Premises as
defined in this lease. Landlord shall provide to Tenant the sum of twenty
thousand dollars ($20,000) towards Tenant improvements of the Additional Space,
upon the satisfactory evidence of completion of Tenant's work.
26. RIGHT OF FIRST REFUSAL: During the term of this lease, Landlord
grants to Tenant a "Right of First Refusal" to purchase the Property in total.
Tenant will have five (5) business days to respond to all bonafide offers.
27. SIGNAGE: Tenant, at its sole cost and expense, shall be permitted
to install signage on the north fascia of the Property in accordance with all
applicable city codes and regulations. All signage shall require the prior
written approval of Landlord, with such approval not to be unreasonably
withheld.
OPTION TO EXTEND TERM
28. Tenant shall have two (2) options to renew this lease and lease of
Additional Space of 1,400 square feet by providing landlord with nine (9) months
prior written notice. Each option shall be for a term of five (5) years. The
rental rate for the first option will be $10.25 per usable square foot, plus
Operating Expenses. The rental rate for the second option will be negotiated at
the time of the renewal. Both option rental rates will include an annual rental
rate escalation equal to two (2) percent per year over the preceding year.
Until this Lease is executed on behalf of all parties hereto, it shall
be construed as an offer to lease of Tenant to Landlord.
Page 9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Lease by day
and year first above written.
LANDLORD: TODD SMITH
/s/ Todd Smith
---------------------------------
By: Todd Smith
------------------------------
TENANT: TRANSGENOMIC, INC.
/s/ William P. Rasmussen
---------------------------------
By: William P. Rasmussen
------------------------------
Title: Chief Financial Officer
---------------------------
Page 10
<PAGE>
RULES AND REGULATIONS
A. The Tenant, shall not place nor permit to be placed any signs,
advertisements or notices upon any part of the Building, and shall not place
merchandise or show-cases in front of the Building, without the Landlord's
written consent, such consent not to be unreasonably withheld.
B. The Tenant shall not put up nor operate any boiler of any kind, nor
place any explosive therein, nor have over a five gallon quantity of any
kerosene or oils or burning fluids in the Premises without first obtaining the
written consent of the Landlord, such consent by Landlord not to be unreasonably
withheld.
C. If the Tenant desires telegraphic or telephonic connections, the
Landlord will direct the electricians as to where and how the wires are to be
introduced, and without such written directions no boring or cutting for wires
will be permitted.
D. No additional locks shall be placed upon any doors of the Premises
without first obtaining the written consent of the Landlord. Upon termination
of this lease the Tenant shall surrender all keys of said Premises and of the
Building, and shall give to the Landlord the combination of all locks on any
vaults and safes.
E. The Landlord shall have the right to make such other and further
reasonable rules and regulations as, in the judgment of the Landlord, may from
time to time be needed for the safety, care and cleanliness and general
appearance of the Premises and for the preservation of good order therein.
Page 11