Attached files
EXHIBIT 10.41
LEASE
THIS
LEASE AGREEMENT (“Lease”), is made and entered into, by and between
Miles/Commerce Ltd., an Ohio limited liability company (hereinafter called
“Landlord”) and Affymetrix, Inc., a Delaware corporation (hereinafter called
“Tenant”), to be effective as of April 1, 2010.
WITNESSETH
Landlord,
in consideration of the rents and covenants herein stipulated to be paid and
performed by the Tenant, hereby agrees to let and lease to Tenant, and Tenant
hereby agrees to lease from Landlord upon and subject to the terms, covenants
and conditions herein contained, the premises (the “Premises”), consisting of
approximately 24,720 square feet in that certain building (the “Building”)
commonly known as 26101 Miles Road, the same being situated in the City of
Warrensville Heights, County of Cuyahoga and State of Ohio, as more fully
described on Exhibit A attached hereto and made a part hereof (the
“Site”). The Premises include the space currently occupied by Tenant,
which run from the interior of the eastern wall of the building to the interior
wall separating the Premises from the space currently leased by Gotham Staple
(the “Gotham Space”).
1. TERM.
(a) The
“Commencement Date” of the term of this lease shall be April 1,
2010.
(b) Landlord
and Tenant acknowledge and agree that Tenant currently occupies the Premises
pursuant to that certain Lease entered into between Landlord and USB
Corporation, an Ohio corporation, as of April 1, 2000 as amended by that certain
Addendum between the parties thereto dated September 14, 2004 (as amended, the
“Existing Lease”).
(c) The
term of this Lease shall be for a period of five (5) years beginning with the
“Commencement Date” and ending on March 31, 2015.
2. RENT.
(a) Tenant’s
obligations to pay rent, and additional charges shall begin on the Commencement
Date as hereinabove defined.
(b) Tenant
agrees without demand and without any deduction or setoff to pay to the Landlord
at Landlord’s office located at c/o Champa & Company, Inc., 4225 Mayfield
Rd., South Euclid, Ohio 44121. or such place as Landlord may from time to time
designate in writing, as and for rent until March 31, 2015, the annual sum of
Ninety Three Thousand Nine Hundred Thirty-Six Dollars ($93,936) payable in
monthly installments of Seven Thousand Eight Hundred Twenty-Eight Dollars
($7,828) in advance upon the first day of each and every calendar
month. The rent payable for any portion less than all of a calendar
month shall be a pro rata portion of the payment due for the full calendar
month.
3. ADDITIONAL
CHARGES.
(a) It
is the purpose and intent of Landlord and Tenant that the rent herein specified
shall be absolutely “net-net-net” to Landlord, so that this Lease shall yield to
Landlord, net of any and all costs and expenses of the Premises unless
specifically excluded under this Section or Section 9(c), the rent specified in
Paragraph 2(b) above, or, during any renewal term, the rent specified in
Paragraph 6. Accordingly, Tenant agrees to assume and pay in addition
to the rent, all costs, expenses and obligations of every kind and nature
whatsoever relating to the Premises which may arise or become due during the
initial term and any renewal term of this Lease, except municipal, state and
federal income taxes assessed against Landlord to the extent specified in
Paragraph 3(B) below. Without limitation as to the generality of the
foregoing, within ten (10) business days following Landlord’s written invoice,
Tenant shall pay to Landlord Tenant’s Share of (i) all real estate taxes and
assessments with respect to the Premises, all reasonable costs and fees incurred
in contesting same and/or negotiating with public authorities, the amount of any
tax or excise tax on rent or on any service or services furnished under this
Lease, (ii) all charges for snow removal and landscaping, (iii) the cost of all
insurance required hereunder, and (iv) the cost of any and all repairs,
replacements and alterations, to the Buildings and the Premises described in
Section 9(c)(ii). Tenant shall pay directly to the applicable utility
provider the cost of all utility charges for gas, fuel, light, electricity,
power, heat, water, sewerage and other utilities serving the
Premises. In addition, Tenant shall pay the cost of janitorial
services to the Premises and all other operating and maintenance expenses
pertaining to the Premises and its use and occupancy
hereunder. Tenant by these presents indemnifies and saves harmless
Landlord from and against all loss, cost, damage and/or expense (including
reasonable attorneys’ fees) incurred as a result of Tenant’s default of its
obligations hereunder. Upon the expiration of the term or of the
extended term hereof, all such costs and expenses which Tenant is required to
pay hereunder shall be equitably apportioned and paid to the time of such
termination.
(i) Tenant
may contest in good faith, by appropriate proceedings at its own expense, any
real estate taxes or assessments, provided that Tenant shall first have paid
such item, unless Landlord agrees that the payment of such item is to be
postponed during the contest. Nothing herein contained, however,
shall release Tenant of the obligation and duty to pay and discharge such
contested item or items as finally adjudicated, with interest and penalties, and
all other charges directed to be paid in or by any such
adjudication. Any such contest or legal proceedings shall be begun by
Tenant as soon as reasonably possible after the imposition of any contested item
and shall be prosecuted to final adjudication with all reasonable promptness and
dispatch; provided, however, that Tenant may, in its discretion, consolidate any
proceeding to obtain a reduction in the assessed valuation of the Premises for
tax purposes relating to any tax year with any similar proceeding or proceedings
relating to one or more other tax years. Anything to the contrary
herein notwithstanding, Tenant shall pay all such contested items before the
time when the Premises or any part thereof might be forfeited as a result of
nonpayment.
(b) Nothing
herein contained shall require Tenant to pay any municipal, state or federal
income taxes assessed against Landlord’s receipt of any rental income herein;
provided, however, that if at any time during the term of this Lease or the
extended term hereof, the method of taxation prevailing at the commencement of
the term hereof shall be altered so as to cause the whole or any part of the
taxes, assessments or impositions now or hereafter levied, assessed or imposed
on real estate and the improvements thereon to be levied, assessed and imposed,
wholly or partially, as a capital levy, or otherwise, on the rents received
therefrom, or if any tax, assessment, levy, imposition or charge, or any part
thereof, shall be measured by or based in whole or in part upon the Premises and
shall be imposed upon Landlord, then in that event all such taxes, assessments,
levies, impositions and/or charges so measured or based shall be deemed to be
included within the term taxes for the purposes of Paragraph 3(a) next above and
shall be paid and discharged by Tenant the same as herein provided in respect to
the payment of real estate taxes and assessments.
(c) Landlord
shall have the right, but not the obligation, after notice to Tenant to pay, for
the account of Tenant, any items not paid by Tenant hereunder when due
(including, without limitation, real estate taxes and assessments and insurance
premiums), and shall be entitled to reimbursement from Tenant
within ten (10) business days after written invoice with respect to
all such payments, together with interest from the dates of such payments to the
date of actual reimbursement by Tenant, at the prime rate of interest as
published by the Wall
Street Journal on the date such payment is
due. Notwithstanding the imposition and/or payment of an interest
charge, non-payment of any rent or other charges due hereunder shall continue to
constitute a default of this Lease.
(d) Tenant
shall be responsible for and pay before delinquency all municipal, county, state
or federal taxes assessed during the term of this Lease against any personal
property of any kind owned or used by or placed in, upon or about the premises
by Tenant.
4. CONDITION
OF PREMISES.
The
Landlord makes no representations or warranties with respect to the Premises or
the physical condition thereof unless expressly stated in this
Lease.
5. USE.
(a) Tenant
covenants that the Premises shall be used exclusively for the business of
distributing, marketing and manufacturing of life science products and services
and no other use unless Tenant has first obtained Landlord’s prior written
consent, which consent shall not be unreasonably withheld or
delayed.
(b) Tenant,
at Tenant’s sole cost and expense, shall obtain all permits and licenses
required by any governmental authority for use of the Premises and for the
conduct of Tenant’s business, and Tenant shall operate its business in the
Premises in accordance with all applicable laws, statutes, ordinances, rules and
regulations promulgated by all governmental authorities and agencies having
jurisdiction over the Premises or Tenant’s business. Tenant shall not do, nor
permit to be done, anything which will invalidate or increase the cost of any
insurance policy covering the Building or property located therein, unless
Tenant pays for such increase; provided, however, that any consent required
under Section 5(a) has been obtained.
6. RENEWALS;
HOLDOVER; AND RIGHT OF FIRST REFUSAL ON ADJACENT SPACE.
(a) Tenant
shall have an option to extend the term of this Lease for two (2) additional
consecutive period(s) of five (5) years each, commencing on the expiration of
the initial term or the first extension term (as applicable), upon the same
terms and conditions, except rental which shall be agreed upon pursuant to
Section 6(b), provided that at the time of such renewal Tenant is not in default
beyond notice and cure periods under any of the terms and provisions of this
Lease and provided further that Tenant has delivered written notice to Landlord
of its intention to renew this Lease at least six (6) months (the “Renewal
Date”) prior to its expiration. If the parties do not negotiate a
mutually acceptable rental rate for the renewal term prior to the Renewal Date,
Tenant shall not have the right to exercise the renewal
option. Tenant may exercise the second renewal option only if it has
exercised the first renewal option in accordance with this
paragraph. If Tenant gives notice of its exercise of the option set
forth herein, Tenant shall execute and deliver, within thirty (30) days after
Tenant’s receipt from Landlord, an amendment to this Lease, providing that the
term shall be extended and stating the rental rate for the renewal
term.
(b) The
annual rental during such renewal shall be as negotiated by the parties.
(c)In lieu of exercising its
first or second renewal option, as applicable, under Section 6(a), Tenant shall
have the option to elect to holdover for a period of either six (6), twelve (12)
or eighteen (18) months, commencing on the expiration of the initial term or any
renewal term, upon the same terms and conditions, except that base rental shall
be one and one-half (1.5) times the rent due under this Lease, provided that
Tenant is not in default beyond notice and cure periods under any of the terms
and provisions of this Lease and provided further that Tenant has delivered
written notice to Landlord of its intention to holdover for the six (6), twelve
(12) or eighteen (18) month period it designates at least six (6) months prior
to the expiration of the initial or renewal term, as applicable.
(d) In
the event that Landlord desires to lease the Gotham Space other than to Gotham
Staple or a successor, the Landlord shall notify the Tenant in writing (the
“Right of First Refusal Notice”) of the Landlord’s intention to rent the Right
of First Refusal Space to a third party, whereupon the Tenant shall have a
period of thirty (30) days following the Right of First Refusal Notice in which
to notify Landlord that Tenant desires to lease the Right of First Refusal Space
on the same terms and conditions as this Lease including a rental of
$3.80 per square foot. If the Tenant does not respond to the Right of
First Refusal Notice within thirty (30) days of the Right of First Refusal
Notice or enter into a lease for the Right of First Refusal Space within sixty
(60) days of the Right of First Refusal Notice, the Landlord shall thereafter
have the right to lease the Right of First Refusal Space to a third
party.
7. UTILITY
INTERRUPTIONS.
Landlord
shall not be liable for any interruption of utility services nor shall any of
Tenant’s obligations under this Lease be affected by any such interruption of
utility services.
8. ALTERATIONS,
INSTALLATIONS AND REMOVAL OF IMPROVEMENTS BY TENANT.
(a) Tenant
shall have the right during the continuance of this Lease to make such interior
alterations, changes and improvements to the Premises as may be proper or useful
for the conduct of Tenant’s business and for the full beneficial use of the
Premises, provided Tenant shall pay all costs and expenses thereof and make such
alterations, changes and improvements in a good and workmanlike manner, using
only labor which is compatible with other labor being used in the
Building. Tenant agrees, at the expiration or other termination of
the Lease, if requested by Landlord, to remove any such alterations, changes
and/or improvements made by Tenant and to repair any damage to the Premises
caused by such removal. Notwithstanding the above, any alterations,
changes or improvements to or affecting the structure or exterior of the
Premises or which change the front or the character of the Premises shall
require Landlord’s prior written consent which shall not be unreasonably
withheld.
(i) Tenant
further agrees, at the expiration or other termination of the Lease, if
requested by Landlord, to remove any alterations, changes and/or improvements to
the Premises made by Tenant’s predecessors-in-interest Amersham Pharmacia
Biotech, Inc. (“APB”) and USB Corporation (“USB”) under any prior lease
agreement and to repair any damage to the Premises caused by such
removal. Notwithstanding the foregoing, Tenant shall not be obligated
to expend more than Two Hundred Fifty Thousand Dollars ($250,000.00) (the
“Expense Cap”) to cause the Premises to be surrendered under this Lease,
including the removal of all alterations, changes and/or improvements,
restoration and repair of any damage caused by the removal of any
alterations, changes and/or improvements as made by APB or USB or
Tenant.
(ii) Prior
to the making of such alterations, changes and improvements, Tenant shall
procure all necessary permits and shall comply with the terms and provisions of
Ohio’s Mechanic’s Lien Statute, including, but not limited to, the filing of a
“Notice of Commencement,” as such term is defined in said
statute. Tenant hereby completely and fully indemnifies Landlord
against any Mechanic’s Lien or other lien, encumbrance or claims in connection
with any construction by Tenant or the subsequent making of any alterations,
changes and improvements by Tenant and will within thirty (30) days after notice
from Landlord bond or discharge any such lien. Nothing in this Lease
contained shall be construed as a consent on the part of the Landlord to subject
Landlord’s estate in the Premises to any lien or liability under any law
relating to liens.
(b) Except
as otherwise provided, all signs, furnishings, trade fixtures, personal property
and other equipment installed in the Premises by Tenant and paid for by Tenant
and that may be removed without structural injury to the Premises (“Tenant’s
Property”) shall remain the property of Tenant and may be removed by
Tenant upon the termination of this Lease. Tenant shall repair any
damage caused by such removal, it being understood that any damage related to
the removal of Tenant’s Property which is not requested by Landlord pursuant to
Section 8(a)(i) shall not be subject to the Expense
Cap Notwithstanding the foregoing but subject to Tenant’s right to
perform alterations during the Lease term, all light fixtures, and the complete
electrical, plumbing, air-conditioning and heating systems, including ducts,
diffusers, grills, controls and all other equipment and parts related to such
systems, shall be and remain in the Premises at all times for the benefit of
Landlord.
9. MAINTENANCE
AND OPERATION.
(a) Tenant
agrees that, at its own expense, it will comply with all appropriate laws,
ordinances, orders, rules, regulations and requirements of all federal, state
and municipal governments having jurisdiction over the Premises, Building, Site
or Tenant’s business, and appropriate departments and commissions thereof
including, but not limited to, the Occupational Safety and Health Act and any
and all federal, state and local environmental laws; provided, however, that
Tenant shall have the right, but not the duty, to contest by appropriate legal
proceedings, in the name of Tenant without cost or expense to Landlord, the
validity of any such laws, ordinances, orders, rules, regulations and
requirements.
(i) For
purposes of this Section 9, “Hazardous Substance” means any matter giving rise
to liability under the Resource Conservation and Recovery Act (“RCRA”), 42
U.S.C. Section 6901 et seq., the
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”),
42 U.S.C. Sections 9601 et seq. (including the
so-called “SARA” amendments thereto), Chapters 3734 and 3745 of the Ohio Revised
Code (“ORC”), any other applicable federal, state or local statute, law,
ordinance, rule or regulation governing or pertaining to any hazardous
substances, hazardous wastes, chemicals or other materials, including without
limitation asbestos, polychlorinated biphanyls, radon, petroleum and any
derivative thereof, or the storage, release, generation, treatment or
transportation thereof (collectively referred to as “ENVLAW”) or any common law
theory based on nuisance or strict liability.
(ii) Tenant
shall not allow Hazardous Substances to be located on the Premises in
contravention of any applicable law, rule or ordinance, nor shall Tenant conduct
or authorize the use, generation, transportation, storage, treatment or disposal
at the Premises of any Hazardous Substances in contravention of any applicable
law, rule or ordinance.
(iii) If,
as a result of Tenant’s use and occupancy of the Premises, the presence,
release, threat of release, placement on or in the Premises, or the use,
generation, transportation, storage, treatment, or disposal at the Premises of
any Hazardous Substances: (i) gives rise to liability (including, but not
limited to, a response action, remedial action, or removal action) under RCRA,
CERCLA, ORC, ENVLAW or any common law theory based on nuisance or strict
liability, (ii) causes a significant public health effect, or (iii) pollutes or
threatens to pollute the environment, Tenant shall promptly take any and all
remedial and removal action or other action necessary to clean up the Premises
and mitigate exposure to liability arising from the Hazardous Substances, as
required by law, rule, ordinance, or any order or directive of a governmental
authority, agency or court of competent jurisdiction.
(iv) Tenant
shall indemnify, defend and hold harmless Landlord from and against all damages,
claims, costs, losses and expenses (including but not limited to, actual
attorneys’ fees and engineering fees) arising from or attributable to (i) the
existence of any Hazardous Substances at the Premises as a result of Tenant’s
use and occupancy of the Premises, and (ii) any breach by Tenant of any of its
covenants contained in this paragraph.
(v) Tenant
will promptly disclose to Landlord by delivering, in the manner prescribed for
delivery of notice in the Lease, a copy of any forms, submissions, notices,
reports, or other written documentation (Communications) relating to the
presence of any hazardous substance in or about the Premises in violation of
applicable laws, whether such Communications are delivered to Tenant or are
requested of Tenant by any federal, municipal, state, county or other government
or quasi-governmental authority and/or any department or agency
thereof.
(vi) Notwithstanding
any other provisions of this Lease but subject to the provisions of Section 20,
Tenant shall allow Landlord, and any authorized representative of Landlord,
access and the right to enter and inspect the Premises for the presence of any
Hazardous Substance, at any time deemed reasonable by Landlord, with reasonable
notice to Tenant, except in the case of emergency.
(b) In
the event that any alteration or repair to the Premises is undertaken by Tenant
during the initial term of this Lease or any renewal term, if any, such
alteration or repair shall (i) be designed and constructed in full compliance
with the American’s With Disabilities Act, as amended from time to time (the
“Act”), and (ii) the cost of such design, alteration or repair to the Premises
shall be borne solely by Tenant. In addition, Tenant shall be
responsible for all costs and expenses incurred or to be incurred in order to
cause the Premises and the operation of Tenant’s business within the Premises to
comply with the Act, and, if Tenant fails to keep and maintain the Premises in
compliance with the Act, Landlord shall have the right but not the obligation,
at Tenant’s sole cost and expense, to enter the Premises and cause the Premises
to be put into compliance with the Act; and Tenant shall indemnify, defend and
hold Landlord harmless from and against any and all costs, claims and
liabilities, including but not limited to the fees of counsel, arising out of or
resulting from Tenant’s failure to maintain and keep the Premises in compliance
with the Act.
(c) Landlord
and Tenant agree that their respective maintenance and repair obligations with
respect to the Premises and the Building shall be as follows:
(i) Landlord,
at its expense, shall make all necessary (x) repairs to the parking lot
(provided that Tenant shall be responsible for sidewalks and loading docks of
the Premises); (y) repairs to the roof; and (z) structural repairs to the frame
supporting the structure of the Premises and the exterior walls, foundationand
structural steel.
(ii)
Tenant shall, at its expense, be responsible for making all
structural repairs to the Premises except for identified in Section 9(c)(i) and
shall at all times keep the interior of the Premises including the heating,
lighting, plumbing, air-conditioning, fixtures, appliances and equipment in good
condition and repair and shall replace all broken glass. At the end
of the term, Tenant shall peaceably quit and surrender the Premises in the
condition existing as of the Commencement Date of this Lease, ordinary wear,
tear and casualty and condemnation damage excepted.
(iii) Landlord
shall be responsible for contracting for snow removal from the packing lot and
shall charge Tenant for Tenant’s pro rata share. Tenant shall be
responsible for debris removal.
10. RENT
DEMAND: ACCORD AND SATISFACTION.
(a) After
the service of any notice or commencement of any suit, or final judgment
therein, Landlord may receive and collect any rent due and such collection or
receipt shall not operate as a waiver of nor affect such notice, suit or
judgment.
(b) No
payment by Tenant or receipt by Landlord of a lesser amount than the rental
herein stipulated shall be deemed to be other than on account of the earliest
stipulated rent nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction. Landlord may accept such check or payment without
prejudice to Landlord’s right to recover the balance of such rent or pursue any
other remedy provided for in this Lease or available at law or in
equity.
11. WAIVER
OF LIABILITY BY TENANT.
Landlord
and Landlord’s agents and employees shall not be liable for and Tenant waives
all claims for damage to person or property, loss of business and any and all
other losses, claims, expenses or damages sustained by Tenant or any person
claiming through Tenant, its officers, employees, customers, contractors,
invitees, or agents, resulting from any occurrence in or upon the Premises or
any other part of the Building or Site, unless due to the gross negligence or
willful misconduct or breach of this Lease of Landlord, its agents, employees,
or representatives.
12. WAIVER
OF SUBROGATION.
(a) Both
the Landlord, and the Tenant waive any and all rights of recovery, claim, action
or cause of action, against the other, their agents, officers and employees for
any loss, claim or damage that may occur to the Premises herein demised, the
contents thereof, improvements thereto, or the Building of which the demised
Premises are a part or any improvements thereto, by reason of fire, the elements
or any other cause which could be insured against under the terms of a standard
Fire and Extended Coverage Insurance policy or policies, regardless of cause of
origin, including the negligence of the Tenant or Landlord as the case may be,
their agents, officers and employees. All of Landlord’s and Tenant’s
repair and indemnity obligations under the Lease shall be subject to the waivers
contained in this paragraph to the extent covered by insurance.
13. INDEMNIFICATION
AND INSURANCE.
(a) Tenant
will indemnify, defend and save Landlord harmless from and against any and all
claims, actions, damages, losses, liability and expenses incurred, including
reasonable attorneys’ fees, in connection with loss, damage or injury to persons
or property occurring in, on or about, or arising directly or indirectly out of
the use or occupancy of or conduct of Tenant’s business on the Premises,
Building or Site in violation of law, or the failure by Tenant to perform its
covenants or carry out its obligations under this Lease, or occasioned wholly or
in part by any negligent act or omission or willful misconduct of Tenant,
Tenant’s agents, officers, contractors, customers or employees, except the gross
negligence or willful misconduct of Landlord or any of its agents, employees or
representatives.
(i) Landlord
will indemnify, defend and save Tenant harmless from and against any and all
claims, actions, damages, liability and expenses incurred, including reasonable
attorneys’ fees, in connection with loss, damage or injury to persons or
property arising out of or due to the gross negligence or willful misconductby
Landlord, or any of its agents, employees or representatives with respect to
Landlord’s covenants and obligations under this Lease, except the negligence or
willful misconduct of Tenant, its agents, contractors, customers or
employees. Landlord agrees that, for purposes of the preceding
sentence, Landlord shall be deemed to be acting willfully if Landlord fails to
fulfill responsibilities of Landlord under this Lease in a timely manner
following Landlord’s receipt of specific written notification from Tenant (for
example, notification of Landlord by Tenant of a specific roof leak that is in
need of repair).
(b) Tenant
at all times during the term of this Lease shall, at its own expense, keep in
full force and effect public liability insurance and property damage insurance
described below. Landlord shall have the sole and exclusive right to
negotiate, adjust, and receive any insurance loss and proceeds; provided, that
such insurance coverage related to Landlord’s and not Tenant’s insurable
interest, subject to the rights of any mortgagee of Landlord.
(i) Said
insurance coverage shall include, but not be limited to, comprehensive general
liability insurance, including property damage, insuring Landlord (as
a loss payee for property insurance and an additional insured for liability
insurance) and Tenant against claims for personal injury, death, and property
damage occurring on or about the Premises, or related thereto, in an amount of
not less than $10,000,000 per occurrence.
(ii) All
of said insurance shall be in, from and with companies licensed to do business
in the State of Ohio and shall provide that it shall not be subject to
cancellation, termination or change except after at least ten (10) days prior
written notice to Landlord. All insurance provided by Tenant as
required by this paragraph (b)(i) shall name Landlord as an additional insured
as its interests shall appear. A duly executed certificate or
certificates for the same, together with satisfactory evidence of the payment of
the premium thereof, shall be deposited with Landlord on the Commencement Date
and upon renewals of such policies not less than fifteen (15) days prior to the
expiration of the term of such coverage. If Tenant fails to comply
with such requirements, Landlord may, but shall not be obligated to, obtain such
insurance and keep the same in effect and Tenant shall pay Landlord the premium
cost thereof upon demand.
(c) Tenant
shall obtain a property insurance policy on a “special perils form” which shall
include, but not be limited to, coverage for fire, extended coverage, vandalism
and malicious mischief and which shall cover all personal property, furnishings,
furniture, trade fixtures, contents, merchandise and improvements and
betterments made in the Premises or paid for by the Tenant for their full
insurable value on a replacement cost basis. Tenant shall obtain its
own boiler and machinery insurance.
(d) Landlord
shall obtain and maintain fire and extended casualty insurance on the buildings
and improvements comprising the Site in an amount determined by the
Landlord. Such policy shall name the Tenant as an additional insured
and as loss payee as its interests may appear. The Tenant shall
reimburse the Landlord for Tenant’s Share of the amount of the premiums for such
coverage attributable to the Premises within ten (10) business days after the
presentation of the invoice. Such coverage may, at Landlord’s option,
be under Landlord’s master policy covering the buildings and other properties of
Landlord.
(e) Tenant
agrees to comply with all rules, regulations and requirements of any federal,
state, county or municipal authority, the Board of Fire Underwriters or like
organization, applicable to the Premises. Tenant, at Tenant’s cost
and expense, shall make all replacements, alterations, and any and all repairs
to the Premises required to comply with such rules, regulations and
requirements.
14. SIGNS
AND DRAPES.
Tenant
shall not place any signs on the exterior of the Building without the prior
written consent of Landlord, which consent shall not be unreasonably
withheld. All signs, consented to by Landlord, shall comply with all
requirements of any governmental authority and all necessary permits or licenses
shall be obtained by Tenant. Signs may be painted on the front and
rear door entrances providing that they are painted in white
lettering. A free standing Anodized Aluminum sign can be placed in
the flower bed on the side of the Building. No signs can be attached
to the Building except as are already attached thereto. Tenant shall
maintain all signs in good condition and repair at all times, and shall save the
Landlord harmless from injury to person or property arising from the erection
and maintenance of said signs. Upon vacating the Premises, Tenant
shall remove all signs and repair all damages caused by such
removal.
15. ASSIGNMENT
AND SUBLETTING.
(a) This
Lease shall not be assigned, mortgaged, pledged, encumbered or in any other
manner transferred by the Tenant, voluntarily or involuntarily, by operation of
law or otherwise, nor shall the Premises or any part thereof be sublet,
licensed, granted to a concessionaire or used or occupied by anyone other than
Tenant, without the prior consent of the Landlord, which consent shall not be
unreasonably withheld. Any consent by Landlord to any assignment,
subletting, licensing, grant to a concessionaire or use or occupation by anyone
other than Tenant, shall not constitute a waiver of the necessity for such
consent under any subsequent assignment, subletting, licensing, grant to a
concessionaire or use of occupation by anyone other than Tenant.
(b) If
Tenant shall, during the term of this Lease, sublet all or any part of said
Premises or assign this Lease, either with or without the consent of Landlord,
Tenant shall nevertheless remain fully liable under all of the terms, covenants,
and conditions of this Lease. If this Lease be assigned, or if the
Premises or any part thereof be subleased or occupied by anybody other than
Tenant, Landlord may collect from the assignee, or following a default by Tenant
under this Lease beyond applicable notice and cure periods, from any sublessee
or occupant, any rent or other charges payable by Tenant under this Lease and
apply the amount collected to the rent and other charges herein reserved, but
such collection by Landlord shall not be deemed an acceptance of the assignee,
sublessee or occupant as a tenant nor a release of Tenant from the performance
by Tenant under this Lease.
(c) Notwithstanding
anything to the contrary in this Lease, (i) Tenant may, without Landlord’s prior
written consent and without constituting an assignment or sublease hereunder,
sublet the Premises or assign this Lease to (a) an entity controlling,
controlled by or under common control with Tenant, (b) an entity related to
Tenant by merger, consolidation, nonbankruptcy reorganization, or government
action, or (c) a purchaser of a substantial portion of Tenant’s assets and (ii)
a sale or transfer of Tenant’s capital stock or other equity interests shall not
be deemed an assignment, subletting or any other transfer of this Lease or the
Premises.
16. DAMAGE
OR DESTRUCTION.
(a) If
(i) the Premises Site shall be damaged to the extent of more than twenty-five
percent (25%) of the cost of replacement thereof, respectively, or (ii) the
proceeds of Landlord’s insurance recovered or recoverable as a result of the
damage shall be insufficient to pay fully for the cost of replacement of the
Premises and the Building in which they are located and Tenant is unwilling to
make up such insufficiency, or (iii) the Premises or said Building shall be
damaged as a result of a risk which is not covered by Landlord’s insurance, or
(iv) the Premises shall be damaged in whole or in any part during the
last one (1) year of the Lease term or of any renewal term hereof or
(v) the Building of which the Premises are a part shall be damaged to the extent
of fifty percent (50%) or more of the cost of replacement thereof, whether or
not the Premises shall be damaged; then in any such event Landlord, in its sole
discretion, may terminate this Lease by notice given within sixty (60) days
after such event and upon the date specified in such notice, which shall not be
less than thirty (30) days nor more than sixty (60) days after the giving of
said notice, this Lease shall terminate and come to an end, and Tenant shall
vacate and surrender the Premises to Landlord. If this Lease shall
not be canceled and if the repair or restoration shall take one hundred eighty
(180) days or more, Landlord shall notify Tenant within sixty (60) days from the
damage or destruction and Tenant shall have twenty (20) days from receipt of
said notification to terminate this Lease by delivering written notice to
Landlord within said twenty (20) day period. Following the casualty
an equitable abatement of the rent and additional charges shall be allowed based
upon the extent to which Tenant’s use of the Premises is diminished from the
date when the damage occurred until completion of the repairs or rebuilding or,
in the event Landlord or Tenant elects to terminate this Lease, until said date
of termination. Notwithstanding the foregoing, Landlord shall not
have the right to terminate the Lease if the damage to the Building is (a) due
to a risk required to be insured against under Section 13(d) of the Lease or (b)
relatively minor (e.g., repair or restoration would cost less than ten percent
(10%) of the replacement cost of the Building).
(b) If
this Lease shall not be terminated as provided in Paragraph (a) above, Landlord,
at Landlord’s expense, shall proceed diligently with the repair or restoration
of the Premises to place the damaged Premises in substantially the same
condition they shall be in upon delivery of possession of the Premises to
Tenant.
17. EMINENT
DOMAIN.
(a) In
the event that the Premises, the Building or the Site or any part thereof shall
at any time after the execution of this Lease be taken for public or
quasi-public use or condemned under eminent domain or conveyed under threat of
such a taking or condemnation, Tenant shall not be entitled to claim, or have
paid to the Tenant any compensation or damages whatsoever for or on account of
any loss, injury, damage, taking or conveyance of any right, interest or estate
of the Tenant and the Tenant hereby relinquishes and hereby assigns to Landlord
any rights to any such damages. Landlord shall be entitled to claim
and have paid to it for the use and benefit of Landlord all compensation and
damages for and on account of or arising out of such taking, condemnation or
conveyance without deduction from the amount thereof for or on account of any
right, title, interest or estate of Tenant in or to said
property. Tenant upon request of Landlord will execute any and all
releases, transfers or other documents as shall be required by such public or
quasi-public authority to effect and give further evidence and assurances of the
foregoing. Tenant shall have the right to any separate award made by
the condemning authority for moving expenses and the leasehold improvements paid
for and installed by Tenant. Notwithstanding the foregoing, Tenant
shall be entitled to make a claim against such condemnation proceeds for (i) its
moving costs and (ii) the value of its personal property, fixtures,
equipment, alterations and other interests in the Premises.
(b) In
case of any taking, condemnation or conveyance referred to in this Section, then
if and when there is an actual taking or conveyance of physical possession of
any material part of the Premises or any material part of the Site, then
Landlord may cancel and terminate this Lease by giving notice to Tenant within
ten (10) days after such an actual taking or conveyance of physical possession
and should such an actual taking or conveyance of physical possession of any
part of the Premises occur at any time when the then remaining term of this
Lease is less than two (2) years, then either party may likewise cancel and
terminate this Lease by giving notice to the other party within said ten (10)
day period. If this Lease is not terminated following any of said
actual takings of conveyances of any part of the Premises, then Landlord shall
at Landlord’s own expense, but only to the extent of an equitable proportion of
the award for the portion of the Premises taken (excluding any award of land),
make such repairs to the Premises as are necessary to constitute a complete
architectural and tenantable unit. In the event of a partial taking
or conveyance of the Premises a proportionate allowance shall be made in the
Rent based on the proportion of the Premises remaining as compared to the
original Premises, however, in the event the Premises have been reduced in
excess of twenty-five percent (25%) of the square footage in the Premises,
Tenant may cancel this Lease after ten (10) days written notice to
Landlord.
18. LANDLORD’S
REMEDIES UPON DEFAULT.
(a) Tenant
shall be in default if: (i) the payment of rent or other sums of money required
to be paid by Tenant are not paid within ten (10) days after receipt of written
notice from Landlord that such payment is past-due and an additional ten (10)
days after receipt of a second notice from Landlord if Tenant has not paid in
the first ten (10) day period; (ii) Tenant continues to fail to perform any of
the covenants, terms, conditions, provisions, rules and regulations of this
Lease (other than for the payment of any sums) thirty (30) days after having
received written notice of such failure by Landlord (or such longer period not
to exceed sixty (60) days as may be reasonably required if the failure is not
capable of being cured within a thirty (30) day period and the Tenant proceeds
to effect such cure with due diligence) and an additional ten (10) days after
receipt of a second notice from Landlord if Tenant has not cured the breach in
the first period; (iii) Tenant shall commit waste or shall assign or sublet the
Premises except as expressly permitted by this Lease; (iv) Tenant shall vacate
the Premises or fail to occupy and conduct Tenant’s business in the Premises for
a period of fifteen (15) days or longer; (v) Tenant or any assignee or sublessee
of the entire Premises shall file or have filed against it (provided that with
respect to any petition filed against it, such petition shall not have been
vacated within sixty (60) days from the filing), a petition for adjudication in
or as a bankruptcy, for reorganization, for an arrangement, or for any other
debtor or capital structure relief under any existing or future Bankruptcy Act
as same may be amended, supplemented or replaced; (vi) Tenant or any assignee or
sublessee shall make an assignment for the benefit of creditors; (vii) a
receiver of any property of Tenant shall be appointed in any action, suit or
proceeding by or against Tenant; or (viii) the interest of Tenant in the
Premises or in any assets or property of Tenant shall be offered for sale or
sold under execution or other legal process, (all of which shall jointly and
severally constitute a “Default”).
(b) Upon
a Default, Landlord, in addition to all other remedies given to Landlord in the
Lease, at law or in equity, may by three (3) days written notice to Tenant
terminate this Lease, and, upon terminating this Lease and without further
notice re-enter the Premises by summary proceedings or otherwise and in any
event may dispossess the Tenant. Under no circumstances is this Lease
to be an asset for Tenant’s creditors by operation of law or
otherwise. No re-entry or taking possession of the Premises by
Landlord shall be construed as an election on Landlord’s part to terminate this
Lease unless written notice of such intention be given to Tenant or unless the
termination of this Lease be decreed by a court of competent
jurisdiction. Tenant agrees it is and shall remain liable for all
rent and other charges and sums due hereunder, which liability shall survive the
termination of this Lease, the re-entry by Landlord and the issuance of any
action to secure possession of the Premises. Landlord shall have the
right to maintain successive actions against Tenant for recovery of such damages
or for said rents and other charges and sums as are payable hereunder and
Landlord shall not be required to wait to begin such actions or legal
proceedings until the date this Lease would have expired. In the
event of such re-entry, Landlord may, without being obligated so to do, if the
Lease be terminated, in its own behalf, relet the whole or any portion of said
Premises, or the whole or any portion thereof with additional space, for any
period equal to, greater or less than the remainder of the original term of this
Lease, for any sum (including any rental concessions) which it may deem
reasonable, to any tenant which it may deem suitable and satisfactory, and for
any use and purpose which it may deem appropriate. In the event of
any reletting, Tenant shall be released from its obligations under this Lease
relating to actions or omissions after such reletting other than its obligations
to pay rent and real estate taxes under Section 2 and Section 3, and Landlord
may apply the rent received from such reletting therefrom first to the payment
of Landlord’s reasonable expenses, including attorney’s fees incurred by reason
of Tenant’s default, commissions and the repairs, renovation or alteration of
the Premises and then to the payment of rent and all other sums due from Tenant
hereunder, Tenant remaining liable for any deficiency.
(c) Any
obligation imposed by law upon Landlord to relet the Premises shall be subject
to the reasonable requirements of Landlord to develop in a harmonious manner the
real estate of which the Premises are a part, and the failure of Landlord to
relet, or if relet, to collect the rent under such reletting, shall not release
or affect Tenant’s liability for damages hereunder. Landlord shall
use its best efforts to mitigate any damages resulting from any default by
Tenant, and Tenant shall not in any event be liable for any damages reasonably
mitigable by Landlord. Landlord shall have no lien or other interest
in any item of Tenant’s Property.
(d) In
the event of a default beyond notice and cure periods by Tenant of any of the
terms, provisions, covenants, conditions, rules and regulations of this Lease,
Landlord shall have the right to injunction and the right to invoke any remedy
permitted to Landlord under the Lease, at law or in equity. All
remedies available to Landlord are declared to be cumulative and
concurrent. No termination of this Lease nor any taking or recovering
of possession of the Premises shall deprive Landlord of any of its remedies or
actions against Tenant.
19. HOLDOVER
BY TENANT.
If Tenant
remains in possession of the Premises after the expiration of the tenancy
created hereunder, and without the execution of a new lease or the proper
exercise of Tenant’s holdover option under Section 6(c), Tenant shall be deemed
to be occupying the Premises as a tenant from month-to-month and subject to all
of the provisions of this Lease in effect on the day before the expiration of
the tenancy, except those relating to term and except that the rent shall be
double the amount paid by Tenant during the last month of the term of this
Lease.
20. RIGHTS
OF LANDLORD.
Landlord
reserves the right at all reasonable times to go upon and inspect the Premises
and every part thereof and at Landlord’s option to make emergency repairs, if
Tenant shall have failed to make such repairs, or repairs, alterations and
additions to the Premises or the Building of which the Premises are a part;
provided, however, that (i) such action by Landlord will not alter the
responsibilities of the parties under Section 9(c); and (ii) except to the
extent required to make such emergency repairs, Landlord agrees that Landlord
will give at least 24 hours prior notice to Tenant of any entry in the Premises
and upon entering the Premises, he will not unreasonably interfere with, disrupt
or adversely affect the operation or conduct of Tenant’s business or the
performance by any of the Tenant’s employees of his or her duties and
responsibilities. If the Landlord shall make any payments on behalf
of Tenant or if Landlord shall make repairs to the Premises which are Tenant’s
obligation under this Lease (whether or not an emergency situation exists) then
any amounts so paid or incurred by Landlord are agreed and declared to be
“additional rent” and shall be due and payable to Landlord from Tenant upon
submission to Tenant of an invoice, bill or statement therefor.
21. SUBORDINATION:
ATTORNMENT.
(a) Landlord
reserves the right to demand and obtain from Tenant a waiver of priority, in
recordable form and in form reasonably acceptable to Tenant, subordinating
Tenant’s Lease in favor of any mortgage loans, refinancings, replacements,
renewals, modifications, amendments, extensions or consolidations placed upon
the Premises from time to time by the Landlord; provided that Landlord shall
procure from any mortgagees an agreement in a form reasonably acceptable to
Tenant (a “Non-Disturbance Agreement”) providing in substance that so long as
Tenant shall faithfully discharge the obligations on its part to be kept and
performed under the terms of this Lease, Tenant’s tenancy will not be disturbed
nor this Lease affected by any default under such mortgage, and Tenant agrees
that this Lease shall remain in full force and effect even though default in the
mortgage may occur. Landlord represents and warrants to
Tenant that Landlord does not currently have a lender.
(b) Tenant
covenants and agrees that Tenant shall execute in recordable form and deliver
upon demand of Landlord whatever instruments may be reasonably required to
acknowledge and further evidence the subordination of Tenant’s
Lease.
(c) Tenant
covenants to comply with all lawful easements, agreements, covenants and
restrictions of record pertaining to the Site.
22. NO
WAIVER.
No waiver
of any of the terms, covenants, provisions, conditions, rules and regulations
required by this Lease and no waiver of any legal or equitable relief or remedy
shall be implied by the failure of Landlord or Tenant to assert any rights or to
declare any forfeiture or for any other reason, and no waiver of any of said
terms, provisions, covenants, rules and regulations shall be valid unless it
shall be in writing signed by the Landlord or Tenant as the case may
be. No waiver by Landlord or Tenant or forgiveness of performance by
Landlord or Tenant constitutes a waiver of forgiveness of performance in favor
of Tenant or Landlord herein, or any other tenants, nor shall the waiver of any
pledge of this Lease, or the forgiveness of performance of any one or more of
the terms, provisions, conditions, rules and regulations of this Lease be
claimed or pleaded by Tenant or Landlord to excuse a subsequent pledge or
failure of performance of any of the terms, provisions, conditions, covenants,
rules and regulations of this Lease.
23. VACATION
OF PREMISES.
Tenant
shall deliver up and surrender to Landlord possession of the Premises, including
all Tenant’s alterations (and all replacements thereof), all fixtures (other
than Tenant’s Property) permanently attached to the Premises during the term
(except such fixtures as Landlord shall direct Tenant to remove), and all
property required to be left in the Premises pursuant to this Lease upon the
expiration of this Lease or its termination in any way, in as good condition and
repair as the same shall be at the commencement of said term (loss by fire or
other casualty and ordinary wear and decay only excepted) and deliver the keys
at the office of Landlord or Landlord’s agent. Notwithstanding the
foregoing, Landlord and Tenant agree that all laboratory benches, exhaust hoods,
walk-in coolers/freezer, and fermentors and the steam- boilers attached thereto
are and shall remain the property of Tenant and, subject to the provisions of
Section 8 above, may be removed by the Tenant upon the expiration or termination
of this Lease.
24. SHORT
FORM LEASE.
This
Lease shall not be recorded, but a Memorandum of Lease describing the property
herein demised, giving the term of this Lease and renewal rights, if any, and
referring to this Lease, may be recorded by either party. All
governmental charges attributable to the execution or recording of the
memorandum of this Lease shall be charged to and be paid by the party requesting
the recording.
25. NOTICES.
Any
notice or consent required to be given by or on behalf of either party upon the
other shall be in writing and shall be deemed received upon first attempted
delivery by mailing such notices or consents by registered or certified mail
addressed:
to the
Landlord at:
Miles/Commerce Ltd.
c/o
Beverly Golden
Champa
& Company
4225
Mayfield Rd.
South
Euclid, Ohio 44121
and to
the Tenant
at: Affymetrix,
Inc.
3420
Central Expressway
Santa
Clara, CA 95051
Attention: General
Counsel
with a
copy
to: Affymetrix,
Inc.
26111
Miles Road
Cleveland,
Ohio 44128
Attention:
Don Daut
Vice
President, Reagent Operations
or such
other address as may be specified from time to time, in writing, delivered to
the other party provided, however, that from and after the Commencement Date of
the term of this Lease notice to Tenant in writing by certified or registered
mail to the Premises shall be deemed to be sufficient for all purposes of notice
required by this Lease, and shall be effective upon receipt.
26. APPLICABLE
LAW AND CONSTRUCTION.
(a) The
laws of the State of Ohio shall govern the validity, performance and enforcement
of this Lease. The submission of this document for examination does
not constitute an offer to lease or a reservation of the Premises and becomes
effective only upon the execution and delivery thereof by the Landlord and
Tenant. This Lease may not be modified or altered, except as
expressly granted herein. This Lease has been negotiated by Landlord
and Tenant, and the Lease, together with all the terms and provisions hereof,
shall not be deemed to have been prepared by either Landlord or Tenant, but by
both equally.
(b) Should
any court or agency determine that any provision, term or
condition of this Lease is void and/or unenforceable, such provision,
term or condition shall be severed herefrom and the remainder of this Lease
shall remain in full force and effect.
(c) Tenant
shall have no right to quit the Premises or cancel or rescind this Lease except
as said right is expressly granted herein. This Lease shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns.
(d) The
headings of the several paragraphs contained herein are for convenience only and
do not define, limit or construe the contents of such paragraphs.
(e) Time
is declared to be of the essence in all provisions of this Lease.
(f) This
Lease constitutes the entire agreement of the parties. All previous
negotiations, representations and agreements, including prior lease agreements,
concerning the Premises, Building and Site are merged into this Lease and shall
be void unless expressly incorporated herein. All prior lease
agreements are hereby terminated and shall be of no further force and
effect.
27. TRANSFER
OF LANDLORD'S INTEREST; LIABILITY OF LANDLORD.
(a) If
Landlord (or either of them) should sell or otherwise transfer Landlord’s
interest in the Premises, Tenant agrees that Landlord shall thereafter have no
liability to Tenant under this Lease or any modification or amendment thereof or
extensions or renewals thereof, except for such liabilities, which might have
accrued prior to the date of such sale or transfer of Landlord’s
interest. The Landlord shall be liable for those items which may
accrue under this Lease only while owner of the Premises. A purchaser
from Landlord shall be liable to Tenant for all of Landlord’s obligations under
this Lease after the date of transfer.
(b) If
Landlord shall fail to perform any covenant, term or condition of this Lease
upon Landlord’s part to be performed and, as a consequence of such default,
Tenant shall recover a judgment (or other judicial process) against Landlord,
such judgment shall be satisfied solely out of the proceeds of sale received
upon execution of such judgment and levy thereon against the right, title and
interest of Landlord in the Building and Site as the same may then be encumbered
and neither Landlord nor if Landlord be a partnership, any of the partners
comprising such partnership, or if Landlord be a corporation, any of the
officers, directors or shareholders shall be liable for any
deficiency. It is understood that in no event shall Tenant have any
right to levy execution against any property of Landlord other than its interest
in the Building and Site as hereinbefore expressly provided. In the
event of the sale or other transfer of Landlord’s right, title and interest in
the Building or Site, Landlord shall be released from all liability and
obligation hereunder.
(c) Any
agreement, obligation or liability made, entered into or incurred by or on
behalf of Landlord binds only the assets of the Landlord, and no agent of the
Landlord assumes or shall be held to any personal liability
therefor. Without limiting the generality of the foregoing, the
execution of any agreement or the making or entering into or incurring of any
liability by any agent of the Landlord shall not constitute such agent’s
personal or individual obligations, either jointly or severally, in any capacity
or manner whatsoever.
28. NO
PARTNERSHIP.
Landlord
is not and shall not become by this Lease or by any rights granted or reserved
herein a partner or joint venturer of or with Tenant in the conduct of Tenant’s
business or otherwise.
29. REPRESENTATIONS
OF TENANT.
(a) Tenant
does hereby represent and warrant to the Landlord each of the
following:
(i) Tenant
is a corporation duly organized and properly existing under the laws of the
State of Delaware;
(ii) Tenant
has taken all necessary action to be fully bound by and to enter into the terms
and conditions of this Lease and the individuals executing this Lease on the
Tenant’s behalf have been fully authorized to bind the Tenant hereto;
and
(iii) The
terms and conditions of this Lease and the Tenant’s obligations hereunder do not
conflict with or violate the Articles of Incorporaiton or Code of Regualtions of
the Tenant, nor any other material agreement to which the Tenant may be
bound.
30. MORTGAGE
FINANCING.
Upon
request Tenant agrees to execute and deliver to Landlord estoppel letter as
required by Landlord or by Landlord’s mortgage lenders. Tenant, at
Landlord’s expense, will cooperate with Landlord so that Landlord will be able
to sell, transfer or lease the Site or to procure mortgage financing for the
Site.
31. QUIET
ENJOYMENT.
Landlord
hereby covenants and agrees that if Tenant shall perform all of the covenants
and agreements herein stipulated to be performed on Tenant’s part, Tenant shall
at all times during the continuance hereof have peaceable and quiet enjoyment
and possession of the Premises without hindrance from Landlord or any person or
persons lawfully claiming the Premises, subject, however, to the terms of this
Lease and to all agreements to which this Lease is subordinate.
32. EXISTING
LEASE; BUILDING 26111 LEASE.
Notwithstanding anything to the
contrary Tenant may terminate this lease if (i) the Existing Lease is terminated
prior to the Commencement Date for any reason other than Tenant’s default and
(ii) Tenant’s lease with Landlord of the premises at 26111 Miles Road,
Warrensville Heights, Ohio (the “Building 26111 Lease”) is terminated for any
reason other than Tenant’s default; provided, however, that Tenant represents
that as of the date of execution of this Lease, it does not know of current
grounds for termination of this Lease or the Building 26111 Lease and has no
current intention to terminate either such lease.
CLE -
1586733.2
CLE -
2255735.3
IN
WITNESS WHEREOF, the parties hereto set their hands to four (4) counterparts
hereof, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Lease, to be effective as of the date
first written above.
|
Signed
in the Presence of:
/s/ Laura M.
Letellier
Printed
Name: Laura M.
Letellier
/s/ Kathleen
O’Brien
Printed
Name: Kathleen
O’Brien
|
“LANDLORD”
MILES/COMMERCE
LTD., an Ohio limited liability company
/s/ Thomas A.
Mann
By: Thomas
A. Mann, Member
|
|
/s/ Patrick S.
Pratt
Printed
Name: Patrick S.
Pratt
/s/ Steven
Simon
Printed
Name: Steven
Simon
|
/s/ Robert A.
Mann
By: Robert
A. Mann, Member
|
|
/s/ Sandra
Pate
Printed
Name: Sandra
Pate
/s/ Pete
Ambrose
Printed
Name: Pete
Ambrose
|
/s/ Jeanne M.
Newman
By:
Jeanne M. Newman, Member
|
|
/s/ Rozell
Price
Printed
Name: Rozell
Price
/s/ Amber
Madson
Printed
Name: Amber
Madson
|
/s/ Elizabeth M.
Rosenman
By:
Elizabeth M. Rosenman, Member
|
|
Signed
in the Presence of:
/s/ Lucy
Reynolds
Printed
Name: Lucy
Reynolds
/s/ Catherine
Ferandin
Printed
Name: Catherine
Ferandin
|
“TENANT”
AFFYMETRIX,
INC., a Delaware corporation
/s/ Wayne
Woodard
Printed
Name: Wayne Woodard
Its: Senior
Vice President,
Global
Operations
|
STATE OF
Florida
)
) SS
COUNTY OF
Palm
Beach
)
BEFORE
ME, a Notary Public in and for said County and State, appeared Miles/Commerce
Ltd., an Ohio limited liability company, by Thomas A. Mann, its Member, who
acknowledged that he did sign the foregoing instrument on behalf of said limited
liability company and that the same is his free act and deed personally and the
free act and deed of the limited liability company.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal at
Palm Beach
Gardens, FL, this 18 day of March,
2010.
/s/ Linda L.
George
NOTARY PUBLIC
[Notary Seal]
STATE OF
Florida
)
) SS
COUNTY OF
Broward
)
BEFORE
ME, a Notary Public in and for said County and State, appeared Miles/Commerce
Ltd., an Ohio limited liability company, by Robert A. Mann, its Member, who
acknowledged that he did sign the foregoing instrument on behalf of said limited
liability company and that the same is his free act and deed personally and the
free act and deed of the limited liability company.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal at
Ft. Lauderdale,
FL, this 17 day of March,
2010.
[Notary
Seal]
/s/ Rachel
J.
Cohen
NOTARY PUBLIC
See
attached
STATE
OF
)
) SS
COUNTY
OF
)
BEFORE ME, a Notary
Public in and for said County and State, appeared Miles/Commerce Ltd., an Ohio
limited liability company, by Jeanne M. Newman, its Member, who acknowledged
that she did sign the foregoing instrument on behalf of said limited liability
company and that the same is her free act and deed personally and the free act
and deed of the limited liability company.
IN TESTIMONY WHEREOF, I
have hereunto set my hand and affixed my official seal at __________, ______,
this _____ day of ___________, 2010.
___________________________
NOTARY
PUBLIC
STATE OF
Washington
)
) SS
COUNTY OF
King
)
BEFORE
ME, a Notary Public in and for said County and State, appeared Miles/Commerce
Ltd., an Ohio limited liability company, by Elizabeth M. Rosenman, its Member,
who acknowledged that she did sign the foregoing instrument on behalf of said
limited liability company and that the same is her free act and deed personally
and the free act and deed of the limited liability company.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal at
Seattle, WA, this 15th day of March,
2010.
/s/ Karen
Williamson
NOTARY PUBLIC
[Notary
Seal]
STATE OF
CALIFORNIA )
) SS
COUNTY OF
SANTA
CLARA
)
On
February 19,
2010 before me, Amy T. Monbourquette, Notary Public, personally appeared Wayne
Woodard, who proved to me on the basis of satisfactory evidence to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
I certify
under PENALTY OF PURJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS
my hand and official seal.
/s/ Amy T.
Monbourquette [Notary
Seal]
Amy T.
Monbourquette, Notary Public
This
Instrument Prepared By:
Warren
Goldenberg, Esq.
Hahn
Loeser & Parks LLP
200
Public Square, Suite 2800
Cleveland,
Ohio 44114
(216)
621-0150
CLE -
1586733.2
CLE -
2255735.3
EXHIBIT
A
Situated
in the City of Warrensville Heights, County of Cuyahoga and State of Ohio, and
known as being part of Original Warrensville Township Lot No. 102 and bounded
and described as follows:
Beginning
at the Southwesterly corner of the said Original Warrensville Township Lot No.
102 which is also the center line of Miles Road (formerly North Miles
Road). Thence North 0° 11' 20" East 461.00 feet along the Westerly
line of said Original Warrensville Township Lot No. 102 to a point; thence North
89° 58' 55" East 240.13 feet leaving Westerly line of said Original Warrensville
Township Lot No. 102 to a point; thence South 0° 11' 20" West 461.00 feet and
being parallel with the said Westerly line of Original Warrensville Township Lot
No. 102 to a point in the centerline of Miles Road; thence South 89° 58' 55"
West 240.13 feet along the said center line of Miles Road and along the
Southerly line of said Original Township Lot No. 102 to the place of beginning,
being the same more or less, but subject to all legal highways.
PERMANENT
PARCEL NO. 763-33-018
CLE -
1586733.2
CLE -
2255735.3
CALIFORNIA
ALL-PURPOSE ACKNOWLEDGEMENT
State of
California
County of
Los
Angeles
On March
11, 2010 before me, Karen L. Linden, Notary Public,
personally
appeared Jeanne M. Newman
who proved to me on the basis of
satisfactory
evidence to be the person whose name
is subscribed
to the within instrument and
acknowledged to me
that she executed the same in her
authorized
capacity, and that by her signature on
the instrument
the person, or the entity upon behalf
of which the
person acted, executed the
instrument.
I certify under PENALTY OF PERJURY
under the
laws of the State of California that
the foregoing
paragraph is true and
correct.
[Notary
Seal] WITNESS
my hand and official seal
(Place
Notary Seal Above)
/s/ Karen L.
Linden
SIGNATURE OF
NOTARY